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 factual
findings unless they are clearly erroneous.
Postconviction: Appeal and Error. Whether a
claim raised in a postconviction proceeding is procedurally
barred is a question of law. When reviewing a question of
law, an appellate court resolves the question independently
of the lower court's conclusion.
Effectiveness of Counsel. A claim that
defense counsel provided ineffective assistance presents a
mixed question of law and fact.
Effectiveness of Counsel: Appeal and Error.
When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower
court for clear error. With regard to 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 conclusion.
___. When a defendant's trial counsel is different from
his or her appellate counsel, all issues of ineffective
assistance of trial counsel that are known to the defendant
or are apparent from the record must be raised on direct
appeal. If the issues are not raised, they are procedurally
Appeal and Error. An alleged error must be
both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
Effectiveness of Counsel: Proof: Appeal and
Error. To prevail on a claim of ineffective
assistance of counsel under Strickland v. [299 Neb.
763] Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), the defendant must show that his or her
counsel's performance was deficient and that this
deficient performance actually prejudiced the defendant's
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 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).
Trial: Attorneys at Law. Trial counsel is
afforded due deference to formulate trial strategy and
Trial: Effectiveness of Counsel: Presumptions: Appeal
and Error. In determining whether trial
counsel's performance was deficient, there is a strong
presumption that counsel acted reasonably.
Rules of Evidence. Under Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
from the District Court for Douglas County: J Russell Derr,
Michael Bianchi for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Miller-Lerman, Stacy, and Funke, JJ., and
Colborn and Samson, District Judges.
COLBORN, DISTRICT JUDGE.
A. McGuire appeals from the denial of his motion for
postconviction relief following an evidentiary hearing. He
claims the district court erred in failing to find that his
trial and appellate counsel were ineffective and in failing
to make rulings on certain claims raised in his
postconviction motion. He also claims his postconviction
counsel provided ineffective assistance at the evidentiary
hearing. For the reasons set forth below, we affirm the
judgment of the district court.
Neb. 764] BACKGROUND
a jury trial, McGuire was found guilty of second degree
murder under a theory of aiding and abetting, use of a deadly
weapon to commit a felony, and criminal conspiracy to
unlawfully possess and deliver a controlled substance. The
convictions were based on his involvement with a cocaine
exchange that resulted in the murder of Cesar
Sanchez-Gonzales (Sanchez) by Robert Nave. McGuire is
currently serving a combined sentence of 105 to 125 years in
October 22, 2010, a law enforcement task force was conducting
surveillance on an expected drug deal at an automobile repair
shop (auto shop) in South Omaha, Nebraska. The auto shop was
run by Sanchez, who was an informant for the task force. The
supplier, Cesar Ayala-Martinez, had agreed to sell
VA kilograms of cocaine to Sanchez in exchange for
$40, 500. Sanchez was then going to sell the cocaine to
McGuire. McGuire had purchased cocaine from Sanchez in a
similar manner a few weeks prior to this date.
evidence showed that McGuire arrived at the auto shop driving
a white Chrysler Sebring and was seen conversing with the
occupants of a white Nissan. Abdul Vann, Kim Thomas, and Nave
were also present outside the auto shop. Sometime after
McGuire entered the auto shop, a member of the task force
observed Nave put his hood over his head, pull a handgun from
his waistband, and proceed into the auto shop. As soon as
Nave entered, McGuire almost instantaneously exited.
testified that within seconds of McGuire's exiting, Nave
entered the office with his gun drawn. Sanchez pulled a
revolver out of his desk drawer and was attempting to open
the chamber. Before Sanchez could raise his weapon, Nave shot
Sanchez two or three times. Nave then pointed the gun at
Ayala-Martinez and asked for the cocaine. Ayala-Martinez
pointed to the cocaine, and Nave ran out with [299 Neb. 765]
it. Sanchez later died due to the gunshot wounds inflicted by
task force observed Nave and Thomas running from the
building. They both ran straight to the Sebring, where
McGuire was waiting in the driver's seat. McGuire sped
off at a high rate of speed. Members of the task force
pursued the vehicle, which crashed head on into a pickup
truck shortly thereafter. After a short foot pursuit, all
three occupants of the Sebring were apprehended.
search of McGuire revealed a roll of cash with $20 and $50
bills on the outside and regular paper on the inside, making
the cash roll appear to contain a larger amount of cash.
Officers also found the keys to the Sebring, an electronic
ignition key for a Nissan, and approximately $3, 800 in cash.
search of the white Nissan revealed a yellow sporting goods
store bag containing a box of "CO" ammunition with
10 rounds missing, a pair of black gloves, and packaging
material for black duct tape. On the driver's side of the
Sebring, 10 live rounds of ammunition were found, marked
"9mm CCI Luger." Inside the Sebring, officers
located black duct tape consistent with the packaging found
in the Nissan.
also found four handguns inside the Sebring, including a
Smith & Wesson 9-mm pistol. We note that our opinion on
direct appeal incorrectly stated that the handguns were
found in the Nissan. The record reflects that they were found
in the Sebring. A firearms expert testified that the bullet
recovered from Sanchez' body was fired from the 9-mm
Smith & ...