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12/22/2017 09:11 AM CST




                                                         - 432 -
                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                  BUGGS v. FRAKES
                                                  Cite as 298 Neb. 432




                             M arvin E. Buggs, appellant, v. Scott Frakes,
                                  director, Nebraska Department of
                                   Correctional Services, appellee.
                                                    ___ N.W.2d ___

                                        Filed December 15, 2017.   No. S-16-1015.

                1.	 Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
                    tion, an appellate court reviews the trial court’s factual findings for clear
                    error and its conclusions of law de novo.
                2.	 Actions: Habeas Corpus: Pleadings. It is the duty of the court on pre-
                    sentation of a petition for a writ of habeas corpus to examine it, and if
                    it fails to state a cause of action, the court must enter an order denying
                    the writ.

                  Appeal from the District Court for Lancaster County: Susan
               I. Strong, Judge. Reversed and remanded with instructions.
                    Marvin E. Buggs, pro se.
                  Douglas J. Peterson, Attorney General, and David A. Lopez
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
               Funke, JJ.
                    Heavican, C.J.
                                    INTRODUCTION
                  Marvin E. Buggs filed a petition for a writ of habeas corpus
               and a motion seeking the postponement of fees. His motion
               to postpone fees was denied, with the district court finding
               the underlying petition frivolous. We reverse, and remand
               with instructions.
                                    - 433 -
               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              BUGGS v. FRAKES
                              Cite as 298 Neb. 432

                  FACTUAL BACKGROUND
   Buggs was convicted in 2001 of second degree forgery with
a habitual criminal enhancement, and manslaughter. He was
sentenced to 10 years’ imprisonment for forgery based on the
enhancement, and a consecutive sentence of 20 to 20 years’
imprisonment for manslaughter. Both his mandatory release
date and his parole eligibility date have been calculated for the
same date in June 2021.
   On August 31, 2016, Buggs filed a motion for postponement
of fees in the district court, citing as authority Neb. Rev. Stat.
§ 29-2824 (Reissue 2016). At that time, Buggs also apparently
presented the district court clerk with a petition for a writ of
habeas corpus. It not clear from our record whether that peti-
tion was filed or whether it is being held in abeyance pending
disposition of the motion to postpone.
   In any event, the district court treated the motion to post-
pone fees as a request to proceed in forma pauperis (IFP) and
denied the request, finding that Buggs’ underlying petition for
a writ of habeas corpus was frivolous. Buggs appeals.
                 ASSIGNMENTS OF ERROR
   Buggs assigns that the district court erred in (1) treating his
motion to postpone fees as a motion for IFP status and apply-
ing IFP standards to that motion and (2) finding his petition
for a writ of habeas corpus frivolous.
                   STANDARD OF REVIEW
   [1] On appeal of a habeas corpus petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo.1
                         ANALYSIS
   On appeal, Buggs argues that the district court erred in
treating his motion for postponement of fees as a motion to
proceed IFP. We agree.

 1	
      Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                              BUGGS v. FRAKES
                              Cite as 298 Neb. 432

    Section 29-2824 provides in relevant part that in the case of
filing for a writ of habeas corpus,
       no person or officer shall have the right to demand the
       payment in advance of any fees which such person or
       officer may be entitled to by virtue of such proceed-
       ings on habeas corpus, when the writ shall have been
       issued or demanded for the discharge from custody of
       any person confined under color of proceedings in any
       criminal case.
In other words, no prepayment of fees is necessary in order to
file a petition for a writ of habeas corpus based upon an issue
of custody in a criminal case.2
    Under § 29-2824, Buggs did not have to prepay the fees
associated with the filing of his petition for a writ of habeas
corpus, nor was IFP status required in order for Buggs to file
that petition.3 For the same reason, Buggs’ motion seeking
postponement of fees was unnecessary. Buggs was permitted,
by operation of § 29-2824, to file his petition for a writ of
habeas corpus without any further motion with regard to the
payment of fees.
    We conclude that the district court erred in treating Buggs’
motion as one for IFP status, because Buggs did not seek
IFP status and was not required to obtain IFP status in order
to file a petition for a writ of habeas corpus. As such, we
reverse the district court’s decision and remand the cause with
instructions.
    [2] Upon remand, the district court shall, consistent with
the prohibition against the prepayment of fees set forth in
§ 29-2824, file the petition for a writ of habeas corpus if the
petition has not yet been filed. After filing the motion, the dis-
trict court should proceed with its habeas corpus review and

 2	
      Mumin v. Frakes, ante p. 381, ___ N.W.2d ___ (2017).
 3	
      Id. Accord Neb. Ct. R. App. P. § 2-101(G)(1)(c) (rev. 2015) (providing
      appellate docket fees in habeas corpus proceedings are not required in
      advance and will be collected at end of proceeding).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               BUGGS v. FRAKES
                               Cite as 298 Neb. 432

examine the petition to see if it states a cause of action.4 It is
the duty of the court on presentation of a petition for a writ of
habeas corpus to examine it, and if it fails to state a cause of
action, the court must enter an order denying the writ.5 This
analysis is distinct from a frivolousness review under Neb.
Rev. Stat. § 25-2301.02(1)(b) (Reissue 2016).
                         CONCLUSION
   The decision of the district court is reversed, and the cause
is remanded with instructions.
                   R eversed and remanded with instructions.
   Wright, J., not participating.

 4	
      See Dixon v. Hann, 160 Neb. 316, 70 N.W.2d 80 (1955). See, also, O’Neal
      v. State, 290 Neb. 943, 863 N.W.2d 162 (2015) (Cassel, J., concurring).
 5	
      Id.
