State v. Rush

31 Neb.App. 1

975 N.W.2d 541

STATE of Nebraska, appellee,

v.Clifford L. RUSH, appellant.

No. A-21-351.

Court of Appeals of Nebraska.

Filed May 10, 2022.

Clifford Rush, pro se.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

Clifford L. Rush, pro se, appeals from the order of the Lancaster County District Court denying his motion for postconviction relief without an evidentiary hearing. We affirm.

BACKGROUND

PLEA AND DIRECT APPEAL

On October 13, 2017, the State filed an information charging Rush with one count of terroristic threats, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-311.01 (Reissue 2016) ; one count of first degree false imprisonment, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-314 (Reissue 2016) ; two counts of use of a firearm to commit a felony, each a Class IC felony, pursuant to Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016); and one count of possession of a firearm by a prohibited person, a Class ID felony, pursuant to Neb. Rev. Stat. § 28-1206(1) (Reissue 2016). These charges stemmed from an incident that took place on August 7, during which a woman who had been living with Rush was threatened by Rush with a handgun in an apartment; the building and neighboring apartments had to be evacuated and a "SWAT team" called. The woman climbed out of a bathroom window, and Rush later voluntarily exited the apartment.

Rush was appointed trial counsel, and he entered a plea of not guilty with counsel present at his arraignment held on October 25, 2017. Shortly thereafter, Rush filed several motions on a pro se basis, and these motions were rejected by the district court in light of Rush's appointment of counsel.

Rush's trial counsel filed a motion to withdraw, and a hearing was held on this motion on November 21, 2017.

Rush's counsel advised that his trial schedule had caused difficulties in his attorney-client relationship with Rush. Rush alleged that he did not trust his trial counsel and demanded that he be allowed to proceed pro se. The district court found that there was not sufficient reason to discharge Rush's trial counsel, and the court proceeded to ask several questions to ascertain whether Rush was competent to represent himself and whether this decision was made knowingly, intelligently, and voluntarily. Due to Rush's frequent interruptions and outbursts during the course of the court's questioning, the court found that Rush was "absolutely not capable of representing [himself] because [he could not] even follow the Court's simplest of directions" in answering the court's questions. The court then overruled the motion to withdraw.

Pursuant to a plea agreement, the State filed an amended information charging Rush with one count of second degree assault, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-309 (Reissue 2016). At a hearing held on April 2, 2018, Rush pled no contest to this charge. After the State presented a factual basis, the district court accepted Rush's no contest plea and found him guilty of second degree assault. After a hearing on May 1, the court sentenced Rush to 18 to 20 years’ imprisonment.

Rush subsequently appealed his conviction and sentence. In case No. S-18-502, Rush claimed that (1) the district court erred in denying his trial counsel's motion to withdraw, (2) he received ineffective assistance of trial counsel, and (3) the district court imposed an excessive sentence. In a memorandum opinion filed on August 22, 2019, the Nebraska Supreme Court found no error by the district court and affirmed Rush's conviction and sentence. At the time of his direct appeal, Rush had retained different counsel than his trial counsel.

POSTCONVICTION

On July 20, 2020, Rush, pro se, filed a "Verified Motion for Postconviction Relief." Rush alleged that the Nebraska Supreme Court's memorandum opinion in case No. S-18-502 violated his rights (1) under the 6th Amendment to the U.S. Constitution when it affirmed the district court's denial of Rush's request to proceed pro se, (2) under the 5th and 14th Amendments to the U.S. Constitution when it affirmed the district court's denial of the motion to withdraw filed by Rush's trial counsel, and (3) under the 6th and 14th Amendments to the U.S. Constitution in finding that Rush did not receive ineffective assistance of trial counsel.

In its responsive motion, the State requested the district court to deny Rush's request for postconviction relief without an evidentiary hearing. The State argued that Rush's claims were all procedurally barred because such claims actually were or could have been litigated on direct appeal in case No. S-18-502. The State subsequently filed a motion to dismiss, alleging that Rush's motion for postconviction relief was not properly verified by Rush as required by Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).

On December 4, 2020, Rush filed a "Request for Recusal," requesting that the district court judge, who had also presided over Rush's criminal proceeding, recuse herself from ruling on Rush's postconviction motion. Rush later filed an "Amendment to Request for Recusal" on December 30. Rush alleged that the district court judge "displayed a personal interest in the outcome of the trial, when ... she chose to allow [Rush's trial counsel] to represent him" despite the "toxic relationship ... between counsel and [Rush]," and he asserted the district court judge's denial of "his constitutional rights to effective assistance of counsel, conflict free counsel, and ... a fair trial ... justifies recusal."

A hearing was held on January 19, 2021, regarding the parties’ motions. The district court overruled Rush's request for recusal, and the State orally withdrew its motion to dismiss regarding Rush's failure to properly verify his motion for postconviction relief.

In its order entered on April 22, 2021, the district court denied Rush's motion for postconviction relief without an evidentiary hearing. The court found that Rush's motion raised the "exact same issues he raised unsuccessfully on appeal to the Nebraska Supreme Court," and these claims were therefore procedurally barred.

Rush appeals.

ASSIGNMENTS OF ERROR

Rush claims the district court (1) abused its discretion in denying his request for recusal and (2) erred in dismissing his motion for postconviction relief without an evidentiary hearing.

STANDARD OF REVIEW

A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

State v. Buttercase , 296 Neb. 304, 893 N.W.2d 430 (2017).

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. State v. Hessler , 305 Neb. 451, 940 N.W.2d 836 (2020).

ANALYSIS

VERIFICATION OF RUSH'S MOTION FOR POSTCONVICTION RELIEF

As a preliminary matter, the State's brief on appeal raises the issue of Rush's motion for postconviction relief not being properly verified. The record indicates that the State initially filed a motion to dismiss Rush's motion for postconviction relief because it was "not properly verified" by Rush. The State's motion claimed that the last name of the signature of the notary public did not match the printed last name on the notary's stamp. (We observe that upon first glance of the notary public's signature, the last name could be read as something different than the notary public's official stamp; however, upon closer examination, it could certainly be the same name.) The State orally withdrew its motion at the hearing held on January 19, 2021, at which time the district court informed Rush that the State "conceded" his postconviction petition "was sworn to properly" and that the State realized its argument "wasn't a good argument, so [it] gave up on that one."

The State now argues that Rush's postconviction motion "does not contain a verification section, nor is it supported by an accompanying affidavit verifying the motion." Brief for appellee at 8. In its brief on appeal, the State suggested that a case pending before the Nebraska Supreme Court could be dispositive of this appeal.

The case referenced by the State in its brief to this court was State v. Burries , 310 Neb. 688, 969 N.W.2d 96 (2022) ; the opinion was released after briefing in this case and likewise involved a postconviction appeal with an alleged deficient verification. Regarding what it means for a motion for postconviction relief to be "verified," the Nebraska Supreme Court observed:

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. Historically, "verified," for the purpose of a pleading, has meant that the signer "believed the facts stated in the pleading to be true." 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." 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

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