Postconviction: Constitutional Law: Appeal and Error. In
appeals from postconviction proceedings, an appellate court
reviews de novo a determination that the defendant failed to
allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no
relief. The lower court's findings of fact will be upheld
unless such findings are clearly erroneous.
Judgments: Appeal and Error. An appellate court reviews a
denial of a motion to alter or amend the judgment for an
abuse of discretion.
Postconviction. A defendant is entitled to bring a second
proceeding for postconviction relief only if the grounds
relied upon did not exist at the time the first motion was
Postconviction: Limitations of Actions. The 1-year statute of
limitations in Neb. Rev. Stat. § 29-3001(4) (Reissue
2016) applies to all verified motions for postconviction
relief, including successive motions.
__:__. If, as part of its preliminary review, the trial court
finds the postconviction motion affirmatively shows-either on
its face or in combination with the files and records before
the court-that it is time barred under Neb. Rev. Stat. §
29-3001(4) (Reissue 2016), the court is permitted, but not
obliged, to sua sponte consider and rule upon the timeliness
of the motion.
Constitutional Law: Statutes: Sentences. A law which purports
to apply to events that occurred before the law's
enactment, and which disadvantages a defendant by creating or
enhancing penalties that did not exist when the offense was
committed, is an ex post facto law and will not be endorsed
by the courts.
___: ___ . There are four types of ex post facto laws: those
which (1) punish as a crime an act previously committed which
was [298 Neb. 71] innocent when done; (2) aggravate a crime,
or make it greater than it was, when committed; (3) change
the punishment and inflict a greater punishment than was
imposed when the crime was committed; and (4) alter the legal
rules of evidence such that less or different evidence is
needed in order to convict the offender.
Postconviction: Constitutional Law: Limitations of Actions:
Sentences. The statutory time limits in Neb. Rev. Stat §
29-3001(4) (Reissue 2016) do not result in ex post facto
Postconviction: Limitations of Actions: Proof. To satisfy the
tolling provision of Neb. Rev. Stat. § 29-3001(4)(c)
(Reissue 2016), a prisoner must show there was (1) an
impediment created by state action, (2) which amounted to a
violation of the federal or state Constitution or a state
law, and (3) as a result, the prisoner was prevented from
filing a verified motion. If all these factors are satisfied,
the 1-year limitation period will begin to run on the date
the impediment was removed.
Postconviction: Rules of the Supreme Court. Postconviction
proceedings are not governed by the Nebraska Court Rules of
Pleading in Civil Cases, and Nebraska's postconviction
statutes do not contemplate the opportunity to amend a
postconviction motion after the court has determined it does
not necessitate an evidentiary hearing.
Judgments: Pleadings: Time. Under Neb. Rev. Stat. §
25-1329 (Reissue 2016), a motion to alter or amend a judgment
shall be filed no later than 10 days after the entry of the
from the District Court for Lincoln County: Donald E.
Rowlands, Judge. Affirmed.
Amaya, pro se.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Amaya filed a successive motion for postconviction relief.
The district court denied the motion without conducting an
evidentiary hearing, and Amaya filed this appeal. We affirm.
Neb. 72] I. FACTS
1999, Amaya pled no contest to one count of first degree
murder, one count of use of a knife in the commission of a
felony, and one count of sexual assault. The charges arose
out of the assault and murder of Sheri Fhuere. No direct appeal
2006, Amaya filed a motion for postconviction relief,
alleging various instances of ineffective assistance of
counsel. After conducting an evidentiary hearing, the
district court denied relief, and we affirmed.
September 2, 2016, Amaya filed what he captioned a
"Successive Verified Motion for Postconviction
Relief" Amaya's pro se motion acknowledged the
1-year statute of limitations for the filing of
postconviction actions imposed by Neb. Rev. Stat. §
29-3001(4) (Reissue 2016), but alleged his successive motion
was not time barred for several reasons that we discuss in
more detail later. The successive motion alleged trial
counsel was ineffective because (1) he did not make Amaya
aware of documents and evidence relating to his defense and
(2) he incorrectly told Amaya that he could get the death
penalty if convicted. The successive motion also alleged that
counsel appointed to represent Amaya in his original
postconviction action was ineffective for not raising these
issues. Amaya also attempted to include, in his
postconviction motion, a motion for new trial pursuant to
Neb. Rev. Stat. §§ 29-2101 to 29-2103 (Reissue
September 7, 2016, the district court denied Amaya's
successive postconviction motion without conducting an
evidentiary hearing and without requesting a response from
the State. The court concluded the motion (1) was time barred
under § 29-3001(4), (2) impermissibly sought to raise
grounds for relief that either had been litigated in
Amaya's [298 Neb. 73] first postconviction
motion or were available at the time of his first
motion,  and (3) was "completely
frivolous." The district court did not expressly address
the motion for new trial, but implicitly overruled it by
dismissing the entire successive motion, and all accompanying
motions, with prejudice.
September 9, 2016, before he had received the court's
order denying his successive motion, Amaya filed a motion for
leave to amend his successive motion. He attached an amended
successive motion for postconviction relief to this motion.
On September 14, the district court denied Amaya's motion
to amend, reasoning it had already ruled on and dismissed his
September 26, 2016, Amaya filed a motion to alter or amend
the judgment entered September 7. The district court denied
the motion to alter or amend, finding it was not filed within
10 days of the September 7 order and thus was untimely under
Neb. Rev. Stat. § 25-1329 (Reissue 2016). Amaya
subsequently filed this appeal.
ASSIGNMENTS OF ERROR
assigns, reordered and restated, that the district court
erred in (1) denying his successive motion for postconviction
relief without notice and hearing, (2) denying his motion to
alter or amend the judgment and denying his motion to amend
the successive postconviction motion, and (3) denying his
motion for appointment of postconviction counsel.
STANDARD OF REVIEW
appeals from postconviction proceedings, an appellate court
reviews de novo a determination that the defendant [298 Neb.
74] failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief.The lower ...