State v. Boppre

litigant’s position.14 The term “frivolous” connotes an improper
motive or legal position so wholly without merit as to be ridicu
lous.15 Any doubt about whether a legal position is frivolous or
taken in bad faith should be resolved in favor of the one whose
legal position is in question.16 An appellate court may award
attorney fees on appeal regardless of whether a party asked for
attorney fees from the trial court.17
Because this court has never applied judicial estoppel in the
same proceeding, TFF made a valid, although unpersuasive,
argument. We reject SID’s bad faith argument.
CONCLUSION
The district court did not err in granting the SID’s motion
for summary judgment. TFF is judicially estopped from pursu
ing its claims against the SID because such claims are inconsist
ent with the district court’s award of default judgment against
Brook Valley for the assessments levied by the SID. But TFF’s
claim was not frivolous or brought in bad faith.
A ffirmed.
14 See, Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664
N.W.2d 23 (2003); Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369
(1998).
15 See, Cornett, supra note 14; Peter v. Peter, 262 Neb. 1017, 637 N.W.2d
865 (2002).
16 Cornett, supra note 14; Cox v. Civil Serv. Comm. of Douglas Cty., 259
Neb. 1013, 614 N.W.2d 273 (2000).
17 See, Cox, supra note 16; Schuelke, supra note 14.
StAte of NebrASkA, Appellee , v.
Jeff boppre , AppellANt.
790 N.W.2d 417
Filed November 5, 2010. 	No. S 09 906.
1. DNA Testing: Appeal and Error. In an appeal from a proceeding under the DNA
Testing Act, the trial court’s findings of fact will be upheld unless such findings
are clearly erroneous.
2. Motions for New Trial: DNA Testing: Appeal and Error. A motion for new
trial based on newly discovered exculpatory evidence obtained pursuant to the
774 	280 NeBrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

DNA Testing Act is addressed to the discretion of the trial court. Absent an abuse
of discretion, the court’s determination will not be disturbed.
3. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court reaches a conclusion independent
of the lower court’s ruling.
4. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
5. Motions for New Trial: DNA Testing: Time. The DNA Testing Act permits the
testing of relevant biological material and provides the means by which a person
in custody may seek relief based upon newly discovered exculpatory DNA test
results obtained after the statutory time period for requesting a new trial based
upon newly discovered evidence has expired.
6. Judgments: Motions to Vacate: DNA Testing. If results obtained under the
DNA Testing Act exonerate the defendant, the court may vacate and set aside the
judgment and release the person.
7. Motions for New Trial: DNA Testing. If results obtained under the DNA Testing
Act do not exonerate the defendant, but are exculpatory, the court may order a
new trial if the newly discovered exculpatory DNA evidence is of such a nature
that if it had been offered and admitted at the former trial, it probably would have
produced a substantially different result.
8. Postconviction: Constitutional Law: Time. Although there is no time limit to
bringing a postconviction motion, postconviction relief is a very narrow category
of relief, available only to remedy prejudicial constitutional violations.
9. Postconviction: Constitutional Law: Judgments: Jurisdiction. Absent a factual
circumstance whereby the judgment is void or voidable under the state or U.S.
Constitution, the court has no jurisdiction to grant postconviction relief.
10. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the movant’s rights
under the Nebraska or federal Constitution.
11. Postconviction: Pleadings. A defendant is required to make specific allegations
instead of mere conclusions of fact or law in order to receive an evidentiary hear
ing for postconviction relief.
12. Postconviction. postconviction relief without an evidentiary hearing is properly
denied when the files and records affirmatively show that the prisoner is entitled
to no relief.
13. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues which were or could have been litigated on direct
appeal, no matter how those issues may be phrased or rephrased.
14. ____: ____. An appellate court will not entertain a successive motion for
postconviction relief unless the motion affirmatively shows on its face that the
basis relied upon for relief was not available at the time the movant filed the
prior motion.
15. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
STATe v. BOppre 	775
Cite as 280 Neb. 774

Appeal from the District Court for Scotts Bluff County:
rANdAll l. lippStreu, Judge. Affirmed.
James 	r. 	Mowbray 	and 	Jerry 	L. 	Soucie, 	of 	Nebraska
Commission on public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck , and miller-lermAN, JJ.
mccormAck , J.
NATUre OF CASe
More than 15 years after Jeff Boppre was convicted of two
counts of first degree murder for the deaths of richard Valdez
and Sharon Condon, the case was reopened when Boppre filed
a motion for forensic testing pursuant to Nebraska’s DNA
Testing Act.1 Based on the DNA test results, Boppre filed a
motion for new trial and a petition for postconviction relief.
He now appeals from the denial of the motion for new trial,
the denial of his motion for postconviction relief, and the
denial of an evidentiary hearing on the postconviction motion.
We affirm.
BACkGrOUND
The facts as adduced at Boppre’s trial are contained in State
v. Boppre (Boppre I)2 and are not repeated herein, except as
otherwise indicated. In March 1989, Boppre was convicted of
two counts of first degree murder for the deaths of Valdez and
Condon. Boppre’s convictions and sentences were affirmed
on direct appeal.3 Boppre filed his first motion for a new
trial based on newly discovered evidence on March 13, 1992.
We affirmed the denial of that motion in State v. Boppre
(Boppre II).4 On August 17, 1995, Boppre filed his first motion
1 Neb. rev. Stat. § 29 4116 et seq. (reissue 2008).
2 State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
3 Id.
4 State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
776 	280 NeBrASkA repOrTS

for postconviction relief, claiming trial counsel was consti
tutionally deficient during his trial. We affirmed the denial
of postconviction relief in State v. Boppre (Boppre III).5 On
October 21, 2002, Boppre filed a second motion for post
conviction relief, claiming prosecutors withheld exculpatory
evidence. We summarily affirmed the denial of the second
postconviction motion, without a written opinion.6
On May 16, 2005, Boppre filed a motion for forensic testing
pursuant to the DNA Testing Act, which motion began the pro
ceedings being considered in this appeal. Boppre alleged such
testing would produce noncumulative, exculpatory evidence.
Boppre’s motion for DNA testing focused primarily on Valdez’
“dying declarations” and a pair of blue jeans believed to con
tain bloodstains from one or both victims. The jeans were
found at the trailer home of two of the State’s key witnesses,
kenard Wasmer and Alan Niemann.
At the original trial, the State presented evidence that Valdez
made two dying declarations identifying Boppre as his mur
derer. Specifically, the State alleged Valdez used his finger to
write on the floor with grease the letters “‘J F F B Ope ’”
and on the living room door casement with suspected blood the
letters “‘Je F F.’”7 The pair of jeans which Boppre believed to
contain bloodstains was not introduced at trial.
In his motion for DNA testing, Boppre contended that he
was framed by Wasmer and Niemann after they murdered
Valdez and Condon. He asserted the dying declarations should
be tested for epithelial cells left behind by the person who
wrote them with his or her finger.
regarding the jeans, Boppre alleged they belonged to and
were worn by Wasmer. Boppre theorized that if DNA test
results showed Wasmer was the “habitual wearer” of the jeans
and if the victims’ DNA was found on the jeans, it would
implicate Wasmer in the murders.
5 State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), disapproved on
other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
6 State v. Boppre, 267 Neb. xxi (No. S 03 541, Dec. 30, 2003).
7 Boppre I, supra note 2, 234 Neb. at 929, 453 N.W.2d at 416.
STATe v. BOppre 	777
Cite as 280 Neb. 774

An 	inventory 	of 	evidence 	was 	prepared 	pursuant 	to
§ 29 4120(4). The court ordered appropriate DNA testing on
the following items:
(1) pair of blue jeans from the Wasmer Niemann home
to include “habitual wearer analysis”. . . .
(2) Flooring containing grease letters . . . .
(3) Suspected blood stain on [living room] door frame
. . . .
(4) Suspected blood sample on [kitchen] door frame
. . . .
(5) Two towels . . . .
(6) Suspected blood splatters on door and curtain . . . .
(7) Suspected blood sample on carpet . . . .
(8) Blood samples of . . . Valdez, . . . Con[d]on, . . .
Wasmer, and . . . Niemann . . . .
Laboratory testing was performed on the jeans seized from the
Wasmer Niemann mobile home and cuttings taken from the
jeans in preparation for trial, but an insufficient amount of DNA
was present to obtain a complete DNA profile. Accordingly,
DNA testing failed to establish Wasmer as the habitual wearer
of the jeans. The DNA profile obtained from the jeans cuttings
was consistent with the DNA profile obtained from Wasmer.
Neither the jeans nor the jeans cuttings produced a DNA
profile consistent with the DNA profile of either Valdez or
Condon. Accordingly, DNA testing failed to establish the vic
tims’ blood on the jeans.
The letters and grease located on the flooring of the Valdez
residence also failed to yield a sufficient amount of DNA to
obtain a DNA profile. Thus, the DNA testing failed to defini
tively identify the author of the letters or contradict the State’s
theory that Valdez was the author.
The DNA report disclosed Condon to be the donor of the
DNA profile obtained from a sample collected from a piece of
wood from the north kitchen door frame at the Valdez Condon
residence. Additionally, a partial DNA profile obtained from a
towel found at the Wasmer Niemann trailer home was consist
ent with that of Niemann.
All other tested items resulted in an insufficient amount of
DNA to obtain a full DNA profile. However, a partial DNA
778 	280 NeBrASkA repOrTS

profile from an unknown male was obtained from a bloodstain
on the south entrance door to the Valdez Condon residence near
the doorknob. The DNA results obtained from the bloodstain
near the doorknob only revealed a partial profile; however,
enough genetic markers were present to search for a match.
The search revealed that the genetic markers contained in the
partial profile obtained near the doorknob were consistent with
John Yellowboy’s DNA profile.
Additional DNA testing was ordered on three brown or black
hairs collected from the flooring. Boppre, Valdez, Wasmer,
and Niemann were excluded as possible contributors. Condon
and her maternal relatives could not be excluded as possible
contributors, as maternally related relatives share identical
mitochondrial DNA profiles. Yellowboy is maternally related
to Condon.
Following completion of all DNA testing, the State filed a
motion to dismiss, while Boppre filed an amended motion to
vacate and set aside the judgment pursuant to § 29 4123(2); at
issue was whether the DNA results “exonerate or exculpate”
Boppre. An evidentiary hearing was held on August 5, 2008.
By stipulation of the parties, the court withheld its ruling until
all other pending motions were heard in order to effectuate one
appeal rather than multiple appeals.
The motion for new trial was heard on February 10, 2009.
The court indicated that the hearing was limited to the motion
for new trial; issues presented in the petition for postconviction
relief were not addressed. No further hearings were held.
On August 17, 2009, the district court (1) sustained the
State’s motion to dismiss; (2) overruled Boppre’s motion to
vacate and set aside judgment; (3) overruled Boppre’s motion
for new trial; (4) overruled Boppre’s petition for postconvic
tion relief; and (5) overruled all other relief requested by either
party. Boppre appeals the denial of a new trial on the basis of
newly discovered DNA evidence and the denial of his motion
for postconviction relief without an evidentiary hearing.
ASSIGNMeNTS OF errOr
Boppre assigns that the district court erred in (1) consider
ing only the DNA laboratory test results in the context of the
STATe v. BOppre 	779
Cite as 280 Neb. 774

original trial record when ruling on the motion for new trial;
(2) refusing to order a new trial; and (3) failing to conduct
an evidentiary hearing on allegations contained in Boppre’s
motion for postconviction relief, and denying postconvic
tion relief.
STANDArD OF reVIeW
[1] In an appeal from a proceeding under the DNA Testing
Act, the trial court’s findings of fact will be upheld unless such
findings are clearly erroneous.8
[2] A motion for new trial based on newly discovered excul
patory evidence obtained pursuant to the DNA Testing Act is
addressed to the discretion of the trial court.9 Absent an abuse
of discretion, the court’s determination will not be disturbed.10
[3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court reaches a conclusion inde
pendent of the lower court’s ruling.11
[4] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro
cedural due process presents a question of law.12
ANALYSIS
dNA teStiNg Act
[5 7] In this case, we examine the decision made by the dis
trict court pursuant to § 29 4120 of the DNA Testing Act. The
act permits the testing of relevant biological material and pro
vides the means by which a person in custody may seek relief
based upon newly discovered exculpatory DNA test results
obtained after the statutory time period for requesting a new
8 State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009).
9 See Neb. rev. Stat. § 29 2101(6) (reissue 2008).
10 State v. Pratt, supra note 8.
11 State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).
12 State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009); State v. Parker, 276
Neb. 661, 757 N.W.2d 7 (2008), modified on denial of rehearing 276 Neb.
965, 767 N.W.2d 68 (2009).
780 	280 NeBrASkA repOrTS

trial based upon newly discovered evidence has expired.13 If
the final testing results exonerate the defendant, the court may
vacate and set aside the judgment and release the person.14 If
the evidence does not exonerate the defendant, but is exculpa
tory, the court may order a new trial if the newly discovered
exculpatory DNA evidence is of such a nature that if it had
been offered and admitted at the former trial, it probably would
have produced a substantially different result.15
Boppre does not argue that the DNA evidence exonerates
him. Instead, he asserts that the DNA evidence is exculpatory,
and he seeks a new trial. Thus, at issue is whether the DNA
evidence was of such a nature that if it had been offered and
admitted at the former trial, it probably would have produced
a substantially different result.16 In considering this question,
we review the trial court’s decision for an abuse of discretion.17
Unless an abuse of discretion is shown, the trial court’s deter
mination will not be disturbed.18
The district court found that DNA testing disproved Boppre’s
hypothesis that the victims’ blood or the victims’ DNA would
be found on Wasmer’s jeans. At the trial in 1988, a forensic
serologist had testified that several small bloodstains on the
jeans could have come from Condon, but that she could not
make a definitive determination. The DNA laboratory testing
failed to disclose Valdez’ or Condon’s DNA on the seized jeans
or jeans cuttings. At best, the DNA results support a find
ing that Wasmer’s blood was on Wasmer’s jeans at Wasmer’s
trailer home.
The laboratory also tested the letters and grease located on
the flooring of the Valdez residence. An insufficient amount
of DNA was present to obtain a DNA profile. The district
13 State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
14 See id. See, also, State v. Buckman, 267 Neb. 505, 675 N.W.2d 372
(2004).
15 See, State v. Buckman, supra note 14; State v. Bronson, 267 Neb. 103, 672
N.W.2d 244 (2003).
16 See id.
17 State v. Bronson, supra note 15.
18 See id.
STATe v. BOppre 	781
Cite as 280 Neb. 774

court found that the DNA testing failed to identify the author
of the letters as anyone other than Valdez. Accordingly, the
court found that the evidence neither exonerated nor excul
pated Boppre.
The DNA report disclosed Condon to be the donor of
the DNA sample collected from a piece of wood which was
part of the north kitchen doorframe at the Valdez Condon
residence. The testing results of the three hairs found on the
flooring showed Condon and her maternal relatives could not
be excluded as possible contributors; Yellowboy was a mater
nal relative of Condon. Yellowboy’s DNA was also found at
the residence. Condon lived part time at the residence, and
Yellowboy was a frequent visitor. The district court found the
presence of Condon’s and Yellowboy’s DNA at the residence
was not exculpatory.
As described above, DNA effectively disproved the majority
of Boppre’s assertions in his motion for forensic testing. But
Boppre contends the forensic DNA indicates that Wasmer and
Niemann testified falsely at trial, and also implicates Niemann
and Yellowboy as the actual perpetrators of the crimes. These
contentions appear to be based on the fact that neither Wasmer
nor Niemann testified that Yellowboy was present during the
commission of the crime and on the theory that impeaching
these witnesses with Yellowboy’s DNA would have swayed the
jury to believe Boppre’s version of the events. Aside from this
argument, Boppre fails to allege any other way in which the
DNA results are exculpatory in light of the trial record.
We find the district court did not err in its determination
that the DNA results neither exonerate nor exculpate Boppre.
The results obtained from the three hairs and the presence of
Yellowboy’s DNA do not support Boppre’s argument. Boppre’s
reliance on these results is without merit. Condon was killed
in the residence, her maternal relatives were likely visitors to
the residence, and Yellowboy was a frequent visitor to the resi
dence. The presence of hairs matching Condon or her maternal
relatives neither exonerates nor exculpates Boppre. Yellowboy
admitted to being at the Valdez Condon residence on the night
of the murders. Because Valdez sold drugs from his home, the
residence frequently had visitors coming and going.
782 	280 NeBrASkA repOrTS

In its order, the district court concluded the DNA test results
failed to show the dying declarations were authored by anyone
other than Valdez. The DNA test results failed to confirm that
Wasmer was the habitual wearer of the jeans seized from his
residence or that the victims’ blood was on the jeans. The DNA
tests merely showed that Condon, a part time resident, and
Yellowboy, a frequent visitor, had been in the Valdez home at
some point in time prior to the murder investigation. That evi
dence neither exonerated nor exculpated Boppre.
We need not address Boppre’s first assignment of error that
the district court erred in considering only the DNA test results
in the context of the original trial and not also in light of the
other evidence presented by Boppre. even if the court had con
sidered the DNA results in light of all relevant evidence, the
DNA results would still not be exculpatory. Considering the
record before us, we find that the district court did not abuse
its discretion in denying the motion for new trial.
SecoNd SucceSSive motioN for
poStcoNvictioN relief
Boppre also asserts that his allegations of prosecutorial
misconduct and claim of ineffective assistance of counsel
merited both an evidentiary hearing and relief from the convic
tion. Boppre argues that these allegations, if true, amount to
a violation of due process. Although the district court stated
in its order denying the motion that it had granted an eviden
tiary hearing on February 10, 2009, our review of that hearing
reveals that the February 10 hearing was limited to the motion
for new trial and did not encompass the issues raised in the
petition for postconviction relief. We thus must determine
whether the district court erred in denying Boppre’s motion for
postconviction relief without an evidentiary hearing.
[8,9] Although there is no time limit to bringing a postconvic
tion motion, postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional viola
tions.19 Absent a factual circumstance whereby the judgment is
19 See, State v. Lotter, supra note 12; State v. Harris, 274 Neb. 40, 735
N.W.2d 774 (2007).
STATe v. BOppre 	783
Cite as 280 Neb. 774

void or voidable under the state or U.S. Constitution, the court
has no jurisdiction to grant postconviction relief.20
[10 12] An evidentiary hearing on a motion for postconvic
tion relief is required on an appropriate motion containing fac
tual allegations which, if proved, constitute an infringement of
the movant’s rights under the Nebraska or federal Constitution.21
But, this court has required that a defendant make specific alle
gations instead of mere conclusions of fact or law in order to
receive an evidentiary hearing for postconviction relief.22 And
postconviction relief without an evidentiary hearing is properly
denied when the files and records affirmatively show that the
prisoner is entitled to no relief.23
[13,14] In his brief, Boppre concedes that the sole issue to
be decided at this time is whether Boppre’s current postconvic
tion motion affirmatively alleges that the basis for relief was
not available at the time of the first petition. A motion for
postconviction relief cannot be used to secure review of issues
which were or could have been litigated on direct appeal, no
matter how those issues may be phrased or rephrased.24 An
appellate court will not entertain a successive motion for post
conviction relief unless the motion affirmatively shows on its
face that the basis relied upon for relief was not available at
the time the movant filed the prior motion.25 Whether a claim
raised in a postconviction proceeding is procedurally barred
is a question of law. When reviewing a question of law, an
appellate court reaches a conclusion independent of the lower
court’s ruling.26
20 State v. Lotter, supra note 12. See, also, State v. Murphy, 15 Neb. App.
398, 727 N.W.2d 730 (2007).
21 State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
22 Id.
23 See id.
24 State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
25 State v. Lotter, supra note 12; State v. Sims, 277 Neb. 192, 761 N.W.2d 527
(2009); State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).
26 State v. Thomas, supra note 11.
784 	280 NeBrASkA repOrTS

Boppre’s current motion for postconviction relief alleges
in part:
The prosecutors withheld exculpatory evidence; to wit:
1) that . . . Condon’s blood, which was type A, was found
on Wasmer’s jeans and a towel found in Wasmer’s house;
2) that Wasmer and Niemann’s blood was tested less than
60 days prior to trial and they both had type “O” blood;
3) the existence of [M.M.], as well as all other evidence
which would have led trial counsel to [M.M.], i.e., law
enforcement’s interviews with [M.M. and two other per
sons]; and information surrounding [M.M.’s] being moved
to a foster home in North platte; 4) the unedited version
of the crime scene video which shows law enforcement
looking under the body of Valdez and declaring that the
door had been kicked in rather than being opened by
Valdez as testified to by Niemann; and 5) crime scene
photographs which would show, inter alia, that there were
slivers of wood from the kicked in door under the body
of . . . Valdez.
None of the facts alleged in the current motion could prove
that the State withheld favorable evidence that was mate
rial to Boppre’s guilt, as required to show a violation of due
process.27 The DNA results proved that Condon’s blood was
not on Wasmer’s jeans. The other allegations were previously
the subject of motions for new trial and postconviction relief.
The past dispositions show these claims, on the merits, do
not amount to a violation of Boppre’s constitutional right to
due process.28
even assuming Boppre’s due process claim can rest on the
above allegations, his current motion is procedurally barred.
The motion fails to allege when he discovered the alleged
prosecutorial withholding of the aforementioned evidence. The
motion for postconviction relief broadly states that it “is based
in part upon information which has been recently received and
27 See, Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. ed. 2d 490
(1995); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. ed.
2d 481 (1985).
28 See Boppre II, supra note 4.
STATe v. BOppre 	785
Cite as 280 Neb. 774

is not requesting review of issues already litigated or decided.”
The motion also incorporates portions of M.M.’s “recently
obtained sworn statement.” Boppre fails to allege, however,
that the information contained in this affidavit was unavailable
before any of the numerous challenges already made to his
convictions and sentences.
Boppre also contends that trial counsel provided him inef
fective assistance of counsel. But Boppre raised the issue of
ineffective assistance of counsel in a previous motion for post
conviction relief.29 In his brief, Boppre argues that “[i]f original
trial counsel failed to identify and call an eyewitness to the
murder and that eyewitness identified [Yellowboy] as being
present, then there is not conceivable trial strategy that could
explain the failure to call that witness.”30 Boppre fails to further
identify in his brief any basis for his assertion that trial counsel
was ineffective. Further, the current petition for postconviction
relief fails to specify which allegations, if any, were unavail
able at the time Boppre filed his prior motions.
Boppre relies on State v. Ryan,31 in which this court deter
mined that newly discovered ex parte contacts by the trial judge
with the victim’s family were not procedurally barred in the
defendant’s successive postconviction motion. The holding in
Ryan was based on the presence of newly discovered evidence
that was not available to the defendant during his direct appeal
or his first postconviction motion.32 Boppre fails to explain how
Ryan is analogous to the present case. Neither Boppre’s current
petition for postconviction relief nor his brief identifies any
newly discovered evidence that Boppre was prevented from
obtaining at the time of his previous motions and appeals.
[15] Boppre’s current motion for postconviction relief fails
to affirmatively show that he could not have presented the alle
gations of prosecutorial misconduct and ineffective assistance
of counsel at the time he filed his prior motions. Therefore,
29 See Boppre III, supra note 5.
30 Brief for appellant at 47.
31 State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).
32 Id.
786 	280 NeBrASkA repOrTS

these claims are procedurally barred by Boppre’s failure to
raise them in his previous motions.33 The need for finality in
the criminal process requires that a defendant bring all claims
for relief at the first opportunity.34 As previously noted, this
court will not entertain a successive motion for postconviction
relief unless the motion affirmatively shows on its face that the
basis relied upon for relief was not available at the time the
movant filed the prior motion.35 On its face, Boppre’s current
motion for postconviction relief fails to affirmatively show that
he could not have raised these issues on direct appeal or during
prior motions for new trial and postconviction relief. We con
clude that the district court did not err in denying relief without
an evidentiary hearing.
CONCLUSION
The newly discovered DNA evidence is not of such a nature
that it probably would have produced a substantially different
result if it had been offered and admitted at trial. Therefore,
the district court did not abuse its discretion in concluding that
Boppre was not entitled to relief pursuant to the DNA Testing
Act. Boppre’s second successive motion for postconviction
relief was also without merit because it failed to affirmatively
show that it was not procedurally barred. The judgment of the
district court is affirmed.
A ffirmed.
33 See State v. Marshall, supra note 25.
34 State v. Lotter, supra note 12.
35 Id.
STATe v. BOppre 	787
Cite as 280 Neb. 774