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STATE V. COX

Cite as 314 Neb. 104

State of Nebraska, appellee, v. 

Forrest R. Cox III, appellant.

___ N.W.2d ___

Filed April 27, 2023. No. S-22-542.

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: Right to Counsel: Appeal and Error. An appellate 

court reviews the failure of the district court to provide court-appointed 

counsel in a postconviction proceeding for an abuse of discretion.

3. Postconviction: Constitutional Law: Judgments: Proof. 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.

4. Postconviction: Constitutional Law: Proof. 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.

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.

6. Postconviction: Pleadings. The allegations in a motion for postconviction relief must be sufficiently specific for the district court to 

make a preliminary determination as to whether an evidentiary hearing 

is justified.

Nebraska Supreme Court Online Library

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

04/27/2023 08:04 AM CDT
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7. 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.

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

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

9. 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.

10. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the 

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

L. Ed. 2d 674 (1984), may be addressed in either order, and the entire 

ineffectiveness analysis should be viewed with a strong presumption that 

counsel’s actions were reasonable.

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

Error. To show prejudice under the prejudice component of the test 

under 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 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.

12. Postconviction. In a motion for postconviction relief, a defendant is 

required to specifically allege what the testimony of potential witnesses 

would have been if they had been called at trial in order to avoid dismissal without an evidentiary hearing.

13. ____. Absent specific allegations, a motion for postconviction relief 

effectively becomes a discovery motion to determine whether evidence 

favorable to a defendant’s position actually exists.

14. Effectiveness of Counsel: Jury Instructions. Defense counsel is 

not ineffective for failing to object to jury instructions that, when 

read together and taken as a whole, correctly state the law and are 

not misleading.

15. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence to 
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Cite as 314 Neb. 104

sustain the conviction, the relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

16. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction, an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the 

absence of prejudicial error, if the evidence admitted at trial, viewed 

and construed most favorably to the State, is sufficient to support 

the conviction.

17. Postconviction: Constitutional Law. A claim of actual innocence may 

be a sufficient allegation of a constitutional violation under the Nebraska 

Postconviction Act.

18. Postconviction: Evidence. The essence of a claim of actual innocence 

is that the State’s continued incarceration of such a petitioner without an 

opportunity to present newly discovered evidence is a denial of procedural or substantive due process.

19. Postconviction: Evidence: Presumptions: Proof. The threshold to 

entitle a prisoner to an evidentiary hearing on a postconviction claim of 

actual innocence is extraordinarily high. Such a petitioner must make a 

strong demonstration of actual innocence because after a fair trial and 

conviction, the presumption of innocence vanishes.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Forrest R. Cox III, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Forrest R. Cox III appeals the order of the district court 

for Douglas County which denied his motion for postconviction relief without an evidentiary hearing. Cox, who is serving consecutive sentences for three convictions, including 
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Cite as 314 Neb. 104

a life sentence for first degree murder, set forth claims of 

ineffective assistance of counsel both at trial and on direct 

appeal. The district court determined that all of Cox’s claims 

were either insufficiently pled or affirmatively refuted by the 

record, and it therefore denied his motion for postconviction 

relief without an evidentiary hearing. Although our reasoning 

differs somewhat from that of the district court, we affirm.

II. STATEMENT OF FACTS

Cox was convicted of first degree murder, use of a deadly 

weapon to commit a felony, and possession of a deadly weapon 

by a prohibited person. The charges arose from a shooting in 

the parking lot of a convenience store in Omaha, Nebraska, on 

March 6, 2017. The victim of the shooting, Laron Rogers, died 

of his injuries on March 22. The district court sentenced Cox 

to imprisonment for life for the murder conviction, for 25 to 

30 years for the use conviction, and for 40 to 45 years for the 

possession conviction; the court ordered the sentences to be 

served consecutively.

In Cox’s direct appeal, State v. Cox, 307 Neb. 762, 763-66, 

985 N.W.2d 395, 397-99 (2020), we set forth the evidence in 

this case as follows:

According to testimony and evidence presented at trial, 

an employee of the convenience store called emergency 

services upon learning of a shooting in the parking lot of 

the store. Rogers was lying on the ground. Rogers was 

initially stabilized and taken to a hospital, but he did not 

respond to questions about who had shot him.

Two different witnesses at the scene of the shooting 

testified that Rogers was leaning into a white vehicle 

without license plates, which vehicle was identified by 

both witnesses as a Chevy Impala. According to the witnesses, it appeared that Rogers was talking to the occupants of the vehicle. A gunshot was heard, and Rogers 

walked a few steps before collapsing. The witnesses 

both testified that the white Impala then drove off. 
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Law enforcement later obtained surveillance video from 

the scene and confirmed that the suspect vehicle was a 

white Impala.

During the course of the investigation, law enforcement 

visited Rogers’ place of employment, a cell phone store, 

and spoke with the store manager. The manager showed 

law enforcement video clips that were taken earlier on 

the day of Rogers’ shooting. The video clips showed two 

men inside the store. According to the manager, coworkers had seen Rogers outside the store interacting with the 

men prior to the men entering the store. Law enforcement was able to identify Cox at the time the clips were 

viewed. Shortly thereafter, the other man was identified 

as Rufus Dennis.

The manager provided law enforcement with a piece 

of paper with “Bubba” and the phone number “. . . 6473” 

written on it. According to one of Rogers’ coworkers, the 

phone number on the piece of paper was the phone number provided by Cox as he sought assistance with his cell 

phone at the store. Other evidence at trial revealed that 

Cox’s nickname was “Bubba.”

That same coworker also testified that Rogers left work 

at approximately 6 p.m. but stayed in the parking lot, sitting in his car with a friend. The friend was a manager at 

a different branch of the same cell phone company that 

employed Rogers. She had stopped by to pick up phones 

for her store and stayed to smoke marijuana and talk with 

Rogers in his car after he got off work. The friend testified that Rogers smoked and dealt marijuana.

According to the friend, while she was in Rogers’ car, 

two men in a white Chevy Impala, with no license plates 

and displaying in-transit stickers, parked at the store. 

One of the men—whom she identified at trial as Cox—

stopped at Rogers’ car to talk to Rogers. The friend 

said that Cox wanted to buy some marijuana, but that 

Rogers did not have enough on hand. Rogers and Cox 
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exchanged telephone numbers and agreed to be in touch 

later that day. Cox and the other man, unknown to the 

friend but later identified as Dennis, went into the store; 

the friend and Rogers left the store’s parking lot in their 

separate vehicles.

During the course of the investigation, law enforcement determined that Rogers owed his drug supplier 

money. Both Rogers’ fellow employee and Rogers’ friend 

testified that Rogers had asked them for money, though 

both declined to give him any. After leaving work, Rogers 

went to the home he shared with his mother and father. 

He asked his father for money and received $200. In 

addition, bank records show that Rogers withdrew nearly 

$950 from his bank accounts on the day of the shooting. 

That money was not recovered.

After identifying Cox and obtaining the paper with the 

phone number on it, law enforcement sought subscriber 

information for that number. A warrant was issued, and 

the cell phone records from January 1 to March 24, 2017, 

including cell site location information (CSLI), were provided to law enforcement. In addition, law enforcement 

had access to Rogers’ cell phone.

According to the record, Rogers sent a text message to 

Cox at 6:37 p.m. the day of the shooting that said, “This 

Ronno.” Cell phone records show that there were several 

phone calls between Rogers and Cox on March 6, 2017, 

in the hour or so leading up to the shooting, but that there 

were no calls between the two within the approximately 

2 months preceding the shooting. CSLI records further 

showed that Cox’s phone was in the area of the shooting 

at the time and that he was not in the area of his purported alibi.

Evidence offered at trial also linked Cox to a white 

Chevy Impala. When questioned by law enforcement, 

Dennis admitted that he had access to a white Impala 

that was registered in the name of his mother. Dennis 
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led officers to the white Impala, which was parked near 

Cox’s brother’s residence. The car was impounded. The 

license plate screws on the car looked new, and there 

were what appeared to be glue marks from in-transit 

stickers in the window. Inside the car was a steering 

wheel cover and two remaining license plate screws in 

original packaging, along with a receipt from an auto 

parts store for the purchase of a steering wheel cover and 

license plate screws. Further investigation revealed video 

showing Cox purchasing those items.

Law enforcement was unable to locate Cox until 

February 26, 2018. During his interview, Cox acknowledged that his phone number was the same number ending in 6473; that he knew Rogers; that he had met with 

Rogers on March 6, 2017, the day of [the] shooting; and 

that he wanted to obtain marijuana. Cox denied shooting 

Rogers and said he was with a female friend during the 

evening of the shooting. That friend, who testified that 

Rogers was her uncle, also testified that she did not recall 

seeing Cox on March 6 or 7 and that she did not see him 

until early April. In addition, as previously noted, Cox’s 

CSLI data suggested that he was not at this friend’s home 

on the day of the shooting.

Cox was represented by the public defender’s office at trial 

and on direct appeal. At trial, the case was submitted to the 

jury on a theory of felony murder of Rogers, in which the 

predicate felony was robbery of either cash or marijuana. In 

his direct appeal to this court, Cox assigned error to the overruling of his motions to suppress evidence of his cell phone 

records and to suppress statements he made to law enforcement 

officers. We rejected Cox’s assignments of error and affirmed 

his convictions and sentences. State v. Cox, 307 Neb. 762, 985 

N.W.2d 395 (2020).

On November 10, 2021, Cox filed a pro se verified motion 

for postconviction relief in which he set forth claims of 

ineffective assistance of counsel both at trial and on direct 
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appeal. He also filed a motion for appointment of postconviction counsel. Cox claimed that counsel provided ineffective 

assistance at trial because counsel (1) failed to interview, 

depose, and call three witnesses, (2) failed to investigate potential defenses, and (3) failed to object to three jury instructions. 

Cox also claimed that counsel provided ineffective assistance 

because counsel failed to assign and argue sufficiency of the 

evidence on direct appeal. Cox also made allegations of actual 

innocence. Cox’s allegations regarding each claim will be discussed further in our analysis below.

On November 30, 2021, the district court ordered the State 

to file a response to Cox’s motion for postconviction relief. On 

December 17, before the State filed its response, Cox filed a 

motion in which he requested “leave to add [certain exhibits] 

to the record.” On January 4, 2022, the court entered an order 

in which it denied Cox’s motion to add exhibits as premature. 

The court stated that after it received a response from the 

State, it would enter an order determining whether Cox was 

entitled to an evidentiary hearing, and that if it granted an evidentiary hearing, it would allow Cox to offer exhibits at that 

time. The State filed its response on February 28 and asserted 

in general terms that Cox’s “motion only alleges conclusions 

of fact, or the records and files affirmatively show [Cox] is 

[not] entitled to . . . relief.” The State therefore moved the 

court to deny Cox’s motion for postconviction relief without 

an evidentiary hearing.

The district court filed an order on July 1, 2022, in which 

it determined that none of Cox’s claims warranted an evidentiary hearing. The court’s reasoning as to each claim is 

discussed further in our analysis below. The court dismissed 

Cox’s motion for postconviction relief without an evidentiary 

hearing and overruled his motion for appointment of counsel.

Cox appeals the district court’s order.

III. ASSIGNMENTS OF ERROR

Cox claims that the district court erred when it (1) overruled his motion to add exhibits to the record, (2) dismissed 
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his motion for postconviction relief without an evidentiary hearing, and (3) overruled his motion for appointment 

of counsel.

IV. STANDARDS OF REVIEW

[1,2] 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). An appellate 

court reviews the failure of the district court to provide courtappointed counsel in a postconviction proceeding for an abuse 

of discretion. State v. Oliveira-Coutinho, 304 Neb. 147, 933 

N.W.2d 825 (2019).

V. ANALYSIS

1. District Court Did Not Abuse Its Discretion 

When It Overruled Cox’s Motion to 

Add Exhibits to the Record

Cox first claims that the district court abused its discretion 

when it overruled his motion to add exhibits to the record. We 

find no abuse of discretion.

Cox argues that attaching relevant exhibits to a postconviction motion is an accepted practice in Nebraska and that such 

exhibits may be considered by courts considering the motion. 

He asserts that the exhibits he sought to add to the record 

were newly discovered evidence that he had sought to attach 

to his motion for postconviction relief but that the clerk of 

the district court mistakenly mailed the exhibits back to him 

rather than filing them with the motion. He argues that the 

court abused its discretion when it overruled his motion to 

add the exhibits to the record and failed to correct the mistake 

of the clerk.

In that motion, Cox sought to “add [the] exhibits to the 

record” rather than to attach them to the postconviction 
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motion. Cox does not assert that he had attempted to attach 

the exhibits to his postconviction motion; instead, he asserts 

that he attempted to “send or file” the exhibits but that the 

clerk “mailed them back” because they lacked a case number. 

Cox’s postconviction motion made no reference to exhibits or 

other attachments to the postconviction motion. In view of the 

foregoing, the district court read the motion as a request to add 

evidence to the record. The court reasoned that in the absence 

of an order setting an evidentiary hearing on the postconviction 

motion, the addition of evidence to supplement the record was 

premature. The court stated that evidence would be received if 

and when the court granted an evidentiary hearing. See Neb. 

Rev. Stat. § 29-3001(2) (Reissue 2016) and State v. Lessley,

supra (evidentiary hearing not required if motion does not 

contain adequate factual allegations or record shows prisoner 

entitled to no relief).

We find no error in the district court’s reasoning, and we 

determine that the court did not abuse its discretion when it 

overruled Cox’s motion to add exhibits to the record. We therefore reject this assignment of error.

2. District Court Did Not Err When 

It Dismissed Cox’s Motion for 

Postconviction Relief Without 

an Evidentiary Hearing

Cox next claims that the district court erred when it dismissed his motion for postconviction relief without an evidentiary hearing. In our de novo review, we conclude that each of 

Cox’s claims for postconviction relief was inadequately pled 

or was refuted by the record and that therefore, the district 

court did not err when it dismissed his motion without an 

evidentiary hearing. We begin our analysis by setting forth 

standards that are applicable to our review of postconviction 

claims, and we then review each of Cox’s claims pursuant to 

those standards.
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(a) Postconviction Standards

[3-5] 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. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). Thus, 

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. State 

v. Lessley, supra. 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. Lessley, supra.

[6,7] However, the allegations in a motion for postconviction relief must be sufficiently specific for the district 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.

[8-10] Cox’s claims for postconviction relief assert that 

he received ineffective assistance of counsel. A proper ineffective assistance of counsel claim alleges a violation of 

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

Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022). 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. Cullen, 
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supra. The two prongs of this test may be addressed in either 

order, and the entire ineffectiveness analysis should be viewed 

with a strong presumption that counsel’s actions were reasonable. Id.

[11] To show prejudice under the prejudice component of 

the Strickland test, 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. Id. 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. 

See, also, Chinn v. Shoop, ___ U.S. ___, 143 S. Ct. 28, 214 L. 

Ed. 2d 229 (2022) (Jackson, J., dissenting from denial of certiorari; Sotomayor, J., joins).

Cox set forth claims of ineffective assistance of counsel 

for failing to interview, depose, and call witnesses, failing to 

investigate defenses, failing to object to jury instructions, and 

failing to assign and argue sufficiency of the evidence on direct 

appeal. Cox also asserts that he set forth a claim of actual 

innocence. On appeal, he argues that each of these claims 

warranted an evidentiary hearing and the granting of postconviction relief. We apply the principles set forth above to our 

review of Cox’s claims.

(b) Failure to Investigate Defenses 

and Witnesses

Cox’s first two claims of ineffective assistance of trial counsel were that counsel failed to interview, depose, and call certain witnesses who could provide testimony regarding his two 

main theories of defense and that counsel failed to adequately 

investigate certain defenses. The two claims are intertwined 

because Cox generally alleged that the three witnesses would 

provide information relevant to his defenses.

The first asserted defense urged by Cox was his contention that Rufus Dennis was an alternate suspect and that 
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Dennis, and not Cox, had access to and control of the white 

Chevy Impala that was identified by witnesses as being present at the shooting. Cox contended that Dennis and Dennis’ 

mother could provide testimony relevant to this defense. 

Cox generally alleged that although he and Dennis had been 

together earlier on the day of the shooting, the two parted 

ways prior to the crimes. Cox alleged that when they parted 

ways, Cox left his cell phone in the Impala that Dennis continued to drive.

Cox alleged that despite his urging, trial counsel failed to 

investigate Dennis as a suspect. Cox alleged that he told counsel that Dennis attempted to set Cox up for the shooting and 

that such attempt included saddling Cox with the Impala by 

selling it to Cox when Dennis knew it was connected to the 

shooting. Cox also alleged that as part of the attempt to set up 

Cox, Dennis left the Impala near Cox’s brother’s house and 

later led police to it at that location.

Cox alleged that his counsel failed to interview Dennis 

about the foregoing alleged facts, and Cox further alleged 

that Dennis would testify, inter alia, that he had control of 

the Impala the entire day of the shooting and that he and Cox 

parted ways before the time of the shooting. Cox also alleged 

that Dennis’ mother would testify that the Impala belonged to 

her and that she loaned it to Dennis but that she would never 

have allowed him to loan it to another person. Cox further 

alleged that both Dennis and his mother would have testified 

that at the time of the shooting, both Dennis and the Impala 

were at the house of Dennis’ mother.

The other defense that Cox claimed counsel failed to pursue was related to cash that Rogers had collected on the day 

of the shooting but that was not found on his person after the 

shooting. Essentially, Cox urges that he did not rob cash from 

Rogers because Rogers had paid on a debt earlier in the day 

and therefore had no cash for him to rob.

Cox alleged that William McNeal supplied drugs to Rogers 

and that Rogers owed McNeal money. Cox alleged that 
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McNeal would have testified that on the day of the shooting, he and Rogers had argued over money Rogers owed to 

McNeal and that at approximately 7:30 p.m., Rogers had come 

to McNeal’s house and paid him $1,100 toward the debt. Cox 

asserted that part of the State’s case against him was that 

Cox robbed Rogers of cash that Rogers had collected earlier 

in the day. To counter the State’s case, evidence that Rogers 

had given $1,100 to McNeal would explain why the cash was 

not found on Rogers’ person after the shooting and would have 

supported Cox’s defense that he did not rob Rogers; therefore, 

there was no predicate felony to support a conviction for 

felony murder. Cox alleged that counsel failed to investigate 

this line of defense and failed to interview, depose, and call 

McNeal as a witness.

With regard to Cox’s claims that trial counsel failed to 

investigate defenses and to pursue witnesses, the district court 

found that “the facts alleged by [Cox] relating to failure to 

investigate are generic and most importantly, do not state what 

exculpatory evidence would have been gathered or how such 

evidence would have changed the outcome of the trial.” The 

court further found that Cox “merely alleges generic statements 

as to prejudice.” The court therefore concluded that Cox’s allegations relating to failure to investigate defenses and witnesses 

were “insufficient to warrant an evidentiary hearing.”

[12,13] We have stated that in a motion for postconviction 

relief, a defendant is required to specifically allege what the 

testimony of potential witnesses would have been if they had 

been called at trial in order to avoid dismissal without an evidentiary hearing. State v. Munoz, 309 Neb. 285, 959 N.W.2d 

806 (2021). Absent specific allegations, a motion for postconviction relief effectively becomes a discovery motion to 

determine whether evidence favorable to a defendant’s position 

actually exists. Id.

But contrary to the district court’s finding that Cox did not 

specifically allege what evidence would have been discovered, we determine that Cox made specific allegations with 
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regard to witnesses and the substance of what those witnesses 

would have stated. Cox identified three specific witnesses—

McNeal, Dennis, and Dennis’ mother—and he alleged specific 

testimony that each of those witnesses would have provided. 

Therefore, this was not an instance in which a defendant 

alleged that counsel should have investigated unspecified witnesses or alleged that counsel should have investigated specific witnesses but failed to allege what specific information 

those witnesses would have provided. Given Cox’s allegations 

of evidence counsel would have discovered by interviewing the witnesses and investigating the defenses, Cox did not 

completely fail to make specific allegations regarding what an 

investigation would have uncovered.

However, we agree with the district court’s findings that 

Cox’s motion did not adequately allege “how such evidence 

would have changed the outcome of the trial” and that he 

alleged only “generic statements as to prejudice.” Separately, 

we further determine that the record refutes those generic 

claims of prejudice.

With regard to the defense involving Dennis, Cox generally alleged that investigation would have provided evidence 

that Cox left his cell phone in Dennis’ Impala after the two 

parted ways prior to the shooting and that the Impala was 

at the home of Dennis’ mother at the time of the shooting. 

Cox’s allegations of how such alleged evidence would have 

changed the outcome of the trial are not entirely clear and 

are somewhat contradictory. There was evidence at trial that 

placed Cox’s cell phone at the scene and at the time of the 

shooting. Cox’s suggested testimony by Dennis that Cox left 

his cell phone in Dennis’ Impala would seem to explain why 

the cell phone was at the scene but Cox himself was not. 

However, contrariwise, Cox also alleged that Dennis and 

his mother would testify that the Impala and Dennis were at 

his mother’s house at the time of the shooting. Cox appears 

to allege that if called as a fact witness, Dennis would have 

inculpated himself by placing himself, his Impala, and Cox’s 
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cell phone, but not Cox himself, at the shooting; but Cox also 

alleges that Dennis and his mother would have testified he 

and the Impala were not at the scene at the time of the shooting but instead were at his mother’s house, perhaps casting 

doubt on whether the Impala at the shooting was the same one 

Cox and Dennis used earlier that day.

The value of the suggested testimony is further clouded by 

the fact that evidence showed not only that Cox’s cell phone 

was at the scene of the shooting but also that calls had been 

placed between Cox’s cell phone and Rogers’ cell phone 

shortly prior to the time of the shooting, supporting the State’s 

theory that Cox and Rogers were to meet for a drug deal. 

There was also evidence that Cox had admitted to police that 

he had been making calls to Rogers. In light of this and other 

evidence against Cox, the effect of the suggested testimony by 

Dennis and his mother is unclear, and Cox does not allege facts 

to establish a reasonable probability of a different outcome at 

the trial.

With regard to the defense involving McNeal to the effect 

that Rogers had no cash for Cox to rob, we note that although 

McNeal did not testify at trial, the record indicates that some 

evidence was presented in Cox’s defense at trial to support 

his defense that Rogers paid money to McNeal prior to the 

shooting. Such evidence included testimony by law enforcement investigators who found evidence placing Rogers near 

McNeal’s residence shortly before the shooting and showing 

that money was deposited into McNeal’s wife’s bank account 

in the days after the shooting. The record also shows that during closing arguments, defense counsel specifically discussed 

McNeal and the evidence that arguably indicated that Rogers 

had paid the cash to McNeal prior to the shooting. Contrary 

to Cox’s assertions, the record refutes any claim that defense 

counsel completely failed to investigate or present the defense 

that Rogers gave McNeal the cash he had collected earlier 

in the day. The record also shows that the State addressed 

the issue in its closing arguments and provided the jury 
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with a basis to find that even if Rogers had paid the cash to 

McNeal, Rogers had been robbed of the marijuana that he had 

brought to sell to Cox, because neither the marijuana nor the 

cash Cox should have paid to Rogers was found on Rogers 

after the shooting.

In order to show prejudice related to a claim of ineffective assistance of counsel, a defendant must demonstrate a 

reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 

See State v Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022). 

We determine that Cox’s allegations with regard to both the 

defense involving Dennis and the defense involving McNeal 

do not demonstrate a reasonable probability that the result of 

the trial would have been different. We therefore determine 

that Cox failed to adequately allege prejudice with regard to 

these claims.

We conclude that Cox’s claims of ineffective assistance of 

trial counsel for failing to investigate witnesses and defenses 

did not warrant an evidentiary hearing.

(c) Failure to Object to Jury Instructions 

Nos. 8 and 10 and Supplemental 

Instruction No. 2

Cox also claimed ineffective assistance of trial counsel for 

failing to challenge three jury instructions. The three instructions identified by Cox in his postconviction motion were 

instructions Nos. 8 and 10 and supplemental instruction No. 

2. Cox had been charged in the information with first degree 

murder under both premeditated murder and felony murder 

theories. At trial, the jury was instructed on only the felony 

murder theory. In instruction No. 5, the court instructed 

on the elements of felony murder and specified robbery or 

attempted robbery as the underlying felony. Instruction No. 

5 stated in part that among the elements of felony murder 

that the State must prove were that Cox “intended to commit the crime of robbery,” that Cox “was in the course of 
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committing or attempting to commit that robbery,” and that 

Cox, “either alone or by aiding and abetting another, killed 

. . . Rogers, during the course of committing or attempting to 

commit that robbery.”

In instruction No. 8, the court instructed as follows:

The Defendant can be guilty of a robbery or attempted 

robbery even though he personally did not commit every 

act involved in the crime so long as he aided someone 

else to commit it. The Defendant aided someone else if:

1. The Defendant intentionally encouraged or intentionally helped another person to commit the robbery or 

attempted or robbery; and

2. The Defendant intended that the robbery be committed; or the Defendant knew that the other person intended 

to commit the robbery; and

3. The robbery or attempted robbery in fact was committed by that other person.

The Defendant can be guilty of Felony Murder if he is 

guilty of robbery as an aider and a death resulted during 

the course of committing the robbery.

Evidence of the Defendant’s mere presence, acquiescence, or silence is not enough to sustain the State’s burden of proving guilt under an aiding and abetting theory.

In instruction No. 10, the court instructed as follows: “Intent 

is an element of the crimes charged against the Defendant. In 

deciding whether the Defendant acted with intent you should 

consider his words and acts and all the surrounding circumstances.” When the jury was deliberating, the jury sent a question to the court asking, “How do we find if we believe he 

or someone with him caused the death, but not in commission of robbery?” The court responded to the question with 

supplemental instruction No. 2 in which the court instructed, 

“Please use the Court’s instruction upon which you must base 

your verdict.”

Cox generally alleged in his postconviction motion that 

instructions Nos. 8 and 10 were incorrect statements of law 
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and that supplemental instruction No. 2 merely directed the 

jury back to the allegedly erroneous instructions. With regard 

to instruction No. 8, Cox alleged that his trial counsel submitted a proposed instruction regarding aiding and abetting but 

failed to ensure that the instruction given by the court correctly 

stated the law. Cox alleged that his counsel’s proposed instruction was similar to instruction No. 8 given by the court, but, 

Cox alleged, the court gave an instruction that substituted the 

word “crimes” for robbery.

Cox further alleged that throughout the trial, the State had 

“argued” a premeditated murder theory of first degree murder, 

but that “at closing,” the State changed to a theory of felony 

murder. Cox alleged that his counsel had a duty to be sure the 

jury understood the difference between premeditated murder 

and felony murder and the requisite intent under each theory. 

Cox alleged that the State “changing their theory at the end of 

trial confused the jury,” and he alleged that the jury’s question 

that led to supplemental instruction No. 2 was evidence that 

the jury was confused. Cox alleged that counsel’s failure to 

object to instructions Nos. 8 and 10 and supplemental instruction No. 2 caused the jury to be “given incorrect statements 

of law” and that there was “a reasonable [pr]obabil[i]ty the 

outcome of trial may have been different.”

With regard to Cox’s claim that trial counsel failed to 

challenge jury instructions, the postconviction district court 

determined that the jury instructions, read together and taken 

as a whole, correctly stated the law and were not misleading. The court found that “a challenge to the jury instructions 

would have been unsuccessful,” and it therefore found that 

Cox’s counsel was not ineffective for failing to challenge 

the instructions.

[14] Although Cox alleged specific instructions to which 

counsel should have objected, we agree with the district 

court’s determination that the jury instructions read together 

and as a whole with other instructions correctly stated the 

law and were not misleading and that therefore, Cox failed 
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to adequately allege prejudice from counsel’s failure to object 

to the instruction. Defense counsel is not ineffective for failing to object to jury instructions that, when read together and 

taken as a whole, correctly state the law and are not misleading. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

Cox alleged that instruction No. 8 differed from his proposed 

instruction because it referred generally to “crimes” rather 

than specifically to “robbery.” As set forth above, instruction 

No. 8 referred to “robbery or attempted robbery” rather than 

“crimes.” Cox’s proposed instruction was similar to instruction No. 8 but it referred only to “robbery.” Instruction No. 8 

appears to differ from Cox’s proposed instruction only in that 

it refers to both “robbery” and “attempted robbery.” We note 

that instruction No. 10, regarding intent, refers to the “crimes” 

charged and the intent element of those “crimes.” However, 

the reference to “crimes” was necessary in instruction No. 10 

that referred to the respective intent required for each crime 

charged against Cox, including the first degree murder charge, 

as well as the weapon possession and use charges. Therefore, it 

would not have been proper in instruction No. 10 to refer only 

to “robbery” rather than to “crimes.”

Cox also asserts that the jury instructions were erroneous or 

misleading because throughout the trial the State appeared to 

be pursuing a charge of first degree murder under a premeditated murder theory rather than a felony murder theory. Cox 

was charged in the information under both theories of first 

degree murder. However, the jury instructions given at the end 

of the trial instructed only on felony murder. The other jury 

instructions, including the specific instructions to which Cox 

asserts his counsel should have objected, were consistent with 

that theory, and as we determined above, the instructions read 

together and as a whole did not misstate the law and were 

not misleading.

We conclude that Cox’s claim of ineffective assistance of 

trial counsel for failing to object to jury instructions did not 

warrant an evidentiary hearing.
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(d) Failure to Raise Sufficiency of 

Evidence on Direct Appeal

Cox claimed that counsel provided ineffective assistance on 

direct appeal because counsel failed to assign error and argue 

that there was not sufficient evidence to support his convictions. Cox alleged in his postconviction motion that he had 

urged his counsel that sufficiency of the evidence was “his 

most important argument” on appeal and that counsel told Cox 

that counsel would “be sure that all his arguments get in,” 

but that counsel failed to assign sufficiency of the evidence on 

direct appeal. Cox alleged that “[h]ad appellate counsel argued 

and assign[ed] as error the sufficiency of the evidence there 

exist[s] a reasonable probability the outcome of the [direct] 

appeal may have been differ[e]nt.”

Cox further alleged that the State’s theory at trial was that 

Cox had arranged to buy marijuana from Rogers but that 

“instead of paying him [Cox] robbed and killed him.” He 

stated that felony murder could only be found “if the jury 

finds evidence of a robbery” and intent by Cox to commit a 

robbery. Cox alleged that “no direct evidence connects [Cox] 

to this case” and that the State misled the jury by arguing that 

he “robbed the victim of $1100 dollars.” Cox alleged that the 

State knew that this argument was “misplaced because they 

had text messages between [Rogers] and . . . McNeal” in which 

Rogers told McNeal he would “come to McNeal’s house and 

pay him” what was owed.

Cox then alleged various alternate theories under which 

McNeal might have killed Rogers or that another suspect may 

have taken cash from Rogers’ person after he had been shot. 

Cox further alleged that “[n]o evidence supports [Rogers] 

having a pound of weed, or him giving it to anybody.” Cox 

also alleged that evidence regarding the Impala “was used as 

a decoy by the [S]tate to steer the jury away from the evidence of no robbery,” that such evidence “as it relates to Cox 

was irrelevant” and “misleading,” and that the State “never 

proved it was actually . . . Dennis’ car that was involved in 
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the crime,” but “[o]nly one similar to it.” Cox further alleged 

that there was evidence that undermined the State’s theory that 

Cox had robbed Rogers.

Regarding Cox’s claim that counsel failed to assign error 

and argue sufficiency of the evidence on direct appeal, the 

district court found that Cox “fails to set forth any authority or 

argument to establish that any of the issues in his motion could 

have changed the outcome of the appeal.” The court concluded 

that Cox’s allegations were “insufficient to warrant an evidentiary hearing.”

[15] To show prejudice with regard to his claim of ineffective assistance of appellate court, Cox needed to allege 

facts that would show that but for counsel’s failure to raise 

the claim, there is a reasonable probability that the outcome 

of the appeal would have been different. See State v. Cullen, 

311 Neb. 383, 972 N.W.2d 391 (2022). Cox alleged counsel 

was deficient for failing to raise sufficiency of the evidence on 

appeal. When reviewing a criminal conviction for sufficiency 

of the evidence to sustain the conviction, the relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. State v. Matteson, 313 Neb. 435, 

985 N.W.2d 1 (2023).

Cox has not alleged facts that would show a reasonable 

probability that an appellate court applying this deferential 

standard of review would not have found that there was sufficient evidence to support Cox’s convictions. The evidence 

at trial, as set forth above and in our opinion on direct appeal, 

when viewed in the light most favorable to the prosecution, 

was sufficient for a rational trier of fact to find the essential 

elements of the crimes charged. Cox asserts that there was 

no direct evidence to show that Cox or a companion shot or 

robbed Rogers. However, there was sufficient circumstantial 

evidence that tied Cox to being at the scene of the shooting and that tied him to the vehicle from which the gunshot 
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was fired. There was also sufficient evidence to show that Cox 

and Rogers had arranged for Rogers to sell marijuana to Cox, 

and there was sufficient evidence from which the jury could 

infer that the shooting of Rogers occurred while Cox alone, or 

with another, was committing a robbery or attempted robbery 

of Rogers during the arranged transaction.

[16] Cox generally argues that the evidence against him 

was not credible or that his theories of defense disproved the 

charges against him. However, in reviewing a criminal conviction, an appellate court does not resolve conflicts in the 

evidence, pass on the credibility of witnesses, or reweigh the 

evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, 

if the evidence admitted at trial, viewed and construed most 

favorably to the State, is sufficient to support the conviction. 

State v. Cerros, 312 Neb. 230, 978 N.W.2d 162 (2022). As 

we determined above, there was sufficient evidence at trial, 

both direct and circumstantial, that the jury could have found 

to support Cox’s convictions. Under the applicable standards 

of review, Cox’s allegations regarding the credibility of such 

evidence or of conflicting evidence to support his defense 

would not have created a reasonable probability that the 

appellate court would have found there was not sufficient evidence or that the outcome of Cox’s appeal would have been 

different if counsel had raised sufficiency of the evidence on 

direct appeal.

We conclude that Cox’s claim of ineffective assistance of 

appellate counsel for failing to assign and argue sufficiency 

of the evidence on direct appeal did not warrant an evidentiary hearing.

(e) Claim of Actual Innocence

[17] Cox finally argues that the district court should have 

granted an evidentiary hearing because he made a claim of 

actual innocence. He cites State v. Newman, 300 Neb. 770, 

916 N.W.2d 393 (2018), for the proposition that a claim of 
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actual innocence may be a sufficient allegation of a constitutional violation under the Nebraska Postconviction Act, and 

he argues that an evidentiary hearing was necessary “for full 

development of the record to determine whether Cox is actually innocent of all the offenses he was convicted of after 

trial,” brief for appellant at 27.

[18,19] While we have recognized that a claim of actual 

innocence may support postconviction relief, we have further stated:

“The essence of a claim of actual innocence is that the 

State’s continued incarceration of such a petitioner without an opportunity to present newly discovered evidence 

is a denial of procedural or substantive due process. The 

threshold to entitle a prisoner to an evidentiary hearing on 

such a postconviction claim is ‘“extraordinarily high.”’ 

Such a petitioner must make a strong demonstration of 

actual innocence because after a fair trial and conviction, 

the presumption of innocence vanishes.”

State v. Newman, 300 Neb. at 793, 916 N.W.2d at 413 (quoting 

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

The allegations of actual innocence in Cox’s motion for 

postconviction relief do not meet the extraordinarily high 

standard to warrant an evidentiary hearing. While setting forth 

his claim that counsel was ineffective for failing to raise sufficiency of the evidence on direct appeal, Cox stated that he 

“swears he is innocent” of the crimes for which he was convicted. Cox also filed an affidavit in which he stated that he 

was innocent of the crimes. Cox does not appear to have made 

any specific allegation of fact to support a claim of actual 

innocence; instead, he appears to rely on the allegations he 

made in support of his claims of ineffective assistance of counsel at trial and on direct appeal.

We reject Cox’s argument that an evidentiary hearing 

was warranted by his claim of actual innocence. Having 

also determined that Cox’s claims of ineffective assistance 

of counsel at trial and on direct appeal did not warrant an 
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evidentiary hearing, we conclude that the district court did not 

err when it denied Cox’s motion for postconviction relief without an evidentiary hearing.

3. District Court Did Not Abuse Its Discretion 

When It Overruled Cox’s Motion to 

Appoint Postconviction Counsel

Cox finally claims that the district court erred when it 

overruled his motion for appointment of counsel. Under the 

Nebraska Postconviction Act, it is within the discretion of 

the trial court to decide whether counsel shall be appointed 

to represent the defendant. State v. Oliveira-Coutinho, 304 

Neb. 147, 933 N.W.2d 825 (2019). Where the alleged errors 

in the postconviction petition before the district court are 

either procedurally barred or without merit, thus establishing 

that the postconviction proceeding contained no justiciable 

issue of law or fact, it is not an abuse of discretion to fail to 

appoint postconviction counsel for an indigent defendant. Id. 

We therefore conclude the district court did not abuse its discretion when it overruled Cox’s motion to appoint postconviction counsel.

VI. CONCLUSION

Having determined that each of Cox’s claims did not warrant an evidentiary hearing, we conclude that the district court 

did not err when it denied Cox’s motion for postconviction 

relief without an evidentiary hearing. We further conclude that 

the district court did not abuse its discretion when it overruled 

Cox’s motion to add exhibits to the record or when it overruled his motion to appoint counsel. We therefore affirm the 

district court’s order.

Affirmed.