Tyrrell v. Frakes
| Decision Date | 29 April 2021 |
| Docket Number | No. S-20-425.,S-20-425. |
| Citation | 958 N.W.2d 673,309 Neb. 85 |
| Parties | Gregory TYRRELL, appellant, v. Scott FRAKES, director, Department of Correctional Services, and Rosalyn Cotton, chair, Nebraska Board of Parole, appellees. |
| Court | Nebraska Supreme Court |
Gregory Tyrrell, pro se.
Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellees.
More than 5 months after a parole revocation, Gregory Tyrrell filed a district court proceeding asserting both a petition in error and an application for writ of habeas corpus. That court quashed the habeas claim and, months later, dismissed the error proceeding. Only then did Tyrrell appeal. We granted bypass to address two issues. First, was the appeal timely? It was, because of the combined effect of the statutes governing habeas appeals1 and finality of multiple claims.2 Second, after failing to challenge a parole condition's constitutionality during the revocation hearing or in a timely error proceeding, can habeas be used to do so? Because habeas can be used only to collaterally attack a void criminal judgment, sentence, and commitment, and cannot be used as a substitute for an appeal or proceedings in error, habeas was not available. We affirm.
The Nebraska Board of Parole (Board) placed Tyrrell on parole from his sentences for burglary and first degree sexual assault. The Board conditioned Tyrrell's parole upon his (1) nonuse of online social media and (2) paying a monthly programming fee to the Nebraska Department of Correctional Services. At the time of parole, Tyrrell agreed in writing to the special conditions for parole of sex offenders.
A woman who met Tyrrell through an online dating website reported to Tyrrell's parole officer that Tyrrell had violated the social media parole condition. When questioned by his parole officer, Tyrrell admitted the violation.
The Office of Parole Administration filed a petition for review of parole hearing. At the parole review hearing, Tyrrell pled guilty to violating the online social media condition and was also found guilty of not paying his monthly programming fees. The Board revoked his parole.
Tyrrell did not file any challenge to the parole revocation for over 5 months. The Board entered the revocation order on December 4, 2018. This case began on May 20, 2019.
Tyrrell, assisted by counsel, began the case by filing a petition for declaratory judgment—asserting various claims, including a violation of 42 U.S.C. § 1983 (2018). The caption of the complaint named Scott Frakes, director of the Nebraska Department of Correctional Services, and Rosalyn Cotton, the Board's chair, as defendants. Although the Board was not named in the caption, the body of the complaint made allegations against it.
The Board, Frakes, and Cotton filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction and that the complaint failed to state a claim. However, Tyrrell did not wait for a ruling on their motion. Instead, he sought leave and amended his complaint.
The new pleading, filed on November 8, 2019, and styled as a "Petition in Error & Application for a Writ of Habeas Corpus," asserted both types of proceedings in the same action. Obviously, both claims were filed more than 30 days after the Board's order revoking Tyrrell's parole. The pleading named Frakes and Cotton, in their official capacities, as defendants. Although once again the pleading's caption did not name the Board (except for Cotton, its chair) as a defendant, the portion of the body of the pleading asserting a petition in error alleged error in the Board's action revoking Tyrrell's parole. Apparently to dispel that uncertainty, the district court's order entered on November 14, which granted Tyrrell leave to file his amended "petition" and gave counsel for Frakes and Cotton 21 days to show cause why a writ of habeas corpus should not issue, also noted that the court had met with counsel for the respective parties on November 8 and that the "parties agree[d] that the ... Board ... should be, and hereby is, dropped from this case as a party."
In response to the amended pleading, Frakes and Cotton filed a motion to quash the "petition" for writ of habeas corpus. On January 13, 2020, the district court granted the motion to quash, ruling that parole revocation decisions are beyond "the limits of habeas relief under Nebraska law." Tyrrell did not file a notice of appeal within 30 days of that order.
On February 4, 2020, the court issued an order directing Tyrrell to show cause why the petition in error should not be dismissed. Shortly afterward, Tyrrell elected to represent himself and his attorney withdrew. Tyrrell filed a response advising the court that he wished to file additional motions. A few days later, Tyrrell filed a motion to reconsider his habeas corpus petition and a motion to amend it. The court overruled both motions on May 18. In that order, the court gave Tyrrell 30 days to show cause why the petition in error should not be dismissed for lack of jurisdiction, based upon Tyrrell's failure to timely file the petition in error. Tyrrell filed a timely response maintaining that habeas corpus was the proper remedy and conceding that he was "unable to show cause why this matter should not be dismissed."
The next day, on May 29, 2020, the court dismissed the petition in error for lack of jurisdiction.
Tyrrell filed a pro se notice of appeal on June 5, 2020. We granted Tyrrell's petition to bypass the Nebraska Court of Appeals.3
While the petition to bypass was pending, Frakes and Cotton filed a motion for summary dismissal,4 asserting that the appeal was filed more than 30 days after the district court sustained their motion to quash the application for writ of habeas corpus. We overruled the motion, but reserved the jurisdictional issue for consideration upon plenary submission of the appeal. The appeal was submitted upon completion of oral arguments,5 which, due to the ongoing coronavirus pandemic, were conducted solely by electronic means.
Tyrrell assigns 14 errors, which can be divided into two categories—habeas corpus assignments and petition in error assignments.
Regarding the habeas proceeding, Tyrrell assigns the district court erred in (1) failing to determine sua sponte to issue the writ of habeas corpus, (2) failing to issue a writ of habeas corpus, (3) sustaining the appellees’ motion to quash, (4) overruling his motion for reconsideration, and (5) overruling his motion to amend.
Tyrrell assigns nine instances of "plain error" to the Board, including two matters that were not presented to the district court. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.6 But more important, Tyrrell does not assign that the court erred in dismissing his petition in error for being untimely.
The question of jurisdiction is a question of law.7 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court.8
On appeal of a habeas petition, an appellate court reviews the trial court's factual findings for clear error and its conclusions of law de novo.9
Tyrrell does not challenge the district court's dismissal of his petition in error for lack of jurisdiction. At oral argument, the State conceded that a petition in error can be used to challenge a parole revocation.10 Assuming without deciding that the State is correct, an error proceeding must be filed within 30 days of the final order.11 Here, it was not. Tyrrell conceded as much in his response to the district court's show cause order. But different principles apply to the appeal regarding Tyrrell's application for a writ of habeas corpus.
In Frakes and Cotton's brief, they contested our jurisdiction of the district court's disposition of Tyrrell's application for writ of habeas corpus—arguing that he should have appealed within 30 days of the court's January 2020 order rather than waiting until after its May 2020 dismissal order. That argument relied upon our decision in Anderson v. Houston .12 Therein, we said that "an order denying habeas corpus relief qualifies as a final order"13 and that "[t]he test of finality for the purpose of an appeal in a habeas corpus proceeding is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment."14 We agree with these principles.
But as Tyrrell pointed out and the State effectively conceded at oral argument, our Anderson decision did not involve a habeas proceeding asserted in the same action as another claim and, thus, § 25-1315(1) had no potential application in that case. We have said that to be appealable, an order must satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) and, additionally, where implicated, § 25-1315(1).15 Here, the habeas claim was asserted in the same proceeding as a petition in error. Our jurisdiction turns upon whether that statute was implicated here.
Recently, we held that "when [a forcible entry and detainer] claim is part of an action involving multiple claims or multiple parties, § 25-1315 governs the immediate appealability of an order determining the [forcible entry and detainer] claim."16 We did so based upon the language of a forcible entry and detainer statute which states, "Any party against whom judgment has been entered ... may appeal as provided for in a civil action."17 We reasoned that the plain language of the statute directed that parties in such cases may appeal only "as provided for in a civil action" and that § 25-1315 governs civil actions.
The same reasoning applies here. Our statute states that...
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