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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. HILL

Cite as 310 Neb. 647

State of Nebraska, appellee, 

v. Teon D. Hill, appellant.

___ N.W.2d ___

Filed December 23, 2021. No. S-21-369.

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.

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. Postconviction: Pleadings: Time. The Nebraska Postconviction Act 

contains a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of four triggering events or August 27, 

2011, whichever is later.

4. Postconviction: Limitations of Actions: Words and Phrases: Appeal 

and Error. The issuance of a mandate by a Nebraska appellate court is 

a definitive determination of the “conclusion of a direct appeal,” and the 

“date the judgment of conviction became final,” for purposes of Neb. 

Rev. Stat. § 29-3001(4)(a) (Reissue 2016).

5. Postconviction. In Nebraska, postconviction relief is strictly prescribed.

6. Postconviction: Legislature: Intent. A postconviction proceeding is 

one the Legislature intended to be limited in scope and summary 

in nature.

7. Postconviction: Motions for New Trial: Evidence: Collateral Attack: 

Final Orders. A postconviction proceeding and a motion for new trial 

based on newly discovered evidence are both collateral attacks on a final 

criminal judgment.

8. Limitations of Actions. The doctrine of equitable tolling permits a 

court to excuse a party’s failure to comply with the statute of limitations where, because of disability, irremediable lack of information, or 

Nebraska Supreme Court Online Library

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

03/11/2022 08:07 AM CST
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Nebraska Supreme Court Advance Sheets

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STATE v. HILL

Cite as 310 Neb. 647

other circumstances beyond his or her control, the plaintiff cannot be 

expected to file suit on time.

9. ____. Equitable tolling requires due diligence on the part of the claimant.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ., and Nelson, District Judge.

Cassel, J.

INTRODUCTION

Over 3 years after Teon D. Hill’s direct appeal concluded, 

he moved for postconviction relief. The district court denied 

the motion as untimely filed. On appeal, Hill contends that 

the 1-year limitation period 1 for filing a postconviction motion 

should be tolled during the pendency of a different collateral 

attack on the judgment. Because § 29-3001(4) does not provide 

for tolling under the circumstances and Hill was not entirely 

prevented from filing his motion during the 1-year period, we 

affirm the district court’s order.

BACKGROUND

In 2014, the State charged Hill with several crimes, including 

murder in the first degree. A jury convicted Hill of all but one 

charge, and the court accepted the jury’s verdict on February 

24, 2016. The district court subsequently imposed sentences, 

including life imprisonment for the murder conviction.

Through counsel different from trial counsel, Hill filed 

a direct appeal. He challenged the overruling of several 

motions, statements made by the prosecutor in rebuttal closing 

arguments, and whether he received ineffective assistance of 

1 See Neb. Rev. Stat. § 29-3001(4) (Reissue 2016).
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STATE v. HILL

Cite as 310 Neb. 647

trial counsel. We affirmed the judgments and convictions, and 

our mandate issued on February 6, 2018.

On January 16, 2019, Hill filed a pro se motion for new trial 

based on what he characterized as newly discovered evidence 

and a claim of actual innocence. On May 14, 2020, the district 

court denied the motion due to the lack of newly discovered 

evidence presented in the motion. Hill appealed. On February 

26, 2021, we affirmed the district court’s order which dismissed the motion for new trial without an evidentiary hearing. 

Our mandate issued on March 12.

On April 1, 2021, Hill, through counsel, filed a verified 

motion for postconviction relief. He alleged that he received 

ineffective assistance of counsel. Hill’s motion contained a procedural background section which set forth the various dates 

of filings, dispositions, and mandates, but he did not mention tolling or the timeliness of his motion. Fifteen days later 

and without an evidentiary hearing, the district court entered 

an order denying postconviction relief. The court determined 

that the motion was barred by the limitation period under 

§ 29-3001(4).

Hill filed a timely appeal.

ASSIGNMENT OF ERROR

Hill assigns that the court erred in dismissing his motion for 

postconviction relief based on the running of the limitations 

period under § 29-3001(4). He contends that the limitations 

period was tolled by the filing of his motion for new trial and 

that if not actually tolled, it should be equitably tolled.

STANDARD OF REVIEW

[1,2] 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. 2

2 State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019).
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STATE v. HILL

Cite as 310 Neb. 647

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

ANALYSIS

[3] The Nebraska Postconviction Act contains a 1-year time 

limit for filing a verified motion for postconviction relief, 

which runs from one of four triggering events or August 27, 

2011, whichever is later. 4 The triggering event here is contained in § 29-3001(4)(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.”

[4] The issuance of a mandate by a Nebraska appellate court 

is a definitive determination of the “conclusion of a direct 

appeal,” and the “date the judgment of conviction became 

final,” for purposes of § 29-3001(4)(a). 5 Hill’s direct appeal 

concluded when our mandate issued on February 6, 2018. His 

motion for postconviction relief—filed on April 1, 2021—was 

filed outside the 1-year limitation period.

In an attempt to escape the time bar, Hill now advances two 

tolling arguments. He did not clearly raise these arguments in 

the district court. To the extent that the timeline set forth in the 

procedural background section of Hill’s motion for postconviction relief was sufficient to preserve the issue for appellate 

review, neither of his arguments has merit.

First, Hill contends that the limitations period was tolled 

by the filing of his motion for new trial and subsequent disposition of that motion. His argument rests on the 21 days 

remaining in the limitations period under § 29-3001(4) at the 

time he filed his motion for new trial. Hill maintains that upon 

the issuance of our mandate in 2021 concerning his motion 

for new trial, he should have 21 days to file his motion for 

3 Id.

4 State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).

5 State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).
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postconviction relief based upon tolling. And he points out that 

he filed his motion for postconviction relief on the 20th day 

following our mandate. But Hill cites no authority supporting 

his request.

[5,6] In Nebraska, postconviction relief is strictly prescribed. 6

We have characterized it as “a special statutory proceeding that 

permits collateral attack upon a criminal judgment” 7 and as “a 

very narrow category of relief, available only to remedy prejudicial constitutional violations.” 8 The postconviction proceeding is one “the Legislature intended to be limited in scope and 

summary in nature.” 9 And because the U.S. Supreme Court 10

and this court 11 have recognized that states have no obligation 

to provide postconviction relief proceedings, any right to such 

relief is not grounded in the federal or state Constitution.

[7] A postconviction proceeding and a motion for new trial 

based on newly discovered evidence are both collateral attacks 

on a final criminal judgment. 12 But the Nebraska Postconviction 

Act is the primary procedure for bringing collateral attacks on 

final judgments in criminal cases based upon constitutional 

principles. 13 If a defendant has a collateral attack that could be 

asserted under the act, that act is his or her sole remedy. 14

The Legislature has not provided for the tolling of the 

limitation period under § 29-3001(4). Extending the limitation period until resolution of a different collateral attack on 

6 State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

7 State v. Robertson, 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016).

8 Id. at 43, 881 N.W.2d at 876.

9 Id.

10 See Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 

539 (1987).

11 See, State v. Lotter, supra note 6; State v. Victor, 242 Neb. 306, 494 

N.W.2d 565 (1993).

12 See State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).

13 State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014).

14 Id.
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STATE v. HILL

Cite as 310 Neb. 647

a final judgment is inconsistent with the statutory language of 

§ 29-3001(4) and with the summary nature of a postconviction proceeding. Just as we said with respect to recognizing a 

common-law remedy for the purpose of asserting time-barred 

postconviction claims, if we allowed the time to be tolled for 

other collateral attacks “we would be undermining the purpose 

of the Legislature in enacting § 29-3001(4).” 15

[8,9] Second, and alternatively, Hill argues that the limitations period should be equitably tolled under the circumstances. 

The doctrine of equitable tolling permits a court to excuse a 

party’s failure to comply with the statute of limitations where, 

because of disability, irremediable lack of information, or other 

circumstances beyond his or her control, the plaintiff cannot be 

expected to file suit on time. 16 Equitable tolling requires due 

diligence on the part of the claimant. 17

Our cases applying the equitable tolling doctrine have 

involved situations where a claimant was prevented from bringing a timely claim due to the alleged actions of a court or governmental entity. 18 Thus, we have stated that “it is difficult to 

conceive of a circumstance outside § 29-3001(4)(c) that would 

support application of the equitable tolling doctrine in a postconviction motion.” 19

We have not yet determined whether equitable tolling applies 

to postconviction proceedings under § 29-3001, 20 and we need 

not do so here. At the time Hill chose to file his motion for 

new trial, nothing prevented him from filing his motion for 

postconviction relief. We have stated that “a prisoner is not 

deprived of the opportunity to bring a postconviction action if 

15 Id. at 803, 851 N.W.2d at 670.

16 State v. Mata, supra note 2.

17 See State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018).

18 See id.

19 Id. at 399, 914 N.W.2d at 446.

20 See State v. Mata, supra note 2.
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Nebraska Supreme Court Advance Sheets

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STATE v. HILL

Cite as 310 Neb. 647

there is some time within the period of the 1-year limitation 

that the prisoner could have filed a postconviction action.” 21

Hill provides no explanation for his failure to file for postconviction relief in the 344 days between the issuance of our mandate concluding his direct appeal and the filing of his motion 

for new trial. Even if the doctrine of equitable tolling could 

apply in a postconviction proceeding, the circumstances here 

do not support its application.

CONCLUSION

Because Hill did not file his motion for postconviction relief 

within the limitation period of § 29-3001(4) and he could have 

done so, we affirm the order of the district court.

Affirmed.

Freudenberg, J., not participating.

21 State v. Huggins, 291 Neb. 443, 453, 866 N.W.2d 80, 87 (2015).