Childs v. Frakes
312 Neb. 925
| Neb. | 2022Background
- In 2017 Childs pled no contest in Lancaster County to a reduced charge of attempted first-degree sexual assault, was sentenced, and his conviction was affirmed on direct appeal.
- On March 24, 2021, Childs filed a pro se petition for writ of habeas corpus in Douglas County alleging (1) denial of counsel of choice, (2) plea not knowing/voluntary/intelligent (ineffective assistance), (3) prosecutor lacked legal standing to invoke jurisdiction, and (4) his right to remain silent was violated by a compelled presentence investigation.
- The district court took no action until Sept. 23, 2021, when it entered an order dismissing the action pursuant to Neb. Rev. Stat. § 25-217 (failure to serve defendants within 180 days).
- Childs appealed; the Nebraska Supreme Court agreed to decide whether § 25-217 applies to habeas corpus proceedings.
- The Court held § 25-217 does not apply to habeas proceedings (the statute governs ordinary civil-service timelines), but on de novo review concluded Childs’ petition failed to allege facts that would render his judgment, sentence, and commitment void and therefore affirmed dismissal on that alternate ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 25-217 (service/automatic dismissal) applies to habeas petitions | Childs: §25-217 does not apply to habeas | Frakes/State: (§25-217 issue not disputed by State in briefing; State cross-appealed on merits) | §25-217 does not apply to habeas proceedings; district court erred in relying on it |
| Whether Childs’ petition stated a cognizable habeas claim | Childs: allegations (counsel, plea, prosecutor, PSI) entitle him to relief/hearing | State: allegations do not render judgment void; dismissal warranted | Petition failed to allege facts showing the judgment/sentence is void; dismissal proper |
| Whether denial of counsel of choice / ineffective assistance invalidates judgment for habeas | Childs: denial/ineffective assistance rendered plea/judgment void | State: these are errors or nonjurisdictional defects, not voiding defects | Such claims, even if true, do not render the judgment void and are not grounds for habeas relief |
| Whether prosecutor lacked standing or PS investigation violated right to remain silent | Childs: prosecutor had no standing; compelled PSI violated Fifth Amendment | State: county attorney has authority to file/prosecute; PSI/regularity issues do not void judgment | Claims lack legal merit or challenge only regularity of proceedings and are not cognizable in habeas |
Key Cases Cited
- Buggs v. Frakes, 298 Neb. 432 (2017) (statutory interpretation and standard of review principles)
- In re Application No. P-12.32 of Black Hills Neb. Gas, 311 Neb. 813 (2022) (§25-217 self-executing; effects of automatic dismissal)
- Davis v. Choctaw Constr., 280 Neb. 714 (2010) (discussing §25-217 dismissal by operation of law)
- Maria T. v. Jeremy S., 300 Neb. 563 (2018) (habeas is a special summary proceeding; pleading rules for civil actions do not apply)
- In re Application of Tail v. Olson, 144 Neb. 820 (1944) (common-law habeas procedures and nonadversarial nature of the writ)
- Tyrrell v. Frakes, 309 Neb. 85 (2021) (habeas relief available only where judgment, sentence, and commitment are void)
- Peterson v. Houston, 284 Neb. 861 (2012) (habeas is not available to correct nonjurisdictional errors in underlying criminal proceedings)