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State v. Martinez

Supreme Court of Nebraska

March 15, 2019

State of Nebraska, appellee,
v.
Larry G. Martinez, 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. 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.

         3. Effectiveness of Counsel: 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.

         4. 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.

         5. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, [302 Neb. 527] 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.

         6. ___: ___:___.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.

         7. 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.

         8. 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.

         9. Confessions: Police Officers and Sheriffs. Coercive police activity is a necessary predicate to a finding that a confession is not voluntary.

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

         11. Homicide: Intent: Proof: Words and Phrases. The deliberation element of first degree murder means not suddenly or rashly, and requires the State to prove that the defendant considered the probable consequences of his act before committing it.

         12. Homicide: Intent: Time: Proof. The premeditation element of first degree murder requires the State to prove that a defendant formed the intent to kill a victim before doing so, but no particular length of time for premeditation is required.

         13. Criminal Law: Intent: Time: Proof. A defendant may, with appropriate evidence, try to defeat a charge by proving that at the time the offense occurred, the defendant lacked the ability to intend the voluntary and probable consequences of his or her act.

          Appeal from the District Court for Cheyenne County: Derek C. Weimer, Judge. Affirmed.

          Jerrod P. Jaeger for appellant.

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

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

         [302 Neb. 528] Papik, J.

         Larry G. Martinez was convicted by a jury of first degree murder and use of a firearm to commit a felony. We affirmed his convictions and sentences on direct appeal. SeeState v. Martinez,295 Neb. 1, 886 N.W.2d 256 (2016). Martinez filed a motion for postconviction relief, which was denied without an evidentiary hearing. Martinez appeals the ...


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