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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

State of Nebraska, appellee, v. 

Ryan L. Yates, appellant.

___ N.W.2d ___

Filed January 2, 2024. No. A-23-200.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

3. Appeal and Error. Alleged errors of the lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be considered by the appellate court.

4. Postconviction: Constitutional Law: Proof. The district 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 state or 

federal Constitution.

5. ____: ____: ____. 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.

Appeal from the District Court for Cass County: Michael 

A. Smith, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

01/02/2024 08:04 AM CST
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

Ryan L. Yates, pro se.

Michael T. Hilgers, Attorney General, and Melissa R. 

Vincent for appellee.

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Ryan L. Yates appeals the order of the Cass County District 

Court that denied his verified motion for postconviction relief 

without holding an evidentiary hearing. He claims the court 

imposed upon him a higher burden of proof than that contained in the governing statute when denying an evidentiary 

hearing. We affirm.

BACKGROUND

In October 2019, the State filed charges against Yates for 

first degree sexual assault of a child. Yates later filed a motion 

to take depositions. At the hearing on the motion to take depositions, Yates’ counsel requested that the court strike the victim, 

M.P.S., from Yates’ motion to take depositions. The district 

court granted the motion to take depositions of the remaining 

five people Yates listed.

On August 7, 2020, a jury found Yates guilty of one count 

of first degree sexual assault of a child. He was sentenced 

to 20 to 25 years’ imprisonment, with a 15-year mandatory 

minimum, in which good-time credit shall not accrue. Yates 

appealed, and he was represented by the same counsel at trial 

and on appeal to this court. This court affirmed Yates’ conviction and sentence on September 7, 2021. See State v. Yates, 

No. A-20-838, 2021 WL 4057807 (Neb. App. Sept. 7, 2021) 

(selected for posting to court website).

In October 2022, Yates filed a petition for postconviction 

relief. In his petition, he raised nine claims of ineffective 

assistance of counsel: (1) failure to take the deposition of 

M.P.S.; (2) failure to effectively cross-examine M.P.S.; (3) 
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

failure to take the deposition of A.P.Y.; (4) failure to take the 

deposition of N.Y., a witness of the crime who testified against 

Yates; (5) failure to adequately prepare Yates for trial; (6) 

failure to object and preserve the record; (7) failure to strike 

a juror; (8) failure to strike a prosecutor’s comment during 

his cross-examination of Yates; and (9) failure to convey a 

plea offer.

The district court denied Yates’ motion for postconviction 

relief without an evidentiary hearing. It held that regarding 

Yates’ claims that his trial counsel should have deposed certain witnesses, Yates failed to show that his trial counsel was 

unaware of the witnesses’ prior statements or of facts known 

to these witnesses; thus, his allegations were speculative and 

did not include facts, if proved, that would show an infringement of his rights occurred. For Yates’ claims about crossexamining M.P.S., failing to strike the prosecutor’s comment, 

and failing to strike the juror, the district court explained that 

deference is given to trial counsel in determining issues related 

to trial strategy and that Yates failed to allege any facts that 

would support a finding of prejudice. Lastly, the district court 

held that Yates failed to allege that a plea offer was made, 

which meant his final claim contained a defect sufficient to 

deny an evidentiary hearing. Yates appeals.

ASSIGNMENT OF ERROR

Yates assigns that the district court committed plain error 

by denying him an evidentiary hearing on all of his claims in 

his petition for postconviction relief.

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. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by 

the court below. State v. Goynes, 293 Neb. 288, 876 N.W.2d 

912 (2016).

[3] Alleged errors of the lower court must be both specifically assigned and specifically argued in the brief of the party 

asserting the errors to be considered by an appellate court. 

State v. Lessley, supra.

ANALYSIS

Yates argues on appeal that the district court violated his 

rights under the Nebraska Postconviction Act, the Nebraska 

Constitution, and the U.S. Constitution. Yates explains that the 

district court should have granted him an evidentiary hearing 

because under Neb. Rev. Stat. § 29-3001 (Reissue 2016), proof 

of his claims is not a prerequisite for an evidentiary hearing. Yet, the district court denied him an evidentiary hearing 

because none of his claims, if proved, resulted in a violation of 

his constitutional rights. He argues as follows:

The problem is that the district court applied an unconstitutional case law rule/bar that requires a movant to 

meet all of the requirements needed to get relief, like a 

new trial—i.e. showing deficiency and prejudice to cause 

the judgment to be void—and holding that that same 

standard is required to get an evidentiary hearing, without 

conducting an evidentiary hearing.

Brief for appellant at 19. He contends that the Nebraska 

Postconviction Act imposes a lighter burden to obtain an 

evidentiary hearing, specifically that it contains no language requiring a movant to prove an infringement of his or 

her constitutional rights as a prerequisite to an evidentiary 

hearing. Yates’ argument is contrary to the purpose of the 

Nebraska Postconviction Act and the criteria and procedure 

set forth therein.
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

Section 29-3001(1) provides that a prisoner in custody can 

file a postconviction motion for relief on the basis that there 

was a denial or infringement of his or her rights that would 

render the judgment void or voidable under the Nebraska or 

U.S. Constitution. Section 29-3001(2) sets forth the criteria 

and the procedure by which an evidentiary hearing is granted. 

It provides in part:

Unless the motion and the files and records of the case 

show to the satisfaction of the court that the prisoner is 

entitled to no relief, the court shall cause notice thereof to 

be served on the county attorney, grant a prompt hearing 

thereon, and determine the issues and make findings of 

fact and conclusions of law with respect thereto.

Section 29-3001(2) does not require an evidentiary hearing if 

the court is satisfied that the petitioner is not entitled to relief. 

Appellate courts give statutory language its plain and ordinary 

meaning, and will not look beyond the statute to determine 

legislative intent when the words are plan, direct, and unambiguous. State v. Goynes, supra.

Shortly after the Nebraska Postconviction Act was adopted, 

the Nebraska Supreme Court explained that the purpose of the 

act is to ensure relief is provided “‘in those cases where a miscarriage of justice may have occurred.’” State v. Robertson, 

294 Neb. 29, 43, 881 N.W.2d 864, 876 (2016), quoting State v. 

Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966). However, 

the act is not “‘a procedure to secure a routine review for any 

defendant dissatisfied with his sentence.’” Id. Before a court 

notifies the county attorney and orders an evidentiary hearing, 

it must first determine whether the motion, files, and records 

of the case show petitioner’s rights were not violated. If they 

show no violation, then no evidentiary hearing is required. 

See State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). 

To hold otherwise would permit defendants to misuse and 

abuse a remedy intended to provide relief for those exceptional cases where the rights of a defendant have been ignored 

or abused. State v. Clingerman, supra.
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

Here, Yates’ argument misinterprets § 29-3001. Yates contends that “according to § 29-3001(2), once the court causes 

notice thereof to be served on the county attorney, [y]ou are 

entitled to relief and, therefore, the court must grant a prompt 

hearing.” Brief for appellant at 22. We reject this argument for 

two reasons.

First, Yates’ argument ignores the first part of § 29-3001(2), 

which states, “Unless the motion and the files and records of 

the case show to the satisfaction of the court that the prisoner 

is entitled to no relief . . . .” The mandate to cause notice 

thereof to be served on the county attorney for an evidentiary 

hearing is plain and unambiguous. It is triggered only upon 

the court’s finding the petitioner is not precluded from relief, 

which is the mechanism to distinguish between a dissatisfied 

defendant and a miscarriage of justice. See, State v. Lessley, 

supra; State v. Clingerman, supra. The district court determined that Yates was not entitled to relief because his claims—

if proved—would not show a violation of his rights.

Second, a request for the State to respond to a postconviction motion does not trigger a requirement that an evidentiary hearing be granted. See State v. Robertson, supra. The 

Supreme Court observed that nothing in the postconviction 

statutes precludes a district court from asking the State to 

respond prior to determining whether an evidentiary hearing is 

warranted. Id.

Through case law, the Supreme Court has provided guidelines for both the courts and litigants in postconviction proceedings. Consistent with the Nebraska Postconviction Act, 

the Supreme Court has enunciated the following principles.

[4,5] The district 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 state or 

federal Constitution. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 

751 (2022). However, the allegations in a motion for postconviction relief must be sufficiently specific for the district 
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

court to make a preliminary determination as to whether an 

evidentiary hearing is justified. Id. 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. Id.

When a district court denies postconviction relief without 

conducting an evidentiary hearing, an appellate court determines de novo whether the petitioner has alleged facts that 

would support the claim and, if so, whether the files and 

records affirmatively show that he or she is entitled to no 

relief. Id. The appellate court does not conduct this review 

sua sponte, however; as with all appeals, the alleged errors of 

the lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be 

considered by the appellate court. Id. The appellate court will 

not scour the record on appeal to understand unclear arguments or find support for broad conclusions. Id.

Applying the postconviction statutes and the principles set 

forth above, we reject Yates’ argument that the district court 

imposed a greater burden of proof on him than required by 

statute when denying him an evidentiary hearing. The court 

was first required to determine whether the postconviction 

motion alleged facts that would support Yates’ claim and, if 

so, whether the files and records affirmatively showed that 

he was entitled to no relief. The district court’s order reveals 

that is the procedure followed. For example, Yates stated in 

his postconviction petition that he did not know whether a 

plea offer had been made by the State, but that counsel would 

be ineffective for not relaying it, if one had been made. The 

district court reasoned that the absence of an allegation that 

a plea offer was actually made ordinarily would be a sufficient defect to deny an evidentiary hearing, and we agree. 
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. YATES

Cite as 32 Neb. App. 555

See State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012) 

(holding that defendant cannot use postconviction procedure 

to fish for evidence which he hopes might aid him in obtaining postconviction relief). Thus, Yates’ motion, itself, failed 

to allege facts showing he was entitled to relief; therefore, no 

evidentiary hearing was required on this claim. This determination does not increase the burden of proof imposed upon 

him under § 29-3001.

We do not review the merits of Yates’ remaining claims 

made in his petition for postconviction relief, because they 

are not before this court. On appeal, Yates assigned only one 

error: The district court plainly erred by denying Yates an 

evidentiary hearing. As explained above, his argument in support of his assigned error addressed only the degree of proof 

the district court imposed in denying an evidentiary hearing. 

Having found no error in the district court’s application of the 

postconviction statutes, and because Yates does not specifically 

assign or argue the merits of his specific claims, we do not 

consider them. See State v. Jaeger, 311 Neb. 69, 970 N.W.2d 

751 (2022) (errors must be specifically assigned and argued to 

obtain appellate review).

CONCLUSION

The district court properly denied Yates’ petition for postconviction relief without an evidentiary hearing. The district 

court correctly applied the postconviction criteria and procedure set forth in § 29-3001; thus, we affirm.

Affirmed.