State v. Epp, 910 N.W.2d 91

William A. Epp was convicted in 2007 of robbery and possession of a deadly weapon by a felon; sentences became final October 27, 2009; direct appeal affirmed.
On November 28, 2016, Epp filed a verified motion for postconviction relief raising four claims: (1) § 29-3001’s 1-year limitation is ex post facto; (2) § 29-2221 violates the Sixth Amendment by allowing judicial finding of prior convictions; (3) insufficiency of evidence for felon-in-possession conviction; and (4) § 25-1233 violates equal protection.
The district court dismissed the motion without an evidentiary hearing and without appointing counsel, concluding the motion was untimely under § 29-3001(4)(e) (which fixes the limitations start date as August 27, 2011) and that the claims were either meritless or procedurally barred.
Epp did not file the separate notice required by Neb. Ct. R. App. P. § 2-109(E) when challenging a statute’s constitutionality.
The Nebraska Supreme Court granted review and affirmed: it held the petition was untimely, the court properly declined an evidentiary hearing, and refusal to appoint counsel was not an abuse of discretion.

Issue	Epp's Argument	State's Argument	Held
Timeliness under § 29-3001	The 1-year limitation (including § 29-3001(4)(e)) is ex post facto and therefore inapplicable	§ 29-3001(4)(e) applies; Epp’s motion filed after the deadline and is untimely	Motion untimely; dismissal affirmed
Evidentiary hearing	Court should hold hearing to develop claims	Motion alleges only conclusions or is barred; record shows no relief due	No hearing required; dismissal without hearing proper
Appointment of counsel	Indigent Epp should have appellate/postconviction counsel appointed	Appointment discretionary; no justiciable issue so appointment not required	Denial of counsel not an abuse of discretion
Failure to give constitutional-notice under Rule 2-109(E)	Challenge to § 29-3001’s constitutionality asserted in filing	Rule requires strict compliance; failure to give notice precludes addressing the constitutional claim	Court declined to address the ex post facto challenge for failure to comply with § 2-109(E)

State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009) (direct appeal affirming convictions)
State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015) (addressing § 29-2221 challenge)
State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017) (holding § 29-3001 does not violate ex post facto clauses)
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016) (strict compliance with Rule 2-109(E) required for constitutional challenges)
State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017) (discussing appointment of counsel discretion in postconviction proceedings)