Articles Posted in Criminal Law

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A petitioner for habeas corpus relief whose initial motion to proceed in forma pauperis (IFP) was denied and who takes a timely interlocutory appeal from that denial, accompanied by a motion to proceed IFP on appeal, need not file a second appeal where the district court also denies the second-degree IFP motion. The Supreme Court reversed the court of appeals’ decision summarily dismissing Petitioner’s appeal in this case, holding that the court of appeals acquired jurisdiction upon Petitioner’s timely filing of a notice of appeal, accompanied by an application for IFP status and proverty affidavit. The court remanded the cause to the court of appeals for a determination on the merits of the errors assigned by Petitioner regarding the denial of his first motion to proceed IFP. View "Campbell v. Hansen" on Justia Law

Posted in: Criminal Law

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The Supreme Court affirmed the judgment of the district court denying Defendant’s amended and supplemental motions for postconviction relief. Defendant was convicted of second degree murder and use of a firearm to commit a felony. Defendant filed amended and supplemental motions for postconviction relief, claiming that the jury instructions given in his case denied him due process and that he received ineffective assistance of trial and appellate counsel. The district court denied the motions after an evidentiary hearing. The Supreme Court affirmed, holding (1) the holdings in State v. Smith, 806 N.W.2d 383 (Neb. 2011), did not apply to Defendant retroactively on collateral review; (2) Defendant’s convictions did not offend his due process rights; and (3) Defendant’s claims of ineffectiveness of trial and appellate counsel were without merit. View "State v. Glass" on Justia Law

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Huff was tried for first-degree sexual assault. After voir dire, 12 regular jurors and one alternate were sworn in. The next day, juror M.F., communicated that he was anxious about serving and discussed the issue with the court and parties. M.F. explained that his upbringing included crime, gangs, drugs, and domestic assault. He did not think he was “suitable.” M.F. ultimately agreed to follow the law, stating that he believed he could impartially make a decision based on the evidence. The judge rejected the state’s motion to strike M.F. for cause. After both parties rested and the jury was excused for the day, the court indicated that M.F. had not paid attention during trial. The state submitted a printout, showing more than 30 misdemeanor convictions M.F. had not disclosed on his jury questionnaire. Huff objected. The court determined that it had sufficient cause to discharge M.F. without examining him. Huff unsuccessfuly moved to “strike” other jurors, presenting evidence that they had also been dishonest. The alternate juror was seated. The jury returned a guilty verdict. The Nebraska Supreme Court affirmed, holding that the dismissal was a “discharge,” Neb. Rev. Stat. 29-2004(2). Under the totality of the circumstances, the court did not abuse its discretion: M.F. stated that he did not think he was suitable, the court observed M.F. to be inattentive, and M.F. failed to disclose his criminal record, which included convictions for crimes other than traffic offenses. View "State v. Huff" on Justia Law

Posted in: Criminal Law

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While dating April, Johnson made threats concerning April’s relationship with her former husband Edward. The night before April’s death, Johnson was upset that Edward had repaired April’s van. April’s neighbors reported hearing loud arguing in the early morning hours of December 11, 2011. On December 12, April did not report to work. Officers found April’s body. A pathologist opined that her death was a homicide caused by a stab wound to her abdomen and suffocation, On December 15, Johnson was arrested in Michigan driving April’s van, which contained Johnson’s blood-stained T-shirt and shoes. The DNA matched April’s profile. Johnson was convicted of first-degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. On appeal, Johnson unsuccessfully claimed that the court erred by admitting cumulative, gruesome autopsy photographs; brought a Batson challenge; and challenged testimony and exhibits about Johnson’s DNA profile. Johnson’s motion for post-conviction relief alleged ineffective assistance of counsel for failing to move for discharge on the basis of speedy trial, failing to object to the prosecutor’s voir dire comments, failing to properly examine various witnesses, failing to argue after moving for a directed verdict, failing to object to the state’s closing argument, failing to sever one count, and failing to allow Johnson to testify. The Nebraska Supreme Court affirmed the denial of the motion without holding an evidentiary hearing. Johnson failed to allege sufficient facts to demonstrate violation of his constitutional rights. View "State v. Johnson" on Justia Law

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The Supreme Court reversed the decision of the district court denying Petitioner’s motion for postponement of fees. At the same time he filed his motion, Petitioner presented the district court clerk with a petition for a writ of habeas corpus. The district court treated the motion to postpone fees as a request to proceed in forma pauperis (IFP) and denied the request, concluding that Petitioner’s underlying petition for a writ of habeas corpus was frivolous. The Supreme Court reversed and remanded the cause with instructions, holding that the district court erred in treating Petitioner’s motion as one for IFP status where Petitioner did not seek IFP status and was not required to obtain IFP status in order to file a petition for a writ of habeas corpus. View "Buggs v. Frakes" on Justia Law

Posted in: Criminal Law

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The Supreme Court affirmed Defendant’s convictions for unlawful discharge of a firearm and use of a weapon to commit a felony and the sentences imposed of twenty to thirty years for unlawful discharge of a firearm and an additional term of imprisonment for twenty to thirty years for use of a weapon to commit a felony, to run consecutively to each other. The court held (1) the district court did not abuse its discretion when it sustained the State’s motion to consolidate Defendant’s trial with that of his codefendant; (2) the district court did not err when it overruled Defendant’s Batson challenge to the jury selection process; (3) the district court did not abuse its discretion when it allowed the jury access to surveillance video during deliberations; (4) the evidence was sufficient to support Defendant’s convictions; and (5) the district court did not impose excessive sentences. View "State v. Wofford" on Justia Law

Posted in: Criminal Law

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The Supreme Court reversed the decision of the court of appeals addressing Appellant’s successive appeals from district court orders denying successive applications to proceed in forma pauperis (IFP). Appellant filed the applications in connection with his pro se petition for writ of habeas corpus. On the merits of the second appeal, the court of appeals concluded that Appellant was asserting a frivolous legal position in his habeas petition and thus affirmed the district court’s order denying IFP on appeal. The court then held the first appeal under submission to give Appellant an opportunity to pay the statutory docket fee. The Supreme Court remanded with directions to vacate the district court’s order in the second appeal and, in the first appeal, to affirm the district court’s denial of Appellant’s original IFP application, holding (1) Appellant’s appeals were governed by Glass v. Kenney, 687 N.W.2d 907 (Neb. 2004), not State v. Carter, 870 N.W.2d 641 (Neb. 2015); (2) with respect to the second appeal the district court erred in denying Appellant’s application to proceed IFP on appeal; and (3) with respect to the first appeal, the lower courts correctly concluded that Appellant’s habeas petition asserted a frivolous legal position. View "Mumin v. Frakes" on Justia Law

Posted in: Criminal Law

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In these postconviction proceedings, the Supreme Court vacated the order of the district court on remand from the Supreme Court, holding that the district court misinterpreted the directions on remand and entered an order that exceeded the scope of the Supreme Court’s mandate. On Appellant’s first appeal from postconviction proceedings before the district court, Appellant alleged that his trial attorneys were ineffective. The district court denied the motion without an evidentiary hearing. The Supreme Court reversed and remanded the cause for further proceedings. On appeal, the district court issued an order finding that the “sole” issue for evidentiary hearing was whether Appellant’s trial counsel was ineffective for failing to file a direct appeal. On appeal, the Supreme Court held that the order entered by the district court on remand was void because it attempted to affect rights and duties outside the scope of remand. View "State v. Payne" on Justia Law

Posted in: Criminal Law

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The Supreme Court reversed Defendant’s sentence of forty-five days’ jail time and six months’ probation and revocation of her license for one year connected to her plea of guilty to first-offense driving during revocation. The district court affirmed the sentence. Defendant appealed the revocation portion of her sentence to the Supreme Court. While her appeal was pending, 2017 Neb. Laws, L.B. 263 went into effect, which amended Neb. Rev. Stat. 60-4,108 to allow the sentencing court discretion in ordering a revocation for first-time offenders when the offender has been placed on probation. The Supreme Court remanded the cause with directions to remand it to the county court of resentencing consistent with the amended version of section 60-4,108, holding that the amended version of section 60-4,108 applies retroactively to Defendant’s sentence. View "State v. Huston" on Justia Law

Posted in: Criminal Law

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The Supreme Court affirmed the district court’s denial, without an evidentiary hearing, of Appellant’s motion for postconviction relief. In his motion, Appellant alleged that counsel was ineffective in several respects. After he was denied relief, Appellant appealed, arguing that his trial counsel was ineffective in various ways and that the district court erred in denying his motion for postconviction relief without a hearing. The Supreme Court affirmed, holding that the district court did not err when it determined that Appellant’s motion for postconviction relief did not allege facts that constituted a denial of his constitutional rights and accordingly denied the motion. View "State v. Custer" on Justia Law