321 Neb. 909
Neb.2026Background
- McLemore was convicted in 1999 of first degree murder and use of a deadly weapon, and his convictions were affirmed on direct appeal. 1
- In 2020, McLemore filed a third postconviction motion based on a witness recantation, and it was dismissed as time barred and summarily affirmed. 2
- In 2025, McLemore filed a fourth postconviction motion challenging the Nebraska Postconviction Act's one-year limit as unconstitutional as applied to him. 3
- McLemore also claimed the district court had created fictitious orders on his prior postconviction and new-trial motions to avoid the merits. 4
- The district court dismissed the fourth motion without a hearing, reasoning McLemore's postconviction deadline passed in 2012 and later motions had been denied. 5
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McLemore's fourth postconviction motion was authorized by the Act 6 | McLemore sought a hearing to attack § 29-3001(4) as applied to him. | The State argued he sought relief outside the Act's narrow scope. | The motion sought unavailable relief and was properly dismissed. 7 |
| Whether McLemore could raise fictitious-order claims on appeal 8 | McLemore claimed the court fabricated orders on prior motions. | The State argued those claims were not in the verified fourth motion. | The claims were not preserved and were not properly before the court. 9 |
Key Cases Cited
- State v. Custer, 903 N.W.2d 911 (Neb. 2017) (postconviction review standard is de novo for failure to allege constitutional facts 10)
- State v. Boeggeman, 5 N.W.3d 735 (Neb. 2024) (postconviction relief is limited to void or voidable judgments and is not a substitute for appeal 11)
- State v. Ammons, 990 N.W.2d 897 (Neb. 2023) (claims not raised in the verified postconviction motion are not considered on appeal 12)
- State v. Lotter, 976 N.W.2d 721 (Neb. 2022) (motion must affirmatively show claim could not have been raised earlier to avoid procedural bar 13)
- State v. Keadle, 28 N.W.3d 524 (Neb. 2025) (new claims first raised on appeal from postconviction denial are not considered 14)