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State v. Jackson

Supreme Court of Nebraska

March 10, 2017

State of Nebraska, appellee,
v.
Michael T. Jackson, appellant.

         1. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.

         2. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.

         3. 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.

         4. 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.

         5. 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.

         6. __: __ . 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.

         7. Postconviction. The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.

         [296 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.

         Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed.

          Jerry 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.

          Cassel, J.

         I. INTRODUCTION

         Michael 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.

         II. BACKGROUND

         Jackson 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.[1]

         After 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 postconviction relief[2]

         Jackson 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.

         Represented 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 sheriff's office.

         In 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 ...


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