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State v. Allen

Supreme Court of Nebraska

November 16, 2018

State of Nebraska, appellee,
v.
Kevin Allen, 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. Postconviction. Postconviction relief is a very narrow category of relief.

         5. 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 relief

         6. ___: ___.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 hearing.

         7. 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.

         8. ___: ___. [301 Neb. 561] Plain error cannot be asserted in a postconviction proceeding to raise claims of error by the trial court.

         9. 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 postconviction relief.

         10. ___: ___: ___. 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 case.

         11. 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 different.

         12. Trial: Polygraph Tests. The results of polygraph examinations are not admissible into evidence.

         13. Postconviction. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclusions of fact or law without supporting facts.

          Appeal from the District Court for Douglas County: W. Mark Ashford, Judge.

          Kevin Allen, pro se.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

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

          FUNKE, J.

         Kevin 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.

         BACKGROUND

         This appeal follows our decision on Allen's direct appeal in State v. Allen, [1] 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.

         Shooting

         On 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.

         At the 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.

         Harris 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.

         Shortly 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.

         Postshooting Chronology

         Police 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.

         [301 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 shooter.

         Two 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.

         Trial

         The 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 say anything?
"A. [Perry]: [Allen] said he ain't going back to jail.
"Q. Okay. What happened then?
"A. He got out and started shooting.
"Q. Who did?
"A. Kevin.
"Q. Kevin Allen?
"A. Yeah. ...

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