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State v. Mamer

Supreme Court of Nebraska

September 19, 2014

STATE OF NEBRASKA, APPELLEE,
v.
MALUAL MAMER, APPELLANT

Page 518

[Copyrighted Material Omitted]

Page 519

Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.

Kevin Ruser, of University of Nebraska Civil Clinical Law Program, and Sarah Safarik, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ.

OPINION

Page 520

[289 Neb. 93] McCormack, J.

NATURE OF CASE

Malual Mamer appeals from the district court's dismissal of his motion to vacate his plea and set aside his conviction under the common-law remedy for " manifest injustice" set forth in State v. Gonzalez.[1] Such procedure is only available if the defendant was never able to seek relief through the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012) or any other means. The district court determined that Mamer could have brought a postconviction action, but Mamer argues that postconviction relief was never available to him. Mamer alleges that he could not have reasonably discovered the factual predicate of his claim while incarcerated because he did not receive notice of the government's decision to deport him until after his release.

BACKGROUND

On March 31, 2010, the U.S. Supreme Court decided Padilla v. Kentucky.[2] Subsequently, on February 9, 2011, Mamer was charged with first degree sexual assault, a Class II felony. On July 20, 2011, the State filed an amended information charging Mamer with attempted sexual assault in the first degree, a Class III felony. Mamer, represented by counsel, pled guilty to the reduced charge that same date. Before the court accepted Mamer's plea, Mamer was given the statutory advisement of Neb. Rev. Stat. § 29-1819.02 (Reissue 2008). The court stated: " Do you understand that if you are not a United States citizen, a conviction for this offense may have the consequences of removal from the United States, or denial of naturalization, pursuant to the laws of the United States?" Mamer responded that he did. On September 15, the court sentenced Mamer to 12 to 18 months' incarceration, with credit for 248 days served.

[289 Neb. 94] The parties agree that Mamer was incarcerated for approximately 3 weeks following his conviction, and the State does not dispute that Mamer was not represented by counsel during the time of his ...


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