Rust v. Gunter
| Decision Date | 01 April 1988 |
| Docket Number | No. 87-662,87-662 |
| Citation | 228 Neb. 141,421 N.W.2d 458 |
| Parties | John E. RUST, Appellant, v. Frank O. GUNTER, Director, Nebraska Department of Correctional Services, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Habeas Corpus: Prisoners. In the case of a prisoner held pursuant to a judgment of conviction, habeas corpus is available as a remedy only upon a showing that the judgment, sentence, and commitment are void. Persons lawfully convicted of crime are excepted from the benefits of the statutory right to the writ of habeas corpus. The writ of habeas corpus is not available merely to challenge the conditions of confinement of a prisoner under valid sentence.
John E. Rust, pro se.
Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellees.
John E. Rust was convicted of first degree murder and three counts of shooting with intent to wound, maim, or kill. Rust was sentenced to death on the murder conviction and imprisonment for three concurrent terms of 16 2/3 years to 50 years on the shooting convictions. Rust's convictions and sentences were affirmed on appeal to this court. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
On April 20, 1987, in the district court for Lancaster County, Rust filed a petition for a writ of habeas corpus. In his petition, Rust did not claim that his sentences to death and imprisonment were invalid; rather, he claimed that rule 6(16), ch. 4, of the rules of the Nebraska Department of Correctional Services imposes ex post facto punishment concerning the crimes for which Rust is convicted. Rust alleges that none of the sentences imposed, for the murder conviction or the shooting convictions, contained a provision for solitary confinement. However, rule 6(16), adopted after imposition of sentences on Rust and during his incarceration in the Nebraska Penal and Correctional Complex to serve those sentences, authorizes solitary confinement of those awaiting the death penalty. Rust argues that such solitary confinement or administrative segregation is a punishment applied retrospectively and is, therefore, a violation of the constitutional prohibition against an ex post facto law, see, Neb. Const. art. I, § 16, and U.S. Const. art. I, § 10; a violation of the double jeopardy clause, see, Neb. Const. art. I, § 12, and U.S. Const. amends. V and XIV; and a violation of the separation of powers. The State filed a motion to quash Rust's petition, alleging that Rust was challenging the conditions of his confinement, which is not a proper function of a petition for a writ of habeas corpus.
The district court made the following determination: Thereupon, the district court dismissed Rust's petition for a writ of habeas corpus.
Rust's petition relates to conditions of his confinement while incarcerated at the Nebraska Penal and Correctional Complex under the control of the Department of Correctional Services. Rule 6(16), questioned by Rust, pertains to the manner of his confinement as one convicted of first degree murder and awaiting the death penalty.
To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense, had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose.
Hawk v. Olson, 146 Neb. 875, 880, 22 N.W.2d 136, 139 (1946).
The availability of habeas corpus in Nebraska is restricted....
We have consistently held that to release a person from a sentence of imprisonment by habeas corpus it must appear that the sentence was absolutely void. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the...
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State v. Rust
...denied 481 U.S. 1042, 107 S.Ct. 1987, 95 L.Ed.2d 826 (1987). After unsuccessfully seeking state habeas corpus relief, Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988), Rust initiated a habeas corpus action in the federal district The federal district court abstained from considering cert......
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Sanders v. Frakes
...Peterson v. Houston, supra note 11 ; Mayfield v. Hartmann, supra note 3.18 See Meyer v. Frakes, supra note 8.19 Id.20 Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988).21 Meyer v. Frakes, supra note 8.22 Peterson v. Houston, supra note 11.23 Id.24 See Mayfield v. Hartmann, supra note 3. S......
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Rust v. Hopkins
...again denied, and the Nebraska Supreme Court affirmed. Id. Rust unsuccessfully sought state habeas corpus relief in Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988), and then filed this habeas corpus action with the district court under 28 U.S.C. § 2254 (1988). The case was referred to a......
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Berumen v. Casady
...showing that the judgment, sentence, and commitment are void. Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990); Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988); Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987); Anderson and Hochstein v. Gunter, 226 Neb. 724, 414 N.W.2d 281 (......