Many of the rules and procedures of criminal law, especially in regard to the right to counsel, are being rapidly reshaped. While much of this reformation is being accomplished by the decisions of the United States Supreme Court, a good deal of the change, particularly in post conviction review, is coming from the states themselves. Nebraska passed a Post Conviction Act in 1965 that is somewhat akin to the federal post conviction review proceeding. The Act does not provide an avenue for repetitious review but instead allows the defendant a post conviction review on the basis of constitutional changes that have emerged since his conviction. In his motion for a review of the conviction, the defendant must allege facts that would raise constitutional questions about the conviction. His conclusions as to his "wrongful" detention are not sufficient. At this point an evidentiary hearing may be granted, and if a denial of constitutional guarantees is discovered, the prisoner shall have his judgment set aside and either be discharged or resentenced. The order entered is considered a final judgment, and appeal may be taken to the Supreme Court. The court need not, however, grant an evidentiary hearing if no facts appear from the petition, along with the files and record of the case, to justify such a hearing. Needless to say, the remedy proves a powerful attraction to the convicted, regardless of the validity of their claims for review. The Nebraska Act is rather liberally construed and applied in relation to the sufficiency of the petition filed and the time at which the action may be brought. The purpose of this article, however, is to consider the manner in which the right to counsel portion of the Act is construed and applied.
William A. Harding,
Right to Counsel for Indigents under the Nebraska Post Conviction Act,
47 Neb. L. Rev. 722
Available at: http://digitalcommons.unl.edu/nlr/vol47/iss4/6