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03/04/2022 08:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
State of Nebraska, appellee,
v. Teon D. Hill, appellant.
___ N.W.2d ___
Filed December 23, 2021. No. S-21-369.
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.
2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law which is reviewed independently of the lower court’s ruling.
3. Postconviction: Pleadings: Time. The Nebraska Postconviction Act
contains a 1-year time limit for filing a verified motion for postconvic-
tion relief, which runs from one of four triggering events or August 27,
2011, whichever is later.
4. 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) (Reissue 2016).
5. Postconviction. In Nebraska, postconviction relief is strictly prescribed.
6. Postconviction: Legislature: Intent. A postconviction proceeding is
one the Legislature intended to be limited in scope and summary
in nature.
7. Postconviction: Motions for New Trial: Evidence: Collateral Attack:
Final Orders. A postconviction proceeding and a motion for new trial
based on newly discovered evidence are both collateral attacks on a final
criminal judgment.
8. Limitations of Actions. 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 information, or
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
other circumstances beyond his or her control, the plaintiff cannot be
expected to file suit on time.
9. ____. Equitable tolling requires due diligence on the part of the claimant.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Nelson, District Judge.
Cassel, J.
INTRODUCTION
Over 3 years after Teon D. Hill’s direct appeal concluded,
he moved for postconviction relief. The district court denied
the motion as untimely filed. On appeal, Hill contends that
the 1-year limitation period 1 for filing a postconviction motion
should be tolled during the pendency of a different collateral
attack on the judgment. Because § 29-3001(4) does not provide
for tolling under the circumstances and Hill was not entirely
prevented from filing his motion during the 1-year period, we
affirm the district court’s order.
BACKGROUND
In 2014, the State charged Hill with several crimes, including
murder in the first degree. A jury convicted Hill of all but one
charge, and the court accepted the jury’s verdict on February
24, 2016. The district court subsequently imposed sentences,
including life imprisonment for the murder conviction.
Through counsel different from trial counsel, Hill filed
a direct appeal. He challenged the overruling of several
motions, statements made by the prosecutor in rebuttal closing
arguments, and whether he received ineffective assistance of
1
See Neb. Rev. Stat. § 29-3001(4) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
trial counsel. We affirmed the judgments and convictions, and
our mandate issued on February 6, 2018.
On January 16, 2019, Hill filed a pro se motion for new trial
based on what he characterized as newly discovered evidence
and a claim of actual innocence. On May 14, 2020, the district
court denied the motion due to the lack of newly discovered
evidence presented in the motion. Hill appealed. On February
26, 2021, we affirmed the district court’s order which dis-
missed the motion for new trial without an evidentiary hearing.
Our mandate issued on March 12.
On April 1, 2021, Hill, through counsel, filed a verified
motion for postconviction relief. He alleged that he received
ineffective assistance of counsel. Hill’s motion contained a pro-
cedural background section which set forth the various dates
of filings, dispositions, and mandates, but he did not men-
tion tolling or the timeliness of his motion. Fifteen days later
and without an evidentiary hearing, the district court entered
an order denying postconviction relief. The court determined
that the motion was barred by the limitation period under
§ 29-3001(4).
Hill filed a timely appeal.
ASSIGNMENT OF ERROR
Hill assigns that the court erred in dismissing his motion for
postconviction relief based on the running of the limitations
period under § 29-3001(4). He contends that the limitations
period was tolled by the filing of his motion for new trial and
that if not actually tolled, it should be equitably tolled.
STANDARD OF REVIEW
[1,2] 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
affirmatively show that the defendant is entitled to no relief. 2
2
State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
Whether a claim raised in a postconviction proceeding is pro-
cedurally barred is a question of law which is reviewed inde-
pendently of the lower court’s ruling. 3
ANALYSIS
[3] The Nebraska Postconviction Act contains a 1-year time
limit for filing a verified motion for postconviction relief,
which runs from one of four triggering events or August 27,
2011, whichever is later. 4 The triggering event here is con-
tained in § 29-3001(4)(a): “The date the judgment of convic-
tion became final by the conclusion of a direct appeal or the
expiration of the time for filing a direct appeal.”
[4] 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 § 29-3001(4)(a). 5 Hill’s direct appeal
concluded when our mandate issued on February 6, 2018. His
motion for postconviction relief—filed on April 1, 2021—was
filed outside the 1-year limitation period.
In an attempt to escape the time bar, Hill now advances two
tolling arguments. He did not clearly raise these arguments in
the district court. To the extent that the timeline set forth in the
procedural background section of Hill’s motion for postcon-
viction relief was sufficient to preserve the issue for appellate
review, neither of his arguments has merit.
First, Hill contends that the limitations period was tolled
by the filing of his motion for new trial and subsequent dis-
position of that motion. His argument rests on the 21 days
remaining in the limitations period under § 29-3001(4) at the
time he filed his motion for new trial. Hill maintains that upon
the issuance of our mandate in 2021 concerning his motion
for new trial, he should have 21 days to file his motion for
3
Id.
4
State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).
5
State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
postconviction relief based upon tolling. And he points out that
he filed his motion for postconviction relief on the 20th day
following our mandate. But Hill cites no authority supporting
his request.
[5,6] In Nebraska, postconviction relief is strictly prescribed. 6
We have characterized it as “a special statutory proceeding that
permits collateral attack upon a criminal judgment” 7 and as “a
very narrow category of relief, available only to remedy preju-
dicial constitutional violations.” 8 The postconviction proceed-
ing is one “the Legislature intended to be limited in scope and
summary in nature.” 9 And because the U.S. Supreme Court 10
and this court 11 have recognized that states have no obligation
to provide postconviction relief proceedings, any right to such
relief is not grounded in the federal or state Constitution.
[7] A postconviction proceeding and a motion for new trial
based on newly discovered evidence are both collateral attacks
on a final criminal judgment. 12 But the Nebraska Postconviction
Act is the primary procedure for bringing collateral attacks on
final judgments in criminal cases based upon constitutional
principles. 13 If a defendant has a collateral attack that could be
asserted under the act, that act is his or her sole remedy. 14
The Legislature has not provided for the tolling of the
limitation period under § 29-3001(4). Extending the limita-
tion period until resolution of a different collateral attack on
6
State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
7
State v. Robertson, 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016).
8
Id. at 43, 881 N.W.2d at 876.
9
Id.
10
See Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d
539 (1987).
11
See, State v. Lotter, supra note 6; State v. Victor, 242 Neb. 306, 494
N.W.2d 565 (1993).
12
See State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).
13
State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014).
14
Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
a final judgment is inconsistent with the statutory language of
§ 29-3001(4) and with the summary nature of a postconvic-
tion proceeding. Just as we said with respect to recognizing a
common-law remedy for the purpose of asserting time-barred
postconviction claims, if we allowed the time to be tolled for
other collateral attacks “we would be undermining the purpose
of the Legislature in enacting § 29-3001(4).” 15
[8,9] Second, and alternatively, Hill argues that the limita-
tions period should be equitably tolled under the circumstances.
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. 16 Equitable tolling requires due
diligence on the part of the claimant. 17
Our cases applying the equitable tolling doctrine have
involved situations where a claimant was prevented from bring-
ing a timely claim due to the alleged actions of a court or gov-
ernmental entity. 18 Thus, we have stated that “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.” 19
We have not yet determined whether equitable tolling applies
to postconviction proceedings under § 29-3001, 20 and we need
not do so here. At the time Hill chose to file his motion for
new trial, nothing prevented him from filing his motion for
postconviction relief. We have stated that “a prisoner is not
deprived of the opportunity to bring a postconviction action if
15
Id. at 803, 851 N.W.2d at 670.
16
State v. Mata, supra note 2.
17
See State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018).
18
See id.
19
Id. at 399, 914 N.W.2d at 446.
20
See State v. Mata, supra note 2.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HILL
Cite as 310 Neb. 647
there is some time within the period of the 1-year limitation
that the prisoner could have filed a postconviction action.” 21
Hill provides no explanation for his failure to file for postcon-
viction relief in the 344 days between the issuance of our man-
date concluding his direct appeal and the filing of his motion
for new trial. Even if the doctrine of equitable tolling could
apply in a postconviction proceeding, the circumstances here
do not support its application.
CONCLUSION
Because Hill did not file his motion for postconviction relief
within the limitation period of § 29-3001(4) and he could have
done so, we affirm the order of the district court.
Affirmed.
Freudenberg, J., not participating.
21
State v. Huggins, 291 Neb. 443, 453, 866 N.W.2d 80, 87 (2015).