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Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. NEWMAN

Cite as 300 Neb. 770

State of Nebraska, appellee, v. 

Terrell E. Newman, appellant.

___ N.W.2d ___

Filed August 17, 2018. No. S-17-842.

1. Appeal and Error. The purpose of an appellant’s reply brief is to 

respond to the arguments the appellee has advanced against the errors 

assigned in the appellant’s initial brief.

2. ____. An assignment of error raised for the first time in a reply brief is 

untimely and will not be considered by an appellate court.

3. 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.

4. Postconviction: Constitutional Law: Judgments. 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.

5. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

6. ____: ____: ____. A trial 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.

7. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively 

show the defendant is entitled to no relief, the court is not required to 

grant an evidentiary hearing.

Nebraska Supreme Court Online Library

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

09/21/2018 09:09 AM CDT
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8. ____: ____. In a postconviction proceeding, an evidentiary hearing is 

not required (1) when the motion does not contain factual allegations 

which, if proved, constitute an infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions of fact 

or law; or (3) when the records and files affirmatively show that the 

defendant is entitled to no relief.

9. 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.

10. ____: ____: ____. Claims of ineffective assistance of appellate counsel 

may be raised for the first time on postconviction review.

11. 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 direct appeal of ineffective assistance of trial counsel, an 

appellate court will first 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.

12. 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.

13. ____: ____. 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.

14. 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.
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STATE v. NEWMAN

Cite as 300 Neb. 770

15. Effectiveness of Counsel: Proof. The two prongs of the ineffective 

assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient performance and 

prejudice, may be addressed in either order.

16. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a 

duty to make reasonable investigations or to make a reasonable decision 

that makes particular investigations unnecessary.

17. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic decision to present particular evidence, or not to present particular evidence, 

will not, without more, sustain a finding of ineffective assistance of 

counsel. Strategic decisions made by trial counsel will not be secondguessed so long as those decisions are reasonable.

18. Rules of Evidence. Neb. Rev. Stat. § 27-901(1) (Reissue 2016) does not 

impose a high hurdle for authentication or identification.

19. Rules of Evidence: Proof. A proponent of evidence is not required to 

conclusively prove the genuineness of the evidence or to rule out all 

probabilities inconsistent with authenticity. Rather, if the proponent’s 

showing is sufficient to support a finding that the evidence is what it 

purports to be, the proponent has satisfied the requirements of Neb. Rev. 

Stat. § 27-901(1) (Reissue 2016).

20. Sentences. If there is a discrepancy between the oral pronouncement 

of a valid sentence and the later written order, the oral pronouncement 

controls calculation of the prison term.

21. Rules of Evidence: Juries: Testimony: Affidavits. Neb. Rev. Stat. 

§ 27-606(2) (Reissue 2016) prohibits a juror from testifying as to any 

matter or statement occurring during the course of the jury’s deliberations. Thus, a juror’s affidavit may not be used to impeach a verdict on 

the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations.

22. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s postconviction claims that his or her defense counsel was ineffective in failing to investigate possible defenses are too speculative to warrant relief 

if the petitioner fails to allege what exculpatory evidence the investigation would have procured and how it would have affected the outcome 

of the case.

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

be a sufficient allegation of a constitutional violation under the Nebraska 

Postconviction Act.

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

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

opportunity to present newly discovered evidence is a denial of procedural or substantive due process.
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25. Postconviction: Evidence: Presumptions: Proof. The threshold to 

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

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

strong demonstration of actual innocence, because after a fair trial and 

conviction, the presumption of innocence vanishes.

Appeal from the District Court for Douglas County: Shelly

R. Stratman, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Stuart J. Dornan and Jason E. Troia, of Dornan, Troia, 

Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

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

for appellee.

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

Hall, District Judge.

Stacy, J.

A jury found Terrell E. Newman guilty of 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.1

 He was 

sentenced to life imprisonment for the murders and to additional terms of years for the other offenses, the sentences to 

run consecutively. We affirmed his convictions and sentences 

on direct appeal.2

Newman then moved for postconviction relief, raising 

claims of ineffective assistance of counsel and a claim of actual 

innocence. The district court denied relief without conducting 

an evidentiary hearing. Newman filed this timely appeal. We 

affirm in part, and in part reverse and remand for an evidentiary hearing.

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

2 Id.
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STATE v. NEWMAN

Cite as 300 Neb. 770

I. FACTS

Newman’s trial was consolidated with codefendant Derrick 

U. Stricklin. The underlying facts are fully set forth in our 

opinion affirming Stricklin’s convictions and sentences.3

Summarized, Newman’s convictions arose from the shooting deaths of Carlos Morales and Bernardo Noriega during 

a drug transaction at an automobile body shop owned by 

Morales. Jose Herrera-Gutierrez was also present during the 

drug transaction and the shootings, and he was the State’s 

primary witness at trial. Herrera-Gutierrez identified Newman 

and Stricklin as the shooters and testified that he recognized 

both men from prior visits to Morales’ shop. He had seen 

Stricklin approximately four times at the shop, and he had seen 

Newman approximately three times at the shop.

The State’s theory of the case was that Newman and 

Stricklin committed the crimes together. Newman’s cell phone 

records showed that Newman was in communication with both 

Morales and Stricklin on the day of the shootings, and also 

showed that Newman’s cell phone was in the area of the murder scene during the relevant timeframe.4

A jury found Newman guilty of all the charges. He was sentenced to consecutive sentences of life imprisonment for each 

murder conviction, 15 to 25 years’ imprisonment for each use 

of a deadly weapon 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.5 The district court denied his motion for new trial, 

and he filed a direct appeal.

On direct appeal, Newman was represented by different counsel. Appellate counsel raised numerous assignments of error 

challenging Newman’s identification by Herrera-Gutierrez, the 

sufficiency of the evidence, the admission of certain evidence, 

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

4 Id.

5 Newman, supra note 1.
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the exclusion of other evidence, limitations imposed on the 

cross-examination of Herrera-Gutierrez, the overruling of a 

motion for new trial based on juror misconduct, and the overruling of a motion to withdraw his rest.

Newman’s appellate counsel also alleged trial counsel had 

been ineffective in failing to (1) introduce certain testimony 

at the hearing on the motion for new trial, (2) object to certain jury instructions, and (3) adequately investigate an alibi 

defense. In the direct appeal, we concluded the files and 

records affirmatively showed the jury instruction claim lacked 

merit and we found the record was insufficient to address the 

other two allegations of ineffective assistance of trial counsel.6

After we affirmed his convictions and sentences, Newman 

filed the instant motion for postconviction relief. He alleges 

his appellate counsel was ineffective in (1) failing to obtain 

a complete record prior to Newman’s direct appeal and (2) 

failing to raise on direct appeal claims that his trial counsel 

was ineffective for (a) failing to investigate certain witnesses, 

including alibi witnesses; (b) failing to object to certain jury 

instructions; (c) failing to present evidence of third-party guilt 

via a motion in limine; (d) failing to object to the authentication of cell phone records; (e) failing to object to the truth-insentencing advisement; (f) failing to present certain evidence 

at the motion for new trial; and (g) failing to hire a crime 

scene investigator. Newman also alleges in his postconviction 

motion, and argues in his brief, that he is actually innocent 

of the crimes. The district court denied the postconviction 

motion without conducting an evidentiary hearing. Newman 

filed this appeal.

II. ASSIGNMENTS OF ERROR

Newman assigns the district court erred in (1) denying him 

an evidentiary hearing on his motion for postconviction relief, 

(2) finding he did not meet the threshold for actual innocence, 

and (3) denying his motion for postconviction relief.

6 Id.
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Newman also attempts to raise additional assignments of 

error in his reply brief, including that he was denied an opportunity to amend his postconviction motion and that additional 

jury instructions were flawed. The State filed an objection, 

arguing Newman could not raise new assignments of error in 

his reply brief. We agree.

[1,2] The purpose of an appellant’s reply brief is to respond 

to the arguments the appellee has advanced against the errors 

assigned in the appellant’s initial brief.7 An assignment of 

error raised for the first time in a reply brief is untimely and 

will not be considered by the court.8 We therefore limit our 

analysis to the assignments made and argued in Newman’s 

original appellate brief. We note for the sake of completeness 

that Stricklin properly raised nearly identical assignments of 

error in his appeal from the district court’s denial of his motion 

for postconviction relief, and we found those assignments 

lacked merit.9

III. STANDARD OF REVIEW

[3] 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.10

IV. ANALYSIS

1. General Propositions

Governing Postconviction

[4,5] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that 

there was a denial or infringement of his or her constitutional 

7 Rodriguez v. Surgical Assoc., 298 Neb. 573, 905 N.W.2d 247 (2018).

8 See id.

9 See State v. Stricklin, post p. 794, ___ N.W.2d ___ (2018).

10 State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017); State v. Watson, 295 

Neb. 802, 891 N.W.2d 322 (2017).
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rights such that the judgment was void or voidable.11 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.12

[6-8] A trial 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.13 If a postconviction motion alleges 

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

case affirmatively show the defendant is entitled to no relief, 

the court is not required to grant an evidentiary hearing.14

Thus, in a postconviction proceeding, an evidentiary hearing 

is not required (1) when the motion does not contain factual 

allegations which, if proved, constitute an infringement of the 

movant’s constitutional rights; (2) when the motion alleges 

only conclusions of fact or law; or (3) when the records 

and files affirmatively show that the defendant is entitled to 

no relief.15

[9] Here, Newman alleges he received ineffective assistance of counsel. 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.16

Newman was represented by different counsel on direct appeal 

11 Vela, supra note 10.

12 Id.

13 Id.

14 Id.

15 State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).

16 State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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than at trial. He therefore cannot raise on postconviction any 

claims of ineffective assistance of trial counsel that were not 

preserved on direct appeal, as those claims would be procedurally barred.17

[10,11] However, claims of ineffective assistance of appellate counsel may be raised for the first time on postconviction 

review.18 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, an appellate court will 

first look at whether trial counsel was ineffective under the test 

in Strickland v. Washington.

19 If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the issue.20

[12-14] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

21 the defendant must 

show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense.22 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.23 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.24 A reasonable probability does 

not require that it be more likely than not that the deficient 

17 See id.

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

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

(1984). See State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).

20 See Glass, supra note 19.

21 Strickland, supra note 19.

22 Vela, supra note 10.

23 See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).

24 Vela, supra note 10.
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performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence 

in the outcome.25

[15] The two prongs of the ineffective assistance of counsel 

test under Strickland, deficient performance and prejudice, may 

be addressed in either order.26 We examine Newman’s allegations under this standard.

2. Failure to Investigate

[16,17] A defense attorney has a duty to make reasonable 

investigations or to make a reasonable decision that makes 

particular investigations unnecessary.27 A reasonable strategic 

decision to present particular evidence, or not to present particular evidence, will not, without more, sustain a finding of 

ineffective assistance of counsel.28 Strategic decisions made by 

trial counsel will not be second-guessed so long as those decisions are reasonable.29

(a) Alibi Defense

Newman’s motion for postconviction relief alleges his appellate counsel was ineffective for failing to raise on direct appeal 

that his trial counsel was ineffective for failing to preserve 

and submit his alibi defense. But the record shows appellate 

counsel did raise this claim on direct appeal, and we found the 

record was insufficient to address it.30 Thus, Newman’s allegation that appellate counsel was ineffective for failing to raise 

the issue is without merit.

However, Newman’s postconviction motion also alleges his 

trial counsel was ineffective for failing to preserve and submit 

25 Id.

26 Haynes, supra note 23.

27 State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).

28 Id.

29 Id.

30 Newman, supra note 1.
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his alibi defense. Because he raised this claim in his direct 

appeal and we found the record was insufficient to consider or 

rule on that claim, it is not procedurally barred.31 We therefore 

consider whether Newman has alleged facts sufficient to warrant an evidentiary hearing on this claim.

Newman’s postconviction motion alleges his trial counsel 

failed to “independently interview, depose, or subpoena” four 

witnesses whom he alleges would have established an alibi 

defense. Newman alleges that Kevin Riley and Janet Mariscal 

would have testified Newman “was either at Clayton’s BBQ 

restaurant or on a run to Chubb[] Foods to purchase supplies at 

or near the time of the shooting.” Newman further alleges that 

two unnamed “Employees of Chubb[] Foods,” one working at 

the customer service counter and the other at the cash register, 

would have “confirmed Newman’s presence at Chubb[] Foods 

at or near the time of the shooting.”

The district court denied an evidentiary hearing on this 

claim. It reasoned that because the allegations were vague as 

to time, they did not “definitively state that [Newman] was not 

at the murder scene and merely suggest [Newman] may have 

been at these other places at some point in the day.” Moreover, 

the court found no prejudice could have resulted from counsel’s failure to develop this evidence given the overwhelming 

evidence of Newman’s guilt provided by Herrera-Gutierrez’ 

eyewitness testimony and cell phone records placing Newman 

in the area at or near the time of the murders.

It is true Newman has not alleged a specific time he claims 

he was at the restaurant or the grocery store. But in his brief, 

Newman argues he used the general phrase “at or near the 

time of the shooting” in his postconviction motion, because 

there was uncertainty at trial about the exact time of the murders.32 He argues the allegations in his motion are sufficient 

to show both deficient performance and prejudice, because 

they show trial counsel failed to present testimony from four 

31 See State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007).

32 Brief for appellant at 10.
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witnesses who would have testified Newman was somewhere 

else at the time of the murders. The State, in its response, 

generally agrees with the district court’s conclusion that even 

if trial counsel was deficient in this regard, there could be no 

prejudice to Newman in light of the overwhelming evidence 

of his guilt adduced at trial. Our de novo review persuades 

us otherwise.

While we agree the eyewitness identification and corroborating cell phone records, in the context of the evidence admitted 

at trial, provided overwhelming evidence of guilt, we cannot overlook the fact that the alibi evidence Newman alleges 

his attorney should have investigated could, if proved, have 

contradicted the eyewitness identification. Newman alleges, 

summarized, that four witnesses would have testified he was 

at a specific location other than the crime scene at or near the 

time of the murders. This testimony could have contradicted 

Herrera-Gutierrez’ eyewitness testimony and, depending on the 

location of the restaurant and the grocery store, may also have 

affected the weight of the cell phone record evidence. Thus, 

depending on the evidence actually presented and found credible, there may be a reasonable probability that if such evidence 

had been presented at trial, the result of the proceeding could 

have been different.

In Newman’s direct appeal, we found the record was insufficient to evaluate the substance of this particular claim of ineffective assistance. He presents the same claim on postconviction, and because the record is still insufficient to analyze the 

claim, Newman is entitled to an evidentiary hearing.33

(b) Other Witnesses

Newman also alleges his appellate counsel was ineffective 

for failing to assign as error that trial counsel was ineffective 

33 See, State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015) (district court 

erred in failing to grant evidentiary hearing on ineffective assistance claim 

where claim was raised on direct appeal but record was insufficient to 

analyze claim, and same claim was raised on postconviction); State v. 

Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012) (same).
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for failing to “independently interview, depose, or subpoena” 

other potential witnesses “despite Newman’s request.” 

Newman alleges two of these witnesses would have testified 

that unnamed “Mexicans” or “Latino’s” killed Noriega and 

Morales; one would have testified to hearing gunshots near the 

crime scene around 1:15 p.m. on the day of the shootings; one 

would have testified she observed two men standing in a parking lot near the crime scene around 1 p.m. on the day of the 

shootings; one would have testified she was afraid of HerreraGutierrez and did not think his story “add[ed] up”; two would 

have testified to observing Herrera-Gutierrez “acting crazy” on 

the day of the shootings; and one would testify she thought the 

murders involved drugs.

The district court addressed all of these allegations collectively and concluded Newman had failed to allege how 

deposing or subpoenaing any of these witnesses would have 

produced a different outcome at trial. We agree that Newman’s 

allegations regarding these other witnesses did not show a 

reasonable likelihood that, absent the alleged deficiency, the 

outcome at trial would have been different.

In Strickland, the U.S. Supreme Court addressed how a 

court should approach the prejudice prong of an ineffective 

assistance of counsel claim:

In making [the prejudice] determination, a court hearing an ineffectiveness claim must consider the totality 

of the evidence before the judge or jury. Some of the 

factual findings will have been unaffected by the errors, 

and factual findings that were affected will have been 

affected in different ways. Some errors will have had 

a pervasive effect on the inferences to be drawn from 

the evidence, altering the entire evidentiary picture, and 

some will have had an isolated, trivial effect. Moreover, 

a verdict or conclusion only weakly supported by the 

record is more likely to have been affected by errors 

than one with overwhelming record support. Taking the 

unaffected findings as a given, and taking due account 
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of the effect of the errors on the remaining findings, 

a court making the prejudice inquiry must ask if the 

defendant has met the burden of showing that the decision reached would reasonably likely have been different 

absent the errors.34

Considering the alleged testimony of these eight potential 

witnesses in the context of all the evidence adduced at trial, 

we conclude the alleged testimony would not have altered the 

evidentiary picture and would, at best, have had an isolated 

or trivial effect on the jury’s findings. We find no error in 

the district court’s denial of this claim without an evidentiary hearing.

In sum, we conclude Newman is entitled to an evidentiary hearing on his claim relating to his alibi defense, but 

is not entitled to an evidentiary hearing on any of his other 

claims of failure to interview, depose, or subpoena potential 

witnesses.

(c) Cross-Examination

Newman also alleges his appellate counsel was ineffective 

for failing to raise, on direct appeal, that trial counsel failed to 

adequately investigate existing files and prepare for the trial 

testimony of Nelson Martinez-Reyes. This witness testified at 

trial that he saw a man matching Herrera-Gutierrez’ description near the murder location at approximately 11 a.m. on the 

day of the shootings, but he did not know the race of the male. 

Newman alleges Herrera-Gutierrez is Hispanic, and claims his 

trial counsel failed to cross-examine Martinez-Reyes about a 

prior statement in which he reported seeing a white male near 

the scene of the crime. We conclude this allegation of failure to 

cross-examine a witness on a minor credibility issue is not sufficient to demonstrate either deficient performance or resulting 

prejudice. Newman was not entitled to an evidentiary hearing 

on this claim.

34 Strickland, supra note 19, 466 U.S. at 695-96.
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3. Jury Instructions

Newman alleges his appellate counsel was ineffective for 

failing to assert, on direct appeal, that trial counsel was ineffective for not objecting to “flawed” jury instructions Nos. 5, 6, 

11, 12, and 18. Newman’s motion specifically alleges instructions Nos. 5, 11, and 12 were “flawed” because they did not 

conform to the pattern Nebraska Jury Instructions.

The district court found the claim that trial counsel was 

ineffective for failing to object to instructions Nos. 5, 11, 

and 12 had been raised on direct appeal and rejected by this 

court. It reasoned the factual allegations as to the other jury 

instructions failed to specifically allege deficient performance 

and prejudice. Our de novo review leads us to the same 

conclusion.

Newman’s brief to this court generally concedes that the 

argument he presents as to instructions Nos. 5, 11, and 12 was 

resolved on direct appeal. His brief also generally concedes 

that his postconviction motion did not include sufficient allegations as to instructions Nos. 6 and 18. The district court did 

not err in denying postconviction relief without an evidentiary 

hearing on this issue.

4. Confidential Informant

Newman alleges his appellate counsel was ineffective for 

failing to raise, on direct appeal, that trial counsel was ineffective for not doing more to secure the admission of testimony regarding an out-of-court statement made by a confidential informant. The confidential informant’s statement 

related to the possible involvement of a man known as “Sip” 

in the crimes.

Admissibility of the testimony regarding the confidential 

informant’s statement was addressed in the direct appeal of 

Newman’s codefendant Stricklin. Before trial, both Newman 

and Stricklin filed motions in limine seeking a ruling on the 

admissibility of testimony from a detective about statements a 

confidential informant made to the detective. The statements 

made to the detective were essentially that one of the murder 
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victims, Morales, had attempted to buy two firearms from the 

informant, telling the informant that he was “having problems 

with two black males” and that Morales told the informant one 

of the males was nicknamed “‘Sip.’”35 The detective showed 

the informant photographs of Newman and Stricklin, and the 

informant did not identify either as “Sip.”

The State objected to this evidence, arguing it contained 

two levels of hearsay—Morales’ statements to the informant 

and the informant’s statements to the detective. The district 

court excluded the evidence on that basis, and we affirmed 

on appeal.

Newman’s motion for postconviction relief generally 

alleges that if trial counsel had done more, the statements 

from the confidential informant would have been admitted. 

But Newman’s motion does not identify any actions that 

would have removed the hearsay issues we addressed on 

direct appeal, and thus, we agree with the district court that 

these allegations are insufficient to show ineffective assistance 

of counsel. The district court properly found Newman is not 

entitled to an evidentiary hearing on this claim.

5. Cell Phone Authentication

Evidence at trial showed a cell phone or phones associated 

with Newman were used to contact Stricklin and Morales 

on the date of the murders, and evidence showed Newman 

received six calls between 11:42 a.m. and 12:36 p.m. using 

a cell tower in the immediate vicinity of Morales’ shop. 

Newman alleges his appellate counsel was ineffective for 

failing to assign, on direct appeal, that trial counsel was ineffective for failing to require the State to “authenticate” who 

was actually using the cell phones associated with his name. 

His postconviction motion alleges that if trial counsel had 

objected on authentication grounds, the State would have been 

unable to prove he was actually using the cell phones, and the 

35 Stricklin, supra note 3, 290 Neb. at 553, 861 N.W.2d at 382.
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substantial cell phone evidence linking him to the murders 

would have been inadmissible.

The district court found this allegation was without merit, 

reasoning that such an objection would not have been successful. We agree.

[18,19] According to Neb. Rev. Stat. § 27-901(1) (Reissue 

2016), “[t]he requirement of authentication or identification as 

a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims.” Section 27-901 does not impose 

a high hurdle for authentication or identification.36 Indeed, a 

proponent of evidence is not required to conclusively prove 

the genuineness of the evidence or to rule out all probabilities inconsistent with authenticity.37 Rather, if the proponent’s 

showing is sufficient to support a finding that the evidence is 

what it purports to be, the proponent has satisfied the requirements of § 27-901.38

The files and records affirmatively show authentication was 

established. Newman’s former girlfriend testified at trial that 

she bought him a cell phone with a certain number and also 

called him at a different cell phone number. Law enforcement 

obtained the cell phone records associated with those two numbers, and the cell phone associated with the second number 

was found on Newman at the time of his arrest. This cell phone 

evidence was properly admitted at trial.39

The files and records affirmatively show that if Newman’s 

counsel had objected on the ground the State had not “authenticated” who was actually using the cell phones, such an objection would not have been successful. Newman’s counsel did 

not perform deficiently in this regard, and the district court 

36 State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).

37 Id.

38 Id.

39 See Stricklin, supra note 3.
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correctly denied postconviction relief on this claim without an 

evidentiary hearing.

6. Truth-in-Sentencing

Advisement

Newman alleges his appellate counsel was ineffective for 

failing to assign as error, on direct appeal, that trial counsel 

was ineffective for failing to object to the truth-in-sentencing 

advisement given by the trial court. His postconviction motion 

alleges the truth-in-sentencing advisement, delivered in open 

court, informed him he would be given credit for time served 

of 405 days, but the written sentencing order gave him credit 

for only 403 days. He argues the 2-day difference in the sentences imposed is prejudicial.

[20] The district court found Newman’s claim lacked merit, 

because he suffered no prejudice. It reasoned that in Nebraska, 

if there is a discrepancy between the oral pronouncement of a 

valid sentence and the later written order, the oral pronouncement controls calculation of the prison term.40

Our de novo review of the record confirms this rule was 

applied in Newman’s case. The commitment order entered 

after Newman’s sentencing awarded him credit for 405 days 

served. Thus, the files and records thus affirmatively show 

that Newman has suffered no prejudice, and the district 

court properly denied Newman an evidentiary hearing on 

this claim.

7. Motion for New Trial

Newman’s postconviction motion includes several allegations that his appellate counsel was ineffective for failing to 

raise, on direct appeal, the ineffective assistance of trial counsel 

related to the motion for new trial based on juror misconduct. 

His brief to this court argues only two of those allegations. 

40 See State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
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We thus limit our review to those errors both assigned and 

argued to this court.41

Before addressing these claims, we note that in our opinion 

on Newman’s direct appeal, we found the record was insufficient to address Newman’s claim that his trial counsel was 

ineffective for failing to timely offer an affidavit of a nonjuror 

during the hearing on Newman’s motion for new trial. Newman 

did not include such an allegation in his postconviction motion. 

Instead, he alleges his appellate counsel was ineffective for 

failing to raise other instances of ineffective assistance related 

to the hearing on his motion for new trial. To understand his 

claims, we briefly summarize the basis for Newman’s motion 

for new trial.

Newman alleged he was entitled to a new trial because one 

of the jurors had communicated with the juror’s brother, a 

nonjuror, after the first day of deliberations and before a verdict had been reached. A hearing was held on the motion for 

new trial, and the juror testified that he telephoned his brother 

and learned that their father was acquainted with Newman 

and Stricklin. But the juror testified he did not know either of 

them personally.

Newman’s postconviction motion alleges his appellate counsel was ineffective for failing to raise, on direct appeal, that his 

trial counsel was ineffective for (1) failing to object to certain 

remarks by counsel and (2) conceding that portions of the 

juror’s affidavit were inadmissible.

(a) Failure to Object

Newman’s postconviction motion alleges his trial counsel 

should have objected when an attorney appointed to represent 

the juror accused of misconduct made substantive representations to the trial court instead of eliciting such information 

41 See State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018) (alleged error 

must be both specifically assigned and specifically argued to be considered 

by appellate court).
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from the juror in question. Newman alleges his appellate 

counsel was ineffective for failing to assign, on direct appeal, 

that his trial counsel was deficient in failing to object to the 

remarks of the juror’s attorney.

At the hearing on the motion for new trial, the parties disputed the admissibility of the juror’s affidavit. Portions of that 

affidavit averred that during trial, the juror

realized that I recognized people in the audience who 

were familiar to me, then subsequently realized that I 

knew both [Newman and Stricklin] and my family has 

family relationships with them. In fact, at some point 

I learned that . . . Newman had an altercation with my 

father . . . and injured [my father’s] shoulder[.]

During the hearing, the juror’s attorney told the court the 

juror had not actually learned of the altercation between 

Newman and the juror’s father until after the verdicts were 

returned. The court then asked the juror’s attorney whether the 

juror recalled knowing Newman and Stricklin prior to returning the verdicts, and the attorney responded, “No.”

Newman alleges that due to his counsel’s deficient performance in not objecting to this colloquy, the juror’s attorney was 

permitted to testify on behalf of his client and Newman was 

deprived of the opportunity to cross-examine the juror. The 

files and records affirmatively refute this claim.

The records shows that contrary to the allegations made in 

Newman’s motion for postconviction relief, Newman’s trial 

counsel did object to counsel’s remarks, arguing the juror’s 

attorney should not be permitted to testify for his client. The 

court agreed. Then both Newman and Stricklin were permitted 

to call the juror as a witness and ask questions about the timing 

and substance of the telephone conversation the juror had with 

his brother.

Because the files and records affirmatively refute Newman’s 

claim that his counsel failed to object to the complained-of 

statements by the juror’s attorney, and also refute any claim 

that he was denied an opportunity to question the juror directly, 
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the postconviction court did not err in denying an evidentiary 

hearing on this issue.

(b) Concession at Hearing

Newman also alleges his appellate counsel was ineffective for failing to raise, on direct appeal, that his trial counsel 

was ineffective during the motion for new trial, because he 

improperly conceded that a portion of the juror’s affidavit was 

inadmissible.

The relevant portion of the affidavit averred, “During the 

deliberations, the other jurors persuaded me to change my 

vote to guilty primarily because [Newman and Stricklin] did 

not testify and attempt to clear their names.” Newman alleges 

his trial counsel was ineffective, because even though counsel 

drafted the juror’s affidavit after interviewing the juror, counsel “conceded and became submissive during the hearing on 

the motion for new trial” and admitted that this paragraph of 

the affidavit was not admissible under Nebraska law. The State 

argues that trial counsel was not ineffective, because that portion of the affidavit was plainly inadmissible under Nebraska 

law and was properly stricken by the trial court.

Neb. Rev. Stat. § 27-606(2) (Reissue 2016) provides:

Upon inquiry into the validity of a verdict or indictment, a 

juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the 

effect of anything upon his or any other juror’s mind or 

emotions as influencing him to assent to or dissent from 

the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or 

whether any outside influence was improperly brought to 

bear upon any juror. Nor may his affidavit or evidence of 

any statement by him indicating an effect of this kind be 

received for these purposes.

[21] Section 27-606(2) prohibits a juror from testifying as 

to any matter or statement occurring during the course of the 
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jury’s deliberations. Thus, a juror’s affidavit may not be used 

to impeach a verdict on the basis of jury motives, methods, 

misunderstanding, thought processes, or discussions during 

deliberations.42 Because the record shows counsel did not perform deficiently in conceding this point, the district court did 

not err in denying postconviction relief without an evidentiary 

hearing on this claim.

8. Crime Scene Investigator

Newman alleges appellate counsel was ineffective in failing to raise, on direct appeal, that trial counsel was ineffective 

in failing to hire a crime scene investigator. He alleges various items at the crime scene were inconsistent with HerreraGutierrez’ testimony and that counsel should have hired an 

investigator to rebut these inconsistencies.

Specifically, Newman alleges only one set of footprints 

“‘with evidentiary value’” was found at the scene, but HerreraGutierrez testified five people went in to the shop where the 

murders occurred and only three came out. He alleges HerreraGutierrez testified the victims were tied up and shot “‘real 

fast,’” but blood splatter at the scene was on the ceiling and 

the outside landing. He alleges Herrera-Gutierrez testified that 

the victims were shot as they lay face down, but a shell casing 

was found underneath one of their bodies.

Newman’s postconviction motion concedes that trial counsel 

cross-examined the State’s witnesses on this evidence, and the 

record confirms that Newman’s counsel presented evidence 

regarding each of these issues either on direct examination or 

through cross-examination at trial. But Newman alleges trial 

counsel should also have hired a “crime scene investigator or 

specialist” who “would and could have rebutted” this evidence. 

Newman’s motion presents no allegations regarding what such 

an investigator or specialist would have testified to if called, or 

how such testimony would have rebutted the state’s evidence 

or affected the outcome of the case.

42 See State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
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[22] A petitioner’s postconviction claims that his or her 

defense counsel was ineffective in failing to investigate possible defenses are too speculative to warrant relief if the petitioner fails to allege what exculpatory evidence the investigation would have procured and how it would have affected the 

outcome of the case.43 The district court correctly concluded 

that Newman’s conclusory allegations about the failure to 

hire a crime scene investigator did not warrant an evidentiary hearing.44

9. Failure to Obtain

Complete Record

Newman’s postconviction motion alleges appellate counsel 

was ineffective for failing to obtain the complete record prior 

to the direct appeal. He alleges the missing portion of the 

record was a supplemental jury instruction not included in the 

final instructions sent to the jury.

Newman’s motion does not allege how his lack of access 

to that instruction affected his appeal or what assignment of 

error was not raised on appeal due to the lack of access to that 

record. The district court thus correctly found Newman did not 

plead sufficient facts to necessitate an evidentiary hearing on 

this claim.

10. Actual Innocence

Newman’s postconviction motion alleges he was actually 

innocent of the crimes. He supports this allegation by referencing all of his alleged claims of ineffective assistance 

of counsel, in addition to other unassigned errors during 

trial. In his brief to this court, Newman contends the errors 

of appellate counsel in failing to raise such issues on direct 

appeal “taken as a whole establish that [he] was actually 

innocent.”45 The trial court found Newman’s allegations of 

43 State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

44 See id.

45 Brief for appellant at 20.
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actual innocence were insufficient to show a constitutional 

violation. We agree.

[23-25] In State v. Dubray,

46 we explained:

A claim of actual innocence may be a sufficient allegation of a constitutional violation under the Nebraska 

Postconviction Act. The essence of a claim of actual 

innocence is that the State’s continued incarceration of 

such a petitioner without an opportunity to present newly 

discovered evidence is a denial of procedural or substantive due process. The threshold to entitle a prisoner to 

an evidentiary hearing on such a postconviction claim is 

“‘extraordinarily high.’” Such a petitioner must make a 

strong demonstration of actual innocence because after 

a fair trial and conviction, the presumption of innocence vanishes.

Newman has not met his extraordinarily high threshold of 

alleging facts sufficient to show he is actually innocent of the 

crimes. The district court did not err in denying an evidentiary 

hearing on this claim.

V. CONCLUSION

For the foregoing reasons, we conclude the district court 

erred in denying Newman an evidentiary hearing on his 

claim that trial counsel was ineffective for failing to investigate and present alibi evidence from Riley, Mariscal, and 

two employees of Chubb Foods, and we reverse the court’s 

decision in part and remand the matter for an evidentiary 

hearing limited to that claim. In all other respects, we affirm 

the district court’s denial of postconviction relief without an 

evidentiary hearing.

 Affirmed in part, and in part reversed

and remanded with directions.

Heavican, C.J., not participating.

46 Dubray, supra note 18, 294 Neb. at 947-48, 885 N.W.2d at 551, quoting 

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

Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993).