State v. Barrow ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BARROW
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JASON BARROW, APPELLANT.
Filed February 14, 2023. No. A-22-514.
Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Affirmed in part, and in part vacated.
Jason Barrow, pro se.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
PIRTLE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Jason Barrow appeals the order of the district court for Douglas County which denied his
second successive motion for postconviction relief and motion to proceed in forma pauperis (IFP).
He further appeals the order of the district court denying him IFP status on appeal. Upon our
review, we affirm the order of the district court denying Barrow’s motion for postconviction relief
and initial IFP status, and vacate the order of the district court denying him IFP status on appeal.
BACKGROUND
On January 14, 2015, Barrow was charged by information in the district court with first
degree sexual assault on a child, a Class IB felony, and with child abuse, a Class IIIA felony. The
circumstances of the case, as alleged by the State, were that Barrow had stood outside the window
of a young girl and threatened to shoot her if she did not take off all of her clothes and penetrate
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her vagina with her own finger. Barrow filed a plea in abatement asserting that his actions did not
constitute first degree sexual assault on a child because he did not physically penetrate the victim
in any way. The district court denied Barrow’s plea in abatement.
On September 17, 2015, Barrow entered a plea of guilty to an amended information
charging him with attempted first degree sexual assault on a child, a Class II felony. The district
court sentenced him to 45 to 50 years’ imprisonment. Barrow did not timely appeal from his
conviction or sentence.
Approximately five years after his conviction became final, on October 9, 2020, Barrow
filed a motion for postconviction relief. The district court denied his motion as time barred. On
February 24, 2021, this court summarily affirmed the district court’s order. Barrow then filed a
petition for further review in the Nebraska Supreme Court on March 4. While that petition was
pending, Barrow filed in the district court a motion to vacate his conviction and sentence pursuant
to Neb. Rev. Stat. § 25-2001 (Reissue 2016). The district court denied the motion to vacate because
the court did not have jurisdiction while Barrow’s petition for further review was pending.
The Supreme Court ultimately denied Barrow’s petition for further review. On May 6,
2021, Barrow filed a second motion to vacate his conviction and sentence pursuant to § 25-2001
which was identical to his previous motion. Much like his plea in abatement, Barrow asserted in
his motion that his conviction was void because the facts of his offense did not constitute attempted
first degree sexual assault on a child under the statutory language. In addition to his motion to
vacate, Barrow filed a motion to proceed IFP. The district court denied both of Barrow’s motions.
Barrow appealed, but later voluntarily dismissed his appeal.
On December 17, 2021, Barrow filed in the district court a second motion for
postconviction relief along with a motion to proceed IFP. He alleged that his trial counsel was
ineffective for advising him to accept the plea agreement because the evidence supporting the
original charge was insufficient as a matter of law. The district court denied his motions, noting
that Barrow “has filed multiple motions to vacate his conviction and sentence which have been
denied” and “is now attempting to file another motion for postconviction relief.” Barrow filed a
notice of appeal in conjunction with a motion to proceed IFP on appeal. The district court denied
Barrow’s motion to proceed IFP on appeal for the same reasons it denied his initial motion.
However, on appeal Barrow only challenged the district court’s denial of his successive motion
for postconviction relief. Because Barrow did not challenge the district court’s denial of IFP status,
this court dismissed his appeal for lack of jurisdiction.
On June 21, 2022, Barrow filed a third motion for postconviction relief along with a motion
to proceed IFP. Barrow’s third motion for postconviction relief is identical to his second motion.
The district court denied Barrow’s motion to proceed IFP citing the following reasons:
After the Nebraska Court of Appeals summarily affirmed the Court’s order denying
Postconviction relief, [Barrow] has filed multiple motions to vacate [his] conviction and
sentence which have been denied. The Court of Appeals on December 10, 2021 dismissed
[Barrow’s] latest appeal. [Barrow] has since appealed again and has not paid the filing fees
after being denied [IFP]. [Barrow] is now attempting to file another motion for
postconviction relief. Therefore, [Barrow’s] Motion to Proceed [IFP] and Motion for
Postconviction relief filed June 21, 2022, are hereby denied.
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On July 8, 2022, Barrow filed a notice of appeal, along with a motion to proceed IFP. The
district court objected to Barrow’s motion to proceed IFP on appeal on the grounds that he was
“asserting legal positions which are frivolous or malicious” and denied the motion stating Barrow
“has exhausted his appeal and postconviction relief multiple times yet continues to file the same
motions. The appellate court has repeatedly denied his motions as well.”
On appeal, Barrow challenges the court’s denial of both of his motions to proceed IFP as
well as the denial of his third motion for postconviction relief.
ASSIGNMENTS OF ERROR
Barrow assigns, restated and renumbered, that the district court erred in (1) denying his
motion to proceed IFP on appeal, (2) denying his third motion for postconviction relief without an
evidentiary hearing, and (3) denying his motion to proceed IFP on his third motion for
postconviction relief.
STANDARD OF REVIEW
A district court’s denial of IFP status is reviewed de novo on the record based on the
transcript of the hearing or written statement of the court. Mumin v. Frakes, 298 Neb. 381, 904
N.W.2d 667 (2017).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. State v. Lotter,
311 Neb. 878, 976 N.W.2d 721 (2022).
ANALYSIS
Motion to Proceed IFP on Appeal.
Barrow first asserts that the district court erred in denying his motion to proceed IFP on
appeal. The State agrees with Barrow’s assertion. Upon our review, we find that the district court’s
order denying Barrow IFP status on appeal should be vacated.
Under our current statutory scheme, there are two circumstances in which a court has no
authority to deny a proper application and affidavit to proceed IFP. Mumin v. Frakes, supra. The
first circumstance is outlined in Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2016): “the court shall
not deny an [IFP] application on the basis that the applicant’s legal positions are frivolous or
malicious if to do so would deny the applicant his or her constitutional right to appeal in a felony
case.” The second circumstance is one which this court has found to be implicit in the IFP statutory
scheme: Because an applicant has a statutory right to interlocutory appellate review of an order
denying an IFP application, a court does not have authority to interfere with such appellate review
by denying a request to proceed IFP in order to obtain appellate review of an order denying an
earlier IFP application. Mumin v. Frakes, supra.Here, Barrow has a statutory right to appeal the district court’s order denying his initial
application to proceed IFP, so the second circumstance is present. As such, the district court had
no authority to deny Barrow’s application to proceed IFP on appeal. The district court’s order
denying his motion should be vacated.
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Motion for Postconviction Relief and Initial Motion to Proceed IFP.
Barrow’s next two assignments of error, that the district court erred in denying his third
motion for postconviction relief and initial motion to proceed IFP, are without merit.
We begin with Barrow’s third motion for postconviction relief. The need for finality in the
criminal process requires that a defendant bring all claims for relief at the first opportunity. State
v. Lotter, supra. Additionally, the statute governing postconviction relief expressly provides that
a court need not entertain a second motion or successive motions for similar relief on behalf of the
same prisoner. Id. The Supreme Court has long construed this provision to require that all available
grounds for postconviction relief must be stated in the initial postconviction motion and, once that
motion has been judicially determined, any subsequent postconviction motion regarding the same
conviction and sentence may be dismissed by the district court unless the motion affirmatively
shows on its face that the basis relied upon for relief was not available at the time of filing the prior
motion. Id.Further, Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) provides a one year limitation for
postconviction relief. This period runs 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; (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
filing 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 retroactively to cases on postconviction
collateral review; or (e) August 27, 2011.
Barrow’s third motion for postconviction relief is both time barred and procedurally barred.
Barrow’s conviction became final on January 5, 2017. The present motion was filed on June 21,
2022. Clearly this motion is time barred under subsections (a) and (e). Barrow does not allege that
the remaining subsections apply, nor can we find any basis for application. Therefore, the motion
is time barred under § 29-3001(4).
Finally, Barrow’s motion is procedurally barred because he is alleging issues that have
been raised in prior motions. He alleges his trial counsel was ineffective for advising Barrow to
enter into a plea agreement because the circumstances of his case did not meet the elements of
attempted sexual assault on a child under the statutory scheme. Whether his acts were sufficient to
meet the statutory elements of the crime was the issue Barrow raised in his March 2021 motion to
vacate, which was denied. It was also the predicate upon which he based his claim of ineffective
assistance of counsel in his second postconviction motion, filed in December 2021, which was
also denied. For these reasons, Barrow’s third motion for postconviction relief is procedurally
barred.
We turn now to the district court’s denial of Barrow’s initial motion to proceed IFP. A
court may deny an application for IFP status if it determines that the legal positions asserted by
the applicant are frivolous or malicious. Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017).
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A frivolous legal position is one wholly without merit, that is, without rational argument based on
the law or on the evidence. State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).
Barrow’s claim meets the definition of frivolous. He has made the same argument many
times. This court and the Supreme Court have denied each of his previous assertions of the same
claim. Yet, Barrow has continued to file the same motions, putting forth the same arguments again
and again. Clearly, his position is without merit. The district court did not err in denying Barrow
IFP status.
CONCLUSION
We vacate the district court’s order denying Barrow motion to proceed IFP on appeal. We
affirm the district court’s order denying Barrow’s initial motion to proceed IFP, and the order
denying Barrow’s third motion for postconviction relief.
AFFIRMED IN PART, AND IN PART VACATED.
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