State v. Henk, 299 Neb. 586

Background

In 2003 Ivan K. Henk pled guilty to first-degree murder and was sentenced to life without parole after admitting in court he killed his son; the plea avoided the death penalty.
Henk later filed a pro se postconviction motion alleging a crime-scene investigator, David Kofoed, planted blood in a dumpster and falsified reports, and that DNA evidence influenced his decision to plead guilty.
The district court denied relief without an evidentiary hearing as procedurally barred; this Court reversed and remanded, directing an evidentiary hearing to determine whether a constitutional violation occurred and whether Henk was prejudiced.
On remand Henk sought leave to amend his motion to add claims of prosecutorial misconduct and ineffective assistance of counsel; the district court granted leave and held an evidentiary hearing on all claims.
The district court ultimately denied relief, finding Henk failed to prove he would have rejected the plea but for the fabricated evidence; Henk appealed and the State cross-appealed the grant of leave to amend.
The Nebraska Supreme Court held the district court exceeded the scope of the remand by allowing and adjudicating claims beyond the single issue remanded; it vacated those parts of the order but affirmed denial of postconviction relief on the due-process/fabrication claim.

Issues

Issue	Plaintiff's Argument (Henk)	Defendant's Argument (State)	Held
Whether the district court had authority to permit and adjudicate new/abandoned claims on remand	Henk argued the remand’s purpose to determine constitutional violation and prejudice permitted adding ineffective-assistance and prosecutorial-misconduct claims	State argued the remand was limited to the fabrication/due-process claim actually decided on appeal, so new or abandoned claims were outside the mandate	Vacated grant of leave and portions addressing claims beyond fabrication; district court exceeded mandate and lacked jurisdiction over those claims
Whether Henk was judicially estopped from reasserting a previously abandoned prosecutorial-misconduct claim	Henk sought to litigate prosecutorial-misconduct anew	State argued Henk affirmatively abandoned that claim on first appeal and cannot revive it on remand	Court held Henk is judicially estopped from reasserting the abandoned claim; it was outside the remand scope
Whether fabricated evidence by investigator violated due process and whether Henk proved prejudice (but-for rejection of plea)	Henk contended that had fabrication been known he would not have pled guilty; fabrication tainted the process	State maintained record showed Henk would have pled regardless (confessions, pre-plea admissions, concern about publicity)	Court assumed constitutional violation for purposes of remand but held Henk failed to prove but-for prejudice; affirmed denial of relief on merits
Whether district court must follow appellate mandate strictly	Henk implied broader remand; State argued strict adherence required	State insisted lower courts cannot add or modify appellate mandates	Court reiterated lower court must follow mandate; cannot modify it; any order beyond remand is void

Key Cases Cited

State v. Lee, 290 Neb. 601 (2015) (applies ‘but-for’ prejudice standard for claims arising after a guilty plea)
State v. Kofoed, 283 Neb. 767 (2012) (criminal proceedings against investigator for fabricating evidence)
State v. Payne, 298 Neb. 373 (2017) (mandate and lower-court duty to follow appellate opinion)
State v. Glass, 298 Neb. 598 (2018) (appellate review of factual findings from postconviction evidentiary hearing)
County of Sarpy v. City of Gretna, 276 Neb. 520 (2008) (mandate incorporates appellate opinion by reference)
Pennfield Oil Co. v. Winstrom, 276 Neb. 123 (2008) (issues waived on appeal are not part of the remand mandate)
State v. Edwards, 294 Neb. 1 (2017) (limits on asserting new claims on remand)
State v. Jackson, 296 Neb. 31 (2017) (procedural-bar considerations for postconviction claims)
O’Connor v. Kearny Junction, 295 Neb. 981 (2017) (judicial estoppel prevents asserting positions inconsistent with earlier ones accepted by a court)
State v. Reeves, 258 Neb. 511 (2000) (postconviction proceedings are civil in nature)