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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. LINER

Cite as 26 Neb. App. 303

State of Nebraska, appellee, v. 

Dan M. Liner, appellant.

___ N.W.2d ___

Filed September 11, 2018. No. A-17-778.

1. Postconviction: Proof: Appeal and Error. A defendant requesting 

postconviction relief must establish the basis for such relief, and the 

findings of the district court will not be disturbed unless they are clearly 

erroneous.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

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

and Error. For purposes of Neb. Rev. Stat. § 29-3001(4)(a) (Reissue 

2016), the “conclusion of a direct appeal” occurs when a Nebraska 

appellate court issues the mandate in the direct appeal.

4. Rules of the Supreme Court: Postconviction. Postconviction proceedings are not governed by the Nebraska Court Rules of Pleading in 

Civil Cases.

5. Actions: Pleadings. A cause of action pleaded by amendment ordinarily 

relates back to the original pleading, provided that claimant seeks recovery on the same general set of facts. 

Appeal from the District Court for Buffalo County: William

T. Wright, Judge. Affirmed.

Dan M. Liner, pro se.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Pirtle, Riedmann, and Welch, Judges.

Nebraska Supreme Court Online Library

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

09/18/2018 09:09 AM CDT
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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. LINER

Cite as 26 Neb. App. 303

Riedmann, Judge.

INTRODUCTION

Dan M. Liner appeals the order of the district court for 

Buffalo County which denied him postconviction relief. 

Because his amended motion for postconviction relief is time 

barred, we affirm.

BACKGROUND

Liner was charged in November 2013 with various drug and 

weapons offenses. In September 2014, he filed motions to discharge the charges on speedy trial grounds. The district court 

denied the motions to discharge, and Liner appealed to this 

court, which appeals were docketed as cases Nos. A-14-819 

and A-14-820. On March 24, 2015, we affirmed in a memorandum opinion, and on April 28, a mandate was issued in 

each case. Thereafter, Liner entered a no contest plea to one 

count of possession of a deadly weapon by a prohibited person 

and stipulated to being a habitual criminal. He was sentenced 

to 15 to 20 years’ imprisonment. Liner appealed, assigning 

only that he received an excessive sentence, which appeal was 

docketed as case No. A-15-771. This court summarily affirmed 

the sentence on January 8, 2016, and issued its mandate on 

February 18.

On December 1, 2016, Liner filed a pro se verified motion 

for postconviction relief. His motion contained nine grounds 

for relief. Specifically, he alleged that (1) his plea of no contest was entered unintelligently because the State failed to 

adequately advise him on the record of the maximum penalty, 

(2) the district court lacked jurisdiction to accept his plea 

when it also failed to properly advise him of the maximum 

penalty, (3) the district court failed to advise him on the 

record of the maximum term of incarceration he would be 

required to serve before obtaining mandatory release, (4) the 

district court lacked subject matter jurisdiction to sentence 

him for the reasons previously set forth, (5) trial counsel was 

ineffective in failing to alert the court of the State’s failure 
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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. LINER

Cite as 26 Neb. App. 303

to adequately advise him of the maximum penalty, (6) trial 

counsel was ineffective in failing to object to the court’s failure to advise him of the maximum term he must serve before 

mandatory release, (7) trial counsel was ineffective in failing 

to object to the impermissible sentence imposed by the court 

for the reasons previously set forth, (8) trial counsel was ineffective in failing to object to each claim set forth in the postconviction motion, and (9) appellate counsel was ineffective 

in failing to raise on direct appeal the claims set forth in the 

postconviction motion.

On March 1, 2017, Liner moved for leave to file an amended 

motion for postconviction relief. The district court granted 

leave to amend, and Liner filed an amended motion on April 

19. The amended motion included only one ground for relief: 

Appellate counsel was ineffective in failing to raise on direct 

appeal that trial counsel was ineffective in failing to file a second motion for discharge on speedy trial grounds. The State 

filed a motion to dismiss the amended motion, alleging, as 

relevant here, that the amended motion was filed outside the 

limitation period set forth in the Nebraska Postconviction Act, 

Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).

The district court held a hearing on the amended motion 

and corresponding request for an evidentiary hearing, the 

State’s motion to dismiss, and Liner’s objections to the motion 

to dismiss. The court subsequently entered an order, which 

purported to both grant the motion to dismiss and deny the 

amended motion for postconviction relief. The court first determined that the sole issue raised in the amended motion was 

raised or could have been raised in the course of the interlocutory appeal Liner filed in September 2014 after the court 

denied his motion for discharge. Additionally, the court found 

that because Liner’s conviction was plea based, he waived 

many of his rights, including his right to complain about 

errors at the plea and sentencing hearing. Finally, the court 

concluded that the amended motion for postconviction relief 

did not relate back to the original motion because it raised an 
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26 Nebraska Appellate Reports

STATE v. LINER

Cite as 26 Neb. App. 303

entirely different issue and that therefore, because it had been 

filed more than 1 year after the conviction became final, it was 

untimely. Liner appeals.

ASSIGNMENT OF ERROR

Liner assigns, restated, that the district court erred in denying his motion for postconviction relief without holding an 

evidentiary hearing.

STANDARD OF REVIEW

[1] A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district 

court will not be disturbed unless they are clearly erroneous. 

State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by 

the court below. State v. Goynes, 293 Neb. 288, 876 N.W.2d 

912 (2016).

ANALYSIS

The district court’s order addressed the timeliness of the 

amended motion as raised in the State’s motion to dismiss 

and the merits of the postconviction motion and purported to 

both (1) grant the motion to dismiss, thereby dismissing the 

amended motion, and (2) deny the amended postconviction 

motion on its merits. Despite the irregular procedural posture 

of the matter, we conclude that the district court did not err in 

granting the motion to dismiss. We therefore do not address the 

merits of the amended motion for postconviction relief.

[3] Section 29-3001(4) provides that a 1-year period of 

limitation shall apply to the filing of a verified motion for postconviction relief. As applicable in this case, the 1-year limitation period shall run from 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. See § 29-3001(4)(a). 
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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. LINER

Cite as 26 Neb. App. 303

For purposes of § 29-3001(4)(a), the “conclusion of a direct 

appeal” occurs when a Nebraska appellate court issues the 

mandate in the direct appeal. State v. Huggins, 291 Neb. 443, 

866 N.W.2d 80 (2015).

This court’s mandate in Liner’s direct appeal was issued on 

February 18, 2016. Therefore, his original motion for postconviction relief filed on December 1 was filed within the 

1-year limitation period, but the amended motion filed April 

19, 2017, was untimely unless it related back to the filing of 

the original motion.

[4] The common-law doctrine of relation back was codified in Neb. Rev. Stat. § 25-201.02 (Reissue 2016). See John 

P. Lenich, Nebraska Civil Procedure § 15:8 (2018). Section 

25-201.02 provides that an amendment of a pleading that does 

not change the party or the name of the party against whom 

the claim is asserted relates back to the date of the original 

pleading if the claim or defense asserted in the amended 

pleading arose out of the conduct, transaction, or occurrence 

set forth or attempted to be set forth in the original pleading. 

Our review of Nebraska case law does not reveal an instance 

where the relation-back doctrine has been applied in a postconviction proceeding. And we recognize that the Nebraska 

Supreme Court has clarified that postconviction proceedings 

are not governed by the Nebraska Court Rules of Pleading in 

Civil Cases. See State v. Robertson, 294 Neb. 29, 881 N.W.2d 

864 (2016). Whether the relation-back doctrine, codified in 

§ 25-201.02, constitutes a rule of pleading is an issue we need 

not decide because we conclude that Liner’s amended motion 

did not relate back to the original motion and was therefore untimely.

[5] A cause of action pleaded by amendment ordinarily 

relates back to the original pleading, provided that claimant 

seeks recovery on the same general set of facts. Forker Solar, 

Inc. v. Knoblauch, 224 Neb. 143, 396 N.W.2d 273 (1986). The 

theory of recovery is not itself a cause of action; therefore, if 

the general facts upon which the right to recover is based are 
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STATE v. LINER

Cite as 26 Neb. App. 303

the same, the amendment relates back to the original pleading. Id.

The federal courts have rejected the broad argument that 

an amended postconviction claim related back to the original 

claim if it stemmed from the same trial, conviction, or sentence; rather, the Eighth Circuit relied upon the U.S. Supreme 

Court’s holding in Mayle v. Felix, 545 U.S. 644, 125 S. Ct. 

2562, 162 L. Ed. 2d 582 (2005), that in order for claims 

in an amended motion to relate back, they must be of the 

same time and type as those in the original motion, such that 

they arise from the same core set of operative facts. U.S. v. 

Hernandez, 436 F.3d 851 (8th Cir. 2006). See, also, Dodd v. 

U.S., 614 F.3d 512 (8th Cir. 2010) (facts alleged must be specific enough to put opposing party on notice of factual basis 

for claim, and thus, it is not enough that both original motion 

and amended motion allege ineffective assistance of counsel 

during trial).

Applying the applicable definitions and rejecting a broader 

interpretation of the relation-back doctrine, the Eighth Circuit 

in U.S. v. Hernandez, supra, determined that the amended 

ineffective assistance claim did not relate back to the original 

claim because the original claim referred to the admission of 

evidence, whereas the amended claim referred to trial testimony and cross-examination of witnesses. Thus, the facts 

alleged in the original claim were not such that would put the 

opposition on notice that cross-examination of witnesses was 

at issue, and the claims were not similar enough to satisfy the 

“‘time and type’” test, nor did they arise out of the same set 

of operative facts. Id. at 858.

Likewise, in the instant case, the ineffective assistance of 

counsel claim raised in the amended motion is not based on 

the same set of facts as the claims contained in the original 

motion. The original claims related to entry of the plea and 

sentencing matters, whereas the amended claim related to 

Liner’s right to a speedy trial, which occurred prior to the time 

he entered a plea. We cannot find that these claims are based 
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STATE v. LINER

Cite as 26 Neb. App. 303

on the same general facts such that the amended motion relates 

back to the filing of the original motion. Accordingly, the 

amended motion was filed outside the 1-year limitation period 

set forth in § 29-3001(4)(a). The district court, therefore, did 

not err in granting the State’s motion to dismiss the amended 

motion as untimely.

CONCLUSION

We conclude that the district court did not err in granting the 

State’s motion to dismiss. We therefore affirm.

Affirmed.