State v. Amaya , 298 Neb. 70 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/17/2017 09:14 AM CST
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    298 Nebraska R eports
    STATE v. AMAYA
    Cite as 
    298 Neb. 70
    State of Nebraska, appellee, v.
    Jay D. A maya, appellant.
    ___ N.W.2d ___
    Filed October 20, 2017.   No. S-16-959.
    1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    The lower court’s findings of fact will be upheld unless such findings
    are clearly erroneous.
    2.	 Judgments: Appeal and Error. An appellate court reviews a denial of
    a motion to alter or amend the judgment for an abuse of discretion.
    3.	 Postconviction. A defendant is entitled to bring a second proceeding for
    postconviction relief only if the grounds relied upon did not exist at the
    time the first motion was filed.
    4.	 Postconviction: Limitations of Actions. The 1-year statute of limita-
    tions in Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) applies to all veri-
    fied motions for postconviction relief, including successive motions.
    5.	 ____: ____. If, as part of its preliminary review, the trial court finds
    the postconviction motion affirmatively shows—either on its face or in
    combination with the files and records before the court—that it is time
    barred under Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), the court
    is permitted, but not obliged, to sua sponte consider and rule upon the
    timeliness of the motion.
    6.	 Constitutional Law: Statutes: Sentences. A law which purports to
    apply to events that occurred before the law’s enactment, and which dis-
    advantages a defendant by creating or enhancing penalties that did not
    exist when the offense was committed, is an ex post facto law and will
    not be endorsed by the courts.
    7.	 ____: ____: ____. There are four types of ex post facto laws: those
    which (1) punish as a crime an act previously committed which was
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    innocent when done; (2) aggravate a crime, or make it greater than it
    was, when committed; (3) change the punishment and inflict a greater
    punishment than was imposed when the crime was committed; and (4)
    alter the legal rules of evidence such that less or different evidence is
    needed in order to convict the offender.
    8.	 Postconviction: Constitutional Law: Limitations of Actions:
    Sentences. The statutory time limits in Neb. Rev. Stat § 29-3001(4)
    (Reissue 2016) do not result in ex post facto punishment.
    9.	 Postconviction: Limitations of Actions: Proof. To satisfy the tolling
    provision of Neb. Rev. Stat. § 29-3001(4)(c) (Reissue 2016), a prisoner
    must show there was (1) an impediment created by state action, (2)
    which amounted to a violation of the federal or state Constitution or a
    state law, and (3) as a result, the prisoner was prevented from filing a
    verified motion. If all these factors are satisfied, the 1-year limitation
    period will begin to run on the date the impediment was removed.
    10.	 Postconviction: Rules of the Supreme Court. Postconviction proceed-
    ings are not governed by the Nebraska Court Rules of Pleading in Civil
    Cases, and Nebraska’s postconviction statutes do not contemplate the
    opportunity to amend a postconviction motion after the court has deter-
    mined it does not necessitate an evidentiary hearing.
    11.	 Judgments: Pleadings: Time. Under Neb. Rev. Stat. § 25-1329 (Reissue
    2016), a motion to alter or amend a judgment shall be filed no later than
    10 days after the entry of the judgment.
    Appeal from the District Court for Lincoln County: Donald
    E. Rowlands, Judge. Affirmed.
    Jay D. Amaya, pro se.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Stacy, J.
    Jay D. Amaya filed a successive motion for postconvic-
    tion relief. The district court denied the motion without con-
    ducting an evidentiary hearing, and Amaya filed this appeal.
    We affirm.
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    STATE v. AMAYA
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    I. FACTS
    In 1999, Amaya pled no contest to one count of first degree
    murder, one count of use of a knife in the commission of a
    felony, and one count of sexual assault.1 The charges arose out
    of the assault and murder of Sheri Fhuere.2 No direct appeal
    was filed.
    In 2006, Amaya filed a motion for postconviction relief,
    alleging various instances of ineffective assistance of coun-
    sel. After conducting an evidentiary hearing, the district court
    denied relief, and we affirmed.3
    On September 2, 2016, Amaya filed what he captioned
    a “Successive Verified Motion for Postconviction Relief.”
    Amaya’s pro se motion acknowledged the 1-year statute of
    limitations for the filing of postconviction actions imposed
    by Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), but alleged
    his successive motion was not time barred for several reasons
    that we discuss in more detail later. The successive motion
    alleged trial counsel was ineffective because (1) he did not
    make Amaya aware of documents and evidence relating to his
    defense and (2) he incorrectly told Amaya that he could get the
    death penalty if convicted. The successive motion also alleged
    that counsel appointed to represent Amaya in his original post-
    conviction action was ineffective for not raising these issues.
    Amaya also attempted to include, in his postconviction motion,
    a motion for new trial pursuant to Neb. Rev. Stat. §§ 29-2101
    to 29-2103 (Reissue 2016).
    On September 7, 2016, the district court denied Amaya’s
    successive postconviction motion without conducting an
    evidentiary hearing and without requesting a response from
    the State. The court concluded the motion (1) was time
    barred under § 29-3001(4), (2) impermissibly sought to raise
    grounds for relief that either had been litigated in Amaya’s
    1
    See State v. Amaya, 
    276 Neb. 818
    , 
    758 N.W.2d 22
    (2008).
    2
    Id.
    3
    
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    first postconviction motion4 or were available at the time of
    his first motion,5 and (3) was “completely frivolous.” The dis-
    trict court did not expressly address the motion for new trial,
    but implicitly overruled it by dismissing the entire successive
    motion, and all accompanying motions, with prejudice.
    On September 9, 2016, before he had received the court’s
    order denying his successive motion, Amaya filed a motion for
    leave to amend his successive motion. He attached an amended
    successive motion for postconviction relief to this motion. On
    September 14, the district court denied Amaya’s motion to
    amend, reasoning it had already ruled on and dismissed his
    successive motion.6
    On September 26, 2016, Amaya filed a motion to alter or
    amend the judgment entered September 7. The district court
    denied the motion to alter or amend, finding it was not filed
    within 10 days of the September 7 order and thus was untimely
    under Neb. Rev. Stat. § 25-1329 (Reissue 2016). Amaya subse-
    quently filed this appeal.
    II. ASSIGNMENTS OF ERROR
    Amaya assigns, reordered and restated, that the district court
    erred in (1) denying his successive motion for postconviction
    relief without notice and hearing, (2) denying his motion to
    alter or amend the judgment and denying his motion to amend
    the successive postconviction motion, and (3) denying his
    motion for appointment of postconviction counsel.
    III. STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defendant
    4
    See State v. Luna, 
    230 Neb. 966
    , 
    434 N.W.2d 526
    (1989).
    5
    See State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017).
    6
    See State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
    (2016) (postconviction
    statutes do not contemplate opportunity to amend postconviction motion
    after court determines motion is insufficient to necessitate an evidentiary
    hearing).
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    failed to allege sufficient facts to demonstrate a violation of
    his or her constitutional rights or that the record and files
    affirm­atively show that the defendant is entitled to no relief.7
    The lower court’s findings of fact will be upheld unless such
    findings are clearly erroneous.8
    [2] An appellate court reviews a denial of a motion to alter
    or amend the judgment for an abuse of discretion.9
    IV. ANALYSIS
    1. Successive Motion Was
    Properly Dismissed
    [3] This is Amaya’s second motion for postconviction relief.
    A defendant is entitled to bring a second proceeding for post-
    conviction relief only if the grounds relied upon did not exist
    at the time the first motion was filed.10 But here, it is not
    necessary to determine whether any of the grounds alleged in
    Amaya’s successive motion existed at the time of his earlier
    postconviction motion, because we agree with the district court
    that his successive postconviction motion is time barred under
    § 29-3001(4), which provides:
    A one-year period of limitation shall apply to the filing of
    a verified motion for postconviction relief. The one-year
    limitation period shall run from the later of:
    (a) The date the judgment of conviction became final
    by the conclusion of a direct appeal or the expiration of
    the time for filing a direct appeal;
    (b) The date on which the factual predicate of the
    constitutional claim or claims alleged could have been
    discovered through the exercise of due diligence;
    7
    State v. Nolan, 
    292 Neb. 118
    , 
    870 N.W.2d 806
    (2015); State v. Cook, 
    290 Neb. 381
    , 
    860 N.W.2d 408
    (2015).
    8
    State v. Poindexter, 
    277 Neb. 936
    , 
    766 N.W.2d 391
    (2009); State v.
    Watkins, 
    277 Neb. 428
    , 
    762 N.W.2d 589
    (2009).
    9
    Knapp v. Ruser, 
    297 Neb. 639
    , 
    901 N.W.2d 31
    (2017).
    10
    State v. Hessler, 
    288 Neb. 670
    , 
    850 N.W.2d 777
    (2014).
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    (c) The date on which an impediment created by state
    action, in violation of the Constitution of the United
    States or the Constitution of Nebraska or any law of this
    state, is removed, if the prisoner was prevented from fil-
    ing a verified motion by such state action;
    (d) The date on which a constitutional claim asserted
    was initially recognized by the Supreme Court of the
    United States or the Nebraska Supreme Court, if the
    newly recognized right has been made applicable retro-
    actively to cases on postconviction collateral review; or
    (e) August 27, 2011.
    [4] The 1-year statute of limitations in § 29-3001(4) applies
    to all verified motions for postconviction relief, including suc-
    cessive motions.11
    (a) Court May Consider
    Timeliness Sua Sponte
    In the instant appeal, the district court denied the successive
    postconviction motion as time barred without requiring notice
    to be served on the county attorney12 and without requiring the
    State to file a written response.13 As such, the State did not
    have an opportunity to raise the affirmative defense that the
    successive postconviction motion was time barred.
    In State v. Crawford,14 we held that the 1-year limitation
    period in § 29-3001(4) is not a jurisdictional requirement, but
    instead is in the nature of a statute of limitations. We held that
    because the State did not raise the statute of limitations as an
    affirmative defense, the issue was waived and could not be
    raised for the first time on appeal. But in Crawford, we noted:
    11
    See State v. Goynes, 
    293 Neb. 288
    , 
    876 N.W.2d 912
    (2016).
    12
    See § 29-3001(2).
    13
    See, generally, Robertson, supra note 6 (noting district court may ask State
    to respond to postconviction motion). See, also, State v. McLeod, 
    274 Neb. 566
    , 
    741 N.W.2d 664
    (2007); State v. Dean, 
    264 Neb. 42
    , 
    645 N.W.2d 528
          (2002).
    14
    State v. Crawford, 
    291 Neb. 362
    , 
    865 N.W.2d 360
    (2015).
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    “The court did not raise the issue sua sponte, and we therefore
    need not determine whether a court may raise the issue sua
    sponte when the State fails to do so.”15
    Here, we are squarely presented with the question whether
    a court can raise the statute of limitations issue sua sponte as
    part of its preliminary review of the postconviction motion. We
    conclude it can.
    Section 29-3001(2) expressly provides that a district court
    in Nebraska must review a postconviction action when it is
    filed and that “[u]nless the motion and the files and records of
    the case show to the satisfaction of the court that the prisoner
    is entitled to no relief, the court shall cause notice thereof to
    be served on the county attorney . . . .” The plain language of
    § 29-3001 both authorizes and requires a district court to con-
    duct a preliminary review of a postconviction motion.16
    The U.S. Supreme Court considered a similar requirement
    in Day v. McDonough17 and concluded it permitted federal
    district courts to consider sua sponte the timeliness of habeas
    petitions. In Day, a prisoner filed a petition for a writ of
    habeas corpus that was governed by a 1-year statute of limi-
    tation.18 The State apparently miscalculated the applicable
    tolling period and conceded in its answer that the petition was
    timely filed. When the federal court reviewed the calculations,
    it found the State had erred; the court ultimately dismissed the
    habeas petition as untimely. The prisoner appealed, arguing
    the court had no authority to dismiss based on the limitation
    period after the State had conceded timeliness in its answer.
    The Supreme Court ultimately concluded that federal district
    courts are permitted, but not obliged, to sua sponte consider
    the timeliness of a state prisoner’s habeas petition. Day noted
    15
    
    Id. at 372,
    865 N.W.2d at 368.
    16
    See Robertson, supra note 6.
    
    17 Day v
    . McDonough, 
    547 U.S. 198
    , 
    126 S. Ct. 1675
    , 
    164 L. Ed. 2d 376
          (2006).
    18
    See 28 U.S.C. § 2244(d) (2012).
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    in part that the applicable habeas rules required a district court
    to “‘promptly examine’” habeas petitions and dismiss them
    “‘[i]f it plainly appears . . . that the petitioner is not entitled
    to relief.’”19
    [5] We find the reasoning of Day to be instructive, and we
    now hold that if, as part of its preliminary review, the trial
    court finds the postconviction motion affirmatively shows—
    either on its face or in combination with the files and records
    before the court—that it is time barred under § 29-3001(4), the
    court is permitted, but not obliged, to sua sponte consider and
    rule upon the timeliness of the motion.20
    (b) Successive Motion
    Was Time Barred
    Amaya concedes his successive motion was filed more than
    1 year after the date his judgment of conviction became final
    under § 29-3001(4)(a). And he does not claim that subsections
    (b), (d), or (e) of § 29-3001(4) apply to make his successive
    motion timely. Instead, Amaya claims his successive motion
    should be considered timely because (1) the time limits under
    § 29-3001(4) cannot be applied to him and (2) an “impediment
    created by state action” prevented him from filing his succes-
    sive motion sooner. Neither claim has merit.
    (i) No Ex Post Facto
    Punishment
    Amaya alleged that because his crime occurred before the
    1-year limitation period was enacted by the Legislature in
    2011,21 applying the limitation period to him results in ex post
    facto punishment. We disagree.
    19
    Day, supra note 
    17, 547 U.S. at 207
    . See Rule 4, Rules Governing Section
    2254 Cases in the United States District Courts, 28 U.S.C. following
    § 2254 (2012).
    20
    See Day, supra note 17.
    21
    See 2011 Neb. Laws, L.B. 137, § 1.
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    [6,7] A law which purports to apply to events that occurred
    before the law’s enactment, and which disadvantages a defend­
    ant by creating or enhancing penalties that did not exist when
    the offense was committed, is an ex post facto law and will
    not be endorsed by the courts.22 There are four types of ex
    post facto laws: those which (1) punish as a crime an act
    previously committed which was innocent when done; (2)
    aggravate a crime, or make it greater than it was, when com-
    mitted; (3) change the punishment and inflict a greater punish-
    ment than was imposed when the crime was committed; and
    (4) alter the legal rules of evidence such that less or different
    evidence is needed in order to convict the offender.23
    [8] The addition of a statutory time limitation on a defend­
    ant’s postconviction remedy does not fall within any of the
    four categories of ex post facto laws. The statutory time limits
    in § 29-3001(4) do not result in ex post facto punishment, and
    Amaya’s claim to the contrary is without merit.
    (ii) No Impediment Under
    § 29-3001(4)(c)
    Amaya alleges there was an “impediment created by state
    action” under § 29-3001(4)(c) which, he claims, continues
    to toll the 1-year time limit. Specifically, he alleges that
    his first postconviction counsel was ineffective for failing to
    adequately raise the claims of ineffective assistance of trial
    counsel that he now wishes to raise in his successive motion,
    and he contends this “impediment” prevented him from filing
    his successive motion sooner. We conclude Amaya’s tolling
    argument fails as a matter of law.
    [9] To satisfy the tolling provision of § 29-3001(4)(c), a
    prisoner must show there was (1) an impediment created by
    state action, (2) which amounted to a violation of the federal
    22
    State v. Harris, 
    284 Neb. 214
    , 
    817 N.W.2d 258
    (2012); State v. Vela, 
    279 Neb. 94
    , 
    777 N.W.2d 266
    (2010).
    23
    State v. Kibbee, 
    284 Neb. 72
    , 
    815 N.W.2d 872
    (2012).
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    or state Constitution or a state law, and (3) as a result, the pris-
    oner was prevented from filing a verified motion. If all these
    factors are satisfied, the 1-year limitation period will begin to
    run on the date the impediment was removed. Amaya has not
    satisfied any of these factors.
    First, he has not shown how the alleged ineffective assist­
    ance about which he complains was “created by state action.”
    Moreover, even if he could show state action, the alleged
    “impediment” would not rise to a constitutional violation as
    required by § 29-3001(4)(c), because we have consistently
    held there is no constitutional right to effective assistance of
    counsel in a postconviction proceeding.24 And finally, Amaya
    has alleged no facts showing how the actions of his prior
    postconviction counsel prevented him from filing this suc-
    cessive postconviction motion sooner. Notably, the record
    shows Amaya’s first postconviction action was concluded in
    2008, and he did not file this successive verified motion
    until 2016.
    Our de novo review of the record and files affirmatively
    shows that Amaya’s successive motion is time barred under
    § 29-3001(4) and was properly dismissed by the district court
    on that basis. For the same reason, we find no error in the
    district court’s denial of Amaya’s motion for appointment of
    postconviction counsel.25 His first and third assignments of
    error have no merit.
    2. A maya’s Other Assignments
    of Error A re Without M erit
    (a) No Error in Overruling
    Motion to Amend
    After the court considered and dismissed Amaya’s succes-
    sive postconviction motion with prejudice, Amaya sought leave
    24
    Hessler, supra note 10. See, also, State v. Deckard, 
    272 Neb. 410
    , 
    722 N.W.2d 55
    (2006); State v. Bao, 
    269 Neb. 127
    , 
    690 N.W.2d 618
    (2005).
    25
    See State v. Armendariz, 
    289 Neb. 896
    , 
    857 N.W.2d 775
    (2015).
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    to amend the motion. The district court overruled the request
    to amend, reasoning the postconviction proceeding already
    had been dismissed. Amaya argues that despite the timing,
    he should have been permitted to amend his postconviction
    motion pursuant to Neb. Ct. R. Pldg. § 6-1115(a) and State v.
    Mata.26 We addressed and rejected a similar argument in State
    v. Robertson.27
    [10] In Robertson, we clarified that postconviction pro-
    ceedings are not governed by the Nebraska Court Rules of
    Pleading in Civil Cases, and we held that Nebraska’s postcon-
    viction statutes do not contemplate the opportunity to amend
    a postconviction motion after the court has determined it does
    not necessitate an evidentiary hearing.28 Because Amaya did
    not seek leave to amend until after his successive postconvic-
    tion action had been dismissed, we find no abuse of discretion
    in not allowing the amendment.
    (b) No Error in Overruling Motion
    to Alter or Amend Judgment
    The court overruled Amaya’s motion to alter or amend the
    judgment of dismissal, finding it was not filed within 10 days
    of the order dismissing the successive motion and therefore
    was not timely.
    [11] Under § 25-1329, “[a] motion to alter or amend a
    judgment shall be filed no later than ten days after the entry
    of the judgment.” The record shows Amaya’s motion to alter
    or amend the judgment was filed 19 days after judgment was
    entered, and it sought to vacate the judgment of dismissal
    in order to amend a successive motion that was clearly time
    barred. Under these circumstances, we can find no abuse of
    26
    State v. Mata, 
    280 Neb. 849
    , 
    790 N.W.2d 716
    (2010), disapproved,
    Robertson, supra note 6.
    27
    Robertson, supra note 6.
    28
    See 
    id. - 81
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    discretion in the court’s decision to overrule the motion to alter
    or amend the judgment of dismissal.
    V. CONCLUSION
    For the foregoing reasons, we affirm the decision of the
    district court dismissing Amaya’s successive motion for post-
    conviction relief.
    A ffirmed.