dissenting.
I respectfully dissent from the majority opinion for the reasons given in State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), and State v. Williams, ante p. 931, 531 N.W.2d 222 (1995) (Wright, J., dissenting). Both Williams and the case at bar involved second motions for postconviction relief, and this court has granted relief on grounds- of plain error because the jury instructions did not include malice as an essential element of second degree murder.
In Williams, the court held that the defendant was denied effective assistance of counsel because trial counsel failed to object to the trial court’s omission of malice as an essential element of second degree murder in its jury instructions and that counsel’s failure to object to the trial court’s omission of an essential element of the crime charged fell below an objective standard of reasonableness and rendered the result of the trial both unreliable and fundamentally unfair, thereby prejudicing the defendant’s rights. In the case at bar, the court notes plain error for the same reasons cited in Williams, reverses the judgment of the district court, and remands the cause for a new trial.
A second motion for postconviction relief will not ordinarily be entertained unless the motion affirmatively shows on its face that the basis for the requested relief was not available at the time the movant filed the prior motion. See, State v. Keithley, ante p. 638, 529 N.W.2d 541 (1995); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989). According to the majority, when counsel failed to object to the trial court’s omission of malice as an essential element of second degree murder, counsel’s conduct fell below the objective standard of reasonableness and rendered the results of the trial unreliable and fundamentally unfair. For *951the reasons set forth in my dissent to Williams, I believe that such relief was available to Wilson at the time of the first postconviction proceeding and that there exists no basis to assert that the relief was not available to Wilson at that time. 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. State. v. Stewart, supra.
In my opinion, there is no basis for Wilson to assert a claim of ineffective assistance of counsel in a second postconviction proceeding. I would affirm the district court’s denial of Wilson’s request for postconviction relief.
Connolly, J., joins in this dissent.