Judgments: Appeal and Error. When reviewing
a question of law, an appellate court reaches a conclusion
independent of the lower court's ruling.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
Constitutional Law: Effectiveness of
Counsel. A proper ineffective assistance of counsel
claim alleges a violation of the fundamental constitutional
right to a fair trial.
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
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed.
M. Conway, of Dornan, Lustgarten & Troia, PC, L.L.O., for
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
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.
Neb. 601] II. STATEMENT OF FACTS
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
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,