Appeal from the District Court for Richardson County: DANIEL E. BRYAN, JR., Judge.
James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
Michael W. Ryan, Pro se.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ., and INBODY, Chief Judge. CASSEL, J., not participating.
Michael W. Ryan, convicted of first degree murder and sentenced to death, moved for postconviction relief. The district [287 Neb. 939] court dismissed his motion without an evidentiary hearing. Because Ryan's motion failed to state a claim for postconviction relief, either because his claims were without legal basis or because they were not cognizable in postconviction, we affirm.
Factual and Procedural Background
We affirmed Ryan's conviction and sentence on direct appeal. The underlying facts are long and brutal and need not be repeated here. Since our affirmance, Ryan has filed two other postconviction motions, both of which were denied.
Ryan also filed for federal habeas relief, which the federal courts denied. We have, at various times, ordered Ryan to be executed, but each time we subsequently stayed the execution. Our last order scheduling Ryan's execution was January 11, 2012, but following Ryan's motion for postconviction relief, filed on February 13, and subsequent emergency motion for a stay, we again stayed Ryan's execution. The district court dismissed Ryan's motion without an evidentiary hearing, and he appealed.
District Court's Order Dismissing Ryan's Postconviction Motion
In its order dismissing Ryan's motion, the court set forth each of Ryan's alleged grounds for postconviction relief, which we summarize as follows:1. The State illegally obtained stolen thiopental, in violation of Nebraska law. The State's attempt to use that drug to conduct Ryan's execution denies Ryan due process and equal protection under both the state and federal Constitutions. [287 Neb. 940] 2. The State's pattern of bad faith in seeking an execution date for Ryan denies Ryan due process under both the state and federal Constitutions.3. The Legislature passed 2009 Neb. Laws, L.B. 36, which changed Ryan's " final" sentence by mitigating the method of execution from electrocution to lethal injection, and is in violation of the Board of Pardons' exclusive commutation power and the separation of powers provisions of the state Constitution.4. The Legislature's passing of L.B. 36 was an improper abdication and delegation of its exclusive authority to determine the particular quantity and type of drugs to be used in lethal injection, in violation of the separation of powers provisions in the state Constitution.5. The Legislature's passing of L.B. 36 changed the method of execution to lethal injection and, along with the Nebraska Department of Correctional Services' creating a new execution protocol after Ryan's conviction became final, violates the Ex Post Facto Clauses of both the state and federal Constitutions.
In dismissing Ryan's motion, the court observed that " it [could] only enter relief in cases where a prisoner in custody under sentence assert[ed] facts that claim[ed] a right to be released on grounds that there was a denial or infringement of state or federal constitutional rights that would render the judgment of conviction void or voidable." The court characterized Ryan's alleged grounds for relief as " not deal[ing] with the judgement [sic] of the death sentence," but, rather, " deal[ing] with the method of inflicting the death penalty." Thus, the court observed, Ryan's ...