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: Constitutional Law: Appeal and
Error. In appeals from postconviction proceedings,
an appellate court reviews de novo a determination that the
defendant failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief.
Jurisdiction: Appeal and Error. Before
reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has
jurisdiction over the matter before it, even where no party
has raised the issue.
Postconviction: Appeal and Error. A
defendant is entitled to bring a second proceeding for
postconviction relief only if the grounds relied upon did not
exist at the time the first motion was filed.
__ . There are two circumstances which provide a new ground
for relief constituting an exception to the procedural bar to
a successive postconviction proceeding: (1) where the
defendant brings a motion for postconviction relief based on
ineffective assistance of trial or direct appeal counsel
which could not have been raised earlier and (2) where the
defendant brings a successive motion for postconviction
relief based on newly discovered evidence that was not
available at the time the prior motion was filed.
Postconviction. The need for finality in the
criminal process requires that a defendant bring all claims
for relief at the first opportunity.
Neb. 32] 8. Postconviction: Effectiveness of Counsel:
Proof: Appeal and Error. When a district court
denies postconviction relief without conducting an
evidentiary hearing, an appellate court must determine
whether the petitioner has alleged facts that would support
the claim and, if so, whether the files and records
affirmatively show that he or she is entitled to no relief.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Affirmed.
M. Hug and Alan G. Stoler, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman, and,
on brief, Stacy M. Foust for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
T. Jackson appeals from an order denying his second motion
for postconviction relief. Jackson was procedurally barred in
asserting all but one of his claims, and he failed to allege
sufficient facts to support his remaining claim. We affirm.
was convicted of first degree murder, attempted first degree
murder, and two counts of use of a deadly weapon to commit a
felony. He was sentenced to life imprisonment on the murder
conviction and various terms of imprisonment on the other
convictions. In our opinion on direct appeal, we recounted
the underlying facts and circumstances and affirmed his
convictions and sentences.
his direct appeal concluded, Jackson filed his first motion
for postconviction relief and alleged several claims of
ineffective assistance of trial counsel, ineffective
assistance of [296 Neb. 33] appellate counsel, and
prosecutorial misconduct. The district court granted an
evidentiary hearing, but after the hearing, it overruled
Jackson's motion. On appeal, we affirmed the denial of
was represented by one attorney at trial, a second attorney
on direct appeal, a third attorney for the first
postconviction motion, and a fourth attorney on the appeal
from the denial of the first postconviction motion.
by a fifth attorney, Jackson filed a second motion for
postconviction relief. He alleged numerous claims in his
motion, which we summarize as follows: (1) The trial court
committed reversible plain error in instructing the jury on
seven separate jury instructions, (2) he received ineffective
assistance of both trial counsel and appellate counsel, (3)
there was prosecutorial misconduct, (4) his appellate counsel
had a conflict of interest, (5) there was a denial of due
process through the negligence of postconviction counsel and
appellate postconviction counsel, and (6) there was a denial
of due process and right to a fair trial through the
misconduct of David Kofoed, the former supervisor of the
Crime Scene Investigation Division for the Douglas County
support of Jackson's claim concerning Kofoed's
misconduct allegedly occurring in the division's crime
laboratory, Jackson argued that of the two investigating
officers who conducted a search of the vehicle he was known
to be driving, only one noticed '"red
stains'" on some of the clothing found in the trunk
of the vehicle. He specifically alleged Kofoed's history
of tampering with evidence and falsifying reports and argued
that it was only after Kofoed and the other initial
investigating officer inventoried the items found in the
trunk that the officer noted apparent bloodstains. He also
argued that the "Crime Lab, and as a result, Kofoed,
" had vials of the murder victim's blood for months
before the clothing was tested and revealed the presence of