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299 Nebraska Report

STATE v. McGUIR

Cite as 299 Neb. 762

State of Nebraska, appellee, v.

Shawn A. McGuire, appe

___ N.W.2d ___

Filed April 26, 2018. No. S-17-257.

1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as 

the trier of fact, resolves conflicts in the evidence and questions of fact. 

An appellate court upholds the trial court’s factual findings unless they 

are clearly erroneous.

2. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When 

reviewing a question of law, an appellate court resolves the question 

independently of the lower court’s conclusion.

3. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

4. Effectiveness of Counsel: Appeal and Error. When reviewing a 

claim of ineffective assistance of counsel, an appellate court reviews 

the factual findings of the lower court for clear error. With regard to 

questions of counsel’s performance or prejudice to the defendant as 

part of the two-pronged test articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court 

reviews such legal determinations independently of the lower court’s 

conclusion.

5. ____: ____. When a defendant’s trial counsel is different from his or 

her appellate counsel, all issues of ineffective assistance of trial counsel 

that are known to the defendant or are apparent from the record must be 

raised on direct appeal. If the issues are not raised, they are procedurally barred.

6. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

7. Effectiveness of Counsel: Proof: Appeal and Error. To prevail 

on a claim of ineffective assistance of counsel under Strickland v. 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/20/2018 01:08 AM CDT
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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.

8. Effectiveness of Counsel: Appeal and Error. 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 ineffective assistance of counsel), an appellate court will look 

at whether trial counsel was ineffective under the test in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

9. Trial: Attorneys at Law. Trial counsel is afforded due deference to 

formulate trial strategy and tactics.

10. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In 

determining whether trial counsel’s performance was deficient, there is 

a strong presumption that counsel acted reasonably.

11. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirme

A. Michael Bianchi for appellant.

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

for appellee.

Heavican, C.J., Miller-Lerman, Stacy, and Funke

Colborn and Samson, District Judg

Colborn, District Judge

INTRODUCTION

Shawn A. McGuire appeals from the denial of his motion 

for postconviction relief following an evidentiary hearing. He 

claims the district court erred in failing to find that his trial 

and appellate counsel were ineffective and in failing to make 

rulings on certain claims raised in his postconviction motion. 

He also claims his postconviction counsel provided ineffective 

assistance at the evidentiary hearing. For the reasons set forth 

below, we affirm the judgment of the district court.
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STATE v. McGUIR

Cite as 299 Neb. 762

BACKGROUND

Following a jury trial, McGuire was found guilty of second degree murder under a theory of aiding and abetting, 

use of a deadly weapon to commit a felony, and criminal 

conspiracy to unlawfully possess and deliver a controlled 

substance. The convictions were based on his involvement 

with a cocaine exchange that resulted in the murder of Cesar 

Sanchez-Gonzales (Sanchez) by Robert Nave. McGuire is 

currently serving a combined sentence of 105 to 125 years 

in prison.

Trial Evid

On October 22, 2010, a law enforcement task force was conducting surveillance on an expected drug deal at an automobile 

repair shop (auto shop) in South Omaha, Nebraska. The auto 

shop was run by Sanchez, who was an informant for the task 

force. The supplier, Cesar Ayala-Martinez, had agreed to sell 

11⁄2 kilograms of cocaine to Sanchez in exchange for $40,500. 

Sanchez was then going to sell the cocaine to McGuire. 

McGuire had purchased cocaine from Sanchez in a similar 

manner a few weeks prior to this date.

The evidence showed that McGuire arrived at the auto 

shop driving a white Chrysler Sebring and was seen conversing with the occupants of a white Nissan. Abdul Vann, Kim 

Thomas, and Nave were also present outside the auto shop. 

Sometime after McGuire entered the auto shop, a member 

of the task force observed Nave put his hood over his head, 

pull a handgun from his waistband, and proceed into the auto 

shop. As soon as Nave entered, McGuire almost instantaneously exited.

Ayala-Martinez testified that within seconds of McGuire’s 

exiting, Nave entered the office with his gun drawn. Sanchez 

pulled a revolver out of his desk drawer and was attempting to open the chamber. Before Sanchez could raise his 

weapon, Nave shot Sanchez two or three times. Nave then 

pointed the gun at Ayala-Martinez and asked for the cocaine. 

Ayala-Martinez pointed to the cocaine, and Nave ran out with 
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it. Sanchez later died due to the gunshot wounds inflicted 

by Nave.

The task force observed Nave and Thomas running from 

the building. They both ran straight to the Sebring, where 

McGuire was waiting in the driver’s seat. McGuire sped off 

at a high rate of speed. Members of the task force pursued 

the vehicle, which crashed head on into a pickup truck shortly 

thereafter. After a short foot pursuit, all three occupants of the 

Sebring were apprehended.

A search of McGuire revealed a roll of cash with $20 and 

$50 bills on the outside and regular paper on the inside, making the cash roll appear to contain a larger amount of cash. 

Officers also found the keys to the Sebring, an electronic ignition key for a Nissan, and approximately $3,800 in cash.

A search of the white Nissan revealed a yellow sporting 

goods store bag containing a box of “CCI” ammunition with 

10 rounds missing, a pair of black gloves, and packaging material for black duct tape. On the driver’s side of the Sebring, 

10 live rounds of ammunition were found, marked “9mm CCI 

Luger.” Inside the Sebring, officers located black duct tape 

consistent with the packaging found in the Nissan.

Officers also found four handguns inside the Sebring, including a Smith & Wesson 9-mm pistol. We note that our opinion 

on direct appeal1 incorrectly stated that the handguns were 

found in the Nissan. The record reflects that they were found 

in the Sebring. A firearms expert testified that the bullet recovered from Sanchez’ body was fired from the 9-mm Smith & 

Wesson. Each of the four casings found in the auto shop were 

also from the 9-mm Smith & Wesson.

The white Nissan was owned by a woman who testified 

that she was dating McGuire and had allowed him to borrow her car on the date in question. The previous night, she 

had gone to a sporting goods store to purchase bullets for the 

shooting range. She had placed the ammunition, which was in 

1 See State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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a yellow bag, in her garage and did not realize it was missing 

until after she was questioned by investigators.

Direct App

Following his convictions, McGuire obtained new counsel 

and appealed. He assigned, as relevant to this postconviction 

proceeding, that the district court erred in refusing to give his 

proposed jury instruction, which added “‘not upon a sudden 

quarrel’” to the language of the second degree murder instruction.2

 We agreed on direct appeal that the instruction given 

by the district court was an incorrect statement of the law in 

that it did not require the jury to consider whether Nave killed 

Sanchez upon a sudden quarrel, which could have reduced 

McGuire’s conviction to manslaughter. However, we found 

that this error did not result in prejudice to McGuire, because 

there was no evidence at trial upon which a jury could reasonably conclude that Sanchez was killed as a result of a sudden 

quarrel. We affirmed McGuire’s convictions and sentences in 

all respects.3

Postconviction Pr

On February 6, 2015, McGuire filed a timely motion for 

postconviction relief, alleging that his trial counsel was ineffective in (1) failing to properly advise McGuire regarding his 

right to testify at trial, (2) failing to depose certain witnesses 

prior to trial, (3) failing to call certain witnesses at trial, (4) 

failing to investigate and question investigators about the 

existence of gunshot residue on accomplices, (5) failing to 

properly cross-examine one of the task force members concerning McGuire’s presence and affiliation with accomplices 

just prior to the shooting, (6) failing to cross-examine AyalaMartinez regarding where Nave pointed the gun when he 

entered the auto shop, (7) failing to challenge the admission 

into evidence of the 9-mm ammunition found in the Nissan, 

2 Id. at 504, 837 N.W.2d at 780.

3 See State v. McGuire, supra note 1.
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and (8) failing to provide discovery materials to McGuire, 

which prevented him from assisting in his own defense. He 

further alleged that his appellate counsel was ineffective 

for failing to raise trial counsel’s ineffectiveness in all of 

these respects.

An evidentiary hearing was held in the district court, during which the depositions of McGuire and his trial counsel 

were entered into evidence. Following the hearing, the district 

court issued a written order denying McGuire’s postconviction 

motion. It found that appellate counsel was not ineffective 

for failing to raise the various claims of ineffective assistance 

of trial counsel because trial counsel was not ineffective. 

McGuire now appeals from that order.

ASSIGNMENTS OF ERROR

McGuire claims the district court erred in failing to find 

that his trial and appellate counsel were ineffective, and in 

failing to rule on certain claims raised in his postconviction 

motion. More specifically, he claims (1) trial counsel was 

ineffective in (a) failing to properly examine Ayala-Martinez 

about where Nave pointed his gun prior to shooting Sanchez, 

(b) failing to call certain witnesses who would have provided 

testimony confirming McGuire’s ignorance of the plan to rob 

Sanchez of the cocaine, and (c) improperly advising McGuire 

about his rights to testify and to remain silent; (2) appellate 

counsel was ineffective for failing to raise trial counsel’s failure to elicit testimony of a sudden quarrel; and (3) the district 

court failed to rule on his claims regarding (a) trial counsel’s 

failure to object to the admission into evidence of the 9-mm 

ammunition and (b) trial counsel’s failure to question or 

investigate the presence of gunshot residue on accomplices. 

Finally, McGuire claims that his postconviction counsel was 

ineffective for failing to present adequate evidence at the postconviction hearing to substantiate his claims, thereby depriving him of his state and federal constitutional rights to due 

process of law.
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STATE v. McGUIR

Cite as 299 Neb. 762

STANDARD OF REVIEW

[1] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves 

conflicts in the evidence and questions of fact. An appellate 

court upholds the trial court’s factual findings unless they are 

clearly erroneous.4

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law.5 When reviewing 

a question of law, an appellate court resolves the question 

independently of the lower court’s conclusion.6

[3,4] A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact.7 When 

reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error.8 With regard to questions of counsel’s performance or prejudice to the defendant as part of the two-pronged 

test articulated in Strickland v. Washington,

9

 an appellate court 

reviews such legal determinations independently of the lower 

court’s conclusion.10

ANALYSIS

Ineffective Assista

Trial Couns

[5] McGuire’s first three assignments of error allege that 

the district court erred in failing to find that his trial counsel 

was ineffective in certain respects. The State submits that these 

claims are procedurally barred, because they could have been 

4 State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).

5 State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017).

6 Id.

7 State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).

8 Id.

9 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

10 State v. Alarcon-Chavez, supra note 7.
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raised on direct appeal and were not. When a defendant’s trial 

counsel is different from his or her appellate counsel, all issues 

of ineffective assistance of trial counsel that are known to the 

defendant or are apparent from the record must be raised on 

direct appeal.11 If the issues are not raised, they are procedurally barred.12

[6] Although McGuire’s postconviction motion asserts layered claims of ineffective assistance of trial and appellate 

counsel, we agree that the underlying claims pertaining to trial 

counsel are procedurally barred, because McGuire had new 

counsel on direct appeal and did not raise his claims of ineffective assistance of trial counsel at that time.13 In order to present 

the merits of those claims to this court, McGuire was required 

to assign and argue that appellate counsel was ineffective for 

failing to assert trial counsel’s ineffectiveness in those respects. 

He failed to do so for his first three assignments of error, and 

as a result, those claims are not properly before this court. An 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.14

Ineffective Assista

Appellate Couns

McGuire’s fourth assignment of error alleges that the district court erred in failing to find that appellate counsel was 

ineffective for failing to raise trial counsel’s failure to elicit 

evidence of a sudden quarrel at trial. He asserts that appellate 

counsel challenged the second degree murder instruction on 

the basis that it did not include the sudden quarrel language, 

which we agreed was erroneous on direct appeal but found 

to be harmless due to the absence of any evidence in the 

11 State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).

12 Id.

13 See id.

14 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
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record of a sudden quarrel. McGuire argues that trial counsel 

could have elicited such evidence through a proper crossexamination of Ayala-Martinez.

At trial, Ayala-Martinez testified that Nave entered the auto 

shop, pointed the gun at Sanchez, and shot him two to three 

times. However, McGuire claims that Ayala-Martinez had previously testified at Nave’s trial that Nave initially pointed 

the gun at Ayala-Martinez but quickly turned the gun on 

Sanchez when he saw Sanchez attempting to load a revolver. 

McGuire argues that this was evidence of a sudden quarrel 

that provoked Nave to shoot Sanchez, but was not elicited at 

trial. McGuire 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 counsel 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 defendant’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 ineffective assistance of counsel), an appellate court will look at 

whether trial counsel was ineffective under the Strickland v. 

Washington test.17 If trial counsel was not ineffective, then the 

defendant was not prejudiced by appellate counsel’s failure to 

raise the issue.18 Much like claims of ineffective assistance of 

trial counsel, the defendant must show that but for counsel’s 

failure to raise the claim, there is a reasonable probability that 

the outcome would have been different.19

15 Strickland v. Washington, supra note 9.

16 State v. Glass, supra note 4.

17 State v. Dubray, supra note 11.

18 Id.

19 Id.
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We find that trial counsel’s decision not to elicit testimony 

of a sudden quarrel was a reasonable strategic decision. In 

his deposition, trial counsel testified that he believed the best 

defense for McGuire was to convince the jury that although 

McGuire was there to participate in a drug deal, there was no 

evidence that he had agreed to participate in the robbery, or 

even had knowledge that Nave was going to commit a robbery. 

In other words, the best case scenario for McGuire was that 

he would be found guilty of the drug offense, but not guilty of 

felony murder or any other homicide-related charges.

Given this trial strategy, trial counsel explained that he did 

not believe it was effective to “out of one side of your mouth 

say, there’s no plan, no agreement, no robbery, therefore he’s 

not guilty of first degree murder; and then say, on the other 

hand, it could also be a manslaughter.” He testified that he 

thought he would lose credibility with the jury if he tried to 

argue both theories. He chose to attack the felony murder allegations, because if he could convince the jury that there was no 

plan or agreement for the robbery, then he would be found not 

guilty on all the homicide charges.

[9,10] Trial counsel is afforded due deference to formulate 

trial strategy and tactics.20 An appellate court does not secondguess strategic decisions made by trial counsel, so long as 

those decisions are reasonable.21 In determining whether trial 

counsel’s performance was deficient, there is a strong presumption that counsel acted reasonably.22 We conclude that 

trial counsel’s failure to adduce evidence of a sudden quarrel 

was a reasonable strategic decision, and therefore, it does not 

constitute deficient performance. Because trial counsel was not 

ineffective, McGuire was not prejudiced by appellate counsel’s 

failure to raise this issue on direct appeal.

20 State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).

21 See State v. Alarcon-Chavez, supra note 7.

22 State v. Williams, supra note 20.
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Failure to Make Fi

or Ruli

McGuire’s fifth assignment of error alleges that the district 

court erred by failing to make requisite findings or rulings on 

his claims that (1) trial counsel failed to object to the admission into evidence of the 9-mm ammunition found in the 

Nissan and (2) trial counsel failed to investigate the presence 

of gunshot residue on accomplices. He argues that under Neb. 

Rev. Stat. § 29-3001(2) (Reissue 2016), the district court is 

required to make findings of fact and conclusions of law with 

regard to all issues raised in the motion when an evidentiary 

hearing is granted.

We first note that McGuire’s appellate brief provides no 

argument in support of the second part of this assignment of 

error regarding trial counsel’s failure to investigate the presence of gunshot residue on accomplices. An alleged error 

must be both specifically assigned and specifically argued in 

the brief of the party asserting the error to be considered by 

an appellate court.23 Because it was not argued, we will not 

address that portion of the assigned error.

[11] Regarding trial counsel’s failure to object to the 9-mm 

ammunition found in the Nissan, McGuire argues that it was 

unduly prejudicial under Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2016), and that trial counsel should have 

moved to exclude it on that basis. Under rule 403, relevant 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.24 Most, if not all, 

evidence offered by a party is calculated to be prejudicial to the 

opposing party; only evidence tending to suggest a decision on 

an improper basis is unfairly prejudicial.25

Trial counsel testified that he did not object to the ammunition, because any such objection would have certainly been 

23 State v. Cook, supra note 14.

24 State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).

25 See id.
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overruled. We agree. The probative value of the 9-mm ammunition found in the Nissan was substantial. A firearms expert 

determined that the four casings found in the auto shop and 

the bullet recovered from Sanchez’ body were all fired from a 

9-mm Smith & Wesson, which was found inside the Sebring 

that McGuire was driving as he fled from the scene. The discovery of the 9-mm ammunition in the Nissan directly linked 

McGuire to the robbery conspiracy, given the evidence that the 

Nissan belonged to McGuire’s girlfriend and she had allowed 

him to borrow it on the date in question. We conclude the 

challenged evidence was extremely probative, and we do not 

see any tendency for it to suggest a decision by the jury on an 

improper basis.

Finally, while we agree that trial courts are required to make 

findings of fact and conclusions of law following an evidentiary hearing, we find it unnecessary to remand the cause for 

further findings here. The purpose of requiring factual findings 

and conclusions of law is to facilitate appellate review and 

permit us to reach all assigned errors.26 Because it is clear that 

this claim has no merit, there is no need to remand the matter 

for further findings.

Ineffective Assista

Postconviction C

In his final assignment of error, McGuire asserts that his 

postconviction counsel was ineffective for failing to present 

adequate evidence at the postconviction hearing to substantiate 

his claims, thereby depriving McGuire of his state and federal 

constitutional rights to due process of law. McGuire acknowledges that there is no constitutional right to effective assistance 

of counsel at postconviction proceedings.27 However, he argues 

that he was denied due process of law because his counsel 

failed to meet the standard required under Neb. Rev. Stat. 

26 See State v. Harris, 294 Neb. 766, 884 N.W.2d 710 (2016).

27 See State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
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§ 29-3004 (Reissue 2016), which provides that “[t]he district 

court may appoint not to exceed two attorneys to represent the 

prisoners in all [postconviction] proceedings” and that “[t]he 

attorney or attorneys shall be competent and shall provide 

effective counsel.”

Assuming without deciding that there is a statutory right 

to competent and effective postconviction counsel that may 

be enforced on appeal from a postconviction proceeding, we 

find that the plain language of the statute applies only to attorneys appointed by the district court. Here, McGuire’s counsel 

acknowledged at oral argument that McGuire’s first postconviction counsel, whom he now claims was ineffective, was 

not appointed by the district court, but was privately retained 

by McGuire. Thus, the statutory directive that postconviction 

attorneys appointed by the district court shall be competent and 

effective does not apply here.

Furthermore, even if the statute did apply, we find no merit 

to this assigned error, because the claims asserted in McGuire’s 

postconviction proceeding, even if proved, would not entitle 

him to any relief. Therefore, McGuire was not prejudiced by 

postconviction counsel’s failure to present evidence to substantiate those claims.

CONCLUSION

For the reasons set forth above, we affirm the judgment of 

the district court.

Affirmed

Wright and Cassel, JJ., not participatin