- 285 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

State of Nebraska, appellee, v. 

Lucio P. Munoz, appellant.

___ N.W.2d ___

Filed May 21, 2021. No. S-20-590.

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

from postconviction proceedings, an appellate court reviews de novo a 

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

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

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

in a postconviction proceeding is procedurally barred is a question of 

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

conclusion independent of the lower court’s ruling.

3. Postconviction: Constitutional Law: Proof. A court must grant an 

evidentiary hearing to resolve the claims in a postconviction motion 

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

federal Constitution.

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

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

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

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

the ineffective assistance of counsel test—deficient performance and 

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

were reasonable.

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

was deficient, a defendant must show that counsel’s performance did 

not equal that of a lawyer with ordinary training and skill in criminal law.

Nebraska Supreme Court Online Library

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

05/28/2021 08:09 AM CDT
- 286 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

7. Postconviction: Constitutional Law: Proof. An evidentiary hearing is 

not required on a motion for postconviction relief when (1) the motion 

does not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or 

law without supporting facts; or (3) the records and files affirmatively 

show that the defendant is entitled to no relief.

8. Postconviction: Effectiveness of Counsel: Records: Appeal and 

Error. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred where a defendant was 

represented by a different attorney on direct appeal than at trial and the 

alleged deficiencies in trial counsel’s performance were known or apparent from the record.

9. Appeal and Error. An alleged error must be both specifically assigned 

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

considered by an appellate court.

10. Postconviction: Effectiveness of Counsel. To warrant an evidentiary 

hearing based on counsel’s failure to make an alibi defense, the defendant must allege something more than the broad factual conclusion that 

there was some unspecified evidence that would have shown the defendant was not in the vicinity at the time of the crime.

11. Postconviction. In a motion for postconviction relief, a defendant is 

required to specifically allege what the testimony of potential witnesses 

would have been if they had been called at trial in order to avoid dismissal without an evidentiary hearing.

12. ____. Absent specific allegations, a motion for postconviction relief 

effectively becomes a discovery motion to determine whether evidence 

favorable to a defendant’s position actually exists.

13. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered 

in evidence to prove the truth of the matter asserted.

14. Rules of Evidence: Hearsay. Hearsay is not admissible unless otherwise provided for in the Nebraska Evidence Rules or elsewhere.

15. Effectiveness of Counsel. As a matter of law, counsel is not ineffective 

for not attempting to adduce inadmissible testimony.

16. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

17. Postconviction: Appeal and Error. In an appeal from the denial of 

postconviction relief, an appellate court will not consider for the first 

time on appeal claims that were not raised in the verified motion.

Appeal from the District Court for Scotts Bluff County: 

Andrea D. Miller, Judge. Affirmed.
- 287 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

Lucio P. Munoz, pro se.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant appeals from the denial of postconviction 

relief without an evidentiary hearing. The defendant had presented four layered claims of ineffective assistance of counsel 

concerning the failure to investigate witnesses, make an alibi 

defense, present expert witness testimony, or move in limine to 

exclude statements. The district court found that the allegations 

presented no more than conclusions of fact and law that lacked 

the necessary specificity to warrant an evidentiary hearing.

II. BACKGROUND

Following a jury trial, Lucio P. Munoz was found guilty of 

first degree murder and use of a deadly weapon to commit a 

felony in relation to the death of his girlfriend. He was sentenced to life for the murder conviction and a consecutive 20 to 

40 years’ imprisonment for the weapon conviction.

On direct appeal, we affirmed the convictions and sentences. 1 Munoz was represented by new counsel. Munoz subsequently filed a pro se motion for postconviction relief, 

which the district court denied without an evidentiary hearing. 

Munoz appeals.

1. Trial

The facts pertaining to the trial are fully set forth in our 

opinion in State v. Munoz.

 2 We reiterate those facts that are 

most relevant to the postconviction motion.

1 See State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

2 Id.
- 288 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

The State presented evidence that at approximately 10 p.m. 

on December 30, 2016, Munoz reported to a neighbor in his 

apartment complex that his girlfriend had been raped. The 

police were called, and two officers arrived at approximately 

11 p.m. The girlfriend, who was intoxicated and had been 

sleeping in Munoz’ bedroom, did not know why the police had 

been called and refused to make a report.

At approximately 2 a.m. on December 31, 2016, Munoz 

called his son, stating he had done something bad and wanted 

to kill himself. The police were called and arrived around 

3 a.m. at Munoz’ apartment to check on him. Munoz said 

his girlfriend had gone home. The bedroom door was closed, 

and officers did not venture beyond it. Munoz went with the 

officers to a hospital after he locked his apartment door with 

a deadbolt.

Munoz left the hospital around 8 a.m. and went directly to 

his son’s house. At some point, arrangements had been made 

for Munoz to visit his brother in Illinois. A friend drove him 

there that same day. Munoz did not stop at his apartment to 

retrieve any belongings.

A neighbor alerted the property manager on January 3, 2017, 

that she had not seen Munoz or the victim since December 30. 

The property manager used a master key to unlock the deadbolt 

and found the deceased victim on the bed in the bedroom.

An autopsy revealed the victim had suffered 37 stab wounds. 

She appeared to be wearing the same clothing that the officers’ 

body cameras recorded her wearing on December 31, 2016. 

A sexual assault kit showed no DNA other than the victim’s. 

The State’s blood spatter expert described bloodstain patterns 

found at the scene, which indicated the brutal nature of the 

crime and that “[s]omebody with blood on them” had walked 

to the bathroom and washed it off. No forensic evidence was 

found that positively linked Munoz to the crime.

Munoz has a brother in Texas who began searching for 

Munoz due to a concern that “something had happened . . . 

where he live[s].” When the brother was able to reach Munoz, 
- 289 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

Munoz asked him to forgive him and said he was going to die 

in prison.

After Munoz was located in another state, law enforcement 

was dispatched to transport him back to Nebraska. During the 

course of their travel, Munoz made several unsolicited comments to law enforcement, including that he was “going to get 

the death penalty.”

2. Motion for Postconviction Relief

In his motion for postconviction relief, Munoz alleged that 

trial counsel was ineffective for failing to object to jury instructions and for failing to challenge jurors for cause. The district 

held that both of these allegations were procedurally barred for 

failing to raise such issues on direct appeal. In doing so, the 

district court stated, “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.”

Munoz also raised in his motion several layered claims 

against appellate counsel.

(a) Alibi and Flight Witnesses 

and Alibi Defense

First, Munoz alleged that trial counsel was deficient in failing to depose or interview potential witnesses Manuel Trevino 

and Jolene Condon before trial. Munoz stated that Trevino and 

Condon had knowledge of Munoz’ “whereabouts.” In a separate section presumably referring to these witnesses but never 

mentioning any witness by name, Munoz also broadly alleged 

that trial counsel was ineffective for failing to make an “alibidefense” based on “proof that he was nowhere in the v[i]cinity or area” when the victim was murdered. Munoz generally 

asserted that appellate counsel rendered ineffective assistance 

in relation to these claims.

Munoz claimed Condon’s testimony “would have presented an rebuttable presumption to the [S]tate’s theory of how 
- 290 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

[Munoz] allegedly murdered the victim” and “would have contradicted the [S]tate’s evidence underlining proof of [Munoz’] 

alibi during the time of the victim’s murder.” He did not 

describe Condon’s potential testimony in any further detail.

Munoz asserted Trevino had engaged in conversation with 

Munoz’ son “instrumental to [Munoz’] desire to travel out 

of town during the time the alleged crime supposedly took 

place,” which would have been “pivotal” “inasmuch that 

Trevino possess knowledge of the events unfolding that lead 

to [Munoz’] desire to travel, devoid of covering up, or having 

a scapegoat.”

The district court denied Munoz’ claims relating to Trevino 

and Condon on the grounds that Munoz had failed to assert 

“any specific allegations as to what testimony witnesses would 

have given” or “any exculpatory evidence that has been uncovered by the testimony.” As to the separate alibi-defense claim, 

the court found there were “no facts asserted showing who 

would be called as an alibi, what the alibi would testify and 

thus no showing of any exculpatory evidence.”

(b) Failure to Suppress Statements

Second, Munoz asserted that trial counsel was ineffective by 

failing to suppress his “statements.” He generally asserted that 

appellate counsel rendered ineffective assistance in relation to 

this claim. Munoz did not elaborate in the motion as to what 

statements he was referring to or the reason why his statements 

were allegedly inadmissible. In denying the claim without an 

evidentiary hearing, the district court observed, “There are no 

facts asserted showing any statements of Munoz which would 

be suppressed and further no showing of any exculpatory evidence. This claim is not specifically argued in the pleading 

but stated.”

(c) Failure to Call Expert Witness 

on Blood Spatters

Third, Munoz asserted that trial counsel was ineffective “by 

failing to call or interview an ‘Expert Witness’ to refute the 
- 291 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

[S]tate’s theory alleging the ‘blood spattered’ evidence was 

culpable proof of [Munoz’] guilt.” He generally asserted that 

appellate counsel rendered ineffective assistance in relation to 

this claim.

This expert allegedly “would have been able to determine 

with professional certainty the time, day, and detailed involvement of the crime, particularly, the evidence DNA and other 

intricacies involving the murder of the victim.” No other 

details were set forth in the motion for postconviction relief. 

The district court concluded that Munoz had failed to assert 

“any specific allegations as to what testimony witnesses would 

have given” or “any exculpatory evidence that has been uncovered by the . . . expert findings.”

(d) Motion in Limine

Fourth, Munoz alleged the ineffective assistance of appellate 

counsel for not preserving “the challenge of [Munoz’] motion 

in limine filed in the lower district court, thereby assigning such as error in [Munoz’] brief of appellant, for review.” 

There was no description of the evidence subject to the motion 

in limine, why it was inadmissible, and how it prejudiced 

him. The district court found that the allegation did not warrant an evidentiary hearing because the postconviction motion 

alleged no specific statement or evidence that should have been 

included in the motion in limine.

III. ASSIGNMENTS OF ERROR

In his appeal from the denial of his motion for postconviction relief, Munoz assigns as error that (1) trial and appellate 

counsel rendered ineffective assistance of counsel; (2) Munoz 

received “ineffective assistance via direct appeal review, in 

violation of the 5th, 6th and 14th Amendment to the United 

States Constitution, and Article I, §§ 3, 13 and 23 of the 

Nebraska Constitution”; and (3) trial counsel was ineffective 

by failing to object to the trial court’s failure to properly prepare jury instructions in violation of “his 5th, 6th[,] 11 and 13 

of Nebraska Constitution.”
- 292 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

IV. 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. 3

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. When reviewing a 

question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. 4

V. ANALYSIS

[3] A court must grant an evidentiary hearing to resolve the 

claims in a postconviction motion when the motion contains 

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

Constitution. 5

[4-6] In order to establish a right to postconviction relief 

based on a claim of ineffective assistance of counsel, the 

defendant has the burden, in accordance with Strickland v. 

Washington,

 6 to show that counsel’s performance was deficient 

and that counsel’s deficient performance prejudiced the defense 

in his or her case. 7 The two prongs of this test—deficient performance and prejudice—may be addressed in either order, 

and the entire ineffectiveness analysis is viewed with a strong 

presumption that counsel’s actions were reasonable. 8 To show 

that counsel’s performance was deficient, a defendant must 

3 State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).

4 Id.

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

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

(1984).

7 State v. Stelly, supra note 3.

8 Id.
- 293 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law. 9

[7] An evidentiary hearing is not required on a motion for 

postconviction relief when (1) the motion does not contain 

factual allegations which, if proved, constitute an infringement 

of the movant’s constitutional rights rendering the judgment 

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

fact or law without supporting facts; or (3) the records and files 

affirmatively show that the defendant is entitled to no relief. 10

1. Assertions Against Trial Counsel and 

Separate Alibi-Defense Claim

In his appellate brief, Munoz makes several assertions 

against trial counsel that he argues the district court should 

have granted an evidentiary hearing on, but which Munoz fails 

to tie to any argument of ineffective assistance of appellate 

counsel. In this regard, Munoz asserts that he told trial counsel 

about his alibi that “he was nowhere in the v[i]cinity or area 

when [the victim] was murdered,” yet trial counsel “prejudicially failed to give notice to the [S]tate prosecution and the 

court, pursuant to [Neb. Rev. Stat. §] 29-1927, as required.” 

(Emphasis omitted.) Munoz also argues that trial counsel was 

ineffective by failing to object to jury instructions. With the 

exception of the alibi defense, these allegations were stated 

in the motion for postconviction relief directly against trial 

counsel only and were not presented as a layered claim against 

appellate counsel for failing to assert the ineffectiveness of 

trial counsel.

[8,9] A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred where 

a defendant was represented by a different attorney on direct 

9 Id.

10 See, State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020); State v. Allen, 

301 Neb. 560, 919 N.W.2d 500 (2018).
- 294 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

appeal than at trial and the alleged deficiencies in trial counsel’s performance were known or apparent from the record. 11

Further, an alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error 

to be considered by an appellate court. 12

[10] We agree with the district court that the claims made 

directly against trial counsel only are procedurally barred. To 

the extent the claim regarding an alibi defense was a separate 

claim from the allegations regarding the potential testimony of 

Trevino and Condon, it was not argued on appeal as a layered 

claim and we therefore need not consider whether the court 

erred in denying such a claim. However, we also find that 

the broad allegation in the motion for postconviction relief 

that trial counsel was ineffective for failing to make an alibi 

defense constituted mere conclusions of fact and law without 

supporting facts, which did not warrant an evidentiary hearing. 

To warrant an evidentiary hearing based on counsel’s failure 

to make an alibi defense, the defendant must allege something 

more than the broad factual conclusion that there was some 

unspecified evidence that would have shown the defendant was 

not in the vicinity at the time of the crime. 13

2. Layered Claims

Munoz makes four general arguments of appellate counsel’s 

ineffectiveness by failing to raise on direct appeal claims of 

ineffective assistance of trial counsel. These generally correspond to the four stated claims in his motion for postconviction relief.

(a) Alibi and Flight Witnesses

We hold that Munoz’ claims regarding the failure to depose 

or interview potential witnesses Trevino and Condon before 

11 State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).

12 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

13 See State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
- 295 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

trial failed to allege more than conclusions of fact and law 

and, to the extent the motion presented more specific facts, 

those facts, if proved, would not constitute an infringement 

of Munoz’ constitutional rights rendering the judgment void 

or voidable. Thus, the district court did not err in denying the 

claims without an evidentiary hearing.

[11,12] Our case law is clear that in a motion for postconviction relief, a defendant is required to specifically allege what 

the testimony of potential witnesses would have been if they 

had been called at trial in order to avoid dismissal without an 

evidentiary hearing. 14 Absent specific allegations, a motion for 

postconviction relief effectively becomes a discovery motion to 

determine whether evidence favorable to a defendant’s position 

actually exists. 15

Munoz’ allegations as to Condon’s testimony consist entirely 

of legal conclusions and conclusions of fact without supporting facts. Munoz alleged Condon’s testimony “would have 

presented an rebuttable presumption to the [S]tate’s theory 

of how [Munoz] allegedly murdered the victim” and “would 

have contradicted the [S]tate’s evidence underlining proof of 

[Munoz’] alibi during the time of the victim’s murder.” This 

fails to satisfy the requirement that the motion include specific 

allegations regarding the testimony that the witness would have 

given if called.

Munoz’ allegations regarding Trevino’s potential testimony 

are somewhat more specific. In essence, Munoz alleged that 

Trevino could have testified that in a conversation with Munoz’ 

son, Munoz’ son reported to Trevino that Munoz had a “desire 

to travel out of town during the time the alleged crime supposedly took place.” This was alleged to be relevant exculpatory evidence because it pertained to Munoz’ “whereabouts 

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

on other grounds, State v. Allen, supra note 10. See, also, e.g., State v. 

Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).

15 State v. Foster, supra note 14.
- 296 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

during the time the victim was found.” It was further alleged 

that Trevino’s testimony was relevant to “the events unfolding 

that lead to [Munoz’] desire to travel, devoid of covering up, 

or having a scapegoat.” From Munoz’ arguments on appeal, it 

appears that the reference to Munoz’ “desire to travel, devoid 

of covering up” was an assertion that Trevino’s testimony 

would have been relevant to diminish the inference of guilt 

surrounding his flight to Illinois.

The alleged testimony as to Munoz’ “whereabouts” was 

insufficiently specific to warrant an evidentiary hearing. And, 

regardless, Munoz’ “whereabouts” when the victim was found 

would not have been exculpatory under the facts of this 

case, which indicated the victim had been murdered several 

days before.

Because Munoz failed to allege when the conversation about 

traveling to Illinois took place—specifically, whether it took 

place before the murder—the facts alleged are insufficient to 

demonstrate that, if true, Munoz’ convictions were the product of ineffective assistance of counsel. A conversation taking 

place after the murder, in which Munoz indicated a “desire to 

travel,” would only strengthen the inference of flight.

[13-15] Moreover, Trevino’s potential testimony about such 

a conversation with Munoz’ son would have been inadmissible 

hearsay. 16 Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted. 17 Hearsay is 

not admissible unless otherwise provided for in the Nebraska 

Evidence Rules or elsewhere. 18 Trevino’s testimony about what 

Munoz’ son had said would have been to prove the truth of 

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

17 State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015). See, also, Neb. Rev. 

Stat. § 27-801(3) (Reissue 2016).

18 State v. Poe, supra note 17. See, also, Neb. Rev. Stat. § 27-802 (Reissue 

2016).
- 297 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

the matter that Munoz intended to go out of town. As a matter 

of law, counsel is not ineffective for not attempting to adduce 

inadmissible testimony. 19

(b) Expert Witness on Mental Stability

Munoz argues on appeal that the district court erred in 

dismissing a layered claim concerning trial counsel’s alleged 

ineffectiveness in failing to call an expert witness to testify 

as to Munoz’ mental stability during the time of the victim’s 

death. He does not expand upon this assertion, and thus, it was 

insufficient because it failed to specifically allege what the 

testimony of potential expert witnesses would have been if the 

witness had been called at trial.

[16,17] Furthermore, this claim does not appear in Munoz’ 

motion for postconviction relief. Appellate courts do not generally consider arguments and theories raised for the first time on 

appeal. 20 In an appeal from the denial of postconviction relief, 

we will not consider for the first time on appeal claims that 

were not raised in the verified motion. 21

(c) Expert Witness on Blood Spatters

We also agree with the district court that Munoz failed to 

allege more than mere conclusions of fact or law without supporting facts in relation to his layered claim that trial counsel 

was ineffective “by failing to call or interview an ‘Expert 

Witness’ to refute the [S]tate’s theory alleging the ‘blood spattered’ evidence was culpable proof of [Munoz’] guilt.” Munoz 

did not indicate whose “evidence DNA” he was referring to, 

how the exact time of the murder could be established by such 

an expert, what the professional certainty of the time of the 

19 See State v. Allen, supra note 10.

20 State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

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

on other grounds, State v. Allen, supra note 10; State v. Harris, 294 Neb. 

766, 884 N.W.2d 710 (2016).
- 298 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. MUNOZ

Cite as 309 Neb. 285

crime would be, or how it might have changed the result of 

the trial.

(d) Motion in Limine

Lastly, Munoz argues on appeal that the district court erred 

in dismissing his claim that appellate counsel was ineffective 

“by failing to assert as error trial counsel’s failure to file a 

Motion in Limine as asserted in ground two of his Motion for 

Postconviction Relief.” 22 He generally asserts prejudice as a 

result, but does not describe the evidence he believes should 

have been the subject of the motion in limine, why it should 

have been excluded, and how the result at trial would have 

been different but for its admission.

It does not appear that this allegation was raised in the 

postconviction motion. In his motion for postconviction relief, 

Munoz described the ineffective assistance of appellate counsel 

as not preserving “the challenge of [Munoz’] motion in limine 

filed in the lower district court, thereby assigning such as error 

in [Munoz’] brief of appellant, for review.” The failure to file 

a motion in limine is a different assertion than the failure to 

appeal the denial of a motion in limine made at trial.

In any event, the allegation in the motion for postconviction did not contain any description of the evidence subject 

to the motion in limine, why the evidence was inadmissible, 

and how it prejudiced him. We agree with the district court 

that the allegations did not warrant an evidentiary hearing, because the postconviction motion alleged no specific 

statement or evidence that should have been included in the 

motion in limine.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court dismissing, without an evidentiary hearing, Munoz’ 

motion for postconviction relief.

Affirmed.

22 Brief for appellant at 8.