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310 Nebraska Reports

STATE v. NEWMAN

Cite as 310 Neb. 463

State of Nebraska, appellee, v. 

Terrell E. Newman, appellant.

___ N.W.2d ___

Filed December 3, 2021. No. S-20-680.

1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, 

as the trier of fact, resolves conflicts in the evidence and questions of 

fact. An appellate court upholds the trial court’s findings unless they are 

clearly erroneous.

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

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

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

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

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

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

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

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

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

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

Postconviction Act is intended to provide relief in those cases where 

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

procedure to secure a routine review for any defendant dissatisfied with 

his or her sentence.

5. Postconviction: Constitutional Law: Proof. A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when 

the motion contains factual allegations which, if proved, constitute an 

infringement of the defendant’s rights under the Nebraska or federal 

Constitution.

Nebraska Supreme Court Online Library

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

02/11/2022 01:06 AM CST
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STATE v. NEWMAN

Cite as 310 Neb. 463

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

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

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that 

his or her counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense.

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

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

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

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

the area.

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

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

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

674 (1984), test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of 

the proceeding would have been different. A reasonable probability does 

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

altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

9. Effectiveness of Counsel: Proof. A court may examine the two prongs 

of the ineffective assistance of counsel test, deficient performance and 

prejudice, in any order and need not examine both prongs if a defendant 

fails to demonstrate either.

10. 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.

11. Trial: Effectiveness of Counsel: Appeal and Error. 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 

second-guessed so long as those decisions are reasonable.

12. Attorneys at Law: Effectiveness of Counsel. An attorney must at a 

minimum interview potential witnesses and make an independent investigation of the facts and circumstances in the case.

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

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

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

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

and when the crime was committed.

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

postconviction relief, the postconviction trial judge, as the trier of 
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STATE v. NEWMAN

Cite as 310 Neb. 463

fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness’ testimony.

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

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

findings for those of the district court.

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.

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

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

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

for appellee.

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

Steinke and Otte, District Judges.

Funke, J.

Terrell E. Newman appeals from the denial of postconviction relief following an evidentiary hearing. Newman contends 

that his trial counsel was ineffective in failing to investigate 

and present an alibi defense and that the trial court should have 

allowed live testimony at the evidentiary hearing. We disagree 

and therefore affirm the order of the district court.

BACKGROUND

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

Newman and Derrick U. Stricklin on two counts of first degree 

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

felony, attempted intentional manslaughter, and possession of 

a deadly weapon by a prohibited person. The district court 

for Douglas County sentenced both men to life imprisonment 

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

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

20 months’ to 5 years’ imprisonment for the attempted manslaughter conviction; and 15 to 25 years’ imprisonment for 

the possession of a deadly weapon conviction. All sentences 
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STATE v. NEWMAN

Cite as 310 Neb. 463

were to run consecutively. This court affirmed Newman’s convictions and sentences on direct appeal. 1

Newman timely moved for postconviction relief, which the 

district court denied without conducting an evidentiary hearing. Newman appealed. This court affirmed in part, and in part 

reversed and remanded for an evidentiary hearing on the sole 

issue of whether Newman’s trial counsel was ineffective for 

failing to investigate and present an alibi defense. 2

Prior to the evidentiary hearing, Newman filed a motion for 

live testimony with the district court, which was denied. The 

district court then held the evidentiary hearing and, based upon 

deposition testimony, the trial record, and an affidavit, found 

no merit to Newman’s ineffective assistance of counsel claim. 

Newman appealed directly to this court. 3

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

affirming Stricklin’s convictions and sentences. 4 Summarized, 

on December 2, 2012, Carlos Morales and Bernardo Noriega 

were shot and killed in a drug transaction at an automobile body 

shop in Omaha, Nebraska. The State alleged that Newman and 

Stricklin committed the crimes together. Newman’s cell phone 

records showed that he was in communication with Morales 

and Stricklin on the day of the shootings and that Newman’s 

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

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

claimed he was present during the shootings. Based upon 

information provided by Herrera-Gutierrez, officers compiled 

photographic lineups containing photographs of Newman and 

Stricklin. Herrera-Gutierrez identified Newman and Stricklin 

as the shooters; he testified that he recognized both men 

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

2 State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).

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

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

5 State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
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from three or four prior visits to the body shop, although he 

had never learned their names.

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

According to Herrera-Gutierrez, Newman instructed Morales to 

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

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

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

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

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

Stricklin left the scene without shooting him.

Despite testimony from various witnesses regarding the 

timeline of events, the evidence did not establish a precise 

time for the shootings. Morales’ fiance discovered the bodies 

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

at 2:34 p.m.

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

cell phone records showed multiple contacts with Stricklin on 

December 2, 2012, right before and after the relevant period. 

The State adduced evidence showing that Newman received 

six calls from 11:42 a.m. to 12:36 p.m. and that Newman’s 

phone used a cell tower located in the immediate vicinity of 

the body shop. 7

After this court affirmed Newman’s convictions and sentences, Newman moved for postconviction relief, alleging 

four witnesses would have established an alibi defense had 

trial counsel interviewed the witnesses himself rather than his 

investigator. Newman alleged that, if called, Kevin Riley and 

Janet Mariscal would have testified that at or near the time 

of the shootings Newman was either at a restaurant he owned 

or on a supply run to a grocery store. Newman alleged two 

6 Stricklin, supra note 4.

7 Id.
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Cite as 310 Neb. 463

unnamed employees of the grocery store would have confirmed 

his presence at the store at or near the time of the shootings. 

In denying Newman’s motion, the district court found that 

Newman’s timeframe allegations were vague and that overwhelming evidence established Newman’s guilt.

On appeal, this court concluded that Newman’s alleged alibi 

defense merited an evidentiary hearing. In considering whether 

there was overwhelming evidence of Newman’s guilt, we found 

that we could not “overlook the fact that the alibi evidence 

Newman alleges his attorney should have investigated could, 

if proved, have contradicted the eyewitness identification” and 

concluded that “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.” 8

Upon remand, at the evidentiary hearing, the district court 

received deposition testimony from Newman, Newman’s trial 

counsel, Riley, Mariscal, Jessica Rosa, and Frances Mullen.

Newman testified that he owned a restaurant and that he 

and his fiance, Mariscal, arrived there on December 2, 2012, 

at 9 or 9:30 a.m. Newman stated he was at the restaurant all 

day, except for a supply run to the grocery store at 12:20 or 

12:30 p.m. Newman stated he purchased wood chips, lighter 

fluid, and bread. He stated that when he paid for the items, he 

had a conversation with his cashier, Mullen, about his restaurant. He stated he separately purchased apples and perhaps a 

sandwich from the customer service line. Newman estimated 

his entire supply run lasted 20 or 25 minutes, placing him back 

at the restaurant by approximately 1 p.m. Newman stated that 

he remained at the restaurant until 5:30 or 6 p.m. and that he 

provided this information to his counsel shortly after counsel 

was appointed.

Mariscal testified she was in a dating relationship with 

Newman. She remembered December 2, 2012, because it 

8 Newman, supra note 2, 300 Neb. at 781, 916 N.W.2d at 406.
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was the day after her daughter’s birthday. Mariscal remembered arriving at the restaurant with her daughter and Newman 

at around 10 or 10:30 a.m. She recalled that Newman went on 

a supply run around 11 or 11:30 a.m. and that he returned with 

bread and possibly lighter fluid. She stated that she was not 

always with Newman while at the restaurant and that he would 

use the grill located outside of the restaurant.

Riley, who worked at the restaurant, testified he and Newman 

arrived there at 7 a.m. to begin smoking turkeys. Riley stated 

Newman was at the restaurant all day, except for about 15 

minutes around 10 or 10:30 a.m., when Newman went to the 

grocery store to get feather bones and charcoal.

In their depositions, Rosa and Mullen confirmed that they 

worked at the grocery store, but could not confirm whether 

Newman shopped there on December 2, 2012.

Newman’s trial counsel testified in his deposition that on 

January 22, 2013, he was appointed to represent Newman. 

Counsel acknowledged that Newman made him aware of his 

alibi defense early on and that Riley and Mariscal could confirm he was either at the restaurant or at the grocery store.

In preparing a defense, on April 18, 2013, counsel hired a 

private investigator to investigate Newman’s alibi defense, as 

well as Herrera-Gutierrez’ version of events. The investigator 

was a retired Omaha police officer with 20 years’ experience, 

including working as an investigator in the homicide unit. In 

forming Newman’s defense strategy, counsel planned to rely 

on the experience of his investigator. Counsel stated that his 

investigator’s experience working in the homicide unit would 

aid him in determining whether Herrera-Gutierrez’ description 

of the shootings was credible.

Counsel attempted to obtain receipts from either the grocery 

store or Newman’s restaurant, but Newman did not provide 

any. The investigator contacted the grocery store manager and 

learned that sales records were kept for only 10 days and that 

surveillance video was kept for only 40 days.
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The investigator interviewed Riley and Mariscal. He 

assessed Mariscal’s account as rehearsed and found Riley 

had only general knowledge of the restaurant’s operations, 

but no direct knowledge of December 2, 2012, the date of the 

shootings. Counsel did not personally meet with Newman’s 

alibi witnesses. Based on the investigator’s assessment, counsel 

determined that as a matter of strategy, Newman’s best defense 

was to refute the testimony of Herrera-Gutierrez on crossexamination. Based on counsel’s experience, he concluded that 

Newman’s cell phone records undermined the credibility of his 

alibi defense and that presenting a weak alibi defense to the 

jury could harm Newman’s case and cause the jury to believe 

he was guilty.

After the evidentiary hearing, the court issued a written order 

dismissing Newman’s motion, finding no merit to his ineffective assistance of counsel claim. The court found Newman 

failed to establish his counsel’s performance was deficient 

and failed to establish he suffered any prejudice. Based on the 

deposition testimony of counsel, and the investigator’s affidavit, the court found counsel had reasonably investigated the 

alibi defense. The court found there was no way for counsel to 

obtain the surveillance video from the grocery store, because it 

had already been deleted by the time Newman was arrested and 

counsel was appointed. The court found merit to counsel’s testimony that he viewed the alibi defense to be weak and harmful 

to Newman’s case.

The court found Newman’s evidence in support of his 

motion lacked credibility. The court found gaps and conflicts 

in the timeline testimony of Riley and Mariscal. The court 

noted that contrary to Newman’s allegations, Rosa and Mullen 

were unable to corroborate his presence at the grocery store. 

The court considered the strength of Newman’s alibi defense in 

light of the other evidence of his guilt, such as the eyewitness 

identification and cell phone records, and concluded “there is 

not a reasonable probability that the outcome of the trial would 

have been different if trial counsel had called Mariscal, Riley, 

Mullen, and Rosa to present an alibi defense.”
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STATE v. NEWMAN

Cite as 310 Neb. 463

ASSIGNMENTS OF ERROR

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

postconviction relief and (2) denying live witness testimony at 

the evidentiary hearing.

STANDARD OF REVIEW

[1] In an evidentiary hearing on a motion for postconviction 

relief, the trial judge, as the trier of fact, resolves conflicts in 

the evidence and questions of fact. An appellate court upholds 

the trial court’s findings unless they are clearly erroneous. 9

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

counsel is a mixed question of law and fact. 10 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error. 11 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

 12 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision. 13

ANALYSIS

Newman contends his trial counsel’s performance was deficient when he failed to investigate and present an alibi defense. 

Newman argues his trial counsel delegated assessment of his 

alibi defense to a private investigator and that counsel’s decision to not pursue the alibi defense based on the investigator’s 

assessments was not competent and resulted in Newman’s conviction at trial.

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

relief, available only to remedy prejudicial constitutional 

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

10 See id.

11 Id.

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

(1984).

13 Beehn, supra note 9.
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violations that render the judgment void or voidable. 14 The 

Nebraska Postconviction Act is intended to provide relief in 

those cases where a miscarriage of justice may have occurred; 

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

for any defendant dissatisfied with his or her sentence. 15

A court must grant an evidentiary hearing to resolve the 

claims in a postconviction motion when the motion contains 

factual allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal 

Constitution. 16

[6-9] To prevail on a claim of ineffective assistance of counsel under Strickland,

 17 the defendant must show that his or her 

counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense. 18 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. 19 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. 20 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. 21

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

14 Id.

15 Id.

16 Newman, supra note 2.

17 Strickland, supra note 12.

18 Newman, supra note 2.

19 Id.

20 Id.

21 Id.
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just conceivable.” 22 A court may examine performance and 

prejudice in any order and need not examine both prongs if a 

defendant fails to demonstrate either. 23

Witness Interviews

[10,11] A defense attorney has a duty to make reasonable 

investigations or to make a reasonable decision that makes 

particular investigations unnecessary. 24 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. 25 Strategic decisions made by 

trial counsel will not be second-guessed so long as those decisions are reasonable. 26

The decision to interview witnesses must be evaluated in 

light of whatever trial strategy reasonably competent counsel 

devised in the context of the particular case. 27 Counsel need 

not interview every possible witness to have performed proficiently. 28 In every case, trial lawyers could have done something more or something different. 29 The issue is only what is 

constitutionally compelled. 30

[12] An attorney must at a minimum interview potential witnesses and make an independent investigation of the 

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

(2011).

23 See Strickland, supra note 12.

24 Newman, supra note 2.

25 Id.

26 Id. See State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020).

27 See, Janosky v. St. Amand, 594 F.3d 39 (1st Cir. 2010); Lema v. U.S., 987 

F.2d 48 (1st Cir. 1993); U.S. v. Caramadre, 957 F. Supp. 2d 160 (D.R.I. 

2013).

28 Caramadre, supra note 27.

29 Chandler v. U.S., 218 F.3d 1305 (11th Cir. 2000).

30 Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).
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facts and circumstances in the case. 31 The results of certain 

interviews or investigation may indicate that further pursuit 

likely will be a waste of time. 32 “[S]trategic choices made after 

less than complete investigation are reasonable precisely to the 

extent that reasonable professional judgments support the limitations on investigation.” 33 Counsel’s obligation is to conduct a 

reasonable inquiry into all plausible defenses. 34

In the instant matter, Newman’s trial counsel relied on 

an experienced investigator to interview Riley and Mariscal. 

Those interviews did not generate information substantially 

different than the witness depositions offered at the evidentiary 

hearing. Additionally, the investigator’s conclusion that Riley’s 

testimony and Mariscal’s testimony was not sufficiently credible to support an alibi defense is consistent with the district 

court’s conclusion on the same issue. Newman’s trial counsel 

showed reasonable professional judgment in hiring an investigator to evaluate the alibi and in relying on that investigator’s 

determination that Newman’s alibi could have been refuted and 

harmful to his defense. As such, we conclude that the district 

court was correct in determining that trial counsel’s performance was not deficient for not personally interviewing Riley 

and Mariscal.

Presentation of Alibi Defense

[13] Nebraska precedent indicates that a defendant asserting 

an alibi defense bears a heavy evidentiary burden. To establish 

an alibi defense, a defendant must show (1) he or she was at 

a place other than where the crime was committed and (2) he 

or she was at such other place for such a length of time that it 

31 See, Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994); U.S. v. Gavin, 77 F. 

Supp. 3d 525 (S.D. Miss. 2014).

32 Id.

33 Strickland, supra note 12, 466 U.S. at 690-91.

34 See Strickland, supra note 12.
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was impossible to have been at the place where and when the 

crime was committed. 35

This court instructed the district court to, on remand, conduct 

an evidentiary hearing and evaluate the merits of Newman’s 

postconviction claim “depending on the evidence actually presented and found credible.” After holding that evidentiary hearing, the district court determined that the evidence presented 

by Newman lacked credibility and dismissed his claim. The 

district court reviewed the witness testimony regarding the 

timeline of events, and it concluded that “Newman has failed 

to credibly provide the evidence he outlined in his motion.” 

The court found that neither Rosa nor Mullen was able to 

confirm that Newman was at the grocery store on December 

2, 2012. The court also found that Riley and Mariscal did not 

provide “clear and consistent accounts to provide a credible 

alibi defense.” We agree.

[14,15] In an evidentiary hearing for postconviction relief, 

the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness’ testimony. 36 Where 

competent evidence supports the district court’s findings, the 

appellate court will not substitute its factual findings for those 

of the district court. 37

Based upon the evidentiary record, we are persuaded the 

district court did not err in finding counsel’s decision not to 

call the alibi witnesses to have been a strategic choice made 

after investigation, and thus, it did not amount to ineffective 

35 NJI2d Crim. 8.1, comment, citing State v. Moreno, 228 Neb. 210, 422 

N.W.2d 56 (1988); State v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 

(1987); State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985); Mays v. 

State, 72 Neb. 723, 101 N.W. 979 (1904); Peyton v. State, 54 Neb. 188, 

74 N.W. 597 (1898). See, State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 

(1987); State v. Veatch, 16 Neb. App. 50, 740 N.W.2d 817 (2007).

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

37 Id.
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assistance. 38 Newman’s own alibi evidence indicates that it 

was possible for the jury to find that he had committed the 

murder on December 2, 2012, when he was not present at the 

restaurant. The State claimed that Newman and Stricklin committed the shootings at approximately 12:30 p.m. Newman 

claimed to be at the grocery store at that time, but Newman 

did not support his claim with any evidence. Mariscal recalled 

that Newman went to the store at 11 or 11:30 a.m., whereas 

Riley stated that Newman went to the store at 10 or 10:30 a.m. 

Newman’s claim was not supported by any receipts or any 

testimony of store employees. Additionally, Newman’s phone 

records and a witness place Newman at the murder scene at the 

relevant time period. There exists competent evidence in the 

record which supports the district court’s decision.

Newman has failed to affirmatively establish the requirements of Strickland.

 39 Newman’s contention that his counsel 

was deficient for failing to present an alibi defense is without merit.

Live Testimony

Lastly, Newman argues, without supporting authority or 

citation to the record, that the district court erred in not receiving the alibi testimony through live witnesses rather than via 

deposition. Newman’s argument suggests he was somehow 

prevented from establishing a credible defense because the 

court had to weigh his deposition evidence against the live 

trial testimony of Herrera-Gutierrez. However, Newman failed 

to articulate any argument as to why the court’s analysis 

was legally improper or how presenting the alibi evidence 

through live testimony would have made a difference given 

the strength of the evidence. Appellants are required to point 

38 See, e.g., U.S. v. Dyess, 730 F.3d 354 (4th Cir. 2013); Dixon v. Warden, 

Southern OH Correctional Facility, 940 F. Supp. 2d 614 (S.D. Ohio 2013);

Ortiz v. Barkley, 558 F. Supp. 2d 444 (S.D.N.Y. 2008).

39 See, Strickland, supra note 12. See, also, Gavin, supra note 31.
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out the factual and legal bases that support their assignments 

of error. 40

The procedures a district court uses in evaluating a postconviction action are reviewed for an abuse of discretion. 41 An 

abuse of discretion occurs when a trial court bases its decision 

upon reasons that are untenable or unreasonable or if its action 

is clearly against justice or conscience, reason, and evidence. 42

But the district court’s discretion must comport with the specific procedural rules mandated by Neb. Rev. Stat. § 29-3001 

(Reissue 2016). 43

Section 29-3001(3) explicitly authorizes the court to receive 

“[t]estimony of the prisoner or other witnesses . . . by deposition.” Additionally, the weight to be accorded to testimony 

given by deposition, as compared to that given orally in court, 

must depend, not upon its form, but upon all the circumstances 

affecting its credibility. 44 As discussed, there is evidence in the 

record which supports the court’s credibility findings regarding 

the deposition testimony of the alibi witnesses. The court did 

not err in denying Newman’s request for live witnesses at the 

evidentiary hearing.

Newman’s appeal is without merit.

CONCLUSION

The order of the district court dismissing Newman’s motion 

for postconviction relief is affirmed.

Affirmed.

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

40 Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).

41 See State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).

42 Id.

43 Id.

44 Russell, supra note 36.