Gonzalez v. Gage

GONZALEZ v. GAGE 	671
Cite as 290 Neb. 671
Jose e. G onzalez, appellant,
v. Brian GaGe, warden of the
tecumseh state correctional
institution, appellee.
861 N.W.2d 457
Filed April 10, 2015. 	No. S-14-568.
1. Affidavits: Appeal and Error. A district court’s denial of in forma pauperis
status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de novo
on the record based on the transcript of the hearing or the written statement of
the court.
2. Constitutional Law: Judgments. Except in those cases where the denial of in
forma pauperis status would deny a defendant his or her constitutional right to
appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows
the court on its own motion to deny in forma pauperis status on the basis that
the legal positions asserted by the applicant are frivolous or malicious, provided
that the court issue a written statement of its reasons, findings, and conclusions
for denial.
3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev.
Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without
rational argument based on the law or on the evidence.
4. Habeas Corpus. Habeas corpus is a special civil proceeding providing a sum-
mary remedy to persons illegally detained.
5. ____. A writ of habeas corpus challenges and tests the legality of a person’s
detention, imprisonment, or custodial deprivation of liberty.
6. Habeas Corpus: Proof. Habeas corpus requires the showing of legal cause, that
is, that a person is detained illegally and is entitled to the benefits of the writ.
7. Habeas Corpus. A writ of habeas corpus in Nebraska is limited in comparison to
the writ in federal courts.
8. Habeas Corpus: Jurisdiction: Sentences. A writ of 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 and the person of the defendant, and
the sentence was within the power of the court to impose.
9. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors,
and its use will not be permitted for that purpose.
10. Jurisdiction: Judgments: Appeal and Error. Where jurisdiction has attached,
mere errors or irregularities in the proceedings, however grave, will not render
the judgment void, although they may render the judgment erroneous and subject
to being set aside in a proper proceeding for that purpose.
Appeal from the District Court for Johnson County: daniel
e. Bryan, Jr., Judge. Affirmed.
Jose E. Gonzalez, pro se.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:33 AM CST

672 	290 NEBRASKA REPORTS
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavican, c.J., wriGht, connolly, stephan, mccormack,
and miller-lerman, JJ.
miller-lerman, J.
NATURE OF CASE
Jose E. Gonzalez appeals the order of the district court for
Johnson County which determined that his action seeking a
writ of habeas corpus was frivolous and denied his motion to
proceed in forma pauperis. We conclude that Gonzalez’ action
is frivolous, because the claims he asserts are not claims that,
if proved, would support issuance of a writ of habeas corpus.
We therefore affirm the order of the district court which denied
Gonzalez’ motion to proceed in forma pauperis.
STATEMENT OF FACTS
In 2008, Gonzalez was charged with first degree sexual
assault on a child. Gonzalez was found guilty in a jury trial
in the district court for Dakota County, and he was sentenced
to imprisonment for 30 to 32 years. Gonzalez’ conviction was
affirmed by the Nebraska Court of Appeals in a direct appeal
in which he had counsel different from his trial counsel and
raised several claims of ineffective assistance of trial counsel.
See State v. Gonzalez, No. A-10-179, 2010 WL 4241022 (Neb.
App. Oct. 26, 2010) (selected for posting to court Web site).
In 2012, Gonzalez filed a pro se motion for postconviction
relief in which he raised various claims, including additional
claims of ineffective assistance of counsel. The district court
for Dakota County denied the postconviction motion, and
the Court of Appeals affirmed. See State v. Gonzalez, No.
A-12-073, 2012 WL 3740570 (Neb. App. Aug. 28, 2012)
(selected for posting to court Web site).
On May 19, 2014, Gonzalez, who was in custody at the
Tecumseh State Correctional Institution, filed a pro se petition
for a writ of habeas corpus in the district court for Johnson
County against the warden, Brian Gage. Gonzalez alleged that

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Cite as 290 Neb. 671
he was a foreign national and that when he was arrested in
2008, he was not informed of his rights under article 36, para-
graph 1(b), of the Vienna Convention on Consular Relations,
Apr. 24, 1963, 21 U.S.T. 77 (Vienna Convention). In particular,
he alleged that under the Vienna Convention, he had a right to
contact the Mexican consulate for advice and assistance with
his criminal prosecution. Gonzalez also alleged that his trial
counsel was deficient in various respects, and he implied that
he would have been better represented with assistance from the
Mexican consulate. He claimed that because of the violation of
the Vienna Convention, “the district court of Dakota County
lost its jurisdiction to proceed to judgment, and lacked the
legal authority to impose the sentence.”
The district court for Johnson County denied Gonzalez’
motion to proceed in forma pauperis on the ground that
Gonzalez’ action was frivolous. The court stated that “[t]he
legal positions advanced by petitioner are frivolous. The writ
is a collateral attack on a judgment of a valid conviction. The
court had jurisdiction of the parties and subject matter and
such a writ will not lie. See Peterson v. Houston, 284 Neb.
861 (2012).”
Gonzalez appeals the order which denied his motion to pro-
ceed in forma pauperis.
ASSIGNMENTS OF ERROR
Gonzalez generally claims, restated, that the district court
erred when it found that his action was frivolous and denied
his motion to proceed in forma pauperis. He claims that vari-
ous errors at his original criminal trial deprived the trial court
of jurisdiction. He specifically claims that the district court
for Johnson County erred when it failed to recognize that
the alleged violation of the Vienna Convention deprived the
district court for Dakota County of jurisdiction in his original
criminal case.
STANDARD OF REVIEW
[1] A district court’s denial of in forma pauperis status under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de

674 	290 NEBRASKA REPORTS
novo on the record based on the transcript of the hearing or the
written statement of the court. Peterson v. Houston, 284 Neb.
861, 824 N.W.2d 26 (2012).
ANALYSIS
Gonzalez generally claims that the district court erred when
it denied his motion to proceed in forma pauperis based on
its determination that his action for a writ of habeas corpus
was frivolous. Because we conclude that the claims asserted
by Gonzalez would not entitle him to habeas corpus relief, we
determine that the district court did not err when it denied his
motion to proceed in forma pauperis.
In Forma Pauperis and
Gonzalez’ Claims.
[2,3] Applications to proceed in forma pauperis are gov-
erned by § 25-2301.02. Except in those cases where the denial
of in forma pauperis status would deny a defendant his or her
constitutional right to appeal in a felony case, § 25-2301.02(1)
allows the court on its own motion to deny in forma pauperis
status on the basis that the legal positions asserted by the
applicant are frivolous or malicious, provided that the court
issue a written statement of its reasons, findings, and conclu-
sions for denial. Peterson v. Houston, supra. A frivolous legal
position pursuant to § 25-2301.02 is one wholly without merit,
that is, without rational argument based on the law or on the
evidence. Peterson v. Houston, supra. When an objection to an
application to proceed in forma pauperis is sustained, the party
filing the application shall have 30 days to proceed with an
action or appeal upon payment of fees, costs, or security. Id.;
§ 25-2301.02(1).
In his petition for a writ of habeas corpus, Gonzalez set forth
four claims that he alleged would entitle him to habeas corpus
relief. His claims were generally that (1) trial counsel waived
voir dire without Gonzalez’ informed consent, (2) trial counsel
waived a preliminary hearing without Gonzalez’ informed con-
sent, (3) the trial court erroneously admitted evidence of prior
bad acts, and (4) he was not advised of his rights under the
Vienna Convention.

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In order to determine whether these claims are frivolous or
have legal merit entitling Gonzalez to habeas corpus relief, we
must examine the nature of the claims. As an initial step in
our examination of Gonzalez’ claims, we review the principles
regarding habeas corpus relief.
Nebraska Habeas Corpus
Jurisprudence.
[4-6] Habeas corpus is a special civil proceeding providing
a summary remedy to persons illegally detained. Peterson v.
Houston, supra. See, Neb. Const. art. I, § 8; Neb. Rev. Stat.
§ 29-2801 (Reissue 2008). A writ of habeas corpus challenges
and tests the legality of a person’s detention, imprisonment, or
custodial deprivation of liberty. Peterson v. Houston, supra.
Habeas corpus requires the showing of legal cause, that is, that
a person is detained illegally and is entitled to the benefits of
the writ. Id.
[7,8] A writ of habeas corpus in Nebraska is limited in com-
parison to the writ in federal courts. See Peterson v. Houston,
284 Neb. 861, 824 N.W.2d 26 (2012). Under Nebraska law, an
action for habeas corpus is a collateral attack on a judgment
of conviction. Id. Only a void judgment may be collaterally
attacked. Id. Where the court has jurisdiction of the parties
and the subject matter, its judgment is not subject to collateral
attack. Id. Thus, a writ of habeas corpus will not lie to dis-
charge a person from a sentence of penal servitude where the
court imposing the sentence had jurisdiction of the offense and
the person of the defendant, and the sentence was within the
power of the court to impose. Id.
[9,10] A writ of habeas corpus is not a writ for correction
of errors, and its use will not be permitted for that purpose.
Peterson v. Houston, supra. The regularity of the proceed-
ings leading up to the sentence in a criminal case cannot be
inquired into on an application for a writ of habeas corpus,
because that inquiry is available only in a direct proceeding.
Id. Where jurisdiction has attached, mere errors or irregu-
larities in the proceedings, however grave, will not render
the judgment void, although they may render the judgment

676 	290 NEBRASKA REPORTS
erroneous and subject to being set aside in a proper proceeding
for that purpose. See id.
The limited availability of relief in Nebraska based on
habeas corpus is illustrated in our recent case of Peterson
v. Houston, supra. In that case, the petitioner alleged in a
petition for a writ of habeas corpus that he was being ille-
gally detained, because the information pursuant to which he
entered a plea was defective in certain respects and deprived
the trial court of jurisdiction. He also claimed that the con-
viction subjected him to double jeopardy and that he was
provided ineffective assistance of counsel in various respects.
In Peterson, we first concluded that the information contained
no deficiencies that would have deprived the trial court of
jurisdiction and that the petitioner’s allegations to the contrary
were wholly without legal merit. We then considered the peti-
tioner’s other claims, including, inter alia, claims of double
jeopardy and ineffective assistance of counsel, and concluded
that “[n]one of these provide a proper ground for granting a
writ of habeas corpus in Nebraska.” Id. at 869, 824 N.W.2d
at 34.
In Peterson, we reasoned that because the trial court had
jurisdiction, the petitioner’s claims of mere errors or irregu-
larities in the proceedings would not render the judgment
void, even though such claims, if proved, might render the
judgment erroneous and subject to be set aside in a proper
proceeding for that purpose. We therefore concluded that
because the claims would not support a writ of habeas cor-
pus, the legal positions asserted in the petition for a writ of
habeas corpus were frivolous, and that the district court did
not err when it denied the petitioner’s application to proceed
in forma pauperis.
Application of Nebraska Habeas Corpus
Jurisprudence and U.S. Supreme
Court Precedent Regarding
the Vienna Convention.
Based on the habeas corpus standards set forth above and
the reasoning in Peterson v. Houston, 284 Neb. 861, 824
N.W.2d 26 (2012), we determine that Gonzalez’ claims that

GONZALEZ v. GAGE 	677
Cite as 290 Neb. 671
trial counsel improperly waived voir dire and a preliminary
hearing and that the trial court made erroneous evidentiary
rulings are claims of mere errors or irregularities in the pro-
ceedings that did not deprive the trial court of jurisdiction
and did not render the judgment of criminal conviction void.
These claims, even if proved, would not entitle Gonzalez to
habeas corpus relief, and therefore, by applying the reasoning
illustrated in Peterson, we conclude that these claims were
frivolous and do not entitle Gonzalez to an order granting in
forma pauperis status.
Gonzalez’ claim that his rights under the Vienna Convention
were violated merits further discussion and analysis. This type
of claim has not been addressed by this state’s appellate courts,
but there is relevant U.S. Supreme Court precedent, which
we apply.
The appellate courts of this state appear to have addressed
the Vienna Convention in the following few reported cases:
In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767
N.W.2d 74 (2009); In re Interest of Antonio O. & Gisela O.,
18 Neb. App. 449, 784 N.W.2d 457 (2010); and In re Interest
of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). Each
of the foregoing cases involved provisions of the Vienna
Convention relating to proceedings for termination of paren-
tal rights; these cases did not involve article 36, upon which
Gonzalez relies. We note for completeness that recently, in
State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920
(2014), we decided an appeal and affirmed the dismissal of
a motion for postconviction relief in which the appellant had
raised, inter alia, a claim of an infringement of his rights under
the Vienna Convention. Although the appellant in Fernando-
Granados assigned error with respect to certain claims, he did
not claim error with respect to the allegation involving the
Vienna Convention and, as a result, our opinion in Fernando-
Granados does not offer guidance.
In the present case, Gonzalez’ claim involves article 36
of the Vienna Convention relating to criminal proceedings.
Gonzalez 	contends 	that 	the 	violation 	of 	these 	provisions
deprived the district court of jurisdiction and that he is there-
fore entitled to a writ of habeas corpus. We must therefore

678 	290 NEBRASKA REPORTS
review the law regarding the rights afforded under article 36
of the Vienna Convention to determine whether such rights are
enforceable individually and, in particular, whether a violation
of such rights would deprive a court presiding over a criminal
proceeding of jurisdiction and entitle a defendant to a writ of
habeas corpus.
Article 36, paragraph 1(b), of the Vienna Convention gen-
erally provides that when a foreign national is arrested, com-
mitted to prison or custody pending trial, or detained in any
other manner, authorities in the United States shall so inform
the consulate of the foreign national’s home country. The
paragraph provides that the foreign national’s communica-
tions with the consulate shall be forwarded without delay. The
paragraph further provides that U.S. “authorities shall inform
the person concerned without delay of his rights under this
sub-paragraph.”
The U.S. Supreme Court has discussed relevant issues related
to article 36 of the Vienna Convention in several opinions. In
two consolidated cases reported in Sanchez-Llamas v. Oregon,
548 U.S. 331, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006),
state court defendants sought to enforce what they asserted
were individual rights created by article 36. In the first case,
the criminal defendant sought suppression of his statements to
police as a remedy for a claimed violation of his rights under
article 36. In the second case, the defendant sought to raise a
claim of a violation of his various rights under article 36 in a
postconviction action.
In Sanchez-Llamas, the U.S. Supreme Court first noted that
both cases implicated the issue of whether article 36 grants
rights that may be invoked by individuals in a judicial pro-
ceeding. However, because the Court ultimately concluded
that neither defendant would be entitled to the relief sought,
the Court determined that it was “unnecessary to resolve the
question whether the Vienna Convention grants individuals
enforceable rights,” and for purposes of these cases, the Court
assumed without deciding that article 36 did grant such rights.
548 U.S. at 343. With that understanding, the Court con-
cluded with respect to the first case that “neither the Vienna
Convention itself nor our precedents applying the exclusionary

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rule support suppression of [the defendant’s] statements to
police.” 548 U.S. at 350. With regard to the second case, the
Court concluded that “claims under Article 36 of the Vienna
Convention may be subjected to the same procedural default
rules that apply generally to other federal-law claims,” 548
U.S. at 360, and that the defendant’s article 36 claim raised in
a state postconviction action was also subject to default under
the state’s procedural rules. Applying the procedural default
rules, the Court determined that because the defendant had not
raised the claims at trial, the rules barred the claim. We read
Sanchez-Llamas as approving the application of state jurispru-
dence substantively and procedurally to criminal defendants’
state court actions claiming violations of article 36, paragraph
1(b), of the Vienna Convention.
The U.S. Supreme Court considered 	article 36 of the
Vienna Convention in cases subsequent to Sanchez-Llamas. In
Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 170 L. Ed.
2d 190 (2008), the Court noted that the International Court of
Justice (ICJ) in Case Concerning Avena and Other Mexican
Nationals (Mexico v. United States of America), 2004 I.C.J. 12
(Mar. 31) (Avena), had determined that the United States had
violated article 36 of the Vienna Convention when it failed
to inform Mexican nationals of their rights under the Vienna
Convention. However, the Court determined in Medellin that
neither the ICJ’s decision nor a determination by the President,
through a Memorandum for the Attorney General directing
state courts to give effect to the ICJ’s decision, constituted
directly enforceable federal law that preempted state pro-
cedural rules, the application of which had been endorsed
in Sanchez-Llamas.
In Medellin, the Court characterized article 36 as non-self-
executing and observed that “[a] non-self-executing treaty,
by definition, is one that was ratified with the understanding
that it is not to have domestic effect of its own force.” 552
U.S. at 527. The Court also noted that implementation of ICJ
judgments is not provided for in the Vienna Convention. The
Court noted instead that it was necessary for Congress to enact
statutes implementing the treaty, and Congress had not taken
such action. The Court therefore concluded in Medellin that

680 	290 NEBRASKA REPORTS
the ICJ’s decision in Avena did not change the Court’s hold-
ing in Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S. Ct.
2669, 165 L. Ed. 2d 557 (2006), to the effect that the Vienna
Convention did not preclude the application of state law to a
claimed violation of article 36.
In Leal Garcia v. Texas, 564 U.S. 940, 131 S. Ct. 2866, 180
L. Ed. 2d 872 (2011), the Court noted that it had been 7 years
since the ICJ ruling in Avena and 3 years since the Court’s
decision in Medellin and that Congress had not yet enacted a
statute implementing the Vienna Convention or the ICJ ruling.
The Court concluded in Leal Garcia that relief for an alleged
Vienna Convention violation could not be given “on the ground
that Congress might enact implementing legislation.” 564 U.S.
at 942 (emphasis supplied).
Because the U.S. 	Supreme 	Court 	has not conclusively
decided that article 36 of the Vienna Convention does not cre-
ate individually enforceable rights, we take the approach that
the Court itself applied in Sanchez-Llamas. That is, we assume
without deciding that such rights exist, and then we decide
whether the remedy sought by Gonzalez—a writ of habeas cor-
pus—is a proper method to enforce such rights under state law.
We conclude that it is not.
With respect to jurisdiction, we note the case of U.S. v.
Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000), in which
a defendant claimed that he had not been advised of his right
to contact his consul in violation of article 36 of the Vienna
Convention. The U.S. Court of Appeals for the Eighth Circuit
analyzed the claim and stated that an alleged error based on
a claimed violation of individual rights under article 36 of
the Vienna Convention “does not constitute a jurisdictional
defect.” 207 F.3d at 1035. See, also, U.S. v. Gonzales, 339 F.3d
725 (8th Cir. 2003). We similarly determine that the violation
of the Vienna Convention alleged by Gonzalez is not a jurisdic-
tional defect and, thus, did not deprive the court of jurisdiction
of the offense and the person of the defendant and that it did
not void the sentence entered by the court.
With respect to the substance of Gonzalez’ claim, we note
that in Sanchez-Llamas, the Court concluded that the states
could apply their substantive and procedural jurisprudence to

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claims of violations of article 36 of the Vienna Convention
brought by state criminal defendants. We therefore apply
Nebraska jurisprudence regarding habeas corpus relief. As
noted above, habeas corpus relief in the form of discharge will
not lie in Nebraska where an alleged violation is a claim of
mere irregularity in the proceeding that does not deprive the
trial court of jurisdiction and does not render the judgment
void. See Peterson v. Houston, 284 Neb. 861, 824 N.W.2d
26 (2012).
Gonzalez’ 	assertion 	that 	his 	rights 	under 	the 	Vienna
Convention were violated, like his other claims discussed
above, is a claim of a mere error or irregularity in the pro-
ceedings that does not deprive the trial court of jurisdiction
and does not render the judgment void. Because the claims
Gonzalez raised in his petition for a writ of habeas corpus,
including the claimed violation of the Vienna Convention, were
not claims that would entitle him to a writ of habeas corpus, we
conclude that the district court did not err when it determined
that Gonzalez’ action was frivolous and therefore denied his
request to proceed in forma pauperis.
CONCLUSION
For the reasons explained above, we conclude that the dis-
trict court did not err when it determined that Gonzalez’ action
seeking a writ of habeas corpus was frivolous and denied
Gonzalez’ motion to proceed in forma pauperis. Accordingly,
we affirm.
affirmed.
cassel, J., not participating.