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STATE v. STRICKLIN

Cite as 300 Neb. 794

State of Nebraska, appellee, v. 

Derrick U. Stricklin, appellant.

___ N.W.2d ___

Filed August 17, 2018. No. S-17-914.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo a 

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record 

and files affirmatively show that the defendant is entitled to no relief.

2. Postconviction: Constitutional Law: Judgments. 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.

3. 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.

4. ____: ____: ____. 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.

5. 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.

6. ____: ____. 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.

Nebraska Supreme Court Online Library

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

09/21/2018 09:09 AM CDT
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7. Postconviction: Effectiveness of Counsel: Appeal and Error. Although 

a motion for postconviction relief cannot be used to secure review of 

issues which were or could have been litigated on direct appeal, when a 

defendant was represented by the same lawyer both at trial and on direct 

appeal, the defendant’s first opportunity to assert ineffective assistance 

of counsel is in a motion for postconviction relief.

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

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

9. 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.

10. ____: ____. 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.

11. 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.

12. Judges: Recusal. To demonstrate that a trial judge should have recused 

himself or herself, the moving party must demonstrate that a reasonable person who knew the circumstances of the case would question the 

judge’s impartiality under an objective standard of reasonableness, even 

though no actual bias or prejudice was shown.

13. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

14. Effectiveness of Counsel. Defense counsel is not ineffective for failing 

to raise an argument that has no merit.

15. Trial: Attorneys at Law: Presumptions. Trial counsel is afforded due 

deference to formulate trial strategy and tactics, and there is a strong 

presumption that counsel acted reasonably.

16. Trial: Prosecuting Attorneys. Prosecutors generally may not give their 

personal opinions on the veracity of a witness or the guilt or innocence 
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of the accused. The principle behind this rule is that the prosecutor’s 

opinion carries with it the imprimatur of the government and may 

induce the jury to trust the government’s judgment rather than its own 

view of the evidence.

17. 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.

18. 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.

19. 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.

20. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: 

Waiver. Defense counsel’s advice to waive the right to testify can present a valid claim of ineffective assistance of counsel in two instances: 

(1) if the defendant shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel’s tactical advice to waive the 

right was unreasonable.

21. Postconviction: Evidence: Presumptions: Proof. The threshold showing that must be made to entitle a prisoner to an evidentiary hearing 

on a postconviction claim of actual innocence is extraordinarily high, 

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.
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Stacy, J.

A jury found Derrick U. Stricklin 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. 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.1

Stricklin now moves 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. Stricklin filed this timely appeal. We 

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

I. FACTS

Stricklin’s trial was consolidated with codefendant Terrell 

E. Newman. The underlying facts are set forth in our opinion 

in Stricklin’s direct appeal.2 Summarized, Stricklin’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 Stricklin and Newman 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 Stricklin and 

Newman 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 

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

2 Id.
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showed that Newman’s cell phone was in the area of the murder scene during the relevant timeframe.3

A jury found Stricklin 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. 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.4 The district court denied his motion for new trial, 

and he filed a direct appeal.

Stricklin was represented by the same counsel at trial and 

on direct appeal. In his direct appeal, Stricklin assigned the 

trial court erred in (1) denying his motion to sever, (2) excluding statements of a confidential informant, (3) limiting his 

cross-examination of Herrera-Gutierrez, (4) failing to include 

relevant language in certain jury instructions, (5) overruling his 

motion for new trial based on juror misconduct, and (6) overruling his motion to reopen the evidence. This court affirmed 

his convictions and sentences.5

Stricklin then filed the instant motion for postconviction 

relief, along with a motion for appointment of counsel. His 

postconviction motion alleges counsel was ineffective for (1) 

not moving to recuse the trial judge; (2) failing to object to 

jury instructions Nos. 6, 11, 12, and 20; (3) failing to file 

notice of his alibi defense and present certain alibi evidence; 

(4) failing to object and move for a mistrial during closing 

arguments; (5) failing to raise a confrontation objection at a 

hearing on his motion for new trial; (6) abandoning, during 

the hearing on the motion for new trial, all arguments except 

juror misconduct; (7) failing to call a witness at the hearing 

3 Id.

4 Id.

5 Id.
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on the motion for new trial; (8) failing to obtain a crime scene 

investigator; (9) failing to object to cell phone record evidence 

on “authentication” grounds; (10) failing to depose and call 

certain identified witnesses and investigate certain defenses; 

(11) failing to file a motion in limine regarding the admissibility of testimony of a confidential informant; (12) unreasonably 

advising him to waive his right to testify; (13) failing to assign 

as error on direct appeal the insufficiency of the evidence 

to support his convictions and the improper identification of 

Stricklin as one of the perpetrators; and (14) failing to obtain a 

complete record for appeal. Finally, Stricklin alleges a claim of 

actual innocence. The district court denied the postconviction 

motion without conducting an evidentiary hearing. Stricklin 

filed this appeal.

II. ASSIGNMENTS OF ERROR

Stricklin assigns, restated, that the district court erred in (1) 

denying him an opportunity to amend his motion for postconviction relief, (2) denying him an evidentiary hearing on his 

motion for postconviction relief, (3) finding he did not meet 

the threshold for actual innocence, and (4) denying his motion 

for postconviction relief.

III. 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.6

IV. ANALYSIS

1. General Propositions

Governing Postconviction

[2,3] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

6 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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that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.7

 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.8

[4-6] 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.9 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.10 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.11

[7] Here, Stricklin was represented by the same counsel 

at trial and on appeal, and his postconviction motion alleges 

counsel provided ineffective assistance both at trial and on 

direct appeal. Although a motion for postconviction relief cannot be used to secure review of issues which were or could 

have been litigated on direct appeal, when a defendant was 

represented by the same lawyer both at trial and on direct 

appeal, the defendant’s first opportunity to assert ineffective 

assistance of counsel is in a motion for postconviction relief.12

7 Vela, supra note 6.

8 Id.

9 Id.

10 Id.

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

12 State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
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Recognizing this, the district court addressed all of Stricklin’s 

ineffective assistance of counsel claims.

[8-11] A proper ineffective assistance of counsel claim 

alleges a violation of the fundamental constitutional right to 

a fair trial.13 To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

14 the defendant 

must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced 

the defendant’s defense.15 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.16 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.17 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.18

2. Motion to Amend

Postconviction Motion

Stricklin assigns error to the district court’s “denying [him] 

an opportunity to amend his motion for postconviction relief.” 

We review the district court’s decision in this regard for an 

abuse of discretion.19

13 Thorpe, supra note 11; State v. Baker, 286 Neb. 524, 837 N.W.2d 91 

(2013).

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

(1984).

15 See Vela, supra note 6.

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

17 See Vela, supra note 6.

18 Id.

19 State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
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Approximately 4 months after filing his verified motion for 

postconviction relief, Stricklin filed a motion seeking “permission to Amend the Motion for Postconviction after the 

Court grants appointment of Counsel.” Newman filed a similar 

motion in his postconviction proceeding. At a joint telephonic 

hearing on the motions, the court asked for clarification:

THE COURT: Okay. There was a motion filed by both 

. . . Newman and . . . Stricklin on August 17, 2016, which 

was a Request for Counsel and a Request to Amend the 

Postconviction Motion. I need to ask, and I’ll start with 

you, Mr. Newman, are you asking to amend at this time?

MR. NEWMAN: Yes.

THE COURT: What are you asking to amend?

MR. NEWMAN: The motion for postconviction.

THE COURT: How are you asking for that to be 

amended?

MR. NEWMAN: By way of counsel.

THE COURT: Okay. So — what I want to make clear 

is, there was a motion asking for counsel, and then if 

counsel is appointed you want to keep open your ability 

to amend your Motion for Postconviction. Am I understanding that correctly?

MR. NEWMAN: Yes. Correct.

THE COURT: Okay. But you’re not asking to amend 

here today?

MR. NEWMAN: No.

THE COURT: All right. And I’ll ask you the same 

questions, Mr. Stricklin. Are you asking to amend your 

postconviction today?

MR. STRICKLIN: No.

THE COURT: Okay. Again, I’ll just make it clear with 

Mr. Stricklin. So you’re asking if the Court determines 

that an evidentiary hearing is warranted, then you’re asking for Counsel to be appointed and then the ability to 

amend at that time; is that correct?

MR. STRICKLIN: Correct.
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THE COURT: All right. So that matter will remain 

pending until the Court reviews — because I still have 

to review whether or not the evidentiary hearing will be 

granted, and then we can go from there.

MR. STRICKLIN: Okay.

The record affirmatively shows Stricklin was not seeking leave 

to immediately amend his postconviction motion in order to 

add factual allegations or include additional claims.20 Instead, 

he intended the motion to serve as a placeholder of sorts for a 

possible future motion to amend by appointed counsel. Given 

the conditional nature of Stricklin’s request, we find no abuse 

of discretion in denying the motion.

3. Failure to Seek Recusal

of Trial Judge

Stricklin’s postconviction motion alleges his trial counsel 

was ineffective for not moving to recuse the trial judge and 

for abandoning an opportunity to have an evidentiary hearing on such a motion. Stricklin alleges that during his trial, 

“individuals and spectators in the audience” noticed “favoritism” and “deference favoring the state prosecution to the point 

of no return.” Stricklin’s postconviction motion alleges these 

concerns were brought to the attention of his counsel, and he 

claims counsel was ineffective for failing to pursue recusal 

based on these concerns. His motion does not explain what 

gave rise to these concerns nor does he allege any supporting facts.

[12,13] To demonstrate prejudice from counsel’s failure to 

seek recusal, Stricklin must allege facts sufficient to demonstrate there was a reasonable probability such a motion would 

have been successful.21 To demonstrate that a trial judge 

20 Cf. State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010) (defendant 

requested leave to amend even if counsel was not appointed), disapproved, 

Robertson, supra note 19.

21 See, e.g., State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018) (unless 

motion to suppress would have been successful, it cannot be said counsel 

was deficient in failing to file such motion).
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should have recused himself or herself, the moving party must 

demonstrate that a reasonable person who knew the circumstances of the case would question the judge’s impartiality 

under an objective standard of reasonableness, even though 

no actual bias or prejudice was shown.22 A defendant seeking 

to disqualify a judge on the basis of bias or prejudice bears 

the heavy burden of overcoming the presumption of judicial impartiality.23

Here, Stricklin’s conclusory allegations of “favoritism” and 

“deference favoring the state” were insufficient to overcome 

the presumption of judicial impartiality and, without more, 

would not have required recusal. Moreover, the record affirmatively shows that when instructing the jury, the court specifically admonished it regarding such issues, explaining:

I am not permitted to comment on the evidence, and I 

have not intentionally done so. If it appears to you that I 

have commented on the evidence, during either the trial 

or the giving of these instructions, you must disregard 

such comment entirely.

You must not interpret any of my statements, actions, or 

rulings, nor any of the inflections of my voice as reflecting an opinion as to how this case should be decided.

[14] Because defense counsel is not ineffective for failing to 

raise an argument that has no merit,24 we find no error in the 

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

4. Jury Instructions

Stricklin argues his counsel was ineffective for failing to 

object to jury instructions Nos. 6, 11, 12, and 20. The district 

court denied Stricklin’s motion as to instructions Nos. 5, 11, 

and 12, because it found errors related to those instructions 

had been addressed and rejected on direct appeal. The court 

22 State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

23 Id.

24 State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
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denied Stricklin’s motion as to instruction No. 20, because it 

found Stricklin failed to allege either what objection trial counsel should have made or what proposed alternative instruction 

should have been requested.

In his brief on appeal, Stricklin concedes that instruction No. 

5 was addressed in his direct appeal and he presents no further 

argument regarding that instruction or his assigned error for 

instruction No. 6. Stricklin also concedes instructions Nos. 

11 and 12 were addressed in codefendant Newman’s direct 

appeal, but Stricklin contends he is not procedurally barred 

from raising those claims on postconviction, because he had 

the same counsel at trial and on direct appeal.25 While it is true 

the claims of ineffective assistance premised on instructions 

Nos. 11 and 12 are not procedurally barred, Stricklin presents 

the same arguments regarding those instructions that Newman 

raised on direct appeal. And, in State v. Newman,

26 our opinion resolving Newman’s direct appeal, we found such claims 

were meritless:

Instruction No. 11 provided the jury with definitions. 

Newman contends that the instruction was erroneous for 

omitting the phrase “‘or intentional manslaughter,’” as 

stated in the pattern jury instruction. He does not identify the erroneous definition or the relevant pattern jury 

instruction, but we presume that he refers to the definition 

of “‘[a] felony.’” Notwithstanding any error in that definition, the jury correctly understood that the offense of 

attempted intentional manslaughter constituted a felony. 

The jury found Newman guilty of attempted intentional 

manslaughter and the corresponding charge of use of a 

deadly weapon to commit a felony.

As to instruction No. 12, Newman contends that the 

instruction failed to correctly charge the jury on intent. 

However, instruction No. 12 was modeled on the relevant 

25 See McKinney, supra note 12.

26 State v. Newman, 290 Neb. 572, 585, 861 N.W.2d 123, 135 (2015).
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pattern jury instruction. As such, the instruction was 

not erroneous.

None of Newman’s allegations of error in the instructions given to the jury caused him prejudice. Thus, the 

record affirmatively establishes that this claim of ineffective assistance of counsel is without merit.

Our reasoning in Newman shows that if Stricklin’s counsel 

had challenged jury instructions Nos. 11 and 12, that challenge 

would likewise have been meritless. Because Stricklin’s counsel cannot be ineffective for failing to raise an argument that 

has no merit,27 the district court correctly denied postconviction 

relief on the claim involving instructions Nos. 11 and 12.

With respect to instruction No. 20, Stricklin alleges his 

counsel should have asked the court for a limiting instruction informing the jury that the records of Newman’s cell 

phone use could not be considered in Stricklin’s case. But in 

Stricklin’s direct appeal, we specifically held Newman’s cell 

phone records were admissible evidence against both Stricklin 

and Newman.28 And we rejected the suggestion that a limiting 

instruction was necessary regarding an exhibit showing calls to 

Newman’s cell phone and the location of the cell tower used 

to service those calls.29 Because it would not have been error 

to deny such a limiting instruction if counsel had requested it, 

Stricklin’s allegations of ineffective assistance as to instruction 

No. 20 were also insufficient to warrant an evidentiary hearing. We find no error in the postconviction court’s denial of 

this claim without an evidentiary hearing.

5. Alibi Defense

Stricklin alleges his counsel was ineffective for failing to 

file notice of and present an alibi defense. In his postconviction 

27 See Vo, supra note 24.

28 Stricklin, supra note 1, 290 Neb. at 552, 861 N.W.2d at 381 (“the evidence 

of Newman’s cell phone records and exhibit 288 would have been 

relevant, admissible in a separate trial against Stricklin”).

29 Id.
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motion, Stricklin alleges that at 10 a.m. on the day of the 

crimes, he took his stepson to a barber shop in downtown 

Omaha, Nebraska. He further alleges they left the barber shop 

around noon and drove to Stricklin’s grandmother’s house 

“located on 36th and Himebaugh.” He alleges he took the 

“North freeway” en route to his grandmother’s house and that 

during the drive, he made a call on his cell phone at 12:34 p.m. 

The postconviction motion does not allege how long Stricklin 

stayed at his grandmother’s house, but it does allege that four 

named witnesses would corroborate this alibi. The motion further alleges Stricklin’s cell phone records would corroborate 

this alibi.

The district court found these allegations were insufficient 

to warrant an evidentiary hearing, because they did not “definitively state [Stricklin] was not at the murder scene and merely 

suggest [Stricklin] may have been at these other places at some 

point in the day.” Stricklin’s brief concedes his motion did 

not affirmatively allege he was not at the crime scene, but he 

contends it was sufficient to describe that he was somewhere 

else at the time the State claims the shootings occurred and 

to allege that numerous alibi witnesses would corroborate 

that claim.

[15] At trial, the State relied on cell phone evidence linking 

Stricklin and Newman to the crime scene between 11:42 a.m. 

and 12:36 p.m. Thus, based on the State’s theory of the case, 

the crimes occurred during the general time period Stricklin 

has alleged alibi witnesses would confirm he was someplace 

else. Stricklin alleges his counsel knew of this alibi information and was deficient in failing to present it. Stricklin’s brief 

acknowledges that trial counsel is afforded due deference to 

formulate trial strategy and tactics and that there is a strong 

presumption that counsel acted reasonably.30 But he argues 

that the reasonableness of trial counsel’s strategy in rejecting 

his alibi defense cannot be determined without an evidentiary 

hearing. We agree.

30 See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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We find Stricklin has alleged facts which, if proved, are 

sufficient to show both deficient performance and prejudice 

regarding his alibi defense. Stricklin is entitled to an evidentiary hearing on whether trial counsel was ineffective for failing to file notice of and present evidence of his alibi defense.

6. Closing Arguments/Mistrial

Stricklin alleges his trial counsel was ineffective for failing 

to move for mistrial based on prosecutorial misconduct. His 

motion alleges two instances of alleged misconduct, but he 

argues only one of them on appeal, so we limit our analysis to 

that instance.31

During closing arguments, Stricklin’s counsel referred to 

cell phone records showing Stricklin’s cell phone neither made 

nor received any calls between 11:13 a.m. and 12:34 p.m. 

During his closing argument, defense counsel suggested the 

lack of calls during that timeframe was because Stricklin was 

driving. In the prosecutor’s rebuttal, she responded to that 

argument, stating:

At 11:13 . . . Stricklin has no more calls. From 11:13 until 

12:34, he has no more calls. And the call that he wants 

you to believe he’s traveling while it’s being made, that 

call wasn’t answered at 12:34. Why are there no more 

calls? The two of them are together. And in my mind 

. . . Stricklin turned his phone off. He had no incoming or 

outgoing calls at all between 11:13 and 12:34.

In response to this statement, Stricklin’s attorney objected, 

stating, “That’s not in evidence.” The prosecutor countered 

that the cell phone records were in evidence, and the trial court 

overruled the objection.

In Stricklin’s direct appeal, he alleged the prosecutor’s 

comments amounted to prosecutorial misconduct. We found 

Stricklin had not preserved the issue for appellate review 

31 See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018) (errors 

must be both specifically assigned and specifically argued to be considered 

by appellate court).
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because his counsel had not requested a mistrial based on the 

prosecutor’s comments.32 Now, in his postconviction motion, 

Stricklin alleges his trial counsel was ineffective for failing to 

move for a mistrial and thus preserve for appellate review the 

issue of prosecutorial misconduct.

The district court denied postconviction relief on this claim 

without an evidentiary hearing, finding the prosecutor’s comments did not mislead or unduly influence the jury and further 

finding that any resulting prejudice was not substantial enough 

to damage the integrity, reputation, or fairness of the judicial 

process. We agree.

[16] Prosecutors generally may not give their personal opinions on the veracity of a witness or the guilt or innocence of 

the accused.33 The principle behind this rule is that the prosecutor’s opinion carries with it the imprimatur of the government 

and may induce the jury to trust the government’s judgment 

rather than its own view of the evidence.34 We have emphasized the importance of this rule and have admonished prosecutors to avoid using phrases such as “‘I believe’” or “‘the State 

believes’”35 when arguing their case to the jury.

But here, to the extent Stricklin suggests the prosecutor’s 

remark “in my mind” was an attempt to express a personal 

opinion, it was not one relating to the veracity of a witness or 

to Stricklin’s guilt or innocence. Rather, the prosecutor was 

responding to an argument advanced by defense counsel on the 

possible interpretation of cell phone evidence. While prosecutors would be wise to avoid language expressing their personal 

opinion on any matter, the statement at issue here was not 

32 Stricklin, supra note 1.

33 State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). See, also, 

Neb. Ct. R. of Prof. Cond. § 3-503.4 (“[a] lawyer shall not . . . in trial . . .

state a personal opinion as to the justness of a cause, the credibility of a 

witness, the culpability of a civil litigant or the guilt or innocence of an 

accused”).

34 Hernandez, supra note 33.

35 Id. at 928, 911 N.W.2d at 549.
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misconduct. Thus, Stricklin’s trial counsel was not deficient 

for failing to move for a mistrial based on the remark. The district court correctly denied postconviction relief on this claim 

without an evidentiary hearing.

7. Same Claims as Newman

Stricklin raises several claims of ineffective assistance of 

counsel that are identical, or nearly identical, to claims raised 

by Newman in his motion for postconviction relief. These 

claims relate to: trial counsel’s failure to object during the 

motion for new trial, trial counsel’s failure to obtain a crime 

scene investigator, and trial counsel’s failure to challenge the 

authentication of Newman’s cell phone records. These assignments of error are analyzed, and rejected, in State v. Newman,

36

our opinion resolving Newman’s appeal of his postconviction 

motion. We briefly address them here as well.

(a) Failure to Object During 

Motion for New Trial

Stricklin, like codefendant Newman, alleges his trial counsel 

should have objected when an attorney appointed to represent 

a juror accused of misconduct made a substantive representation about the juror’s knowledge at a particular point in time, 

instead of eliciting such information from his client. Stricklin 

alleges that due to his counsel’s deficient performance in not 

objecting to the remark, the juror’s attorney was permitted to 

testify on behalf of his client and Stricklin was deprived of the 

opportunity to confront and cross-examine the juror. As we 

concluded in Newman’s case, the files and records affirmatively refute this claim.

The record shows Stricklin and Newman both filed motions 

for new trial on the basis of juror misconduct, and the motions 

were heard together. Although Stricklin’s counsel did not 

object to the substantive remark make by the juror’s attorney, 

Newman’s trial counsel did object, and argued the juror’s 

36 State v. Newman, ante p. 770, ___ N.W.2d ___ (2018).
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attorney should not be permitted to testify for his client. The 

court agreed and subsequently allowed both Stricklin and 

Newman 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.

Thus, although Stricklin’s counsel did not join in the objection raised by Newman’s counsel, Stricklin can show no prejudice resulting from this failure. The files and records affirmatively refute his claim that he was denied an opportunity to 

question the juror directly, and the postconviction court did not 

err in denying an evidentiary hearing on this issue.

(b) Crime Scene Investigator

Stricklin alleges his trial counsel was ineffective in failing 

to hire a crime scene investigator to rebut Herrera-Gutierrez’ 

testimony. Stricklin’s allegations are nearly identical to those 

made by Newman in his motion for postconviction relief. And 

Stricklin’s allegations fail for the same reasons articulated in 

our opinion analyzing Newman’s claims.

Stricklin alleges his trial counsel was “content to crossexamine” the State’s witnesses and was deficient for not hiring 

a crime scene investigator or specialist to refute the evidence 

regarding footprints and blood splatter, and to do additional 

DNA testing. But Stricklin’s postconviction 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.

[17] 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.37 The district court correctly concluded 

that Stricklin’s conclusory allegations about the failure to 

37 State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
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hire a crime scene investigator did not warrant an evidentiary hearing.38

(c) Cell Phone Records

Stricklin alleges his counsel was ineffective for failing to 

object to the authenticity of the cell phone records received 

into evidence at trial. Stricklin alleges that if his attorney had 

objected to the cell phone evidence on the ground of “authentication of who was actually using the cellphones in question,” the corroborative cell phone evidence would have been 

excluded. Stricklin’s allegations are nearly identical to those 

made by Newman in his motion for postconviction relief, and 

they fail for the same reason.

As we discussed in Newman, the files and records affirmatively show an authentication objection would not have been 

successful and, therefore, Stricklin’s counsel could not have 

been ineffective for failing to make such an objection.39 The 

district court correctly denied postconviction relief on this 

claim without an evidentiary hearing.

8. Motion for New Trial

Stricklin alleges his trial counsel was ineffective in handling 

his motion for new trial. He alleges counsel was deficient in 

two respects: (1) abandoning certain grounds that had been 

alleged in the motion and (2) failing to adduce certain evidence 

at the hearing.

(a) Abandoned Arguments

Stricklin alleges his trial counsel filed a motion for new trial 

alleging juror misconduct, irregularities in the proceedings, the 

verdict was not supported by sufficient evidence, the verdict 

was contrary to law, error in the jury instructions, and failure 

to sustain his motion for directed verdict. At the hearing on 

the motion for new trial, counsel argued only the issue of juror 

38 See id.

39 See, Newman, supra note 36; Vo, supra note 24.
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misconduct. Stricklin alleges his counsel abandoned the other 

arguments out of “neglect and inattention,” and he alleges generally that if the other grounds had been pursued they would 

have been meritorious.

Stricklin’s conclusory allegation that the abandoned arguments would have been meritorious is not supported by any 

factual allegations and is insufficient to show either deficiency 

in performance or resulting prejudice. The district court did not 

err in denying postconviction relief on this claim without an 

evidentiary hearing.

(b) Failure to Call 

Additional Witness

As noted, Stricklin’s motion for new trial was premised on 

juror misconduct when, after the first day of deliberation, a 

juror made a telephone call to his brother and discussed the 

status of his vote. Stricklin alleges his counsel performed 

deficiently during the hearing on his motion.

At the hearing on the motion for new trial, portions of 

an affidavit from the juror were admitted into evidence and 

the juror was questioned by counsel for both Stricklin and 

Newman. The juror admitted he had telephoned his brother 

during an evening recess from deliberations. The juror told 

his brother, who lives in Georgia, that he was a juror in 

a murder trial, that he was the only juror wanting to vote 

“not guilty,” and that he did not know what he was going to 

do. During the conversation with his brother, the juror also 

learned that his father was an acquaintance of Stricklin and 

Newman. Eventually, the jury returned a unanimous verdict 

of guilt.

After this hearing, the district court found the juror had 

committed misconduct, but that Stricklin had not been prejudiced by the misconduct. On direct appeal, we agreed, 

reasoning:

[W]e agree with the district court that Stricklin was 

not prejudiced by the extraneous information received 

by the juror during the telephone call to his brother. 
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Whether prejudice resulted from jury misconduct must 

be resolved by the trial court’s drawing reasonable inferences as to the effect of the extraneous information on an 

average juror. The test to determine whether extraneous 

material was prejudicial looks to the possible effect of 

the extraneous material on an average juror’s deliberative process.

The extraneous information received by the juror 

would not have affected an average juror’s deliberative 

process. The district court determined that the juror had 

testified credibly that his brother informed him only that 

his father and [Stricklin and Newman] had a neutral 

acquaintance. . . . We agree with the district court that 

such knowledge of a neutral family acquaintance would 

not motivate an average juror to change his vote from not 

guilty to guilty.40

In his postconviction motion, Stricklin alleges his counsel 

was ineffective because he asked objectionable questions about 

the juror’s thought process and he “should have known better.” He also alleges his attorney was deficient for not calling 

the juror’s brother as a witness during the hearing. Because 

Stricklin’s brief argues only the latter allegation, we limit our 

analysis accordingly.41

Stricklin alleges that if his attorney had called the juror’s 

brother to testify, the brother would have established that (1) 

the juror was aware before beginning deliberations that his 

family knew Stricklin and Newman and (2) the juror’s father 

once injured his shoulder in an altercation with Newman. 

The district court found this alleged testimony, even if 

proved, would have been cumulative to similar testimony 

adduced during the hearing, so any deficiency could not 

have prejudiced Stricklin. Our de novo review leads us to the 

same conclusion.

40 Stricklin, supra note 1, 290 Neb. at 569-70, 861 N.W.2d at 391-92.

41 See Fetherkile, supra note 31.
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Several individuals testified at the hearing on the motion 

for new trial, including the juror accused of misconduct and 

the private investigator hired by the defense. Stricklin and 

Newman also testified via an offer of proof. The private investigator testified the juror had told him that the day before deliberations began, he started thinking he might know Stricklin and 

Newman, because he recognized some people in the gallery, 

and that was one of the reasons he called his brother. Newman 

testified that he knew the juror’s family but had not recognized the juror. Newman also described an altercation with the 

juror’s father: “It was just once. Me and him was wrestling 

around, and I hip tossed him and threw his shoulder out of 

a socket.”

Because the purported testimony of the juror’s brother would 

have been cumulative to other similar testimony, any deficient 

performance by trial counsel in not calling the brother did not 

result in prejudice to Stricklin. The district court did not err in 

denying this claim without an evidentiary hearing.

9. Failure to Investigate

Stricklin alleges that despite his request, trial counsel failed 

to “independently interview, depose, subpoena, or contact” various witnesses. In this regard, Stricklin presents some claims 

which are nearly identical to Newman’s, and other claims 

which Newman did not raise.

[18,19] A defense attorney has a duty to make reasonable 

investigations or to make a reasonable decision that makes 

particular investigations unnecessary.42 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.43 Strategic decisions made by 

trial counsel will not be second-guessed so long as those decisions are reasonable.44

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

43 Id.

44 Id.
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(a) Same Witnesses 

as Newman

Stricklin alleges his counsel failed to “independently interview, depose, subpoena, or contact” many of the same potential 

witnesses identified in Newman’s postconviction motion. Like 

Newman, Stricklin alleges these witnesses would have testified 

to hearing that unnamed “Mexicans” or “Latino’s” had killed 

Noriega and Morales; to hearing gunshots near the crime scene 

around 1:15 p.m. on the day of the shootings; to observing two 

men standing in a parking lot near the crime scene around 1 

p.m. on the day of the shootings; to being scared of HerreraGutierrez and not believing his story “add[ed] up”; to observing Herrera-Gutierrez “acting crazy” on the day of the shootings; and to the belief that Noriega and Morales were “killed 

over drugs.”

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

deposing or subpoenaing any of these witnesses would have 

produced a different outcome at trial. For the same reason, 

we found these allegations insufficient to show prejudice in 

Newman’s postconviction case, we find them insufficient in 

Stricklin’s case.

Considering the alleged testimony of these potential witnesses in the context of all the evidence adduced at trial, we 

conclude the 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 the claims involving these witnesses without 

an evidentiary hearing.

(b) Police Investigation

Stricklin’s motion alleges his counsel did not investigate 

“irregularities” in the police investigation. He alleges the 

lead detective told crime scene technicians not to preserve 

blood evidence, gave false testimony at the suppression hearing, failed to check Herrera-Gutierrez’ fingerprints against 
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crime scene prints, and would unexpectedly show up at the 

jail while Stricklin was meeting with his trial counsel, which 

Stricklin alleged was an attempt to intimidate him.

Stricklin has not alleged which witnesses would have testified to these irregularities, nor has he alleged how his counsel’s 

failure to investigate any of these alleged actions prejudiced 

his defense. For these reasons, we find no error in the district 

court’s denial of an evidentiary hearing on this claim.

(c) Other Possible Suspects

Stricklin’s postconviction motion also alleges his counsel 

failed to investigate and present evidence of two other potential suspects: Marcus Jefferson and James Moore.

Stricklin alleges that 2 days after the shooting, his half 

brother, Marcus Jefferson, told him that Morales had been 

“murdered by a guy named James Moore” because Morales 

had sold Moore “bad drugs” and refused to correct the problem 

or refund the money. Stricklin alleges he told his counsel about 

this discussion but counsel failed to investigate Moore as a 

potential suspect.

Stricklin also alleges he asked his counsel to investigate 

Jefferson as a potential suspect. Stricklin alleges he told his 

counsel that after the shootings, Jefferson seemed to know 

details of the crime that were not yet public. He also alleges 

Jefferson had a motive to murder Morales, because Morales 

owed Jefferson “alot [sic] of money” as a result of a fire in 

Morales’ shop that destroyed Jefferson’s “show car.”

Stricklin’s motion generally suggests that if his counsel 

had investigated this information, Jefferson and Moore would 

have been identified as suspects and the result of the trial 

would have been different. We conclude these allegations 

are sufficient, if proved, to allege both deficient performance 

and prejudice. Thus, Stricklin is entitled to an evidentiary 

hearing on his allegation that counsel was ineffective for 

failing to investigate the information related to Jefferson 

and Moore.
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10. Motion in Limine and

Confidential Informant

Stricklin alleges his trial counsel was ineffective when he 

failed to “contact, interview, or depose” a confidential informant. Details relating to the confidential informant are set forth 

in our opinion on Stricklin’s direct appeal.45

The parties learned, summarized, that a confidential informant had told police that 1 week before the crimes occurred, 

Morales told the informant he wanted to obtain firearms, 

because he was “having problems with two black males,” one 

of whom was nicknamed “‘Sip.’”46 The informant told police 

he was not sure of the origin of Morales’ problems with the 

men but believed it possibly arose from a “‘drug tax’” for selling drugs in the neighborhood.47

Both Stricklin and Newman filed motions in limine asking 

the court to allow the police detective to testify about the confidential informant’s statements. The district court overruled 

the motions in limine, finding the evidence was inadmissible 

hearsay. On Stricklin’s direct appeal, we affirmed, reasoning 

the proffered testimony involved two layers of hearsay and did 

not fall under any of the exceptions argued to and considered 

by the trial court.48

In his postconviction motion, Stricklin alleges that after 

learning the identity of the confidential informant, his counsel 

failed to contact that informant or otherwise investigate what 

the informant had told police. Stricklin also alleges that he 

asked his counsel to show the confidential informant a photograph of “Sip” to confirm his identity. Stricklin alleges counsel 

never did so and, if he had, could have obtained enough corroborating evidence of trustworthiness so that the testimony of 

45 Stricklin, supra note 1.

46 Id. at 553, 861 N.W.2d at 382.

47 Id. at 554, 861 N.W.2d at 382.

48 Id.
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the confidential informant would have been admissible under 

the residual hearsay exception.49

Stricklin’s argument appears to misunderstand the nature 

of the hearsay issue presented on direct appeal. In that 

appeal, we focused on the admissibility of Morales’ statements that he was seeking firearms because he was having 

issues with “Sip.” We held that such a statement was not 

against Morales’ penal interest50 and was not admissible under 

the residual hearsay exception.51 With respect to the latter, we 

reasoned Morales’ statements did not necessarily motivate 

him to speak truthfully, the statements were not made under 

oath, Morales was not subject to cross-examination, and there 

was no evidence he subsequently reaffirmed the statements.52

We also reasoned that Morales’ statements established only 

that Morales was having trouble with other persons—it did 

not establish that Stricklin and Newman were innocent of 

the crimes.

None of the allegations Stricklin makes in his motion would 

affect this analysis. We find the files and records affirmatively 

show counsel was not ineffective in this regard. Accordingly, 

the district court did not err in denying postconviction relief 

without an evidentiary hearing on this issue.

11. Advising Stricklin

Not to Testify

[20] Stricklin alleges his counsel was ineffective for advising him not to testify. Defense counsel’s advice to waive the 

right to testify can present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant shows 

that counsel interfered with his or her freedom to decide to 

49 See, Neb. Rev. Stat. §§ 27-803(23) and 27-804(2)(e) (Reissue 2016); State 

v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).

50 See § 27-804(2)(c).

51 See § 27-804(2)(e).

52 Stricklin, supra note 1.
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testify or (2) if counsel’s tactical advice to waive the right 

was unreasonable.53

Stricklin waived his right to testify in open court, and he 

makes no claim that his waiver was not free and voluntary or 

that counsel interfered with his freedom to decide whether to 

testify. Instead, he alleges his attorney’s advice not to testify 

was legally unreasonable and thus deficient, because it was 

incorrect to suggest he could have been asked about details of 

his prior crimes.

Specifically, Stricklin alleges he chose not to testify based 

on counsel’s advice that if he testified, the State could adduce 

evidence that he went to prison for “selling drugs” and he 

would be “‘opening up a can of worms.’” He alleges this 

advisement was inaccurate and suggests his attorney should 

have advised him that if he testified, the jury could learn he 

was a convicted felon but that details of his prior crimes would 

be inadmissible.54

Stricklin’s postconviction motion does not allege what his 

testimony would have been at trial or how it would have 

changed the outcome of the trial. Instead, he alleges he was 

prejudiced because there was evidence the jury convicted him 

due to his silence. In support of such a contention, he points to 

one paragraph in the affidavit of the juror accused of misconduct. In that paragraph, the juror avers he changed his vote to 

guilty “primarily because [Stricklin and Newman] did not testify and attempt to clear their names.” The trial court sustained 

the State’s objection to this paragraph and struck it pursuant 

to Neb. Rev. Stat. § 27-606(2) (Reissue 2016). We express no 

opinion on whether an inadmissible averment in a juror’s affidavit can ever support a showing of prejudice under Strickland, 

because we conclude, under the first prong of Strickland, that 

counsel’s advice was not deficient.

53 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

54 See Neb. Rev. Stat. § 27-608(2) (Reissue 2016).
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The State points out that at the time of Stricklin’s trial, the 

law was unclear as to whether Stricklin could have been crossexamined under § 27-608(2) about the details of his prior 

felony drug conviction, and thus, the advice counsel gave 

him was not unreasonable. In fact, we addressed the interplay between § 27-608 and Neb. Rev. Stat. § 27-609 (Reissue 

2016) for the first time in Stricklin’s direct appeal, noting it 

appeared there had been confusion on that issue and we had 

not previously addressed it.55

After analyzing federal court decisions involving the federal equivalent to §§ 27-608(2) and 27-609, we held that 

when impeaching a witness pursuant to § 27-609, once the 

conviction is established, the inquiry must end there and 

it is improper to inquire into the details.56 And we held 

that although § 27-608(2) permits questioning during crossexamination on specific instances of prior conduct, those 

instances are limited to conduct not resulting in a prior 

conviction.57

At the time Stricklin’s counsel advised him, this court had 

not yet addressed the interplay between §§ 27-608(2) and 

27-609. Thus, the tactical advice of Stricklin’s counsel was, at 

the time, not unreasonable and the district court did not err in 

denying this claim of ineffective assistance without an evidentiary hearing.

12. Insufficiency of Evidence

and Lack of Identification

Stricklin alleges his counsel was ineffective because, on 

direct appeal, he failed to include assignments of error that (1) 

the evidence at trial was insufficient to support his convictions 

and (2) there was an unduly suggestive identification of him 

as the perpetrator. Stricklin alleges generally that these claims 

55 Stricklin, supra note 1.

56 Id.

57 Id.
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would have been meritorious if raised and further alleges that 

counsel refused to raise these claims even though Stricklin 

“beg[ged]” him to. The record and files affirmatively refute 

these claims.

(a) Identification

Although Stricklin’s counsel did not argue on direct appeal 

that the pretrial identification procedure was unduly suggestive, the procedure was similar for both Stricklin and 

Newman. Newman did present such a claim on direct appeal, 

and we concluded it lacked merit.58 Thus, Stricklin’s appellate counsel could not have been ineffective in failing to raise 

this claim.59

(b) Insufficient Evidence

Stricklin alleges his counsel was deficient in failing to 

assign, on direct appeal, that the evidence was insufficient 

to prove guilt beyond a reasonable doubt, because HerreraGutierrez’ testimony was not credible and was uncorroborated 

by forensic or circumstantial evidence. Newman raised the 

same claim in his direct appeal, and we found it lacked merit, 

reasoning:

Newman’s arguments invite us to exceed the scope 

of our appellate review. We decline to do so. We have 

repeatedly stated that an appellate court does not resolve 

conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the 

finder of fact. From the jury’s verdicts, it is apparent that 

the jury found Herrera-Gutierrez to be credible. It is not 

the province of this court to question that determination. 

This assignment of error is without merit.60

58 Newman, supra note 26.

59 See, Fetherkile, supra note 31; State v. McLeod, 274 Neb. 566, 577, 741 

N.W.2d 664, 674 (2007) (“[d]efense counsel is not ineffective for failing 

to raise an argument that has no merit”).

60 Newman, supra note 26, 290 Neb. at 582, 861 N.W.2d at 133-34.
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The same analysis applies here. Thus, if Stricklin’s counsel 

had assigned error to the sufficiency of the evidence on direct 

appeal, the assignment would have been meritless. The district 

court did not err in denying postconviction relief without an 

evidentiary hearing on this claim.

13. Failure to Obtain

Record for Appeal

Stricklin alleges his counsel was ineffective on direct appeal 

because he failed to include a complete transcript in the appellate record. Specifically, Stricklin argues his attorney failed to 

include two items in the appellate transcript: (1) his motion to 

sever and (2) a supplemental jury instruction.

Stricklin’s postconviction motion does not allege how these 

omissions affected the outcome of his appeal. His allegations are therefore insufficient to allege prejudice and do not 

warrant an evidentiary hearing. The district court correctly 

denied postconviction relief on these claims without an evidentiary hearing.

14. Actual Innocence

Stricklin alleges he is entitled to postconviction relief 

because he is actually innocent. He alleges all of his allegations 

of ineffective assistance of counsel support this claim, and he 

also alleges that the evidence adduced was so lacking in credibility that it cannot be used to establish his guilt.

[21] Newman made essentially the same allegations and 

raised the same argument in his appeal from the district court’s 

denial of an evidentiary hearing on his motion for postconviction relief. As we noted in our resolution of Newman’s 

appeal, the threshold showing that must be made to entitle a 

prisoner to an evidentiary hearing on a postconviction claim 

of actual innocence is extraordinarily high, because after a fair 

trial and conviction, the presumption of innocence vanishes.61

61 Newman, supra note 36, citing State v. Dubray, 294 Neb. 937, 885 N.W.2d 

540 (2016).
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Stricklin’s allegations, like those made by Newman, largely 

attack the weight of the evidence used against him and do 

not meet the high threshold. The district court did not err in 

denying postconviction relief on this claim without an evidentiary hearing.

V. CONCLUSION

The district court properly denied an evidentiary hearing 

on most of Stricklin’s allegations, as Stricklin either failed 

to make sufficient factual allegations to support his claims 

or the files and records affirmatively show he is not entitled 

to relief.

However, Stricklin is entitled to an evidentiary hearing on 

his claims that trial counsel (1) failed to file notice of and 

present evidence of his alibi defense and (2) failed to investigate information regarding potential suspects Jefferson and 

Moore.

We thus affirm in part, and in part reverse and remand for 

an evidentiary hearing limited to these two claims.

 Affirmed in part, and in part reversed

and remanded with directions.

Heavican, C.J., not participating.