Gray v. Kenney ( 2015 )

Decisions of the Nebraska Court of Appeals
GRAY v. KENNEY 739
Cite as 22 Neb. App. 739by the record. See Clark v. Alegent Health Neb., 285 Neb.
60, 825 N.W.2d 195 (2013). This assignment of error has
no merit.
CONCLUSION
For the reasons set forth above, we affirm the decision of the
compensation court.
Affirmed.
Graylin Gray, appellant, v.
Michael K enney,
director of Nebraska Department of
Correctional Services, appellee.
___ N.W.2d ___
Filed February 3, 2015. No. A-14-378.
1. Affidavits: Appeal and Error. An appellate court reviews a district court’s
denial of in forma pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue
2008) de novo on the record based on the transcript of the hearing or the written
statement of the court.
2. Constitutional Law: Judgments. Except in those cases where the denial of in
forma pauperis status would deny a defendant his or her constitutional right to
appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows
the court on its own motion, or upon objection by any interested party, to deny in
forma pauperis status on the basis that the legal positions asserted by the appli-
cant are frivolous or malicious.
3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev.
Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without
rational argument based on the law or on the evidence.
4. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action
for habeas corpus is a collateral attack on a judgment of conviction.
5. Judgments: Collateral Attack. Only a void judgment may be collaterally
attacked.
6. Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdic-
tion of the parties and the subject matter, its judgment is not subject to collat-
eral attack.
7. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to
discharge a person from a sentence of penal servitude where the court imposing
the sentence had jurisdiction of the offense and the person of the defendant, and
the sentence was within the power of the court to impose.
8. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors,
and its use will not be permitted for that purpose.
Decisions of the Nebraska Court of Appeals
740 22 NEBRASKA APPELLATE REPORTS
9. Habeas Corpus: Sentences. The regularity of the proceedings leading up to the
sentence in a criminal case cannot be inquired into on an application for writ of
habeas corpus, for that matter is available only in a direct proceeding.
10. Jurisdiction: Judgments: Appeal and Error. Where jurisdiction has attached,
mere errors or irregularities in the proceedings, however grave, although they
may render the judgment erroneous and subject to be set aside in a proper pro-
ceeding for that purpose, will not render the judgment void.
11. Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitiga-
tion of a matter that has been directly addressed or necessarily included in a for-
mer adjudication if (1) the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment, (3) the former judg-
ment was on the merits, and (4) the same parties or their privies were involved in
both actions.
12. ____. The doctrine of res judicata bars relitigation not only of those matters actu-
ally litigated, but also of those matters which might have been litigated in the
prior action.
13. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it in reviewing proceedings of the
trial court become the law of the case; those holdings conclusively settle, for
purposes of that litigation, all matters ruled upon, either expressly or by neces-
sary implication.
14. Actions: Res Judicata. Unlike the doctrine of res judicata, which involves
successive suits, the law-of-the-case doctrine involves successive stages of one
continuing lawsuit.
15. Habeas Corpus: Appeal and Error. The law-of-the-case doctrine applies to
issues raised in a petition for a writ of habeas corpus if that same issue was raised
in the appellate court on direct appeal.
16. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Graylin Gray, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Irwin, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Graylin Gray appeals from the order of the district court
for Lancaster County which denied his application to proceed
Decisions of the Nebraska Court of Appeals
GRAY v. KENNEY 741
Cite as 22 Neb. App. 739in forma pauperis on his petition for writ of habeas corpus.
We affirm.
BACKGROUND
Gray was convicted by a jury of unlawful possession of four
or more financial transaction devices and unlawful circulation
of financial transaction devices in the first degree. The district
court determined that Gray was a habitual criminal and sen-
tenced him to 10 to 20 years’ imprisonment on each count.
On direct appeal, Gray challenged, among other things, the
district court’s determination that he was a habitual criminal. In
a memorandum opinion filed on March 12, 2009, in case No.
A-08-336, we found that the evidence was sufficient to sup-
port the district court’s habitual criminal finding and affirmed
Gray’s convictions and sentences in all respects.
On March 14, 2014, Gray filed a petition for writ of habeas
corpus, alleging that his sentences are void because the district
court applied the wrong burden of proof in determining that he
was a habitual criminal. Along with his habeas petition, Gray
filed a motion to proceed in forma pauperis and a poverty
affidavit. The State timely filed an objection to Gray’s motion
to proceed in forma pauperis on the basis that his habeas peti-
tion was frivolous. A hearing was held on the State’s objec-
tion, during which the State offered into evidence a copy of
our opinion affirming Gray’s convictions and sentences on
direct appeal.
Following a hearing, the district court sustained the State’s
objection and denied Gray’s motion to proceed in forma pau-
peris. It found that the petition appeared to be frivolous on its
face, in that the issues raised in the petition had been previ-
ously litigated and that none of the issues raised in the petition
establish that the commitment was void.
Gray timely appeals from that decision.
ASSIGNMENT OF ERROR
Gray assigns that the district court erred in denying his
application to proceed in forma pauperis on his petition for
writ of habeas corpus.
Decisions of the Nebraska Court of Appeals
742 22 NEBRASKA APPELLATE REPORTS
STANDARD OF REVIEW
[1] A district court’s denial of in forma pauperis status under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de
novo on the record based on the transcript of the hearing or the
written statement of the court. Peterson v. Houston, 284 Neb.
861, 824 N.W.2d 26 (2012).
ANALYSIS
Denial of In Forma Pauperis Status.
[2,3] Applications to proceed in forma pauperis are governed
by § 25-2301.02. Peterson v. Houston, supra. Except in those
cases where the denial of in forma pauperis status would deny
a defendant his or her constitutional right to appeal in a felony
case, § 25-2301.02(1) allows the court on its own motion, or
upon objection by any interested party, to deny in forma pau-
peris status on the basis that the legal positions asserted by the
applicant are frivolous or malicious. See Peterson v. Houston,
supra. A frivolous legal position pursuant to § 25-2301.02 is
one wholly without merit, that is, without rational argument
based on the law or on the evidence. Peterson v. Houston,
supra. We agree with the district court’s conclusion that Gray’s
habeas petition is frivolous because the judgment Gray seeks
to attack is not void and because the issues Gray seeks to chal-
lenge have been previously litigated.
[4-7] Under Nebraska law, an action for habeas corpus is
a collateral attack on a judgment of conviction. Id. Only a
void judgment may be collaterally attacked. Id. Where the
court has jurisdiction of the parties and the subject matter,
its judgment is not subject to collateral attack. Id. Thus, a
writ of habeas corpus will not lie to discharge a person from
a sentence of penal servitude where the court imposing the
sentence had jurisdiction of the offense and the person of the
defendant, and the sentence was within the power of the court
to impose. Id.
[8-10] A writ of habeas corpus is not a writ for correction
of errors, and its use will not be permitted for that purpose. Id.
“‘[T]he regularity of the proceedings leading up to the sentence
in a criminal case cannot be inquired into on an application
for writ of habeas corpus, for that matter is available only in
Decisions of the Nebraska Court of Appeals
GRAY v. KENNEY 743
Cite as 22 Neb. App. 739a direct proceeding.’” Id. at 867, 824 N.W.2d at 33. “‘Where
jurisdiction has attached, mere errors or irregularities in the
proceedings, however grave, although they may render the judg-
ment erroneous and subject to be set aside in a proper proceed-
ing for that purpose, will not render the judgment void.’” Id. at
869, 824 N.W.2d at 34.
Gray’s habeas petition asserts that his sentences are void
because the district court determined that he was a habitual
criminal beyond a reasonable doubt, rather than by a prepon-
derance of the evidence. We disagree. The fact that the district
court applied a higher burden of proof in determining Gray’s
habitual criminal status does not make his sentences void.
Because the district court had proper jurisdiction and Gray’s
sentences were within its power to impose, his petition for
habeas corpus is frivolous.
The State also argues that any claims regarding Gray’s status
as a habitual criminal are precluded under the doctrines of res
judicata and the law of the case. While we agree that the law-
of-the-case doctrine precludes relitigation of the habitual crimi-
nal issue, we disagree that res judicata is applicable. Because
these are independent doctrines which are sometimes closely
related, we address each separately.
Res Judicata.
[11,12] The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or
necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction,
(2) the former judgment was a final judgment, (3) the former
judgment was on the merits, and (4) the same parties or their
privies were involved in both actions. Kiplinger v. Nebraska
Dept. of Nat. Resources, 282 Neb. 237, 803 N.W.2d 28 (2011).
The doctrine bars relitigation not only of those matters actu-
ally litigated, but also of those matters which might have been
litigated in the prior action. Id.The determination that Gray was a habitual criminal was
made by a court of competent jurisdiction and was a final judg-
ment on the merits. However, the same parties or their priv-
ies were not involved in both actions. The habitual criminal
Decisions of the Nebraska Court of Appeals
744 22 NEBRASKA APPELLATE REPORTS
finding arose out of a case filed by the State of Nebraska
against Gray in case No. A-08-336, and the postconviction
cases involved those same parties in cases Nos. A-10-147
and A-13-254. The present action for a writ of habeas cor-
pus, however, was filed by Gray against Michael Kenney, the
director of the Nebraska Department of Correctional Services.
There is no showing that Kenney is in privity with the State
of Nebraska. Privity requires, at a minimum, a showing that
the parties in the two actions are really and substantially in
interest the same. R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d
505 (2002). Because Kenney and the State of Nebraska are
not in privity, the fourth element for an application of res
judicata fails.
Law-of-the-Case Doctrine.
[13,14] Under the law-of-the-case doctrine, the holdings of
an appellate court on questions presented to it in reviewing
proceedings of the trial court become the law of the case; those
holdings conclusively settle, for purposes of that litigation, all
matters ruled upon, either expressly or by necessary implica-
tion. State v. Merchant, 288 Neb. 439, 848 N.W.2d 630 (2014).
Unlike the doctrine of res judicata, which involves successive
suits, the law-of-the-case doctrine involves successive stages
of one continuing lawsuit. See Money v. Tyrrell Flowers, 275
Neb. 602, 748 N.W.2d 49 (2008).
While we are not aware of any precedent applying the
law-of-the-case doctrine to claims raised in a petition for
writ of habeas corpus that were previously rejected on direct
appeal, the Nebraska Supreme Court has applied the doctrine
when that issue was addressed on direct appeal. See, State v.
Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005) (applying doc-
trine to subsequent postconviction); Thomas v. State, 268 Neb.
594, 685 N.W.2d 66 (2004) (applying doctrine to subsequent
petition to perpetuate juror’s testimony).
Both State v. Marshall, supra, and Thomas v. State, supra,
involved subsequent actions derived from the original convic-
tions. In State v. Marshall, the defendant filed a motion for
postconviction relief after his convictions were affirmed by the
Supreme Court on direct appeal. The district court denied the
Decisions of the Nebraska Court of Appeals
GRAY v. KENNEY 745
Cite as 22 Neb. App. 739motion without an evidentiary hearing. Id. At issue in the direct
appeal was whether a plea in bar was properly overruled. The
Supreme Court held that because the defendant did not timely
appeal from the order denying his plea in bar, it lacked juris-
diction to address the alleged error. When the defendant raised
the issue in his postconviction motion, the Supreme Court held
that its decision in the direct appeal that the order on the plea
in bar was final constituted the law of the case which applied
in the postconviction proceeding. Id.In Thomas v. State, supra, the defendant in the trial court
had been convicted and his convictions were affirmed on direct
appeal. He subsequently filed a petition seeking to perpetuate
the testimony of three jurors who participated in his trial, cit-
ing what is now codified as Neb. Ct. R. Disc. § 6-327(a). He
alleged that one of the jurors failed to disclose during voir dire
that he had a relative who had been the victim of a murder.
The district court sustained the State’s motion to dismiss. On
appeal, the Nebraska Supreme Court stated that it had previ-
ously rejected this juror issue on direct appeal. The Supreme
Court concluded that its opinion in the direct appeal became
the law of the case and precluded further consideration of the
issue in the appeal of the subsequent action.
The law-of-the-case doctrine generally applies to succes-
sive stages of the same lawsuit. In re Estate of Stull, 261
Neb. 319, 622 N.W.2d 886 (2001). However, as evidenced
by State v. Marshall, supra, and Thomas v. State, supra, the
doctrine may also be applied to an issue raised in a subse-
quent action when that action is derived from a direct appeal.
For example, postconviction relief is sought by a convicted,
imprisoned person “on the ground that there was such a denial
or infringement of the rights of the prisoner as to render the
judgment void or voidable.” Neb. Rev. Stat. § 29-3001 (Cum.
Supp. 2014). Therefore, a postconviction action, although
separate from the criminal action in which the defendant was
convicted, necessarily requires an analysis of the underly-
ing conviction.
[15] In the present action, Gray filed a petition for a writ
of habeas corpus. An action for habeas corpus is a collateral
attack on a judgment of conviction. Peterson v. Houston,
Decisions of the Nebraska Court of Appeals
746 22 NEBRASKA APPELLATE REPORTS
284 Neb. 861, 824 N.W.2d 26 (2012). See Neb. Rev. Stat.
§ 29-2801 (Reissue 2008). Similar to a motion for postconvic-
tion relief, a petition for a writ of habeas corpus is dependent
upon the underlying conviction. We therefore hold that the
law-of-the-case doctrine applies to issues raised in a petition
for a writ of habeas corpus if that same issue was raised in the
appellate court on direct appeal.
We conclude that the law-of-the-case doctrine is applicable
here. On direct appeal, Gray challenged the district court’s
determination that he was a habitual criminal, and in case No.
A-08-336, we affirmed the district court’s finding after analyz-
ing the sufficiency of the evidence to prove two of Gray’s prior
convictions. Because Gray’s status as a habitual criminal has
already been challenged and affirmed by this court, his attempt
to raise the issue again in his petition for writ of habeas corpus
is frivolous.
Challenge to Bill of Exceptions.
[16] Finally, Gray argues in his brief that certain state-
ments he made during the hearing on the State’s objection
to his motion to proceed in forma pauperis were incorrectly
transcribed. However, Gray did not assign this issue as error.
An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to
be considered by an appellate court. State v. Turner, 288 Neb.
249, 847 N.W.2d 69 (2014). Because Gray did not assign this
issue as error, we will not address it on appeal.
CONCLUSION
The district court did not err in denying Gray’s application
to proceed in forma pauperis on his petition for writ of habeas
corpus. Upon the spreading of our mandate affirming the
district court’s denial of in forma pauperis status, Gray shall
have 30 days to pay the fees necessary to file his petition. See
§ 25-2301.02(1).
Affirmed.