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Sanders v. Frakes

Supreme Court of Nebraska

December 23, 2016

Ricky J. Sanders, appellant,
v.
Scott R. Frakes, director, Nebraska Department of Correctional Services, et al., appellees.

         1. 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 de novo.

         2. Constitutional Law: Habeas Corpus. The Nebraska Constitution provides for the remedy of habeas corpus, while the procedure for the writ is governed by statute.

         3. Habeas Corpus. Habeas corpus is a special civil proceeding providing a summary remedy to persons illegally detained.

         4. ___.A writ of habeas corpus challenges and tests the legality of a person's detention, imprisonment, or custodial deprivation of liberty.

         5. ___. Eligibility for a writ of habeas corpus is governed by the criteria set forth in Neb. Rev. Stat. § 29-2801 (Reissue 2016).

         6. 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.

         7. Habeas Corpus. In Nebraska, habeas corpus is quite limited in comparison to the scope of the writ in federal courts.

         8. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action for habeas corpus is a collateral attack on a judgment of conviction.

         9. 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 its enforcement.

         10. ___:___. Absent statutory authority to the contrary, only a void judgment may be collaterally attacked.

         11. ___:___.A judgment that is not void, even if erroneous, cannot be collaterally attacked.

         12. 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.

         13. 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.

         14. Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject to collateral attack.

         15. 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.

         16. Habeas Corpus: Appeal and Error. A writ of habeas corpus may not be used as a substitute for an appeal.

         17. 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.

         18. Judgments: Jurisdiction. A judgment is void when the court rendering it lacks subject matter or personal jurisdiction.

         19. 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 involved.

         20. 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.

         21. Constitutional Law: Judgments: Final Orders: Collateral Attack. A final judgment pursuant to an unconstitutional statute is voidable, not void, and thus may not be collaterally attacked.

         22. Habeas Corpus: Sentences. To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.

         23. 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.

         24. ___:___.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.

         Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge. Affirmed.

          Gerald L. Soucie for appellant.

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

          Heavican, C.J., Wright, Miller-Lerman, Kelch, and Funke, JJ., and Riedmann and Bishop, Judges.

          Wright, J.

         I. NATURE OF CASE

         Ricky 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.

         II. BACKGROUND

         In 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 affirmance.

         In 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.[1] 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."[2]

         Sanders subsequently filed a habeas corpus petition in district court, making a facial challenge to the constitutionality of § 28-1212.04.

         After 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[3] 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 relief.

         Sanders appealed. We granted Sanders' petition to bypass the Court of Appeals.

         III. ASSIGNMENTS OF ERROR

         Sanders 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. Constitution.

         IV. STANDARD OF REVIEW

         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 de novo.[4]

         V ANALYSIS

         1. Writ of Habeas Corpus

         The writ of habeas corpus, known as the great writ, [5] is regarded as a "fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."[6]Habeas corpus is a Latin term that, translated literally, means "'that you have the body'"[7]; it is an appropriate remedy where a person is unlawfully restrained of his or her liberty.[8] The Nebraska Constitution provides for the remedy of habeas corpus, [9] while the procedure for the writ is governed by statute.[10] It is a special civil proceeding providing a summary remedy to persons illegally detained.[11] A writ of habeas corpus challenges and tests the legality of a person's detention, imprisonment, or custodial deprivation of liberty[12]Eligibility for the writ is governed by the criteria set forth in § 29-2801.[13] Section 29-2801 explicitly excludes from its scope "persons convicted of some crime or offense for which they stand committed."

         In Nebraska, habeas corpus is quite limited in comparison to the scope of the writ in federal courts.[14] Under Nebraska law, an action for habeas corpus is a collateral attack on a judgment of conviction.[15] 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 ...


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