Nebraska Advance She

O’NEAL v. STATE 943

Cite as 290 Neb. 943

Keeva T. O’Neal, appellant, 

State of Nebraska, appelle

___ N.W.2d ___

Filed May 22, 2015. No. S-14-262.

1. Habeas Corpus: Appeal and Error. On appeal of a habeas petition, an appellate 

court reviews the trial court’s factual findings for clear error and its conclusions 

of law de novo.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question 

does not involve a factual dispute, its determination is a matter of law, which 

requires an appellate court to reach a conclusion independent of the decisions 

made by the lower court.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has jurisdiction 

over the matter before it.

4. ____: ____. If the court from which an appeal was taken lacked jurisdiction, then 

the appellate court acquires no jurisdiction.

5. Courts: Habeas Corpus: Jurisdiction: Venue. By statute, any and all district 

courts in Nebraska have subject matter jurisdiction of claims for habeas corpus 

relief. The determination of which district court should hear a habeas petition is 

essentially a question of venue and not one of jurisdiction.

6. Venue: Waiver. Unlike jurisdiction, venue is a personal privilege which, if not 

raised by a party, is waived unless prohibited by law.

7. ____: ____. A claim of improper venue is a matter that may be waived by failure 

to make a timely objection.

8. Venue: Time. For an objection to venue to be timely in a civil case, it must be 

raised before or in the defendant’s answer.

9. Jurisdiction: Venue: Words and Phrases. Jurisdiction and venue are not synonymous and interchangeable functions in litigation.

10. Habeas Corpus: Jurisdiction. The failure to attach a copy of the relevant commitment order to a petition for a writ of habeas corpus does not prevent a court 

from exercising jurisdiction over that petition.

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

reached for the wrong reason.

12. Constitutional Law: Habeas Corpus. A writ of habeas corpus in the State of 

Nebraska is quite limited in comparison to those of federal courts, which allow a 

writ of habeas corpus to a prisoner when he or she is in custody in violation of 

the federal Constitution, law, or treaties of the United States.

13. Judgments: Collateral Attack. Only a void judgment may be collaterally attacked.

14. 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.

15. 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.
Nebraska Advance She

944 290 NEBRASKA REPORTS

Appeal from the District Court for Douglas County: Grego

M. Schatz, Judge. Affirmed

Renee L. Mathias, of Schaefer Shapiro, L.L.P., for 

appellant.

Keeva T. O’Neal, pro se.

Jon Bruning, Attorney General, and Kimberly A. Klein for 

appellee.

Heavican, C.J., Wright, Connolly, Stepha

Miller-Lerman, and Cassel,

Wright, J

I. NATURE OF CASE

Keeva T. O’Neal, an inmate at the Nebraska State Penitentiary 

in Lincoln, Nebraska, appeals from the order of the district 

court which denied his petition for a writ of habeas corpus. 

Because we find that the district court reached the correct 

result, we affirm.

II. SCOPE OF REVIEW

[1] On appeal of a habeas petition, an appellate court 

reviews the trial court’s factual findings for clear error and its 

conclusions of law de novo. Anderson v. Houston, 274 Neb. 

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

[2] When a jurisdictional question does not involve a 

factual dispute, its determination is a matter of law, which 

requires an appellate court to reach a conclusion independent 

of the decisions made by the lower court. Shaffer v. Nebraska 

Dept. of Health & Human Servs., 289 Neb. 740, 857 N.W.2d 

313 (2014).

III. FACTS

In 1997, pursuant to a plea agreement, O’Neal pled no 

contest to, and was convicted of, three counts of attempted 

first degree assault and two counts of use of a deadly weapon 

to commit a felony. Count I (one of the assault counts) and 

count II (the corresponding use count) related to actions 
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O’NEAL v. STATE 945

Cite as 290 Neb. 943

O’Neal took against an “Edward Duncan.” He was sentenced 

to 4 to 5 years’ imprisonment for the assault convictions and 

20 to 25 years’ imprisonment on the use of a weapon convictions. The sentencing court ordered all five sentences to 

run consecutively.

Following sentencing, O’Neal filed a direct appeal, but it 

was dismissed for failure to file a poverty affidavit. He then 

moved for postconviction relief, alleging ineffective assistance 

of counsel. The district court concluded that his trial counsel 

had failed to adequately perfect a direct appeal and granted 

relief in the form of a new direct appeal.

On direct appeal, the Nebraska Court of Appeals affirmed 

O’Neal’s convictions and sentences for use of a deadly weapon 

to commit a felony, affirmed his convictions for attempted 

first degree assault, and modified the sentences imposed for 

attempted first degree assault to 20 months’ to 5 years’ imprisonment each. See State v. O’Neal, No. A-04-536, 2005 WL 

1022027 (Neb. App. May 3, 2005) (not designated for permanent publication). The Court of Appeals concluded that 

O’Neal’s assignments of error either lacked merit or were 

waived by his no contest pleas. In particular, it rejected 

O’Neal’s argument that the information on which he was 

charged was defective for failing to properly identify the victim of counts I and II.

On August 23, 2013, O’Neal filed a pro se petition for 

a writ of habeas corpus in the district court for Douglas 

County. He alleged that his imprisonment for counts I and 

II was the equivalent of being committed for crimes “which 

never occurred,” and thus was a violation of the 5th and 14th 

Amendments, because the victim of counts I and II was an 

“Allen Duncan” and not the “Edward Duncan” identified 

in the amended information. He further alleged that he was 

entitled to discharge, because at the time of his application, 

he had “already been confined for a period which exceed[ed] 

the terms of imprisonment imposed on counts III through V” 

and he was being imprisoned only on counts I and II. O’Neal’s 

petition did not include a copy of the relevant commitment or 

detention order.
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946 290 NEBRASKA REPORTS

In January 2014, the district court entered an order 

“request[ing] that the State file a written response to [O’Neal’s] 

Application for Writ of Habeas Corpus.” The State complied 

with this request, and on March 3, it filed a response with the 

court. In its response, the State argued that O’Neal’s petition 

“should be denied for lack of jurisdiction.” It explained:

[O’Neal] acknowledges in his writ that he is currently 

serving a term of incarceration and that he is currently in 

the Lincoln Penitentiary, which is not located in Douglas 

County. Thus, this Court lacks jurisdiction. See Addison 

v. Parratt, 204 Neb. 656, 284 N.W.2d 574 (1979) (finding dismissal by the district court in Sheridan County of 

a petition for habeas corpus appropriate when the petitioner and respondent were residing in Lancaster County); 

Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920) (“We 

are therefore of the opinion that an application for a writ 

of habeas corpus to release a prisoner confined under sentence of court must be brought in the county where the 

prisoner is confined.”).

In its response, the State also argued that habeas relief should 

be denied on the merits of O’Neal’s petition.

On March 7, 2014, the district court entered an order denying O’Neal’s petition for a writ of habeas corpus due to lack of 

jurisdiction. The court concluded that under Addison v. Parratt,

204 Neb. 656, 284 N.W.2d 574 (1979), it did not have jurisdiction to consider a habeas petition from O’Neal, because he 

was “currently serving his incarceration at the penitentiary in 

Lincoln, Nebraska, which is not in Douglas County.” The court 

also concluded that even if it had jurisdiction, O’Neal was not 

entitled to habeas relief.

O’Neal timely appeals. Pursuant to our statutory authority 

to regulate the dockets of the appellate courts of this state, we 

moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3) 

(Reissue 2008).

IV. ASSIGNMENT OF ERROR

O’Neal assigns that the district court erred in denying his 

application for a writ of habeas corpus.
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O’NEAL v. STATE 947

Cite as 290 Neb. 943

V. ANALYSIS

1. Jurisdicti

[3,4] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. Big John’s Billiards v. 

State, 283 Neb. 496, 811 N.W.2d 205 (2012). If the court from 

which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction. Id.

In the instant case, the jurisdiction of the district court to 

consider O’Neal’s petition for a writ of habeas corpus has 

been challenged on two separate grounds. The district court 

concluded that it lacked jurisdiction over O’Neal’s petition, 

because he was not confined within the county in which the 

court sat. The State also argues that the district court lacked 

jurisdiction, because O’Neal failed to attach a copy of his commitment order to the petition, as required by Neb. Rev. Stat. 

§ 29-2801 (Reissue 2008). As we explain below, we conclude 

that neither O’Neal’s failure to file his habeas petition in the 

county of his confinement nor his failure to attach a copy of 

his commitment order to his petition deprived the district court 

of jurisdiction.

(a) Petition Not Filed in County 

of Confinement

The first jurisdictional question is whether the district court 

was deprived of jurisdiction by virtue of the fact that O’Neal 

was not confined within the county where the action was commenced. We conclude that it was not.

It has long been the general rule that a petition for a writ 

of habeas corpus should be filed in the county where the petitioner is confined. See, Addison v. Parratt, 204 Neb. 656, 284 

N.W.2d 574 (1979); Gillard v. Clark, 105 Neb. 84, 179 N.W. 

396 (1920); In re White, 33 Neb. 812, 51 N.W. 287 (1892).

For many years, our case law viewed the failure to comply 

with this rule as creating a jurisdictional issue. In Gillard v. 

Clark, 105 Neb. at 87, 179 N.W. at 398, we held that where 

habeas proceedings were initiated in a county other than where 

the petitioner was confined, it was “the duty of the court” to 
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948 290 NEBRASKA REPORTS

dismiss the petition for lack of jurisdiction unless the officer in 

whose custody the prisoner was held brought the prisoner into 

the court and submitted to its jurisdiction without objection. In 

Addison v. Parratt, we again held that where habeas proceedings were initiated in a county other than where the petitioner 

was confined, it was “‘the duty of the court, on objection to its 

jurisdiction, to dismiss the proceedings.’” See 204 Neb. at 658, 

284 N.W.2d at 575 (quoting Gillard v. Clark, supra).

[5] But in Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 

410 (2008), we revisited, and ultimately rejected, the proposition that failing to initiate a habeas proceeding in the county 

of confinement created jurisdictional problems. We concluded 

that by statute, any and all district courts in Nebraska have 

subject matter jurisdiction of claims for habeas corpus relief. 

The determination of which district court should hear a habeas 

petition is essentially a question of venue and not one of jurisdiction. See id.

Anderson v. Houston, supra, was decided more than 5 years 

before O’Neal filed his petition for a writ of habeas corpus. 

Under our holding in that case, the district court was not 

deprived of jurisdiction by the fact that O’Neal was not confined within Douglas County. Therefore, the district court erred 

in concluding that it lacked jurisdiction for this reason.

O’Neal’s failure to file his petition in the county of his 

confinement may have had implications for venue. See id. But 

we need not determine whether venue in Douglas County was 

improper, because the State waived any objection it may have 

had to venue.

[6-8] Unlike jurisdiction, venue is a personal privilege 

which, if not raised by a party, is waived unless prohibited by 

law. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 

1 (2011). In particular, “[a] claim of improper venue is a matter that may be waived by failure to make a timely objection.” 

See Krajicek v. Gale, 267 Neb. 623, 628, 677 N.W.2d 488, 

492 (2004). For an objection to venue to be timely in a civil 

case, it must be raised “before or in the defendant’s answer.” 

See State v. Vejvoda, 231 Neb. 668, 673, 438 N.W.2d 461, 

466 (1989). Habeas corpus is “a special civil proceeding.” 
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O’NEAL v. STATE 949

Cite as 290 Neb. 943

See Peterson v. Houston, 284 Neb. 861, 866, 824 N.W.2d 26, 

32 (2012).

[9] In the instant case, the State did not object to venue 

in or before its response to the habeas petition. Although the 

State alerted the district court that O’Neal had not filed his 

habeas petition in the county of his confinement, the State 

explicitly framed this argument as an objection to jurisdiction. 

Jurisdiction and venue are not synonymous and interchangeable 

functions in litigation. Hofferber v. Hastings Utilities, supra. 

And the difference between a jurisdictional argument and a 

venue argument is “significant.” See Anderson v. Houston, 274 

Neb. at 922, 744 N.W.2d at 416. Moreover, in a prior case, we 

determined that an objection to jurisdiction did not preserve an 

objection to venue. See In re Interest of Adams, 230 Neb. 109, 

430 N.W.2d 295 (1988). We therefore reject the State’s argument that its jurisdictional objection should be viewed as an 

objection to venue.

The State did not raise a timely venue objection, and it 

therefore waived any objection to venue in the district court for 

Douglas County.

(b) Failure to Attach Copy of 

Commitment Order

The second jurisdictional question presented by this appeal 

is whether the statutory requirement to attach a copy of the relevant commitment order to a habeas petition is jurisdictional—

that is, whether the failure to attach a copy of the commitment 

order to a habeas petition prevents a court from exercising 

jurisdiction over that petition. Under § 29-2801, when an individual makes an application for a writ of habeas corpus “to any 

one of the judges of the district court,” he or she must “produce 

to such judge a copy of the commitment or cause of detention 

of such person.”

The State argues that we previously decided this issue 

in Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990). It 

alleges that in that case, we held that “the failure to attach a 

copy of the commitment is jurisdictional.” See brief for appellee at 6. But we do not agree.
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950 290 NEBRASKA REPORTS

In Gallion v. Zinn, supra, Donnelle Gallion, an individual 

confined at the Lincoln Regional Center, filed a pro se petition for a writ of habeas corpus but did not provide a copy 

of his commitment or detention order. The lower court held 

a hearing on the petition and then dismissed it for the reason 

that the petition failed to state facts that would entitle Gallion 

to habeas relief. On appeal, within a broader discussion of 

whether Gallion’s petition showed legal cause for habeas 

relief, we considered the effect of his failure to provide a 

copy of the commitment order. We concluded (1) that under 

§ 29-2801, Gallion was “required to produce for the district 

court a copy of the order under which [he] was committed 

to and detained in the Lincoln Regional Center” and (2) that 

the “absence of the statutorily required copy of the commitment and detention order . . . prevented the district court from 

proceeding to the relief sought by Gallion’s habeas corpus 

action.” See Gallion v. Zinn, 236 Neb. at 100, 459 N.W.2d at 

215. Accordingly, we found that Gallion’s petition was properly dismissed.

At no point in Gallion v. Zinn, supra, did we discuss or 

mention jurisdiction. Moreover, we ultimately affirmed the 

dismissal of Gallion’s petition for failure to allege facts which 

entitled him to relief. If we had concluded, as the State suggests, that the district court lacked jurisdiction over Gallion’s 

petition due to the lack of a commitment order, we would not 

have affirmed the lower court’s dismissal, which constituted a 

judgment on the petition. Therefore, we reject the State’s argument that in Gallion v. Zinn, supra, we held that the failure to 

attach a copy of the commitment is jurisdictional.

[10] The State cites to no other cases which would lead us 

to conclude that the failure to attach a copy of the relevant 

commitment order to a petition for a writ of habeas corpus 

prevents a court from exercising jurisdiction over that petition. Indeed, in prior cases where a commitment order was not 

provided as part of the habeas petition, we have considered 

the merits of the petition and affirmed the lower court’s dismissal on nonjurisdictional grounds. See, Rehbein v. Clarke, 

257 Neb. 406, 598 N.W.2d 39 (1999); Gallion v. Zinn, supra. 
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O’NEAL v. STATE 951

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The Court of Appeals has likewise considered the merits of 

a habeas petition which did not include a commitment order. 

See Tyler v. Warden, Nebraska State Prison, No. A-02-295, 

2003 WL 21398153 (Neb. App. June 17, 2003) (not designated 

for permanent publication). Moreover, most states with statutory requirements similar to § 29-2801 do not treat compliance with such requirements as jurisdictional. See, Nguyen v. 

State, 282 Ga. 483, 651 S.E.2d 681 (2007), overruled on other 

grounds, Brown v. Crawford, 289 Ga. 722, 715 S.E.2d 132 

(2011); State ex rel. v. Adult Parole, 80 Ohio St. 3d 639, 687 

N.E.2d 761 (1998); People ex rel. Negron v. Herold, 33 A.D.2d 

1076, 307 N.Y.S.2d 710 (1970); State ex rel. Hansen v. Utecht, 

230 Minn. 579, 40 N.W.2d 441 (1950); State ex rel. Chase v. 

Calvird, 324 Mo. 429, 24 S.W.2d 111 (1930); In the Matter 

of Beard, 4 Ark. 9 (1842); In re Spates, No. 14-14-00524-CV, 

2014 WL 3051311 (Tex. App. July 3, 2014) (unpublished). But 

see Evans v. Dist. Ct., 194 Colo. 299, 572 P.2d 811 (1977). 

Consequently, we conclude that the failure to attach a copy 

of the relevant commitment order to a petition for a writ of 

habeas corpus does not prevent a court from exercising jurisdiction over that petition.

O’Neal’s failure to provide a copy of the commitment order 

is raised by the State solely within the context of jurisdiction. 

The State does not argue that such failure rendered his petition 

insufficient or otherwise precluded him from obtaining habeas 

relief. Therefore, we do not consider whether there are nonjurisdictional consequences to failing to attach a copy of the 

relevant commitment order to a petition for a writ of habeas 

corpus, because such issues are not before us.

2. Denial of Habeas P

[11] Because the district court had jurisdiction, it erred insofar as it assigned lack of jurisdiction as the reason for denying 

O’Neal’s habeas petition. However, “[a] proper result will not 

be reversed merely because it was reached for the wrong reason.” See In re Estate of Odenreider, 286 Neb. 480, 490, 837 

N.W.2d 756, 765 (2013). We must, therefore, consider whether 

the district court properly denied O’Neal’s petition. We conclude that it did.
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952 290 NEBRASKA REPORTS

[12-14] A writ of habeas corpus in this state is quite limited in comparison to those of federal courts, which allow 

a writ of habeas corpus to a prisoner when he or she is in 

custody in violation of the federal Constitution, law, or treaties of the United States. Peterson v. Houston, 284 Neb. 861, 

824 N.W.2d 26 (2012). Under Nebraska law, an action for 

habeas corpus is a collateral attack on a judgment of conviction. Id. Only a void judgment may be collaterally attacked. 

Id. “‘If the court has jurisdiction of the person of the accused 

and of the crime charged in the information[,] and does not 

exceed its lawful authority in passing sentence, its judgment 

is not void[,] whatever errors may have preceded the rendition thereof.’” Hickman v. Fenton, 120 Neb. 66, 70, 231 

N.W. 510, 512 (1930). 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. Peterson v. 

Houston, supra.

[15] O’Neal claimed that he was entitled to habeas relief, 

because the information on which he was convicted incorrectly identified the victim of counts I and II. Although he 

attempted to connect this alleged default to the legality of 

his imprisonment under the 5th and 14th Amendments, he 

did not argue that the information’s alleged error deprived 

the trial court of jurisdiction. Neither did he argue that it was 

not within the power of the sentencing court to impose the 

sentences which he received. Therefore, O’Neal did not raise 

an issue which could be addressed in a writ of habeas corpus 

proceeding in Nebraska. A writ of habeas corpus is not a writ 

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

that purpose. Peterson v. Houston, supra.

To the extent the district court assigned lack of jurisdiction 

as the reason for denying O’Neal’s petition, it erred. But the 

court also concluded that if it had jurisdiction, O’Neal was not 

entitled to relief. Because the record adequately demonstrates 

that the decision of the district court dismissing the petition 

was correct, we affirm.
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O’NEAL v. STATE 953

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VI. CONCLUSION

For the foregoing reasons, we affirm the order of the 

district court which denied O’Neal’s petition for a writ of 

habeas corpus.

Affirme

Cassel, J., concurring

Although I agree that the district court had jurisdiction of 

the application for writ of habeas corpus, O’Neal failed to 

identify the person or persons who were allegedly illegally 

detaining him. In my opinion, the district court should have 

summarily denied the application at the outset.

Habeas corpus, under statutes like our own, is a special 

proceeding, civil in character, providing a summary remedy 

open to persons illegally detained.1 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, had jurisdiction of the person of the defendant, and the 

sentence was within the power of the court to impose.2 Such a 

judgment is not void. Habeas corpus cannot be used as a substitute for a writ of error.3

 Habeas corpus is a collateral and not 

a direct proceeding when regarded as a means of attack upon a 

judgment sentencing a defendant.4

The writ must be “directed to the proper officer, person 

or persons who detains such prisoner.”5 If the writ is issued, 

the “officer or person to whom such writ shall be directed” is 

dutybound to “convey the person or persons so imprisoned or 

detained and named in such writ, before the judge allowing the 

same, . . . and to make due return of the writ.”6

The application failed to name any person to whom the writ 

might have been directed. The application must be made to the 

1 In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 

(1944).

2 Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).

3 Id.

4 Id.

5 Neb. Rev. Stat. § 29-2801 (Reissue 2008).

6 Neb. Rev. Stat. § 29-2802 (Reissue 2008).
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954 290 NEBRASKA REPORTS

judge “by oath or affirmation.”7 Without the name of any officer (or perhaps even a “John Doe” designation of some officer 

identified by means of the office he or she held), the application wholly failed to support issuance of a writ.

But instead of simply denying the writ, the district court, 

without any citation to authority under the habeas corpus statutes, directed the State to file a response. At this point, the 

court ceased to follow the procedure dictated by the habeas 

corpus statutes and basically made up its own procedure. It is 

the duty of the court on presentation of a petition for a writ 

of habeas corpus to examine it, and if it fails to state a cause 

of action, the court must enter an order denying a writ.8 If 

the district court had simply followed the statutory procedure 

and summarily denied the writ for failure to comply with the 

statutes, this appeal would have been very straightforward. 

And this court would have had no need to discuss jurisdiction, venue, waiver, and the requirement to attach a copy of 

the commitment.

I do not disagree with the majority’s reasoning or conclusion 

or the law that it cites. The district court’s irregular procedure 

introduced complexity into an otherwise simple process. I 

write separately to encourage trial courts not to follow the trail 

blazed by the court below, but, rather, to adhere to the simple 

statutory procedure.

7 § 29-2801.

8 See Dixon v. Hann, 160 Neb. 316, 70 N.W.2d 80 (1955).

State of Nebraska, appellant, 

Renae K. Warner, appel

___ N.W.2d ___

Filed May 22, 2015. No. S-14-345.

1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional 

question that does not involve a factual dispute as a matter of law.

2. ____: ____. Before reaching the legal issues presented for review, it is the duty 

of an appellate court to determine whether it has jurisdiction over the matter 

before it.