State v. Boeggeman

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. BOEGGEMAN
Cite as 316 Neb. 581
State of Nebraska, appellee, v.
Joseph C. Boeggeman, appellant.
___ N.W.3d ___
Filed May 10, 2024. 	No. S-22-644.
1. Postconviction: Constitutional Law: Proof: Appeal and Error. When
a district court denies postconviction relief without conducting an evi-
dentiary hearing, an appellate court determines de novo whether the
petitioner failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights as to render the judgment void or void-
able and, if so, whether the files and records affirmatively show that he
or she is entitled to no relief.
2. Jurisdiction: Appeal and Error. A party petitioning to bypass review
by the Nebraska Court of Appeals should identify how the appeal
implicates the factors set out in Neb. Rev. Stat. § 24-1106(2) (Cum.
Supp. 2022).
3. Postconviction: Constitutional Law: Judgments: Proof. Under the
Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004
(Reissue 2016), postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground that there
was a denial or infringement of his or her constitutional rights such that
the judgment was void or voidable.
4. Postconviction: Limitations of Actions. The 1-year limitation con-
tained within Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) governs all
postconviction motions, and a prisoner’s postconviction motion must be
filed within 1 year from one of the triggering events in the statute.
5. ____: ____. The 1-year limitation period contained within Neb. Rev.
Stat. § 29-3001(4) (Reissue 2016) is not subject to equitable tolling.
6. Postconviction. A district court should first consider and rule on any
pending motions to amend or supplement before determining whether
a postconviction motion should be overruled without an eviden-
tiary hearing.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:37 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. BOEGGEMAN
Cite as 316 Neb. 581
7. Postconviction: Constitutional Law: Judgments. Postconviction relief
is only available where a constitutional violation renders the judgment
void or voidable.
Appeal from the District Court for Sarpy County: Nathan
B. Cox, Judge. Affirmed.
Joseph C. Boeggeman, pro se.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Joseph C. Boeggeman appeals from the district court’s order
denying his motion for postconviction relief without an evi-
dentiary hearing. 1 Because Boeggeman’s motion was untimely
and equitable tolling does not apply to the 1-year limitation of
§ 29-3001(4), we affirm.
BACKGROUND
Boeggeman was tried in Sarpy County, Nebraska, under the
interstate Agreement on Detainers. 2 During the pendency of
the Nebraska criminal proceedings, he was serving an unre-
lated Massachusetts sentence. 3 Boeggeman pleaded no contest
to two counts of attempted first degree sexual assault and
one count of attempted third degree sexual assault. After his
sentencing hearing in February 2017, and before the time
for filing an appeal had expired, Boeggeman was returned to
Massachusetts, pursuant to the Agreement on Detainers, where
he remained until January 2020.
1 See Neb. Rev. Stat. § 29-3001 (Reissue 2016).
2 See Neb. Rev. Stat. § 29-759 (Reissue 2016).
3 See § 29-759, art. V.

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Nebraska Supreme Court Advance Sheets
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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
Boeggeman 	filed 	a 	verified 	motion 	for 	postconviction
relief on December 21, 2020, seeking “to vacate, set aside or
modify (clarify)” his sentence entered on February 6, 2017.
Boeggeman’s motion was premised on his assertion that there
is a discrepancy or ambiguity between the trial court’s pro-
nounced sentence and its written sentencing order as to whether
his Nebraska sentences were ordered to run concurrent with or
consecutive to the Massachusetts sentence.
Boeggeman’s Sentence
After Boeggeman pleaded no contest, the trial court made
the following sentencing pronouncement on February 6, 2017:
It will be the judgment of the Court [that Boeggeman]
be sentenced on [both counts of attempted first degree
sexual assault] to a term of not less than ten years nor
more than 20 years. On [the charge of attempted third
degree sexual assault], [Boeggeman] will be sentenced to
serve one year. He’s granted 199 days’ credit. And these
charges [are] to be served concurrently with each other.
Immediately after the court’s pronouncement, the State
inquired as to the concurrent or consecutive nature of the
Nebraska sentences in relation to the Massachusetts sentence
Boeggeman was serving at the time. The entirety of that
exchange was as follows:
[The State:] Your Honor, I would ask the Court to state
on the record whether or not this sentence is concurrent
or consecutive to the sentence he serves in Massachusetts.
THE COURT: I can’t do anything with concurrent.
This sentence is effective as of today. I can’t make it
consecutive to an out-of-state sentence. I don’t have that
authority.
[The State:] It’s — with all due respect, it’s my under-
standing with the folks who run the interstate compact
on detainers that that will determine where [Boeggeman]
ends up in the next several weeks, months and years. In
other words —

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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
THE COURT: Well, he’s going to be in our facility
also.
[The State:] Only if it’s concurrent. If it’s consecu-
tive, then he will be shipped to Massachusetts to finish
his term.
THE COURT: Well, it’s concurrent.
[Defense counsel:] Judge —
THE COURT: I can’t — I can’t do anything — you
know, he’s a parole violator out of wherever.
[The State:] Okay.
THE COURT: All right?
[Defense counsel:] Judge, did you give him credit for
the 199 days?
THE COURT: Yeah.
[Defense counsel:] Thank you, sir.
THE COURT: With that, he’s remanded back for trans-
portation to the Department of Corrections.
[The State:] I apologize, Your Honor, I just need clari-
fication, for my own edification. Is there — is what the
Court is saying is that this sentence —
THE COURT: This sentence starts today.
[The State:] But is the Court making any ruling as to
whether or not it’s concurrent or consecutive to the sen-
tence in Massachusetts?
THE COURT: I can’t make it — I can’t do that. I don’t
have that authority.
[The State:] Thank you.
THE COURT: That’s — that’s a separate sentence, as
far as I can tell.
[Defense counsel:] If — a moment ago, sir, you said it
was to be concurrent with the sentence in Massachusetts.
THE COURT: I can’t — a sentencing order that I enter
becomes effective the date I enter it.
[Defense counsel:] Okay.
THE COURT: Unless I make it consecutive to some
sentence that is being served here.

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Nebraska Supreme Court Advance Sheets
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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
[Defense counsel:] Okay. Thank you.
THE COURT: You know, if they want to ship him back
there and then he can start here, that’s fine.
Later that day, the court issued its written sentencing order,
which stated in relevant part that
[Boeggeman] 	be 	committed 	to 	the 	Department 	of
Corrections of the State of Nebraska for a term of
NOT LESS THAN 10 YEARS, NOR MORE THAN
20 YEARS ON [both counts of attempted first degree
sexual assault]; ONE YEAR on [the charge of attempted
third degree sexual assault]. [Boeggeman] is granted
199 days credit against said sentence for time spent in
incarceration awaiting disposition on this charge. This
sentence to [run] concurrently with each other.
. . . .
. . . [Boeggeman] is remanded to the custody of
the Sheriff of Sarpy County, Nebraska, for placement
in the Sarpy County Jail pending transportation to the
Nebraska Dept. of Corrections to serve the sentence
imposed herein.
. . . [C]ommitment issued accordingly. Clerk to deliver
[a] certified copy of this judgement and sentence to the
Sarpy County Sheriff.
In his postconviction motion, Boeggeman alleged that he
expressed concern with his trial counsel regarding whether
his Nebraska sentences were to be served concurrently with
or consecutively to the Massachusetts sentence he was serv-
ing at the time and that his trial counsel advised him that any
needed clarification could be addressed upon Boeggeman’s
return to Nebraska after he served the remainder of his
Massachusetts 	sentence. 	The 	motion 	stated, 	“[H]owever,
[Boeggeman] urged his counsel to file an immediate appeal
. . . but the appeal was not filed and [he] was returned to
the custody of the Massachusetts Department of Correction
without further communication from his defense counsel” on
February 22, 2017. The motion further stated:

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. BOEGGEMAN
Cite as 316 Neb. 581
It was not until [Boeggeman] return[ed] to [Massachusetts]
that he discovered that the written[ ] sentencing order
was silent on the matter of the concurrent or consecutive
nature of the Nebraska sentence[,] and both prison sys-
tems were interpreting the omission as [indicating that]
the Nebraska sentence [was] to [be] served consecutive
[to] the Massachusetts sentence.
Motion for Order Nunc Pro Tunc
When Boeggeman was returned to Nebraska in 2020, he
contacted his trial counsel. Trial counsel then filed a motion for
an order nunc pro tunc to correct Boeggeman’s written sentenc-
ing order. The motion sought correction of the written order
“to accurately reflect the concurrent nature of the [Nebraska
sentences with the Massachusetts sentence], as stated on the
record at the Sentencing Hearing.”
In August 2020, the trial court, with a successor judge pre-
siding, concluded that an order nunc pro tunc was improper
because the trial court was being asked to interpret the sen-
tencing court’s pronouncement rather than correct a scriv-
ener’s error. The court overruled the motion, stating that “[i]f
the pronouncement of sentence was flawed or erroneous, then
that was an issue for appeal and not for an order nunc pro
tunc.” Boeggeman asserted in his postconviction motion that
“[a]n appeal [from the denial of an order nunc pro tunc] was
not undertaken because an appeal on the merits . . . would
[have] been fruitless,” which appears to reflect the advice of
his trial counsel.
Postconviction Filings
On December 21, 2020, Boeggeman filed his verified motion
for postconviction relief. Upon Boeggeman’s filing of his
motion for postconviction relief, the district court ordered the
State to file a written response.
Boeggeman subsequently filed several motions concur-
rently with one another, which included a motion for leave
to amend his postconviction motion wherein he set forth

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Nebraska Supreme Court Advance Sheets
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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
additional facts absent in his motion for postconviction relief
and sought alternative relief. After these filings, Boeggeman
filed a “motion to clarify” that his motion to amend was
intended to be a motion to supplement his postconviction
motion. We refer to the motion to amend as Boeggeman’s
“supplemental motion.”
In his supplemental motion, Boeggeman asserted that the
Sarpy County Attorney’s office was complicit in his uncon-
stitutional confinement in Massachusetts’ custody when he
was held for a civil commitment proceeding after he com-
pleted the service of his Massachusetts sentence. Boeggeman
also alleged that after he filed his postconviction motion,
he became aware of a Massachusetts court decision. The
Massachusetts decision stated that the initiation of civil com-
mitment proceedings in a situation identical to Boeggeman’s
was held to be violative of procedural due process because the
initiation of indefinite detention based on a sexual offender’s
sexual dangerousness to the public was premature when the
sexual offender will be released into the custody of another
jurisdiction. 4
Boeggeman alleged that 10 days before completing his
Massachusetts sentence, the Commonwealth of Massachusetts
initiated a civil commitment proceeding against him, alleg-
ing that he was “a sexually dangerous person.” As a result,
Boeggeman was temporarily committed by the Commonwealth
pending the outcome of those proceedings.
Boeggeman further alleged that during the commitment
proceedings, the attorney for the Commonwealth “stated for
the record, ‘Nebraska said we can keep him as long as we
need him; his sentence doesn’t start till he gets there,’ or
[something] to that effect.” Boeggeman also alleged that the
Sarpy County Attorney’s office provided consent on behalf
of the State for Boeggeman to remain in the custody of the
4 See Commonwealth v. Venetucci, 98 Mass. App. 210, 153 N.E.3d 422
(2020). See, also, Commonwealth v. Venetucci, 486 Mass. 1106, 157
N.E.3d 605 (2020) (denying appellate review).

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Nebraska Supreme Court Advance Sheets
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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
Commonwealth when it did not have the legal authority to
do so and that the State participated in the Commonwealth’s
civil commitment proceeding by providing the Commonwealth
with “information contained in [the] case . . . including victim-
witness depositions.”
The Massachusetts civil commitment proceeding was dis-
missed in December 2019, after Boeggeman was found not
to be a sexually dangerous person, and he was returned to
Nebraska’s custody in late January 2020. In total, after the
completion of his Massachusetts sentence, Boeggeman was
held in Massachusetts’ custody for approximately 14 additional
months under temporary civil commitment.
Finally, Boeggeman’s supplemental motion sought alterna-
tive relief in the form of a credit on his Nebraska sentence for
the time he was held in Massachusetts’ custody under the tem-
porary civil commitment.
District Court’s Order
As framed by the district court, Boeggeman’s verified post-
conviction motion asserted two primary grounds for relief:
(1) that the trial court plainly erred by failing to clarify
whether Boeggeman’s Nebraska sentences were to be served
concurrently with or consecutively to a Massachusetts sen-
tence that Boeggeman was then-presently serving and (2) that
Boeggeman’s trial counsel was ineffective for failing to file a
direct appeal to clarify the concurrent or consecutive nature of
the Nebraska sentences.
The district court overruled Boeggeman’s postconviction
motion without an evidentiary hearing, concluding that (1) his
claims were time barred because his motion was filed more
than 1 year after the time for filing a direct appeal expired,
(2) his claim of trial court error was procedurally barred
because he could have brought the issue on direct appeal,
and (3) assuming arguendo that his ineffective assistance
of counsel claim was not time barred, Boeggeman failed to
articulate facts showing that he is entitled to relief because he

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. BOEGGEMAN
Cite as 316 Neb. 581
failed to sufficiently allege the deficiency of his counsel and
any resulting prejudice. As a result, the court overruled all of
Boeggeman’s related motions as moot.
Boeggeman filed a timely motion to alter or amend, which
the court overruled. Boeggeman appeals from that order.
Petition to Bypass
On appeal, the State moved for summary affirmance. The
Nebraska Court of Appeals overruled the State’s motion. The
State then petitioned to bypass the Court of Appeals, sug-
gesting that bypass was appropriate under Neb. Rev. Stat.
§ 24-1106(2)(a) (Cum. Supp. 2022) because Boeggeman’s
appeal presents a novel legal question.
Boeggeman objected to the State’s petition on two grounds.
First, he objected because the State failed to identify a spe-
cific reason that made bypass appropriate. He also objected
because the State failed to provide a separate brief in support
of its petition, which Boeggeman erroneously asserted was
required under Neb. Ct. R. App. P. § 2-102(B) (rev. 2022), as
discussed below.
Even though the State failed to identify the purported novel
legal question this appeal presents, based on our review of the
appellate record and briefs, we granted the State’s petition.
ASSIGNMENTS OF ERROR
Boeggeman assigns, reordered and restated, that the district
court erred by concluding that (1) his postconviction motion
was time barred, (2) his claim of trial court error was proce-
durally barred, and (3) his ineffective assistance of counsel
claim was insufficiently alleged. Boeggeman also assigns and
argues his underlying claims that (4) the sentencing court
erred by not clearly stating in its written sentencing order that
his Nebraska sentences were to be served concurrently with
his Massachusetts sentence and that (5) his trial counsel was
ineffective for failing to file and perfect a direct appeal when
Boeggeman directed him to do so.

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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
STANDARD OF REVIEW
[1] When a district court denies postconviction relief with-
out conducting an evidentiary hearing, an appellate court deter-
mines de novo whether the petitioner failed to allege sufficient
facts to demonstrate a violation of his or her constitutional
rights as to render the judgment void or voidable and, if so,
whether the files and records affirmatively show that he or she
is entitled to no relief. 5
ANALYSIS
Petitioning for Bypass
As an initial matter, we note that effective January 1, 2022,
§ 2-102(B)(5) provides that “[n]o separate brief in support . . .
is required for a petition to bypass . . . .”
[2] Although a separate brief is no longer required, we
encourage parties seeking bypass to specifically identify the
ground or grounds on which they assert bypass is appropri-
ate, particularly when the grounds are not apparent. 6 A party
petitioning to bypass review by the Court of Appeals should
identify how the appeal implicates the factors set out in
§ 24-1106(2). Any party who fails to specifically state the
reasons it seeks bypass does so at the party’s own peril. 7
Timeliness
[3] Under the Nebraska Postconviction Act, 8 postconvic-
tion relief is available to a prisoner in custody under sen-
tence who seeks to be released on the ground that there was
a denial or infringement of his or her constitutional rights
5 See, State v. Cox, 314 Neb. 104, 989 N.W.2d 65 (2023); State v. Jennings,
312 Neb. 1020, 982 N.W.2d 216 (2022).
6 Cf., State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023); State v. Buol,
314 Neb. 976, 994 N.W.2d 98 (2023); County of Lancaster v. County of
Custer, 313 Neb. 622, 985 N.W.2d 612 (2023).
7 Id.
8 See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

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STATE v. BOEGGEMAN
Cite as 316 Neb. 581
such that the judgment was void or voidable. 9 Pertinent to
Boeggeman’s appeal, § 29-3001(1) provides:
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, in the court which imposed such
sentence, stating the grounds relied upon and asking the
court to vacate or set aside the sentence.
The Nebraska Postconviction Act prescribes a 1-year period
of limitation to the filing of a postconviction motion. As appli-
cable to Boeggeman’s postconviction motion, 10 § 29-3001(4)
provides:
A one-year period of limitation shall apply to the filing of
a verified motion for postconviction relief. The one-year
limitation period shall run from the later of:
(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
9 See State v. Cox, supra note 5.
10 But see 2023 Neb. Laws, L.B. 50, § 18 (amending § 29-3001(4) to include
additional triggering event when petition of writ of certiorari filed with
U.S. Supreme Court).

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newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review[.]
[4] We have recognized that the 1-year limitation contained
within § 29-3001(4) governs all postconviction motions, and
a prisoner’s postconviction motion must be filed within 1
year from one of the triggering events in the statute. 11 We
have also recognized that the 1-year period of limitation is
not a jurisdictional requirement. 12 Instead, it is in the nature
of a statute of limitations and can be waived by the State
when the State fails to raise it as an affirmative defense in
the district court. 13 Even still, if, as part of its preliminary
review, the trial court finds the postconviction motion affirm-
atively shows—either on its face or in combination with
the files and records before the court—that it is time barred
under § 29-3001(4), the court is permitted, but not obliged,
to sua sponte consider and rule upon the timeliness of the
motion. 14 Whether to rule sua sponte on the timeliness of a
postconviction motion is a matter left to the discretion of the
district court. 15
In Boeggeman’s case, the State raised in the district court
the issue of the timeliness of Boeggeman’s motion under
§ 29-3001(4)(a). On appeal, the State argues that Boeggeman’s
motion is untimely under § 29-3001(4)(a) because his judg-
ment became final on March 9, 2017, and he filed his postcon-
viction motion on December 21, 2020.
Boeggeman does not contest that his motion was untimely
filed under § 29-3001(4)(a). However, Boeggeman argues
that the doctrine of equitable tolling should apply to his
11 See State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022), cert. denied
___ U.S. ___, 143 S. Ct. 1026, 215 L. Ed. 2d 192 (2023).
12 State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015), disapproved on
other grounds, State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
13 See id.
14 State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018); State v. Amaya, 298
Neb. 70, 902 N.W.2d 675 (2017).
15 See State v. Torres, supra note 14.

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Cite as 316 Neb. 581
postconviction motion and that the district court abused its
discretion when it failed to equitably toll his limitation period.
The doctrine of equitable tolling permits a court to excuse a
party’s failure to comply with the statute of limitations where,
because of disability, irremediable lack of information, or other
circumstances beyond his or her control, the plaintiff cannot be
expected to file suit on time. 16
In support, Boeggeman points us to State v. Harper, 17
where we held that the phrase “in custody under sentence,” as
used in § 29-3001(1), “requires that a prisoner seeking relief
under the act must be in actual custody in Nebraska under
a Nebraska sentence.” 18 We noted that our reading of “in
custody under sentence” is harmonious with the Agreement
on Detainers and recognized that under the Agreement on
Detainers, “Nebraska had only temporary custody of the
defendant” for the sole purpose of prosecuting the untried
charges. 19 Because Nebraska’s temporary custody terminated
when the defendant was delivered back to the “[s]ending
state,” 20 the defendant was subject to the sending state’s juris-
diction, and Nebraska ceased to have any authority. Therefore,
we determined in Harper that the district court was without
jurisdiction over the defendant’s postconviction motion.
16 State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019); State v. Conn, 300
Neb. 391, 914 N.W.2d 440 (2018); In re Estate of Fuchs, 297 Neb. 667,
900 N.W.2d 896 (2017).
17 State v. Harper, 233 Neb. 841, 448 N.W.2d 407 (1989).
18 Id. at 843, 448 N.W.2d at 408 (district court lacked jurisdiction over
postconviction motion filed by prisoner in Iowa custody). See, State
v. Eutzy, 242 Neb. 851, 496 N.W.2d 529 (1993) (postconviction relief
unavailable to prisoner incarcerated in Florida); State v. Whitmore, 234
Neb. 557, 452 N.W.2d 31 (1990) (postconviction relief unavailable to
prisoner in federal custody). See, also, State v. York, 278 Neb. 306,
770 N.W.2d 614 (2009) (individual subject to registration requirements
under Sex Offender Registration Act not in custody under sentence under
Nebraska Postconviction Act).
19 State v. Harper, supra note 17, 233 Neb. at 843, 448 N.W.2d at 408.
20 § 29-759, art. II.

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Accordingly, Boeggeman reasons that because the district
court lacked jurisdiction to hear his postconviction motion
while he was in Massachusetts’ custody, he had a recognizable
legal disability in filing his postconviction motion; thus, the
court should have exercised its discretion and tolled the limita-
tions period for the filing of his motion.
In response, the State argues that equitable tolling should
not apply to motions for postconviction relief because the act
does not expressly provide for any such tolling. It contends
that “[h]ad the Legislature intended to exempt defendants,
like Boeggeman, from the 1-year limitation period, it could
have easily said so.” 21 The State takes the position that in
light of § 29-3001(4)(a), postconviction relief is simply not
available to prisoners who are in the custody of another juris-
diction for the entirety of the year following the finality of
their judgment.
In its briefing, the State also argued that even if equitable
tolling is applicable to the 1-year limitation period, it should
not apply to Boeggeman because “[t]he only facts [he] cited to
support equitable tolling was his lack of access to (1) his trial
counsel and (2) Nebraska legal materials.” 22 However, at oral
argument, the State seemed to abandon this position.
The State conceded at oral argument that if equitable tolling
can apply to the limitation period set forth in § 29-3001(4),
Boeggeman would be entitled to an evidentiary hearing on
his claim of ineffective assistance of counsel. 23 To that end,
the State asked, for the first time, that we abrogate Harper,
reinterpret § 29-3001(1), and hold that a district court has
jurisdiction to entertain postconviction motions filed by pris-
oners not in the custody of Nebraska, and on that basis, affirm
the district court’s conclusion that Boeggeman’s motion was
time barred.
21 Brief for appellee at 17.
22 Id. at 18.
23 See State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).

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Boeggeman’s case marks the fifth time we have been asked
to consider whether equitable tolling may be applied to the
1-year limitation period set forth in § 29-3001(4). 24 Previously,
we have declined to decide the question because the facts
of those prior cases did not support the application of equi-
table tolling. 25
Boeggeman notes that we have explicitly
not foreclose[d] consideration of the possibility that there
are circumstances under which equitable tolling may
apply or that the limitation period may be tolled for a
person who was [not in Nebraska’s] custody during the
entire limitation period and arguably had no opportu-
nity to file a postconviction action within the limitation
period. 26
He asserts that he is such a person because “it would have
been impossible for [him] to successfully file a motion for
postconviction relief [because] he was not in the custody of
Nebraska at any time during the period of limitations in which
it had to be filed and no amount of diligence could overcome
the jurisdictional barrier.” 27 However, even if Boeggeman is
correct and he would be entitled to equitable tolling based
on his circumstances, in order to equitably toll his limitation
period, the 1-year limitation period provided by § 29-3001(4)
must be subject to equitable tolling. It is not.
We have previously noted that the U.S. Supreme Court
has held that the similarly worded limitations period under
28 U.S.C. § 2244(d) (2018), governing habeas actions filed
by prisoners in state custody, is subject to equitable tolling if
the prisoner shows that (1) he or she has been pursuing his or
24 See, State v. Hill, 310 Neb. 647, 968 N.W.2d 96 (2021); State v. Mata,
supra note 16; State v. Conn, supra note 16; State v. Huggins, 291 Neb.
443, 866 N.W.2d 80 (2015).
25 See id.
26 State v. Huggins, supra note 24, 291 Neb. at 454, 866 N.W.2d at 87-88.
27 Reply brief for appellant at 2.

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her rights diligently and (2) some extraordinary circumstance
stood in the way and prevented timely filing of a petition. 28
However, the Nebraska Postconviction Act differs from a fed-
eral habeas action and does not have the broad reach of similar
acts of some other states. 29 Although many states have adopted
a unitary postconviction remedy that has replaced all exist-
ing procedures and encompasses all claims, whether factual
or legal in nature, for reviewing the validity of judgments of
conviction, Nebraska has not. 30
“The remedy provided by [the Nebraska Postconviction
Act] is cumulative . . . .” 31 A cumulative remedy is created
by statute and is in addition to another remedy that still
remains in force. 32 For example, Nebraska statutes still pro-
vide for motions for a new trial 33 and writs of habeas cor-
pus. 34 We also continue to recognize common-law remedies
such as the withdrawal of an entered plea 35 and writ of error
coram nobis. 36 Although we have construed the Nebraska
Postconviction Act to be the primary procedure for bringing
collateral attacks on final judgments in criminal cases based
28 State v. Huggins, supra note 24 (citing Holland v. Florida, 560 U.S. 631,
130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010)). See, also, 28 U.S.C. § 2255
(2018 & Supp. IV 2022).
29 See State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
30 See id. See, also, ABA Standards of Criminal Justice, Postconviction
Remedies, Standard 22-1.1 (2d ed. 1980).
31 § 29-3003.
32 State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015); State v. Turner,
supra note 29.
33 See Neb. Rev. Stat. §§ 29-2101 to 29-2103 (Reissue 2016).
34 See Neb. Rev. Stat. §§ 29-2801 to 29-2824 (Reissue 2016 & Cum. Supp.
2022).
35 See, e.g., State v. Muratella, 314 Neb. 463, 991 N.W.2d 25 (2023); State v.
Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
36 See, e.g., State v. Harris, supra note 32; State v. Turner, supra note 29;
Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).

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upon constitutional principles, 37 § 29-3003 expressly has not
foreclosed “relief under another remedy” when appropriate. 38
In Boeggeman’s case, there is no dispute that his sentences
were imposed when the trial court pronounced his sentences
at the sentencing hearing. Certainly, a sentence of imprison-
ment should be sufficiently certain so that in and of itself,
it advises the accused, and those charged with the execu-
tion, of its duration. 39 Boeggeman’s ultimate position is that
his Nebraska sentences were ordered to run concurrently
with his prior Massachusetts sentence and that the Nebraska
Department of Correctional Services has misinterpreted his
sentences to run consecutively to the Massachusetts sentence.
Yet, if Boeggeman’s contention is true, postconviction relief
is not the only remedy available to him. At a minimum,
an application for a writ of habeas corpus is available to
Boeggeman should he continue to be confined beyond the
completion date of his Nebraska sentences as ordered by the
trial court.
We 	have 	recognized 	that 	the 	Legislature 	designed 	the
Nebraska Postconviction Act “to meet modern judicial require-
ments, and [to] afford an adequate corrective process for
hearing and determining alleged violations of federal and
state constitutional guarantees.” 40 Its procedures were intended
to be swift, simple, and easily invoked. 41 The Legislature’s
37 See, State v. Hill, supra note 24; State v. Smith, 288 Neb. 797, 851 N.W.2d
665 (2014); State v. Gonzalez, supra note 35.
38 But see State v. Gonzalez, supra note 35.
39 State v. Jurgens, 187 Neb. 557, 192 N.W.2d 741 (1971). See 1993 Neb.
Laws, L.B. 529, § 1 (codified at Neb. Rev. Stat. § 29-2204(c) (Cum.
Supp. 2022)). See, also, e.g., State v. Fitzgerald, 174 N.H. 722, 731, 274
A.3d 581, 589 (2022) (“‘[d]ue process requires that the court inform
the defendant at the time of sentencing in plain and certain terms what
punishment it is exacting . . .’”).
40 State v. Losieau, 180 Neb. 696, 699, 144 N.W.2d 435, 437 (1966). See
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
41 State v. Robertson, supra note 40; State v. Losieau, supra note 40.

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institution of a 1-year limitation period serves those goals. 42
Accordingly, 	we 	have 	previously 	declined 	to 	recognize
common-law remedies for the purpose of asserting time-
barred postconviction claims, as doing so would undermine
the purpose of the Legislature in enacting § 29-3001(4). 43
[5] Likewise, because other remedies remain available under
Nebraska law, we now hold that the 1-year limitation period
contained within § 29-3001(4) is not subject to equitable toll-
ing. Accordingly, the district court did not err in concluding
that Boeggeman’s postconviction motion was time barred.
Motions to Amend or Supplement
Postconviction Motions
There is one other issue that begs mention. The district
court did not consider Boeggeman’s supplemental motion
because Boeggeman’s postconviction motion was time barred.
However, in his supplemental motion, Boeggeman alleged
additional facts not contained in his previously filed postcon-
viction motion.
[6] In State v. Mata, 44 we determined that the district
court abused its discretion when it overruled a postconvic-
tion motion without first granting leave to amend when such
a request was pending. We explicitly recognized that “federal
decisions have held that it is an abuse of discretion for the
district court to dismiss a suit on the basis of the original
complaint without first considering and ruling on a pending
42 See 2011 Neb. Laws, L.B. 137, § 1 (codified at § 29-3001(4)).
43 See State v. Smith, supra note 37. See, e.g., State v. Muratella, supra
note 35; State v. Jerke, 302 Neb. 372, 923 N.W.2d 78 (2019); State v.
Mamer, 289 Neb. 92, 853 N.W.2d 517 (2014); State v. Gonzalez, supra
note 35. Cf., State v. Boone, 314 Neb. 622, 992 N.W.2d 451 (2023); State
v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005); State v. Louthan, 257
Neb. 174, 595 N.W.2d 917 (1999).
44 State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010), disapproved on
other grounds, State v. Robertson, supra note 40 (holding civil pleading
rules do not apply to postconviction proceedings).

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motion to amend.” 45 A district court should first consider and
rule on any pending motions to amend or supplement before
determining whether a postconviction motion should be over-
ruled without an evidentiary hearing. 46
[7] That said, the district court did not abuse its discretion in
this case. Postconviction relief is only available where a con-
stitutional violation renders the judgment void or voidable. 47
Because Boeggeman’s supplemental allegations all occurred
after his judgment was entered and have no bearing on the
underlying judgment, relief under the Nebraska Postconviction
Act is not appropriate.
CONCLUSION
Boeggeman’s postconviction motion was filed outside of the
1-year limitation period that ran from the date his judgment
of conviction became final. Accordingly, his postconviction
motion was untimely, and he is not entitled to relief under the
Nebraska Postconviction Act.
Affirmed.
45 Id. at 855, 790 N.W.2d at 720.
46 See, e.g., State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018); State v.
Robertson, supra note 40.
47 See § 29-3001(1).