Postconviction: Judgments: Appeal and Error.
Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law which is reviewed
independently of the lower court's ruling.
Postconviction: Constitutional Law. A trial
court's ruling that the petitioner's allegations are
refuted by the record or are too conclusory to demonstrate a
violation of the petitioner's constitutional rights is
not a finding of fact-it is a determination, as a matter of
law, that the petitioner has failed to state a claim for
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.
Postconviction: Right to Counsel: Appeal and
Error. The failure of the district court to provide
court-appointed counsel in a postconviction proceeding is
reviewed for an abuse of discretion.
Postconviction: Constitutional Law.
Postconviction relief is a very narrow category of relief,
available only to remedy prejudicial constitutional
violations that render the judgment void or voidable.
Postconviction: Sentences: Appeal and Error.
The Nebraska Postconviction Act is intended to provide relief
in those cases where a miscarriage of justice may have
occurred; it is not intended to be a procedure to secure a
routine review for any defendant dissatisfied with his or her
Postconviction: Pleas: Waiver. The Nebraska
Postconviction Act does not provide a procedure whereby the
defendant can avoid the waiver inherent to a voluntary entry
of a guilty plea or plea of no contest.
Neb. 250] 8. Pleas: Waiver: Indictments and
Informations: Effectiveness of Counsel:
Jurisdiction. The voluntary entry of a guilty plea
or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or
constitutional. The only exceptions are for the defenses of
insufficiency of the indictment, information, or complaint;
ineffective assistance of counsel; and lack of jurisdiction.
Postconviction: Appeal and Error. On appeal
from the denial of postconviction relief without an
evidentiary hearing, the question is not whether the movant
was entitled to relief by having made the requisite showing.
Instead, it must be determined whether the allegations were
sufficient to grant an evidentiary hearing.
Postconviction. The allegations in a motion
for postconviction relief must be sufficiently specific for
the district court to make a preliminary determination as to
whether an evidentiary hearing is justified.
Postconviction: Pleadings: Proof: Constitutional
Law. In a proceeding under the Nebraska
Postconviction Act, the application is required to allege
facts which, if proved, constitute a violation or
infringement of constitutional rights, and the pleading of
mere conclusions of fact or of law are not sufficient to
require the court to grant an evidentiary hearing.
Postconviction: Proof: Constitutional Law.
An evidentiary hearing must be granted when the facts
alleged, if proved, would justify relief, or when a factual
dispute arises as to whether a constitutional right is being
Appeal and Error. An appellate court will
not consider an issue on appeal that was not presented to or
passed upon by the trial court.
Postconviction: Effectiveness of Counsel:
Proof. 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 in the area.
Next, the defendant must show that counsel's deficient
performance prejudiced the defense in his or her case.
Effectiveness of Counsel: Pleas. In a plea
context, deficiency depends on whether counsel's advice
was within the range of competence demanded of attorneys in
__:__. The prejudice requirement in a plea context is
satisfied if the defendant shows a reasonable probability
that but for the errors of counsel, the defendant would have
insisted on going to trial rather than pleading guilty.
__ . In determining the prejudice component of alleged
ineffective assistance of counsel in a plea context, the
likelihood of the [299 Neb. 251] defense's success had
the defendant gone to trial should be considered along with
other factors, such as the likely penalties the defendant
would have faced if convicted at trial, the relative benefit
of the plea bargain, and the strength of the State's
Postconviction: Effectiveness of Counsel. In
a motion for postconviction relief, self-serving declarations
that fail to allege specific facts that will be presented in
an evidentiary hearing will not be sufficient on their own to
raise a question of prejudice in an allegation of ineffective
assistance of counsel.
Postconviction: Pleas: Effectiveness of
Counsel. A motion for postconviction relief seeking
to set aside a conviction pursuant to a plea on the grounds
that it was the result of ineffective assistance of counsel
must allege objective facts that raise a question of whether
a rational defendant would have insisted on going to trial.
Postconviction: Appeal and Error. When
considering whether the district court correctly denied a
motion for postconviction relief without an evidentiary
hearing, an appellate court will not consider factual
allegations made for the first time on appeal.
Trial: Pleas: Mental Competency. A person is
competent to plead or stand trial if he or she has the
capacity to understand the nature and object of the
proceedings against him or her, to comprehend his or her own
condition in reference to such proceedings, and to make a
__:__:__. The test of mental capacity to plead is the same as
that required to stand trial.
Postconviction: Witnesses. A significant
degree of specificity is required in postconviction motions
for claims relating to potential witnesses.
Right to Counsel: Effectiveness of Counsel. A defendant
representing himself or herself pro se cannot thereafter
assert his or her own incompetency.
Postconviction: Appeal and Error. Plain
error cannot be asserted in a postconviction proceeding to
raise claims of error by the trial court.
Effectiveness of Counsel: Appeal and Error.
Counsel's failure to raise an issue on appeal could be
ineffective assistance only if there is a reasonable
probability that inclusion of the issue would have changed
the result of the appeal.
from the District Court for Douglas County: Shelly R.
Stratman, Judge. Affirmed.
T. Haynes, pro se.
Neb. 252] Douglas J. Peterson, Attorney General, and Sarah E.
Marfisi for appellee.
Heavican, C.J., Wright, Cassel, Stacy, and Funke, JJ.
NATURE OF CASE
an appeal from the denial of postconviction relief without an
evidentiary hearing or the appointment of counsel. The
petitioner makes numerous arguments that his trial counsel,
who also represented him on direct appeal, were ineffective.
Petitioner also argues that he was sentenced to nonexistent
crimes of being a habitual criminal, which he asserts
resulted in void sentences. We affirm the judgment below.
T. Haynes was charged with three counts under case No.
CR14-701. Count I charged him with stalking, second offense,
in violation of Neb. Rev. Stat. §§ 28-311.03 and
28-311.04(2)(a) (Reissue 2008), a Class IV felony. Count II
charged him with terroristic threats, in violation of Neb.
Rev. Stat. § 28-311.01(1)(a) (Reissue 2008), a Class IV
felony. Count III, habitual criminal, described that Haynes
has twice been convicted of a crime, sentenced, and committed
to prison for terms of not less than 1 year each and, thus,
"is a Habitual Criminal as described in Neb. Rev. Stat.
same time, under case No. CR14-1202, Haynes was charged with
two counts. Under count I, he was charged with tampering with
a witness, in violation of Neb. Rev. Stat. § 28-919(1)
(Reissue 2008), a Class IV felony. Count II, habitual
criminal, described that Haynes has twice been convicted of a
crime, sentenced, and committed to prison for terms of not
less than 1 year each and, thus, "is a Habitual Criminal
as described in Neb. Rev. Stat. §29-2221."
other case numbers, Haynes was charged with possession of a
controlled substance, witness tampering, and identity theft.
Neb. 253] 2. Pleas
entered into a plea agreement with the State. In case No.
CR14-701, Haynes pled no contest to the charges of count I,
stalking, second offense, and count II, terroristic threats.
In case No. CR14-1202, Haynes pled no contest to count I,
tampering with a witness.
pleas were negotiated in exchange for dismissal of the other
charges, under different case numbers, of possession of a
controlled substance, witness tampering, and identity theft.
The State also agreed not to file any further charges based
on Haynes' conduct up to the date of the pleas. The State
had apparently been preparing to charge Haynes with 16
additional misdemeanor counts.
Haynes pled to the charges, the State entered into evidence a
psychiatric report demonstrating that Haynes was competent
and the court specifically found Haynes competent to stand
court considered cases Nos. CR14-701 and CR14-1202 together
during the plea colloquy, as well as during the enhancement
and sentencing hearing.
the plea colloquy, the court confirmed with Haynes that he
understood the nature of the charges, the terms of the plea
agreement, the sentencing range for the crimes, and the
possible habitual criminal enhancement. The court explained
that the charges of terroristic threats and tampering with a
witness were subject to habitual criminal enhancement, while
the charge of stalking, second offense, was not.
affirmed that his pleas were freely and voluntarily made.
Haynes stated that he had been given enough time to discuss
the case with his counsel and that he was satisfied with
factual basis for the pleas, the State provided that it would
have adduced evidence that on or about January 22 through
February 12, 2014, Haynes harassed and threatened the victim,
his ex-girlfriend, after she broke off their relationship and
moved in with her mother. Haynes continued to call, drive by
the victim's house, and send text messages, even after
[299 Neb. 254] a protection order was in place. Some messages
were sent to the victim's mother, advising her to keep
the victim away from the "back windows, " because
"he attempted to get his boys to chill, " but
"the call was already made." On one occasion, the
victim and her mother witnessed Haynes drive by and point his
fingers out the window as if they were a gun. On another
occasion, the victim and her mother witnessed Haynes drive by
and yell, "[H]ey bitch, I'm coming back. This house
is going to get shot up tonight." During the same time
period, Haynes filled out change of address forms for the
victim without her consent, pretended to be the victim in
order to have her cable turned off, and sent "jitney
cabs" to the victim's house during all hours of the
being jailed on the charges, Haynes made approximately 44
calls to the victim, using another inmate's telephone
number. During the conversations, Haynes asked the victim not
to go to court. Haynes also sent letters through other
inmates to contacts on the outside, asking them to tell the
victim to stop talking to law enforcement and prosecutors.
court found that Haynes' pleas of no contest were entered
freely, knowingly, intelligently, and voluntarily. Haynes was
adjudged guilty of the charges of stalking, terroristic
threats, and tampering with a witness.
purposes of habitual criminal enhancement, the State entered
into evidence prior convictions, and the court found the
prior convictions valid and supporting enhancement. The
presentence investigation report (PSI) indicated an extensive
criminal history, including convictions for assault,
terroristic threats, stalking, harassment by telephone,
intimidation by telephone, and violations of protection
orders. The victims were past girlfriends and an ex-wife. The
PSI reflects that Haynes has been arrested 23 times for
crimes of domestic violence and has had 16 protection orders
filed against him by 14 different people in the last 18
years. Attached to the PSI were several victim impact
statements related to prior convictions.
Neb. 255] Defense counsel asked the court to order a new PSI
on the grounds that the officer who prepared the PSI was
biased against Haynes. Counsel explained that the
investigator had been Haynes' probation officer in 1999
and had prepared a PSI in another case in 2009. Counsel
suggested that someone else would be able to "give a
more independent evaluation.'' The court denied the
motion, noting that although the report demonstrated
familiarity with Haynes, it was mostly a factual recitation
of past and present charges.
State argued at the sentencing hearing that the court should
consider Haynes' past convictions and the domestic abuse
and stalking of former girlfriends and his ex-wife.
district court observed that Haynes had an extensive criminal
history and was "one of the worst" domestic
violence offenders the court had ever seen. The court stated
that it had reached this conclusion based on the factual
statements in the PSI and the victim statements, not on any
commentary in the PSI reflecting the investigator's
personal familiarity with Haynes.
No. CR14-701, the court sentenced Haynes to concurrent
sentences of 12 to 24 years' imprisonment, with 289
days' credit for time served. In case No. CR14-1202, the
court sentenced Haynes to 12 to 24 years' imprisonment,
to be served consecutively to the sentences in case No.
filed a direct appeal, represented by the same defense
counsel as at the trial stage. He asserted on appeal that the
sentences were excessive.
Nebraska Court of Appeals, in a memorandum opinion, found
that the sentences were not excessive. However, it
vacated and remanded that portion of the sentence in case No.
CR14-701 that imposed habitual criminal enhancement on the
charge of stalking, second offense. The court noted [299 Neb.
256] that because the sentences were concurrent, the error
was for all practical purposes harmless, but nevertheless
needed to be corrected.
Motion for Postconviction Relief
Haynes, representing himself pro se, filed a motion for
postconviction relief. Haynes asserted 12 acts of ineffective
assistance of counsel. He generally alleged that but for
these acts of ineffective assistance of counsel, he would
have insisted on going to trial.
Haynes alleged that counsel was deficient for failing to
discuss, apprise, or review "any of the discovery turned
over by the state." Second, Haynes alleged counsel
failed to investigate, interview, or depose other
"witnesses, " who would have testified that his
relationship with the victim was "wholesome" and
"not the negative transgression or aggression the state
and police officials deploy." Third, Haynes alleged that
counsel should have driven by the victim's residence to
obtain more "detailing descriptive streets."
Fourth, Haynes alleged that counsel was deficient in failing
to locate, interview, or depose the victim, who would have
given "a very different version of events that [sic]
what the state produced" and "would have testified
that the charges lodged against [Haynes] were unfounded, and
concocted by her mother."
Haynes alleged that there were several questions that he
asked counsel, which he listed, to "formulate a
defense" in Haynes' favor. Sixth, Haynes alleged
that counsel was ineffective by "failing to apprise
[Haynes] of the nature of the charges lodged against him; the
consequences of the charges [Haynes] was said to had [sic]
committed; and a reasonable explanation as to whether or not
he should proceed to trial on those charges." Seventh,
Haynes asserted that counsel should have challenged law
enforcement's warrantless seizure of his outgoing mail
while in jail and use of that mail to contact recipients and
discourage their continued communication with him.
Neb. 257] Eighth, Haynes alleged that 7 months of
"solitary confinement, " and its restrictions,
particularly telephone restrictions, limited his ability to
contact counsel and thereby "impeded [Haynes']
participation in his case, " allegedly denying him due
process. The restrictions also limited his access to outside
sources who could have allegedly helped him "prepare and
help counsel's [sic] with a propper [sic] defense"
and rendered it "impossible for [Haynes] to obtain
information that would have undermined the states [sic] case
via the charges." He asserted that counsel was
ineffective for failing to challenge these restrictions.
Haynes also generally asserted that the restrictive
confinement rendered his plea involuntary.
Haynes alleged under the heading "Failure to Investigate
and Prepare Defense" that the county attorney met with
the victim before charges were filed. Tenth, Haynes asserted
that counsel was deficient in failing to assert on direct
appeal that the presentence investigator was biased against
him. Eleventh, Haynes asserted that counsel should have
raised on appeal the allegation that his plea was not
supported by an adequate factual basis.
Haynes alleged counsel was ineffective for failing to raise
as error on direct appeal the habitual criminal count in case
No. CR14-701. Haynes theorized, without citation to any
relevant authority, that all charges under the same
information must be subject to habitual criminal enhancement
in order for the habitual criminal statute to legally apply
to the case.
also made several allegations of "plain error" that
did not appear to relate to an ineffective ...