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.
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.
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
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, [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.
___: ___:___.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.
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.
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.
Confessions: Police Officers and Sheriffs.
Coercive police activity is a necessary predicate to a
finding that a confession is not voluntary.
Effectiveness of Counsel. Defense counsel is
not ineffective for failing to raise an argument that has no
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.
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.
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.
from the District Court for Cheyenne County: Derek C. Weimer,
P. Jaeger for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Neb. 528] Papik, J.
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 ...