29-3004. Appointment of counsel; competency and effectiveness; compensation.

The district court may appoint not to exceed two attorneys to represent the prisoners in all proceedings under sections 29-3001 to 29-3004. The district court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall allow payment to the attorney or attorneys in the full amount determined by the court. The attorney or attorneys shall be competent and shall provide effective counsel.

Source

Annotations

1. General

2. Payment of expenses

3. Particular cases

4. Miscellaneous

1. General

Any right to effective assistance of counsel under this section is statutory only and cannot render a prisoner's conviction void or voidable under the U.S. or Nebraska Constitution. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).

This section does not provide a postconviction claim for ineffective assistance of postconviction counsel. State v. Hunt, 262 Neb. 648, 634 N.W.2d 475 (2001).

Neither the Eighth Amendment nor the Due Process Clause of the federal Constitution requires states to appoint counsel for indigent death row inmates seeking state postconviction relief. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993).

This section does not require the appointment of counsel in all cases. State v. Craig, 181 Neb. 8, 146 N.W.2d 744 (1966).

The rule that when counsel is court appointed, the defendant does not have a constitutional right to counsel of his or her choice, is equally applicable when counsel is appointed in postconviction proceedings. State v. Davis, 23 Neb. App. 536, 875 N.W.2d 450 (2016).

2. Payment of expenses

Although appointment of counsel in postconviction cases is discretionary, this section provides that once counsel has been appointed and appointed counsel has made application to the court, the court "shall" fix reasonable expenses and fees. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).

Court-appointed counsel in a postconviction proceeding may appeal to the appellate courts from an order determining expenses and fees allowed under this section. Such an appeal is a proceeding separate from the underlying postconviction proceeding. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).

To determine reasonable expenses and fees under this section, a court must consider several factors: the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).

3. Particular cases

District court abused its discretion in failing to appoint counsel, where postconviction record showed a justiciable issue of law or fact was presented by the indigent defendant. State v. Wiley, 228 Neb. 608, 423 N.W.2d 477 (1988).

Trial court acted within its discretion in refusal to appoint other counsel after public defender had completed appeal subsequent to his request to withdraw from case. State v. Jackson, 182 Neb. 472, 155 N.W.2d 361 (1968).

Trial court did not err in failure to appoint defense counsel on appeal to Supreme Court. State v. Williams, 182 Neb. 444, 155 N.W.2d 377 (1967).

4. Miscellaneous

It is within the discretion of the district court to determine whether legal counsel shall be appointed to represent a defendant on appeal to this court, and, in the absence of a showing of an abuse of discretion, the failure to appoint counsel is not error. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993); State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982).

It is discretionary with district court as to whether or not counsel shall be appointed to represent accused on appeal. State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967); State v. Burnside, 181 Neb. 20, 146 N.W.2d 754 (1966).