Ricky J. Sanders, appellant,
Scott R. Frakes, director, Nebraska Department of Correctional Services, et al., appellees.
Habeas Corpus: Appeal and Error. On appeal of a habeas corpus
petition, an appellate court reviews the trial court's
factual findings for clear error and its conclusions of law
Constitutional Law: Habeas Corpus. The Nebraska Constitution
provides for the remedy of habeas corpus, while the procedure
for the writ is governed by statute.
Habeas Corpus. Habeas corpus is a special civil proceeding
providing a summary remedy to persons illegally detained.
___.A writ of habeas corpus challenges and tests the legality
of a person's detention, imprisonment, or custodial
deprivation of liberty.
Eligibility for a writ of habeas corpus is governed by the
criteria set forth in Neb. Rev. Stat. § 29-2801 (Reissue
Criminal Law: Habeas Corpus. Neb. Rev. Stat. § 29-2801
(Reissue 2016) explicitly excludes from the scope of habeas
corpus persons convicted of some crime or offense for which
they stand committed.
Habeas Corpus. In Nebraska, habeas corpus is quite limited in
comparison to the scope of the writ in federal courts.
Habeas Corpus: Judgments: Collateral Attack. Under Nebraska
law, an action for habeas corpus is a collateral attack on a
judgment of conviction.
Judgments: Collateral Attack. A collateral attack on a
judgment is where the judgment is attacked in a way other
than a proceeding in the original action to have it vacated,
reversed, or modified, or a proceeding in equity to prevent
___:___. Absent statutory authority to the contrary, only a
void judgment may be collaterally attacked.
___:___.A judgment that is not void, even if erroneous,
cannot be collaterally attacked.
Habeas Corpus: Prisoners. In the case of a prisoner held
pursuant to a judgment of conviction, habeas corpus is
available as a remedy only upon a showing that the judgment,
sentence, and commitment are void.
Habeas Corpus: Judgments: Sentences. The writ of habeas
corpus will not lie upon the ground of mere errors and
irregularities in the judgment or sentence rendering it not
void, but only voidable.
Judgments: Jurisdiction: Collateral Attack. Where the court
has jurisdiction of the parties and the subject matter, its
judgment is not subject to collateral attack.
Habeas Corpus: Jurisdiction: Sentences. A writ of habeas
corpus will not lie to discharge a person from a sentence of
penal servitude where the court imposing the sentence had
jurisdiction of the offense and the person of the defendant,
and the sentence was within the power of the court to impose.
Habeas Corpus: Appeal and Error. A writ of habeas corpus may
not be used as a substitute for an appeal.
Habeas Corpus: Sentences. The regularity of the proceedings
leading up to the sentence in a criminal case cannot be
inquired into on an application for writ of habeas corpus,
for that matter is available only in a direct proceeding.
Judgments: Jurisdiction. A judgment is void when the court
rendering it lacks subject matter or personal jurisdiction.
Jurisdiction: Words and Phrases. Subject matter jurisdiction
is the power of a tribunal to hear and determine a case of
the general class or category to which the proceedings in
question belong and to deal with the general subject matter
Habeas Corpus: Convictions. Unless the conviction is void,
those who stand committed pursuant to a final conviction are
excluded from the scope of the relief afforded by the writ of
habeas corpus in Nebraska.
Constitutional Law: Judgments: Final Orders: Collateral
Attack. A final judgment pursuant to an unconstitutional
statute is voidable, not void, and thus may not be
Habeas Corpus: Sentences. To release a person from a sentence
of imprisonment by habeas corpus, it must appear that the
sentence was absolutely void.
Constitutional Law: Habeas Corpus. Habeas corpus is not a
proper remedy to challenge a petitioner's detention
pursuant to a final conviction and sentence on the basis that
the statute underlying the conviction is unconstitutional.
___:___.A final conviction and sentence entered upon an
alleged facially unconstitutional statute is not absolutely
void, but is voidable only, and may not be attacked in a
habeas corpus proceeding.
from the District Court for Lancaster County: Stephanie F.
Stacy, Judge. Affirmed.
L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for
Heavican, C.J., Wright, Miller-Lerman, Kelch, and Funke, JJ.,
and Riedmann and Bishop, Judges.
NATURE OF CASE
J. Sanders appeals from the dismissal of his petition for
habeas corpus relief. The district court dismissed his
petition, in which Sanders argued that Neb. Rev. Stat. §
28-1212.04 (Reissue 2016) was facially unconstitutional. The
district court reasoned that a final conviction pursuant to
an unconstitutional statute is voidable, not void, and thus
under Nebraska law may not be challenged in a habeas action.
We affirm the judgment of the district court.
2011, Sanders was convicted of unlawful discharge of a
firearm under § 28-1212.04 and use of a firearm to
commit a felony under Neb. Rev. Stat. § 28-1205 (Reissue
2016). He was sentenced to 10 to 15 years' imprisonment
on each conviction, to run consecutively. On his direct
appeal, the only assignments of error were the insufficiency
of the evidence and the excessiveness of the sentences. On
July 9, 2012, in case No. A-12-050, the Nebraska Court of
Appeals sustained the State's motion for summary
2013, Sanders sought postconviction relief. Sanders claimed
ineffective assistance of counsel for the first time on
postconviction, because he had the same counsel at trial and
on direct appeal. He claimed trial and appellate counsel
failed to challenge the constitutionality of §
28-1212.04. He argued that the statute was unconstitutional
special legislation under Neb. Const, art. Ill. § 18,
and unconstitutional under the Equal Protection Clause. The
district court dismissed his petition without an evidentiary
hearing, which this court affirmed on appeal. Without deciding
the merits of the constitutional issue, we rejected
Sanders' claim of ineffective assistance of counsel,
stating that "counsel's failure to raise novel legal
theories or arguments or to make novel constitutional
challenges in order to bring a change in existing law does
not constitute deficient performance."
subsequently filed a habeas corpus petition in district
court, making a facial challenge to the constitutionality of
reviewing the general principles of Nebraska habeas corpus
law, the district court narrowed its focus: "The legal
issue before this Court ... is whether, under Nebraska law,
habeas corpus is a proper vehicle by which to challenge the
facial constitutionality of a statute underlying a criminal
judgment and sentence, once the criminal judgment is
final." The court distinguished the cases cited by
Sanders in which habeas was used to challenge the
constitutionality of a statute, explaining that none of those
cases involved a final conviction. The court relied on
Mayfield v. Hartmann for the proposition that
"'[a] statute is presumed to be constitutional and a
judgment entered on an unconstitutional statute is not
absolutely void but is voidable only'" and thus not
subject to collateral attack in a habeas proceeding. The
court dismissed Sanders' petition for habeas corpus
appealed. We granted Sanders' petition to bypass the
Court of Appeals.
ASSIGNMENTS OF ERROR
claims the district court erred in (1) holding that habeas
corpus was not the '"proper vehicle'" by
which he could seek release from confinement by bringing a
facial challenge to the constitutionality of the statute
under which he was convicted and (2) failing to grant habeas
corpus relief and order Sanders released from confinement
because his convictions were void. Sanders argues that §
28-1212.04 is facially unconstitutional under Neb. Const,
art. I, § 3 (due process clause); Neb. Const, art. Ill.
§ 18 (prohibition on special legislation); and the Equal
Protection Clause of the 14th Amendment to the U.S.
STANDARD OF REVIEW
appeal of a habeas corpus petition, an appellate court
reviews the trial court's factual findings for clear
error and its conclusions of law de novo.
of Habeas Corpus
writ of habeas corpus, known as the great writ,
regarded as a "fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state
action."Habeas corpus is a Latin term that,
translated literally, means "'that you have the
body'"; it is an appropriate remedy where a
person is unlawfully restrained of his or her
liberty. The Nebraska Constitution provides for the
remedy of habeas corpus,  while the procedure for the writ is
governed by statute. It is a special civil proceeding
providing a summary remedy to persons illegally
detained. A writ of habeas corpus challenges and
tests the legality of a person's detention, imprisonment,
or custodial deprivation of libertyEligibility for the writ
is governed by the criteria set forth in §
29-2801. Section 29-2801 explicitly excludes from
its scope "persons convicted of some crime or offense
for which they stand committed."
Nebraska, habeas corpus is quite limited in comparison to the
scope of the writ in federal courts. Under Nebraska law, an
action for habeas corpus is a collateral attack on a judgment
of conviction. A collateral attack on a judgment is
where the judgment is attacked in a way other than a
proceeding in the original action to have ...