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TYRRELL v. FRAKES

Cite as 309 Neb. 85

Gregory Tyrrell, appellant, v. Scott Frakes, 

director, Department of Correctional Services, 

and Rosalyn Cotton, chair, Nebraska 

Board of Parole, appellees.

___ N.W.2d ___

Filed April 29, 2021. No. S-20-425.

1. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

2. Jurisdiction. The question of jurisdiction is a question of law.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusions reached by the trial court.

4. 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.

5. Habeas Corpus: Final Orders. An order denying habeas corpus relief 

qualifies as a final order.

6. Habeas Corpus: Final Orders: Proof: Appeal and Error. The test of 

finality for the purpose of an appeal in a habeas corpus proceeding is 

not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by 

the judgment.

7. Final Orders: Appeal and Error. To be appealable, an order must 

satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2020) and, additionally, where implicated, Neb. Rev. Stat. 

§ 25-1315(1) (Reissue 2016).

8. Habeas Corpus. Where a habeas corpus proceeding and a petition in 

error proceeding are filed in a single case, Neb. Rev. Stat. § 25-1315(1) 

(Reissue 2016) applies.

9. Jurisdiction: Appeal and Error. If the court from which an appeal 

was taken lacked jurisdiction, then the appellate court acquires no 

jurisdiction.

Nebraska Supreme Court Online Library

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

07/23/2021 08:10 AM CDT
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TYRRELL v. FRAKES

Cite as 309 Neb. 85

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

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

of liberty.

11. Habeas Corpus: Collateral Attack. An action for habeas corpus is a 

collateral attack on a judgment of conviction.

12. Judgments: Collateral Attack. A collateral attack on a judgment is 

where the judgment is attacked in a way other than a proceeding in the 

original action to have it vacated, reversed, or modified, or a proceeding 

in equity to prevent its enforcement.

13. Habeas Corpus: Prisoners. 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.

14. 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.

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

erroneous, cannot be collaterally attacked.

16. Constitutional Law: Habeas Corpus. Habeas corpus is not a proper 

remedy to challenge a petitioner’s detention pursuant to a final conviction and sentence on the basis that the statute underlying the conviction 

is unconstitutional.

17. Habeas Corpus: Appeal and Error. Habeas corpus is a collateral 

proceeding and as such cannot be used as a substitute for an appeal or 

proceedings in error.

18. Constitutional Law: Habeas Corpus: Probation and Parole: Appeal 

and Error. Habeas corpus is not a proper remedy to challenge the 

constitutionality of a parole condition after a parolee fails to challenge 

the condition in a revocation proceeding based upon a violation of 

the condition or in an appeal or proceeding in error from the revocation proceeding.

Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

Gregory Tyrrell, pro se.

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

Campbell, Solicitor General, for appellees.

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

and Papik, JJ.
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TYRRELL v. FRAKES

Cite as 309 Neb. 85

Cassel, J.

INTRODUCTION

More than 5 months after a parole revocation, Gregory 

Tyrrell filed a district court proceeding asserting both a petition in error and an application for writ of habeas corpus. That 

court quashed the habeas claim and, months later, dismissed 

the error proceeding. Only then did Tyrrell appeal. We granted 

bypass to address two issues. First, was the appeal timely? It 

was, because of the combined effect of the statutes governing 

habeas appeals 1 and finality of multiple claims. 2 Second, after 

failing to challenge a parole condition’s constitutionality during the revocation hearing or in a timely error proceeding, can 

habeas be used to do so? Because habeas can be used only 

to collaterally attack a void criminal judgment, sentence, and 

commitment, and cannot be used as a substitute for an appeal 

or proceedings in error, habeas was not available. We affirm.

BACKGROUND

Parole Placement

The Nebraska Board of Parole (Board) placed Tyrrell on 

parole from his sentences for burglary and first degree sexual 

assault. The Board conditioned Tyrrell’s parole upon his (1) 

nonuse of online social media and (2) paying a monthly programming fee to the Nebraska Department of Correctional 

Services. At the time of parole, Tyrrell agreed in writing to the 

special conditions for parole of sex offenders.

Parole Revocation

A woman who met Tyrrell through an online dating website 

reported to Tyrrell’s parole officer that Tyrrell had violated the 

social media parole condition. When questioned by his parole 

officer, Tyrrell admitted the violation.

1 See Neb. Rev. Stat. § 29-2823 (Reissue 2016).

2 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
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The Office of Parole Administration filed a petition for 

review of parole hearing. At the parole review hearing, Tyrrell 

pled guilty to violating the online social media condition and 

was also found guilty of not paying his monthly programming 

fees. The Board revoked his parole.

Tyrrell did not file any challenge to the parole revocation 

for over 5 months. The Board entered the revocation order on 

December 4, 2018. This case began on May 20, 2019.

District Court Proceedings

Tyrrell, assisted by counsel, began the case by filing a 

petition for declaratory judgment—asserting various claims, 

including a violation of 42 U.S.C. § 1983 (2018). The caption 

of the complaint named Scott Frakes, director of the Nebraska 

Department of Correctional Services, and Rosalyn Cotton, 

the Board’s chair, as defendants. Although the Board was not 

named in the caption, the body of the complaint made allegations against it.

The Board, Frakes, and Cotton filed a motion to dismiss, 

asserting that the court lacked subject matter jurisdiction and 

that the complaint failed to state a claim. However, Tyrrell did 

not wait for a ruling on their motion. Instead, he sought leave 

and amended his complaint.

The new pleading, filed on November 8, 2019, and styled 

as a “Petition in Error & Application for a Writ of Habeas 

Corpus,” asserted both types of proceedings in the same 

action. Obviously, both claims were filed more than 30 days 

after the Board’s order revoking Tyrrell’s parole. The pleading named Frakes and Cotton, in their official capacities, 

as defendants. Although once again the pleading’s caption 

did not name the Board (except for Cotton, its chair) as a 

defendant, the portion of the body of the pleading asserting 

a petition in error alleged error in the Board’s action revoking Tyrrell’s parole. Apparently to dispel that uncertainty, the 

district court’s order entered on November 14, which granted 

Tyrrell leave to file his amended “petition” and gave counsel 

for Frakes and Cotton 21 days to show cause why a writ of 
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Cite as 309 Neb. 85

habeas corpus should not issue, also noted that the court had 

met with counsel for the respective parties on November 8 and 

that the “parties agree[d] that the . . . Board . . . should be, and 

hereby is, dropped from this case as a party.”

In response to the amended pleading, Frakes and Cotton 

filed a motion to quash the “petition” for writ of habeas corpus. 

On January 13, 2020, the district court granted the motion to 

quash, ruling that parole revocation decisions are beyond “the 

limits of habeas relief under Nebraska law.” Tyrrell did not file 

a notice of appeal within 30 days of that order.

On February 4, 2020, the court issued an order directing 

Tyrrell to show cause why the petition in error should not be 

dismissed. Shortly afterward, Tyrrell elected to represent himself and his attorney withdrew. Tyrrell filed a response advising 

the court that he wished to file additional motions. A few days 

later, Tyrrell filed a motion to reconsider his habeas corpus 

petition and a motion to amend it. The court overruled both 

motions on May 18. In that order, the court gave Tyrrell 30 

days to show cause why the petition in error should not be dismissed for lack of jurisdiction, based upon Tyrrell’s failure to 

timely file the petition in error. Tyrrell filed a timely response 

maintaining that habeas corpus was the proper remedy and 

conceding that he was “unable to show cause why this matter 

should not be dismissed.”

The next day, on May 29, 2020, the court dismissed the petition in error for lack of jurisdiction.

Appeal

Tyrrell filed a pro se notice of appeal on June 5, 2020. 

We granted Tyrrell’s petition to bypass the Nebraska Court 

of Appeals. 3

While the petition to bypass was pending, Frakes and 

Cotton filed a motion for summary dismissal, 4 asserting that 

3 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).

4 See Neb. Ct. R. App. P. § 2-107(B) (rev. 2017).
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the appeal was filed more than 30 days after the district court 

sustained their motion to quash the application for writ of 

habeas corpus. We overruled the motion, but reserved the 

jurisdictional issue for consideration upon plenary submission 

of the appeal. The appeal was submitted upon completion of 

oral arguments, 5 which, due to the ongoing coronavirus pandemic, were conducted solely by electronic means.

ASSIGNMENTS OF ERROR

Tyrrell assigns 14 errors, which can be divided into two 

categories—habeas corpus assignments and petition in error 

assignments.

Regarding the habeas proceeding, Tyrrell assigns the district court erred in (1) failing to determine sua sponte to issue 

the writ of habeas corpus, (2) failing to issue a writ of habeas 

corpus, (3) sustaining the appellees’ motion to quash, (4) overruling his motion for reconsideration, and (5) overruling his 

motion to amend.

[1] Tyrrell assigns nine instances of “plain error” to the 

Board, including two matters that were not presented to the 

district court. Appellate courts do not generally consider arguments and theories raised for the first time on appeal. 6 But 

more important, Tyrrell does not assign that the court erred in 

dismissing his petition in error for being untimely.

STANDARD OF REVIEW

[2,3] The question of jurisdiction is a question of law. 7

When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusions reached by the trial court. 8

5 See Neb. Ct. R. App. P. § 2-111 (rev. 2017).

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

7 TDP Phase One v. The Club at the Yard, 307 Neb. 795, 950 N.W.2d 640 

(2020).

8 In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020).
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[4] 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. 9

ANALYSIS

Jurisdiction

Tyrrell does not challenge the district court’s dismissal of his 

petition in error for lack of jurisdiction. At oral argument, the 

State conceded that a petition in error can be used to challenge 

a parole revocation. 10 Assuming without deciding that the State 

is correct, an error proceeding must be filed within 30 days of 

the final order. 11 Here, it was not. Tyrrell conceded as much in 

his response to the district court’s show cause order. But different principles apply to the appeal regarding Tyrrell’s application for a writ of habeas corpus.

[5,6] In Frakes and Cotton’s brief, they contested our jurisdiction of the district court’s disposition of Tyrrell’s application for writ of habeas corpus—arguing that he should 

have appealed within 30 days of the court’s January 2020 

order rather than waiting until after its May 2020 dismissal 

order. That argument relied upon our decision in Anderson 

v. Houston.

 12 Therein, we said that “an order denying habeas 

corpus relief qualifies as a final order” 13 and that “[t]he test of 

finality for the purpose of an appeal in a habeas corpus proceeding is not necessarily whether the whole matter involved 

in the action is concluded, but whether the particular proceeding or action is terminated by the judgment.” 14 We agree with 

these principles.

9 Evans v. Frakes, 293 Neb. 253, 876 N.W.2d 626 (2016).

10 See Ditter v. Nebraska Bd. of Parole, 11 Neb. App. 473, 655 N.W.2d 43 

(2002). See, also, Hrbek v. Shortridge, 223 Neb. 785, 394 N.W.2d 285 

(1986).

11 See Neb. Rev. Stat. § 25-1931 (Reissue 2016).

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

13 Id. at 934, 744 N.W.2d at 424.

14 Id. (internal quotation marks omitted).
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[7] But as Tyrrell pointed out and the State effectively 

conceded at oral argument, our Anderson decision did not 

involve a habeas proceeding asserted in the same action as 

another claim and, thus, § 25-1315(1) had no potential application in that case. We have said that to be appealable, an order 

must satisfy the final order requirements of Neb. Rev. Stat. 

§ 25-1902 (Cum. Supp. 2020) and, additionally, where implicated, § 25-1315(1). 15 Here, the habeas claim was asserted in 

the same proceeding as a petition in error. Our jurisdiction 

turns upon whether that statute was implicated here.

Recently, we held that “when [a forcible entry and detainer] 

claim is part of an action involving multiple claims or multiple 

parties, § 25-1315 governs the immediate appealability of an 

order determining the [forcible entry and detainer] claim.” 16

We did so based upon the language of a forcible entry and 

detainer statute which states, “Any party against whom judgment has been entered . . . may appeal as provided for in a 

civil action.” 17 We reasoned that the plain language of the 

statute directed that parties in such cases may appeal only 

“as provided for in a civil action” and that § 25-1315 governs 

civil actions.

[8] The same reasoning applies here. Our statute states that 

habeas corpus proceedings “may be reviewed as provided by 

law for appeal in civil cases.” 18 Thus, where a habeas corpus 

proceeding and a petition in error proceeding are filed in a 

single case, § 25-1315(1) applies. Pursuant to that section, the 

order disposing of the habeas claim did not become appealable until the disposition of the petition in error. Tyrrell’s 

15 Rafert v. Meyer, 298 Neb. 461, 905 N.W.2d 30 (2017); Guardian Tax 

Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 825 (2017).

16 TDP Phase One v. The Club at the Yard, supra note 7, 307 Neb. at 803, 

950 N.W.2d at 647.

17 Neb. Rev. Stat. § 25-21,233 (Reissue 2016).

18 § 29-2823.
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appeal was filed within 30 days after that occurred. Therefore, 

it was timely and we have jurisdiction of this appeal.

The joining of a petition in error delayed disposition of the 

application for writ of habeas corpus, which is a “‘special civil 

proceeding providing a summary remedy.’” 19 To avoid such 

delay, we discourage the practice of joining such applications 

with other civil proceedings or actions.

Petition in Error

[9] We lack jurisdiction to consider Tyrrell’s assignments 

of error regarding his petition in error. He conceded that the 

district court lacked jurisdiction of the error proceeding. If 

the court from which an appeal was taken lacked jurisdiction, 

then the appellate court acquires no jurisdiction. 20 Because the 

district court correctly determined that it lacked jurisdiction of 

the petition in error and we consequently lack jurisdiction of 

the assignments of error addressing it, we affirm the district 

court’s dismissal of the error proceeding.

Habeas Corpus

Tyrrell’s other assignments of error address his application 

for a writ of habeas corpus. Tyrrell argues that he is entitled 

to the writ and that the district court erred in failing to issue 

the writ, sustaining Frakes and Cotton’s motion to quash, 

and overruling his motion for reconsideration and motion 

to amend.

[10-12] A writ of habeas corpus challenges and tests the 

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

deprivation of liberty. 21 In Nebraska, habeas corpus is quite 

limited in comparison to the scope of the writ in federal 

courts. 22 Under Nebraska law, an action for habeas corpus 

19 See Johnson v. Gage, 290 Neb. 136, 139, 858 N.W.2d 837, 840 (2015).

20 In re Estate of Marsh, supra note 8.

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

22 Id.
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is a collateral attack on a judgment of conviction. 23 A collateral 

attack on a judgment is where the judgment is attacked in a 

way other than a proceeding in the original action to have it 

vacated, reversed, or modified, or a proceeding in equity to 

prevent its enforcement. 24

[13-15] 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. 25 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. 26 A judgment that is not void, even if 

erroneous, cannot be collaterally attacked. 27

Tyrrell disagrees with our case law, preferring instead to cite 

Arias v. Casmer 28 as support for the proposition that a void 

judgment is not a prerequisite to habeas relief. While we are 

not bound by the unpublished federal district court opinion, 

Arias actually undermines Tyrrell’s position. 29 The Arias court 

noted that this court has “‘consistently held that to release 

a person from a sentence of imprisonment by habeas corpus it must appear that the sentence was absolutely void.’” 30

Later in the opinion, the Arias court quoted from one of 

our decisions paraphrasing our habeas statute as applying 

to persons “‘detained without having been convicted of a 

crime and committed for the same, those who are unlawfully 

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 Arias v. Casmer, No. 4:06CV3208, 2008 WL 413288 (D. Neb. Feb. 12, 

2008).

29 See id.

30 See id. at *2 (quoting Piercy v. Parratt, 202 Neb. 102, 273 N.W.2d 689 

(1979)).
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deprived of their liberty, or those who are detained without legal authority.’” 31 Tyrrell relies upon the phrase “unlawfully deprived of their liberty” to argue that he is entitled to 

habeas corpus relief. 32 However, our habeas statute “explicitly 

excludes from its scope ‘persons convicted of some crime or 

offense for which they stand committed.’” 33 Tyrrell does not 

contest that he stands committed for a criminal conviction. 

Thus, in the circumstances before us, the phrase Tyrrell quotes 

simply does not apply to him.

Tyrrell cites many cases in which habeas petitions were 

denied, but argues “at no time did the Court ever rule that 

habeas was the incorrect remedy.” 34 None of these cases considered whether habeas corpus was the proper avenue for 

relief. 35 When a jurisdictional defect is neither noted nor discussed in an opinion, it does not stand for the proposition that 

no defect existed. 36 Therefore, Tyrrell’s cited cases do not support his argument.

Finally, despite having agreed to the social media parole 

condition and having admitted violating it, Tyrrell now asserts 

that it was unconstitutional. He relies on Packingham v. North 

Carolina,

 37 where the U.S. Supreme Court held that a state 

31 See id. at *2 (emphasis omitted) (quoting Glantz v. Hopkins, 261 Neb. 

495, 624 N.W.2d 9 (2001)).

32 See id.

33 Sanders v. Frakes, supra note 21, 295 Neb. at 379, 888 N.W.2d at 520 

(quoting Neb. Rev. Stat. § 29-2801 (Reissue 2020)).

34 See brief for appellant at 29 (citing Hrbek v. Shortridge, supra note 

10; Riker v. Vitek, 203 Neb. 719, 279 N.W.2d 876 (1979); and Piercy v. 

Parratt, supra note 30).

35 See, Hrbek v. Shortridge, supra note 10; Riker v. Vitek, supra note 34; 

Piercy v. Parrott, supra note 30.

36 See Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 

131 S. Ct. 1436, 179 L. Ed. 2d 523 (2011).

37 Packingham v. North Carolina, ___ U.S. ___, 137 S. Ct. 1730, 198 L. Ed. 

2d 273 (2017).
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statute making it a felony for a registered sex offender to gain 

access to a number of websites, including commonplace social 

media websites, constituted a violation of the 1st Amendment’s 

Free Speech Clause, applicable to the states under the Due 

Process Clause of the 14th Amendment. But the Court did not 

address the validity of a condition of parole. There, the defend

ant, on direct appeal from his conviction for a violation of the 

statute, challenged the statute’s constitutionality. Nowhere did 

the Packingham Court suggest that the claim could have been 

raised by a collateral attack on the conviction, had it become a 

final judgment.

[16] In Sanders v. Frakes, we held that habeas corpus is not 

a proper remedy to challenge a petitioner’s detention pursuant 

to a final conviction and sentence on the basis that the statute 

underlying the conviction is unconstitutional. 38 In doing so, we 

noted that the rule prohibiting collateral attacks on final judgments based upon an unconstitutional statute applies when the 

judgment attacked is a criminal conviction and sentence.

Tyrrell’s challenge is even further removed than the one 

raised in Sanders. He did not attempt to show that the judgment, sentence, and commitment were void. He is not claiming that the statute under which he was convicted and sentenced was unconstitutional. He does not assert that he has 

completed serving the sentence. He does not contest that 

the Board was required by statute to “[f]ix the conditions of 

parole,” 39 that as “[a] committed offender while on parole” he 

“remain[ed] in the legal custody and control of the Board,” 40

or that the Board was empowered “at any time [to] revoke the 

parole . . . with or without cause.” 41 He asserts only that the 

parole condition he expressly accepted and admittedly violated 

was unconstitutional.

38 Sanders v. Frakes, supra note 21.

39 See Neb. Rev. Stat. § 83-192 (Cum. Supp. 2020).

40 See Neb. Rev. Stat. § 83-1,121 (Cum. Supp. 2020).

41 See id.
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[17,18] Moreover, he did not attack the condition’s constitutionality during the revocation proceeding or by a timely 

proceeding in error. It has long been the rule in this jurisdiction 

that habeas corpus is a collateral proceeding and as such cannot 

be used as a substitute for an appeal or proceedings in error. 42

We hold that habeas corpus is not a proper remedy to challenge 

the constitutionality of a parole condition after a parolee fails 

to challenge the condition in a revocation proceeding based 

upon a violation of the condition or in an appeal or proceeding 

in error from the revocation proceeding. 43

CONCLUSION

Tyrrell timely invoked the jurisdiction of this court. But 

because Tyrrell’s petition in error was not timely filed in the 

district court, that court lacked jurisdiction of that portion of 

the proceeding. Because the district court lacked jurisdiction of 

the error proceeding, we lack jurisdiction of the portion of the 

appeal premised on the petition in error. We have jurisdiction 

of the portion of the appeal based upon Tyrrell’s application for 

a writ of habeas corpus.

Because habeas corpus is a collateral proceeding and cannot 

be used as a substitute for an appeal or proceeding in error, the 

district court did not err in quashing Tyrrell’s application for a 

writ of habeas corpus. We affirm.

Affirmed.

Freudenberg, J., not participating.

42 Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985). See, also, 

Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016).

43 See Sanders v. Frakes, supra note 21.