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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. STRICKLIN

Cite as 310 Neb. 478

State of Nebraska, appellee, v. 

Derrick U. Stricklin, appellant.

___ N.W.2d ___

Filed December 3, 2021. No. S-20-681.

1. 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.

2. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

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.

3. Postconviction: Constitutional Law. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

4. Postconviction: Sentences: Appeal and Error. The Nebraska 

Postconviction Act is intended to provide relief in those cases where 

a miscarriage of justice may have occurred; it is not intended to be a 

procedure to secure a routine review for any defendant dissatisfied with 

his or her sentence.

5. Postconviction: Constitutional Law: Proof. A 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 Nebraska or federal 

Constitution.

Nebraska Supreme Court Online Library

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

01/07/2022 09:06 AM CST
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STATE v. STRICKLIN

Cite as 310 Neb. 478

6. 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.

7. ____: ____. To show that counsel’s performance was deficient under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), the defendant must show counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law in 

the area.

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

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

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), 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. 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.

9. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel 

claim, deficient performance and prejudice can be addressed in either 

order. If it is more appropriate to dispose of an ineffectiveness claim due 

to the lack of sufficient prejudice, that course should be followed.

10. Criminal Law: Evidence: Proof. To establish an alibi defense, a 

defendant must show (1) he or she was at a place other than where the 

crime was committed and (2) he or she was at such other place for such 

a length of time that it was impossible to have been at the place where 

and when the crime was committed.

11. Postconviction: Evidence: Witnesses. In an evidentiary hearing for 

postconviction relief, the postconviction trial judge, as the trier of fact, 

resolves conflicts in evidence and questions of fact, including witness 

credibility and the weight to be given a witness’ testimony.

12. Evidence: Appeal and Error. Where competent evidence supports the 

district court’s findings, the appellate court will not substitute its factual 

findings for those of the district court.

13. Effectiveness of Counsel: Proof. Trial counsel’s failure to investigate 

various aspects of the case is not ineffective assistance of counsel, 

absent prejudice and a specific showing what the investigation would 

have revealed, what exculpatory evidence would have been discovered, or how such an investigation would have changed the outcome of 

the trial. 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. STRICKLIN

Cite as 310 Neb. 478

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and 

Steinke and Otte, District Judges.

Funke, J.

INTRODUCTION

Derrick U. Stricklin appeals from the denial of postconviction relief following an evidentiary hearing. Stricklin asserts 

his trial counsel was ineffective in failing to present an alibi 

defense and in failing to investigate and present evidence of 

other suspects. Stricklin also asserts the district court erred in 

denying his request to depose expert witnesses. We disagree 

with Stricklin’s arguments and therefore affirm the order of the 

district court.

BACKGROUND

In 2013, in a joint trial, a jury convicted codefendants, 

Stricklin and Terrell E. Newman, on two counts of first degree 

murder, three counts of use of a deadly weapon to commit a 

felony, attempted intentional manslaughter, and possession of 

a deadly weapon by a prohibited person. The district court for 

Douglas County sentenced both men to life imprisonment for 

each murder conviction; 15 to 25 years’ imprisonment for each 

use of a deadly weapon to commit a felony conviction; 20 

months’ to 5 years’ imprisonment for the attempted manslaughter conviction; and 15 to 25 years’ imprisonment for the possession of a deadly weapon conviction. All sentences were to 

run consecutively. This court affirmed Stricklin’s convictions 

and sentences on direct appeal. 1

1 State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
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STATE v. STRICKLIN

Cite as 310 Neb. 478

Stricklin timely moved for postconviction relief, asserting 

several claims, which the district court denied without conducting an evidentiary hearing. Stricklin appealed directly to this 

court. 2 We affirmed the dismissal of the majority of Stricklin’s 

claims, but remanded the matter back to the district court for an 

evidentiary hearing on two of the claims. The matter remanded 

to the district court included Stricklin’s claims that trial counsel 

failed to file a notice of alibi and present evidence of his alibi 

defense and failed to investigate other potential suspects. 3

The facts adduced at trial are fully set forth in our opinion 

affirming Stricklin’s convictions and sentences. 4 Summarized, 

on December 2, 2012, Carlos Morales and Bernardo Noriega 

were shot and killed in a drug transaction at an automobile 

body shop in Omaha, Nebraska. The State alleged that Stricklin 

and Newman committed the crimes together. Newman’s cell 

phone records showed that Newman was in communication 

with Morales and Stricklin on the day of the shootings and that 

Newman’s cell phone was in the area of the murder scene during the relevant timeframe. 5

The State’s primary witness at trial, Jose Herrera-Gutierrez, 

claimed he was present during the shootings. Based upon 

information provided by Herrera-Gutierrez, officers compiled 

photographic lineups containing photographs of Stricklin and 

Newman. Herrera-Gutierrez identified Stricklin and Newman 

as the shooters; he testified that he recognized both men from 

three or four prior visits to the body shop, although he had 

never learned their names.

Herrera-Gutierrez testified that following a drug transaction, he witnessed Stricklin and Newman draw firearms. 6

2 Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).

3 State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).

4 Id.; Stricklin, supra note 1; State v. Newman, 300 Neb. 770, 916 N.W.2d 

393 (2018); State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).

5 Id.

6 Stricklin, supra note 1.
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Cite as 310 Neb. 478

According to Herrera-Gutierrez, Newman instructed Morales to 

tell Herrera-Gutierrez and Noriega to lie down. Newman tied 

Herrera-Gutierrez’ wrists. Herrera-Gutierrez stated that plastic 

was wrapped around his face and that he could breathe but was 

unable to see. He claimed that he heard the two or three gunshots that killed Morales and Noriega, that someone untied his 

wrists and took the plastic off his head, and that Stricklin and 

Newman left the scene without shooting him.

Despite testimony from various witnesses regarding the 

timeline of events, the evidence did not establish a precise 

time for the shootings. Morales’ fiance discovered the bodies 

at 2:15 p.m. The police broadcast about the shootings went out 

at 2:34 p.m.

The State’s theory was that Stricklin and Newman committed the crimes together, at approximately 12:30 p.m. Newman’s 

cell phone records showed multiple contacts with Stricklin 

on December 2, 2012, right before and after the relevant 

period. The State adduced evidence showing that Newman 

and Stricklin called each other seven times between approximately 9:27 and 11:13 a.m. Newman received six calls from 

11:42 a.m. to 12:36 p.m., at which time Newman’s phone 

used a cell tower located in the immediate vicinity of the body 

shop. 7 After his 11:13 a.m. call with Newman, Stricklin did not 

make or receive a call until 12:34 p.m., when he received a call 

which went to voicemail. Stricklin did not send or receive any 

text messages during this period of inactivity. Stricklin made 

his next call at 2:15 p.m., which was to Newman.

Stricklin’s motion for postconviction relief contained the 

following relevant allegations: Under his first claim, he alleged 

that he was in downtown Omaha with his “stepson” Hashim C. 

on the day of the shootings from approximately 9:30 a.m. 

until noon. Stricklin alleged that they ate at a restaurant, purchased gas, and each got a haircut at a barbershop. He alleged 

they later drove to his grandmother’s house. He alleged that 

7 Id.
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STATE v. STRICKLIN

Cite as 310 Neb. 478

during his drive, he made a phone call to a friend at 12:34 p.m. 

The call registered at a cell tower approximately 5 miles from 

the crime scene. He stated he received text messages during 

the drive.

Stricklin stated that he and Hashim arrived at his grandmother’s house around 12:40 p.m. and that around 20 to 25 

people were present, including his brother Daryel Stricklin. He 

stated Antoineya Richard (Antoineya), his girlfriend at the time 

and Hashim’s mother, arrived at his grandmother’s home and 

picked up Hashim around 2 or 3 p.m. Stricklin stated he made 

his trial counsel aware his alibi was supported by the barber, 

Hashim, Antoineya, and Daryel.

Under the second claim of his postconviction motion, 

Stricklin alleged his counsel was ineffective for failing to 

investigate as possible suspects Marcus Jefferson, Stricklin’s 

half brother, and a man named “James Moore.” Stricklin 

alleged Jefferson stated to him that Moore committed the murders due to a dispute involving money and “bad drugs.”

Prior to the evidentiary hearing on the two claims ordered 

by this court, Stricklin filed a successive postconviction motion 

which alleged the State advanced a false prosecution theory 

by claiming to the jury that the cell phone location data represented the location of Stricklin or his phone rather than the 

location of a cell tower. The State moved to dismiss the successive motion for postconviction relief as time barred.

Stricklin also filed a motion to depose nine witnesses prior 

to the pending evidentiary hearing. The State objected to 

Stricklin’s request to depose two of the witnesses, an agent 

with the Federal Bureau of Investigation and a representative 

from a cell phone provider, arguing the request went beyond 

Stricklin’s first postconviction motion and the scope of our 

remand. The district court granted Stricklin’s motion as to 

seven of the witnesses and took the State’s objection regarding the remaining two witnesses under advisement. The court 

gave Stricklin leave to file a brief explaining how the two cell 

phone expert witnesses were relevant to the issues on remand. 
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STATE v. STRICKLIN

Cite as 310 Neb. 478

Thereafter, the court held a hearing on Stricklin’s motion and 

issued an order denying the request. The court agreed with 

the State that Stricklin’s proposed use of the testimony went 

beyond his alibi claim. The court found “Stricklin’s cell phone 

records are in evidence and he can present and rely upon 

them at his evidentiary hearing without depositions of these 

witnesses.” In the same order, the court dismissed Stricklin’s 

successive postconviction motion which is not at issue in 

this appeal.

At the evidentiary hearing, the district court received depositions from Stricklin, Daryel, Antoineya, Hashim, and Stricklin’s 

trial counsel.

In his deposition, Stricklin testified that on December 2, 

2012, he went with Hashim to the barbershop for their 9 a.m. 

appointment. The barber was running late, so Stricklin and 

Hashim went to a restaurant and a gas station and returned 

for their haircuts around 10 a.m. Stricklin stated that he and 

Hashim got their hair cut by the same barber every week 

and that their haircuts would take approximately 2 hours. 

Stricklin testified that he left the barbershop between noon 

and 12:30 p.m. and that he placed a call to a friend and briefly 

stopped at the friend’s house while on the way to his grandmother’s house.

Stricklin further testified that he made counsel aware of his 

alibi defense early in the process and that the alibi defense 

was the “number one” trial strategy. He stated that counsel 

did not inform him he would not present the alibi at trial and 

that Daryel, Antoineya, and Hashim were present and ready to 

testify. When asked about his discussions with counsel regarding trial strategy, Stricklin testified, “We had, like, a lockdown 

defense, and he didn’t do any of it. He didn’t — he didn’t 

cross-examine the witnesses or anything. He just sat there, like, 

he didn’t know what was going on.”

Antoineya testified that she was in a dating relationship with 

Stricklin from 2010 to 2014 and that he lived in her home. 

She thought that Stricklin and Hashim went to the barbershop 
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Cite as 310 Neb. 478

at 11 a.m. and that Hashim returned home around 2 p.m. She 

spoke with Stricklin’s counsel before trial on multiple occasions, and counsel knew she and Hashim were alibi witnesses, 

but she was never contacted to testify.

Daryel testified he was present at the family gathering at his 

grandmother’s house. He recalled that he started eating around 

noon and that around 10 people were present. Daryel testified Stricklin arrived at his grandmother’s between 12:30 and 

1 p.m. Daryel recalled the time of Stricklin’s arrival because 

he had to leave to go to a movie around the same time. He did 

not remember if anyone was with Stricklin when he arrived. 

He spoke with Stricklin’s counsel before trial and provided 

this information.

Hashim was 10 years old in December 2012 and 17 years 

old at the time of his deposition. Hashim testified Stricklin 

is basically his stepfather and they had a good relationship. 

Hashim testified he and Stricklin went for a haircut together 

every week. He thought it would take about an hour for both 

him and Stricklin to get a haircut. He stated that he did not do 

anything else with Stricklin on the day in question other than 

get food and return home. His mother mentioned to him he 

might be a witness at Stricklin’s trial, but he never spoke with 

Stricklin’s counsel.

Stricklin’s trial counsel testified via deposition. Counsel 

stated that he had not reviewed the case file for years. Counsel 

acknowledged that at one point he had planned to put forward 

an alibi defense but that during the pretrial process, his view of 

the alibi defense changed. He testified he had “vague memories 

of potentially not going forward with an alibi as trial strategy.” 

Counsel testified he believed the alibi contained a “pitfall,” and 

he recalled sharing his concerns with Stricklin.

Counsel conceded he had not filed a notice of alibi defense 

in order to present the defense at trial, 8 claiming there was 

“a conscious decision that we were moving forward without 

8 See Neb. Rev. Stat. § 29-1927 (Reissue 2016).
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Cite as 310 Neb. 478

an alibi.” Counsel stated that he discussed the alibi with Daryel 

and Antoineya and that he decided to not interview Hashim, 

because he was unclear as to Stricklin’s relationship with 

Hashim. Counsel did not interview the barber, stating he was 

concerned the barber feared Newman and, if forced to testify, 

might have testified in a way that would harm Stricklin’s 

defense. Counsel thought he made a few attempts to speak to 

the barber, but stated that the barber retained an attorney and 

that he did not remember if he spoke with the barber’s attorney. Counsel stated his decision not to pursue the alibi was 

strategic, because all the alibi witnesses were personally close 

with Stricklin and had a motive to support him. Further, counsel stated he was aware of Stricklin’s claim of other potential 

suspects, because Stricklin had discussed it with him, but that 

he chose not to pursue them as a defense.

In its order discussing and weighing the evidence, the court 

found counsel’s “concerns about the viability of Stricklin’s 

alibi appear to be reasonable in light of the evidence presented 

at trial and the evidence in the current record.” The court found 

that Stricklin did not establish a clear timeline for his alibi and 

that when all of the timeline evidence was considered, there 

were gaps in the evidence which failed to refute the State’s 

theory that Stricklin and Newman committed the murders at 

approximately 12:30 p.m. The court found the gaps showed 

that counsel’s “concerns about a ‘pitfall’ in the alibi were 

reasonable.”

Additionally, the court found Stricklin failed to prove any 

prejudice, because even if counsel had presented the alibi 

defense, the defense was so weak that the result of the trial 

would not have been any different. The court discussed and 

weighed the deposition testimony and concluded the evidence 

showed Stricklin had no alibi between approximately 11 a.m. 

and 12:34 p.m. The court found Stricklin’s phone records 

placed him in the downtown Omaha area between 9:19 and 

10:45 a.m. The court credited Stricklin’s testimony that he 
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Cite as 310 Neb. 478

and Hashim arrived at the barber for their haircuts at around 

10 a.m. Noting that Stricklin and Hashim had short hair and 

weekly haircuts, the court credited Hashim’s testimony that 

their haircuts would have been finished within approximately 

1 hour. The court found that Stricklin’s alibi defense left a gap 

that “corresponds to the time of the murders.” The court found 

that “[c]ompounding the damage [of the gap] to Stricklin’s 

alibi defense, his cell phone’s communications immediately 

before this gap are with a cell phone number attributed to 

Newman at trial.” The court found “the evidence that Stricklin 

has supplied does not establish that [he] was at a place other 

than the crime scene for ‘such a length of time that it was 

impossible for him to have been at the place where and when 

the crime was committed.’” 9

Although the court had denied Stricklin leave to depose two 

cell phone record experts, the court considered Stricklin’s offer 

of proof regarding the expert testimony. The court found even 

if the court had allowed the depositions and received the evidence, the analysis would not change, because Stricklin’s cell 

phone records did not fill the gaps in his alibi and therefore did 

not support his alibi defense.

Lastly, the district court rejected Stricklin’s claim that his 

trial counsel was ineffective in failing to investigate and present evidence of alternative suspects. The court found Stricklin 

had presented no exculpatory evidence on this issue and no 

evidence other than hearsay implicating Jefferson and Moore.

ASSIGNMENTS OF ERROR

Stricklin assigns the district court erred in denying his ineffective assistance of counsel claim, when counsel failed to 

present an alibi defense and failed to investigate and present 

evidence of other possible suspects. Further, Stricklin assigns 

the court erred in denying his request to depose cell phone 

record experts.

9 See State v. Moreno, 228 Neb. 210, 422 N.W.2d 56 (1988).
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STATE v. STRICKLIN

Cite as 310 Neb. 478

STANDARD OF REVIEW

[1] 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. 10

[2] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact. 11 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error. 12 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,

 13 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision. 14

ANALYSIS

[3-5] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. 15 The 

Nebraska Postconviction Act is intended to provide relief in 

those cases where a miscarriage of justice may have occurred; 

it is not intended to be a procedure to secure a routine review 

for any defendant dissatisfied with his or her sentence. 16 A 

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 

10 State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).

11 See id.

12 Id.

13 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

14 Beehn, supra note 10.

15 Id.

16 Id.
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of the defendant’s rights under the Nebraska or federal 

Constitution. 17

[6-8] Stricklin had the same counsel at trial and on direct 

appeal. To prevail on a claim of ineffective assistance of counsel under Strickland,

 18 the defendant must show that his or her 

counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense. 19 To 

show that counsel’s performance was deficient, the defendant must show counsel’s performance did not equal that of 

a lawyer with ordinary training and skill in criminal law in 

the area. 20 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. 21 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. 22

“The likelihood of a different result must be substantial, not 

just conceivable.” 23

[9] “‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered 

by the defendant as a result of the alleged deficiencies.’” 24

17 Stricklin, supra note 3.

18 Strickland, supra note 13.

19 Stricklin, supra note 3.

20 Id.

21 Id.

22 Id.

23 Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 

(2011).

24 State v. Hawthorne, 230 Neb. 343, 347, 431 N.W.2d 630, 633 (1988), 

quoting Strickland, supra note 13. Accord, State v. Moss, 240 Neb. 21, 

480 N.W.2d 198 (1992); State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 

(1989).
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Deficient performance and prejudice can be addressed in either 

order. If it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course 

should be followed. 25

Alibi Defense

Stricklin argues counsel was ineffective in failing to present 

his alibi defense. Stricklin claims he had frequent discussions 

with counsel regarding plans to present an alibi at trial, that 

counsel did not inform him he would not present the alibi, and 

that counsel’s actions had foreclosed the possibility of an alibi 

due to the failure to file a notice of alibi. Stricklin contends 

that the importance of the alibi defense was clear from the 

beginning to the end, and there is no evidence counsel abandoned the alibi based on trial strategy, other than counsel’s 

vague recollections. Stricklin argues counsel admitted he did 

not interview Hashim or the barber and did not hire anyone to 

investigate the alibi.

For the analytical purposes of resolving Stricklin’s appeal, 

the court will assume Stricklin has established counsel’s failure 

to present his alibi defense constituted deficient performance. 

However, in light of the court’s ultimate holding on Stricklin’s 

ineffective assistance of counsel claim, the court need not 

decide the question of deficient performance. Ultimately, we 

conclude Stricklin has failed to prove he was prejudiced by 

counsel’s performance.

As a rule, a “violation of the Sixth Amendment right to 

effective representation is not ‘complete’ until the defendant 

is prejudiced.” 26 Prejudice means “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

25 State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v. Nesbitt, 

264 Neb. 612, 650 N.W.2d 766 (2002); State v. Soukharith, 260 Neb. 478, 

618 N.W.2d 409 (2000).

26 United States v. Gonzalez-Lopez, 548 U.S. 140, 147, 126 S. Ct. 2557, 165 

L. Ed. 2d 409 (2006).
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proceeding would have been different.” 27 “The benchmark for 

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the 

adversarial process that the trial cannot be relied on as having 

produced a just result.” 28 Assuming Stricklin has established 

deficient performance, Stricklin must also show there is a reasonable probability that but for counsel’s failure to present his 

alibi defense, the result of his trial would have been different. 

Therefore, we turn to consider the merits of Stricklin’s alibi 

defense, had it been presented to the jury.

[10] As noted by the trial court, Nebraska precedent indicates that a defendant asserting an alibi defense bears a heavy 

evidentiary burden. To establish an alibi defense, a defendant 

must show (1) he or she was at a place other than where the 

crime was committed and (2) he or she was at such other place 

for such a length of time that it was impossible to have been at 

the place where and when the crime was committed. 29

Stricklin claims he could not have been present during the 

shootings, according to the State’s theory that the shootings 

occurred around 12:30 p.m., because he proved through witness testimony and cell phone record evidence that he was 

located at least 5 miles away from the scene of the crime at 

12:34 p.m. However, as we discuss, the evidence does not support Stricklin’s alibi, especially at the critical time.

[11,12] The district court explained there was nothing 

accounting for Stricklin’s presence between approximately 

11 a.m. and 12:30 p.m. Stricklin complains the district 

court accepted his testimony that the haircuts commenced at 

27 Strickland, supra note 13, 466 U.S. at 694.

28 Id., 466 U.S. at 686.

29 NJI2d Crim. 8.1, comment, citing Moreno, supra note 9; State v. El-Tabech, 

225 Neb. 395, 405 N.W.2d 585 (1987); State v. Sutton, 220 Neb. 128, 368 

N.W.2d 492 (1985); Mays v. State, 72 Neb. 723, 101 N.W. 979 (1904); 

Peyton v. State, 54 Neb. 188, 74 N.W. 597 (1898). See, State v. Jacobs, 

226 Neb. 184, 410 N.W.2d 468 (1987); State v. Veatch, 16 Neb. App. 50, 

740 N.W.2d 817 (2007).
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10 a.m., but not his testimony that the haircuts were not finished until around noon. However, in an evidentiary hearing 

for postconviction relief, the postconviction trial judge, as the 

trier of fact, resolves conflicts in evidence and questions of 

fact, including witness credibility and the weight to be given 

a witness’ testimony. 30 Where competent evidence supports the 

district court’s findings, the appellate court will not substitute 

its factual findings for those of the district court. 31

The trial court further explained that the phone records 

undermined the credibility of Stricklin’s alibi and showed that 

Stricklin and Newman were in contact with one another based 

on their numerous phone communications on the date of the 

shootings. At trial, the State called a records custodian with a 

cell phone provider who testified that Stricklin’s phone records 

showed there was a call between Stricklin and Newman at 

11:13 a.m., and then no phone activity on Stricklin’s phone 

until 12:34 p.m. The court found this to be evidence of “a 

gap that corresponds to the time of the murders.” Further, the 

phone records disprove Stricklin’s testimony that he placed 

a call at 12:34 p.m. and received text messages during his 

drive to his grandmother’s, because the phone records show 

that Stricklin received a call at 12:34 p.m., which went to 

voicemail, and that he did not receive text messages during 

this time. Even recognizing the fact that Stricklin’s phone was 

located approximately 5 miles away from the crime scene at 

12:34 p.m., such evidence does not establish that Stricklin was 

unable to be present at the body shop with Newman when the 

shootings occurred. 32

The record does not support Stricklin’s claim that he was at 

another place for such a length of time that it was impossible 

for him to have committed the murders. We agree with the 

district court that in light of the incriminating phone records 

30 State v. Russell, 308 Neb. 499, 954 N.W.2d 920 (2021).

31 Id.

32 See, e.g., State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
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and an eyewitness identification, Stricklin failed to show a 

reasonable probability that presentation of his alibi defense at 

trial would have changed the outcome. Stricklin has failed to 

establish he was prejudiced by counsel’s decisions. As such, 

Stricklin’s claim that his counsel was ineffective for failing to 

present an alibi defense is without merit.

Other Suspects

[13] Stricklin contends counsel was ineffective in failing to 

investigate and present evidence of other suspects. However, 

Stricklin’s asserted theory regarding other suspects is not based 

on any evidence in our record, other than speculation based on 

hearsay. Stricklin attempted to refer to police reports contained 

in the presentence investigation report. However, the district 

court did not receive those materials into evidence and did not 

consider them. Thus, there is no evidence to support a reasonable probability of a different outcome had counsel presented 

evidence of other suspects. Trial counsel’s failure to investigate various aspects of the case is not ineffective assistance 

of counsel, absent prejudice and a specific showing what the 

investigation would have revealed, what exculpatory evidence 

would have been discovered, or how such an investigation 

would have changed the outcome of the trial. 33 This assignment 

of error is without merit.

Deposition of Cell Phone Experts

Stricklin argues the court erred in not granting him leave 

to depose two cell phone experts. Stricklin contends that the 

experts would have interpreted the cell phone records in a manner corroborating his alibi. The State argues the court correctly 

found Stricklin’s request to be outside this court’s mandate 

upon remand.

As noted, following remand for an evidentiary hearing 

on two of Stricklin’s postconviction claims, Stricklin moved 

33 See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).
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to depose nine additional witnesses. The State objected to 

Stricklin’s request to depose two cell phone record expert witnesses, and the court sustained the objection. In doing so, the 

court found that challenging the use of Newman’s cell phone 

records was beyond the scope of the alibi claim raised in 

Stricklin’s first motion for postconviction relief. Additionally, 

the court noted that Stricklin’s cell phone records were received 

into evidence at trial and could be relied upon to support his 

claims on remand without the additional depositions of expert 

witnesses.

The construction of a mandate issued by an appellate court 

presents a question of law, on which an appellate court is obligated to reach a conclusion independent of the determination 

reached by the court below. 34 A district court has an unqualified 

duty to follow the mandate issued by an appellate court and 

must enter judgment in conformity with the opinion and judgment of the appellate court. 35

Stricklin has not argued the district court erred in interpreting this court’s mandate, and we find no error by the district 

court in that regard. Nor has Stricklin explained how his 

request was within the scope of the mandate.

To the extent any of the proposed expert testimony would 

have been relevant to Stricklin’s alibi defense and thus within 

the scope of our mandate, we review the court’s denial of a discovery request for an abuse of discretion. 36 Here, the court considered Stricklin’s offer of proof regarding the expert testimony 

for purposes of evaluating his alibi defense and concluded that 

even if it had allowed the depositions and received the evidence, the result would have been the same. The court found 

Stricklin’s phone records undermined, rather than supported, 

his alibi defense, because the phone records established a gap 

that corresponded with the time of the murders and showed 

34 State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).

35 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

36 See Jackson, supra note 32.
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Stricklin’s contacts with Newman right before and after the 

murders. We find no abuse of discretion by the district court. 

This assignment of error is without merit.

CONCLUSION

The order of the district court dismissing Stricklin’s motion 

for postconviction relief is affirmed.

Affirmed.

Heavican, C.J., and Freudenberg, J., not participating.