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STATE v. CULLEN

Cite as 311 Neb. 383

State of Nebraska, appellee, v. 

Sarah A. Cullen, appellant.

___ N.W.2d ___

Filed April 15, 2022. No. S-21-447.

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. 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. 

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.

3. 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 U.S. or Nebraska 

Constitution. If a postconviction motion alleges only conclusions of fact 

or law, or if the records and files in the case affirmatively show that the 

defendant is entitled to no relief, the court is not required to grant an 

evidentiary hearing.

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

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

5. 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.

Nebraska Supreme Court Online Library

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

07/08/2022 01:07 AM CDT
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6. 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.

7. 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.

8. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise 

a claim on appeal of ineffective assistance of trial counsel (a layered 

claim of ineffective assistance of counsel), an appellate court will look 

at whether trial counsel was ineffective under the test in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If 

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

by appellate counsel’s failure to raise the issue. Much like claims of 

ineffective assistance of trial counsel, the defendant must show that but 

for appellate counsel’s failure to raise the claim, there is a reasonable 

probability that the outcome would have been different.

9. 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.

10. Trial: Attorney and Client: Testimony. Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

Appeal from the District Court for Douglas County: 

Gregory M. Schatz, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.
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Cite as 311 Neb. 383

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

and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Sarah A. Cullen appeals the order of the district court for 

Douglas County which denied her motion for postconviction 

relief. Cullen, who is serving a sentence of imprisonment for 

70 years to life for a conviction for intentional child abuse 

resulting in death, set forth claims of ineffective assistance of 

both trial and appellate counsel. The district court determined 

that all of Cullen’s claims were insufficiently pled, and it therefore denied her motion for postconviction relief without an 

evidentiary hearing. We affirm.

STATEMENT OF FACTS

Cullen was convicted of intentional child abuse resulting in 

death in connection with the death of an infant who was in her 

care. The district court sentenced her to imprisonment for 70 

years to life, and her conviction and sentence were affirmed 

on direct appeal. State v. Cullen, 292 Neb. 30, 870 N.W.2d 

784 (2015).

Further details may be found in the opinion on direct appeal, 

but the evidence generally showed as follows: In January 

2013, Christopher (Chris) Bell and Ashley Bell hired Cullen to 

work temporarily in their home as a nanny for their son, Cash 

Christopher Bell, who was born in October 2012. On the morning of February 28, 2013, Cullen was caring for Cash while the 

Bells were at work. Both Chris and Ashley testified that it had 

been a typical morning before they went to work and that Cash 

was acting normally. Cullen arrived at the Bells’ house at 7:15 

a.m. Chris had already left for work, and Ashley left for work 

at around 7:40 a.m.

Around 9:19 a.m., Chris returned home to retrieve a checkbook. Chris looked in on Cash who was lying face down. 

Chris rolled Cash over; Cash did not open his eyes, but he 

took a breath and Chris believed that he was sleeping. Cullen 
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was in a nearby bathroom while Chris was in the house. Chris 

estimated he was in the house for less than a minute, and as 

he was getting into his car, Cullen came to the door with Cash 

in her arms.

At around 10:15 a.m., Cullen called her boyfriend and told 

him that Cash was not breathing and that his feet were blue. 

Her boyfriend came to the Bells’ house. Cash was not responsive but was breathing. Cullen’s boyfriend took Cash and 

Cullen to a hospital. When they arrived at the hospital’s emergency room, Cullen stated that she found Cash “sleeping on his 

belly and he doesn’t normally sleep like that.”

Cullen called Ashley shortly after calling her boyfriend. 

Cullen told Ashley that she was taking Cash to the hospital 

because he had just woken up from a nap and was not breathing right. The Bells arrived at the emergency room. Ashley 

questioned Cullen about what had happened that morning, 

and Cullen stated only that Cash woke up from his nap in 

that condition.

Cash was eventually transported to a pediatric hospital due 

to the extent of his injuries. Cash’s neurological condition 

rapidly deteriorated over the following days. He exhibited a 

lack of responsiveness and frequent seizures that could be controlled only through high doses of medication. Doctors determined that Cash would not have any significant neurologic 

recovery, and based on the doctors’ long-term prognosis that 

Cash would never be able to see, hear, or walk or be without a 

feeding tube and a ventilator, the Bells decided to take Cash off 

life support on March 5, 2013. He died that day.

Law enforcement officers interviewed Cullen on February 

28 and March 1, 2013. During the February 28 interview, 

Cullen told four versions of what had occurred with Cash that 

morning. She first stated that Cash had been acting normally 

but that after he woke from a nap, his breathing was not 

normal. At that time, Cullen denied that Cash had fallen or 

had an accident that morning. After the interviewer informed 

Cullen that Cash’s skull was fractured and that his head had 
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to have hit something or something had to have hit his head, 

Cullen stated that when she was walking out the back door 

with Cash, she may have accidentally hit his head on the door. 

The interviewer later informed Cullen that a pediatrician had 

said that Cash’s injuries could not have been caused by hitting 

his head on a door. Cullen initially denied that anything else 

had happened, but she later stated that Cash had fallen out of 

his swing at about 8:15 a.m. and that he whimpered but then 

fell asleep. The interviewer again consulted with a pediatrician and informed Cullen that Cash’s injuries could not have 

been caused by a short fall from the swing and that instead, 

his injuries were consistent with shaking or being thrown down 

hard. Cullen began crying and admitted that she had lied. She 

stated that Cash had fallen out of the swing the day before, but 

that at about 8:15 a.m. on February 28, she had slipped on the 

stairs while carrying Cash and he had fallen onto the tile floor 

below. She denied shaking Cash. Cullen generally maintained 

this fourth version of events in a written statement and during 

an interview on March 1.

Several medical experts testified about the extent of Cash’s 

injuries and their possible causes. Evidence indicated significant injuries, including a large hematoma and a smaller bruise 

on the back of the head, two skull fractures, hemorrhages in 

the surface of the brain, injury to the brain itself, and multiple 

retinal hemorrhages. Doctors testified that the brain injuries 

affected Cash’s entire brain and that 90 percent of his brain 

was permanently damaged. The medical experts agreed that 

Cash’s injuries were consistent with nonaccidental trauma 

caused by shaking or impacts to the head or both. None of the 

experts could pinpoint an exact date and time of injury, but 

they estimated that the brain and eye injuries occurred within 

0 to 2 days of February 28, 2013. Based on medical evidence 

and statements given by the Bells and Cullen, two medical 

experts opined that Cash’s brain injury occurred sometime 

after Ashley left for work on February 28. They testified that 

children with Cash’s type of brain injury are immediately 
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unwell and that symptoms would manifest fairly quickly and 

would be noticeable. Several medical experts testified that 

Cullen’s versions of events could not have accounted for all of 

Cash’s injuries.

Cullen appealed her conviction and sentence to this court. 

Cullen had new counsel on direct appeal, and in addition to 

other assignments of error, she set forth claims of ineffective assistance of trial counsel. She claimed that trial counsel 

was ineffective in four respects, and we determined that three 

of the claims were without merit. The fourth claim was that 

trial counsel was ineffective for failing to investigate and call 

a medical expert to testify on her behalf. We concluded that 

the record on direct appeal was inadequate to address this 

claim. Having rejected Cullen’s other assignments of error, we 

affirmed her conviction and sentence. State v. Cullen, 292 Neb. 

30, 870 N.W.2d 784 (2015).

On November 16, 2016, Cullen filed a verified motion for 

postconviction relief in which she set forth four claims of ineffective assistance of trial counsel and one claim of ineffective 

assistance of appellate counsel. We quote these allegations 

later in our opinion. Before setting forth her specific claims of 

ineffective assistance of counsel, Cullen made certain allegations in her motion. She generally alleged as follows: After 

being charged in this case, Cullen was originally represented 

by counsel retained by her father. She asserted that her original 

counsel “performed valuable service” but that he eventually 

withdrew as counsel upon the advice of a trial consultant. 

Cullen’s original counsel had contacted a trial consultant from 

Ohio with whom he had a professional relationship. He asked 

the trial consultant, who had 25 years of experience assisting 

in the defense of persons charged with child abuse, to eval

uate Cullen’s case. After meeting with Cullen and reviewing 

evidence in this case, the trial consultant determined that 

Cullen’s case was “fully defensible.” The trial consultant made 

suggestions of how Cullen’s case could be defended, and she 

recommended “several experts” who could provide testimony 
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in Cullen’s defense. In her motion for postconviction relief, 

Cullen included a list of the names of several experts who had 

been recommended by the trial consultant. The trial consultant 

further advised that Cullen’s original counsel should withdraw, 

because Cullen’s father could not afford to hire the expert witnesses, and that if original counsel withdrew, Cullen would 

be eligible to be represented by the public defender’s office, 

which would have the budget to hire the experts.

After her original counsel withdrew, Cullen was represented 

at trial by public defenders. Cullen alleged that her original 

counsel provided the public defenders with a confidential 

memorandum setting forth various issues and his suggestions 

of how Cullen’s defense should be handled, including potential 

witnesses and theories of defense. Those theories of defense 

involved the possibility that Cash’s injuries occurred prior to 

the time Cullen was caring for him on February 28, 2013, and 

the possibility that one of Cash’s parents caused the injuries. 

The memorandum also set forth suggestions of the trial consultant, including the names of experts recommended by the 

trial consultant.

In support of her claims of ineffective assistance of trial 

counsel, Cullen generally alleged that trial counsel failed to 

follow up on the suggestions and recommendations of her 

original counsel and the trial consultant and that trial counsel 

failed to consult with her regarding potential defenses and witnesses and her right to testify at trial. In support of her claim 

of ineffective assistance of counsel on direct appeal, Cullen 

alleged that upon her conviction, her father hired new counsel 

to prosecute her direct appeal but that such counsel provided 

inadequate representation. She alleged that appellate counsel 

failed to meet with her to discuss the issues in her appeal and 

never explained to her the need to bring forward all instances 

of ineffective assistance of trial counsel. She alleged that if 

appellate counsel had so advised her, she would have identified 

the failures of trial counsel that she set forth in her postconviction claims of ineffective assistance of trial counsel.
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The State moved the district court to dismiss Cullen’s motion 

for postconvicton relief without an evidentiary hearing. The 

court granted the State leave to submit written arguments, and 

it granted Cullen leave to file responsive written arguments. 

After the parties submitted written arguments, the court filed 

an order on May 7, 2021, in which it found that Cullen was not 

entitled to an evidentiary hearing. The court generally determined that each of Cullen’s claims was not pled with adequate 

specificity, and it therefore dismissed Cullen’s motion for postconviction relief.

Cullen’s first claim of ineffective assistance of trial counsel was that counsel “failed to adequately investigate [her] 

defenses and advise [her] of her options, including but not 

limited to the alternate theories of the cause of the severity of 

the injuries.” With regard to this claim, the district court stated 

that Cullen had “failed to set out what exculpatory evidence 

might have been found with an adequate investigation, or how 

the outcome of the trial would have been different with such 

an investigation.” The court stated that Cullen simply listed the 

names of potential witnesses that should have been contacted 

but that she provided “no facts as to what information . . . 

they would have provided or how any such information might 

have impacted cross-examination of the State’s witnesses.” The 

court concluded that Cullen made “no specific allegations as 

to how a more effective investigation would have changed the 

outcome of the trial.”

Cullen’s second claim of ineffective assistance of trial 

counsel was that counsel “failed to investigate the hiring 

of expert witnesses to support [her] description of how the 

injury occurred and failed to utilize [a] trial consultant with 

25 years of experience who had examined the facts and met 

with [Cullen].” With regard to this claim, the court stated that 

Cullen “provided no specific defenses that would have been 

offered through any such expert witnesses, or the details of 

any alternative explanations that might have been presented 
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. . . at trial” and that she “failed to set forth any testimony that 

such an expert would have given.” Regarding the use of a trial 

consultant, the court stated that Cullen “failed to show how an 

expert assisting [Cullen] could have provided [Cullen’s] counsel with assistance in a more effective cross-examination of the 

State’s expert witnesses.”

Cullen’s third claim of ineffective assistance of trial counsel 

was that counsel “failed to meet with her on a single occasion 

to discuss the facts of the case, failed to consult with her about 

her right to testify and fail[ed] to inquire as to her desire to 

testify at trial.” With regard to this claim, the court stated that 

Cullen “failed to show how any such meeting with [Cullen] 

might have had an impact on the outcome of the trial, or that 

there is a reasonable probability that the outcome of [her] 

trial would be different.” Regarding Cullen’s right to testify, 

the court stated that Cullen’s claim was a “generic” allegation 

that “if called to testify, she would [have] explained ‘how the 

incident actually happened.’” But, the court stated, Cullen 

alleged “no other facts as to how the incident occurred or how 

her testimony would be different than the numerous statements 

given to law enforcement, which were introduced at trial.” The 

court noted that Cullen also alleged that she would have testified “‘about her care and love for the child and about the sorrow she had that the child was injured in any way’” and that 

such testimony “would have negated the State’s closing argument that she lacked emotion during the entirety of the trial.” 

The court again characterized this allegation as “generic” 

and stated that such testimony “could not have changed the 

outcome of the trial in light of the other evidence adduced at 

the trial.”

Cullen’s fourth claim of ineffective assistance of trial counsel was that counsel “failed to adequately prepare for trial 

in that they did not depose a single witness or prepare for 

cross examination of any of the medical or expert witnesses.” 

With regard to this claim, the court stated that Cullen did not 
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“allege what information would have been obtained . . . in 

deposing the State’s expert witnesses in order to provide for 

more effective cross-examination of the witnesses, or what 

questions should have been asked on cross-examination from 

any such depositions.” The court further stated that Cullen 

failed “to identify what questions should have been asked 

of the State’s witnesses that would have favorably assisted” 

her defense.

Cullen finally claimed ineffective assistance of appellate 

counsel, and she alleged that counsel “fail[ed] to meet with 

her and discuss the ineffective assistance of trial counsel so 

as to effectively set out those complaints in her appellate brief 

and thereby limiting the parameters of her [postconviction] 

proceedings.” With regard to this claim, the court stated that 

Cullen had “[o]nce again . . . failed to allege facts as to how 

this failure . . . effected [sic] the outcome of [her] appeal, or 

that there is a reasonable probability that the outcome of [her] 

appeal would have been different.”

In summary, the district court found that

as to each ground presented by [Cullen] in her motion for 

postconviction relief, [she] has failed to show how she 

was prejudiced by either her trial or appellate counsel’s 

failure, or that but for her trial or appellate counsel’s failure to provide effective professional representation, . . . 

there is a reasonable probability that the outcome . . . in 

this case could have been any different than it was.

The court concluded that Cullen was not entitled to an evidentiary hearing and that her motion should be dismissed.

Cullen appeals the district court’s order that dismissed her 

motion for postconviction relief.

ASSIGNMENT OF ERROR

Cullen claims that the district court erred when it denied her 

claims of ineffective assistance of trial counsel and her claim 

of ineffective assistance of appellate counsel without an evidentiary hearing.
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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 constitutional rights or that the record and files 

affirmatively show that the defendant is entitled to no relief.

State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).

ANALYSIS

We begin our analysis by setting forth standards that are 

applicable to our review of postconviction claims. We then 

review each of Cullen’s claims under those standards, and 

as discussed below, we determine that the district court did 

not err when it denied Cullen’s claims without an evidentiary hearing.

Postconviction Standards.

[2] 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. Id. 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. 

Britt, supra.

[3] 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 U.S. or Nebraska 

Constitution. Britt, supra. If a postconviction motion alleges 

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

the case affirmatively show that the defendant is entitled to no 

relief, the court is not required to grant an evidentiary hearing. Id.

[4-7] Cullen’s claims for postconviction relief assert that 

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

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

Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). 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. Britt, 

supra. 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. Britt, supra. A reasonable probability does not require 

that it be more likely than not that the deficient performance 

altered the outcome of the case; rather, the defendant must 

show a probability sufficient to undermine confidence in the 

outcome. Id. 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. See State v. Munoz, 309 Neb. 285, 959 N.W.2d 

806 (2021).

[8] Cullen was represented on direct appeal by counsel different from her trial counsel. In addition to asserting claims of 

ineffective assistance of trial counsel, Cullen alleges that her 

appellate counsel performed deficiently when counsel failed 

to consult with her and to assign error on direct appeal asserting claims of ineffective assistance of trial counsel. When a 

claim of ineffective assistance of appellate counsel is based on 

the failure to raise a claim on appeal of ineffective assistance 

of trial counsel (a layered claim of ineffective assistance of 

counsel), an appellate court will look at whether trial counsel 

was ineffective under the Strickland test. Parnell, supra. If 

trial counsel was not ineffective, then the defendant was not 

prejudiced by appellate counsel’s failure to raise the issue. Id. 

Much like claims of ineffective assistance of trial counsel, the 

defendant must show that but for appellate counsel’s failure 
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to raise the claim, there is a reasonable probability that the 

outcome would have been different. Id.

With these principles in mind, we review Cullen’s claims of 

ineffective assistance of counsel. We note that the sole claim of 

ineffective assistance of trial counsel that Cullen preserved in 

her direct appeal was the claim that trial counsel was ineffective for failing to investigate and call a medical expert to testify on her behalf. In her motion for postconviction relief now 

under review, Cullen set forth claims of ineffective assistance 

of trial counsel not raised on direct appeal which would ordinarily be procedurally barred for failure to raise the claims on 

direct appeal. See State v. Kipple, 310 Neb. 654, 968 N.W.2d 

613 (2022) (when trial counsel is different from counsel on 

direct appeal, defendant must raise on direct appeal any issue 

of trial counsel’s ineffective performance known to defendant 

or apparent from record; otherwise, issue will be procedurally barred).

However, Cullen also sets forth a claim of ineffective assist

ance of appellate counsel in which she asserts, inter alia, that 

appellate counsel failed to raise claims of ineffective assistance 

of trial counsel, including the claims she now sets forth in her 

postconviction motion. As noted above, reviewing a claim of 

ineffective assistance of appellate counsel for failing to raise 

claims on direct appeal requires an assessment of whether trial 

counsel was ineffective. We therefore review each of Cullen’s 

claims of ineffective assistance of trial counsel and her claim 

of ineffective assistance of appellate counsel to determine 

whether the district court erred when it concluded that Cullen’s 

claims were not sufficiently pled.

Cullen Did Not Allege Sufficient Facts to 

Support Her First Claim of Ineffective 

Assistance of Trial Counsel.

Cullen claims that the district court erred when it refused 

an evidentiary hearing on her claim that trial counsel “failed 

to adequately investigate [her] defenses and advise [her] of 
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her options, including but not limited to the alternate theories 

of the cause of the severity of the injuries.” The district court 

generally determined that Cullen set forth no specific allegations of what potential evidence would have been found with 

an adequate investigation or how such an investigation would 

have resulted in a different outcome in her trial. We agree.

The district court stated that Cullen simply listed the names 

of potential witnesses that should have been contacted but 

that she provided “no facts as to what information that they 

would have provided or how any such information might have 

impacted cross-examination of the State’s witnesses.” In her 

claim, Cullen asserted that counsel should have investigated a 

defense asserting “alternate theories” for the cause of Cash’s 

injuries, including the possibility that one of Cash’s parents 

caused his injuries. She asserted that trial counsel should have 

focused on the evidence that Chris came home briefly on the 

morning that Cash was injured. Cullen also alleged that an 

anonymous witness had contacted her original counsel and 

claimed that Ashley had anger management issues and that she 

had been involved in an altercation at her workplace. Cullen 

alleged that her original counsel provided trial counsel with the 

name of a person who might have been the anonymous witness, as well as the name of a contact at Ashley’s workplace 

who might have information regarding the alleged altercation. 

Cullen alleged that her trial counsel failed to follow up on this 

information provided by her original counsel.

[9] Our case law is clear 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.
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Cullen’s allegations regarding potential defenses were generally that an investigation might have uncovered helpful evidence. Although she asserts trial counsel could have argued a 

defense which would have placed suspicion on Cash’s parents, 

she makes no specific allegations of actual evidence or testimony that would have implicated either parent. Cullen speculates about Chris’ reasons for briefly returning home that morning, and regarding Ashley’s alleged anger issues, Cullen only 

asserted that if trial counsel contacted the potential witnesses 

identified by her original counsel, those witnesses might have 

provided some evidence regarding an altercation at her workplace. She alleged no specific evidence that would have been 

discovered, and to the extent she alleged that counsel might 

have found evidence of an altercation at work, Cullen did not 

show why evidence regarding an alleged workplace altercation 

would translate or prove that Ashley had injured Cash.

We determine that Cullen’s allegations did not set forth 

sufficient facts to support her first claim of ineffective assist

ance of trial counsel. We therefore conclude that the district 

court did not err when it refused an evidentiary hearing on 

this claim.

Cullen Did Not Allege Sufficient Facts to 

Support Her Second Claim of Ineffective 

Assistance of Trial Counsel.

Cullen claimed that trial counsel was ineffective because 

counsel “failed to investigate the hiring of expert witnesses to 

support [her] description of how the injury occurred and failed 

to utilize [a] trial consultant with 25 years of experience who 

had examined the facts and met with [Cullen].” The district 

court generally determined that Cullen made no specific allegations of what such experts would have testified. We agree.

Cullen alleged that the trial consultant identified specific 

potential expert witnesses, and Cullen provided the list of 

names in her motion. However, regarding the substance of 

such expert’s testimony, Cullen alleged only that the trial 
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consultant asserted that their testimony would have been helpful to her defense. Such allegations are not allegations of specific fact and instead are conclusory. She made no allegations 

of the specific testimony those experts would have given in her 

defense, and she therefore did not show how their testimony 

would have resulted in a different outcome in her trial.

We therefore conclude that the district court did not err 

when it denied this claim without an evidentiary hearing.

Cullen Did Not Allege Sufficient Facts to 

Support Her Third Claim of Ineffective 

Assistance of Trial Counsel.

Cullen also claims that the district court erred when it 

refused to conduct an evidentiary hearing on her claim that 

trial counsel “failed to meet with her on a single occasion to 

discuss the facts of the case, failed to consult with her about 

her right to testify and fail[ed] to inquire as to her desire to testify at trial.” The district court determined that Cullen failed to 

make specific allegations of what she would have told counsel 

or the substance of her potential testimony and failed to make 

allegations that showed that her testimony would have resulted 

in a different outcome in the trial. We agree.

[10] Cullen generally alleged that counsel did not discuss 

the case with her, and in particular, she alleged that counsel 

did not discuss with her her right to testify and whether or not 

she should testify in her defense. We have recognized that a 

defendant has a fundamental constitutional right to testify, but 

a trial court does not have a duty to advise the defendant of his 

or her right to testify or to ensure that the defendant waived 

this right on the record. State v. Iromuanya, 282 Neb. 798, 806 

N.W.2d 404 (2011). We have recognized that defense counsel 

bears the primary responsibility for advising a defendant of his 

or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the 

defendant to make. Id.
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In a postconviction action when a defendant raises a claim 

of ineffective assistance of trial counsel related to counsel’s 

failure with regard to advising the defendant on his or her 

right to testify, we have subjected the claim to the Strickland

standard and required the defendant to show how trial counsel’s alleged deficient performance prejudiced the defense. In 

Iromuanya, we concluded that “because the record show[ed] 

that the jury heard [the defendant’s] statement of events from 

his police interview, he was not prejudiced by his trial counsel’s alleged failure to reasonably advise him to testify.” 282 

Neb. at 812-13, 806 N.W.2d at 423. See, also, Yannai v. U.S., 

346 F. Supp. 3d 336, 347 (E.D.N.Y. 2018) (relying on Weaver 

v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 198 L. Ed. 

2d 420 (2017), to the effect that on direct review, prejudice 

resulting from structural error may be presumed but even if 

denial of right to testify may be structural error, in habeas corpus action, Strickland applied to claim of ineffective assistance 

of trial counsel with regard to right to testify and defendant 

was required “to demonstrate prejudice flowing from failure 

to testify”). See, similarly, State v. Fuentes, 302 Neb. 919, 926 

N.W.2d 63 (2019) (citing Weaver, supra). Therefore, even if 

we presume that trial counsel did not discuss with Cullen her 

right to testify and whether she should testify in her defense as 

Cullen has alleged, she was required to show how such failure 

prejudiced her defense.

Cullen made general allegations that she would have testified that she would have told her side of the story. However, 

she does not specify what that story would have been. The 

evidence in this case already included her statements to police 

in which she set forth four versions of what happened to Cash 

that morning. As we noted in Iromuanya, supra, there was no 

prejudice when the defendant’s side of the story was already 

in evidence through statements the defendant had made to 

police. Cullen does not allege whether the version she would 

have testified to at trial was one of those four versions or yet 

another account. It is unclear how her telling her story would 
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have changed the outcome of the trial, especially in light of the 

fact that the evidence already included four versions of what 

she told police.

Cullen also asserts that she would have testified she loved 

Cash and was upset about what had happened to him and that 

this would have countered the State’s arguments that she was 

cold and uncaring. We believe her hypothetical testimony 

would have opened the door to harsh cross-examination, further diminishing any impact it might have had on the trial’s 

outcome. We think the district court was correct to find that 

such testimony would not reasonably have resulted in a different outcome to the trial, in light of the other evidence 

against Cullen.

Even assuming as we have done that Cullen was not advised 

by counsel regarding her right to testify, we agree with the 

district court’s determination that Cullen did not adequately 

allege how she was prejudiced by trial counsel’s failure to so 

advise her and that the record is to the contrary. We therefore 

conclude that the district court did not err when it refused an 

evidentiary hearing on this claim.

Cullen Did Not Allege Sufficient Facts to 

Support Her Fourth Claim of Ineffective 

Assistance of Trial Counsel.

Cullen claims that the district court erred when it refused 

an evidentiary hearing on her claim that counsel provided 

ineffective assistance because counsel “failed to adequately 

prepare for trial in that they did not depose a single witness or 

prepare for cross examination of any of the medical or expert 

witnesses.” The district court determined that she alleged no 

specific testimony. We agree.

As we discussed with Cullen’s other claims, Cullen was 

required to identify specific witnesses who could have testified, what their specific testimony would have been, and how 

that would have resulted in a different outcome. Instead, in her 

motion Cullen alleged only generalities.
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The district court did not err when it refused an evidentiary 

hearing on this claim.

Cullen Did Not Allege Sufficient Facts 

to Support Her Claim of Ineffective 

Assistance of Appellate Counsel.

Cullen claims that the district court erred when it refused 

an evidentiary hearing on her claim that her appellate counsel 

“fail[ed] to meet with her and discuss the ineffective assistance 

of trial counsel so as to effectively set out those complaints in 

her appellate brief and thereby limiting the parameters of her 

[postconviction] proceedings.” The district court determined 

that Cullen failed to allege how the outcome of her appeal 

would have been different if appellate counsel had raised the 

claims. We agree.

Because Cullen’s claim of ineffective assistance of appellate 

counsel was a layered claim based on the failure of appellate 

counsel to raise claims of ineffective assistance of trial counsel, we review whether trial counsel was ineffective under the 

Strickland test. See State v. Parnell, 305 Neb. 932, 943 N.W.2d 

678 (2020). Cullen must show that but for appellate counsel’s 

failure to raise the claims, there is a reasonable probability that 

the outcome of the appeal would have been different, and if 

Cullen failed to adequately allege that trial counsel was ineffective, then Cullen was not prejudiced by appellate counsel’s 

failure to raise the issues. See id.

For her claim of ineffective assistance of appellate counsel, 

Cullen relied on the claims she set forth in her postconviction motion alleging ineffective assistance of trial counsel. As 

discussed above, we agreed with the district court’s determination that each of those claims was not sufficient. Therefore, 

Cullen’s claim of ineffective assistance of appellate counsel to 

raise those claims on direct appeal is of no avail.

We conclude the district court did not err when it rejected 

Cullen’s claim of ineffective assistance of appellate counsel 

without an evidentiary hearing.
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CONCLUSION

As explained, we conclude that the court did not err when 

it denied Cullen’s postconviction claims without an evidentiary 

hearing. We therefore affirm the district court’s order.

Affirmed.

Freudenberg, J., not participating.