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.
An appellate court reviews the failure of the district court
to provide court-appointed counsel in a postconviction
proceeding for an abuse of discretion.
Postconviction: Constitutional Law: Judgments.
Postconviction relief is available to a prisoner in custody
under sentence who seeks to be released on the ground that
there was a denial or infringement of his or her
constitutional rights such that the judgment was void or
Postconviction: Constitutional Law: Proof. In a
motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of
his or her rights under the U.S. or Nebraska Constitution,
causing the judgment against the defendant to be void or
___: ___:___.A court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant's rights under the Nebraska
or federal Constitution.
Postconviction: Proof. If a postconviction motion
alleges only conclusions of fact or law, or if the records
and files in the case affirmatively show that the defendant
is entitled to no relief, the court is not required to grant
an evidentiary hearing.
Constitutional Law: Effectiveness of Counsel. A
proper ineffective assistance of counsel claim alleges a
violation of the fundamental constitutional right to a fair
trial. [300 Neb. 630]
Effectiveness of Counsel: Proof: Words and Phrases:
Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v.
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 defense. To show
prejudice under the prejudice component of the
Strickland test, the defendant must demonstrate a
reasonable probability that but for his or her counsel's
deficient 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.
Effectiveness of Counsel: Presumptions: Proof. The
two prongs of the ineffective assistance of counsel test
under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either
order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel's actions
Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court's
ruling on a motion to suppress based on a claimed violation
of the Fourth Amendment, an appellate court applies a
two-part standard of review. Regarding historical facts, an
appellate court reviews the trial court's findings for
clear error, but whether those facts trigger or violate
Fourth Amendment protection is a question of law that an
appellate court reviews independently of the trial
Trial: Effectiveness of Counsel: Prosecuting Attorneys:
Appeal and Error. Determining whether defense
counsel was ineffective in failing to object to prosecutorial
misconduct requires an appellate court to first determine
whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
Trial: Prosecuting Attorneys: Juries. A
prosecutor's conduct that does not mislead and unduly
influence the jury does not constitute misconduct.
Trial: Prosecuting Attorneys. A prosecutor
is entitled to draw inferences from the evidence in
presenting his or her case, and such inferences generally do
not amount to prosecutorial misconduct.
Postconviction: Right to Counsel. Under the Nebraska
Postconviction Act, it is within the discretion of the trial
court as to whether counsel shall be appointed to represent
Postconviction: Justiciable Issues: Right to Counsel: Appeal
and Error. Where the assigned errors in the
postconviction petition before the district court are either
procedurally barred or without merit, thus [300 Neb. 631]
establishing that the postconviction proceeding contained no
justiciable issue of law or fact, it is not an abuse of
discretion to fail to appoint appellate counsel for an
from the District Court for Douglas County: Marlon A. Polk,
Trevelle J. Taylor, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
J. Taylor was convicted of first degree murder and use of a
deadly weapon to commit a felony. In this postconviction
action, he claimed that he received ineffective assistance of
counsel. In a written order, the district court for Douglas
County overruled Taylor's postconviction motion without
an evidentiary hearing and without appointing counsel. Taylor
appeals. We affirm the district court's order.
was originally convicted of first degree murder and use of a
weapon to commit a felony in 2010, but his convictions were
reversed on direct appeal because of an erroneous jury
instruction. See State v. Taylor, 282 Neb. 297, 803
N.W.2d 746 (2011) (Taylor T). After a new trial on
remand, Taylor was again convicted of both charges. We
affirmed the convictions on appeal; we also affirmed the
sentence of imprisonment for 10 to 10 years for use of a
weapon to commit a felony, but because Taylor was under 18
years of age at the time of the offense, we vacated the
sentence of life imprisonment for first degree murder and
remanded the cause for resentencing as to that conviction.
See State v. Taylor, 287 Neb. 386, 842 N.W.2d 771
(2014) (Taylor II). Taylor was resentenced on
February 5, [300 Neb. 632] 2016, to imprisonment for 40 to 40
years for first degree murder, with the sentence to run
consecutively to his sentence for use of a weapon to commit a
was charged and convicted of fatally shooting Justin Gaines
outside Gaines' residence on September 19, 2009. The
facts related to the charges in this case are set forth in
greater detail in Taylor I and Taylor II,
but certain facts are set forth ...