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State v. Harrison

Supreme Court of Nebraska

June 24, 2016

State of Nebraska, appellee,
v.
David K. Harrison, appellant.

          1. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. However, if the motion alleges only conclusions of fact or law, or the records and files in the case affirmatively show that the movant is entitled to no relief, no evidentiary hearing is required.

         2. Judgments: Appeal and Error. The findings of the district court in connection with its ruling on a motion for a writ of error coram nobis will not be disturbed unless they are clearly erroneous.

         3. Judgments: Evidence: Appeal and Error. The purpose of the writ of error coram nobis is to bring before the court rendering judgment matters of fact which, if know at the time the judgment was rendered, would have prevented its rendition.

         4. ____: ____: ____. A writ of error coram nobis reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which are of a nature that, if known by the court, would have prevented entry of judgment.

         5. Judgments: Appeal and Error. A writ of error coram nobis is not available to correct errors of law.

         Appeal from the District Court for Douglas County: Horacio J. Wheelock, Judge.

          David K. Harrison, pro se.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

         [293 Neb. 1001] Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Cassel, J.

         INTRODUCTION

         David K. Harrison appeals from the district court's order overruling his second motion for postconviction relief and denying his request for a writ of error coram nobis. We conclude that Harrison's motion was not timely filed. We also conclude that his request for a writ of error coram nobis was properly denied, because he asserts only errors of law. We therefore affirm the district court's order.

         BACKGROUND

         In 1985, Harrison was convicted of first degree murder and sentenced to life imprisonment. On direct appeal, we affirmed his conviction and sentence.[1] In 1999, he filed a motion for postconviction relief, alleging that his constitutional rights were violated for various reasons. After an evidentiary hearing, the district court overruled Harrison's motion. We affirmed.[2]

         On April 27, 2015, Harrison filed a second postconviction motion "TO VACATE AND SET ASIDE CONVICTION AND SENTENCE AND/OR WRIT OF ERROR CORAM NOBIS, '' which is the subject of this appeal. He alleged three grounds for relief: (1) judicial misconduct, (2) the record lacks a commitment order, and (3) the jury instructions were erroneous pursuant to State v. Smith[3] and State v. Trice.[4]

         The district court denied Harrison's request for a writ of error coram nobis and overruled his motion for postconviction relief without an evidentiary hearing. It concluded that his motion for postconviction relief was procedurally barred as successive and that it was barred as untimely under Neb. [293 Neb. 1002] Rev. Stat. § 29-3001(4) (Cum. Supp. ...


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