State v. Meyer , 30 Neb. Ct. App. 662 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/01/2022 08:06 AM CST
- 662 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662State of Nebraska, appellee, v.
Scottie M. Meyer, appellant.
___ N.W.2d ___
Filed March 1, 2022. No. A-21-018.
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: Right to Counsel: Appeal and Error. An appellate
court reviews the failure of the district court to provide court‑appointed
counsel in a postconviction proceeding for an abuse of discretion.
3. Postconviction: Constitutional Law: Proof. A defendant seeking relief
under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29‑3001 et
seq. (Reissue 2016), must show that his or her conviction was obtained
in violation of his or her constitutional rights.
4. Postconviction: Appeal and Error. Postconviction relief is a narrow
category of relief and is not intended to secure a routine review for any
defendant dissatisfied with his or her sentence.
5. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which were or
could have been litigated on direct appeal.
6. Effectiveness of Counsel: Proof. To prevail under 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), a defendant must first show that
his or her attorney’s performance was deficient, meaning it objectively
did not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
7. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty plea or a plea of no contest, the prejudice
requirement for an ineffective assistance of counsel claim is satisfied if
the defendant shows a reasonable probability that but for the errors of
- 663 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662counsel, the defendant would have insisted on going to trial rather than
pleading guilty.
8. Postconviction: Proof. Under the postconviction statutes, a court is not
obligated to hold an evidentiary hearing if the files and records of the
case affirmatively show that the prisoner is entitled to no relief.
9. Postconviction: Appeal and Error. On appeal from the denial of
postconviction relief without an evidentiary hearing, the question is not
whether the movant was entitled to relief by having made the requisite
showing. Instead, it must be determined whether the allegations were
sufficient to grant an evidentiary hearing.
10. Postconviction: Proof. 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
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. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
12. Postconviction: Judicial Notice: Appeal and Error. A reviewing court
considering a motion for postconviction relief may take judicial notice
of the record in the direct appeal.
13. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
14. Postconviction: Right to Counsel. Under the Nebraska Postconviction
Act, it is within the discretion of the trial court as to whether counsel
shall be appointed to represent the defendant.
15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. Where the assigned errors in the postconviction petition before
the district court are either procedurally barred or without merit, thus
establishing that the postconviction proceeding contained no justiciable
issue of law or fact, it is not an abuse of discretion to fail to appoint
appellate counsel for an indigent defendant.
16. Postconviction: Right to Counsel: Appeal and Error. Failure to
appoint counsel in postconviction proceedings is not error in the absence
of an abuse of discretion.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
- 664 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662Scottie M. Meyer, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
I. INTRODUCTION
Scottie M. Meyer appeals the order of the district court for
Sarpy County which denied his request for appointment of
postconviction counsel and his verified motion for postconvic-
tion relief without an evidentiary hearing. We affirm.
II. BACKGROUND
On August 29, 2017, the State filed an information, charg-
ing Meyer with 10 counts, including multiple counts of first
degree sexual assault, incest, child abuse, and tampering with
a witness, informant, or juror. After several amendments, the
operative pleading was a third amended information, alleging
one count of first degree sexual assault of a child under 12
years of age, a Class IB felony; one count of incest, a Class IIA
felony; and one count of violation of a domestic violence pro-
tection order, a Class I misdemeanor. Pursuant to a plea agree-
ment, Meyer pled guilty to the charges in the third amended
information.
The factual basis is fully recounted in his direct appeal to
this court, State v. Meyer, No. A‑18‑353, 2019 WL 548644,
(Neb. App. Feb. 12, 2019) (selected for posting to court web-
site). The factual basis included evidence that two of Meyer’s
children had disclosed that he sexually abused them. Id. Meyer
had searched various topics on his cell phone related to fathers
having sex with their young daughters. Id. Additionally, Meyer
sent letters to the children’s mother through an intermediary
suggesting that the children should change their stories; the
mother felt threatened by the letters, and the letters were in
violation of a protection order. Id. The district court accepted
Meyer’s guilty pleas and found him guilty. Id.- 665 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662On March 19, 2018, the district court sentenced Meyer to
incarceration for a term of not less than 40 nor more than 50
years on the sexual assault conviction, to a term of not less
than 40 nor more than 50 years on the incest conviction, and
a term of 1 year for the violation of the protection order, all to
run consecutively. Meyer timely appealed, and different coun-
sel represented him during the appellate proceedings.
We affirmed his convictions and sentences on direct appeal
but found the record was insufficient to address one of his
ineffective assistance of counsel claims. See id. That claim was
that his trial counsel failed to appropriately and sufficiently
communicate with him and he was under pressure to plead;
thus, his guilty pleas were not made knowingly, voluntarily,
and intelligently. Id. A mandate was issued on May 3, 2019.
Meyer timely filed a verified motion to set aside his con-
victions and sentences. He alleged ineffective assistance of
counsel by both his trial counsel and appellate counsel. He
requested appointment of counsel, due to the court’s sealing
certain documents in another proceeding which were only
accessible to counsel. On the same day, Meyer filed a notice of
intent to amend the postconviction motion, requesting that the
court rule on his motion for appointment of counsel and there-
after grant him leave to amend his motion. The district court
interpreted the notice of intent to amend as a motion to amend,
and it granted Meyer 30 days to amend his motion. Following
a hearing, Meyer’s motion for appointment of counsel was
overruled, and he was granted an additional 14 days to amend
his motion. Meyer moved for an additional 90 days to amend
his postconviction motion, and the district court granted Meyer
additional time to amend. Meyer, however, gave notice to the
district court that he was not going to amend his postconviction
motion in light of the denial of counsel.
Based on the initial postconviction motion, the district court
found that Meyer was not entitled to postconviction relief
and again overruled his motion to appoint counsel. The dis-
trict court found that Meyer had alleged four instances of
- 666 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662ineffective assistance of counsel: (1) trial counsel was inef-
fective for advising Meyer to waive his statutory right to a
preliminary hearing; (2) trial counsel was ineffective for fail-
ing to challenge the State’s evidence on a motion to quash or a
plea in abatement; (3) trial counsel was ineffective for failing
to investigate possible defenses, failing to subject the files to
sufficient review, and failing to recognize the intrinsic value
of the information before her; and (4) appellate counsel was
ineffective for failing to raise on direct appeal the ineffective
assistance of trial counsel where trial counsel failed to subject
the State’s case to preliminary examination and move for abso-
lute discharge.
As to Meyer’s claims against his trial counsel, the district
court determined those claims were procedurally barred because
they could have been raised on direct appeal. Reviewing
the layered ineffective assistance of counsel claims, however,
the district court found that trial counsel was not ineffective
for failing to file a plea in abatement or a motion to quash,
because Meyer waived his right to a preliminary hearing;
therefore, those pleadings were unavailable. It also found that
because Meyer entered a not guilty plea, he waived any defect
in the information. The district court found that trial counsel
was not ineffective in advising Meyer to waive his prelimi-
nary hearing, because the sufficiency of the evidence to bind a
case over for trial is cured by a subsequent finding at trial of
guilty beyond a reasonable doubt which is supported by suf-
ficient evidence. It also found that the advice of trial counsel
for Meyer to waive his preliminary hearing was moot even if
coerced or ill advised. Therefore, because trial counsel was not
ineffective as to these issues, appellate counsel could not be
ineffective, either.
The district court found that Meyer made conclusory alle-
gations against trial counsel as to counsel’s failure to inves-
tigate, review files, and recognize the value of the informa-
tion before her. The district court found that these claims
were also procedurally barred because they were not raised
- 667 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662on direct appeal, but even if they had been, they would fail
because Meyer failed to articulate how he was prejudiced by
these allegations. There was no layered claim against appel-
late counsel on these issues. As to the claims of ineffective
assistance of trial counsel raised on direct appeal, Meyer failed
to reassert them in his postconviction motion. Therefore, the
court denied the motion without an evidentiary hearing. Meyer
timely appealed.
III. ASSIGNMENTS OF ERROR
Meyer asserts, restated and reordered, that (1) the district
court erred in overruling Meyer’s postconviction motion with-
out first holding an evidentiary hearing and (2) the district
court abused its discretion in denying Meyer’s motion to
appoint counsel.
IV. 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. State v.
Betancourt‑Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).
[2] We review the failure of the district court to provide
court‑appointed counsel in a postconviction proceeding for an
abuse of discretion. State v. Taylor, 300 Neb. 629, 915 N.W.2d
568 (2018).
V. ANALYSIS
[3‑5] A defendant seeking relief under the Nebraska
Postconviction Act, Neb. Rev. Stat. § 29‑3001 et seq.
(Reissue 2016), must show that his or her conviction was
obtained in violation of his or her constitutional rights. State
v. Betancourt‑Garcia, supra. Postconviction relief is a nar-
row category of relief and is not intended to secure a routine
review for any defendant dissatisfied with his or her sentence.
- 668 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662Id. A motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which
were or could have been litigated on direct appeal. Id.
1. Overruling Without
Evidentiary Hearing
Meyer assigns that the district court erred in overruling his
postconviction motion without first holding an evidentiary
hearing. He argues that insufficient assistance of counsel at
the trial and appellate levels deprived him of effective assist­
ance of counsel and that he was prejudiced as a result of
that ineffective assistance. We disagree and affirm the district
court’s ruling.
(a) Law Applicable to Postconviction Proceedings
[6] Before addressing Meyer’s specific allegations, we
set forth the general principles applicable to postconviction
motions. To prevail under 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), a defendant must first show
that his or her attorney’s performance was deficient, mean-
ing it objectively did not equal that of a lawyer with ordinary
training and skill in criminal law. State v. Betancourt‑Garcia,
supra. Second, the defendant must show that he or she suf-
fered prejudice as a result of the attorney’s deficient perform­
ance. Id.[7] When a conviction is based upon a guilty plea or a plea
of no contest, the prejudice requirement for an ineffective
assistance of counsel claim is satisfied if the defendant shows
a reasonable probability that but for the errors of counsel, the
defendant would have insisted on going to trial rather than
pleading guilty. State v. McLeod, 274 Neb. 566, 741 N.W.2d
664 (2007).
[8] Under the postconviction statutes, a court is not obli-
gated to hold an evidentiary hearing if the files and records of
the case affirmatively show that the prisoner is entitled to no
relief. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
- 669 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662A party cannot raise an issue in a postconviction motion if
he or she could have raised that same issue on direct appeal.
State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008). So a
motion for postconviction relief asserting ineffective assistance
of trial counsel is procedurally barred when (1) the defendant
was represented by a different attorney on direct appeal than
at trial, (2) an ineffective assistance of trial counsel claim was
not brought on direct appeal, and (3) the alleged deficiencies
in trial counsel’s performance were known to the defendant or
apparent from the record. Id.[9,10] On appeal from the denial of postconviction relief
without an evidentiary hearing, the question is not whether
the movant was entitled to relief by having made the requisite
showing. Instead, it must be determined whether the allega-
tions were sufficient to grant an evidentiary hearing. State v.
Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). In a post-
conviction 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
constitutional rights; (2) when the motion alleges only conclu-
sions of fact or law; or (3) when the records and files affirma-
tively show that the defendant is entitled to no relief. State v.
Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
(b) Preliminary Hearing and Motion to Quash
In his motion for postconviction relief, Meyer asserted that
his trial counsel was ineffective when she failed to subject the
State’s case to preliminary examination and move for absolute
discharge and that appellate counsel was ineffective when he
failed to raise on direct appeal the ineffective assistance of trial
counsel. He asserted that trial counsel had certain exculpatory
records from a previous proceeding but that she advised him
to waive his preliminary hearing nonetheless. And because
appellate counsel was aware of trial counsel’s failure, he was
ineffective for failing to raise it on direct appeal. In the alterna-
tive, Meyer alleges that trial counsel was deficient by failing to
- 670 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662challenge the State’s evidence on a motion to quash or a plea in
abatement and that appellate counsel was ineffective for failing
to raise this issue on direct appeal.
[11] Meyer did not raise trial counsel’s alleged failure on
these issues on direct appeal, and he was represented by dif-
ferent counsel on appeal; therefore, he is procedurally barred
from raising it now. See State v. Jackson, supra. However,
Meyer also asserted appellate counsel was ineffective for fail-
ing to raise trial counsel’s alleged shortcomings. 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 test in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v.
Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
(i) Waiver of Preliminary Hearing
The record contradicts Meyer’s factual allegations regard-
ing the waiver of his preliminary hearing and demonstrates
that Meyer was not entitled to an evidentiary hearing on these
grounds. Meyer asserts in his postconviction motion:
Upon filing of the instant case, [trial counsel] was
appointed to represent Meyer. And, upon appointment
to Meyer’s case, [trial counsel] was provided all of the
documentation and records described above, to wit, the
interview with A.M. at Project Harmony, the counsel-
ing records which show that A.M. stated that she had
never been abused by Meyer, the deposition in which
A.M. swore upon oath that she had never been abused by
Meyer, and the interview with S.M. at Project Harmony in
which S.M. emphatically denied being abused by Meyer.
Despite having obtained and reviewed all of the
exculpatory reports and documentation, which demon-
strated that the State would be unable to prove corpus
delicti sufficient to bind the case over upon preliminary
- 671 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662examination, [trial counsel] advised and allowed Meyer
to waive his statutory right to a preliminary examination
of the evidence.
Meyer further alleges in his postconviction motion: “Despite
possessing the above exculpatory evidence, [trial counsel]
did not utilize the same to challenge the State’s case at the
county court level and, in fact, advised and allowed Meyer
to waive his statutory right to a preliminary examination of
the evidence.”
[12] The record on direct appeal directly contradicts Meyer’s
allegations of the timeline; consequently, the district court was
correct in dismissing this claim without an evidentiary hear-
ing. A reviewing court considering a motion for postconviction
relief may take judicial notice of the record in the direct appeal.
State v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002); State
v. Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999).
The record affirmatively refutes that the trial counsel whom
Meyer claims was deficient was appointed upon the filing of
the case; rather, the case was filed in county court on June 14,
2017. The trial counsel that Meyer asserts was deficient was
not appointed until August 1. More importantly, the record
refutes that at the time Meyer waived the preliminary hear-
ing, trial counsel had the documentation alleged. The tran-
script from the direct appeal shows that trial counsel filed on
September 1 a motion for production of documents, which was
granted on September 22 with an order that the documents be
produced within 14 days. The waiver of the preliminary hear-
ing was filed on August 22. Therefore, the record refutes that
trial counsel was ineffective for advising Meyer to waive the
preliminary hearing with knowledge and possession of the
documents claimed, because she did not have those documents
at the time the preliminary hearing was waived. An evidentiary
hearing is not required when the record affirmatively estab-
lishes Meyer is not entitled to relief.
Meyer claims that appellate counsel was ineffective for fail-
ing to raise trial counsel’s ineffectiveness in advising that a
- 672 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662preliminary hearing be waived. However, because the record
refutes that trial counsel was ineffective, Meyer’s appellate
counsel was not ineffective in failing to raise this issue, and
Meyer suffered no prejudice as a result of the actions of appel-
late counsel. See State v. Parnell, 305 Neb. 932, 943 N.W.2d
678 (2020).
(ii) Plea in Abatement or Motion to Quash
In the alternative, Meyer argues that trial counsel was inef-
fective for failing to file a plea in abatement or motion to
quash, because the records she received contained recantations
and denials of the alleged abuse.
The district court determined that Meyer could file neither
a plea in abatement nor a motion to quash “because [Meyer]
waived his right to a preliminary hearing.” However, in State
v. Nesbitt, 264 Neb. 612, 619‑20, 650 N.W.2d 766, 777 (2002),
the Nebraska Supreme Court stated, “If, for whatever reason,
[defendant] wished to challenge the validity of his waiver of
the preliminary hearing, he could have done so by filing a
plea in abatement or a motion to quash.” See, also, State v.
Hill, 255 Neb. 173, 178, 583 N.W.2d 20, 24 (1998) (“[a] claim
that a defendant was not accorded a preliminary hearing or
waived it is determinable by a plea in abatement or a motion
to quash”); State v. Moss, 182 Neb. 502, 155 N.W.2d 435(1968); State v. Brevet, 180 Neb. 616, 144 N.W.2d 210 (1966).
Therefore, the district court was incorrect in determining that
Meyer had waived his ability to file a plea in abatement or
motion to quash as a result of his waiving his right to a pre-
liminary hearing.
[13] However, Meyer’s counsel was not ineffective in fail-
ing to file a plea in abatement because such a motion would
have been meritless. The facts Meyer alleges would only ­create
conflicting evidence for the district court to consider and,
therefore, are not a proper basis upon which to grant a plea
in abatement or motion to quash. See State v. Bailey, 57 Neb.
204, 77 N.W. 654 (1898) (where plea in abatement contains no
- 673 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662allegation of fact which, if true, would make record defective,
or entitle accused to be discharged without trial, but, rather,
presents matters appropriate to be adjudicated upon trial, plea
in abatement is improper). As a matter of law, counsel cannot
be ineffective for failing to raise a meritless argument. State
v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018). And, as
stated above, where trial counsel is not ineffective, appellate
counsel is not ineffective for failing to raise trial counsel’s
ineffectiveness.
Meyer relies upon State v. Payne, 289 Neb. 467, 855 N.W.2d
783 (2014) (Payne I ), in support of his argument that he was
entitled to an evidentiary hearing. In Payne I, the trial court
denied the defendant’s postconviction motion without an evi-
dentiary hearing, finding that failure to file a direct appeal
barred his claims of ineffective assistance of counsel. On
appeal, under the facts presented, the court determined that the
claims were not procedurally barred and remanded the cause to
the district court for an evidentiary hearing on whether defend­
ant’s trial counsel was ineffective in advising him to plead no
contest. Id.In Payne I, the defendant asserted that his trial counsel was
ineffective in five ways, including “failing to request dismissal
before the county court for the State’s failure to provide suf-
ficient evidence as to venue and corpus delicti and in failing to
file a plea in abatement or motion to quash on these grounds.”
289 Neb. at 469, 855 N.W.2d at 785. On appeal following
remand, the Supreme Court again identified the five ways in
which the defendant claimed that the ineffective assistance of
trial counsel resulted in him accepting the plea offer instead of
going to trial. State v. Payne, 298 Neb. 373, 904 N.W.2d 275(2017) (Payne II ). Due to the district court’s error in interpret-
ing the remand, the Supreme Court again remanded the cause
for an evidentiary hearing. Id.The Supreme Court did not make a finding in either
Payne I or Payne II as to the specific allegations of ineffec-
tive assist­ance of counsel, and we do not read either opinion
- 674 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662as requiring an evidentiary hearing on every claim arising out
of a failure to file a plea in abatement or a motion to quash.
Rather, as set forth above, the record before us supports a
determination that such a filing would not have been meritori-
ous. Therefore, we decline to find support in either Payne I
or Payne II for Meyer’s contention that he was entitled to an
evidentiary hearing.
(c) Other Allegations of Trial
Counsel’s Ineffectiveness
In his motion for postconviction relief, Meyer claimed trial
counsel was ineffective for failing to investigate his “various
possible defenses,” “subject the files to sufficient review,” and
“recognize the intrinsic value of the information before her.”
However, none of these allegations were raised on direct appeal
and are therefore procedurally barred. See State v. Jackson, 275
Neb. 434, 747 N.W.2d 418 (2008). No evidentiary hearing is
required on claims that are barred.
Meyer argues that the district court erred in determining
that he did not make a layered claim as to these issues. But
even if a layered claim is read into Meyer’s postconviction
motion, we agree with the district court that Meyer was not
entitled to an evidentiary hearing on these claims. Meyer does
not identify what other “various possible defenses” he had.
And his assertion that counsel failed to “subject the files to
sufficient review” and failed to “recognize the intrinsic value
of the information before her” are subsumed in his arguments
that counsel should not have waived the preliminary hearing or
filed a plea in abatement or motion to quash. To the extent the
arguments encompass more, Meyer’s motion does not set forth
with any specificity what that might be. Meyer was, therefore,
not entitled to an evidentiary hearing on these allegations.
2. Appointment of Counsel
[14‑16] Under the Nebraska Postconviction Act, it is within
the discretion of the trial court as to whether counsel shall
be appointed to represent the defendant. State v. Taylor, 300
- 675 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. MEYER
Cite as 30 Neb. App. 662Neb. 629, 915 N.W.2d 568 (2018). Where the assigned errors
in the postconviction petition before the district court are
either procedurally barred or without merit, thus establishing
that the postconviction proceeding contained no justiciable
issue of law or fact, it is not an abuse of discretion to fail to
appoint appellate counsel for an indigent defendant. Id. Failure
to appoint counsel in postconviction proceedings is not error
in the absence of an abuse of discretion. State v. McGhee, 280
Neb. 558, 787 N.W.2d 700 (2010). As we have found that
Meyer’s ineffective assistance of counsel claims are without
merit, the district court did not abuse its discretion in denying
Meyer’s request for appointment of counsel.
VI. CONCLUSION
For the reasons discussed above, we affirm the district
court’s denial of Meyer’s postconviction motion without an
evidentiary hearing and request for appointment of counsel.
Affirmed.