State v. Phelps, 286 Neb. 89

Phelps was convicted of kidnapping in the 1987 disappearance of 9-year-old Jill Cutshall and sentenced to life imprisonment; the conviction was affirmed in 1992.
In 2012, Phelps filed a postconviction motion alleging newly discovered diary evidence about abductions and murders, including Cutshall, was provided to authorities in March.
The district court denied relief, finding no factual basis relating to Cutshall and concluding the postconviction motion resembled a belated new-trial request barred by time and prior motions.
Phelps appealed, arguing the diary evidence justified postconviction relief and that counsel should be appointed; the issues include procedural bar and sufficiency of allegations for an evidentiary hearing.
The Supreme Court reviews postconviction determinations de novo for sufficiency of facts and whether the petition is procedurally barred, and whether counsel should be appointed when justiciable issues exist.
The court ultimately affirms, holding the diary-based claims do not establish a constitutional violation or entitlement to an evidentiary hearing, and that the record supports the district court's denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Procedural bar of the postconviction motion	Phelps argues the current motion is not barred because the diary ground was unavailable earlier.	District court held prior motions foreclose further postconviction relief.	Not procedurally barred; diary ground could not have been raised earlier.
Sufficiency of facts for an evidentiary hearing	Diary constitutes newly discovered evidence warranting an evidentiary hearing.	Diary is speculative, lacks personal knowledge, and does not show a constitutional violation.	No evidentiary hearing required; allegations insufficient to show voidable judgment.
Actual innocence threshold in postconviction	Diary could exonerate Phelps and trigger postconviction relief.	Even with new evidence, no extraordinary showing of actual innocence is made.	Diary fails to meet the extraordinarily high standard for actual innocence to trigger postconviction relief.
Appointment of counsel	Indigent defendants are entitled to counsel when there is a justiciable postconviction issue.	Appointment is discretionary and not warranted if issues are procedurally barred or meritless.	No abuse of discretion; no justiciable issue found.

Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (extraordinarily high threshold for actual innocence)
State v. Watkins, 284 Neb. 742 (Neb. 2012) (postconviction review standards; questions of law)
State v. Lotter, 278 Neb. 466 (Neb. 2009) (actual innocence and postconviction fine line)
State v. Edwards, 284 Neb. 382 (Neb. 2012) (standards for postconviction relief and rights)
State v. Gunther, 278 Neb. 173 (Neb. 2009) (limitations on postconviction relief and timing)
State v. Jim, 275 Neb. 481 (Neb. 2008) (postconviction relief procedures)
State v. York, 278 Neb. 306 (Neb. 2009) (new-trial-type relief and postconviction scope)
State v. Molina, 279 Neb. 405 (Neb. 2010) (postconviction relief not a vehicle for new trials outside time limits)