State v. Burries
310 Neb. 688
Neb.2022Background
- Burries was convicted of first-degree murder in 2015 and sentenced to life imprisonment; conviction affirmed on direct appeal.
- In Aug. 2018 Burries (with postconviction counsel) filed a postconviction motion alleging ineffective assistance; the State moved to dismiss.
- While represented, Burries later filed a pro se 655‑page ‘‘Second Amended Motion for Postconviction Relief’’; counsel was permitted to withdraw in Sept. 2019.
- After counsel withdrew, Burries filed a pro se motion for default judgment; the district court denied that motion and later granted leave to file a third amended motion, which Burries did not file.
- On July 22, 2020 the district court overruled/dismissed the second amended postconviction motion; Burries appealed arguing (1) error denying default judgment, (2) denial of opportunity to be heard on default motion, and (3) erroneous dismissal of the second amended motion.
Issues
| Issue | Plaintiff's Argument (Burries) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a default judgment was required when the State failed to file a brief in response to the second amended motion | State’s failure to respond operated as withdrawal/concession and entitled Burries to default judgment | Nebraska Postconviction Act does not authorize entry of default judgment; State’s nonresponse does not entitle movant to relief | Denied; affirmed — courts cannot enter default judgments under the Postconviction Act |
| Whether Burries was denied an opportunity to be heard on his default motion | He was not given a hearing before the default motion was denied | No entitlement to default; no hearing error when substantive default relief is unavailable | No reversible error; denial affirmed |
| Whether the district court erred in dismissing the second amended postconviction motion | The second amended motion raised meritorious claims and dismissal was wrongful | The second amended motion was defective and dismissal was proper for multiple reasons (including verification, timeliness, failure to file third amended motion) | Affirmed — dismissal is supported because the operative second amended motion was not verified |
| Whether failure to object below to lack of verification is waived in postconviction proceedings | Burries: State waived verification objection by not raising it below | State argued verification defect justifies dismissal on appeal; majority held waiver rule inapplicable to postconviction actions | Majority: usual waiver rule inapplicable in postconviction actions; verification requirement is jurisdictional/essential and supports dismissal; concurrence would not broadly announce waiver exception and would allow amendment/remand |
Key Cases Cited
- State v. Britt, 963 N.W.2d 533 (Neb. 2021) (Postconviction Act does not permit district courts to grant relief by default judgment)
- State v. Crawford, 865 N.W.2d 360 (Neb. 2015) (discussed sufficiency of earlier verified motion to support amended pleading; majority here disapproved that implication)
- In re Interest of L.D., 398 N.W.2d 91 (Neb. 1986) (failure to object to unverified pleading normally waives the defect)
- State v. Amaya, 902 N.W.2d 675 (Neb. 2017) (trial court may sua sponte address timeliness in preliminary review of a postconviction motion)
- Foman v. Davis, 371 U.S. 178 (U.S. 1962) (leave to amend and the preference for resolving cases on the merits rather than on technical pleading defects)