State v. Burries

310 Neb. 688

969 N.W.2d 96

STATE of Nebraska, Appellee,

v.Anthony L. BURRIES, Appellant.

No. S-20-551.

Supreme Court of Nebraska.

Filed January 14, 2022

Beau Finley, Omaha, of Law Offices of Beau Finley, P.C., L.L.O., for appellant.

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

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Harder, D.J.

Heavican, C.J.

INTRODUCTION

Anthony L. Burries’ motion for default judgment was denied, and his motions seeking postconviction relief were dismissed. He appeals. We affirm.

BACKGROUND

Burries was convicted of first degree murder and sentenced to life imprisonment in 2015. The underlying facts are available in this court's opinion on Burries’ direct appeal, in which we affirmed his conviction and sentence.¹

With the assistance of different counsel than at trial and on appeal, on August 23, 2018, Burries filed a motion for postconviction relief, alleging that trial and appellate counsel were ineffective in various ways. The State filed a motion to dismiss.

Though represented by counsel, on February 12, 2019, Burries filed his own pro se motion, styled as a "Motion for Postconviction Relief." A few months later, counsel filed a motion for leave to file a second amended motion for postconviction relief. A hearing was held on that motion on April 23, during which the motion for leave to file a second amended complaint was granted. Burries was instructed that because he was represented by counsel, he could not file any additional pro se motions. Still, on that same day, Burries filed a 655-page pro se filing, styled as a "Second Amended Motion for Postconviction Relief."

On July 1, 2019, Burries sought to remove counsel. He also filed various motions and a specific objection to his counsel's filing of a second amended motion for postconviction relief. Burries indicated that counsel had refused to include claims which Burries wanted to pursue and had failed to include certain exhibits in the second amended postconviction motion. The district court entered a briefing schedule and indicated that it would not address the motion to relieve counsel until counsel moved to withdraw.

Counsel then filed such a motion on September 9, 2019. That motion was granted on September 26. Burries filed a pro se motion for default judgment on October 29. The district court denied the motion for default judgment on January 23, 2020.

On March 11, 2020, the district court, noting that the various pleadings that had been filed had led to "some confusion as to what motion/pleading is currently pending before the Court," sought to "press the reset button." Accordingly, the district court entered an order granting Burries leave to file a third amended petition. Burries then filed several objections, indicating that he did not wish to file a third amended motion.

On July 22, 2020, the district court entered the following order:

The Court entered an Order on March 11, 2020[,] giving [Burries] leave to file a Third Amended Motion for Postconviction Relief within 30 days. [Burries] did not file a Third Amended Motion for Postconviction Relief and more than 30 days has passed.

IT IS THEREFORE ORDERED, [Burries’] Second Amended Motion for Postconviction Relief is overruled.

Burries, now represented by different counsel, appeals.

ASSIGNMENTS OF ERROR

Burries assigns that the district court erred in (1) denying Burries’ motion for default judgment, (2) not allowing Burries to be heard on his motion for default judgment, and (3) dismissing Burries’ second amended motion for postconviction relief.

STANDARD OF REVIEW

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.²

ANALYSIS

DEFAULT JUDGMENT

In his first and second assignments of error, Burries assigns that the district court erred in not giving him an opportunity to be heard with respect to his motion for default judgment, and then denying that motion. Burries’ position is that when the State failed to file a brief in response to his second amended motion for postconviction relief, the State effectively withdrew its motion to dismiss and conceded that he was entitled to relief. The State disagrees.

We were recently presented with a similar argument in State v. Britt .³ In that case, the defendant sought postconviction relief and argued that the State's failure to file a timely response entitled him to an entry of default judgment. We disagreed, noting that "the Nebraska Postconviction Act does not authorize the district court to grant postconviction relief without first conducting an evidentiary hearing and making findings of fact and conclusions of law" and that the "court was not empowered to award a default judgment."⁴ Accordingly, the Nebraska Postconviction Act does not authorize a district court to enter a default judgment.⁵

There is no merit to Burries’ first and second assignments of error with regard to the denial of his motion for default judgment.

MOTION FOR POSTCONVICTION RELIEF

In his third assignment of error, Burries assigns that the district court erred in dismissing his second amended motion for postconviction relief. On appeal, Burries focuses on the merits of that postconviction motion, while the State contends that the district court did not err in dismissing (1) because there was no basis to proceed on the second amendment petition, (2) because of Burries’ failure to file a third amended motion, and (3) because the second amended petition was not verified. As we explain below, we conclude that Burries’ failure to file a verified petition is a defect that supports the district court's dismissal. As such, we decline to reach the other arguments raised on appeal.

On appeal, the State argues that Burries’ operative second amended motion for postconviction relief was not verified and that the district court's dismissal should be affirmed on those grounds.

Neb. Rev. Stat. § 29-3001(1) (Reissue 2016) provides in relevant part that "[a] prisoner in custody under sentence and claiming a right to be released ... may file a verified motion ... stating the grounds relied upon and asking the court to vacate or set aside the sentence." Section 29-3001 does not define "verified," but the concept is discussed elsewhere in Nebraska law.

Until 1969, all pleadings filed in Nebraska were required to be verified.⁶ Historically, "verified," for the purpose of a pleading, has meant that the signer "believed the facts stated in the pleading to be true."⁷ Verification stands in contrast to "acknowledgment," which is "the act by which a party who has executed an instrument goes before a competent officer and declares or acknowledges the same as his or her genuine and voluntary act and deed."⁸ In other words, to "verify" a pleading is to say that the signer believes the facts contained therein are truthful and to "acknowledge" means that the signer of the pleading appears before a notary or other officer, who then confirms that the signer is who the signer purports to be.

We agree that verification of a motion filed under § 29-3001 is undisputedly required. In the normal course of civil procedure, the failure of a litigant to object to the lack of a verified petition waives any argument with respect to that lack of verification.⁹ However, we conclude that this usual rule is inapplicable in postconviction actions.

Section 29-3001 provides in relevant part:

Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, and determine the issues and make findings of fact and conclusions of law with respect thereto.

Under the terms of § 29-3001(1), certain "prisoner[s] in custody" have the ability to file a motion seeking postconviction relief. Upon the filing of that motion, the court has the obligation to determine whether the prisoner is entitled to no relief, in which case the motion is dismissed, or, alternatively, conclude that the defendant is entitled to a hearing to determine if he or she is entitled to relief.

If it is determined that a prisoner is entitled to a hearing, the court shall, under § 29-3001(2), "cause notice thereof to be served on the county attorney." Though the State, through its county attorneys, can, and often does, participate at earlier points in the process, the State is only called upon to take action with respect to a motion once it receives notice from the court. We decline to conclude that the State has the obligation to raise issues concerning a postconviction action at a time prior to that mandated by statute.

We observe that although Burries’ pro se second amended motion was not verified, earlier pleadings by Burries were verified. We further observe that we have case law which suggests the verification of earlier motions might be sufficient to comply with the statutory requirement of verification.¹⁰ But this position is not consistent with the general proposition, both in Nebraska law and more generally, that an amended pleading supersedes any original pleadings and that after amendment, the original pleading ceases to have any function.¹¹ To the extent that our decision in State v. Crawford¹² might suggest that an earlier verified motion is sufficient, it is disapproved.

The district court's reasoning for dismissal was not explicitly based upon lack of verification. But a correct result will not be set aside merely because the lower court applied the wrong reasoning in reaching that result.¹³ Burries’ defect in verification supports the district court's dismissal, and we find no merit to Burries’ third assignment of error; hence, we affirm.

CONCLUSION

The decision of the district court is affirmed.

AFFIRMED .

Freudenberg, J., not participating.

Miller-Lerman, J., concurring.

I concur in the result in this appeal, but I write separately because I believe...