State v. Cullen , 311 Neb. 383 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/22/2022 01:06 AM CDT
- 383 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383State of Nebraska, appellee, v.
Sarah A. Cullen, appellant.
___ N.W.2d ___
Filed April 15, 2022. No. S-21-447.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Judgments: Proof. Postconviction
relief is available to a prisoner in custody under sentence who seeks to
be released on the ground that there was a denial or infringement of his
or her constitutional rights such that the judgment was void or voidable.
Thus, in a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his or her rights
under the U.S. or Nebraska Constitution, causing the judgment against
the defendant to be void or voidable.
3. Postconviction: Constitutional Law: Proof. 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 U.S. or Nebraska
Constitution. 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.
4. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
- 384 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 3836. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of the test
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must demonstrate a reasonable
probability that but for his or her counsel’s deficient performance, the
result of the proceeding would have been different. A reasonable prob-
ability does not require that it be more likely than not that the deficient
perform­ance altered the outcome of the case; rather, the defendant must
show a probability sufficient to undermine confidence in the outcome.
7. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), may be addressed in either order, and the entire
ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable.
8. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If
trial counsel was not ineffective, then the defendant was not prejudiced
by appellate counsel’s failure to raise the issue. Much like claims of
ineffective assistance of trial counsel, the defendant must show that but
for appellate counsel’s failure to raise the claim, there is a reasonable
probability that the outcome would have been different.
9. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been if they had been called at trial in order to avoid dis-
missal without an evidentiary hearing.
10. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
Appeal from the District Court for Douglas County:
Gregory M. Schatz, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
- 385 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Sarah A. Cullen appeals the order of the district court for
Douglas County which denied her motion for postconviction
relief. Cullen, who is serving a sentence of imprisonment for
70 years to life for a conviction for intentional child abuse
resulting in death, set forth claims of ineffective assistance of
both trial and appellate counsel. The district court determined
that all of Cullen’s claims were insufficiently pled, and it there-
fore denied her motion for postconviction relief without an
evidentiary hearing. We affirm.
STATEMENT OF FACTS
Cullen was convicted of intentional child abuse resulting in
death in connection with the death of an infant who was in her
care. The district court sentenced her to imprisonment for 70
years to life, and her conviction and sentence were affirmed
on direct appeal. State v. Cullen, 292 Neb. 30, 870 N.W.2d
784 (2015).
Further details may be found in the opinion on direct appeal,
but the evidence generally showed as follows: In January
2013, Christopher (Chris) Bell and Ashley Bell hired Cullen to
work temporarily in their home as a nanny for their son, Cash
Christopher Bell, who was born in October 2012. On the morn-
ing of February 28, 2013, Cullen was caring for Cash while the
Bells were at work. Both Chris and Ashley testified that it had
been a typical morning before they went to work and that Cash
was acting normally. Cullen arrived at the Bells’ house at 7:15
a.m. Chris had already left for work, and Ashley left for work
at around 7:40 a.m.
Around 9:19 a.m., Chris returned home to retrieve a check-
book. Chris looked in on Cash who was lying face down.
Chris rolled Cash over; Cash did not open his eyes, but he
took a breath and Chris believed that he was sleeping. Cullen
- 386 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383was in a nearby bathroom while Chris was in the house. Chris
estimated he was in the house for less than a minute, and as
he was getting into his car, Cullen came to the door with Cash
in her arms.
At around 10:15 a.m., Cullen called her boyfriend and told
him that Cash was not breathing and that his feet were blue.
Her boyfriend came to the Bells’ house. Cash was not respon-
sive but was breathing. Cullen’s boyfriend took Cash and
Cullen to a hospital. When they arrived at the hospital’s emer-
gency room, Cullen stated that she found Cash “sleeping on his
belly and he doesn’t normally sleep like that.”
Cullen called Ashley shortly after calling her boyfriend.
Cullen told Ashley that she was taking Cash to the hospital
because he had just woken up from a nap and was not breath-
ing right. The Bells arrived at the emergency room. Ashley
questioned Cullen about what had happened that morning,
and Cullen stated only that Cash woke up from his nap in
that condition.
Cash was eventually transported to a pediatric hospital due
to the extent of his injuries. Cash’s neurological condition
rapidly deteriorated over the following days. He exhibited a
lack of responsiveness and frequent seizures that could be con-
trolled only through high doses of medication. Doctors deter-
mined that Cash would not have any significant neurologic
recovery, and based on the doctors’ long-term prognosis that
Cash would never be able to see, hear, or walk or be without a
feeding tube and a ventilator, the Bells decided to take Cash off
life support on March 5, 2013. He died that day.
Law enforcement officers interviewed Cullen on February
28 and March 1, 2013. During the February 28 interview,
Cullen told four versions of what had occurred with Cash that
morning. She first stated that Cash had been acting normally
but that after he woke from a nap, his breathing was not
normal. At that time, Cullen denied that Cash had fallen or
had an accident that morning. After the interviewer informed
Cullen that Cash’s skull was fractured and that his head had
- 387 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383to have hit something or something had to have hit his head,
Cullen stated that when she was walking out the back door
with Cash, she may have accidentally hit his head on the door.
The interviewer later informed Cullen that a pediatrician had
said that Cash’s injuries could not have been caused by hitting
his head on a door. Cullen initially denied that anything else
had happened, but she later stated that Cash had fallen out of
his swing at about 8:15 a.m. and that he whimpered but then
fell asleep. The interviewer again consulted with a pediatri-
cian and informed Cullen that Cash’s injuries could not have
been caused by a short fall from the swing and that instead,
his injuries were consistent with shaking or being thrown down
hard. Cullen began crying and admitted that she had lied. She
stated that Cash had fallen out of the swing the day before, but
that at about 8:15 a.m. on February 28, she had slipped on the
stairs while carrying Cash and he had fallen onto the tile floor
below. She denied shaking Cash. Cullen generally maintained
this fourth version of events in a written statement and during
an interview on March 1.
Several medical experts testified about the extent of Cash’s
injuries and their possible causes. Evidence indicated signifi-
cant injuries, including a large hematoma and a smaller bruise
on the back of the head, two skull fractures, ­hemorrhages in
the surface of the brain, injury to the brain itself, and multiple
retinal hemorrhages. Doctors testified that the brain injuries
affected Cash’s entire brain and that 90 percent of his brain
was permanently damaged. The medical experts agreed that
Cash’s injuries were consistent with nonaccidental trauma
caused by shaking or impacts to the head or both. None of the
experts could pinpoint an exact date and time of injury, but
they estimated that the brain and eye injuries occurred within
0 to 2 days of February 28, 2013. Based on medical evidence
and statements given by the Bells and Cullen, two medical
experts opined that Cash’s brain injury occurred sometime
after Ashley left for work on February 28. They testified that
children with Cash’s type of brain injury are immediately
- 388 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383unwell and that symptoms would manifest fairly quickly and
would be noticeable. Several medical experts testified that
Cullen’s versions of events could not have accounted for all of
Cash’s injuries.
Cullen appealed her conviction and sentence to this court.
Cullen had new counsel on direct appeal, and in addition to
other assignments of error, she set forth claims of ineffec-
tive assistance of trial counsel. She claimed that trial counsel
was ineffective in four respects, and we determined that three
of the claims were without merit. The fourth claim was that
trial counsel was ineffective for failing to investigate and call
a medical expert to testify on her behalf. We concluded that
the record on direct appeal was inadequate to address this
claim. Having rejected Cullen’s other assignments of error, we
affirmed her conviction and sentence. State v. Cullen, 292 Neb.
30, 870 N.W.2d 784 (2015).
On November 16, 2016, Cullen filed a verified motion for
postconviction relief in which she set forth four claims of inef-
fective assistance of trial counsel and one claim of ineffective
assistance of appellate counsel. We quote these allegations
later in our opinion. Before setting forth her specific claims of
ineffective assistance of counsel, Cullen made certain allega-
tions in her motion. She generally alleged as follows: After
being charged in this case, Cullen was originally represented
by counsel retained by her father. She asserted that her original
counsel “performed valuable service” but that he eventually
withdrew as counsel upon the advice of a trial consultant.
Cullen’s original counsel had contacted a trial consultant from
Ohio with whom he had a professional relationship. He asked
the trial consultant, who had 25 years of experience assisting
in the defense of persons charged with child abuse, to eval­
uate Cullen’s case. After meeting with Cullen and reviewing
evidence in this case, the trial consultant determined that
Cullen’s case was “fully defensible.” The trial consultant made
suggestions of how Cullen’s case could be defended, and she
recommended “several experts” who could provide testimony
- 389 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383in Cullen’s defense. In her motion for postconviction relief,
Cullen included a list of the names of several experts who had
been recommended by the trial consultant. The trial consultant
further advised that Cullen’s original counsel should withdraw,
because Cullen’s father could not afford to hire the expert wit-
nesses, and that if original counsel withdrew, Cullen would
be eligible to be represented by the public defender’s office,
which would have the budget to hire the experts.
After her original counsel withdrew, Cullen was represented
at trial by public defenders. Cullen alleged that her original
counsel provided the public defenders with a confidential
memorandum setting forth various issues and his suggestions
of how Cullen’s defense should be handled, including potential
witnesses and theories of defense. Those theories of defense
involved the possibility that Cash’s injuries occurred prior to
the time Cullen was caring for him on February 28, 2013, and
the possibility that one of Cash’s parents caused the injuries.
The memorandum also set forth suggestions of the trial con-
sultant, including the names of experts recommended by the
trial consultant.
In support of her claims of ineffective assistance of trial
counsel, Cullen generally alleged that trial counsel failed to
follow up on the suggestions and recommendations of her
original counsel and the trial consultant and that trial counsel
failed to consult with her regarding potential defenses and wit-
nesses and her right to testify at trial. In support of her claim
of ineffective assistance of counsel on direct appeal, Cullen
alleged that upon her conviction, her father hired new counsel
to prosecute her direct appeal but that such counsel provided
inadequate representation. She alleged that appellate counsel
failed to meet with her to discuss the issues in her appeal and
never explained to her the need to bring forward all instances
of ineffective assistance of trial counsel. She alleged that if
appellate counsel had so advised her, she would have identified
the failures of trial counsel that she set forth in her postconvic-
tion claims of ineffective assistance of trial counsel.
- 390 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383The State moved the district court to dismiss Cullen’s motion
for postconvicton relief without an evidentiary hearing. The
court granted the State leave to submit written arguments, and
it granted Cullen leave to file responsive written arguments.
After the parties submitted written arguments, the court filed
an order on May 7, 2021, in which it found that Cullen was not
entitled to an evidentiary hearing. The court generally deter-
mined that each of Cullen’s claims was not pled with adequate
specificity, and it therefore dismissed Cullen’s motion for post-
conviction relief.
Cullen’s first claim of ineffective assistance of trial coun-
sel was that counsel “failed to adequately investigate [her]
defenses and advise [her] of her options, including but not
limited to the alternate theories of the cause of the severity of
the injuries.” With regard to this claim, the district court stated
that Cullen had “failed to set out what exculpatory evidence
might have been found with an adequate investigation, or how
the outcome of the trial would have been different with such
an investigation.” The court stated that Cullen simply listed the
names of potential witnesses that should have been contacted
but that she provided “no facts as to what information . . .
they would have provided or how any such information might
have impacted cross-examination of the State’s witnesses.” The
court concluded that Cullen made “no specific allegations as
to how a more effective investigation would have changed the
outcome of the trial.”
Cullen’s second claim of ineffective assistance of trial
counsel was that counsel “failed to investigate the hiring
of expert witnesses to support [her] description of how the
injury occurred and failed to utilize [a] trial consultant with
25 years of experience who had examined the facts and met
with [Cullen].” With regard to this claim, the court stated that
Cullen “provided no specific defenses that would have been
offered through any such expert witnesses, or the details of
any alternative explanations that might have been presented
- 391 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383. . . at trial” and that she “failed to set forth any testimony that
such an expert would have given.” Regarding the use of a trial
consultant, the court stated that Cullen “failed to show how an
expert assisting [Cullen] could have provided [Cullen’s] coun-
sel with assistance in a more effective cross-examination of the
State’s expert witnesses.”
Cullen’s third claim of ineffective assistance of trial counsel
was that counsel “failed to meet with her on a single occasion
to discuss the facts of the case, failed to consult with her about
her right to testify and fail[ed] to inquire as to her desire to
testify at trial.” With regard to this claim, the court stated that
Cullen “failed to show how any such meeting with [Cullen]
might have had an impact on the outcome of the trial, or that
there is a reasonable probability that the outcome of [her]
trial would be different.” Regarding Cullen’s right to testify,
the court stated that Cullen’s claim was a “generic” allegation
that “if called to testify, she would [have] explained ‘how the
incident actually happened.’” But, the court stated, Cullen
alleged “no other facts as to how the incident occurred or how
her testimony would be different than the numerous statements
given to law enforcement, which were introduced at trial.” The
court noted that Cullen also alleged that she would have testi-
fied “‘about her care and love for the child and about the sor-
row she had that the child was injured in any way’” and that
such testimony “would have negated the State’s closing argu-
ment that she lacked emotion during the entirety of the trial.”
The court again characterized this allegation as “generic”
and stated that such testimony “could not have changed the
outcome of the trial in light of the other evidence adduced at
the trial.”
Cullen’s fourth claim of ineffective assistance of trial coun-
sel was that counsel “failed to adequately prepare for trial
in that they did not depose a single witness or prepare for
cross examination of any of the medical or expert witnesses.”
With regard to this claim, the court stated that Cullen did not
- 392 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383“allege what information would have been obtained . . . in
deposing the State’s expert witnesses in order to provide for
more effective cross-examination of the witnesses, or what
questions should have been asked on cross-examination from
any such depositions.” The court further stated that Cullen
failed “to identify what questions should have been asked
of the State’s witnesses that would have favorably assisted”
her defense.
Cullen finally claimed ineffective assistance of appellate
counsel, and she alleged that counsel “fail[ed] to meet with
her and discuss the ineffective assistance of trial counsel so
as to effectively set out those complaints in her appellate brief
and thereby limiting the parameters of her [postconviction]
proceedings.” With regard to this claim, the court stated that
Cullen had “[o]nce again . . . failed to allege facts as to how
this failure . . . effected [sic] the outcome of [her] appeal, or
that there is a reasonable probability that the outcome of [her]
appeal would have been different.”
In summary, the district court found that
as to each ground presented by [Cullen] in her motion for
postconviction relief, [she] has failed to show how she
was prejudiced by either her trial or appellate counsel’s
failure, or that but for her trial or appellate counsel’s fail-
ure to provide effective professional representation, . . .
there is a reasonable probability that the outcome . . . in
this case could have been any different than it was.
The court concluded that Cullen was not entitled to an eviden-
tiary hearing and that her motion should be dismissed.
Cullen appeals the district court’s order that dismissed her
motion for postconviction relief.
ASSIGNMENT OF ERROR
Cullen claims that the district court erred when it denied her
claims of ineffective assistance of trial counsel and her claim
of ineffective assistance of appellate counsel without an evi-
dentiary hearing.
- 393 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirm­atively show that the defendant is entitled to no relief.
State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
ANALYSIS
We begin our analysis by setting forth standards that are
applicable to our review of postconviction claims. We then
review each of Cullen’s claims under those standards, and
as discussed below, we determine that the district court did
not err when it denied Cullen’s claims without an eviden-
tiary hearing.
Postconviction Standards.
[2] Postconviction relief is available to a prisoner in custody
under sentence who seeks to be released on the ground that
there was a denial or infringement of his or her constitutional
rights such that the judgment was void or voidable. Id. Thus,
in a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his
or her rights under the U.S. or Nebraska Constitution, caus-
ing the judgment against the defendant to be void or voidable.
Britt, supra.[3] 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 infringe-
ment of the defendant’s rights under the U.S. or Nebraska
Constitution. Britt, supra. 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 hear-
ing. Id.[4-7] Cullen’s claims for postconviction relief assert that
she received ineffective assistance of counsel. A proper
- 394 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383ineffective assistance of counsel claim alleges a violation of
the fundamental constitutional right to a fair trial. State v.
Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). To prevail on
a claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show that his or her coun-
sel’s performance was deficient and that this deficient per-
formance actually prejudiced the defendant’s defense. Britt,
supra. To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. Britt, supra. A reasonable probability does not require
that it be more likely than not that the deficient performance
altered the outcome of the case; rather, the defendant must
show a probability sufficient to undermine confidence in the
outcome. Id. The two prongs of this test may be addressed in
either order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel’s actions were
reasonable. See State v. Munoz, 309 Neb. 285, 959 N.W.2d
806 (2021).
[8] Cullen was represented on direct appeal by counsel dif-
ferent from her trial counsel. In addition to asserting claims of
ineffective assistance of trial counsel, Cullen alleges that her
appellate counsel performed deficiently when counsel failed
to consult with her and to assign error on direct appeal assert-
ing claims of ineffective assistance of trial counsel. When a
claim of ineffective assistance of appellate counsel is based on
the failure to raise a claim on appeal of ineffective assistance
of trial counsel (a layered claim of ineffective assistance of
counsel), an appellate court will look at whether trial counsel
was ineffective under the Strickland test. Parnell, supra. If
trial counsel was not ineffective, then the defendant was not
prejudiced by appellate counsel’s failure to raise the issue. Id.Much like claims of ineffective assistance of trial counsel, the
defendant must show that but for appellate counsel’s failure
- 395 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383to raise the claim, there is a reasonable probability that the
outcome would have been different. Id.With these principles in mind, we review Cullen’s claims of
ineffective assistance of counsel. We note that the sole claim of
ineffective assistance of trial counsel that Cullen preserved in
her direct appeal was the claim that trial counsel was ineffec-
tive for failing to investigate and call a medical expert to tes-
tify on her behalf. In her motion for postconviction relief now
under review, Cullen set forth claims of ineffective assistance
of trial counsel not raised on direct appeal which would ordi-
narily be procedurally barred for failure to raise the claims on
direct appeal. See State v. Kipple, 310 Neb. 654, 968 N.W.2d
613 (2022) (when trial counsel is different from counsel on
direct appeal, defendant must raise on direct appeal any issue
of trial counsel’s ineffective performance known to defendant
or apparent from record; otherwise, issue will be procedur-
ally barred).
However, Cullen also sets forth a claim of ineffective assist­
ance of appellate counsel in which she asserts, inter alia, that
appellate counsel failed to raise claims of ineffective assistance
of trial counsel, including the claims she now sets forth in her
postconviction motion. As noted above, reviewing a claim of
ineffective assistance of appellate counsel for failing to raise
claims on direct appeal requires an assessment of whether trial
counsel was ineffective. We therefore review each of Cullen’s
claims of ineffective assistance of trial counsel and her claim
of ineffective assistance of appellate counsel to determine
whether the district court erred when it concluded that Cullen’s
claims were not sufficiently pled.
Cullen Did Not Allege Sufficient Facts to
Support Her First Claim of Ineffective
Assistance of Trial Counsel.
Cullen claims that the district court erred when it refused
an evidentiary hearing on her claim that trial counsel “failed
to adequately investigate [her] defenses and advise [her] of
- 396 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383her options, including but not limited to the alternate theories
of the cause of the severity of the injuries.” The district court
generally determined that Cullen set forth no specific allega-
tions of what potential evidence would have been found with
an adequate investigation or how such an investigation would
have resulted in a different outcome in her trial. We agree.
The district court stated that Cullen simply listed the names
of potential witnesses that should have been contacted but
that she provided “no facts as to what information that they
would have provided or how any such information might have
impacted cross-examination of the State’s witnesses.” In her
claim, Cullen asserted that counsel should have investigated a
defense asserting “alternate theories” for the cause of Cash’s
injuries, including the possibility that one of Cash’s parents
caused his injuries. She asserted that trial counsel should have
focused on the evidence that Chris came home briefly on the
morning that Cash was injured. Cullen also alleged that an
anonymous witness had contacted her original counsel and
claimed that Ashley had anger management issues and that she
had been involved in an altercation at her workplace. Cullen
alleged that her original counsel provided trial counsel with the
name of a person who might have been the anonymous wit-
ness, as well as the name of a contact at Ashley’s workplace
who might have information regarding the alleged altercation.
Cullen alleged that her trial counsel failed to follow up on this
information provided by her original counsel.
[9] Our case law is clear that in a motion for postconvic-
tion relief, a defendant is required to specifically allege what
the testimony of potential witnesses would have been if they
had been called at trial in order to avoid dismissal without
an evidentiary hearing. State v. Munoz, 309 Neb. 285, 959
N.W.2d 806 (2021). Absent specific allegations, a motion for
postconviction relief effectively becomes a discovery motion to
determine whether evidence favorable to a defendant’s position
actually exists. Id.- 397 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383Cullen’s allegations regarding potential defenses were gen-
erally that an investigation might have uncovered helpful evi-
dence. Although she asserts trial counsel could have argued a
defense which would have placed suspicion on Cash’s parents,
she makes no specific allegations of actual evidence or testi-
mony that would have implicated either parent. Cullen specu-
lates about Chris’ reasons for briefly returning home that morn-
ing, and regarding Ashley’s alleged anger issues, Cullen only
asserted that if trial counsel contacted the potential witnesses
identified by her original counsel, those witnesses might have
provided some evidence regarding an altercation at her work-
place. She alleged no specific evidence that would have been
discovered, and to the extent she alleged that counsel might
have found evidence of an altercation at work, Cullen did not
show why evidence regarding an alleged workplace altercation
would translate or prove that Ashley had injured Cash.
We determine that Cullen’s allegations did not set forth
sufficient facts to support her first claim of ineffective assist­
ance of trial counsel. We therefore conclude that the district
court did not err when it refused an evidentiary hearing on
this claim.
Cullen Did Not Allege Sufficient Facts to
Support Her Second Claim of Ineffective
Assistance of Trial Counsel.
Cullen claimed that trial counsel was ineffective because
counsel “failed to investigate the hiring of expert witnesses to
support [her] description of how the injury occurred and failed
to utilize [a] trial consultant with 25 years of experience who
had examined the facts and met with [Cullen].” The district
court generally determined that Cullen made no specific allega-
tions of what such experts would have testified. We agree.
Cullen alleged that the trial consultant identified specific
potential expert witnesses, and Cullen provided the list of
names in her motion. However, regarding the substance of
such expert’s testimony, Cullen alleged only that the trial
- 398 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383consultant asserted that their testimony would have been help-
ful to her defense. Such allegations are not allegations of spe-
cific fact and instead are conclusory. She made no allegations
of the specific testimony those experts would have given in her
defense, and she therefore did not show how their testimony
would have resulted in a different outcome in her trial.
We therefore conclude that the district court did not err
when it denied this claim without an evidentiary hearing.
Cullen Did Not Allege Sufficient Facts to
Support Her Third Claim of Ineffective
Assistance of Trial Counsel.
Cullen also claims that the district court erred when it
refused to conduct an evidentiary hearing on her claim that
trial counsel “failed to meet with her on a single occasion to
discuss the facts of the case, failed to consult with her about
her right to testify and fail[ed] to inquire as to her desire to tes-
tify at trial.” The district court determined that Cullen failed to
make specific allegations of what she would have told counsel
or the substance of her potential testimony and failed to make
allegations that showed that her testimony would have resulted
in a different outcome in the trial. We agree.
[10] Cullen generally alleged that counsel did not discuss
the case with her, and in particular, she alleged that counsel
did not discuss with her her right to testify and whether or not
she should testify in her defense. We have recognized that a
defendant has a fundamental constitutional right to testify, but
a trial court does not have a duty to advise the defendant of his
or her right to testify or to ensure that the defendant waived
this right on the record. State v. Iromuanya, 282 Neb. 798, 806
N.W.2d 404 (2011). We have recognized that defense counsel
bears the primary responsibility for advising a defendant of his
or her right to testify or not to testify, of the strategic implica-
tions of each choice, and that the choice is ultimately for the
defendant to make. Id.- 399 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383In a postconviction action when a defendant raises a claim
of ineffective assistance of trial counsel related to counsel’s
failure with regard to advising the defendant on his or her
right to testify, we have subjected the claim to the Strickland
standard and required the defendant to show how trial coun-
sel’s alleged deficient performance prejudiced the defense. In
Iromuanya, we concluded that “because the record show[ed]
that the jury heard [the defendant’s] statement of events from
his police interview, he was not prejudiced by his trial coun-
sel’s alleged failure to reasonably advise him to testify.” 282
Neb. at 812-13, 806 N.W.2d at 423. See, also, Yannai v. U.S.,
346 F. Supp. 3d 336, 347 (E.D.N.Y. 2018) (relying on Weaver
v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 198 L. Ed.
2d 420 (2017), to the effect that on direct review, prejudice
resulting from structural error may be presumed but even if
denial of right to testify may be structural error, in habeas cor-
pus action, Strickland applied to claim of ineffective assistance
of trial counsel with regard to right to testify and defendant
was required “to demonstrate prejudice flowing from failure
to testify”). See, similarly, State v. Fuentes, 302 Neb. 919, 926
N.W.2d 63 (2019) (citing Weaver, supra). Therefore, even if
we presume that trial counsel did not discuss with Cullen her
right to testify and whether she should testify in her defense as
Cullen has alleged, she was required to show how such failure
prejudiced her defense.
Cullen made general allegations that she would have testi-
fied that she would have told her side of the story. However,
she does not specify what that story would have been. The
evidence in this case already included her statements to police
in which she set forth four versions of what happened to Cash
that morning. As we noted in Iromuanya, supra, there was no
prejudice when the defendant’s side of the story was already
in evidence through statements the defendant had made to
police. Cullen does not allege whether the version she would
have testified to at trial was one of those four versions or yet
another account. It is unclear how her telling her story would
- 400 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383have changed the outcome of the trial, especially in light of the
fact that the evidence already included four versions of what
she told police.
Cullen also asserts that she would have testified she loved
Cash and was upset about what had happened to him and that
this would have countered the State’s arguments that she was
cold and uncaring. We believe her hypothetical testimony
would have opened the door to harsh cross-examination, fur-
ther diminishing any impact it might have had on the trial’s
outcome. We think the district court was correct to find that
such testimony would not reasonably have resulted in a dif-
ferent outcome to the trial, in light of the other evidence
against Cullen.
Even assuming as we have done that Cullen was not advised
by counsel regarding her right to testify, we agree with the
district court’s determination that Cullen did not adequately
allege how she was prejudiced by trial counsel’s failure to so
advise her and that the record is to the contrary. We therefore
conclude that the district court did not err when it refused an
evidentiary hearing on this claim.
Cullen Did Not Allege Sufficient Facts to
Support Her Fourth Claim of Ineffective
Assistance of Trial Counsel.
Cullen claims that the district court erred when it refused
an evidentiary hearing on her claim that counsel provided
ineffective assistance because counsel “failed to adequately
prepare for trial in that they did not depose a single witness or
prepare for cross examination of any of the medical or expert
witnesses.” The district court determined that she alleged no
specific testimony. We agree.
As we discussed with Cullen’s other claims, Cullen was
required to identify specific witnesses who could have testi-
fied, what their specific testimony would have been, and how
that would have resulted in a different outcome. Instead, in her
motion Cullen alleged only generalities.
- 401 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383The district court did not err when it refused an evidentiary
hearing on this claim.
Cullen Did Not Allege Sufficient Facts
to Support Her Claim of Ineffective
Assistance of Appellate Counsel.
Cullen claims that the district court erred when it refused
an evidentiary hearing on her claim that her appellate counsel
“fail[ed] to meet with her and discuss the ineffective assistance
of trial counsel so as to effectively set out those complaints in
her appellate brief and thereby limiting the parameters of her
[postconviction] proceedings.” The district court determined
that Cullen failed to allege how the outcome of her appeal
would have been different if appellate counsel had raised the
claims. We agree.
Because Cullen’s claim of ineffective assistance of appellate
counsel was a layered claim based on the failure of appellate
counsel to raise claims of ineffective assistance of trial coun-
sel, we review whether trial counsel was ineffective under the
Strickland test. See State v. Parnell, 305 Neb. 932, 943 N.W.2d
678 (2020). Cullen must show that but for appellate counsel’s
failure to raise the claims, there is a reasonable probability that
the outcome of the appeal would have been different, and if
Cullen failed to adequately allege that trial counsel was inef-
fective, then Cullen was not prejudiced by appellate counsel’s
failure to raise the issues. See id.For her claim of ineffective assistance of appellate counsel,
Cullen relied on the claims she set forth in her postconvic-
tion motion alleging ineffective assistance of trial counsel. As
discussed above, we agreed with the district court’s determina-
tion that each of those claims was not sufficient. Therefore,
Cullen’s claim of ineffective assistance of appellate counsel to
raise those claims on direct appeal is of no avail.
We conclude the district court did not err when it rejected
Cullen’s claim of ineffective assistance of appellate counsel
without an evidentiary hearing.
- 402 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. CULLEN
Cite as 311 Neb. 383CONCLUSION
As explained, we conclude that the court did not err when
it denied Cullen’s postconviction claims without an evidentiary
hearing. We therefore affirm the district court’s order.
Affirmed.
Freudenberg, J., not participating.