Nebraska Advance She

GONZALEZ v. GAGE 671

Cite as 290 Neb. 671

Jose E. Gonzalez, appellan

v. Brian Gage, warden of

Tecumseh State Correcti

Institution, appell

___ N.W.2d ___

Filed April 10, 2015. No. S-14-568.

1. Affidavits: Appeal and Error. A district court’s denial of in forma pauperis 

status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de novo 

on the record based on the transcript of the hearing or the written statement of 

the court.

2. Constitutional Law: Judgments. Except in those cases where the denial of in 

forma pauperis status would deny a defendant his or her constitutional right to 

appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows 

the court on its own motion to deny in forma pauperis status on the basis that 

the legal positions asserted by the applicant are frivolous or malicious, provided 

that the court issue a written statement of its reasons, findings, and conclusions 

for denial.

3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev. 

Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without 

rational argument based on the law or on the evidence.

4. Habeas Corpus. Habeas corpus is a special civil proceeding providing a summary remedy to persons illegally detained.

5. ____. A writ of habeas corpus challenges and tests the legality of a person’s 

detention, imprisonment, or custodial deprivation of liberty.

6. Habeas Corpus: Proof. Habeas corpus requires the showing of legal cause, that 

is, that a person is detained illegally and is entitled to the benefits of the writ.

7. Habeas Corpus. A writ of habeas corpus in Nebraska is limited in comparison to 

the writ in federal courts.

8. 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.

9. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors, 

and its use will not be permitted for that purpose.

10. Jurisdiction: Judgments: Appeal and Error. Where jurisdiction has attached, 

mere errors or irregularities in the proceedings, however grave, will not render 

the judgment void, although they may render the judgment erroneous and subject 

to being set aside in a proper proceeding for that purpose.

Appeal from the District Court for Johnson County: Dani

E. Bryan, Jr., Judge. Affirm

Jose E. Gonzalez, pro se.
Nebraska Advance She

672 290 NEBRASKA REPORTS

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan,

and Miller-Lerman, 

Miller-Lerman,

NATURE OF CASE

Jose E. Gonzalez appeals the order of the district court for 

Johnson County which determined that his action seeking a 

writ of habeas corpus was frivolous and denied his motion to 

proceed in forma pauperis. We conclude that Gonzalez’ action 

is frivolous, because the claims he asserts are not claims that, 

if proved, would support issuance of a writ of habeas corpus. 

We therefore affirm the order of the district court which denied 

Gonzalez’ motion to proceed in forma pauperis.

STATEMENT OF FACTS

In 2008, Gonzalez was charged with first degree sexual 

assault on a child. Gonzalez was found guilty in a jury trial 

in the district court for Dakota County, and he was sentenced 

to imprisonment for 30 to 32 years. Gonzalez’ conviction was 

affirmed by the Nebraska Court of Appeals in a direct appeal 

in which he had counsel different from his trial counsel and 

raised several claims of ineffective assistance of trial counsel. 

See State v. Gonzalez, No. A-10-179, 2010 WL 4241022 (Neb. 

App. Oct. 26, 2010) (selected for posting to court Web site). 

In 2012, Gonzalez filed a pro se motion for postconviction 

relief in which he raised various claims, including additional 

claims of ineffective assistance of counsel. The district court 

for Dakota County denied the postconviction motion, and 

the Court of Appeals affirmed. See State v. Gonzalez, No. 

A-12-073, 2012 WL 3740570 (Neb. App. Aug. 28, 2012) 

(selected for posting to court Web site).

On May 19, 2014, Gonzalez, who was in custody at the 

Tecumseh State Correctional Institution, filed a pro se petition 

for a writ of habeas corpus in the district court for Johnson 

County against the warden, Brian Gage. Gonzalez alleged that 
Nebraska Advance She

GONZALEZ v. GAGE 673

Cite as 290 Neb. 671

he was a foreign national and that when he was arrested in 

2008, he was not informed of his rights under article 36, paragraph 1(b), of the Vienna Convention on Consular Relations, 

Apr. 24, 1963, 21 U.S.T. 77 (Vienna Convention). In particular, 

he alleged that under the Vienna Convention, he had a right to 

contact the Mexican consulate for advice and assistance with 

his criminal prosecution. Gonzalez also alleged that his trial 

counsel was deficient in various respects, and he implied that 

he would have been better represented with assistance from the 

Mexican consulate. He claimed that because of the violation of 

the Vienna Convention, “the district court of Dakota County 

lost its jurisdiction to proceed to judgment, and lacked the 

legal authority to impose the sentence.”

The district court for Johnson County denied Gonzalez’ 

motion to proceed in forma pauperis on the ground that 

Gonzalez’ action was frivolous. The court stated that “[t]he 

legal positions advanced by petitioner are frivolous. The writ 

is a collateral attack on a judgment of a valid conviction. The 

court had jurisdiction of the parties and subject matter and 

such a writ will not lie. See Peterson v. Houston, 284 Neb. 

861 (2012).”

Gonzalez appeals the order which denied his motion to proceed in forma pauperis.

ASSIGNMENTS OF ERROR

Gonzalez generally claims, restated, that the district court 

erred when it found that his action was frivolous and denied 

his motion to proceed in forma pauperis. He claims that various errors at his original criminal trial deprived the trial court 

of jurisdiction. He specifically claims that the district court 

for Johnson County erred when it failed to recognize that 

the alleged violation of the Vienna Convention deprived the 

district court for Dakota County of jurisdiction in his original 

criminal case.

STANDARD OF REVIEW

[1] A district court’s denial of in forma pauperis status under 

Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de 
Nebraska Advance She

674 290 NEBRASKA REPORTS

novo on the record based on the transcript of the hearing or the 

written statement of the court. Peterson v. Houston, 284 Neb. 

861, 824 N.W.2d 26 (2012).

ANALYSIS

Gonzalez generally claims that the district court erred when 

it denied his motion to proceed in forma pauperis based on 

its determination that his action for a writ of habeas corpus 

was frivolous. Because we conclude that the claims asserted 

by Gonzalez would not entitle him to habeas corpus relief, we 

determine that the district court did not err when it denied his 

motion to proceed in forma pauperis.

In Forma Pauperis and 

Gonzalez’ Claims.

[2,3] Applications to proceed in forma pauperis are governed by § 25-2301.02. Except in those cases where the denial 

of in forma pauperis status would deny a defendant his or her 

constitutional right to appeal in a felony case, § 25-2301.02(1) 

allows the court on its own motion to deny in forma pauperis 

status on the basis that the legal positions asserted by the 

applicant are frivolous or malicious, provided that the court 

issue a written statement of its reasons, findings, and conclusions for denial. Peterson v. Houston, supra. A frivolous legal 

position pursuant to § 25-2301.02 is one wholly without merit, 

that is, without rational argument based on the law or on the 

evidence. Peterson v. Houston, supra. When an objection to an 

application to proceed in forma pauperis is sustained, the party 

filing the application shall have 30 days to proceed with an 

action or appeal upon payment of fees, costs, or security. Id.; 

§ 25-2301.02(1).

In his petition for a writ of habeas corpus, Gonzalez set forth 

four claims that he alleged would entitle him to habeas corpus 

relief. His claims were generally that (1) trial counsel waived 

voir dire without Gonzalez’ informed consent, (2) trial counsel 

waived a preliminary hearing without Gonzalez’ informed consent, (3) the trial court erroneously admitted evidence of prior 

bad acts, and (4) he was not advised of his rights under the 

Vienna Convention.
Nebraska Advance She

GONZALEZ v. GAGE 675

Cite as 290 Neb. 671

In order to determine whether these claims are frivolous or 

have legal merit entitling Gonzalez to habeas corpus relief, we 

must examine the nature of the claims. As an initial step in 

our examination of Gonzalez’ claims, we review the principles 

regarding habeas corpus relief.

Nebraska Habeas Corpus 

Jurisprudence.

[4-6] Habeas corpus is a special civil proceeding providing 

a summary remedy to persons illegally detained. Peterson v. 

Houston, supra. See, Neb. Const. art. I, § 8; Neb. Rev. Stat. 

§ 29-2801 (Reissue 2008). A writ of habeas corpus challenges 

and tests the legality of a person’s detention, imprisonment, or 

custodial deprivation of liberty. Peterson v. Houston, supra.

Habeas corpus requires the showing of legal cause, that is, that 

a person is detained illegally and is entitled to the benefits of 

the writ. Id.

[7,8] A writ of habeas corpus in Nebraska is limited in comparison to the writ in federal courts. See Peterson v. Houston, 

284 Neb. 861, 824 N.W.2d 26 (2012). Under Nebraska law, an 

action for habeas corpus is a collateral attack on a judgment 

of conviction. Id. Only a void judgment may be collaterally 

attacked. Id. Where the court has jurisdiction of the parties 

and the subject matter, its judgment is not subject to collateral 

attack. Id. 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. Id.

[9,10] A writ of habeas corpus is not a writ for correction 

of errors, and its use will not be permitted for that purpose. 

Peterson v. Houston, supra. The regularity of the proceedings leading up to the sentence in a criminal case cannot be 

inquired into on an application for a writ of habeas corpus, 

because that inquiry is available only in a direct proceeding. 

Id. Where jurisdiction has attached, mere errors or irregularities in the proceedings, however grave, will not render 

the judgment void, although they may render the judgment 
Nebraska Advance She

676 290 NEBRASKA REPORTS

erroneous and subject to being set aside in a proper proceeding 

for that purpose. See id.

The limited availability of relief in Nebraska based on 

habeas corpus is illustrated in our recent case of Peterson 

v. Houston, supra. In that case, the petitioner alleged in a 

petition for a writ of habeas corpus that he was being illegally detained, because the information pursuant to which he 

entered a plea was defective in certain respects and deprived 

the trial court of jurisdiction. He also claimed that the conviction subjected him to double jeopardy and that he was 

provided ineffective assistance of counsel in various respects. 

In Peterson, we first concluded that the information contained 

no deficiencies that would have deprived the trial court of 

jurisdiction and that the petitioner’s allegations to the contrary 

were wholly without legal merit. We then considered the petitioner’s other claims, including, inter alia, claims of double 

jeopardy and ineffective assistance of counsel, and concluded 

that “[n]one of these provide a proper ground for granting a 

writ of habeas corpus in Nebraska.” Id. at 869, 824 N.W.2d 

at 34.

In Peterson, we reasoned that because the trial court had 

jurisdiction, the petitioner’s claims of mere errors or irregularities in the proceedings would not render the judgment 

void, even though such claims, if proved, might render the 

judgment erroneous and subject to be set aside in a proper 

proceeding for that purpose. We therefore concluded that 

because the claims would not support a writ of habeas corpus, the legal positions asserted in the petition for a writ of 

habeas corpus were frivolous, and that the district court did 

not err when it denied the petitioner’s application to proceed 

in forma pauperis.

Application of Nebraska Habeas Corpus 

Jurisprudence and U.S. Supreme 

Court Precedent Regarding 

the Vienna Convention.

Based on the habeas corpus standards set forth above and 

the reasoning in Peterson v. Houston, 284 Neb. 861, 824 

N.W.2d 26 (2012), we determine that Gonzalez’ claims that 
Nebraska Advance She

GONZALEZ v. GAGE 677

Cite as 290 Neb. 671

trial counsel improperly waived voir dire and a preliminary 

hearing and that the trial court made erroneous evidentiary 

rulings are claims of mere errors or irregularities in the proceedings that did not deprive the trial court of jurisdiction 

and did not render the judgment of criminal conviction void. 

These claims, even if proved, would not entitle Gonzalez to 

habeas corpus relief, and therefore, by applying the reasoning 

illustrated in Peterson, we conclude that these claims were 

frivolous and do not entitle Gonzalez to an order granting in 

forma pauperis status.

Gonzalez’ claim that his rights under the Vienna Convention 

were violated merits further discussion and analysis. This type 

of claim has not been addressed by this state’s appellate courts, 

but there is relevant U.S. Supreme Court precedent, which 

we apply.

The appellate courts of this state appear to have addressed 

the Vienna Convention in the following few reported cases: 

In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 

N.W.2d 74 (2009); In re Interest of Antonio O. & Gisela O., 

18 Neb. App. 449, 784 N.W.2d 457 (2010); and In re Interest 

of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). Each 

of the foregoing cases involved provisions of the Vienna 

Convention relating to proceedings for termination of parental rights; these cases did not involve article 36, upon which 

Gonzalez relies. We note for completeness that recently, in 

State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920 

(2014), we decided an appeal and affirmed the dismissal of 

a motion for postconviction relief in which the appellant had 

raised, inter alia, a claim of an infringement of his rights under 

the Vienna Convention. Although the appellant in FernandoGranados assigned error with respect to certain claims, he did 

not claim error with respect to the allegation involving the 

Vienna Convention and, as a result, our opinion in FernandoGranados does not offer guidance.

In the present case, Gonzalez’ claim involves article 36 

of the Vienna Convention relating to criminal proceedings. 

Gonzalez contends that the violation of these provisions 

deprived the district court of jurisdiction and that he is therefore entitled to a writ of habeas corpus. We must therefore 
Nebraska Advance She

678 290 NEBRASKA REPORTS

review the law regarding the rights afforded under article 36 

of the Vienna Convention to determine whether such rights are 

enforceable individually and, in particular, whether a violation 

of such rights would deprive a court presiding over a criminal 

proceeding of jurisdiction and entitle a defendant to a writ of 

habeas corpus.

Article 36, paragraph 1(b), of the Vienna Convention generally provides that when a foreign national is arrested, committed to prison or custody pending trial, or detained in any 

other manner, authorities in the United States shall so inform 

the consulate of the foreign national’s home country. The 

paragraph provides that the foreign national’s communications with the consulate shall be forwarded without delay. The 

paragraph further provides that U.S. “authorities shall inform 

the person concerned without delay of his rights under this 

sub-paragraph.”

The U.S. Supreme Court has discussed relevant issues related 

to article 36 of the Vienna Convention in several opinions. In 

two consolidated cases reported in Sanchez-Llamas v. Oregon, 

548 U.S. 331, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006), 

state court defendants sought to enforce what they asserted 

were individual rights created by article 36. In the first case, 

the criminal defendant sought suppression of his statements to 

police as a remedy for a claimed violation of his rights under 

article 36. In the second case, the defendant sought to raise a 

claim of a violation of his various rights under article 36 in a 

postconviction action.

In Sanchez-Llamas, the U.S. Supreme Court first noted that 

both cases implicated the issue of whether article 36 grants 

rights that may be invoked by individuals in a judicial proceeding. However, because the Court ultimately concluded 

that neither defendant would be entitled to the relief sought, 

the Court determined that it was “unnecessary to resolve the 

question whether the Vienna Convention grants individuals 

enforceable rights,” and for purposes of these cases, the Court 

assumed without deciding that article 36 did grant such rights. 

548 U.S. at 343. With that understanding, the Court concluded with respect to the first case that “neither the Vienna 

Convention itself nor our precedents applying the exclusionary 
Nebraska Advance She

GONZALEZ v. GAGE 679

Cite as 290 Neb. 671

rule support suppression of [the defendant’s] statements to 

police.” 548 U.S. at 350. With regard to the second case, the 

Court concluded that “claims under Article 36 of the Vienna 

Convention may be subjected to the same procedural default 

rules that apply generally to other federal-law claims,” 548 

U.S. at 360, and that the defendant’s article 36 claim raised in 

a state postconviction action was also subject to default under 

the state’s procedural rules. Applying the procedural default 

rules, the Court determined that because the defendant had not 

raised the claims at trial, the rules barred the claim. We read 

Sanchez-Llamas as approving the application of state jurisprudence substantively and procedurally to criminal defendants’ 

state court actions claiming violations of article 36, paragraph 

1(b), of the Vienna Convention.

The U.S. Supreme Court considered article 36 of the 

Vienna Convention in cases subsequent to Sanchez-Llamas. In 

Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 170 L. Ed. 

2d 190 (2008), the Court noted that the International Court of 

Justice (ICJ) in Case Concerning Avena and Other Mexican 

Nationals (Mexico v. United States of America), 2004 I.C.J. 12 

(Mar. 31) (Avena), had determined that the United States had 

violated article 36 of the Vienna Convention when it failed 

to inform Mexican nationals of their rights under the Vienna 

Convention. However, the Court determined in Medellin that 

neither the ICJ’s decision nor a determination by the President, 

through a Memorandum for the Attorney General directing 

state courts to give effect to the ICJ’s decision, constituted 

directly enforceable federal law that preempted state procedural rules, the application of which had been endorsed 

in Sanchez-Llamas.

In Medellin, the Court characterized article 36 as non-selfexecuting and observed that “[a] non-self-executing treaty, 

by definition, is one that was ratified with the understanding 

that it is not to have domestic effect of its own force.” 552 

U.S. at 527. The Court also noted that implementation of ICJ 

judgments is not provided for in the Vienna Convention. The 

Court noted instead that it was necessary for Congress to enact 

statutes implementing the treaty, and Congress had not taken 

such action. The Court therefore concluded in Medellin that 
Nebraska Advance She

680 290 NEBRASKA REPORTS

the ICJ’s decision in Avena did not change the Court’s holding in Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S. Ct. 

2669, 165 L. Ed. 2d 557 (2006), to the effect that the Vienna 

Convention did not preclude the application of state law to a 

claimed violation of article 36.

In Garcia v. Texas, ___ U.S. ___, 131 S. Ct. 2866, 180 L. 

Ed. 2d 872 (2011), the Court noted that it had been 7 years 

since the ICJ ruling in Avena and 3 years since the Court’s 

decision in Medellin and that Congress had not yet enacted a 

statute implementing the Vienna Convention or the ICJ ruling. 

The Court concluded in Garcia that relief for an alleged Vienna 

Convention violation could not be given “on the ground that 

Congress might enact implementing legislation.” 131 S. Ct. at 

2867-68 (emphasis supplied).

Because the U.S. Supreme Court has not conclusively 

decided that article 36 of the Vienna Convention does not create individually enforceable rights, we take the approach that 

the Court itself applied in Sanchez-Llamas. That is, we assume 

without deciding that such rights exist, and then we decide 

whether the remedy sought by Gonzalez—a writ of habeas corpus—is a proper method to enforce such rights under state law. 

We conclude that it is not.

With respect to jurisdiction, we note the case of U.S. v. 

Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000), in which 

a defendant claimed that he had not been advised of his right 

to contact his consul in violation of article 36 of the Vienna 

Convention. The U.S. Court of Appeals for the Eighth Circuit 

analyzed the claim and stated that an alleged error based on 

a claimed violation of individual rights under article 36 of 

the Vienna Convention “does not constitute a jurisdictional 

defect.” 207 F.3d at 1035. See, also, U.S. v. Gonzales, 339 F.3d 

725 (8th Cir. 2003). We similarly determine that the violation 

of the Vienna Convention alleged by Gonzalez is not a jurisdictional defect and, thus, did not deprive the court of jurisdiction 

of the offense and the person of the defendant and that it did 

not void the sentence entered by the court.

With respect to the substance of Gonzalez’ claim, we note 

that in Sanchez-Llamas, the Court concluded that the states 

could apply their substantive and procedural jurisprudence to 
Nebraska Advance She

GONZALEZ v. GAGE 681

Cite as 290 Neb. 671

claims of violations of article 36 of the Vienna Convention 

brought by state criminal defendants. We therefore apply 

Nebraska jurisprudence regarding habeas corpus relief. As 

noted above, habeas corpus relief in the form of discharge will 

not lie in Nebraska where an alleged violation is a claim of 

mere irregularity in the proceeding that does not deprive the 

trial court of jurisdiction and does not render the judgment 

void. See Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 

26 (2012).

Gonzalez’ assertion that his rights under the Vienna 

Convention were violated, like his other claims discussed 

above, is a claim of a mere error or irregularity in the proceedings that does not deprive the trial court of jurisdiction 

and does not render the judgment void. Because the claims 

Gonzalez raised in his petition for a writ of habeas corpus, 

including the claimed violation of the Vienna Convention, were 

not claims that would entitle him to a writ of habeas corpus, we 

conclude that the district court did not err when it determined 

that Gonzalez’ action was frivolous and therefore denied his 

request to proceed in forma pauperis.

CONCLUSION

For the reasons explained above, we conclude that the district court did not err when it determined that Gonzalez’ action 

seeking a writ of habeas corpus was frivolous and denied 

Gonzalez’ motion to proceed in forma pauperis. Accordingly, 

we affirm.

Affirmed

Cassel, J., not participating