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09/14/2018 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
State of Nebraska, appellee, v.
Coty J. Conn, appellant.
___ N.W.2d ___
Filed June 29, 2018. No. S-17-721.
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 dem-
onstrate 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. Limitations of Actions. If the facts of a case are undisputed, the issue
as to when the statute of limitations begin to run is a question of law.
3. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
4. Postconviction: Time: Appeal and Error. Once the timeliness of a
postconviction motion is challenged and a hearing is held on the issue,
an inmate must raise all applicable timeliness arguments to the district
court to preserve them for appellate review.
5. Appeal and Error. It is well established that an appellate court will not
consider questions not presented to the district court.
6. Limitations of Actions. The doctrine of equitable tolling permits a
court to excuse a party’s failure to comply with the statute of limitations
where, because of disability, irremediable lack of information, or other
circumstances beyond his or her control, the plaintiff cannot be expected
to file suit on time.
7. ____. Equitable tolling requires no fault on the part of the defendant. It
does, however, require due diligence on the part of the claimant.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Daugherty, District Judge.
Stacy, J.
Coty J. Conn filed a motion seeking postconviction relief.
The State responded with a motion to dismiss, arguing the
motion was filed outside the 1-year limitations period under
Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). After conducting
a hearing, the district court found the motion was time barred
and granted the State’s motion to dismiss. Conn filed this
timely appeal.
FACTS
In November 2011, as part of a plea agreement involving
four cases, Conn pled no contest to one count of attempted
assault on an officer and admitted he was a habitual criminal.
On January 27, 2012, he was sentenced to 20 to 35 years’
imprisonment, with the sentence to be served concurrently with
identical sentences in the other three cases. Conn was repre-
sented by counsel at the time of the plea and sentencing. No
direct appeal was filed.
On May 28, 2013, Conn filed the instant motion for post-
conviction relief. The motion, summarized, alleged trial coun-
sel was ineffective for failing to file a direct appeal after Conn
asked that he do so. The same day, Conn moved for appoint-
ment of postconviction counsel.
On February 4, 2014, the district court appointed counsel
for Conn. Three days later, the State moved to dismiss Conn’s
postconviction motion, arguing it was filed outside the 1-year
limitations period under § 29-3001(4). After a delay of several
years that is not fully explained by the record, the court held
a hearing on the State’s motion. After the hearing, the district
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
court granted the State’s motion to dismiss, finding Conn’s
postconviction motion was filed out of time. Conn filed this
appeal, which we moved to our docket on our own motion.1
ASSIGNMENT OF ERROR
Conn assigns that the district court erred in dismissing his
postconviction motion as time barred pursuant to § 29-3001(4).
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late 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 affirm
atively show that the defendant is entitled to no relief.2 The
lower court’s findings of fact will be upheld unless such find-
ings are clearly erroneous.3
[2] If the facts of a case are undisputed, the issue as to when
the statute of limitations begin to run is a question of law.4
ANALYSIS
Pursuant to § 29-3001(4), a 1-year limitations period applies
to motions for postconviction relief. That period runs 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
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
2
State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015); State v. Cook, 290
Neb. 381, 860 N.W.2d 408 (2015).
3
See State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).
4
State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
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, 2011.5
Motion Was Not Timely Filed
Under § 29-3001(4)(a)
Conn was sentenced on January 27, 2012. The 30-day
appeal period expired on a Sunday, so he had until February 27
to file a direct appeal.6 No appeal was filed. But Conn asks us
to find that his conviction did not become final until May 28,
2012, making his postconviction motion filed 1 year later on
May 28, 2013, timely. We address his rationale below, but note
he preserved this argument for appellate review because he
raised it before the district court at the hearing on the State’s
motion to dismiss, and he assigned and argued it in his brief
to this court.
In arguing that his January 27, 2012, judgment did not
become final until May 28, Conn relies in part on our opinion
in State v. Reeves.7 The relevant issue in Reeves was whether
a new rule of constitutional criminal procedure applied to
a case before us on postconviction. Reeves held that such
rules are generally not applicable to “‘those cases which have
become final before the new rules are announced,’”8 and
then explained: “A conviction is final where the judgment of
5
§ 29-3001(4).
6
See Neb. Rev. Stat. § 25-1912 (Reissue 2016) (appeals must be filed
within 30 days after entry of judgment).
7
State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), vacated 498 U.S.
964, 111 S. Ct. 425, 112 L. Ed. 2d 409.
8
Id. at 749, 453 N.W.2d at 383.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
conviction was rendered, the availability of appeal exhausted,
and the time for petition of certiorari has lapsed.”9
The time to petition for certiorari is governed by rule 13 of
the Rules of the Supreme Court of the United States. That rule
provides that a petition for writ of certiorari is timely if filed
within 90 days of the entry of final judgment.10
Conn relies on Reeves, rule 13, and § 25-1912 to argue his
postconviction motion was timely filed. He reasons that his
sentence was imposed on January 27, 2012, and his direct
appeal date expired on February 27,11 so he had until May 28,
2012, to petition for a writ of certiorari. Conn’s postconviction
motion was filed exactly 1 year later, on May 28, 2013.
Conn’s briefing does not explain how, when no direct appeal
was filed, there would be any basis for petitioning the U.S.
Supreme Court for a writ of certiorari.12 But regardless, in
State v. Huggins,13 we rejected the argument that the finality
determination under § 29-3001(4)(a) must include an addi-
tional 90-day period so the time to petition for a writ of certio-
rari can lapse.
In Huggins, the defendant’s direct appeal was denied by
the Nebraska Court of Appeals. Huggins petitioned for fur-
ther review, which this court denied. He did not thereaf-
ter petition for writ of certiorari, and the Court of Appeals
issued its mandate on September 17, 2012. On November 27,
2013, he moved for postconviction relief. The State raised
the 1-year limitations period in its response, and the district
court found the postconviction motion was untimely, because
the 1-year limitations period ran from the date the Court of
Appeals issued its mandate. On appeal, the defendant argued
the 1-year period did not begin to run until the expiration of
9
Id. at 750, 453 N.W.2d at 383.
10
Sup. Ct. R. 13(1).
11
See § 25-1912.
12
See, 28 U.S.C. § 1257(a) (2012); rule 13(1).
13
State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
the 90-day period in which he could have petitioned for a writ
of certiorari. He relied on State v. Lotter14 which, like Reeves,
addressed whether a new rule of constitutional criminal proce-
dure could apply to a case on collateral review. In that context,
Lotter stated, “A criminal conviction is final for purposes of
collateral review when the judgment of conviction is rendered,
the availability of appeal is exhausted, and the time for peti-
tion for certiorari has lapsed.”15
Huggins rejected the inmate’s argument. It reasoned the
plain language of § 29-3001(4)(a) referenced the “conclu-
sion of a direct appeal,” and that meant the date the Court of
Appeals issued its mandate. To the extent Lotter referenced the
90-day certiorari period, Huggins distinguished Lotter by not-
ing § 29-3001(4) did not exist at the time Lotter was decided,
and thus the description in Lotter of a final conviction could
not be considered a comment on the meaning of the language
of § 29-3001(4).
A similar rationale applies here, where the facts pre-
sented require that we interpret the statutory reference in
§ 29-3001(4)(a) to “the expiration of the time for filing a
direct appeal.” Section 25-1912(1) explicitly provides that
appeals must be filed “within thirty days after the entry” of
the judgment, decree, or final order. The expiration of Conn’s
“time for filing a direct appeal” under the plain language of
§ 29-3001(4)(a) was therefore 30 days after the date of sen-
tencing on January 27, 2012. To the extent Conn relies on
Reeves and Lotter to suggest that a 90-day period for filing a
writ of certiorari should be included in the calculation under
§ 29-3001(4)(a), neither case dictates such a result. Reeves
and Lotter were decided at a time when the limitations period
in § 29-3001(4)(a) did not exist, and because both cases
referred to final convictions in the context of a retroactivity
14
State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003) (superseded in part
by statute as stated in State v. Harris, 292 Neb. 186, 871 N.W.2d 762
(2015)).
15
Id. at 254, 664 N.W.2d at 903.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
analysis, and not in the context of interpreting § 29-3001(4),
they do not provide support for Conn’s contention. Further,
because Conn did not appeal from the judgment of conviction
and sentence, there is no decision by the highest court of the
State on which to premise a petition for writ of certiorari in
the first instance.16
[3] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.17 Based on the plain language
of §§ 25-1912 and 29-3001(4)(a), the 1-year limitations period
began to run on February 27, 2012. The district court correctly
found Conn’s postconviction motion, filed May 28, 2013, was
outside this period and thus time barred by § 29-3001(4)(a).
Timeliness Under § 29-3001(4)(b)
Not Preserved
Conn’s postconviction motion did not allege any basis other
than § 29-3001(4)(a) in asserting the motion was timely. Nor
did he argue any other basis to the district court at the hear-
ing on the motion to dismiss. But in his brief on appeal, Conn
assigns and argues that his motion was also timely under
§ 29-3001(4)(b). He contends he filed the motion within 1 year
of discovering his trial counsel had not filed the direct appeal
as instructed, and thus claims he filed the motion within 1 year
of the “date on which the factual predicate of the constitutional
claim or claims” was “discovered through the exercise of
due diligence.”18
The State argues this assignment has not been preserved for
appellate review because, among other reasons, Conn did not
16
See 28 U.S.C. § 1257(a) (under certain circumstances, “[f]inal judgments
or decrees rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of
certiorari”).
17
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 705 (2018).
18
§ 29-3001(4)(b).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
argue timeliness under § 29-3001(4)(b) when defending against
the motion to dismiss. We agree.
[4,5] The record demonstrates that Conn did not present
an argument based on § 29-3001(4)(b) to the district court in
response to the State’s motion to dismiss. Once the timeliness
of his postconviction motion was challenged and a hearing was
held on the issue, Conn had to raise all applicable arguments
to the district court if he wanted to preserve them for appellate
review. It is well established that an appellate court will not
consider questions not presented to the district court.19 Because
the applicability of § 29-3001(4)(b) was not raised to the dis-
trict court, it has not been preserved for appellate review.
No Equitable Tolling
Conn argues the doctrine of equitable tolling should apply
to overcome any finding that his postconviction motion was
not timely filed. His postconviction motion did not expressly
use the term “equitable tolling,” but it did allege that he asked
his trial counsel to file an appeal after the sentencing hearing
and then asked “at least two more times,” but “was told that
he wasn’t able to appeal, and that he could only appeal the
sentence.” Conn raised this argument, which he now frames as
one of equitable tolling, to the postconviction court in response
to the State’s motion to dismiss.
[6,7] The doctrine of equitable tolling permits a court to
excuse a party’s failure to comply with the statute of limita-
tions where, because of disability, irremediable lack of infor-
mation, or other circumstances beyond his or her control, the
plaintiff cannot be expected to file suit on time.20 Equitable
tolling requires no fault on the part of the defendant.21 It does,
however, require due diligence on the part of the claimant.22
19
See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
20
In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).
21
Id.
22
Id.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
Nebraska has considered the principle that a statute of limi-
tations can be equitably tolled.23 But all of our cases applying
the doctrine have involved situations where a claimant was pre-
vented from bringing a timely claim due to the alleged actions
of a court or governmental entity.24 In that regard, we observe
that a similar principle is already found in the statutory tolling
language of § 29-3001(4)(c). Consequently, it is difficult to
conceive of a circumstance outside § 29-3001(4)(c) that would
support application of the equitable tolling doctrine in a post-
conviction motion.
In State v. Huggins,25 this court acknowledged that the U.S.
Supreme Court has applied equitable tolling in federal habeas
actions if the prisoner shows (1) he or she has been pursuing
his or her rights diligently and (2) some extraordinary cir-
cumstance stood in the way and prevented timely filing of a
petition.26 But Huggins declined to decide whether equitable
tolling applies to the postconviction limitations period under
§ 29-3001(4). This court in Huggins reasoned that because
the prisoner was claiming equitable tolling applied only with
respect to the time period he was in federal (not state) custody,
and because that time period did not encompass the entire
1-year limitations period of § 29-3001(4), the circumstances of
the case would not support equitable tolling even if the prin-
ciple applied.
Here, Conn argues equitable tolling applies because his
postconviction motion alleged that he “requested, on three
(3) occasions, that trial counsel file a direct appeal of the
District Court’s January 27, 2012, sentence; and, trial counsel
failed to do so.”27 He argues that he “acted reasonably” when
23
See id.
24
Id.
25
Huggins, supra note 13.
26
Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130
(2010).
27
Brief for appellant at 11.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CONN
Cite as 300 Neb. 391
he believed that instructing his counsel to file an appeal was
“tantamount to trial counsel filing such an appeal.”28 He con-
tends that his lack of legal training, his imprisonment, and his
detrimental reliance on the instruction he gave to trial counsel
all prevented him from filing his postconviction motion until
May 28, 2013.
Even assuming these allegations are true, they do not sat-
isfy the tolling provisions of § 29-3001(4)(c). And the allega-
tions would not support equitable tolling even if the principle
applied. Thus, as in Huggins, this case does not require us to
decide whether the doctrine of equitable tolling could ever
apply to § 29-3001(4), because the doctrine is unsupported on
the facts presented.
A ppointment of
Postconviction Counsel
Conn also argues the postconviction court implicitly found
his postconviction motion was timely filed when it granted
his motion to appoint counsel to represent him in the post-
conviction action. The motion appointing counsel was granted
before the State responded to Conn’s motion and raised the
affirmative defense that it was barred by the limitations period
of § 29-3001(4). Moreover, there is no correlation between
a court’s appointment of postconviction counsel and a find-
ing that the motion was timely filed. This argument is with-
out merit.
CONCLUSION
For the foregoing reasons, the files and records affirmatively
show that Conn’s postconviction motion was time barred,
and the judgment of the district court dismissing the motion
is affirmed.
A ffirmed.
28
Id. at 12.