State v. Malone (supplemental opinion) ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/11/2021 08:10 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MALONE
Cite as 309 Neb. 399State of Nebraska, appellee, v.
Kevin W. Malone, appellant.
___ N.W.2d ___
Filed June 4, 2021. Nos. S-20-118, S-20-460.
supplemental opinion
Appeals from the District Court for Douglas County: Shelly
R. Stratman, Judge. Former opinion modified. Motion for
rehearing overruled.
Richard L. Boucher and Bradley H. Supernaw, of Boucher
Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellant, Kevin W. Malone, concerning our opinion in State
v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021). We find
no substantive merit to Malone’s motion and overrule it, but
modify the opinion as follows:
In the analysis section, under the heading “2. Postconvic­
tion Relief” and the subheading “(b) Claim of Prosecutorial
Mis­conduct,” id. at 962, 957 N.W.2d at 920, we withdraw the
second paragraph and substitute the following:
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MALONE
Cite as 309 Neb. 399The district court first rejected this argument as pro-
cedurally barred. However, Malone had amended his
motion to add an allegation that his appellate counsel had
been ineffective for failing to raise the claims of pros-
ecutorial misconduct on direct appeal. The district court
alternatively rejected Malone’s claim, reasoning that even
if not procedurally barred, the claim failed to “set forth
the facts and applicable law to establish an objection
based on any of these prosecutorial [misconduct] claims
would . . . have been successful.” We agree.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.