Postconviction: Evidence. In an evidentiary
hearing on a motion for postconviction relief, the trial
judge, as the trier of fact, resolves conflicts in the
evidence and questions of fact.
Postconviction: Evidence: Appeal and Error.
An appellate court upholds the trial court's findings in
an evidentiary hearing on a motion for postconviction relief
unless the findings are clearly erroneous. An appellate court
independently resolves questions of law.
Effectiveness of Counsel. A claim that
defense counsel provided ineffective assistance presents a
mixed question of law and fact.
Effectiveness of Counsel: Appeal and Error.
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.
Postconviction: Appeal and Error. Whether a
claim raised in a postconviction proceeding is procedurally
barred is a question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the lower court's conclusion.
Postconviction: Effectiveness of Counsel: Proof:
Appeal and Error. In order to establish a right to
postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden first to
show that counsel's performance was deficient; that is,
counsel's performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Next, the
defendant must show that counsel's deficient performance
prejudiced the defense in his or her case.
Neb. 1015] 8. Effectiveness of
Counsel: Proof: Appeal and Error. In a nonplea
context, to establish the prejudice prong of a claim of
ineffective assistance of counsel, the defendant must show a
reasonable probability that the result would have been
different had counsel not performed deficiently.
__:__:__. The two prongs of the test governing a claim of
ineffective assistance of counsel, deficient performance and
prejudice, may be addressed in either order.
Effectiveness of Counsel: Presumptions. The
entire ineffectiveness analysis is viewed with a strong
presumption that counsel's actions were reasonable.
Trial: Attorneys at Law: Effectiveness of Counsel:
Appeal and Error. When reviewing claims of
ineffective assistance, an appellate court will not
second-guess a trial counsel's reasonable strategic
decisions. And an appellate court must assess the trial
counsel's performance from the counsel's perspective
when the counsel provided the assistance.
Effectiveness of Counsel: Appeal and Error.
In addressing the prejudice component of the test under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), an appellate court focuses on
whether a trial counsel's deficient performance renders
the result of the trial unreliable or the proceeding
Effectiveness of Counsel: Proof: Words and
Phrases. To show prejudice as a result of
ineffective assistance of counsel, 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.
Rules of the Supreme Court: Trial: Records.
Although court rules require transcription of voir dire
examination and of opening and closing statements of parties
when requested by counsel, any party, or court, recordation
of those parts of trial is not made mandatory by the rules,
and failure to require recordation cannot be said, ipso
facto, to constitute negligence or inadequacy of counsel.
Effectiveness of Counsel: Pleas: Proof. The
right to effective assistance of counsel extends to the
negotiation of a plea bargain, and claims of ineffective
assistance of counsel in the plea bargain context are
governed by the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
Postconviction: Evidence: Witnesses. In an
evidentiary hearing for postconviction relief, the
postconviction trial judge, as the trier of fact, resolves
conflicts in evidence and questions of fact, including
witness credibility and the weight to be given a witness'
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, [295 Neb.
1016] even if that choice proves unproductive, will not,
without more, sustain a finding of ineffectiveness of
Attorneys at Law: Effectiveness of Counsel.
A defense attorney has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.
Trial: Effectiveness of Counsel: Evidence. A
reasonable strategic decision to present particular evidence,
or not to present particular evidence, will not, without
more, sustain a finding of ineffective assistance of counsel.
Effectiveness of Counsel: Proof. In order to
show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel's deficient performance,
the result of the proceeding would have been different.
Judgments: Appeal and Error. When the record
demonstrates that the decision of the trial court is correct,
although such correctness is based on different grounds from
those assigned by the trial court, an appellate court will
Postconviction: Appeal and Error. A motion
for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have been
litigated on direct appeal.
from the District Court for Madison County: Mark A. Johnson,
V. Klein, of Carney Law, PC, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Alarcon-Chavez appeals from an order of the district court
for Madison County denying his motion for postconviction
relief after an evidentiary hearing. Finding no error, we
2011, Alarcon-Chavez was charged with first degree murder,
use of a deadly weapon to commit a felony, and tampering with
a witness in connection with the stabbing death of [295 Neb.
1017] Maria Villarreal. The following factual summary is
taken from our prior opinion in State v.
Alarcon-Chavez Events Prior to Stabbing
Alarcon-Chavez and Villarreal began dating and moved into an
apartment together in January 2009. Alarcon-Chavez was the
sole leaseholder for their apartment, which was located in
Norfolk, Nebraska. Their relationship ended after
Alarcon-Chavez informed Villarreal that he was seeing another
woman. After the breakup. Villarreal stayed in the apartment
and Alarcon-Chavez moved in with a friend. While he was
living with his friend, Villarreal called to threaten him on
several occasions. Once, she told him that her boyfriend
would "adjust accounts" with him.
On two occasions when he knew Villarreal would not be
present, Alarcon-Chavez went back to the apartment he had
shared with Villarreal. One time, he noticed another
In late February 2010, Villarreal began dating Aniel Campo
Pino, and he moved into the apartment with Villarreal and her
On March 9, 2010, Alarcon-Chavez saw Villarreal and Pino at a
store. Alarcon-Chavez returned to his friend's house
around 7 p.m. and began consuming alcohol. Around 11 p.m., he
drove across town to Wal-Mart to purchase more beer. While at
Wal-Mart, Alarcon-Chavez saw a set of Sunbeam knives, and he
testified he decided to purchase them for cooking purposes.
He purchased the knives and beer just after 11:30 p.m. He
returned to his friend's house and took the beer inside,
but left the knife set in the vehicle.
Alarcon-Chavez knew Villarreal went to work early in the
morning. So, around 5 a.m. on March 10, 2010, he drove to the
apartment where Villarreal was living. He testified that he
intended to tell Villarreal and Pino to get [295 Neb. 1018]
out of his apartment. He explained he did not want to live
with his friend anymore because he had been sleeping on the
floor and using clothes for a pillow.
Alarcon-Chavez arrived at the apartment around 5:10 or 5:20
a.m. He initially got out of the vehicle, but then, after
remembering Villarreal's threat that Pino would
"adjust accounts" with him, reentered it.
Alarcon-Chavez then remembered the knife set, so he opened
the package with his teeth and concealed one of the knives on
Alarcon-Chavez entered the apartment and found Villarreal in
the kitchen making her lunch. She had a knife in her hand.
Villarreal came toward Alarcon-Chavez and grabbed his body
and somehow dropped the knife. She was holding Alarcon-Chavez
and yelling for the police and for Pino, and Alarcon-Chavez
was struggling to escape her grip. Fearing that Pino would
attack him, he drew the knife he had concealed on his body.
Alarcon-Chavez and Villarreal continued to struggle, and as
he tried to get loose, he stabbed Villarreal in the abdomen.
Alarcon-Chavez did not remember stabbing her anywhere else.
After the stabbing, Villarreal sat on the floor and leaned
back onto the carpet. Alarcon-Chavez then heard someone
coming and locked the door.
Pino had gone outside before Alarcon-Chavez arrived. He went
back to the apartment after he heard Villarreal scream. When
he arrived, the door was locked. Villarreal was screaming
that he should not come in because a man was stabbing her.
Pino told Alarcon-Chavez to come out of the apartment so he
could help Villarreal, but Alarcon-Chavez did not respond. .
. . Pino heard Villarreal saying, "Leo, don't kill
me, Leo, don't kill me." Alarcon-Chavez then told
Villarreal he was going to kill her and said, "I told
you not to leave me because if you did this was going to
happen to you." Pino told a neighbor to call the police
and then retrieved a friend.
[295 Neb. 1019] Police officers were dispatched to the
apartment. One officer knocked at 6:06 a.m. and tried
unsuccessfully to open the door. An officer standing outside
of the apartment activated a tape recorder. Villarreal can be
heard on the recording pleading for help. She told
Alarcon-Chavez to go away and not to kill her. She said that
she had been stabbed five times and that Alarcon-Chavez was
still in the apartment with her. The recording also revealed
numerous expressions of pain from Villarreal, several of
which occurred just before the officers entered the
apartment. Alarcon-Chavez testified that Villarreal was not
asking him not to kill her, but, rather, was begging him not
to kill himself.
When another officer arrived, he knocked and announced his
presence and tried to open the door. Either Pino or his
friend told the officers they needed to get inside. The
officers entered the apartment by kicking the door several
times. When the officers opened the door, they observed
Alarcon-Chavez standing over Villarreal's body with a
knife in each hand. Alarcon-Chavez was shot with an electric
stun gun and handcuffed. He was covered in blood. As
Alarcon-Chavez was being taken out of the apartment,
Pino's friend asked him "why [he] didn't do this
to [Pino and his friend], " and he responded that
"he didn't want to do any harm to [them], the
problem wasn't with [them]."
Although she was obviously in pain, Villarreal was alert,
coherent, and talking when the officers first entered the
apartment. Within a few minutes, her color turned to an ash
gray and she stopped speaking. There was a large amount of
blood around her. She died as a result of multiple stab
a jury trial, Alarcon-Chavez was convicted of first degree
murder, use of a deadly weapon to commit a felony, [295 Neb.
1020] and tampering with a ...