- 1 -

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. MILLER

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

MICHAEL S. MILLER, APPELLANT.

Filed December 26, 2023. No. A-22-950.

Appeal from the District Court for Douglas County: LEANNE M. SRB, Judge. Affirmed.

Michael S. Miller, pro se.

Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Michael S. Miller appeals from the Douglas County District Court’s order denying his 

motion for postconviction relief without an evidentiary hearing. He contends that the district court 

erred in finding that the allegations in his motion were insufficient to warrant a hearing. For the 

reasons stated herein, we affirm.

STATEMENT OF FACTS

In February 2020, pursuant to a plea agreement, in case number CR 19-3142, Miller pled 

no contest to theft by receiving in the amount of $5,000 or more, a Class IIA felony, and was 

sentenced to 4 to 5 years’ imprisonment with credit for 11 days served. In case number CR 

19-4517, Miller pled no contest to possession of a firearm by a prohibited person, a Class ID 

felony, and was sentenced to 10 to 12 years’ imprisonment with a mandatory minimum of 3 years’
- 2 -

imprisonment. Miller received credit for 227 days served and the sentences were ordered to be 

served consecutively.

Following his convictions and imposition of the sentences, Miller, who was represented by 

new counsel, filed a direct appeal in each case which were consolidated for the purposes of appeal. 

See State v. Miller, No. A-20-433, 2021 WL 1186401 (Neb. App. Mar. 30, 2021) (not designated 

for permanent publication). On appeal, Miller argued that (1) the sentences imposed were 

excessive; and (2) trial counsel was ineffective (a) in failing to interview any witnesses and/or 

securing the arresting officers’ body cam footage; (b) in not being physically able to take his case 

to a jury trial; and (c) in failing to file any motions and/or make any challenge to the State’s 

evidence. In an opinion affirming Miller’s convictions and sentences, this court found that the 

sentences imposed were not excessive; that he failed to sufficiently and specifically raise his claim 

that trial counsel was ineffective for failing to interview witnesses and for failing to file any 

motions or otherwise challenge the State’s evidence; and that the record affirmatively refuted his 

claim that counsel was ineffective for failing to secure or obtain body camera footage, and his 

claim that his counsel was ineffective for being physically unable to take Miller’s case to a jury 

trial. The mandate issued on June 7, 2021.

In March 2022, Miller timely filed a pro se verified motion for postconviction relief. In his 

motion, he alleged that (1) his Fourth Amendment right against unreasonable searches and seizures 

was violated by law enforcement’s investigation in this matter; (2) his Fifth Amendment right to 

due process was violated because of trial counsel’s ineffectiveness because the evidence was 

insufficient to support his plea, rendering his plea void, and the trial court abused its discretion in 

certain trial decisions; (3) his trial counsel was ineffective in multiple ways; and (4) he received 

ineffective assistance of appellate counsel.

In an order denying his motion for postconviction relief without an evidentiary hearing, the 

district court found that Miller’s first three claims were procedurally barred and that his fourth 

claim alleging ineffective assistance of appellate counsel contained insufficient factual allegations 

to demonstrate a constitutional violation. Miller has timely appealed to this court.

ASSIGNMENTS OF ERROR

Miller assigns that the district court erred in (1) finding that the record and allegations in 

his motion for postconviction relief did not establish that his rights to effective assistance of 

counsel, equal protection, and against cruel and unusual punishment were violated when trial 

counsel allowed him to be charged, convicted, and sentenced for theft by receiving stolen property 

$5,000 or more; (2) failing to find that his trial counsel was ineffective for failing to locate an alibi 

witness who later submitted an affidavit to show Miller’s lack of intent to commit the offense of 

theft by receiving; and (3) finding that his appellate counsel was not ineffective for failing to assign 

as error and brief the issues regarding the ineffectiveness of trial counsel, especially where the 

record was made clear by trial counsel and the court as to being little or no value on the skid loader.

STANDARD OF REVIEW

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 
- 3 -

or her constitutional rights or that the record and files affirmatively show that the defendant is 

entitled to no relief. State v. Harms, 315 Neb. 445, 996 N.W.2d 859 (2023).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question 

of law which an appellate court reviews independently of the lower court’s ruling. Id.

ANALYSIS

Before considering Miller’s assignments of error, we briefly summarize the standard for 

postconviction relief. Postconviction relief is a very narrow category of relief, available only to 

remedy prejudicial constitutional violations. State v. Williams, 295 Neb. 575, 889 N.W.2d 99 

(2017). In a motion for postconviction relief, the defendant must allege facts which, if proved, 

constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing 

the judgment against the defendant to be void or voidable. Id. Neb. Rev. Stat. § 29-3001(2) 

(Reissue 2016) requires that the court grant a prompt hearing “[u]nless 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 

. . . .” Under the act, an evidentiary hearing on a motion for postconviction relief must be granted 

when the motion contains factual allegations which, if proved, constitute an infringement of the 

movant’s rights under the Nebraska or federal Constitution. See State v. Williams, supra. However, 

if the motion alleges only conclusions of fact or law, or the records and files in the case 

affirmatively show that the movant is entitled to no relief, no evidentiary hearing is required. Id.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

In his first and second assignments of error, Miller generally assigns that the district court 

erred in denying his motion for postconviction relief as it related to his claims regarding trial 

counsel’s ineffectiveness in allowing him to be charged under an incorrect statute and in failing to 

locate an alibi witness who would provide evidence relating to Miller’s lack of intent to commit 

the offense of theft by receiving.

To establish a right to postconviction relief because of counsel’s ineffective assistance, the 

defendant has the burden, under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s 

performance did not equal that of a lawyer with ordinary training and skill in criminal law. State 

v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). Next, the defendant must show that counsel’s 

deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the 

defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, 

the result of the proceeding would have been different. Id. A court may address the two prongs of 

this test, deficient performance and prejudice, in either order. Id.

However, a motion for postconviction relief cannot be used to secure review of issues 

which were or could have been litigated on direct appeal. Id. A motion for postconviction relief 

asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was 

represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of 

trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial 

counsel’s performance were known to the defendant or apparent from the record. Id.

Ordinarily, when a defendant’s trial counsel is different from his or her counsel on direct 

appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 
- 4 -

performance which is known to the defendant or is apparent from the record. State v. Parnell, 305 

Neb. 932, 943 N.W.2d 678 (2020). Otherwise, the issue will be procedurally barred. Id. A claim 

of ineffective assistance of appellate counsel which could not have been raised on direct appeal 

may be raised on postconviction review. Id.

Here, Miller was represented on direct appeal by different counsel than had represented 

him during his plea and sentencing hearings. Any allegations that trial counsel had an obligation 

to realize an alleged error in the State’s charges against Miller or trial counsel’s failure to locate 

an alibi witness would have been known to Miller and would have been apparent from the record 

at the time of his direct appeal. Therefore, Miller was required to raise these issues on direct appeal 

and, since he did not do so, these claims are procedurally barred.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In his third assignment of error, Miller assigns that the district court erred in finding that 

his appellate counsel was not ineffective for failing to assign as error and brief allegations of the 

ineffectiveness of trial counsel “especially where the record was made clear by trial counsel and 

the Court as to [there] being little or no value on the skid loader” which formed the basis for his 

conviction for theft by receiving. Brief for appellant at 3.

In State v. Garcia, 315 Neb. 74, 84-85, 994 N.W.2d 610, 639-40 (2023), the Nebraska 

Supreme Court stated:

First, we have long held that to be considered by an appellate court, the party 

asserting the alleged error must both specifically assign and specifically argue the error in 

the party’s initial brief. Where an appellant’s brief contains conclusory assertions 

unsupported by a coherent analytical argument, the appellant fails to satisfy such 

requirement. Moreover, we have held that, in both the criminal and postconviction context, 

an appellate court will not ordinarily scour the record in search of facts that might support 

an appellant’s claim.

. . . .

For the purposes of briefs filed with the appellate courts, we do not encourage the 

practice of incorporating by reference any content material to a party’s argument, 

particularly when such references are unclear, and any party who does incorporate by 

reference does so at the party’s own peril.

Here, the entirety of Miller’s argument regarding his allegations of ineffective assistance 

of appellate counsel is as follows:

[Miller] further offers . . . as to where [his] Appellate Counsel was ineffective for 

failing to specifically allege deficient performance of trial [c]ounsel. . . Again, [Miller’s] 

rights [were] well[-]preserved per [the] U.S. and Nebraska’s Constitution[s]. [Miller] 

request[s that the appellate court] look at . . . Plain Error . . .

(Citations omitted.) Brief for appellant at 13.

Because Miller failed to specifically argue his allegations of ineffective assistance of 

appellate counsel in his brief, we will not consider his assignment of error that his appellate counsel 

was ineffective in failing to raise and brief trial counsel’s errors on direct appeal.
- 5 -

CONCLUSION

Having found that Miller’s assigned errors are procedurally barred or were not sufficiently 

argued in his appellate brief, we affirm.

AFFIRMED.