- 70 -

Nebraska Supreme Court Advance S

298 Nebraska Report

STATE v. AMAYA

Cite as 298 Neb. 70

State of Nebraska, appellee, v.

Jay D. Amaya, appella

___ 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 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. 

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 limitations in Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) applies to all verified 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 disadvantages 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/22/2017 08:10 PM CST
- 71 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 proceedings 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 determined 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: Dona

E. Rowlands, Judge. Affirm

Jay D. Amaya, pro se.

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

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke,

Stacy, 

Jay D. Amaya filed a successive motion for postconviction relief. The district court denied the motion without conducting an evidentiary hearing, and Amaya filed this appeal. 

We affirm.
- 72 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 counsel. 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 postconviction 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.
- 73 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 district 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 subsequently 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 appellate 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).
- 74 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 Moti

Properly Dismiss

[3] This is Amaya’s second motion for postconviction relief. 

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.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).
- 75 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 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.

[4] The 1-year statute of limitations in § 29-3001(4) applies 

to all verified motions for postconviction relief, including successive 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).
- 76 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 conduct 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 limitation.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).
- 77 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 successive 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.
- 78 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 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.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 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.23

[8] The addition of a statutory time limitation on a defendant’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).
- 79 -

Nebraska Supreme Court Advance S

298 Nebraska Report

STATE v. AMAYA

Cite as 298 Neb. 70

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. Amaya has not 

satisfied any of these factors.

First, he has not shown how the alleged ineffective assistance 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 successive 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. Amaya’s Other Assign

of Error Are Without M

(a) No Error in Overruling 

Motion to Amend

After the court considered and dismissed Amaya’s successive 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).
- 80 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 proceedings are not governed by the Nebraska Court Rules of 

Pleading in Civil Cases, and we held that Nebraska’s postconviction 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 postconviction 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.
- 81 -

Nebraska Supreme Court Advance S

298 Nebraska Report

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 postconviction relief.

Affirmed