State v. Stelly

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2021 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STELLY
Cite as 308 Neb. 636State of Nebraska, appellee, v.
Malik M. Stelly, appellant.
___ N.W.2d ___
Filed March 12, 2021. No. S-20-635.
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: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
3. Postconviction: Judgments: Proof. In a postconviction proceeding,
an evidentiary hearing is not required 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.
4. Postconviction: Appeal and Error. In determining whether a motion
for postconviction relief contains factual allegations that, if proved, con-
stitute an infringement of the movant’s constitutional rights and whether
the records and files affirmatively show the defendant is entitled to no
relief, an appellate court considers whether the allegations are procedur-
ally barred.
5. ____: ____. A motion for postconviction relief cannot be used as a
substitute for an appeal or to secure a further review of issues already
litigated on direct appeal or which were known to the defendant and
counsel at the time of the trial and which were capable of being raised,
but were not raised, in the defendant’s direct appeal.
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STATE v. STELLY
Cite as 308 Neb. 6366. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. 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.
8. ____: ____: ____. A claim of ineffective assistance of appellate counsel
which could not have been raised on direct appeal may be raised on
postconviction review.
9. Trial: Evidence. There are three components of a true violation under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963): (1) The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; (2) that
evidence must have been suppressed by the State, either willfully or
inadvertently; and (3) prejudice must have ensued.
10. Effectiveness of Counsel: Proof. In order to establish a right to post-
conviction relief based on a claim of ineffective assistance of coun-
sel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to
show that counsel’s performance was deficient and that counsel’s defi-
cient performance prejudiced the defense in his or her case.
11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
the ineffective assistance of counsel test—deficient performance and
prejudice—may be addressed in either order, and the entire ineffective-
ness analysis is viewed with a strong presumption that counsel’s actions
were reasonable.
12. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
13. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
ecutorial misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial.
14. Postconviction. An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or law without
supporting facts.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STELLY
Cite as 308 Neb. 636Malik M. Stelly, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The defendant appeals from an order of the district court
denying his pro se motion for postconviction relief without an
evidentiary hearing. The defendant asserts that the trial record
demonstrates the probability that the extraction of information
from his cell phone found at the scene of the crime took place
before the crime occurred. The defendant concludes that if law
enforcement extracted information from his cell phone before
the crime, then law enforcement had his cell phone before the
crime and had unlawfully searched it before obtaining a war-
rant. Related to this claim, the defendant asserts that the State
committed various acts of prosecutorial misconduct during
trial and concealed exculpatory evidence in violation of the
prosecution’s duty under Brady v. Maryland. 1 The allegedly
exculpatory evidence the prosecution concealed is the original
disc containing the full extraction report, which the defend­
ant believes would show that the extraction occurred before
the crime. The defendant asserts that both trial counsel and
appellate counsel were ineffective in failing to discover that
the State had concealed such exculpatory information that he
believes is contained on the disc. We affirm.
BACKGROUND
Malik M. Stelly was convicted of first degree murder, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon by a prohibited person.
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STELLY
Cite as 308 Neb. 636Trial
The facts underlying Stelly’s convictions are set forth in
detail in our opinion resolving Stelly’s direct appeal. 2 We
reiter­ate those facts from the trial record most pertinent to
Stelly’s current postconviction appeal.
After the “ShotSpotter” system in Omaha, Nebraska, indi-
cated shots were fired at 2:37 a.m. on January 11, 2017, the
victim was found on a residential sidewalk, dead of multiple
gunshot wounds to the head. Witnesses described a Chrysler
PT Cruiser driving away. One witness described the PT Cruiser
as having rust around the wheel wells. Shell casings and two
cell phones were found at the scene. An LG cell phone was
found in the street about 10 to 15 feet from the victim’s body.
A ZTE cell phone was found in the victim’s pocket.
Later that day, officers obtained a search warrant and
extracted data from the LG cell phone found in the street. The
data indicated the cell phone belonged to Stelly.
Officers surveilled the apartment complex where Stelly
lived, finding a PT Cruiser in the parking lot that was reg-
istered to Stelly’s friend, Royce White. Pursuant to a search
warrant, officers later searched Stelly’s apartment and the
PT Cruiser.
Stelly’s fingerprint was recovered from the interior door-
frame of the PT Cruiser, which had damage to the wheel wells
on the driver’s side. Evidence adduced at trial showed that
White had loaned Stelly the PT Cruiser before the shooting,
because Stelly’s car had been in an accident.
A hat was seized from Stelly’s apartment that, due to time-
stamped photographs on Stelly’s social media profile, officers
believed Stelly had worn the day of the crime. Blood found
on the hat was tested, and the victim’s DNA was not excluded
as the major contributor to the DNA contained therein, with
a probability of that DNA’s coming from someone other than
the victim being 1 in 47.4 nonillion. Stelly was not excluded
as the major contributor to the DNA collected from inside the
2
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
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STATE v. STELLY
Cite as 308 Neb. 636headband of the hat, and the probability of that DNA’s having
come from someone other than Stelly was 1 in 1.01 octillion.
DNA found on the LG cell phone was tested, and Stelly was
not excluded as the major contributor, with a probability of
that DNA’s having come from someone other than Stelly at 1
in 4.12 sextillion.
The district court denied Stelly’s pretrial motion to suppress
evidence obtained from searching the contents of the LG cell
phone. Trial counsel had argued that the warrant, and the affi-
davit in support thereof, were insufficient because they identi-
fied the ZTE cell phone found in the victim’s pocket rather
than the LG cell phone. At the suppression hearing, the warrant
and attached affidavit were received into evidence.
The affidavit recited the facts of the shooting and that an
LG model cell phone was found in the street about 10 feet
from the victim. The affidavit stated it was unknown who the
LG cell phone belonged to and that an examination of the
electronic data contained in the cell phone would be a benefit
to the investigation. The affidavit also stated that the electronic
device to be searched was in the lawful possession of the
Omaha Police Department and was “found in the street at the
scene of a homicide and seized as evidence.”
But elsewhere in the affidavit, the device to be searched
was identified as the ZTE cell phone. Likewise, the warrant
that was issued identified the ZTE cell phone as the device to
be searched. The warrant was issued January 11, 2017, after
which the LG cell phone found in the street was searched.
The officer who swore the affidavit testified at the suppres-
sion hearing that he noticed after the search that he had made
an error when listing the ZTE cell phone. The officer applied
for and obtained another search warrant referencing only the
LG cell phone.
Officer Ryan Hinsley testified at the motion to suppress
hearing that the cell phone review began early in the morning
on January 11, 2017, in order to identify the owner of the LG
cell phone found at the scene of the crime. Officer Thomas
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STELLY
Cite as 308 Neb. 636Queen testified that as part of the police department’s evi-
dence processing protocols, the cell phone was “hooked up” to
a “Cellebrite” machine in order to unlock the cell phone and
look at the identification data. Queen did not know exactly
when this occurred, but it was some hours after he was called
in to work, subsequent to the crime.
Officer Nicholas Herfordt testified during the motion to
suppress hearing that the LG cell phone was booked into
property at 10:21 a.m. on January 11, 2017, and that he
retrieved it at 2:11 p.m. that same day, after a search warrant
had been obtained. Herfordt testified that he began the process
of extracting all of the raw data from the LG cell phone at
6:49 p.m. on January 11 and that the extraction was completed
at 6:58 p.m.
The district court held that the inadvertent defect in the
original search warrant was cured by reference to the affidavit
used to obtain the warrant, which was attached thereto.
At trial, the State presented photographs of Stelly that were
taken with his cell phone and posted on a social media website,
one of which showed Stelly wearing the hat that Stelly’s and
the victim’s blood were later found on. The photographs were
posted at approximately 8 p.m. on January 10, 2017.
Exhibit 590 is one such photograph, attached to which is an
“Upload Ip” from the social media’s business records show-
ing the photograph was uploaded on January 11, 2017, at
“2:06:24 UTC.”
Exhibit 591 is a photograph of two bottles of cognac cham-
pagne Stelly appeared to be holding in the prior photograph. It
was uploaded to the social media site, according to its business
records, at “1:50:43 UTC” the same date.
The State also presented exhibit 589, a picture of a puppy
and conversations on January 8, 2017, on social media regard-
ing Stelly’s potential purchase of the puppy, in the course of
which Stelly mentions driving a PT Cruiser.
Several witnesses testified that the term “UTC” stands for
coordinated universal time, which is approximately 5 or 6
hours before central time.
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STATE v. STELLY
Cite as 308 Neb. 636The State also presented cell phone records indicating that
from approximately 8:15 p.m. until just before 11 p.m. on
January 10, 2017, Stelly’s cell phone was near White’s house
and the crime scene. Further, between 1:43 and 1:51 a.m. on
January 11, Stelly had a text message conversation in which he
told someone that he was “bored” and “wanna act bad.”
Exhibit 576 contains call records and cell phone loca-
tion records.
Exhibit 592 is an “Extraction Report” from Cellebrite show-
ing the text messages and the time they were read and sent,
which was between 1:43 and 1:51 a.m. on January 11, 2017.
Direct Appeal
Following his convictions and sentencing, Stelly filed a
direct appeal with new counsel. He alleged that the trial court
erred in denying his motion to suppress the search of his cell
phone and 18 different claims of ineffective assistance of
trial counsel.
Regarding the motion to suppress, Stelly argued that the
warrant was not particular enough in its description of the cell
phone to be searched and that the affidavit did not cure the
deficiency. We disagreed, holding that the detailed information
in the supporting affidavit, referred to and accompanying the
warrant, demonstrated that the reference to the ZTE cell phone
was an inadvertent scrivener’s error and cured such defect, and
that the affidavit and warrant together described with sufficient
particularity the item to be searched.
The claims of ineffective assistance of counsel included two
claims related to the LG cell phone.
First, Stelly claimed that trial counsel had failed to investi-
gate the source of calls to White’s cell phone from two specific
telephone numbers which would have revealed that officers
called White’s cell phone themselves after illegally search-
ing the LG cell phone found near the victim’s body without
a warrant.
Second, Stelly claimed trial counsel failed to consult
with and call as a witness an independent cell phone expert
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Nebraska Supreme Court Advance Sheets
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STATE v. STELLY
Cite as 308 Neb. 636who, upon analyzing the LG cell phone found near the victim’s
body, would have testified that the data officers purportedly
extracted from the LG cell phone was not in fact present on
it and that one or more officers manufactured cell phone evi-
dence. Such expert would also have testified that officers sent
and received text messages and voice calls using the LG cell
phone, but testified falsely and failed to disclose this fact to
trial counsel, the trial court, and the jury.
We held that the trial record affirmatively refuted the first
claim. We explained that we had already held in our analysis of
the motion to suppress that the search of Stelly’s LG cell phone
was pursuant to a valid warrant.
We found the trial record insufficient to resolve the second
claim with respect to deficient conduct, and we did not decide
whether the trial record was sufficient to determine whether
Stelly was prejudiced from the alleged deficient conduct.
Motion for Postconviction Relief
In an amended motion for postconviction relief filed on
January 9, 2020, Stelly presented three alleged grounds for
vacating his convictions.
“Ground 1” was the allegation that his convictions were
obtained in violation of due process, because evidence was
admitted that was inadmissible due to the illegality of the
searches and seizures which produced the evidence. This alleg-
edly unlawfully obtained evidence included data from Stelly’s
cell phone, which evidence Stelly claimed was extracted before
the crime, at a time when there was no probable cause to do so,
and was not found at the scene of the crime, but, rather, was
in the possession of law enforcement before the crime. Stelly
asserted that the search of the cell phone and other places was
warrantless because the sworn affidavits in support of the war-
rants were issued after the searches.
“Ground 2” was the allegation that Stelly’s convictions were
obtained as a result of prosecutorial misconduct. This pros-
ecutorial misconduct allegedly included staged, perjured, and
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STATE v. STELLY
Cite as 308 Neb. 636false testimony. In this regard, Stelly again alleged that the data
from his cell phone was extracted before the crime, which he
asserted rendered exhibits 590 through 592 inadmissible as a
search and seizure without probable cause or a warrant.
Stelly did not allege newly discovered evidence but sur-
mised the time of extraction based on the testimony at the
pretrial hearing on his trial counsel’s motion to suppress.
Specifically, Stelly pointed out Herfordt’s testimony that data
extraction was conducted at 6:49 to 6:58 p.m. on January 11,
2017. Stelly asserted this testimony was inconsistent with the
testimony of Hinsley that the cell phone review began early in
the morning on January 11, 2017.
Stelly also claimed that the “metadata” contained in exhib-
its 590 and 591 demonstrated that the printouts were created
at 1:50 and 2:06 a.m. on January 11, 2017, before the crime
occurred. Stelly asserted, based on the “World Book,” that
“Universal Time Coordinate is not a time zone.” He did not
explain, however, how precisely this connected to his argument
that the times of 1:50 and 2:06 a.m. were when the data extrac-
tion of the cell phone took place rather than when he posted
onto social media.
“Ground 3” contained allegations of ineffective assistance
of both trial counsel and appellate counsel. For trial counsel,
Stelly elaborated that “[f]or the following reasons set forth in
Ground 1 and Ground 2 trial counsel was ineffective based
on the mishandling of the fourth amendment violation claim,”
which ineffective assistance led to the admission of exhibits
576 and 589 through 592. Among other things, Stelly argued
that through discovery, as well as through evidence presented
at the pretrial hearings and at trial, trial counsel should have
realized and argued that the data from his cell phone was
extracted before the crime occurred. In this regard, he reiter-
ated his claim that the “metadata” from exhibits 590 and 591
show those printouts were “created” January 11, 2017, at 1:50
and 2:06 a.m. before the crime occurred, proving the cell
phone was not found at the crime scene.
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STATE v. STELLY
Cite as 308 Neb. 636As to his claims against appellate counsel, Stelly incorpo-
rated all prior allegations, including those against trial counsel,
and explained:
Through the evidence provided to the trial counsel and
appeallate [sic] counsel through the discovery process,
trial counsel and appeallate [sic] counsel should have
argued (Ev. #1) data was extracted before this crime
occurred, and Exhibits 2, 3, 5, 6, 7, 8, and 13 are affi-
davits and applications for issuance of a search warrant,
not signed search warrants from a judge (Referencing
Ground 1 section 1).
Again, Stelly repeated his claim that the “metadata” from
exhibits 590 and 591 show that the printouts were “created”
January 11, 2017, at 1:50 and 2:06 a.m. before the crime
occurred, proving the cell phone was not found at the crime
scene. Stelly concluded that “[t]he mishandling of the defend­
ants fourth amendment violation claim amounts to the defend­
ant being prejudiced” and that both trial counsel’s and appel-
late counsel’s performance were deficient and their deficient
performance prejudiced him by depriving him of a fair trial.
He asserted that but for the ineffective assistance, no reason-
able fact finder would have found him guilty of the underly-
ing offenses.
On April 22 and July 2, 2020, Stelly filed additional docu-
ments setting forth additional information which he asked the
court to take into consideration, along with the verified motion
for postconviction relief. It is unclear if the court did so. Stelly
seemed to reiterate in these filings that the cell phone was not
found at the crime scene, because the data from the cell phone
was extracted before the crime. Again, in making the argu-
ment that the data was extracted before the crime, Stelly relied
on testimony at the motion to suppress hearing and at trial
rather than on any newly discovered evidence. He theorized
that, because the time of extraction proves the cell phone was
not at the scene of the crime, the affidavit asserting the cell
phone was found near the victim at the crime scene contained
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STATE v. STELLY
Cite as 308 Neb. 636a knowingly false statement and was therefore invalid. The
April 22 filing does not mention ineffective assistance of
counsel, but the July 2 filing asserts that trial counsel and
appellate counsel should have argued that statements in the
affidavits that the cell phone was found near the victim at the
crime scene were false and recklessly made. This allegedly
prejudiced Stelly by allowing the introduction of inadmissible
evidence, such as exhibits 589 through 591.
Order Denying Postconviction Relief
On August 13, 2020, the district court, without an eviden-
tiary hearing, denied the amended motion for postconviction
relief. The court explained that the claims relating to viola-
tions of due process rights and prosecutorial misconduct were
procedurally barred because they could have been brought on
direct appeal.
The court found that all Stelly’s allegations of ineffec-
tive assistance of appellate counsel relate to the same issues
addressed within the ineffective assistance of trial counsel
claims and that all such claims were either procedurally barred
or affirmatively refuted by the trial record. Citing to State
v. Sellers, 3 the postconviction court concluded that Stelly’s
ineffectiveness claim regarding trial counsel’s and appellate
counsel’s failure to discover exculpatory evidence was dif-
ficult to decipher, but failed because it set forth no more than
conclusory allegations with regard to the lack of investigation
and did not specifically identify any exculpatory evidence the
investigation would have procured. The court also noted that
much of Stelly’s argument was based on a misunderstanding
of the evidence at trial. For instance, the court elaborated as to
exhibits 590 and 591 that the times of 1:50 and 2:06 a.m. were
when the photographs were downloaded to social media rather
than when they were downloaded by law enforcement.
After the court’s order denying postconviction relief,
Stelly moved to compel the Douglas County Attorney who
3
State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
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STATE v. STELLY
Cite as 308 Neb. 636handled his prosecution to surrender the entire case file. Stelly
specifically requested police reports and all copies of affidavits
and search warrants. He made no reference in the motion to
a disc containing an extraction report for his cell phone. The
court denied the motion.
On September 2, 2020, Stelly appealed from the district
court’s order denying postconviction relief.
ASSIGNMENTS OF ERROR
Stelly assigns as error that (1) the State committed a Brady
violation by failing to disclose the disc containing the extraction
report for his cell phone information, which allegedly would
demonstrate that the cell site location, call detail records, text
history, social media posts, and pictures entered into evidence
through exhibits 566, 576, and 590 through 592 were fraud­
ulently misrepresented as being extracted from the device after
the crime; (2) trial counsel and appellate counsel were ineffec-
tive in failing to raise this alleged Brady violation, which they
would have discovered had they demanded a copy of the disc
to resolve the discrepancy between witness testimony that the
extraction occurred a little before 7 p.m. on January 11, 2017,
and witness testimony that the extraction occurred in the early
morning hours of January 11; and (3) there was plain error
committed during trial through the prosecutor’s failure to cor-
rect its witnesses’ false testimony pertaining to the dates and
times of exhibits 590 through 592.
STANDARD OF REVIEW
[1] 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. 4
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing
4
State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).
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Cite as 308 Neb. 636a question of law, an appellate court reaches a conclusion
i­ndependent of the lower court’s ruling. 5
ANALYSIS
[3] Stelly asserts that the district court erred in denying his
motion for postconviction relief without an evidentiary hear-
ing. The Nebraska Postconviction Act provides:
A prisoner in custody under sentence and claiming a right
to be released on the ground that there was such a denial
or infringement of the rights of the prisoner as to render
the judgment void or voidable under the Constitution of
this state or the Constitution of the United States, may
file a verified motion, in the court which imposed such
sentence, stating the grounds relied upon and asking the
court to vacate or set aside the sentence.
. . . Unless the motion and the files and records of the
case show to the satisfaction of the court that the prisoner
is entitled to no relief, the court shall cause notice thereof
to be served on the county attorney [and] grant a prompt
hearing thereon . . . . 6
In a postconviction proceeding, an evidentiary hearing is not
required when (1) the motion does not contain factual alle-
gations 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; 7 or (3) the records and files affirm­
atively show that the defendant is entitled to no relief. 8
[4,5] In determining whether a motion for postconviction
relief contains factual allegations that, if proved, constitute
an infringement of the movant’s constitutional rights and
whether the records and files affirmatively show the defendant
is entitled to no relief, we consider whether the allegations
5
State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
6
Neb. Rev. Stat. § 29-3001 (Reissue 2016).
7
See State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
8
See State v. Parnell, supra note 4.
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Cite as 308 Neb. 636are procedurally barred. 9 Generally, a motion for postconvic-
tion relief cannot be used as a substitute for an appeal or to
secure a further review of issues already litigated on direct
appeal or which were known to the defendant and counsel at
the time of the trial and which were capable of being raised,
but were not raised, in the defendant’s direct appeal. 10
[6] While Stelly makes many arguments in his brief, an
alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error
to be considered by an appellate court. 11 To the extent Stelly
makes arguments not specifically assigned as error, we do not
address them.
Ineffective Assistance
Stelly argues in relation to his second assignment of error
that both trial counsel and appellate counsel violated his Sixth
Amendment rights by “not addressing the Brady violation
of the defense not being given the disc or a copy of the disc
containing the Cellebrite extraction report for the device.” 12
This disc allegedly would have demonstrated that the cell site
location, call detail records, text history, social media posts,
and pictures entered into evidence through exhibits 566, 576,
and 590 through 592 were fraudulently misrepresented at trial
as being extracted from the device after the crime, when in
fact they were extracted before the crime. Stelly alleges that
both trial counsel and appellate counsel would have discovered
this had they demanded a copy of the disc to resolve what
Stelly considers to be a discrepancy between witness testimony
that the extraction occurred a little before 7 p.m. on January
11, 2017, and witness testimony that the extraction occurred
in the early morning hours of January 11. Stelly infers the
9
See id.10
See id.11
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
12
Brief for appellant at 12.
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Cite as 308 Neb. 636disc would show the data was extracted from the cell phone
before the crime, based on this allegedly conflicting testimony
and his reading of exhibits 590 through 592. Stelly concludes
a disc showing the data was extracted before the crime would
be exculpatory, because it would negate a nexus between the
crime alleged and the item to be searched and would have
invalidated the search warrant, which would have made most
of the evidence against him inadmissible under the exclusion-
ary doctrine.
Stelly’s claim against trial counsel was not brought on direct
appeal. While there is a common theme surrounding Stelly’s
cell phone and law enforcement tampering, we read the post-
conviction allegation against trial counsel to be distinct from
those brought on direct appeal. Stelly alleged on direct appeal
that trial counsel had failed to investigate the source of calls to
White’s cell phone from two specific telephone numbers that
would have revealed officers called White’s cell phone them-
selves after a warrantless search of the LG cell phone found at
the scene of the crime, a claim which we found to be without
merit. Stelly also asserted on direct appeal that trial counsel
failed to call as a witness an independent cell phone expert
who would have testified that the data the officers purportedly
extracted from the LG cell phone was not in fact present and
was manufactured, a claim which we did not determine on
direct appeal. These claims are distinct from the current alle-
gation that the data from the cell phone was extracted before
the crime.
[7] A motion for postconviction relief asserting ineffec-
tive 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. 13 Stelly was
13
State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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Cite as 308 Neb. 636represented by new counsel on direct appeal. He relies on testi-
mony and exhibits presented at the pretrial hearing and at trial
to support his allegations of ineffective assistance, evidence
which was known to him and was apparent from the record.
And the current allegations of ineffective assistance of trial
counsel were not raised on direct appeal. Therefore, Stelly’s
claim against trial counsel is procedurally barred.
[8] In contrast, this postconviction proceeding was Stelly’s
first opportunity to assert that his appellate counsel was inef-
fective. A claim of ineffective assistance of appellate counsel
which could not have been raised on direct appeal may be
raised on postconviction review. 14 But the district court did not
err in denying, without an evidentiary hearing, Stelly’s claim
for postconviction relief based on the alleged ineffective assist­
ance of appellate counsel.
First, we agree with the State that the claims made in the
second assignment of error were not made in Stelly’s post-
conviction motion. The postconviction motion made no refer-
ence to a Brady violation or to a disc containing the Cellebrite
extraction report that either trial counsel or appellate counsel
should have obtained. This court will not consider an issue on
appeal from the denial of postconviction relief that was not
raised in the motion for postconviction relief or passed upon by
the postconviction court. 15
[9-12] Second, we agree with the district court that the
record affirmatively refutes Stelly’s claim of ineffective assist­
ance of appellate counsel for failing to discover and challenge
the alleged Brady violation. There are three components of a
true Brady violation: (1) The evidence at issue must be favor-
able to the accused, either because it is exculpatory, or because
14
State v. Sellers, supra note 3.
15
See, State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019);
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017); State v. Thorpe, 290
Neb. 149, 858 N.W.2d 880 (2015); State v. Thomas, 262 Neb. 138, 629
N.W.2d 503 (2001).
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Cite as 308 Neb. 636it is impeaching; (2) that evidence must have been suppressed
by the State, either willfully or inadvertently; and (3) preju-
dice must have ensued. 16 In order to establish a right to post-
conviction relief based on a claim of ineffective assist­ance
of counsel, the defendant has the burden, in accordance with
Strickland v. Washington, 17 to show that counsel’s perform­
ance was deficient and that counsel’s deficient performance
prejudiced the defense in his or her case. 18 The two prongs
of this test—deficient performance and prejudice—may be
addressed in either order, and the entire ineffectiveness analy-
sis is viewed with a strong presumption that counsel’s actions
were reasonable. 19 To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance
did not equal that of a lawyer with ordinary training and skill
in criminal law. 20
We find that the record affirmatively refutes Stelly’s allega-
tion that appellate counsel was deficient for failing to raise trial
counsel’s ineffectiveness in failing to discover and challenge at
trial the Brady violation of concealing the extraction disc. The
evidence Stelly points to as raising questions about the time of
extraction, which he claims should have alerted trial counsel to
the possible Brady violation and should have likewise alerted
appellate counsel of trial counsel’s ineffectiveness, does not
in fact indicate the State was concealing exculpatory evidence
that it had extracted the data from Stelly’s cell phone before
the crime.
The trial record demonstrates that, on their face, exhibits
590 through 592 are photographs that show when they were
16
State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). See Brady v.
Maryland, supra note 1.
17
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
18
See State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
19
See State v. Oliveira-Coutinho, supra note 15.
20
State v. Assad, supra note 18.
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Cite as 308 Neb. 636uploaded onto the social media website and not, as Stelly sug-
gests, when they were printed out. The fact that these photo-
graphs were uploaded to social media before the crime does
not indicate that law enforcement had possession of Stelly’s
cell phone and searched it before the crime.
The trial record also affirmatively demonstrates that there is
no discrepancy between Herfordt’s testimony that the extrac-
tion occurred a little before 7 p.m. on January 11, 2017, and
Hinsley’s testimony that the extraction occurred in the early
morning hours of January 11. Hinsley testified during the
motion to suppress hearing that the cell phone review began
early in the morning on January 11, in order to identify the
owner of the LG cell phone found at the scene of the crime.
Herfordt testified during the motion to suppress hearing that
the LG cell phone was booked into property at 10:21 a.m. on
January 11 and that he retrieved it at 2:11 p.m. that same day,
after a search warrant had been obtained. Herfordt testified that
he began the process of extracting all of the raw data from the
LG cell phone at 6:49 p.m. on January 11 and that the extrac-
tion was completed at 6:58 p.m.
The record shows that the first extraction was of a more
limited nature to identify the owner of the cell phone, while the
second extraction was a full search of its contents. And even if
the testimonies of Herfordt and Hinsley were inconsistent, both
testified that the extractions occurred after the crime. We fail to
see how any inconsistency should have led either trial counsel
or appellate counsel to believe that the extraction of data from
the cell phone occurred before the crime.
The record affirmatively refutes Stelly’s allegation that
appellate counsel’s performance was deficient by failing to
suspect and raise the issue of whether the data extraction of the
LG cell phone occurred before the crime. The evidence Stelly
points to would not give reason for a lawyer with ordinary
training and skill in criminal law to believe that such precrime
extraction might have occurred.
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Cite as 308 Neb. 636Prosecutorial Misconduct
[13] Stelly’s arguments pertaining to his first and third
assignments of error are that the State committed a Brady
violation by concealing the disc and committed other acts of
prosecutorial misconduct by presenting false testimony that
the data was extracted after the crime. Generally, prosecutorial
misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may
undermine a defendant’s right to a fair trial. 21
As pertains to the alleged Brady violation, as stated, the
postconviction motion made no reference to a Brady violation
or to a disc containing the Cellebrite extraction report. Thus,
we need not address this claim that is being raised for the first
time on appeal.
[14] As to both the alleged Brady violation and the remain-
ing allegations of prosecutorial misconduct, we agree with
the district court that Stelly alleged only conclusions of fact
without supporting facts. An evidentiary hearing is not required
when a motion for postconviction relief alleges only conclu-
sions of fact or law without supporting facts. 22
Conclusions of fact that are insufficient to warrant an eviden-
tiary hearing are often broad characterizations without specific-
ity, such as an allegation of “false” testimony, 23 but we have
also found a more specific allegation to be a mere conclusion
of fact when it appears based on speculation due to the lack of
adequate supporting factual allegations. 24 Thus, for instance,
in State v. Allen, 25 we concluded that the allegation that law
enforcement tampered with the evidence was a mere conclu-
sion of fact without supporting facts when it was based on
21
State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
22
State v. Parnell, supra note 4.
23
See State v. Dean, 264 Neb. 42, 49, 645 N.W.2d 528, 534 (2002).
24
See, e.g., State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
25
State v. Allen, supra note 7.
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Cite as 308 Neb. 636nothing more than the allegation that a former supervisor, who
was found to have tampered with evidence in other cases when
he was involved in evidence collection, 26 had diagrammed the
crime scene, but had not collected any evidence.
There was no allegation that Stelly’s claims were based
on newly discovered evidence that was not available to him
during trial or his direct appeal. Stelly’s only support for his
conclusory assertions that there was an undisclosed exculpa-
tory disc and that the State presented false testimony is the
same evidence relied upon in asserting that both trial counsel
and appellate counsel were ineffective. Given that the evidence
Stelly relies on does not support an inference that the extrac-
tion occurred before the crime, Stelly’s allegation of false testi-
mony that the data was extracted after the crime and allegation
of an undisclosed disc showing extraction occurred before the
crime are nothing more than conclusions of fact without sup-
porting facts. Accordingly, an evidentiary hearing on the claims
of prosecutorial misconduct was not required.
CONCLUSION
We find no merit to Stelly’s assignments of error relating
to the district court’s denial of Stelly’s motion for posconvic-
tion relief without an evidentiary hearing. The claims were all
either procedurally barred, based upon mere conclusions of
fact and law without supporting facts, or affirmatively refuted
by the trial record. We therefore affirm the judgment of the
district court.
Affirmed.
Heavican, C.J., not participating.
26
See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).