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www.nebraska.gov/apps-courts-epub/
11/18/2022 08:05 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
Moses Childs, appellant and
cross-appellee, v. Scott Frakes,
appellee and cross-appellant.
___ N.W.2d ___
Filed November 18, 2022. No. S-21-878.
1. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
tion, an appellate court reviews the trial court’s factual findings for clear
error and its conclusions of law de novo.
2. Statutes: Appeal and Error. The meaning and interpretation of statutes
are questions of law for which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision made by
the court below.
3. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2020) is self-executing, so that an action is dis-
missed by operation of law, without any action by either the defendant
or the court, as to any defendant who is named in the civil action and
not served with process within the time set forth in the statute.
4. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After
dismissal of a civil action by operation of law under Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2020), there is no longer an action pending and
the district court has no jurisdiction to make any further orders except
to formalize the dismissal.
5. Habeas Corpus: Courts. Habeas corpus proceedings are not like ordi-
nary civil actions, and courts should follow the traditional procedure
illustrated by the habeas corpus statutes rather than make up their own
procedure.
6. Habeas Corpus. The writ of habeas corpus derives from common law
and is a special civil proceeding providing a summary remedy to per-
sons illegally detained.
7. Constitutional Law: Habeas Corpus. The Nebraska Constitution pro-
vides for the remedy of habeas corpus, while the procedure for the writ
is governed by statute.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
8. Habeas Corpus. Habeas corpus proceedings are not adversarial civil
actions and are not in a technical sense a suit between the applicant and
the respondent officer.
9. Habeas Corpus: Rules of the Supreme Court: Pleadings. The plead-
ing rules governing civil actions have no application to habeas corpus
proceedings.
10. Habeas Corpus. The statutory service provisions governing civil actions
have no application in habeas corpus proceedings.
11. Appeal and Error. A proper result will not be reversed merely because
it was reached for the wrong reason.
12. Habeas Corpus. A writ of habeas corpus challenges and tests the
legality of a person’s detention, imprisonment, or custodial deprivation
of liberty.
13. ____. In Nebraska, habeas corpus is quite limited in comparison to the
scope of the writ in federal courts.
14. Criminal Law: Habeas Corpus. Eligibility for a writ of habeas corpus
is governed by the criteria set forth in Neb. Rev. Stat. § 29-2801 (Cum.
Supp. 2020), which explicitly excludes from the scope of habeas cor-
pus persons convicted of some crime or offense for which they stand
committed.
15. Habeas Corpus: Prisoners. Under Nebraska law, in the case of a pris-
oner held pursuant to a judgment of conviction, habeas corpus is avail-
able as a remedy only upon a showing that the judgment, sentence, and
commitment are void.
16. Habeas Corpus: Judgments: Sentences. The writ of habeas corpus
will not lie upon the ground of mere errors and irregularities in the judg-
ment or sentence rendering it not void, but only voidable.
17. Judgments: Collateral Attack. A judgment that is not void, even if
erroneous, cannot be collaterally attacked.
18. 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.
19. Habeas Corpus. A writ of habeas corpus is not a writ for correction of
errors, and its use will not be permitted for that purpose.
20. Habeas Corpus: Sentences. The regularity of the proceedings lead-
ing 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.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Moses Childs, pro se.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
In this appeal, we consider whether the service and auto-
matic dismissal provisions of Neb. Rev. Stat. § 25-217 (Cum.
Supp. 2020) apply to habeas corpus proceedings. We hold that
§ 25-217 has no application to habeas corpus proceedings,
and consequently, the district court erred when it dismissed
a petition for writ of habeas corpus pursuant to that statute.
However, because our de novo review shows the petition did
not state a cognizable claim for habeas relief, we affirm the
judgment of dismissal, albeit on a different ground.
BACKGROUND
In 2017, the State filed an information against Moses Childs
in the district court for Lancaster County, Nebraska, charg-
ing him with one count of first degree sexual assault. Childs
eventually pled no contest to a reduced charge of attempted
first degree sexual assault and was sentenced to a term of
imprisonment. Childs’ conviction and sentence were affirmed
on direct appeal. 1
On March 24, 2021, Childs filed a petition for writ of habeas
corpus in the district court for Douglas County, Nebraska.
His pro se petition alleged he was being confined in Douglas
1
State v. Childs, No. A-18-1208, 2019 WL 6873068 (Neb. App. Dec. 17,
2019) (selected for posting to court website).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
County pursuant to a conviction and sentence that was void
because (1) he had been denied trial counsel of his choice;
(2) his plea was not entered knowingly, voluntarily, and intel-
ligently; (3) the prosecutor lacked “legal standing” to invoke
the court’s jurisdiction; and (4) his right to remain silent was
violated when the sentencing court required him to participate
in a presentence investigation.
The record on appeal shows no activity in the habeas pro-
ceeding from the date of its filing until September 23, 2021,
when the district court entered an order stating: “Pursuant to
Nebraska Revised Statute 25-217, this action stands dismissed
without prejudice.” Childs timely appealed from the order of
dismissal, and we moved the appeal to our docket to address
an issue of first impression: whether the provisions of § 25-217
apply to habeas corpus proceedings.
ASSIGNMENTS OF ERROR
Childs assigns, restated, that the district court erred in dis-
missing his petition for writ of habeas corpus because (1) the
requirements of § 25-217 do not apply in habeas proceedings
and (2) the allegations of the habeas petition entitled him to
an evidentiary hearing.
The State has cross-appealed, assigning the district court
erred by failing to dismiss Childs’ habeas petition on the
ground its allegations did not entitle him to habeas relief.
STANDARD OF REVIEW
[1] 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
[2] The meaning and interpretation of statutes are questions
of law for which an appellate court has an obligation to reach
2
Buggs v. Frakes, 298 Neb. 432, 904 N.W.2d 664 (2017).
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
an independent conclusion irrespective of the decision made by
the court below. 3
ANALYSIS
In their appellate briefing, both Childs and the State take
the position that the service and automatic dismissal provi-
sions of § 25-217 do not apply to habeas corpus proceedings.
We agree.
Section 25-217 addresses the statutory timeline for perfect-
ing service on defendants in civil actions, and it provides in
relevant part:
(1) An action is commenced on the day the complaint
is filed with the court.
(2) Each defendant in the action must be properly served
within one hundred eighty days of the commencement of
the action. . . .
(3) If any defendant is not properly served within the
time specified by subsection (2) of this section then the
action against that defendant is dismissed by operation
of law. The dismissal is without prejudice and becomes
effective on the day after the time for service expires.
[3,4] We have often explained that Ҥ 25-217 is self-
executing, so that an action is dismissed by operation of law,
without any action by either the defendant or the court, as
to any defendant who is named in the [civil] action and not
served with process within the time set forth in the statute.” 4
After dismissal of a civil action by operation of law under
§ 25-217, there is no longer an action pending and the district
3
In re App. No. P-12.32 of Black Hills Neb. Gas, 311 Neb. 813, 976 N.W.2d
152 (2022).
4
E.g., Carrizales v. Creighton St. Joseph, ante p. 296, 304, 979 N.W.2d
81, 89 (2022); Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698
(2010).
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
court has no jurisdiction to make any further orders except to
formalize the dismissal. 5
§ 25-217 Does Not Apply
to Habeas Corpus
[5] To the extent the district court here concluded that
§ 25-217 applies in habeas corpus proceedings, it erred. We
have cautioned trial courts that habeas corpus proceedings are
not like ordinary civil actions, and courts should “follow the
traditional procedure illustrated by the habeas corpus statutes
rather than make up their own procedure.” 6
[6,7] The writ of habeas corpus derives from common
law, and we have described it as “a special civil proceeding
providing a summary remedy to persons illegally detained.” 7
The Nebraska Constitution provides for the remedy of habeas
corpus, 8 while the procedure for the writ is governed by
statute. 9
The statutory procedure for habeas corpus proceedings is set
out in Neb. Rev. Stat. §§ 29-2801 through 29-2824 (Reissue
2016 & Cum. Supp. 2020). Under those procedures, the first
step is for the petitioner or relator, or someone on his or her
behalf, to “make application” to the court. 10 Accompanying
the application should be “a copy of the commitment or
5
See id.
6
Maria T. v. Jeremy S., 300 Neb. 563, 573, 915 N.W.2d 441, 450 (2018).
7
Id. at 570, 915 N.W.2d at 448. Accord, In re Application of Tail, Tail v.
Olson, 144 Neb. 820, 822, 14 N.W.2d 840, 841 (1944) (“[h]abeas corpus
. . . is a special proceeding, civil in character[,] providing a summary
remedy open to persons illegally detained”).
8
Neb. Const. art. I, § 8 (“[t]he privilege of the writ of habeas corpus shall
not be suspended”).
9
Maria T., supra note 6.
10
§ 29-2801.
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
cause of detention of such person” 11 or, if the person claims
to be imprisoned or detained without any legal authority, the
application must “mak[e] the same appear to such judge, by
oath or affirmation.” 12 It has long been the rule that a peti-
tion for writ of habeas corpus should be filed in the county
where the petitioner or relator is confined, and although our
older opinions characterized this as a jurisdictional issue, our
more recent opinions clarify that the issue implicates venue,
not jurisdiction. 13
Once an application for writ of habeas corpus is filed,
the next procedural step requires the court to determine, sua
sponte and based on the allegations of the application, if the
writ should issue. 14 If the application or petition for writ of
habeas corpus sets forth facts which, if true, would entitle
the petitioner to discharge, then the writ is a matter of right
and the petitioner should be produced and a hearing held
thereon to determine the question of fact presented. 15 But if
the application or petition alleges mere conclusions of law, or
if the facts alleged in the application or petition do not show
the petitioner is entitled to the relief of habeas corpus, “then
the writ will be denied for it would be useless to go through
the procedure of granting the writ and having the party
brought before the court merely to be remanded back to the
custody out of which he [or she] seeks to be discharged.” 16
11
Id. See, also, Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990) (hold
ing when petition fails to present statutorily required copy of commitment
and detention order, habeas relief may be denied).
12
§ 29-2801.
13
See, O’Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015); Anderson v.
Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
14
See Maria T., supra note 6.
15
See, id.; Evans v. Frakes, 293 Neb. 253, 876 N.W.2d 626 (2016); In re
Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944).
16
In re Application of Tail, Tail v. Olson, supra note 15, 145 Neb. at 272, 16
N.W.2d at 164.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
When a writ of habeas corpus is issued, service is governed
by § 29-2816, which states simply that “[s]uch writ may be
served in any county by any sheriff of the same or of any
other county.”
When a court issues a writ of habeas corpus, it then becomes
“the duty of the officer or person to whom such writ shall
be directed to convey the person or persons so imprisoned
or detained and named in such writ, before the judge . . . on
the day specified in such writ, and to make due return of the
writ.” 17 Once a writ is issued, it must be obeyed, or resistance
thereto made in the regular manner. 18 In every case in which
a writ has been issued, the person to whom it is directed must
sign and file a “return” 19 that plainly and unequivocally states
whether he or she has the petitioner or relator under his or her
“custody or power or under restraint” 20 and, if so, sets forth the
authority for such custody, power, or restraint. 21 The habeas
statutes do not describe by what means, if any, the respondent
may challenge the sufficiency of the application or petition for
writ of habeas corpus, but this court has said that before filing
a response to the writ, the respondent “may challenge the suf-
ficiency of the statements in the application of the relator by
filing a motion to quash or to ‘dissolve’ the writ.” 22 We have
recognized that this procedure is “consistent with traditional
common-law habeas corpus procedure.” 23
[8-10] As the foregoing discussion illustrates, the statu-
tory and traditional common-law procedures governing habeas
17
§ 29-2802. See, also, §§ 29-2816 through 29-2819 (governing contents
and verification of return).
18
See Maria T., supra note 6.
19
See §§ 29-2817 and 29-2818.
20
§ 29-2817.
21
See id. See, also, Maria T., supra note 6.
22
Maria T., supra note 6, 300 Neb. at 572, 915 N.W.2d at 449.
23
Id.
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
corpus proceedings in Nebraska have very little in common
with the statutory procedure governing civil actions. 24 Habeas
corpus proceedings are not adversarial civil actions and “are
not in a technical sense a suit between the applicant and the
[respondent] officer.” 25 We have been clear that the pleading
rules governing civil actions have no application to habeas cor-
pus proceedings, 26 and we now similarly hold that the statutory
service provisions governing civil actions have no application
in habeas corpus proceedings. Simply put, under the habeas
corpus procedure, the court issues the writ where appropriate
and there is no requirement that the petitioner must perfect
service on anyone. 27 The district court thus erred as a matter of
law when it applied the service and automatic dismissal provi-
sions of § 25-217 to Childs’ petition for writ of habeas corpus.
Moreover, the erroneous application of § 25-217 resulted in
an unnecessary delay of the court’s duty to sua sponte review
the petition.
[11] But our analysis does not end there, because a proper
result will not be reversed merely because it was reached for
the wrong reason. 28 We find merit in the State’s cross-appeal.
Petition Does Not Support
Habeas Corpus Relief
Although the district court erred in relying on § 25-217 to
dismiss Childs’ habeas petition, our de novo review shows that
24
Accord id. (holding habeas corpus proceedings are not governed by
Nebraska Court Rules of Pleading in Civil Cases).
25
In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 822, 14
N.W.2d at 841.
26
See Maria T., supra note 6.
27
See In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 823,
14 N.W.2d at 842 (“[w]e are unable to find any provision in our [habeas
corpus] statutes for service upon respondent of any other process except
the writ”).
28
See O’Neal, supra note 13.
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
dismissal was nevertheless proper on a different ground: Childs
has failed to allege facts which, if true, would entitle him to
habeas relief.
[12-17] A writ of habeas corpus challenges and tests the
legality of a person’s detention, imprisonment, or custodial
deprivation of liberty. 29 In Nebraska, habeas corpus is quite
limited in comparison to the scope of the writ in federal
courts. 30 Eligibility for the writ is governed by the criteria set
forth in § 29-2801, and under that statute, “persons convicted
of some crime or offense for which they stand committed”
are expressly excluded. 31 As such, under Nebraska law, 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. 32 “The
writ will not lie upon the ground of mere errors and irregulari-
ties in the judgment or sentence rendering it not void, but only
voidable.” 33 Stated differently, a judgment that is not void,
even if erroneous, cannot be collaterally attacked. 34
[18-20] Thus, a writ of habeas corpus will not lie to dis-
charge 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. 35 A writ of habeas corpus is not
a writ for correction of errors, and its use will not be permitted
for that purpose. 36 “‘[T]he regularity of the proceedings lead-
ing up to the sentence in a criminal case cannot be inquired
29
Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).
30
Id.
31
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
32
Tyrrell, supra note 29.
33
Id., 309 Neb. at 94, 958 N.W.2d at 681.
34
Id.
35
Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).
36
Id.
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
into on an application for writ of habeas corpus, for that matter
is available only in a direct proceeding.’” 37
With these principles in mind, we turn to the four grounds
on which Childs alleges he is entitled to habeas relief. First, he
alleged his primary attorney appeared at only a few hearings,
while his secondary attorney appeared at more. Childs char-
acterizes this as denying him counsel of his choice, which he
argues resulted in structural error that supports “reversal of his
conviction.” But such a claim does not entitle him to habeas
relief because, even if true, it would not render the judgment,
sentence, and commitment void.
Second, Childs alleged his plea was not knowingly, volun-
tarily, and intelligently entered because he received ineffec-
tive assistance of counsel. But claims of an invalid plea or
ineffective assistance of counsel do not warrant habeas relief,
because they do not affect the jurisdiction of the trial court or
the authority of the court to impose the sentence given. 38 Thus,
even if true, these allegations would not render the judgment,
sentence, and conviction void.
Third, Childs alleged the prosecutor had no personal knowl-
edge of the factual basis provided to the court during the plea
hearing and thus “had no legal standing upon which to invoke
the [trial] court’s jurisdiction.” But under Nebraska law, it is
the duty of the county attorney, when in possession of
sufficient evidence to warrant the belief that a person is
guilty and can be convicted of a felony or misdemeanor,
to prepare, sign, verify, and file the proper complaint
against such person and to appear in the several courts
of the county and prosecute the appropriate criminal pro-
ceeding on behalf of the state and county. 39
37
Id., 284 Neb. at 867, 824 N.W.2d at 33.
38
See, Gonzalez v. Gage, 290 Neb. 671, 861 N.W.2d 457 (2015); Peterson,
supra note 35; Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).
39
Neb. Rev. Stat. § 23-1201 (Cum. Supp. 2020).
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CHILDS V. FRAKES
Cite as 312 Neb. 925
There is nothing improper about a prosecutor’s reciting the
factual basis for the charged crime during a plea hearing.
This claim has no legal merit and does not entitle Childs to
habeas relief.
And fourth, Childs alleged he was compelled to participate
in a presentence investigation “without a knowing and intelli-
gent waiver of his right to remain silent.” This allegation chal-
lenges the regularity of the proceedings leading up to Childs’
sentence and is not a basis for habeas relief. 40
Because none of the allegations in Childs’ petition set forth
facts which, if true, would entitle him to habeas relief, it was
proper to dismiss the petition for writ of habeas corpus. 41
CONCLUSION
Our de novo review demonstrates that the decision of the
district court to dismiss Childs’ petition for writ of habeas cor-
pus was ultimately correct, even though the district court’s rea-
son for ordering dismissal was erroneous. We therefore affirm
the dismissal.
Affirmed.
Miller-Lerman, J., participating on briefs.
40
See Peterson, supra note 35.
41
See Maria T., supra note 6.