State v. Simpson ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SIMPSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ARTHUR C. SIMPSON, APPELLANT.
Filed February 28, 2023. No. A-22-410.
Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Affirmed.
Arthur C. Simpson, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
MOORE, Judge.
I. INTRODUCTION
Arthur C. Simpson appeals from the order of the district court for Douglas County, which
denied his motion for postconviction relief without an evidentiary hearing and also denied his
motion for appointment of postconviction counsel. For the reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
1. CONVICTION AND DIRECT APPEAL
Following a jury trial in 2019, Simpson was convicted of assault by strangulation, negligent
child abuse, unlawful discharge of a firearm, and use of a deadly weapon (firearm) to commit a
felony. The district court imposed sentences totaling 35 to 55 years’ imprisonment.
On direct appeal, Simpson claimed that the court erred in (1) denying his motion to
suppress the victim’s identification of him, (2) denying his motions in limine regarding references
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to him being on parole and regarding an expert opinion, (3) allowing extensive testimony regarding
the victim’s history, (4) not ensuring he was properly arraigned or advised on the amended
information (amendment made to dates charged just prior to State’s rest), and (5) imposing
excessive sentences. Simpson also claimed that he received ineffective assistance of trial counsel
when his counsel (1) failed to object to the court taking judicial notice of a nonadjudicated fact;
(2) failed to object to the victim’s extensive, irrelevant, and prejudicial testimony about her
background; (3) failed to object regarding Simpson’s prior bad acts after having his motion in
limine sustained; (4) failed to address the issues regarding Simpson’s illegal sentence; and (5)
because Simpson did not believe that his attorney was effective. With respect to the first five
assigned errors, this court found no error or abuse of discretion by the trial court. We also rejected
Simpson’s first four claims of ineffective assistance of trial counsel on the merits and found that
his fifth claim lacked the specificity required by State v. Mrza, 302 Neb. 931, 926 N.W.2d 79(2019). We note that Simpson was represented by different counsel at trial and on direct appeal.
Further details with respect to the trial evidence and our analysis of the issues on direct appeal are
set forth in our memorandum opinion. See State v. Simpson, No. A-19-923, 2020 WL 6437702(Neb. App. Nov. 3, 2020).
2. POSTCONVICTION PROCEEDINGS
On October 18, 2021, Simpson filed a pro se motion for postconviction relief. He
subsequently filed an amended motion for postconviction relief, setting forth various layered
claims alleging that his trial counsel provided ineffective assistance in certain respects and that his
appellate counsel was ineffective by failing to raise such claims of ineffective assistance on direct
appeal. He also alleged that his appellate counsel was ineffective for failing to advise him that he
had to file a petition for further review with the Nebraska Supreme Court.
Simpson also filed motions to proceed in forma pauperis (IFP) and seeking appointment of
postconviction counsel. After the district court granted his motion to proceed IFP but denied his
motion for appointment of counsel, Simpson filed another motion seeking appointment of
postconviction counsel. The court denied Simpson’s second motion for appointment of counsel
“until there has been a determination as to the necessity of an evidentiary hearing.”
On May 18, 2022, the district court entered an order, denying Simpson’s motion for
postconviction relief without an evidentiary hearing. The court addressed Simpson’s claims, and
it determined that they were either refuted by the record or did not otherwise warrant an evidentiary
hearing. The court again denied Simpson’s motion for appointment of postconviction counsel.
III. ASSIGNMENTS OF ERROR
Consolidated and restated, Simpson asserts that the district court erred in (1) denying his
motion for postconviction relief without holding an evidentiary hearing and (2) failing to appoint
postconviction counsel to represent him.
IV. STANDARD OF REVIEW
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
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or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
An appellate court reviews the failure of the district court to provide court-appointed
counsel in a postconviction proceeding for an abuse of discretion. State v. Oliveira-Coutinho, 304
Neb. 147, 933 N.W.2d 825 (2019).
V. ANALYSIS
1. DENIAL OF POSTCONVICTION RELIEF
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. State v. Lessley, supra. 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. Id.The district court must grant an evidentiary hearing to resolve the claims in a
postconviction motion when the motion contains factual allegations which, if proved, constitute
an infringement of the defendant’s rights under the state or federal Constitution. State v. Jennings,
312 Neb. 1020, 982 N.W.2d 216 (2022). An evidentiary hearing is not required on a motion for
postconviction relief when (1) the motion does not contain factual allegations which, if proved,
constitute an infringement of the movant’s constitutional rights rendering the judgment void or
voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3)
the records and files affirmatively show that the defendant is entitled to no relief. Id.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023). 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. Id. To show prejudice under
the prejudice component of Strickland v. Washington, supra, 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. State v. Miranda, supra. A reasonable probability does not
require that it be more likely than not that the deficient performance altered the outcome of the
case; rather, the defendant must show a probability sufficient to undermine confidence in the
outcome. State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). The likelihood of a different
result must be substantial, not just conceivable. Id. The two prongs of the test under Strickland v.
Washington, supra, may be addressed in either order, and the entire ineffectiveness analysis should
be viewed with a strong presumption that counsel’s actions were reasonable. State v. Lessley,
supra.Simpson assigns that the court erred by denying his motion for postconviction relief
without holding an evidentiary hearing, arguing that his appellate counsel was ineffective,
including in failing to assign as error that his trial counsel was ineffective in various regards. This
is Simpson’s first opportunity to assert ineffective assistance of appellate counsel. A claim of
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ineffective assistance of appellate counsel which could not have been raised on direct appeal may
be raised on postconviction review. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017). That is, courts begin by
assessing the strength of the claim appellate counsel failed to raise. State v. Sellers, 290 Neb. 18,
858 N.W.2d 577 (2015). Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue would have changed
the result of the appeal. State v. Johnson, supra. When a case presents layered ineffectiveness
claims, an appellate court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland v. Washington, supra.State v. Sellers, supra. If trial counsel was not ineffective, then the defendant suffered no prejudice
when appellate counsel failed to bring an ineffective assistance of trial counsel claim. Id.
We now turn to the specific allegations of ineffective assistance of appellate counsel
Simpson raises in the present appeal.
(a) Violation of Right to Confrontation
Simpson alleged that his appellate counsel should have raised the issue of his trial counsel’s
ineffectiveness for violating his right to confrontation by allowing testimonial statements of
several non-testifying witnesses. He appears to refer to statements made by certain individuals in
police reports attached to his postconviction motion. See State v. Roebuck, 31 Neb. App. 67, 976
N.W.2d 218 (2022) (Confrontation Clause only applies to testimonial statements; term
“testimonial” applies to prior testimony at preliminary hearing, before grand jury, or at a former
trial, and to police interrogations). The police reports were not admitted into evidence at trial, and
he does not specifically identify what trial testimony constituted testimonial statements to which
his trial counsel should have objected. His allegations of deficient performance were not sufficient
to warrant an evidentiary hearing on this claim. Further, his allegations do not show a reasonable
probability that he would have been acquitted but for his trial counsel’s failure to object on
confrontation grounds to this unidentified testimony. The district court properly denied an
evidentiary hearing on this claim.
(b) Failure to Challenge Testimony
Simpson alleged that his appellate counsel was ineffective for failing to allege that his trial
counsel was ineffective for failing to challenge the “false” or “staged” testimony of various named
witnesses and the “inadmissible” ShotSpotter evidence. His allegations in this regard are
insufficient to establish either deficient performance or prejudice. Simpson made general,
conclusory allegations that the testimony of certain witnesses was false or that certain evidence
was admissible, but he did not provide supporting facts to show what portions of testimony were
false or inadmissible or what meritorious challenges his trial counsel could have made to that
evidence. See State v. Jennings, 312 Neb. 1020, 982 N.W.2d 216 (2022) (evidentiary hearing is
not required when motion alleges only conclusions of fact or law without supporting facts).
Further, Simpson did not make specific allegations with respect to prejudice showing a reasonable
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probability of his acquittal but for his trial counsel’s failure to challenge certain testimony and
evidence. An evidentiary hearing was not warranted on this claim.
(c) Failure to Investigate or Subpoena Certain Evidence
Simpson alleged that his appellate counsel was ineffective for failing to allege that his trial
counsel was ineffective for failing to investigate and subpoena certain evidence, such as shell
casings, DNA, fingerprints, and phone records. In his brief on appeal, Simpson does not present
any arguments with respect to phone records, and we do not address that portion of his claim
further. See State v. Jennings, supra (to be considered by appellate court, alleged errors must be
both specifically assigned and specifically argued in brief of party asserting errors). With respect
to his trial counsel’s failure to subpoena or investigate shell casings, DNA, and fingerprint
evidence, Simpson only alleged that his counsel’s failure deprived him of “the ability to establish
an affirmative defense that would of [sic] resulted in his acquit[t]al” and prevented him from
“proving his actual innocence.” Presumably, Simpson’s argument is that if his trial attorney had
had the shell casings at issue tested for DNA and fingerprints, the absence of any physical evidence
tying him to the shell casings would have resulted in his acquittal.
Simpson has not shown a reasonable probability that his trial counsel’s failure to conduct
such investigation or his appellate counsel’s failure to raise the issue on appeal would have
produced a different result. As the State observes, a lack of Simpson’s DNA or fingerprints on the
shell casing would not establish that he was not the shooter (he could have worn gloves, simply
not transferred any identifiable fingerprints or DNA, or someone else could have loaded the
weapon). And, given the strength of the State’s evidence at trial (the victim’s identification of
Simpson, her numerous documented injuries, evidence of damage to the residence, shell casings
located outside, baby found with a neighbor, and GPS evidence of Simpson being in the vicinity
during the relevant time), he has not shown that the lack of his DNA or fingerprints on the shell
casings would have changed the result. This claim was properly denied without an evidentiary
hearing.
(d) Failure to Call Alibi Witness
Simpson alleged that his appellate counsel was ineffective for failing to allege that his trial
counsel was ineffective for failing to call an alibi witness, Devonne Rogers. According to
Simpson’s postconviction motion, Rogers could have testified about the victim’s “jealous rages”
and that Simpson was with her “during the time testified to in reports and trial testimony of shots
fired.”
To warrant an evidentiary hearing based on counsel’s failure to make an alibi defense, the
defendant must allege something more than the broad factual conclusion that there was some
unspecified evidence that would have shown the defendant was not in the vicinity at the time of
the crime. State v. Munoz, 309 Neb. 285, 959 N.W.2d 806, cert. denied ___ U.S. ___, 142 S. Ct.
370, 211 L. Ed. 2d 197 (2021). In a motion for postconviction relief, a defendant is required to
specifically allege what the testimony of potential witnesses would have been if they had been
called at trial in order to avoid dismissal without an evidentiary hearing. State v. Lessley, 312 Neb.
316, 978 N.W.2d 620 (2022). Absent specific allegations, a motion for postconviction relief
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effectively becomes a discovery motion to determine whether evidence favorable to a defendant’s
position actually exists. Id.The district court observed that the information set forth in Simpson’s motion was limited
and provided very little detail, and it concluded that an evidentiary hearing was unnecessary,
especially considering the strength of the evidence at trial. We agree. Simpson set forth only
general, conclusory allegations with respect to this claim and did not provide the detail necessary
to warrant an evidentiary hearing. Simpson only alleged that Rogers would testify she was with
him during the time of the incident, but he does not allege any further details such as her testimony
regarding their location or even that they were not in the vicinity of the occurrence. Further, he did
not allege that there was a reasonable probability that he would have been acquitted absent his trial
counsel’s alleged deficiency. The district court did not err in denying Simpson’s motion without
an evidentiary hearing on this claim.
2. FAILURE TO APPOINT POSTCONVICTION COUNSEL
Simpson asserts that the district court erred in failing to appoint postconviction counsel to
represent him. Under the Nebraska Postconviction Act, it is within the discretion of the trial court
to decide whether counsel shall be appointed to represent the defendant. State v.
Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019). Where the alleged 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 postconviction counsel for an indigent defendant.
Id. As set forth above, Simpson’s claims of ineffective assistance of counsel claims are without
merit. Accordingly, the court did not abuse its discretion in denying his request for appointment
of counsel.
VI. CONCLUSION
We conclude that the district court did not err when it denied Simpson’s postconviction
claims without an evidentiary hearing or when it denied his request to appoint postconviction
counsel. Accordingly, we affirm the district court’s order.
AFFIRMED.
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