State v. Parnell , 305 Neb. 932 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/19/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. PARNELL
Cite as 305 Neb. 932
State of Nebraska, appellee, v.
Tracy N. Parnell, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-19-425.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law which is reviewed independently of the lower court’s ruling.
3. Postconviction. Postconviction relief is a very narrow category of
relief.
4. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were or could have
been litigated on direct appeal.
5. 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.
6. ____: ____. In the absence of alleged facts that would render the judg-
ment void or voidable, the proper course is to overrule a motion for
postconviction relief without an evidentiary hearing.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
of ineffective assistance of appellate counsel which could not have been
raised on direct appeal may be raised on postconviction review.
8. ____: ____: ____. When a person seeking postconviction relief has
different counsel on appeal than at trial, the motion for postconviction
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relief is procedurally barred if the person seeking relief (1) knew of the
issues assigned in the postconviction motion at the time of the direct
appeal, (2) failed to assign those issues on direct appeal, and (3) did not
assign as error the failure of appellate counsel on direct appeal to raise
the issues assigned in the postconviction motion.
9. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. 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 per­
formance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. To show prejudice under the preju-
dice component of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s deficient per-
formance, the result of the proceeding would have been different. A rea-
sonable 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.
10. 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 two-part test for inef-
fectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective,
then the defendant was not prejudiced by appellate counsel’s failure to
raise the issue.
11. ____: ____. Much like claims of ineffective assistance of trial counsel,
a defendant claiming ineffective assistance of appellate counsel must
show that but for appellate counsel’s failure to raise the claim, there is a
reasonable probability that the outcome would have been different.
Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
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STATE v. PARNELL
Cite as 305 Neb. 932
Funke, J.
Tracy N. Parnell appeals from the denial of postconvic-
tion relief without an evidentiary hearing. Parnell asserts that
the trial court erred in determining that his claims of ineffec-
tive assistance of appellate counsel are procedurally barred.
Although we agree that one of Parnell’s claims is not procedur-
ally barred, we nonetheless conclude that Parnell is not entitled
to relief. We therefore affirm.
BACKGROUND
Convictions and Sentences
In State v. Parnell, 1 this court affirmed Parnell’s jury trial
convictions of first degree murder, attempted first degree mur-
der, two counts of use of a deadly weapon to commit a felony,
and possession of a weapon by a prohibited person. The district
court for Douglas County sentenced Parnell to life imprison-
ment on the murder conviction, 40 to 50 years’ imprisonment
for attempted first degree murder, 40 to 50 years’ imprisonment
for each count of use of a deadly weapon to commit a felony,
and 3 to 20 years’ imprisonment for possession of a weapon by
a prohibited person, to be served consecutively, with credit for
time served. The facts which resulted in Parnell’s convictions
are set forth in our opinion on direct appeal.
On October 30, 2012, at around 8:14 p.m., Eriana Carr and
Nakia Johnson were shot in Omaha, Nebraska. Carr was shot
twice and died from her injuries. Johnson was shot 11 times
and survived. Johnson told investigators that the shots came
from “a blue Nissan Altima with a messed up front bumper.”
Johnson stated that Parnell and three others threatened her at
a party at her friend’s apartment 2 days before the shooting,
because “they felt like [she] had brought someone into the
house from another side,” or “[a]nother hood.”
Detectives discovered that Parnell had been stopped while
driving a blue Nissan Altima several months earlier. The
1
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
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registered owner of the car was Jasmine Nero, the mother of
Parnell’s child. When interviewed by investigators, Parnell
denied any knowledge of an Altima and stated that he never
drove any of Nero’s vehicles.
Parnell spoke to Nero about the Altima in a call from jail.
Nero testified that she understood from that call that Parnell
wanted her “to get rid of” the car. Nero moved the car to
a garage, where investigators later found it. The car’s front
bumper was damaged, and it contained a box with Parnell’s
thumbprint on it.
Pretrial Discovery
Prior to trial, Parnell filed a motion to exclude the State’s
expert witness William Shute, a special agent with the Federal
Bureau of Investigation (FBI) and a member of the FBI’s
“Cellular Analysis Survey Team” who performs “historical
cell site analysis” using call detail records provided by cellu-
lar carriers. Shute explained that call records show the tower
and the sector that a particular cell phone used. Cell towers
usually have three sectors. The towers and sectors can be
plotted on a map in order to locate a cell phone at a particu-
lar time.
Shute testified regarding the locations of Parnell’s cell phone
around the time of the shooting. Parnell’s call detail records
showed that his cell phone connected to tower: (1) 201 at 7:52
p.m., (2) 729 at 8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20
p.m., and (5) 201 at 8:20 p.m. Shute plotted the towers and
their coverage areas on a map. He testified that the coverage
areas for towers 201 and 729 overlap and that the way Parnell’s
cell phone switched between towers 201 and 729 showed it
was definitely located within the overlapping coverage area
at the time of the shooting. The court overruled the motion to
exclude, finding that Shute was qualified to testify as an expert
and that his methods were reliable.
Parnell’s counsel later moved to exclude Shute’s testimony or
continue trial based on the discovery of undisclosed evidence.
Counsel filed an affidavit stating that he attended a seminar
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STATE v. PARNELL
Cite as 305 Neb. 932
with a presentation by cellular analyst Michael O’Kelly. The
State had disclosed in discovery that O’Kelly had performed
cell phone mapping services on the case for the Omaha Police
Department (OPD). In response to a question from Parnell’s
counsel, O’Kelly stated that he performed more serv­ices than
disclosed in the report. In supplemental discovery, O’Kelly
provided Parnell’s counsel with an affidavit detailing his inter-
actions with the State, and the State disclosed a series of
emails between O’Kelly, a detective of the OPD, and a deputy
county attorney.
In the emails, the detective asked O’Kelly if he had a formal
report to present to the county attorney. O’Kelly responded
that he could do so in about 10 days. He stated, “Remember,
if it’s in writing it’s Discoverable[.] I would recommend the
county attorney and I visiting and then letting them decide.”
O’Kelly then later wrote to the deputy county attorney, “It was
a pleasure visiting Friday[.] I am sending the cell maps and my
cell forms, guides and CV[.] When you have a moment after
reviewing these, call and I will walk you through each.”
In his affidavit, O’Kelly stated that he “reviewed the . . .
call detail records and concluded that [Parnell’s cell phone]
appeared to travel from the west side of Omaha [where Parnell
lived] to the east side, then north and south and then travel-
ing back to the general area on the west side.” O’Kelly said
that he “began processing and mapping the individual cell
site registrations. The handset transition west to east, north/
south and east to west activities were confirmed.” He then
provided the OPD detective with “multiple maps depicting
handset movements consistent with cell site registrations that
supported physical movement from Omaha’s west side to the
east side and possible travel movements north and south on the
east side.”
O’Kelly also stated that he informed the detective that “it
is impossible to identify a specific location stop(s), specific
surface roadway travels based upon the existing cellular data.”
He stated that “drawing circles and other shapes with defined
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STATE v. PARNELL
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boundaries is unreliable and at best simple guessing with an
agenda. The ‘guessing’ may be based upon experience and
training but will still have no foundation and/or credible sup-
port that is rooted with existing electronic wireless data.”
And he stated that “in order to possibly place the subject
[cell phone] in the immediate area of the crime scene . . . it
will be necessary to conduct an RF Signal Field Survey.” He
explained that his approach to performing such a survey, or
drive test, “is time consuming and labor intensive covering
days if not weeks.”
In his motion to exclude Shute’s testimony or continue trial,
Parnell argued that the State failed to disclose O’Kelly’s opin-
ions that a drive test was necessary and that the FBI’s methods
were not reliable. In support of his motion, Parnell offered
O’Kelly’s affidavit, but not the emails. The State responded
that O’Kelly’s opinion was not exculpatory and that O’Kelly
placed Parnell’s cell phone in the same area as Shute had,
although O’Kelly was not as specific. The court overruled the
motion, finding the evidence was not exculpatory and had been
provided at an early date. The court permitted Parnell to retain
O’Kelly as an expert witness and allowed 12 days to prepare
his testimony.
Before trial, Parnell renewed his motion to continue the trial,
offering the email exchanges with O’Kelly as support. The
court overruled the renewed motion.
Trial
At trial, Johnson testified and described the shooting, the
blue Nissan Altima, and the threatening incident 2 days before
the shooting. Nero testified regarding the Altima and her rela-
tionship with Parnell. Nero testified that she lied to police for
Parnell and was charged as an accessory to a felony. Shute
testified that towers 201 and 729 form an overlap area and that
Parnell was within the overlap area at the time of the shooting.
O’Kelly was present throughout the trial but did not testify.
The jury returned a verdict of guilty on all counts.
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STATE v. PARNELL
Cite as 305 Neb. 932
Motion for New Trial
Parnell timely moved for a new trial. He offered a second
affidavit from O’Kelly which he contended showed proof of
newly discovered evidence which could not have been discov-
ered and produced at trial. O’Kelly averred that after his initial
work on Parnell’s case, he “informed the government that addi-
tional field testing by means of a ‘drive test’ would be required
in order to move from speculation to accuracy in the cell tower
connection plotting.” A drive test involves making cell phone
calls while driving and then obtaining call detail records to see
which towers the cell phone used. Shute did not perform such
a drive test.
O’Kelly began a drive test on the last day of the trial. He
averred that the drive test revealed that the crime scene was
between towers 201 and 729, which are 1.84 miles apart. The
drive test showed that the coverage areas for towers 201 and
729 do not overlap or border each other, as Shute claimed.
O’Kelly stated that Parnell had to have left the crime scene in
order to connect to tower 729. However, O’Kelly also said that
the data showed that Parnell’s cell phone “was in the general
vicinity (1 - 2 miles of the crime scene) before, during and
after the shooting.”
The district court overruled the motion for new trial, finding
that O’Kelly’s opinions could have been discovered and pro-
duced using reasonable diligence. In addition, the court found
that Parnell could have disputed Shute’s testimony by calling
O’Kelly as a witness. The court noted that the State had dis-
closed early in the discovery process that O’Kelly had worked
on the case. Lastly, the court concluded that O’Kelly’s opinions
were not material, because they would not have affected the
outcome of trial. The court found that the drive test results
“seem to incriminate [Parnell].”
Direct Appeal
On direct appeal, Parnell assigned that the district court
erred in overruling his motion to exclude Shute’s testimony
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STATE v. PARNELL
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or continue trial and his motion for a new trial. Parnell also
claimed that his trial counsel was ineffective because he did
not call O’Kelly to testify as an expert witness at trial.
We found no merit to any of Parnell’s assigned errors. We
found that under Brady v. Maryland, 2 the timing of the State’s
disclosure of O’Kelly’s opinions did not violate Parnell’s
right to due process because the State disclosed the evidence
1 week before trial. We found that the State had no duty
to disclose O’Kelly’s oral, unrecorded opinions under Neb.
Rev. Stat. § 29-1912 (Reissue 2016), because his comments
on the need for more data were akin to an internal, informal
document and were not results or reports of examinations or
scientific tests under § 29-1912(1)(e). We also found Parnell
did not make it clear to the district court that O’Kelly required
more than 12 days to perform a drive test. We therefore con-
cluded that the district court did not abuse its discretion in
overruling Parnell’s motion to exclude Shute’s testimony or
continue trial.
We rejected Parnell’s argument that the court erred in over-
ruling his motion for a new trial, finding that, even assuming
O’Kelly’s opinions constituted newly discovered evidence,
there was not a reasonable probability of a substantially dif-
ferent result. We found that even though O’Kelly criticized
the precision of Shute’s opinions, O’Kelly’s opinions still
incriminated Parnell, because O’Kelly placed Parnell’s cell
phone within 1 to 2 miles of the crime scene before, dur-
ing, and after the shooting. In addition, the incriminating
testimony of Johnson and Nero substantially diminished the
importance of the evidence regarding the location of Parnell’s
cell phone.
In addressing Parnell’s argument that his trial attorneys
were ineffective for failing to call O’Kelly to testify, we first
addressed whether Parnell was represented by the same coun-
sel at trial as on appeal and concluded that he was not. We
2
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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found that the two attorneys who represented Parnell at trial
intended to withdraw in the trial court, but because there was
no order memorializing their withdrawal, they were certified
as appellate counsel to this court, and that they did not then
file a motion to withdraw in this court. In response to our
show cause order, Parnell’s trial counsel submitted affidavits
stating that they had no contact with him after sentencing
and did not participate in his appeal. As such, we concluded
that we were able to address Parnell’s ineffectiveness claim
on direct appeal. We found that had O’Kelly testified, the
outcome would not have been different, because he opined
that Parnell’s cell phone was near the crime scene when the
shooting occurred. We determined that the record conclusively
refuted Parnell’s claim that he was prejudiced by the actions
of his trial counsel.
Postconviction
As a self-represented litigant, Parnell filed a motion for
postconviction relief which asserted claims of trial court error,
prosecutorial misconduct, and ineffective assistance of trial
and appellate counsel. Most of the allegations in Parnell’s
motion concern issues previously raised and addressed on
direct appeal, especially with regard to O’Kelly’s opinions and
the drive test. Of particular note in this appeal, Parnell alleged
that his trial counsel and appellate counsel failed to “submit”
the email exchanges with O’Kelly to show that O’Kelly’s data
is more reliable than Shute’s data. Parnell further alleged that
the State committed prosecutorial misconduct by “allowing the
testimony of Shute at trial knowing that his testimony as an
expert was not accurate.” He alleged that, contrary to Shute’s
testimony that cell towers 201 and 729 form an overlap area,
O’Kelly opined that the cell tower areas do not overlap and that
the performance of a drive test was required in order to obtain
more accurate data. The district court dismissed the motion
without an evidentiary hearing, concluding that all of Parnell’s
claims are procedurally barred because they were known or
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STATE v. PARNELL
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knowable at the time of his direct appeal. Parnell filed a notice
of appeal. Parnell’s counsel entered his appearance and filed a
brief on his behalf.
ASSIGNMENTS OF ERROR
Parnell assigns, restated, that the district court erred in
determining that his claims for postconviction relief are pro-
cedurally barred; in particular, his claim in which he alleges
that appellate counsel was ineffective by failing to raise trial
counsel’s failure to “introduce certain evidence and correct
prosecutorial misconduct.” In the alternative, Parnell assigns
that the court erred in determining that any of his claims are
procedurally barred because it was unclear as to whether he
was represented by the same lawyers during trial and direct
appeal.
STANDARD OF REVIEW
[1,2] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief. 3
Whether a claim raised in a postconviction proceeding is pro-
cedurally barred is a question of law which is reviewed inde-
pendently of the lower court’s ruling. 4
ANALYSIS
Parnell argues that the district court erred in determining
that all of his claims are procedurally barred, because his
motion raises ineffective assistance of appellate counsel claims
and postconviction is his first opportunity to raise such claims.
The State does not contest this point, but argues that based on
the ineffective assistance of appellate counsel allegations raised
in the motion, Parnell is entitled to no relief.
3
State v. Hessler, ante p. 451, 940 N.W.2d 836 (2020).
4
State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019).
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STATE v. PARNELL
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[3,4] Under the Nebraska Postconviction Act, 5 a prisoner
in custody may file a motion for relief on the ground that
there was a denial or infringement of the prisoner’s consti-
tutional rights that would render the judgment void or void-
able. Postconviction relief is a very narrow category of relief. 6
A motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on
direct appeal. 7
[5,6] 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 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. 8 In a motion for postconviction relief, the defend­
ant must allege facts which, if proved, constitute a denial
or violation of his or her rights under the U.S. or Nebraska
Constitution. 9 In the absence of alleged facts that would ren-
der the judgment void or voidable, the proper course is to
overrule a motion for postconviction relief without an eviden-
tiary hearing. 10
Claims Procedurally Barred
Parnell contends that his claims of prosecutorial miscon-
duct were not procedurally barred. However, we agree with
the State that this portion of Parnell’s motion asserts in a con-
clusory fashion, without factual support, that he was denied
ineffective assistance of appellate counsel. An evidentiary
hearing is not required when a motion for postconviction
5
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
6
State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).
7
Mata, supra note 4.
8
State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
9
Id.
10
State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
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relief alleges only conclusions of fact or law without support-
ing facts. 11
Upon review of the allegations supporting Parnell’s pros-
ecutorial misconduct claims, it is clear that he did not allege
that his appellate counsel was ineffective for failing to raise on
direct appeal that his trial counsel was ineffective for failing
to raise the alleged prosecutorial misconduct with respect to
Shute’s testimony. Additionally, he did not allege how inclu-
sion of the issue would have changed the outcome of his direct
appeal. Because Parnell’s prosecutorial misconduct claims do
not include factual allegations concerning the effectiveness
of appellate counsel, we do not view these claims as ineffec-
tive assistance of appellate counsel claims, and as a result, the
district court did not err when it determined these claims were
procedurally barred.
Claim Not Procedurally Barred
While we agree with the district court’s observation that
Parnell’s motion mainly discusses claims that either were
raised or could have been raised on direct appeal, upon de
novo review of Parnell’s postconviction motion, and in consid-
eration of the errors assigned by Parnell in this appeal, we find
that Parnell has raised one ineffective assistance of appellate
counsel claim which is not procedurally barred and must be
analyzed under Strickland v. Washington. 12
[7] In the instant case, Parnell was represented by differ-
ent counsel on direct appeal than at trial. Ordinarily, when a
defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal
any issue of trial counsel’s ineffective performance which
is known to the defendant or is apparent from the record. 13
11
Id.
12
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
13
Parnell, supra note 1.
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Otherwise, the issue will be procedurally barred. 14 A claim
of ineffective assistance of appellate counsel which could not
have been raised on direct appeal may be raised on postconvic-
tion review. 15
Parnell’s counsel on direct appeal argued that trial coun-
sel was ineffective for failing to call O’Kelly as a witness.
For reasons previously discussed herein, we rejected Parnell’s
argument, because O’Kelly’s testimony tended to incriminate
Parnell and had O’Kelly testified, the outcome of trial would
have been the same. In his motion for postconviction relief,
Parnell asserts that his appellate counsel was ineffective for
failing to raise trial counsel’s failure to “submit the e-mails by
[the OPD detective, the deputy county attorney,] and O’Kelly,
concerning their meeting about O’Kelly’s data being more reli-
able than Shute’s data.”
[8] When a person seeking postconviction relief has differ-
ent counsel on appeal than at trial, the motion for postconvic-
tion relief is procedurally barred if the person seeking relief
(1) knew of the issues assigned in the postconviction motion at
the time of the direct appeal, (2) failed to assign those issues
on direct appeal, and (3) did not assign as error the failure of
appellate counsel on direct appeal to raise the issues assigned
in the postconviction motion. 16 Here, the record reflects that at
the time of his direct appeal, Parnell was aware of the fac-
tual basis for his claim that trial counsel was ineffective for
failing to “submit the e-mails.” While trial counsel did offer
the emails in support of Parnell’s renewed motion to exclude
Shute’s testimony or continue trial, the emails were not offered
into evidence during trial for the jury’s consideration. Parnell’s
appellate counsel did not assert this issue on direct appeal.
Because Parnell alleged in his motion for postconviction relief
that appellate counsel was ineffective in not doing so, the issue
14
Id.
15
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
16
State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002).
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was presented at Parnell’s first opportunity and is not procedur-
ally barred. 17
Because we conclude that Parnell has raised an ineffective
assistance of appellate counsel claim that is not procedurally
barred, we do not reach Parnell’s alternative assignment of
error that the court erred in determining that any of his claims
are procedurally barred because it was unclear as to whether
he was represented by the same lawyers during trial and
direct appeal.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 18 Moreover, it is clear from the discussion on this
issue in our opinion on direct appeal that Parnell’s counsel on
appeal was different than his counsel at trial.
Appellate Counsel Not Ineffective
Although we find that Parnell’s motion raises a discrete
issue that is not procedurally barred, given that we concluded
on direct appeal that Parnell was not prejudiced by counsel’s
failure to call O’Kelly as a witness, we similarly conclude
that Parnell failed to show that he was prejudiced by counsel’s
failure to submit the emails by the OPD detective, the deputy
county attorney, and O’Kelly into evidence at trial.
[9] A proper ineffective assistance of counsel claim alleges a
violation of the fundamental constitutional right to a fair trial. 19
To prevail on a claim of ineffective assistance of counsel under
Strickland, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. 20 To show preju-
dice under the prejudice component of the Strickland test, the
defendant must demonstrate a reasonable probability that but
17
See id.
18
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
19
Vela, supra note 15.
20
Id.
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for his or her counsel’s deficient performance, the result of the
proceeding would have been different. 21 A reasonable prob-
ability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather,
the defendant must show a probability sufficient to undermine
confidence in the outcome. 22
[10,11] When a claim of ineffective assistance of appel-
late counsel is based on the failure to raise a claim on appeal
of ineffective assistance of trial counsel (a layered claim of
ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the Strickland
test. 23 If trial counsel was not ineffective, then the defendant
was not prejudiced by appellate counsel’s failure to raise the
issue. 24 Much like claims of ineffective assistance of trial coun-
sel, the defendant must show that but for counsel’s failure to
raise the claim, there is a reasonable probability that the out-
come would have been different. 25 In determining whether trial
counsel’s performance was deficient, courts give counsel’s acts
a strong presumption of reasonableness. 26
In analyzing Parnell’s claim, we focus on the allegations
in his postconviction motion. 27 Here, on the issue of preju-
dice, Parnell alleged that had his trial counsel submitted the
emails into evidence, “[t]his would have proved that the State
knew that there existed exculpatorial [sic] material evidence
that [Parnell] was possibly in another area of town when the
21
Id.
22
Id.
23
State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018), disapproved on
other grounds, Allen, supra note 10.
24
Id.
25
Id.
26
Id.
27
See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved
on other grounds, Allen, supra note 10 (appellate court will not consider
factual allegations made for first time on appeal).
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STATE v. PARNELL
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murder was committed.” Based on the record, we find no
support for Parnell’s claim that counsel’s introduction of the
emails would have created a probability sufficient to under-
mine confidence in the outcome at trial. This is because, as
stressed by this court in its opinion on direct appeal, the testi-
mony of Johnson and Nero provided powerful and compelling
evidence of Parnell’s guilt, which significantly reduced the
importance of the expert testimony concerning the location of
Parnell’s cell phone. 28
Johnson testified that Parnell had threatened her 2 days
before the shooting and that the shooter was driving a blue
Nissan Altima with a damaged bumper. Nero testified that
Parnell drove her Altima on the night of the shooting, and she
admitted to lying to police about the Altima in order to help
Parnell. When police found the Altima, the car’s front bumper
was damaged and an item inside the car contained Parnell’s
thumbprint. Because these witnesses directly incriminated
Parnell in several respects, even if the emails were introduced
into evidence and effectively used to rebut aspects of Shute’s
testimony, the likelihood of acquittal is low.
This conclusion is reinforced when the actual content of the
emails are considered. Had the jury been presented with the
emails, it would have merely learned that O’Kelly met with
the prosecution to discuss his report and findings and that the
prosecution ultimately had Shute testify as an expert rather
than O’Kelly. While Parnell’s claim about the emails does not
refer to calling O’Kelly as a witness, his motion does state that
the emails concern the prosecution’s “meeting about O’Kelly’s
data being more reliable than Shute’s data.” Parnell’s claim of
ineffectiveness therefore includes a comparison between the
findings of the two experts. In evaluating this claim, we assume
for the sake of argument only that Parnell’s trial counsel would
have introduced the emails through O’Kelly as a witness and
that the jury would then have learned O’Kelly’s opinions. We
28
See Parnell, supra note 1.
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explained on direct appeal that, although he was not as precise
as Shute, O’Kelly’s testimony incriminated Parnell, because
O’Kelly placed Parnell in the general vicinity of the crime
scene at the time of the shooting. We must therefore conclude
that trial counsel was not ineffective, because it is clear that
trial counsel’s strategic decision not to call O’Kelly as a wit-
ness and introduce the emails through him benefited Parnell,
because O’Kelly would have incriminated Parnell. Because
Parnell’s trial counsel was not ineffective, Parnell’s appellate
counsel was not ineffective in failing to raise this issue, and
Parnell suffered no prejudice as a result of the actions of appel-
late counsel. Postconviction relief without an evidentiary hear-
ing is properly denied when the files and records affirmatively
show that the prisoner is entitled to no relief. 29
CONCLUSION
For the foregoing reasons, although our reasoning differs
from that of the district court, we affirm the order of the dis-
trict court denying Parnell’s motion for postconviction relief
without an evidentiary hearing.
Affirmed.
Freudenberg, J., not participating.
29
State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).