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State v. Glass

Supreme Court of Nebraska

January 5, 2018

State of Nebraska, appellee,
v.
Greg A. Glass, appellant.

         1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

         2. Postconviction: Evidence: Witnesses: Appeal and Error. 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. An appellate court upholds the trial court's findings unless they are clearly erroneous. In contrast, an appellate court independently resolves questions of law.

         3. Effectiveness of Counsel: Appeal and 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.

         4. Due Process: Convictions: Proof. The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged.

         5. Homicide: Intent: Lesser-Included Offenses. Both second degree murder and voluntary manslaughter involve intentional killing and are differentiated by the presence or absence of the sudden quarrel provocation involved in manslaughter. If the sudden quarrel provocation exists, it lessens the degree of the homicide from murder to manslaughter.

         6. Criminal Law: Statutes: Convictions: Time: Appeal and Error. A new rule applies to criminal cases still pending on direct review, because they are not final. As to convictions that are already final, however, the rule applies only in limited circumstances.

         [298 Neb. 599] 7. Constitutional Law: Criminal Law: Statutes: Sentences: Time. New substantive rules of constitutional law for criminal cases generally apply retroactively. Substantive rules include rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Constitutional substantive rules alter the range of conduct or the class of persons that the law punishes.

         8. Criminal Law: Statutes: Convictions: Time. Substantive rules apply retroactively, because they carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him or her.

         9. Constitutional Law: Criminal Law: Statutes: Convictions: Time. New constitutional rules of criminal procedure generally do not apply retroactively. Most procedural rules regulate only the manner of determining the defendant's culpability. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.

         10. Criminal Law: Courts: Time. Courts give retroactive effect to only a small set of "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.

         11. Habeas Corpus: Courts: States: Jury Instructions: Due Process. A federal court may grant habeas relief on the basis of a faulty state law jury instruction only if the erroneous instruction so infected the entire trial that the resulting conviction violates due process.

         12. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look first at whether trial counsel was ineffective under the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel's failure to raise the issue.

         13. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

         14. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To prevail on a claim of ineffective assistance of counsel, the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. To show prejudice, a defendant must demonstrate a reasonable probability that but for his or her counsel's deficient [298 Neb. 600] performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

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

          Sean M. Conway, of Dornan, Lustgarten & Troia, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          MILLER-LERMAN, J.

         I. NATURE OF CASE

         In 1999, following a jury trial, Greg A. Glass was convicted of second degree murder and use of a firearm to commit a felony. Glass appeals the August 25 and 30, 2016, orders of the district court for Douglas County, in which the court denied his amended and supplemental motions for postconviction relief after holding an evidentiary hearing. The evidence received at the hearing pertained to Glass' claims relating to jury instructions at his trial and to his allegations that he had received ineffective assistance of trial and appellate counsel. Glass appeals, repeating his claim that the jury instructions given in his case denied him due process and did not comply with this court's holdings in State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011) (State v. Ronald Smith), which he contends applies retroactively to his case on collateral review. He also claims that the district court erred when it rejected his ineffective assistance of counsel claims. We find no error and affirm.

         [298 Neb. 601] II. STATEMENT OF FACTS

         1. Background

         In 1999, Glass was convicted of second degree murder and use of a firearm to commit a felony. The charges arose from the July 1998 shooting death of Glass' former employer. Adolph Fentress, Sr. Fentress was shot in the head while working at an automobile detailing shop, Downtown Auto Sales (Downtown Auto), which he co-owned. The facts for which we find support in the record are set forth in the memorandum opinion of the Nebraska Court of Appeals rejecting Glass' arguments on direct appeal. See State v. Glass, No. A-99-919. 2000 WL 944020 (Neb.App. July 11, 2000) (not designated for permanent publication).

         At trial, Glass testified in his own defense. According to his testimony, he worked for Downtown Auto earlier in the year but had quit. Glass claimed Fentress owed him money, and he had tried to collect it on several occasions. According to Glass, at one point when he tried to collect his money, ...


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