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State v. Taylor

Supreme Court of Nebraska

July 27, 2018

State of Nebraska, appellee,
v.
Trevelle J. Taylor, appellant.

         1. 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.

         2. 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.

         3. 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 voidable.

         4. 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 voidable.

         5. ___: ___:___.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.

         6. 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.

         7. 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]

         8. 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.

         9. 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 were reasonable.

         10. 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 court's determination.

         11. 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.

         12. Trial: Prosecuting Attorneys: Juries. A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.

         13. 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.

         14. 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 the defendant.

         15. 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 indigent defendant.

          Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed.

          Trevelle J. Taylor, pro se.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Johnson, District Judge.

          MILLER-LERMAN, JUDGE

         NATURE OF CASE

         Trevelle 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.

         STATEMENT OF FACTS

         Taylor 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 felony.

         Taylor 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 ...


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