                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. ENGSTROM


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                               MICHAEL D. ENGSTROM, APPELLANT.


                     Filed February 14, 2017.    Nos. A-15-1180, A-15-1221.


        Appeal in No. A-15-1180 from the District Court for Johnson County: DANIEL E. BRYAN,
JR., Judge. Affirmed. Appeal in No. A-15-1221 from the District Court for Pawnee County:
DANIEL E. BRYAN, JR., Judge. Affirmed.

       Michael D. Engstrom, pro se.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.


       RIEDMANN and BISHOP, Judges, and MCCORMACK, Retired Justice.
       BISHOP, Judge.
                                        INTRODUCTION
       Michael D. Engstrom filed motions for postconviction relief which were denied without
evidentiary hearings on the basis that they were not timely filed. Engstrom argues on appeal that
the time limitations should have been tolled because of his mental disability and medications, and
due to limitations created by the prison riot in the Tecumseh State Correctional Institution
(Tecumseh) in 2015. We affirm.
                                         BACKGROUND
        In two separate but related cases (one filed in the district court for Johnson County and one
filed in the district court for Pawnee County), Engstrom pled no contest to multiple felonies.



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Engstrom filed timely direct appeals after his convictions and sentencings. The mandate from his
appeal in the case out of the district court for Johnson County was issued on October 1, 2014; the
mandate from his appeal in the case out of the district court for Pawnee County was issued on
October 21. Engstrom filed a motion for postconviction relief in the district court for Johnson
County on November 23, 2015, and in the district court for Pawnee County on November 24.
        In both of his motions, Engstrom requested that his filing be accepted “outside the standard
time limit based on the mental disability and heavy medication that [Engstrom] has been on, since
his arrest.” The body of Engstrom’s motions contain the same two main arguments: (1)
“[Engstrom’s] Fourteenth Amendment of due process was violated by the Court when it allowed
him to take a plea, and then sentenced him while he was mentally incompetent and heavily
drugged,” and (2) “[Engstrom’s] Sixth Amendment was violated by his Counsel not pursuing his
Fourteenth Amendment violation of Mental incompetence, both during his trial and on Appeal.”
        Engstrom’s motions described the drugs used to treat his brain injury suffered in March
2011, and suggests that “[a]t the time of the robbery of Casey’s in Pawnee County, and the police
chase that ended in Johnson County,” in 2013, Engstrom “was going on two weeks of not sleeping,
from being self[-]medicated on illegal . . . marijuana and methamphetamines.” He claims that this
factor along with his severe brain injury resulted in him not understanding or controlling his actions
at that time. He also claims that through his pleas, he was heavily medicated, leaving him with
problems of memory retention, lack of understanding and comprehension, and certain motor
functions, including speech. Engstrom claimed that his brain injury and medication rendered him
legally incompetent during his pleas and sentencings. He also asserted that the presiding judge at
trial had an obligation to order a mental evaluation because the judge was aware of Engstrom’s
difficulties. He alleged that his trial and direct appeal counsel knew of his mental difficulties but
did not pursue an evaluation. He also contended that his trial counsel and the court deprived him
of due process by not granting a hearing on mental competence. In addition, Engstrom argued that
he was deprived of his right to an insanity plea. Engstrom asked the court to reverse his pleas and
allow further discovery on the issue of mental incompetence, arguing that “[a]t the very least,” his
sentences should reflect “the minimum” because he cannot be held fully responsible for his actions.
He also asked the district court to accept his pleas for postconviction relief outside the 1-year
limitation period because of his mental issues.
        The district court judge presiding over both matters found Engstrom’s postconviction
claims were procedurally barred, concluding that Engstrom’s direct appeals became final on
October 3, 2014, [sic] (for Johnson County) and on October 21 (for Pawnee County). The court
further found that no exceptions to the 1-year limitation period applied and denied Engstrom’s
motions. Engstrom timely appealed; the two cases were consolidated for briefing and disposition.
                                   ASSIGNMENT OF ERROR
       Restated, Engstrom assigns error to the district court for finding that his motions for
postconviction relief were procedurally barred.




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                                    STANDARD OF REVIEW
        If the facts in a case are undisputed, the issue as to when the statute of limitations begins
to run is a question of law. State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016). To the extent
an appeal calls for statutory interpretation or presents questions of law, an appellate court must
reach its conclusion independent of the trial court. Id.
                                            ANALYSIS
       Neb. Rev. Stat. § 29-3001 (Reissue 2016) governs claims for postconviction relief in
Nebraska. It provides that a prisoner in custody may file a verified motion, alleging that a
conviction is void or voidable under the Nebraska or United States Constitutions. See
§ 29-3001(1). The motion must be filed in the court which imposed the sentence, id., and a 1-year
period of limitation applies. § 29-3001(4). The 1-year limitation period shall run from the later of:
                (a) The date the judgment of conviction became final by the conclusion of a direct
       appeal or the expiration of the time for filing a direct appeal;
                (b) The date on which the factual predicate of the constitutional claim or claims
       alleged could have been discovered through the exercise of due diligence;
                (c) The date on which an impediment created by state action, in violation of the
       Constitution of the United States or the Constitution of Nebraska or any law of this state,
       is removed, if the prisoner was prevented from filing a verified motion by such state action;
                (d) The date on which a constitutional claim asserted was initially recognized by
       the Supreme Court of the United States or the Nebraska Supreme Court, if the newly
       recognized right has been made applicable retroactively to cases on postconviction
       collateral review; or
                (e) August 27, 2011.

§ 29-3001(4).
        On appeal, Engstrom does not dispute that he filed his motions outside the 1-year limitation
period provided by § 29-3001(4)(a). He argues instead that the district court should have accepted
his motions because of his permanent brain injury and related medications, along with delays
caused by the May 10, 2015, Tecumseh prison riot and subsequent lockdown. As to the latter
argument, Engstrom suggests the delays caused by the prison riot fall under § 29-3001(4)(c)
(impediment created by state action), and that there were 82 days during which Engstrom “could
do nothing on effecting the completion of his postconviction.” Brief for appellant at 10.
        The State argues that nothing excuses Engstrom’s failure to file his motions within the
applicable 1-year periods and that the only argument preserved for appeal is whether his motions
should be accepted out of time because of his mental condition and medications. The State also
contends that Engstrom’s mental condition and medications do not excuse his late filing because
Engstrom has not been pursuing his rights diligently, and there is no extraordinary circumstance
that prevented the timely filing of his motions for postconviction relief.
        We agree with the State that Engstrom makes several arguments on appeal that he did not
present to the district court in his underlying motions. Engstrom did not allege in his motions that
he was unable to complete legal work without assistance, that there were improper limits on his



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access to legal aids, that the prison lockdown impeded his ability to file timely motions, or that his
constitutional right to access the courts was violated. An appellate court will not consider as an
assignment of error a question not presented to the district court for disposition through a
defendant’s motion for postconviction relief. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880
(2015). Accordingly, these arguments are not preserved for appellate review and will not be
addressed.
         The only argument that Engstrom properly preserved for appeal was that his untimely filing
should be excused due to his mental disability and medications. There is no provision in
§ 29-3001(4) which allows for an untimely filing under such circumstances. The State suggests
Engstrom’s argument is a request for the application of equitable tolling. While the Nebraska
Supreme Court has not decided whether equitable tolling applies to § 29-3001, the court did discuss
the issue in State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).
         In Huggins, supra, the prisoner argued that the 1-year period for postconviction relief under
§ 29-3001 should have been tolled for the period of time he was in federal custody. In considering
the prisoner’s argument for equitable tolling, our Supreme Court stated it had not yet addressed
whether equitable tolling applies to postconviction actions and under what circumstances it may
apply, but noted that the U.S. Supreme Court has considered equitable tolling in habeas actions
when the prisoner shows that he “has been pursuing his rights diligently” and “some extraordinary
circumstance stood in the way and prevented timely filing of a petition.” Id. at 452, 866 N.W.2d
at 86 (citing to Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010)).
         The Nebraska Supreme Court stated that “a prisoner is not deprived of the opportunity to
bring a postconviction action if there is some time within the period of the 1-year limitation that
the prisoner could have filed a postconviction action.” Huggins, 291 Neb. at 453, 866 N.W.2d at
87. In that case, the prisoner’s time in federal custody did not deprive him of the opportunity to
file during the entire 1-year limitation period. The Supreme Court held, “Under the facts of this
case, we conclude that, whether or not equitable tolling may be used to toll the 1-year limitation
period under § 29-3001(4) under proper circumstances, the circumstances of this case would not
support equitable tolling for the time [the prisoner] was in federal custody.” Id. at 453-54, 866
N.W.2d at 87.
         Engstrom’s argument about his brain injury and medications is largely focused on what
happened at the time he entered his no contest pleas rather than focused on what specifically
prevented him from timely filing his postconviction motions over the course of the year following
the issuance of mandates in both of his direct appeals. Engstrom claims that both the judge and his
counsel “allowed a mentally incompetent person, that was not evalluate [sic] and heavily
medicated and drugged, to take an illegal plea and sentence” in violation of his constitutional
rights. Brief for appellant at 8. He claims that he has suffered the same disadvantages from his
injury and medications from his trial to the present. He blames his March 2011 brain injury and
his medications for his untimeliness in filing his motions without explaining how these
circumstances prevented him from filing sooner. Engstrom was capable of filing, and did in fact
file his postconviction motions despite his claimed mental disability and medications.
         Although the Nebraska Supreme Court did not foreclose the possibility that equitable
tolling may apply to the limitation period under § 29-3001(4), we need not decide the issue here



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since Engstrom was not prevented from filing his motion on a timely basis. Like the Supreme
Court in Huggins, we conclude that whether or not equitable tolling may be used to toll the 1-year
limitation period under § 29-3001(4) under proper circumstances, the circumstances of this case
would not support equitable tolling on the bases alleged by Engstrom. The fact that Engstrom
alleges a mental disadvantage from an injury he claims occurred in March 2011, years before his
convictions and sentencings, does not explain why those circumstances prevented him from filing
his postconviction motions by October 1 and 21, 2015. There is nothing to indicate that Engstrom
attempted to file before the statutory deadlines or otherwise diligently pursued his rights during
those 1-year periods. Further, there was no extraordinary circumstance which prevented a timely
filing. Accordingly, we decline to consider equitable tolling of a statute of limitations under such
broad assertions as Engstrom makes here.
                                         CONCLUSION
        We affirm the district court’s denial of Engstrom’s motions for postconviction relief on the
basis that they were untimely filed.
                                                                                        AFFIRMED.




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