State v. Harper, 86-1105
| Decision Date | 24 April 1987 |
| Docket Number | No. 86-1105,86-1105 |
| Citation | 404 N.W.2d 436,225 Neb. 300 |
| Parties | STATE of Nebraska, Appellee, v. Ernest HARPER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction. Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of the filing of the prior motion.
2. Postconviction. Postconviction relief may not be used to secure a review of issues which were capable of being raised in a direct appeal.
Ernest Harper, pro se.
Robert M. Spire, Atty. Gen. and Linda L. Willard, Lincoln, for appellee.
Ernest Harper appeals from an order entered by the district court for Douglas County, Nebraska, denying Harper relief sought pursuant to the provisions of the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985). We affirm.
This is the third appearance of this case before this court. Harper was charged by information with one count of robbery, one count of use of a firearm in the commission of a felony, and two counts of first degree sexual assault. Following trial to a jury, he was convicted of all of the counts and sentenced to the Nebraska Penal and Correctional Complex. Upon appeal to this court, we affirmed. See State v. Harper, 215 Neb. 686, 340 N.W.2d 391 (1983) (Harper I ). Thereafter, Harper filed a petition in the district court for Douglas County, seeking postconviction relief, pursuant to the Nebraska Postconviction Act. Following a hearing, Harper was denied relief and appealed to this court. Upon careful review of the claim he raised, we affirmed. See State v. Harper, 218 Neb. 870, 359 N.W.2d 806 (1984) (Harper II ).
Thereafter, in August of 1986, Harper, pro se, filed a second petition seeking relief pursuant to the provisions of the Nebraska Postconviction Act. All of the matters which he raised in his second petition seeking postconviction relief were matters that were available to be raised, whether raised or not, in his first direct appeal (Harper I ) or in his subsequent postconviction action (Harper II ).
The district court denied Harper an evidentiary hearing and dismissed his second request seeking postconviction relief. It is from that order that he now appeals to this court. He raises no matters which were not either raised or could have been raised in Harper I or Harper II. This is simply an attempt to continue to rehash those matters which were or could have been previously presented to the court. That Harper may not...
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State v. Harper
...See, State v. Harper, 215 Neb. 686, 340 N.W.2d 391 (1983); State v. Harper, 218 Neb. 870, 359 N.W.2d 806 (1984); State v. Harper, 225 Neb. 300, 404 N.W.2d 436 (1987); State v. Harper, 233 Neb. 841, 448 N.W.2d 407 (1989). In the last postconviction proceeding, the Supreme Court observed that......
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Harper v. Nix, 87-2656
...to raise these claims on direct appeal and during the initial post-conviction proceedings constitutes a waiver. State v. Harper, 225 Neb. 300, 302, 404 N.W.2d 436, 437 (1987). Finally, Harper filed a second petition for a writ of habeas corpus in federal district court in which he again rai......
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State v. Harper, 89-235
...postconviction relief. Denial of such relief was affirmed in State v. Harper, 218 Neb. 870, 359 N.W.2d 806 (1984), and State v. Harper, 225 Neb. 300, 404 N.W.2d 436 (1987). On December 22, 1988, defendant filed a "Motion for Stay and Direct Review of Extradition Agreement and Judgment and P......
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State v. Luna, 88-189
...shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Harper, 225 Neb. 300, 404 N.W.2d 436 (1987). While it is true Luna seeks this time to ground his allegation of ineffective assistance of counsel in different errors all......