Davlin v. Cruickshank, A-16-747

In 1994 Davlin was convicted of first-degree sexual assault on a child and use of a weapon; sentenced consecutively for a total of 25–35 years.
Davlin pursued multiple appeals and postconviction motions over many years; earlier appeals and postconviction proceedings produced mixed results, including reversal and eventual affirmance on review by the Nebraska Supreme Court.
In July 2016 Davlin filed a habeas petition (with IFP and counsel requests) asserting the 1993 information failed to properly allege the two prior convictions required for habitual-criminal sentencing under Neb. Rev. Stat. § 29-2221(2).
The district court held the information adequately pled that Davlin had been twice convicted, sentenced, and committed to prison for terms of at least one year, and concluded Davlin’s habeas allegations were frivolous.
The district court denied the habeas petition, IFP status, and appointment of counsel; Davlin appealed, proceeding IFP on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 1993 information failed to allege the "facts with reference" (two prior convictions, sentencing, and commitments of ≥1 year) required for habitual-criminal enhancement	Davlin: information was "bare-bones" and did not reference the requisite prior convictions/sentences, rendering the enhancement and sentence void	State: Count III expressly alleged Davlin had been at least twice previously convicted, sentenced, and committed to prison for terms of not less than one year; that satisfies § 29-2221	Court: Information sufficiently alleged the three statutory elements; petition was frivolous and was denied
Whether habeas corpus was a proper vehicle to challenge the regularity of the underlying information and sentence	Davlin sought relief via habeas	State: habeas is limited and not a substitute for direct appeal or postconviction remedies	Court: Even if claim had merit, habeas is not the proper remedy; here claim lacks merit and is frivolous
Whether IFP and appointment of counsel should be granted given the petition's merits	Davlin requested IFP and counsel	State: court may deny IFP when filings are frivolous or malicious under § 25-2301.02	Court: Denied IFP and counsel because petition was frivolous

State v. Davis, 199 Neb. 165, 256 N.W.2d 678 (Neb. 1977) (discusses requirement that facts supporting habitual status be alleged)
State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (Neb. 1974) (identifies statutory elements required in an information under the Habitual Criminal Act)
State v. Dubray, 21 Neb. App. 782, 843 N.W.2d 681 (Neb. Ct. App. 2014) (recites that information must allege convictions, sentences, and commitments of ≥1 year)
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (Neb. 2016) (explains habeas corpus is not a substitute for direct appeal)
Gonzalez v. Gage, 290 Neb. 671, 861 N.W.2d 457 (Neb. 2015) (permits denial of IFP when legal position is frivolous)