State v. Jaeger

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/18/2022 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. JAEGER
Cite as 311 Neb. 69State of Nebraska, appellee, v.
Roger Jaeger, appellant.
___ N.W.2d ___
Filed March 4, 2022. No. S-21-386.
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: Constitutional Law: Proof. 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.
4. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
a preliminary determination as to whether an evidentiary hearing is
justified.
5. Postconviction: Constitutional Law: Proof. 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 judg-
ment 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.
6. Postconviction: Appeal and Error. In appeals from the denial of post-
conviction relief without an evidentiary hearing, as with all appeals, the
alleged errors of the lower court must be both specifically assigned and
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STATE v. JAEGER
Cite as 311 Neb. 69specifically argued in the brief of the party asserting the errors to be
considered by the appellate court.
7. Records: Appeal and Error. The appellate court will not scour the
record on appeal to understand unclear arguments or find support for
broad conclusions.
8. Postconviction: Appeal and Error. The appellate court will not con-
sider allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction relief or
passed upon by the postconviction court.
9. Appeal and Error. Except for instances of plain error, only those issues
both raised or passed upon below and specifically assigned and specifi-
cally argued on appeal will be considered by the appellate court.
10. Postconviction. The defendant’s verified motion for postconviction
relief is the operative filing before the district court in considering
whether to grant an evidentiary hearing.
11. Postconviction: Appeal and Error. A postconviction court does not
err by failing to consider claims not made in the operative motion for
postconviction relief, which are instead raised in other filings.
12. Effectiveness of Counsel. A pro se party is held to the same standards
as one who is represented by counsel.
13. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all
defenses to a criminal charge.
14. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no
contest, the defendant is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
15. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were or could have been
litigated on direct appeal.
16. ____: ____. When the defendant is represented both at trial and on
direct appeal by the same counsel, the defendant’s first opportunity to
assert ineffective assistance of trial counsel is in a motion for postcon-
viction relief.
17. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s perform­
ance was deficient and that this deficient performance actually preju-
diced his or her defense.
18. Effectiveness of Counsel: Pleas. The voluntariness of a plea entered
upon the advice of counsel depends on whether the advice was within
the range of competence demanded of attorneys in criminal cases.
19. Trial: Effectiveness of Counsel: Presumptions. In determining whether
a trial counsel’s performance was deficient, there is a strong presump-
tion that counsel acted reasonably.
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STATE v. JAEGER
Cite as 311 Neb. 6920. Effectiveness of Counsel: Pleas: Proof. In order to satisfy the prejudice
requirement in the context of a plea, the defendant must show that his or
her counsel erred and there is a reasonable probability that but for coun-
sel’s errors, the defendant would not have pled and would have insisted
upon going to trial.
21. Pleas. A threat or promise of illegal action may invalidate a plea, but a
threat to prosecute when the facts warrant prosecution is not coercive
such that a subsequent plea is involuntary.
22. Effectiveness of Counsel. Counsel’s performance is deficient when it
objectively does not equal that of a lawyer with ordinary training and
skill in criminal law in the area.
23. ____. As a matter of law, counsel cannot be ineffective for failing to
raise a meritless argument to the trial court.
24. ____. The viability of any defense goes to the likelihood of whether a
rational defendant would have insisted on going to trial.
25. Postconviction: Effectiveness of Counsel. An evidentiary hearing will
not be warranted based only upon the prisoner’s legal conclusions about
the significance of vaguely asserted failures to investigate or to pursue
testimony.
26. Miranda Rights: Arrests. It is only in the context of a custodial inter-
rogation that the Miranda safeguards are considered justified and neces-
sary. The interrogation is not custodial unless a reasonable person would
feel the restraint on freedom of movement of the degree associated with
a formal arrest.
27. Pleas: Sentences: Waiver: Appeal and Error. A voluntary guilty
plea or plea of no contest does not waive alleged errors occurring at
sentencing.
28. Claims: Appeal and Error. Claims that could have been made on direct
appeal are procedurally barred.
29. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
assistance of trial counsel could not have been made on direct appeal
when appellate counsel was the same as trial counsel.
30. Constitutional Law: Due Process: Trial: Judges. The right to an
impartial judge is guaranteed under the Due Process Clauses of the U.S.
and Nebraska Constitutions.
31. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct,
a judge must recuse himself or herself from a case if the judge’s impar-
tiality might reasonably be questioned.
32. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality.
33. Judges: Recusal. Judicial recusal is required if a reasonable person
who knew the circumstances of the case would question the judge’s
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STATE v. JAEGER
Cite as 311 Neb. 69impartiality under an objective standard of reasonableness, even though
no actual bias or prejudice was shown.
34. ____: ____. Judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion directed to a trial judge.
35. ____: ____. The fact that the trial judge previously presided over other
actions involving the parties and made rulings against one or another of
the parties is insufficient to show bias.
Appeal from the District Court for Sarpy County: Nathan
B. Cox, Judge. Affirmed.
Roger Jaeger, pro se.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
In an appeal from a motion for postconviction relief, the
appellant challenges the district court’s denial of his motion
without holding an evidentiary hearing. The appellant had
alleged multiple instances of ineffective assistance of counsel
and a violation of his Fifth Amendment right against self-
incrimination. The appellant assigns that the district court erred
in denying his motion without holding an evidentiary hearing
and in not considering his reply to the State’s response to his
motion for postconviction relief. We affirm.
II. BACKGROUND
Roger Jaeger, a middle school teacher, was discovered to
possess child pornography after he took his laptop to a local
computer shop for repairs. During the course of performing
these repairs, the technician observed several hundred, if not
thousands, of photographs and videos of pornography, sev-
eral hundred of which were clearly child pornography. Law
enforcement was contacted, and officers identified numerous
files containing child pornography.
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Nebraska Supreme Court Advance Sheets
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STATE v. JAEGER
Cite as 311 Neb. 69A police report contained in the presentence investiga-
tion report (PSI) reflects that after finding the files, officers
obtained a search warrant and went to the school where Jaeger
worked to execute it. Jaeger was present at the school, and the
officers secured his electronic devices. Jaeger was escorted to
a conference room at the school, where the officer read Jaeger
his Miranda rights before questioning him.
During the course of the interview, Jaeger admitted to
viewing and obtaining child pornography for a long time
and possessing thousands of images, with a preference for
middle-school-aged and high-school-aged children. The officer
confronted Jaeger with the fact that there were student year-
book pictures mixed in with the child pornography and asked
why they were there. Jaeger responded, “‘I do not know.’”
He further responded, “‘[T]here were just a couple of years,
just thought hey, I’ll keep track of these ones,’” and then
he laughed. The police report indicates that Jaeger was not
arrested until the conclusion of the interview.
Jaeger was charged with six counts of possession of child
pornography, each a Class IIA felony, in violation of Neb. Rev.
Stat. § 28-813.01 (Reissue 2016).
1. Plea Hearing
Before trial, the parties informed the district court that a plea
agreement had been reached. Pursuant to the agreement, Jaeger
was to enter pleas of no contest to four counts of possession of
child pornography and the State would dismiss the remaining
two counts.
Before accepting the plea agreement, the district court
engaged in a colloquy with Jaeger which specifically included
questions regarding whether there had been any threats or
promises made to induce him to enter his pleas of no contest,
to which Jaeger answered, “No.” Following the completion
of the full colloquy and the State’s presentment of a support-
ing factual basis, the district court found beyond a reasonable
doubt that Jaeger understood the nature of the hearing and
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STATE v. JAEGER
Cite as 311 Neb. 69was alert and competent to plead. Ultimately, the district court
accepted Jaeger’s no contest pleas to four counts of possession
of child pornography.
The district court ordered the PSI, which was to include a
psychosexual evaluation. No objection was made. The court
did not issue an order specifically compelling Jaeger to make
any statements for the purposes of the PSI or psychosexual
evaluation. The matter was scheduled for sentencing.
2. Sentencing
At the sentencing hearing, defense counsel advocated for
Jaeger to receive probation. Defense counsel highlighted that
this was a nonviolent offense and that other similar offenders
in the county had been placed on probation. When discussing
the psychosexual evaluation in the PSI, defense counsel noted
the doctor who evaluated Jaeger believed he was being truthful
and cooperative and found the “Good Life Treatment Model”
could be completed under community supervision, because
Jaeger was a low risk for sexual assault.
Defense counsel further pointed out that the results of the
“Static 99” evaluation found Jaeger was a low to moderate
risk and the general criminal risk of recidivism was low to
moderate; Jaeger had no criminal history; and the “LS/CMI
domains” scored Jaeger very low on criminal history, medium
in education and employment “because he can’t go back to
his old job,” very low in the family and leisure and recreation
categories, and low in the companions, procriminal attitude,
and antisocial categories. Finally, counsel noted that the PSI
stated it does not appear there would be any significant bar-
riers to Jaeger’s participation in any community supervision
services and highlighted Jaeger’s support in the community
based upon the 15 to 20 character letters contained in the PSI.
Defense counsel argued that Jaeger was classified as someone
the community could supervise in a safe manner with addi-
tional terms such as monitoring Jaeger’s electronics and voca-
tional rehabilitation.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. JAEGER
Cite as 311 Neb. 69The State argued that probation would promote a disrespect
for the law. The State noted that Jaeger’s behavior had been
ongoing for close to 20 years while employed as a teacher and
that there were over 1,500 images found in his possession. It
noted the probation interviewer’s description of Jaeger as “con-
trolling and aggressive” during the PSI process.
The district court stated it had reviewed the PSI and noted
Jaeger’s lack of a criminal record. However, it also considered
Jaeger’s statements to the probation interviewer, reflected in
the PSI, indicating he did not feel like anyone had treated
him fairly or justly. The district court took particular issue
with a statement Jaeger made regarding teachers’ being held
to an “impossible standard.” The court described as “absurd”
Jaeger’s apparent belief that expecting teachers to refrain from
possessing child pornography was too high of a standard to
hold them to. The court observed that Jaeger’s statements,
reflected in the PSI, contained various rationalizations justi-
fying his behavior as not harmful and blaming others for his
addiction and for getting caught. The court also reiterated the
State’s concern that Jaeger had attempted to control the PSI
process and that his behavior was aggressive. Finally, the court
was concerned by Jaeger’s comment during the police inter-
view about keeping track of the middle-school-aged children
whose yearbook pictures were mixed in with his child pornog-
raphy, which it found “chilling.”
The court indicated it had considered all the appropriate sen-
tencing factors, the PSI, and the statements that were received.
The court found that Jaeger was not a suitable candidate for
probation and that anything less than a statutory sentence
would depreciate the seriousness of the offense, promote dis-
respect for the law, and “would potentially place at jeopardy
children in our community.”
The court sentenced Jaeger to concurrent terms of 10 to
20 years’ imprisonment on each count and ordered Jaeger
to register as a sex offender pursuant to the Sex Offender
Commitment Act.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. JAEGER
Cite as 311 Neb. 693. Direct Appeal
Jaeger’s trial counsel filed a timely notice of appeal alleging
Jaeger’s sentences were excessive. The appeal was summarily
affirmed by the Nebraska Court of Appeals.
4. Motion for Postconviction Relief
Subsequently, Jaeger, pro se, filed a verified motion for
postconviction relief. In the motion, Jaeger alleged, first, that
counsel was ineffective in failing to “‘make reasonable inves-
tigations’” as to Jaeger’s claim that the interviewing officer
did not read him his Miranda rights until after he was inter-
viewed. Jaeger claimed counsel refused to investigate when the
Miranda rights were actually read to him as Jaeger suggested;
nor would counsel “enter a [m]otion to [s]uppress the inter-
view.” Jaeger asserted that the failure to investigate prejudiced
him “by accepting the police report as fact when there were
doubts about the accuracy” and left him no option other than to
enter into the plea agreement.
Second, Jaeger described that defense counsel had advised
him to accept the plea agreement because (1) the prosecutor
could charge a separate count of possession for each image
found and that he was fortunate to only be charged with six
counts and (2) the State could turn the matter over to the fed-
eral authorities if he did not accept the plea agreement and he
“[stood] a better chance” in state court. Jaeger asserted that in
the email chain between the prosecutor and defense counsel,
which he attached to the motion, there was no mention of turn-
ing over the case to federal prosecutors or additional charges.
He then cited the proposition that pleas induced by promises or
threats are void and concluded that if the prosecution’s threats
were made, they were not on record; if the threats were not
made, he was coerced into a plea agreement by counsel’s erro-
neous advice.
Third, Jaeger alleged counsel was ineffective for not pur-
suing Jaeger’s request to attempt to recuse the trial judge as
biased against him. Jaeger supported his assertion of bias by
pointing to the court’s denial of his bond reduction request,
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. JAEGER
Cite as 311 Neb. 69the court’s grant of expanded media coverage, and events that
occurred in a separate civil matter. Jaeger asserted his ­counsel
told him that the judge would not recuse himself and that he
stood a better chance with this judge than another. Jaeger stated,
“The [j]udge’s behavior showed a pattern of prejudice against
[Jaeger] and crossed over to actually acting as the [p]rosecu-
tion, but [c]ounsel took no action in these situations.”
Fourth, Jaeger alleged multiple instances of ineffective
assistance of counsel at the sentencing hearing. Jaeger alleged
counsel stated Jaeger would have a sex offender registration
period of 25 years even though he was arguing for a sen-
tence of probation that would carry only a 15-year registra-
tion period; counsel did not correct prosecution’s inaccurate
statement about Jaeger’s length of time viewing underage
pornography; and counsel did not protest to Jaeger’s “being
shackled hand and foo[t] while wearing a county orange uni-
form in a televised sentencing.” Jaeger asserted that “[t]hese
behaviors show counsel was aware [Jaeger] would be serving
more than a 1 year prison sentence prior to sentencing and was
more concerned with appeasing the court than truly advocating
for [him].”
Fifth, Jaeger alleged counsel was ineffective in his direct
appeal by giving Jaeger “no say” in what issues would be
raised on appeal. He cited to Jones v. Barnes 1 for the proposi-
tion that the client must be allowed to decide what issues are
presented. Jaeger described that he had sent counsel a letter
stating all the inaccuracies he could remember, but counsel
claimed “he could only challenge abuse of discretion due to the
plea deal and the [j]udge’s rigid implementation of procedure.”
Further, Jaeger alleged counsel did not meet with him while
drafting the appeal nor did Jaeger see a copy of the appeal until
after it had been submitted.
Lastly, Jaeger alleged the court had ordered him to submit
to and participate in the PSI and psychosexual evaluation
1
Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).
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STATE v. JAEGER
Cite as 311 Neb. 69without Jaeger’s having sufficient awareness of the likely con-
sequences of any statements made. He asserted that his pleas
of no contest did not operate as a total waiver of his privilege
against self-incrimination and that his Fifth Amendment rights
were violated by the court’s use of his statements in the PSI
against him at sentencing.
5. State’s Response to Jaeger’s Motion
The State filed a response to Jaeger’s motion for postconvic-
tion relief, arguing Jaeger’s motion should be denied without
an evidentiary hearing for several reasons. These included the
argument that Jaeger had failed to articulate facts showing he
was entitled to relief.
6. Jaeger’s Response
On March 24, 2021, Jaeger filed an unverified responsive
document addressing some of the positions argued by the State
entitled “Defendant’s Response to State’s Response to Motion
for Postconviction Relief.” In this filing, Jaeger purported to
set forth “Reasons to Grant an Evidentiary Hearing.” In addi-
tion to legal arguments, Jaeger attempted to supplement the
factual allegations of his motion for postconviction relief, in
order to address the State’s assertion of inadequate allegations
to warrant an evidentiary hearing.
Regarding his claim that counsel failed to investigate when
the Miranda advisement was given, Jaeger stated that “[h]ad
counsel investigated and found the police report included infor-
mation prior to the Miranda [r]ights,” Jaeger “would have
continued his plea of [n]ot [g]uilty, forcing the State to prove
the files on a computer that was purchased refurbished and
a back-up drive purchased at a garage sale actually belonged
to [him].”
Regarding his claim that counsel’s erroneous advice coerced
him into accepting the State’s first plea offer, Jaeger added the
allegation that his “law library research of [f]ederal charges
revealed they would only have one charge for multiple files
with points added for the number of images, resulting in a
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STATE v. JAEGER
Cite as 311 Neb. 6936 to 60 month sentence.” Thus, in accepting the plea agree-
ment, he had relied on counsel’s erroneous advice about being
better off in a state court.
7. Order on Motion for
Postconviction Relief
The district court denied postconviction relief without an
evidentiary hearing. In its order, the court did not mention the
responsive document filed by Jaeger. It summarized the allega-
tions of the motion as one claim that the PSI violated Jaeger’s
right against self-incrimination and five claims of ineffective
assistance by (1) failing to investigate when law enforcement
read him his Miranda rights; (2) “advising [Jaeger] to plead
because the possibility of additional charges or his case being
taken federally” was not discussed in the emails pertaining to
his plea agreement; (3) stating during sentencing that the sex
offender registration period would be 25 years, failing to cor-
rect a statement by the prosecutor during sentencing, and fail-
ing to object to Jaeger’s being shackled at the sentencing hear-
ing; (4) failing to do anything in response to the trial court’s
bias; and (5) failing to meet with Jaeger and “allowing him to
dictate the issues to be argued when drafting the appeal.”
The court found that Jaeger failed to allege how trial coun-
sel’s actions fell below an objective standard of reasonableness
and how the alleged deficient performance actually prejudiced
the case. The court also described that Jaeger’s claims were
merely conclusory, with no supporting facts, and that any
attack on his convictions, with the exception of claims that his
pleas were involuntary or the result of ineffective assistance of
counsel, had been waived.
Jaeger timely appealed the district court’s order denying
postconviction relief to the Court of Appeals, and we moved
the case to our docket.
III. ASSIGNMENTS OF ERROR
Jaeger assigns that the district court erred in (1) not hold-
ing an evidentiary hearing on the issues raised in his motion
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STATE v. JAEGER
Cite as 311 Neb. 69for postconviction relief and (2) not considering his response
to the State’s response to his motion for postconviction relief.
IV. 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. 2
[2] 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 inde-
pendent of the lower court’s ruling. 3
V. ANALYSIS
Jaeger asserts, broadly, that the court erred in denying post-
conviction relief without first conducting an evidentiary hear-
ing. And he argues that this error occurred, in part, because the
court erroneously ignored the additional allegations made in
his responsive filing. Before addressing the specific claims of
postconviction relief that Jaeger believes the court should have
held an evidentiary hearing on, we set forth the general legal
principles governing our analysis of appeals from the denial of
postconviction claims without an evidentiary hearing.
[3-5] 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. 4 However, the allegations in a motion for
postconviction relief must be sufficiently specific for the dis-
trict court to make a preliminary determination as to whether
an evidentiary hearing is justified. 5 An evidentiary hearing is
2
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
3
Id.4
See State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
5
State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
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STATE v. JAEGER
Cite as 311 Neb. 69not 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. 6
[6,7] When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. 7 The appellate court does not conduct this review sua
sponte, however; as with all appeals, the alleged errors of the
lower court must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the errors to be
considered by the appellate court. 8 The appellate court will not
scour the record on appeal to understand unclear arguments or
find support for broad conclusions. 9
[8,9] Furthermore, the appellate court will not consider
allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction
relief or passed upon by the postconviction court. 10 Except
for instances of plain error, 11 only those issues both raised or
passed upon below and specifically assigned and specifically
argued on appeal will be considered by the appellate court.
6
State v. Munoz, supra note 2.
7
See id.8
See State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
9
See In re App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196(2020).
10
See, State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021); State v. Munoz,
supra note 2; State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
11
See, e.g., State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).
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STATE v. JAEGER
Cite as 311 Neb. 691. Responsive Filing
[10] The defendant’s verified motion for postconviction
relief is the operative filing before the district court in con-
sidering whether to grant an evidentiary hearing. It is also
the filing that the appellate court is limited to in determining
de novo if the petitioner has alleged facts that would support
the claim. 12
[11] The operative motion in this case did not include the
unverified motion entitled “Defendant’s Response to State’s
Response to Motion for Postconviction Relief.” In State v.
Thorpe, 13 we explained that a postconviction court does not err
by failing to consider claims not made in the operative motion
for postconviction relief, which are instead raised in other fil-
ings. In Thorpe, the filing at issue was referred to as an “oppo-
sition to the State’s motion to dismiss,” but the substance of
Jaeger’s responsive filing was similar.
[12] Jaeger made the filing in opposition to the State’s
response setting forth reasons the State believed the motion
should be denied without an evidentiary hearing, and Jaeger did
not seek leave to amend his operative motion for postconvic­
tion relief. Assuming the district court could have considered
Jaeger’s unverified responsive filing as a motion for leave to
amend, it did not, and the operative motion was not in fact
amended. In Nebraska, a pro se party is held to the same stan-
dards as one who is represented by counsel. 14 The district court
did not err in viewing the responsive filing as no more than
what it purported to be and in acting accordingly.
Because the responsive filing was not part of the operative
motion, we find no merit to Jaeger’s assertion that the district
court erred in failing to consider the additional allegations of
his responsive filing when determining whether to grant an
evidentiary hearing. Likewise, in considering the merits of
12
See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
13
Id.14
State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
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STATE v. JAEGER
Cite as 311 Neb. 69Jaeger’s arguments on appeal, we will not consider allegations
that Jaeger did not present below through his operative motion
for postconviction relief.
With this in mind, we turn to Jaeger’s more specific argu-
ments that the district court erred in finding the allegations of
the verified motion for postconviction relief did not warrant an
evidentiary hearing.
2. Pleas
[13,14] We first address Jaeger’s postconviction attacks on
his convictions, on the grounds that his pleas were the result of
ineffective assistance of counsel. Generally, a voluntary guilty
plea or plea of no contest waives all defenses to a criminal
charge. 15 Thus, when a defendant pleads guilty or no contest,
the defendant is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the
result of ineffective assistance of counsel. 16
[15,16] A motion for postconviction relief cannot be used to
secure review of issues that were or could have been litigated
on direct appeal, 17 but when, as here, the defendant is repre-
sented both at trial and on direct appeal by the same counsel,
the defendant’s first opportunity to assert ineffective assistance
of trial counsel is in a motion for postconviction relief. 18
[17-20] To prevail on a claim of ineffective assistance of
counsel, the defendant must show that counsel’s performance
was deficient and that this deficient performance actually prej-
udiced his or her defense. 19 The voluntariness of a plea entered
upon the advice of counsel depends on whether the advice
was within the range of competence demanded of attorneys
15
State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
16
Id.17
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
18
State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).
19
State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390 (2016).
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Cite as 311 Neb. 69in criminal cases. 20 In determining whether a trial counsel’s
performance was deficient, there is a strong presumption that
counsel acted reasonably. 21 In order to satisfy the prejudice
requirement in the context of a plea, the defendant must show
that his or her counsel erred and there is a reasonable probabil-
ity that but for counsel’s errors, the defendant would not have
pled and would have insisted upon going to trial. 22
Jaeger makes two arguments that his plea was the result
of ineffective assistance of counsel. He argues, first, that his
plea was the result of defense counsel’s deceptive tactics with
respect to the possibility of federal prosecution. Second, he
argues that but for counsel’s failure to investigate the timing of
the Miranda advisement during the police interview, he would
not have pled to the charges.
(a) Possibility of Federal Prosecution
The district court did not err in denying Jaeger’s postcon-
viction claim that his pleas were the product of counsel’s
advisement of the possibility of federal prosecution. The claim
set forth in the verified motion was poorly articulated, but
reasonably understood as asserting that because the attached
emails failed to reflect the prosecution affirmatively threatened
to turn the case over to federal officials, his pleas were the
product of counsel’s misrepresentations as to a threat by the
prosecution inducing his pleas. Alternatively, if the threat was
made, Jaeger asserted his pleas were rendered involuntary by
virtue of it.
[21] We observe that in the plea colloquy, Jaeger denied his
pleas were the product of any threats. But even if the motion
raised a factual question as to whether the prosecution made
an affirmative threat to turn the case over to federal prosecu-
tors, a finding that such a threat was made would not have led
20
State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988).
21
State v. Carlson, 260 Neb. 815, 619 N.W.2d 832 (2000).
22
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Cite as 311 Neb. 69to a finding that Jaeger’s postconviction claim had merit. A
threat or promise of illegal action may invalidate a plea, but a
threat to prosecute when the facts warrant prosecution is not
coercive such that a subsequent plea is involuntary. 23 It is not
illegal for a state prosecutor to drop a case and refer it instead
to federal prosecutors. 24 If such a threat were made, it would
not have invalidated the voluntariness of Jaeger’s pleas.
[22] If the State, on the other hand, did not make such a
threat, it would not mean, under the facts alleged, that Jaeger’s
pleas were the result of ineffective assistance of counsel.
Jaeger did not assert in his motion that counsel told him the
prosecution was affirmatively making such threats. Instead,
he alleged counsel told him “if the first plea offering was
not accepted, [p]rosecution could turn the whole case over to
[f]ederal [p]rosecutors, and [Jaeger] stands a better chance in
the [d]istrict [c]ourt.” Jaeger did not allege counsel was incor-
rect in stating that the prosecution had the ability to turn the
case over to federal prosecutors and that he stood a better
chance with a State prosecution—or that a lawyer of ordinary
training and skill in the area would not have so believed. In
other words, Jaeger alleged insufficient facts to demonstrate
deficiency. Counsel’s performance is deficient when it objec-
tively does not equal that of a lawyer with ordinary training
and skill in criminal law in the area. 25
Thus, we agree with the district court that the verified
motion did not contain factual allegations pertaining to the
threat (or lack thereof) of federal prosecution, which, if proved,
would constitute an infringement of Jaeger’s constitutional
rights rendering his convictions void or voidable.
23
State v. Robbins, 200 Neb. 723, 265 N.W.2d 226 (1978).
24
See, U.S. v. Williams, 47 F.3d 658 (4th Cir. 1995); U.S. v. Allen, 954
F.2d 1160 (6th Cir. 1992); U.S. v. Gray, 382 F. Supp. 2d 898 (E.D. Mich.
2005).
25
See State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
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of Miranda Advisement
With respect to the allegation that counsel was deficient
by failing to investigate when Jaeger was given his Miranda
advisement, Jaeger fails to articulate on appeal any support
for his conclusory statement that he would not have pled to
the charges but for this allegedly deficient failure to investi-
gate. He does not argue that counsel was ineffective by failing
to move to suppress his statements made during the police
interview. He does not even assert on appeal that the Miranda
warning was not given until the conclusion of the interview.
Jaeger’s argument is vague and conclusory, and we are not
compelled to address it.
[23,24] But even if we generously supplement Jaeger’s argu-
ment in his appellate brief with the allegations made in his
verified motion, it would not change the result of this appeal.
As a matter of law, counsel cannot be ineffective for failing
to raise a meritless argument to the trial court. 26 Relatedly,
the viability of any defense goes to the likelihood of whether
a rational defendant would have insisted on going to trial. 27
Jaeger’s motion for postconviction relief failed to assert in
even a conclusory manner that a motion to suppress would
have had merit. More importantly, Jaeger did not raise in his
verified motion sufficient specific factual allegations that, if
proved true, could demonstrate a motion to suppress would
have been meritorious.
[25] Jaeger did not allege what counsel could have found
during an investigation, which would have supported Jaeger’s
contention that the Miranda advisement was not given until
after the interview and would have refuted the officer’s state-
ment in the police report that the advisement was given before
the interview commenced. An evidentiary hearing will not
26
See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
27
See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
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Cite as 311 Neb. 69be warranted based only upon the prisoner’s legal conclusions
about the significance of vaguely asserted failures to investi-
gate or to pursue testimony. 28
[26] Also, Jaeger did not allege facts that would demonstrate
he was in custody at the time of the interview. And it is only
in the context of a custodial interrogation that the Miranda
safeguards are considered justified and necessary. The inter-
rogation is not custodial unless a reasonable person would feel
the restraint on freedom of movement of the degree associated
with a formal arrest. 29 Without further factual allegations per-
taining to custody, it can only be ascertained from the record
that the police interview was conducted in a conference room
at the school and before Jaeger was formally placed under
arrest. This is insufficient to establish that the interview was a
custodial interrogation.
We have previously described a postconviction motion that
lacks the specific factual allegations necessary to support the
claims made as no more than a fishing expedition for evidence
that might aid in obtaining postconviction relief and therefore
insufficient to warrant an evidentiary hearing. 30 For Jaeger’s
motion to warrant an evidentiary hearing on counsel’s failure
to raise a Miranda claim, the motion needed to allege spe-
cific facts supporting a finding that, as a threshold matter, the
Miranda safeguards were required. It did not.
The district court did not err in finding that the allegations
of counsel’s failure to investigate when the Miranda advise-
ment was given did not warrant an evidentiary hearing.
3. Sentencing
[27-29] We next consider Jaeger’s claims in relation to
his sentencing. A voluntary guilty plea or plea of no contest
28
See, e.g., State v. Abdulkadir, supra note 19; State v. Banks, 289 Neb. 600,
856 N.W.2d 305 (2014).
29
See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
30
See State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012).
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Cite as 311 Neb. 69does not waive alleged errors occurring at sentencing; nev-
ertheless, claims that could have been made on direct appeal
are procedurally barred. 31 Claims of ineffective assistance of
trial counsel could not have been made on direct appeal when
appellate counsel was the same as trial counsel. 32
(a) Fifth Amendment
Claims of trial error, on the other hand, could have been
made on direct appeal. Jaeger’s first argument is that the court
erred in denying him an evidentiary hearing on the court’s
alleged violation of his Fifth Amendment right against self-
incrimination by ordering that the psychosexual evaluation
be included in the PSI. Although Jaeger notes in his appellate
brief that defense counsel did not object at sentencing to the
court’s reliance upon any of the statements from the psycho­
sexual evaluation, there was no indication in the verified
motion that his Fifth Amendment claim was tied to a claim
of ineffective assistance of counsel, either at sentencing or
on appeal. The district court’s description of this claim rec-
ognized that fact. Because Jaeger’s Fifth Amendment claim is
not a claim of ineffective assistance of counsel, it could have
been brought on direct appeal and it is procedurally barred.
The postconviction court did not err in denying it without an
evidentiary hearing.
(b) Failure to Move to Recuse
[30,31] Jaeger’s second argument with respect to sentencing
is that the district court erred in denying him an evidentiary
hearing on his claim that defense counsel was ineffective by
failing to move to recuse the trial judge as being biased against
him. The right to an impartial judge is guaranteed under the
Due Process Clauses of the U.S. and Nebraska Constitutions. 33
31
See, State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016); State v.
York, 273 Neb. 660, 731 N.W.2d 597 (2007).
32
See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
33
State v. Fuentes, 302 Neb. 919, 926 N.W.2d 63 (2019).
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Cite as 311 Neb. 69Under the Nebraska Revised Code of Judicial Conduct, a
judge must recuse himself or herself from a case if the judge’s
impartiality might reasonably be questioned. 34 Under Neb. Rev.
Code of Judicial Conduct § 5-302.11(A)(1), such instances in
which the judge’s impartiality might reasonably be questioned
specifically include where “[t]he judge has a personal bias or
prejudice concerning a party or a party’s lawyer . . . .”
[32,33] A defendant seeking to disqualify a judge on the
basis of bias or prejudice bears the heavy burden of overcom-
ing the presumption of judicial impartiality. 35 Judicial recusal
is required if a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown. 36
In support of his conclusion that the trial judge was biased,
Jaeger alleged in his motion that the judge had (1) allowed
expanded news media coverage at his sentencing hearing, (2)
not allowed him to appear at a civil nonharassment hearing
while he was in jail, (3) issued the nonharassment order to the
accusing party, and (4) taken a recess during a bond reduction
hearing to print out the nonharassment order, to prove there
was a complaint against him. On appeal, Jaeger generally
refers to a pattern of behavior by the judge showing prejudice,
but only highlights the judge’s not allowing him to appear as
his own counsel at the nonharassment hearing and taking a
recess during the bond review. He asserts these actions made
the judge both accuser and adjudicator.
[34,35] Judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion directed to a trial judge. 37
The fact that the trial judge previously presided over other
actions involving the parties and made rulings against one
34
State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
35
Id.36
See id.37
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Cite as 311 Neb. 69or another of the parties is insufficient to show bias. 38 We agree
with the district court that the alleged facts failed to show
actual bias or reason to question the judge’s impartiality under
an objective standard of reasonableness. As such, counsel
could not have been deficient in failing to move for the judge
to recuse himself. The district court did not err in denying this
claim of ineffective assistance of counsel.
(c) Failure to Advocate
Jaeger’s last argument with respect to sentencing is that
defense counsel was ineffective by arguing for probation. He
asserts counsel knew Jaeger was likely to be sentenced to a
period of incarceration and concludes that, in arguing for pro-
bation, defense counsel failed to advocate for him and showed
prior knowledge of the sentences to be instituted.
We observe that Jaeger did not specifically allege in his
motion for postconviction relief that counsel was ineffective by
arguing for probation, though Jaeger did allege defense counsel
knew he would be serving at least a year in prison and Jaeger
generally alleged a lack of advocacy. But the Class IIA felonies
for which Jaeger was convicted carried no minimum sentence.
The only supporting facts for the conclusory statement that
counsel knew Jaeger would be sentenced to incarceration were
that counsel misstated the sex offender registration period,
failed to correct an alleged misstatement by the prosecution
about the length of time Jaeger had been viewing underage
pornography, and did not object to Jaeger’s being shackled at
the sentencing hearing. These allegations do not support the
inference that counsel knew Jaeger would be sentenced to a
period of incarceration.
In any event, we find no support for Jaeger’s argument that
defense counsel failed to advocate for him at sentencing. The
record shows that counsel advocated strenuously on Jaeger’s
behalf, citing to numerous facts specific to Jaeger, which
counsel reasonably believed might sway the district court to
38
See id.- 91 -
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Cite as 311 Neb. 69impose sentences of probation. Thus, the record affirmatively
refutes this claim of ineffective assistance of counsel at sen-
tencing, and the district court did not err in denying it without
an evidentiary hearing.
(d) Unidentified General Claim
Jaeger makes a vague statement in his appellate brief that
he made “several claims of ineffectiveness at the sentencing
hearing that prejudiced [him] before the court and were used to
justify the excessive sentence imposed.” 39 We find this insuf-
ficient to specifically raise on appeal any additional claims of
ineffective assistance of counsel at sentencing.
4. Direct Appeal
Lastly, Jaeger argues the district court erred by failing to
have an evidentiary hearing on his allegations that defense
counsel did not meet with him to discuss what would be raised
on direct appeal, disregarded the issues Jaeger had informed
counsel of in mail correspondence, and did not give Jaeger the
opportunity to review the appeal before it was submitted. Since
Jaeger’s trial counsel brought the direct appeal, a postconvic-
tion motion was Jaeger’s first opportunity to make this claim
and it was not procedurally barred.
In his motion for postconviction relief, Jaeger alleged he
had sent counsel a letter stating all the inaccuracies he could
remember, but counsel “claimed he could only challenge abuse
of discretion due to the plea deal and the [j]udge’s rigid imple-
mentation of procedure.” Jaeger also alleged counsel did not
meet with him while the appeal was being drafted, and Jaeger
did not see a copy of the appeal until after it was submitted.
Jaeger did not allege that he was unable to communicate
with counsel at all. Indeed, the alleged facts reflected com-
munications between Jaeger and his counsel. Rather, Jaeger
claimed these alleged facts demonstrated that he “was given
no say in what [c]ounsel would appeal and did not have any
39
Brief for appellant at 9.
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Cite as 311 Neb. 69part in formulating or reviewing the appeal” and violated the
mandate that the client be allowed to decide what issues are
presented on appeal—which he asserted was stated by the U.S.
Supreme Court in Jones v. Barnes. 40
But Jones does not stand for this proposition. To the con-
trary, in Jones, the Supreme Court expressly disapproved of a
per se rule that appellate counsel must raise every nonfrivolous
issue requested by the client. 41 Instead, the Court recognized
the “superior ability of trained counsel in the examination into
the record, research of the law, and marshalling of arguments
on [the appellant’s] behalf.” 42
Thus, the law would not support a finding of ineffective
assistance of counsel based on Jaeger’s general allegation that
counsel failed to press on appeal the issues Jaeger requested.
And although Jones does not mean that the strategic decisions
of appellate counsel are not subject to examination, 43 Jaeger
did not specify what issues, precisely, he had asked counsel
to pursue.
The facts here are similar to those in State v. Dean, 44
wherein we held the district court did not err in failing to grant
the petitioner an evidentiary hearing upon the allegations that
(1) counsel did not raise on direct appeal any of the issues he
requested; (2) the petitioner did not know the contents of the
appeal until it was filed; (3) the petitioner met only once with
counsel after the conviction and before the appeal, despite
counsel’s promise to meet again; and (4) counsel did not
return his calls and filed an appellate brief without his notice
or approval. We explained that without allegations as to what
specific assignments of error the petitioner had wished for
40
Jones v. Barnes, supra note 1.
41
See id.42
Id., 463 U.S. at 751 (internal quotation marks omitted).
43
See State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
44
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Cite as 311 Neb. 69counsel to present in the direct appeal, the motion for postcon-
viction relief presented mere conclusions of fact and law.
The district court did not err in denying without an eviden-
tiary hearing Jaeger’s claim that counsel was ineffective on
direct appeal.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying, without an evidentiary hearing, Jaeger’s motion
for postconviction relief.
Affirmed.