Background
Michael E. McLemore was convicted of first-degree murder and use of a deadly weapon in 1999, receiving a life sentence. His initial convictions were affirmed on appeal. Over the years, McLemore pursued postconviction relief, filing multiple motions.
In July 2020, McLemore’s third motion for postconviction relief, which alleged a key witness recanted testimony, was dismissed by the district court as time-barred. This dismissal was summarily affirmed by the Nebraska Supreme Court in April 2022.
In June 2025, McLemore filed a fourth motion for postconviction relief. He argued that the time limit provisions of the Nebraska Postconviction Act (Neb. Rev. Stat. §§ 29-3001 to 29-3004) were unconstitutional as applied to him, contending that his case predated the 2011 enactment of these time limits and that under the prior version, he could file “at ‘anytime.'” He sought an evidentiary hearing to present this argument. The State countered that the motion was time-barred under both the 2011 and 2023 amendments and that McLemore’s claims were not authorized by the Act. The district court dismissed the motion without an evidentiary hearing, finding McLemore’s time to file had expired on August 28, 2012.
The Court’s Holding
The Nebraska Supreme Court affirmed the district court’s dismissal of McLemore’s fourth motion for postconviction relief. The Court held that the relief McLemore sought—a challenge to the constitutionality of the Postconviction Act itself as applied to him, or an evidentiary hearing on a recanted testimony claim (as reframed in his reply brief)—does not fall within the “very narrow category of relief” available under the Act. The Act specifically provides relief when constitutional rights infringements render a judgment void or voidable, leading to vacating the judgment, resentencing, or a new trial, which McLemore did not directly request regarding his original judgment.
The Court further determined that postconviction relief is not a substitute for an appeal, nor can it be used to raise issues that occurred after the judgment was entered. Even if McLemore’s fourth motion were considered within the Act’s scope, it would be procedurally barred because he failed to raise his constitutional challenge to the time limit in his third postconviction motion. The Court emphasized that for a successive motion to avoid a procedural bar, it must affirmatively show why the issue could not have been raised in any prior motion.
Finally, the Court declined to consider McLemore’s argument that the district court developed “fictitious orders” on his prior motions. This claim was not raised in his fourth postconviction motion and, therefore, was not properly preserved for appellate review. The Court reiterated that appellate courts will not consider claims raised for the first time on appeal from the denial of postconviction relief.
Key Takeaways
- The Nebraska Postconviction Act provides a “very narrow category of relief” limited to constitutional infringements that render a judgment void or voidable.
- Challenges to the constitutionality of the Postconviction Act itself, or requests for evidentiary hearings on recanted testimony, are generally outside the Act’s scope.
- Claims not raised in a prior postconviction motion are procedurally barred in subsequent motions unless the defendant affirmatively demonstrates why the issue could not have been raised earlier.
- Appellate courts will not consider claims or arguments on appeal that were not presented in the original verified motion for postconviction relief.
Why It Matters
This decision is critical for clarifying the stringent boundaries and procedural requirements of postconviction relief in Nebraska. It firmly establishes that the Postconviction Act is not a broad mechanism for re-litigating claims or challenging the procedural framework of postconviction statutes themselves without a direct link to the underlying judgment’s constitutional validity.
For attorneys, the ruling highlights the necessity of raising all potential constitutional challenges and claims exhaustively and at the earliest opportunity within the postconviction process. Failure to adhere to these strict procedural rules, or attempting to introduce new arguments at the appellate level, will likely result in procedural bar or dismissal, reinforcing the finality of judgments and the limited nature of collateral review.