STATE OF NEBRASKA V. ROBERT S. HONKEN

Grand Island, NE - Criminal defense lawyer represented defendant Robert S. Honken with pleadings requesting relief, including a verified motion for postconviction relief, a petition for writ of error coram nobis, and a motion for new trial.

This case arose out of Honken’s attempt to hire two different individuals, including an

undercover investigator, to kill his wife. Following a stipulated bench trial, Honken was convicted

of two counts of conspiracy to commit first degree murder, and was sentenced to 45 to 50 years’

imprisonment on each count, to be served concurrently. His convictions and sentences were

affirmed on direct appeal by this court in State v. Honken, supra. At the time of his direct appeal,

Honken was represented by different counsel than at the time of trial. This court’s mandate in the

former case was issued on January 22, 2018, and the district court entered judgment on our

mandate on January 29.

SUBSEQUENT REQUESTS FOR RELIEF

AND DISTRICT COURT’S ORDER

Between June 24 and July 15, 2019, Honken filed numerous pro se requests for relief. On

June 24, Honken filed (1) a verified motion for postconviction relief, (2) a motion for evidentiary

hearing to make a record for postconviction relief, (3) a petition for writ of error coram nobis, (4)

two motions for absolute discharge, (5) a motion to suppress, (6) two motions for appointment of

counsel, and (7) a motion to proceed in forma pauperis. On July 5, Honken filed (1) a motion for

absolute discharge, (2) a motion to suppress, (3) a motion for appointment of counsel, and (4) a

motion to proceed in forma pauperis. On July 15, Honken filed a motion for new trial. The contents

of Honken’s pleadings will be discussed as necessary in the analysis.

On August 30, 2019, the district court denied all of Honken’s requests for relief without

holding an evidentiary hearing. The court found that Honken’s motion for postconviction relief

was time barred, and did not otherwise affirmatively show that he was entitled to relief. The court

noted that Honken’s writ for error coram nobis was substantially similar to his motion for

postconviction relief and raised the same claims. The court found that the writ challenged errors

of law and did not allege specific facts that would have prevented a conviction, and therefore, the

writ, on its face, provided no possibility of relief. As to Honken’s motion for new trial, the court

found that to the extent Honken’s claims were based on grounds other than “newly discovered

evidence,” he failed to timely file the motion or allege facts showing that such a filing was

unavoidably prevented. And to the extent that Honken’s motion for new trial was based on “newly

discovered evidence,” he failed to allege facts showing the information could not have been

discovered and produced at trial; further any alleged “newly discovered evidence” that discredited

a witness at trial did not justify a new trial. Finally, the court found Honken’s two motions to

suppress and three motions for absolute discharge were untimely filed. Accordingly, the district

court denied all of Honken’s requests for relief.

Honken appeals.

ASSIGNMENTS OF ERROR

Summarized, Honken assigns that the district court erred when it denied his motion for

postconviction relief, his petition for writ of error coram nobis, and his motion for new trial without

an evidentiary hearing.

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STANDARD OF REVIEW

Whether a claim raised in a postconviction proceeding is procedurally barred is a question

of law which is reviewed independently of the lower court’s ruling. State v. Hessler, 305 Neb. 451,

940 N.W.2d 836 (2020).

In appeals from postconviction proceedings, an appellate court reviews de novo a

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his

or her constitutional rights or that the record and files affirmatively show that the defendant is

entitled to no relief. State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

The findings of the district court in connection with its ruling on a motion for a writ of

error coram nobis will not be disturbed unless they are clearly erroneous. State v. Hessler, 295

Neb. 70, 886 N.W.2d 280 (2016).

A de novo standard of review applies when an appellate court is reviewing a trial court’s

dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) without

conducting an evidentiary hearing. See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).

ANALYSIS

POSTCONVICTION RELIEF

Honken contends that the district court erred in overruling his motion for postconviction

relief without an evidentiary hearing.

Postconviction relief is available to a prisoner in custody 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. State v. Newman, 300 Neb. 770, 916 N.W.2d 393

(2018). In a motion for postconviction relief, the defendant must allege facts which, if proved,

constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing

the judgment against the defendant to be void or voidable. State v. Newman, supra.

A trial court must grant an evidentiary hearing to resolve the claims in a postconviction

motion when the motion contains factual allegations which, if proved, constitute an infringement

of the defendant’s rights under the Nebraska or federal Constitution. State v. Newman, supra. If a

postconviction motion alleges only conclusions of fact or law, or if the records and files in a case

affirmatively show the defendant is entitled to no relief, the court is not required to grant an

evidentiary hearing. Id. Thus, in a postconviction proceeding, an evidentiary hearing is not

required (1) when the motion does not contain factual allegations which, if proved, constitute an

infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions

of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to

no relief. Id.

In his 32-page motion for postconviction relief, Honken alleged more than 40 claims of

ineffective assistance of trial counsel, approximately 30 claims of ineffective assistance of

appellate counsel, approximately 15 claims of prosecutorial misconduct, more than 10 errors by

the trial court, and actual innocence. Many of his individual claims are found in more than one of

the categories above. While we do not set forth each of Honken’s individual claims, they include

claims related to the failure to file motions to suppress, the failure to interview or call witnesses,

the admissibility of evidence, an entrapment defense, the failure to investigate his competency, a

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violation of his right to a speedy trial, attorney conflict of interest, and the failure to inform him of

a plea offer.

Before we can address Honken’s arguments, we must first determine whether the district

court correctly concluded that his motion was untimely. The Nebraska Postconviction Act contains

a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of

four triggering events or August 27, 2011, whichever is later. State v. Harrison, 293 Neb. 1000,

881 N.W.2d 860 (2016). See, also, Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). Section

29-3001(4) states:

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 filing 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 newly

recognized right has been made applicable retroactively to cases on postconviction

collateral review; or

(e) August 27, 2011.

Here, Honken’s judgment of convictions became final when this court issued its mandate

on January 22, 2018. See State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019) (direct appeal

concluded once appellate court issued mandate, not when district court entered judgment on

mandate). Honken filed his postconviction motion on June 24, 2019, more than 1 year after the

date the mandate was issued by the appellate court. Accordingly, Honken’s motion for

postconviction relief was time barred absent facts that bring his claim within § 29-3001(4)(b), (c),

or (d).

Honken made no argument which could be construed as bringing his claim within

§ 29-3001(4)(c) or (d). As to § 29-3001(4)(b), Honken alleged that his trial counsel was ineffective

for failing to communicate a plea offer by the county attorney. Honken alleged he received

“[d]ocuments” on June 7, 2019, regarding a plea offer that was never discussed with him; he states,

“see Exhibit ‘A’ Never discuss what the deal was, I should have been told.” However, there is no

exhibit “A” attached to his motion. As stated by the district court:

While this allegation arguably is one that may warrant an evidentiary hearing, the Court

notes that [Honken] had different counsel on appeal than he did at the trial court level.

There is no factual allegation to explain why [Honken] could not have obtained this

information through the exercise of due diligence prior to the one-year deadline imposed

in [§ 29-3001(4)(a)]. [Honken] does not allege that the factual predicate for his ineffective

assistance claim was not discoverable through the exercise of due diligence within the

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one-year limitation period. As such, the Court finds that [Honken] does not meet the criteria

as set forth in [§ 29-3001(4)(b)].

We agree with the district court that Honken did not meet the criteria as set forth in

§ 29-3001(4)(b). And, as noted by the State, Honken does not argue on appeal that the district

court erred in not finding this claim timely under § 29-3001(4)(b).

In fact, when discussing postconviction relief in his brief, Honken states, “[w]hether timely

presented or not,” he has a claim of “Actual Innocence.” Brief for appellant at 18. Honken’s

postconviction motion alleged he was actually innocent of the crimes for which he was convicted.

He supports his allegation by referencing alleged procedural errors, a warrantless search and illegal

arrest, speedy trial issues, coercion to have a bench trial instead of a jury trial, issues of his own

competency, attorney conflict of interest, the use of a paid informant by law enforcement to entrap

him, inconsistent statements by “several informants,” recently revealed persons “that had

information to clear defendant,” and alleged claims of ineffective assistance of counsel. In his brief

to this court, Honken contends than an “actual [i]nnocence claim is clearly warranted in this case.”

Id. at 19. The trial court found Honken made generalizations but did not allege specific facts that

would have prevented a conviction. We agree.

In State v. Dubray, 294 Neb. 937, 947-48, 885 N.W.2d 540, 551 (2016), the Nebraska

Supreme Court stated:

A claim of actual innocence may be a sufficient allegation of a constitutional

violation under the Nebraska Postconviction Act. The essence of a claim of actual

innocence is that the State’s continued incarceration of such a petitioner without an

opportunity to present newly discovered evidence is a denial of procedural or substantive

due process. The threshold to entitle a prisoner to an evidentiary hearing on such a

postconviction claim is “‘extraordinarily high.’” Such a petitioner must make a strong

demonstration of actual innocence because after a fair trial and conviction, the presumption

of innocence vanishes.

Actual innocence means that a defendant did not commit the crime for which he or she is charged.

Nadeem v. State, 298 Neb. 329, 904 N.W.2d 244 (2017) (comparing legal innocence with actual

innocence). Honken has not met the extraordinarily high threshold of alleging facts sufficient to

show he is actually innocent of the crimes; none of his alleged facts show that he did not commit

the crimes for which he was convicted. Accordingly, the district court did not err in denying

Honken’s motion for postconviction relief without an evidentiary hearing.

WRIT OF ERROR CORAM NOBIS

Honken contends that the district court erred in overruling his petition for writ of error

coram nobis without an evidentiary hearing.

The purpose of the writ of error coram nobis is to bring before the court rendering

judgment matters of fact which, if known at the time the judgment was rendered, would have

prevented its rendition. State v. Harrison, supra. The writ reaches only matters of fact unknown to

the applicant at the time of judgment, not discoverable through reasonable diligence, and which

are of a nature that, if known by the court, would have prevented entry of judgment. Id. The writ

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is not available to correct errors of law. Id. The burden of proof in a proceeding to obtain a writ of

error coram nobis is upon the applicant claiming the error, and the alleged error of fact must be

such as would have prevented a conviction. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).

It is not enough to show that it might have caused a different result. Id.

In his 34-page petition for writ of error coram nobis, Honken’s claims are the same as those

alleged his motion for postconviction relief. Honken alleged more than 40 claims of ineffective

assistance of trial counsel, approximately 30 claims of ineffective assistance of appellate counsel,

approximately 15 claims of prosecutorial misconduct, and more than 10 errors by the trial court.

However, claims of errors or misconduct at trial and ineffective assistance of counsel are

inappropriate for coram nobis relief. State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).

Honken also made a claim of actual innocence. But, as noted previously, Honken did not

allege facts sufficient to show he is actually innocent of the crimes; none of his alleged facts show

that he did not commit the crimes for which he was convicted. See Nadeem v. State, supra.

Accordingly, the district court did not err in denying Honken’s petition for a writ of error coram

nobis without an evidentiary hearing.

MOTION FOR NEW TRIAL

Honken contends that the district court erred in denying his motion for new trial without

an evidentiary hearing.

Honken was convicted of his crimes in November 2016, and this court affirmed his

convictions and sentences in December 2017; our mandate was issued on January 22, 2018.

Honken did not file his motion for new trial until July 15, 2019. In his motion for new trial, Honken

claimed there were numerous irregularities and misconduct during the proceedings. His claims are

similar to those made in his motion for postconviction relief and in his petition for writ of error

coram nobis. His claims included allegations of a violation of his right to speedy trial, “false

testimony” and “false evidence” by named individuals, “false statements” by “informants,”

“inconsistent statements” by named individuals, the admissibility of evidence, evidence of

entrapment, the failure to disclose exculpatory evidence, the failure to discuss a plea offer, issues

of Honken’s competency, attorney conflict of interest, the ineffective assistance of his trial and

appellate counsel, prosecutorial misconduct, and judicial errors.

Grounds for a new trial are set forth in Neb. Rev. Stat. § 29-2101 (Reissue 2016) which

states:

A new trial, after a verdict of conviction, may be granted, on the application of the

defendant, for any of the following grounds affecting materially his or her substantial

rights: (1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the

witnesses for the state or in any order of the court or abuse of discretion by which the

defendant was prevented from having a fair trial; (2) misconduct of the jury, of the

prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which

ordinary prudence could not have guarded against; (4) the verdict is not sustained by

sufficient evidence or is contrary to law; (5) newly discovered evidence material for the

defendant which he or she could not with reasonable diligence have discovered and

produced at the trial; (6) newly discovered exculpatory DNA or similar forensic testing

evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.

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If the motion for new trial and supporting documents fail to set forth sufficient facts, the court

may, on its own motion, dismiss the motion without a hearing. § 29-2102.

In his motion for new trial, Honken specifically mentions § 29-2101(3), (4), and (5).

However, for the sake of completeness, we will also briefly address the other grounds for new trial

as well.

None of Honken’s allegations fall within § 29-2101(6). And a motion for new trial based

on the grounds set forth in § 29-2101(1), (2), (3), (4), or (7) shall be filed within 10 days after the

verdict was rendered unless such filing is unavoidably prevented. Neb. Rev. Stat. § 29-2103(3)

(Reissue 2016). Honken did not file his motion for new trial within 10 days after the verdict was

rendered. And although Honken claims that his filing was unavoidably prevented, the record

before us and the allegations in Honken’s own motion refute his claim.

The record before us reveals that Honken was present for the trial court proceedings.

Honken confirmed to the trial court his desire to waive his right to a jury trial and to proceed to

trial based upon stipulated facts. The record also reveals that Honken confirmed his trial counsel’s

statements to the court that Honken “did not want to go through with a full-blown trial with live

witnesses” and that counsel’s “instructions are to not object” to the State’s exhibits and to submit

the evidence to the court. Because Honken was present during the trial court proceedings or

otherwise should have been aware of any issues under § 29-2101(1), (2), (3), (4), or (7), he did not

allege facts showing that his filing for a motion for new trial on such grounds was unavoidably

prevented. Furthermore, although Honken makes allegations of prosecutorial misconduct, he did

not support his allegations with an affidavit. See § 29-2102 (grounds set forth in § 29-2101(2), (3),

and (6) shall be supported by affidavits showing truth of such grounds, and grounds may be

controverted by affidavits; if motion for new trial and supporting documents fail to set forth

sufficient facts, court may, on its own motion, dismiss motion without hearing.)

Honken’s motion for new trial also alleged newly discovered evidence pursuant to

§ 29-2101(5). A motion for new trial based on the grounds set forth in § 29-2101(5) shall be filed

within a reasonable time after the discovery of the new evidence and cannot be filed more than 5

years after the date of the verdict, unless the motion and supporting documents show the new

evidence could not with reasonable diligence have been discovered and produced at trial and such

evidence is so substantial that a different result may have occurred. See § 29-2103(4). The ground

set forth in § 29-2101(5) shall be supported by evidence of the truth of the ground in the form of

affidavits, depositions, or oral testimony. § 29-2102(1). If the motion for new trial and supporting

documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion

without a hearing. § 29-2102(2).

Honken’s allegations included: “[t]he new[ly] discovered police reports that was [sic] just

released to defendant on June 7, 2019 that reveals the inconsistent statements made by several

informants and the used [sic] of non-testifying informant’s out-of-court statements that the trial

Judge knew was false but continued to use them to convict Robert Honken”; several named

witnesses were “just revealed on June 7, 2019,” and “had information to clear defendant, but never

called, a denial of his constitutional rights to confrontation clause and compulsory process”; and

“[n]ewly discovered evidence, via informant’s statements of the creation and mamipulation [sic]

of the stories” of named individuals. Honken also alleged, “It is known now that [Honken’s trial

counsel], [and] the prosecutor with held [sic] exculpatory evidence so substantial that the sentences

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and conviction cannot stand due to the miscarriage of justice that occurred in the case,” and he

“was not able to obtain or discover any of the . . . evidence until after actually getting his records

from his attorneys, and obtaining affidavits that should have been introduced during trial.”

(Emphasis supplied.) Honken stated he received records from his trial counsel on June 7, 2019,

after a complaint was filed with the counsel for discipline. Honken’s allegations of “newly

discovered” evidence that would “clear” him and “newly discovered” evidence “via informant’s

statements of the creation and mamipulation [sic] of the stories” of named individuals were not

supported by affidavits, depositions, or oral testimony.

The district court found that any allegations of newly discovered evidence came from

Honken’s review of his own file, and “[in] fact, [Honken] acknowledges that he received the

information directly from his trial counsel.” Accordingly, the district court found that Honken

failed to allege facts which show the information alleged was “newly discovered” and could not

have been discovered and produced at trial. We agree.

Initially we note that to justify a new trial, newly discovered evidence must involve

something other than the credibility of the witness who testified at trial. State v. Oliveira-Coutinho,

291 Neb. 294, 865 N.W.2d 740 (2015). And two of Honken’s allegations refer to exculpatory

evidence that revealed “inconsistent” statements or “creation and mamipulation [sic] of the stories”

of named individuals.” His remaining allegation refers to several named witnesses who “had

information to clear” Honken. This is a curious allegation given that Honken admitted to law

enforcement that he had hired two individuals, including an undercover investigator to kill his

wife. See State v. Honken, 25 Neb. App. 352, 905 N.W.2d 689 (2017). Regardless, in his motion

for new trial, Honken alleged that his trial counsel and the prosecutor withheld the exculpatory

information. Therefore, Honken’s own allegation establishes that his trial counsel was aware of

the information. This is further evidenced by Honken’s allegation that he was not able to discover

the information until getting the records from his attorneys. Based on Honken’s own allegations,

the alleged exculpatory information was found in his own case file. Trial counsel, being aware of

any exculpatory evidence, could have produced it at trial. And if trial counsel failed to produce

any exculpatory evidence at trial, such could have been raised as an ineffective assistance of

counsel claim on appeal. However, ineffective assistance of counsel is not a ground upon which a

defendant may move for new trial under § 29-2101. State v. Pieper, 274 Neb. 768, 743 N.W.2d

360 (2008). Moreover, as previously noted, Honken’s allegations of “newly discovered” evidence

that would “clear” him and “newly discovered” evidence “via informant’s statements of the

creation and mamipulation [sic] of the stories” of named individuals were not supported by

affidavits, depositions, or oral testimony as required. See § 29-2102(2). Accordingly, upon our de

novo review, we find no error by the district court when it denied Honken’s motion for new trial

without an evidentiary hearing.

C

For the reasons stated above, we affirm the decision of the district court to deny Honken’s requested relief without an evidentiary hearing.

AFFIRMED.