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STATE v. ABDULKADIR

Cite as 293 Neb. 560

State of Nebraska, appellee, v.

Mohamed Abdulkadir, appella

___ N.W.2d ___

Filed May 13, 2016. No. S-15-951.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo 

a determination that the defendant failed to allege sufficient facts to 

demonstrate a violation of his or her constitutional rights or that the 

record and files affirmatively show that the defendant is entitled to 

no relief.

2. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hearing on a motion for postconviction relief is required on an 

appropriate motion containing factual allegations which, if proved, 

constitute an infringement of the movant’s rights under the Nebraska or 

federal Constitution, causing the judgment against the defendant to be 

void or voidable.

3. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense.

4. Postconviction: Effectiveness of Counsel: Appeal and Error. When a 

defendant was represented both at trial and on direct appeal by the same 

lawyers, generally speaking, the defendant’s first opportunity to assert 

ineffective assistance of trial counsel is in a motion for postconviction relief.

5. Self-Defense. Self-defense is a legal conclusion.

6. ____. To successfully claim one was acting in self-defense, the force 

used in defense must be immediately necessary and must be justified 

under the circumstances.

7. ____. A defendant’s use of deadly force in self-defense is justified if 

a reasonable ground existed under the circumstances for the defendant’s belief that he or she was threatened with death or serious bodily 

Nebraska Supreme Court Online Library

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

05/13/2016 09:06 AM CDT
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harm, even if the defendant was actually mistaken about the extent of 

the danger.

8. ____. Once the basis for an accused’s reasonable belief that he or she 

is in danger of serious bodily harm has been dispelled, the accused’s 

continued use of deadly force is not justified by self-defense.

Appeal from the District Court for Lancaster County: Stev

D. Burns, Judge. Affirm

Stuart J. Dornan, of Dornan, Lustgarten & Troia, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Stacy, and Kelch, J

Heavican, C

INTRODUCTION

Mohamed Abdulkadir appeals from the district court’s order 

denying his postconviction motion to vacate and set aside his 

convictions without an evidentiary hearing. Abdulkadir alleged 

that his convictions for the second degree murder of Michael 

Grandon and for use of a deadly weapon to commit a felony 

should be vacated because his trial counsel failed to call two 

witnesses Abdulkadir claimed would have testified in his favor. 

We affirm.

BACKGROUND

This is the second time Abdulkadir has appealed to this 

court. In 2013, we affirmed his convictions on direct appeal.1

Abdulkadir then filed a postconviction motion to vacate and 

set aside his convictions in the district court because his trial 

counsel (who also served as counsel on direct appeal) did not 

call two potential witnesses: Eltio Plater and a corrections officer named “Vidal.”

1 State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
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STATE v. ABDULKADIR

Cite as 293 Neb. 560

In June 2011, Abdulkadir was an inmate at the Nebraska 

State Penitentiary. During the afternoon of June 30, Abdulkadir 

reported to a caseworker, Cody Eastman, that some items from 

his cell were missing. Eastman told Abdulkadir to fill out a 

report to assist in the investigation. Instead, Abdulkadir began 

asking fellow inmates if they knew anything about the theft. 

Abdulkadir approached Grandon in the prison gymnasium 

to discuss the stolen items, but Grandon apparently denied 

any involvement.

According to Abdulkadir’s testimony and corroborating testimony by another inmate, Danny Robinson, later that afternoon, 

Grandon punched Abdulkadir without warning and a struggle 

ensued. Abdulkadir and Robinson testified that Grandon then 

took an object, later discovered to be a knife, into his hand and 

that Abdulkadir wrestled the knife from Grandon. Witnesses 

saw Abdulkadir stab Grandon multiple times. After the altercation, Grandon died from his injuries.

Henry McFarland was an officer on duty in Abdulkadir’s 

housing unit on the day Grandon died. McFarland testified 

at trial that while working in the control center, four inmates, 

including Plater and Robinson, stood shoulder-to-shoulder, 

blocking his view of the unit. McFarland told the inmates 

to move and then heard the struggle between Grandon and 

Abdulkadir from the direction the inmates had been obstructing. He witnessed Grandon falling to the floor. Abdulkadir then 

stood over Grandon, making stabbing motions while Grandon 

rolled around in a fetal position.

Three of the four inmates who had allegedly blocked 

McFarland’s view testified at trial that they were merely cutting each other’s hair. They claimed not to be intentionally 

obstructing the control center window. Plater was not called 

to testify.

McFarland called for help, and Eastman was the first 

to respond. When Eastman entered the area, he witnessed 

Grandon already on the floor in a fetal position and Abdulkadir 

standing over Grandon, stabbing him twice. Eastman then 
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entered the area and told Abdulkadir to drop the knife; 

Abdulkadir complied.

McFarland testified that he saw Abdulkadir stab Grandon 

between 10 to 15 times while Grandon was on the floor. 

McFarland also said that he heard Abdulkadir yelling, “‘You 

think you can steal from me?’”2 Another officer who was 

also in the unit at the time testified at trial that Abdulkadir 

stabbed Grandon only three or four times after Grandon fell. 

Abdulkadir testified that during the struggle, he became hysterical and apparently could not remember what happened after he 

began stabbing Grandon. None of Abdulkadir’s trial witnesses 

claimed to have seen the entire incident.

Grandon suffered a total of 25 stab wounds. He was still alive 

briefly after Abdulkadir was escorted away. But Grandon’s 

heart stopped beating before he arrived at the hospital.

After the stabbing, Abdulkadir was taken to a segregation 

unit. There, an officer overheard Abdulkadir responding to 

inmates’ questions about why he was in segregation. According 

to that officer’s testimony, Abdulkadir told them that “‘somebody was stealing his shit and he couldn’t let that happen and 

that he’d do it again.’”3

A jury convicted Abdulkadir, and the district court sentenced him to a term of life-to-life imprisonment for second 

degree murder and 15 to 25 years’ imprisonment for use of a 

deadly weapon. We affirmed the convictions on direct appeal. 

Abdulkadir then filed the motion for postconviction relief at 

issue here on the ground of ineffective assistance of counsel. 

Abdulkadir alleged, in part:

1. That defense counsel failed to produce, as requested 

by [Abdulkadir], two witnesses who would have provided 

testimony that would have been favorable to [Abdulkadir];

2. That one of the witnesses, . . . Plater, a recent 

parolee who had witnessed the altercation that led to the 

2 Id. at 420, 837 N.W.2d at 514.

3 Id. at 420, 837 N.W.2d at 515.
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charges against [Abdulkadir], would have testified that he 

observed a fist fight between [Abdulkadir] and another 

inmate and he observed [Abdulkadir] take from the other 

party in the fist fight a knife or some other object which 

he saw [Abdulkadir] use while defending himself[.]

The State moved to deny an evidentiary hearing on Abdulkadir’s 

motion.

At a June 2, 2015, hearing, the district court granted 

Abdulkadir additional time to locate his potential witnesses, 

Plater and Vidal. On September 4, there was a second hearing on the State’s motion to deny an evidentiary hearing. 

Abdulkadir stated that Vidal’s “affidavit would not add anything to the petition.” Abdulkadir also stated that Plater was 

proving difficult to track down because he was evading a warrant for child support. Although he could not say with certainty 

what Plater may have testified to at trial if called, Abdulkadir 

claimed that Plater’s testimony “would have corroborated . . . 

Abdulkadir’s testimony and would have lended [sic] credence 

to his argument that he was acting in self-defense.”

The district court granted the State’s motion to deny an evidentiary hearing. The district court discounted the assertion that 

Plater would testify that Abdulkadir was “defending himself,” 

because self-defense is a legal conclusion, not a factual allegation. Further, it reasoned that Abdulkadir had failed to allege 

facts warranting postconviction relief because Abdulkadir suffered no prejudice by Plater’s absence at trial.

ASSIGNMENTS OF ERROR

Abdulkadir assigns that the district court erred by (1) 

denying an evidentiary hearing and (2) denying postconviction relief.

STANDARD OF REVIEW

[1] In appeals from postconviction proceedings, an appellate 

court reviews de novo a determination that the defendant failed 

to allege sufficient facts to demonstrate a violation of his or her 
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constitutional rights or that the record and files affirmatively 

show that the defendant is entitled to no relief.4

ANALYSIS

In his first assignment of error, Abdulkadir argues that the 

district court erred by granting the State’s motion to deny an 

evidentiary hearing. We find no error, because Abdulkadir’s 

motion did not allege any facts showing his defense was prejudiced by the absence of Plater and Vidal at his trial.

[2] An evidentiary hearing on a motion for postconviction 

relief is required on an appropriate motion containing factual 

allegations which, if proved, constitute an infringement of the 

movant’s rights under the Nebraska or federal Constitution, 

causing the judgment against the defendant to be void or voidable.5

 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.6

[3,4] In this case, Abdulkadir claims that he received ineffective assistance of counsel, in violation of his constitutional 

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

the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced his 

or her defense.7 When a defendant was represented both at trial 

and on direct appeal by the same lawyers, generally speaking, 

the defendant’s first opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief.8

Here, Abdulkadir was represented by the same counsel at trial 

and upon direct appeal, so his ineffective assistance of counsel 

claim has not been waived.

4 State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).

5 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).

6 State v. Ware, 292 Neb. 24, 870 N.W.2d 637 (2015).

7 State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007).

8 State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
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Abdulkadir’s motion alleged that his trial counsel failed 

to produce Plater and Vidal—which we presume Abdulkadir 

claims was deficient performance. But nothing in Abdulkadir’s 

motion specifically alleges any prejudice to his defense. 

Instead, Abdulkadir states that Plater’s and Vidal’s testimony 

“would have been favorable” to him. We question whether this 

allegation is sufficient to raise the issue of prejudice in a postconviction motion.

However, even assuming that Abdulkadir’s motion might 

have properly alleged prejudice, the motion clearly failed to 

state facts actually amounting to prejudice. Because Abdulkadir 

withdrew his allegations concerning Vidal during the second 

hearing on the State’s motion, we will not address the allegations about Vidal’s possible testimony. As to Plater, Abdulkadir 

alleged that Plater “would have testified that he observed a 

fist fight between [Abdulkadir] and another inmate and he 

observed [Abdulkadir] take from the other party in the fist 

fight a knife or some other object which he saw [Abdulkadir] 

use while defending himself.”

In State v. Banks,

9

 we held that a defendant was not entitled 

to an evidentiary hearing because he had only alleged conclusions of law or fact. The defendant claimed ineffective 

assistance of counsel because his attorney allegedly failed to 

investigate potential witnesses who “would have supported 

a defense that [the defendant] acted in self-defense.”10 The 

defendant never explained what facts the potential witnesses 

could have testified to in support of the self-defense claim.

[5] Just as in Banks, the district court in the case at bar 

was correct to discount Abdulkadir’s contention that Plater 

would testify that Abdulkadir used the knife “while defending 

himself.” Self-defense is a legal conclusion, and the district 

court could not consider this phrase in determining whether 

an evidentiary hearing was warranted. The district court was 

9 State v. Banks, 289 Neb. 600, 856 N.W.2d 305 (2014).

10 Id. at 605, 856 N.W.2d at 310.
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constrained to reviewing only the factual allegations in the 

motion—that Plater “observed a fist fight between [Abdulkadir] 

and another inmate and he observed [Abdulkadir] take from the 

other party in the fist fight a knife or some other object which 

he saw [Abdulkadir] use.”

At trial, both Abdulkadir and Robinson testified to the same 

facts alleged in Abdulkadir’s motion. Abdulkadir does not 

allege that Plater would have introduced any additional facts at 

trial. Nor would it contradict any facts presented by the State 

about what occurred after Grandon fell. Instead, Abdulkadir, 

apparently overlooking Robinson’s testimony in his review 

of the record, argues that he suffered prejudice because Plater 

would have been the only witness to corroborate Abdulkadir’s 

own testimony.

[6-8] But even if we were to make every credibility determination in favor of Abdulkadir, all of the testimony at trial, as 

well as the alleged facts in Abdulkadir’s motion for postconviction relief, cannot prove he acted in self-defense. To successfully claim one was acting in self-defense, the force used 

in defense must be immediately necessary and must be justified 

under the circumstances.11 A defendant’s use of deadly force in 

self-defense is justified if a reasonable ground existed under 

the circumstances for the defendant’s belief that he or she 

was threatened with death or serious bodily harm, even if the 

defendant was actually mistaken about the extent of the danger.12 Once the basis for an accused’s reasonable belief that he 

or she is in danger of serious bodily harm has been dispelled, 

the accused’s continued use of deadly force is not justified 

by self-defense.13

Abdulkadir and Robinson testified only that Grandon was 

the initial aggressor and that Grandon produced the knife from 

11 See State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).

12 State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).

13 See State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012) (finding that 

no self-defense instruction was required, because fight had ended and 

defendant shot and killed victim as victim ran away).
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his pocket. Abdulkadir was then able to wrestle the knife from 

Grandon. At trial, Abdulkadir apparently could not recall what 

occurred next. Robinson claimed to have walked away at this 

point in the struggle.

The only other eyewitness evidence of the incident, from 

the various prison officials who testified at trial, establishes 

that Grandon fell to the floor and curled into a fetal position 

and that Abdulkadir continued stabbing Grandon anywhere 

between 3 and 15 more times. By the time the struggle ended, 

Grandon had suffered 25 stab wounds. While Abdulkadir stood 

over Grandon, he yelled, “‘You think you can steal from 

me?’”14 Finally, Abdulkadir later told other inmates that he had 

been acting in retaliation.

Under these circumstances, Abdulkadir did not have a good 

faith reasonable belief that he was still in imminent danger of serious bodily harm. Once Grandon fell helplessly to 

the floor, the threat to Abdulkadir was neutralized and he 

was no longer justified in using deadly force in self-defense. 

Nothing in Plater’s alleged testimony, or any of Abdulkadir’s 

evidence at trial, would contradict this finding. Thus, even 

assuming that counsel’s choice not to call Plater would have 

been deficient—which we do not decide—it did not prejudice 

Abdulkadir’s defense.

Abdulkadir’s first assignment of error is, therefore, without merit.

In Abdulkadir’s second assignment of error, he argues 

that the district court erred by denying postconviction relief. 

Because Abdulkadir’s first assignment of error has no merit, 

his second assignment of error also fails.

CONCLUSION

The decision of the district court is affirmed.

Affirme

14 See Abdulkadir, supra note 1, 286 Neb. at 420, 837 N.W.2d at 514.