Gray v. KenneyGray v. Kenney
Case Information
*1 D еcisions of the n ebraska c ourt of a ppeals v by the record. See Clark v. Alegent Health Neb. 60, 825 N.W.2d 195 (2013). This assignment of error has no merit.
CONCLUSION
For the reasons set forth above, we affirm the decision of the compensation court.
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G raylin G ray , appellant , . m ichael k enney , Director of n ebraska D epartment of
c orrectional s еrvices , appellee ___ N.W.2d ___ Filed February 3, 2015. No. A-14-378.
1.
Affidavits: Appeal and Error.
An appellate court reviews a district court’s
denial of in forma pauperis status under
Appeal from the District Court for Lancaster County: s teven D. b urns , Judge. Affirmed.
Graylin Gray, pro se.
Jon Bruning, Attorney General, and George R. Love for appellee.
i rwin , r ieDmann , and b ishop , Judges.
r ieDmann , Judge.
INTRODUCTION
Graylin Gray appeals from the order of the district court for Lancaster County which denied his application to proceed in forma pauperis on his petition for writ of habeas corpus. We affirm.
BACKGROUND
Gray was convicted by a jury of unlawful possession of four or more financial transaction devices and unlawful circulation of financial transaction devices in the first degree. The district court determined that Gray was a habitual criminal and sen- tenced him to 10 to 20 years’ imprisonment on each count. On direct appeal, Gray challenged, among other things, the district court’s determination that he was a habitual criminal. In a memorandum opinion filed on March 12, 2009, in case Nо. A-08-336, we found that the evidence was sufficient to sup- port the district court’s habitual criminal finding and affirmed Gray’s convictions and sentences in all respects.
On March 14, 2014, Gray filed a petition for writ of habeas corpus, alleging that his sentences are void because the district court applied the wrong burden of proоf in determining that he *3 was a habitual criminal. Along with his habeas petition, Gray filed a motion to proceed in forma pauperis and a poverty affidavit. The State timely filed an objection to Gray’s motion to proceed in forma pauperis on the basis that his habeas peti- tion was frivolous. A hearing was held on thе State’s objec- tion, during which the State offered into evidence a copy of our opinion affirming Gray’s convictions and sentences on direct appeal.
Following a hearing, the district court sustained the State’s objection and denied Gray’s motion to proceed in forma pau- peris. It found that the рetition appeared to be frivolous on its face, in that the issues raised in the petition had been previ- ously litigated and that none of the issues raised in the petition establish that the commitment was void.
Gray timely appeals from that decision.
ASSIGNMENT OF ERROR
Gray assigns that the district court erred in denying his application to proceed in forma pauperis on his petition for writ of habeas corpus.
STANDARD OF REVIEW
[1] A district court’s denial of in forma pauperis status under
ANALYSIS
Denial of In Forma Pauperis Status.
[2,3] Applications to proceed in forma pauperis are governed
by
[4-7] Under Nebraska law, an action for habeas corpus is a collateral attack on a judgment of conviction. Id. Only a void judgment may be collaterally attacked. Id. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject to collateral attack. Id. Thus, a writ of habeas corpus will not liе to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense and the person of the defendant, and the sentence was within the power of the court to impose. Id.
[8-10] A writ of habeas corpus is not a writ for correction
of errors, and its use will not be permitted for that purpose.
Id.
“‘[T]he regularity of the proceedings leading up to the sentence
in a criminal case cannot be inquired into on an application
for writ of habeas corpus, for that matter is available only in
a direct proceeding.’”
Id.
at 867, 824 N.W.2d at 33. “‘Where
jurisdiction has attached, mere errors or irregularities in the
proceedings, however grave, although they may render the judg-
ment erroneous and subject to be set aside in a proper proceed-
ing for that purpose, will not render the judgment void.’”
Id.
at
869,
Gray’s habeas petition asserts that his sentences are void because thе district court determined that he was a habitual criminal beyond a reasonable doubt, rather than by a prepon- derance of the evidence. We disagree. The fact that the district court applied a higher burden of proof in determining Gray’s habitual criminal status does not make his sentences void. Because the district court had proper jurisdiction and Gray’s sentences were within its power to impose, his petition for habeas corpus is frivolous.
The State also argues that any claims regarding Gray’s status as a habitual criminal are precluded under the doctrines of res judicata and the law of the case. While we agree that the law- of-the-case doctrine precludes relitigation of the habitual crimi- nal issue, we disagree that res judicata is applicable. Because these are independent doctrines which are sometimes closely related, we address each separately.
Res Judicata.
[11,12] The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or
necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction,
(2) the former judgment was a final judgment, (3) the former
judgment was on the merits, and (4) the same parties or their
privies were involved in both actions.
Kiplinger v. Nebraska
Dept. of Nat. Resources
,
The determination that Gray was a habitual criminal was made by a court of competent jurisdiction and was a final judg- ment on the merits. Hоwever, the same parties or their priv- ies were not involved in both actions. The habitual criminal
D ecisions of the n ebraska c ourt of a ppeals
finding arose out of a case filed by the State of Nebraska
against Gray in case No. A-08-336, and the postconviction
cases involved those same partiеs in cases Nos. A-10-147
and A-13-254. The present action for a writ of habeas cor-
pus, however, was filed by Gray against Michael Kenney, the
director of the Nebraska Department of Correctional Services.
There is no showing that Kenney is in privity with the State
of Nebraska. Privity requires, at a minimum, a showing that
the parties in the two aсtions are really and substantially in
interest the same.
R.W. v. Schrein
,
Law-of-the-Case Doctrine.
[13,14] Under the law-of-the-case doctrine, the holdings of
an appellate court on questions presented to it in reviewing
proceedings of the trial court become the law of the case; those
holdings conclusively settle, for purposes of that litigation, all
matters ruled upon, either expressly or by necessary implica-
tion.
State v. Merchant
,
While we are not aware of any precedent applying the
law-of-the-case doctrine to claims raised in a petition for
writ of habeas corpus that were previously rejected on direct
appeal, the Nebraska Supreme Court has аpplied the doctrine
when that issue was addressed on direct appeal. See,
State v.
Marshall
,
Both State v. Marshall, supra , and Thomas v. State, supra , involved subsequent actions derived from the original convic- tions. In State v. Marshall , the defendant filed a motion for postconviction relief after his conviсtions were affirmed by the Supreme Court on direct appeal. The district court denied the motion without an evidentiary hearing. Id . At issue in the direct appeal was whether a plea in bar was properly overruled. The Supreme Court held that because the defendant did not timely appeal from the order denying his plea in bar, it lacked juris- diction to address the alleged error. When the defendant raised the issue in his postconviction motion, the Supreme Court held that its decision in the direct appeal that the order on the plea in bar was final constituted the law of the case which applied *6 in the postconviction proceeding. Id
In Thomas v. State, supra , the defendant in the triаl court had been convicted and his convictions were affirmed on direct appeal. He subsequently filed a petition seeking to perpetuate the testimony of three jurors who participated in his trial, cit- ing what is now codified as Neb. Ct. R. Disc. § 6-327(a). He alleged that one of the jurors failed to disclose during voir dire that he had a relative who had been the victim of a murder. The district court sustained the State’s motion to dismiss. On appeal, the Nebraska Supreme Court stated that it had previ- ously rejected this juror issue on direct appeal. The Supreme Court concluded that its opinion in the direct appeal became the law of the case and precluded further consideration of the issue in the appeal of the subsequent action.
The law-of-the-case doctrine generally applies to succes-
sive stages of the same lawsuit.
In re Estate of Stull
, 261
Neb. 319, 622 N.W.2d 886 (2001). However, as evidenced
by
State v. Marshall, supra
, and
Thomas v. State, supra
, the
doctrine may also be applied tо an issue raised in a subse-
quent action when that action is derived from a direct appeal.
For example, postconviction relief is sought by a convicted,
imprisoned person “on the ground that there was such a denial
or infringement of the rights of the prisoner as to render the
judgment void or voidable.”
[15] In the present action, Gray filed a petition for a writ
of habeas corpus. An action for habeas corpus is a collateral
attack on a judgment of conviction.
Peterson v. Houston
,
284 Neb. 861, 824 N.W.2d 26 (2012). See
We conclude that the law-of-the-case doctrine is applicable here. On direct appeal, Gray challenged the district court’s determination that he was a habitual criminal, аnd in case No. A-08-336, we affirmed the district court’s finding after analyz- ing the sufficiency of the evidence to prove two of Gray’s prior convictions. Because Gray’s status as a habitual criminal has already been challenged and affirmed by this court, his attempt to raise the issue again in his petition for writ of habeas corрus is frivolous.
Challenge to Bill of Exceptions.
[16] Finally, Gray argues in his brief that certain state- ments he made during the hearing on the State’s objection to his motion to proceed in forma pauperis were incorrectly transcribed. However, Gray did not assign this issue as error. An alleged error must be both specifically assigned and spe- *7 cifically argued in the briеf of the party asserting the error to be considered by an appellate court. State v. Turner 249, 847 N.W.2d 69 (2014). Because Gray did not assign this issue as error, we will not address it on appeal.
CONCLUSION
The district court did not err in denying Gray’s application
to proceed in forma pauperis on his petition for writ of habeas
corpus. Upon the spreading of our mandate affirming the
district court’s denial of in forma pauperis status, Gray shall
have 30 days to pay the fees necessary to file his petition. See
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