Summary
The Nebraska Supreme Court affirmed dismissal of Coty J. Conn’s motion for postconviction relief as untimely under Neb. Rev. Stat. § 29-3001(4). The court held that the limitations period began when the time for filing a direct appeal expired, that Conn’s alternative timeliness argument was not preserved, and that equitable tolling was unsupported on the facts presented.
Topics
Practice areas
Questions Presented
- Whether Conn's postconviction motion was timely under Neb. Rev. Stat. § 29-3001(4)(a) when filed more than one year after the expiration of the time for filing a direct appeal.
- Whether Conn preserved an argument that the motion was timely under § 29-3001(4)(b).
- Whether equitable tolling could render Conn's postconviction motion timely based on counsel's failure to file a requested appeal, Conn's lack of legal training, and his imprisonment.
- Whether the district court's appointment of postconviction counsel impliedly established that Conn's motion was timely.
Holdings
- For purposes of Nebraska's one-year postconviction limitations period, when no direct appeal is filed, the period begins upon expiration of the statutory time for filing the direct appeal; the time for seeking a writ of certiorari is not added. Conn's limitations period began on February 27, 2012, and his May 28, 2013, motion was untimely.
- Conn's argument that his motion was timely under § 29-3001(4)(b) was not preserved because he did not present that argument to the district court when litigating the State's limitations defense.
- Conn's allegations did not establish equitable tolling and did not require the court to decide whether equitable tolling can apply to Nebraska's postconviction limitations period.
- The district court's appointment of postconviction counsel did not constitute a finding that Conn's motion was timely.
Key quotations
“Based on the plain language of §§ 25-1912 and 29-3001(4)(a), the 1-year limitations period began to run on February 27, 2012.” (397)
“Once the timeliness of Conn’s postconviction motion was challenged and a hearing was held on the issue, Conn had to raise all applicable arguments to the district court if he wanted to preserve them for appellate review.” (398)
Factual background
In November 2011, Conn pleaded no contest to attempted assault on an officer and admitted habitual-criminal status as part of a plea agreement involving four cases. He was sentenced on January 27, 2012, to 20 to 35 years' imprisonment, and no direct appeal was filed. Conn filed a postconviction motion on May 28, 2013, alleging that trial counsel failed to file a direct appeal despite Conn's requests. The district court dismissed the motion as untimely under the one-year postconviction limitations period.
Procedural history
Conn pleaded no contest and was sentenced in January 2012; no direct appeal was filed. He filed a postconviction motion on May 28, 2013, alleging ineffective assistance for counsel's failure to file a requested direct appeal. After a hearing on the State's limitations defense, the district court dismissed the motion as time barred. The Nebraska Supreme Court moved the appeal to its docket on its own motion and affirmed.