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State v. Stricklin

Supreme Court of Nebraska

August 17, 2018

State of Nebraska, appellee,
v.
Derrick U.Stricklin, 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: 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.

         3. 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.

         4. ___: ___: ___. A trial 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.

         5. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

         6. ___: ___. In a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief.

         [300 Neb. 795] 7. Postconviction: Effectiveness of Counsel: Appeal and Error. Although a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, when a defendant was represented by the same lawyer both at trial and on direct appeal, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief.

         8. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

         9. Effectiveness of Counsel: Proof. 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.

         10. ___: ___. To show that counsel's performance was deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

         11. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To show prejudice under the prejudice component of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 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.

         12. Judges: Recusal. To demonstrate that a trial judge should have recused himself or herself, the moving party must demonstrate that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.

         13. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

         14. Effectiveness of Counsel. Defense counsel is not ineffective for failing to raise an argument that has no merit.

         15. Trial: Attorneys at Law: Presumptions. Trial counsel is afforded due deference to formulate trial strategy and tactics, and there is a strong presumption that counsel acted reasonably.

         16. Trial: Prosecuting Attorneys. Prosecutors generally may not give their personal opinions on the veracity of a witness or the guilt or innocence [300 Neb. 796] of the accused. The principle behind this rule is that the prosecutor's opinion carries with it the imprimatur of the government and may induce the jury to trust the government's judgment rather than its own view of the evidence.

         17. Postconviction: Effectiveness of Counsel: Proof. A petitioner's postconviction claims that his or her defense counsel was ineffective in failing to investigate possible defenses are too speculative to warrant relief if the petitioner fails to allege what exculpatory evidence the investigation would have procured and how it would have affected the outcome of the case.

         18. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

         19. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic decision to present particular evidence, or not to present particular evidence, will not, without more, sustain a finding of ineffective assistance of counsel. Strategic decisions made by trial counsel will not be second-guessed so long as those decisions are reasonable.

         20. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: Waiver. Defense counsel's advice to waive the right to testify can present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel's tactical advice to waive the right was unreasonable.

         21. Postconviction: Evidence: Presumptions: Proof. The threshold showing that must be made to entitle a prisoner to an evidentiary hearing on a postconviction claim of actual innocence is extraordinarily high, because after a fair trial and conviction, the presumption of innocence vanishes.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Stuart J. Dornan and Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Hall, District Judge.

          [300 Neb. 797] Stacy, J.

         A jury found Derrick U.Stricklin guilty of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, attempted intentional manslaughter, and possession of a deadly weapon by a prohibited person. He was sentenced to life imprisonment for the murders and to additional terms of years for the other offenses, the sentences to run consecutively. We affirmed his convictions and sentences on direct appeal.[1]

         Stricklin now moves for postconviction relief, raising claims of ineffective assistance of counsel and a claim of actual innocence. The district court denied relief without conducting an evidentiary hearing. Stricklin filed this timely appeal. We affirm in part, and in part reverse and remand for an evidentiary hearing.

         I. FACTS

         Stricklin's trial was consolidated with codefendant Terrell E. Newman. The underlying facts are set forth in our opinion in Stricklin's direct appeal.[2] Summarized, Stricklin's convictions arose from the shooting deaths of Carlos Morales and Bernardo Noriega during a drug transaction at an automobile body shop owned by Morales. Jose Herrera-Gutierrez was also present during the drug transaction and the shootings, and he was the State's primary witness at trial. Herrera-Gutierrez identified Stricklin and Newman as the shooters and testified that he recognized both men from prior visits to Morales' shop. He had seen Stricklin approximately four times at the shop, and he had seen Newman approximately three times at the shop.

         The State's theory of the case was that Stricklin and Newman committed the crimes together. Newman's cell phone records showed that Newman was in communication with both Morales and Stricklin on the day of the shootings, and also [300 Neb. 798] showed that Newman's cell phone was in the area of the murder scene during the relevant timeframe.[3]

         A jury found Stricklin guilty of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, attempted intentional manslaughter, and possession of a deadly weapon by a prohibited person. He was sentenced to consecutive sentences of life imprisonment for each murder conviction, 15 to 25 years' imprisonment for each use of a deadly weapon conviction, 20 months' to 5 years' imprisonment for the attempted manslaughter conviction, and 15 to 25 years' imprisonment for the possession of a deadly weapon conviction.[4] The district court denied his motion for new trial, and he filed a direct appeal.

         Stricklin was represented by the same counsel at trial and on direct appeal. In his direct appeal, Stricklin assigned the trial court erred in (1) denying his motion to sever, (2) excluding statements of a confidential informant, (3) limiting his cross-examination of Herrera-Gutierrez, (4) failing to include relevant language in certain jury instructions, (5) overruling his motion for new trial based on juror misconduct, and (6) overruling his motion to reopen the evidence. This court affirmed his convictions and sentences.[5]

         Stricklin then filed the instant motion for postconviction relief, along with a motion for appointment of counsel. His postconviction motion alleges counsel was ineffective for (1) not moving to recuse the trial judge; (2) failing to object to jury instructions Nos. 6, 11, 12, and 20; (3) failing to file notice of his alibi defense and present certain alibi evidence; (4) failing to object and move for a mistrial during closing arguments; (5) failing to raise a confrontation objection at a hearing on his motion for new trial; (6) abandoning, during the hearing on the motion for new trial, all arguments except juror misconduct; (7) failing to call a witness at the hearing [300 Neb. 799] on the motion for new trial; (8) failing to obtain a cnme scene investigator; (9) failing to object to cell phone record evidence on "authentication" grounds; (10) failing to depose and call certain identified witnesses and investigate certain defenses; (11) failing to file a motion in limine regarding the admissibility of testimony of a confidential informant; (12) unreasonably advising him to waive his right to testify; (13) failing to assign as error on direct appeal the insufficiency of the evidence to support his convictions and the improper identification of Stricklin as one of the perpetrators; and (14) failing to obtain a complete record for appeal. Finally, Stricklin alleges a claim of actual innocence. The district court denied the postconviction motion without conducting an evidentiary hearing. Stricklin filed this appeal.

         II. ASSIGNMENTS OF ERROR

         Stricklin assigns, restated, that the district court erred in (1) denying him an opportunity to amend his motion for postconviction relief, (2) denying him an evidentiary hearing on his motion for postconviction relief, (3) finding he did not meet the threshold for actual innocence, and (4) denying his motion for postconviction relief.

         III. STANDARD OF REVIEW

         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[6]

         IV. ANALYSIS

         1. General Propositions Governing Postconviction

         Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground [300 Neb. 800] that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.[7] 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.[8]

         A trial 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.[9] If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.[10] Thus, in a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief[11]

         Here, Stricklin was represented by the same counsel at trial and on appeal, and his postconviction motion alleges counsel provided ineffective assistance both at trial and on direct appeal. Although a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, when a defendant was represented by the same lawyer both at trial and on direct appeal, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief[12] [300 Neb. 801] Recognizing this, the district court addressed all of Stricklin's ineffective assistance of counsel claims.

         A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.[13] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, [14] the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.[15] To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.[16] 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.[17] 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.[18]

         2. Motion to Amend Postconviction Motion

         Stricklin assigns error to the district court's "denying [him] an opportunity to amend his motion for postconviction relief." We review the district court's decision in this regard for an abuse of discretion.[19]

         [300 Neb. 802] Approximately 4 months after filing his verified motion for postconviction relief, Stricklin filed a motion seeking "permission to Amend the Motion for Postconviction after the Court grants appointment of Counsel." Newman filed a similar motion in his postconviction proceeding. At a joint telephonic hearing on the motions, the court asked for clarification:

THE COURT: Okay. There was a motion filed by both . . . Newman and . . . Stricklin on August 17, 2016, which was a Request for Counsel and a Request to Amend the Postconviction Motion. I need to ask, and I'll start with you, Mr. Newman, are you asking to amend at this time?
MR. NEWMAN: Yes.
THE COURT: What are you asking to amend?
MR. NEWMAN: The motion for postconviction.
THE COURT: How are you asking for that to be amended?
MR. NEWMAN: By way of counsel.
THE COURT: Okay. So - what I want to make clear is, there was a motion asking for counsel, and then if counsel is appointed you want to keep open your ability to amend your Motion for Postconviction. Am I understanding that correctly?
MR. NEWMAN: Yes. Correct.
THE COURT: Okay. But you're not asking to amend here today?
MR. NEWMAN: No.
THE COURT: All right. And I'll ask you the same questions, Mr. Stricklin. Are you asking to amend your postconviction today?
MR. STRICKLIN: No.
THE COURT: Okay. Again, I'll just make it clear with Mr. Stricklin. So you're asking if the Court determines that an evidentiary hearing is warranted, then you're asking for Counsel to be appointed and then the ability to amend at that time; is that correct?
MR. STRICKLIN: Correct.
[300 Neb. 803] THE COURT: All right. So that matter will remain pending until the Court reviews - because I still have to review whether or not the evidentiary hearing will be granted, and then we can go from there.
MR. STRICKLIN: Okay.

         The record affirmatively shows Stricklin was not seeking leave to immediately amend his postconviction motion in order to add factual allegations or include additional claims.[20] Instead, he intended the motion to serve as a placeholder of sorts for a possible future motion to amend by appointed counsel. Given the conditional nature of Stricklin's request, we find no abuse of discretion in denying the motion.

         3. Failure to Seek Recusal of Trial Judge

         Stricklin's postconviction motion alleges his trial counsel was ineffective for not moving to recuse the trial judge and for abandoning an opportunity to have an evidentiary hearing on such a motion. Stricklin alleges that during his trial, "individuals and spectators in the audience" noticed "favoritism" and "deference favoring the state prosecution to the point of no return." Stricklin's postconviction motion alleges these concerns were brought to the attention of his counsel, and he claims counsel was ineffective for failing to pursue recusal based on these concerns. His motion does not explain what gave rise to these concerns nor does he allege any supporting facts.

         To demonstrate prejudice from counsel's failure to seek recusal, Stricklin must allege facts sufficient to demonstrate there was a reasonable probability such a motion would have been successful.[21] To demonstrate that a trial judge [300 Neb. 804] should have recused himself or herself, the moving party must demonstrate that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.[22] A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.[23]

         Here, Stricklin's conclusory allegations of "favoritism" and "deference favoring the state" were insufficient to overcome the presumption of judicial impartiality and, without more, would not have required recusal. Moreover, the record affirmatively shows that when instructing the jury, the court specifically admonished it regarding such issues, explaining:

I am not permitted to comment on the evidence, and I have not intentionally done so. If it appears to you that I have commented on the evidence, during either the trial or the giving of these instructions, you must disregard such comment entirely.
You must not interpret any of my statements, actions, or rulings, nor any of the inflections of my voice as reflecting an opinion as ...

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