ineffective assistance claim in Nebraska

2023State v. Weathers, 304 Neb. 402 , 935 N.W.2d 185 (2019).

2023State v. Weathers, 304 Neb. 402 , 935 N.W.2d 185 (2019).

2025Id.

2021State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019).

2018The two prongs of the ineffective assistance test under Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2018The two prongs of the ineffective assistance test under Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2025Decisions about whether to engage in cross-examination, and, if so, to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim. 29 The simple assertion that defense counsel could have 29 State v. Wood, 310 Neb. 391 , 966 N.W.2d 825 (2021). - 437 - Nebraska Supreme Court Advance Sheets 318 Nebraska Reports STATE V.

2025Decisions about whether to engage in cross-examination, and, if so, to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim. 29 The simple assertion that defense counsel could have 29 State v. Wood, 310 Neb. 391 , 966 N.W.2d 825 (2021). - 437 - Nebraska Supreme Court Advance Sheets 318 Nebraska Reports STATE V.

2023Id. at 798, 969 N.W.2d at 421, citing State v. Abdullah, 289 Neb. 123, 130 , 853 N.W.2d 858 , 865 (2014).

2020In numerous decisions, this court has determined that an allegation of ineffective assistance of trial counsel, asserted by new appellate counsel, was not stated with sufficient speci- ficity where it failed to allege the name of the witness who would have testified and the specific content of the witness’ - 458 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 proposed testimony. 1 This naturally followed from this court’s holding that an appellant must make specific allegations of the conduct that he or she claims constitutes deficient perform­

2025But the U.S. Supreme Court has explained, with regard to the prejudice prong in an ineffective assistance claim seeking a new direct appeal, that it is a “critical requirement that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.” State v. Russell, 308 Neb. 499, 507-08 , 954 N.W.2d 920, 928 (2021) (quoting Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L.

2025But the U.S. Supreme Court has explained, with regard to the prejudice prong in an ineffective assistance claim seeking a new direct appeal, that it is a “critical requirement that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.” State v. Russell, 308 Neb. 499, 507-08 , 954 N.W.2d 920, 928 (2021) (quoting Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L.

2022State v. Blaha, 303 Neb. 415 , 929 N.W.2d 494 (2019).

2019General allegations that trial counsel - 417 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. BLAHA Cite as 303 Neb. 415 performed deficiently or that trial counsel was ineffective are insuffi- cient to raise an ineffective assistance claim on direct appeal. 17.

2019Although we will not do so in the future, we have syn- thesized a specific assignment from the argument section of Mrza’s brief, which asserts that trial counsel was ineffective in 2 See State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). 3 See, e.g., State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019). 4 See State v. Dill, 300 Neb. 344 , 913 N.W.2d 470 (2018) (declining to scour record in search of facts that might support claim). - 936 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. MRZA Cite as 302 Neb. 931 failing to investigate the time between the assaul

2019Although we will not do so in the future, we have syn- thesized a specific assignment from the argument section of Mrza’s brief, which asserts that trial counsel was ineffective in 2 See State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). 3 See, e.g., State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019). 4 See State v. Dill, 300 Neb. 344 , 913 N.W.2d 470 (2018) (declining to scour record in search of facts that might support claim). - 936 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. MRZA Cite as 302 Neb. 931 failing to investigate the time between the assaul

2019Although we will not do so in the future, we have syn- thesized a specific assignment from the argument section of Mrza’s brief, which asserts that trial counsel was ineffective in 2 See State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). 3 See, e.g., State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019). 4 See State v. Dill, 300 Neb. 344 , 913 N.W.2d 470 (2018) (declining to scour record in search of facts that might support claim). - 936 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. MRZA Cite as 302 Neb. 931 failing to investigate the time between the assaul

2019Although we will not do so in the future, we have syn- thesized a specific assignment from the argument section of Mrza’s brief, which asserts that trial counsel was ineffective in 2 See State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). 3 See, e.g., State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019). 4 See State v. Dill, 300 Neb. 344 , 913 N.W.2d 470 (2018) (declining to scour record in search of facts that might support claim). - 936 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. MRZA Cite as 302 Neb. 931 failing to investigate the time between the assaul

2018Applying the applicable definitions and rejecting a broader interpretation of the relation-back doctrine, the Eighth Circuit in U.S. v. Hernandez, supra , determined that the amended ineffective assistance claim did not relate back to the original claim because the original claim referred to the admission of evidence, whereas the amended claim referred to trial testimony and cross-examination of witnesses.

2018Applying the applicable definitions and rejecting a broader interpretation of the relation‑back doctrine, the Eighth Circuit in U.S. v. Hernandez, supra, determined that the amended ineffective assistance claim did not relate back to the original claim because the original claim referred to the admission of evidence, whereas the amended claim referred to trial tes- timony and cross‑examination of witnesses.

2026“Even when we have expressed skepticism that any reasonable trial strategy could be revealed through an evidentiary hearing, we have held that the record on direct appeal was insufficient to address the ineffective assistance claim.” State v. Corral, 318 Neb. at 961 , 20 N.W.3d at 395, citing State v. Sidzyik, 281 Neb. 305 , 795 N.W.2d 281 (2011); State v. Gonzalez-Faguaga, 266 Neb. 72 , 662 N.W.2d 581 (2003).

2026“Even when we have expressed skepticism that any reasonable trial strategy could be revealed through an evidentiary hearing, we have held that the record on direct appeal was insufficient to address the ineffective assistance claim.” State v. Corral, 318 Neb. at 961 , 20 N.W.3d at 395, citing State v. Sidzyik, 281 Neb. 305 , 795 N.W.2d 281 (2011); State v. Gonzalez-Faguaga, 266 Neb. 72 , 662 N.W.2d 581 (2003).

2026App. P. § 2-109(D)(1)(e) (rev. 2025). - 149 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports STATE v. LOPEZ Cite as 321 Neb. 118 [36] Although prevailing on a claim of ineffective assis- tance under Strickland requires proving both that counsel’s performance was deficient and that the deficient performance actually prejudiced the defendant, a defendant seeking to raise a claim of ineffective assistance on direct appeal is not required to make specific allegations of prejudice. 67 However, anytime a defendant seeks to raise an ineffective assistance claim, whether on direct appeal o

2026See, also, Rupp, supra note 63 ; Kruger, supra note 18 . 69 See Rupp, supra note 63 , 320 Neb. at 523, 28 N.W.3d at 89. 70 See Rupp, supra note 63 . 71 See id. at 524 , 28 N.W.3d at 90. 72 See id. at 518, 28 N.W.3d at 87. - 150 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports STATE v. LOPEZ Cite as 321 Neb. 118 not be used to set forth, for the first time, what the allegedly deficient conduct was. 73 (iii) Not All Ineffective Assistance of Counsel Claims Can Be Resolved on Direct Appeal [40] The fact that a claim of ineffective assistance of coun- sel is properly raised on direct a

2025GOYNES Cite as 318 Neb. 413 performed better is not grounds to conclude defense counsel was constitutionally deficient. 30 3.

2025State v. Mzra, 302 Neb. 931 , 926 N.W.2d 79 (2019), disapproved on other grounds, State v. Hagens, 320 Neb. 65 , 26 N.W.3d 174 (2025).

2025RUPP Cite as 320 Neb. 502 Until our decision in Mrza, 38 released on April 19, 2019, we looked to the assignment of errors conjunctively with the argu- ment sections of the defendant’s appellate brief to discern if the ineffective assistance claim was sufficiently raised.

2023AMMONS Cite as 314 Neb. 433 failure to consult with the defendant about an appeal.

2022See, also, Roe v. Flores-Ortega, supra. In State v. Russell, 308 Neb. 499, 507-08 , 954 N.W.2d 920, 928 (2021), the Nebraska Supreme Court stated: [T]he U.S. Supreme Court has explained, with regard to the prejudice prong in an ineffective assistance claim seeking a new direct appeal, that it is a “critical require- ment that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.” Thus, in Peguero v. United States, [ 526 U.S. 23 , 119 S. Ct. 961 , 143 L.

2022See, also, Roe v. Flores-Ortega, supra. In State v. Russell, 308 Neb. 499, 507-08 , 954 N.W.2d 920, 928 (2021), the Nebraska Supreme Court stated: [T]he U.S. Supreme Court has explained, with regard to the prejudice prong in an ineffective assistance claim seeking a new direct appeal, that it is a “critical require- ment that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.” Thus, in Peguero v. United States, [ 526 U.S. 23 , 119 S. Ct. 961 , 143 L.

2022AMMONS Cite as 31 Neb.

2020In numerous decisions, this court has determined that an allegation of ineffective assistance of trial counsel, asserted by new appellate counsel, was not stated with sufficient speci- ficity where it failed to allege the name of the witness who would have testified and the specific content of the witness’ - 458 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 proposed testimony. 1 This naturally followed from this court’s holding that an appellant must make specific allegations of the conduct that he or she claims constitutes deficient perform­

2020In numerous decisions, this court has determined that an allegation of ineffective assistance of trial counsel, asserted by new appellate counsel, was not stated with sufficient speci- ficity where it failed to allege the name of the witness who would have testified and the specific content of the witness’ - 458 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 proposed testimony. 1 This naturally followed from this court’s holding that an appellant must make specific allegations of the conduct that he or she claims constitutes deficient perform­

2020In numerous decisions, this court has determined that an allegation of ineffective assistance of trial counsel, asserted by new appellate counsel, was not stated with sufficient speci- ficity where it failed to allege the name of the witness who would have testified and the specific content of the witness’ - 458 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 proposed testimony. 1 This naturally followed from this court’s holding that an appellant must make specific allegations of the conduct that he or she claims constitutes deficient perform­

2020In numerous decisions, this court has determined that an allegation of ineffective assistance of trial counsel, asserted by new appellate counsel, was not stated with sufficient speci- ficity where it failed to allege the name of the witness who would have testified and the specific content of the witness’ - 458 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 proposed testimony. 1 This naturally followed from this court’s holding that an appellant must make specific allegations of the conduct that he or she claims constitutes deficient perform­