Deckard v. Cotton

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
Nathaniel Deckard, appellant, v.
Rosalyn Cotton et al., appellees.
___ N.W.3d ___
Filed August 1, 2025. 	No. S-24-144.
1. Actions: Mandamus: Judgments: Appeal and Error. An action for a
writ of mandamus is a law action. In a bench trial of a law action, the
trial court’s factual findings have the effect of a jury verdict, and an
appellate court will not disturb those findings unless they are clearly
erroneous.
2. Judgments: Statutes: Appeal and Error. Questions of law and statu-
tory interpretation require an appellate court to reach a conclusion inde-
pendent of the decision made by the court below.
3. Mandamus: Words and Phrases. Mandamus is a law action and is
defined as an extraordinary remedy, not a writ of right, issued to compel
the performance of a purely ministerial act or duty, imposed by law
upon an inferior tribunal, corporation, board, or person, where (1) the
relator has a clear right to the relief sought, (2) there is a corresponding
clear duty existing on the part of the respondent to perform the act, and
(3) there is no other plain and adequate remedy in the course of the law.
4. Mandamus. An act or duty is ministerial only if there is an absolute
duty to perform in a specified manner upon the existence of certain
facts.
5. Sentences: Probation and Parole: Words and Phrases. The provisions
of Neb. Rev. Stat. § 83,1,118(2) (Cum. Supp. 2022) create a mathemati-
cal operation of subtraction in which the “good time” is the subtrahend
(the amount being taken away), and the “maximum term” is the minuend
(the amount from which good time is subtracted), the difference of
which results in years, which dictates the parole discharge date.
6. Sentences. A life sentence, by its very nature, is indefinite. It is not
possible to determine the number of years which an offender may live
serving his or her life sentence.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:03 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
7. Constitutional Law: Convictions: Sentences. There is no constitu-
tional or inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence.
8. Constitutional Law: Statutes: Sentences: Time. Not every retroac-
tive procedural change creating a risk of affecting an inmate’s terms
or conditions of confinement is prohibited by ex post facto principles.
The question is a matter of “degree.” The controlling inquiry is whether
retroactive application of the change in the law created a sufficient risk
of increasing the measure of punishment attached to the covered crimes.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Nathaniel Deckard, pro se.
Michael T. Hilgers, Attorney General, Joseph W. McKechnie,
Timothy M. Young, and Shaianne Sunagawa, Senior Certified
Law Student, for appellees.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Bergevin, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Nathaniel Deckard filed this mandamus action in the dis-
trict court for Lancaster County in which he alleged that the
Nebraska Board of Parole (the Board) has a clear ministerial
duty under Neb. Rev. Stat. § 83-192(3) (Reissue 1971) to
provide Deckard with a parole discharge date. At the time the
action was filed, Deckard was incarcerated at the Nebraska
State Penitentiary and was parole eligible, but the Board
had not determined the time of his discharge from parole.
Deckard’s petition alleged that his date of mandatory discharge
from parole should be calculated under the statutes in force
when he was convicted in 1974 and that further, under the
Board’s practices at that time, “there was no such phenomenon
as a ‘life-time parolee’ in Nebraska.” The district court denied
Deckard’s petition, and he appeals. Because the Board does

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
not have a clear ministerial duty to set a discharge date for a
parolee serving a life sentence, we affirm.
II. STATEMENT OF FACTS
At the time these proceedings were initiated, Deckard was an
inmate in the Nebraska Department of Correctional Services.
In 1974, Deckard was convicted and sentenced to life in prison
on a second degree murder conviction and to 10 years in
prison on an escape conviction. The sentences were ordered
to be served concurrently. At the time of his sentencing on the
murder conviction, he was subject to a minimum term of 10
years’ imprisonment and a maximum term of life imprison-
ment prior to the time he would be eligible for parole. See
State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006). See,
also, Neb. Rev. Stat. §§ 28-402 (Reissue 1964) and 83-1,105
(Cum. Supp. 1974).
Deckard was initially released on parole after serving 12½
years. In 1995, his parole was revoked due to a misdemeanor
theft charge and drug use. Subsequently, Decker unsuccessfully
sought postconviction relief, the denial of which we affirmed
in State v. Deckard, supra.
Deckard was again granted parole in March 2016. According
to the petition, in January 2020, a parole officer informed
Deckard that he scored a “‘“moderate risk”’” under the Board’s
“risk and needs assessment tool” and that he would require a
higher level of supervision. The higher level of supervision
included continuous electronic ankle bracelet monitoring; a 10
p.m. curfew; a travel restriction to Douglas County, Nebraska;
and a change of urinalysis schedule from “random/probable
cause” to “on call/on demand.” Deckard’s parole was revoked
in 2022, and he was reincarcerated. In August 2023, he was
informed by the Board during a parole review that when
parole would be granted, he would be a lifetime parolee. After
the 2023 review, Deckard’s parole hearing was deferred until
August 2024.
In November 2023, Deckard filed a petition against the
Board’s 	members, 	in 	their 	official 	capacities, 	seeking

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
mandamus. He alleged that he was parole eligible and argued
that the Board had a duty to determine the time of his discharge
from parole under § 83-192(3) (Reissue 1971).
The petition alleged that lifetime parole did not exist when
he began his sentence in April 1974. In support of this alle-
gation, Deckard named several similarly situated individuals
whom he alleged were discharged from parole according to the
statutes and the Board’s policies that were in force at that time.
Deckard requested that the Board follow a “well-established
practice” from the 1970s “to discharge a second degree lifer’s
parole term after 2 to 3 years of good behavior.”
Deckard further claimed that the risk and needs assessment
tool that led to the intensification of his parole supervision did
not exist when he was first incarcerated. He believes that under
parole statutes and policies of the Board in effect in April
1974, he should have been discharged from parole before his
parole was revoked in 2022. He alleged that the 2018 amended
statute (quoted later in this opinion), as applied to him, con-
stituted an ex post facto law because it enhanced the penalties
that did not exist when the offense was committed.
1. Parole Statutes
At the time that Deckard’s sentence commenced in 1974,
the relevant statutes provided, inter alia: “The Board of Parole
shall: . . . (3) Determine the time of discharge from parole,”
§ 83-192 (Reissue 1971), and “[t]he Board of Parole may dis-
charge a parolee from parole at any time if such discharge is
compatible with the protection of the public and is in the best
interest of the parolee,” Neb. Rev. Stat. § 83-1,118(2) (Reissue
1971). Section 83-1,118(3) (Reissue 1971) provided that the
Board “shall discharge a parolee . . . when the time served in
the custody of the Division of Corrections and the time spent
on parole equals the maximum term reduced by his parole
good time reductions but not reduced by his institutional good
time reductions.”
The parole statutes changed in 2018. Section 83-192 was
revised to state, in relevant part: “(1) The Board of Parole

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
shall: . . . (c) Determine the time of mandatory discharge from
parole.” § 83-192(1)(c) (Cum. Supp. 2022) (emphasis sup-
plied). The Nebraska Legislature removed the Board’s power
to grant discretionary parole discharges under § 83-1,118(2)
(Reissue 1971) and replaced discretion with a mathemati-
cal requirement as follows: “The [B]oard shall discharge a
parolee from parole when the time served in the custody of
the department and the time served on parole equal the maxi-
mum term less good time.” § 83-1,118(2) (Cum. Supp. 2022).
Although the parole statutes have been amended again since
2018, the relevant provisions of §§ 83-192(1) and 83-1,118(2)
(Cum. Supp. 2022) remain as enacted in 2018. See, 2024 Neb.
Laws, L.B. 631, § 29; 2024 Neb. Laws, L.B. 20, § 7; 2023
Neb. Laws, L.B. 50.
In 2015, the Nebraska Legislature codified a requirement
that the Board utilize a validated risk and needs assessment
tool to determine appropriate levels of supervision for parol-
ees. See Neb. Rev. Stat. § 83-1,100.02 (Supp. 2015). This tool
was applied to Deckard in 2020.
2. District Court’s Order
Following a hearing, the district court determined that
Deckard failed to establish a clear ministerial duty for the
Board to provide him with a parole discharge date under appli-
cation of either the 1974 or 2018 parole statutes. The court read
§ 83-192(3) (Reissue 1971) with § 83-1,118(2) (Reissue 1971)
and determined that if they applied, the Board’s decision as
to when Deckard should be discharged from parole under the
1974 parole statutes was wholly discretionary in light of his
life sentence.
With regard to the 2018 statutory amendments and Deckard’s
contention that he is being punished in violation of ex post
facto principles, the district court determined that applica-
tion of the amended statutes to Deckard’s parole “did not
stiffen the punishment for the crime” and rejected Deckard’s
contention.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
Deckard appeals. He subsequently made several filings
seeking to expand the record on appeal with evidence not con-
sidered by the trial court. Deckard also requested appointment
of counsel that would facilitate the viewing of the State’s files
pertaining to parole. We overruled his motion for appointment
of counsel without prejudice to filing in trial court and took
other requested relief under submission. Later in this opinion,
we deny all other requested relief.
III. ASSIGNMENTS OF ERROR
Deckard claims, summarized and restated, that the district
court erred (1) when it found that the Board had no clear
ministerial duty to determine Deckard’s parole discharge date
and (2) when it concluded that the amended parole discharge
statutes did not violate the ex post facto law prohibitions. In
addition, certain of Deckard’s arguments denominated as sepa-
rate assignments of error are subsumed and addressed within
our analysis, and others were not presented to the district court
and therefore are not considered on appeal.
IV. STANDARDS OF REVIEW
[1,2] An action for a writ of mandamus is a law action. In
a bench trial of a law action, the trial court’s factual findings
have the effect of a jury verdict, and an appellate court will
not disturb those findings unless they are clearly erroneous.
Nebraska Journalism Trust v. Dept. of Envt. and Energy, 316
Neb. 174, 3 N.W.3d 361 (2024). However, questions of law
and statutory interpretation require an appellate court to reach
a conclusion independent of the decision made by the court
below. Id.
V. ANALYSIS
For relief in this mandamus action, Deckard seeks an order
directing the Board to determine his time of discharge from
parole in accordance with the provisions of § 83-192(3) as
it existed in 1971. He also contends that in accordance with
what he describes as the Board’s “well-established practice”

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DECKARD v. COTTON
Cite as 319 Neb. 615
in the 1970s, the Board should enter an order discharging him
from parole “after 2 to 3 years of good behavior,” notwith-
standing his life sentence. We understand Deckard to contend
that all aspects of his parole should be governed by the parole
statutes enacted in 1971 because that was the scheme in effect
when his sentences became final in 1974. The State does not
appear to disagree, although the record reflects instances in
which the Board has applied the parole statutes as revised in
2018. Ultimately, this case does not require us to determine
whether the relevant aspects of Deckard’s parole are gov-
erned by the 1971 parole statutes or the 2018 parole statutes,
because, as we will explain, neither statutory scheme created
an absolute ministerial duty requiring the Board to set a man-
datory parole discharge date for an offender with a life sen-
tence. Because we determine that there is no clear ministerial
duty for the Board to make such a determination, we affirm
the order of the district court that denied mandamus relief.
1. Mandamus
[3] Mandamus is a law action and is defined as an extraordi-
nary remedy, not a writ of right, issued to compel the perform-
ance of a purely ministerial act or duty, imposed by law upon
an inferior tribunal, corporation, board, or person, where (1)
the relator has a clear right to the relief sought, (2) there is a
corresponding clear duty existing on the part of the respondent
to perform the act, and (3) there is no other plain and adequate
remedy in the course of the law. Cain v. Lymber, 306 Neb.
820, 947 N.W.2d 541 (2020).
[4] The general rule is that an act or duty is ministerial only
if there is an absolute duty to perform in a specified manner
upon the existence of certain facts. Id.
2. No Clear Ministerial Duty Under §§ 83-192(3)
and 83-1,118(2) (Reissue 1971)
Although Deckard relies on § 83-192 (Reissue 1971),
which provided that “[t]he Board of Parole shall: . . . (3)
Determine the time of discharge from parole,” he overlooks

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
the 	discretionary 	nature 	of 	the 	1971 	statutory 	scheme.
Statutes relating to the same subject are in pari materia and
should be construed together. See Hochstein v. Cedar Cty.
Bd. of Adjustment, 305 Neb. 321, 940 N.W.2d 251 (2020).
Specifically, § 83-1,118(2) (Reissue 1971) provided that the
precise time of parole discharge was discretionary: “The
Board of Parole may discharge a parolee from parole at any
time if such discharge is compatible with the protection of the
public and is in the best interest of the parolee.” The latter
provision makes clear the Board has discretion, and manda-
mus is inappropriate; further, as a result, there is no reason to
comment on other provisions of the 1971 statute, including a
potential computation regarding the date of discharge.
Deckard asserts at length that in times past, other offenders
who were sentenced to life imprisonment for second degree
murder were discharged from parole. Deckard contends that
the Board should follow the practices from the 1970s and that
if the Board adhered to those practices, he would be discharged
from parole on a date certain. We conclude that under these
statutes, Deckard has no right to a parole discharge date and
the Board has no duty to provide such a date.
We are aware that the U.S. Supreme Court has rejected
an argument similar to that advanced by Deckard addressing
whether a pardons board’s practice of granting commutations
to most inmates serving a life sentence created a protectable
liberty interest. In Connecticut Board of Pardons v. Dumschat,
452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981), the
U.S. Supreme Court concluded there was no such liberty
interest. In Dumschat, the Connecticut Board of Pardons had
granted about three-fourths of the applications for commuta-
tion of life sentences. Other inmates serving a life sentence,
whose commutations had been denied, argued that the pardons
board’s practice was sufficient to create a protectable liberty
interest in commutation. The Court disagreed and concluded
that a liberty interest could not be created simply by past
actions of the pardons board. The Dumschat court stated:

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319 Nebraska Reports
DECKARD v. COTTON
Cite as 319 Neb. 615
A constitutional entitlement cannot “be created—as if by
estoppel—merely because a wholly and expressly discre-
tionary state privilege has been granted generously in the
past.” . . . No matter how frequently a particular form of
clemency has been granted, the statistical probabilities
standing alone generate no constitutional protections; a
contrary conclusion would trivialize the Constitution.
452 U.S. at 465 (quoting Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979)). The rea-
soning in Dumschat applies here. Because the power of the
Board to grant discharge from parole was expressly discretion-
ary under the above statutes, there is no clear ministerial duty
for the Board to set a discharge date.
For completeness, we note that Deckard relies heavily on the
mandamus case of Pratt v. Nebraska Bd. of Parole, 252 Neb.
906, 567 N.W.2d 183 (1997). His reliance is misplaced. In
Pratt, we determined that under the statute then in place, when
the judge recommended parole, the Board was under a ministe-
rial duty to consider the inmate parole eligible, even though it
had discretion not to grant parole, notwithstanding an Attorney
General opinion to the contrary. See Att’y Gen. Op. No. 93096
(Nov. 18, 1993). Pratt dealt with parole eligibility under the
former statutory scheme; it did not address parole discharge,
and it is not applicable to the instant case.
Based on the foregoing, there is no duty of the Board to
set a parole discharge date under the statutes in place in 1974;
therefore, the district court did not err when it denied relief on
this basis.
3. No Clear Ministerial Duty Under §§ 83-192
and 83-1,118(2) (Cum. Supp. 2022)
Even if we were to assume that certain aspects of Deckard’s
parole are governed by § 83-192 as revised in 2018, man-
damus was still properly denied because the Legislature did
not provide statutory language that would permit the Board
to determine a parole discharge date in the case of a life

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DECKARD v. COTTON
Cite as 319 Neb. 615
sentence; therefore, the Board does not have a clear ministe-
rial duty to set a mandatory parole discharge date for Deckard.
As stated, § 83-192 was revised in 2018 to state, in relevant
part: “(1) The Board of Parole shall: . . . (c) Determine the time
of mandatory discharge from parole.” § 83-192(1)(c) (Cum.
Supp. 2022). And as compared to the discretionary provision
of § 83-1,118(2) (Reissue 1971) in place when Deckard was
initially sentenced, § 83-1,118(2) (Cum. Supp. 2022) now pro-
vides a computation for implementing § 83-192(1)(c) (Cum.
Supp. 2022) and requires the Board to “discharge a parolee
from parole when the time served in the custody of the depart-
ment and the time served on parole equal the maximum term
less good time.”
[5] The provisions of § 83,1,118(2) (Cum. Supp. 2022) cre-
ate a mathematical operation of subtraction in which the “good
time” is the subtrahend (the amount being taken away), and
the “maximum term” is the minuend (the amount from which
good time is subtracted), the difference of which results in
years, which dictates the parole discharge date.
[6] As noted previously, Deckard was sentenced to life
imprisonment for second degree murder. See State v. Deckard,
272 Neb. 410, 722 N.W.2d 55 (2006). We have observed that
a life sentence, “[b]y its very nature[,] is indefinite. It is not
possible to determine the number of years which [an offender]
may live serving his life sentence.” State v. Lynch, 215 Neb.
528, 537, 340 N.W.2d 128, 134 (1983).
Because Deckard’s life sentence results in a term that is not
quantifiable in numerical terms, there is no number from which
to deduct good time under § 83-1,118(2) (Cum. Supp. 2022).
Requiring the Board to set a mandatory parole discharge date
for Deckard based on a life sentence as the minuend would
yield an absurd result. See Thomas v. Peterson, 307 Neb.
89, 948 N.W.2d 698 (2020). We have concluded similarly
when applying parole eligibility to a life sentence and noted
that there is “no term of years from which reductions can be
taken.” See Poindexter v. Houston, 275 Neb. 863, 868, 750

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DECKARD v. COTTON
Cite as 319 Neb. 615
N.W.2d 688, 693 (2008). See, similarly, State v. Lynch, supra.
See, also, Baynor v. Warden, Maryland House of Correction,
391 F. Supp. 1254 (D. Md. 1975) (involving denial of credit
against life sentence, which by its very nature is indefinite).
[7] Given his life sentence and based on the foregoing,
Deckard is not eligible for discharge from parole. Ultimately,
“‘There is no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of
a valid sentence.’” State v. Brand, 219 Neb. 402, 406, 363
N.W.2d 516, 519 (1985). For the above reasons, there is no
duty of the Board to provide a parole discharge date under the
amended statutes. In the absence of such duty, the district court
did not err when it denied Deckard’s petition for mandamus.
4. Ex Post Facto
Deckard contends that the amended statute quoted above
constitutes an ex post facto law and that the district court erred
when it determined otherwise. We do not agree.
The district court rejected Deckard’s ex post facto argu-
ment in its order that denied mandamus relief and reasoned
as follows:
“A law which purports to apply to events that occurred
before the law’s enactment, and which disadvantages a
defendant by creating or enhancing penalties that did
not exist when the offense was committed, is an ex post
facto law and will not be endorsed by the courts.” State
v. Amaya, 298 Neb. 70, 78, 902 N.W.2d 675, 681 (2017).
But the addition of the word “mandatory” to the Board’s
duties did not stiffen the punishment for the crime, did
not affect the standards for fixing his initial parole eli-
gibility date, did not affect the standards for determining
his suitability for parole, or change his discharge date
from parole. See Cal. Dep’t of Corr. v. Morales, 514 U.S.
499, 507 (1995). It merely directs the Board which time
of discharge it is required to determine and does not con-
stitute an ex post facto law.

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DECKARD v. COTTON
Cite as 319 Neb. 615
[8] We agree with the reasoning of the district court. The
addition of the word “mandatory” in § 83-192(1)(c) (Cum.
Supp. 2022) does not increase the punishment as applied to
the calculation of Deckard’s parole discharge. We are guided
in our ex post facto analysis by the U.S. Supreme Court’s
observations in Garner v. Jones, 529 U.S. 244, 120 S. Ct.
1362, 146 L. Ed. 2d 236 (2000). In Garner, the Court stated:
“States must have due flexibility in formulating parole proce-
dures and addressing problems associated with confinement
and release.” 529 U.S. at 252. The U.S. Supreme Court further
stated in Garner:
[N]ot every retroactive procedural change creating a risk
of affecting an inmate’s terms or conditions of confine-
ment is prohibited. . . . The question is “a matter of
‘degree.’” . . . The controlling inquiry . . . was whether
retroactive application of the change in [the] law created
“a sufficient risk of increasing the measure of punishment
attached to the covered crimes.”
529 U.S. at 250 (quoting California Dept. of Corrections v.
Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588
(1995)). Insofar as Deckard as an individual sentenced to life
had no absolute right to a parole discharge date under the
statutes in effect in 1974, application of the 2018 statutes to
Deckard would result in no risk of increased punishment and
does not violate ex post facto principles.
In 	closing, 	we 	observe 	that 	Deckard 	could 	potentially
become eligible for discharge upon commutation of his sen-
tence by the Nebraska Board of Pardons and obtain a deter-
minate sentence. See, State ex rel. Hilgers v. Evnen, 318 Neb.
803, 19 N.W.3d 244 (2025); Adams v. State, 293 Neb. 612,
879 N.W.2d 18 (2016). However, as we have explained above,
there is no ministerial duty of the Board to specify an end
date for Deckard’s parole based on his life sentence for sec-
ond degree murder. Thus, the district court correctly rejected
Deckard’s ex post facto argument and denied the request for a
writ of mandamus.

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DECKARD v. COTTON
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5. Other Relief
Deckard’s remaining filings request records for commu-
nications exchanged in the 1990s and 2010s and are denied.
Deckard’s constitutional challenges were not presented below,
and we do not consider them in this appeal. See Ronnfeldt
Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024). All other
relief not specifically addressed in this opinion is denied.
VI. CONCLUSION
Deckard, who is serving a life sentence, failed to identify
a clear ministerial duty of the Board to provide him with a
mandatory parole discharge date. Accordingly, for the reasons
set forth above, we affirm the order of the district court that
dismissed his mandamus petition.
Affirmed.
Freudenberg, J., not participating.