[Copyrighted Material Omitted]
Appeal from the District Court for Douglas County:
THOMAS A. OTEPKA, Judge.
Michael J. Wilson and
Jessica P. Douglas, of Schaefer Shapiro, L.L.P., Omaha, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional question that does not involve a factual dispute as a matter of law.
2. Postconviction: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law.
3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.
4. Postconviction: Final Orders. Within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without a hearing.
5. Postconviction. The Nebraska Postconviction Act, Neb.Rev.Stat. § 29-3001 et seq. (Reissue 2008), provides that postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his constitutional rights such that the judgment was void or voidable.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.
7. 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. A court may address the two prongs of this test, deficient performance and prejudice, in either order.
8. Effectiveness of Counsel: Proof: Words and Phrases. In addressing the " prejudice" component of the test in [287 Neb. 607] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. To show prejudice under the prejudice component of the Strickland test, there must be a reasonable probability that but for the deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
9. 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.
NATURE OF CASE
Danny R. Robinson, Jr., appeals the February 18, 2010, order of the district court for Douglas County in which the court denied his motion for postconviction relief after holding an evidentiary hearing. The evidence received at the hearing pertained to Robinson's allegation that he had received ineffective assistance of counsel. Robinson sought relief with respect to his convictions for first degree murder, use of a deadly weapon to commit a ...