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State of Nebraska, appellee, v. 

Tracy N. Parnell, appellant.

___ N.W.2d ___

Filed May 29, 2020. No. S-19-425.

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

from postconviction proceedings, an appellate court reviews de novo 

a determination that the defendant failed to allege sufficient facts to 

demonstrate a violation of his or her constitutional rights or that the 

record and files affirmatively show that the defendant is entitled to 

no relief.

2. Postconviction: Judgments: Appeal and Error. Whether a claim raised 

in a postconviction proceeding is procedurally barred is a question of 

law which is reviewed independently of the lower court’s ruling.

3. Postconviction. Postconviction relief is a very narrow category of 

relief.

4. Postconviction: Appeal and Error. A motion for postconviction relief 

cannot be used to secure review of issues which were or could have 

been litigated on direct appeal.

5. Postconviction: Proof. 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.

6. ____: ____. In the absence of alleged facts that would render the judgment void or voidable, the proper course is to overrule a motion for 

postconviction relief without an evidentiary hearing.

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

of ineffective assistance of appellate counsel which could not have been 

raised on direct appeal may be raised on postconviction review.

8. ____: ____: ____. When a person seeking postconviction relief has 

different counsel on appeal than at trial, the motion for postconviction 

Nebraska Supreme Court Online Library

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

08/21/2020 12:08 AM CDT
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relief is procedurally barred if the person seeking relief (1) knew of the 

issues assigned in the postconviction motion at the time of the direct 

appeal, (2) failed to assign those issues on direct appeal, and (3) did not 

assign as error the failure of appellate counsel on direct appeal to raise 

the issues assigned in the postconviction motion.

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

Error. 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 per

formance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense. 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. 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.

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

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

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

at whether trial counsel was ineffective under the two-part test for ineffectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective, 

then the defendant was not prejudiced by appellate counsel’s failure to 

raise the issue.

11. ____: ____. Much like claims of ineffective assistance of trial counsel, 

a defendant claiming ineffective assistance of appellate counsel must 

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

reasonable probability that the outcome would have been different.

Appeal from the District Court for Douglas County: Gary 

B. Randall, Judge. Affirmed.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

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

for appellee.

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

and Papik, JJ.
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Funke, J.

Tracy N. Parnell appeals from the denial of postconviction relief without an evidentiary hearing. Parnell asserts that 

the trial court erred in determining that his claims of ineffective assistance of appellate counsel are procedurally barred. 

Although we agree that one of Parnell’s claims is not procedurally barred, we nonetheless conclude that Parnell is not entitled 

to relief. We therefore affirm.

BACKGROUND

Convictions and Sentences

In State v. Parnell,

 1 this court affirmed Parnell’s jury trial 

convictions of first degree murder, attempted first degree murder, two counts of use of a deadly weapon to commit a felony, 

and possession of a weapon by a prohibited person. The district 

court for Douglas County sentenced Parnell to life imprisonment on the murder conviction, 40 to 50 years’ imprisonment 

for attempted first degree murder, 40 to 50 years’ imprisonment 

for each count of use of a deadly weapon to commit a felony, 

and 3 to 20 years’ imprisonment for possession of a weapon by 

a prohibited person, to be served consecutively, with credit for 

time served. The facts which resulted in Parnell’s convictions 

are set forth in our opinion on direct appeal.

On October 30, 2012, at around 8:14 p.m., Eriana Carr and 

Nakia Johnson were shot in Omaha, Nebraska. Carr was shot 

twice and died from her injuries. Johnson was shot 11 times 

and survived. Johnson told investigators that the shots came 

from “a blue Nissan Altima with a messed up front bumper.” 

Johnson stated that Parnell and three others threatened her at 

a party at her friend’s apartment 2 days before the shooting, 

because “they felt like [she] had brought someone into the 

house from another side,” or “[a]nother hood.”

Detectives discovered that Parnell had been stopped while 

driving a blue Nissan Altima several months earlier. The 

1 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
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registered owner of the car was Jasmine Nero, the mother of 

Parnell’s child. When interviewed by investigators, Parnell 

denied any knowledge of an Altima and stated that he never 

drove any of Nero’s vehicles.

Parnell spoke to Nero about the Altima in a call from jail. 

Nero testified that she understood from that call that Parnell 

wanted her “to get rid of” the car. Nero moved the car to 

a garage, where investigators later found it. The car’s front 

bumper was damaged, and it contained a box with Parnell’s 

thumbprint on it.

Pretrial Discovery

Prior to trial, Parnell filed a motion to exclude the State’s 

expert witness William Shute, a special agent with the Federal 

Bureau of Investigation (FBI) and a member of the FBI’s 

“Cellular Analysis Survey Team” who performs “historical 

cell site analysis” using call detail records provided by cellular carriers. Shute explained that call records show the tower 

and the sector that a particular cell phone used. Cell towers 

usually have three sectors. The towers and sectors can be 

plotted on a map in order to locate a cell phone at a particular time.

Shute testified regarding the locations of Parnell’s cell phone 

around the time of the shooting. Parnell’s call detail records 

showed that his cell phone connected to tower: (1) 201 at 7:52 

p.m., (2) 729 at 8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20 

p.m., and (5) 201 at 8:20 p.m. Shute plotted the towers and 

their coverage areas on a map. He testified that the coverage 

areas for towers 201 and 729 overlap and that the way Parnell’s 

cell phone switched between towers 201 and 729 showed it 

was definitely located within the overlapping coverage area 

at the time of the shooting. The court overruled the motion to 

exclude, finding that Shute was qualified to testify as an expert 

and that his methods were reliable.

Parnell’s counsel later moved to exclude Shute’s testimony or 

continue trial based on the discovery of undisclosed evidence. 

Counsel filed an affidavit stating that he attended a seminar 
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with a presentation by cellular analyst Michael O’Kelly. The 

State had disclosed in discovery that O’Kelly had performed 

cell phone mapping services on the case for the Omaha Police 

Department (OPD). In response to a question from Parnell’s 

counsel, O’Kelly stated that he performed more services than 

disclosed in the report. In supplemental discovery, O’Kelly 

provided Parnell’s counsel with an affidavit detailing his interactions with the State, and the State disclosed a series of 

emails between O’Kelly, a detective of the OPD, and a deputy 

county attorney.

In the emails, the detective asked O’Kelly if he had a formal 

report to present to the county attorney. O’Kelly responded 

that he could do so in about 10 days. He stated, “Remember, 

if it’s in writing it’s Discoverable[.] I would recommend the 

county attorney and I visiting and then letting them decide.” 

O’Kelly then later wrote to the deputy county attorney, “It was 

a pleasure visiting Friday[.] I am sending the cell maps and my 

cell forms, guides and CV[.] When you have a moment after 

reviewing these, call and I will walk you through each.”

In his affidavit, O’Kelly stated that he “reviewed the . . . 

call detail records and concluded that [Parnell’s cell phone] 

appeared to travel from the west side of Omaha [where Parnell 

lived] to the east side, then north and south and then traveling back to the general area on the west side.” O’Kelly said 

that he “began processing and mapping the individual cell 

site registrations. The handset transition west to east, north/

south and east to west activities were confirmed.” He then 

provided the OPD detective with “multiple maps depicting 

handset movements consistent with cell site registrations that 

supported physical movement from Omaha’s west side to the 

east side and possible travel movements north and south on the 

east side.”

O’Kelly also stated that he informed the detective that “it 

is impossible to identify a specific location stop(s), specific 

surface roadway travels based upon the existing cellular data.” 

He stated that “drawing circles and other shapes with defined 
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boundaries is unreliable and at best simple guessing with an 

agenda. The ‘guessing’ may be based upon experience and 

training but will still have no foundation and/or credible support that is rooted with existing electronic wireless data.” 

And he stated that “in order to possibly place the subject 

[cell phone] in the immediate area of the crime scene . . . it 

will be necessary to conduct an RF Signal Field Survey.” He 

explained that his approach to performing such a survey, or 

drive test, “is time consuming and labor intensive covering 

days if not weeks.”

In his motion to exclude Shute’s testimony or continue trial, 

Parnell argued that the State failed to disclose O’Kelly’s opinions that a drive test was necessary and that the FBI’s methods 

were not reliable. In support of his motion, Parnell offered 

O’Kelly’s affidavit, but not the emails. The State responded 

that O’Kelly’s opinion was not exculpatory and that O’Kelly 

placed Parnell’s cell phone in the same area as Shute had, 

although O’Kelly was not as specific. The court overruled the 

motion, finding the evidence was not exculpatory and had been 

provided at an early date. The court permitted Parnell to retain 

O’Kelly as an expert witness and allowed 12 days to prepare 

his testimony.

Before trial, Parnell renewed his motion to continue the trial, 

offering the email exchanges with O’Kelly as support. The 

court overruled the renewed motion.

Trial

At trial, Johnson testified and described the shooting, the 

blue Nissan Altima, and the threatening incident 2 days before 

the shooting. Nero testified regarding the Altima and her relationship with Parnell. Nero testified that she lied to police for 

Parnell and was charged as an accessory to a felony. Shute 

testified that towers 201 and 729 form an overlap area and that 

Parnell was within the overlap area at the time of the shooting. 

O’Kelly was present throughout the trial but did not testify. 

The jury returned a verdict of guilty on all counts.
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Motion for New Trial

Parnell timely moved for a new trial. He offered a second 

affidavit from O’Kelly which he contended showed proof of 

newly discovered evidence which could not have been discovered and produced at trial. O’Kelly averred that after his initial 

work on Parnell’s case, he “informed the government that additional field testing by means of a ‘drive test’ would be required 

in order to move from speculation to accuracy in the cell tower 

connection plotting.” A drive test involves making cell phone 

calls while driving and then obtaining call detail records to see 

which towers the cell phone used. Shute did not perform such 

a drive test.

O’Kelly began a drive test on the last day of the trial. He 

averred that the drive test revealed that the crime scene was 

between towers 201 and 729, which are 1.84 miles apart. The 

drive test showed that the coverage areas for towers 201 and 

729 do not overlap or border each other, as Shute claimed. 

O’Kelly stated that Parnell had to have left the crime scene in 

order to connect to tower 729. However, O’Kelly also said that 

the data showed that Parnell’s cell phone “was in the general 

vicinity (1 - 2 miles of the crime scene) before, during and 

after the shooting.”

The district court overruled the motion for new trial, finding 

that O’Kelly’s opinions could have been discovered and produced using reasonable diligence. In addition, the court found 

that Parnell could have disputed Shute’s testimony by calling 

O’Kelly as a witness. The court noted that the State had disclosed early in the discovery process that O’Kelly had worked 

on the case. Lastly, the court concluded that O’Kelly’s opinions 

were not material, because they would not have affected the 

outcome of trial. The court found that the drive test results 

“seem to incriminate [Parnell].”

Direct Appeal

On direct appeal, Parnell assigned that the district court 

erred in overruling his motion to exclude Shute’s testimony 
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or continue trial and his motion for a new trial. Parnell also 

claimed that his trial counsel was ineffective because he did 

not call O’Kelly to testify as an expert witness at trial.

We found no merit to any of Parnell’s assigned errors. We 

found that under Brady v. Maryland,

 2 the timing of the State’s 

disclosure of O’Kelly’s opinions did not violate Parnell’s 

right to due process because the State disclosed the evidence 

1 week before trial. We found that the State had no duty 

to disclose O’Kelly’s oral, unrecorded opinions under Neb. 

Rev. Stat. § 29-1912 (Reissue 2016), because his comments 

on the need for more data were akin to an internal, informal 

document and were not results or reports of examinations or 

scientific tests under § 29-1912(1)(e). We also found Parnell 

did not make it clear to the district court that O’Kelly required 

more than 12 days to perform a drive test. We therefore concluded that the district court did not abuse its discretion in 

overruling Parnell’s motion to exclude Shute’s testimony or 

continue trial.

We rejected Parnell’s argument that the court erred in overruling his motion for a new trial, finding that, even assuming 

O’Kelly’s opinions constituted newly discovered evidence, 

there was not a reasonable probability of a substantially different result. We found that even though O’Kelly criticized 

the precision of Shute’s opinions, O’Kelly’s opinions still 

incriminated Parnell, because O’Kelly placed Parnell’s cell 

phone within 1 to 2 miles of the crime scene before, during, and after the shooting. In addition, the incriminating 

testimony of Johnson and Nero substantially diminished the 

importance of the evidence regarding the location of Parnell’s 

cell phone.

In addressing Parnell’s argument that his trial attorneys 

were ineffective for failing to call O’Kelly to testify, we first 

addressed whether Parnell was represented by the same counsel at trial as on appeal and concluded that he was not. We 

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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found that the two attorneys who represented Parnell at trial 

intended to withdraw in the trial court, but because there was 

no order memorializing their withdrawal, they were certified 

as appellate counsel to this court, and that they did not then 

file a motion to withdraw in this court. In response to our 

show cause order, Parnell’s trial counsel submitted affidavits 

stating that they had no contact with him after sentencing 

and did not participate in his appeal. As such, we concluded 

that we were able to address Parnell’s ineffectiveness claim 

on direct appeal. We found that had O’Kelly testified, the 

outcome would not have been different, because he opined 

that Parnell’s cell phone was near the crime scene when the 

shooting occurred. We determined that the record conclusively 

refuted Parnell’s claim that he was prejudiced by the actions 

of his trial counsel.

Postconviction

As a self-represented litigant, Parnell filed a motion for 

postconviction relief which asserted claims of trial court error, 

prosecutorial misconduct, and ineffective assistance of trial 

and appellate counsel. Most of the allegations in Parnell’s 

motion concern issues previously raised and addressed on 

direct appeal, especially with regard to O’Kelly’s opinions and 

the drive test. Of particular note in this appeal, Parnell alleged 

that his trial counsel and appellate counsel failed to “submit” 

the email exchanges with O’Kelly to show that O’Kelly’s data 

is more reliable than Shute’s data. Parnell further alleged that 

the State committed prosecutorial misconduct by “allowing the 

testimony of Shute at trial knowing that his testimony as an 

expert was not accurate.” He alleged that, contrary to Shute’s 

testimony that cell towers 201 and 729 form an overlap area, 

O’Kelly opined that the cell tower areas do not overlap and that 

the performance of a drive test was required in order to obtain 

more accurate data. The district court dismissed the motion 

without an evidentiary hearing, concluding that all of Parnell’s 

claims are procedurally barred because they were known or 
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knowable at the time of his direct appeal. Parnell filed a notice 

of appeal. Parnell’s counsel entered his appearance and filed a 

brief on his behalf.

ASSIGNMENTS OF ERROR

Parnell assigns, restated, that the district court erred in 

determining that his claims for postconviction relief are procedurally barred; in particular, his claim in which he alleges 

that appellate counsel was ineffective by failing to raise trial 

counsel’s failure to “introduce certain evidence and correct 

prosecutorial misconduct.” In the alternative, Parnell assigns 

that the court erred in determining that any of his claims are 

procedurally barred because it was unclear as to whether he 

was represented by the same lawyers during trial and direct 

appeal.

STANDARD OF REVIEW

[1,2] 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. 3

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling. 4

ANALYSIS

Parnell argues that the district court erred in determining 

that all of his claims are procedurally barred, because his 

motion raises ineffective assistance of appellate counsel claims 

and postconviction is his first opportunity to raise such claims. 

The State does not contest this point, but argues that based on 

the ineffective assistance of appellate counsel allegations raised 

in the motion, Parnell is entitled to no relief.

3 State v. Hessler, ante p. 451, 940 N.W.2d 836 (2020).

4 State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019).
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[3,4] Under the Nebraska Postconviction Act, 5 a prisoner 

in custody may file a motion for relief on the ground that 

there was a denial or infringement of the prisoner’s constitutional rights that would render the judgment void or voidable. Postconviction relief is a very narrow category of relief. 6

A motion for postconviction relief cannot be used to secure 

review of issues which were or could have been litigated on 

direct appeal. 7

[5,6] 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. 8 In a motion for postconviction relief, the defend

ant must allege facts which, if proved, constitute a denial 

or violation of his or her rights under the U.S. or Nebraska 

Constitution. 9 In the absence of alleged facts that would render the judgment void or voidable, the proper course is to 

overrule a motion for postconviction relief without an evidentiary hearing. 10

Claims Procedurally Barred

Parnell contends that his claims of prosecutorial misconduct were not procedurally barred. However, we agree with 

the State that this portion of Parnell’s motion asserts in a conclusory fashion, without factual support, that he was denied 

ineffective assistance of appellate counsel. An evidentiary 

hearing is not required when a motion for postconviction 

5 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

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

7 Mata, supra note 4.

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

9 Id.

10 State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
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relief alleges only conclusions of fact or law without supporting facts. 11

Upon review of the allegations supporting Parnell’s prosecutorial misconduct claims, it is clear that he did not allege 

that his appellate counsel was ineffective for failing to raise on 

direct appeal that his trial counsel was ineffective for failing 

to raise the alleged prosecutorial misconduct with respect to 

Shute’s testimony. Additionally, he did not allege how inclusion of the issue would have changed the outcome of his direct 

appeal. Because Parnell’s prosecutorial misconduct claims do 

not include factual allegations concerning the effectiveness 

of appellate counsel, we do not view these claims as ineffective assistance of appellate counsel claims, and as a result, the 

district court did not err when it determined these claims were 

procedurally barred.

Claim Not Procedurally Barred

While we agree with the district court’s observation that 

Parnell’s motion mainly discusses claims that either were 

raised or could have been raised on direct appeal, upon de 

novo review of Parnell’s postconviction motion, and in consideration of the errors assigned by Parnell in this appeal, we find 

that Parnell has raised one ineffective assistance of appellate 

counsel claim which is not procedurally barred and must be 

analyzed under Strickland v. Washington.

 12

[7] In the instant case, Parnell was represented by different counsel on direct appeal than at trial. Ordinarily, when a 

defendant’s trial counsel is different from his or her counsel 

on direct appeal, the defendant must raise on direct appeal 

any issue of trial counsel’s ineffective performance which 

is known to the defendant or is apparent from the record. 13

11 Id.

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

(1984).

13 Parnell, supra note 1.
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Otherwise, the issue will be procedurally barred. 14 A claim 

of ineffective assistance of appellate counsel which could not 

have been raised on direct appeal may be raised on postconviction review. 15

Parnell’s counsel on direct appeal argued that trial counsel was ineffective for failing to call O’Kelly as a witness. 

For reasons previously discussed herein, we rejected Parnell’s 

argument, because O’Kelly’s testimony tended to incriminate 

Parnell and had O’Kelly testified, the outcome of trial would 

have been the same. In his motion for postconviction relief, 

Parnell asserts that his appellate counsel was ineffective for 

failing to raise trial counsel’s failure to “submit the e-mails by 

[the OPD detective, the deputy county attorney,] and O’Kelly, 

concerning their meeting about O’Kelly’s data being more reliable than Shute’s data.”

[8] When a person seeking postconviction relief has different counsel on appeal than at trial, the motion for postconviction relief is procedurally barred if the person seeking relief 

(1) knew of the issues assigned in the postconviction motion at 

the time of the direct appeal, (2) failed to assign those issues 

on direct appeal, and (3) did not assign as error the failure of 

appellate counsel on direct appeal to raise the issues assigned 

in the postconviction motion. 16 Here, the record reflects that at 

the time of his direct appeal, Parnell was aware of the factual basis for his claim that trial counsel was ineffective for 

failing to “submit the e-mails.” While trial counsel did offer 

the emails in support of Parnell’s renewed motion to exclude 

Shute’s testimony or continue trial, the emails were not offered 

into evidence during trial for the jury’s consideration. Parnell’s 

appellate counsel did not assert this issue on direct appeal. 

Because Parnell alleged in his motion for postconviction relief 

that appellate counsel was ineffective in not doing so, the issue 

14 Id.

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

16 State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002).
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was presented at Parnell’s first opportunity and is not procedurally barred. 17

Because we conclude that Parnell has raised an ineffective 

assistance of appellate counsel claim that is not procedurally 

barred, we do not reach Parnell’s alternative assignment of 

error that the court erred in determining that any of his claims 

are procedurally barred because it was unclear as to whether 

he was represented by the same lawyers during trial and 

direct appeal.

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. 18 Moreover, it is clear from the discussion on this 

issue in our opinion on direct appeal that Parnell’s counsel on 

appeal was different than his counsel at trial.

Appellate Counsel Not Ineffective

Although we find that Parnell’s motion raises a discrete 

issue that is not procedurally barred, given that we concluded 

on direct appeal that Parnell was not prejudiced by counsel’s 

failure to call O’Kelly as a witness, we similarly conclude 

that Parnell failed to show that he was prejudiced by counsel’s 

failure to submit the emails by the OPD detective, the deputy 

county attorney, and O’Kelly into evidence at trial.

[9] A proper ineffective assistance of counsel claim alleges a 

violation of the fundamental constitutional right to a fair trial. 19

To prevail on a claim of ineffective assistance of counsel under 

Strickland, the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense. 20 To show prejudice under the prejudice component of the Strickland test, the 

defendant must demonstrate a reasonable probability that but 

17 See id.

18 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).

19 Vela, supra note 15.

20 Id.
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for his or her counsel’s deficient performance, the result of the 

proceeding would have been different. 21 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. 22

[10,11] When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal 

of ineffective assistance of trial counsel (a layered claim of 

ineffective assistance of counsel), an appellate court will look 

at whether trial counsel was ineffective under the Strickland

test. 23 If trial counsel was not ineffective, then the defendant 

was not prejudiced by appellate counsel’s failure to raise the 

issue. 24 Much like claims of ineffective assistance of trial counsel, the defendant must show that but for counsel’s failure to 

raise the claim, there is a reasonable probability that the outcome would have been different. 25 In determining whether trial 

counsel’s performance was deficient, courts give counsel’s acts 

a strong presumption of reasonableness. 26

In analyzing Parnell’s claim, we focus on the allegations 

in his postconviction motion. 27 Here, on the issue of prejudice, Parnell alleged that had his trial counsel submitted the 

emails into evidence, “[t]his would have proved that the State 

knew that there existed exculpatorial [sic] material evidence 

that [Parnell] was possibly in another area of town when the 

21 Id.

22 Id.

23 State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018), disapproved on 

other grounds, Allen, supra note 10.

24 Id.

25 Id.

26 Id.

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

on other grounds, Allen, supra note 10 (appellate court will not consider 

factual allegations made for first time on appeal).
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murder was committed.” Based on the record, we find no 

support for Parnell’s claim that counsel’s introduction of the 

emails would have created a probability sufficient to undermine confidence in the outcome at trial. This is because, as 

stressed by this court in its opinion on direct appeal, the testimony of Johnson and Nero provided powerful and compelling 

evidence of Parnell’s guilt, which significantly reduced the 

importance of the expert testimony concerning the location of 

Parnell’s cell phone. 28

Johnson testified that Parnell had threatened her 2 days 

before the shooting and that the shooter was driving a blue 

Nissan Altima with a damaged bumper. Nero testified that 

Parnell drove her Altima on the night of the shooting, and she 

admitted to lying to police about the Altima in order to help 

Parnell. When police found the Altima, the car’s front bumper 

was damaged and an item inside the car contained Parnell’s 

thumbprint. Because these witnesses directly incriminated 

Parnell in several respects, even if the emails were introduced 

into evidence and effectively used to rebut aspects of Shute’s 

testimony, the likelihood of acquittal is low.

This conclusion is reinforced when the actual content of the 

emails are considered. Had the jury been presented with the 

emails, it would have merely learned that O’Kelly met with 

the prosecution to discuss his report and findings and that the 

prosecution ultimately had Shute testify as an expert rather 

than O’Kelly. While Parnell’s claim about the emails does not 

refer to calling O’Kelly as a witness, his motion does state that 

the emails concern the prosecution’s “meeting about O’Kelly’s 

data being more reliable than Shute’s data.” Parnell’s claim of 

ineffectiveness therefore includes a comparison between the 

findings of the two experts. In evaluating this claim, we assume 

for the sake of argument only that Parnell’s trial counsel would 

have introduced the emails through O’Kelly as a witness and 

that the jury would then have learned O’Kelly’s opinions. We 

28 See Parnell, supra note 1.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. PARNELL

Cite as 305 Neb. 932

explained on direct appeal that, although he was not as precise 

as Shute, O’Kelly’s testimony incriminated Parnell, because 

O’Kelly placed Parnell in the general vicinity of the crime 

scene at the time of the shooting. We must therefore conclude 

that trial counsel was not ineffective, because it is clear that 

trial counsel’s strategic decision not to call O’Kelly as a witness and introduce the emails through him benefited Parnell, 

because O’Kelly would have incriminated Parnell. Because 

Parnell’s trial counsel was not ineffective, Parnell’s appellate 

counsel was not ineffective in failing to raise this issue, and 

Parnell suffered no prejudice as a result of the actions of appellate counsel. Postconviction relief without an evidentiary hearing is properly denied when the files and records affirmatively 

show that the prisoner is entitled to no relief. 29

CONCLUSION

For the foregoing reasons, although our reasoning differs 

from that of the district court, we affirm the order of the district court denying Parnell’s motion for postconviction relief 

without an evidentiary hearing.

Affirmed.

Freudenberg, J., not participating.

29 State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).