State v. Dubray , 294 Neb. 937 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/07/2016 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. DUBRAY
Cite as 294 Neb. 937
State of Nebraska, appellee, v.
Dominick L. Dubray, appellant.
___ N.W.2d ___
Filed October 7, 2016. No. S-15-1032.
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
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.
2. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law, which
an appellate court reviews de novo.
3. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews the fac-
tual findings of the lower court for clear error, while the determination
of whether counsel’s performance was deficient and whether the defend­
ant suffered prejudice as a result under the Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test is reviewed
de novo.
5. Postconviction: Effectiveness of Counsel: Appeal and Error. When
a postconviction petition alleging ineffective assistance of counsel is
dismissed on the pleadings without an evidentiary hearing, there are no
factual findings of the lower court, and thus an appellate court reviews
the entirety of the lower court’s dismissal de novo.
6. Postconviction: Constitutional Law. Under the Nebraska Postconviction
Act, a prisoner in custody may file a petition for relief on the grounds
that there was a denial or infringement of the prisoner’s constitutional
rights that would render the judgment void or voidable. This category of
relief is very narrow.
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STATE v. DUBRAY
Cite as 294 Neb. 937
7. Postconviction: Records. Under Neb. Rev. Stat. § 29-3001(2) (Cum.
Supp. 2014), a prisoner is entitled to an evidentiary hearing on his or
her claim for postconviction relief, unless the motion and the files and
records of the case show to the satisfaction of the court that the prisoner
is entitled to no relief.
8. Postconviction: Constitutional Law: Proof. In order to be entitled to
an evidentiary hearing, a prisoner must allege facts in the petition for
postconviction relief that, if proved, would constitute a violation of his
or her rights under the U.S. or Nebraska Constitution.
9. Postconviction. A prisoner is not entitled to an evidentiary hearing
on the basis of claims that present only conclusory statements of law
or fact.
10. Postconviction: Constitutional Law. A claim of actual innocence may
be a sufficient allegation of a constitutional violation under the Nebraska
Postconviction Act.
11. Postconviction: Evidence. The essence of a claim of actual innocence
is that the State’s continued incarceration of such a petitioner without
an opportunity to present newly discovered evidence is a denial of pro-
cedural or substantive due process. The threshold to entitle a prisoner
to an evidentiary hearing on such a postconviction claim is extraordi-
narily high.
12. Postconviction: Evidence: Appeal and Error. Claims of insufficiency
of evidence that were or could have been raised on direct appeal are
procedurally barred from being raised in a postconviction action.
13. Postconviction: Appeal and Error. A petition for postconviction relief
may not be used to obtain review of issues that were or could have been
reviewed on direct appeal.
14. ____: ____. Any attempts to raise issues at the postconviction stage
that were or could have been raised on direct appeal are procedur-
ally barred.
15. Criminal Law: Constitutional Law: Right to Counsel. The Sixth
Amendment to the U.S. Constitution provides that in all criminal pros-
ecutions, the accused shall enjoy the right to have the assistance of
counsel for his or her defense.
16. Right to Counsel: Effectiveness of Counsel. The right to counsel has
been interpreted to include the right to effective counsel.
17. Effectiveness of Counsel: Proof: Appeal and Error. Under the stan-
dard established by the U.S. Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), claims of inef-
fective assistance of counsel by criminal defendants are evaluated using
a two-prong analysis: first, whether counsel’s performance was deficient
and, second, whether the deficient performance was of such a serious
nature so as to deprive the defendant of a fair trial.
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STATE v. DUBRAY
Cite as 294 Neb. 937
18. Effectiveness of Counsel. A court may address the two elements of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, deficient performance and prejudice, in either order.
19. Postconviction: Effectiveness of Counsel: Proof. To show that the
performance of a prisoner’s counsel was deficient, it must be shown that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area.
20. Effectiveness of Counsel: Proof. To establish the prejudice element of
the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a defendant must show that the counsel’s deficient
performance was of such gravity to render the result of the trial unreli-
able or the proceeding fundamentally unfair. This prejudice is shown
by establishing that but for the deficient performance of counsel, there
is a reasonable probability that the outcome of the case would have
been different.
21. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her appellate counsel, all issues of inef-
fective assistance of trial counsel that are known to the defendant or are
apparent from the record must be raised on direct appeal. If the issues
are not raised, they are procedurally barred.
22. Postconviction: Effectiveness of Counsel: Appeal and Error. Claims
of ineffective assistance of appellate counsel may be raised for the first
time on postconviction review.
23. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts will often begin by
determining whether the defendant suffered prejudice by appellate coun-
sel’s failure to raise a claim.
24. ____: ____. If the claimed deficiency of appellate counsel’s perform­
ance is the failure to raise a claim on appeal, the court will look at the
strength of the claim that appellate counsel failed to raise.
25. ____: ____. When a claim of ineffective assistance of appellate coun-
sel 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 inef-
fective 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.
26. Criminal Law: Evidence: Appeal and Error. In reviewing a claim of
insufficiency of the evidence, an appellate court simply asks whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.
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STATE v. DUBRAY
Cite as 294 Neb. 937
27. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
28. Postconviction: Mental Competency: Effectiveness of Counsel:
Proof. In order to demonstrate prejudice from counsel’s failure to
investigate competency and for failure to seek a competency hear-
ing, the defendant must demonstrate that there is a reasonable prob-
ability that he or she was actually incompetent and that the trial court
would have found the defendant incompetent had a competency hearing
been conducted.
29. Postconviction. Mere conclusions of fact or law are not sufficient to
entitle a petitioner to an evidentiary hearing in a postconviction action.
30. Effectiveness of Counsel: Presumptions: Witnesses. In cases where
counsel completely fails to submit the State’s case to meaningful adver-
sarial testing, prejudice to the defendant will be presumed. But when the
record shows that the State’s witnesses were thoroughly cross-examined
consistent with the defense theory, there was meaningful adversarial
testing of the prosecution’s case.
31. Postconviction: Effectiveness of Counsel: Witnesses. In assessing
postconviction claims of ineffective assistance of counsel for failure to
call a particular witness, an appellate court upholds the dismissal with-
out an evidentiary hearing where the motion did not include specific
allegations regarding the testimony which the witness would have given
if called.
32. Insanity: Proof. The two requirements for the insanity defense are
that (1) the defendant had a mental disease or defect at the time of the
crime and (2) the defendant did not know or understand the nature and
consequences of his or her actions or that he or she did not know the
difference between right and wrong.
33. Postconviction: Insanity: Proof. Bald assertions of insanity, unsubstan-
tiated by a recital of credible facts and unsupported by the record, are
wholly insufficient and justify the summary dismissal of a postconvic-
tion proceeding.
34. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her constitutional rights, causing the
judgment against the defendant to be void or voidable.
Appeal from the District Court for Box Butte County: Travis
P. O’Gorman, Judge. Affirmed.
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STATE v. DUBRAY
Cite as 294 Neb. 937
Dominick L. Dubray, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
This is an appeal from the district court’s denial of a petition
for postconviction relief by appellant, Dominick L. Dubray.
Dubray was convicted in 2012 of two counts of first degree
murder and two counts of use of a weapon to commit a felony.
The district court granted the State’s motion to dismiss the
postconviction petition without an evidentiary hearing. Dubray
appeals from this dismissal. We conclude that either his claims
are procedurally barred, his claims fail to allege sufficient facts
to demonstrate a violation of his constitutional rights, or the
record and files affirmatively show he is entitled to no relief.
We affirm the judgment of the district court.
II. FACTS
The facts of this case are set out in detail in our opinion
from Dubray’s direct appeal of his convictions.1 Dubray lived
with Catalina Chavez. Mike Loutzenhiser was Chavez’ stepfa-
ther, and his son lived with Dubray and Chavez.
1. Murders of Chavez
and Loutzenhiser
On February 10, 2012, in Alliance, Nebraska, Dubray,
Chavez, and Loutzenhiser were drinking alcohol at a club and
at another person’s home from around 8 p.m. to 6 a.m. the next
morning. Loutzenhiser, who lived in Scottsbluff, Nebraska,
was visiting for the weekend. About 6 a.m., Dubray, Chavez,
1
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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and Loutzenhiser walked back to the house where Dubray and
Chavez lived.
At 6:49 a.m., Dubray called his cousin Carlos Reza and told
him that he had two dead bodies in the house and was going
to kill himself. He said, “‘I love you, Bro. Take care of my
daughter.’” Reza immediately drove to Dubray’s house and
arrived minutes later.
Reza entered through the front door and saw Loutzenhiser’s
dead body in the living room, with a lot of blood underneath
him. He found Dubray lying motionless on the floor in the
bedroom. Reza began screaming for Dubray, who got up in
response to Reza’s yelling and went into the kitchen with him.
Dubray stood with his hands on the kitchen table, crying and
shaking his head. Dubray told Reza that Chavez was going
to leave him. Dubray said, “‘Look, Bro, I tried to kill myself
and it didn’t work. I don’t want to go to prison.’” He showed
Reza a stab wound to his chest and said, “‘I tried to kill myself
right here.’” Dubray grabbed a clean knife off of the kitchen
counter and said, “‘I’m going to kill myself.’” He came back
to the kitchen table, where he and Reza sat down. Dubray set
the kitchen knife down at his side.
About 5 to 10 minutes after Reza arrived, another cousin,
Marco Dubray (Marco), came to the house. When Marco saw
Loutzenhiser’s body, he asked what happened. Dubray said,
“‘I don’t know. I snapped. And I just [want to kill] myself,’”
“‘I can’t believe what I have done,’” and “‘I just want to die.
I don’t want to go to prison.’” Reza hugged Dubray. Dubray
then said, “‘Just go, Bro. Just go. Get the fuck out of here.
Just go.’”
Reza and Marco left the house and called their uncle Lonnie
Little Hoop for help, telling him that Dubray was trying to kill
himself. While waiting outside for Little Hoop to arrive, Reza
heard a loud scream coming from the bedroom that sounded
as if it came from Dubray. Little Hoop arrived, went into the
house with Reza, and found Dubray lying in the bedroom
between the bed and the wall. Dubray had a knife sticking
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STATE v. DUBRAY
Cite as 294 Neb. 937
out of his back. When Little Hoop called out to him, Dubray
began moving and tried to pull himself up onto the bed. Little
Hoop told him not to move and directed Reza to call for an
ambulance. When Dubray tried to sit up, Little Hoop noticed
Chavez’ dead body beneath him. Dubray faced Little Hoop
and said, “‘I don’t want to live anymore. I don’t want to go to
jail.’” Reza flagged down a nearby police cruiser. The police
requested an ambulance and then went to the house.
When the police entered the home, they found Loutzenhiser’s
body with multiple stab wounds and no signs of life. One
officer testified that Loutzenhiser’s neck was nearly severed.
The police then entered the bedroom and found Dubray and
Chavez’ body. Dubray still had a knife in his back. He was
lying between the bedroom wall and the bed, on top of Chavez’
body. Dubray began to move and moan and pulled the knife
out of his back. He was then taken to a local hospital.
Police found three knives at the scene: one underneath
Dubray and next to Chavez’ body between the bed and bed-
room wall, a second that was found on the bed, and a third
that had been in Dubray’s back. A knife block was located
on the kitchen counter. There were four open slots in the
knife block. The three knives recovered by police appeared
to be kitchen knives that matched the knives remaining in the
knife block.
Dubray was treated at the local hospital’s trauma center and
then transferred to a hospital in Denver, Colorado, for further
care. Dubray had 17 lacerations or stab wounds. After being
treated and examined, it was determined that only the stab
wound to his chest was life threatening. Most of his wounds
were superficial. When in the hospital in Colorado, Dubray
told Reza that he had “fucked up.”
2. Dubray’s Trial and Convictions
Dubray was tried for two counts of first degree murder. He
was also charged with two counts of use of a weapon to com-
mit a felony. He did not testify at trial.
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STATE v. DUBRAY
Cite as 294 Neb. 937
The forensic pathologist who performed the autopsies of the
two victims testified that Loutzenhiser had 22 stab wounds.
Several of the wounds in his chest were 7 to 9 inches deep,
reaching his lungs. Several other stab wounds to Loutzenhiser
were in his back. His spinal cord was cut. He also had a defen-
sive wound on his left wrist. The blood flow patterns indicated
that many of his wounds were inflicted when he was hunched
over. Chavez had 19 stab wounds. Several stab wounds to her
neck severed her trachea and esophagus and cut an artery in
multiple places. She also had a defensive wound and bruising
on her right hand. Other stab wounds were found in the back
of her neck and her back. The bloodstains on her clothing indi-
cated that most of her wounds were inflicted after she was on
the ground.
The surgeon who treated Dubray testified that Dubray
had a total of 17 wounds, most of which were superficial
“‘slash wound[s].’” Only three wounds were potentially life-­
threatening stab wounds: one in his abdomen and two in his
chest. After further exploration by the surgeon, only one was
determined to be life threatening: a stab wound to his chest.
Based upon the physical evidence of the number and force
of the stab wounds, the State argued that the killings were
premeditated and not in self-defense. The State also argued
against the defense’s theory of self-defense, because most of
Dubray’s wounds were superficial, which supported the State’s
theory that they were self-inflicted.
Dubray’s defense was based on a theory of self-defense or
manslaughter based upon a “sudden quarrel.” Dubray’s fam-
ily members testified that he had bruising on his face when
he was in the hospital. The defense claimed that Dubray’s 17
stab wounds or lacerations showed that he must have acted in
self-defense.
Dubray was convicted of both counts of first degree murder
and both counts of use of a weapon to commit a felony. He was
sentenced to two life sentences for the murder convictions and
30 to 40 years’ imprisonment for each of the convictions for
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use of a weapon to commit a felony, all to run consecutively.
After his convictions, Dubray brought a direct appeal.
3. Dubray’s Direct A ppeal
Dubray’s assignments of error on direct appeal were catego-
rized by this court as trial court error, prosecutorial miscon-
duct, and ineffective assistance of counsel.2
Dubray claimed ineffective assistance of counsel on the basis
of several alleged errors of his trial counsel. All of these claims
but one were rejected, and the convictions were affirmed.
We concluded that Dubray’s claim that he was prejudiced
because his trial counsel failed to call Megan Reza (Megan)
as a witness could not be decided on direct appeal. Dubray
contended that Megan would have testified that Chavez kept
a knife hidden under her mattress for her protection. Dubray
claimed this testimony would have helped to negate the pre-
meditation charge and would have supported his theory of
self-defense or sudden quarrel. We declined to address the
issue on direct appeal. We affirmed Dubray’s convictions
and sentences.
4. Postconviction Action
Dubray filed a timely petition for postconviction relief. He
alleged various claims of actual innocence, ineffective assist­
ance of trial counsel, ineffective assistance of appellate coun-
sel, trial court error, and prosecutorial misconduct.
The State moved to dismiss Dubray’s petition without an
evidentiary hearing, on the bases that the petition failed to
allege sufficient facts which would constitute a constitutional
violation of his rights, that the claims were procedurally barred,
that the case file and record affirmatively showed that Dubray
was not entitled to relief, and/or that the petition alleged only
conclusions of fact or law. The district court sustained the
State’s motion.
2
See id.
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III. ASSIGNMENTS OF ERROR
Dubray asserts that the district court erred when it dismissed
his petition for postconviction relief without an evidentiary
hearing. More specifically, he asserts that the court erred in
dismissing without an evidentiary hearing his claims of (1)
actual innocence, (2) ineffective assistance of trial counsel, (3)
ineffective assistance of appellate counsel, (4) error by the trial
court, and (5) prosecutorial misconduct.
IV. STANDARD OF REVIEW
[1,2] 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 affirma-
tively show that the defendant is entitled to no relief.3 Whether
a claim raised in a postconviction proceeding is procedurally
barred is a question of law, which an appellate court reviews
de novo.4
[3-5] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.5 When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error, while the determination of whether counsel’s
performance was deficient and whether the defendant suffered
prejudice as a result under the Strickland v. Washington6 test
is reviewed de novo.7 When a postconviction petition alleging
ineffective assistance of counsel is dismissed on the pleadings
without an evidentiary hearing, there are no factual findings
3
State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
4
See State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
5
State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015).
6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
7
See State v. DeJong, supra note 5.
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of the lower court, and thus we review the entirety of the dis-
trict court’s dismissal de novo.8
V. ANALYSIS
[6] Dubray claims that the district court erred by dismissing
his petition for postconviction relief without an evidentiary
hearing. Under the Nebraska Postconviction Act,9 a prisoner in
custody may file a petition for relief on the grounds that there
was a denial or infringement of the prisoner’s constitutional
rights that would render the judgment void or voidable.10 This
category of relief is “very narrow.”11
[7-9] Under § 29-3001(2), the prisoner is entitled to an evi-
dentiary hearing on the claim, unless “the motion and the files
and records of the case show to the satisfaction of the court
that the prisoner is entitled to no relief.” In order to be entitled
to an evidentiary hearing, a prisoner must allege facts in the
petition for postconviction relief that, if proved, would consti-
tute a violation of his or her rights under the U.S. or Nebraska
Constitution.12 A prisoner is not entitled to an evidentiary hear-
ing on the basis of claims that present only conclusory state-
ments of law or fact.13
1. Dubray’s Claim of
Actual Innocence
[10,11] A claim of actual innocence may be a sufficient
allegation of a constitutional violation under the Nebraska
Postconviction Act.14 The essence of a claim of actual
8
See State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014).
9
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp.
2014).
10
§ 29-3001(1).
11
State v. Harris, 274 Neb. 40, 45, 735 N.W.2d 774, 779 (2007).
12
See State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
13
See, State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390 (2016); State v.
Banks, 289 Neb. 600, 856 N.W.2d 305 (2014).
14
See State v. Phelps, supra note 12.
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i­nnocence is that the State’s continued incarceration of such a
petitioner without an opportunity to present newly discovered
evidence is a denial of procedural or substantive due process.15
The threshold to entitle a prisoner to an evidentiary hearing on
such a postconviction claim is “‘extraordinarily high.’”16 Such
a petitioner must make a strong demonstration of actual inno-
cence because after a fair trial and conviction, the presumption
of innocence vanishes.17
[12] Dubray has not met the extraordinarily high standard.
He presents no new facts that would support his claim of
actual innocence. He contends that the evidence at trial was
not sufficient, stating that “it is at the most self-defense.” He
asserts that “[t]he only reason he was charge[d] is he was the
one that lived.” To the extent that the allegations in Dubray’s
petition are based on the insufficiency of the evidence at trial,
they are procedurally barred. Claims of insufficiency of evi-
dence that were or could have been raised on direct appeal
are procedurally barred from being raised in a postconviction
action.18 Merely attempting to relitigate issues decided at trial
and affirmed on appeal does not make a viable claim of actual
innocence. Because Dubray could have asserted a claim of
insufficiency of the evidence on direct appeal, he is procedur-
ally barred from doing so now, even if the claim is labeled as
one of “actual innocence.”
The only allegation made by Dubray that even approaches
an allegation of new facts in support of actual innocence is
that he “woke up and [saw] 2 individuals dead, [and] had no
clue [] what took place.” But a lack of memory does nothing
to show that he did not murder the two victims. He just did
not remember doing so. On his direct appeal, we found that
15
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
16
State v. Phelps, supra note 12, 286 Neb. at 94, 834 N.W.2d at 791-92.
17
State v. Phelps, supra note 12.
18
State v. Nesbitt, supra note 4.
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the evidence against him at trial was strong.19 Instead of mak-
ing a strong demonstration of actual innocence, Dubray has
made none.
2. Dubray’s Claims of Error
by Trial Judge
[13,14] Dubray raises several claims of error by the trial
judge. It is well established that a petition for postconviction
relief may not be used to obtain review of issues that were or
could have been reviewed on direct appeal.20 Any attempts to
raise issues at the postconviction stage that were or could have
been raised on direct appeal are procedurally barred.21 The
district court concluded that these claims were procedurally
barred because Dubray could have raised them in his direct
appeal. We agree. All of his claims of trial error are procedur-
ally barred.
3. Dubray’s Claims of
Prosecutorial Misconduct
Dubray’s claims of prosecutorial misconduct are also pro-
cedurally barred. Dubray alleges numerous instances of pros-
ecutorial misconduct. However, Dubray had the opportunity
to raise these issues on his direct appeal and did in fact raise
several claims of prosecutorial misconduct.22 Dubray is proce-
durally barred from raising additional claims of prosecutorial
misconduct at this postconviction stage.
4. Dubray’s Claims of Ineffective
Assistance of Trial Counsel
[15-18] The Sixth Amendment to the U.S. Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
19
See State v. Dubray, supra note 1.
20
State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
21
See id.
22
See State v. Dubray, supra note 1.
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defen[s]e.” The right to counsel has been interpreted to include
the right to effective counsel.23 Under the standard established
by the U.S. Supreme Court in Strickland v. Washington, claims
of ineffective assistance of counsel by criminal defendants are
evaluated using a two-prong analysis: first, whether counsel’s
performance was deficient and, second, whether the deficient
performance was of such a serious nature so as to deprive
the defendant of a fair trial.24 A court may address the two
elements of this test, deficient performance and prejudice, in
either order.25
[19,20] To show that the performance of a prisoner’s coun-
sel was deficient, it must be shown that “counsel’s performance
did not equal that of a lawyer with ordinary training and skill
in criminal law in the area.”26 To establish the prejudice ele-
ment of the Strickland v. Washington test, a defendant must
show that the counsel’s deficient performance was of such
gravity to “render[] the result of the trial unreliable or the pro-
ceeding fundamentally unfair.”27 This prejudice is shown by
establishing that but for the deficient performance of counsel,
there is a “reasonable probability” that the outcome of the case
would have been different.28
(a) Trial Counsel’s Failure to
Call Megan as Witness
Dubray’s postconviction petition claims that his trial counsel
was ineffective:
Trial counsel was ineffective for failing to present the
fact from Megan . . . that she knew and [Chavez, the
23
Strickland v. Washington, supra note 6.
24
Id. See, also, State v. Nolan, supra note 3.
25
State v. Nolan, supra note 3.
26
State v. Lopez, 274 Neb. 756, 760-61, 743 N.W.2d 351, 356 (2008).
27
State v. Dragon, supra note 8, 287 Neb. at 524, 843 N.W.2d at 624.
Accord State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).
28
State v. Nolan, supra note 3, 292 Neb. at 130, 870 N.W.2d at 819.
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victim] showed her a kitchen knife that she kept hid-
den between the mattresses in the bedroom for protec-
tion. Megan was subpoenaed as a witness . . . but never
testified regarding these matter[s]. Trial counsel knew
about this but, never introduced it []as evidence, this
prejudiced Dubray from presenting a defense, and for the
attorney failing to present this fact is ineffective assist­
ance of counsel.
The district court concluded that Dubray was not entitled to an
evidentiary hearing on this claim. Dubray’s petition does not
establish how Megan’s testimony regarding the knife would
have helped his defense. Defense theories at trial were that
Dubray acted in self-defense or that the killings resulted from
a sudden quarrel without premeditation. We conclude that there
is not a reasonable probability that Megan’s testimony would
have made a difference in the outcome of the case. There was
no evidence offered at trial or at postconviction that Chavez
actually used a knife when she was killed. The probative value
of whether the victim kept a knife under her bed for protection
is minimal.
On direct appeal, we found that the “evidence against
Dubray was strong” and that “[t]he most damning evidence of
Dubray’s guilt was his own statements to witnesses who had no
reason to lie about them.”29 Dubray made numerous incriminat-
ing statements. He indicated his motive: that Chavez was going
to leave him. He showed a guilty conscience—expecting to go
to prison and trying to kill himself to avoid this. He said, “I
can’t believe what I have done.”
Beyond Dubray’s own words, the physical evidence at trial
was very strong. The two victims were stabbed numerous
times with great force. Dubray suffered numerous superficial
wounds. His only life-threatening wound—the stab wound to
his chest—was one that he admitted to inflicting upon himself.
The severity of the victims’ wounds and the superficial nature
29
State v. Dubray, supra note 1, 289 Neb. at 228-29, 854 N.W.2d at 605.
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of most of Dubray’s wounds strongly supported that he was the
aggressor and that his injuries were self-inflicted.
In light of the record, we conclude that the failure of
Dubray’s trial counsel to call Megan as a witness did not
prejudice him, because such testimony could not have made
a difference in the outcome of the trial. Because there was no
prejudice here, this claim of ineffective assistance of trial coun-
sel is without merit.
(b) Other Ineffective Assistance
of Trial Counsel Claims
Dubray raises various other claims of ineffective assistance
of trial counsel. These claims include the failure to properly
question prospective jurors in the voir dire, failure to call a
DNA expert witness, and failure to pursue an insanity defense,
among others.
[21] When, as is the case here, a defendant’s trial counsel
is different from his or her appellate counsel, all issues of
ineffective assistance of trial counsel that are known to the
defendant or are apparent from the record must be raised on
direct appeal.30 If the issues are not raised, they are procedur-
ally barred.31 Because Dubray could have raised all of his vari-
ous claims of ineffective assistance of trial counsel on direct
appeal, they are now procedurally barred.
5. Dubray’s Claims of Ineffective
Assistance of A ppellate Counsel
[22] Dubray also raises various claims of ineffective assist­
ance of appellate counsel. Claims of ineffective assistance of
appellate counsel may be raised for the first time on postcon-
viction review.32
[23,24] When analyzing a claim of ineffective assistance
of appellate counsel, courts will often begin by determining
30
State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).
31
Id.
32
State v. Sellers, supra note 20.
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whether the defendant suffered prejudice by appellate coun-
sel’s failure to raise a claim.33 If the claimed deficiency of
appellate counsel’s performance is the failure to raise a claim
on appeal, the court will look at the strength of the claim that
appellate counsel failed to raise.34 Much like claims of ineffec-
tive assistance of trial counsel, the defendant must show that
but for counsel’s failure to raise the claim, there is a “reason-
able probability” that the outcome would have been different.35
The prejudice must be of such severity that it “renders the
result of the trial unreliable or the proceeding fundamen-
tally unfair.”36
[25] 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 v.
Washington test.37 If trial counsel was not ineffective, then the
defendant was not prejudiced by appellate counsel’s failure to
raise the issue.38
Dubray raises 18 individual claims of ineffective assistance
of appellate counsel, many of which are related or overlapping.
We summarize and address these below.
(a) Motion for Rehearing
Dubray’s petition claims that his appellate counsel was inef-
fective by failing to file a motion for rehearing in his direct
appeal. As the district court correctly noted, Dubray’s counsel
did file a motion for rehearing. This claim is contradicted by
the record of his direct appeal and is without merit.
33
Id.
34
Id.
35
See id.
36
State v. Edwards, supra note 15, 284 Neb. at 393, 821 N.W.2d at 693.
37
State v. Sellers, supra note 20, 290 Neb. at 25, 858 N.W.2d at 585.
38
Id.
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(b) Actual Innocence
Dubray asserts that his appellate counsel was ineffective for
“failing to appeal the actual innocence claim of the first degree
murder charges.” We have discussed Dubray’s claim of actual
innocence made in this postconviction action and determined it
to be without merit. Appellate counsel was not ineffective for
not raising the issue on direct appeal.
(c) Sufficiency of Evidence
[26] Dubray claims that his appellate counsel was ineffec-
tive for failing to raise a claim of insufficiency of evidence
on direct appeal. In reviewing a claim of insufficiency of the
evidence, an appellate court simply asks whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.39
While Dubray’s counsel did not challenge his convictions
on the basis of insufficiency of evidence, this court necessar-
ily considered the sufficiency of the evidence when evaluating
his many claims on direct appeal. As we said in our opin-
ion, “the State correctly argues that evidence against Dubray
was strong and that the credibility of witnesses was not at
issue. The most damning evidence of Dubray’s guilt was his
own statements to witnesses who had no reason to lie about
them.”40 As opposed to being so insufficient that no rational
trier of fact could have found him guilty, the evidence in this
case was strong. Dubray’s appellate counsel was not ineffec-
tive for failing to raise a meritless challenge to the sufficiency
of the evidence.
(d) Competency
[27] Dubray also asserts that his appellate counsel was
ineffective for failing to raise the issues of whether the trial
court erred in not conducting a competency hearing and
39
See State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).
40
State v. Dubray, supra note 1, 289 Neb. at 228-29, 854 N.W.2d at 605.
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whether trial counsel was ineffective for not requesting one.
A person is competent to plead or stand trial if he or she has
the capacity to understand the nature and object of the pro-
ceedings against him or her, to comprehend his or her own
condition in reference to such proceedings, and to make a
rational defense.41
[28] In order to demonstrate prejudice from counsel’s failure
to investigate competency and for failure to seek a competency
hearing, the defendant must demonstrate that there is a reason-
able probability that he or she was actually incompetent and
that the trial court would have found the defendant incom-
petent had a competency hearing been conducted.42 Dubray’s
petition merely asserts that he was not provided with a compe-
tency hearing and that he was “tried while incompetent.” His
statement that he was tried while incompetent is a conclusory
assertion of law. He alleges no facts that would show that he
was, in fact, incompetent to stand trial. The district court was
correct in concluding that these allegations were insufficient
and that Dubray was not entitled to an evidentiary hearing
on them.
(e) Motions for Mistrial, Directed
Verdict, and New Trial
[29] Dubray raises a layered claim of ineffective assistance
of counsel based on the failure of his trial counsel to file
motions for a mistrial, for a directed verdict, and for a new
trial. The petition does not set forth any basis upon which
these motions would be granted other than the conclusory
statement that “the judge erroneously instructed [the] jury.”
Mere conclusions of fact or law are not sufficient to entitle
a petitioner to an evidentiary hearing in a postconviction
action.43 Dubray has not made sufficient allegations to show
41
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
42
State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
43
See State v. Abdulkadir, supra note 13.
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that he was prejudiced by the failure to raise these motions
because he has not alleged any basis upon which the motions
could be granted.
(f) Suppression of Evidence
Dubray presents another layered ineffective assistance claim
based on his trial counsel’s failure to move to suppress the
three knives introduced at trial and failure to preserve the
issue for direct appeal. As the district court correctly noted,
Dubray’s motion failed to “allege[] any basis in law or fact
which would support suppression of the evidence.” Because
Dubray has not alleged any basis for the suppression of this
evidence, he has not made a viable claim of ineffective assist­
ance of counsel for not raising the issue.
(g) Juror Bias
Dubray brings another layered claim on the allegation that
his trial counsel failed to strike “pro-prosecution jurors” and
that his appellate counsel failed to raise the issue that his “con-
viction was unconstitutional because biased jurors deprived
[him] of the right to a fair and impartial trial.” Beyond his con-
clusory allegations about biased jurors, Dubray makes only one
factual allegation, which is that one juror “was in fact a federal
security officer.” Employment as a security officer alone does
not raise even an inference of bias. The district court correctly
rejected this claim.
(h) Meaningful Adversarial Testing
[30] Dubray presents a layered claim of ineffective counsel
based on the claim that his trial counsel did not put the pros-
ecution’s case to “meaningful adversarial testing.” In cases
where counsel completely fails to submit the State’s case to
meaningful adversarial testing, prejudice to the defendant will
be presumed.44 But when the record shows that the State’s
witnesses were thoroughly cross-examined consistent with the
44
State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003).
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defense theory, there was meaningful adversarial testing of the
prosecution’s case.45
Dubray specifically claims that his trial counsel failed to
cross-examine many of the State’s witnesses and failed to
object to any evidence. But his allegations are directly refuted
by the record of his trial. Dubray’s trial counsel conducted
cross-examinations of most of the prosecution’s witnesses in
a thorough manner and consistent with the defenses of self-
defense or sudden quarrel. His counsel further objected to
several pieces of evidence, including through a pretrial motion
in limine. The prosecution’s case was put to meaningful adver-
sarial testing. Because there was meaningful adversarial test-
ing, the district court was correct to reject this claim.
(i) Failure to Call Expert or
Character Witnesses
Dubray asserts another layered claim based on his trial
counsel’s failure to call any expert witnesses or character wit-
nesses. However, he fails to make any allegations as to what
any of these witnesses would have testified.
[31] In assessing postconviction claims of ineffective assist­
ance of counsel for failure to call a particular witness, we have
upheld the dismissal without an evidentiary hearing where the
motion did not include specific allegations regarding the testi-
mony which the witness would have given if called.46 Dubray
has given us no indication as to what testimony such witnesses
would have given or what exculpatory evidence may have
been uncovered by the retention of experts. Dubray’s allega-
tions are insufficient to show a reasonable probability that the
outcome would have been different but for the failure to call
expert or character witnesses.
45
State v. Quezada, 20 Neb. Ct. App. 836, 834 N.W.2d 258 (2013).
46
State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013); State v. McGhee,
280 Neb. 558, 787 N.W.2d 700 (2010).
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(j) Insanity Defense
Dubray asserts a layered claim based on trial counsel’s
failure to investigate and assert an insanity defense. The dis-
trict court rejected these claims, stating that “[t]here is no
allegation that would suggest [Dubray] had any basis for an
insanity defense.”
[32] Nebraska follows the M’Naghten rule as to the defense
of insanity.47 The two requirements for the insanity defense
are that (1) the defendant had a mental disease or defect at
the time of the crime and (2) the defendant did not know or
understand the nature and consequences of his or her actions
or that he or she did not know the difference between right
and wrong.48
[33] As we have said, “bald assertions of insanity, unsub-
stantiated by a recital of credible facts and unsupported by
the record, are wholly insufficient and justify the summary
dismissal of a post conviction proceeding.”49 On their own,
Dubray’s assertions are conclusory and fail to allege any facts
that would tend to show insanity. Moreover, the record shows
that these claims of insanity are without merit. As this court
said when discussing the issue of intoxication in Dubray’s
direct appeal:
[T]he evidence shows that Dubray was not wholly
deprived of reason immediately before or after the mur-
ders. As explained, Dubray, Chavez, and Loutzenhiser
walked back to Dubray’s house around 6 a.m. No wit-
ness testified that Dubray was behaving unreasonably at
his aunt’s house at this time. By 6:49 a.m., Dubray had
killed Chavez and Loutzenhiser and called Reza to take
care of his child. By the time Reza arrived a few min-
utes later, Dubray had also attempted suicide for the first
time. But his concern for his daughter and his conduct
47
State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).
48
State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
49
State v. Flye, 201 Neb. 115, 119, 266 N.W.2d 237, 240 (1978).
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after the murders showed he was contemplating how
to respond to his imminent arrest. He specifically told
Marco and Reza that he intended to kill himself to avoid
prison, and he insisted that they not call Little Hoop so
that he could carry out this plan. He was clearly reason-
ing and anticipating the consequences of the acts he had
just committed.50
The record belies Dubray’s conclusory claims of insanity.
Because these claims are without merit, Dubray did not suffer
prejudice by his trial counsel’s failure to raise the issue.
(k) Other Claims
[34] Dubray asserts several other miscellaneous claims of
ineffective assistance of appellate counsel that are too vague to
understand what error is being alleged. For example, he alleges
that his appellate counsel was ineffective for “failing to raise
a dead-bang winner.” In a motion for postconviction relief,
the defendant must allege facts which, if proved, constitute a
denial or violation of his or her constitutional rights, causing
the judgment against the defendant to be void or voidable.51
The vague claims in Dubray’s petition do not sufficiently
allege any facts that, if true, would constitute ineffective assist­
ance of counsel or any other constitutional violation.52
VI. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the district court.
A ffirmed.
50
State v. Dubray, supra note 1, 289 Neb. at 240, 854 N.W.2d at 612.
51
§ 29-3001(1); State v. Phelps, supra note 12.
52
See State v. Phelps, supra note 12.