State v. Brown, 970 N.W.2d 809

David B. Brown was convicted (Feb 2, 2018) of two counts of first-degree sexual assault; direct appeal affirmed and mandate issued May 1, 2019.
Brown filed a verified postconviction motion on Apr 22, 2020, alleging ineffective assistance of trial and appellate counsel and actual innocence.
Hearings occurred May 26 and June 23, 2020; the district court dismissed the postconviction motion without an evidentiary hearing by order dated Sept 17, 2020.
Brown filed a "Verified Motion for Reconsideration, Motion to Vacate and Reinstate Order Denying Motion for Postconviction Relief" on Jan 19, 2021; his postconviction counsel moved to withdraw Jan 20 and was allowed to withdraw.
The district court dismissed the reconsideration motion as untimely; Brown appealed that dismissal and also argued his postconviction counsel was ineffective for failing to timely notify him of the dismissal order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by dismissing Brown's motion for reconsideration as untimely	Brown: delay in receiving notice of the dismissal (attributed to counsel/prison officials) made the motion timely under the equitable procedure governing lost appeals	State: court cannot vacate/reissue orders to circumvent appellate deadlines and the original denial was correct	Reversed — court abused its discretion in dismissing as untimely; remanded for merits review
Whether Brown can claim ineffective assistance of postconviction counsel	Brown: counsel failed to timely notify him of the dismissal, constituting ineffective assistance	State: no constitutional right to effective assistance of counsel in postconviction proceedings	Rejected — no constitutional guarantee of effective assistance in postconviction actions; claim without merit

State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018) (motion for reconsideration does not toll appeal and is an invitation to the court to vacate or modify its judgment)
State v. Parnell, 301 Neb. 774, 919 N.W.2d 900 (2018) (when an appeal is lost due to official negligence, the proper procedure is a lower-court motion to establish a basis for relief)
State v. Jones, 307 Neb. 809, 950 N.W.2d 625 (2020) (reiterating Parnell: district court should consider motions to vacate where missed appellate deadlines are due to official/prison negligence)
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014) (no constitutional right to effective assistance of counsel in postconviction proceedings)
State v. Manning, 18 Neb. App. 545, 789 N.W.2d 54 (2010) (addressing merits of a motion to vacate order denying postconviction relief based on newly discovered evidence)