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Nebraska Supreme Court Advance S

300 Nebraska Report

STATE v. CONN

Cite as 300 Neb. 391

State of Nebraska, appellee, v.

Coty J. Conn, appella

___ N.W.2d ___

Filed June 29, 2018. No. S-17-721.

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. 

The lower court’s findings of fact will be upheld unless such findings 

are clearly erroneous.

2. Limitations of Actions. If the facts of a case are undisputed, the issue 

as to when the statute of limitations begin to run is a question of law.

3. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

4. Postconviction: Time: Appeal and Error. Once the timeliness of a 

postconviction motion is challenged and a hearing is held on the issue, 

an inmate must raise all applicable timeliness arguments to the district 

court to preserve them for appellate review.

5. Appeal and Error. It is well established that an appellate court will not 

consider questions not presented to the district court.

6. 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 other 

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

to file suit on time.

7. ____. Equitable tolling requires no fault on the part of the defendant. It 

does, however, require due diligence on the part of the claimant.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirme

Nebraska Supreme Court Online Library

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

08/24/2018 01:09 AM CDT
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STATE v. CONN

Cite as 300 Neb. 391

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, JJ., and Daugherty, District Judg

Stacy, 

Coty J. Conn filed a motion seeking postconviction relief. 

The State responded with a motion to dismiss, arguing the 

motion was filed outside the 1-year limitations period under 

Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). After conducting 

a hearing, the district court found the motion was time barred 

and granted the State’s motion to dismiss. Conn filed this 

timely appeal.

FACTS

In November 2011, as part of a plea agreement involving 

four cases, Conn pled no contest to one count of attempted 

assault on an officer and admitted he was a habitual criminal. 

On January 27, 2012, he was sentenced to 20 to 35 years’ 

imprisonment, with the sentence to be served concurrently with 

identical sentences in the other three cases. Conn was represented by counsel at the time of the plea and sentencing. No 

direct appeal was filed.

On May 28, 2013, Conn filed the instant motion for postconviction relief. The motion, summarized, alleged trial counsel was ineffective for failing to file a direct appeal after Conn 

asked that he do so. The same day, Conn moved for appointment of postconviction counsel.

On February 4, 2013, the district court appointed counsel 

for Conn. Three days later, the State moved to dismiss Conn’s 

postconviction motion, arguing it was filed outside the 1-year 

limitations period under § 29-3001(4). After a delay of several 

years that is not fully explained by the record, the court held 

a hearing on the State’s motion. After the hearing, the district 
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STATE v. CONN

Cite as 300 Neb. 391

court granted the State’s motion to dismiss, finding Conn’s 

postconviction motion was filed out of time. Conn filed this 

appeal, which we moved to our docket on our own motion.1

ASSIGNMENT OF ERROR

Conn assigns that the district court erred in dismissing his 

postconviction motion as time barred pursuant to § 29-3001(4).

STANDARD OF REVIEW

[1] 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

 The 

lower court’s findings of fact will be upheld unless such findings are clearly erroneous.3

[2] If the facts of a case are undisputed, the issue as to when 

the statute of limitations begin to run is a question of law.4

ANALYSIS

Pursuant to § 29-3001(4), a 1-year limitations period applies 

to motions for postconviction relief. That period runs from the 

later of:

(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;

(b) The date on which the factual predicate of the 

constitutional claim or claims alleged could have been 

discovered through the exercise of due diligence;

(c) The date on which an impediment created by state 

action, in violation of the Constitution of the United 

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

2 State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015); State v. Cook, 290 

Neb. 381, 860 N.W.2d 408 (2015).

3 See State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).

4 State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016).
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States or the Constitution of Nebraska or any law of this 

state, is removed, if the prisoner was prevented from filing a verified motion by such state action;

(d) The date on which a constitutional claim asserted 

was initially recognized by the Supreme Court of the 

United States or the Nebraska Supreme Court, if the 

newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or

(e) August 27, 2011.5

Motion Was Not Timely F

Under § 29-3001(4)(

Conn was sentenced on January 27, 2012. The 30-day 

appeal period expired on a Sunday, so he had until February 27 

to file a direct appeal.6 No appeal was filed. But Conn asks us 

to find that his conviction did not become final until May 28, 

2012, making his postconviction motion filed 1 year later on 

May 28, 2013, timely. We address his rationale below, but note 

he preserved this argument for appellate review because he 

raised it before the district court at the hearing on the State’s 

motion to dismiss, and he assigned and argued it in his brief 

to this court.

In arguing that his January 27, 2012, judgment did not 

become final until May 28, Conn relies in part on our opinion 

in State v. Reeves.7 The relevant issue in Reeves was whether 

a new rule of constitutional criminal procedure applied to 

a case before us on postconviction. Reeves held that such 

rules are generally not applicable to “‘those cases which have 

become final before the new rules are announced,’”8 and 

then explained: “A conviction is final where the judgment of 

5 § 29-3001(4).

6 See Neb. Rev. Stat. § 25-1912 (Reissue 2016) (appeals must be filed 

within 30 days after entry of judgment).

7 State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), vacated 498 U.S. 

964, 111 S. Ct. 425, 112 L. Ed. 2d 409.

8 Id. at 749, 453 N.W.2d at 383.
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conviction was rendered, the availability of appeal exhausted, 

and the time for petition of certiorari has lapsed.”9

The time to petition for certiorari is governed by rule 13 of 

the Rules of the Supreme Court of the United States. That rule 

provides that a petition for writ of certiorari is timely if filed 

within 90 days of the entry of final judgment.10

Conn relies on Reeves, rule 13, and § 25-1912 to argue his 

postconviction motion was timely filed. He reasons that his 

sentence was imposed on January 27, 2012, and his direct 

appeal date expired on February 27,11 so he had until May 28, 

2012, to petition for a writ of certiorari. Conn’s postconviction 

motion was filed exactly 1 year later, on May 28, 2013.

Conn’s briefing does not explain how, when no direct appeal 

was filed, there would be any basis for petitioning the U.S. 

Supreme Court for a writ of certiorari.12 But regardless, in 

State v. Huggins,

13 we rejected the argument that the finality 

determination under § 29-3001(4)(a) must include an additional 90-day period so the time to petition for a writ of certiorari can lapse.

In Huggins, the defendant’s direct appeal was denied by 

the Nebraska Court of Appeals. Huggins petitioned for further review, which this court denied. He did not thereafter petition for writ of certiorari, and the Court of Appeals 

issued its mandate on September 17, 2012. On November 27, 

2013, he moved for postconviction relief. The State raised 

the 1-year limitations period in its response, and the district 

court found the postconviction motion was untimely, because 

the 1-year limitations period ran from the date the Court of 

Appeals issued its mandate. On appeal, the defendant argued 

the 1-year period did not begin to run until the expiration of 

9 Id. at 750, 453 N.W.2d at 383.

10 Sup. Ct. R. 13(1).

11 See § 25-1912.

12 See, 28 U.S.C. § 1257(a) (2012); rule 13(1).

13 State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).
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the 90-day period in which he could have petitioned for a writ 

of certiorari. He relied on State v. Lotter14 which, like Reeves, 

addressed whether a new rule of constitutional criminal procedure could apply to a case on collateral review. In that context, 

Lotter stated, “A criminal conviction is final for purposes of 

collateral review when the judgment of conviction is rendered, 

the availability of appeal is exhausted, and the time for petition for certiorari has lapsed.”15

Huggins rejected the inmate’s argument. It reasoned the 

plain language of § 29-3001(4)(a) referenced the “conclusion of a direct appeal,” and that meant the date the Court of 

Appeals issued its mandate. To the extent Lotter referenced the 

90-day certiorari period, Huggins distinguished Lotter by noting § 29-3001(4) did not exist at the time Lotter was decided, 

and thus the description in Lotter of a final conviction could 

not be considered a comment on the meaning of the language 

of § 29-3001(4).

A similar rationale applies here, where the facts presented require that we interpret the statutory reference in 

§ 29-3001(4)(a) to “the expiration of the time for filing a 

direct appeal.” Section 25-1912(1) explicitly provides that 

appeals must be filed “within thirty days after the entry” of 

the judgment, decree, or final order. The expiration of Conn’s 

“time for filing a direct appeal” under the plain language of 

§ 29-3001(4)(a) was therefore 30 days after the date of sentencing on January 27, 2012. To the extent Conn relies on 

Reeves and Lotter to suggest that a 90-day period for filing a 

writ of certiorari should be included in the calculation under 

§ 29-3001(4)(a), neither case dictates such a result. Reeves 

and Lotter were decided at a time when the limitations period 

in § 29-3001(4)(a) did not exist, and because both cases 

referred to final convictions in the context of a retroactivity 

14 State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003) (superseded in part 

by statute as stated in State v. Harris, 292 Neb. 186, 871 N.W.2d 762 

(2015)).

15 Id. at 254, 664 N.W.2d at 903.
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analysis, and not in the context of interpreting § 29-3001(4), 

they do not provide support for Conn’s contention. Further, 

because Conn did not appeal from the judgment of conviction 

and sentence, there is no decision by the highest court of the 

State on which to premise a petition for writ of certiorari in 

the first instance.16

[3] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous.17 Based on the plain language 

of §§ 25-1912 and 29-3001(4)(a), the 1-year limitations period 

began to run on February 27, 2012. The district court correctly 

found Conn’s postconviction motion, filed May 28, 2013, was 

outside this period and thus time barred by § 29-3001(4)(a).

Timeliness Under § 29-3001(4)

Not Preserve

Conn’s postconviction motion did not allege any basis other 

than § 29-3001(4)(a) in asserting the motion was timely. Nor 

did he argue any other basis to the district court at the hearing on the motion to dismiss. But in his brief on appeal, Conn 

assigns and argues that his motion was also timely under 

§ 29-3001(4)(b). He contends he filed the motion within 1 year 

of discovering his trial counsel had not filed the direct appeal 

as instructed, and thus claims he filed the motion within 1 year 

of the “date on which the factual predicate of the constitutional 

claim or claims” was “discovered through the exercise of 

due diligence.”18

The State argues this assignment has not been preserved for 

appellate review because, among other reasons, Conn did not 

16 See 28 U.S.C. § 1257(a) (under certain circumstances, “[f]inal judgments 

or decrees rendered by the highest court of a State in which a decision 

could be had, may be reviewed by the Supreme Court by writ of 

certiorari”).

17 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 705 (2018).

18 § 29-3001(4)(b).
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argue timeliness under § 29-3001(4)(b) when defending against 

the motion to dismiss. We agree.

[4,5] The record demonstrates that Conn did not present 

an argument based on § 29-3001(4)(b) to the district court in 

response to the State’s motion to dismiss. Once the timeliness 

of his postconviction motion was challenged and a hearing was 

held on the issue, Conn had to raise all applicable arguments 

to the district court if he wanted to preserve them for appellate 

review. It is well established that an appellate court will not 

consider questions not presented to the district court.19 Because 

the applicability of § 29-3001(4)(b) was not raised to the district court, it has not been preserved for appellate review.

No Equitable Toll

Conn argues the doctrine of equitable tolling should apply 

to overcome any finding that his postconviction motion was 

not timely filed. His postconviction motion did not expressly 

use the term “equitable tolling,” but it did allege that he asked 

his trial counsel to file an appeal after the sentencing hearing 

and then asked “at least two more times,” but “was told that 

he wasn’t able to appeal, and that he could only appeal the 

sentence.” Conn raised this argument, which he now frames as 

one of equitable tolling, to the postconviction court in response 

to the State’s motion to dismiss.

[6,7] 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.20 Equitable 

tolling requires no fault on the part of the defendant.21 It does, 

however, require due diligence on the part of the claimant.22

19 See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).

20 In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).

21 Id.

22 Id.
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Nebraska has considered the principle that a statute of limitations can be equitably tolled.23 But all of our cases applying 

the 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.24 In that regard, we observe 

that a similar principle is already found in the statutory tolling 

language of § 29-3001(4)(c). Consequently, 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.

In State v. Huggins,

25 this court acknowledged that the U.S. 

Supreme Court has applied equitable tolling in federal habeas 

actions if the prisoner shows (1) he or she has been pursuing 

his or her rights diligently and (2) some extraordinary circumstance stood in the way and prevented timely filing of a 

petition.26 But Huggins declined to decide whether equitable 

tolling applies to the postconviction limitations period under 

§ 29-3001(4). This court in Huggins reasoned that because 

the prisoner was claiming equitable tolling applied only with 

respect to the time period he was in federal (not state) custody, 

and because that time period did not encompass the entire 

1-year limitations period of § 29-3001(4), the circumstances of 

the case would not support equitable tolling even if the principle applied.

Here, Conn argues equitable tolling applies because his 

postconviction motion alleged that he “requested, on three 

(3) occasions, that trial counsel file a direct appeal of the 

District Court’s January 27, 2012, sentence; and, trial counsel 

failed to do so.”27 He argues that he “acted reasonably” when 

23 See id.

24 Id.

25 Huggins, supra note 13.

26 Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130 

(2010).

27 Brief for appellant at 11.
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he believed that instructing his counsel to file an appeal was 

“tantamount to trial counsel filing such an appeal.”28 He contends that his lack of legal training, his imprisonment, and his 

detrimental reliance on the instruction he gave to trial counsel 

all prevented him from filing his postconviction motion until 

May 28, 2013.

Even assuming these allegations are true, they do not satisfy the tolling provisions of § 29-3001(4)(c). And the allegations would not support equitable tolling even if the principle 

applied. Thus, as in Huggins, this case does not require us to 

decide whether the doctrine of equitable tolling could ever 

apply to § 29-3001(4), because the doctrine is unsupported on 

the facts presented.

Appointment

Postconviction C

Conn also argues the postconviction court implicitly found 

his postconviction motion was timely filed when it granted 

his motion to appoint counsel to represent him in the postconviction action. The motion appointing counsel was granted 

before the State responded to Conn’s motion and raised the 

affirmative defense that it was barred by the limitations period 

of § 29-3001(4). Moreover, there is no correlation between 

a court’s appointment of postconviction counsel and a finding that the motion was timely filed. This argument is without merit.

CONCLUSION

For the foregoing reasons, the files and records affirmatively 

show that Conn’s postconviction motion was time barred, 

and the judgment of the district court dismissing the motion 

is affirmed.

Affirmed

28 Id. at 12.