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State v. Banks

Supreme Court of Nebraska

December 5, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ANTONIO BANKS, APPELLANT

Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.

Page 306

Antonio Banks, Pro se.

Jon Bruning, Attorney General, and James D. Smith for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 307

[289 Neb. 601] Wright, J.

NATURE OF CASE

Antonio Banks appeals the order of the district court which overruled his amended motion for postconviction relief without an evidentiary hearing. We affirm.

SCOPE OF REVIEW

An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law. State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. 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. Robinson, supra.

FACTS

In 2007, Banks was convicted of first degree murder and use of a firearm to commit a felony in connection with the [289 Neb. 602] 2005 shooting death of Robert Herndon. Banks was sentenced to consecutive sentences of life imprisonment for first degree murder and 20 to 30 years' imprisonment for use of a firearm to commit a felony. On direct appeal, we affirmed his convictions and sentences. See State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009). The facts underlying Banks' convictions are set forth in detail in our opinion resolving his ...


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