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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. RUSH

Cite as 31 Neb. App. 1

State of Nebraska, appellee, v. 

Clifford L. Rush, appellant.

___ N.W.2d ___

Filed May 10, 2022. No. A-21-351.

1. Judges: Recusal: Appeal and Error. A motion requesting a judge to 

recuse himself or herself on the ground of bias or prejudice is addressed 

to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or prejudice as a 

matter of law.

2. Postconviction: Judgments: Appeal and Error. Whether a claim raised 

in a postconviction proceeding is procedurally barred is a question of 

law which is reviewed independently of the lower court’s ruling.

3. Pleadings: Words and Phrases. Historically, “verified,” for the purpose 

of a pleading, has meant that the signer believed the facts stated in the 

pleading to be true.

4. Acknowledgments: Words and Phrases. Verification stands in contrast to “acknowledgment,” which is the act by which a party who has 

executed an instrument goes before a competent officer and declares 

or acknowledges the same as his or her genuine and voluntary act 

and deed.

5. Postconviction: Pleadings: Waiver. A challenge to a verification in a 

postconviction action cannot be waived.

6. Pleadings. Proper verification requires the petitioner to communicate 

that he or she believes that the contents of the pleadings are true.

7. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, 

a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.

8. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

9. Judges: Recusal. In evaluating a trial judge’s alleged bias, the question is whether a reasonable person who knew the circumstances of 

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STATE v. RUSH

Cite as 31 Neb. App. 1

the case would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or prejudice 

was shown.

10. Postconviction: Judges: Recusal. There is no rule of law which automatically disqualifies a judge who has presided over the petitioner’s 

prior criminal proceeding from subsequently considering the petitioner’s 

motion for postconviction relief.

11. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

12. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

13. Postconviction: Proof. In the absence of alleged facts that would render the judgment void or voidable, the proper course is to overrule the 

motion for postconviction relief without an evidentiary hearing.

14. Postconviction: Constitutional Law: Proof. A trial court must grant 

an evidentiary hearing to resolve the claims in a postconviction motion 

when the motion contains factual allegations which, if proved, constitute 

an infringement of the defendant’s rights under the Nebraska or federal Constitution.

15. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively 

show the defendant is entitled to no relief, the court is not required to 

grant an evidentiary hearing.

16. ____: ____. In a postconviction proceeding, an evidentiary hearing is 

not required (1) when the motion does not contain factual allegations 

which, if proved, constitute an infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions of fact 

or law; or (3) when the records and files affirmatively show that the 

defendant is entitled to no relief.

17. Postconviction: Appeal and Error. A motion for postconviction relief 

cannot be used to secure review of issues which were or could have 

been litigated on direct appeal.

Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

Clifford Rush, pro se.
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. RUSH

Cite as 31 Neb. App. 1

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

Clifford L. Rush, pro se, appeals from the order of the 

Lancaster County District Court denying his motion for postconviction relief without an evidentiary hearing. We affirm.

BACKGROUND

Plea and Direct Appeal

On October 13, 2017, the State filed an information charging Rush with one count of terroristic threats, a Class IIIA 

felony, pursuant to Neb. Rev. Stat. § 28-311.01 (Reissue 2016); 

one count of first degree false imprisonment, a Class IIIA 

felony, pursuant to Neb. Rev. Stat. § 28-314 (Reissue 2016); 

two counts of use of a firearm to commit a felony, each a 

Class IC felony, pursuant to Neb. Rev. Stat. § 28-1205(1)(c) 

(Reissue 2016); and one count of possession of a firearm by 

a prohibited person, a Class ID felony, pursuant to Neb. Rev. 

Stat. § 28-1206(1) (Reissue 2016). These charges stemmed 

from an incident that took place on August 7, during which a 

woman who had been living with Rush was threatened by Rush 

with a handgun in an apartment; the building and neighboring 

apartments had to be evacuated and a “SWAT team” called. 

The woman climbed out of a bathroom window, and Rush later 

voluntarily exited the apartment.

Rush was appointed trial counsel, and he entered a plea 

of not guilty with counsel present at his arraignment held 

on October 25, 2017. Shortly thereafter, Rush filed several 

motions on a pro se basis, and these motions were rejected by 

the district court in light of Rush’s appointment of counsel.

Rush’s trial counsel filed a motion to withdraw, and a 

hearing was held on this motion on November 21, 2017. 
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Rush’s counsel advised that his trial schedule had caused difficulties in his attorney-client relationship with Rush. Rush 

alleged that he did not trust his trial counsel and demanded 

that he be allowed to proceed pro se. The district court found 

that there was not sufficient reason to discharge Rush’s trial 

counsel, and the court proceeded to ask several questions to 

ascertain whether Rush was competent to represent himself 

and whether this decision was made knowingly, intelligently, 

and voluntarily. Due to Rush’s frequent interruptions and outbursts during the course of the court’s questioning, the court 

found that Rush was “absolutely not capable of representing 

[himself] because [he could not] even follow the Court’s simplest of directions” in answering the court’s questions. The 

court then overruled the motion to withdraw.

Pursuant to a plea agreement, the State filed an amended 

information charging Rush with one count of second degree 

assault, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-309 

(Reissue 2016). At a hearing held on April 2, 2018, Rush 

pled no contest to this charge. After the State presented a 

factual basis, the district court accepted Rush’s no contest 

plea and found him guilty of second degree assault. After 

a hearing on May 1, the court sentenced Rush to 18 to 20 

years’ imprisonment.

Rush subsequently appealed his conviction and sentence. 

In case No. S-18-502, Rush claimed that (1) the district court 

erred in denying his trial counsel’s motion to withdraw, (2) he 

received ineffective assistance of trial counsel, and (3) the district court imposed an excessive sentence. In a memorandum 

opinion filed on August 22, 2019, the Nebraska Supreme Court 

found no error by the district court and affirmed Rush’s conviction and sentence. At the time of his direct appeal, Rush had 

retained different counsel than his trial counsel.

Postconviction

On July 20, 2020, Rush, pro se, filed a “Verified Motion 

for Postconviction Relief.” Rush alleged that the Nebraska 
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Supreme Court’s memorandum opinion in case No. S-18-502 

violated his rights (1) under the 6th Amendment to the U.S. 

Constitution when it affirmed the district court’s denial of 

Rush’s request to proceed pro se, (2) under the 5th and 14th 

Amendments to the U.S. Constitution when it affirmed the district court’s denial of the motion to withdraw filed by Rush’s 

trial counsel, and (3) under the 6th and 14th Amendments to 

the U.S. Constitution in finding that Rush did not receive ineffective assistance of trial counsel.

In its responsive motion, the State requested the district 

court to deny Rush’s request for postconviction relief without 

an evidentiary hearing. The State argued that Rush’s claims 

were all procedurally barred because such claims actually 

were or could have been litigated on direct appeal in case 

No. S-18-502. The State subsequently filed a motion to dismiss, alleging that Rush’s motion for postconviction relief was 

not properly verified by Rush as required by Neb. Rev. Stat. 

§ 29-3001(1) (Reissue 2016).

On December 4, 2020, Rush filed a “Request for Recusal,” 

requesting that the district court judge, who had also presided 

over Rush’s criminal proceeding, recuse herself from ruling on 

Rush’s postconviction motion. Rush later filed an “Amendment 

to Request for Recusal” on December 30. Rush alleged that 

the district court judge “displayed a personal interest in the 

outcome of the trial, when . . . she chose to allow [Rush’s trial 

counsel] to represent him” despite the “toxic relationship . . . 

between counsel and [Rush],” and he asserted the district court 

judge’s denial of “his constitutional rights to effective assist

ance of counsel, conflict free counsel, and . . . a fair trial . . . 

justifies recusal.”

A hearing was held on January 19, 2021, regarding the parties’ motions. The district court overruled Rush’s request for 

recusal, and the State orally withdrew its motion to dismiss 

regarding Rush’s failure to properly verify his motion for postconviction relief.
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STATE v. RUSH

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In its order entered on April 22, 2021, the district court 

denied Rush’s motion for postconviction relief without an evidentiary hearing. The court found that Rush’s motion raised 

the “exact same issues he raised unsuccessfully on appeal to 

the Nebraska Supreme Court,” and these claims were therefore 

procedurally barred.

Rush appeals.

ASSIGNMENTS OF ERROR

Rush claims the district court (1) abused its discretion 

in denying his request for recusal and (2) erred in dismissing his motion for postconviction relief without an evidentiary hearing.

STANDARD OF REVIEW

[1] A motion requesting a judge to recuse himself or herself 

on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or 

prejudice as a matter of law. State v. Buttercase, 296 Neb. 304, 

893 N.W.2d 430 (2017).

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law which is reviewed 

independently of the lower court’s ruling. State v. Hessler, 305 

Neb. 451, 940 N.W.2d 836 (2020).

ANALYSIS

Verification of Rush’s Motion 

for Postconviction Relief

As a preliminary matter, the State’s brief on appeal raises 

the issue of Rush’s motion for postconviction relief not being 

properly verified. The record indicates that the State initially 

filed a motion to dismiss Rush’s motion for postconviction 

relief because it was “not properly verified” by Rush. The 

State’s motion claimed that the last name of the signature 

of the notary public did not match the printed last name on 
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Cite as 31 Neb. App. 1

the notary’s stamp. (We observe that upon first glance of 

the notary public’s signature, the last name could be read as 

something different than the notary public’s official stamp; 

however, upon closer examination, it could certainly be the 

same name.) The State orally withdrew its motion at the hearing held on January 19, 2021, at which time the district court 

informed Rush that the State “conceded” his postconviction 

petition “was sworn to properly” and that the State realized 

its argument “wasn’t a good argument, so [it] gave up on 

that one.”

The State now argues that Rush’s postconviction motion 

“does not contain a verification section, nor is it supported 

by an accompanying affidavit verifying the motion.” Brief for 

appellee at 8. In its brief on appeal, the State suggested that 

a case pending before the Nebraska Supreme Court could be 

dispositive of this appeal.

[3,4] The case referenced by the State in its brief to this 

court was State v. Burries, 310 Neb. 688, 369 N.W.2d 96 

(2022); the opinion was released after briefing in this case 

and likewise involved a postconviction appeal with an alleged 

deficient verification. Regarding what it means for a motion for 

postconviction relief to be “verified,” the Nebraska Supreme 

Court observed:

Neb. Rev. Stat. § 29-3001(1) (Reissue 2016) provides 

in relevant part that “[a] prisoner in custody under sentence and claiming a right to be released . . . may file 

a verified motion . . . stating the grounds relied upon 

and asking the court to vacate or set aside the sentence.” 

Section 29-3001 does not define “verified,” but the concept is discussed elsewhere in Nebraska Law.

Until 1969, all pleadings filed in Nebraska were 

required to be verified. Historically, “verified,” for the 

purpose of a pleading, has meant that the signer “believed 

the facts stated in the pleading to be true.” Verification 

stands in contrast to “acknowledgment,” which is “the act 

by which a party who has executed an instrument goes 
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before a competent officer and declares or acknowledges 

the same as his or her genuine and voluntary act and 

deed.” In other words, to “verify” a pleading is to say 

that the signer believes the facts contained therein are 

truthful and to “acknowledge” means that the signer of 

the pleading appears before a notary or other officer, who 

then confirms that the signer is who the signer purports 

to be.

We agree that verification of a motion filed under 

§ 29-3001 is undisputedly required. In the normal course 

of civil procedure, the failure of a litigant to object to 

the lack of a verified petition waives any argument with 

respect to that lack of verification. However, we conclude that this usual rule is inapplicable in postconviction actions.

State v. Burries, 310 Neb. at 692-93, 969 N.W.2d at 99.

[5] As previously noted, the State in the present case initially filed a motion challenging the verification in Rush’s postconviction motion, but it subsequently withdrew that motion. 

Although the State’s withdrawal of its motion challenging 

Rush’s verification might have constituted a waiver of any 

subsequent such challenge, see, e.g., In re Interest of L.D. et 

al., 224 Neb. 249, 398 N.W.2d 91 (1986) (failure of litigant to 

object to lack of verified pleading waives any argument with 

respect to that defect), we read the last paragraph in the block 

quote above from State v. Burries, supra, to indicate that a 

challenge to a verification in a postconviction action cannot 

be waived. Although the concurring opinion in State v. Burries

cites to In re Interest of L.D. et al., supra, and questions 

the majority’s decision to make the waiver rule inapplicable 

in postconviction actions, the majority’s holding nevertheless stands. Therefore, the State’s initial objection to Rush’s 

verification and subsequent withdrawal of the same does not 

preclude further consideration of this issue.

We next observe that while the Nebraska Supreme Court 

in State v. Burries concluded that there was a “defect in 
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verification” in the defendant’s second amended motion for 

postconviction relief and affirmed the district court’s dismissal 

of the same, the court did not specifically identify the defect. 

310 Neb. at 694, 969 N.W.2d at 99. Nor did the Supreme Court 

specify the exact manner in which a motion for postconviction 

relief must be verified. We therefore consider additional case 

law for guidance on this issue.

[6] Proper verification requires the petitioner to communicate that he or she believes that the contents of the pleadings 

are true. See, State v. Burries, 310 Neb. at 692, 969 N.W.2d at 

99 (“[h]istorically, ‘verified,’ for the purpose of a pleading, has 

meant that the signer ‘believed the facts stated in the pleading 

to be true’”); Marshall v. State, 116 Neb. 45, 48, 215 N.W. 

564, 566 (1927), disapproved on other grounds, Hameyer v. 

State, 148 Neb. 798, 29 N.W.2d 458 (1947) (“[v]erify means 

‘The swearing to an affidavit. To confirm and substantiate 

by oath’”).

While the State is correct that Rush’s motion for postconviction relief lacks a separate section entitled “verification” 

or a separate supporting affidavit, we note that Rush’s motion 

contains his signature, the date, a notary’s signature, and a 

notary stamp, in two places: once following the concluding paragraph of the motion and again following the certificate of service. In the second signature section, it states: 

“SUBSCRIBE [sic] AND SWORN TO BEFORE ME THIS 

16th DAY OF JULY, 2020.” This is followed by the words, 

“NOTARY PUBLIC,” which is then followed by the notary’s 

signature and stamp.

Given the above language included in Rush’s motion for 

postconviction relief, we find the Nebraska Supreme Court’s 

decision in State v. Jones, 254 Neb. 212, 575 N.W.2d 156 

(1998), disapproved on other grounds, State v. Silvers, 255 

Neb. 702, 587 N.W.2d 325 (1998), to provide guidance on 

this issue. In State v. Jones, supra, the Nebraska Supreme 

Court addressed the question of whether a criminal information was properly verified by the State as it related to a 
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prisoner’s postconviction claim of ineffective assistance of 

trial counsel. The initial information filed did not contain a 

formal verification in which the county attorney swore that 

the facts in the information were true. The prisoner alleged 

that the failure to include this verification caused the information to be deficient under Neb. Rev. Stat. § 29-1603 (Reissue 

1995), which provided that “[a]ll informations shall be verified by the oath of the county attorney, complainant, or some 

other person . . . .” State v. Jones, 254 Neb. at 215, 575 

N.W.2d at 159. However, citing to Marshall v. State, supra, 

the Supreme Court found that while lacking formal verification, the information had been properly verified in accordance 

with § 29-1603 because it had “been subscribed and sworn to 

[by the county attorney] before the deputy clerk of the district 

court” with accompanying signatures by the deputy county 

attorney and the seal of the district court. State v. Jones, 254 

Neb. at 217, 575 N.W.2d at 160.

Based on the foregoing case law, we find that the first sig

nature section, which contains only Rush’s signature, the date, 

and the notary’s signature and stamp, serves only as an acknowledgment rather than a verification. See State v. Burries, 310 

Neb. 688, 969 N.W.2d 96 (2022) (acknowledgment means 

signer of pleading appears before notary, who then confirms 

signer is who signer purports to be). However, we find the 

language contained in the second signature section at the end 

of Rush’s motion for postconviction relief to be a sufficient 

verification. In that signature section, it indicates that the 

document was “SUBSCRIBE[D] AND SWORN TO” by Rush 

before a notary public on the date indicated and was accompanied by both Rush’s signature and the notary’s signature and 

official stamp. This adequately “‘confirm[s] and substantiate[s] 

by oath’” that Rush believed the contents of his motion were 

true. See Marshall v. State, 116 Neb. at 48, 215 N.W. at 566. 

Accordingly, we conclude that Rush’s motion for postconviction relief was properly verified under § 29-3001, and we proceed now to address Rush’s allegations on appeal.
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Request for District Court 

Judge’s Recusal

[7-9] Rush alleges the district court abused its discretion in 

denying his request that the district court judge recuse herself 

from this postconviction action. Under the Nebraska Revised 

Code of Judicial Conduct, a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be 

questioned. State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 

(2017). A defendant seeking to disqualify a judge on the basis 

of bias or prejudice bears the heavy burden of overcoming the 

presumption of judicial impartiality. Id. The Nebraska Supreme 

Court has stated that in “evaluating a trial judge’s alleged bias, 

the question is whether a reasonable person who knew the circumstances of the case would question the judge’s impartiality 

under an objective standard of reasonableness, even though no 

actual bias or prejudice was shown.” Id. at 314, 893 N.W.2d 

at 439.

Rush alleges that the proceedings held before the district 

court involved exchanges of “chaotic words . . . as [Rush] 

diligently attempted to proceed pro se” that resulted in numerous “capricious and egregious admonishments that crossed 

the threshold of judicial misconduct” from the district court 

judge. Brief for appellant at 6. He further argues that the district court’s refusal to allow his trial counsel to withdraw and 

thereby allow Rush to proceed pro se was demonstrative of the 

judge’s “bias and prejudice.” Id. at 7. Based on these allegations stemming from the prior criminal prosecution, he claims 

that the district court judge’s failure to recuse herself in this 

postconviction action was an abuse of discretion.

[10] Having reviewed the record in this case, we find the 

district court correctly denied Rush’s request for recusal. We 

first observe that there is no rule of law which automatically disqualifies a judge who presided over the petitioner’s 

prior criminal proceeding from subsequently considering 

the petitioner’s motion for postconviction relief. See State v. 

McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004). Rush does 
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not direct this court to any particular exchange or statement 

on the record. However, the record indicates that the district 

court’s admonitions were the result of Rush’s frequent interruptions and nonresponsive answers during the court’s instructions and questioning. These admonitions appear to be evenhanded instructions for Rush to not interrupt and to answer 

the court’s questions as directed, and it was Rush’s continued 

interruptions and failure to follow the court’s directives that 

resulted in the court’s denial of the motion to withdraw. Other 

exchanges between Rush and the district court included the 

court’s advisement of the difficulties in proceeding pro se in 

light of the charges and the rights waived by pleading no contest. Given this record, no reasonable person who knew the 

circumstances of this case would question the district court 

judge’s impartiality under an objective standard of reasonableness. Accordingly, the district court’s denial of Rush’s request 

for recusal was not an abuse of discretion.

Denial of Postconviction Relief 

Without Evidentiary Hearing

Rush claims the district court erred in denying his motion 

for postconviction relief without an evidentiary hearing. His 

motion alleges three grounds for relief directed at the Nebraska 

Supreme Court’s decision in case No. S-18-502 concerning 

Rush’s claims on direct appeal.

[11-13] Postconviction relief is available to a prisoner in 

custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. 

State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). In 

a motion for postconviction relief, the defendant must allege 

facts which, if proved, constitute a denial or violation of his 

or her rights under the U.S. or Nebraska Constitution, causing 

the judgment against the defendant to be void or voidable. Id. 

In the absence of alleged facts that would render the judgment void or voidable, the proper course is to overrule the 
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motion for postconviction relief without an evidentiary hearing. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).

[14-17] A trial court must grant an evidentiary hearing to 

resolve the claims in a postconviction motion when the motion 

contains factual allegations which, if proved, constitute an 

infringement of the defendant’s rights under the Nebraska or 

federal Constitution. State v. Newman, supra. If a postconviction motion alleges only conclusions of fact or law, or if the 

records and files in a case affirmatively show the defendant is 

entitled to no relief, the court is not required to grant an evidentiary hearing. Id. Thus, in a postconviction proceeding, an 

evidentiary hearing is not required (1) when the motion does 

not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights; (2) when 

the motion alleges only conclusions of fact or law; or (3) when 

the records and files affirmatively show that the defendant 

is entitled to no relief. Id. A motion for postconviction relief 

cannot be used to secure review of issues which were or could 

have been litigated on direct appeal. State v. Parnell, 305 Neb. 

932, 943 N.W.2d 678 (2020).

As previously described, the allegations set forth in Rush’s 

motion for postconviction relief take issue with the Nebraska 

Supreme Court’s findings and holdings in case No. S-18-502 

concerning his request to proceed pro se, his trial counsel’s 

motion to withdraw, and his allegations of ineffective assist

ance of trial counsel. These matters were already addressed 

on direct appeal, and Rush’s claims are therefore procedurally 

barred. See State v. Parnell, supra. The district court did not 

err in denying his motion for postconviction relief without an 

evidentiary hearing.

CONCLUSION

For the reasons set forth above, we affirm the order of the 

district court denying Rush’s motion for postconviction relief 

without an evidentiary hearing.

Affirmed.