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State of Nebraska v. Edward Robinson

March 8, 2013

STATE OF NEBRASKA, APPELLEE,
v.
EDWARD ROBINSON, JR., APPELLANT.



The opinion of the court was delivered by: wright, J.

Nebraska advaNce sheets 394 285 NEBRASKA REPORTS

accrued in this case, we reverse the judgment and remand the cause for further proceedings.

CONCLUSION

We do not reach the constitutionality of the ordinance in this appeal. The harm to Lindner's rights allegedly occurred when appellees declined to pay for the offstreet parking facilities through special assessments and instead paid for the costs through a general property tax levy or sales tax revenues drawn from municipal general funds. Because we cannot tell from the face of Lindner's complaint when that decision was made or when it was implemented and, thus, when Lindner's cause of action accrued for purposes of the running of the statute of limitations, we reverse the judgment of the district court and remand the cause for further proceedings. reversed aNd remaNded for further proceediNgs.

___ N.W.2d ___

Filed March 8, 2013.

1. Post-conviction: Proof: Appeal and Error. A defendant requesting post-conviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

2. Effectiveness of Counsel. A petitioner's claim that his or her defense counsel provided ineffective assistance presents a mixed question of law and fact.

3. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

4. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

5. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

6. Motions for New Trial: Juror Misconduct: Proof. In order for a new trial to be granted because of a juror's use of extraneous information, the party claiming the misconduct has the burden to show by a preponderance of the evidence that prejudice has occurred.

7. Jury Misconduct: Proof. Extraneous material or information considered by a jury can be prejudicial without proof of actual prejudice if (1) the material or information relates to an issue submitted to the jury and (2) there is a reasonable possibility that it affected the jury's verdict to the challenger's prejudice.

8. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel.

9. Effectiveness of Counsel. A counsel's duty to investigate is the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

10. Post-conviction: Effectiveness of Counsel: Appeal and Error. Although a motion for post-conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, when a defendant was represented both at trial and on direct appeal by the same lawyer, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for post-conviction relief.

11. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

Appeal from the District Court for Douglas County: gregory m. schatz, Judge. Affirmed.

and cassel, JJ., and moore, Judge.

wright, coNNolly, stephaN, mccormack, miller-lermaN,

I. NATURE OF CASE

Edward Robinson, Jr., was charged with and convicted of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life in prison on the first degree murder conviction and, as a habitual criminal, to 10 years' imprisonment on the conviction of the use of a deadly weapon to commit a felony, with the sentences to be served consecutively. He appealed the convictions and sentences to this court, and we affirmed. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006) (Robinson I), abrogated, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). Robinson brought this action for post-conviction relief based upon his claims relating to ineffective assistance of his trial and appellate counsel. After an evidentiary hearing, the district court denied post-conviction relief. He now appeals from the order denying post-conviction relief.

II. SCOPE OF REVIEW

[1] A defendant requesting post-conviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).

[2] A petitioner's claim that his or her defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). We review factual findings for clear error. Id. Whether the defense counsel's performance was deficient and whether the petitioner was prejudiced by that performance are questions of law that we review independently of the lower court's decision. Id.

III. FACTS

The facts underlying Robinson's convictions are set forth in detail in our opinion resolving his direct appeal and need not be fully reiterated here. We summarize only those facts from Robinson I and the record which relate directly to this post-conviction proceeding.

Herbert Fant is the victim in this case, and his wife and Robinson's wife are cousins. On February 24, 2003, Fant became agitated with his domestic situation. After an argument with his wife, Fant attempted to contact Robinson's wife.

1. death of herbert faNt

He went to Robinson's wife's house, argued with her, and then left.

Robinson was informed that his wife and Fant had been in an argument, and he began looking for Fant. Both men ended up at a fast-food restaurant around 10 p.m. They were fighting in the parking lot when Robinson, who had obtained a gun, shot Fant. Fant tried to get into his vehicle, but Robinson followed him and continued shooting. Police apprehended Robinson a few hours later at an automobile body shop. Robinson's nephew was also found at the shop. His nephew was wearing "a black leather type coat with a hood on it" lined with a synthetic fur, which matched eyewitness descriptions of apparel worn by the individuals who were present at the scene of the shooting.

An amended information charged Robinson with one count of first degree murder, one count of use of a deadly weapon to commit a felony, and being a habitual criminal.

Testimony was offered by both sides regarding the vehicles driven by Fant and Robinson. Fant's vehicle was a green Chevrolet Caprice that had been painted orange. However, it was identified by a State witness as a Chevrolet Impala. Robinson's vehicle was a cream-colored GMC Yukon ...


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