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Ricky J. Sanders, appellant, v. Scott R. Frakes, 

director, Nebraska Department of Correctional

Services, et al., appellees.

___ N.W.2d ___

Filed December 23, 2016. No. S-15-898.

1. Habeas Corpus: Appeal and Error. 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.

2. Constitutional Law: Habeas Corpus. The Nebraska Constitution provides for the remedy of habeas corpus, while the procedure for the writ 

is governed by statute.

3. Habeas Corpus. Habeas corpus is a special civil proceeding providing 

a summary remedy to persons illegally detained.

4. ____. A writ of habeas corpus challenges and tests the legality of a person’s detention, imprisonment, or custodial deprivation of liberty.

5. ____. Eligibility for a writ of habeas corpus is governed by the criteria 

set forth in Neb. Rev. Stat. § 29-2801 (Reissue 2016).

6. Criminal Law: Habeas Corpus. Neb. Rev. Stat. § 29-2801 (Reissue 

2016) explicitly excludes from the scope of habeas corpus persons convicted of some crime or offense for which they stand committed.

7. Habeas Corpus. In Nebraska, habeas corpus is quite limited in comparison to the scope of the writ in federal courts.

8. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska 

law, an action for habeas corpus is a collateral attack on a judgment 

of conviction.

9. Judgments: Collateral Attack. A collateral attack on a judgment is 

where the judgment is attacked in a way other than a proceeding in the 

original action to have it vacated, reversed, or modified, or a proceeding 

in equity to prevent its enforcement.

10. ____: ____. Absent statutory authority to the contrary, only a void judgment may be collaterally attacked.

Nebraska Supreme Court Online Library

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

12/23/2016 09:09 AM CST
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11. ____: ____. A judgment that is not void, even if erroneous, cannot be 

collaterally attacked.

12. Habeas Corpus: Prisoners. In the case of a prisoner held pursuant to 

a judgment of conviction, habeas corpus is available as a remedy only 

upon a showing that the judgment, sentence, and commitment are void.

13. Habeas Corpus: Judgments: Sentences. The writ of habeas corpus 

will not lie upon the ground of mere errors and irregularities in the judgment or sentence rendering it not void, but only voidable.

14. Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject 

to collateral attack.

15. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will 

not lie to discharge a person from a sentence of penal servitude where 

the court imposing the sentence had jurisdiction of the offense and the 

person of the defendant, and the sentence was within the power of the 

court to impose.

16. Habeas Corpus: Appeal and Error. A writ of habeas corpus may not 

be used as a substitute for an appeal.

17. Habeas Corpus: Sentences. The regularity of the proceedings leading up to the sentence in a criminal case cannot be inquired into on an 

application for writ of habeas corpus, for that matter is available only in 

a direct proceeding.

18. Judgments: Jurisdiction. A judgment is void when the court rendering 

it lacks subject matter or personal jurisdiction.

19. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case of the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

20. Habeas Corpus: Convictions. Unless the conviction is void, those who 

stand committed pursuant to a final conviction are excluded from the 

scope of the relief afforded by the writ of habeas corpus in Nebraska.

21. Constitutional Law: Judgments: Final Orders: Collateral Attack. A 

final judgment pursuant to an unconstitutional statute is voidable, not 

void, and thus may not be collaterally attacked.

22. Habeas Corpus: Sentences. To release a person from a sentence of 

imprisonment by habeas corpus, it must appear that the sentence was 

absolutely void.

23. Constitutional Law: Habeas Corpus. Habeas corpus is not a proper 

remedy to challenge a petitioner’s detention pursuant to a final conviction and sentence on the basis that the statute underlying the conviction 

is unconstitutional.
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24. ____: ____. A final conviction and sentence entered upon an alleged 

facially unconstitutional statute is not absolutely void, but is voidable 

only, and may not be attacked in a habeas corpus proceeding.

Appeal from the District Court for Lancaster County: 

Stephanie F. Stacy, Judge. Affirmed.

Gerald L. Soucie for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellees.

Heavican, C.J., Wright, Miller-Lerman, Kelch, and Funke, 

JJ., and Riedmann and Bishop, Judges.

Wright, J.

I. NATURE OF CASE

Ricky J. Sanders appeals from the dismissal of his petition 

for habeas corpus relief. The district court dismissed his petition, in which Sanders argued that Neb. Rev. Stat. § 28-1212.04 

(Reissue 2016) was facially unconstitutional. The district court 

reasoned that a final conviction pursuant to an unconstitutional 

statute is voidable, not void, and thus under Nebraska law may 

not be challenged in a habeas action. We affirm the judgment 

of the district court.

II. BACKGROUND

In 2011, Sanders was convicted of unlawful discharge of a 

firearm under § 28-1212.04 and use of a firearm to commit a 

felony under Neb. Rev. Stat. § 28-1205 (Reissue 2016). He was 

sentenced to 10 to 15 years’ imprisonment on each conviction, 

to run consecutively. On his direct appeal, the only assignments of error were the insufficiency of the evidence and the 

excessiveness of the sentences. On July 9, 2012, in case No. 

A-12-050, the Nebraska Court of Appeals sustained the State’s 

motion for summary affirmance.
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In 2013, Sanders sought postconviction relief. Sanders 

claimed ineffective assistance of counsel for the first time on 

postconviction, because he had the same counsel at trial and 

on direct appeal. He claimed trial and appellate counsel failed 

to challenge the constitutionality of § 28-1212.04. He argued 

that the statute was unconstitutional special legislation under 

Neb. Const. art. III, § 18, and unconstitutional under the Equal 

Protection Clause. The district court dismissed his petition 

without an evidentiary hearing, which this court affirmed on 

appeal.1 Without deciding the merits of the constitutional issue, 

we rejected Sanders’ claim of ineffective assistance of counsel, 

stating that “counsel’s failure to raise novel legal theories or 

arguments or to make novel constitutional challenges in order 

to bring a change in existing law does not constitute deficient performance.”2

Sanders subsequently filed a habeas corpus petition in district court, making a facial challenge to the constitutionality of 

§ 28-1212.04.

After reviewing the general principles of Nebraska habeas 

corpus law, the district court narrowed its focus: “The legal 

issue before this Court . . . is whether, under Nebraska law, 

habeas corpus is a proper vehicle by which to challenge the 

facial constitutionality of a statute underlying a criminal judgment and sentence, once the criminal judgment is final.” The 

court distinguished the cases cited by Sanders in which habeas 

was used to challenge the constitutionality of a statute, explaining that none of those cases involved a final conviction. The 

court relied on Mayfield v. Hartmann3 for the proposition that 

“‘[a] statute is presumed to be constitutional and a judgment 

entered on an unconstitutional statute is not absolutely void but 

1 See State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014).

2 Id. at 343, 855 N.W.2d at 357.

3 Mayfield v. Hartmann, 221 Neb. 122, 125, 375 N.W.2d 146, 149 (1985).
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is voidable only’” and thus not subject to collateral attack in 

a habeas proceeding. The court dismissed Sanders’ petition for 

habeas corpus relief.

Sanders appealed. We granted Sanders’ petition to bypass 

the Court of Appeals.

III. ASSIGNMENTS OF ERROR

Sanders claims the district court erred in (1) holding that 

habeas corpus was not the “‘proper vehicle’” by which he 

could seek release from confinement by bringing a facial challenge to the constitutionality of the statute under which he was 

convicted and (2) failing to grant habeas corpus relief and order 

Sanders released from confinement because his convictions 

were void. Sanders argues that § 28-1212.04 is facially unconstitutional under Neb. Const. art. I, § 3 (due process clause); 

Neb. Const. art. III, § 18 (prohibition on special legislation); 

and the Equal Protection Clause of the 14th Amendment to the 

U.S. Constitution.

IV. 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.4

V. ANALYSIS

1. Writ of Habeas Corpus

The writ of habeas corpus, known as the great writ,5 is 

regarded as a “fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”6

Habeas corpus is a Latin term that, translated literally, means 

4 Johnson v. Gage, 290 Neb. 136, 858 N.W.2d 837 (2015).

5 E.g., State v. King, 180 Neb. 631, 144 N.W.2d 438 (1966). See, also, 39 

Am. Jur. 2d Habeas Corpus § 2 (2008).

6 39 Am. Jur. 2d, supra note 5, § 1 at 206.
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“‘that you have the body’”7; it is an appropriate remedy where 

a person is unlawfully restrained of his or her liberty.8

[2-6] The Nebraska Constitution provides for the remedy 

of habeas corpus,9 while the procedure for the writ is governed by statute.10 It is a special civil proceeding providing 

a summary remedy to persons illegally detained.11 A writ of 

habeas corpus challenges and tests the legality of a person’s 

detention, imprisonment, or custodial deprivation of liberty.12

Eligibility for the writ is governed by the criteria set forth 

in § 29-2801.13 Section 29-2801 explicitly excludes from its 

scope “persons convicted of some crime or offense for which 

they stand committed.”

[7-9] In Nebraska, habeas corpus is quite limited in comparison to the scope of the writ in federal courts.14 Under 

Nebraska law, an action for habeas corpus is a collateral 

attack on a judgment of conviction.15 A collateral attack on 

a judgment is where the judgment is attacked in a way other 

than a proceeding in the original action to have it vacated, 

7 Black’s Law Dictionary 825 (10th ed. 2014).

8 See Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016).

9 See, Neb. Const. art. I, § 8; Neb. Const. art. V, § 2; Jesse B. v. Tylee H., 

293 Neb. 973, 883 N.W.2d 1 (2016). See, also, Flora v. Escudero, 247 

Neb. 260, 526 N.W.2d 643 (1995); Uhing v. Uhing, 241 Neb. 368, 488 

N.W.2d 366 (1992). But see, Johnson v. Gage, supra note 4; Leach v. 

Dahm, 277 Neb. 452, 763 N.W.2d 83 (2009); Glantz v. Hopkins, 261 Neb. 

495, 624 N.W.2d 9 (2001), disapproved on other grounds, State v. Alford, 

278 Neb. 818, 774 N.W.2d 394 (2009). See, generally, Williams v. Olson, 

143 Neb. 115, 8 N.W.2d 830 (1943).

10 See Neb. Rev. Stat. §§ 29-2801 to 29-2824 (Reissue 2016).

11 Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).

12 Id.

13 Johnson v. Gage, supra note 4.

14 See Peterson v. Houston, supra note 11.

15 Id.
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reversed, or modified, or a proceeding in equity to prevent 

its enforcement.16

[10-13] Absent statutory authority to the contrary, only a 

void judgment may be collaterally attacked.17 Thus, a judgment that is not void, even if erroneous, cannot be collaterally attacked.18 Accordingly, we have held that habeas 

corpus will not lie on the ground that the sentence is merely 

erroneous.19 This court has numerous times held that in the 

case of a prisoner held pursuant to a judgment of conviction, 

habeas corpus is available as a remedy only upon a showing 

that the judgment, sentence, and commitment are void.20 The 

writ will not lie upon the ground of mere errors and irregularities in the judgment or sentence rendering it not void, but 

only voidable.21

[14,15] Where the court has jurisdiction of the parties and 

the subject matter, its judgment is not subject to collateral 

attack.22 Thus, a writ of habeas corpus will not lie to discharge 

a person from a sentence of penal servitude where the court 

imposing the sentence had jurisdiction of the offense and the 

person of the defendant, and the sentence was within the power 

of the court to impose.23

[16,17] A writ of habeas corpus may not be used as a substitute for an appeal.24 The regularity of the proceedings leading up to the sentence in a criminal case cannot be inquired 

16 Mayfield v. Hartmann, supra note 3.

17 See, Peterson v. Houston, supra note 11; Mayfield v. Hartmann, supra

note 3.

18 See Meyer v. Frakes, supra note 8.

19 Id.

20 Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988).

21 Meyer v. Frakes, supra note 8.

22 Peterson v. Houston, supra note 11.

23 Id.

24 See Mayfield v. Hartmann, supra note 3. See, also, Meyer v. Frakes, supra

note 8; Peterson v. Houston, supra note 11.
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into on an application for writ of habeas corpus, for that matter is available only in a direct proceeding.25

2. Sanders’ Argument: Final Judgment of Conviction

Under Facially Unconstitutional Statute Is Void

and May Be Collaterally Attacked

in Habeas Corpus Proceeding

In this case, Sanders argues that habeas corpus is an appropriate remedy because he is making a facial, rather than 

as-applied, challenge to the constitutionality of the statute 

under which he was convicted. He argues that a conviction 

under an unconstitutional statute is void, rather than voidable.

(a) Distinction Between Void and 

Voidable Judgments

[18,19] A void judgment is “[o]f no legal effect,”26 while a 

voidable judgment is “[v]alid until annulled.”27 A judgment is 

void when the court rendering it lacks subject matter or personal jurisdiction.28 Subject matter jurisdiction is the power of 

a tribunal to hear and determine a case of the general class or 

category to which the proceedings in question belong and to 

deal with the general subject matter involved.29 Thus, a judgment is void if the court lacked a legal basis to impose it.30

From our very earliest habeas corpus cases to the present, 

we have recognized that a judgment is void when the court rendering it lacks jurisdiction or a legal basis for the judgment.31

25 Peterson v. Houston, supra note 11.

26 Black’s Law Dictionary, supra note 7 at 1805.

27 Id.

28 See Peterson v. Houston, supra note 11.

29 Id.

30 See Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994).

31 E.g., Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 127 (2015); Rehbein v. 

Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999); In re Carbino, 117 Neb. 

107, 219 N.W. 846 (1928); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 

(1903); In re Ream, 54 Neb. 667, 75 N.W. 24 (1898).
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In In re Betts,

32 we held that habeas corpus relief was not available to address the petitioner’s claim that the grand jury by 

which he was indicted was not composed in accordance with 

statute. In that case, we explained:

The supposed errors and defects relied upon are not 

jurisdictional, and hence are not available in a [habeas 

corpus] proceeding like this, for it is well established in 

this state that mere errors and irregularities in a judgment or proceedings of an inferior court in a criminal 

case, under and by virtue of which a person is imprisoned, or deprived of his liberty, but which are not of 

such a character as to render the proceedings absolutely 

void, cannot be reviewed on an application for a writ of 

habeas corpus. The writ cannot perform the office of a 

writ of error, but only reaches jurisdictional defects in 

the proceedings.33

Recently, in Meyer v. Frakes,

34 we granted habeas relief to 

a petitioner who was sentenced for the nonexistent crime of 

being a habitual criminal. We said that “the habitual criminal statute is not a separate offense, but, rather, provides an 

enhancement of the penalty . . . for each count committed by 

one found to be a habitual criminal.”35 A separate sentence for 

the nonexistent crime of being a habitual criminal is void.36

Because the petitioner had already served his sentence on his 

other conviction, we granted habeas relief.37

What these cases illustrate is that a judgment is void, and 

not merely voidable, if the court rendering it lacked personal 

32 In re Betts, 36 Neb. 282, 54 N.W. 524 (1893).

33 Id. at 284, 54 N.W. at 524.

34 Meyer v. Frakes, supra note 8.

35 Id. at 673, 884 N.W.2d at 136 (citing State v. Rolling, 209 Neb. 243, 307 

N.W.2d 123 (1981)).

36 Meyer v. Frakes, supra note 8 (citing Kuwitzky v. O’Grady, 135 Neb. 466, 

282 N.W. 396 (1938)).

37 See Meyer v. Frakes, supra note 8.
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or subject matter jurisdiction or otherwise lacked a legal basis 

for the judgment. On the other hand, a judgment is merely 

voidable if there are only errors and irregularities that are 

not jurisdictional.38

(b) Habeas Corpus as Means to Challenge 

Constitutionality of Statute Prior 

to Final Judgment

Sanders cites several cases in which habeas relief was 

granted before the judgment became final.39 While these cases 

may be informative in other respects, they are not helpful 

in addressing the question of whether a facial challenge to 

the constitutionality of a statute underlying a judgment is 

permitted in a habeas corpus proceeding after the judgment 

becomes final.

[20] Cases involving habeas challenges prior to a final judgment are distinguishable because the habeas corpus statute 

specifically excludes from the writ “persons convicted of some 

crime or offense for which they stand committed.”40 Thus, 

unless the conviction is void, those who “stand committed” 

pursuant to a final conviction are excluded from the scope of 

the relief afforded by the writ of habeas corpus in Nebraska.41

But this exclusion does not apply to a conviction and sentence 

that are not final. Prior to a final conviction and sentence, one 

may show that he or she is being “unlawfully deprived of his 

or her liberty.”42 Hence, cases involving challenges to the constitutionality of a statute under which a petitioner is charged 

or convicted (prior to the conviction and sentence becoming 

38 See id.

39 See, In re Resler, 115 Neb. 335, 212 N.W. 765 (1927); In re Application 

of McMonies, 75 Neb. 702, 106 N.W. 456 (1906); In re Havelik, 45 Neb. 

747, 64 N.W. 234 (1895).

40 § 29-2801.

41 See id.

42 Id.
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final) are inapposite to the determination whether a facial constitutional challenge may be raised after the conviction and 

sentence are final.

As early as 1877, this court recognized that the scope of 

habeas corpus was significantly limited when the petitioner 

was detained pursuant to a final conviction and sentence.43

In Ex parte Fisher,

44 the petitioner brought a habeas petition 

to challenge his imprisonment for selling liquors without a 

license. He contended that the statute under which he was 

convicted was unconstitutional.45 We refused to consider his 

constitutional challenge to the statute in the habeas proceeding, explaining:

It is, however, contended that the license law is unconstitutional, and on this ground the prisoner should be 

discharged. But after judgment and commitment in a 

criminal action by an inferior court having jurisdiction of 

the offense charged, we think that habeas corpus is not 

the proper mode of procedure to bring the cause into this 

court for review upon alleged errors of law; for it seems 

to us, that when the validity of a statute is controverted, 

the controversy raises a legal question which, like all 

other legal questions raised on the trial of a cause in an 

inferior court, can be reviewed only by the mode prescribed by law.

To entertain jurisdiction in such case upon a writ of 

habeas corpus, it would be necessary to look beyond the 

judgment and re-examine the charges upon which it was 

rendered, as well as to review the questions of law raised 

on the trial and decided by the inferior court. If such 

practice were to obtain, then indeed every conviction for 

a criminal offense might be brought here for review on a 

writ of habeas corpus.

43 See Ex parte Fisher, 6 Neb. 309, 1877 WL 4279 (1877).

44 Id.

45 Id.
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We think it is not within the province of this court to 

open the door to such a system of practice. And we are 

not prepared to say that, upon a writ of habeas corpus, we 

can look beyond the judgment and re-examine the charges 

on which it was rendered, or to pronounce the judgment 

an absolute nullity on the ground that the constitutionality 

of the statute relative to the license law is controverted. 

If the validity of a statute is brought in question in an 

inferior court on the trial of a cause, that question must 

finally be determined in the same mode as other legal 

questions arising on the trial of causes in such court—that 

is, by proceedings in error or appeal, as may be most 

appropriate and allowable by law.46

DeBacker v. Brainard,

47 cited by Sanders, is distinguishable. In DeBacker, a divided court48 opined about the constitutionality of portions of the Juvenile Court Act, specifically, 

whether they violated a juvenile’s constitutional right to trial 

by jury.49 The habeas petition was brought after the petitioner 

was adjudicated as a delinquent and ordered to be committed 

to a boys’ training school.50 However, prior to the proceedings, 

the petitioner objected to the juvenile court’s jurisdiction on 

the basis of his denial of a right to a jury trial.51 Because the 

challenge involved a jurisdictional question, the order finding 

46 Id. at 310-11, 1877 WL at *1.

47 DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968).

48 Id. at 461, 161 N.W.2d at 509 (explaining that “[f]our judges are of the 

opinion that the [juvenile court] statute is unconstitutional as challenged. 

Three judges are of the opinion that it is constitutional. Article V, section 

2, Constitution of Nebraska, provides in part: ‘No legislative act shall 

be held unconstitutional except by the concurrence of five judges,’” and 

affirming district court’s judgment).

49 DeBacker v. Brainard, supra note 47.

50 Id.

51 Id. (four-justice opinion).
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the petitioner to be a delinquent would be void if his arguments were accepted.52

Because the juvenile court’s order adjudicating the petitioner as a delinquent and ordering him to the boys’ training 

school was not a criminal conviction and sentence,53 he did 

not fall within the statutory exception to habeas corpus relief, 

under § 29-2801, of “persons convicted of some crime or 

offense for which they stand committed.”

(c) Availability of Habeas Corpus to Challenge 

Constitutionality of Statute After 

Final Conviction and Sentence

Sanders erroneously argues that even after a conviction and 

sentence become final, he can raise a facial challenge to the 

constitutionality of the statute underlying the conviction in a 

habeas proceeding. We disagree. He cites cases in which this 

court and other courts have concluded that an unconstitutional 

statute is void. None of the cases cited by Sanders involved a 

collateral attack on a final judgment.

[21] We have held that a final judgment pursuant to an 

unconstitutional statute is voidable, not void, and thus may not 

be collaterally attacked.54 In the case Davis Management, Inc. 

v. Sanitary & Improvement Dist. No. 276,

55 we said:

Where the court has jurisdiction of the parties and the 

subject matter, its judgment is not subject to collateral 

attack. . . . Not even a statute which is declared unconstitutional is void ab initio insofar as a previous judgment 

52 Id.

53 See id. (three-justice opinion).

54 See, Davis Management, Inc. v. Sanitary & Improvement Dist. No. 276, 

204 Neb. 316, 282 N.W.2d 576 (1979); Norlanco, Inc. v. County of 

Madison, 186 Neb. 100, 181 N.W.2d 119 (1970). See, also, Iowa v. 

Herkleman, 251 N.W.2d 214 (Iowa 1977) (citing Norlanco, Inc.).

55 Davis Management, Inc. v. Sanitary & Improvement Dist. No. 276, supra

note 54, 204 Neb. at 323-24, 282 N.W.2d at 580 (emphasis supplied).
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based upon the statute is concerned. In Norlanco, Inc. v. 

County of Madison,[56] we said: “‘The general rule is said 

to be that a statute declared unconstitutional is void ab 

initio. However, this is subject to the exception that the 

finality of a judgment cannot be affected thereby.’”

This rule prohibiting collateral attacks on final judgments 

based upon an unconstitutional statute also applies when the 

judgment attacked is a criminal conviction and sentence. We 

applied a variation of this rule in the criminal context in State 

v. Keen.

57 The defendant in Keen was charged with driving 

under the influence (DUI).58 Pursuant to a plea agreement, he 

pled guilty. After a hearing, the court found that this was his 

second DUI and gave him an enhanced sentence.59

On appeal, the defendant argued that his prior DUI was 

invalid and unenforceable, because the Omaha ordinance under 

which he was convicted did not conform to the state statute as 

required by law and thus was invalid. We recognized that his 

argument was a collateral attack on his prior DUI conviction.60

While his collateral attack was based on the alleged invalidity and unenforceability of a municipal ordinance underlying 

his conviction rather than the constitutionality of a statute, 

we said:

The principles and reasoning which support [the] holdings [in Norlanco, Inc. and Davis Management, Inc.] that 

parties are generally not permitted to collaterally attack 

prior judgments, even when the prior judgment is based 

upon an unconstitutional statute, also support a holding 

that a defendant cannot collaterally attack a conviction 

56 Norlanco, Inc. v. County of Madison, supra note 54.

57 State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006), reaffirmed, State v. 

Head, 276 Neb. 354, 754 N.W.2d 612 (2008).

58 Id.

59 Id.

60 See id.
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by alleging that it is invalid because it was obtained 

pursuant to an ordinance which was later declared to be 

unenforceable as inconsistent with a statute.61

[22] In Mayfield, we refused to allow a habeas corpus 

challenge to the constitutionality of the confinement of the 

petitioner to a treatment facility pursuant to a final order by a 

board of mental health.62 This court noted that habeas cannot 

be used as a substitute for a direct appeal.63 We said that “even 

if it can be argued that the statute does violate some constitutional principle, it is still not subject to collateral attack. We 

have repeatedly held that to release a person from a sentence 

of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.”64

In In re Resler,

65 we used language that may have implied 

that the unconstitutionality of a statute renders a final conviction pursuant to that statute void and subject to collateral attack 

by habeas corpus. In In re Resler, we said:

[I]f a court or a judge thereof which renders a judgment, 

or who enters an order, has not jurisdiction to perform the 

act done, either because the proceeding or the law under 

which it is taken is unconstitutional, or for any other 

reason the judgment is void, it may be questioned collaterally, and a defendant who is imprisoned under and by 

virtue of it may be discharged.66

But in In re Resler, the petitioner was only detained and 

charged with a crime; there was no final conviction and sentence. And none of the cases we are aware of that cite the 

above-quoted language in In re Resler involved a habeas 

61 Id. at 129, 718 N.W.2d at 499.

62 Mayfield v. Hartmann, supra note 3.

63 Id.

64 Id. at 125, 375 N.W.2d at 149.

65 In re Resler, supra note 39.

66 Id. at 338, 212 N.W. at 766 (emphasis supplied).
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challenge to a final conviction based on the unconstitutionality 

of the statute underlying the judgment.67 Neither do the cases 

cited by In re Resler for the above proposition involve such a 

challenge to a final conviction.68 To the extent that the abovequoted language in In re Resler and its progeny69 is inconsistent with our holding in this case, we disapprove of it.

[23,24] What these cases show is that when used to challenge a final conviction and sentence, habeas corpus is a 

collateral attack. Therefore, habeas corpus is not a proper 

remedy to challenge a petitioner’s detention pursuant to a 

final conviction and sentence on the basis that the statute 

underlying the conviction is unconstitutional. Therefore, we 

conclude that a final conviction and sentence entered upon an 

alleged facially unconstitutional statute is not absolutely void, 

but is voidable only, and may not be attacked in a habeas 

corpus proceeding.

VI. CONCLUSION

For the reasons set forth above, we affirm the district court’s 

dismissal of Sanders’ petition.

Affirmed.

Cassel and Stacy, JJ., not participating.

67 See, Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955); In re Application 

of Maher, North v. Dorrance, 144 Neb. 484, 13 N.W.2d 653 (1944).

68 See, In re Application of McMonies, supra note 39; In re Vogland, 48 Neb. 

37, 66 N.W. 1028 (1896); In re Havelik, supra note 39.

69 See cases cited supra note 67.