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312 Nebraska Reports

CHILDS V. FRAKES

Cite as 312 Neb. 925

Moses Childs, appellant and 

cross-appellee, v. Scott Frakes, 

appellee and cross-appellant.

___ N.W.2d ___

Filed November 18, 2022. No. S-21-878.

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. Statutes: Appeal and Error. The meaning and interpretation of statutes 

are questions of law for which an appellate court has an obligation to 

reach an independent conclusion irrespective of the decision made by 

the court below.

3. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. 

§ 25-217 (Cum. Supp. 2020) is self-executing, so that an action is dismissed by operation of law, without any action by either the defendant 

or the court, as to any defendant who is named in the civil action and 

not served with process within the time set forth in the statute.

4. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After 

dismissal of a civil action by operation of law under Neb. Rev. Stat. 

§ 25-217 (Cum. Supp. 2020), there is no longer an action pending and 

the district court has no jurisdiction to make any further orders except 

to formalize the dismissal.

5. Habeas Corpus: Courts. Habeas corpus proceedings are not like ordinary civil actions, and courts should follow the traditional procedure 

illustrated by the habeas corpus statutes rather than make up their own 

procedure.

6. Habeas Corpus. The writ of habeas corpus derives from common law 

and is a special civil proceeding providing a summary remedy to persons illegally detained.

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

is governed by statute.

Nebraska Supreme Court Online Library

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

12/16/2022 08:04 AM CST
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Cite as 312 Neb. 925

8. Habeas Corpus. Habeas corpus proceedings are not adversarial civil 

actions and are not in a technical sense a suit between the applicant and 

the respondent officer.

9. Habeas Corpus: Rules of the Supreme Court: Pleadings. The pleading rules governing civil actions have no application to habeas corpus 

proceedings.

10. Habeas Corpus. The statutory service provisions governing civil actions 

have no application in habeas corpus proceedings.

11. Appeal and Error. A proper result will not be reversed merely because 

it was reached for the wrong reason.

12. Habeas Corpus. A writ of habeas corpus challenges and tests the 

legality of a person’s detention, imprisonment, or custodial deprivation 

of liberty.

13. ____. In Nebraska, habeas corpus is quite limited in comparison to the 

scope of the writ in federal courts.

14. Criminal Law: Habeas Corpus. Eligibility for a writ of habeas corpus 

is governed by the criteria set forth in Neb. Rev. Stat. § 29-2801 (Cum. 

Supp. 2020), which explicitly excludes from the scope of habeas corpus persons convicted of some crime or offense for which they stand 

committed.

15. Habeas Corpus: Prisoners. Under Nebraska law, 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.

16. 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.

17. Judgments: Collateral Attack. A judgment that is not void, even if 

erroneous, cannot be collaterally attacked.

18. 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.

19. 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.

20. 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.
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CHILDS V. FRAKES

Cite as 312 Neb. 925

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Moses Childs, pro se.

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

Campbell, Solicitor General, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Stacy, J.

In this appeal, we consider whether the service and automatic dismissal provisions of Neb. Rev. Stat. § 25-217 (Cum. 

Supp. 2020) apply to habeas corpus proceedings. We hold that 

§ 25-217 has no application to habeas corpus proceedings, 

and consequently, the district court erred when it dismissed 

a petition for writ of habeas corpus pursuant to that statute. 

However, because our de novo review shows the petition did 

not state a cognizable claim for habeas relief, we affirm the 

judgment of dismissal, albeit on a different ground.

BACKGROUND

In 2017, the State filed an information against Moses Childs 

in the district court for Lancaster County, Nebraska, charging him with one count of first degree sexual assault. Childs 

eventually pled no contest to a reduced charge of attempted 

first degree sexual assault and was sentenced to a term of 

imprisonment. Childs’ conviction and sentence were affirmed 

on direct appeal. 1

On March 24, 2021, Childs filed a petition for writ of habeas 

corpus in the district court for Douglas County, Nebraska. 

His pro se petition alleged he was being confined in Douglas 

1 State v. Childs, No. A-18-1208, 2019 WL 6873068 (Neb. App. Dec. 17, 

2019) (selected for posting to court website).
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County pursuant to a conviction and sentence that was void 

because (1) he had been denied trial counsel of his choice; 

(2) his plea was not entered knowingly, voluntarily, and intelligently; (3) the prosecutor lacked “legal standing” to invoke 

the court’s jurisdiction; and (4) his right to remain silent was 

violated when the sentencing court required him to participate 

in a presentence investigation.

The record on appeal shows no activity in the habeas proceeding from the date of its filing until September 23, 2021, 

when the district court entered an order stating: “Pursuant to 

Nebraska Revised Statute 25-217, this action stands dismissed 

without prejudice.” Childs timely appealed from the order of 

dismissal, and we moved the appeal to our docket to address 

an issue of first impression: whether the provisions of § 25-217 

apply to habeas corpus proceedings.

ASSIGNMENTS OF ERROR

Childs assigns, restated, that the district court erred in dismissing his petition for writ of habeas corpus because (1) the 

requirements of § 25-217 do not apply in habeas proceedings 

and (2) the allegations of the habeas petition entitled him to 

an evidentiary hearing.

The State has cross-appealed, assigning the district court 

erred by failing to dismiss Childs’ habeas petition on the 

ground its allegations did not entitle him to habeas relief.

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. 2

[2] The meaning and interpretation of statutes are questions 

of law for which an appellate court has an obligation to reach 

2 Buggs v. Frakes, 298 Neb. 432, 904 N.W.2d 664 (2017).
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an independent conclusion irrespective of the decision made by 

the court below. 3

ANALYSIS

In their appellate briefing, both Childs and the State take 

the position that the service and automatic dismissal provisions of § 25-217 do not apply to habeas corpus proceedings. 

We agree.

Section 25-217 addresses the statutory timeline for perfecting service on defendants in civil actions, and it provides in 

relevant part:

(1) An action is commenced on the day the complaint 

is filed with the court.

(2) Each defendant in the action must be properly served 

within one hundred eighty days of the commencement of 

the action. . . .

(3) If any defendant is not properly served within the 

time specified by subsection (2) of this section then the 

action against that defendant is dismissed by operation 

of law. The dismissal is without prejudice and becomes 

effective on the day after the time for service expires.

[3,4] We have often explained that “§ 25-217 is selfexecuting, so that an action is dismissed by operation of law, 

without any action by either the defendant or the court, as 

to any defendant who is named in the [civil] action and not 

served with process within the time set forth in the statute.” 4

After dismissal of a civil action by operation of law under 

§ 25-217, there is no longer an action pending and the district 

3 In re App. No. P-12.32 of Black Hills Neb. Gas, 311 Neb. 813, 976 N.W.2d 

152 (2022).

4 E.g., Carrizales v. Creighton St. Joseph, ante p. 296, 304, 979 N.W.2d 

81, 89 (2022); Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 

(2010).
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court has no jurisdiction to make any further orders except to 

formalize the dismissal. 5

§ 25-217 Does Not Apply 

to Habeas Corpus

[5] To the extent the district court here concluded that 

§ 25-217 applies in habeas corpus proceedings, it erred. We 

have cautioned trial courts that habeas corpus proceedings are 

not like ordinary civil actions, and courts should “follow the 

traditional procedure illustrated by the habeas corpus statutes 

rather than make up their own procedure.” 6

[6,7] The writ of habeas corpus derives from common 

law, and we have described it as “a special civil proceeding 

providing a summary remedy to persons illegally detained.” 7

The Nebraska Constitution provides for the remedy of habeas 

corpus, 8 while the procedure for the writ is governed by 

statute. 9

The statutory procedure for habeas corpus proceedings is set 

out in Neb. Rev. Stat. §§ 29-2801 through 29-2824 (Reissue 

2016 & Cum. Supp. 2020). Under those procedures, the first 

step is for the petitioner or relator, or someone on his or her 

behalf, to “make application” to the court. 10 Accompanying 

the application should be “a copy of the commitment or 

5 See id.

6 Maria T. v. Jeremy S., 300 Neb. 563, 573, 915 N.W.2d 441, 450 (2018).

7 Id. at 570, 915 N.W.2d at 448. Accord, In re Application of Tail, Tail v. 

Olson, 144 Neb. 820, 822, 14 N.W.2d 840, 841 (1944) (“[h]abeas corpus 

. . . is a special proceeding, civil in character[,] providing a summary 

remedy open to persons illegally detained”).

8 Neb. Const. art. I, § 8 (“[t]he privilege of the writ of habeas corpus shall 

not be suspended”).

9 Maria T., supra note 6.

10 § 29-2801.
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cause of detention of such person” 11 or, if the person claims 

to be imprisoned or detained without any legal authority, the 

application must “mak[e] the same appear to such judge, by 

oath or affirmation.” 12 It has long been the rule that a petition for writ of habeas corpus should be filed in the county 

where the petitioner or relator is confined, and although our 

older opinions characterized this as a jurisdictional issue, our 

more recent opinions clarify that the issue implicates venue, 

not jurisdiction. 13

Once an application for writ of habeas corpus is filed, 

the next procedural step requires the court to determine, sua 

sponte and based on the allegations of the application, if the 

writ should issue. 14 If the application or petition for writ of 

habeas corpus sets forth facts which, if true, would entitle 

the petitioner to discharge, then the writ is a matter of right 

and the petitioner should be produced and a hearing held 

thereon to determine the question of fact presented. 15 But if 

the application or petition alleges mere conclusions of law, or 

if the facts alleged in the application or petition do not show 

the petitioner is entitled to the relief of habeas corpus, “then 

the writ will be denied for it would be useless to go through 

the procedure of granting the writ and having the party 

brought before the court merely to be remanded back to the 

custody out of which he [or she] seeks to be discharged.” 16

11 Id. See, also, Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990) (holding when petition fails to present statutorily required copy of commitment 

and detention order, habeas relief may be denied).

12 § 29-2801.

13 See, O’Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015); Anderson v. 

Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).

14 See Maria T., supra note 6.

15 See, id.; Evans v. Frakes, 293 Neb. 253, 876 N.W.2d 626 (2016); In re 

Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944).

16 In re Application of Tail, Tail v. Olson, supra note 15, 145 Neb. at 272, 16 

N.W.2d at 164.
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Cite as 312 Neb. 925

When a writ of habeas corpus is issued, service is governed 

by § 29-2816, which states simply that “[s]uch writ may be 

served in any county by any sheriff of the same or of any 

other county.”

When a court issues a writ of habeas corpus, it then becomes 

“the duty of the officer or person to whom such writ shall 

be directed to convey the person or persons so imprisoned 

or detained and named in such writ, before the judge . . . on 

the day specified in such writ, and to make due return of the 

writ.” 17 Once a writ is issued, it must be obeyed, or resistance 

thereto made in the regular manner. 18 In every case in which 

a writ has been issued, the person to whom it is directed must 

sign and file a “return” 19 that plainly and unequivocally states 

whether he or she has the petitioner or relator under his or her 

“custody or power or under restraint” 20 and, if so, sets forth the 

authority for such custody, power, or restraint. 21 The habeas 

statutes do not describe by what means, if any, the respondent 

may challenge the sufficiency of the application or petition for 

writ of habeas corpus, but this court has said that before filing 

a response to the writ, the respondent “may challenge the sufficiency of the statements in the application of the relator by 

filing a motion to quash or to ‘dissolve’ the writ.” 22 We have 

recognized that this procedure is “consistent with traditional 

common-law habeas corpus procedure.” 23

[8-10] As the foregoing discussion illustrates, the statutory and traditional common-law procedures governing habeas 

17 § 29-2802. See, also, §§ 29-2816 through 29-2819 (governing contents 

and verification of return).

18 See Maria T., supra note 6.

19 See §§ 29-2817 and 29-2818.

20 § 29-2817.

21 See id. See, also, Maria T., supra note 6.

22 Maria T., supra note 6, 300 Neb. at 572, 915 N.W.2d at 449.

23 Id.
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corpus proceedings in Nebraska have very little in common 

with the statutory procedure governing civil actions. 24 Habeas 

corpus proceedings are not adversarial civil actions and “are 

not in a technical sense a suit between the applicant and the 

[respondent] officer.” 25 We have been clear that the pleading 

rules governing civil actions have no application to habeas corpus proceedings, 26 and we now similarly hold that the statutory 

service provisions governing civil actions have no application 

in habeas corpus proceedings. Simply put, under the habeas 

corpus procedure, the court issues the writ where appropriate 

and there is no requirement that the petitioner must perfect 

service on anyone. 27 The district court thus erred as a matter of 

law when it applied the service and automatic dismissal provisions of § 25-217 to Childs’ petition for writ of habeas corpus. 

Moreover, the erroneous application of § 25-217 resulted in 

an unnecessary delay of the court’s duty to sua sponte review 

the petition.

[11] But our analysis does not end there, because a proper 

result will not be reversed merely because it was reached for 

the wrong reason. 28 We find merit in the State’s cross-appeal.

Petition Does Not Support 

Habeas Corpus Relief

Although the district court erred in relying on § 25-217 to 

dismiss Childs’ habeas petition, our de novo review shows that 

24 Accord id. (holding habeas corpus proceedings are not governed by 

Nebraska Court Rules of Pleading in Civil Cases).

25 In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 822, 14 

N.W.2d at 841.

26 See Maria T., supra note 6.

27 See In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 823, 

14 N.W.2d at 842 (“[w]e are unable to find any provision in our [habeas 

corpus] statutes for service upon respondent of any other process except 

the writ”).

28 See O’Neal, supra note 13.
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dismissal was nevertheless proper on a different ground: Childs 

has failed to allege facts which, if true, would entitle him to 

habeas relief.

[12-17] A writ of habeas corpus challenges and tests the 

legality of a person’s detention, imprisonment, or custodial 

deprivation of liberty. 29 In Nebraska, habeas corpus is quite 

limited in comparison to the scope of the writ in federal 

courts. 30 Eligibility for the writ is governed by the criteria set 

forth in § 29-2801, and under that statute, “persons convicted 

of some crime or offense for which they stand committed” 

are expressly excluded. 31 As such, under Nebraska law, 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. 32 “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.” 33 Stated differently, a judgment that is not void, 

even if erroneous, cannot be collaterally attacked. 34

[18-20] 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. 35 A writ of habeas corpus is not 

a writ for correction of errors, and its use will not be permitted 

for that purpose. 36 “‘[T]he regularity of the proceedings leading up to the sentence in a criminal case cannot be inquired 

29 Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).

30 Id.

31 Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).

32 Tyrrell, supra note 29.

33 Id., 309 Neb. at 94, 958 N.W.2d at 681.

34 Id.

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

36 Id.
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into on an application for writ of habeas corpus, for that matter 

is available only in a direct proceeding.’” 37

With these principles in mind, we turn to the four grounds 

on which Childs alleges he is entitled to habeas relief. First, he 

alleged his primary attorney appeared at only a few hearings, 

while his secondary attorney appeared at more. Childs characterizes this as denying him counsel of his choice, which he 

argues resulted in structural error that supports “reversal of his 

conviction.” But such a claim does not entitle him to habeas 

relief because, even if true, it would not render the judgment, 

sentence, and commitment void.

Second, Childs alleged his plea was not knowingly, voluntarily, and intelligently entered because he received ineffective assistance of counsel. But claims of an invalid plea or 

ineffective assistance of counsel do not warrant habeas relief, 

because they do not affect the jurisdiction of the trial court or 

the authority of the court to impose the sentence given. 38 Thus, 

even if true, these allegations would not render the judgment, 

sentence, and conviction void.

Third, Childs alleged the prosecutor had no personal knowledge of the factual basis provided to the court during the plea 

hearing and thus “had no legal standing upon which to invoke 

the [trial] court’s jurisdiction.” But under Nebraska law, it is

the duty of the county attorney, when in possession of 

sufficient evidence to warrant the belief that a person is 

guilty and can be convicted of a felony or misdemeanor, 

to prepare, sign, verify, and file the proper complaint 

against such person and to appear in the several courts 

of the county and prosecute the appropriate criminal proceeding on behalf of the state and county. 39

37 Id., 284 Neb. at 867, 824 N.W.2d at 33.

38 See, Gonzalez v. Gage, 290 Neb. 671, 861 N.W.2d 457 (2015); Peterson, 

supra note 35; Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).

39 Neb. Rev. Stat. § 23-1201 (Cum. Supp. 2020).
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There is nothing improper about a prosecutor’s reciting the 

factual basis for the charged crime during a plea hearing. 

This claim has no legal merit and does not entitle Childs to 

habeas relief.

And fourth, Childs alleged he was compelled to participate 

in a presentence investigation “without a knowing and intelligent waiver of his right to remain silent.” This allegation challenges the regularity of the proceedings leading up to Childs’ 

sentence and is not a basis for habeas relief. 40

Because none of the allegations in Childs’ petition set forth 

facts which, if true, would entitle him to habeas relief, it was 

proper to dismiss the petition for writ of habeas corpus. 41

CONCLUSION

Our de novo review demonstrates that the decision of the 

district court to dismiss Childs’ petition for writ of habeas corpus was ultimately correct, even though the district court’s reason for ordering dismissal was erroneous. We therefore affirm 

the dismissal.

Affirmed.

Miller-Lerman, J., participating on briefs.

40 See Peterson, supra note 35.

41 See Maria T., supra note 6.