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State of Nebraska, appellee, v.

Keith M. Huggins, appell

___ N.W.2d ___

Filed July 24, 2015. No. S-14-297.

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

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

2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls 

for statutory interpretation or presents questions of law, an appellate 

court must reach its conclusion independent of the trial court.

3. Postconviction: Limitations of Actions: Words and Phrases: Appeal 

and Error. The issuance of a mandate by a Nebraska appellate court is 

a definitive determination of the “conclusion of a direct appeal,” and the 

“date the judgment of conviction became final,” for purposes of Neb. 

Rev. Stat. § 29-3001(4)(a) (Cum. Supp. 2014).

Appeal from the District Court for Douglas County: Gregor

M. Schatz, Judge. Affirmed

Keith M. Huggins, pro se.

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

appellee.

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

and Miller-Lerman, 

Miller-Lerman,

NATURE OF CASE

Keith M. Huggins appeals the order of the district court for 

Douglas County which dismissed his motion for postconviction relief without an evidentiary hearing on the basis that the 

motion was untimely under the 1-year limitation period set 
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forth in Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014) of 

the postconviction act. The court determined that the limitation 

period began to run upon the issuance of the mandate from 

Huggins’ direct appeal in the Nebraska appellate courts and 

that Huggins did not file his motion within 1 year after such 

date. Huggins argues that the limitation period did not begin to 

run until the time for him to file a petition for a writ of certiorari to the U.S. Supreme Court had expired and that therefore 

his postconviction motion was timely filed. He alternatively 

argues that the limitation period should have been tolled during 

a period when he was in federal custody and not in the custody 

of the State of Nebraska. We reject Huggins’ arguments and 

agree with the court that Huggins’ motion was not timely. We 

therefore affirm the district court’s dismissal of the postconviction motion.

STATEMENT OF FACTS

In 2011, Huggins entered a plea of no contest to second 

degree murder. He filed two separate motions to withdraw his 

plea, and the district court denied both motions. The court sentenced Huggins to imprisonment for 40 to 40 years.

The Nebraska Court of Appeals affirmed Huggins’ conviction and sentence in a memorandum opinion, State v. Huggins, 

No. A-11-570, 2012 WL 3030780 (Neb. App. July 24, 2012) 

(selected for posting to court Web site). Huggins petitioned 

this court for further review, and we denied further review 

on August 30. Huggins did not file a petition for a writ 

of certiorari. The Court of Appeals issued the mandate on 

September 17.

On November 27, 2013, Huggins filed a pro se motion 

for postconviction relief in which he raised various claims 

of ineffective assistance of counsel. In the State’s response 

filed January 30, 2014, it requested that Huggins’ motion be 

dismissed without an evidentiary hearing, because the motion 

was untimely under § 29-3001(4). Section 29-3001(4) of the 

Nebraska Postconviction Act provides as follows:
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A one-year period of limitation shall apply to the filing of 

a verified motion for postconviction relief. The one-year 

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 State asserted that Huggins had 1 year from September 

17, 2012, the date the Court of Appeals issued its mandate 

in Huggins’ direct appeal, to file a motion for postconviction relief under § 29-3001(4)(a) and that therefore Huggins’ 

motion filed November 27, 2013, was untimely.

On February 10, 2014, the district court dismissed Huggins’ 

postconviction motion without an evidentiary hearing. The 

court stated that the Court of Appeals’ mandate in Huggins’ 

direct appeal was issued on September 17, 2012, and that 

Huggins’ motion for postconviction relief was filed “on 

November 27, 2013, more than one year following the conclusion of [Huggins’] direct appeal.” The court concluded that 

Huggins’ postconviction action was “barred by the time limitation provided for under the Nebraska Postconviction Act” and 

that therefore the motion “must be dismissed.”
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On February 14, 2014, Huggins filed a motion to alter or 

amend the order in which the court dismissed his postconviction motion. Huggins argued that his conviction did not become 

final until the 90-day period in which he might have petitioned 

the U.S. Supreme Court for a writ of certiorari had lapsed. 

He asserted that such time did not lapse until November 28, 

2012, and that therefore his motion filed November 27, 2013, 

was timely.

In his motion to alter or amend, Huggins asserted that at the 

conclusion of his direct appeal and continuing until May 31, 

2013, he was in federal custody serving a federal sentence in 

Indiana. He also asserted that after he was released from federal custody and put into the custody of the State of Nebraska 

in May or June 2013, he gained access to legal materials on 

June 3, when he was transferred to a facility where he was 

allowed access to a law library. Huggins contends that the 

running of the limitation period under § 29-3001(4) should 

have been tolled until June 3, when he had access to the 

law library, and that therefore his motion filed November 27 

was timely.

On March 10, 2014, the district court denied Huggins’ 

motion to alter or amend the February 10 order. The court 

stated that Huggins had “offered nothing upon which relief 

might be granted to him for his failure to timely file his motion 

for postconviction relief.”

Huggins appeals the dismissal of his postconviction motion.

ASSIGNMENTS OF ERROR

Huggins claims, restated, that the district court erred when 

it dismissed his motion on the basis that it was barred by the 

time limitation under § 29-3001(4) and when it failed to grant 

him an evidentiary hearing on the merits of his postconviction claims.

STANDARDS OF REVIEW

[1,2] If the facts in a case are undisputed, the issue as to 

when the statute of limitations begins to run is a question of 

law. Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 
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716 N.W.2d 87 (2006). To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate 

court must reach its conclusion independent of the trial court.

Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).

ANALYSIS

We note as an initial matter that in State v. Crawford, ante

p. 362, ___ N.W.2d ___ (2015), we concluded that the 1-year 

period of limitation under § 29-3001(4) is not a jurisdictional 

requirement and instead is in the nature of an affirmative 

defense that the State waives if it does not raise the issue in the 

district court. In contrast to the circumstances in Crawford, in 

the present case, the State raised the period of limitation as an 

affirmative defense in its answer in the district court, and the 

court dismissed Huggins’ motion on the basis that it was not 

timely under § 29-3001(4). Therefore, the statute of limitations 

defense was not waived in this case, and we consider Huggins’ 

arguments that the district court erred when it determined that 

his motion exceeded the 1-year limit and concluded his motion 

was not timely.

Huggins makes two alternative arguments in support of his 

contention that his postconviction motion was timely filed. 

He first argues that the period of limitation did not begin to 

run until the time for him to petition the U.S. Supreme Court 

for a writ of certiorari had expired and that his motion was 

filed within 1 year from that date. He alternatively argues 

that the period of limitation was tolled during the time he 

was in federal prison and that his motion was filed within 1 

year after the date he was released from federal custody and 

put into the custody of the State of Nebraska. We reject both 

arguments and conclude that Huggins’ postconviction motion 

was untimely.

Limitation Period Under § 29-3001(4)(a) 

Began to Run on the Date 

the Mandate Was Filed.

Huggins first argues that the 1-year period of limitation 

under § 29-3001(4)(a) did not begin to run until after the 
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time during which he might have petitioned the U.S. Supreme 

Court for a writ of certiorari had expired and that his motion 

was filed within 1 year after that date. We reject this argument, and we conclude that the period of limitation began to 

run on the date the mandate was issued by the Nebraska appellate court.

Under § 29-3001(4), the period of limitation begins to run 

on the latest of certain specified dates, the first of which is 

“[t]he 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.” § 29-3001(4)(a). Our reading of “conclusion of a direct appeal” in § 29-3001(4)(a) determines the 

outcome of this case. In the present case, the Court of Appeals 

decided Huggins’ direct appeal in an opinion filed on July 24, 

2012. Huggins petitioned this court for further review, which 

we denied on August 30. Huggins did not file a petition for a 

writ of certiorari. The Court of Appeals issued its mandate on 

September 17. The district court in this postconviction action 

determined that Huggins’ conviction became final, and the 

period of limitation began to run, when the Court of Appeals 

issued its mandate. We agree.

Huggins argues that his conviction did not become final 

until the time for him to petition the U.S. Supreme Court for a 

writ of certiorari had expired. He asserts that under rules of the 

U.S. Supreme Court, he had until 90 days after we denied his 

petition for further review to petition the U.S. Supreme Court 

for a writ of certiorari, and that date was November 28, 2012. 

Huggins contends that he had 1 year from November 28 to file 

his postconviction action and that, therefore, his motion filed 

November 27, 2013, was timely.

Huggins relies on federal case law applying the federal 

habeas statutes and refers us to a Nebraska case, State v. 

Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003). We recognize 

that federal case law indicates that convictions are not final 

for purposes of the limitation period under the federal habeas 

statutes until the time expires for filing for certiorari. See, 

Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 181 L. Ed. 
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2d 619 (2012) (applying 28 U.S.C. § 2244(d)(1)(A) (2006) 

with regard to prisoners in state custody); Clay v. U.S., 537 

U.S. 522, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003) (applying 28 U.S.C. § 2255 (2000) with regard to defendants in 

federal custody). But the issue before us is the meaning of 

the Nebraska Postconviction Act’s § 29-3001(4)(a), not a federal statute.

Further, Huggins’ reliance on our decision in Lotter, supra, 

is misplaced for several reasons, including the fact that the 

1-year period of limitation did not exist at the time, so we were 

not commenting on § 29-3001(4)(a). The State points out that 

in other cases where a criminal conviction has been appealed, 

this court has indicated that the finality of the judgment is tied 

to the issuance of a final mandate. See, State v. Davis, 277 

Neb. 161, 762 N.W.2d 287 (2009); State v. Gales, 265 Neb. 

598, 658 N.W.2d 604 (2003); State v. White, 256 Neb. 536, 

590 N.W.2d 863 (1999); State v. Urbano, 256 Neb. 194, 589 

N.W.2d 144 (1999). We reject Huggins’ argument, and we conclude that for purposes of § 29-3001(4)(a), the “conclusion of 

a direct appeal” occurs when a Nebraska appellate court issues 

the mandate in the direct appeal.

Under Nebraska law and procedure, the issuance of a mandate by an appellate court is a clear signal that a direct appeal 

has been concluded. Under Neb. Ct. R. App. P. § 2-114(1), 

a mandate will generally not be issued by a Nebraska appellate court during the time for filing a motion for rehearing 

(10 days under Neb. Ct. R. App. P. § 2-113 (rev. 2012)) or a 

petition for further review (30 days under Neb. Ct. R. App. P. 

§ 2-113).

If a criminal defendant intends to seek a writ of certiorari from the U.S. Supreme Court, he or she should request 

a stay of the Nebraska court’s mandate. Neb. Ct. R. App. P. 

§ 2-114(2) provides: “Parties desiring to prosecute proceedings to the United States Supreme Court, and desiring an order 

staying the mandate, must make application within 7 days 

from the date of the filing of the opinion or other dispositive 

entry.” It is generally not necessary to wait 90 days to see 
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whether the defendant will petition for a writ of certiorari, 

because the defendant should have signaled his or her intent to 

petition for certiorari by requesting a stay of the mandate pursuant to Neb. Ct. R. App. P. § 2-114(2). Therefore, as a general 

matter, when a Nebraska appellate court issues a mandate in 

a direct appeal, it indicates that certiorari is not being sought 

and that the direct appeal has been concluded. Thus, a mandate is not immediately issued by Nebraska appellate courts 

after an appeal is decided, and if a defendant intends to seek a 

writ of certiorari, the defendant may seek to stay issuance of 

the mandate.

[3] In view of the Nebraska practice rules, jurisprudence, 

and the language of § 29-3001(4)(a), we conclude that the issuance of a mandate by a Nebraska appellate court is a definitive 

determination of the “conclusion of a direct appeal,” and the 

“date the judgment of conviction became final,” for purposes 

of § 29-3001(4)(a). In the present case, the “conclusion of [the] 

direct appeal” occurred when the Court of Appeals issued the 

mandate in Huggins’ direct appeal on September 17, 2012. 

Huggins filed his postconviction motion on November 27, 

2013. Huggins did not file his postconviction motion within 

1 year after the date of the mandate, and therefore he did not 

timely file under § 29-3001(4)(a).

Huggins Was Released From Federal Custody 

and Put Into State Custody Within 

1 Year After the Limitation 

Period Began to Run.

Huggins alternatively argues that the 1-year period of limitation was tolled during the time he was in federal prison and that 

his postconviction motion, filed within 1 year after the date he 

was released from federal custody and put into the custody of 

the State of Nebraska, was timely. We conclude that whether or 

not such tolling would occur under appropriate circumstances, 

no tolling occurs where, as in this case, the prisoner has time 

to file a motion for postconviction relief within the statutory 

1-year period.
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As determined in the previous section, the 1-year period of 

limitation for Huggins began to run when the mandate was 

issued on September 17, 2012. Huggins asserts that at that 

time, he was in federal custody in a prison in Indiana, and 

that he was not released from federal custody and put into 

the custody of the State of Nebraska until May or June 2013 

and gained access to Nebraska legal materials on June 3. He 

contends that the limitation period should have been tolled 

during the time he was in federal custody and that therefore his 

motion filed November 27 was timely, having been filed within 

1 year after the date he was taken into the custody of the State 

of Nebraska.

Huggins appears to argue that these circumstances make 

his motion timely in two ways. First, he argues that under 

§ 29-3001(4)(c), his imprisonment in federal custody was an 

“impediment” that prevented him from filing a postconviction 

action in Nebraska. Second, he argues that “equitable tolling” 

should be applied to toll the running of the limitation period 

for the time he was in federal custody and did not have access 

to Nebraska law materials.

With regard to Huggins’ first argument, that federal custody 

and lack of access to a Nebraska law library was an “impediment” under § 29-3001(4)(c) that prevented him from filing 

a postconviction motion, we note that § 29-3001(4)(c) refers 

to 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.” Regardless of whether 

being in federal custody without access to Nebraska law materials was an “impediment” under § 29-3001(4)(c), Huggins 

makes no claim that his imprisonment in federal custody was 

a situation created in violation of the federal or Nebraska 

Constitution or Nebraska law, nor is any such violation apparent. Therefore, we reject Huggins’ argument that the period of 

limitation did not begin to run until May or June 2013 under 

§ 29-3001(4)(c).

Huggins also argues that “equitable tolling” should be 

applied to the running of the 1-year period of limitation for 
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the time he was in federal custody. This court has not yet 

addressed whether equitable tolling applies to § 29-3001(4) 

and under what circumstances it may apply. We note, however, that the U.S. Supreme Court has held that the statute of 

limitations under 28 U.S.C. § 2244(d), with regard to habeas 

actions filed by prisoners in state custody, is subject to equitable tolling if the prisoner shows that (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. Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 

177 L. Ed. 2d 130 (2010).

Under § 29-3001(4), the period of limitation generally 

begins to run under subsection (a) on the date the conviction 

becomes final. However, the Legislature has determined that 

certain circumstances justify starting the period of limitation 

on a later date. These circumstance are set forth in subsections 

(b) through (e). The statutory language does not provide that 

the date on which a prisoner is released from federal custody 

and taken into the custody of the State of Nebraska is an 

alternate later date from which the period of limitation would 

begin to run. Therefore, under the statute itself, the limitation 

period continues to run regardless of whether the prisoner is in 

federal custody and whether the prisoner is in the custody of 

the State of Nebraska.

Huggins contends that equitable tolling would be appropriate in this case; he appears to rely in part on precedent of 

this court in which we held that a prisoner in federal custody 

is not “‘in actual custody in Nebraska’” and therefore not 

eligible to file an action under the Nebraska Postconviction 

Act. State v. Whitmore, 234 Neb. 557, 558, 452 N.W.2d 31, 

32 (1990). Huggins reasons that the period of limitation 

should not have run against him during the time when he 

was in federal custody and could not have filed a Nebraska 

postconviction action. As we determined in State v. Crawford, 

ante p. 362, ___ N.W.2d ___ (2015), the limitation period 

under § 29-3001(4) is in the nature of a statute of limitations. 

Therefore, it is at least arguable that the statute of limitations 
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under § 29-3001(4) may be subject to equitable tolling principles in the same manner that statutes of limitations in other 

contexts may be subject to equitable tolling. Although this 

court has acknowledged the possibility of equitable tolling 

with respect to statutes of limitations in other contexts, see 

Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 276 Neb. 

640, 756 N.W.2d 280 (2008), it does not appear that this court 

has set forth the specific circumstances under which equitable 

tolling could occur. More particularly, we have not decided 

whether equitable tolling may be applied to the period of limitation set forth in § 29-3001(4), and, on the facts of this case, 

it is not necessary to do so.

In this case, under the statute, the period of limitation for 

Huggins to file a postconviction motion ran for 1 year from the 

date the mandate was issued on September 17, 2012. Huggins 

asserts that he was released from federal custody and taken 

into the custody of the State of Nebraska in May or June 2013 

and gained access to Nebraska legal materials on June 3. At 

that time, Huggins still had until September 2013, or a period 

over 3 months, to file a Nebraska postconviction action within 

the statutory period of limitation.

In State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 

(2013), we determined that a defendant was not deprived of 

the opportunity to file a postconviction action even though the 

defendant was in federal custody during part of the period of 

limitation. We stated that “without deciding that a postconviction action cannot be brought during the time a defendant otherwise serving a Nebraska sentence is in federal custody, [the 

defendant] has neither pled nor proved that she was in federal 

custody for the entire 1-year period.” Id. at 946, 830 N.W.2d 

at 509. As we reasoned in Gonzalez, a prisoner is not deprived 

of the opportunity to bring a postconviction action if there is 

some time within the period of the 1-year limitation that the 

prisoner could have filed a postconviction action. In the present action, Huggins does not claim that he was deprived of the 

opportunity to file his postconviction action during the entire 

1-year period of limitation. Under the facts of this case, we 
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conclude that, whether or not equitable tolling may be used 

to toll the 1-year limitation period under § 29-3001(4) under 

proper circumstances, the circumstances of this case would 

not support equitable tolling for the time Huggins was in federal custody.

We note that this decision does not foreclose consideration 

of the possibility that there are circumstances under which 

equitable tolling may apply or that the limitation period may 

be tolled for a person who was in federal custody during the 

entire limitation period and arguably had no opportunity to file 

a postconviction action within the limitation period. However, 

Huggins alleges only that he was unable to file his motion during part of the period of limitation, and we conclude that such 

allegation does not support an equitable tolling of the period 

of limitation under § 29-3001(4). We therefore reject Huggins’ 

argument that the 1-year period of limitation did not run during the time that he was in federal custody.

CONCLUSION

We conclude that for purposes of § 29-3001(4)(a), Huggins’ 

direct appeal was concluded and his conviction became final 

when the Court of Appeals issued the mandate on September 

17, 2012, and that the 1-year period of limitation began to 

run on that date. Given the fact that Huggins was in the custody of Nebraska for at least the last 3 months of the 1-year 

period of limitation, we further conclude that the running of 

the period of limitation was not tolled for the time Huggins 

was in federal prison. Therefore, the period of limitation 

had run before Huggins filed his motion for postconviction relief on November 27, 2013, and we affirm the district 

court’s dismissal of Huggins’ motion on the basis that it was 

untimely filed.

Affirme

Cassel, J., not participating