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State v. Amaya

Supreme Court of Nebraska

October 20, 2017

State of Nebraska, appellee,
v.
Jay D. Amaya, appellant.

         1. 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.

         2. Judgments: Appeal and Error. An appellate court reviews a denial of a motion to alter or amend the judgment for an abuse of discretion.

         3. 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 filed.

         4. 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.

         5. __:__. 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.

         6. 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.

         7. ___: ___: ___ . 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.

         8. 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 punishment.

         9. 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.

         10. 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.

         11. 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 judgment.

         Appeal from the District Court for Lincoln County: Donald E. Rowlands, Judge. Affirmed.

          Jay D. Amaya, pro se.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         Jay D. 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.

         [298 Neb. 72] I. FACTS

         In 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.[1] The charges arose out of the assault and murder of Sheri Fhuere.[2] No direct appeal was filed.

         In 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.[3]

         On 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 2016).

         On 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[4] or were available at the time of his first motion, [5] 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.

         On 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 successive motion.[6]

         On 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.

         II. ASSIGNMENTS OF ERROR

         Amaya 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.

         III. STANDARD OF REVIEW

         In 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.[7]The lower ...


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