State v. Huggins

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUGGINS
Cite as 291 Neb. 443

State of Nebraska, appellee, v.
K eith M. Huggins, appellant.
___ N.W.2d ___

Filed July 24, 2015. No. S-14-297.

 1. Limitations of Actions. If the facts in a case are undisputed, the issue
as to when the statute of limitations begins to run is a question of law.
 2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach its conclusion independent of the trial court.
 3. Postconviction: Limitations of Actions: Words and Phrases: Appeal
and Error. The issuance of a mandate by a Nebraska appellate court is
a definitive determination of the “conclusion of a direct appeal,” and the
“date the judgment of conviction became final,” for purposes of Neb.
Rev. Stat. § 29-3001(4)(a) (Cum. Supp. 2014).

Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Keith M. Huggins, pro se.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Miller-Lerman, J.
NATURE OF CASE
Keith M. Huggins appeals the order of the district court for
Douglas County which dismissed his motion for postconvic-
tion relief without an evidentiary hearing on the basis that the
motion was untimely under the 1-year limitation period set
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STATE v. HUGGINS
Cite as 291 Neb. 443

forth in Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014) of
the postconviction act. The court determined that the limitation
period began to run upon the issuance of the mandate from
Huggins’ direct appeal in the Nebraska appellate courts and
that Huggins did not file his motion within 1 year after such
date. Huggins argues that the limitation period did not begin to
run until the time for him to file a petition for a writ of certio-
rari to the U.S. Supreme Court had expired and that therefore
his postconviction motion was timely filed. He alternatively
argues that the limitation period should have been tolled during
a period when he was in federal custody and not in the custody
of the State of Nebraska. We reject Huggins’ arguments and
agree with the court that Huggins’ motion was not timely. We
therefore affirm the district court’s dismissal of the postconvic-
tion motion.
STATEMENT OF FACTS
In 2011, Huggins entered a plea of no contest to second
degree murder. He filed two separate motions to withdraw his
plea, and the district court denied both motions. The court sen-
tenced Huggins to imprisonment for 40 to 40 years.
The Nebraska Court of Appeals affirmed Huggins’ convic-
tion and sentence in a memorandum opinion, State v. Huggins,
No. A-11-570, 2012 WL 3030780 (Neb. App. July 24, 2012)
(selected for posting to court Web site). Huggins petitioned
this court for further review, and we denied further review
on August 30. Huggins did not file a petition for a writ
of certiorari. The Court of Appeals issued the mandate on
September 17.
On November 27, 2013, Huggins filed a pro se motion
for postconviction relief in which he raised various claims
of ineffective assistance of counsel. In the State’s response
filed January 30, 2014, it requested that Huggins’ motion be
dismissed without an evidentiary hearing, because the motion
was untimely under § 29-3001(4). Section 29-3001(4) of the
Nebraska Postconviction Act provides as follows:
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STATE v. HUGGINS
Cite as 291 Neb. 443

A one-year period of limitation shall apply to the filing of
a verified motion for postconviction relief. The one-year
limitation period shall run from the later of:
(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review; or
(e) August 27, 2011.
The State asserted that Huggins had 1 year from September
17, 2012, the date the Court of Appeals issued its mandate
in Huggins’ direct appeal, to file a motion for postconvic-
tion relief under § 29-3001(4)(a) and that therefore Huggins’
motion filed November 27, 2013, was untimely.
On February 10, 2014, the district court dismissed Huggins’
postconviction motion without an evidentiary hearing. The
court stated that the Court of Appeals’ mandate in Huggins’
direct appeal was issued on September 17, 2012, and that
Huggins’ motion for postconviction relief was filed “on
November 27, 2013, more than one year following the conclu-
sion of [Huggins’] direct appeal.” The court concluded that
Huggins’ postconviction action was “barred by the time limita-
tion provided for under the Nebraska Postconviction Act” and
that therefore the motion “must be dismissed.”
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STATE v. HUGGINS
Cite as 291 Neb. 443

On February 14, 2014, Huggins filed a motion to alter or
amend the order in which the court dismissed his postconvic-
tion motion. Huggins argued that his conviction did not become
final until the 90-day period in which he might have petitioned
the U.S. Supreme Court for a writ of certiorari had lapsed.
He asserted that such time did not lapse until November 28,
2012, and that therefore his motion filed November 27, 2013,
was timely.
In his motion to alter or amend, Huggins asserted that at the
conclusion of his direct appeal and continuing until May 31,
2013, he was in federal custody serving a federal sentence in
Indiana. He also asserted that after he was released from fed-
eral custody and put into the custody of the State of Nebraska
in May or June 2013, he gained access to legal materials on
June 3, when he was transferred to a facility where he was
allowed access to a law library. Huggins contends that the
running of the limitation period under § 29-3001(4) should
have been tolled until June 3, when he had access to the
law library, and that therefore his motion filed November 27
was timely.
On March 10, 2014, the district court denied Huggins’
motion to alter or amend the February 10 order. The court
stated that Huggins had “offered nothing upon which relief
might be granted to him for his failure to timely file his motion
for postconviction relief.”
Huggins appeals the dismissal of his postconviction motion.
ASSIGNMENTS OF ERROR
Huggins claims, restated, that the district court erred when
it dismissed his motion on the basis that it was barred by the
time limitation under § 29-3001(4) and when it failed to grant
him an evidentiary hearing on the merits of his postconvic-
tion claims.
STANDARDS OF REVIEW
[1,2] If the facts in a case are undisputed, the issue as to
when the statute of limitations begins to run is a question of
law. Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810,
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Cite as 291 Neb. 443

716 N.W.2d 87 (2006). To the extent an appeal calls for statu-
tory interpretation or presents questions of law, an appellate
court must reach its conclusion independent of the trial court.
Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).
ANALYSIS
We note as an initial matter that in State v. Crawford, ante
p. 362, ___ N.W.2d ___ (2015), we concluded that the 1-year
period of limitation under § 29-3001(4) is not a jurisdictional
requirement and instead is in the nature of an affirmative
defense that the State waives if it does not raise the issue in the
district court. In contrast to the circumstances in Crawford, in
the present case, the State raised the period of limitation as an
affirmative defense in its answer in the district court, and the
court dismissed Huggins’ motion on the basis that it was not
timely under § 29-3001(4). Therefore, the statute of limitations
defense was not waived in this case, and we consider Huggins’
arguments that the district court erred when it determined that
his motion exceeded the 1-year limit and concluded his motion
was not timely.
Huggins makes two alternative arguments in support of his
contention that his postconviction motion was timely filed.
He first argues that the period of limitation did not begin to
run until the time for him to petition the U.S. Supreme Court
for a writ of certiorari had expired and that his motion was
filed within 1 year from that date. He alternatively argues
that the period of limitation was tolled during the time he
was in federal prison and that his motion was filed within 1
year after the date he was released from federal custody and
put into the custody of the State of Nebraska. We reject both
arguments and conclude that Huggins’ postconviction motion
was untimely.
Limitation Period Under § 29-3001(4)(a)
Began to Run on the Date
the Mandate Was Filed.
Huggins first argues that the 1-year period of limitation
under § 29-3001(4)(a) did not begin to run until after the
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STATE v. HUGGINS
Cite as 291 Neb. 443

time during which he might have petitioned the U.S. Supreme
Court for a writ of certiorari had expired and that his motion
was filed within 1 year after that date. We reject this argu-
ment, and we conclude that the period of limitation began to
run on the date the mandate was issued by the Nebraska appel-
late court.
Under § 29-3001(4), the period of limitation begins to run
on the latest of certain specified dates, the first of which is
“[t]he date the judgment of conviction became final by the
conclusion of a direct appeal or the expiration of the time for
filing a direct appeal.” § 29-3001(4)(a). Our reading of “con-
clusion of a direct appeal” in § 29-3001(4)(a) determines the
outcome of this case. In the present case, the Court of Appeals
decided Huggins’ direct appeal in an opinion filed on July 24,
2012. Huggins petitioned this court for further review, which
we denied on August 30. Huggins did not file a petition for a
writ of certiorari. The Court of Appeals issued its mandate on
September 17. The district court in this postconviction action
determined that Huggins’ conviction became final, and the
period of limitation began to run, when the Court of Appeals
issued its mandate. We agree.
Huggins argues that his conviction did not become final
until the time for him to petition the U.S. Supreme Court for a
writ of certiorari had expired. He asserts that under rules of the
U.S. Supreme Court, he had until 90 days after we denied his
petition for further review to petition the U.S. Supreme Court
for a writ of certiorari, and that date was November 28, 2012.
Huggins contends that he had 1 year from November 28 to file
his postconviction action and that, therefore, his motion filed
November 27, 2013, was timely.
Huggins relies on federal case law applying the federal
habeas statutes and refers us to a Nebraska case, State v.
Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003). We recognize
that federal case law indicates that convictions are not final
for purposes of the limitation period under the federal habeas
statutes until the time expires for filing for certiorari. See,
Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 181 L. Ed.
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2d 619 (2012) (applying 28 U.S.C. § 2244(d)(1)(A) (2006)
with regard to prisoners in state custody); Clay v. U.S., 537
U.S. 522, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003) (apply-
ing 28 U.S.C. § 2255 (2000) with regard to defendants in
federal custody). But the issue before us is the meaning of
the Nebraska Postconviction Act’s § 29-3001(4)(a), not a fed-
eral statute.
Further, Huggins’ reliance on our decision in Lotter, supra,
is misplaced for several reasons, including the fact that the
1-year period of limitation did not exist at the time, so we were
not commenting on § 29-3001(4)(a). The State points out that
in other cases where a criminal conviction has been appealed,
this court has indicated that the finality of the judgment is tied
to the issuance of a final mandate. See, State v. Davis, 277
Neb. 161, 762 N.W.2d 287 (2009); State v. Gales, 265 Neb.
598, 658 N.W.2d 604 (2003); State v. White, 256 Neb. 536,
590 N.W.2d 863 (1999); State v. Urbano, 256 Neb. 194, 589
N.W.2d 144 (1999). We reject Huggins’ argument, and we con-
clude that for purposes of § 29-3001(4)(a), the “conclusion of
a direct appeal” occurs when a Nebraska appellate court issues
the mandate in the direct appeal.
Under Nebraska law and procedure, the issuance of a man-
date by an appellate court is a clear signal that a direct appeal
has been concluded. Under Neb. Ct. R. App. P. § 2-114(1),
a mandate will generally not be issued by a Nebraska appel-
late court during the time for filing a motion for rehearing
(10 days under Neb. Ct. R. App. P. § 2-113 (rev. 2012)) or a
petition for further review (30 days under Neb. Ct. R. App. P.
§ 2-113).
If a criminal defendant intends to seek a writ of certio-
rari from the U.S. Supreme Court, he or she should request
a stay of the Nebraska court’s mandate. Neb. Ct. R. App. P.
§ 2-114(2) provides: “Parties desiring to prosecute proceed-
ings to the United States Supreme Court, and desiring an order
staying the mandate, must make application within 7 days
from the date of the filing of the opinion or other dispositive
entry.” It is generally not necessary to wait 90 days to see
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STATE v. HUGGINS
Cite as 291 Neb. 443

whether the defendant will petition for a writ of certiorari,
because the defendant should have signaled his or her intent to
petition for certiorari by requesting a stay of the mandate pur-
suant to Neb. Ct. R. App. P. § 2-114(2). Therefore, as a general
matter, when a Nebraska appellate court issues a mandate in
a direct appeal, it indicates that certiorari is not being sought
and that the direct appeal has been concluded. Thus, a man-
date is not immediately issued by Nebraska appellate courts
after an appeal is decided, and if a defendant intends to seek a
writ of certiorari, the defendant may seek to stay issuance of
the mandate.
[3] In view of the Nebraska practice rules, jurisprudence,
and the language of § 29-3001(4)(a), we conclude that the issu-
ance of a mandate by a Nebraska appellate court is a definitive
determination of the “conclusion of a direct appeal,” and the
“date the judgment of conviction became final,” for purposes
of § 29-3001(4)(a). In the present case, the “conclusion of [the]
direct appeal” occurred when the Court of Appeals issued the
mandate in Huggins’ direct appeal on September 17, 2012.
Huggins filed his postconviction motion on November 27,
2013. Huggins did not file his postconviction motion within
1 year after the date of the mandate, and therefore he did not
timely file under § 29-3001(4)(a).
Huggins Was Released From Federal Custody
and Put Into State Custody Within
1 Year After the Limitation
Period Began to Run.
Huggins alternatively argues that the 1-year period of limita-
tion was tolled during the time he was in federal prison and that
his postconviction motion, filed within 1 year after the date he
was released from federal custody and put into the custody of
the State of Nebraska, was timely. We conclude that whether or
not such tolling would occur under appropriate circumstances,
no tolling occurs where, as in this case, the prisoner has time
to file a motion for postconviction relief within the statutory
1-year period.
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Nebraska A dvance Sheets
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STATE v. HUGGINS
Cite as 291 Neb. 443

As determined in the previous section, the 1-year period of
limitation for Huggins began to run when the mandate was
issued on September 17, 2012. Huggins asserts that at that
time, he was in federal custody in a prison in Indiana, and
that he was not released from federal custody and put into
the custody of the State of Nebraska until May or June 2013
and gained access to Nebraska legal materials on June 3. He
contends that the limitation period should have been tolled
during the time he was in federal custody and that therefore his
motion filed November 27 was timely, having been filed within
1 year after the date he was taken into the custody of the State
of Nebraska.
Huggins appears to argue that these circumstances make
his motion timely in two ways. First, he argues that under
§ 29-3001(4)(c), his imprisonment in federal custody was an
“impediment” that prevented him from filing a postconviction
action in Nebraska. Second, he argues that “equitable tolling”
should be applied to toll the running of the limitation period
for the time he was in federal custody and did not have access
to Nebraska law materials.
With regard to Huggins’ first argument, that federal custody
and lack of access to a Nebraska law library was an “impedi-
ment” under § 29-3001(4)(c) that prevented him from filing
a postconviction motion, we note that § 29-3001(4)(c) refers
to an impediment “created by state action, in violation of
the Constitution of the United States or the Constitution of
Nebraska or any law of this state.” Regardless of whether
being in federal custody without access to Nebraska law mate-
rials was an “impediment” under § 29-3001(4)(c), Huggins
makes no claim that his imprisonment in federal custody was
a situation created in violation of the federal or Nebraska
Constitution or Nebraska law, nor is any such violation appar-
ent. Therefore, we reject Huggins’ argument that the period of
limitation did not begin to run until May or June 2013 under
§ 29-3001(4)(c).
Huggins also argues that “equitable tolling” should be
applied to the running of the 1-year period of limitation for
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STATE v. HUGGINS
Cite as 291 Neb. 443

the time he was in federal custody. This court has not yet
addressed whether equitable tolling applies to § 29-3001(4)
and under what circumstances it may apply. We note, how-
ever, that the U.S. Supreme Court has held that the statute of
limitations under 28 U.S.C. § 2244(d), with regard to habeas
actions filed by prisoners in state custody, is subject to equi-
table tolling if the prisoner shows that (1) he or she has been
pursuing his or her rights diligently and (2) some extraordinary
circumstance stood in the way and prevented timely filing of
a petition. Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549,
177 L. Ed. 2d 130 (2010).
Under § 29-3001(4), the period of limitation generally
begins to run under subsection (a) on the date the conviction
becomes final. However, the Legislature has determined that
certain circumstances justify starting the period of limitation
on a later date. These circumstance are set forth in subsections
(b) through (e). The statutory language does not provide that
the date on which a prisoner is released from federal custody
and taken into the custody of the State of Nebraska is an
alternate later date from which the period of limitation would
begin to run. Therefore, under the statute itself, the limitation
period continues to run regardless of whether the prisoner is in
federal custody and whether the prisoner is in the custody of
the State of Nebraska.
Huggins contends that equitable tolling would be appropri-
ate in this case; he appears to rely in part on precedent of
this court in which we held that a prisoner in federal custody
is not “‘in actual custody in Nebraska’” and therefore not
eligible to file an action under the Nebraska Postconviction
Act. State v. Whitmore, 234 Neb. 557, 558, 452 N.W.2d 31,
32 (1990). Huggins reasons that the period of limitation
should not have run against him during the time when he
was in federal custody and could not have filed a Nebraska
postconviction action. As we determined in State v. Crawford,
ante p. 362, ___ N.W.2d ___ (2015), the limitation period
under § 29-3001(4) is in the nature of a statute of limitations.
Therefore, it is at least arguable that the statute of limitations
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under § 29-3001(4) may be subject to equitable tolling prin-
ciples in the same manner that statutes of limitations in other
contexts may be subject to equitable tolling. Although this
court has acknowledged the possibility of equitable tolling
with respect to statutes of limitations in other contexts, see
Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 276 Neb.
640, 756 N.W.2d 280 (2008), it does not appear that this court
has set forth the specific circumstances under which equitable
tolling could occur. More particularly, we have not decided
whether equitable tolling may be applied to the period of limi-
tation set forth in § 29-3001(4), and, on the facts of this case,
it is not necessary to do so.
In this case, under the statute, the period of limitation for
Huggins to file a postconviction motion ran for 1 year from the
date the mandate was issued on September 17, 2012. Huggins
asserts that he was released from federal custody and taken
into the custody of the State of Nebraska in May or June 2013
and gained access to Nebraska legal materials on June 3. At
that time, Huggins still had until September 2013, or a period
over 3 months, to file a Nebraska postconviction action within
the statutory period of limitation.
In State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504
(2013), we determined that a defendant was not deprived of
the opportunity to file a postconviction action even though the
defendant was in federal custody during part of the period of
limitation. We stated that “without deciding that a postconvic-
tion action cannot be brought during the time a defendant oth-
erwise serving a Nebraska sentence is in federal custody, [the
defendant] has neither pled nor proved that she was in federal
custody for the entire 1-year period.” Id. at 946, 830 N.W.2d
at 509. As we reasoned in Gonzalez, a prisoner is not deprived
of the opportunity to bring a postconviction action if there is
some time within the period of the 1-year limitation that the
prisoner could have filed a postconviction action. In the pres-
ent action, Huggins does not claim that he was deprived of the
opportunity to file his postconviction action during the entire
1-year period of limitation. Under the facts of this case, we
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conclude that, whether or not equitable tolling may be used
to toll the 1-year limitation period under § 29-3001(4) under
proper circumstances, the circumstances of this case would
not support equitable tolling for the time Huggins was in fed-
eral custody.
We note that this decision does not foreclose consideration
of the possibility that there are circumstances under which
equitable tolling may apply or that the limitation period may
be tolled for a person who was in federal custody during the
entire limitation period and arguably had no opportunity to file
a postconviction action within the limitation period. However,
Huggins alleges only that he was unable to file his motion dur-
ing part of the period of limitation, and we conclude that such
allegation does not support an equitable tolling of the period
of limitation under § 29-3001(4). We therefore reject Huggins’
argument that the 1-year period of limitation did not run dur-
ing the time that he was in federal custody.
CONCLUSION
We conclude that for purposes of § 29-3001(4)(a), Huggins’
direct appeal was concluded and his conviction became final
when the Court of Appeals issued the mandate on September
17, 2012, and that the 1-year period of limitation began to
run on that date. Given the fact that Huggins was in the cus-
tody of Nebraska for at least the last 3 months of the 1-year
period of limitation, we further conclude that the running of
the period of limitation was not tolled for the time Huggins
was in federal prison. Therefore, the period of limitation
had run before Huggins filed his motion for postconvic-
tion relief on November 27, 2013, and we affirm the district
court’s dismissal of Huggins’ motion on the basis that it was
untimely filed.
A ffirmed.
Cassel, J., not participating.