29-3001 Postconviction relief; motion; procedure; costs. - Nebraska Statutes

29-3001. Postconviction relief; motion; procedure; costs.A prisoner in custody under sentence and claiming a right to be released 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 under the Constitution of this state or the Constitution of the United States, may file a verified motion at any time in the court which imposed such sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence.Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial as may appear appropriate. Proceedings under the provisions of sections 29-3001 to 29-3004 shall be civil in nature. Costs shall be taxed as in habeas corpus cases.A court may entertain and determine such motion without requiring the production of the prisoner, whether or not a hearing is held. Testimony of the prisoner or other witnesses may be offered by deposition. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner. SourceLaws 1965, c. 145, § 1, p. 486. Annotations1. Scope2. Basis for relief3. Successive motions4. Procedure5. Miscellaneous1. ScopeA district court need not conduct an evidentiary hearing in postconviction proceedings in the following circumstances: (1) When the prisoner alleges only conclusions of law or facts and (2) when the files and records of the case affirmatively show that the prisoner is entitled to no relief. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).The trial court did not err in declining to appoint the appellant counsel for the purpose of conducting further discovery on a postconviction motion, because under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).In an action under Nebraska's postconviction statute, an issue of constitutional dimension involving a sentence does not constitute grounds for postconviction relief unless it also constitutes grounds for finding the sentence void or voidable. State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).The postconviction act specifically provides a procedure in which to file a motion seeking to vacate a sentence based on allegations that it is void. State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).The postconviction remedy of a new direct appeal is not appropriate where the claim of ineffective assistance of counsel is based upon acts or omissions occurring in the pretrial or trial stages of a criminal prosecution. State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).Failure to litigate a known issue on direct appeal results in the movant's being procedurally barred from raising the issue in a motion for postconviction relief. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal, no matter how the issues may be phrased or rephrased. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).The power to grant a new direct appeal is implicit in this section, and the district court has jurisdiction to exercise such power where the evidence establishes a denial or infringement of the right to effective assistance of counsel at the direct appeal stage of the criminal proceedings. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).A request to compel state-funded DNA testing cannot be brought under this section. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).The Nebraska Postconviction Act, section 29-3001 et seq., is available to a criminal defendant to show that his or her conviction was obtained in violation of his or her constitutional rights. State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).The Nebraska Postconviction Act requires that a prisoner seeking relief under the act must be in actual custody in Nebraska under a Nebraska sentence. State v. Eutzy, 242 Neb. 851, 496 N.W.2d 529 (1993); State v. Whitmore, 234 Neb. 557, 452 N.W.2d 31 (1990).A prisoner who has been discharged from parole is no longer in actual custody in Nebraska under a Nebraska sentence for the purpose of the Nebraska Postconviction Act. State v. Costanzo, 242 Neb. 478, 495 N.W.2d 904 (1993).Under a broad reading of this section, court-ordered probation constitutes "custody under sentence" for postconviction relief remedies. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992).Excessive sentence is not a proper subject for postconviction relief. A court is not required to grant an evidential hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidential hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant; or (2) notwithstanding proper pleading of facts in a motion for postconviction relief, the files and records in a movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable. In an appeal of a postconviction proceeding, the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992).Alleged conflict of interest at trial and at sentencing could have been presented on direct appeal, and failure to do so is procedural default which barred review in postconviction proceeding. For postconviction purposes, issues raised in a prior proceeding but disposed of procedurally are not already litigated. State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991).A motion for postconviction relief under this section cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how these issues may be phrased or rephrased. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Kern, 232 Neb. 799, 442 N.W.2d 381 (1989).A prisoner who has been paroled is "in custody under sentence" for purposes of this section of the Postconviction Act. State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990).The phrase "in custody under sentence," as used in the Nebraska Postconviction Act, requires that a prisoner seeking relief be in actual custody in Nebraska under a Nebraska sentence. State v. Harper, 233 Neb. 841, 448 N.W.2d 407 (1989).A motion for postconviction relief may not be used to obtain a further review of issues already litigated, and the mere fact that the issues are rephrased does not change that rule. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989).This provision applies only where the prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable. State v. Ferrell, 230 Neb. 958, 434 N.W.2d 331 (1989).Except for the specific provisions set out in the Postconviction Act, a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant at the time of his trial, plea, sentencing, or commitment. State v. Blankenfeld, 228 Neb. 611, 423 N.W.2d 479 (1988).A motion for postconviction relief cannot be used to secure review of issues which have already been litigated on direct appeal, or which were known to the defendant and counsel at the time of trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Petitte, 228 Neb. 144, 421 N.W.2d 460 (1988); State v. Hurlburt, 221 Neb. 364, 377 N.W.2d 108 (1985).A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated. State v. Pratt, 224 Neb. 507, 398 N.W.2d 721 (1987); State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Nokes, 209 Neb. 293, 307 N.W.2d 521 (1981); State v. Weiland, 190 Neb. 111, 206 N.W.2d 336 (1973); State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967).Any matter which can be determined from the record on direct appeal, and which was considered by the Supreme Court when ruling on a motion filed pursuant to Neb. Ct. R. of Prac. 3B (rev. 1986), is not subject to relitigation in an action brought pursuant to the Nebraska Postconviction Act. State v. Bean, 224 Neb. 278, 398 N.W.2d 104 (1986).Conclusory allegations will not support a motion for postconviction relief, nor do they require the court to grant an evidentiary hearing. State v. Galvan, 222 Neb. 104, 382 N.W.2d 337 (1986).Only errors which would make a conviction void or voidable under either the state or federal constitutions are cognizable in a post conviction relief action. Therefore, defendant could raise neither prejudice from remarks by a prosecution witness nor the sufficiency of evidence offered to establish his identity at the habitual criminal hearing on post conviction review. Nor could he challenge the voluntariness of a guilty plea which led to one of the prior convictions offered at the habitual criminal hearing where he failed to challenge it at the trial level. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).Where case records are silent on questions of possible constitutional rights violations, district court must grant evidentiary hearing. State v. Svoboda, 199 Neb. 452, 259 N.W.2d 609 (1977).Post conviction procedure may not be used to secure review for defendant dissatisfied with his sentence, and after one motion has been determined, later motion upon grounds available at time of earlier motion may be dismissed. State v. Niemann, 195 Neb. 675, 240 N.W.2d 38 (1976).The Post Conviction Act extends relief to persons in custody only. State v. Moore, 190 Neb. 271, 207 N.W.2d 518 (1973).One may not pursue post conviction remedy while he has direct appeal pending. State v. Moore, 187 Neb. 507, 192 N.W.2d 157 (1971).Motion for hearing under Post Conviction Act is not a substitute for an appeal. State v. Riley, 183 Neb. 616, 163 N.W.2d 104 (1968); State v. Erving, 180 Neb. 680, 144 N.W.2d 424 (1966).Post Conviction Act cannot be used for the purpose of securing a new trial on the grounds of newly discovered evidence. State v. Dabney, 183 Neb. 316, 160 N.W.2d 163 (1968).Remedy to determine rights of defendant relative to filing notice of appeal after statutory time had expired may be determined under Post Conviction Act. State v. Blunt, 182 Neb. 477, 155 N.W.2d 443 (1968).Post Conviction Act provides procedure for review of rights of defendant in criminal case. State v. Livingston, 182 Neb. 257, 153 N.W.2d 925 (1967).Unless a miscarriage of justice is shown, post conviction remedy is not available for consideration of matters that were determined by the court. State v. Sheldon, 181 Neb. 360, 148 N.W.2d 301 (1967).In the absence of a showing of a real miscarriage of justice, Post Conviction Act cannot be used to relitigate the question of whether a confession was voluntary when the same question was the subject of and decided in a former appeal to the Supreme Court. State v. Parker, 180 Neb. 707, 144 N.W.2d 525 (1966).Post Conviction Act was intended to provide relief in those cases where a miscarriage of justice may have occurred. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).Intent of Post Conviction Act is not to provide a procedural quagmire to individual who attempts to point out constitutional infirmities. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967).Post conviction review of sentence imposed by state court, claimed to be in violation of federal or state Constitution, is provided. Dabney v. Sigler, 345 F.2d 710 (8th Cir. 1965).2. Basis for reliefIn a postconviction proceeding, an appellate court reviews for an abuse of discretion the procedures a district court uses to determine whether the prisoner's allegations sufficiently establish a basis for relief and whether the files and records of the case affirmatively show that the prisoner is entitled to no relief. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).When the alleged ineffective assistance of counsel is a failure to timely appeal from a final pretrial order, the critical issue is whether a timely appeal would have resulted in a reversal and prevented a subsequent trial and conviction. State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).When the defendant has entered a guilty plea, counsel's deficient performance constitutes prejudice if there is a reasonable probability that, but for counsel's errors, the defendant would have insisted on going to trial rather than pleading guilty. A defendant seeking postconviction relief based on ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defendant's case. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).A prisoner cannot claim constitutionally ineffective assistance of counsel as a result of an attorney's service in a postconviction proceeding. State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).In a proceeding under the Nebraska Postconviction Act, the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988).To establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990).In a proceeding under the Postconviction Act, the applicant is required to allege facts which, if proved, constitute a violation or infringement of rights, and the pleading of mere conclusions of fact or law is not sufficient to require the court to grant an evidentiary hearing. State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989).In a post conviction proceeding, petitioner has the burden of establishing a basis for relief. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Rapp, 186 Neb. 785, 186 N.W.2d 482 (1971); State v. Coffen, 184 Neb. 254, 166 N.W.2d 593 (1969); State v. Raue, 182 Neb. 735, 157 N.W.2d 380 (1968).In an appeal involving a proceeding for postconviction relief, the lower court's findings will be upheld unless clearly erroneous. When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. The defendant must make a showing of how he was prejudiced in the defense of his case as a result of his attorney's actions or inactions and that, but for the ineffective assistance of counsel, there is a reasonable probability that the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Rubek, 225 Neb. 477, 406 N.W.2d 130 (1987).Defendant was not entitled to an evidentiary hearing to determine whether his plea was made knowingly, intelligently, and voluntarily, nor was he entitled to postconviction relief on grounds that he was denied effective assistance of counsel because of counsel's failure to raise the issue of the defendant's mental competency. State v. Bradford, 223 Neb. 908, 395 N.W.2d 495 (1986).To establish a right to statutory postconviction relief on the basis of ineffective counsel, the defendant must prove that counsel failed to perform at least as well as a lawyer of ordinary training and skill in the criminal law or that he failed to conscientiously protect his client's interest. State v. Anderson, 216 Neb. 521, 344 N.W.2d 473 (1984).One seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed on appeal unless they are clearly erroneous. State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); Marteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981).For relief on ground of ineffective counsel the petitioner has the burden of establishing a basis for relief. The district court is the trier of disputed questions of fact, and it is not ordinarily for the Supreme Court to determine questions of credibility. State v. Tiff, 212 Neb. 565, 324 N.W.2d 393 (1982).A claim of error on the ground of ineffective assistance of counsel is unsupported if counsel performs as well as a lawyer with ordinary training and skill in the criminal law in his area and conscientiously protects the interests of his client. Marteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981).When one seeks post conviction relief based on a claim that his counsel was inadequate, one must likewise show how or in what manner the alleged inadequacy prejudiced him; and when one is unable to do so, denial of the requested relief is required. State v. Holloman, 209 Neb. 828, 311 N.W.2d 914 (1981), affirming prior conviction 197 Neb. 139, 248 N.W.2d 15 (1976).An issue of constitutional dimension does not constitute grounds for post conviction relief unless it also constitutes grounds for setting aside the sentence. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).Under the facts of this case, defense counsel did not have a conflict of interest that would allow relief under this section. State v. Bishop, Davis, and Yates, 207 Neb. 10, 295 N.W.2d 698 (1980).Matters relating to sentences imposed with statutory limits are not a basis for post conviction relief. State v. Walker, 197 Neb. 381, 248 N.W.2d 784 (1977); State v. DeLoa, 194 Neb. 270, 231 N.W.2d 357 (1975); State v. Birdwell, 188 Neb. 116, 195 N.W.2d 502 (1972).Where sole issue was inadequacy of counsel for failure to appeal from conviction, and prisoner did not prove failure was due to negligence of counsel, post conviction relief was properly denied. State v. Halsey, 195 Neb. 432, 238 N.W.2d 249 (1976).Where defendant filed unbased application for writ of error coram nobis which was considered as petition for post conviction relief, court examined files and records and properly denied relief without a hearing because records showed alleged error had been waived. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).Relief hereunder is limited to cases in which there was a denial or infringement of the prisoner's rights such as to render the judgment void or voidable under the Constitution of Nebraska or of the United States. State v. Miles, 194 Neb. 128, 230 N.W.2d 227 (1975); State v. Bullard, 187 Neb. 334, 190 N.W.2d 628 (1971); State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).Defendant claimed conviction for rape was void because at time of trial he was incompetent and his counsel was ineffective because he did not request a hearing as to his competency, but after an evidentiary hearing both claims were properly denied. State v. Campbell, 192 Neb. 629, 223 N.W.2d 662 (1974).One who relies upon advice of counsel and pleads guilty may not collaterally attack the voluntariness of the plea even if motivated by the existence of a coerced confession so long as counsel's advice was within the range of competence demanded of attorneys in criminal cases. State v. Hall, 188 Neb. 130, 195 N.W.2d 201 (1972).Witness' known conflicting statement before trial and revealed in testimony of another witness is no basis for relief hereunder. State v. Ford, 187 Neb. 353, 190 N.W.2d 787 (1971).Unless the motion, files, and records of the case show petitioner is not entitled to relief, the court shall grant a prompt evidentiary hearing. State v. Virgilito, 187 Neb. 328, 190 N.W.2d 781 (1971).The burden is on defendant to prove his allegation that prosecution used perjured or false testimony in securing his conviction. State v. Huffman, 186 Neb. 809, 186 N.W.2d 715 (1971).Where the facts and issues which are the grounds of a motion for post conviction relief were known to the defendant and his counsel and were raised, heard, and determined at the time of the trial resulting in his conviction, but were not raised in his direct appeal, those issues will not ordinarily be considered in post conviction review. State v. Lincoln, 186 Neb. 783, 186 N.W.2d 490 (1971).Where a plea of guilty was obviously entered without knowledge that defense of statute of limitation was available, failure to appoint an attorney requested by defendant at sentencing was prejudicial to his rights. State v. Journey, 186 Neb. 556, 184 N.W.2d 616 (1971).A claim of error on the ground of ineffective assistance of counsel must be supported by a record showing that counsel assistance was so grossly inept as to jeopardize that rights of the defendant and shock the court by its inadequacy. State v. Oziah, 186 Neb. 541, 184 N.W.2d 725 (1971).Defendant's constitutional rights not violated by in-court identification made on a basis independent of an unlawful lineup. State v. Oziah, 186 Neb. 541, 184 N.W.2d 725 (1971).In a post conviction action after a plea of guilty if the record of an in-court examination of defendant shows that his plea was voluntary and that he was fairly advised by effective counsel, a contention that his plea was coerced and his counsel ineffective will not be entertained. State v. Sargent, 186 Neb. 155, 181 N.W.2d 449 (1970).Proceeding under this section cannot be used as substitute for appeal or to secure further review of issues already litigated; court authorized to examine files and records and determine issue without evidentiary hearing. State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110 (1970).Voluntary guilty plea intelligently made in light of then applicable law does not become vulnerable because later judicial decisions indicate that plea rested on faulty premise. State v. Alvarez, 185 Neb. 557, 177 N.W.2d 591 (1970).For relief hereunder on ground of ineffective counsel, must appear that assistance so grossly inept as to shock conscience of court. State v. Moss, 185 Neb. 536, 177 N.W.2d 284 (1970).In absence of a violation or infringement of a constitutional right, no relief may be had under this act. State v. Reizenstein, 183 Neb. 376, 160 N.W.2d 208 (1968).Statements by defendant were voluntarily made and she is not entitled to relief under Post Conviction Act. State v. Fugate, 182 Neb. 325, 154 N.W.2d 514 (1967).For postconviction relief to be granted under this section, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U. S. or Nebraska Constitution. State v. Davlin, 10 Neb. App. 866, 639 N.W.2d 168 (2002).3. Successive motionsThe trial court did not abuse its discretion under the Nebraska Postconviction Act when it required the State to file a written response to the appellant's motion for postconviction relief. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).A movant's subsequent postconviction claims are barred by his or her failure to raise available claims in a previous postconviction motion, even if the movant acted pro se in the first proceeding. State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).Even if a movant could not have raised an issue upon which relief is sought until his or her second motion for postconviction relief, he or she is clearly barred from raising the claim in the third motion. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985).A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985).Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Evans, 224 Neb. 64, 395 N.W.2d 563 (1986); State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971).The trial court is not required to entertain successive motions under the Post Conviction Act for similar relief from the same prisoner. State v. Huffman, 190 Neb. 319, 207 N.W.2d 696 (1973).Repetitive applications for post conviction relief may be deemed an abuse of judicial process. State v. Pilgrim, 188 Neb. 213, 196 N.W.2d 162 (1972).After appeal, defendant cannot secure second review hereunder of identical issues. State v. Franklin, 187 Neb. 363, 190 N.W.2d 780 (1971); State v. Newman, 181 Neb. 588, 150 N.W.2d 113 (1967).Court not required to consider motion under this section when questions raised were raised and determined in prior evidentiary hearing under this act. State v. Cole, 184 Neb. 864, 173 N.W.2d 39 (1969).4. ProcedureA trial court abuses its discretion in postconviction proceedings when its decision incorrectly applies or fails to comply with specific procedural rules governing the action. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).If the district court grants an evidentiary hearing in a postconviction proceeding, it is obligated to determine the issues and make findings of fact and conclusions of law with respect thereto. State v. Epting, 276 Neb. 37, 751 N.W.2d 166 (2008).If the court grants an evidentiary hearing in a postconviction proceeding, it is obligated to determine the issues and make findings of fact and conclusions of law with respect thereto. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).It is reversible error for a district court to grant postconviction relief without first conducting an evidentiary hearing and making findings of fact and conclusions of law. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).A defendant's failure to diligently prosecute an appeal from a denial of a prior motion for postconviction relief results in a procedural default that bars later action on the claim. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).Under this section, the district court has discretion to adopt reasonable procedures for determining what the motion and the files and records show, and whether any substantial issues are raised, before granting a full evidentiary hearing. This section allows for the denial of an evidentiary hearing if the court determines from the files and records of the case that the prisoner is not entitled to relief. It is not unusual for a court to hold a hearing to determine which files and records the court may review prior to considering the State's motion to deny a prisoner an evidentiary hearing. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).A defendant obtaining postconviction relief of a new direct appeal must properly appeal from his or her original conviction and sentence based on the grant of such postconviction relief. The 30-day limit within which the defendant must file his or her new direct appeal commences on the day that such postconviction relief is granted in the district court. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).The district court need not conduct an evidentiary hearing on a motion for postconviction relief when the motion alleges only conclusions of fact or law or when the files and records affirmatively show that the criminal defendant is not entitled to any relief. State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000).If a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, the proper means to attach such denial is a motion for postconviction relief and not a motion for writ of error coram nobis. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).An evidentiary hearing may properly be denied on a motion for postconviction relief when the records and files in the case affirmatively establish that the defendant is entitled to no relief. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993); State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Sowell, 227 Neb. 865, 420 N.W.2d 704 (1988); State v. Schaeffer, 218 Neb. 786, 359 N.W.2d 106 (1984); State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984); State v. Meredith, 212 Neb. 109, 321 N.W.2d 456 (1982); State v. Miles, 202 Neb. 126, 274 N.W.2d 153 (1979); State v. Fincher, 189 Neb. 746, 204 N.W.2d 927 (1973); State v. Gero, 186 Neb. 379, 183 N.W.2d 274 (1971); State v. Ronzzo, 181 Neb. 16, 146 N.W.2d 576 (1966).Although a prisoner could not be prevented from testifying in support of his motion, he had no right to be personally present at an evidentiary hearing on the motion. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).In an evidentiary hearing, as a bench trial provided by this section for postconviction relief, the trial judge, as the "trier of fact," resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991); State v. Sobieszczyk, 2 Neb. App. 116, 507 N.W.2d 660 (1993).If a defendant is denied his or her right to appeal because his or her lawyer fails, when requested, to timely file a notice of appeal, the proper means to attack that denial is by a postconviction relief action. State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990).In an evidentiary hearing as a bench trial, provided by this section for postconviction relief, the trial judge sitting as the trier of fact resolves conflicts in the evidence and questions of fact. State v. Wiley, 232 Neb. 642, 441 N.W.2d 629 (1989).An evidentiary hearing on a postconviction motion is required upon an appropriate motion containing factual allegations which, if proved, constitute an infringement of a constitutional right. State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985); State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984).The evidentiary hearing provided in this section is a vehicle for a confined defendant to meet his or her burden of proof, and although an evidentiary hearing is not always necessary on an application for postconviction relief, such a hearing is usually advisable to avoid protracted litigation. State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987).Any matter which can be determined from the record on direct appeal is considered by the Supreme Court when granting relief pursuant to Neb. Ct. R. of Prac. 3B (rev. 1986), and is not available for further relief pursuant to the Nebraska Postconviction Act. State v. Wilson, 224 Neb. 721, 400 N.W.2d 869 (1987).In postconviction proceedings under this section, the district court is the trier of disputed questions of fact and it is not ordinarily for the Supreme Court to determine questions of credibility. State v. Terrell, 220 Neb. 137, 368 N.W.2d 499 (1985); State v. Davis, 203 Neb. 284, 278 N.W.2d 351 (1979).The Supreme Court will not consider a question, as an assignment of error, not presented to the district court for disposition through a defendant's motion for postconviction relief. State v. Casper, 219 Neb. 641, 365 N.W.2d 451 (1985).A defendant in a postconviction proceeding may not raise questions which could have been raised on direct appeal unless the questions are such that they would make the judgment of conviction void or voidable under the state or federal Constitution. State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982); State v. Huffman, 186 Neb. 809, 186 N.W.2d 715 (1971).A motion for postconviction relief must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights. State v. Robinson, 215 Neb. 449, 339 N.W.2d 76 (1983); State v. Fitzgerald, 182 Neb. 823, 157 N.W.2d 415 (1968); State v. Warner, 181 Neb. 538, 149 N.W.2d 438 (1967).In an action for post conviction relief, the trial judge is not automatically disqualified from presiding at the post conviction proceedings. The petitioner bears the burden of establishing bias and prejudice. State v. Herren, 212 Neb. 706, 325 N.W.2d 151 (1982).Trial court did not err in requiring that defendant's testimony at hearing under this section be presented by deposition. State v. Otey, 212 Neb. 103, 321 N.W.2d 453 (1982).This section of the Nebraska Post Conviction Act requires that a motion to vacate a verdict be verified. State v. Ditter, 209 Neb. 452, 308 N.W.2d 350 (1981).Evidentiary hearing may be denied if the trial court finds, on examination of its files and records, that proceeding under this section is without foundation. State v. Nokes, 209 Neb. 293, 307 N.W.2d 521 (1981).Any constitutional infirmity in the judgment and conviction in proceedings had with respect to trial and sentencing may be appropriately raised under this statute, but not in a motion for an order nunc pro tunc. State v. Al-Hafeez, 208 Neb. 681, 305 N.W.2d 379 (1981).The ordering of a new trial by the trial court is an appropriate discretionary method of granting post-conviction relief under this section. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981).Defendant in a post conviction proceeding may not raise questions which could have been raised on direct appeal, which do not involve questions making the judgment of conviction void or voidable under the state or federal constitutions, or which concern sentences imposed within statutory limits. State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981).The validity of a prior conviction offered to enhance punishment must be challenged at the habitual criminal hearing and failure to challenge it at that time waives the issue. Thus, the prior conviction may not be attacked in a petition under the Post Conviction Act. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).A motion to vacate a judgment and sentence under this act cannot be used to secure a further review of issues already litigated. State v. Lacy, 198 Neb. 567, 254 N.W.2d 83 (1977).Where denial or infringement of right to counsel occurred at appeal stage of former criminal proceedings, the district court may grant a new direct appeal without granting a new trial or setting aside original sentence. State v. Blunt, 197 Neb. 82, 246 N.W.2d 727 (1976).Assignments of error on grounds available in the district court must first have been presented to that court. State v. Taylor, 193 Neb. 388, 227 N.W.2d 26 (1975).In absence of a violation or infringement of a constitutional right, no relief may be had hereunder. State v. Whited, 187 Neb. 592, 193 N.W.2d 268 (1971).In a post conviction proceeding, the petitioner has the burden of proof. State v. Hatten, 187 Neb. 237, 188 N.W.2d 846 (1971); State v. Sagaser, 181 Neb. 329, 148 N.W.2d 206 (1967).Standards established by Miranda v. Arizona, 384 U.S. 436, do not have retroactive application and an attorney is not to be deemed ineffective to the point of impairment of constitutional rights of client by viewing his advice retrospectively. A defendant may waive a constitutional right provided he has done so knowingly and voluntarily; the burden of proof in a post conviction hearing is on the petitioner. State v. Hatten, 187 Neb. 237, 188 N.W.2d 846 (1971).An indigent defendant has a right to appeal at public expense, but he has the burden of alleging and establishing a basis for relief. When he seeks to appeal the original proceedings and fails to show that he is acting in good faith and that his appeal is not merely frivolous, he has not met his burden. State v. Myles, 187 Neb. 105, 187 N.W.2d 584 (1971).No requirement that allegations be in technical form nor that grammar be more than substantially understandable, but allegations must set forth facts. Harris v. Sigler, 185 Neb. 483, 176 N.W.2d 733 (1970).Court specifically entitled to examine files and records and if such shows person entitled to no relief motion to vacate sentence may be overruled without hearing. State v. Pilgrim, 184 Neb. 457, 168 N.W.2d 368 (1969).Evidentiary hearing may properly be denied if trial court finds on examination of its files and records that the proceeding is without foundation. State v. Nicholson, 183 Neb. 834, 164 N.W.2d 652 (1969).Motion for hearing under Post Conviction Act is not a substitute for an appeal. State v. Riley, 183 Neb. 616, 163 N.W.2d 104 (1968).A hearing is not required when motions, pleadings, and briefs do not indicate any facts whatever which would entitle prisoner to relief. State v. Duncan, 182 Neb. 598, 156 N.W.2d 165 (1968).Trial court has discretion to adopt reasonable procedures to determine sufficiency of evidence before granting evidentiary hearing. State v. Fowler, 182 Neb. 333, 154 N.W.2d 766 (1967).Statements by defendant were voluntarily made and she is not entitled to relief under Post Conviction Act. State v. Fugate, 182 Neb. 325, 154 N.W.2d 514 (1967).Post Conviction Act authorizes the trial court to examine the files and records to determine propriety of evidentiary hearing. State v. Carreau, 182 Neb. 295, 154 N.W.2d 215 (1967).A plea of guilty, if understandingly and voluntarily made, is conclusive. State v. Decker, 181 Neb. 859, 152 N.W.2d 5 (1967).Failure to appoint counsel for indigent upon appeal justified filing of appeal out of time. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).Post Conviction Act specifically authorizes trial court to examine files and records to see if prisoner may be entitled to relief. State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967).Failure to appoint counsel for defendant at preliminary hearing was not a denial of procedural due process of law. State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967).Where a single question of law is involved, and is groundless, counsel need not be appointed on appeal. State v. Craig, 181 Neb. 8, 146 N.W.2d 744 (1966).A defendant is not entitled to the presence of his counsel during a psychiatric examination. State v. Snyder, 180 Neb. 787, 146 N.W.2d 67 (1966).Under Post Conviction Act, sentencing court has discretion to adopt reasonable procedure for determining questions presented. State v. Silvacarvalho, 180 Neb. 755, 145 N.W.2d 447 (1966).District court may adopt reasonable procedures for carrying out provisions of Post Conviction Act. State v. Fugate, 180 Neb. 701, 144 N.W.2d 412 (1966).A defendant may challenge a second conviction and sentence which he has not yet started to serve. State v. Losieau, 180 Neb. 696, 144 N.W.2d 435 (1966).Where a motion is made to set aside or correct a sentence, movant must set forth facts and not merely conclusions. State v. Losieau, 180 Neb. 671, 144 N.W.2d 406 (1966).At hearing under Post Conviction Act, personal presence of a petitioning prisoner is not always required. State v. Woods, 180 Neb. 282, 142 N.W.2d 339 (1966).In postconviction proceedings where a defendant alleges that his or her plea was induced by some promise, the court must hold an evidentiary hearing on the issue unless the record conclusively shows that the plea was not induced by any promises, except those included in the plea bargain. State v. Jefferson, 5 Neb. App. 646, 562 N.W.2d 77 (1997).The files and records reviewed by the district court in making its determination regarding a motion for postconviction relief must accompany the transcript, and the transcript must contain a certificate by the district judge identifying the files and records as those which were considered when the case is appealed. State v. Caton, 2 Neb. App. 908, 518 N.W.2d 160 (1994).Postconviction proceedings can be brought in Nebraska only if the defendant has been deprived of a constitutional right. The right of a prisoner to be tried within 120 days of being brought into the state under section 29-759, Article IV(c) of the Agreement on Detainers, is a statutory right and not a constitutional right; therefore, the defendant cannot maintain a postconviction proceeding based upon violation of a right provided under Article IV(c). State v. Harper, 2 Neb. App. 220, 508 N.W.2d 584 (1993).Where state prisoner had petitioned for habeas corpus in forum of his custody but not for post conviction relief in forum of his sentence he had not exhausted state remedies. Robinson v. Wolff, 468 F.2d 438 (8th Cir. 1972), affirming 349 F.Supp. 514 (D. Neb. 1972).The Nebraska Post Conviction Act provides an adequate post conviction remedy to raise contention of illegal incarceration and state prisoner who had not presented his allegations to Nebraska court was not entitled to federal habeas corpus relief. Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971).Since petitioner had litigated issues on direct appeal, it was not necessary for proceedings to be maintained under this procedure as a prerequisite to federal habeas corpus proceedings. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968).Intent of Post Conviction Act is not to provide a procedural quagmire to individual who attempts to point out constitutional infirmities. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967).An adequate state remedy is provided which prisoner in custody must exhaust before seeking federal habeas corpus. Ellenson v. Fugate, 346 F.2d 151 (8th Cir. 1965); Burnside v. State, 346 F.2d 88 (8th Cir. 1965).Where Nebraska Supreme Court had already ruled directly on issues before federal habeas corpus court they could not be relitigated under Post Conviction Act and petitioner had exhausted his state court remedies. Collins v. Wolff, 337 F.Supp. 114 (D. Neb. 1962).Indigent state prisoner has no right to demand free transcript or other papers for purpose of searching for possible constitutional defects in proceedings, and to get same for purpose of collateral attack must first allege facts which show he had been deprived of a constitutional right which post conviction remedy was designed to protect. Harris v. State, 320 F.Supp. 100 (D. Neb. 1970).5. MiscellaneousThe trial court erred in denying a postconviction petition without an evidentiary hearing based on the trial counsel's deposition, because the deposition was not part of the case records and files; the phrase "files and records of the case" in this section refers to existing files and records of the case before the prisoner filed a postconviction proceeding, not to testimony taken for the postconviction proceeding. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).A motion for postconviction relief is not a substitute for an appeal. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).In an evidentiary hearing at a bench trial for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction. State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995).Having granted a defendant a postconviction hearing, a court is obligated to determine the issues and make findings of fact and conclusions of law. State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283 (1990).Proceedings under the Postconviction Act are civil in nature. State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989).The finding of the postconviction hearing court will not be disturbed unless clearly erroneous. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).Retroactive operation of decision overruling prior interpretation of habitual criminal statute decision is not required by constitutional provisions. State v. Pierce, 216 Neb. 792, 345 N.W.2d 835 (1984).A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional. State v. Falcone, 212 Neb. 720, 325 N.W.2d 160 (1982); State v. Stranghoener, 212 Neb. 203, 322 N.W.2d 407 (1982).The lack of knowledge which may invalidate a guilty plea concerns knowledge of the charge and the consequences of the plea, and not the defendant's knowledge of whether the state can succeed at trial. State v. Falcone, 212 Neb. 720, 325 N.W.2d 160 (1982).Where defendant was unable to show that insanity defense existed and the record disclosed that the defendant's trial counsel made reasonable efforts to obtain such evidence, but that none existed, defendant was not entitled to post conviction relief. State v. Landers, 212 Neb. 48, 321 N.W.2d 418 (1982).A juvenile's conviction in district court need not be set aside in postconviction proceedings where a hearing was held to determine whether the defendant should have been transferred to juvenile jurisdiction and the court, based on sufficient evidence, found that the transfer was not required. State v. Tweedy, 202 Neb. 824, 277 N.W.2d 254 (1979).Imposition of consecutive sentences for convictions on multiple charges involving a single incident held not violation of Fifth Amendment. State v. Hardin, 199 Neb. 314, 258 N.W.2d 245 (1977).An illegal search and seizure or arrest issue known to defendant at time of his trial cannot be considered in a post conviction review. State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975).When a defendant waives his state court remedies and admits his guilt, he does so under the law then existing and he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts. State v. Bevins, 187 Neb. 785, 194 N.W.2d 181 (1972).Granting of right to direct appeal two years after time of sentencing on the overruling of the motion for new trial in the original case was improper under the circumstances of the case. State v. Wycoff, 183 Neb. 373, 160 N.W.2d 221 (1968).Trial court, after evidentiary hearing, determined that constitutional rights of defendant were not violated. State v. Howard, 182 Neb. 411, 155 N.W.2d 339 (1967).Defendant was denied relief under section where sentence imposed was proper. State v. Burnside, 181 Neb. 20, 146 N.W.2d 754 (1966).Denial of relief under Post Conviction Act was proper. State v. Brevet, 180 Neb. 616, 144 N.W.2d 210 (1966).A 15-year suspension of a driver's license is insufficient to satisfy the "in custody" requirement for postconviction relief under this section. State v. Miller, 6 Neb. App. 363, 574 N.W.2d 519 (1998).State remedies found to have been sufficiently exhausted notwithstanding the fact that no proceedings were had under this act. Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969).