State v. Banks ( 2014 )

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600 289 NEBRASKA REPORTS
a favorable result, and, upon obtaining an unfavorable result,
assert the previously waived error.”46 This assignment of error
is without merit.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court in all respects.
Affirmed.
46
Trotter, supra note 44, 262 Neb. at 467, 632 N.W.2d at 344.
State of Nebraska, appellee, v.
Antonio Banks, appellant.
___ N.W.2d ___
Filed December 5, 2014. No. S-13-740.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Postconviction: Final Orders: Appeal and Error. An order denying an eviden-
tiary hearing on a postconviction claim is a final judgment as to that claim, and
under Neb. Rev. Stat. § 25-1912 (Reissue 2008), a notice of appeal must be filed
with regard to such a claim within 30 days.
5. Jurisdiction: Time: Appeal and Error. Failure to timely appeal from a final
order prevents an appellate court’s exercise of jurisdiction over the claim dis-
posed of in the order.
6. Postconviction: Constitutional Law: Proof. A court must grant an eviden-
tiary hearing to resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an infringement of the
defend­ant’s rights under the state or federal Constitution.
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STATE v. BANKS 601
Cite as 289 Neb. 600
7. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required to grant an eviden-
tiary hearing.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed.
Antonio Banks, pro se.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Wright, J.
NATURE OF CASE
Antonio Banks appeals the order of the district court which
overruled his amended motion for postconviction relief with-
out an evidentiary hearing. We affirm.
SCOPE OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law. State v.
Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).
[2] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State
v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to the questions of counsel’s
performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the
lower court’s decision. Robinson, supra.
FACTS
In 2007, Banks was convicted of first degree murder and
use of a firearm to commit a felony in connection with the
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2005 shooting death of Robert Herndon. Banks was sentenced
to consecutive sentences of life imprisonment for first degree
murder and 20 to 30 years’ imprisonment for use of a fire-
arm to commit a felony. On direct appeal, we affirmed his
convictions and sentences. See State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009). The facts underlying Banks’ convic-
tions are set forth in detail in our opinion resolving his direct
appeal. See id. He was represented by attorneys from the
Lancaster County public defender’s office both at trial and on
direct appeal.
In 2011, Banks filed a pro se motion for postconviction
relief. He alleged that his trial counsel was ineffective for
failing to (1) conduct a “reasonable pretrial investigation,” (2)
obtain leave of court to hire an investigator, (3) “call impor-
tant witnesses who would have helped the defense support the
theory of self-defense,” (4) “pursue an affirmative defense of
self-defense and request a jury instruction on self-defense,”
and (5) make a challenge under Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), claiming that the
prosecution excluded qualified jurors on the basis of race. He
also made general allegations of prejudice due to counsel’s
alleged ineffectiveness. The State moved to deny an eviden-
tiary hearing and overrule Banks’ motion for postconvic-
tion relief.
On March 23, 2012, the district court overruled in part and
in part sustained the State’s motion. The court concluded that
Banks’ first ineffective assistance of counsel claim regarding
the alleged failure to conduct a reasonable pretrial investiga-
tion was “inadequately pled,” because Banks did not “identify
the witness or other exculpatory evidence that would have
been discovered had his trial counsel performed the pretrial
investigation [Banks] alleges was omitted.” The court deter-
mined that Banks should have an opportunity to amend his
motion to address the deficiency. It thus overruled the State’s
motion as to this claim and granted Banks leave to amend for
the sole purpose of “specify[ing] the exculpatory witness or
evidence that ought to have been discovered.”
The district court concluded that Banks was not entitled
to relief under any of the remaining ineffective assistance of
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counsel claims. As to those claims, it sustained the State’s
motion to deny an evidentiary hearing and overruled Banks’
motion. Banks did not timely appeal from the court’s March
23, 2012, order.
Banks filed an amended pro se motion for postconviction
relief. He alleged that his trial counsel was ineffective for
failing to interview and investigate individuals named “John
Ravlinson” and “Charles Bowling.” Banks claimed that the
testimony of Ravlinson and Bowling would have proved that
Banks acted in self-defense and would have “contradicted
the entire theory of the State’s presumption of premeditated
murder.” As such, Banks argued that if his counsel had inter-
viewed these witnesses and called them to testify at trial,
several things would have been different: (1) “[A] self-defense
instruction would have been submitted to the jury and Counsel
would have been permitted to argue self-defense,” (2) there
“would have been a reasonable probability that the jury might
have acquitted Banks,” and (3) he “may have received a
shorted [sic] prison term.” In response to Banks’ amended
motion, the State renewed its motion to deny an eviden-
tiary hearing.
On August 5, 2013, the district court sustained the State’s
motion to deny an evidentiary hearing and overruled Banks’
amended motion for postconviction relief. The court con-
cluded that Banks had “failed to state more than the mere
conclusion that these witnesses would have supported a the-
ory of self-defense.” It explained that Banks failed to show
how Ravlinson or Bowling could have provided any testi-
mony in support of a theory of self-defense, because Bowling
“was not present at the time of the murder” and Banks failed
to explain “who . . . Ravlinson [was] or how he [was] related
to the case.” The court also noted that Bowling testified at
Banks’ trial and that Banks did not “specify what additional
investigation or questioning he believes should have been
conducted by his counsel with reference to . . . Bowling.”
Thus, the court concluded that the “records and files in this
case clearly show[ed] that [Banks was] entitled to no relief,”
and it overruled Banks’ amended motion for postconvic-
tion relief.
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Banks timely appeals from the district court’s August 5,
2013, order.
ASSIGNMENTS OF ERROR
Banks assigns, consolidated and restated, that the district
court erred by (1) disregarding his arguments concerning
a Batson violation and (2) failing to grant him an eviden-
tiary hearing.
ANALYSIS
Jurisdiction
[3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. State v. Alfredson,
287 Neb. 477, 842 N.W.2d 815 (2014). The State argues that
the district court’s March 23, 2012, order dismissing four of
Banks’ five ineffective assistance of counsel claims was a final
order; that Banks did not file a timely appeal from that order;
and that as a consequence, we lack jurisdiction to consider any
of the claims denied in that order. We agree.
[4,5] The district court’s March 23, 2012, order was a final
order as to all of Banks’ claims except for the claim relating
to the reasonableness of trial counsel’s pretrial investigation,
because it denied an evidentiary hearing on those claims. An
order denying an evidentiary hearing on a postconviction claim
is a final judgment as to that claim, and under Neb. Rev. Stat.
§ 25-1912 (Reissue 2008), a notice of appeal must be filed with
regard to such a claim within 30 days. State v. Robinson, 287
Neb. 606, 843 N.W.2d 672 (2014). Failure to timely appeal
from a final order prevents our exercise of jurisdiction over the
claim disposed of in the order. State v. Poindexter, 277 Neb.
936, 766 N.W.2d 391 (2009).
Banks did not file a notice of appeal within 30 days of the
March 23, 2012, order. The only notice of appeal filed by
Banks was the one relating to the court’s August 5, 2013, order,
which was filed well outside the 30 days that he had to appeal
from the March 23, 2012, order. Therefore, we lack jurisdiction
to consider any assignments of error related to the claims that
were denied without a hearing in the March 23, 2012, order,
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including the claim that trial counsel was ineffective for failing
to raise a Batson challenge.
Ineffective Assistance of Counsel
in P retrial I nvestigation
The remaining assignment of error is whether the district
court erred by denying an evidentiary hearing on Banks’ inef-
fective assistance of counsel claim relating to the pretrial
investigation. The court denied this claim in its August 5, 2013,
order, from which Banks timely appealed.
[6,7] A court must grant an evidentiary hearing to resolve the
claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringement
of the defendant’s rights under the state or federal Constitution.
State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). If a
postconviction motion alleges only conclusions of fact or law,
or if the records and files in the case affirmatively show that
the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing. Id.
Banks was not entitled to an evidentiary hearing on his
ineffective assistance of counsel claim relating to the pretrial
investigation, because he alleged only conclusions of fact
or law. He alleged that his trial counsel was ineffective for
failing to interview and investigate individuals named “John
Ravlinson” and “Charles Bowling.” He claimed that if his
counsel had interviewed these witnesses, they could have pro-
vided testimony at trial that would have supported a defense
that Banks acted in self-defense. We note that at trial, “self-
defense was not Banks’ theory of the case,” and that he did not
testify. See State v. Banks, 278 Neb. 342, 366, 771 N.W.2d 75,
94 (2009).
Banks did not provide factual allegations to support his
claim that Ravlinson and Bowling had information on whether
Banks acted in self-defense. He did not allege what informa-
tion Ravlinson and Bowling would have provided or what the
substance of their testimony would have been. Banks failed
to explain how Ravlinson’s and Bowling’s testimony would
have been relevant to self-defense when there was no evidence
or allegation that either was present when Herndon was shot.
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Banks made only conclusory allegations that they could have
“shed light on what actually took place.”
The conclusory nature of Banks’ allegations is illustrated by
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009). In that
case, the defendant, Clifford J. Davlin, alleged that his trial
counsel was ineffective for failing to offer the testimony of two
specific witnesses named “Guilliatt” and “Davis.” He claimed
those witnesses could have provided “‘important exculpatory
and alibi evidence.’” See id. at 983, 766 N.W.2d at 380. We
concluded that Davlin’s motion was conclusory and did not
warrant an evidentiary hearing:
There is nothing in Davlin’s motion (or indeed in the
record) that would suggest the nature of the exculpatory
evidence to which Guilliatt and Davis would testify. Nor
is there any indication what alibi either might provide
Davlin. Rather than providing any detail, Davlin alleges
only conclusions of fact and law. Such are insufficient to
support the granting of an evidentiary hearing.
Id. at 984, 766 N.W.2d at 380.
Davlin was not entitled to an evidentiary hearing even
though he suggested that certain witnesses, if called to testify,
would have established his alibi. We found such allegations to
be conclusory, because Davlin did not allege specifically what
the witnesses would have said or how that evidence would
have established his alibi.
Similarly, Banks’ allegation that Ravlinson and Bowling
would have provided support for a theory of self-defense was
conclusory and did not warrant an evidentiary hearing. The
district court did not err in denying Banks’ amended motion
without an evidentiary hearing.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
order which denied Banks’ amended motion for postconviction
relief without an evidentiary hearing.
Affirmed.
Heavican, C.J., not participating.