State v. Dak, A-15-724

Daniel D. Dak, Jr. was convicted in Lancaster County of robbery, attempted robbery, and two counts of using a firearm to commit a felony; judgment became final March 26, 2013 after direct appeals concluded.
Dak filed a verified motion for postconviction relief and a motion for leave to file out of time on February 19, 2015, asserting ineffective assistance of counsel and plain error.
Dak conceded the 1-year statute under Neb. Rev. Stat. § 29-3001(4) normally ran from March 26, 2013, but argued tolling under § 29-3001(4)(c) because state-created impediments (restrictive segregation conditions) prevented timely filing.
He alleged segregation (Oct 28, 2013–Mar 23, 2014) limited law library access (one hour/week), required restraints, restricted movement and assistance from inmate legal aides, while general population enjoyed greater access.
The district court received Dak’s affidavit and exhibits, held Dak failed to prove a state-created impediment that prevented filing within the year, denied leave to file out of time, and dismissed the postconviction motion as untimely.
Dak appealed; the appellate court reviewed whether the § 29-3001(4)(c) impediment exception tolled the limitations period and affirmed the dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 29-3001(4)(c) tolls the 1-year limitations because state action (segregation conditions) prevented filing	Dak: segregation’s limited library access, restraints, and lack of legal-aide help created an unconstitutional impediment preventing timely filing	State: Dak had ample access before segregation and retained some access during segregation; no state action prevented filing	Tolling not available; motion untimely and dismissed
Whether Dak was actually prevented from filing within the limitations period	Dak: restraints and limited hours materially hindered preparation and filing	State: Dak had 218 days in general population with full resources and still had limited library access while segregated	Court found Dak did not show he was prevented from filing
Whether regulations/exhibits established a constitutional violation of access to courts	Dak: prison policies evidence the impediment	State: regulations do not show denial; Dak offered no proof of inability to pursue claims	No constitutional violation established for tolling purposes
Whether the court must reach Dak’s postconviction claims on the merits if untimely	Dak: requested merits review	State: procedural bar due to statute of limitations	Court: need not reach merits once procedural dismissal affirmed

State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015) (custody elsewhere does not automatically toll limitations when defendant later had custody in Nebraska)
State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016) (impediment exception requires both state-created impediment and proof it prevented filing; temporary library interruptions did not toll)
Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015) (appellate courts need not decide unnecessary issues once disposition is clear)
Bounds v. Smith, 430 U.S. 817 (1977) (prisoners have constitutional right to adequate law libraries or legal assistance to pursue claims)