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Gray v. Kenney

Supreme Court of Nebraska

May 15, 2015

GRAYLIN GRAY, APPELLANT,
v.
MICHAEL KENNEY, DIRECTOR OF NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, APPELLEE

Page 128

Petition for further review from the Court of Appeals, Irwin, BISHOP, and RIEDMANN, Judges, on appeal thereto from the District Court for Lancaster County, STEVEN D. BURNS, Judge. Judgment of Court of Appeals affirmed as modified.

Graylin Gray, Pro se.

Douglas J. Peterson, Attorney General, and George R. Love and, on brief, Jon Bruning, former Attorney General, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 129

Per Curiam.

Graylin Gray filed a petition in the district court for Lancaster County seeking a writ of habeas corpus. He moved to proceed in forma pauperis, and the district court denied the motion. The Nebraska Court of Appeals affirmed, and Gray petitioned for further review. We affirm as modified.

[290 Neb. 889] BACKGROUND

Gray was convicted of unlawful possession of four or more financial transaction devices and unlawful circulation of financial transaction devices in the first degree. He was found to be a habitual criminal and sentenced to 10 to 20 years' imprisonment on each count, the sentences to run consecutively. On direct appeal, in case No. A-08-336, the Nebraska Court of Appeals affirmed his convictions and sentences in an unpublished memorandum opinion filed on March 12, 2009. Subsequently, on July 28, 2010, in case No. A-10-147, the Court of Appeals affirmed in another unpublished memorandum opinion a judgment denying Gray's motion for postconviction relief. The U.S. District Court for the District of Nebraska then dismissed Gray's petition for habeas corpus challenging the same convictions.[1]

In 2014, Gray filed a verified petition for writ of habeas corpus in the district court for Lancaster County, naming " Michael Kenney, Director of Nebraska Department of Correctional Services" as respondent. In his petition, Gray alleged his convictions and sentences were void, because the trial court made the habitual criminal determination utilizing the standard of " beyond a reasonable doubt," rather than the standard of " by a preponderance of the evidence." Gray filed a motion to proceed in forma pauperis, supported by his poverty affidavit. Kenney objected to the motion on the ground that Gray's petition for writ of habeas corpus had " no basis in fact or law and [was] frivolous." The district court agreed and denied Gray's motion to proceed in forma pauperis. Gray appealed.

In a published opinion, the Nebraska Court of Appeals affirmed.[2] It agreed that Gray's habeas petition was frivolous within the meaning of Neb. Rev. Stat. § 25-2301.02 (Reissue 2008), reasoning: " The fact that the district court applied a higher burden of proof in determining Gray's habitual

Page 130

criminal status does not make his sentences void. Because the district court had proper jurisdiction and Gray's sentences were [290 Neb. 890] within its power to impose, his ...


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