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STATE v. GLASS

Cite as 298 Neb. 598

State of Nebraska, appellee, v.

Greg A. Glass, appella

___ N.W.2d ___

Filed January 5, 2018. No. S-16-861.

1. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

2. 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 findings unless they are 

clearly erroneous. In contrast, an appellate court independently resolves 

questions of law.

3. Effectiveness of Counsel: Appeal and Error. With regard to the 

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 decision.

4. Due Process: Convictions: Proof. The Due Process Clause protects 

the accused against conviction except upon proof beyond a reasonable 

doubt of every fact necessary to constitute the crime with which he or 

she is charged.

5. Homicide: Intent: Lesser-Included Offenses. Both second degree murder and voluntary manslaughter involve intentional killing and are differentiated by the presence or absence of the sudden quarrel provocation 

involved in manslaughter. If the sudden quarrel provocation exists, it 

lessens the degree of the homicide from murder to manslaughter.

6. Criminal Law: Statutes: Convictions: Time: Appeal and Error. A 

new rule applies to criminal cases still pending on direct review, because 

they are not final. As to convictions that are already final, however, the 

rule applies only in limited circumstances.

Nebraska Supreme Court Online Library

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

03/09/2018 08:15 AM CST
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7. Constitutional Law: Criminal Law: Statutes: Sentences: Time. New 

substantive rules of constitutional law for criminal cases generally 

apply retroactively. Substantive rules include rules forbidding criminal 

punishment of certain primary conduct and rules prohibiting a certain 

category of punishment for a class of defendants because of their status 

or offense. Constitutional substantive rules alter the range of conduct or 

the class of persons that the law punishes.

8. Criminal Law: Statutes: Convictions: Time. Substantive rules apply 

retroactively, because they carry a significant risk that a defendant 

stands convicted of an act that the law does not make criminal or faces 

a punishment that the law cannot impose upon him or her.

9. Constitutional Law: Criminal Law: Statutes: Convictions: Time. 

New constitutional rules of criminal procedure generally do not apply 

retroactively. Most procedural rules regulate only the manner of determining the defendant’s culpability. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely 

raise the possibility that someone convicted with use of the invalidated 

procedure might have been acquitted otherwise.

10. Criminal Law: Courts: Time. Courts give retroactive effect to only 

a small set of “watershed rules of criminal procedure” implicating the 

fundamental fairness and accuracy of the criminal proceeding.

11. Habeas Corpus: Courts: States: Jury Instructions: Due Process. A 

federal court may grant habeas relief on the basis of a faulty state law 

jury instruction only if the erroneous instruction so infected the entire 

trial that the resulting conviction violates due process.

12. 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 first 

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). If 

trial counsel was not ineffective, then the defendant was not prejudiced 

by appellate counsel’s failure to raise the issue.

13. Constitutional Law: Effectiveness of Counsel. A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

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

Error. To prevail on a claim of ineffective assistance of counsel, 

the defendant must show that his or her counsel’s performance was 

deficient and that this deficient performance actually prejudiced the 

defendant’s defense. To show prejudice, a defendant must demonstrate 

a reasonable probability that but for his or her counsel’s deficient 
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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.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke,

Miller-Lerman,

I. NATURE OF CASE

In 1999, following a jury trial, Greg A. Glass was convicted of second degree murder and use of a firearm to 

commit a felony. Glass appeals the August 25 and 30, 2016, 

orders of the district court for Douglas County, in which the 

court denied his amended and supplemental motions for postconviction relief after holding an evidentiary hearing. The 

evidence received at the hearing pertained to Glass’ claims 

relating to jury instructions at his trial and to his allegations 

that he had received ineffective assistance of trial and appellate counsel. Glass appeals, repeating his claim that the jury 

instructions given in his case denied him due process and did 

not comply with this court’s holdings in State v. Smith, 282 

Neb. 720, 806 N.W.2d 383 (2011) (State v. Ronald Smith), 

which he contends applies retroactively to his case on collateral review. He also claims that the district court erred when it 

rejected his ineffective assistance of counsel claims. We find 

no error and affirm.
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II. STATEMENT OF FACTS

1. Backgr

In 1999, Glass was convicted of second degree murder 

and use of a firearm to commit a felony. The charges arose 

from the July 1998 shooting death of Glass’ former employer, 

Adolph Fentress, Sr. Fentress was shot in the head while working at an automobile detailing shop, Downtown Auto Sales 

(Downtown Auto), which he co-owned. The facts for which 

we find support in the record are set forth in the memorandum 

opinion of the Nebraska Court of Appeals rejecting Glass’ 

arguments on direct appeal. See State v. Glass, No. A-99-919, 

2000 WL 944020 (Neb. App. July 11, 2000) (not designated 

for permanent publication).

At trial, Glass testified in his own defense. According to his 

testimony, he worked for Downtown Auto earlier in the year 

but had quit. Glass claimed Fentress owed him money, and 

he had tried to collect it on several occasions. According to 

Glass, at one point when he tried to collect his money, Fentress 

threatened him with a tire iron and told him to stay away from 

Downtown Auto.

Glass testified that on July 2, 1998, he had come to 

Downtown Auto again to collect his money, because Fentress 

had agreed to meet him. Glass testified that he brought a gun 

to protect himself because of the previous threatening encounters with Fentress. After they met, Glass and Fentress began 

arguing, and then Glass believed Fentress picked up a weapon. 

Glass testified that he retreated to the door area of the office 

and that Fentress came at him. According to Glass, he raised 

his gun and shot Fentress in self-defense. He testified that he 

then panicked and drove off in a red BMW from the lot.

Several eyewitnesses testified for the prosecution, including 

Downtown Auto employee Deon Marion. Marion testified that 

on the day of Fentress’ death, he was working in the parking lot 

outside and noticed a person whom he later identified as Glass 

standing near the Downtown Auto building. Marion witnessed 

Glass call out to Fentress. Marion observed an expression from 
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Fentress that communicated that something was wrong. Marion 

went into the office and called the police. The sound of a gunshot was picked up in the recording of that telephone call.

Another eyewitness was Adolph Fentress, Jr. (Adolph), the 

teenage son of Fentress. Adolph testified that he observed 

an argument between Fentress and Glass. Adolph said that 

Fentress appeared to have something behind his back and overheard Glass say, “drop it.” Adolph observed something under 

Glass’ shirt, and saw Glass move toward the office, followed 

by Fentress. Adolph testified that Glass pulled out a gun and 

shot Fentress. He next observed Glass go through Fentress’ 

pockets, remove a wallet and keys, and drive away in a red 

BMW that their shop had serviced. Glass was later found in the 

red BMW. When police arrived and processed the scene, they 

found Fentress’ deceased body on the floor of the shop and 

found a tire iron next to his body.

The jury found Glass guilty of second degree murder and 

use of a firearm to commit a felony, and not guilty of theft by 

unlawful taking.

2. Postconviction Pr

Glass filed a pro se motion for postconviction relief on 

August 23, 2012. Among the claims set forth in the motion was 

a claim that trial counsel provided ineffective assistance when 

counsel failed to object to the “malice” definition in the jury 

instructions. The district court appointed counsel for Glass’ 

postconviction proceeding. Glass then amended the motion for 

postconviction relief and claimed he was denied due process 

based on jury instructions which did not require the jury to 

consider manslaughter, that is, whether the killing was intentional, but provoked by a sudden quarrel, before convicting 

Glass of second degree murder. Glass also alleged ineffectiveness of trial and appellate counsel.

Glass argued that the instruction given in his case did not 

comply with our holdings in State v. Ronald Smith and State 

v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013). He claimed 
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ineffective assistance of trial counsel in three respects: failing to call witnesses who would have testified to the victim’s 

violent and aggressive character; failing to relay a plea offer in 

advance of trial; and failing to obtain an expert ballistics witness who could have testified about the range of the gunshot, 

the path of the gunshot, or any other matters that may have 

aided Glass in his self-defense claim. Finally, Glass claimed 

that his separate appellate counsel, who was different from 

his trial counsel, was ineffective on direct appeal for failing to 

allege the foregoing claims against trial counsel.

A hearing was conducted, at which the court received evidence, including testimony from Glass and exhibits including 

depositions of trial and appellate counsel. In an August 25, 

2016, order, the court overruled Glass’ amended motion for 

postconviction relief. With regard to the claim regarding jury 

instructions on second degree murder and manslaughter, the 

court reasoned that the claim was procedurally barred because 

Glass failed to raise it on direct appeal. Alternatively, the court 

rejected the claim because the rule stated in State v. Ronald 

Smith, upon which Glass relied, was not a new constitutional 

rule that required retroactive application, but was a new criminal rule which would not be retroactively applied to cases 

that were final and which were not pending on direct appeal 

when State v. Ronald Smith was decided. The district court 

also concluded that the “step instruction” under which the jury 

first considered second degree murder before considering manslaughter to which Glass now objects was settled law at the 

time of the 1999 trial.

With regard to each of Glass’ ineffective assistance of counsel claims, the court determined that there was no prejudicial 

error by trial counsel for failing to call a witness familiar 

with Fentress’ aggressive character, failing to call an expert to 

address ballistic and autopsy findings, and failing to relay a 

plea offer. With regard to the failure to call a witness familiar 

with Fentress’ character, the court noted that two witnesses 

testified about the behavior of Glass and Fentress prior to 
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the shooting and that the additional witness was not involved 

in the incident giving rise to the case and would not have 

changed the jury’s perception of events. With regard to the 

decision not to call a forensic expert to reexamine the findings 

of the State’s expert regarding the gunshot wound, weapon 

used, autopsy report, and other forensic results, the court noted 

that Glass’ only argument for why it might be necessary was 

because the entrance wound was somewhat irregular. Glass did 

not demonstrate how a different interpretation of the evidence 

would affect the outcome of the case. With regard to the claim 

that trial counsel failed to communicate a plea offer, the court 

found that the evidence refuted the suggestion that a plea deal 

was offered by the State.

Because the court found no prejudicial error by trial counsel 

in connection with any of the claims, it found no prejudicial 

error when Glass’ appellate attorney did not raise the same 

issues on direct appeal.

In an August 30, 2016, order, the district court also overruled 

a supplemental pro se postconviction motion filed by Glass. 

This supplemental motion alleged that the jury was incorrectly 

instructed at trial on second degree murder and manslaughter. 

The district court rejected this claim.

This appeal followed.

III. ASSIGNMENTS OF ERROR

Glass claims that the district court erred when it rejected his 

postconviction allegations that his due process rights to a fair 

trial and impartial jury were violated by the jury instructions 

given at his 1999 trial and that he was prejudiced by the deficient performance of his trial and appellate counsel regarding 

his convictions for second degree murder and use of a firearm 

to commit a felony.

IV. STANDARDS OF REVIEW

[1] When reviewing a question of law, an appellate court 

reaches a conclusion independent of the lower court’s ruling. 

State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
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[2] 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 findings unless they are clearly erroneous. In 

contrast, an appellate court independently resolves questions of 

law. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 

706 (2017).

[3] With regard to the 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 

decision. See State v. Alarcon-Chavez, supra.

V. ANALYSIS

1. Summary of Analy

of Jury Instruct

Glass filed amended and supplemental motions for postconviction relief alleging a constitutional violation under Neb. 

Rev. Stat. § 29-3001 et seq. (Reissue 2016). Our analysis of the 

validity of Glass’ claim is framed by whether he was deprived 

of a constitutional right. As we explain below, we conclude 

that Glass’ constitutional rights were not abridged in connection with the jury instructions of which he complains.

Glass offers several rationales for relief which we consider, 

in turn, in our analysis and ultimately find unpersuasive. His 

several theories rest on his assertion that our decision in State 

v. Ronald Smith applies to his case and affords relief. Because 

we conclude that constitutional principles do not require that 

State v. Ronald Smith be applied retroactively on collateral 

review, that plain error did not occur, and that Glass did not 

suffer a constitutional violation and was not deprived of due 

process, we reject Glass’ claim related to the jury instructions 

that were used at his trial.

[4] Glass contends that under the U.S. Supreme Court’s 

retroactivity test applicable to cases on collateral review, State 
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v. Ronald Smith should be applied retroactively, because it 

announced a new substantive rule of constitutional law which 

violated his rights. See Teague v. Lane, 489 U.S. 288, 109 S. 

Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and 

Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 

L. Ed. 2d 442 (2004). Because it was not a new substantive 

constitutional rule, we reject this argument. Relying on cases 

such as State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013), 

Glass next contends that the jury instruction at his trial constituted plain error requiring reversal. Because the cases on 

which Glass relies were on direct appeal at the time of our 

consideration, they are inapplicable to Glass’ postconviction 

case on collateral review. Ultimately, Glass claims that he suffered a constitutional violation by use of the jury instruction 

that was given at his trial and that as such, it violated due 

process. We recognize that “the Due Process Clause protects 

the accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.” See In re Winship, 397 U.S. 

358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Glass was 

convicted by sufficient proof of second degree murder upon a 

proper jury instruction regarding second degree murder. The 

instruction regarding sudden quarrel manslaughter, albeit now 

deemed faulty, did not deprive Glass of due process in connection with the charge for second degree murder of which he was 

convicted. See id.

2. State v. Ronald Smith

In his postconviction motion, Glass claimed that he was 

denied his constitutional rights because the jury at his 1999 

trial was given improper jury instructions regarding the manner it should consider second degree murder and sudden quarrel manslaughter and also because the elements of sudden 

quarrel manslaughter were inaccurate. Under the jury instructions given in this case, if the jury found proof of second 

degree murder beyond a reasonable doubt, the jury was not 
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required to consider whether the killing was the result of sudden quarrel manslaughter. Glass does not challenge the content 

of the jury instruction regarding second degree murder in and 

of itself. However, he argues that the step instruction given in 

his case did not comply with our holdings in State v. Ronald 

Smith and State v. Trice, supra.

[5] Under our holdings in State v. Ronald Smith, both 

second degree murder and voluntary manslaughter involve 

intentional killing and are differentiated by the presence or 

absence of the sudden quarrel provocation involved in manslaughter. If the sudden quarrel provocation exists, it lessens 

the degree of the homicide from murder to manslaughter. 

Following State v. Ronald Smith, where there is evidence that 

(1) a killing occurred intentionally without premeditation and 

(2) the defendant was acting under the provocation of a sudden 

quarrel, a rational jury could convict a defendant of sudden 

quarrel manslaughter and a jury should be given the option of 

convicting of either second degree murder or sudden quarrel 

manslaughter depending upon its resolution of the fact issue 

regarding provocation. See, also, State v. Smith, 284 Neb. 636, 

822 N.W.2d 401 (2012). Thus, a step instruction which directed 

the jury to convict the defendant of second degree murder if it 

found an intentional killing, but did not allow the jury to also 

consider whether the killing was provoked by a sudden quarrel, 

was an incorrect statement of the law.

3. Teague/Schr

Retroactivity T

In its decisions in Teague v. Lane, 489 U.S. 288, 109 S. 

Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and 

Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. 

Ed. 2d 442 (2004), as well as other cases, the U.S. Supreme 

Court set forth a test for determining when a new rule of constitutional law will be applied to cases on collateral review. 

See, also, Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 

718, 193 L. Ed. 2d 599 (2016). We have adopted the Teague/
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Schriro retroactivity test. See State v. Mantich, 287 Neb. 320, 

842 N.W.2d 716 (2014). The threshold question in this appeal, 

as asserted by Glass, is whether the new rule pronounced in 

State v. Ronald Smith applies to Glass on collateral review. If 

the rule were applicable on collateral review, and assuming 

evidence of sudden quarrel manslaughter existed, we would 

reverse his convictions and remand the cause for a new trial. 

Because Glass’ convictions were final before State v. Ronald 

Smith was decided, he is entitled to relief in this postconviction case if the rule announced in State v. Ronald Smith applies 

retroactively on collateral review.

[6-8] When a decision of this court results in a “new rule,” 

that rule applies to criminal cases still pending on direct 

review, because they are not final. State v. Mantich, supra. 

See Schriro v. Summerlin, supra. As to convictions that are 

already final, however, the rule applies only in limited circumstances. Id. New substantive rules of constitutional law for 

criminal cases generally apply retroactively. Substantive rules 

include “‘rules forbidding criminal punishment of certain primary conduct’” and “‘rules prohibiting a certain category of 

punishment for a class of defendants because of their status 

or offense.’” Montgomery v. Louisiana, 136 S. Ct. at 728. 

Constitutional substantive rules “‘alter[] the range of conduct 

or the class of persons that the law punishes.’” Montgomery 

v. Louisiana, 136 S. Ct. at 732. Such rules apply retroactively, because they “‘necessarily carry a significant risk that 

a defendant stands convicted of “an act that the law does not 

make criminal”’” or faces a punishment that the law cannot 

impose upon him or her. State v. Mantich, 287 Neb. at 330, 

842 N.W.2d at 724.

[9,10] New constitutional rules of criminal procedure, on the 

other hand, generally do not apply retroactively. Montgomery 

v. Louisiana, supra. Most procedural rules “regulate only the 

manner of determining the defendant’s culpability.” Schriro v. 

Summerlin, 542 U.S. at 353 (emphasis in original). They do 

not produce a class of persons convicted of conduct the law 
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does not make criminal, but merely raise the possibility that 

someone convicted with use of the invalidated procedure might 

have been acquitted otherwise. Schriro v. Summerlin, supra.

“Because of this more speculative connection to innocence, we 

give retroactive effect to only a small set of ‘“watershed rules 

of criminal procedure” implicating the fundamental fairness 

and accuracy of the criminal proceeding.’” 542 U.S. at 352. 

Accord Montgomery v. Louisiana, supra. This class of rules is 

extremely narrow. Schriro v. Sumerlin, supra.

4. New Rule in St

v. Ronald Smith

Although State v. Ronald Smith announced a new manslaughter rule which we applied on direct review, see State v. 

Trice, 286 Neb. 183, 835 N.W.2d 667 (2013), it did not recognize a new constitutional rule, see State v. Smith, 284 Neb. 636, 

822 N.W.2d 401 (2012), or a new constitutional claim for purposes of timeliness as understood in Nebraska’s postconviction 

statutes. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 

(2016). As discussed above, a new rule applies retroactively 

on collateral review only if it is (1) a constitutional substantive 

rule or (2) a watershed rule of criminal procedure. Glass does 

not argue that the rule in State v. Ronald Smith implicates a 

watershed rule of criminal procedure, and we agree. Thus, we 

turn to his argument that the rule applies retroactively because 

it is a substantive constitutional rule. As explained below, we 

reject this argument.

In State v. Ronald Smith, we clarified both that sudden 

quarrel manslaughter is an intentional crime and that a step 

jury instruction requiring a jury to acquit the defendant of 

second degree murder before considering sudden quarrel manslaughter is improper. In Harrison, we concluded that State v. 

Ronald Smith did not recognize a new constitutional claim and 

therefore did not toll the 1-year statute of limitations under 

§ 29-3001(4)(d) for timely filing a postconviction motion. 

We explained that State v. Ronald Smith was based upon our 
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interpretation of the criminal statute that defines manslaughter, Neb. Rev. Stat. § 28-305 (Reissue 2016), not on a newly 

recognized constitutional right.

We conclude that the holding in State v. Ronald Smith that it 

is improper for a jury to consider second degree murder without simultaneously considering sudden quarrel manslaughter 

is a change to the acceptable method for the jury to deliberate 

and is a procedural rule change “regulat[ing] only the manner of determining the defendant’s culpability.” See Schriro v. 

Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d 

442 (2004).

State v. Ronald Smith also interpreted the language of the 

manslaughter statute to clarify the intent requirement for sudden quarrel manslaughter and dispel the confusion between 

the statutory crimes of second degree murder and sudden 

quarrel manslaughter. See § 28-305(1). We believe that nonretroactivity of the State v. Ronald Smith rule poses no danger 

to Glass of a wrongful conviction for second degree murder. 

In the instant case, the jury found Glass guilty of second 

degree murder. The record shows that a rational jury could 

find each element of second degree murder beyond a reasonable doubt.

5. Due Proc

Glass contends that the holdings in State v. Ronald Smith

show that he suffered a constitutional violation, thereby depriving him of due process. We do not agree.

When Glass was tried in 1999, the criminal law in Nebraska 

regarding second degree murder had been clarified in State v. 

Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and malice 

was not an element of second degree murder, the absence of 

provocation was not an element of second degree murder, and 

a conviction for manslaughter did not require proof of intent.

[11] In another postconviction case which concerned a 2004 

homicide, State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 

(2011), we reasoned that a comparable step instruction for 
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second degree murder and manslaughter did not relieve the 

State of its burden to prove the elements of second degree 

murder and did not violate due process. Subsequently, the U.S. 

Court of Appeals for the Eighth Circuit rejected the defendant’s federal habeas petition complaining that our rejection 

of his postconviction claims denied him due process rights. 

Iromuanya v. Frakes, 866 F.3d 872 (8th Cir. 2017). The Eighth 

Circuit stated that our rejection of the defendant’s claims relating to his jury instructions “was not contrary to, nor an unreasonable application of, [Nebraska] Supreme Court precedent.” 

Id. at 879. The Eighth Circuit offered the following quote 

regarding due process: “A federal court may grant habeas 

relief on the basis of a faulty state law jury instruction only if 

the erroneous instruction ‘so infected the entire trial that the 

resulting conviction violates due process.’” Id. at 881 (quoting 

Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 

385 (1991)). The Eighth Circuit added that complaints about 

the retroactivity of State v. Ronald Smith are “not a federal due 

process problem,” Iromuanya v. Frakes, 866 F.3d at 881, thus 

leaving the issue for our resolution.

Applicable U.S. Supreme Court precedent for due process 

requires the State to prove beyond a reasonable doubt every 

fact necessary to constitute the crime with which a defendant 

is charged. See In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 

25 L. Ed. 2d 368 (1970). At Glass’ trial, as we have noted, the 

State was required to prove beyond a reasonable doubt each 

of the elements of the crime of which Glass stands convicted, 

second degree murder. The suggestion by Glass that the jury 

might have convicted him of sudden quarrel manslaughter 

does not defeat the validity of his second degree murder 

conviction on collateral review where the conviction was supported by sufficient evidence. We conclude that notwithstanding our holdings in State v. Ronald Smith, given the sufficient 

evidence of the commission of second degree murder, Glass’ 

due process right to trial by an impartial jury was not offended 

by the step jury instruction requiring the jury to first acquit 
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Glass of second degree murder before considering sudden 

quarrel manslaughter, or by defining manslaughter as an unintentional crime.

6. Ineffective Assi

of Counse

[12] Glass was represented by different counsel at trial and 

on appeal. Glass sought postconviction relief for the alleged 

ineffective assistance provided by his trial counsel and appellate counsel. 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 

first 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). State v. Dubray, 294 Neb. 937, 953, 885 

N.W.2d 540, 554 (2016). If trial counsel was not ineffective, 

then the defendant was not prejudiced by appellate counsel’s 

failure to raise the issue. State v. Dubray, supra.

[13,14] Before considering Glass’ specific claims for postconviction relief, we review the applicable general standards. 

The Nebraska Postconviction Act, § 29-3001 et seq., provides 

that postconviction relief is available to a prisoner in custody 

under sentence who seeks to be released on the ground that 

there was a denial or infringement of his or her constitutional 

rights such that the judgment was void or voidable. State 

v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). A proper 

ineffective assistance of counsel claim alleges a violation of 

the fundamental constitutional right to a fair trial. State v. 

Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). To prevail on a 

claim of ineffective assistance of counsel under Strickland v. 

Washington, supra, 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. Vela, supra. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate 
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a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different. State v. Vela, supra. 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. Id.

Following our independent review, we conclude that the 

district court did not err when it rejected Glass’ ineffective 

assistance of counsel claims after an evidentiary hearing.

(a) Trial Counsel’s Failure to Call 

a Witness to Testify to the 

Victim’s Violent Character

Glass alleged that trial counsel was ineffective because he 

failed to call a potential witness who would have testified that 

Fentress generally had a reputation for being violent. In his 

testimony, Glass’ trial counsel denied that Glass told him about 

“any witnesses whatsoever” who would have testified about 

Fentress’ tendency for violence.

The record shows that the additional witness now proposed 

by Glass was not involved in the incident giving rise to the 

case and, we believe, even if relevant, would not have changed 

the jury’s perception of events. As the district court noted in 

its order, two witnesses testified at trial about the behavior 

of Glass and Fentress prior to the shooting. Even if admitted, 

the proposed additional witness testimony would have been 

cumulative and Glass was not prejudiced by trial counsel’s 

alleged failure to call the potential witness. See State v. Grant, 

293 Neb. 163, 876 N.W.2d 639 (2016). We find no prejudicial error.

(b) Trial Counsel’s Decision Not 

to Retain an Expert to Address 

Ballistic and Autopsy Findings

Glass alleged that trial counsel was ineffective by failing 

to retain and call an expert to address ballistic and autopsy 
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findings at trial. Glass’ trial counsel testified that he never 

considered retaining an independent expert, because he saw no 

reason to do so; he was comfortable with the autopsy findings, 

and based on his experience, he knew that the conclusions 

about the lack of stippling and its correlation to the distance 

between the shooter and the victim was accurate and consistent 

with the evidence.

With regard to the decision not to call a forensic expert to 

reexamine the findings of the State’s expert regarding the gunshot wound, weapon used, autopsy report, and other forensic 

results, the district court in its order noted that Glass’ only 

argument for why such evidence might be necessary was 

because the entrance wound was somewhat irregular. Glass did 

not present evidence or a specific explanation of how a different interpretation of the evidence would have affected the 

outcome of the case. Trial counsel was not deficient in failing 

to engage a ballistics expert.

(c) Trial Counsel Not 

Relaying Plea Offer

Glass alleged that his trial counsel was deficient and that he 

was prejudiced because counsel failed to look into and relay a 

plea offer by the State. At the hearing on his amended motion, 

Glass testified that he asked his trial counsel to look into a 

potential plea deal. Approximately 9 years after his trial, Glass 

claims that his family told him that the State had “supposedly” 

extended a plea offer of manslaughter. At the evidentiary hearing, Glass’ trial counsel testified that there was never a plea 

offer from the State, that the State was adamant about taking 

the case to trial, and that if the State would have allowed Glass 

to plead to manslaughter, counsel would have relayed it to 

Glass and definitely advised him to accept the deal. The district 

court found trial counsel’s testimony credible and determined 

that there was no deficient performance by trial counsel for not 

relaying a plea offer, because Glass did not show the existence 

of a plea offer by the State, other than by an unsubstantiated 
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rumor. The district court’s findings are not clearly erroneous, 

and they support the district court’s rejection of this claim. 

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

(2017). The district court did not err.

(d) Ineffectiveness of Appellate 

Counsel Claims

Glass also alleged ineffectiveness of appellate counsel for 

failing to raise the above issues on direct appeal. Because 

the court found no prejudicial error by trial counsel in connection with any of the claims, it found no prejudicial error 

when Glass’ appellate attorney did not raise the same issues 

on direct appeal. State v. Dubray, 294 Neb. 937, 885 N.W.2d 

540 (2016).

Direct appeal counsel testified that he did not recall Glass’ 

asking him to raise claims of ineffective assistance of trial 

counsel based on Glass’ present allegations. This testimony 

is also supported by a letter to appellate counsel regarding 

claims for ineffective assistance of trial counsel in which Glass 

made no mention of the three ineffective assistance of counsel 

claims Glass is currently raising.

As noted above, trial counsel was not deficient and appellate counsel was not ineffective when he did not raise the 

claims Glass now asserts without success. Accordingly, we 

conclude that the district court did not err when it concluded 

that Glass’ allegations regarding appellate counsel’s performance were without merit, and we therefore affirm the orders 

denying postconviction relief.

VI. CONCLUSION

As explained above, we conclude that the holdings in State 

v. Ronald Smith do not apply to Glass retroactively on collateral review. The State was required to prove each element 

of the crime of second degree murder of which Glass stands 

convicted, and because the evidence was sufficient, Glass’ 

convictions did not offend his due process rights. Further, we 
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have reviewed Glass’ claims of ineffectiveness of trial and 

appellate counsel and agree with the district court that they are 

without merit. Accordingly, we conclude that the district court 

did not err when it denied Glass’ amended and supplemental 

motions for postconviction relief.

Affirmed

Wright, J., not participating in the decision