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11/03/2017 09:13 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                  STATE v. AMAYA
                                                  Cite as 298 Neb. 70




                                        State of Nebraska, appellee, v.
                                           Jay D. A maya, appellant.
                                                   ___ N.W.2d ___

                                        Filed October 20, 2017.   No. S-16-959.

                1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals
                    from postconviction proceedings, an appellate court reviews de novo a
                    determination that the defendant failed to allege sufficient facts to dem-
                    onstrate a violation of his or her constitutional rights or that the record
                    and files affirmatively show that the defendant is entitled to no relief.
                    The lower court’s findings of fact will be upheld unless such findings
                    are clearly erroneous.
                2.	 Judgments: Appeal and Error. An appellate court reviews a denial of
                    a motion to alter or amend the judgment for an abuse of discretion.
                3.	 Postconviction. A defendant is entitled to bring a second proceeding for
                    postconviction relief only if the grounds relied upon did not exist at the
                    time the first motion was filed.
                4.	 Postconviction: Limitations of Actions. The 1-year statute of limita-
                    tions in Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) applies to all veri-
                    fied motions for postconviction relief, including successive motions.
                5.	 ____: ____. If, as part of its preliminary review, the trial court finds
                    the postconviction motion affirmatively shows—either on its face or in
                    combination with the files and records before the court—that it is time
                    barred under Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), the court
                    is permitted, but not obliged, to sua sponte consider and rule upon the
                    timeliness of the motion.
                6.	 Constitutional Law: Statutes: Sentences. A law which purports to
                    apply to events that occurred before the law’s enactment, and which dis-
                    advantages a defendant by creating or enhancing penalties that did not
                    exist when the offense was committed, is an ex post facto law and will
                    not be endorsed by the courts.
                7.	 ____: ____: ____. There are four types of ex post facto laws: those
                    which (1) punish as a crime an act previously committed which was
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             Nebraska Supreme Court A dvance Sheets
                     298 Nebraska R eports
                              STATE v. AMAYA
                              Cite as 298 Neb. 70

     innocent when done; (2) aggravate a crime, or make it greater than it
     was, when committed; (3) change the punishment and inflict a greater
     punishment than was imposed when the crime was committed; and (4)
     alter the legal rules of evidence such that less or different evidence is
     needed in order to convict the offender.
 8.	 Postconviction: Constitutional Law: Limitations of Actions:
     Sentences. The statutory time limits in Neb. Rev. Stat § 29-3001(4)
     (Reissue 2016) do not result in ex post facto punishment.
 9.	 Postconviction: Limitations of Actions: Proof. To satisfy the tolling
     provision of Neb. Rev. Stat. § 29-3001(4)(c) (Reissue 2016), a prisoner
     must show there was (1) an impediment created by state action, (2)
     which amounted to a violation of the federal or state Constitution or a
     state law, and (3) as a result, the prisoner was prevented from filing a
     verified motion. If all these factors are satisfied, the 1-year limitation
     period will begin to run on the date the impediment was removed.
10.	 Postconviction: Rules of the Supreme Court. Postconviction proceed-
     ings are not governed by the Nebraska Court Rules of Pleading in Civil
     Cases, and Nebraska’s postconviction statutes do not contemplate the
     opportunity to amend a postconviction motion after the court has deter-
     mined it does not necessitate an evidentiary hearing.
11.	 Judgments: Pleadings: Time. Under Neb. Rev. Stat. § 25-1329 (Reissue
     2016), a motion to alter or amend a judgment shall be filed no later than
     10 days after the entry of the judgment.

   Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.

   Jay D. Amaya, pro se.

   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

   Stacy, J.
   Jay D. Amaya filed a successive motion for postconvic-
tion relief. The district court denied the motion without con-
ducting an evidentiary hearing, and Amaya filed this appeal.
We affirm.
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                               STATE v. AMAYA
                               Cite as 298 Neb. 70

                           I. FACTS
   In 1999, Amaya pled no contest to one count of first degree
murder, one count of use of a knife in the commission of a
felony, and one count of sexual assault.1 The charges arose out
of the assault and murder of Sheri Fhuere.2 No direct appeal
was filed.
   In 2006, Amaya filed a motion for postconviction relief,
alleging various instances of ineffective assistance of coun-
sel. After conducting an evidentiary hearing, the district court
denied relief, and we affirmed.3
   On September 2, 2016, Amaya filed what he captioned
a “Successive Verified Motion for Postconviction Relief.”
Amaya’s pro se motion acknowledged the 1-year statute of
limitations for the filing of postconviction actions imposed
by Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), but alleged
his successive motion was not time barred for several reasons
that we discuss in more detail later. The successive motion
alleged trial counsel was ineffective because (1) he did not
make Amaya aware of documents and evidence relating to his
defense and (2) he incorrectly told Amaya that he could get the
death penalty if convicted. The successive motion also alleged
that counsel appointed to represent Amaya in his original post-
conviction action was ineffective for not raising these issues.
Amaya also attempted to include, in his postconviction motion,
a motion for new trial pursuant to Neb. Rev. Stat. §§ 29-2101
to 29-2103 (Reissue 2016).
   On September 7, 2016, the district court denied Amaya’s
successive postconviction motion without conducting an
evidentiary hearing and without requesting a response from
the State. The court concluded the motion (1) was time
barred under § 29-3001(4), (2) impermissibly sought to raise
grounds for relief that either had been litigated in Amaya’s

 1	
      See State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
 2	
      Id.
 3	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                 STATE v. AMAYA
                                 Cite as 298 Neb. 70

first postconviction motion4 or were available at the time of
his first motion,5 and (3) was “completely frivolous.” The dis-
trict court did not expressly address the motion for new trial,
but implicitly overruled it by dismissing the entire successive
motion, and all accompanying motions, with prejudice.
   On September 9, 2016, before he had received the court’s
order denying his successive motion, Amaya filed a motion for
leave to amend his successive motion. He attached an amended
successive motion for postconviction relief to this motion. On
September 14, the district court denied Amaya’s motion to
amend, reasoning it had already ruled on and dismissed his
successive motion.6
   On September 26, 2016, Amaya filed a motion to alter or
amend the judgment entered September 7. The district court
denied the motion to alter or amend, finding it was not filed
within 10 days of the September 7 order and thus was untimely
under Neb. Rev. Stat. § 25-1329 (Reissue 2016). Amaya subse-
quently filed this appeal.
               II. ASSIGNMENTS OF ERROR
   Amaya assigns, reordered and restated, that the district court
erred in (1) denying his successive motion for postconviction
relief without notice and hearing, (2) denying his motion to
alter or amend the judgment and denying his motion to amend
the successive postconviction motion, and (3) denying his
motion for appointment of postconviction counsel.
                III. STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant

 4	
      See State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989).
 5	
      See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
 6	
      See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016) (postconviction
      statutes do not contemplate opportunity to amend postconviction motion
      after court determines motion is insufficient to necessitate an evidentiary
      hearing).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               STATE v. AMAYA
                               Cite as 298 Neb. 70

failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirm­atively show that the defendant is entitled to no relief.7
The lower court’s findings of fact will be upheld unless such
findings are clearly erroneous.8
   [2] An appellate court reviews a denial of a motion to alter
or amend the judgment for an abuse of discretion.9

                          IV. ANALYSIS
                    1. Successive Motion Was
                        Properly Dismissed
   [3] This is Amaya’s second motion for postconviction relief.
A defendant is entitled to bring a second proceeding for post-
conviction relief only if the grounds relied upon did not exist
at the time the first motion was filed.10 But here, it is not
necessary to determine whether any of the grounds alleged in
Amaya’s successive motion existed at the time of his earlier
postconviction motion, because we agree with the district court
that his successive postconviction motion is time barred under
§ 29-3001(4), which provides:
      A one-year period of limitation shall apply to the filing of
      a verified motion for postconviction relief. The one-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;

 7	
      State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015); State v. Cook, 290
      Neb. 381, 860 N.W.2d 408 (2015).
 8	
      State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009); State v.
      Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).
 9	
      Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).
10	
      State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                 STATE v. AMAYA
                                 Cite as 298 Neb. 70

         (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 fil-
      ing 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 retro-
      actively to cases on postconviction collateral review; or
         (e) August 27, 2011.
   [4] The 1-year statute of limitations in § 29-3001(4) applies
to all verified motions for postconviction relief, including suc-
cessive motions.11
                      (a) Court May Consider
                       Timeliness Sua Sponte
   In the instant appeal, the district court denied the successive
postconviction motion as time barred without requiring notice
to be served on the county attorney12 and without requiring the
State to file a written response.13 As such, the State did not
have an opportunity to raise the affirmative defense that the
successive postconviction motion was time barred.
   In State v. Crawford,14 we held that the 1-year limitation
period in § 29-3001(4) is not a jurisdictional requirement, but
instead is in the nature of a statute of limitations. We held that
because the State did not raise the statute of limitations as an
affirmative defense, the issue was waived and could not be
raised for the first time on appeal. But in Crawford, we noted:

11	
      See State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).
12	
      See § 29-3001(2).
13	
      See, generally, Robertson, supra note 6 (noting district court may ask State
      to respond to postconviction motion). See, also, State v. McLeod, 274 Neb.
      566, 741 N.W.2d 664 (2007); State v. Dean, 264 Neb. 42, 645 N.W.2d 528
      (2002).
14	
      State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                             STATE v. AMAYA
                             Cite as 298 Neb. 70

“The court did not raise the issue sua sponte, and we therefore
need not determine whether a court may raise the issue sua
sponte when the State fails to do so.”15
    Here, we are squarely presented with the question whether
a court can raise the statute of limitations issue sua sponte as
part of its preliminary review of the postconviction motion. We
conclude it can.
    Section 29-3001(2) expressly provides that a district court
in Nebraska must review a postconviction action when it is
filed and that “[u]nless the motion and the files and records of
the case show to the satisfaction of the court that the prisoner
is entitled to no relief, the court shall cause notice thereof to
be served on the county attorney . . . .” The plain language of
§ 29-3001 both authorizes and requires a district court to con-
duct a preliminary review of a postconviction motion.16
    The U.S. Supreme Court considered a similar requirement
in Day v. McDonough17 and concluded it permitted federal
district courts to consider sua sponte the timeliness of habeas
petitions. In Day, a prisoner filed a petition for a writ of
habeas corpus that was governed by a 1-year statute of limi-
tation.18 The State apparently miscalculated the applicable
tolling period and conceded in its answer that the petition was
timely filed. When the federal court reviewed the calculations,
it found the State had erred; the court ultimately dismissed the
habeas petition as untimely. The prisoner appealed, arguing
the court had no authority to dismiss based on the limitation
period after the State had conceded timeliness in its answer.
The Supreme Court ultimately concluded that federal district
courts are permitted, but not obliged, to sua sponte consider
the timeliness of a state prisoner’s habeas petition. Day noted

15	
      Id. at 372, 865 N.W.2d at 368.
16	
      See Robertson, supra note 6.
17	
      Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 164 L. Ed. 2d 376
      (2006).
18	
      See 28 U.S.C. § 2244(d) (2012).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. AMAYA
                                Cite as 298 Neb. 70

in part that the applicable habeas rules required a district court
to “‘promptly examine’” habeas petitions and dismiss them
“‘[i]f it plainly appears . . . that the petitioner is not entitled
to relief.’”19
   [5] We find the reasoning of Day to be instructive, and we
now hold that if, as part of its preliminary review, the trial
court finds the postconviction motion affirmatively shows—
either on its face or in combination with the files and records
before the court—that it is time barred under § 29-3001(4), the
court is permitted, but not obliged, to sua sponte consider and
rule upon the timeliness of the motion.20

                     (b) Successive Motion
                        Was Time Barred
   Amaya concedes his successive motion was filed more than
1 year after the date his judgment of conviction became final
under § 29-3001(4)(a). And he does not claim that subsections
(b), (d), or (e) of § 29-3001(4) apply to make his successive
motion timely. Instead, Amaya claims his successive motion
should be considered timely because (1) the time limits under
§ 29-3001(4) cannot be applied to him and (2) an “impediment
created by state action” prevented him from filing his succes-
sive motion sooner. Neither claim has merit.

                     (i) No Ex Post Facto
                          Punishment
   Amaya alleged that because his crime occurred before the
1-year limitation period was enacted by the Legislature in
2011,21 applying the limitation period to him results in ex post
facto punishment. We disagree.

19	
      Day, supra note 17, 547 U.S. at 207. See Rule 4, Rules Governing Section
      2254 Cases in the United States District Courts, 28 U.S.C. following
      § 2254 (2012).
20	
      See Day, supra note 17.
21	
      See 2011 Neb. Laws, L.B. 137, § 1.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. AMAYA
                                Cite as 298 Neb. 70

   [6,7] A law which purports to apply to events that occurred
before the law’s enactment, and which disadvantages a defend­
ant by creating or enhancing penalties that did not exist when
the offense was committed, is an ex post facto law and will
not be endorsed by the courts.22 There are four types of ex
post facto laws: those which (1) punish as a crime an act
previously committed which was innocent when done; (2)
aggravate a crime, or make it greater than it was, when com-
mitted; (3) change the punishment and inflict a greater punish-
ment than was imposed when the crime was committed; and
(4) alter the legal rules of evidence such that less or different
evidence is needed in order to convict the offender.23
   [8] The addition of a statutory time limitation on a defend­
ant’s postconviction remedy does not fall within any of the
four categories of ex post facto laws. The statutory time limits
in § 29-3001(4) do not result in ex post facto punishment, and
Amaya’s claim to the contrary is without merit.
                   (ii) No Impediment Under
                         § 29-3001(4)(c)
   Amaya alleges there was an “impediment created by state
action” under § 29-3001(4)(c) which, he claims, continues
to toll the 1-year time limit. Specifically, he alleges that
his first postconviction counsel was ineffective for failing to
adequately raise the claims of ineffective assistance of trial
counsel that he now wishes to raise in his successive motion,
and he contends this “impediment” prevented him from filing
his successive motion sooner. We conclude Amaya’s tolling
argument fails as a matter of law.
   [9] To satisfy the tolling provision of § 29-3001(4)(c), a
prisoner must show there was (1) an impediment created by
state action, (2) which amounted to a violation of the federal

22	
      State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012); State v. Vela, 279
      Neb. 94, 777 N.W.2d 266 (2010).
23	
      State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               STATE v. AMAYA
                               Cite as 298 Neb. 70

or state Constitution or a state law, and (3) as a result, the pris-
oner was prevented from filing a verified motion. If all these
factors are satisfied, the 1-year limitation period will begin to
run on the date the impediment was removed. Amaya has not
satisfied any of these factors.
   First, he has not shown how the alleged ineffective assist­
ance about which he complains was “created by state action.”
Moreover, even if he could show state action, the alleged
“impediment” would not rise to a constitutional violation as
required by § 29-3001(4)(c), because we have consistently
held there is no constitutional right to effective assistance of
counsel in a postconviction proceeding.24 And finally, Amaya
has alleged no facts showing how the actions of his prior
postconviction counsel prevented him from filing this suc-
cessive postconviction motion sooner. Notably, the record
shows Amaya’s first postconviction action was concluded in
2008, and he did not file this successive verified motion
until 2016.
   Our de novo review of the record and files affirmatively
shows that Amaya’s successive motion is time barred under
§ 29-3001(4) and was properly dismissed by the district court
on that basis. For the same reason, we find no error in the
district court’s denial of Amaya’s motion for appointment of
postconviction counsel.25 His first and third assignments of
error have no merit.
                2. A maya’s Other Assignments
                 of Error A re Without M erit

                   (a) No Error in Overruling
                        Motion to Amend
   After the court considered and dismissed Amaya’s succes-
sive postconviction motion with prejudice, Amaya sought leave

24	
      Hessler, supra note 10. See, also, State v. Deckard, 272 Neb. 410, 722
      N.W.2d 55 (2006); State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005).
25	
      See State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                             STATE v. AMAYA
                             Cite as 298 Neb. 70

to amend the motion. The district court overruled the request
to amend, reasoning the postconviction proceeding already
had been dismissed. Amaya argues that despite the timing,
he should have been permitted to amend his postconviction
motion pursuant to Neb. Ct. R. Pldg. § 6-1115(a) and State v.
Mata.26 We addressed and rejected a similar argument in State
v. Robertson.27
   [10] In Robertson, we clarified that postconviction pro-
ceedings are not governed by the Nebraska Court Rules of
Pleading in Civil Cases, and we held that Nebraska’s postcon-
viction statutes do not contemplate the opportunity to amend
a postconviction motion after the court has determined it does
not necessitate an evidentiary hearing.28 Because Amaya did
not seek leave to amend until after his successive postconvic-
tion action had been dismissed, we find no abuse of discretion
in not allowing the amendment.

              (b) No Error in Overruling Motion
                 to Alter or Amend Judgment
   The court overruled Amaya’s motion to alter or amend the
judgment of dismissal, finding it was not filed within 10 days
of the order dismissing the successive motion and therefore
was not timely.
   [11] Under § 25-1329, “[a] motion to alter or amend a
judgment shall be filed no later than ten days after the entry
of the judgment.” The record shows Amaya’s motion to alter
or amend the judgment was filed 19 days after judgment was
entered, and it sought to vacate the judgment of dismissal
in order to amend a successive motion that was clearly time
barred. Under these circumstances, we can find no abuse of

26	
      State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010), disapproved,
      Robertson, supra note 6.
27	
      Robertson, supra note 6.
28	
      See id.
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                         STATE v. AMAYA
                         Cite as 298 Neb. 70

discretion in the court’s decision to overrule the motion to alter
or amend the judgment of dismissal.

                       V. CONCLUSION
   For the foregoing reasons, we affirm the decision of the
district court dismissing Amaya’s successive motion for post-
conviction relief.
                                                  A ffirmed.
