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State v. Sellers

Supreme Court of Nebraska

February 6, 2015

State of Nebraska, appellee,
v.
Terry J. Sellers, appellant

Page 578

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Page 581

Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

Terry J. Sellers, Pro se.

Jon Bruning, Attorney General, and George R. Love for appellee.

Heavican, C.J., Connnnolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ. Wright, J., participating on briefs.

OPINION

Page 582

[290 Neb. 19] Cassel, J.

I. INTRODUCTION

This appeal follows the denial, without an evidentiary hearing, of Terry J. Sellers' motion for postconviction relief. With one exception, our analysis breaks no new ground. Sellers asserted a claim that the separation of the jury without his consent created a rebuttable presumption of prejudice which entitled him to an evidentiary hearing. But we conclude that this type of presumed prejudice is not the kind of prejudice necessary to establish a claim of ineffective assistance of counsel. We affirm.

II. BACKGROUND

Sellers was convicted by a jury of two counts of first degree murder, one count of attempted first degree murder, and three counts of use of a deadly weapon to commit a felony. Sellers was represented by counsel at trial and was provided with [290 Neb. 20] different counsel on direct appeal, where we affirmed his convictions and sentences.[1] The facts surrounding Sellers' convictions are contained in State v. Sellers [2] and are not repeated herein, except as otherwise indicated.

Over the course of 4 days in late February 2005, Sellers and Taiana Matheny engaged in a scheme whereby Matheny would lure men to secluded locations so that she and Sellers could rob and murder them. Sellers and Matheny successfully robbed and shot to death two men and robbed and unsuccessfully attempted to murder another. Sellers was sentenced to life imprisonment for each of the murder convictions, 40 to 50 years' imprisonment for the attempted murder conviction, and varying terms of imprisonment for the use of a deadly weapon convictions.

In April 2011, Sellers moved for postconviction relief. His motion raised seven principal claims:

o His appellate counsel was ineffective in failing to raise, on direct appeal, the failure of his trial counsel to conduct a reasonable pretrial investigation.
o His appellate counsel was ineffective in failing to raise, on direct appeal, the failure of his trial counsel to ...

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