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: 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
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.
Postconviction. Postconviction relief is a
very narrow category of relief.
Postconviction: Proof. 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
___.In the absence of alleged facts that would render a
judgment void or voidable, the proper course is to overrule a
motion for postconviction relief without an evidentiary
Postconviction: Appeal and
Error. A motion for postconviction relief cannot be used to
secure review of issues which were or could have been
litigated on direct appeal.
___. [301 Neb. 561] Plain error cannot be asserted in a
postconviction proceeding to raise claims of error by the
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 both at trial and on direct appeal by the same
lawyer, the defendant's first opportunity to assert
ineffective assistance of counsel is in a motion for
___: ___: ___. To establish a right to postconviction relief
because of counsel's ineffective assistance, the
defendant has the burden, in accordance with Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), 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, and then the defendant must show that counsel's
deficient performance prejudiced the defense in his or her
Effectiveness of Counsel: Proof. To
establish the prejudice prong of a claim of ineffective
assistance of counsel, the defendant must demonstrate a
reasonable probability that but for counsel's deficient
performance, the result of the proceeding would have been
Trial: Polygraph Tests. The results of
polygraph examinations are not admissible into evidence.
Postconviction. An evidentiary hearing is
not required when a motion for postconviction relief alleges
only conclusions of fact or law without supporting facts.
from the District Court for Douglas County: W. Mark Ashford,
Allen, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Allen appeals from the denial of postconviction relief
without an evidentiary hearing. Allen asserts that he was
denied a fair trial, that he was prejudiced by ineffective
assistance of counsel at trial and on direct appeal, and that
he was [301 Neb. 562] entitled to a hearing based on newly
discovered evidence. We determine that Allen's
postconviction motion fails to state a claim for relief.
Thus, we affirm the district court's denial of
postconviction relief without an evidentiary hearing.
appeal follows our decision on Allen's direct appeal in
State v. Allen,  which affirmed Allen's jury trial
convictions of first degree murder and use of a firearm to
commit a felony in the shooting of an Omaha, Nebraska, police
officer, James B. "Jimmy" Wilson, Jr. The district
court for Douglas County sentenced Allen to life imprisonment
on the murder conviction and 18 to 20 years' imprisonment
on the use of a firearm to commit a felony conviction, to be
served consecutively. We determined that all of Allen's
assigned errors on direct appeal were without merit. As we
will discuss, Allen's motion for postconviction relief
raises many of the same issues addressed on direct appeal.
August 20, 1995, at 8 p.m., Wilson radioed for a license
plate check on a brown Chevrolet van and was informed that
the plate was expired and was assigned to a blue Mazda.
Wilson radioed that he would stop the van and began to radio
the location of the stop but never completed his
communication. Police officers in the area reported hearing
multiple gunshots. Officers responded to an "officer
needs assistance" call and discovered Wilson's
police cruiser at 40th and Blondo Streets. The cruiser had
been hit by 11 rounds of gunfire. Wilson was shot four times;
three times in the head. He was found deceased with his
seatbelt still on and the radio microphone still in his hand.
time, Allen was a member of the "South Family
Bloods" gang and had the street nickname
"Dumb." On August [301 Neb. 563] 20, 1995, members
of the gang, including Allen, were driving around Omaha in a
brown and tan Chevrolet van. Allen was driving the van
earlier in the afternoon and stopped at a convenience store
to purchase gasoline. Dion Harris later replaced Allen as the
driver and drove for the remainder of the day.
drove to his mother's house, and Tavias Minor went inside
and returned with a bag containing a rifle with a
banana-shaped ammunition clip. The group then headed to North
Omaha and stopped for gas at another convenience store at
approximately 7:35 p.m. When they left the store, Harris was
sitting in the driver's seat, Ronney Perry was sitting in
the passenger's seat, Minor was seated behind the driver,
and Allen was seated in the back next to the sliding door.
thereafter, Wilson activated his police cruiser's
overhead lights and pulled over the van. Three eyewitnesses-
LaKeisha Lucas, LaTasha Lucas, and Stephanie Bean-told police
that they saw one gunman exit the van through the sliding
door and shoot Wilson. The murder weapon was never recovered,
but police determined that the weapon that killed Wilson was
a semiautomatic rifle. Witnesses provided inconsistent
renditions of the facts during the postshooting
investigation, which we summarize below as relevant to
Allen's postconviction appeal.
tracked the van to a housing community in South Omaha and
conducted door-to-door interviews and searches. Otis Simmons,
Perry, Harris, Minor, and the owner of the van were contacted
by the police and taken to the police station for additional
questioning. Simmons initially stated that he was at the
movies at the time of the shooting, but then stated that he,
Perry, Harris, Minor, Allen, and Quincy Hughes all
participated in the shooting and that Allen was the shooter.
Perry stated that Simmons, Harris, and Minor were at the
scene, that Hughes and Allen jumped out of the van, and that
Allen was the shooter.
Neb. 564] Police executed a search warrant on Hughes'
home and arrested Hughes and seized some rap lyrics he had
written. Hughes provided a detailed alibi. Eyewitnesses Bean.
LaKeisha Lucas, and Tyran McCleton identified Hughes out of a
lineup as the shooter. LaTasha Lucas stated that Hughes
closely resembled the shooter. Simmons and Perry changed
their stories and claimed that Hughes was the shooter, not
Allen. Prosecutors outlined this evidence at a preliminary
hearing to establish probable cause that Hughes was the
months later, Simmons and Perry both recanted their
statements that Hughes was the shooter after being given
polygraph examinations. The results indicated that Simmons
and Perry were deceptive when they denied that Hughes was the
shooter. Simmons went back to his original statement that he
was at the movies. Perry reverted to his earlier statement
that Allen was the shooter. The State reopened the
investigation and conducted further interviews of alibi
witnesses. In exchange for time served, Minor agreed to
testify that Allen shot Wilson and that Simmons and Hughes
were not at the scene. Minor sat for a deposition conducted
by Allen's counsel.
State dismissed charges against Hughes without prejudice and
filed charges against Allen. At trial, Perry testified that
Allen was the shooter. The following exchange occurred during
direct examination of Perry:
"Q. Okay. And after [Harris] pulled over, did anybody
"A. [Perry]: [Allen] said he ain't going back to
"Q. Okay. What happened then?
"A. He got out and started shooting.
"Q. Who did?
"Q. Kevin Allen?