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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. STELLY

Cite as 308 Neb. 636

State of Nebraska, appellee, v. 

Malik M. Stelly, appellant.

___ N.W.2d ___

Filed March 12, 2021. No. S-20-635.

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: Judgments: Appeal and Error. Whether a claim raised 

in a postconviction proceeding is procedurally barred is a question of 

law. When reviewing a question of law, an appellate court reaches a 

conclusion independent of the lower court’s ruling.

3. Postconviction: Judgments: Proof. In a postconviction proceeding, 

an evidentiary hearing is not required when (1) the motion does not 

contain factual allegations which, if proved, constitute an infringement 

of the movant’s constitutional rights, rendering the judgment void or 

voidable; (2) the motion alleges only conclusions of fact or law without 

supporting facts; or (3) the records and files affirmatively show that the 

defendant is entitled to no relief.

4. Postconviction: Appeal and Error. In determining whether a motion 

for postconviction relief contains factual allegations that, if proved, constitute an infringement of the movant’s constitutional rights and whether 

the records and files affirmatively show the defendant is entitled to no 

relief, an appellate court considers whether the allegations are procedurally barred.

5. ____: ____. A motion for postconviction relief cannot be used as a 

substitute for an appeal or to secure a further review of issues already 

litigated on direct appeal or which were known to the defendant and 

counsel at the time of the trial and which were capable of being raised, 

but were not raised, in the defendant’s direct appeal.

Nebraska Supreme Court Online Library

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

05/07/2021 08:11 AM CDT
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6. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. A 

motion for postconviction relief asserting ineffective assistance of trial 

counsel is procedurally barred when (1) the defendant was represented 

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

assistance of trial counsel claim was not brought on direct appeal, and 

(3) the alleged deficiencies in trial counsel’s performance were known 

to the defendant or apparent from the record.

8. ____: ____: ____. A claim of ineffective assistance of appellate counsel 

which could not have been raised on direct appeal may be raised on 

postconviction review.

9. Trial: Evidence. There are three components of a true violation under 

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 

(1963): (1) The evidence at issue must be favorable to the accused, 

either because it is exculpatory, or because it is impeaching; (2) that 

evidence must have been suppressed by the State, either willfully or 

inadvertently; and (3) prejudice must have ensued.

10. Effectiveness of Counsel: Proof. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. 

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

show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense in his or her case.

11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of 

the ineffective assistance of counsel test—deficient performance and 

prejudice—may be addressed in either order, and the entire ineffectiveness analysis is viewed with a strong presumption that counsel’s actions 

were reasonable.

12. Effectiveness of Counsel: Proof. To show that counsel’s performance 

was deficient, a defendant must show that counsel’s performance did not 

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

13. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may undermine a defendant’s right to a fair trial.

14. Postconviction. An evidentiary hearing is not required when a motion 

for postconviction relief alleges only conclusions of fact or law without 

supporting facts.

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.
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Cite as 308 Neb. 636

Malik M. Stelly, pro se.

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

for appellee.

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

Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant appeals from an order of the district court 

denying his pro se motion for postconviction relief without an 

evidentiary hearing. The defendant asserts that the trial record 

demonstrates the probability that the extraction of information 

from his cell phone found at the scene of the crime took place 

before the crime occurred. The defendant concludes that if law 

enforcement extracted information from his cell phone before 

the crime, then law enforcement had his cell phone before the 

crime and had unlawfully searched it before obtaining a warrant. Related to this claim, the defendant asserts that the State 

committed various acts of prosecutorial misconduct during 

trial and concealed exculpatory evidence in violation of the 

prosecution’s duty under Brady v. Maryland.

 1 The allegedly 

exculpatory evidence the prosecution concealed is the original 

disc containing the full extraction report, which the defend

ant believes would show that the extraction occurred before 

the crime. The defendant asserts that both trial counsel and 

appellate counsel were ineffective in failing to discover that 

the State had concealed such exculpatory information that he 

believes is contained on the disc. We affirm.

BACKGROUND

Malik M. Stelly was convicted of first degree murder, use 

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

deadly weapon by a prohibited person.

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Trial

The facts underlying Stelly’s convictions are set forth in 

detail in our opinion resolving Stelly’s direct appeal. 2 We 

reiterate those facts from the trial record most pertinent to 

Stelly’s current postconviction appeal.

After the “ShotSpotter” system in Omaha, Nebraska, indicated shots were fired at 2:37 a.m. on January 11, 2017, the 

victim was found on a residential sidewalk, dead of multiple 

gunshot wounds to the head. Witnesses described a Chrysler 

PT Cruiser driving away. One witness described the PT Cruiser 

as having rust around the wheel wells. Shell casings and two 

cell phones were found at the scene. An LG cell phone was 

found in the street about 10 to 15 feet from the victim’s body. 

A ZTE cell phone was found in the victim’s pocket.

Later that day, officers obtained a search warrant and 

extracted data from the LG cell phone found in the street. The 

data indicated the cell phone belonged to Stelly.

Officers surveilled the apartment complex where Stelly 

lived, finding a PT Cruiser in the parking lot that was registered to Stelly’s friend, Royce White. Pursuant to a search 

warrant, officers later searched Stelly’s apartment and the 

PT Cruiser.

Stelly’s fingerprint was recovered from the interior doorframe of the PT Cruiser, which had damage to the wheel wells 

on the driver’s side. Evidence adduced at trial showed that 

White had loaned Stelly the PT Cruiser before the shooting, 

because Stelly’s car had been in an accident.

A hat was seized from Stelly’s apartment that, due to timestamped photographs on Stelly’s social media profile, officers 

believed Stelly had worn the day of the crime. Blood found 

on the hat was tested, and the victim’s DNA was not excluded 

as the major contributor to the DNA contained therein, with 

a probability of that DNA’s coming from someone other than 

the victim being 1 in 47.4 nonillion. Stelly was not excluded 

as the major contributor to the DNA collected from inside the 

2 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
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headband of the hat, and the probability of that DNA’s having 

come from someone other than Stelly was 1 in 1.01 octillion. 

DNA found on the LG cell phone was tested, and Stelly was 

not excluded as the major contributor, with a probability of 

that DNA’s having come from someone other than Stelly at 1 

in 4.12 sextillion.

The district court denied Stelly’s pretrial motion to suppress 

evidence obtained from searching the contents of the LG cell 

phone. Trial counsel had argued that the warrant, and the affidavit in support thereof, were insufficient because they identified the ZTE cell phone found in the victim’s pocket rather 

than the LG cell phone. At the suppression hearing, the warrant 

and attached affidavit were received into evidence.

The affidavit recited the facts of the shooting and that an 

LG model cell phone was found in the street about 10 feet 

from the victim. The affidavit stated it was unknown who the 

LG cell phone belonged to and that an examination of the 

electronic data contained in the cell phone would be a benefit 

to the investigation. The affidavit also stated that the electronic 

device to be searched was in the lawful possession of the 

Omaha Police Department and was “found in the street at the 

scene of a homicide and seized as evidence.”

But elsewhere in the affidavit, the device to be searched 

was identified as the ZTE cell phone. Likewise, the warrant 

that was issued identified the ZTE cell phone as the device to 

be searched. The warrant was issued January 11, 2017, after 

which the LG cell phone found in the street was searched.

The officer who swore the affidavit testified at the suppression hearing that he noticed after the search that he had made 

an error when listing the ZTE cell phone. The officer applied 

for and obtained another search warrant referencing only the 

LG cell phone.

Officer Ryan Hinsley testified at the motion to suppress 

hearing that the cell phone review began early in the morning 

on January 11, 2017, in order to identify the owner of the LG 

cell phone found at the scene of the crime. Officer Thomas 
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Queen testified that as part of the police department’s evidence processing protocols, the cell phone was “hooked up” to 

a “Cellebrite” machine in order to unlock the cell phone and 

look at the identification data. Queen did not know exactly 

when this occurred, but it was some hours after he was called 

in to work, subsequent to the crime.

Officer Nicholas Herfordt testified during the motion to 

suppress hearing that the LG cell phone was booked into 

property at 10:21 a.m. on January 11, 2017, and that he 

retrieved it at 2:11 p.m. that same day, after a search warrant 

had been obtained. Herfordt testified that he began the process 

of extracting all of the raw data from the LG cell phone at 

6:49 p.m. on January 11 and that the extraction was completed 

at 6:58 p.m.

The district court held that the inadvertent defect in the 

original search warrant was cured by reference to the affidavit 

used to obtain the warrant, which was attached thereto.

At trial, the State presented photographs of Stelly that were 

taken with his cell phone and posted on a social media website, 

one of which showed Stelly wearing the hat that Stelly’s and 

the victim’s blood were later found on. The photographs were 

posted at approximately 8 p.m. on January 10, 2017.

Exhibit 590 is one such photograph, attached to which is an 

“Upload Ip” from the social media’s business records showing the photograph was uploaded on January 11, 2017, at 

“2:06:24 UTC.”

Exhibit 591 is a photograph of two bottles of cognac champagne Stelly appeared to be holding in the prior photograph. It 

was uploaded to the social media site, according to its business 

records, at “1:50:43 UTC” the same date.

The State also presented exhibit 589, a picture of a puppy 

and conversations on January 8, 2017, on social media regarding Stelly’s potential purchase of the puppy, in the course of 

which Stelly mentions driving a PT Cruiser.

Several witnesses testified that the term “UTC” stands for 

coordinated universal time, which is approximately 5 or 6 

hours before central time.
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The State also presented cell phone records indicating that 

from approximately 8:15 p.m. until just before 11 p.m. on 

January 10, 2017, Stelly’s cell phone was near White’s house 

and the crime scene. Further, between 1:43 and 1:51 a.m. on 

January 11, Stelly had a text message conversation in which he 

told someone that he was “bored” and “wanna act bad.”

Exhibit 576 contains call records and cell phone location records.

Exhibit 592 is an “Extraction Report” from Cellebrite showing the text messages and the time they were read and sent, 

which was between 1:43 and 1:51 a.m. on January 11, 2017.

Direct Appeal

Following his convictions and sentencing, Stelly filed a 

direct appeal with new counsel. He alleged that the trial court 

erred in denying his motion to suppress the search of his cell 

phone and 18 different claims of ineffective assistance of 

trial counsel.

Regarding the motion to suppress, Stelly argued that the 

warrant was not particular enough in its description of the cell 

phone to be searched and that the affidavit did not cure the 

deficiency. We disagreed, holding that the detailed information 

in the supporting affidavit, referred to and accompanying the 

warrant, demonstrated that the reference to the ZTE cell phone 

was an inadvertent scrivener’s error and cured such defect, and 

that the affidavit and warrant together described with sufficient 

particularity the item to be searched.

The claims of ineffective assistance of counsel included two 

claims related to the LG cell phone.

First, Stelly claimed that trial counsel had failed to investigate the source of calls to White’s cell phone from two specific 

telephone numbers which would have revealed that officers 

called White’s cell phone themselves after illegally searching the LG cell phone found near the victim’s body without 

a warrant.

Second, Stelly claimed trial counsel failed to consult 

with and call as a witness an independent cell phone expert 
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who, upon analyzing the LG cell phone found near the victim’s 

body, would have testified that the data officers purportedly 

extracted from the LG cell phone was not in fact present on 

it and that one or more officers manufactured cell phone evidence. Such expert would also have testified that officers sent 

and received text messages and voice calls using the LG cell 

phone, but testified falsely and failed to disclose this fact to 

trial counsel, the trial court, and the jury.

We held that the trial record affirmatively refuted the first 

claim. We explained that we had already held in our analysis of 

the motion to suppress that the search of Stelly’s LG cell phone 

was pursuant to a valid warrant.

We found the trial record insufficient to resolve the second 

claim with respect to deficient conduct, and we did not decide 

whether the trial record was sufficient to determine whether 

Stelly was prejudiced from the alleged deficient conduct.

Motion for Postconviction Relief

In an amended motion for postconviction relief filed on 

January 9, 2020, Stelly presented three alleged grounds for 

vacating his convictions.

“Ground 1” was the allegation that his convictions were 

obtained in violation of due process, because evidence was 

admitted that was inadmissible due to the illegality of the 

searches and seizures which produced the evidence. This allegedly unlawfully obtained evidence included data from Stelly’s 

cell phone, which evidence Stelly claimed was extracted before 

the crime, at a time when there was no probable cause to do so, 

and was not found at the scene of the crime, but, rather, was 

in the possession of law enforcement before the crime. Stelly 

asserted that the search of the cell phone and other places was 

warrantless because the sworn affidavits in support of the warrants were issued after the searches.

“Ground 2” was the allegation that Stelly’s convictions were 

obtained as a result of prosecutorial misconduct. This prosecutorial misconduct allegedly included staged, perjured, and 
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false testimony. In this regard, Stelly again alleged that the data 

from his cell phone was extracted before the crime, which he 

asserted rendered exhibits 590 through 592 inadmissible as a 

search and seizure without probable cause or a warrant.

Stelly did not allege newly discovered evidence but surmised the time of extraction based on the testimony at the 

pretrial hearing on his trial counsel’s motion to suppress. 

Specifically, Stelly pointed out Herfordt’s testimony that data 

extraction was conducted at 6:49 to 6:58 p.m. on January 11, 

2017. Stelly asserted this testimony was inconsistent with the 

testimony of Hinsley that the cell phone review began early in 

the morning on January 11, 2017.

Stelly also claimed that the “metadata” contained in exhibits 590 and 591 demonstrated that the printouts were created 

at 1:50 and 2:06 a.m. on January 11, 2017, before the crime 

occurred. Stelly asserted, based on the “World Book,” that 

“Universal Time Coordinate is not a time zone.” He did not 

explain, however, how precisely this connected to his argument 

that the times of 1:50 and 2:06 a.m. were when the data extraction of the cell phone took place rather than when he posted 

onto social media.

“Ground 3” contained allegations of ineffective assistance 

of both trial counsel and appellate counsel. For trial counsel, 

Stelly elaborated that “[f]or the following reasons set forth in 

Ground 1 and Ground 2 trial counsel was ineffective based 

on the mishandling of the fourth amendment violation claim,” 

which ineffective assistance led to the admission of exhibits 

576 and 589 through 592. Among other things, Stelly argued 

that through discovery, as well as through evidence presented 

at the pretrial hearings and at trial, trial counsel should have 

realized and argued that the data from his cell phone was 

extracted before the crime occurred. In this regard, he reiterated his claim that the “metadata” from exhibits 590 and 591 

show those printouts were “created” January 11, 2017, at 1:50 

and 2:06 a.m. before the crime occurred, proving the cell 

phone was not found at the crime scene.
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As to his claims against appellate counsel, Stelly incorporated all prior allegations, including those against trial counsel, 

and explained:

Through the evidence provided to the trial counsel and 

appeallate [sic] counsel through the discovery process, 

trial counsel and appeallate [sic] counsel should have 

argued (Ev. #1) data was extracted before this crime 

occurred, and Exhibits 2, 3, 5, 6, 7, 8, and 13 are affidavits and applications for issuance of a search warrant, 

not signed search warrants from a judge (Referencing 

Ground 1 section 1).

Again, Stelly repeated his claim that the “metadata” from 

exhibits 590 and 591 show that the printouts were “created” 

January 11, 2017, at 1:50 and 2:06 a.m. before the crime 

occurred, proving the cell phone was not found at the crime 

scene. Stelly concluded that “[t]he mishandling of the defend

ants fourth amendment violation claim amounts to the defend

ant being prejudiced” and that both trial counsel’s and appellate counsel’s performance were deficient and their deficient 

performance prejudiced him by depriving him of a fair trial. 

He asserted that but for the ineffective assistance, no reasonable fact finder would have found him guilty of the underlying offenses.

On April 22 and July 2, 2020, Stelly filed additional documents setting forth additional information which he asked the 

court to take into consideration, along with the verified motion 

for postconviction relief. It is unclear if the court did so. Stelly 

seemed to reiterate in these filings that the cell phone was not 

found at the crime scene, because the data from the cell phone 

was extracted before the crime. Again, in making the argument that the data was extracted before the crime, Stelly relied 

on testimony at the motion to suppress hearing and at trial 

rather than on any newly discovered evidence. He theorized 

that, because the time of extraction proves the cell phone was 

not at the scene of the crime, the affidavit asserting the cell 

phone was found near the victim at the crime scene contained 
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a knowingly false statement and was therefore invalid. The 

April 22 filing does not mention ineffective assistance of 

counsel, but the July 2 filing asserts that trial counsel and 

appellate counsel should have argued that statements in the 

affidavits that the cell phone was found near the victim at the 

crime scene were false and recklessly made. This allegedly 

prejudiced Stelly by allowing the introduction of inadmissible 

evidence, such as exhibits 589 through 591.

Order Denying Postconviction Relief

On August 13, 2020, the district court, without an evidentiary hearing, denied the amended motion for postconviction 

relief. The court explained that the claims relating to violations of due process rights and prosecutorial misconduct were 

procedurally barred because they could have been brought on 

direct appeal.

The court found that all Stelly’s allegations of ineffective assistance of appellate counsel relate to the same issues 

addressed within the ineffective assistance of trial counsel 

claims and that all such claims were either procedurally barred 

or affirmatively refuted by the trial record. Citing to State 

v. Sellers,

 3 the postconviction court concluded that Stelly’s 

ineffectiveness claim regarding trial counsel’s and appellate 

counsel’s failure to discover exculpatory evidence was difficult to decipher, but failed because it set forth no more than 

conclusory allegations with regard to the lack of investigation 

and did not specifically identify any exculpatory evidence the 

investigation would have procured. The court also noted that 

much of Stelly’s argument was based on a misunderstanding 

of the evidence at trial. For instance, the court elaborated as to 

exhibits 590 and 591 that the times of 1:50 and 2:06 a.m. were 

when the photographs were downloaded to social media rather 

than when they were downloaded by law enforcement.

After the court’s order denying postconviction relief, 

Stelly moved to compel the Douglas County Attorney who 

3 State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
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handled his prosecution to surrender the entire case file. Stelly 

specifically requested police reports and all copies of affidavits 

and search warrants. He made no reference in the motion to 

a disc containing an extraction report for his cell phone. The 

court denied the motion.

On September 2, 2020, Stelly appealed from the district 

court’s order denying postconviction relief.

ASSIGNMENTS OF ERROR

Stelly assigns as error that (1) the State committed a Brady

violation by failing to disclose the disc containing the extraction 

report for his cell phone information, which allegedly would 

demonstrate that the cell site location, call detail records, text 

history, social media posts, and pictures entered into evidence 

through exhibits 566, 576, and 590 through 592 were fraud

ulently misrepresented as being extracted from the device after 

the crime; (2) trial counsel and appellate counsel were ineffective in failing to raise this alleged Brady violation, which they 

would have discovered had they demanded a copy of the disc 

to resolve the discrepancy between witness testimony that the 

extraction occurred a little before 7 p.m. on January 11, 2017, 

and witness testimony that the extraction occurred in the early 

morning hours of January 11; and (3) there was plain error 

committed during trial through the prosecutor’s failure to correct its witnesses’ false testimony pertaining to the dates and 

times of exhibits 590 through 592.

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. 4

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. When reviewing 

4 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).
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a question of law, an appellate court reaches a conclusion 

independent of the lower court’s ruling. 5

ANALYSIS

[3] Stelly asserts that the district court erred in denying his 

motion for postconviction relief without an evidentiary hearing. The Nebraska Postconviction Act provides:

A prisoner in custody under sentence and claiming a right 

to be released on the ground that there was such a denial 

or infringement of the rights of the prisoner as to render 

the judgment void or voidable under the Constitution of 

this state or the Constitution of the United States, may 

file a verified motion, in the court which imposed such 

sentence, stating the grounds relied upon and asking the 

court to vacate or set aside the sentence.

. . . Unless the motion and the files and records of the 

case show to the satisfaction of the court that the prisoner 

is entitled to no relief, the court shall cause notice thereof 

to be served on the county attorney [and] grant a prompt 

hearing thereon . . . . 6

In a postconviction proceeding, an evidentiary hearing is not 

required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the 

movant’s constitutional rights, rendering the judgment void or 

voidable; (2) the motion alleges only conclusions of fact or law 

without supporting facts; 7 or (3) the records and files affirm

atively show that the defendant is entitled to no relief. 8

[4,5] In determining whether a motion for postconviction 

relief contains factual allegations that, if proved, constitute 

an infringement of the movant’s constitutional rights and 

whether the records and files affirmatively show the defendant 

is entitled to no relief, we consider whether the allegations 

5 State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).

6 Neb. Rev. Stat. § 29-3001 (Reissue 2016).

7 See State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).

8 See State v. Parnell, supra note 4.
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are procedurally barred. 9 Generally, a motion for postconviction relief cannot be used as a substitute for an appeal or to 

secure a further review of issues already litigated on direct 

appeal or which were known to the defendant and counsel at 

the time of the trial and which were capable of being raised, 

but were not raised, in the defendant’s direct appeal. 10

[6] While Stelly makes many arguments in his brief, an 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error 

to be considered by an appellate court. 11 To the extent Stelly 

makes arguments not specifically assigned as error, we do not 

address them.

Ineffective Assistance

Stelly argues in relation to his second assignment of error 

that both trial counsel and appellate counsel violated his Sixth 

Amendment rights by “not addressing the Brady violation 

of the defense not being given the disc or a copy of the disc 

containing the Cellebrite extraction report for the device.” 12

This disc allegedly would have demonstrated that the cell site 

location, call detail records, text history, social media posts, 

and pictures entered into evidence through exhibits 566, 576, 

and 590 through 592 were fraudulently misrepresented at trial 

as being extracted from the device after the crime, when in 

fact they were extracted before the crime. Stelly alleges that 

both trial counsel and appellate counsel would have discovered 

this had they demanded a copy of the disc to resolve what 

Stelly considers to be a discrepancy between witness testimony 

that the extraction occurred a little before 7 p.m. on January 

11, 2017, and witness testimony that the extraction occurred 

in the early morning hours of January 11. Stelly infers the 

9 See id.

10 See id.

11 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

12 Brief for appellant at 12.
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disc would show the data was extracted from the cell phone 

before the crime, based on this allegedly conflicting testimony 

and his reading of exhibits 590 through 592. Stelly concludes 

a disc showing the data was extracted before the crime would 

be exculpatory, because it would negate a nexus between the 

crime alleged and the item to be searched and would have 

invalidated the search warrant, which would have made most 

of the evidence against him inadmissible under the exclusionary doctrine.

Stelly’s claim against trial counsel was not brought on direct 

appeal. While there is a common theme surrounding Stelly’s 

cell phone and law enforcement tampering, we read the postconviction allegation against trial counsel to be distinct from 

those brought on direct appeal. Stelly alleged on direct appeal 

that trial counsel had failed to investigate the source of calls to 

White’s cell phone from two specific telephone numbers that 

would have revealed officers called White’s cell phone themselves after a warrantless search of the LG cell phone found at 

the scene of the crime, a claim which we found to be without 

merit. Stelly also asserted on direct appeal that trial counsel 

failed to call as a witness an independent cell phone expert 

who would have testified that the data the officers purportedly 

extracted from the LG cell phone was not in fact present and 

was manufactured, a claim which we did not determine on 

direct appeal. These claims are distinct from the current allegation that the data from the cell phone was extracted before 

the crime.

[7] A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when 

(1) the defendant was represented by a different attorney on 

direct appeal than at trial, (2) an ineffective assistance of trial 

counsel claim was not brought on direct appeal, and (3) the 

alleged deficiencies in trial counsel’s performance were known 

to the defendant or apparent from the record. 13 Stelly was 

13 State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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represented by new counsel on direct appeal. He relies on testimony and exhibits presented at the pretrial hearing and at trial 

to support his allegations of ineffective assistance, evidence 

which was known to him and was apparent from the record. 

And the current allegations of ineffective assistance of trial 

counsel were not raised on direct appeal. Therefore, Stelly’s 

claim against trial counsel is procedurally barred.

[8] In contrast, this postconviction proceeding was Stelly’s 

first opportunity to assert that his appellate counsel was ineffective. A claim of ineffective assistance of appellate counsel 

which could not have been raised on direct appeal may be 

raised on postconviction review. 14 But the district court did not 

err in denying, without an evidentiary hearing, Stelly’s claim 

for postconviction relief based on the alleged ineffective assist

ance of appellate counsel.

First, we agree with the State that the claims made in the 

second assignment of error were not made in Stelly’s postconviction motion. The postconviction motion made no reference to a Brady violation or to a disc containing the Cellebrite 

extraction report that either trial counsel or appellate counsel 

should have obtained. This court will not consider an issue on 

appeal from the denial of postconviction relief that was not 

raised in the motion for postconviction relief or passed upon by 

the postconviction court. 15

[9-12] Second, we agree with the district court that the 

record affirmatively refutes Stelly’s claim of ineffective assist

ance of appellate counsel for failing to discover and challenge 

the alleged Brady violation. There are three components of a 

true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because 

14 State v. Sellers, supra note 3.

15 See, State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019); 

State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017); State v. Thorpe, 290 

Neb. 149, 858 N.W.2d 880 (2015); State v. Thomas, 262 Neb. 138, 629 

N.W.2d 503 (2001).
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it is impeaching; (2) that evidence must have been suppressed 

by the State, either willfully or inadvertently; and (3) prejudice must have ensued. 16 In order to establish a right to postconviction relief based on a claim of ineffective assistance 

of counsel, the defendant has the burden, in accordance with 

Strickland v. Washington,

 17 to show that counsel’s perform

ance was deficient and that counsel’s deficient performance 

prejudiced the defense in his or her case. 18 The two prongs 

of this test—deficient performance and prejudice—may be 

addressed in either order, and the entire ineffectiveness analysis is viewed with a strong presumption that counsel’s actions 

were reasonable. 19 To show that counsel’s performance was 

deficient, a defendant must show that counsel’s performance 

did not equal that of a lawyer with ordinary training and skill 

in criminal law. 20

We find that the record affirmatively refutes Stelly’s allegation that appellate counsel was deficient for failing to raise trial 

counsel’s ineffectiveness in failing to discover and challenge at 

trial the Brady violation of concealing the extraction disc. The 

evidence Stelly points to as raising questions about the time of 

extraction, which he claims should have alerted trial counsel to 

the possible Brady violation and should have likewise alerted 

appellate counsel of trial counsel’s ineffectiveness, does not 

in fact indicate the State was concealing exculpatory evidence 

that it had extracted the data from Stelly’s cell phone before 

the crime.

The trial record demonstrates that, on their face, exhibits 

590 through 592 are photographs that show when they were 

16 State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). See Brady v. 

Maryland, supra note 1.

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

(1984).

18 See State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).

19 See State v. Oliveira-Coutinho, supra note 15.

20 State v. Assad, supra note 18.
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uploaded onto the social media website and not, as Stelly suggests, when they were printed out. The fact that these photographs were uploaded to social media before the crime does 

not indicate that law enforcement had possession of Stelly’s 

cell phone and searched it before the crime.

The trial record also affirmatively demonstrates that there is 

no discrepancy between Herfordt’s testimony that the extraction occurred a little before 7 p.m. on January 11, 2017, and 

Hinsley’s testimony that the extraction occurred in the early 

morning hours of January 11. Hinsley testified during the 

motion to suppress hearing that the cell phone review began 

early in the morning on January 11, in order to identify the 

owner of the LG cell phone found at the scene of the crime. 

Herfordt testified during the motion to suppress hearing that 

the LG cell phone was booked into property at 10:21 a.m. on 

January 11 and that he retrieved it at 2:11 p.m. that same day, 

after a search warrant had been obtained. Herfordt testified that 

he began the process of extracting all of the raw data from the 

LG cell phone at 6:49 p.m. on January 11 and that the extraction was completed at 6:58 p.m.

The record shows that the first extraction was of a more 

limited nature to identify the owner of the cell phone, while the 

second extraction was a full search of its contents. And even if 

the testimonies of Herfordt and Hinsley were inconsistent, both 

testified that the extractions occurred after the crime. We fail to 

see how any inconsistency should have led either trial counsel 

or appellate counsel to believe that the extraction of data from 

the cell phone occurred before the crime.

The record affirmatively refutes Stelly’s allegation that 

appellate counsel’s performance was deficient by failing to 

suspect and raise the issue of whether the data extraction of the 

LG cell phone occurred before the crime. The evidence Stelly 

points to would not give reason for a lawyer with ordinary 

training and skill in criminal law to believe that such precrime 

extraction might have occurred.
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Prosecutorial Misconduct

[13] Stelly’s arguments pertaining to his first and third 

assignments of error are that the State committed a Brady

violation by concealing the disc and committed other acts of 

prosecutorial misconduct by presenting false testimony that 

the data was extracted after the crime. Generally, prosecutorial 

misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may 

undermine a defendant’s right to a fair trial. 21

As pertains to the alleged Brady violation, as stated, the 

postconviction motion made no reference to a Brady violation 

or to a disc containing the Cellebrite extraction report. Thus, 

we need not address this claim that is being raised for the first 

time on appeal.

[14] As to both the alleged Brady violation and the remaining allegations of prosecutorial misconduct, we agree with 

the district court that Stelly alleged only conclusions of fact 

without supporting facts. An evidentiary hearing is not required 

when a motion for postconviction relief alleges only conclusions of fact or law without supporting facts. 22

Conclusions of fact that are insufficient to warrant an evidentiary hearing are often broad characterizations without specificity, such as an allegation of “false” testimony, 23 but we have 

also found a more specific allegation to be a mere conclusion 

of fact when it appears based on speculation due to the lack of 

adequate supporting factual allegations. 24 Thus, for instance, 

in State v. Allen,

 25 we concluded that the allegation that law 

enforcement tampered with the evidence was a mere conclusion of fact without supporting facts when it was based on 

21 State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).

22 State v. Parnell, supra note 4.

23 See State v. Dean, 264 Neb. 42, 49, 645 N.W.2d 528, 534 (2002).

24 See, e.g., State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

25 State v. Allen, supra note 7.
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nothing more than the allegation that a former supervisor, who 

was found to have tampered with evidence in other cases when 

he was involved in evidence collection, 26 had diagrammed the 

crime scene, but had not collected any evidence.

There was no allegation that Stelly’s claims were based 

on newly discovered evidence that was not available to him 

during trial or his direct appeal. Stelly’s only support for his 

conclusory assertions that there was an undisclosed exculpatory disc and that the State presented false testimony is the 

same evidence relied upon in asserting that both trial counsel 

and appellate counsel were ineffective. Given that the evidence 

Stelly relies on does not support an inference that the extraction occurred before the crime, Stelly’s allegation of false testimony that the data was extracted after the crime and allegation 

of an undisclosed disc showing extraction occurred before the 

crime are nothing more than conclusions of fact without supporting facts. Accordingly, an evidentiary hearing on the claims 

of prosecutorial misconduct was not required.

CONCLUSION

We find no merit to Stelly’s assignments of error relating 

to the district court’s denial of Stelly’s motion for posconviction relief without an evidentiary hearing. The claims were all 

either procedurally barred, based upon mere conclusions of 

fact and law without supporting facts, or affirmatively refuted 

by the trial record. We therefore affirm the judgment of the 

district court.

Affirmed.

Heavican, C.J., not participating.

26 See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).