State v. Stewart

Decision Date05 March 1993
Docket NumberNo. S-92-356,S-92-356
Citation242 Neb. 712,496 N.W.2d 524
PartiesSTATE of Nebraska, Appellee, v. Rodney L. STEWART, also known as Shakur Abdullah, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Postconviction: Rules of the Supreme Court: Attorneys at Law: Appeal and Error. The disposition of a direct appeal pursuant to Neb.Ct.R. of Prac. 3 B is a disposition on the merits. Rule 3 B includes actions seeking postconviction relief.

2. Postconviction: Appeal and Error. In an appeal from a denial of a motion for postconviction relief, the lower court's findings will be upheld unless clearly erroneous.

3. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.

4. Postconviction. A court need not entertain a second motion or successive postconviction relief motions for similar relief on behalf of the same prisoner.

5. Criminal Law: Right to Counsel. A defendant in a criminal case where imprisonment is imposed has the right to assistance of counsel.

6. Constitutional Law: Right to Counsel: Appeal and Error. The assistance of counsel provision in the U.S. Constitution applies to direct appeals only.

7. Constitutional Law: Right to Counsel: Convictions: Appeal and Error. A defendant has no federal constitutional right to counsel when attacking a conviction that has long since become final upon exhaustion of the appellate process.

8. Postconviction: Collateral Attack: Convictions: Appeal and Error. Postconviction relief is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction.

9. Postconviction: Due Process: Right to Counsel. States have no obligation to provide a postconviction relief procedure, and when they do, the fundamental fairness mandated by the Due Process Clause of the U.S. Constitution does not require that the State supply a lawyer as well.

10. Postconviction: Constitutional Law: Right to Counsel: Effectiveness of Counsel. Because there is no constitutional right to an attorney in state postconviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.

Shakur Abdullah (Rodney L. Stewart), pro se.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

FAHRNBRUCH, Justice.

Rodney L. Stewart, also known as Shakur Abdullah, who is serving a life sentence for first degree murder and 15 to 50 years for shooting with intent to kill, wound or maim, appeals the decision of the district court for Douglas County denying his second motion for postconviction relief. We affirm.

In January 1975, Stewart, then 16 years old, shot both Thomas Ehlers and Daniel Evans during an argument over drugs supplied to Stewart by Ehlers and Evans. Stewart then poured gasoline in the van in which they all had been riding and set it afire. Evans escaped from the vehicle and survived his injuries. Ehlers died from a gunshot wound to his head.

Following a jury trial, during which he was represented by a Douglas County public defender, Stewart was found guilty of first degree murder and of shooting with intent to kill, wound, or maim. He was sentenced to death on the murder charge and to 15 to 50 years imprisonment on the charge of shooting with intent to kill, wound, or maim. On his direct appeal to this court, Stewart alleged that the trial court erred, inter alia, in failing to (1) suppress his confession, (2) accept his guilty plea, and (3) instruct the jury on manslaughter. Although Stewart's convictions were upheld on direct appeal, his death sentence was reduced to life imprisonment. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).

In 1983, Stewart filed a motion for postconviction relief in the district court for Douglas County under the provisions of Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989). He alleged that (1) he was denied effective assistance of counsel during his trial, (2) the trial court erred in refusing to instruct the jury regarding manslaughter, (3) the trial court improperly refused the guilty plea he tendered to the court, and (4) the element of malice was never established.

The district court appointed new counsel to represent Stewart in the postconviction proceeding filed in 1983. Following a hearing on the matter, in which Stewart's trial counsel testified, the district court overruled Stewart's motion for postconviction relief. After that ruling was appealed to this court, Stewart's counsel moved to withdraw pursuant to Neb.Ct.R. of Prac. 3 B on the ground that the appeal was frivolous. The motion was granted and the judgment appealed from was affirmed. State v. Stewart, 218 Neb. xxxiii (case No. 84-681, January 11, 1985).

Rule 3 B states, in relevant part, that "[a] motion of court appointed counsel to withdraw shall state the reason for the request, and shall be served on opposing counsel and the defendant." We have held that the disposition of a direct appeal pursuant to Neb.Ct.R. of Prac. 3 B is a disposition on the merits. See, State v. Nance, 227 Neb. 581, 418 N.W.2d 598 (1988); State v. Bean, 224 Neb. 278, 398 N.W.2d 104 (1986). Rule 3 B includes actions seeking postconviction relief. State v. Harper, 214 Neb. 911, 336 N.W.2d 597 (1983). In Harper, we cited Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in setting standards for counsel filing motions to withdraw pursuant to Rule 3 B. Harper, 214 Neb. at 916, 336 N.W.2d at 600. In Anders, the U.S. Supreme Court stated that in the course of a direct appeal, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Later, the U.S. Supreme Court in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), rejected the argument that "Anders procedures should be applied to a state-created right to counsel on postconviction review just because they are applied to the right of counsel on first appeal...." 481 U.S. at 556, 107 S.Ct. at 1994. We therefore overrule Harper to the extent that it implies that Anders procedures must be followed in postconviction proceedings in which counsel files a motion to withdraw on the grounds that an appeal is wholly frivolous. In any event, Stewart has not, in his second postconviction proceeding, claimed that it was error for this court to dispose of his first postconviction relief motion pursuant to Rule 3 B.

Stewart has also filed a number of actions in federal court, of which we take judicial notice. On September 3, 1980, Stewart filed a petition in the U.S. District Court for the District of Nebraska for a writ of habeas corpus in which he alleged that he was denied due process, in part, because the trial court admitted into evidence his confession which had been given without prior advice that he could be prosecuted as an adult. See U.S. District Court file CV 80-L227. On December 16, 1981, the U.S. District Court rejected this claim and dismissed Stewart's petition. On appeal to the U.S. Court of Appeals for the Eighth Circuit, that court remanded the case to the district court to give Stewart an opportunity to amend his petition and delete claims that had not been exhausted in Nebraska state courts. Stewart v. Parratt, 682 F.2d 757 (8th Cir.1982).

On January 16, 1986, Stewart filed a petition in federal district court for a writ of habeas corpus, in which he again alleged, in part, that the trial court erred in receiving into evidence his confession which had been given without prior advice that he could be prosecuted as an adult. See U.S. District Court file CV 86-L51. Stewart also alleged that he received ineffective assistance of counsel at his trial and that his confession was erroneously admitted into evidence because it had been given in response to interrogating officers' promises to ask for lenient treatment for Stewart. On June 27, 1986, Stewart filed an amended petition for writ of habeas corpus in the federal district court. Stewart made additional allegations including that of ineffective assistance of counsel on his direct appeal to this court. The federal district court denied Stewart's petition on October 20, 1987. That court rejected Stewart's arguments that he had received ineffective assistance of counsel at trial and that his confessions were improperly admitted into evidence. The trial court's holdings were affirmed on appeal to the U.S. Court of Appeals for the Eighth Circuit. Stewart v. Grammer, 871 F.2d 1091 (8th Cir.1988).

A second motion for postconviction relief was filed in the Douglas County District Court by Stewart on January 27, 1992. In it, he alleged violations of the Fifth, Sixth, and 14th Amendments of the U.S. Constitution, and violations of Neb. Const. Art. I, §§ 3, 11, and 12. Stewart also filed a Motion for Appointment of Counsel and Evidentiary Hearing. In a Supplemental Amended Petition filed April 15, 1992, Stewart alleged additional violations involving U.S. Const. art. IV, § 2, cl. 1, and the Tenth Amendment and of Neb. Const. art. I, §§ 13, 19, 23, and 26. Stewart could have raised these claims or litigated them in his first postconviction proceeding. He did not do so. Under Nebraska's procedural law, those claims may not be litigated in a second postconviction proceeding. See Neb.Rev.Stat. § 29-3001 (Reissue 1989) and State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991), cert. denied, 501 U.S. 1201, ...

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