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STATE V. JACKSON

Cite as 32 Neb. App. 563

State of Nebraska, appellee, v. 

Wilbur L. Jackson, appellant.

___ N.W.2d ___

Filed January 9, 2024. No. A-22-903.

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. Postconviction: Constitutional Law. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

3. Postconviction: Constitutional Law: Proof. An evidentiary hearing is 

not required on a motion for postconviction relief when (1) the motion 

does not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or 

law without supporting facts; or (3) the records and files affirmatively 

show that the defendant is entitled to no relief.

4. Effectiveness of Counsel: Proof. 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.

5. ____: ____. To show that counsel’s performance was deficient, the 

defendant must show counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.

6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and 

Error. To show prejudice under the prejudice component of Strickland 

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

the defendant must demonstrate a reasonable probability that but for 

Nebraska Supreme Court Online Library

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

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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.

7. Postconviction. The defendant’s verified motion for postconviction 

relief is the operative filing before the district court in considering 

whether to grant an evidentiary hearing.

8. Postconviction: Appeal and Error. A postconviction court does not 

err by failing to consider claims not made in the operative motion for 

postconviction relief, which are instead raised in other filings.

9. Postconviction: Effectiveness of Counsel: Appeal and Error. When 

a person seeking postconviction relief has different counsel on appeal 

than at trial, the motion for postconviction relief is procedurally barred 

if the person seeking relief (1) knew of the issues assigned in the postconviction motion at the time of the direct appeal, (2) failed to assign 

those issues on direct appeal, and (3) did not assign as error the failure 

of appellate counsel on direct appeal to raise the issues assigned in the 

postconviction motion.

10. 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 two-part test for 

ineffectiveness established in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel’s 

failure to raise the issue.

11. Appeal and Error. Generally, an appellate court will find plain error 

only when a miscarriage of justice would otherwise occur.

12. Effectiveness of Counsel. Defense counsel is not ineffective for failing 

to raise an argument that has no merit.

13. Postconviction: Appeal and Error. The appellate court will not consider allegations not presented to the district court for disposition 

through the defendant’s verified motion for postconviction relief or 

passed upon by the postconviction court.

Appeal from the District Court for Cass County: Michael 

A. Smith, Judge. Affirmed.

Wilbur L. Jackson, pro se.
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STATE V. JACKSON

Cite as 32 Neb. App. 563

Michael T. Hilgers, Attorney General, and Jordan Osborne 

for appellee.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

Moore, Judge.

INTRODUCTION

Wilbur L. Jackson appeals from the order of the district 

court for Cass County, which denied his motion for postconviction relief without an evidentiary hearing. For the reasons set 

forth herein, we affirm.

STATEMENT OF FACTS

On March 20, 2020, Jackson was charged by information 

with six counts: driving under the influence of alcohol, fifth 

offense/aggravated; violating the terms of an ignition interlock 

order, with a habitual criminal allegation; leaving the scene of 

an accident; reckless driving, second offense; false reporting; 

and refusal to submit to a preliminary breath test.

On March 23, 2020, Jackson’s trial counsel filed a motion 

to quash the information, alleging the ignition interlock charge 

could not be enhanced under the habitual criminal statute without violating established precedent prohibiting double penalty 

enhancement. In an order entered on April 9, the district court 

denied the motion to quash, finding that there was no “‘stacking’” of enhancements regarding the ignition interlock charge, 

as Jackson was subjected to an ignition interlock order due to 

a prior conviction. The court reasoned that it was the violation 

of that order that was prohibited and punished, not the crime 

which had triggered the ignition interlock order.

A bench trial was held on September 30, 2020. The evidence adduced at trial established that on February 3, Jackson 

was driving eastbound on U.S. Highway 34 in Cass County 

when he moved onto the right shoulder and then made an 

abrupt U-turn without signaling, striking another eastbound 

vehicle that was traveling behind Jackson and pushing that 
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vehicle toward oncoming traffic and into a field where it 

struck an embankment. Jackson did not stop.

Approximately 5 minutes after the accident, a sheriff’s 

deputy, responding to a witness’ call to the 911 emergency dispatch service, stopped Jackson’s vehicle. Jackson denied being 

involved in an accident and told the deputy that his brother 

had picked him up 5 minutes prior in Shenandoah, Iowa, 

approximately 100 miles from the accident site. The deputy 

detected the odor of alcohol, along with other mannerisms 

indicative of alcohol consumption, and began a driving under 

the influence of alcohol investigation. Though Jackson agreed 

to a preliminary breath test, he repeatedly used his tongue to 

block the airflow into the straw and pulled his head back so 

that he was not blowing enough air to give a sufficient sample. 

The deputy subsequently arrested Jackson and transported 

him to take a chemical breath test, which demonstrated a .239 

breath alcohol content.

Douglas County court records from a 2016 criminal case 

and various Nebraska Department of Motor Vehicle records 

established that Jackson’s license had been revoked for 15 

years and he was permitted to drive only with an ignition interlock device. The deputy testified that Jackson’s vehicle had no 

such device.

On October 7, 2020, the district court entered a judgment of conviction, finding Jackson guilty of all counts but 

count II, violating the terms of an ignition interlock order 

with a habitual criminal allegation, in violation of Neb. Rev. 

Stat. § 60-6,211.11 (Cum. Supp. 2018). The court noted that 

pursuant to previous court orders, Jackson’s driving privileges had been revoked and not yet reinstated. Jackson was 

allowed to obtain an ignition interlock permit and operate 

motor vehicles equipped with an ignition interlock device. 

The court noted that Nebraska Supreme Court precedent holds 

that § 60-6,211.11 applies only to those who have interlock 

permits, with a different statute applying to those who do not 

have permits. The court observed that the vehicle driven by 
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Jackson at the time of the offense did not have an ignition 

interlock device and that Jackson had not obtained an ignition 

interlock permit. Thus, Jackson did not violate § 60-6,211.11, 

because it was inapplicable to him.

A sentencing hearing was held on December 21, 2020. 

Following argument from the State and Jackson, the district 

court asked, “Counsel, we . . . overlooked something here 

going forward. I think because . . . the way this case happened, 

that I took it under advisement, we didn’t enhance[]. Is the 

State prepared to go forward with that?”

After a brief recess, the State offered certified copies of 

Douglas County District Court records evidencing Jackson’s 

four prior driving under the influence of alcohol convictions 

and one reckless driving conviction. The court received the 

exhibits and found that they properly enhanced count I, driving under the influence of alcohol, fifth offense/aggravated, as 

well as count IV, reckless driving, second offense.

The district court then sentenced Jackson to a term of 15 

to 20 years’ imprisonment for driving under the influence of 

alcohol, a term of 6 months’ imprisonment for leaving the 

scene of an accident, a term of 6 months’ imprisonment for 

reckless driving, a term of 1 year’s imprisonment for false 

reporting, and a fine of $100 for refusal to submit to a preliminary breath test. The court ordered that the sentences be 

served concurrently, and Jackson was given 323 days’ credit 

for time served.

On direct appeal, and represented by different counsel, 

Jackson alleged that the district court abused its discretion by 

imposing excessive sentences and that there was insufficient 

evidence adduced at trial to find him guilty of false reporting. 

This court summarily affirmed the district court’s order on 

November 3, 2021, in case No. A-21-007.

On June 27, 2022, Jackson, now self-represented, filed 

a motion for postconviction relief. In that motion, Jackson 

presented claims with respect to his trial and appellate counsel’s failure to contest the State’s presentation of evidence 
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regarding the habitual criminal enhancement. Jackson also 

alleged that his appellate counsel should have argued on direct 

appeal that the ignition interlock charge lacked “‘mens rea’” 

as determined by the district court, due to its inconsistency 

with § 60-6,211.11, and that his appellate counsel did not 

review the record, instead using the brief drafted by his trial 

counsel for the direct appeal. Jackson further alleged that the 

district court committed plain error by engaging in “ex parte 

actions” during enhancement, his trial counsel was ineffective 

for failing to object to these actions, and his appellate counsel 

was ineffective in failing to raise the claim on direct appeal. 

The motion for postconviction relief requested an evidentiary 

hearing and the appointment of counsel.

On July 11, 2022, the district court entered an order that 

deferred its ruling on Jackson’s motion for postconviction 

relief until the State had an adequate opportunity to respond. 

The court ordered the State to submit a written response by 

September 8 and noted that Jackson’s motion for postconviction relief would be taken under advisement at that time. The 

State filed its answer to Jackson’s motion on July 25.

On August 25, 2022, Jackson filed a reply and objection to 

the State’s answer. This reply included new claims not asserted 

in his original motion for postconviction relief. Jackson alleged 

that his trial counsel was ineffective by failing to assert a 

facial and as-applied constitutional challenge of the habitual 

criminal enhancement. Jackson also alleged that his appellate counsel was ineffective by failing to raise the claims on 

direct appeal and that the performance of his appellate counsel 

amounted to “structural error,” for which Jackson did not need 

to make a showing of prejudice. Jackson also reasserted his 

claim that his trial counsel was ineffective in failing to object 

to judicial misconduct and his appellate counsel had failed to 

raise the claim on direct appeal. The reply requested that the 

district court liberally construe the claims in his motion for 

postconviction relief or, in the alternative, for leave to amend 

Jackson’s motion for postconviction relief.
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On November 4, 2022, Jackson filed a renewed motion to 

amend and for declaratory relief. The renewed motion again 

requested leave to amend his motion for postconviction relief 

and asked the district court to find the Nebraska Postconviction 

Act unconstitutional as it violated Jackson’s due process 

and equal protection rights by failing to construe pro se filings liberally.

On November 14, 2022, the district court entered an order 

denying Jackson’s motion for postconviction relief. We have 

set forth details of the court’s reasoning in the analysis section below.

Jackson appeals.

ASSIGNMENTS OF ERROR

Jackson assigns that the district court erred by (1) not granting Jackson leave to amend his motion for postconviction 

relief; (2) denying Jackson’s motion for postconviction relief 

without an evidentiary hearing; and (3) failing to find the 

Nebraska Postconviction Act unconstitutional as it applied to 

Jackson as a pro se litigant.

STANDARD OF REVIEW

[1] 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. 

State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).

ANALYSIS

Requests for Leave to Amend.

Jackson first assigns that the district court erred by failing to grant him leave to amend his postconviction motion to 

“amplify and restate his claims with more certainty.” Brief for 

appellant at 11. Jackson argues that his amended postconviction motion related back to his original motion, that he had 

not previously amended his original motion, and that he was 
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within the 1-year statute of limitations to assert or reassert 

claims for relief.

Jackson twice made a request that the district court give 

him leave to amend his motion for postconviction relief. As 

detailed above, Jackson’s reply and objection to the State’s 

answer, and his renewed motion to amend, were filed after the 

State filed its answer to Jackson’s motion for postconviction 

relief. The district court previously entered an order deferring 

its ruling on Jackson’s motion for postconviction relief and 

stating that the matter would be taken under advisement at 

the time the State submitted a written response to Jackson’s 

original motion. Jackson’s first request to amend was filed 

31 days after the State’s answer was filed, and thus, the first 

request was filed after the matter had been submitted to the 

district court for decision. His renewed motion to amend was 

filed 102 days after the State’s answer. Although the district 

court did not specifically address Jackson’s requests for leave 

to amend in its order denying the evidentiary hearing, we 

find no abuse of discretion in the court’s implicit denial of 

these requests.

In State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016), 

the Nebraska Supreme Court distinguished postconviction 

cases from other civil proceedings, holding that a postconviction action is not an ordinary civil action and that, as such, 

the liberal pleading rules that govern civil actions are inconsistent with postconviction proceedings. The court found that 

postconviction relief is a very narrow category of relief and is 

intended to provide relief in those cases where a miscarriage 

of justice may have occurred, and not to be a procedure to 

secure a routine review for any defendant dissatisfied with his 

or her sentence. The Supreme Court explicitly held in State v. 

Robertson, supra, that when a district court refuses to grant 

leave to amend an original postconviction motion, an appellate 

court reviews that decision for an abuse of discretion, and not 

pursuant to the civil pleading rules regarding amendment.
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This court has previously held that a district court did not 

abuse its discretion in denying a motion to amend when such 

motion was filed after the court had already entered an order 

denying an evidentiary hearing. See State v. Manning, 18 Neb. 

App. 545, 789 N.W.2d 54 (2010). Additionally, this court has 

held that a district court did not abuse its discretion in denying 

a motion to amend when such motion was filed before the district court had entered an order denying the evidentiary hearing, but well after the court had taken the original motion for 

postconviction relief under advisement. See State v. Williams, 

No. A-21-703, 2022 WL 2433517 (Neb. App. July 5, 2022) 

(selected for posting to court website).

Jackson did not ask to amend his motion for postconviction relief at any point prior to the State’s filing its answer, 

even though by the time of this filing, his original motion for 

postconviction relief had been pending for a month. Instead, 

Jackson waited 31 days after the matter had been submitted to 

the court for consideration to make his first request to amend. 

He provides no indication that such new claims were not available to him prior to the State’s filing its answer to his original 

motion. Given this timing, we do not find that the district court 

abused its discretion in implicitly denying Jackson’s requests 

for leave to amend. This assignment of error fails.

Motion for Postconviction Relief.

Jackson next assigns that the district court erred in denying his motion for postconviction relief without an evidentiary hearing. Before turning to Jackson’s specific claims, 

we briefly review the legal framework that governs appeals 

from the denial of postconviction relief without an evidentiary hearing.

[2,3] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. State v. 

Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023). An evidentiary hearing is not required on a motion for postconviction 
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relief when (1) the motion does not contain factual allegations 

which, if proved, constitute an infringement of the movant’s 

constitutional rights rendering the judgment void or voidable; 

(2) the motion alleges only conclusions of fact or law without 

supporting facts; or (3) the records and files affirmatively 

show that the defendant is entitled to no relief. Id.

[4-6] 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. State v. Galindo, supra. To show that counsel’s 

performance was deficient, the defendant must show counsel’s performance did not equal that of a lawyer with ordinary 

training and skill in criminal law. Id. To show prejudice, 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. See id.

[7,8] Jackson raised additional claims in his reply and 

objection to the State’s answer that were not asserted in 

his original motion for postconviction relief. The defendant’s 

verified motion for postconviction relief is the operative filing before the district court in considering whether to grant an 

evidentiary hearing. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 

751 (2022). A postconviction court does not err by failing to 

consider claims not made in the operative motion for postconviction relief, which are instead raised in other filings. Id. 

Thus we address only those claims Jackson has both asserted 

in his motion for postconviction relief and specifically argued 

in this appeal.

On appeal, Jackson asserts that the district court’s denial 

of his motion for postconviction relief without an evidentiary 
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hearing was in error, because his trial counsel was ineffective for failing to adequately challenge the habitual criminal 

allegation for the purposes of the ignition interlock charge. 

Jackson argues that trial counsel’s motion to quash was not 

the proper method by which to challenge the enhancement. 

Jackson contends that he was prejudiced by his trial counsel’s deficient performance, because he would have insisted 

on going to trial and then entered a plea deal with the State, 

which would have resulted in a reduced sentence. Jackson 

also argues that his appellate counsel was ineffective in failing to assign this claim of ineffective assistance as error on 

direct appeal.

[9] Jackson was represented by different counsel on appeal 

than at trial. When a person seeking postconviction relief has 

different counsel on appeal than at trial, the motion for postconviction relief is procedurally barred if the person seeking 

relief (1) knew of the issues assigned in the postconviction 

motion at the time of the direct appeal, (2) failed to assign 

those issues on direct appeal, and (3) did not assign as error 

the failure of appellate counsel on direct appeal to raise the 

issues assigned in the postconviction motion. State v. Parnell, 

305 Neb. 932, 943 N.W.2d 678 (2020). Because Jackson has 

presented a layered ineffective assistance of counsel claim, we 

proceed to address the merits of his argument.

In its order denying Jackson’s postconviction motion without 

an evidentiary hearing, the district court found that Jackson’s 

allegation related to the enhancement on the ignition interlock 

charge was conclusory. The district court stated that Jackson’s 

contention regarding the possibility of a more favorable plea 

offer by the State was “a conclusion of fact for which there 

is no basis in the record.” The district court also noted that 

Jackson had been found not guilty of the ignition interlock 

charge. We agree.

Jackson is unable to make a showing of prejudice on this 

claim. Jackson’s trial counsel did file a motion to quash in 

an attempt to remove the habitual criminal enhancement prior 
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to trial, although that motion was denied by the district court. 

However, as the district court noted, Jackson was never subject 

to a habitual criminal enhancement, because he was found not 

guilty of the ignition interlock offense alleged in count II, the 

only charge to which the habitual criminal enhancement was 

attached. Jackson does not specifically argue what his trial 

counsel should have done differently or upon what grounds an 

alternative course of trial strategy would have been successful. 

He makes speculative assertions without any factual support 

from the record that had the habitual criminal allegation been 

removed by trial counsel prior to trial, the State would have 

offered Jackson a favorable plea deal. See State v. Galindo, 

315 Neb. 1, 994 N.W.2d 562 (2023).

[10] Because we find that Jackson’s trial counsel was not 

ineffective in this regard and that Jackson cannot show prejudice, his appellate counsel was not ineffective in failing to 

raise the claim on direct appeal. 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 two-part test for ineffectiveness established in 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984); if trial counsel was not ineffective, then 

the defendant was not prejudiced by appellate counsel’s failure 

to raise the issue. State v. Parnell, supra.

Next, Jackson asserts that the district court’s denial of his 

motion for postconviction relief without an evidentiary hearing was in error, because his trial counsel was ineffective in 

failing to object to judicial misconduct. Jackson points to the 

district court’s directing the State to present its evidence for 

enhancement related to the driving under the influence of 

alcohol charge at sentencing. Jackson alleges that the district 

court committed plain error by engaging in ex parte actions 

and thus violating the Nebraska Revised Code of Judicial 

Conduct. Jackson also argues that his appellate counsel was 
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ineffective in failing to assign this claim of ineffective assistance as error on direct appeal. Had his appellate counsel 

assigned this claim, Jackson contends, then his direct appeal 

would have favored him.

In its order, the district court found that Jackson’s allegations regarding perceived irregularities at the sentencing hearing did not constitute a violation of Jackson’s constitutional 

rights or show that Jackson was entitled to relief.

[11] Generally, an appellate court will find plain error only 

when a miscarriage of justice would otherwise occur. State 

v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021). A review 

of the record reveals that the district court did not direct the 

State to present its enhancement evidence. Rather, the district 

court observed that enhancement had not yet occurred and 

inquired as to whether the State wished to proceed with its 

enhancement evidence. Although the Nebraska Revised Code 

of Judicial Conduct prohibits judicial ex parte communications, the inquiry in this case occurred on the record during a 

sentencing hearing where all parties were present. The record 

affirmatively refutes that the district court engaged in ex parte 

communications, and Jackson cites to no other authority for the 

basis of the alleged judicial misconduct.

[12] We do not find that the district court’s actions amount 

to plain error, and as such, Jackson’s trial counsel was not 

ineffective in failing to object and his appellate counsel was 

not ineffective in failing to raise the claim on direct appeal. 

Defense counsel is not ineffective for failing to raise an argument that has no merit. State v. Devers, 313 Neb. 866, 986 

N.W.2d 747 (2023).

Jackson also argues that the district court’s denial of his 

motion for postconviction relief without an evidentiary hearing was in error, because his appellate counsel was ineffective for failing to review the record and using an appellate 

brief authored by Jackson’s trial counsel. Jackson asserts that 

had his appellate counsel minimally investigated the facts 

of the case, he would have discovered many errors. Jackson 
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contends that these actions amount to deficient performance 

“causing a detrimental disposition during direct appeal 

against [him].”

Though the district court did not specifically address this 

claim in its order, it did find that all claims raised by Jackson’s 

motion for postconviction relief were “procedurally barred, 

insufficiently pled, [or] affirmatively refuted by the record, or 

[that Jackson] cannot establish prejudice.”

We agree that this claim is insufficiently pled. Jackson has 

not specified what errors his appellate counsel should have 

discovered or how using a brief allegedly prepared by his trial 

counsel caused a detrimental disposition. Jackson does not 

detail arguments he believes his appellate counsel could have 

successfully set forth in a brief on appeal.

Because Jackson’s claims asserted in his motion for postconviction relief are unable to establish that he suffered prejudice, 

are affirmatively refuted by the record, or are insufficiently 

pled, Jackson was not entitled to an evidentiary hearing. The 

district court did not err in so finding. This assignment of 

error fails.

Constitutional Claim.

Finally, Jackson assigns that the district court erred in 

failing to find the Nebraska Postconviction Act unconstitutional as it applied to Jackson as a pro se litigant. Jackson 

first raised his constitutional claim regarding the Nebraska 

Postconviction Act in his renewed motion to amend and for 

declaratory relief. The district court did not address this claim 

in its order denying the evidentiary hearing. As we discussed 

above, a defendant’s verified motion for postconviction relief 

is the operative filing before the district court in considering 

whether to grant an evidentiary hearing. See State v. Jaeger, 

311 Neb. 69, 970 N.W.2d 751 (2022). Additionally, Jackson 

was not given leave by the district court to amend his original motion for postconviction relief, which implicit ruling we 

have found did not constitute an abuse of discretion. Thus, 
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the district court did not err in failing to address Jackson’s 

constitutional claim.

[13] Furthermore, the appellate court will not consider 

allegations not presented to the district court for disposition 

through the defendant’s verified motion for postconviction 

relief or passed upon by the postconviction court. See id. This 

assignment of error fails.

CONCLUSION

The district court did not err in denying Jackson’s motion 

for postconviction relief without an evidentiary hearing.

Affirmed.