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Nebraska Supreme Court Advance S

298 Nebraska Report

BUGGS v. FRAKES

Cite as 298 Neb. 432

Marvin E. Buggs, appellant, v. Scott F

director, Nebraska Departmen

Correctional Services, appel

___ N.W.2d ___

Filed December 15, 2017. No. S-16-1015.

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. Actions: Habeas Corpus: Pleadings. 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 

the writ.

Appeal from the District Court for Lancaster County: Sus

I. Strong, Judge. Reversed and remanded with instructio

Marvin E. Buggs, pro se.

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellee.

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

Funke, JJ

Heavican, C

INTRODUCTION

Marvin E. Buggs filed a petition for a writ of habeas corpus 

and a motion seeking the postponement of fees. His motion 

to postpone fees was denied, with the district court finding 

the underlying petition frivolous. We reverse, and remand 

with instructions.

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

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BUGGS v. FRAKES

Cite as 298 Neb. 432

FACTUAL BACKGROUND

Buggs was convicted in 2001 of second degree forgery with 

a habitual criminal enhancement, and manslaughter. He was 

sentenced to 10 years’ imprisonment for forgery based on the 

enhancement, and a consecutive sentence of 20 to 20 years’ 

imprisonment for manslaughter. Both his mandatory release 

date and his parole eligibility date have been calculated for the 

same date in June 2021.

On August 31, 2016, Buggs filed a motion for postponement 

of fees in the district court, citing as authority Neb. Rev. Stat. 

§ 29-2824 (Reissue 2016). At that time, Buggs also apparently 

presented the district court clerk with a petition for a writ of 

habeas corpus. It not clear from our record whether that petition was filed or whether it is being held in abeyance pending 

disposition of the motion to postpone.

In any event, the district court treated the motion to postpone fees as a request to proceed in forma pauperis (IFP) and 

denied the request, finding that Buggs’ underlying petition for 

a writ of habeas corpus was frivolous. Buggs appeals.

ASSIGNMENTS OF ERROR

Buggs assigns that the district court erred in (1) treating his 

motion to postpone fees as a motion for IFP status and applying IFP standards to that motion and (2) finding his petition 

for a writ of habeas corpus frivolous.

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.1

ANALYSIS

On appeal, Buggs argues that the district court erred in 

treating his motion for postponement of fees as a motion to 

proceed IFP. We agree.

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

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Section 29-2824 provides in relevant part that in the case of 

filing for a writ of habeas corpus,

no person or officer shall have the right to demand the 

payment in advance of any fees which such person or 

officer may be entitled to by virtue of such proceedings on habeas corpus, when the writ shall have been 

issued or demanded for the discharge from custody of 

any person confined under color of proceedings in any 

criminal case.

In other words, no prepayment of fees is necessary in order to 

file a petition for a writ of habeas corpus based upon an issue 

of custody in a criminal case.2

Under § 29-2824, Buggs did not have to prepay the fees 

associated with the filing of his petition for a writ of habeas 

corpus, nor was IFP status required in order for Buggs to file 

that petition.3 For the same reason, Buggs’ motion seeking 

postponement of fees was unnecessary. Buggs was permitted, 

by operation of § 29-2824, to file his petition for a writ of 

habeas corpus without any further motion with regard to the 

payment of fees.

We conclude that the district court erred in treating Buggs’ 

motion as one for IFP status, because Buggs did not seek 

IFP status and was not required to obtain IFP status in order 

to file a petition for a writ of habeas corpus. As such, we 

reverse the district court’s decision and remand the cause with 

instructions.

[2] Upon remand, the district court shall, consistent with 

the prohibition against the prepayment of fees set forth in 

§ 29-2824, file the petition for a writ of habeas corpus if the 

petition has not yet been filed. After filing the motion, the district court should proceed with its habeas corpus review and 

2 Mumin v. Frakes, ante p. 381, ___ N.W.2d ___ (2017).

3 Id. Accord Neb. Ct. R. App. P. § 2-101(G)(1)(c) (rev. 2015) (providing 

appellate docket fees in habeas corpus proceedings are not required in 

advance and will be collected at end of proceeding).
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examine the petition to see if it states a cause of action.4 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 the writ.5 This 

analysis is distinct from a frivolousness review under Neb. 

Rev. Stat. § 25-2301.02(1)(b) (Reissue 2016).

CONCLUSION

The decision of the district court is reversed, and the cause 

is remanded with instructions.

Reversed and remanded with instruc

Wright, J., not participating

4 See Dixon v. Hann, 160 Neb. 316, 70 N.W.2d 80 (1955). See, also, O’Neal 

v. State, 290 Neb. 943, 863 N.W.2d 162 (2015) (Cassel, J., concurring).

5 Id.