State v. Burries
310 Neb. 688
| Neb. | 2022Background
- Anthony L. Burries was convicted of first-degree murder (2015) and later sought postconviction relief alleging ineffective assistance of counsel; his conviction and sentence had been affirmed on direct appeal.
- Burries (initially represented) and counsel filed postconviction motions; after counsel withdrew, Burries filed a 655‑page pro se "Second Amended Motion for Postconviction Relief."
- Burries moved for a default judgment after the State did not file a response brief; the district court denied the default motion and later granted leave to file a third amended motion, which Burries did not file.
- The district court overruled the second amended motion and entered dismissal; on appeal Burries challenged denial of default, lack of opportunity to be heard, and dismissal of his second amended motion.
- The Supreme Court affirmed: it held the Postconviction Act does not permit entry of a default judgment and affirmed dismissal based on the second amended motion’s lack of required verification; a concurrence urged allowance to amend to cure verification defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in denying Burries’ motion for default judgment | State’s failure to respond to the second amended motion equaled withdrawal/concession and entitled Burries to default judgment | The Postconviction Act does not authorize entry of a default judgment in postconviction proceedings | Affirmed: default judgment not authorized under Nebraska Postconviction Act (citing State v. Britt) |
| Whether Burries was denied an opportunity to be heard on the default motion | He was not given an opportunity to be heard before denial | No entitlement because default relief is not available under the Act | Affirmed: no reversible error in failing to hold hearing on default motion |
| Whether the court erred in dismissing the second amended postconviction motion on the merits | Burries contended the motion raised meritorious ineffective‑assistance claims and the court should reach them | The State argued procedural defects (including lack of verification) justified dismissal; court also noted Burries failed to file the granted third amended motion | Affirmed dismissal on the ground the operative second amended motion was not verified as required by § 29‑3001; court declined to reach other grounds |
| Whether the lack of verification was waived and whether leave to amend should be required | Burries (and concurrence) argued the State waived the defect by not raising it below and the defect is amendable so leave to cure should be allowed | Majority treated waiver rule as inapplicable in postconviction actions and upheld dismissal for lack of verification; State relied on procedural requirement | Majority: verification defect supports dismissal (waiver rule deemed inapplicable in this context). Concurrence: criticized raising the defect first on appeal and recommended the trial court allow amendment to cure the defect and proceed on the merits |
Key Cases Cited
- State v. Britt, 963 N.W.2d 533 (Neb. 2021) (Postconviction Act does not authorize entry of default judgment)
- State v. Crawford, 865 N.W.2d 360 (Neb. 2015) (addressed sufficiency of verification of postconviction pleadings; court here disapproved any suggestion that an earlier verified pleading always saves an amended unverified pleading)
- In re Interest of L.D., 398 N.W.2d 91 (Neb. 1986) (failure to object to lack of verification ordinarily waives the defect)
- State v. Amaya, 902 N.W.2d 675 (Neb. 2017) (trial court may sua sponte decide certain preliminary defects like timeliness during preliminary review of postconviction motions)
- AVG Partners I v. Genesis Health Clubs, 948 N.W.2d 212 (Neb. 2020) (distinguishes verification from acknowledgment and discusses historical pleading verification rules)