State v. Amaya, 298 Neb. 70

Background

In 1999 Jay D. Amaya pled no contest to first-degree murder, use of a knife during a felony, and sexual assault; no direct appeal was filed.
Amaya pursued a postconviction motion in 2006 alleging ineffective assistance of trial counsel; after an evidentiary hearing the district court denied relief and the Nebraska Supreme Court affirmed.
On September 2, 2016, Amaya filed a successive verified postconviction motion claiming additional ineffective assistance of trial and postconviction counsel and attaching a motion for new trial.
The district court dismissed the successive motion on September 7, 2016, concluding it was time barred under Neb. Rev. Stat. § 29-3001(4), raised claims already litigated or available earlier, and was frivolous; no hearing or State response was ordered.
Amaya later sought leave to amend, and to alter or amend the judgment; the court denied amendment as untimely and denied the motion to alter because it was filed beyond the 10-day limit. Amaya appealed.

Issues

Issue	Plaintiff's Argument (Amaya)	Defendant's Argument (State/District Court)	Held
May the court dismiss a postconviction motion sua sponte as time barred?	Court should not dismiss without notice/hearing; State waived timeliness by not raising it.	Court may perform preliminary review and may, but is not obliged to, raise timeliness sua sponte under § 29-3001(2).	Yes; trial court may sua sponte determine timeliness during preliminary review and dismiss if motion and record show time bar.
Does applying the 2011 one-year statute of limitations to crimes committed earlier violate the Ex Post Facto Clause?	Applying § 29-3001(4) to pre-2011 offenses is ex post facto punishment.	The statute is procedural time-bar, not a penalty; does not fit ex post facto categories.	No; statute of limitations does not constitute ex post facto punishment.
Did ineffective assistance of prior postconviction counsel create an "impediment" under § 29-3001(4)(c) that tolls the limitation period?	Prior postconviction counsel's ineffectiveness prevented timely filing, so tolling applies.	Ineffective assistance in postconviction proceedings is not a state-created constitutional impediment; no state action or constitutional violation shown.	No; Amaya failed to show state-created impediment or constitutional violation, so tolling does not apply and motion is time barred.
Was denial of leave to amend and denial of motion to alter or amend judgment erroneous?	Amaya argued he should be allowed to amend and that the motion to alter should be considered.	Postconviction rules do not permit amendment after court finds no need for evidentiary hearing; motion to alter was untimely under § 25-1329.	No error: amendment properly denied; motion to alter was untimely and denial was not an abuse of discretion.

Key Cases Cited

State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008) (prior appeal and postconviction proceedings affirmed)
State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015) (§ 29-3001(4) is a statute of limitations, not jurisdictional)
Day v. McDonough, 547 U.S. 198 (2006) (federal courts may sua sponte consider timeliness of habeas petitions during preliminary review)
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016) (postconviction statutes do not contemplate amendment after court finds no evidentiary hearing necessary)
State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016) (application of § 29-3001 to successive motions)