Decisions of the Nebraska Court of Appe

GRAY v. KENNEY 739

Cite as 22 Neb. App. 739

by the record. See Clark v. Alegent Health Neb., 285 Neb. 

60, 825 N.W.2d 195 (2013). This assignment of error has 

no merit.

CONCLUSION

For the reasons set forth above, we affirm the decision of the 

compensation court.

Affirme

Graylin Gray, appellant, v. Michael Kenney

director of Nebraska Department 

Correctional Services, appelle

___ N.W.2d ___

Filed February 3, 2015. No. A-14-378.

1. Affidavits: Appeal and Error. An appellate court reviews a district court’s 

denial of in forma pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 

2008) de novo on the record based on the transcript of the hearing or the written 

statement of the court.

2. Constitutional Law: Judgments. Except in those cases where the denial of in 

forma pauperis status would deny a defendant his or her constitutional right to 

appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows 

the court on its own motion, or upon objection by any interested party, to deny in 

forma pauperis status on the basis that the legal positions asserted by the applicant are frivolous or malicious.

3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev. 

Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without 

rational argument based on the law or on the evidence.

4. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action 

for habeas corpus is a collateral attack on a judgment of conviction.

5. Judgments: Collateral Attack. Only a void judgment may be collaterally 

attacked.

6. Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject to collateral attack.

7. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to 

discharge a person from a sentence of penal servitude where the court imposing 

the sentence had jurisdiction of the offense and the person of the defendant, and 

the sentence was within the power of the court to impose.

8. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors, 

and its use will not be permitted for that purpose.
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740 22 NEBRASKA APPELLATE REPORTS

9. Habeas Corpus: Sentences. The regularity of the proceedings leading up to the 

sentence in a criminal case cannot be inquired into on an application for writ of 

habeas corpus, for that matter is available only in a direct proceeding.

10. Jurisdiction: Judgments: Appeal and Error. Where jurisdiction has attached, 

mere errors or irregularities in the proceedings, however grave, although they 

may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void.

11. Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent 

jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in 

both actions.

12. ____. The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the 

prior action.

13. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an 

appellate court on questions presented to it in reviewing proceedings of the 

trial court become the law of the case; those holdings conclusively settle, for 

purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.

14. Actions: Res Judicata. Unlike the doctrine of res judicata, which involves 

successive suits, the law-of-the-case doctrine involves successive stages of one 

continuing lawsuit.

15. Habeas Corpus: Appeal and Error. The law-of-the-case doctrine applies to 

issues raised in a petition for a writ of habeas corpus if that same issue was raised 

in the appellate court on direct appeal.

16. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an 

appellate court.

Appeal from the District Court for Lancaster County: Steve

D. Burns, Judge. Affirmed

Graylin Gray, pro se.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Irwin, Riedmann, and Bishop, Jud

Riedmann, Judg

INTRODUCTION

Graylin Gray appeals from the order of the district court 

for Lancaster County which denied his application to proceed 
Decisions of the Nebraska Court of Appe

GRAY v. KENNEY 741

Cite as 22 Neb. App. 739

in forma pauperis on his petition for writ of habeas corpus. 

We affirm.

BACKGROUND

Gray was convicted by a jury of unlawful possession of four 

or more financial transaction devices and unlawful circulation 

of financial transaction devices in the first degree. The district 

court determined that Gray was a habitual criminal and sentenced him to 10 to 20 years’ imprisonment on each count. 

On direct appeal, Gray challenged, among other things, the 

district court’s determination that he was a habitual criminal. In 

a memorandum opinion filed on March 12, 2009, in case No. 

A-08-336, we found that the evidence was sufficient to support the district court’s habitual criminal finding and affirmed 

Gray’s convictions and sentences in all respects.

On March 14, 2014, Gray filed a petition for writ of habeas 

corpus, alleging that his sentences are void because the district 

court applied the wrong burden of proof in determining that he 

was a habitual criminal. Along with his habeas petition, Gray 

filed a motion to proceed in forma pauperis and a poverty 

affidavit. The State timely filed an objection to Gray’s motion 

to proceed in forma pauperis on the basis that his habeas petition was frivolous. A hearing was held on the State’s objection, during which the State offered into evidence a copy of 

our opinion affirming Gray’s convictions and sentences on 

direct appeal.

Following a hearing, the district court sustained the State’s 

objection and denied Gray’s motion to proceed in forma pauperis. It found that the petition appeared to be frivolous on its 

face, in that the issues raised in the petition had been previously litigated and that none of the issues raised in the petition 

establish that the commitment was void.

Gray timely appeals from that decision.

ASSIGNMENT OF ERROR

Gray assigns that the district court erred in denying his 

application to proceed in forma pauperis on his petition for 

writ of habeas corpus.
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742 22 NEBRASKA APPELLATE REPORTS

STANDARD OF REVIEW

[1] A district court’s denial of in forma pauperis status under 

Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de 

novo on the record based on the transcript of the hearing or the 

written statement of the court. Peterson v. Houston, 284 Neb. 

861, 824 N.W.2d 26 (2012).

ANALYSIS

Denial of In Forma Pauperis Status.

[2,3] Applications to proceed in forma pauperis are governed 

by § 25-2301.02. Peterson v. Houston, supra. Except in those 

cases where the denial of in forma pauperis status would deny 

a defendant his or her constitutional right to appeal in a felony 

case, § 25-2301.02(1) allows the court on its own motion, or 

upon objection by any interested party, to deny in forma pauperis status on the basis that the legal positions asserted by the 

applicant are frivolous or malicious. See Peterson v. Houston, 

supra. A frivolous legal position pursuant to § 25-2301.02 is 

one wholly without merit, that is, without rational argument 

based on the law or on the evidence. Peterson v. Houston, 

supra. We agree with the district court’s conclusion that Gray’s 

habeas petition is frivolous because the judgment Gray seeks 

to attack is not void and because the issues Gray seeks to challenge have been previously litigated.

[4-7] Under Nebraska law, an action for habeas corpus is 

a collateral attack on a judgment of conviction. Id. Only a 

void judgment may be collaterally attacked. Id. Where the 

court has jurisdiction of the parties and the subject matter, 

its judgment is not subject to collateral attack. Id. Thus, a 

writ of habeas corpus will not lie to discharge a person from 

a sentence of penal servitude where the court imposing the 

sentence had jurisdiction of the offense and the person of the 

defendant, and the sentence was within the power of the court 

to impose. Id.

[8-10] A writ of habeas corpus is not a writ for correction 

of errors, and its use will not be permitted for that purpose. Id.

“‘[T]he regularity of the proceedings leading up to the sentence 

in a criminal case cannot be inquired into on an application 

for writ of habeas corpus, for that matter is available only in 
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GRAY v. KENNEY 743

Cite as 22 Neb. App. 739

a direct proceeding.’” Id. at 867, 824 N.W.2d at 33. “‘Where 

jurisdiction has attached, mere errors or irregularities in the 

proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void.’” Id. at 

869, 824 N.W.2d at 34.

Gray’s habeas petition asserts that his sentences are void 

because the district court determined that he was a habitual 

criminal beyond a reasonable doubt, rather than by a preponderance of the evidence. We disagree. The fact that the district 

court applied a higher burden of proof in determining Gray’s 

habitual criminal status does not make his sentences void. 

Because the district court had proper jurisdiction and Gray’s 

sentences were within its power to impose, his petition for 

habeas corpus is frivolous.

The State also argues that any claims regarding Gray’s status 

as a habitual criminal are precluded under the doctrines of res 

judicata and the law of the case. While we agree that the lawof-the-case doctrine precludes relitigation of the habitual criminal issue, we disagree that res judicata is applicable. Because 

these are independent doctrines which are sometimes closely 

related, we address each separately.

Res Judicata.

[11,12] The doctrine of res judicata, or claim preclusion, bars 

the relitigation of a matter that has been directly addressed or 

necessarily included in a former adjudication if (1) the former 

judgment was rendered by a court of competent jurisdiction, 

(2) the former judgment was a final judgment, (3) the former 

judgment was on the merits, and (4) the same parties or their 

privies were involved in both actions. Kiplinger v. Nebraska 

Dept. of Nat. Resources, 282 Neb. 237, 803 N.W.2d 28 (2011). 

The doctrine bars relitigation not only of those matters actually litigated, but also of those matters which might have been 

litigated in the prior action. Id.

The determination that Gray was a habitual criminal was 

made by a court of competent jurisdiction and was a final judgment on the merits. However, the same parties or their privies were not involved in both actions. The habitual criminal 
Decisions of the Nebraska Court of Appe

744 22 NEBRASKA APPELLATE REPORTS

finding arose out of a case filed by the State of Nebraska 

against Gray in case No. A-08-336, and the postconviction 

cases involved those same parties in cases Nos. A-10-147 

and A-13-254. The present action for a writ of habeas corpus, however, was filed by Gray against Michael Kenney, the 

director of the Nebraska Department of Correctional Services. 

There is no showing that Kenney is in privity with the State 

of Nebraska. Privity requires, at a minimum, a showing that 

the parties in the two actions are really and substantially in 

interest the same. R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 

505 (2002). Because Kenney and the State of Nebraska are 

not in privity, the fourth element for an application of res 

judicata fails.

Law-of-the-Case Doctrine.

[13,14] Under the law-of-the-case doctrine, the holdings of 

an appellate court on questions presented to it in reviewing 

proceedings of the trial court become the law of the case; those 

holdings conclusively settle, for purposes of that litigation, all 

matters ruled upon, either expressly or by necessary implication. State v. Merchant, 288 Neb. 439, 848 N.W.2d 630 (2014). 

Unlike the doctrine of res judicata, which involves successive 

suits, the law-of-the-case doctrine involves successive stages 

of one continuing lawsuit. See Money v. Tyrrell Flowers, 275 

Neb. 602, 748 N.W.2d 49 (2008).

While we are not aware of any precedent applying the 

law-of-the-case doctrine to claims raised in a petition for 

writ of habeas corpus that were previously rejected on direct 

appeal, the Nebraska Supreme Court has applied the doctrine 

when that issue was addressed on direct appeal. See, State v. 

Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005) (applying doctrine to subsequent postconviction); Thomas v. State, 268 Neb. 

594, 685 N.W.2d 66 (2004) (applying doctrine to subsequent 

petition to perpetuate juror’s testimony).

Both State v. Marshall, supra, and Thomas v. State, supra, 

involved subsequent actions derived from the original convictions. In State v. Marshall, the defendant filed a motion for 

postconviction relief after his convictions were affirmed by the 

Supreme Court on direct appeal. The district court denied the 
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GRAY v. KENNEY 745

Cite as 22 Neb. App. 739

motion without an evidentiary hearing. Id. At issue in the direct 

appeal was whether a plea in bar was properly overruled. The 

Supreme Court held that because the defendant did not timely 

appeal from the order denying his plea in bar, it lacked jurisdiction to address the alleged error. When the defendant raised 

the issue in his postconviction motion, the Supreme Court held 

that its decision in the direct appeal that the order on the plea 

in bar was final constituted the law of the case which applied 

in the postconviction proceeding. Id.

In Thomas v. State, supra, the defendant in the trial court 

had been convicted and his convictions were affirmed on direct 

appeal. He subsequently filed a petition seeking to perpetuate 

the testimony of three jurors who participated in his trial, citing what is now codified as Neb. Ct. R. Disc. § 6-327(a). He 

alleged that one of the jurors failed to disclose during voir dire 

that he had a relative who had been the victim of a murder. 

The district court sustained the State’s motion to dismiss. On 

appeal, the Nebraska Supreme Court stated that it had previously rejected this juror issue on direct appeal. The Supreme 

Court concluded that its opinion in the direct appeal became 

the law of the case and precluded further consideration of the 

issue in the appeal of the subsequent action.

The law-of-the-case doctrine generally applies to successive stages of the same lawsuit. In re Estate of Stull, 261 

Neb. 319, 622 N.W.2d 886 (2001). However, as evidenced 

by State v. Marshall, supra, and Thomas v. State, supra, the 

doctrine may also be applied to an issue raised in a subsequent action when that action is derived from a direct appeal. 

For example, postconviction relief is sought by a convicted, 

imprisoned person “on the ground that there was such a denial 

or infringement of the rights of the prisoner as to render the 

judgment void or voidable.” Neb. Rev. Stat. § 29-3001 (Cum. 

Supp. 2014). Therefore, a postconviction action, although 

separate from the criminal action in which the defendant was 

convicted, necessarily requires an analysis of the underlying conviction.

[15] In the present action, Gray filed a petition for a writ 

of habeas corpus. An action for habeas corpus is a collateral 

attack on a judgment of conviction. Peterson v. Houston, 
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746 22 NEBRASKA APPELLATE REPORTS

284 Neb. 861, 824 N.W.2d 26 (2012). See Neb. Rev. Stat. 

§ 29-2801 (Reissue 2008). Similar to a motion for postconviction relief, a petition for a writ of habeas corpus is dependent 

upon the underlying conviction. We therefore hold that the 

law-of-the-case doctrine applies to issues raised in a petition 

for a writ of habeas corpus if that same issue was raised in the 

appellate court on direct appeal.

We conclude that the law-of-the-case doctrine is applicable 

here. On direct appeal, Gray challenged the district court’s 

determination that he was a habitual criminal, and in case No. 

A-08-336, we affirmed the district court’s finding after analyzing the sufficiency of the evidence to prove two of Gray’s prior 

convictions. Because Gray’s status as a habitual criminal has 

already been challenged and affirmed by this court, his attempt 

to raise the issue again in his petition for writ of habeas corpus 

is frivolous.

Challenge to Bill of Exceptions.

[16] Finally, Gray argues in his brief that certain statements he made during the hearing on the State’s objection 

to his motion to proceed in forma pauperis were incorrectly 

transcribed. However, Gray did not assign this issue as error. 

An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to 

be considered by an appellate court. State v. Turner, 288 Neb. 

249, 847 N.W.2d 69 (2014). Because Gray did not assign this 

issue as error, we will not address it on appeal.

CONCLUSION

The district court did not err in denying Gray’s application 

to proceed in forma pauperis on his petition for writ of habeas 

corpus. Upon the spreading of our mandate affirming the 

district court’s denial of in forma pauperis status, Gray shall 

have 30 days to pay the fees necessary to file his petition. See 

§ 25-2301.02(1).

Affirme