Peterson v. Houston

PETERSON v. HOUSTON 	861
Cite as 284 Neb. 861
court became aware of this fact only after opposing counsel
raised an objection at the hearing. Furthermore, the juvenile
court could not have known why notice was not given by
DHHS, because the relevant interactions between the parties
occurred outside the presence of the court.
Despite not having firsthand knowledge of the contemptuous
conduct, the juvenile court summarily held DHHS in contempt.
The juvenile court did not give DHHS prior notice of the con-
tempt accusations, hold a civil contempt proceeding, or provide
DHHS a reasonable time to make its defense.16 Therefore,
the juvenile court abused its discretion by summarily holding
DHHS in contempt for conduct that occurred outside the pres-
ence of the court.
CONCLUSION
The juvenile court’s inherent power to issue contempt orders
is subject to the contemnor’s receiving proper notice and an
opportunity to be heard when the contempt is not commit-
ted in the presence of the court. In this instance, the juvenile
court abused its discretion by summarily imposing a sanction
for conduct that did not occur in its presence. We vacate the
January 9, 2012, contempt order and remand for further pro-
ceedings consistent with this opinion.
vacated and remanded for
further proceedings.
16 See § 25-2122.
timothy L. peterson, appeLLant, v. robert p. houston,
director, nebraska department of correctionaL
services, state of nebraska, appeLLee.
824 N.W.2d 26
Filed December 14, 2012. 	No. S-12-242.
1. Affidavits: Appeal and Error. A district court’s denial of in forma pauperis sta-
tus under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de novo on the
record based on the transcript of the hearing or the written statement of the court.
2. Constitutional Law: Judgments. Except in those cases where the denial of in
forma pauperis status would deny a defendant his or her constitutional right to
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

862 	284 NEBRASKA REPORTS
appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows
the court on its own motion to deny in forma pauperis status on the basis that
the legal positions asserted by the applicant are frivolous or malicious, provided
that the court issue a written statement of its reasons, findings, and conclusions
for denial.
3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev.
Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without
rational argument based on the law or on the evidence.
4. Affidavits: Judgments. When, pursuant to Neb. Rev. Stat. § 25-2301.02(1)
(Reissue 2008), a trial court denies leave to proceed in forma pauperis on its own
motion on the ground that the party seeking leave is asserting legal positions
which are frivolous or malicious, its order shall include the court’s reasons for
such conclusion.
5. Habeas Corpus. Habeas corpus is a special civil proceeding providing a sum-
mary remedy to persons illegally detained.
6. ____. A writ of habeas corpus challenges and tests the legality of a person’s
detention, imprisonment, or custodial deprivation of liberty.
7. 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.
8. Constitutional Law: Habeas Corpus. A writ of habeas corpus in the State of
Nebraska is quite limited in comparison to those of federal courts, which allow a
writ of habeas corpus to a prisoner when he or she is in custody in violation of
the federal Constitution, law, or treaties of the United States.
9. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action
for habeas corpus is a collateral attack on a judgment of conviction.
10. Judgments: Collateral Attack. Only a void judgment may be collaterally
attacked.
11. 	Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdiction of
the parties and the subject matter, its judgment is not subject to collateral attack.
12. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to
discharge a person from a sentence of penal servitude where the court imposing
the sentence had jurisdiction of the offense and the person of the defendant, and
the sentence was within the power of the court to impose.
13. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors,
and its use will not be permitted for that purpose.
14. Habeas Corpus: Sentences. The regularity of the proceedings leading up to the
sentence in a criminal case cannot be inquired into on an application for writ of
habeas corpus, for that matter is available only in a direct proceeding.
15. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a
tribunal to hear and determine a case of the general class or category to which
the proceedings in question belong and to deal with the general subject mat-
ter involved.
16. Courts: Jurisdiction. Pursuant to Neb. Rev. Stat. § 24-302 (Reissue 2008), dis-
trict courts are vested with general, original, and appellate jurisdiction over civil
and criminal matters.
17. Indictments and Informations: Appeal and Error. An information first ques-
tioned on appeal must be held sufficient unless it is so defective that by

PETERSON v. HOUSTON 	863
Cite as 284 Neb. 861
no construction can it be said to charge the offense for which the accused
was convicted.
18. Indictments and Informations. A complaint or information is fatally defective
only if its allegations can be true and still not charge a crime.
19. ____. No information shall be deemed invalid for any defect or imperfection
which does not prejudice the substantial rights of the defendant upon the merits.
20. Jurisdiction: Indictments and Informations. The fact that an information is
fatally defective does not deny the trial court jurisdiction to issue any order relat-
ing to those purported charges.
21. Criminal Law: Venue. Under Neb. Rev. Stat. § 29-1301 (Reissue 2008), a crimi-
nal defendant has a right to be tried in the county in which the criminal offense
is alleged to have been committed.
22. Criminal Law: Venue: Proof. The State must prove proper venue beyond a
reasonable doubt in criminal cases.
23. Pleas. Generally, a guilty plea admits all facts recited in open court by the State
and all facts alleged in the information or complaint, including the fact that the
offense was committed and the time and place of its commission.
24. Jurisdiction: Judgments: Appeal and Error. Where jurisdiction has attached,
mere errors or irregularities in the proceedings, however grave, although they
may render the judgment erroneous and subject to be set aside in a proper pro-
ceeding for that purpose, will not render the judgment void.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
andrew r. Jacobsen, Judge. Affirmed.
Timothy L. Peterson, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavican, c.J., wright, connoLLy, stephan, mccormack,
miLLer-L erman, and casseL, JJ.
stephan, J.
Timothy L. Peterson sought leave to proceed in forma pau-
peris in order to file a petition for a writ of habeas corpus in
the district court for Lancaster County. On its own motion, the
district court determined that the legal positions asserted in the
petition were frivolous, and it denied the motion to proceed
in forma pauperis for that reason. Peterson appealed, and we
moved the case to our docket on our own motion pursuant to
our statutory authority to regulate the caseloads of the appellate
courts of this state.1
1 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).

864 	284 NEBRASKA REPORTS
BACKGROUND
On August 21, 2008, a complaint filed in Butler County
charged Peterson with two counts of first degree sexual assault
and eight counts of second-offense violation of a protection
order. The complaint alleged that on “April 4 and/or 5, 2008,”
Peterson “did subject another to sexual penetration without . . .
consent or the victim was less than sixteen years of age . . .
when the defendant was nineteen years of age or older.” It also
alleged that Peterson knowingly violated the provisions of a
previous protection order by disturbing the peace and quiet of
an individual on several occasions.
On October 7, 2008, the State filed an amended information
charging Peterson with one count of attempted first degree
sexual assault and one count of second-offense violation of
a protection order. This information alleged that Peterson
“intentionally engage[d] in conduct, which under the circum-
stances as he believed them to be, constituted a substantial
step in a course of conduct intended to culminate in the com-
mission of the crime of Sexual Assault in the First Degree.”
Peterson was convicted and sentenced to 16 to 20 years in
prison on the attempted sexual assault conviction and to a con-
secutive term of 20 to 60 months in prison on the protection
order conviction.
On September 4, 2008, an information filed in the district
court for Platte County charged Peterson with attempted first
degree sexual assault. The information alleged that the crime
occurred in January or February 2008, when Peterson was 19
years of age or older and the victim was at least 12 years old
but less than 16 years old. Peterson pled guilty and was sen-
tenced to a term of 6 to 10 years in prison, with credit for 191
days served. The sentence was to be served concurrently with
any other sentence Peterson was currently serving.
In his petition for a writ of habeas corpus, Peterson alleged
that he is being illegally detained because the amended Butler
County information was “fatally defective.” He contended that
the amended information quoted the criminal statutes but did
not provide any identifying characteristics of any victim or

PETERSON v. HOUSTON 	865
Cite as 284 Neb. 861
the time, place, and facts to support the sexual assault charge.
Peterson claimed that the district court for Butler County
lacked subject matter jurisdiction because it accepted a guilty
plea “to a mere collection of pointless words.” He also asserted
that the sexual assault charge in Butler County subjected him
to double jeopardy because it was the same crime he was
convicted of in Platte County, where the victim was identified
as “K.W.”
In addition, Peterson claimed that his counsel in the Butler
County case failed to file a motion to quash the defective
information or to prepare a double jeopardy defense. Peterson
alleged that his counsel refused to file a direct appeal and that
he was coerced into pleading to the charges. Peterson also
claimed he is actually innocent of the charges. He asserted that
the Butler County convictions are void and that the sentences
must be vacated and a new trial granted. He did not challenge
the Platte County conviction.
On February 28, 2012, the district court for Lancaster County
entered an order stating that it had reviewed the petition for
writ of habeas corpus and had determined that “it is frivo-
lous.” The order concludes: “IT IS THEREFORE ORDERED,
ADJUDGED, AND DECREED that the Petition for Writ of
Habeas Corpus and Motion to Proceed In Forma Pauperis
are overruled and denied. Pursuant to statute, the petitioner is
given 30 days in which to pay the filing fee or appeal.”
Peterson filed a timely notice of appeal, and the district
court granted him leave to appeal in forma pauperis.
ASSIGNMENTS OF ERROR
Peterson assigns that the district court erred in finding the
legal positions asserted in his petition for writ of habeas corpus
to be frivolous and in denying him leave to proceed in forma
pauperis in that court.
STANDARD OF REVIEW
[1] A district court’s denial of in forma pauperis status under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de

866 	284 NEBRASKA REPORTS
novo on the record based on the transcript of the hearing or the
written statement of the court.2
ANALYSIS
[2,3] Applications to proceed in forma pauperis are gov-
erned by § 25-2301.02. Except in those cases where the denial
of in forma pauperis status “would deny a defendant his or her
constitutional right to appeal in a felony case,” § 25-2301.02(1)
allows the court “on its own motion” to deny in forma pauperis
status on the basis that the legal positions asserted by the appli-
cant are frivolous or malicious, provided that the court issue “a
written statement of its reasons, findings, and conclusions for
denial.”3 A frivolous legal position pursuant to § 25-2301.02
is one wholly without merit, that is, without rational argu-
ment based on the law or on the evidence.4 When an objection
to an application to proceed in forma pauperis is sustained,
“the party filing the application shall have thirty days . . . to
proceed with an action or appeal upon payment of fees, costs,
or security.”5
[4] In this case, the district court concluded that the legal
positions advanced by Peterson were “frivolous,” but did not
state its reasons for reaching that conclusion. Because our
review is de novo on the record, we proceed to address
Peterson’s assignments of error. But we hold prospectively that
when, pursuant to § 25-2301.02(1), a trial court denies leave
to proceed in forma pauperis on its own motion on the ground
that the party seeking leave is asserting legal positions which
are frivolous or malicious, its order shall include the court’s
reasons for such conclusion.
[5-7] We begin by examining the scope of the state habeas
corpus remedy which Peterson seeks to invoke. Habeas corpus
is a special civil proceeding providing a summary remedy to
2 § 25-2301.02(2); Martin v. McGinn, 265 Neb. 403, 657 N.W.2d 217
(2003).
3 Cole v. Blum, 262 Neb. 1058, 637 N.W.2d 606 (2002).
4 Id.
5 § 25-2301.02(1). See Martin v. McGinn, supra note 2.

PETERSON v. HOUSTON 	867
Cite as 284 Neb. 861
persons illegally detained.6 A writ of habeas corpus challenges
and tests the legality of a person’s detention, imprisonment, or
custodial deprivation of liberty.7 Habeas corpus requires the
showing of legal cause, that is, that a person is detained ille-
gally and is entitled to the benefits of the writ.8
[8-14] A writ of habeas corpus in this state is quite limited
in comparison to those of federal courts, which allow a writ
of habeas corpus to a prisoner when he or she is in custody
in violation of the federal Constitution, law, or treaties of
the United States.9 Under Nebraska law, an action for habeas
corpus is a collateral attack on a judgment of conviction.10
Only a void judgment may be collaterally attacked.11 Where
the court has jurisdiction of the parties and the subject mat-
ter, its judgment is not subject to collateral attack.12 Thus, a
writ of habeas corpus will not lie to discharge a person from
a sentence of penal servitude where the court imposing the
sentence had jurisdiction of the offense and the person of the
defendant, and the sentence was within the power of the court
to impose.13 A writ of habeas corpus is not a writ for correction
of errors, and its use will not be permitted for that purpose.14
“[T]he regularity of the proceedings leading up to the sentence
in a criminal case cannot be inquired into on an application
for writ of habeas corpus, for that matter is available only in a
direct proceeding.”15
6 Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008); Tyler v.
Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
7 Poindexter v. Houston, supra note 6.
8 Id.
9 Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999); Mayfield v.
Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985).
10 See Rehbein v. Clarke, supra note 9.
11 Id.
12 Id.
13 Id.; Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990).
14 See Rehbein v. Clarke, supra note 9.
15 Id. at 410-11, 598 N.W.2d at 44.

868 	284 NEBRASKA REPORTS
With these general principles in mind, we turn to the
specific grounds upon which Peterson alleged he is entitled
to a writ of habeas corpus. First, Peterson alleged that the
amended information to which he entered his guilty plea was
defective and insufficient to establish jurisdiction over the
subject matter or his person. He alleged that the amended
information was a “mere collection of pointless words” which
did not identify “any victim, time, place, or facts to support
evidence of offense.” He alleges that the deficiencies in the
information deprived the district court for Butler County of
subject matter jurisdiction. This legal position is wholly with-
out merit.
[15-20] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case of the general class or category to
which the proceedings in question belong and to deal with the
general subject matter involved.16 Pursuant to Neb. Rev. Stat.
§ 24-302 (Reissue 2008), district courts are vested with gen-
eral, original, and appellate jurisdiction over civil and criminal
matters.17 We have held that an “information first questioned
on appeal must be held sufficient unless it is so defective that
by no construction can it be said to charge the offense for
which the accused was convicted.”18 And “a complaint or infor-
mation is fatally defective only if its allegations can be true
and still not charge a crime.”19 In addition, “[n]o information
shall be deemed invalid for any defect or imperfection which
does not prejudice the substantial rights of the defendant upon
the merits.”20 And even the “fact that an information is fatally
defective does not deny the trial court jurisdiction to issue any
order relating to those purported charges.”21 Based upon our de
16 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
17 See id.
18 State v. Coleman, 209 Neb. 823, 826, 311 N.W.2d 911, 912 (1981).
19 Id. at 826, 311 N.W.2d at 913, citing Phillips v. State, 154 Neb. 790, 49
N.W.2d 698 (1951).
20 State v. Mays, 203 Neb. 487, 491, 279 N.W.2d 146, 149 (1979).
21 State v. Blackson, 256 Neb. 104, 107, 588 N.W.2d 827, 830 (1999).
Accord State v. Thomas, supra note 16.

PETERSON v. HOUSTON 	869
Cite as 284 Neb. 861
novo review, we conclude that the charging documents in the
Butler County case contain no deficiencies which would have
deprived the district court of jurisdiction to convict Peterson of
the offenses to which he entered pleas of guilty.
[21-23] Next, Peterson alleged in his petition that the
offenses for which he was convicted in Butler County actually
occurred in Platte County. Under Neb. Rev. Stat. § 29-1301
(Reissue 2008), a criminal defendant has a right to be tried
in the county in which the criminal offense is alleged to have
been committed. Additionally, we have held that the State
must prove proper venue beyond a reasonable doubt in crimi-
nal cases.22 Peterson’s petition and the attached court records
establish that he entered a guilty plea to an amended informa-
tion which clearly alleged that he had attempted to sexually
assault a minor “in Butler County, Nebraska.” Generally,
a guilty plea admits all facts recited in open court by the
State and all facts alleged in the information or complaint,
including the fact that the offense was committed and the
time and place of its commission.23 Peterson admits in his
habeas petition that he pled guilty. His guilty plea waived his
right to question whether the Butler County District Court
had jurisdiction over a crime which he admitted occurred in
Butler County.
[24] Peterson also alleged that he is entitled to habeas relief
on the bases of double jeopardy, actual innocence, miscar-
riage of justice, malicious prosecution, judicial bias, ineffec-
tive counsel, and conflict of interest. None of these provide
a proper ground for granting a writ of habeas corpus in
Nebraska. “Where jurisdiction has attached, mere errors or
irregularities in the proceedings, however grave, although they
may render the judgment erroneous and subject to be set aside
in a proper proceeding for that purpose, will not render the
judgment void.”24
22 See State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
23 State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996), overruled on
other grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
24 Rehbein v. Clarke, supra note 9, 257 Neb. at 410, 598 N.W.2d at 43-44.

870 	284 NEBRASKA REPORTS
CONCLUSION
Based upon our de novo review of the record, we conclude
that the district court did not err in denying Peterson’s applica-
tion to proceed in forma pauperis on the ground that the legal
positions asserted in the petition for writ of habeas corpus
which he sought to file were frivolous. As noted, the district
court gave Peterson “30 days in which to pay the filing fee or
appeal,” which is in accordance with the procedure prescribed
by § 25-2301.02(1). Thus, upon the spreading of our mandate
affirming the district court’s denial of leave to proceed in
forma pauperis, Peterson shall have 30 days to pay the fees
necessary to file his petition.
affirmed.