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Gonzalez v. Gage

Supreme Court of Nebraska

April 10, 2015

JOSE E. GONZALEZ, APPELLANT,
v.
BRIAN GAGE, WARDEN OF THE TECUMSEH STATE CORRECTIONAL INSTITUTION, APPELLEE

Page 458

[Copyrighted Material Omitted]

Page 459

Appeal from the District Court for Johnson County: DANIEL E. BRYAN, JR., Judge.

Jose E. Gonzalez, Pro se.

Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.

OPINION

[290 Neb. 672] Miller-Lerman, J.

Page 460

NATURE OF CASE

Jose E. Gonzalez appeals the order of the district court for Johnson County which determined tat his action seeking a writ of habeas corpus was frivolous and denied his motion to proceed in forma pauperis. We conclude that Gonzalez' action is frivolous, because the claims he asserts are not claims that, if proved, would support issuance of a writ of habeas corpus. We therefore affirm the order of the district court which denied Gonzalez' motion to proceed in forma pauperis.

STATEMENT OF FACTS

In 2008, Gonzalez was charged with first degree sexual assault on a child. Gonzalez was found guilty in a jury trial in the district court for Dakota County, and he was sentenced to imprisonment for 30 to 32 years. Gonzalez' conviction was affirmed by the Nebraska Court of Appeals in a direct appeal in which he had counsel different from his trial counsel and raised several claims of ineffective assistance of trial counsel. See State v. Gonzalez, No. A-10-179, 2010 WL 4241022 (Neb.App. Oct. 26, 2010) (selected for posting to court Web site). In 2012, Gonzalez filed a pro se motion for postconviction relief in which he raised various claims, including additional claims of ineffective assistance of counsel. The district court for Dakota County denied the postconviction motion, and the Court of Appeals affirmed. See State v. Gonzalez, No. A-12-073, 2012 WL 3740570 (Neb.App. Aug. 28, 2012) (selected for posting to court Web site).

On May 19, 2014, Gonzalez, who was in custody at the Tecumseh State Correctional Institution, filed a pro se petition for a writ of habeas corpus in the district court for Johnson County against the warden, Brian Gage. Gonzalez alleged that [290 Neb. 673] he was a foreign national and that when he was arrested in 2008, he was not informed of his rights under article 36, paragraph 1(b), of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77 (Vienna Convention). In particular, he alleged that under the Vienna Convention, he had a right to contact the Mexican consulate for advice and assistance with his criminal prosecution. Gonzalez also alleged that his trial counsel was deficient in various respects, and he implied that he would have been better represented with assistance from the Mexican consulate. He claimed that because of the violation of the Vienna Convention, " the district court of Dakota County lost its jurisdiction to proceed to judgment, and lacked the legal authority to impose the sentence."

The district court for Johnson County denied Gonzalez' motion to proceed in forma pauperis on the ground that Gonzalez' action was frivolous. The court stated that " [t]he legal positions advanced by petitioner are frivolous. The writ is a collateral attack on a judgment of a valid conviction. The court had jurisdiction of the parties and subject matter and such a writ will not lie. See Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012)."

Gonzalez appeals the order which denied his motion to proceed in forma pauperis.

ASSIGNMENTS OF ERROR

Gonzalez generally claims, restated, that the district court erred when it found that his action was frivolous and denied his motion to proceed in forma pauperis. He claims that various errors at his original criminal trial deprived the trial court of ...


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