State v. Keithley
| Decision Date | 24 March 1995 |
| Docket Number | No. S-94-189,S-94-189 |
| Parties | STATE of Nebraska, Appellee, v. Gary A. KEITHLEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Appeal and Error. An appellate court will not ordinarily entertain a successive motion for postconviction relief unless the motion shows on its face that the basis for relief was not available at the time movant filed the prior motion.
2. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.
Gary A. Keithley, pro se.
Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.
Gary A. Keithley was convicted in 1986 of second degree murder in the 1959 stabbing death of William Weiner. Keithley was sentenced to 20 years' imprisonment. We affirmed the judgment in State v. Keithley, 227 Neb. 402, 418 N.W.2d 212 (1988). In 1990, we affirmed the district court's denial of Keithley's motion for postconviction relief. State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990). Keithley filed a second motion for postconviction relief in December 1993, which was summarily dismissed by the district court.
In his second motion for postconviction relief, Keithley alleges he was denied due process under the U.S. Constitution and the Nebraska Constitution in that (1) newly discovered evidence warrants granting him a new trial, (2) he was denied effective assistance of trial counsel, and (3) inadmissible evidence was introduced at the trial. The district court summarily dismissed the motion on the basis that Keithley did or could have raised all of these issues on direct appeal or in Keithley's first motion for postconviction relief. Keithley appeals the district court's dismissal of his second motion for postconviction relief.
Keithley claims that trial counsel and appellate counsel failed to reveal to him a 1959 police report allegedly containing exculpatory evidence. Keithley argues that the police report is newly discovered evidence entitling him to a new trial. However, in his second motion for postconviction relief, Keithley states that he was given the police report after his direct appeal. Keithley thus had the opportunity to present the alleged newly discovered evidence on his first motion for postconviction relief and failed to do so.
An appellate court will not ordinarily entertain a successive motion for postconviction relief unless the motion shows on its face that the basis for relief was not available at the time the movant filed the prior motion. See, State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989). A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994). See, ...
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State v. Williams
...face that the basis for the requested relief was not available at the time the movant filed the prior motion. See, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993); State v. L......
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State v. Ryan
...for relief that did not exist at the time of the prior proceeding because it was not available to the defendant. See, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Lindsay, supra. Whether a claim raised in a postconviction proceeding is procedurally barred is a question o......
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State v. Ryan
...be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal. State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. B......
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...were or could have been litigated on direct appeal. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995). See, also, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995). Palmer could have raised each of the following assignments of error in his direct appeal, but he did not: (7) The lower......