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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. JAEGER

Cite as 311 Neb. 69

State of Nebraska, appellee, v. 

Roger Jaeger, appellant.

___ N.W.2d ___

Filed March 4, 2022. No. S-21-386.

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. The district 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 state or 

federal Constitution.

4. Postconviction: Pleadings. The allegations in a motion for postconviction relief must be sufficiently specific for the district court to make 

a preliminary determination as to whether an evidentiary hearing is 

justified.

5. 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.

6. Postconviction: Appeal and Error. In appeals from the denial of postconviction relief without an evidentiary hearing, as with all appeals, the 

alleged errors of the lower court must be both specifically assigned and 

Nebraska Supreme Court Online Library

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

05/27/2022 01:07 AM CDT
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specifically argued in the brief of the party asserting the errors to be 

considered by the appellate court.

7. Records: Appeal and Error. The appellate court will not scour the 

record on appeal to understand unclear arguments or find support for 

broad conclusions.

8. Postconviction: Appeal and Error. The appellate court will not consider allegations not presented to the district court for disposition 

through the defendant’s verified motion for postconviction relief or 

passed upon by the postconviction court.

9. Appeal and Error. Except for instances of plain error, only those issues 

both raised or passed upon below and specifically assigned and specifically argued on appeal will be considered by the appellate court.

10. Postconviction. The defendant’s verified motion for postconviction 

relief is the operative filing before the district court in considering 

whether to grant an evidentiary hearing.

11. Postconviction: Appeal and Error. A postconviction court does not 

err by failing to consider claims not made in the operative motion for 

postconviction relief, which are instead raised in other filings.

12. Effectiveness of Counsel. A pro se party is held to the same standards 

as one who is represented by counsel.

13. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all 

defenses to a criminal charge.

14. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no 

contest, the defendant is limited to challenging whether the plea was 

understandingly and voluntarily made and whether it was the result of 

ineffective assistance of counsel.

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

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

litigated on direct appeal.

16. ____: ____. When the defendant is represented both at trial and on 

direct appeal by the same counsel, the defendant’s first opportunity to 

assert ineffective assistance of trial counsel is in a motion for postconviction relief.

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

assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense.

18. Effectiveness of Counsel: Pleas. The voluntariness of a plea entered 

upon the advice of counsel depends on whether the advice was within 

the range of competence demanded of attorneys in criminal cases.

19. Trial: Effectiveness of Counsel: Presumptions. In determining whether 

a trial counsel’s performance was deficient, there is a strong presumption that counsel acted reasonably.
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20. Effectiveness of Counsel: Pleas: Proof. In order to satisfy the prejudice 

requirement in the context of a plea, the defendant must show that his or 

her counsel erred and there is a reasonable probability that but for counsel’s errors, the defendant would not have pled and would have insisted 

upon going to trial.

21. Pleas. A threat or promise of illegal action may invalidate a plea, but a 

threat to prosecute when the facts warrant prosecution is not coercive 

such that a subsequent plea is involuntary.

22. Effectiveness of Counsel. Counsel’s performance is deficient when it 

objectively does not equal that of a lawyer with ordinary training and 

skill in criminal law in the area.

23. ____. As a matter of law, counsel cannot be ineffective for failing to 

raise a meritless argument to the trial court.

24. ____. The viability of any defense goes to the likelihood of whether a 

rational defendant would have insisted on going to trial.

25. Postconviction: Effectiveness of Counsel. An evidentiary hearing will 

not be warranted based only upon the prisoner’s legal conclusions about 

the significance of vaguely asserted failures to investigate or to pursue 

testimony.

26. Miranda Rights: Arrests. It is only in the context of a custodial interrogation that the Miranda safeguards are considered justified and necessary. The interrogation is not custodial unless a reasonable person would 

feel the restraint on freedom of movement of the degree associated with 

a formal arrest.

27. Pleas: Sentences: Waiver: Appeal and Error. A voluntary guilty 

plea or plea of no contest does not waive alleged errors occurring at 

sentencing.

28. Claims: Appeal and Error. Claims that could have been made on direct 

appeal are procedurally barred.

29. Effectiveness of Counsel: Appeal and Error. Claims of ineffective 

assistance of trial counsel could not have been made on direct appeal 

when appellate counsel was the same as trial counsel.

30. Constitutional Law: Due Process: Trial: Judges. The right to an 

impartial judge is guaranteed under the Due Process Clauses of the U.S. 

and Nebraska Constitutions.

31. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, 

a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.

32. 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.

33. Judges: Recusal. Judicial recusal is required if a reasonable person 

who knew the circumstances of the case would question the judge’s 
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impartiality under an objective standard of reasonableness, even though 

no actual bias or prejudice was shown.

34. ____: ____. Judicial rulings alone almost never constitute a valid basis 

for a bias or partiality motion directed to a trial judge.

35. ____: ____. The fact that the trial judge previously presided over other 

actions involving the parties and made rulings against one or another of 

the parties is insufficient to show bias.

Appeal from the District Court for Sarpy County: Nathan 

B. Cox, Judge. Affirmed.

Roger Jaeger, 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

In an appeal from a motion for postconviction relief, the 

appellant challenges the district court’s denial of his motion 

without holding an evidentiary hearing. The appellant had 

alleged multiple instances of ineffective assistance of counsel 

and a violation of his Fifth Amendment right against selfincrimination. The appellant assigns that the district court erred 

in denying his motion without holding an evidentiary hearing 

and in not considering his reply to the State’s response to his 

motion for postconviction relief. We affirm.

II. BACKGROUND

Roger Jaeger, a middle school teacher, was discovered to 

possess child pornography after he took his laptop to a local 

computer shop for repairs. During the course of performing 

these repairs, the technician observed several hundred, if not 

thousands, of photographs and videos of pornography, several hundred of which were clearly child pornography. Law 

enforcement was contacted, and officers identified numerous 

files containing child pornography.
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A police report contained in the presentence investigation report (PSI) reflects that after finding the files, officers 

obtained a search warrant and went to the school where Jaeger 

worked to execute it. Jaeger was present at the school, and the 

officers secured his electronic devices. Jaeger was escorted to 

a conference room at the school, where the officer read Jaeger 

his Miranda rights before questioning him.

During the course of the interview, Jaeger admitted to 

viewing and obtaining child pornography for a long time 

and possessing thousands of images, with a preference for 

middle-school-aged and high-school-aged children. The officer 

confronted Jaeger with the fact that there were student yearbook pictures mixed in with the child pornography and asked 

why they were there. Jaeger responded, “‘I do not know.’” 

He further responded, “‘[T]here were just a couple of years, 

just thought hey, I’ll keep track of these ones,’” and then 

he laughed. The police report indicates that Jaeger was not 

arrested until the conclusion of the interview.

Jaeger was charged with six counts of possession of child 

pornography, each a Class IIA felony, in violation of Neb. Rev. 

Stat. § 28-813.01 (Reissue 2016).

1. Plea Hearing

Before trial, the parties informed the district court that a plea 

agreement had been reached. Pursuant to the agreement, Jaeger 

was to enter pleas of no contest to four counts of possession of 

child pornography and the State would dismiss the remaining 

two counts.

Before accepting the plea agreement, the district court 

engaged in a colloquy with Jaeger which specifically included 

questions regarding whether there had been any threats or 

promises made to induce him to enter his pleas of no contest, 

to which Jaeger answered, “No.” Following the completion 

of the full colloquy and the State’s presentment of a supporting factual basis, the district court found beyond a reasonable 

doubt that Jaeger understood the nature of the hearing and 
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was alert and competent to plead. Ultimately, the district court 

accepted Jaeger’s no contest pleas to four counts of possession 

of child pornography.

The district court ordered the PSI, which was to include a 

psychosexual evaluation. No objection was made. The court 

did not issue an order specifically compelling Jaeger to make 

any statements for the purposes of the PSI or psychosexual 

evaluation. The matter was scheduled for sentencing.

2. Sentencing

At the sentencing hearing, defense counsel advocated for 

Jaeger to receive probation. Defense counsel highlighted that 

this was a nonviolent offense and that other similar offenders 

in the county had been placed on probation. When discussing 

the psychosexual evaluation in the PSI, defense counsel noted 

the doctor who evaluated Jaeger believed he was being truthful 

and cooperative and found the “Good Life Treatment Model” 

could be completed under community supervision, because 

Jaeger was a low risk for sexual assault.

Defense counsel further pointed out that the results of the 

“Static 99” evaluation found Jaeger was a low to moderate 

risk and the general criminal risk of recidivism was low to 

moderate; Jaeger had no criminal history; and the “LS/CMI 

domains” scored Jaeger very low on criminal history, medium 

in education and employment “because he can’t go back to 

his old job,” very low in the family and leisure and recreation 

categories, and low in the companions, procriminal attitude, 

and antisocial categories. Finally, counsel noted that the PSI 

stated it does not appear there would be any significant barriers to Jaeger’s participation in any community supervision 

services and highlighted Jaeger’s support in the community 

based upon the 15 to 20 character letters contained in the PSI. 

Defense counsel argued that Jaeger was classified as someone 

the community could supervise in a safe manner with additional terms such as monitoring Jaeger’s electronics and vocational rehabilitation.
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The State argued that probation would promote a disrespect 

for the law. The State noted that Jaeger’s behavior had been 

ongoing for close to 20 years while employed as a teacher and 

that there were over 1,500 images found in his possession. It 

noted the probation interviewer’s description of Jaeger as “controlling and aggressive” during the PSI process.

The district court stated it had reviewed the PSI and noted 

Jaeger’s lack of a criminal record. However, it also considered 

Jaeger’s statements to the probation interviewer, reflected in 

the PSI, indicating he did not feel like anyone had treated 

him fairly or justly. The district court took particular issue 

with a statement Jaeger made regarding teachers’ being held 

to an “impossible standard.” The court described as “absurd” 

Jaeger’s apparent belief that expecting teachers to refrain from 

possessing child pornography was too high of a standard to 

hold them to. The court observed that Jaeger’s statements, 

reflected in the PSI, contained various rationalizations justifying his behavior as not harmful and blaming others for his 

addiction and for getting caught. The court also reiterated the 

State’s concern that Jaeger had attempted to control the PSI 

process and that his behavior was aggressive. Finally, the court 

was concerned by Jaeger’s comment during the police interview about keeping track of the middle-school-aged children 

whose yearbook pictures were mixed in with his child pornography, which it found “chilling.”

The court indicated it had considered all the appropriate sentencing factors, the PSI, and the statements that were received. 

The court found that Jaeger was not a suitable candidate for 

probation and that anything less than a statutory sentence 

would depreciate the seriousness of the offense, promote disrespect for the law, and “would potentially place at jeopardy 

children in our community.”

The court sentenced Jaeger to concurrent terms of 10 to 

20 years’ imprisonment on each count and ordered Jaeger 

to register as a sex offender pursuant to the Sex Offender 

Commitment Act.
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3. Direct Appeal

Jaeger’s trial counsel filed a timely notice of appeal alleging 

Jaeger’s sentences were excessive. The appeal was summarily 

affirmed by the Nebraska Court of Appeals.

4. Motion for Postconviction Relief

Subsequently, Jaeger, pro se, filed a verified motion for 

postconviction relief. In the motion, Jaeger alleged, first, that 

counsel was ineffective in failing to “‘make reasonable investigations’” as to Jaeger’s claim that the interviewing officer 

did not read him his Miranda rights until after he was interviewed. Jaeger claimed counsel refused to investigate when the 

Miranda rights were actually read to him as Jaeger suggested; 

nor would counsel “enter a [m]otion to [s]uppress the interview.” Jaeger asserted that the failure to investigate prejudiced 

him “by accepting the police report as fact when there were 

doubts about the accuracy” and left him no option other than to 

enter into the plea agreement.

Second, Jaeger described that defense counsel had advised 

him to accept the plea agreement because (1) the prosecutor 

could charge a separate count of possession for each image 

found and that he was fortunate to only be charged with six 

counts and (2) the State could turn the matter over to the federal authorities if he did not accept the plea agreement and he 

“[stood] a better chance” in state court. Jaeger asserted that in 

the email chain between the prosecutor and defense counsel, 

which he attached to the motion, there was no mention of turning over the case to federal prosecutors or additional charges. 

He then cited the proposition that pleas induced by promises or 

threats are void and concluded that if the prosecution’s threats 

were made, they were not on record; if the threats were not 

made, he was coerced into a plea agreement by counsel’s erroneous advice.

Third, Jaeger alleged counsel was ineffective for not pursuing Jaeger’s request to attempt to recuse the trial judge as 

biased against him. Jaeger supported his assertion of bias by 

pointing to the court’s denial of his bond reduction request, 
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the court’s grant of expanded media coverage, and events that 

occurred in a separate civil matter. Jaeger asserted his counsel 

told him that the judge would not recuse himself and that he 

stood a better chance with this judge than another. Jaeger stated, 

“The [j]udge’s behavior showed a pattern of prejudice against 

[Jaeger] and crossed over to actually acting as the [p]rosecution, but [c]ounsel took no action in these situations.”

Fourth, Jaeger alleged multiple instances of ineffective 

assistance of counsel at the sentencing hearing. Jaeger alleged 

counsel stated Jaeger would have a sex offender registration 

period of 25 years even though he was arguing for a sentence of probation that would carry only a 15-year registration period; counsel did not correct prosecution’s inaccurate 

statement about Jaeger’s length of time viewing underage 

pornography; and counsel did not protest to Jaeger’s “being 

shackled hand and foo[t] while wearing a county orange uniform in a televised sentencing.” Jaeger asserted that “[t]hese 

behaviors show counsel was aware [Jaeger] would be serving 

more than a 1 year prison sentence prior to sentencing and was 

more concerned with appeasing the court than truly advocating 

for [him].”

Fifth, Jaeger alleged counsel was ineffective in his direct 

appeal by giving Jaeger “no say” in what issues would be 

raised on appeal. He cited to Jones v. Barnes 1 for the proposition that the client must be allowed to decide what issues are 

presented. Jaeger described that he had sent counsel a letter 

stating all the inaccuracies he could remember, but counsel 

claimed “he could only challenge abuse of discretion due to the 

plea deal and the [j]udge’s rigid implementation of procedure.” 

Further, Jaeger alleged counsel did not meet with him while 

drafting the appeal nor did Jaeger see a copy of the appeal until 

after it had been submitted.

Lastly, Jaeger alleged the court had ordered him to submit 

to and participate in the PSI and psychosexual evaluation 

1 Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).
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without Jaeger’s having sufficient awareness of the likely consequences of any statements made. He asserted that his pleas 

of no contest did not operate as a total waiver of his privilege 

against self-incrimination and that his Fifth Amendment rights 

were violated by the court’s use of his statements in the PSI 

against him at sentencing.

5. State’s Response to Jaeger’s Motion

The State filed a response to Jaeger’s motion for postconviction relief, arguing Jaeger’s motion should be denied without 

an evidentiary hearing for several reasons. These included the 

argument that Jaeger had failed to articulate facts showing he 

was entitled to relief.

6. Jaeger’s Response

On March 24, 2021, Jaeger filed an unverified responsive 

document addressing some of the positions argued by the State 

entitled “Defendant’s Response to State’s Response to Motion 

for Postconviction Relief.” In this filing, Jaeger purported to 

set forth “Reasons to Grant an Evidentiary Hearing.” In addition to legal arguments, Jaeger attempted to supplement the 

factual allegations of his motion for postconviction relief, in 

order to address the State’s assertion of inadequate allegations 

to warrant an evidentiary hearing.

Regarding his claim that counsel failed to investigate when 

the Miranda advisement was given, Jaeger stated that “[h]ad 

counsel investigated and found the police report included information prior to the Miranda [r]ights,” Jaeger “would have 

continued his plea of [n]ot [g]uilty, forcing the State to prove 

the files on a computer that was purchased refurbished and 

a back-up drive purchased at a garage sale actually belonged 

to [him].”

Regarding his claim that counsel’s erroneous advice coerced 

him into accepting the State’s first plea offer, Jaeger added the 

allegation that his “law library research of [f]ederal charges 

revealed they would only have one charge for multiple files 

with points added for the number of images, resulting in a 
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36 to 60 month sentence.” Thus, in accepting the plea agreement, he had relied on counsel’s erroneous advice about being 

better off in a state court.

7. Order on Motion for 

Postconviction Relief

The district court denied postconviction relief without an 

evidentiary hearing. In its order, the court did not mention the 

responsive document filed by Jaeger. It summarized the allegations of the motion as one claim that the PSI violated Jaeger’s 

right against self-incrimination and five claims of ineffective 

assistance by (1) failing to investigate when law enforcement 

read him his Miranda rights; (2) “advising [Jaeger] to plead 

because the possibility of additional charges or his case being 

taken federally” was not discussed in the emails pertaining to 

his plea agreement; (3) stating during sentencing that the sex 

offender registration period would be 25 years, failing to correct a statement by the prosecutor during sentencing, and failing to object to Jaeger’s being shackled at the sentencing hearing; (4) failing to do anything in response to the trial court’s 

bias; and (5) failing to meet with Jaeger and “allowing him to 

dictate the issues to be argued when drafting the appeal.”

The court found that Jaeger failed to allege how trial counsel’s actions fell below an objective standard of reasonableness 

and how the alleged deficient performance actually prejudiced 

the case. The court also described that Jaeger’s claims were 

merely conclusory, with no supporting facts, and that any 

attack on his convictions, with the exception of claims that his 

pleas were involuntary or the result of ineffective assistance of 

counsel, had been waived.

Jaeger timely appealed the district court’s order denying 

postconviction relief to the Court of Appeals, and we moved 

the case to our docket.

III. ASSIGNMENTS OF ERROR

Jaeger assigns that the district court erred in (1) not holding an evidentiary hearing on the issues raised in his motion 
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for postconviction relief and (2) not considering his response 

to the State’s response to his motion for postconviction relief.

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. 2

[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. 3

V. ANALYSIS

Jaeger asserts, broadly, that the court erred in denying postconviction relief without first conducting an evidentiary hearing. And he argues that this error occurred, in part, because the 

court erroneously ignored the additional allegations made in 

his responsive filing. Before addressing the specific claims of 

postconviction relief that Jaeger believes the court should have 

held an evidentiary hearing on, we set forth the general legal 

principles governing our analysis of appeals from the denial of 

postconviction claims without an evidentiary hearing.

[3-5] The district 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 state or 

federal Constitution. 4 However, the allegations in a motion for 

postconviction relief must be sufficiently specific for the district court to make a preliminary determination as to whether 

an evidentiary hearing is justified. 5 An evidentiary hearing is 

2 State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).

3 Id.

4 See State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).

5 State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
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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. 6

[6,7] When a district court denies postconviction relief 

without conducting an evidentiary hearing, an appellate court 

determines de novo whether the petitioner has alleged facts 

that would support the claim and, if so, whether the files and 

records affirmatively show that he or she is entitled to no 

relief. 7 The appellate court does not conduct this review sua 

sponte, however; as with all appeals, the alleged errors of the 

lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be 

considered by the appellate court. 8 The appellate court will not 

scour the record on appeal to understand unclear arguments or 

find support for broad conclusions. 9

[8,9] Furthermore, the appellate court will not consider 

allegations not presented to the district court for disposition 

through the defendant’s verified motion for postconviction 

relief or passed upon by the postconviction court. 10 Except 

for instances of plain error, 11 only those issues both raised or 

passed upon below and specifically assigned and specifically 

argued on appeal will be considered by the appellate court.

6 State v. Munoz, supra note 2.

7 See id.

8 See State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).

9 See In re App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196 

(2020).

10 See, State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021); State v. Munoz, 

supra note 2; State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).

11 See, e.g., State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).
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1. Responsive Filing

[10] The defendant’s verified motion for postconviction 

relief is the operative filing before the district court in considering whether to grant an evidentiary hearing. It is also 

the filing that the appellate court is limited to in determining 

de novo if the petitioner has alleged facts that would support 

the claim. 12

[11] The operative motion in this case did not include the 

unverified motion entitled “Defendant’s Response to State’s 

Response to Motion for Postconviction Relief.” In State v. 

Thorpe,

 13 we explained that a postconviction court does not err 

by failing to consider claims not made in the operative motion 

for postconviction relief, which are instead raised in other filings. In Thorpe, the filing at issue was referred to as an “opposition to the State’s motion to dismiss,” but the substance of 

Jaeger’s responsive filing was similar.

[12] Jaeger made the filing in opposition to the State’s 

response setting forth reasons the State believed the motion 

should be denied without an evidentiary hearing, and Jaeger did 

not seek leave to amend his operative motion for postconviction relief. Assuming the district court could have considered 

Jaeger’s unverified responsive filing as a motion for leave to 

amend, it did not, and the operative motion was not in fact 

amended. In Nebraska, a pro se party is held to the same standards as one who is represented by counsel. 14 The district court 

did not err in viewing the responsive filing as no more than 

what it purported to be and in acting accordingly.

Because the responsive filing was not part of the operative 

motion, we find no merit to Jaeger’s assertion that the district 

court erred in failing to consider the additional allegations of 

his responsive filing when determining whether to grant an 

evidentiary hearing. Likewise, in considering the merits of 

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

13 Id.

14 State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
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Jaeger’s arguments on appeal, we will not consider allegations 

that Jaeger did not present below through his operative motion 

for postconviction relief.

With this in mind, we turn to Jaeger’s more specific arguments that the district court erred in finding the allegations of 

the verified motion for postconviction relief did not warrant an 

evidentiary hearing.

2. Pleas

[13,14] We first address Jaeger’s postconviction attacks on 

his convictions, on the grounds that his pleas were the result of 

ineffective assistance of counsel. Generally, a voluntary guilty 

plea or plea of no contest waives all defenses to a criminal 

charge. 15 Thus, when a defendant pleads guilty or no contest, 

the defendant is limited to challenging whether the plea was 

understandingly and voluntarily made and whether it was the 

result of ineffective assistance of counsel. 16

[15,16] A motion for postconviction relief cannot be used to 

secure review of issues that were or could have been litigated 

on direct appeal, 17 but when, as here, the defendant is represented both at trial and on direct appeal by the same counsel, 

the defendant’s first opportunity to assert ineffective assistance 

of trial counsel is in a motion for postconviction relief. 18

[17-20] To prevail on a claim of ineffective assistance of 

counsel, the defendant must show that counsel’s performance 

was deficient and that this deficient performance actually prejudiced his or her defense. 19 The voluntariness of a plea entered 

upon the advice of counsel depends on whether the advice 

was within the range of competence demanded of attorneys 

15 State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).

16 Id.

17 State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).

18 State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).

19 State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390 (2016).
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in criminal cases. 20 In determining whether a trial counsel’s 

performance was deficient, there is a strong presumption that 

counsel acted reasonably. 21 In order to satisfy the prejudice 

requirement in the context of a plea, the defendant must show 

that his or her counsel erred and there is a reasonable probability that but for counsel’s errors, the defendant would not have 

pled and would have insisted upon going to trial. 22

Jaeger makes two arguments that his plea was the result 

of ineffective assistance of counsel. He argues, first, that his 

plea was the result of defense counsel’s deceptive tactics with 

respect to the possibility of federal prosecution. Second, he 

argues that but for counsel’s failure to investigate the timing of 

the Miranda advisement during the police interview, he would 

not have pled to the charges.

(a) Possibility of Federal Prosecution

The district court did not err in denying Jaeger’s postconviction claim that his pleas were the product of counsel’s 

advisement of the possibility of federal prosecution. The claim 

set forth in the verified motion was poorly articulated, but 

reasonably understood as asserting that because the attached 

emails failed to reflect the prosecution affirmatively threatened 

to turn the case over to federal officials, his pleas were the 

product of counsel’s misrepresentations as to a threat by the 

prosecution inducing his pleas. Alternatively, if the threat was 

made, Jaeger asserted his pleas were rendered involuntary by 

virtue of it.

[21] We observe that in the plea colloquy, Jaeger denied his 

pleas were the product of any threats. But even if the motion 

raised a factual question as to whether the prosecution made 

an affirmative threat to turn the case over to federal prosecutors, a finding that such a threat was made would not have led 

20 State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988).

21 State v. Carlson, 260 Neb. 815, 619 N.W.2d 832 (2000).

22 Id.
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to a finding that Jaeger’s postconviction claim had merit. A 

threat or promise of illegal action may invalidate a plea, but a 

threat to prosecute when the facts warrant prosecution is not 

coercive such that a subsequent plea is involuntary. 23 It is not 

illegal for a state prosecutor to drop a case and refer it instead 

to federal prosecutors. 24 If such a threat were made, it would 

not have invalidated the voluntariness of Jaeger’s pleas.

[22] If the State, on the other hand, did not make such a 

threat, it would not mean, under the facts alleged, that Jaeger’s 

pleas were the result of ineffective assistance of counsel. 

Jaeger did not assert in his motion that counsel told him the 

prosecution was affirmatively making such threats. Instead, 

he alleged counsel told him “if the first plea offering was 

not accepted, [p]rosecution could turn the whole case over to 

[f]ederal [p]rosecutors, and [Jaeger] stands a better chance in 

the [d]istrict [c]ourt.” Jaeger did not allege counsel was incorrect in stating that the prosecution had the ability to turn the 

case over to federal prosecutors and that he stood a better 

chance with a State prosecution—or that a lawyer of ordinary 

training and skill in the area would not have so believed. In 

other words, Jaeger alleged insufficient facts to demonstrate 

deficiency. Counsel’s performance is deficient when it objectively does not equal that of a lawyer with ordinary training 

and skill in criminal law in the area. 25

Thus, we agree with the district court that the verified 

motion did not contain factual allegations pertaining to the 

threat (or lack thereof) of federal prosecution, which, if proved, 

would constitute an infringement of Jaeger’s constitutional 

rights rendering his convictions void or voidable.

23 State v. Robbins, 200 Neb. 723, 265 N.W.2d 226 (1978).

24 See, U.S. v. Williams, 47 F.3d 658 (4th Cir. 1995); U.S. v. Allen, 954 

F.2d 1160 (6th Cir. 1992); U.S. v. Gray, 382 F. Supp. 2d 898 (E.D. Mich. 

2005).

25 See State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
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(b) Failure to Investigate Timing 

of Miranda Advisement

With respect to the allegation that counsel was deficient 

by failing to investigate when Jaeger was given his Miranda

advisement, Jaeger fails to articulate on appeal any support 

for his conclusory statement that he would not have pled to 

the charges but for this allegedly deficient failure to investigate. He does not argue that counsel was ineffective by failing 

to move to suppress his statements made during the police 

interview. He does not even assert on appeal that the Miranda

warning was not given until the conclusion of the interview. 

Jaeger’s argument is vague and conclusory, and we are not 

compelled to address it.

[23,24] But even if we generously supplement Jaeger’s argument in his appellate brief with the allegations made in his 

verified motion, it would not change the result of this appeal. 

As a matter of law, counsel cannot be ineffective for failing 

to raise a meritless argument to the trial court. 26 Relatedly, 

the viability of any defense goes to the likelihood of whether 

a rational defendant would have insisted on going to trial. 27

Jaeger’s motion for postconviction relief failed to assert in 

even a conclusory manner that a motion to suppress would 

have had merit. More importantly, Jaeger did not raise in his 

verified motion sufficient specific factual allegations that, if 

proved true, could demonstrate a motion to suppress would 

have been meritorious.

[25] Jaeger did not allege what counsel could have found 

during an investigation, which would have supported Jaeger’s 

contention that the Miranda advisement was not given until 

after the interview and would have refuted the officer’s statement in the police report that the advisement was given before 

the interview commenced. An evidentiary hearing will not 

26 See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).

27 See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
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be warranted based only upon the prisoner’s legal conclusions 

about the significance of vaguely asserted failures to investigate or to pursue testimony. 28

[26] Also, Jaeger did not allege facts that would demonstrate 

he was in custody at the time of the interview. And it is only 

in the context of a custodial interrogation that the Miranda

safeguards are considered justified and necessary. The interrogation is not custodial unless a reasonable person would feel 

the restraint on freedom of movement of the degree associated 

with a formal arrest. 29 Without further factual allegations pertaining to custody, it can only be ascertained from the record 

that the police interview was conducted in a conference room 

at the school and before Jaeger was formally placed under 

arrest. This is insufficient to establish that the interview was a 

custodial interrogation.

We have previously described a postconviction motion that 

lacks the specific factual allegations necessary to support the 

claims made as no more than a fishing expedition for evidence 

that might aid in obtaining postconviction relief and therefore 

insufficient to warrant an evidentiary hearing. 30 For Jaeger’s 

motion to warrant an evidentiary hearing on counsel’s failure 

to raise a Miranda claim, the motion needed to allege specific facts supporting a finding that, as a threshold matter, the 

Miranda safeguards were required. It did not.

The district court did not err in finding that the allegations 

of counsel’s failure to investigate when the Miranda advisement was given did not warrant an evidentiary hearing.

3. Sentencing

[27-29] We next consider Jaeger’s claims in relation to 

his sentencing. A voluntary guilty plea or plea of no contest 

28 See, e.g., State v. Abdulkadir, supra note 19; State v. Banks, 289 Neb. 600, 

856 N.W.2d 305 (2014).

29 See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

30 See State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012).
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does not waive alleged errors occurring at sentencing; nevertheless, claims that could have been made on direct appeal 

are procedurally barred. 31 Claims of ineffective assistance of 

trial counsel could not have been made on direct appeal when 

appellate counsel was the same as trial counsel. 32

(a) Fifth Amendment

Claims of trial error, on the other hand, could have been 

made on direct appeal. Jaeger’s first argument is that the court 

erred in denying him an evidentiary hearing on the court’s 

alleged violation of his Fifth Amendment right against selfincrimination by ordering that the psychosexual evaluation 

be included in the PSI. Although Jaeger notes in his appellate 

brief that defense counsel did not object at sentencing to the 

court’s reliance upon any of the statements from the psychosexual evaluation, there was no indication in the verified 

motion that his Fifth Amendment claim was tied to a claim 

of ineffective assistance of counsel, either at sentencing or 

on appeal. The district court’s description of this claim recognized that fact. Because Jaeger’s Fifth Amendment claim is 

not a claim of ineffective assistance of counsel, it could have 

been brought on direct appeal and it is procedurally barred. 

The postconviction court did not err in denying it without an 

evidentiary hearing.

(b) Failure to Move to Recuse

[30,31] Jaeger’s second argument with respect to sentencing 

is that the district court erred in denying him an evidentiary 

hearing on his claim that defense counsel was ineffective by 

failing to move to recuse the trial judge as being biased against 

him. The right to an impartial judge is guaranteed under the 

Due Process Clauses of the U.S. and Nebraska Constitutions. 33

31 See, State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016); State v. 

York, 273 Neb. 660, 731 N.W.2d 597 (2007).

32 See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).

33 State v. Fuentes, 302 Neb. 919, 926 N.W.2d 63 (2019).
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Under the Nebraska Revised Code of Judicial Conduct, a 

judge must recuse himself or herself from a case if the judge’s 

impartiality might reasonably be questioned. 34 Under Neb. Rev. 

Code of Judicial Conduct § 5-302.11(A)(1), such instances in 

which the judge’s impartiality might reasonably be questioned 

specifically include where “[t]he judge has a personal bias or 

prejudice concerning a party or a party’s lawyer . . . .”

[32,33] 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. 35 Judicial recusal 

is required if 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. 36

In support of his conclusion that the trial judge was biased, 

Jaeger alleged in his motion that the judge had (1) allowed 

expanded news media coverage at his sentencing hearing, (2) 

not allowed him to appear at a civil nonharassment hearing 

while he was in jail, (3) issued the nonharassment order to the 

accusing party, and (4) taken a recess during a bond reduction 

hearing to print out the nonharassment order, to prove there 

was a complaint against him. On appeal, Jaeger generally 

refers to a pattern of behavior by the judge showing prejudice, 

but only highlights the judge’s not allowing him to appear as 

his own counsel at the nonharassment hearing and taking a 

recess during the bond review. He asserts these actions made 

the judge both accuser and adjudicator.

[34,35] Judicial rulings alone almost never constitute a valid 

basis for a bias or partiality motion directed to a trial judge. 37

The fact that the trial judge previously presided over other 

actions involving the parties and made rulings against one 

34 State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).

35 Id.

36 See id.

37 Id.
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or another of the parties is insufficient to show bias. 38 We agree 

with the district court that the alleged facts failed to show 

actual bias or reason to question the judge’s impartiality under 

an objective standard of reasonableness. As such, counsel 

could not have been deficient in failing to move for the judge 

to recuse himself. The district court did not err in denying this 

claim of ineffective assistance of counsel.

(c) Failure to Advocate

Jaeger’s last argument with respect to sentencing is that 

defense counsel was ineffective by arguing for probation. He 

asserts counsel knew Jaeger was likely to be sentenced to a 

period of incarceration and concludes that, in arguing for probation, defense counsel failed to advocate for him and showed 

prior knowledge of the sentences to be instituted.

We observe that Jaeger did not specifically allege in his 

motion for postconviction relief that counsel was ineffective by 

arguing for probation, though Jaeger did allege defense counsel 

knew he would be serving at least a year in prison and Jaeger 

generally alleged a lack of advocacy. But the Class IIA felonies 

for which Jaeger was convicted carried no minimum sentence. 

The only supporting facts for the conclusory statement that 

counsel knew Jaeger would be sentenced to incarceration were 

that counsel misstated the sex offender registration period, 

failed to correct an alleged misstatement by the prosecution 

about the length of time Jaeger had been viewing underage 

pornography, and did not object to Jaeger’s being shackled at 

the sentencing hearing. These allegations do not support the 

inference that counsel knew Jaeger would be sentenced to a 

period of incarceration.

In any event, we find no support for Jaeger’s argument that 

defense counsel failed to advocate for him at sentencing. The 

record shows that counsel advocated strenuously on Jaeger’s 

behalf, citing to numerous facts specific to Jaeger, which 

counsel reasonably believed might sway the district court to 

38 See id.
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impose sentences of probation. Thus, the record affirmatively 

refutes this claim of ineffective assistance of counsel at sentencing, and the district court did not err in denying it without 

an evidentiary hearing.

(d) Unidentified General Claim

Jaeger makes a vague statement in his appellate brief that 

he made “several claims of ineffectiveness at the sentencing 

hearing that prejudiced [him] before the court and were used to 

justify the excessive sentence imposed.” 39 We find this insufficient to specifically raise on appeal any additional claims of 

ineffective assistance of counsel at sentencing.

4. Direct Appeal

Lastly, Jaeger argues the district court erred by failing to 

have an evidentiary hearing on his allegations that defense 

counsel did not meet with him to discuss what would be raised 

on direct appeal, disregarded the issues Jaeger had informed 

counsel of in mail correspondence, and did not give Jaeger the 

opportunity to review the appeal before it was submitted. Since 

Jaeger’s trial counsel brought the direct appeal, a postconviction motion was Jaeger’s first opportunity to make this claim 

and it was not procedurally barred.

In his motion for postconviction relief, Jaeger alleged he 

had sent counsel a letter stating all the inaccuracies he could 

remember, but counsel “claimed he could only challenge abuse 

of discretion due to the plea deal and the [j]udge’s rigid implementation of procedure.” Jaeger also alleged counsel did not 

meet with him while the appeal was being drafted, and Jaeger 

did not see a copy of the appeal until after it was submitted.

Jaeger did not allege that he was unable to communicate 

with counsel at all. Indeed, the alleged facts reflected communications between Jaeger and his counsel. Rather, Jaeger 

claimed these alleged facts demonstrated that he “was given 

no say in what [c]ounsel would appeal and did not have any 

39 Brief for appellant at 9.
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part in formulating or reviewing the appeal” and violated the 

mandate that the client be allowed to decide what issues are 

presented on appeal—which he asserted was stated by the U.S. 

Supreme Court in Jones v. Barnes.

 40

But Jones does not stand for this proposition. To the contrary, in Jones, the Supreme Court expressly disapproved of a 

per se rule that appellate counsel must raise every nonfrivolous 

issue requested by the client. 41 Instead, the Court recognized 

the “superior ability of trained counsel in the examination into 

the record, research of the law, and marshalling of arguments 

on [the appellant’s] behalf.” 42

Thus, the law would not support a finding of ineffective 

assistance of counsel based on Jaeger’s general allegation that 

counsel failed to press on appeal the issues Jaeger requested. 

And although Jones does not mean that the strategic decisions 

of appellate counsel are not subject to examination, 43 Jaeger 

did not specify what issues, precisely, he had asked counsel 

to pursue.

The facts here are similar to those in State v. Dean,

 44

wherein we held the district court did not err in failing to grant 

the petitioner an evidentiary hearing upon the allegations that 

(1) counsel did not raise on direct appeal any of the issues he 

requested; (2) the petitioner did not know the contents of the 

appeal until it was filed; (3) the petitioner met only once with 

counsel after the conviction and before the appeal, despite 

counsel’s promise to meet again; and (4) counsel did not 

return his calls and filed an appellate brief without his notice 

or approval. We explained that without allegations as to what 

specific assignments of error the petitioner had wished for 

40 Jones v. Barnes, supra note 1.

41 See id.

42 Id., 463 U.S. at 751 (internal quotation marks omitted).

43 See State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).

44 Id.
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counsel to present in the direct appeal, the motion for postconviction relief presented mere conclusions of fact and law.

The district court did not err in denying without an evidentiary hearing Jaeger’s claim that counsel was ineffective on 

direct appeal.

VI. CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court denying, without an evidentiary hearing, Jaeger’s motion 

for postconviction relief.

Affirmed.