State v. Stricklin , 300 Neb. 794 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. STRICKLIN
Cite as 300 Neb. 794State of Nebraska, appellee, v.
Derrick U. Stricklin, appellant.
___ N.W.2d ___
Filed August 17, 2018. No. S-17-914.
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. 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.
3. 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 rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
4. ____: ____: ____. A trial 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 Nebraska or federal Constitution.
5. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in a case affirmatively
show the defendant is entitled to no relief, the court is not required to
grant an evidentiary hearing.
6. ____: ____. In a postconviction proceeding, an evidentiary hearing is
not required (1) when the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s consti-
tutional rights; (2) when the motion alleges only conclusions of fact
or law; or (3) when the records and files affirmatively show that the
defend­ant is entitled to no relief.
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STATE v. STRICKLIN
Cite as 300 Neb. 7947. Postconviction: Effectiveness of Counsel: Appeal and Error. Although
a motion for postconviction relief cannot be used to secure review of
issues which were or could have been litigated on direct appeal, when a
defendant was represented by the same lawyer both at trial and on direct
appeal, the defendant’s first opportunity to assert ineffective assistance
of counsel is in a motion for postconviction relief.
8. 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.
9. 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 per­
formance actually prejudiced the defendant’s defense.
10. ____: ____. To show that counsel’s performance was deficient under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law in
the area.
11. Effectiveness of Counsel: Proof: Words and Phrases: Appeal
and Error. To show prejudice under the prejudice component of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, the defendant must demonstrate a reasonable probabil-
ity that but for his or her counsel’s deficient performance, the result of
the proceeding would have been different. 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 prob-
ability sufficient to undermine confidence in the outcome.
12. Judges: Recusal. To demonstrate that a trial judge should have recused
himself or herself, the moving party must demonstrate that a reason-
able person who knew the circumstances of the case would question the
judge’s impartiality under an objective standard of reasonableness, even
though no actual bias or prejudice was shown.
13. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality.
14. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
15. Trial: Attorneys at Law: Presumptions. Trial counsel is afforded due
deference to formulate trial strategy and tactics, and there is a strong
presumption that counsel acted reasonably.
16. Trial: Prosecuting Attorneys. Prosecutors generally may not give their
personal opinions on the veracity of a witness or the guilt or innocence
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STATE v. STRICKLIN
Cite as 300 Neb. 794of the accused. The principle behind this rule is that the prosecutor’s
opinion carries with it the imprimatur of the government and may
induce the jury to trust the government’s judgment rather than its own
view of the evidence.
17. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s post-
conviction claims that his or her defense counsel was ineffective in fail-
ing to investigate possible defenses are too speculative to warrant relief
if the petitioner fails to allege what exculpatory evidence the investiga-
tion would have procured and how it would have affected the outcome
of the case.
18. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
19. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic deci-
sion to present particular evidence, or not to present particular evidence,
will not, without more, sustain a finding of ineffective assistance of
counsel. Strategic decisions made by trial counsel will not be second-
guessed so long as those decisions are reasonable.
20. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can pre­
sent a valid claim of ineffective assistance of counsel in two instances:
(1) if the defendant shows that counsel interfered with his or her free-
dom to decide to testify or (2) if counsel’s tactical advice to waive the
right was unreasonable.
21. Postconviction: Evidence: Presumptions: Proof. The threshold show-
ing that must be made to entitle a prisoner to an evidentiary hearing
on a postconviction claim of actual innocence is extraordinarily high,
because after a fair trial and conviction, the presumption of inno-
cence vanishes.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Stuart J. Dornan and Jason E. Troia, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
H all, District Judge.
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STATE v. STRICKLIN
Cite as 300 Neb. 794Stacy, J.
A jury found Derrick U. Stricklin guilty of two counts of
first degree murder, three counts of use of a deadly weapon
to commit a felony, attempted intentional manslaughter, and
possession of a deadly weapon by a prohibited person. He was
sentenced to life imprisonment for the murders and to addi-
tional terms of years for the other offenses, the sentences to
run consecutively. We affirmed his convictions and sentences
on direct appeal.1
Stricklin now moves for postconviction relief, raising claims
of ineffective assistance of counsel and a claim of actual
innocence. The district court denied relief without conducting
an evidentiary hearing. Stricklin filed this timely appeal. We
affirm in part, and in part reverse and remand for an eviden-
tiary hearing.
I. FACTS
Stricklin’s trial was consolidated with codefendant Terrell
E. Newman. The underlying facts are set forth in our opinion
in Stricklin’s direct appeal.2 Summarized, Stricklin’s convic-
tions arose from the shooting deaths of Carlos Morales and
Bernardo Noriega during a drug transaction at an automobile
body shop owned by Morales. Jose Herrera-Gutierrez was also
present during the drug transaction and the shootings, and
he was the State’s primary witness at trial. Herrera-Gutierrez
identified Stricklin and Newman as the shooters and testified
that he recognized both men from prior visits to Morales’
shop. He had seen Stricklin approximately four times at the
shop, and he had seen Newman approximately three times at
the shop.
The State’s theory of the case was that Stricklin and
Newman committed the crimes together. Newman’s cell phone
records showed that Newman was in communication with both
Morales and Stricklin on the day of the shootings, and also
1
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
2
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STATE v. STRICKLIN
Cite as 300 Neb. 794showed that Newman’s cell phone was in the area of the mur-
der scene during the relevant timeframe.3
A jury found Stricklin guilty of two counts of first degree
murder, three counts of use of a deadly weapon to commit a
felony, attempted intentional manslaughter, and possession of
a deadly weapon by a prohibited person. He was sentenced to
consecutive sentences of life imprisonment for each murder
conviction, 15 to 25 years’ imprisonment for each use of a
deadly weapon conviction, 20 months’ to 5 years’ imprison-
ment for the attempted manslaughter conviction, and 15 to 25
years’ imprisonment for the possession of a deadly weapon
conviction.4 The district court denied his motion for new trial,
and he filed a direct appeal.
Stricklin was represented by the same counsel at trial and
on direct appeal. In his direct appeal, Stricklin assigned the
trial court erred in (1) denying his motion to sever, (2) exclud-
ing statements of a confidential informant, (3) limiting his
cross-examination of Herrera-Gutierrez, (4) failing to include
relevant language in certain jury instructions, (5) overruling his
motion for new trial based on juror misconduct, and (6) over-
ruling his motion to reopen the evidence. This court affirmed
his convictions and sentences.5
Stricklin then filed the instant motion for postconviction
relief, along with a motion for appointment of counsel. His
postconviction motion alleges counsel was ineffective for (1)
not moving to recuse the trial judge; (2) failing to object to
jury instructions Nos. 6, 11, 12, and 20; (3) failing to file
notice of his alibi defense and present certain alibi evidence;
(4) failing to object and move for a mistrial during closing
arguments; (5) failing to raise a confrontation objection at a
hearing on his motion for new trial; (6) abandoning, during
the hearing on the motion for new trial, all arguments except
juror misconduct; (7) failing to call a witness at the hearing
3
Id.4
Id.5
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STATE v. STRICKLIN
Cite as 300 Neb. 794on the motion for new trial; (8) failing to obtain a crime scene
investigator; (9) failing to object to cell phone record evidence
on “authentication” grounds; (10) failing to depose and call
certain identified witnesses and investigate certain defenses;
(11) failing to file a motion in limine regarding the admissibil-
ity of testimony of a confidential informant; (12) unreasonably
advising him to waive his right to testify; (13) failing to assign
as error on direct appeal the insufficiency of the evidence
to support his convictions and the improper identification of
Stricklin as one of the perpetrators; and (14) failing to obtain a
complete record for appeal. Finally, Stricklin alleges a claim of
actual innocence. The district court denied the postconviction
motion without conducting an evidentiary hearing. Stricklin
filed this appeal.
II. ASSIGNMENTS OF ERROR
Stricklin assigns, restated, that the district court erred in (1)
denying him an opportunity to amend his motion for postcon-
viction relief, (2) denying him an evidentiary hearing on his
motion for postconviction relief, (3) finding he did not meet
the threshold for actual innocence, and (4) denying his motion
for postconviction relief.
III. STANDARD 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 affirma-
tively show that the defendant is entitled to no relief.6
IV. ANALYSIS
1. General Propositions
Governing Postconviction
[2,3] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
6
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017); State v. Watson, 295
Neb. 802, 891 N.W.2d 322 (2017).
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STATE v. STRICKLIN
Cite as 300 Neb. 794that there was a denial or infringement of his or her constitu-
tional rights such that the judgment was void or voidable.7 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.8
[4-6] A trial 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 Nebraska or
federal Constitution.9 If a postconviction motion alleges only
conclusions of fact or law, or if the records and files in a case
affirmatively show the defendant is entitled to no relief, the
court is not required to grant an evidentiary hearing.10 Thus,
in a postconviction proceeding, an evidentiary hearing is not
required (1) when the motion does not contain factual allega-
tions which, if proved, constitute an infringement of the mov-
ant’s constitutional rights; (2) when the motion alleges only
conclusions of fact or law; or (3) when the records and files
affirmatively show that the defendant is entitled to no relief.11
[7] Here, Stricklin was represented by the same counsel
at trial and on appeal, and his postconviction motion alleges
counsel provided ineffective assistance both at trial and on
direct appeal. Although a motion for postconviction relief can-
not be used to secure review of issues which were or could
have been litigated on direct appeal, when a defendant was
represented by the same lawyer both at trial and on direct
appeal, the defendant’s first opportunity to assert ineffective
assistance of counsel is in a motion for postconviction relief.12
7
Vela, supra note 6.
8
Id.9
Id.10
Id.11
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
12
State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
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STATE v. STRICKLIN
Cite as 300 Neb. 794Recognizing this, the district court addressed all of Stricklin’s
ineffective assistance of counsel claims.
[8-11] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to
a fair trial.13 To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington,14 the defendant
must show that his or her counsel’s performance was defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense.15 To show that counsel’s performance
was deficient, the defendant must show counsel’s performance
did not equal that of a lawyer with ordinary training and skill
in criminal law in the area.16 To show prejudice under the
prejudice component of the Strickland test, 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.17 A reasonable probability does not
require that it be more likely than not that the deficient per­
formance altered the outcome of the case; rather, the defendant
must show a probability sufficient to undermine confidence in
the outcome.18
2. Motion to A mend
Postconviction Motion
Stricklin assigns error to the district court’s “denying [him]
an opportunity to amend his motion for postconviction relief.”
We review the district court’s decision in this regard for an
abuse of discretion.19
13
Thorpe, supra note 11; State v. Baker, 286 Neb. 524, 837 N.W.2d 91(2013).
14
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
15
See Vela, supra note 6.
16
See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).
17
See Vela, supra note 6.
18
Id.19
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
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Cite as 300 Neb. 794Approximately 4 months after filing his verified motion for
postconviction relief, Stricklin filed a motion seeking “per-
mission to Amend the Motion for Postconviction after the
Court grants appointment of Counsel.” Newman filed a similar
motion in his postconviction proceeding. At a joint telephonic
hearing on the motions, the court asked for clarification:
THE COURT: Okay. There was a motion filed by both
. . . Newman and . . . Stricklin on August 17, 2016, which
was a Request for Counsel and a Request to Amend the
Postconviction Motion. I need to ask, and I’ll start with
you, Mr. Newman, are you asking to amend at this time?
MR. NEWMAN: Yes.
THE COURT: What are you asking to amend?
MR. NEWMAN: The motion for postconviction.
THE COURT: How are you asking for that to be
amended?
MR. NEWMAN: By way of counsel.
THE COURT: Okay. So — what I want to make clear
is, there was a motion asking for counsel, and then if
counsel is appointed you want to keep open your ability
to amend your Motion for Postconviction. Am I under-
standing that correctly?
MR. NEWMAN: Yes. Correct.
THE COURT: Okay. But you’re not asking to amend
here today?
MR. NEWMAN: No.
THE COURT: All right. And I’ll ask you the same
questions, Mr. Stricklin. Are you asking to amend your
postconviction today?
MR. STRICKLIN: No.
THE COURT: Okay. Again, I’ll just make it clear with
Mr. Stricklin. So you’re asking if the Court determines
that an evidentiary hearing is warranted, then you’re ask-
ing for Counsel to be appointed and then the ability to
amend at that time; is that correct?
MR. STRICKLIN: Correct.
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Cite as 300 Neb. 794THE COURT: All right. So that matter will remain
pending until the Court reviews — because I still have
to review whether or not the evidentiary hearing will be
granted, and then we can go from there.
MR. STRICKLIN: Okay.
The record affirmatively shows Stricklin was not seeking leave
to immediately amend his postconviction motion in order to
add factual allegations or include additional claims.20 Instead,
he intended the motion to serve as a placeholder of sorts for a
possible future motion to amend by appointed counsel. Given
the conditional nature of Stricklin’s request, we find no abuse
of discretion in denying the motion.
3. Failure to Seek R ecusal
of Trial Judge
Stricklin’s postconviction motion alleges his trial counsel
was ineffective for not moving to recuse the trial judge and
for abandoning an opportunity to have an evidentiary hear-
ing on such a motion. Stricklin alleges that during his trial,
“individuals and spectators in the audience” noticed “favorit-
ism” and “deference favoring the state prosecution to the point
of no return.” Stricklin’s postconviction motion alleges these
concerns were brought to the attention of his counsel, and he
claims counsel was ineffective for failing to pursue recusal
based on these concerns. His motion does not explain what
gave rise to these concerns nor does he allege any support-
ing facts.
[12,13] To demonstrate prejudice from counsel’s failure to
seek recusal, Stricklin must allege facts sufficient to demon-
strate there was a reasonable probability such a motion would
have been successful.21 To demonstrate that a trial judge
20
Cf. State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010) (defendant
requested leave to amend even if counsel was not appointed), disapproved,
Robertson, supra note 19.
21
See, e.g., State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018) (unless
motion to suppress would have been successful, it cannot be said counsel
was deficient in failing to file such motion).
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Cite as 300 Neb. 794should have recused himself or herself, the moving party must
demonstrate that a reasonable person who knew the circum-
stances of the case would question the judge’s impartiality
under an objective standard of reasonableness, even though
no actual bias or prejudice was shown.22 A defendant seeking
to disqualify a judge on the basis of bias or prejudice bears
the heavy burden of overcoming the presumption of judi-
cial impartiality.23
Here, Stricklin’s conclusory allegations of “favoritism” and
“deference favoring the state” were insufficient to overcome
the presumption of judicial impartiality and, without more,
would not have required recusal. Moreover, the record affirma-
tively shows that when instructing the jury, the court specifi-
cally admonished it regarding such issues, explaining:
I am not permitted to comment on the evidence, and I
have not intentionally done so. If it appears to you that I
have commented on the evidence, during either the trial
or the giving of these instructions, you must disregard
such comment entirely.
You must not interpret any of my statements, actions, or
rulings, nor any of the inflections of my voice as reflect-
ing an opinion as to how this case should be decided.
[14] Because defense counsel is not ineffective for failing to
raise an argument that has no merit,24 we find no error in the
postconviction court’s denial of this claim without an eviden-
tiary hearing.
4. Jury Instructions
Stricklin argues his counsel was ineffective for failing to
object to jury instructions Nos. 6, 11, 12, and 20. The district
court denied Stricklin’s motion as to instructions Nos. 5, 11,
and 12, because it found errors related to those instructions
had been addressed and rejected on direct appeal. The court
22
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
23
Id.24
State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
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Cite as 300 Neb. 794denied Stricklin’s motion as to instruction No. 20, because it
found Stricklin failed to allege either what objection trial coun-
sel should have made or what proposed alternative instruction
should have been requested.
In his brief on appeal, Stricklin concedes that instruction No.
5 was addressed in his direct appeal and he presents no further
argument regarding that instruction or his assigned error for
instruction No. 6. Stricklin also concedes instructions Nos.
11 and 12 were addressed in codefendant Newman’s direct
appeal, but Stricklin contends he is not procedurally barred
from raising those claims on postconviction, because he had
the same counsel at trial and on direct appeal.25 While it is true
the claims of ineffective assistance premised on instructions
Nos. 11 and 12 are not procedurally barred, Stricklin presents
the same arguments regarding those instructions that Newman
raised on direct appeal. And, in State v. Newman,26 our opin-
ion resolving Newman’s direct appeal, we found such claims
were meritless:
Instruction No. 11 provided the jury with definitions.
Newman contends that the instruction was erroneous for
omitting the phrase “‘or intentional manslaughter,’” as
stated in the pattern jury instruction. He does not iden-
tify the erroneous definition or the relevant pattern jury
instruction, but we presume that he refers to the definition
of “‘[a] felony.’” Notwithstanding any error in that defi-
nition, the jury correctly understood that the offense of
attempted intentional manslaughter constituted a felony.
The jury found Newman guilty of attempted intentional
manslaughter and the corresponding charge of use of a
deadly weapon to commit a felony.
As to instruction No. 12, Newman contends that the
instruction failed to correctly charge the jury on intent.
However, instruction No. 12 was modeled on the relevant
25
See McKinney, supra note 12.
26
State v. Newman, 290 Neb. 572, 585, 861 N.W.2d 123, 135 (2015).
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Cite as 300 Neb. 794pattern jury instruction. As such, the instruction was
not erroneous.
None of Newman’s allegations of error in the instruc-
tions given to the jury caused him prejudice. Thus, the
record affirmatively establishes that this claim of ineffec-
tive assistance of counsel is without merit.
Our reasoning in Newman shows that if Stricklin’s counsel
had challenged jury instructions Nos. 11 and 12, that challenge
would likewise have been meritless. Because Stricklin’s coun-
sel cannot be ineffective for failing to raise an argument that
has no merit,27 the district court correctly denied postconviction
relief on the claim involving instructions Nos. 11 and 12.
With respect to instruction No. 20, Stricklin alleges his
counsel should have asked the court for a limiting instruc-
tion informing the jury that the records of Newman’s cell
phone use could not be considered in Stricklin’s case. But in
Stricklin’s direct appeal, we specifically held Newman’s cell
phone records were admissible evidence against both Stricklin
and Newman.28 And we rejected the suggestion that a limiting
instruction was necessary regarding an exhibit showing calls to
Newman’s cell phone and the location of the cell tower used
to service those calls.29 Because it would not have been error
to deny such a limiting instruction if counsel had requested it,
Stricklin’s allegations of ineffective assistance as to instruction
No. 20 were also insufficient to warrant an evidentiary hear-
ing. We find no error in the postconviction court’s denial of
this claim without an evidentiary hearing.
5. A libi Defense
Stricklin alleges his counsel was ineffective for failing to
file notice of and present an alibi defense. In his postconviction
27
See Vo, supra note 24.
28
Stricklin, supra note 1, 290 Neb. at 552, 861 N.W.2d at 381 (“the evidence
of Newman’s cell phone records and exhibit 288 would have been
relevant, admissible in a separate trial against Stricklin”).
29
Id.
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Cite as 300 Neb. 794motion, Stricklin alleges that at 10 a.m. on the day of the
crimes, he took his stepson to a barber shop in downtown
Omaha, Nebraska. He further alleges they left the barber shop
around noon and drove to Stricklin’s grandmother’s house
“located on 36th and Himebaugh.” He alleges he took the
“North freeway” en route to his grandmother’s house and that
during the drive, he made a call on his cell phone at 12:34 p.m.
The postconviction motion does not allege how long Stricklin
stayed at his grandmother’s house, but it does allege that four
named witnesses would corroborate this alibi. The motion fur-
ther alleges Stricklin’s cell phone records would corroborate
this alibi.
The district court found these allegations were insufficient
to warrant an evidentiary hearing, because they did not “defini-
tively state [Stricklin] was not at the murder scene and merely
suggest [Stricklin] may have been at these other places at some
point in the day.” Stricklin’s brief concedes his motion did
not affirmatively allege he was not at the crime scene, but he
contends it was sufficient to describe that he was somewhere
else at the time the State claims the shootings occurred and
to allege that numerous alibi witnesses would corroborate
that claim.
[15] At trial, the State relied on cell phone evidence linking
Stricklin and Newman to the crime scene between 11:42 a.m.
and 12:36 p.m. Thus, based on the State’s theory of the case,
the crimes occurred during the general time period Stricklin
has alleged alibi witnesses would confirm he was someplace
else. Stricklin alleges his counsel knew of this alibi informa-
tion and was deficient in failing to present it. Stricklin’s brief
acknowledges that trial counsel is afforded due deference to
formulate trial strategy and tactics and that there is a strong
presumption that counsel acted reasonably.30 But he argues
that the reasonableness of trial counsel’s strategy in rejecting
his alibi defense cannot be determined without an evidentiary
hearing. We agree.
30
See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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Cite as 300 Neb. 794We find Stricklin has alleged facts which, if proved, are
sufficient to show both deficient performance and prejudice
regarding his alibi defense. Stricklin is entitled to an eviden-
tiary hearing on whether trial counsel was ineffective for fail-
ing to file notice of and present evidence of his alibi defense.
6. Closing A rguments/Mistrial
Stricklin alleges his trial counsel was ineffective for failing
to move for mistrial based on prosecutorial misconduct. His
motion alleges two instances of alleged misconduct, but he
argues only one of them on appeal, so we limit our analysis to
that instance.31
During closing arguments, Stricklin’s counsel referred to
cell phone records showing Stricklin’s cell phone neither made
nor received any calls between 11:13 a.m. and 12:34 p.m.
During his closing argument, defense counsel suggested the
lack of calls during that timeframe was because Stricklin was
driving. In the prosecutor’s rebuttal, she responded to that
argument, stating:
At 11:13 . . . Stricklin has no more calls. From 11:13 until
12:34, he has no more calls. And the call that he wants
you to believe he’s traveling while it’s being made, that
call wasn’t answered at 12:34. Why are there no more
calls? The two of them are together. And in my mind
. . . Stricklin turned his phone off. He had no incoming or
outgoing calls at all between 11:13 and 12:34.
In response to this statement, Stricklin’s attorney objected,
stating, “That’s not in evidence.” The prosecutor countered
that the cell phone records were in evidence, and the trial court
overruled the objection.
In Stricklin’s direct appeal, he alleged the prosecutor’s
comments amounted to prosecutorial misconduct. We found
Stricklin had not preserved the issue for appellate review
31
See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018) (errors
must be both specifically assigned and specifically argued to be considered
by appellate court).
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Cite as 300 Neb. 794because his counsel had not requested a mistrial based on the
prosecutor’s comments.32 Now, in his postconviction motion,
Stricklin alleges his trial counsel was ineffective for failing to
move for a mistrial and thus preserve for appellate review the
issue of prosecutorial misconduct.
The district court denied postconviction relief on this claim
without an evidentiary hearing, finding the prosecutor’s com-
ments did not mislead or unduly influence the jury and further
finding that any resulting prejudice was not substantial enough
to damage the integrity, reputation, or fairness of the judicial
process. We agree.
[16] Prosecutors generally may not give their personal opin-
ions on the veracity of a witness or the guilt or innocence of
the accused.33 The principle behind this rule is that the prosecu-
tor’s opinion carries with it the imprimatur of the government
and may induce the jury to trust the government’s judgment
rather than its own view of the evidence.34 We have empha-
sized the importance of this rule and have admonished prosecu-
tors to avoid using phrases such as “‘I believe’” or “‘the State
believes’”35 when arguing their case to the jury.
But here, to the extent Stricklin suggests the prosecutor’s
remark “in my mind” was an attempt to express a personal
opinion, it was not one relating to the veracity of a witness or
to Stricklin’s guilt or innocence. Rather, the prosecutor was
responding to an argument advanced by defense counsel on the
possible interpretation of cell phone evidence. While prosecu-
tors would be wise to avoid language expressing their personal
opinion on any matter, the statement at issue here was not
32
Stricklin, supra note 1.
33
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). See, also,
Neb. Ct. R. of Prof. Cond. § 3-503.4 (“[a] lawyer shall not . . . in trial . . .
state a personal opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or innocence of an
accused”).
34
Hernandez, supra note 33.
35
Id. at 928, 911 N.W.2d at 549.
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Cite as 300 Neb. 794misconduct. Thus, Stricklin’s trial counsel was not deficient
for failing to move for a mistrial based on the remark. The dis-
trict court correctly denied postconviction relief on this claim
without an evidentiary hearing.
7. Same Claims as Newman
Stricklin raises several claims of ineffective assistance of
counsel that are identical, or nearly identical, to claims raised
by Newman in his motion for postconviction relief. These
claims relate to: trial counsel’s failure to object during the
motion for new trial, trial counsel’s failure to obtain a crime
scene investigator, and trial counsel’s failure to challenge the
authentication of Newman’s cell phone records. These assign-
ments of error are analyzed, and rejected, in State v. Newman,36
our opinion resolving Newman’s appeal of his postconviction
motion. We briefly address them here as well.
(a) Failure to Object During
Motion for New Trial
Stricklin, like codefendant Newman, alleges his trial counsel
should have objected when an attorney appointed to represent
a juror accused of misconduct made a substantive representa-
tion about the juror’s knowledge at a particular point in time,
instead of eliciting such information from his client. Stricklin
alleges that due to his counsel’s deficient performance in not
objecting to the remark, the juror’s attorney was permitted to
testify on behalf of his client and Stricklin was deprived of the
opportunity to confront and cross-examine the juror. As we
concluded in Newman’s case, the files and records affirma-
tively refute this claim.
The record shows Stricklin and Newman both filed motions
for new trial on the basis of juror misconduct, and the motions
were heard together. Although Stricklin’s counsel did not
object to the substantive remark make by the juror’s attorney,
Newman’s trial counsel did object, and argued the juror’s
36
State v. Newman, ante p. 770, ___ N.W.2d ___ (2018).
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Cite as 300 Neb. 794attorney should not be permitted to testify for his client. The
court agreed and subsequently allowed both Stricklin and
Newman to call the juror as a witness and ask questions about
the timing and substance of the telephone conversation the
juror had with his brother.
Thus, although Stricklin’s counsel did not join in the objec-
tion raised by Newman’s counsel, Stricklin can show no preju-
dice resulting from this failure. The files and records affirma-
tively refute his claim that he was denied an opportunity to
question the juror directly, and the postconviction court did not
err in denying an evidentiary hearing on this issue.
(b) Crime Scene Investigator
Stricklin alleges his trial counsel was ineffective in failing
to hire a crime scene investigator to rebut Herrera-Gutierrez’
testimony. Stricklin’s allegations are nearly identical to those
made by Newman in his motion for postconviction relief. And
Stricklin’s allegations fail for the same reasons articulated in
our opinion analyzing Newman’s claims.
Stricklin alleges his trial counsel was “content to cross-
examine” the State’s witnesses and was deficient for not hiring
a crime scene investigator or specialist to refute the evidence
regarding footprints and blood splatter, and to do additional
DNA testing. But Stricklin’s postconviction motion presents
no allegations regarding what such an investigator or specialist
would have testified to if called or how such testimony would
have rebutted the State’s evidence or affected the outcome of
the case.
[17] A petitioner’s postconviction claims that his or her
defense counsel was ineffective in failing to investigate pos-
sible defenses are too speculative to warrant relief if the peti-
tioner fails to allege what exculpatory evidence the investiga-
tion would have procured and how it would have affected the
outcome of the case.37 The district court correctly concluded
that Stricklin’s conclusory allegations about the failure to
37
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
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Cite as 300 Neb. 794hire a crime scene investigator did not warrant an eviden-
tiary hearing.38
(c) Cell Phone Records
Stricklin alleges his counsel was ineffective for failing to
object to the authenticity of the cell phone records received
into evidence at trial. Stricklin alleges that if his attorney had
objected to the cell phone evidence on the ground of “authen-
tication of who was actually using the cellphones in ques-
tion,” the corroborative cell phone evidence would have been
excluded. Stricklin’s allegations are nearly identical to those
made by Newman in his motion for postconviction relief, and
they fail for the same reason.
As we discussed in Newman, the files and records affirma-
tively show an authentication objection would not have been
successful and, therefore, Stricklin’s counsel could not have
been ineffective for failing to make such an objection.39 The
district court correctly denied postconviction relief on this
claim without an evidentiary hearing.
8. Motion for New Trial
Stricklin alleges his trial counsel was ineffective in handling
his motion for new trial. He alleges counsel was deficient in
two respects: (1) abandoning certain grounds that had been
alleged in the motion and (2) failing to adduce certain evidence
at the hearing.
(a) Abandoned Arguments
Stricklin alleges his trial counsel filed a motion for new trial
alleging juror misconduct, irregularities in the proceedings, the
verdict was not supported by sufficient evidence, the verdict
was contrary to law, error in the jury instructions, and failure
to sustain his motion for directed verdict. At the hearing on
the motion for new trial, counsel argued only the issue of juror
38
See id.39
See, Newman, supra note 36; Vo, supra note 24.
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Cite as 300 Neb. 794misconduct. Stricklin alleges his counsel abandoned the other
arguments out of “neglect and inattention,” and he alleges gen-
erally that if the other grounds had been pursued they would
have been meritorious.
Stricklin’s conclusory allegation that the abandoned argu-
ments would have been meritorious is not supported by any
factual allegations and is insufficient to show either deficiency
in performance or resulting prejudice. The district court did not
err in denying postconviction relief on this claim without an
evidentiary hearing.
(b) Failure to Call
Additional Witness
As noted, Stricklin’s motion for new trial was premised on
juror misconduct when, after the first day of deliberation, a
juror made a telephone call to his brother and discussed the
status of his vote. Stricklin alleges his counsel performed
deficiently during the hearing on his motion.
At the hearing on the motion for new trial, portions of
an affidavit from the juror were admitted into evidence and
the juror was questioned by counsel for both Stricklin and
Newman. The juror admitted he had telephoned his brother
during an evening recess from deliberations. The juror told
his brother, who lives in Georgia, that he was a juror in
a murder trial, that he was the only juror wanting to vote
“not guilty,” and that he did not know what he was going to
do. During the conversation with his brother, the juror also
learned that his father was an acquaintance of Stricklin and
Newman. Eventually, the jury returned a unanimous verdict
of guilt.
After this hearing, the district court found the juror had
committed misconduct, but that Stricklin had not been prej-
udiced by the misconduct. On direct appeal, we agreed,
reasoning:
[W]e agree with the district court that Stricklin was
not prejudiced by the extraneous information received
by the juror during the telephone call to his brother.
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Cite as 300 Neb. 794Whether prejudice resulted from jury misconduct must
be resolved by the trial court’s drawing reasonable infer-
ences as to the effect of the extraneous information on an
average juror. The test to determine whether extraneous
material was prejudicial looks to the possible effect of
the extraneous material on an average juror’s delibera-
tive process.
The extraneous information received by the juror
would not have affected an average juror’s deliberative
process. The district court determined that the juror had
testified credibly that his brother informed him only that
his father and [Stricklin and Newman] had a neutral
acquaintance. . . . We agree with the district court that
such knowledge of a neutral family acquaintance would
not motivate an average juror to change his vote from not
guilty to guilty.40
In his postconviction motion, Stricklin alleges his counsel
was ineffective because he asked objectionable questions about
the juror’s thought process and he “should have known bet-
ter.” He also alleges his attorney was deficient for not calling
the juror’s brother as a witness during the hearing. Because
Stricklin’s brief argues only the latter allegation, we limit our
analysis accordingly.41
Stricklin alleges that if his attorney had called the juror’s
brother to testify, the brother would have established that (1)
the juror was aware before beginning deliberations that his
family knew Stricklin and Newman and (2) the juror’s father
once injured his shoulder in an altercation with Newman.
The district court found this alleged testimony, even if
proved, would have been cumulative to similar testimony
adduced during the hearing, so any deficiency could not
have prejudiced Stricklin. Our de novo review leads us to the
same conclusion.
40
Stricklin, supra note 1, 290 Neb. at 569-70, 861 N.W.2d at 391-92.
41
See Fetherkile, supra note 31.
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Cite as 300 Neb. 794Several individuals testified at the hearing on the motion
for new trial, including the juror accused of misconduct and
the private investigator hired by the defense. Stricklin and
Newman also testified via an offer of proof. The private inves-
tigator testified the juror had told him that the day before delib-
erations began, he started thinking he might know Stricklin and
Newman, because he recognized some people in the gallery,
and that was one of the reasons he called his brother. Newman
testified that he knew the juror’s family but had not recog-
nized the juror. Newman also described an altercation with the
juror’s father: “It was just once. Me and him was wrestling
around, and I hip tossed him and threw his shoulder out of
a socket.”
Because the purported testimony of the juror’s brother would
have been cumulative to other similar testimony, any deficient
performance by trial counsel in not calling the brother did not
result in prejudice to Stricklin. The district court did not err in
denying this claim without an evidentiary hearing.
9. Failure to Investigate
Stricklin alleges that despite his request, trial counsel failed
to “independently interview, depose, subpoena, or contact” var-
ious witnesses. In this regard, Stricklin presents some claims
which are nearly identical to Newman’s, and other claims
which Newman did not raise.
[18,19] A defense attorney has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.42 A reasonable strategic
decision to present particular evidence, or not to present par-
ticular evidence, will not, without more, sustain a finding of
ineffective assistance of counsel.43 Strategic decisions made by
trial counsel will not be second-guessed so long as those deci-
sions are reasonable.44
42
State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
43
Id.44
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Cite as 300 Neb. 794(a) Same Witnesses
as Newman
Stricklin alleges his counsel failed to “independently inter-
view, depose, subpoena, or contact” many of the same potential
witnesses identified in Newman’s postconviction motion. Like
Newman, Stricklin alleges these witnesses would have testified
to hearing that unnamed “Mexicans” or “Latino’s” had killed
Noriega and Morales; to hearing gunshots near the crime scene
around 1:15 p.m. on the day of the shootings; to observing two
men standing in a parking lot near the crime scene around 1
p.m. on the day of the shootings; to being scared of Herrera-
Gutierrez and not believing his story “add[ed] up”; to observ-
ing Herrera-Gutierrez “acting crazy” on the day of the shoot-
ings; and to the belief that Noriega and Morales were “killed
over drugs.”
The district court addressed all of these allegations col-
lectively and concluded Stricklin had failed to allege how
deposing or subpoenaing any of these witnesses would have
produced a different outcome at trial. For the same reason,
we found these allegations insufficient to show prejudice in
Newman’s postconviction case, we find them insufficient in
Stricklin’s case.
Considering the alleged testimony of these potential wit-
nesses in the context of all the evidence adduced at trial, we
conclude the testimony would not have altered the evidentiary
picture and would, at best, have had an isolated or trivial
effect on the jury’s findings. We find no error in the district
court’s denial of the claims involving these witnesses without
an evidentiary hearing.
(b) Police Investigation
Stricklin’s motion alleges his counsel did not investigate
“irregularities” in the police investigation. He alleges the
lead detective told crime scene technicians not to preserve
blood evidence, gave false testimony at the suppression hear-
ing, failed to check Herrera-Gutierrez’ fingerprints against
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Cite as 300 Neb. 794crime scene prints, and would unexpectedly show up at the
jail while Stricklin was meeting with his trial counsel, which
Stricklin alleged was an attempt to intimidate him.
Stricklin has not alleged which witnesses would have testi-
fied to these irregularities, nor has he alleged how his counsel’s
failure to investigate any of these alleged actions prejudiced
his defense. For these reasons, we find no error in the district
court’s denial of an evidentiary hearing on this claim.
(c) Other Possible Suspects
Stricklin’s postconviction motion also alleges his counsel
failed to investigate and present evidence of two other poten-
tial suspects: Marcus Jefferson and James Moore.
Stricklin alleges that 2 days after the shooting, his half
brother, Marcus Jefferson, told him that Morales had been
“murdered by a guy named James Moore” because Morales
had sold Moore “bad drugs” and refused to correct the problem
or refund the money. Stricklin alleges he told his counsel about
this discussion but counsel failed to investigate Moore as a
potential suspect.
Stricklin also alleges he asked his counsel to investigate
Jefferson as a potential suspect. Stricklin alleges he told his
counsel that after the shootings, Jefferson seemed to know
details of the crime that were not yet public. He also alleges
Jefferson had a motive to murder Morales, because Morales
owed Jefferson “alot [sic] of money” as a result of a fire in
Morales’ shop that destroyed Jefferson’s “show car.”
Stricklin’s motion generally suggests that if his counsel
had investigated this information, Jefferson and Moore would
have been identified as suspects and the result of the trial
would have been different. We conclude these allegations
are sufficient, if proved, to allege both deficient performance
and prejudice. Thus, Stricklin is entitled to an evidentiary
hearing on his allegation that counsel was ineffective for
failing to investigate the information related to Jefferson
and Moore.
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Cite as 300 Neb. 79410. Motion in Limine and
Confidential Informant
Stricklin alleges his trial counsel was ineffective when he
failed to “contact, interview, or depose” a confidential inform­
ant. Details relating to the confidential informant are set forth
in our opinion on Stricklin’s direct appeal.45
The parties learned, summarized, that a confidential inform­
ant had told police that 1 week before the crimes occurred,
Morales told the informant he wanted to obtain firearms,
because he was “having problems with two black males,” one
of whom was nicknamed “‘Sip.’”46 The informant told police
he was not sure of the origin of Morales’ problems with the
men but believed it possibly arose from a “‘drug tax’” for sell-
ing drugs in the neighborhood.47
Both Stricklin and Newman filed motions in limine asking
the court to allow the police detective to testify about the con-
fidential informant’s statements. The district court overruled
the motions in limine, finding the evidence was inadmissible
hearsay. On Stricklin’s direct appeal, we affirmed, reasoning
the proffered testimony involved two layers of hearsay and did
not fall under any of the exceptions argued to and considered
by the trial court.48
In his postconviction motion, Stricklin alleges that after
learning the identity of the confidential informant, his counsel
failed to contact that informant or otherwise investigate what
the informant had told police. Stricklin also alleges that he
asked his counsel to show the confidential informant a photo-
graph of “Sip” to confirm his identity. Stricklin alleges counsel
never did so and, if he had, could have obtained enough cor-
roborating evidence of trustworthiness so that the testimony of
45
Stricklin, supra note 1.
46
Id. at 553, 861 N.W.2d at 382.
47
Id. at 554, 861 N.W.2d at 382.
48
Id.
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Cite as 300 Neb. 794the confidential informant would have been admissible under
the residual hearsay exception.49
Stricklin’s argument appears to misunderstand the nature
of the hearsay issue presented on direct appeal. In that
appeal, we focused on the admissibility of Morales’ state-
ments that he was seeking firearms because he was having
issues with “Sip.” We held that such a statement was not
against Morales’ penal interest50 and was not admissible under
the residual hearsay exception.51 With respect to the latter, we
reasoned Morales’ statements did not necessarily motivate
him to speak truthfully, the statements were not made under
oath, Morales was not subject to cross-examination, and there
was no evidence he subsequently reaffirmed the statements.52
We also reasoned that Morales’ statements established only
that Morales was having trouble with other persons—it did
not establish that Stricklin and Newman were innocent of
the crimes.
None of the allegations Stricklin makes in his motion would
affect this analysis. We find the files and records affirmatively
show counsel was not ineffective in this regard. Accordingly,
the district court did not err in denying postconviction relief
without an evidentiary hearing on this issue.
11. A dvising Stricklin
Not to Testify
[20] Stricklin alleges his counsel was ineffective for advis-
ing him not to testify. Defense counsel’s advice to waive the
right to testify can present a valid claim of ineffective assist­
ance of counsel in two instances: (1) if the defendant shows
that counsel interfered with his or her freedom to decide to
49
See, Neb. Rev. Stat. §§ 27-803(23) and 27-804(2)(e) (Reissue 2016); State
v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
50
See § 27-804(2)(c).
51
See § 27-804(2)(e).
52
Stricklin, supra note 1.
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Cite as 300 Neb. 794testify or (2) if counsel’s tactical advice to waive the right
was unreasonable.53
Stricklin waived his right to testify in open court, and he
makes no claim that his waiver was not free and voluntary or
that counsel interfered with his freedom to decide whether to
testify. Instead, he alleges his attorney’s advice not to testify
was legally unreasonable and thus deficient, because it was
incorrect to suggest he could have been asked about details of
his prior crimes.
Specifically, Stricklin alleges he chose not to testify based
on counsel’s advice that if he testified, the State could adduce
evidence that he went to prison for “selling drugs” and he
would be “‘opening up a can of worms.’” He alleges this
advisement was inaccurate and suggests his attorney should
have advised him that if he testified, the jury could learn he
was a convicted felon but that details of his prior crimes would
be inadmissible.54
Stricklin’s postconviction motion does not allege what his
testimony would have been at trial or how it would have
changed the outcome of the trial. Instead, he alleges he was
prejudiced because there was evidence the jury convicted him
due to his silence. In support of such a contention, he points to
one paragraph in the affidavit of the juror accused of miscon-
duct. In that paragraph, the juror avers he changed his vote to
guilty “primarily because [Stricklin and Newman] did not tes-
tify and attempt to clear their names.” The trial court sustained
the State’s objection to this paragraph and struck it pursuant
to Neb. Rev. Stat. § 27-606(2) (Reissue 2016). We express no
opinion on whether an inadmissible averment in a juror’s affi-
davit can ever support a showing of prejudice under Strickland,
because we conclude, under the first prong of Strickland, that
counsel’s advice was not deficient.
53
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
54
See Neb. Rev. Stat. § 27-608(2) (Reissue 2016).
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Cite as 300 Neb. 794The State points out that at the time of Stricklin’s trial, the
law was unclear as to whether Stricklin could have been cross-
examined under § 27-608(2) about the details of his prior
felony drug conviction, and thus, the advice counsel gave
him was not unreasonable. In fact, we addressed the inter-
play between § 27-608 and Neb. Rev. Stat. § 27-609 (Reissue
2016) for the first time in Stricklin’s direct appeal, noting it
appeared there had been confusion on that issue and we had
not previously addressed it.55
After analyzing federal court decisions involving the fed-
eral equivalent to §§ 27-608(2) and 27-609, we held that
when impeaching a witness pursuant to § 27-609, once the
conviction is established, the inquiry must end there and
it is improper to inquire into the details.56 And we held
that although § 27-608(2) permits questioning during cross-­
examination on specific instances of prior conduct, those
instances are limited to conduct not resulting in a prior
conviction.57
At the time Stricklin’s counsel advised him, this court had
not yet addressed the interplay between §§ 27-608(2) and
27-609. Thus, the tactical advice of Stricklin’s counsel was, at
the time, not unreasonable and the district court did not err in
denying this claim of ineffective assistance without an eviden-
tiary hearing.
12. Insufficiency of Evidence
and Lack of I dentification
Stricklin alleges his counsel was ineffective because, on
direct appeal, he failed to include assignments of error that (1)
the evidence at trial was insufficient to support his convictions
and (2) there was an unduly suggestive identification of him
as the perpetrator. Stricklin alleges generally that these claims
55
Stricklin, supra note 1.
56
Id.
57
Id.
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Cite as 300 Neb. 794would have been meritorious if raised and further alleges that
counsel refused to raise these claims even though Stricklin
“beg[ged]” him to. The record and files affirmatively refute
these claims.
(a) Identification
Although Stricklin’s counsel did not argue on direct appeal
that the pretrial identification procedure was unduly sug-
gestive, the procedure was similar for both Stricklin and
Newman. Newman did present such a claim on direct appeal,
and we concluded it lacked merit.58 Thus, Stricklin’s appel-
late counsel could not have been ineffective in failing to raise
this claim.59
(b) Insufficient Evidence
Stricklin alleges his counsel was deficient in failing to
assign, on direct appeal, that the evidence was insufficient
to prove guilt beyond a reasonable doubt, because Herrera-
Gutierrez’ testimony was not credible and was uncorroborated
by forensic or circumstantial evidence. Newman raised the
same claim in his direct appeal, and we found it lacked merit,
reasoning:
Newman’s arguments invite us to exceed the scope
of our appellate review. We decline to do so. We have
repeatedly stated that an appellate court does not resolve
conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence; such matters are for the
finder of fact. From the jury’s verdicts, it is apparent that
the jury found Herrera-Gutierrez to be credible. It is not
the province of this court to question that determination.
This assignment of error is without merit.60
58
Newman, supra note 26.
59
See, Fetherkile, supra note 31; State v. McLeod, 274 Neb. 566, 577, 741
N.W.2d 664, 674 (2007) (“[d]efense counsel is not ineffective for failing
to raise an argument that has no merit”).
60
Newman, supra note 26, 290 Neb. at 582, 861 N.W.2d at 133-34.
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Cite as 300 Neb. 794The same analysis applies here. Thus, if Stricklin’s counsel
had assigned error to the sufficiency of the evidence on direct
appeal, the assignment would have been meritless. The district
court did not err in denying postconviction relief without an
evidentiary hearing on this claim.
13. Failure to Obtain
R ecord for A ppeal
Stricklin alleges his counsel was ineffective on direct appeal
because he failed to include a complete transcript in the appel-
late record. Specifically, Stricklin argues his attorney failed to
include two items in the appellate transcript: (1) his motion to
sever and (2) a supplemental jury instruction.
Stricklin’s postconviction motion does not allege how these
omissions affected the outcome of his appeal. His allega-
tions are therefore insufficient to allege prejudice and do not
warrant an evidentiary hearing. The district court correctly
denied postconviction relief on these claims without an eviden-
tiary hearing.
14. Actual Innocence
Stricklin alleges he is entitled to postconviction relief
because he is actually innocent. He alleges all of his allegations
of ineffective assistance of counsel support this claim, and he
also alleges that the evidence adduced was so lacking in cred-
ibility that it cannot be used to establish his guilt.
[21] Newman made essentially the same allegations and
raised the same argument in his appeal from the district court’s
denial of an evidentiary hearing on his motion for postcon-
viction relief. As we noted in our resolution of Newman’s
appeal, the threshold showing that must be made to entitle a
prisoner to an evidentiary hearing on a postconviction claim
of actual innocence is extraordinarily high, because after a fair
trial and conviction, the presumption of innocence vanishes.61
61
Newman, supra note 36, citing State v. Dubray, 294 Neb. 937, 885 N.W.2d
540 (2016).
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Cite as 300 Neb. 794Stricklin’s allegations, like those made by Newman, largely
attack the weight of the evidence used against him and do
not meet the high threshold. The district court did not err in
denying postconviction relief on this claim without an eviden-
tiary hearing.
V. CONCLUSION
The district court properly denied an evidentiary hearing
on most of Stricklin’s allegations, as Stricklin either failed
to make sufficient factual allegations to support his claims
or the files and records affirmatively show he is not entitled
to relief.
However, Stricklin is entitled to an evidentiary hearing on
his claims that trial counsel (1) failed to file notice of and
present evidence of his alibi defense and (2) failed to inves-
tigate information regarding potential suspects Jefferson and
Moore.
We thus affirm in part, and in part reverse and remand for
an evidentiary hearing limited to these two claims.
A ffirmed in part, and in part reversed
and remanded with directions.
Heavican, C.J., not participating.