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04/07/2016 12:12 PM CDT




                                                        - 536 -
                               Decisions of the Nebraska Court of A ppeals
                                     23 Nebraska A ppellate R eports
                                                   STATE v. DAVIS
                                               Cite as 23 Neb. App. 536




                                        State of Nebraska, appellee, v.
                                          Perry D. Davis, appellant.
                                                    ___ N.W.2d ___

                                        Filed January 26, 2016.   No. A-14-583.

                1.	 Postconviction: Right to Counsel. There is no federal or state constitu-
                    tional right to an attorney in state postconviction proceedings.
                2.	 Constitutional Law: Postconviction: Right to Counsel. The rule that
                    when counsel is court appointed, the defendant does not have a consti-
                    tutional right to counsel of his or her choice, is equally applicable when
                    counsel is appointed in postconviction cases.
                3.	 Postconviction: Proof: Appeal and Error. In postconviction appeals,
                    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.
                4.	 Postconviction: Appeal and Error. An appellate court will not enter-
                    tain a successive motion for postconviction relief unless the motion
                    affirmatively shows on its face that the basis relied upon for relief was
                    not available at the time the movant filed the prior motion.
                5.	 Motions for New Trial: Evidence: Proof. One moving for new trial on
                    the basis of newly discovered evidence must show that the evidence was
                    uncovered since the trial, that the evidence was not equally available
                    before the trial, and that the evidence was not simply discovered by the
                    exercise of belated diligence.
                6.	 Judgments: Proof: Appeal and Error. One seeking a writ of error
                    coram nobis has the burden to prove entitlement to such relief, and
                    the findings of the district court will not be disturbed unless they are
                    clearly erroneous.
                7.	 Judgments: Evidence: Appeal and Error. The purpose of the writ
                    of error coram nobis is to bring before the court rendering judgment
                    matters of fact which, if known at the time the judgment was rendered,
                    would have prevented its rendition. It enables the court to recall some
                    adjudication that was made while some fact existed which would have
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           Decisions of the Nebraska Court of A ppeals
                 23 Nebraska A ppellate R eports
                               STATE v. DAVIS
                           Cite as 23 Neb. App. 536

     prevented rendition of the judgment but which, through no fault of the
     party, was not presented.
 8.	 Convictions: Proof: Appeal and Error. The burden of proof in a
     proceeding to obtain a writ of error coram nobis is upon the plaintiff,
     and the alleged error of fact must be such as would have prevented a
     conviction; it is not enough to show that it might have caused a differ-
     ent result.
 9.	 Judgments: Appeal and Error. The writ of error coram nobis is not
     available to correct errors of law such as claims of errors or misconduct
     at trial and ineffective assistance of counsel.
10.	 ____: ____. The use of coram nobis is limited because not only are all
     errors of law excluded, but also because all errors of fact which were,
     could have been, or should have been reviewed using any statutory rem-
     edy are likewise excluded.
11.	 Criminal Law: Statutes. Criminal procedures are unavailable in a
     criminal proceeding where they are not authorized by statute.

   Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed.
   Perry D. Davis, pro se.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
   Moore, Chief Judge, and Inbody and Bishop, Judges.
   Inbody, Judge.
                       INTRODUCTION
   Perry D. Davis appeals from the April 28, 2014, order of
the Sheridan County District Court denying his request for
appointment of substitute counsel, his motion to submit newly
discovered evidence, his writ of error coram nobis, and any
postconviction relief sought, as well as dismissing “all filings
and motions currently pending.”
               PROCEDURAL BACKGROUND
  In September 2007, a jury convicted Davis of first degree
sexual assault, a Class II felony, and sexual assault of a child,
a Class IV felony at the time. State v. Davis, 277 Neb. 161,
762 N.W.2d 287 (2009). In March 2008, he was sentenced to
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                           STATE v. DAVIS
                       Cite as 23 Neb. App. 536

20 to 30 years’ imprisonment on the former conviction and 4
to 5 years’ imprisonment on the latter conviction. Id. Davis
was represented by one attorney during trial and another attor-
ney for sentencing and his direct appeal. On direct appeal,
Davis alleged that the evidence was insufficient to support his
convictions and that the sentences imposed were excessive. Id.
Davis’ convictions were affirmed by the Nebraska Supreme
Court; however, due to changes in the felony sentencing stat-
utes during the relevant time period, the court modified the
Class IV felony sentence from 4 to 5 years’ imprisonment to a
term of 20 months’ to 5 years’ imprisonment. Id.
   In February 2010, Davis filed a motion for postconviction
relief, alleging various ways in which his trial and appel-
late counsel were ineffective and that there was prosecuto-
rial misconduct during trial. That same day, Davis filed a
motion to amend, in which he sought to expand his claims
of ineffective assistance of counsel and also alleged that his
trial counsel, along with the prosecutor and the court, con-
spired against him to fabricate the existence of a preliminary
hearing. In November 2010, the district court denied Davis’
motion without an evidentiary hearing or appointment of
counsel. We affirmed the denial of his first motion for post-
conviction relief by memorandum opinion. State v. Davis, No.
A-10-1212, 2012 WL 1869203 (Neb. App. May 22, 2012)
(selected for posting to court Web site). We noted that because
Davis was represented by different counsel on direct appeal,
the only issue raised in his motion for postconviction relief
which was not procedurally barred was his allegation of inef-
fective assist­ance of appellate counsel, and that this allegation
was without merit. See id. Davis’ other allegations, including
ineffective assistance of trial counsel, violation of his right to
due process, violation of his right against self-incrimination,
and violation of his right to a fair trial, could have been raised
on direct appeal and were procedurally barred. Id. Davis filed
a motion for rehearing and a petition for further review, both
of which were denied.
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                          STATE v. DAVIS
                      Cite as 23 Neb. App. 536

   On August 17, 2012, Davis filed a “First Amended Verified
Motion; or Second Verified Motion for Postconviction Relief
and Incorporated Memorandum Brief.” Three days later, the
State filed a motion to dismiss without a hearing or the
appointment of counsel.
   In August 2012, Davis filed a “Request for Investigation;
Motion for Rehearing on Defendant’s Filed Motion to Take
Judicial Notice of Postconviction Supplemental Pleadings
That Were Not Ruled on and Remain Open; Motion to Amend
Postconviction Motion Was Not Ruled on and Remain[s]
Open; Proffered Evidence Was Not Ruled on and Remain[s]
Open.” A hearing was held on July 19, 2013, to address
motions filed by Davis. During the course of this hearing, it
was brought to the court’s attention that the motion to submit
newly discovered evidence previously filed by Davis had
never been heard, so the court appointed counsel to assist
Davis for purposes of the hearing on that motion. During the
hearing, the State also informed the court that Davis’ motion
for postconviction relief filed in August 2012 had not been
ruled upon. Finally, on the date of the hearing, Davis had filed
an application for writ of error coram nobis. The court delayed
ruling on these motions and told Davis that he would have an
opportunity to discuss with his court-appointed attorney the
best way to proceed.
   Despite having an attorney appointed to represent him at
the July 19, 2013, hearing, Davis continued to file numer-
ous pleadings. On July 24, Davis filed a “Complaint and
Objection and Motion to Alter or Amend Judgments,” and
in August, he filed an “Objection and Motion to Alter or
Amend Judgment.” In September, he filed a “Complaint and
Motion Against Court Appointed Attorney.” In October, he
filed an “Objection to Deposition and Demand for Review of
Deposition” and a “Motion to Amend Objection to Deposition
and Demand for Review of Deposition,” in which he objected
to the deposition which had been taken of him by his
own attorney.
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                          STATE v. DAVIS
                      Cite as 23 Neb. App. 536

   Davis’ prolific filing of motions continued in 2014, with
him filing motions including a “Complaint and Motion for
Hearing and Motion for Continuance” and a “Motion to Alter
or Amend Judgment; Motion to Appoint New Counsel and
Incorporated Evidence in Support Therof [sic]; Motion for
Continuance; Motion for Hearing” in January; a “Motion to
Submit Evidence in Support of Motion to Alter or Amend
Judgment, Motion to Appoint New Counsel and Incorporated
Evidence in Support Therof [sic], Motion for Continuance and
Motion for Hearing” and a “Motion to Submit More Evidence
in Support of Motion to Alter or Amend Judgment and Motion
to Appoint New Counsel” in February; and a “Motion to
Submit More Evidence in Support of Motion to Appiont [sic]
New Counsel and in Support of Objection to Deposition;
Objection to Deposition and Motion to Amend Deposition;
Motion for Hearing” in March.
   On February 28, 2014, a hearing was held on Davis’ motion
to appoint new counsel. The court denied this request in
an order filed on April 28. In this order, the court also dis-
missed “all filings and motions currently pending.” The court
noted that none of the alleged “newly discovered evidence”
was actually newly discovered; Davis’ complaint that his son
was not called to testify by trial counsel should have been
raised previously and was procedurally barred because the
witness was available at the time of trial, but simply was not
called as a witness. The court similarly denied Davis’ writ
of error coram nobis, stating that there were no matters of
fact unknown to Davis that would have changed the result
in this case and that there was no basis in law or fact to his
writ of error coram nobis. Finally, the court stated that to the
extent that Davis sought postconviction relief, his request was
denied. On May 6, Davis filed a motion to alter or amend the
judgment, which was denied on June 5. Additionally, a motion
to submit amended deposition of the defendant which Davis
had filed in April was also denied. Davis filed his notice of
appeal on June 30.
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                          STATE v. DAVIS
                      Cite as 23 Neb. App. 536

                ASSIGNMENTS OF ERROR
   Davis’ claims on appeal can be consolidated and restated
into the following assignments of error: The district court
erred in denying (1) his request for appointment of replace-
ment counsel, (2) his motion for postconviction relief, (3) his
motion to submit newly discovered evidence, and (4) his writ
of error coram nobis, as well as in (5) dismissing “all filings
and motions currently pending.”
                           ANALYSIS
Appointment of Replacement Counsel.
   Davis contends that the district court erred in denying his
request for appointment of replacement counsel.
   [1,2] Under the Nebraska Postconviction Act, Neb. Rev.
Stat. §§ 29-3001 through 29-3004 (Reissue 2008 & Cum.
Supp. 2014), it is within the discretion of the trial court as to
whether counsel shall be appointed to represent the defendant.
See, State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005);
State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
There is no federal or state constitutional right to an attorney
in state postconviction proceedings. State v. Wetherell, 289
Neb. 312, 855 N.W.2d 359 (2014); State v. McGhee, 280 Neb.
558, 787 N.W.2d 700 (2010). Further, we find the rule that
when counsel is court appointed, the defendant does not have
a constitutional right to counsel of his or her choice, to be
equally applicable when counsel is appointed in postconvic-
tion cases. See, State v. Schlund, 249 Neb. 173, 542 N.W.2d
421 (1996) (order disqualifying public defender did not affect
substantial right of defendant, and thus was not final, appeal-
able order that created appellate jurisdiction; when counsel is
court appointed, defendant does not have constitutional right
to counsel of his or her choice); State v. Davis, 6 Neb. App.
790, 577 N.W.2d 763 (1998) (district court properly decided
that trial court’s failure to appoint defendant substitute trial
counsel did not afford grounds for postconviction relief). The
district court found that the breakdown in the attorney-client
relationship was primarily the result of Davis’ refusal to work
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                          STATE v. DAVIS
                      Cite as 23 Neb. App. 536

with counsel. The court did not err in denying Davis’ request
for appointment of replacement counsel.
Motion for Postconviction Relief.
   Davis contends that the district court erred in denying his
motion for postconviction relief. Davis filed his first motion
for postconviction relief in February 2010, which was denied
by the district court. This denial was affirmed by this court by
memorandum opinion. State v. Davis, No. A-10-1212, 2012
WL 1869203 (Neb. App. May 22, 2012) (selected for posting
to court Web site).
   [3,4] In postconviction appeals, a defendant requesting post-
conviction relief must establish the basis for such relief, and
the findings of the district court will not be disturbed unless
they are clearly erroneous. State v. Diaz, 283 Neb. 414, 808
N.W.2d 891 (2012); State v. Lee, 282 Neb. 652, 807 N.W.2d
96 (2011). An appellate court will not entertain a successive
motion for postconviction relief unless the motion affirma-
tively shows on its face that the basis relied upon for relief
was not available at the time the movant filed the prior motion.
State v. Wetherell, supra; State v. Watkins, 284 Neb. 742, 825
N.W.2d 403 (2012). Davis’ second motion for postconviction
relief does not affirmatively show on its face that his claims
for relief were not available at the time he filed his first
motion for postconviction relief, and as such, it is procedurally
barred. Thus, the district court did not err in denying Davis’
request for postconviction relief.
Motion to Submit Newly Discovered Evidence.
   Davis contends that the district court erred in denying his
request to submit newly discovered evidence.
   [5] A new trial can be granted on various grounds materi-
ally affecting the substantial rights of the defendant, including
“newly discovered evidence material for the defendant which
he or she could not with reasonable diligence have discov-
ered and produced at the trial.” Neb. Rev. Stat. § 29-2101(5)
(Reissue 2008). One moving for new trial on the basis of newly
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                          STATE v. DAVIS
                      Cite as 23 Neb. App. 536

discovered evidence must show that the evidence was uncov-
ered since the trial, that the evidence was not equally available
before the trial, and that the evidence was not simply discov-
ered by the exercise of belated diligence. State v. Van, 268 Neb.
814, 688 N.W.2d 600 (2004); State v. Jackson, 264 Neb. 420,
648 N.W.2d 282 (2002).
   The district court noted that none of the alleged “newly
discovered evidence” was actually newly discovered; Davis’
complaint that his son was not called to testify by trial coun-
sel should have been raised previously and was procedurally
barred. Further, the court noted that the testimony was not
newly discovered; the witness was available at the time of trial,
but simply was not called as a witness. It is clear that Davis’
evidence was not “newly discovered,” and the district court
properly denied his request.
Writ of Error Coram Nobis.
   Davis also contends that the district court erred in denying
his writ of error coram nobis.
   [6] One seeking a writ of error coram nobis has the burden
to prove entitlement to such relief, and the findings of the dis-
trict court will not be disturbed unless they are clearly errone-
ous. State v. Diaz, supra.
   [7,8] The purpose of the writ of error coram nobis is to bring
before the court rendering judgment matters of fact which, if
known at the time the judgment was rendered, would have
prevented its rendition. State v. Sandoval, 288 Neb. 754, 851
N.W.2d 656 (2014). It enables the court to recall some adju-
dication that was made while some fact existed which would
have prevented rendition of the judgment but which, through
no fault of the party, was not presented. State v. El-Tabech,
259 Neb. 509, 610 N.W.2d 737 (2000). The burden of proof in
a proceeding to obtain a writ of error coram nobis is upon the
plaintiff, and the alleged error of fact must be such as would
have prevented a conviction; it is not enough to show that it
might have caused a different result. Id.
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                           STATE v. DAVIS
                       Cite as 23 Neb. App. 536

   [9,10] The writ of error coram nobis is not available to cor-
rect errors of law such as claims of errors or misconduct at trial
and ineffective assistance of counsel. State v. Hessler, 288 Neb.
670, 850 N.W.2d 777 (2014). Further, the use of coram nobis
is limited because not only are all errors of law excluded, but
also because all errors of fact which were, could have been,
or should have been reviewed using any statutory remedy are
likewise excluded. State v. El-Tabech, supra.
   The district court denied Davis’ writ of error coram nobis,
finding that there were no matters of fact unknown to Davis
that would have changed the result in his case and that there
was “absolutely no basis in law or fact” to Davis’ writ of error
coram nobis. Davis’ writ complains about a conspiracy to cir-
cumvent justice in his case and commit fraud upon the court.
None of Davis’ complaints are facts that would have prevented
judgment in his case. The district court properly denied Davis’
writ of error coram nobis.
Dismissal of “All Filings and
Motions Currently Pending.”
   [11] Finally, Davis contends that the district court erred
in dismissing all his filings and motions currently pending.
Because criminal procedures are unavailable in a criminal pro-
ceeding where they are not authorized by statute, the district
court did not err in dismissing Davis’ remaining filings and
motions on file. See State v. Rodriguez-Torres, 275 Neb. 363,
746 N.W.2d 686 (2008).
                        CONCLUSION
   Having considered Davis’ assignments of error, as con-
solidated and restated by this court, we find them to be with-
out merit. The decision of the district court is affirmed in
its entirety.
                                                   A ffirmed.
