layered claim in Nebraska

2026When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel, known as a layered claim of ineffective assistance of counsel, an appellate court will look at whether trial counsel was ineffective under the Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2026When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel, known as a layered claim of ineffective assistance of counsel, an appellate court will look at whether trial counsel was ineffective under the Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2021With the exception of the alibi defense, these allegations were stated in the motion for postconviction relief directly against trial counsel only and were not presented as a layered claim against appellate counsel for failing to assert the ineffectiveness of trial counsel. [8,9] A motion for postconviction relief asserting ineffec- tive assistance of trial counsel is procedurally barred where a defend­ant was represented by a different attorney on direct 9 Id. 10 See, State v. Parnell, 305 Neb. 932 , 943 N.W.2d 678 (2020); State v. Allen, 301 Neb. 560 , 919 N.W.2d 500 (2018). - 294 - Nebraska

2021With the exception of the alibi defense, these allegations were stated in the motion for postconviction relief directly against trial counsel only and were not presented as a layered claim against appellate counsel for failing to assert the ineffectiveness of trial counsel. [8,9] A motion for postconviction relief asserting ineffec- tive assistance of trial counsel is procedurally barred where a defend­ant was represented by a different attorney on direct 9 Id. 10 See, State v. Parnell, 305 Neb. 932 , 943 N.W.2d 678 (2020); State v. Allen, 301 Neb. 560 , 919 N.W.2d 500 (2018). - 294 - Nebraska

2025State v. Betancourt-Garcia, 317 Neb. 174 , 9 N.W.3d 426 (2024).

2025When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on direct appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will first look at whether trial counsel was ineffective under the test in Strickland v. Washington, supra. State v. Betancourt-Garcia, 317 Neb. 174 , 9 N.W.3d 426 (2024).

2026These challenges focused on the manslaughter, aid- ing and abetting, and kidnapping instructions and revolved around arguments that the jury (1) was permitted to find German guilty under an aiding and abetting theory without the necessary intent and (2) was not required to determine 2 State v. Ramsay, 257 Neb. 430 , 598 N.W.2d 51 (1999). - 661 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports STATE v. GERMAN Cite as 321 Neb. 652 whether German liberated Swanson alive in a safe place with- out her having suffered serious bodily injury. (i) Direct Appeal a.

2026These challenges focused on the manslaughter, aid- ing and abetting, and kidnapping instructions and revolved around arguments that the jury (1) was permitted to find German guilty under an aiding and abetting theory without the necessary intent and (2) was not required to determine 2 State v. Ramsay, 257 Neb. 430 , 598 N.W.2d 51 (1999). - 661 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports STATE v. GERMAN Cite as 321 Neb. 652 whether German liberated Swanson alive in a safe place with- out her having suffered serious bodily injury. (i) Direct Appeal a.

2026These challenges focused on the manslaughter, aid- ing and abetting, and kidnapping instructions and revolved around arguments that the jury (1) was permitted to find German guilty under an aiding and abetting theory without the necessary intent and (2) was not required to determine 2 State v. Ramsay, 257 Neb. 430 , 598 N.W.2d 51 (1999). - 661 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports STATE v. GERMAN Cite as 321 Neb. 652 whether German liberated Swanson alive in a safe place with- out her having suffered serious bodily injury. (i) Direct Appeal a.

2026The court alternatively reasoned that the record and files affirmatively show German is entitled to no relief, not- ing that German had ignored the jury selection “in which race, [German’s] family and the small community were con- sistent themes for the jurors,” as well as “the instruction that the jurors are to not allow sympathy or prejudice to influence their verdict[s].” (c) Advice on Waiving Right to Testify Lastly, as relates to claims attempted on direct appeal, German alleged in his postconviction motion a layered claim - 666 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports

2021With the exception of the alibi defense, these allegations were stated in the motion for postconviction relief directly against trial counsel only and were not presented as a layered claim against appellate counsel for failing to assert the ineffectiveness of trial counsel. [8,9] A motion for postconviction relief asserting ineffec- tive assistance of trial counsel is procedurally barred where a defend­ant was represented by a different attorney on direct 9 Id. 10 See, State v. Parnell, 305 Neb. 932 , 943 N.W.2d 678 (2020); State v. Allen, 301 Neb. 560 , 919 N.W.2d 500 (2018). - 294 - Nebraska

2018McGuire argues that if appellate counsel had raised trial counsel’s ineffectiveness in this regard, McGuire would have received a new trial on direct appeal. [7] To prevail on a claim of ineffective assistance of coun- sel under Strickland v. Washington,15 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defend­ ant’s defense.16 [8] When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of inef

2018When a claim of inef- fective assistance of appellate counsel is based on the failure to raise - 885 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports STATE v. FOSTER Cite as 300 Neb. 883 a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the two-part test for inef- fectiveness established in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2016App. 836 , 834 N.W.2d 258 (2013). 46 State v. Marks, 286 Neb. 166 , 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb. 558 , 787 N.W.2d 700 (2010). - 958 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY Cite as 294 Neb. 937 (j) Insanity Defense Dubray asserts a layered claim based on trial counsel’s failure to investigate and assert an insanity defense.

2016App. 836 , 834 N.W.2d 258 (2013). 46 State v. Marks, 286 Neb. 166 , 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb. 558 , 787 N.W.2d 700 (2010). - 958 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY Cite as 294 Neb. 937 (j) Insanity Defense Dubray asserts a layered claim based on trial counsel’s failure to investigate and assert an insanity defense.

2016App. 836 , 834 N.W.2d 258 (2013). 46 State v. Marks, 286 Neb. 166 , 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb. 558 , 787 N.W.2d 700 (2010). - 958 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY Cite as 294 Neb. 937 (j) Insanity Defense Dubray asserts a layered claim based on trial counsel’s failure to investigate and assert an insanity defense.

2016The petition does not set forth any basis upon which these motions would be granted other than the conclusory statement that “the judge erroneously instructed [the] jury.” Mere conclusions of fact or law are not sufficient to entitle a petitioner to an evidentiary hearing in a postconviction action.43 Dubray has not made sufficient allegations to show 41 State v. Grant, 293 Neb. 163 , 876 N.W.2d 639 (2016). 42 State v. Hessler, 282 Neb. 935 , 807 N.W.2d 504 (2011). 43 See State v. Abdulkadir, supra note 13 . - 956 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY C

2016The petition does not set forth any basis upon which these motions would be granted other than the conclusory statement that “the judge erroneously instructed [the] jury.” Mere conclusions of fact or law are not sufficient to entitle a petitioner to an evidentiary hearing in a postconviction action.43 Dubray has not made sufficient allegations to show 41 State v. Grant, 293 Neb. 163 , 876 N.W.2d 639 (2016). 42 State v. Hessler, 282 Neb. 935 , 807 N.W.2d 504 (2011). 43 See State v. Abdulkadir, supra note 13 . - 956 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY C

2016The district court correctly rejected this claim. (h) Meaningful Adversarial Testing [30] Dubray presents a layered claim of ineffective counsel based on the claim that his trial counsel did not put the pros- ecution’s case to “meaningful adversarial testing.” In cases where counsel completely fails to submit the State’s case to meaningful adversarial testing, prejudice to the defendant will be presumed.44 But when the record shows that the State’s witnesses were thoroughly cross-examined consistent with the 44 State v. Davlin, 265 Neb. 386 , 658 N.W.2d 1 (2003). - 957 - Nebraska Supreme Court

2016App. 836 , 834 N.W.2d 258 (2013). 46 State v. Marks, 286 Neb. 166 , 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb. 558 , 787 N.W.2d 700 (2010). - 958 - Nebraska Supreme Court A dvance Sheets 294 Nebraska R eports STATE v. DUBRAY Cite as 294 Neb. 937 (j) Insanity Defense Dubray asserts a layered claim based on trial counsel’s failure to investigate and assert an insanity defense.

2016The district court correctly rejected this claim. (h) Meaningful Adversarial Testing [30] Dubray presents a layered claim of ineffective counsel based on the claim that his trial counsel did not put the pros- ecution’s case to “meaningful adversarial testing.” In cases where counsel completely fails to submit the State’s case to meaningful adversarial testing, prejudice to the defendant will be presumed.44 But when the record shows that the State’s witnesses were thoroughly cross-examined consistent with the 44 State v. Davlin, 265 Neb. 386 , 658 N.W.2d 1 (2003). - 957 - Nebraska Supreme Court

2016The district court correctly rejected this claim. (h) Meaningful Adversarial Testing [30] Dubray presents a layered claim of ineffective counsel based on the claim that his trial counsel did not put the pros- ecution’s case to “meaningful adversarial testing.” In cases where counsel completely fails to submit the State’s case to meaningful adversarial testing, prejudice to the defendant will be presumed.44 But when the record shows that the State’s witnesses were thoroughly cross-examined consistent with the 44 State v. Davlin, 265 Neb. 386 , 658 N.W.2d 1 (2003). - 957 - Nebraska Supreme Court