Poindexter v. Houston

county board regarding a conditional use or special exception
permit. Nonetheless, we are not at liberty to ignore the clear
mandate of § 23-114.01(5). If more efficient and effective pro-
cedures for review are to be implemented, the Legislature is the
body that must make such a policy determination.
CONCLUSION
For the reasons discussed, we reverse the judgment of the
district court and remand the cause with directions to conduct
a trial de novo under § 25-1937.
R eveRsed and Remanded with diRections .
heavican, C.J., not participating.
edwaRd P oindexteR, aPPellant , v .
R obeRt houston et al ., aPPellees .
750 N.W.2d 688
Filed June 13, 2008. 	No. S-07-089.
1. Habeas Corpus: Appeal and Error. 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.
2. Habeas Corpus. Habeas corpus is a special civil proceeding providing a summary
remedy to persons illegally detained.
3. ____. A writ of habeas corpus challenges and tests the legality of a person’s deten-
tion, imprisonment, or custodial deprivation of liberty.
4. 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.
5. Constitutional Law: Statutes. Both U.S. Const. art. I, § 10, and Neb. Const. art.
I, § 16, provide that no ex post facto law may be passed.
6. ____: ____. An ex post facto law applies to events that occurred before the
law’s enactment.
7. Statutes: Constitutional Law: Sentences. An ex post facto law disadvantages a
defendant by creating or enhancing penalties that did not exist when the offense
was committed.
8. ____: ____: ____. An ex post facto analysis applies when a statutory amendment
changes the punishment of a crime.
9. Board of Pardons: Sentences: Probation and Parole. An inmate sentenced
to life imprisonment for first degree murder is not eligible for parole until the
Nebraska Board of Pardons commutes his or her sentence to a term of years.
10. Board of Pardons: Sentences. The Nebraska Board of Pardons has the unfettered
discretion to grant or deny a commutation of a lawfully imposed sentence for any
reason or for no reason at all.
POINdexTer v. HOUSTON 	863
Cite as 275 Neb. 863
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

864 	275 NeBrASkA rePOrTS
11. Sentences. The State has not created a liberty interest in sentence commutation
other than the right to file an application for commutation.
Appeal from the district Court for Lancaster County: steven
d. buRns, Judge. Affirmed.
edward Poindexter, pro se.
Jon Bruning, Attorney General, and Linda L. Willard for
appellees.
heavican, 	C.J., 	wRight, 	connolly, 	geRRaRd, 	stePhan,
mccoRmack, and milleR-leRman, JJ.
connolly, J.
I. SUMMArY
In 1971, a jury convicted edward Poindexter of first degree
murder. The district court sentenced him to life imprisonment.
He seeks a writ of habeas corpus. He claims the State should
immediately release him because his mandatory release date
was April 1988. The district court quashed the writ and dis-
missed the case. We conclude that Poindexter did not have a
mandatory release date of April 1988. We hold that an inmate
serving a life sentence for first degree murder must have his or
her sentence commuted to a term of years before he or she is
eligible for parole. Because the Nebraska Board of Pardons has
not commuted Poindexter’s sentence, we affirm.
II. BACkGrOUNd
The record shows that the Nebraska Board of Parole has
denied Poindexter parole several times. The record also shows
that the Board of Pardons has denied Poindexter a commu-
tation hearing on at least two occasions—March 1987 and
May 1993.
In May 2006, Poindexter petitioned for a writ of habeas
corpus. In his petition, he requested that his “defacto [sic]
mandatory minimum release date of April 17, 1988 be hon-
ored” and that he “be released immediately and unconditionally
from imprisonment.” He alleged that his imprisonment after
April 17, 1988, was unconstitutional. The Lancaster County
district Court ordered robert Houston, director of Correctional

Services for the State of Nebraska, to show cause why the writ
of habeas corpus should not be issued. The State then moved
to quash Poindexter’s petition. The court entered an order
quashing the writ of habeas corpus and dismissing the case.
Poindexter appeals.
III. ASSIGNMeNTS OF errOr
Poindexter assigns, restated and renumbered, that the district
court erred by (1) sustaining the State’s motion to quash and
failing to rule on his habeas corpus petition on its merits, (2)
failing to find that the State erroneously claimed he was serv-
ing a “minimum life” sentence, (3) failing to find that he had
a liberty interest in being paroled and discharged from parole
by April 17, 1988, and (4) failing to find that the appellees
conspired to violate his constitutional rights “when they created
their own reasons to deny [him] parole that did not exist at the
time of his conviction and sentencing.”
IV. STANdArd OF reVIeW
[1] On appeal of a habeas petition, we review the trial court’s
factual findings for clear error and its conclusions of law
de novo.1
V. ANALYSIS
[2-4] Habeas corpus is a special civil proceeding providing
a summary remedy to persons illegally detained.2 A writ of
habeas corpus challenges and tests the legality of a person’s
detention, imprisonment, or custodial deprivation of liberty.3
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.4
1 Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
2 Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
3 See id.
4 Id.
POINdexTer v. HOUSTON 	865
Cite as 275 Neb. 863

866 	275 NeBrASkA rePOrTS
1. P oindexteR is not eligible foR PaRole until the boaRd of
PaRdons commutes his sentence to a teRm of yeaRs
The first issue is whether Poindexter is, or has been, eligible
for parole. The State contends that Poindexter’s sentence carries
a minimum term of life and that, therefore, he is not eligible for
parole until the Board of Pardons commutes his sentence to a
term of years. But Poindexter contends that when he was sen-
tenced, the law did not require that his sentence be commuted
before gaining parole eligibility. He argues he was eligible for
parole “‘at any time.’”5 He asserts that applying any current
statutes that are different from those in place when he was sen-
tenced would violate ex post facto principles.
[5-8] Both U.S. Const. art. I, § 10, and Neb. Const. art. I,
§ 16, provide that no ex post facto law may be passed. An ex
post facto law applies to events that occurred before the law’s
enactment.6 It disadvantages a defendant by creating or enhanc-
ing penalties that did not exist when the offense was committed.7
An ex post facto analysis applies when a statutory amendment
changes the punishment of a crime.8
If Poindexter is correct that commutation is a prerequisite
for parole eligibility under current statutes but was not required
when he committed his offense, then we agree that requiring
commutation under the current statutes could raise an ex post
facto issue. But we conclude below that a commutation was
required by statutes in effect when Poindexter committed the
crime, just as it is required under the current statutes. ex post
facto principles are not implicated.
(a) The Statutes in Place When Poindexter Committed His
Offense require a Commutation Before
He Is eligible for Parole
We first address whether the statutes in place in 1970 when
Poindexter committed his offense required a commutation to
a term of years before inmates sentenced to life imprisonment
5 reply brief for appellant at 8.
6 See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
7 See id.
8 Id.

for first degree murder could be eligible for parole. In 1970,
Neb. rev. Stat. § 83-1,110 (Cum. Supp. 1969) provided, in rele-
vant part: “(1) every committed offender shall be eligible for
release on parole upon completion of his minimum term less
reductions granted in accordance with this act, or, if there is no
minimum, at any time.” Poindexter claims that his sentence did
not have a minimum term because he was sentenced to prison
“during life.” So, Poindexter argues that under the 1969 statute,
he was eligible for parole “at any time” and that commutation
was unnecessary.
We understand Poindexter’s argument to be that his sen-
tence had no minimum term because it was a flat sentence
of life imprisonment rather than an indeterminate sentence.
We disagree.
In State v. McMillian9 and State v. Rhodes,10 we impliedly
held that flat sentences do have minimum terms for purposes of
the 1969 version of § 83-1,110. The appellants in those cases
had received flat sentences of 5 years and 3 years respectively
after pleading guilty. (In 1971, flat sentences were not con-
verted to indeterminate sentences by operation of law.11) The
appellants believed their flat sentences made them ineligible
for parole. They sought postconviction relief, arguing that their
pleas were involuntary because the court did not advise them
they would be ineligible for parole. We affirmed the denial of
postconviction relief. We decided that under the 1969 statute,
“the [appellants] are eligible for release on parole upon comple-
tion of their minimum terms less reductions.”12
Although the sentences in McMillian and Rhodes were flat
sentences, we applied the 1969 version of § 83-1,110 to decide
that the appellants were eligible for parole upon completion
of their sentences less reductions granted to them. In other
words, when a court imposed a flat sentence, we interpreted the
9 State v. McMillian, 186 Neb. 784, 186 N.W.2d 481 (1971).
10 State v. Rhodes, 187 Neb. 332, 190 N.W.2d 623 (1971).
11 Compare Neb. rev. Stat. § 83-1,105 (reissue 1971), with Neb. rev. Stat.
§§ 83-1,105.01(2) and 29-2204(1)(B) (Cum. Supp. 2006).
12 McMillian, supra note 9, 186 Neb. at 785, 186 N.W.2d at 482. Accord
Rhodes, supra note 10.
POINdexTer v. HOUSTON 	867
Cite as 275 Neb. 863

868 	275 NeBrASkA rePOrTS
defendant’s “minimum term” to mean the flat sentence imposed
by the court. Thus, contrary to Poindexter’s argument, a flat
sentence did have a minimum term under the 1969 statute. In
Poindexter’s case, his sentence of life is the “minimum term”
of his flat sentence. Under the 1969 version of § 83-1,110,
Poindexter is parole eligible “upon completion of his [life
imprisonment] term less reductions granted,” and not “at any
time” as he suggests.
Poindexter’s life sentence is indefinite.13 It is impossible
to determine the number of years that Poindexter may live in
serving his life sentence. His sentence has no term of years
from which reductions can be taken.14 We conclude that under
§ 83-1,110 (Cum. Supp. 1969), Poindexter is not eligible for
parole until the Board of Pardons commutes his life sentence to
a term of years.
(b) Current Statutes require a Commutation
Before Poindexter Is eligible for Parole
We next compare Poindexter’s parole eligibility under the
current version of § 83-1,110,15 which provides in pertinent part:
“(1) every committed offender shall be eligible for parole when
the offender has served one-half the minimum term of his or her
sentence . . . .” Like the 1969 statute, parole eligibility under
the current version of § 83-1,110 depends on the offender’s
minimum term.
Having decided that Poindexter’s minimum term is his life
sentence, Poindexter is eligible for parole under the current
statute once he has served one-half his life sentence. Because
the sentence is indefinite, it is impossible to determine when
Poindexter will have served one-half his life sentence. We con-
clude that under § 83-1,110 (Cum. Supp. 2006), Poindexter is
not eligible for parole until the Board of Pardons commutes his
life sentence to a term of years.16
13 See State v. Lynch, 215 Neb. 528, 340 N.W.2d 128 (1983).
14 See id.
15 See § 83-1,110 (Cum. Supp. 2006).
16 See, also, Ditter v. Nebraska Bd. of Parole, 11 Neb. App. 473, 655 N.W.2d
43 (2002).

(c) Summary of Commutation Issue
[9] We conclude that both the 1969 version and the current
version of § 83-1,110 require commutation to a term of years
before inmates sentenced to life imprisonment for first degree
murder are eligible for parole. Therefore, no ex post facto issue
is raised by our decision that Poindexter is not eligible for
parole until the Board of Pardons commutes his sentence to a
term of years.
[10] The Board of Pardons has the unfettered discretion to
grant or deny a commutation of a lawfully imposed sentence for
any reason or for no reason at all.17 The record shows that the
Board of Pardons denied Poindexter a commutation hearing in
March 1987 and again in May 1993. Because Poindexter has not
yet received a commutation of his sentence to a term of years,
he is not yet eligible for parole.
2. P oindexteR did not have a libeRty inteRest in
commutation oR a mandatoRy R elease
date of aPRil 17, 1988
Poindexter contends that he had a “defacto [sic] mandatory
release date of no later than . . . April 17, 1988.”18 He claims that
he had a liberty interest in being released no later than that date.
As evidence of this alleged liberty interest, he cites letters in the
record and a self-created study showing the times other inmates
with life sentences served before they were released on parole.
The letters, dating from the 1980’s, were sent by the Secretary
of State, the department of Correctional Services, and the
Board of Pardons. The letters explain that the average length
of time served on a life sentence before the Board of Parole
recommended a commutation to the Board of Pardons was 17
or 18 years.
Poindexter’s study lists 22 Nebraska inmates who received
life sentences for first degree murder and were later released
on discretionary parole after their sentences were commuted.
The inmates on Poindexter’s list were sentenced between 1955
17 See, State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006); Otey v. State,
240 Neb. 813, 485 N.W.2d 153 (1992).
18 Brief for appellant at 22.
POINdexTer v. HOUSTON 	869
Cite as 275 Neb. 863

870 	275 NeBrASkA rePOrTS
and 1974 and were released on discretionary parole by 1992.
Poindexter calculated the “Mean Time Served” by these inmates
before they were released on discretionary parole. According to
Poindexter, the inmates served an average of 18.45 years before
being released.
Poindexter relies on the 17- to 18-year averages in the letters
and his study. By adding 17 years to his sentence date, April 17,
1971, he concludes that he had a liberty interest in his “defacto
[sic] mandatory release date” of April 17, 1988. We understand
Poindexter’s argument to be that because other life inmates
received commutations to terms of years and were released on
parole after serving an average of 17 or 18 years, he had a lib-
erty interest in similarly being released after 17 years. Because
such a release would necessarily require a prior commutation,19
we believe the more precise issue is whether Poindexter had
a liberty interest in having his sentence commuted so that he
could be eligible for parole after serving about 17 years, like the
inmates in his study.
The U.S. Supreme Court has stated that “[t]here is no consti-
tutional or inherent right of a convicted person to be condition-
ally released before the expiration of a valid sentence.”20 The
Court later applied this principle in a case involving commuta-
tion of life sentences, concluding that “an inmate has ‘no consti-
tutional or inherent right’ to commutation of his sentence.”21
Although an inmate has no constitutional or inherent right to
commutation, we recognize that a state may under certain cir-
cumstances create a liberty interest that is subject to due process
protection.22 But such circumstances are not present here.
We 	have 	previously 	held 	that 	neither 	the 	Nebraska
Constitution nor Nebraska’s statutes create a liberty interest in
19 See discussion supra Part V.1(a) through (c).
20 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L.
ed. 2d 668 (1979).
21 Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S. Ct.
2460, 69 L. ed. 2d 158 (1981).
22 See Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. ed. 2d 418
(1995). See, also, Greenholtz, supra note 20.

commutation hearings other than the right to file an application
for commutation.23
Nor did the Board of Pardons’ commutation of sentences
for the inmates in Poindexter’s study create a protected liberty
interest in commutation. The U.S. Supreme Court rejected a
similar argument that a pardons board’s practice of granting
commutations to most life inmates created a protectable liberty
interest.24 There, the Connecticut Board of Pardons had granted
about three-fourths of the applications for commutation of life
sentences. Other life inmates, whose commutations had been
denied, argued that the board’s practice was sufficient to create
a protectable liberty interest in commutation. The Court dis-
agreed, concluding that a liberty interest could not be created
simply by past actions of the pardons board:
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.25
This reasoning applies here. As mentioned, the Board of
Pardons has the unfettered discretion to grant or deny a com-
mutation of a lawfully imposed sentence for any reason or for
no reason at all.26 That the Board of Pardons has exercised this
discretionary authority and granted commutations for other life
inmates after they served, on average, 17 or 18 years does not
create a protectable liberty interest.
[11] We reaffirm our previous conclusion that the State has
not created a liberty interest in sentence commutation other than
the right to file an application for commutation.27 Therefore,
23 See Otey, supra note 17. See, also, Dumschat, supra note 21.
24 Dumschat, supra note 21.
25 Dumschat, supra note 21, 452 U.S. at 465 (emphasis in original) (citation
omitted).
26 See, Marrs, supra note 17; Otey, supra note 17.
27 See Otey, supra note 17.
POINdexTer v. HOUSTON 	871
Cite as 275 Neb. 863

872 	275 NeBrASkA rePOrTS
Poindexter did not have a liberty interest in having his sentence
commuted for an April 17, 1988, release. His argument that
April 17, 1988, was his “defacto [sic] mandatory release date”
is without merit.
3. P oindexteR’ s additional assignments of
eRRoR aRe without meRit
We have considered Poindexter’s remaining assignments of
error, and we conclude they are without merit.
VI. CONCLUSION
We conclude that under both the statutes in place when
Poindexter 	committed 	his 	crime 	and 	the 	current 	statutes,
Poindexter is not eligible for parole until the Board of Pardons
commutes his life sentence to a term of years. We further con-
clude that Poindexter did not have a liberty interest in having
his sentence commuted to obtain an April 17, 1988, release. The
district court did not err in quashing the writ of habeas corpus
and dismissing Poindexter’s case.
affiRmed .
county of hitchcock , nebRaska , a Political subdivision of
the state of nebRaska , aPPellant , v . william m. baRgeR,
also known as bill baRgeR, et al ., aPPellees .
750 N.W.2d 357
Filed June 13, 2008. 	No. S-07-105.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material fact
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. An appellate court reviews questions of law inde-
pendently of the lower court’s conclusion.
4. Actions: Foreclosure: Liens: Real Estate: Tax Sale: Time. Under Neb. rev. Stat.
§ 77-1902 (reissue 2003), an action to foreclose a lien for taxes represented by a