State v. Huggins

866 N.W.2d 80

State of Nebraska, appellee

v.Keith M. Huggins, appellant.

No. S–14–297

Supreme Court of Nebraska.

Filed July 24, 2015

Keith M. Huggins, pro se.

Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller–Lerman, JJ.

Syllabus by the Court

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).

Miller–Lerman, J.

NATURE OF CASE

Keith M. Huggins appeals the order of the district court for Douglas County which dismissed his motion for postconviction relief without an evidentiary hearing on the basis that the motion was untimely under the 1–year limitation period set

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 certiorari 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 postconviction 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 sentenced Huggins to imprisonment for 40 to 40 years.

The Nebraska Court of Appeals affirmed Huggins' conviction 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:

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 filing 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 retroactively 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 postconviction 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 conclusion of [Huggins'] direct appeal.” The court concluded that Huggins' postconviction action was “barred by the time limitation provided for under the Nebraska Postconviction Act” and that therefore the motion “must be dismissed.”

On February 14, 2014, Huggins filed a motion to alter or amend the order in which the court dismissed his postconviction 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 federal 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 postconviction claims.

STANDARDS OF REVIEW

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, 716 N.W.2d 87 (2006). 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. Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).

ANALYSIS

We note as an initial matter that in State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (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

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 argument, and we conclude that the period of limitation began to run on the date the mandate was issued by the Nebraska appellate 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 “conclusion 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 ...