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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BURRIES

Cite as 310 Neb. 688

State of Nebraska, appellee, 

v. Anthony L. Burries, 

appellant.

___ N.W.2d ___

Filed January 14, 2022. No. S-20-551.

1. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

2. Postconviction: Courts: Default Judgments. The Nebraska Postconviction Act does not authorize a district court to enter a default judgment.

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.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Beau Finley, of Law Offices of Beau Finley, P.C., L.L.O., 

for appellant.

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

for appellee.

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

and Papik, JJ., and Harder, D.J.

Nebraska Supreme Court Online Library

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

01/21/2022 12:07 AM CST
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310 Nebraska Reports

STATE v. BURRIES

Cite as 310 Neb. 688

Heavican, C.J.

INTRODUCTION

Anthony L. Burries’ motion for default judgment was denied, 

and his motions seeking postconviction relief were dismissed. 

He appeals. We affirm.

BACKGROUND

Burries was convicted of first degree murder and sentenced 

to life imprisonment in 2015. The underlying facts are available in this court’s opinion on Burries’ direct appeal, in which 

we affirmed his conviction and sentence. 1

With the assistance of different counsel than at trial and 

on appeal, on August 23, 2018, Burries filed a motion for 

postconviction relief, alleging that trial and appellate counsel 

were ineffective in various ways. The State filed a motion 

to dismiss.

Though represented by counsel, on February 12, 2019, 

Burries filed his own pro se motion, styled as a “Motion for 

Postconviction Relief.” A few months later, counsel filed a 

motion for leave to file a second amended motion for postconviction relief. A hearing was held on that motion on April 23, 

during which the motion for leave to file a second amended 

complaint was granted. Burries was instructed that because 

he was represented by counsel, he could not file any additional pro se motions. Still, on that same day, Burries filed a 

655-page pro se filing, styled as a “Second Amended Motion 

for Postconviction Relief.”

On July 1, 2019, Burries sought to remove counsel. He also 

filed various motions and a specific objection to his counsel’s 

filing of a second amended motion for postconviction relief. 

Burries indicated that counsel had refused to include claims 

which Burries wanted to pursue and had failed to include certain exhibits in the second amended postconviction motion. 

The district court entered a briefing schedule and indicated 

1 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
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STATE v. BURRIES

Cite as 310 Neb. 688

that it would not address the motion to relieve counsel until 

counsel moved to withdraw.

Counsel then filed such a motion on September 9, 2019. 

That motion was granted on September 26. Burries filed a 

pro se motion for default judgment on October 29. The district court denied the motion for default judgment on January 

23, 2020.

On March 11, 2020, the district court, noting that the various 

pleadings that had been filed had led to “some confusion as to 

what motion/pleading is currently pending before the Court,” 

sought to “press the reset button.” Accordingly, the district 

court entered an order granting Burries leave to file a third 

amended petition. Burries then filed several objections, indicating that he did not wish to file a third amended motion.

On July 22, 2020, the district court entered the following order:

The Court entered an Order on March 11, 2020[,] giving [Burries] leave to file a Third Amended Motion for 

Postconviction Relief within 30 days. [Burries] did not 

file a Third Amended Motion for Postconviction Relief 

and more than 30 days has passed.

IT IS THEREFORE ORDERED, [Burries’] Second 

Amended Motion for Postconviction Relief is overruled.

Burries, now represented by different counsel, appeals.

ASSIGNMENTS OF ERROR

Burries assigns that the district court erred in (1) denying Burries’ motion for default judgment, (2) not allowing 

Burries to be heard on his motion for default judgment, and (3) 

dismissing Burries’ second amended motion for postconviction relief.

STANDARD OF REVIEW

[1] When reviewing a question of law, an appellate court 

reaches a conclusion independent of the lower court’s ruling. 2

2 State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
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Nebraska Supreme Court Advance Sheets

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STATE v. BURRIES

Cite as 310 Neb. 688

ANALYSIS

Default Judgment

In his first and second assignments of error, Burries assigns 

that the district court erred in not giving him an opportunity to 

be heard with respect to his motion for default judgment, and 

then denying that motion. Burries’ position is that when the 

State failed to file a brief in response to his second amended 

motion for postconviction relief, the State effectively withdrew 

its motion to dismiss and conceded that he was entitled to 

relief. The State disagrees.

[2] We were recently presented with a similar argument in 

State v. Britt.

 3 In that case, the defendant sought postconviction relief and argued that the State’s failure to file a timely 

response entitled him to an entry of default judgment. We disagreed, noting that “the Nebraska Postconviction Act does not 

authorize the district court to grant postconviction relief without first conducting an evidentiary hearing and making findings of fact and conclusions of law” and that the “court was 

not empowered to award a default judgment.” 4 Accordingly, 

the Nebraska Postconviction Act does not authorize a district 

court to enter a default judgment. 5

There is no merit to Burries’ first and second assignments 

of error with regard to the denial of his motion for default 

judgment.

Motion for Postconviction Relief

In his third assignment of error, Burries assigns that the district court erred in dismissing his second amended motion for 

postconviction relief. On appeal, Burries focuses on the merits 

of that postconviction motion, while the State contends that 

the district court did not err in dismissing (1) because there 

was no basis to proceed on the second amendment petition, 

3 State v. Britt, ante p. 69, 963 N.W.2d 533 (2021).

4 Id. at 80, 963 N.W.2d at 541-42.

5 See Britt, supra note 3.
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STATE v. BURRIES

Cite as 310 Neb. 688

(2) because of Burries’ failure to file a third amended motion, 

and (3) because the second amended petition was not verified. 

As we explain below, we conclude that Burries’ failure to file 

a verified petition is a defect that supports the district court’s 

dismissal. As such, we decline to reach the other arguments 

raised on appeal.

On appeal, the State argues that Burries’ operative second 

amended motion for postconviction relief was not verified 

and that the district court’s dismissal should be affirmed on 

those grounds.

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.

[3,4] Until 1969, all pleadings filed in Nebraska were 

required to be verified. 6 Historically, “verified,” for the purpose of a pleading, has meant that the signer “believed the 

facts stated in the pleading to be true.” 7 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.” 8 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.

6 See Neb. Rev. Stat. § 25-824 (Cum. Supp. 1969).

7 See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 86, 948 N.W.2d 

212, 243 (2020) (citing Neb. Rev. Stat. § 25-827 (1943) and Harden v. A. 

& N. R. R., 4 Neb. 521 (1876)).

8 AVG Partners I, supra note 7, 307 Neb. at 85, 948 N.W.2d at 242.
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STATE v. BURRIES

Cite as 310 Neb. 688

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. 9 However, we conclude that this usual rule is inapplicable in postconviction actions.

Section 29-3001 provides in relevant part:

Unless the motion and the files and records of the case 

show to the satisfaction of the court that the prisoner is 

entitled to no relief, the court shall cause notice thereof 

to be served on the county attorney, grant a prompt hearing thereon, and determine the issues and make findings 

of fact and conclusions of law with respect thereto.

Under the terms of § 29-3001(1), certain “prisoner[s] in custody” have the ability to file a motion seeking postconviction 

relief. Upon the filing of that motion, the court has the obligation to determine whether the prisoner is entitled to no relief, 

in which case the motion is dismissed, or, alternatively, conclude that the defendant is entitled to a hearing to determine if 

he or she is entitled to relief.

If it is determined that a prisoner is entitled to a hearing, 

the court shall, under § 29-3001(2), “cause notice thereof to 

be served on the county attorney.” Though the State, through 

its county attorneys, can, and often does, participate at earlier 

points in the process, the State is only called upon to take 

action with respect to a motion once it receives notice from the 

court. We decline to conclude that the State has the obligation 

to raise issues concerning a postconviction action at a time 

prior to that mandated by statute.

We observe that although Burries’ pro se second amended 

motion was not verified, earlier pleadings by Burries were 

verified. We further observe that we have case law which suggests the verification of earlier motions might be sufficient to 

comply with the statutory requirement of verification. 10 But 

9 See In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 (1986).

10 See State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
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STATE v. BURRIES

Cite as 310 Neb. 688

this position is not consistent with the general proposition, 

both in Nebraska law and more generally, that an amended 

pleading supersedes any original pleadings and that after 

amendment, the original pleading ceases to have any function. 11 To the extent that our decision in State v. Crawford 12

might suggest that an earlier verified motion is sufficient, it is 

disapproved.

The district court’s reasoning for dismissal was not explicitly 

based upon lack of verification. But a correct result will not be 

set aside merely because the lower court applied the wrong reasoning in reaching that result. 13 Burries’ defect in verification 

supports the district court’s dismissal, and we find no merit to 

Burries’ third assignment of error; hence, we affirm.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.

Freudenberg, J., not participating.

11 See In re Interest of Rondell B., 249 Neb. 928, 546 N.W.2d 801 (1996). 

See 71 C.J.S. Pleading § 464 (2011).

12 Crawford, supra note 10.

13 State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).

Miller-Lerman, J., concurring.

I concur in the result in this appeal, but I write separately 

because I believe that the majority’s absence of analysis engenders more questions than it answers and because I wish to 

clarify the status of this postconviction action going forward.

I note first that I agree with the majority’s analysis and conclusion with regard to Burries’ first and second assignments of 

error. That is, I agree we should affirm the denial of his motion 

for default judgment.

With regard to Burries’ third assignment of error, in which 

he claims that the district court erred when it overruled and 

later dismissed his second amended motion for postconviction relief, I note that the majority has affirmed the dismissal 
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STATE v. BURRIES

Cite as 310 Neb. 688

solely on the basis that the second amended motion was not 

verified by Burries. See Neb. Rev. Stat. § 29-3001(1) (Reissue 

2016). Even though the lack of verification was not presented 

to the district court nor the basis upon which the district court 

dismissed the second amended motion, the lack of verification 

can be a proper basis to support a dismissal. Under the procedure set forth by the postconviction statutes, it would have 

been proper for the district court, as part of its preliminary 

review of the motion, to have raised the lack of verification 

sua sponte. Because that was a basis upon which the court 

could have dismissed the second amended motion, dismissal 

by the district court happened to be acceptable and, therefore, 

its disposition is properly affirmed by this court for reasoning 

different than that set forth by the district court.

However, the issue of lack of verification was first injected 

into this case when the State raised the defect for the first time 

on appeal; I find this problematic and not to be encouraged. 

The State filed a motion to dismiss the second amended motion 

in the district court, and nowhere in the motion to dismiss did 

the State raise the issue of lack of verification. As the majority 

acknowledges, we have long held that in the normal course of 

litigation, the failure of a litigant to object to the lack of a verified pleading waives any argument with respect to that defect. 

See In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 

(1986). But for some undisclosed reason, the majority chose to 

broadly declare in this case that “this usual rule is inapplicable 

in postconviction actions.” Why?

The majority correctly notes that under § 29-3001, upon the 

filing of a motion for postconviction relief, the court reviews 

the motion to make a preliminary determination whether “the 

motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief.” 

If the court determines, based on this preliminary review, that 

the prisoner is entitled to no relief, the court will dismiss the 

motion. If, however, the court does not so conclude, then the 

court is required to, inter alia, cause notice to be served on 
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STATE v. BURRIES

Cite as 310 Neb. 688

the county attorney, thereby bringing the State into the postconviction action. During the trial court’s initial review and 

prior to noticing the State into this case, obviously the State 

cannot object to such verification defect when it has not yet 

been given notice and is not yet participating in the action.

However, the majority acknowledged that “the State, through 

its county attorneys, can and often does participate at earlier 

points in the process.” See, also, State v. Hill, 308 Neb. 511, 

525, 955 N.W.2d 303, 311, 312 (2021) (Stacy, J., concurring) 

(“a district court, as part of its preliminary review of a postconviction motion, has discretion to adopt reasonable procedures 

to assist the court in determining whether an evidentiary hearing is required,” and “it is not an abuse of discretion to direct 

the State to file a written response before deciding whether to 

grant or deny an evidentiary hearing on the motion”). When 

the State has been brought into the case, it is obliged to raise 

the absence of verification or waive said objection. Further, “to 

assist the court,” the State has the obligation to raise the lack of 

verification because that would show the court that the prisoner 

was entitled to no relief.

The record in this case indicates that the district court 

brought the State into the case to assist it in its preliminary 

review of Burries’ postconviction motion. The State filed a 

motion to dismiss the original motion for postconviction relief 

which had been filed by counsel and verified by Burries. The 

State later filed a motion to dismiss the second amended motion 

which generally tracked the language of its motion to dismiss 

the original motion. The motion to dismiss did not raise lack of 

verification as a reason to dismiss the second amended motion, 

and there is no apparent reason it could not have been raised 

by the State therein.

It is puzzling why the majority broadly announced that the 

usual rule of waiver does not apply to the State in a postconviction action, and what is more, it was also unnecessary 

to make that holding in this case. Given the unique statutory procedure in a postconviction action in which the court 
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STATE v. BURRIES

Cite as 310 Neb. 688

conducts a preliminary review of the motion to determine 

whether it shows that the prisoner is entitled to no relief, I 

think it is appropriate for a court to note lack of verification at 

that early stage sua sponte. In State v. Amaya, 298 Neb. 70, 77, 

902 N.W.2d 675, 681 (2017), we held that

if, as part of its preliminary review, the trial court finds 

the postconviction motion affirmatively shows—either on 

its face or in combination with the files and records before 

the court—that it is time barred under § 29-3001(4), the 

court is permitted, but not obliged, to sua sponte consider 

and rule upon the timeliness of the motion.

Similarly, I think a court in its preliminary review could sua 

sponte consider and rule upon whether the motion is properly 

verified. In this case, in its preliminary review, the court could 

have dismissed the second amended motion because it was 

not verified, even though the State, although appearing, had 

waived the verification issue. Given the trial court’s authority, 

I therefore think this court could affirm the dismissal on this 

basis without gratuitously and broadly stating without explanation or analysis that the usual rule of waiver does not apply to 

the State in postconviction actions.

Finally, I want to set forth where I think this action currently 

stands. I note that the district court in its July 22, 2020, order 

“overruled” the second amended motion; it did not state that it 

was dismissing the action or that the dismissal was with prejudice. The majority affirms the district court’s order without 

requiring the district court to take the further step of dismissing 

the action with prejudice. So the matter is amenable to correction at the trial court level.

So when this case returns to the district court, Burries will 

have the opportunity to request leave to amend the second 

amended motion to include verification and the district court 

would be well within its discretion to grant such leave. I note 

as a general matter that a “defective verification may be corrected by amendment” and that the “failure to verify a pleading or the imperfect verification of a pleading is an amendable 
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STATE v. BURRIES

Cite as 310 Neb. 688

defect.” 71 C.J.S. Pleading § 504 at 513 (2011). Leave to 

amend would be particularly appropriate in this case because 

the lack of verification was not raised as an issue below, 

and therefore, Burries did not have notice or the opportunity 

to request leave to amend to cure that defect. The first two 

motions filed by Burries were verified, and they were filed 

at a time when Burries was represented by counsel. Burries 

filed the second amended motion at a time after counsel was 

allowed to withdraw and Burries was acting pro se. Burries 

signed the second amended motion and had his signature notarized; although this is not adequate to qualify as verification 

without a statement that allegations in the motion were true, 

Burries, as a pro se litigant, might have believed it sufficient to 

constitute a verified motion.

I note that the U.S. Supreme Court has said with regard to 

the Federal Rules of Civil Procedure that it is “entirely contrary to the spirit of the . . . Rules . . . for decisions on the 

merits to be avoided on the basis of . . . mere technicalities.” 

Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 9 L. Ed. 2d 

222 (1962). The Court further stated that the “‘Rules reject the 

approach that pleading is a game of skill in which one misstep 

by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’” Id., 371 U.S. at 181-82 (quoting Conley 

v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). 

Postconviction actions involve constitutional challenges related 

to guilt and lengthy prison terms; the stakes are high. I think 

that our statutes governing postconviction actions should be 

read such that a decision on the merits is not avoided based 

on technicalities and pleading requirements which can be corrected. This court should not participate in “a game” pursuant 

to which a pleading misstep determines the outcome. Although 

the Legislature has reasons the statutes require a verified 

motion, a failure to verify should not prevent relief without 

giving the litigant the opportunity to correct that defect.
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STATE v. BURRIES

Cite as 310 Neb. 688

In summary, I am puzzled with the analytical path followed 

by the majority, but for reasons I have articulated, I agree the 

decision of the district court should be affirmed. I understand 

that this postconviction action can proceed below if the district 

court grants Burries leave to file a new motion which corrects 

the verification defect. The court would then conduct a preliminary review to determine whether the motion and the files and 

record show that Burries is entitled to no relief or whether an 

evidentiary hearing should be granted. Therefore, I concur in 

the result, but I would make clear the matter is remanded for 

further proceedings.