Sanders v. Frakes, 295 Neb. 374

Background

In 2011, Ricky J. Sanders was convicted in Nebraska of unlawful discharge of a firearm (Neb. Rev. Stat. § 28-1212.04) and use of a firearm to commit a felony (§ 28-1205) and received consecutive 10–15 year terms.
Sanders’ direct appeal resulted in summary affirmance; his postconviction petition claiming ineffective assistance (for failing to challenge § 28-1212.04’s constitutionality) was dismissed and that dismissal affirmed.
Sanders then filed a habeas corpus petition asserting a facial challenge to the constitutionality of § 28-1212.04 and sought release, arguing a conviction under an unconstitutional statute is void.
The district court dismissed the habeas petition, holding that under Nebraska law a final conviction under an allegedly unconstitutional statute is voidable (not void) and therefore not subject to collateral attack via habeas.
The Nebraska Supreme Court granted bypass, considered whether habeas may be used to collaterally attack a final conviction on the ground that the underlying statute is facially unconstitutional, and affirmed the district court.

Issues

Issue	Plaintiff's Argument (Sanders)	Defendant's Argument (State/Frakes)	Held
Whether habeas corpus may be used to raise a facial constitutional challenge to the statute underlying a final criminal conviction	Sanders: A conviction under a facially unconstitutional statute is void, so habeas may secure release	State: Habeas is a collateral attack and only void judgments (e.g., lacking jurisdiction or legal basis) are reviewable; final convictions are excluded by statute unless void	Held: Habeas is not the proper vehicle; a final conviction under an alleged facially unconstitutional statute is voidable, not void, and cannot be collaterally attacked by habeas
Whether Nebraska’s habeas statute excludes persons convicted and sentenced from relief	Sanders: Statute should not bar review of facial constitutional defects	State: § 29-2801 excludes persons convicted of the crime for which they stand committed; the exclusion bars habeas after final conviction unless judgment is void	Held: The statutory exclusion applies; those standing committed after final conviction are outside habeas scope unless the judgment is absolutely void
Distinction between void and voidable judgments for habeas purposes	Sanders: Unconstitutional statutes render convictions void	State: Only lack of jurisdiction or legal basis renders a judgment void; errors or unconstitutional statutes (when court had jurisdiction) render judgments voidable	Held: Judgment is void only when court lacked subject-matter or personal jurisdiction or legal basis; otherwise judgment is voidable and not subject to habeas collateral attack
Whether prior authorities allow habeas review of statute constitutionality once conviction is final	Sanders: Cited cases recognizing statutes as void support habeas relief	State: Many cited cases involved non-final proceedings or jurisdictional defects; precedent bars collateral attack on final judgments even if statute later declared unconstitutional	Held: Cases permitting habeas review either involved nonfinal detention or jurisdictional defects; final convictions under later-declared-unconstitutional statutes remain voidable only

Key Cases Cited

State v. Sanders, 289 Neb. 335 (affirming dismissal of postconviction ineffective assistance claim)
Johnson v. Gage, 290 Neb. 136 (standards for habeas review and statutory eligibility)
Meyer v. Frakes, 294 Neb. 668 (habeas relief where sentence imposed for a nonexistent offense was void)
Mayfield v. Hartmann, 221 Neb. 122 (habeas not proper to collaterally attack final confinement under allegedly unconstitutional statute)
Davis Mgmt., Inc. v. Sanitary & Improvement Dist. No. 276, 204 Neb. 316 (finality of judgments bars collateral attack even when statute is later declared unconstitutional)
Norlanco, Inc. v. County of Madison, 186 Neb. 100 (same rule on finality vs. statutory unconstitutionality)
State v. Keen, 272 Neb. 123 (collateral attack on prior conviction based on invalid ordinance not permitted)
Ex parte Fisher, 6 Neb. 309 (early decision refusing habeas review of statute constitutionality after final conviction)
In re Resler, 115 Neb. 335 (distinguished: language suggesting unconstitutionality makes judgment void applied where conviction was not final)