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O'Neal v. State

Supreme Court of Nebraska

May 22, 2015

KEEVA T. O'NEAL, APPELLANT,
v.
STATE OF NEBRASKA, APPELLEE

Page 163

[Copyrighted Material Omitted]

Page 164

Appeal from the District Court for Douglas County: GREGOGORY M. SCHATZ, Judge.

Renee L. Mathias, of Schaefer Shapiro, L.L.P., for appellant.

Keeva T. O'Neal, Pro se.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

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

OPINION

Page 165

[290 Neb. 944] Wright, J.

I. NATURE OF CASE

Keeva T. O'Neal, an inmate at the Nebraska State Penitentiary in Lincoln, Nebraska, appeals from the order of the district court which denied his petition for a writ of habeas corpus. Because we find that the district court reached the correct result, we affirm.

II. SCOPE OF REVIEW

On appeal of a habeas petition, an appellate court reviews the trial court's factual findings for clear error and its conclusions of law de novo. Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).

When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower court. Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740, 857 N.W.2d 313 (2014).

III. FACTS

In 1997, pursuant to a plea agreement, O'Neal pled no contest to, and was convicted of, three counts of attempted first degree assault and two counts of use of a deadly weapon to commit a felony. Count I (one of the assault counts) and count II (the corresponding use count) related to actions [290 Neb. 945] O'Neal took against an " Edward Duncan." He was sentenced to 4 to 5 years' imprisonment for the assault convictions and 20 to 25 years' imprisonment on the use of a weapon convictions. The sentencing court ordered all five sentences to run consecutively.

Following sentencing, O'Neal filed a direct appeal, but it was dismissed for failure to file a poverty affidavit. He then moved for postconviction relief, alleging ineffective assistance of counsel. The district court concluded that his trial counsel had failed to adequately perfect a direct appeal and granted relief in the form of a new direct appeal.

On direct appeal, the Nebraska Court of Appeals affirmed O'Neal's convictions and sentences for use of a deadly weapon to commit a felony, affirmed his convictions for attempted first degree assault, and modified the sentences imposed for attempted first degree assault to 20 months' to 5 years' imprisonment each. See State v. O'Neal, No. A-04-536, 2005 WL 1022027 (Neb.App. May 3, 2005) (not designated for permanent publication). The Court of Appeals concluded that O'Neal's assignments of error either lacked merit or were waived by his no contest pleas. In particular, it rejected O'Neal's argument that the information on which he was charged was defective for failing to properly identify the victim of counts I and II.

On August 23, 2013, O'Neal filed a pro se petition for a writ of habeas corpus in the district court for Douglas County. He alleged that his imprisonment for counts I and II was the equivalent of being committed for crimes " which never occurred," and thus was a violation of the 5th and 14th Amendments, because the victim of counts I and II was an " Allen Duncan" and not the " Edward Duncan" identified in the amended information. He further alleged that he was entitled to discharge, because at the time of his application, he had " already been confined for a period which exceed[ed] the terms of imprisonment imposed on counts III through V" and he was being imprisoned only on counts I and II. O'Neal's petition did not include a copy of the relevant commitment or detention order.

[290 Neb. 946] In January 2014, the district court entered an order " request[ing] that the State file a ...


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