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State of Nebraska, appellee, v.

Jamey M. Crawford, appella

___ N.W.2d ___

Filed July 17, 2015. No. S-14-338.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

which does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent from the lower court’s decision.

2. 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.

3. Limitations of Actions: Pleadings: Waiver. A statute of limitations 

does not operate by its own force as a bar, but, rather, operates as 

a defense to be pled by the party relying upon it and is waived if 

not pled.

4. Limitations of Actions. A typical statute of limitations specifies only 

that an action must be commenced within a specified time period.

5. Postconviction: Limitations of Actions: Jurisdiction. The 1-year 

period of limitation set forth in Neb. Rev. Stat. § 29-3001(4) (Cum. 

Supp. 2014) is not a jurisdictional requirement and instead is in the 

nature of a statute of limitations.

6. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

7. ____: ____: ____. A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the 

defendant’s rights under the Nebraska or federal Constitution.

8. Postconviction: Appeal and Error. If a postconviction motion alleges 

only conclusions of fact or law, or if the records and files in the case 
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affirmatively show that the defendant is entitled to no relief, the court 

is not required to grant an evidentiary hearing.

9. Constitutional Law: Effectiveness of Counsel. A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

10. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a 

claim of ineffective assistance of counsel under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant 

must show that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s defense. A 

court may address the two prongs of this test, deficient performance and 

prejudice, in either order.

11. Effectiveness of Counsel: Pleas: Proof. To show prejudice when the 

alleged ineffective assistance relates to the entry of a plea, the defendant 

must show that there is a reasonable probability that, but for counsel’s 

errors, he or she would not have entered the plea and would have 

insisted on going to trial.

12. Constitutional Law: Right to Counsel: Effectiveness of Counsel: 

Time: Appeal and Error. A defendant does not have a constitutional 

right to counsel beyond the conclusion of his or her direct appeal, 

and therefore, he or she cannot be deprived of effective assistance of 

counsel based on the failure of counsel to timely file a petition for further review.

Appeal from the District Court for Dodge County: Geoffrey

C. Hall, Judge. Affirme

Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, 

P.C., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan,

and Miller-Lerman, 

Miller-Lerman,

NATURE OF CASE

Jamey M. Crawford appeals the order of the district court 

for Dodge County which denied his motion for postconviction 
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relief on the merits after an evidentiary hearing. As an initial 

matter, the State argues on appeal that although the issue was 

not raised in the district court, Crawford’s motion should 

have been dismissed as untimely pursuant to the 1-year 

period of limitation set forth in Neb. Rev. Stat. § 29-3001(4) 

(Cum. Supp. 2014) of the postconviction act. We conclude 

that the 1-year period of limitation is an affirmative defense 

and that the State waived the defense when it failed to raise it 

in the district court. With respect to the merits, we affirm the 

district court’s denial of Crawford’s motion for postconviction relief.

STATEMENT OF FACTS

In 2011, Crawford pled guilty to possession of a controlled 

substance and was found to be a habitual criminal. The district 

court for Dodge County sentenced Crawford to imprisonment 

for 10 to 15 years. The Nebraska Court of Appeals affirmed 

Crawford’s conviction and sentence. State v. Crawford, No. 

A-11-645, 2011 WL 399888 (Neb. App. Feb. 7, 2012) (selected 

for posting to court Web site). Crawford did not petition this 

court for further review, and therefore, the Court of Appeals 

filed its mandate on March 14, 2012.

On March 27, 2013, Crawford filed a pro se motion for 

postconviction relief in which he raised various claims. The 

State responded to Crawford’s pro se motion by arguing the 

merits of Crawford’s claims. In its response, the State did not 

raise the issue whether Crawford’s motion was timely under 

§ 29-3001(4).

The district court thereafter appointed postconviction counsel, who filed an amended motion. In the amended motion, 

Crawford stated that his counsel on direct appeal was different 

from his trial counsel and that he received ineffective assistance of appellate counsel in various respects.

Among Crawford’s claims of ineffective assistance of 

appellate counsel was an assertion that “appellate counsel 

failed to assign as error, trial counsel’s failure to file a motion 
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to withdraw [Crawford’s] guilty plea after it was made obvious that [Crawford] wished to do so.” Crawford asserted that 

he entered the guilty plea because he was led to believe that 

he would be eligible to participate in a drug court program. 

However, Crawford alleged, trial counsel failed to advise 

him that he would not be eligible for drug court if he was 

found to be a habitual criminal. He further claimed that he 

likely would have been allowed to withdraw his plea prior to 

sentencing, because the misunderstanding regarding eligibility for drug court would have been a fair and just basis to 

allow withdrawal.

Crawford also claimed that in December 2011, during the 

pendency of his direct appeal, appellate counsel informed him 

that counsel would be unable to continue representing him. 

Crawford claimed that counsel never filed a motion to withdraw as counsel and that, as a result, Crawford “was uncertain 

of whether he was represented by counsel or not” when the 

Court of Appeals affirmed his conviction on February 7, 2012, 

and he was without an attorney to petition this court for further 

review. Crawford claimed that he would have sought further 

review but that the time for filing a petition for further review 

had expired before he learned no substitute appellate counsel 

had been appointed.

After an evidentiary hearing on Crawford’s motion for postconviction relief, the district court denied Crawford’s claims 

on their merits. With regard to the claim regarding withdrawal 

of the plea on the basis that Crawford was not informed he 

was not eligible for drug court, the court stated that it was 

apparent on the record Crawford knew before entering his 

plea there was a possibility that he would not be admitted into 

drug court and that Crawford confirmed to the trial court he 

understood admission into drug court was not part of the plea 

agreement. The court further stated that the record showed that 

Crawford was aware of the potential sentence if he was found 

to be a habitual criminal.
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With regard to appellate counsel’s withdrawal during the 

pendency of the direct appeal, the court found that Crawford 

was not prejudiced by counsel’s withdrawal. The court noted 

that although Crawford was informed of appellate counsel’s 

withdrawal in December 2011, Crawford did not file a request 

for appointment of appellate counsel until August 2012, at 

which time, the request was denied because there was no 

appeal pending.

The district court did not on its own motion raise an issue 

whether Crawford’s postconviction motion was timely under 

§ 29-3001(4), nor did the court address the issue in its order 

denying relief.

Crawford appeals the denial of his postconviction motion.

ASSIGNMENTS OF ERROR

Crawford claims, restated, that the district court erred in 

denying his claims that he received ineffective assistance of 

counsel when (1) appellate counsel failed to assign error to 

trial counsel’s failure to move to withdraw the plea and (2) 

appellate counsel failed to ensure that Crawford received substitute appellate counsel. Crawford also claims that he should 

be granted postconviction relief “due to the plain error that permeates the record.” The State asserts that denial of Crawford’s 

motion was correct, either because the motion for postconviction was not timely filed or because it lacked merit.

STANDARDS OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 

independent from the lower court’s decision. State v. Alfredson, 

287 Neb. 477, 842 N.W.2d 815 (2014).

[2] 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. Branch, 290 Neb. 523, 860 N.W.2d 712 (2015).
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ANALYSIS

Limitation Period Under § 29-3001(4) Is an 

Affirmative Defense, and the State Waived 

the Issue When It Failed to Raise the 

Defense in the District Court.

We note as an initial matter that the State argues that 

rather than addressing the merits of Crawford’s postconviction 

motion, the district court should have dismissed Crawford’s 

motion on the basis that it was untimely pursuant to the 1-year 

period of limitation set forth in § 29-3001(4). Although neither the State nor the district court raised the issue below, the 

State argues that the timely filing of the postconviction motion 

is a jurisdictional requirement and that therefore, because 

the district court lacked jurisdiction to consider the merits of 

Crawford’s motion, this court consequently lacks jurisdiction 

over this appeal. We conclude that the period of limitation is 

not a jurisdictional requirement and that instead, it is in the 

nature of an affirmative defense which the State waived when 

it failed to raise the defense in the district court.

The time limitation on filing a postconviction action is set 

forth in § 29-3001(4) of the postconviction act as follows:

A one-year period of limitation shall apply to the filing 

of a verified motion for postconviction relief. The oneyear limitation period shall run 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 

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 
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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.

The State argues that the timeliness issue goes to subject 

matter jurisdiction and that we should resolve this appeal 

based on Crawford’s alleged failure to timely file his motion, 

because lack of subject matter jurisdiction may be raised at 

any time by any party or by the court sua sponte. See Davis 

v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 (2010). 

If timely filing is a jurisdictional requirement, this court can 

and must consider the issue, whether or not the issue was 

raised before or decided by the court below. See Breci v. St. 

Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014) 

(before reaching legal issues presented for review, it is duty of 

appellate court to determine whether it has jurisdiction over 

matter before it).

The State alternatively argues that even if the failure to 

timely file for postconviction relief does not deprive the courts 

of jurisdiction, then the denial of Crawford’s motion should 

still be affirmed on the basis that the motion was not timely 

filed under the terms of the statute. See § 29-3001(4). In support of this argument, the State cites State v. Smith, 286 Neb. 

77, 834 N.W.2d 799 (2013), in which this court affirmed 

the district court’s order denying a motion for postconviction relief without an evidentiary hearing because the motion 

was not filed within the 1-year limitation period set forth in 

§ 29-3001(4).

In Smith, supra, we affirmed the district court’s order denying postconviction relief for failure to comply with the 1-year 

limitation, but we did not state that the failure deprived the 

district court of jurisdiction and we did not dismiss the appeal 

for lack of jurisdiction. In Smith, we did not explicitly discuss 

whether the 1-year limitation was a jurisdictional requirement. In contrast to the present case, in Smith, the limitation issue was raised below and the district court denied the 

motion on the basis of the statute’s time limitation. As such, it 
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was appropriate for this court to consider the issue on appeal 

whether or not it was a jurisdictional issue. Therefore, Smith

does not answer the question presented in this case: whether 

the time limitation in § 29-3001(4) is a jurisdictional requirement that must be considered by this court or whether the State 

waived the issue when it failed to raise it as a defense in the 

district court.

[3] We discussed the distinction between statutorily prescribed time periods that are jurisdictional requirements and 

those that are in the nature of a statute of limitations in In re 

Estate of Hockemeier, 280 Neb. 420, 786 N.W.2d 680 (2010). 

We noted that while an appellate court can and must consider 

an alleged failure to meet a time requirement that is a jurisdictional requirement, the failure to satisfy a statute of limitations 

cannot be raised for the first time on appeal. We stated that 

“[t]his is so because a statute of limitations does not operate 

by its own force as a bar, but, rather, operates as a defense to 

be pled by the party relying upon it and is waived if not pled.” 

Id. at 424, 786 N.W.2d at 684. Therefore, if the 1-year period 

of limitation in § 29-3001(4) is a jurisdictional requirement, 

we must consider whether Crawford met the requirement; if 

instead, it is in the nature of a statute of limitations, then the 

State may not raise the issue for the first time in this appeal, 

because the State waived the defense when it failed to raise it 

in the district court.

[4] At issue in In re Estate of Hockemeier was a 60-day 

period set forth in Neb. Rev. Stat. § 30-2488(a) (Reissue 2008), 

during which period a claimant must file a petition or commence a proceeding to challenge a personal representative’s 

disallowance of a claim against an estate. We stated that “[a] 

typical statute of limitations specifies only that an action must 

be commenced within a specified time period.” In re Estate of 

Hockemeier, 280 Neb. at 424, 786 N.W.2d at 684. We noted 

that the language of § 30-2488(a) was unlike the language of 

a typical statute of limitations (which can be waived) because 

§ 30-2488(a) not only specified a time period, it also specified 

the consequences of an untimely filing when it clearly and 
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expressly stated that a claim was barred if the claimant failed 

to act within the statutory period. We noted that the statute was 

self-executing and that if the time requirement was not met, the 

claim was barred by operation of law. We therefore concluded 

in In re Estate of Hockemeier that “the filing of a petition for 

judicial allowance of the claim within the 60-day period specified in § 30-2488(a) is a jurisdictional requirement.” 280 Neb. 

at 425, 786 N.W.2d at 685.

[5] Applying the reasoning of In re Estate of Hockemeier to 

the present case, we conclude that the 1-year period of limitation set forth in § 29-3001(4) is not a jurisdictional requirement and instead is in the nature of a statute of limitations. 

As noted above, the time limitation on filing a postconviction 

action is set forth in § 29-3001(4) of the postconviction act 

as follows:

A one-year period of limitation shall apply to the filing 

of a verified motion for postconviction relief. The oneyear limitation period shall run 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 

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.

The language of § 29-3001(4) is like the language of 

a “typical statute of limitations” in that it “specifies only 
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that an action must be commenced within a specified time 

period.” See In re Estate of Hockemeier, 280 Neb. 420, 424, 

786 N.W.2d 680, 684 (2010). Unlike the language of the statute at issue in that case, § 29-3001(4) does not specify the 

consequences of an untimely filing and it does not clearly 

and expressly state that a postconviction action is barred if 

not filed within the period of limitation. Finally, we note 

that § 29-3001(4) explicitly labels the time requirement as a 

“period of limitation.” These factors support our determination 

that § 29-3001(4) does not impose a jurisdictional requirement 

but instead is in the nature of a statute of limitations.

For the sake of completeness, we note that the language 

of § 29-3001(4) is similar to a federal statute, 28 U.S.C. 

§ 2244(d)(1) (2012), which imposes a time limitation on the 

filing of a habeas action under 28 U.S.C. § 2254 (2012) by a 

person in state custody. In Day v. McDonough, 547 U.S. 198, 

126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006), the U.S. Supreme 

Court determined that the time limitation set forth in 28 U.S.C. 

§ 2244(d)(1) is not a jurisdictional requirement. Instead, the 

McDonough Court characterized the 1-year limitation period 

as a statute of limitations defense and stated that therefore, 

“courts are under no obligation to raise the time bar sua 

sponte.” 547 U.S. at 205. The Court stated that in this respect, 

the limitations defense resembled other threshold barriers to 

habeas relief such as exhaustion of state remedies, procedural 

default, and nonretroactivity.

We further note that our conclusion that the period of limitation under § 29-3001(4) is not a jurisdictional requirement 

is consistent with our recent discussion in State v. Ryan, 287 

Neb. 938, 845 N.W.2d 287 (2014), cert. denied ___ U.S. ___, 

135 S. Ct. 943, 190 L. Ed. 2d 840 (2015), in which we urged 

careful use of the term “jurisdiction.” In Ryan, the district 

court dismissed a motion for postconviction relief on the basis 

that the prisoner’s “claims were not cognizable in postconviction.” 287 Neb. at 940, 845 N.W.2d at 290. As an initial 

matter in our analysis, we considered the parties’ dispute over 

whether the court had dismissed the motion on “jurisdictional 
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grounds.” Id. at 941, 845 N.W.2d at 291. We noted that in 

prior postconviction cases in which we stated that a court had 

no jurisdiction to grant postconviction relief, “[o]ur language 

. . . was imprecise” and we had “frequently used the term 

‘jurisdiction’ too loosely.” Id. We stated that strictly speaking, “jurisdiction” refers to a court’s adjudicatory authority 

and that the term “jurisdictional” applies only to “‘“prescriptions delineating the classes of cases (subject matter jurisdiction) and the persons (personal jurisdiction)” implicating that 

authority.’” Id. at 941-42, 845 N.W.2d at 291. In Ryan, we 

further stated that the specific failing in that case was a failure 

to show “an element of a claim for postconviction relief, not 

a jurisdictional prerequisite.” 287 Neb. at 942, 845 N.W.2d at 

291. Therefore, “the proper course” in such circumstance was 

“to dismiss for failure to state a claim, not for lack of jurisdiction.” Id. See, also, Anderson v. Houston, 274 Neb. 916, 

744 N.W.2d 410 (2008) (stating that habeas claim brought 

in wrong county is issue of venue but not matter of jurisdiction). In the present case, we apply the reasoning in Ryan and 

conclude that while the failure to file a postconviction motion 

within the period of limitation may deprive the prisoner of a 

postconviction claim if the State raises the limitation set forth 

in § 29-3001(4) as a defense, such failure does not deprive a 

court of subject matter jurisdiction over the general class of 

postconviction actions.

Based on our conclusion that the period of limitation set 

forth in § 29-3001(4) is not a jurisdictional requirement and 

instead is in the nature of a statute of limitations, we conclude 

that the State waived the statute of limitations when it failed 

to raise it as an affirmative defense in the district court. The 

court did not raise the issue sua sponte, and we therefore need 

not determine whether a court may raise the issue sua sponte 

when the State fails to do so. Cf. Day v. McDonough, 547 

U.S. 198, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006) (holding 

that while court is not required to raise time limitation sua 

sponte, it is not prohibited from doing so). Because the period 

of limitation under § 29-3001(4) is in the nature of a statute 
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of limitations, the State cannot raise the issue for the first time 

on appeal. See In re Estate of Hockemeier, 280 Neb. 420, 786 

N.W.2d 680 (2010).

We finally note that the State also argues that Crawford’s 

motion should have been denied on the basis that Crawford 

did not sign or verify his amended motion for postconviction 

relief. The State cites § 29-3001(4), which requires a “verified 

motion.” We note that the original pro se motion was signed 

and verified by Crawford and that the State’s argument refers 

only to the amended motion filed after counsel was appointed. 

Because Crawford filed a verified motion, we find no merit to 

this argument.

Having rejected the State’s alternative arguments, we proceed to consider the merits of Crawford’s assignments of error 

on appeal.

District Court Did Not Err When It 

Denied Crawford’s Postconviction 

Claims on Their Merits.

Crawford claims that the district court erred when it denied 

his postconviction claims on their merits. Crawford argues 

that the district court should have granted him postconviction 

relief based on two claims of ineffective assistance of counsel 

and based on “plain error that permeates the record.” We conclude that the district court did not err when it determined that 

Crawford’s claims were without merit.

[6] The Nebraska Postconviction Act, Neb. Rev. Stat. 

§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), provides that postconviction relief is available to a prisoner 

in custody under sentence who seeks to be released on the 

ground that there was a denial or infringement of his constitutional rights such that the judgment was void or voidable. 

State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014). Thus, 

in a motion for postconviction relief, the defendant must 

allege facts which, if proved, constitute a denial or violation 

of his or her rights under the U.S. or Nebraska Constitution, 
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causing the judgment against the defendant to be void or voidable. Dragon, supra.

[7,8] A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion 

contains factual allegations which, if proved, constitute an 

infringement of the defendant’s rights under the Nebraska 

or federal Constitution. Dragon, supra. If a postconviction 

motion alleges only conclusions of fact or law, or if the records 

and files in the case affirmatively show that the defendant is 

entitled to no relief, the court is not required to grant an evidentiary hearing. Id.

[9,10] A proper ineffective assistance of counsel claim 

alleges a violation of the fundamental constitutional right to a 

fair trial. Id. To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show 

that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s 

defense. Dragon, supra. A court may address the two prongs 

of this test, deficient performance and prejudice, in either 

order. Id.

Crawford asserts that his appellate counsel provided ineffective assistance in two respects: (1) failing to assign error 

to trial counsel’s failure to move to withdraw Crawford’s plea 

after Crawford learned he would not be eligible for drug court 

and (2) failing to ensure that Crawford received substitute 

counsel after appellate counsel withdrew during the pendency 

of Crawford’s direct appeal. The district court addressed and 

rejected each of these claims in its order denying postconviction relief.

With regard to the claim relating to withdrawal of the plea, 

the postconviction court stated that it was apparent on the 

record that Crawford knew before entering his plea that there 

was a possibility that he would not be admitted into drug 

court and that Crawford confirmed to the trial court that he 

understood admission into drug court was not part of the plea 

agreement. The court further stated that the record showed 
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Crawford was aware of the potential sentence if he was found 

to be a habitual criminal. The court found that trial counsel 

had obtained a favorable plea agreement for Crawford.

[11] To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the defendant must show 

that there is a reasonable probability that, but for counsel’s errors, he or she would not have entered the plea and 

would have insisted on going to trial. State v. Fester, 287 

Neb. 40, 840 N.W.2d 543 (2013). The district court determined that trial counsel obtained a favorable plea agreement 

for Crawford, and the court therefore effectively found that 

Crawford had not shown that without counsel’s alleged ineffectiveness, he would not have accepted the plea and instead 

would have insisted on going to trial. These determinations 

are supported by the record, and we agree that Crawford 

has not shown a reasonable probability that he would have 

insisted on going to trial; instead, he generally argues that he 

could have obtained a better plea deal if he had been allowed 

to withdraw his plea and not that he would have insisted on 

going to trial.

Having reviewed the record, we note that Crawford’s argument regarding his plea is a variation on an argument that 

was presented to and rejected by the Court of Appeals in 

Crawford’s direct appeal. In his direct appeal, Crawford argued 

that his plea bargain was illusory and that his plea was not 

knowingly, voluntarily, and intelligently entered. The Court 

of Appeals rejected this argument, noting, inter alia, that the 

record showed Crawford was not misinformed about the plea 

agreement, that he knew he might not get into drug court, 

and that Crawford received significant benefits from the plea 

agreement. Crawford’s argument in this postconviction action 

is effectively a repositioning of this same claim, and we conclude that the district court did not err when it rejected the 

claim in this postconviction action.

With regard to appellate counsel’s withdrawal during the 

pendency of the direct appeal, the postconviction court found 

that Crawford “was not prejudiced in any way” by counsel’s 
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withdrawal, because counsel had completed all work necessary for the appeal before withdrawing and, in fact, the 

appeal was fully considered on the merits. The court noted 

Crawford’s argument that he claimed he was prejudiced by 

not being able to file a petition for further review. The 

court found that although Crawford was informed of appellate counsel’s withdrawal prior to issuance of the Court of 

Appeals’ decision, Crawford did not request appointment of 

substitute counsel until after the time had passed to seek further review.

[12] We agree with the postconviction court that Crawford 

has not shown prejudice from the failure of appellate counsel 

to seek further review. We acknowledge that Crawford was 

arguably without counsel at the time the Court of Appeals 

filed its decision and that during the period, he might have 

petitioned for further review. However, the U.S. Supreme 

Court has held that the right to counsel does not extend to 

discretionary appeals to a state’s highest court, Ross v. Moffitt, 

417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), and 

that the right to counsel is limited to the first appeal as of 

right, Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 

2d 821 (1985). Based on this precedent, we have held that 

in Nebraska, a defendant does not have a constitutional right 

to counsel beyond the conclusion of his or her direct appeal 

and that therefore, he or she cannot be deprived of effective 

assistance of counsel based on the failure of counsel to timely 

file a petition for further review. See State v. Mata, 273 Neb. 

474, 730 N.W.2d 396 (2007). See, also, State v. Taylor, 14 

Neb. App. 849, 716 N.W.2d 771 (2006). We note that this 

conclusion is consistent with Neb. Ct. R. App. P. § 2-102(G) 

(rev. 2012), which provides in part that “[f]urther review 

by the Supreme Court is not a matter of right, but of judicial discretion.”

In the present case, before withdrawing, Crawford’s appellate counsel had completed all work that was necessary in 

connection with submitting Crawford’s first appeal as of 

right to the Court of Appeals. Because there was no right to 
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291 Nebraska Report

STATE v. CRAWFORD

Cite as 291 Neb. 362

counsel beyond the conclusion of the appeal to the Court of 

Appeals, Crawford was not deprived of effective assistance of 

counsel based on the failure of counsel to file a petition for 

further review. We therefore conclude that the district court 

did not err when it rejected this claim.

Crawford finally argues that the district court should have 

granted postconviction relief based on “plain error that permeates the record.” We have rejected Crawford’s assertions of 

error, and we find no other plain error. We therefore conclude 

that the district court did not err when it denied postconviction relief.

CONCLUSION

We conclude that the limitation periods for filing a postconviction motion in § 29-3001(4) are in the nature of a statute 

of limitations and are not jurisdictional. In this case, the State 

waived the statute of limitations under § 29-3001(4) when it 

failed to raise the defense in the district court. Having reviewed 

Crawford’s assignments of error on appeal and finding them to 

be without merit, we affirm the district court’s denial of his 

motion for postconviction relief.

Affirmed

Cassel, J., not participating