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09/11/2018 08:08 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                    STATE v. LINER
                                                Cite as 26 Neb. App. 303




                                        State of Nebraska, appellee, v.
                                           Dan M. Liner, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 11, 2018.   No. A-17-778.

                1.	 Postconviction: Proof: Appeal and Error. A defendant requesting
                    postconviction relief must establish the basis for such relief, and the
                    findings of the district court will not be disturbed unless they are clearly
                    erroneous.
                2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion of law, for which an appellate court has an obligation to reach an
                    independent conclusion irrespective of the determination made by the
                    court below.
                3.	 Postconviction: Limitations of Actions: Words and Phrases: Appeal
                    and Error. For purposes of Neb. Rev. Stat. § 29‑3001(4)(a) (Reissue
                    2016), the “conclusion of a direct appeal” occurs when a Nebraska
                    appellate court issues the mandate in the direct appeal.
                4.	 Rules of the Supreme Court: Postconviction. Postconviction pro-
                    ceedings are not governed by the Nebraska Court Rules of Pleading in
                    Civil Cases.
                5.	 Actions: Pleadings. A cause of action pleaded by amendment ordinarily
                    relates back to the original pleading, provided that claimant seeks recov-
                    ery on the same general set of facts.

                  Appeal from the District Court for Buffalo County: William
               T. Wright, Judge. Affirmed.
                    Dan M. Liner, pro se.
                  Douglas J. Peterson, Attorney General, and Erin E. Tangeman
               for appellee.
                    Pirtle, R iedmann, and Welch, Judges.
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              26 Nebraska A ppellate R eports
                          STATE v. LINER
                      Cite as 26 Neb. App. 303

  R iedmann, Judge.
                    INTRODUCTION
  Dan M. Liner appeals the order of the district court for
Buffalo County which denied him postconviction relief.
Because his amended motion for postconviction relief is time
barred, we affirm.

                         BACKGROUND
   Liner was charged in November 2013 with various drug and
weapons offenses. In September 2014, he filed motions to dis-
charge the charges on speedy trial grounds. The district court
denied the motions to discharge, and Liner appealed to this
court, which appeals were docketed as cases Nos. A‑14‑819
and A‑14‑820. On March 24, 2015, we affirmed in a memo-
randum opinion, and on April 28, a mandate was issued in
each case. Thereafter, Liner entered a no contest plea to one
count of possession of a deadly weapon by a prohibited person
and stipulated to being a habitual criminal. He was sentenced
to 15 to 20 years’ imprisonment. Liner appealed, assigning
only that he received an excessive sentence, which appeal was
docketed as case No. A‑15‑771. This court summarily affirmed
the sentence on January 8, 2016, and issued its mandate on
February 18.
   On December 1, 2016, Liner filed a pro se verified motion
for postconviction relief. His motion contained nine grounds
for relief. Specifically, he alleged that (1) his plea of no con-
test was entered unintelligently because the State failed to
adequately advise him on the record of the maximum penalty,
(2) the district court lacked jurisdiction to accept his plea
when it also failed to properly advise him of the maximum
penalty, (3) the district court failed to advise him on the
record of the maximum term of incarceration he would be
required to serve before obtaining mandatory release, (4) the
district court lacked subject matter jurisdiction to sentence
him for the reasons previously set forth, (5) trial counsel was
ineffective in failing to alert the court of the State’s failure
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               26 Nebraska A ppellate R eports
                           STATE v. LINER
                       Cite as 26 Neb. App. 303

to adequately advise him of the maximum penalty, (6) trial
counsel was ineffective in failing to object to the court’s fail-
ure to advise him of the maximum term he must serve before
mandatory release, (7) trial counsel was ineffective in failing
to object to the impermissible sentence imposed by the court
for the reasons previously set forth, (8) trial counsel was inef-
fective in failing to object to each claim set forth in the post-
conviction motion, and (9) appellate counsel was ineffective
in failing to raise on direct appeal the claims set forth in the
postconviction motion.
   On March 1, 2017, Liner moved for leave to file an amended
motion for postconviction relief. The district court granted
leave to amend, and Liner filed an amended motion on April
19. The amended motion included only one ground for relief:
Appellate counsel was ineffective in failing to raise on direct
appeal that trial counsel was ineffective in failing to file a sec-
ond motion for discharge on speedy trial grounds. The State
filed a motion to dismiss the amended motion, alleging, as
relevant here, that the amended motion was filed outside the
limitation period set forth in the Nebraska Postconviction Act,
Neb. Rev. Stat. § 29‑3001 et seq. (Reissue 2016).
   The district court held a hearing on the amended motion
and corresponding request for an evidentiary hearing, the
State’s motion to dismiss, and Liner’s objections to the motion
to dismiss. The court subsequently entered an order, which
purported to both grant the motion to dismiss and deny the
amended motion for postconviction relief. The court first deter-
mined that the sole issue raised in the amended motion was
raised or could have been raised in the course of the inter-
locutory appeal Liner filed in September 2014 after the court
denied his motion for discharge. Additionally, the court found
that because Liner’s conviction was plea based, he waived
many of his rights, including his right to complain about
errors at the plea and sentencing hearing. Finally, the court
concluded that the amended motion for postconviction relief
did not relate back to the original motion because it raised an
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                           STATE v. LINER
                       Cite as 26 Neb. App. 303

entirely different issue and that therefore, because it had been
filed more than 1 year after the conviction became final, it was
untimely. Liner appeals.

                  ASSIGNMENT OF ERROR
   Liner assigns, restated, that the district court erred in deny-
ing his motion for postconviction relief without holding an
evidentiary hearing.

                  STANDARD OF REVIEW
   [1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
   [2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Goynes, 293 Neb. 288, 876 N.W.2d
912 (2016).

                           ANALYSIS
   The district court’s order addressed the timeliness of the
amended motion as raised in the State’s motion to dismiss
and the merits of the postconviction motion and purported to
both (1) grant the motion to dismiss, thereby dismissing the
amended motion, and (2) deny the amended postconviction
motion on its merits. Despite the irregular procedural posture
of the matter, we conclude that the district court did not err in
granting the motion to dismiss. We therefore do not address the
merits of the amended motion for postconviction relief.
   [3] Section 29‑3001(4) provides that a 1‑year period of
limitation shall apply to the filing of a verified motion for post-
conviction relief. As applicable in this case, the 1‑year limita-
tion period shall run from the date the judgment of conviction
became final by the conclusion of a direct appeal or the expira-
tion of the time for filing a direct appeal. See § 29‑3001(4)(a).
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              26 Nebraska A ppellate R eports
                          STATE v. LINER
                      Cite as 26 Neb. App. 303

For purposes of § 29‑3001(4)(a), the “conclusion of a direct
appeal” occurs when a Nebraska appellate court issues the
mandate in the direct appeal. State v. Huggins, 291 Neb. 443,
866 N.W.2d 80 (2015).
   This court’s mandate in Liner’s direct appeal was issued on
February 18, 2016. Therefore, his original motion for post-
conviction relief filed on December 1 was filed within the
1‑year limitation period, but the amended motion filed April
19, 2017, was untimely unless it related back to the filing of
the original motion.
   [4] The common‑law doctrine of relation back was codi-
fied in Neb. Rev. Stat. § 25‑201.02 (Reissue 2016). See John
P. Lenich, Nebraska Civil Procedure § 15:8 (2018). Section
25‑201.02 provides that an amendment of a pleading that does
not change the party or the name of the party against whom
the claim is asserted relates back to the date of the original
pleading if the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading.
Our review of Nebraska case law does not reveal an instance
where the relation‑back doctrine has been applied in a post-
conviction proceeding. And we recognize that the Nebraska
Supreme Court has clarified that postconviction proceedings
are not governed by the Nebraska Court Rules of Pleading in
Civil Cases. See State v. Robertson, 294 Neb. 29, 881 N.W.2d
864 (2016). Whether the relation‑back doctrine, codified in
§ 25‑201.02, constitutes a rule of pleading is an issue we need
not decide because we conclude that Liner’s amended motion
did not relate back to the original motion and was there-
fore untimely.
   [5] A cause of action pleaded by amendment ordinarily
relates back to the original pleading, provided that claimant
seeks recovery on the same general set of facts. Forker Solar,
Inc. v. Knoblauch, 224 Neb. 143, 396 N.W.2d 273 (1986). The
theory of recovery is not itself a cause of action; therefore, if
the general facts upon which the right to recover is based are
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              26 Nebraska A ppellate R eports
                          STATE v. LINER
                      Cite as 26 Neb. App. 303

the same, the amendment relates back to the original plead-
ing. Id.
   The federal courts have rejected the broad argument that
an amended postconviction claim related back to the original
claim if it stemmed from the same trial, conviction, or sen-
tence; rather, the Eighth Circuit relied upon the U.S. Supreme
Court’s holding in Mayle v. Felix, 545 U.S. 644, 125 S. Ct.
2562, 162 L. Ed. 2d 582 (2005), that in order for claims
in an amended motion to relate back, they must be of the
same time and type as those in the original motion, such that
they arise from the same core set of operative facts. U.S. v.
Hernandez, 436 F.3d 851 (8th Cir. 2006). See, also, Dodd v.
U.S., 614 F.3d 512 (8th Cir. 2010) (facts alleged must be spe-
cific enough to put opposing party on notice of factual basis
for claim, and thus, it is not enough that both original motion
and amended motion allege ineffective assistance of counsel
during trial).
   Applying the applicable definitions and rejecting a broader
interpretation of the relation‑back doctrine, the Eighth Circuit
in U.S. v. Hernandez, supra, determined that the amended
ineffective assistance claim did not relate back to the original
claim because the original claim referred to the admission of
evidence, whereas the amended claim referred to trial tes-
timony and cross‑examination of witnesses. Thus, the facts
alleged in the original claim were not such that would put the
opposition on notice that cross‑examination of witnesses was
at issue, and the claims were not similar enough to satisfy the
“‘time and type’” test, nor did they arise out of the same set
of operative facts. Id. at 858.
   Likewise, in the instant case, the ineffective assistance of
counsel claim raised in the amended motion is not based on
the same set of facts as the claims contained in the original
motion. The original claims related to entry of the plea and
sentencing matters, whereas the amended claim related to
Liner’s right to a speedy trial, which occurred prior to the time
he entered a plea. We cannot find that these claims are based
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               26 Nebraska A ppellate R eports
                           STATE v. LINER
                       Cite as 26 Neb. App. 303

on the same general facts such that the amended motion relates
back to the filing of the original motion. Accordingly, the
amended motion was filed outside the 1‑year limitation period
set forth in § 29‑3001(4)(a). The district court, therefore, did
not err in granting the State’s motion to dismiss the amended
motion as untimely.
                       CONCLUSION
   We conclude that the district court did not err in granting the
State’s motion to dismiss. We therefore affirm.
                                                      A ffirmed.
