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STATE V. LESSLE

Cite as 312 Neb. 316

State of Nebraska, appellee, v. 

Tyeric L. Lessley, appellant.

___ N.W.2d ___

Filed August 26, 2022. No. S-21-768.

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. Appeal and Error. 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 an appellate court.

4. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

5. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

6. ____: ____: ____. 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.

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

Nebraska Supreme Court Online Library

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09/23/2022 12:06 AM CDT
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a preliminary determination as to whether an evidentiary hearing is 

justified.

8. 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.

9. Postconviction: Proof: Appeal and Error. 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.

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

record on appeal to understand unclear arguments or find support for 

broad conclusions.

11. Appeal and Error. When an issue is raised for the first time in an 

appellate court, it will be disregarded inasmuch as a lower court cannot 

commit error in resolving an issue never presented and submitted to it 

for disposition.

12. Trial: Appeal and Error. An issue not presented to or decided on by 

the trial court is not an appropriate issue for consideration on appeal.

13. Postconviction. The need for finality in the criminal process requires 

that a defendant bring all claims for relief at the first opportunity.

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

cannot be used to secure review of issues that were known to the 

defendant and which were or could have been litigated on direct 

appeal.

15. Judgments: Claim Preclusion. Claim preclusion bars litigation of any 

claim that has been directly addressed or necessarily included in a former adjudication, as long as (1) the former judgment was rendered by 

a court of competent jurisdiction, (2) the former judgment was a final 

judgment, (3) the former judgment was on the merits, and (4) the same 

parties or their privies were involved in both actions.

16. Records: Appeal and Error. It is the appellant’s responsibility to 

present a record that permits appellate review of the issue assigned 

as error.

17. Postconviction: Appeal and Error. 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.
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18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 

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

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

formance actually prejudiced the defendant’s defense.

19. ____: ____. To show that counsel’s performance was deficient, the 

defendant must show counsel’s performance did not equal that of a 

lawyer with ordinary training and skill in criminal law. To show prejudice under the prejudice component of the Strickland v. Washington, 

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

must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different.

20. ____: ____. A reasonable probability does not require that it be more 

likely than not that the deficient performance altered the outcome of the 

case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. The likelihood of a different result 

must be substantial, not just conceivable.

21. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the 

test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), may be addressed in either order, and the entire 

ineffectiveness analysis should be viewed with a strong presumption that 

counsel’s actions were reasonable.

22. 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.

23. ____. 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.

24. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.

A defendant has a fundamental constitutional right to testify, and the 

right to testify is personal to the defendant and cannot be waived by 

defense counsel’s acting alone.

25. Trial: Attorney and Client: Testimony. Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

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

Waiver. Defense counsel’s advice to waive the right to testify can pre

sent a valid claim of ineffective assistance of counsel in two instances: 

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

the right was unreasonable.

27. Postconviction: Effectiveness of Counsel: Testimony: Proof. In a 

postconviction action, when a defendant raises a claim of ineffective 

assistance of trial counsel related to counsel’s failure with regard to 

advising the defendant on his or her right to testify, an appellate court 

subjects the claim to the Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), standard and requires the defendant 

to show how trial counsel’s alleged deficient performance prejudiced 

the defense.

28. 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 Douglas County: Marlon 

A. Polk, Judge. Affirmed.

Tyeric L. Lessley, pro se.

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

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant challenges the district court’s denial of his 

motion for postconviction relief without holding an evidentiary 

hearing. The defendant alleged in the motion multiple errors 

committed by the trial court and multiple claims of ineffective 

assistance of trial counsel. The district court found that each of 

the allegations were either procedurally barred, insufficiently 

alleged, or affirmatively refuted by the record. We affirm.

II. BACKGROUND

1. Convictions

Tyeric L. Lessley was charged with first degree murder 

under alternative theories of premeditated murder or felony 
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murder, in violation of Neb. Rev. Stat. § 28-303(1) and (2) 

(Reissue 2016); two counts of use of a deadly weapon to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) 

and (c) (Reissue 2016); first degree assault, in violation of 

Neb. Rev. Stat. § 28-308 (Reissue 2016); and possession of a 

firearm by a prohibited person, in violation of Neb. Rev. Stat. 

§ 28-1206(1)(a)(b) (Reissue 2016).

Lessley filed a motion to suppress all evidence obtained 

from a cell phone search. After a hearing, the motion to suppress was denied. The district court held that Lessley waived 

his right to speedy trial.

Before Lessley’s 5-day jury trial began, the State was 

allowed to amend its information by interlineation to remove 

the premeditated murder theory of proof with regard to the first 

degree murder charge. At trial, the State pursued the remaining 

theory of felony murder.

Further details may be found in this court’s opinion on 

direct appeal, 1 but the evidence at trial generally showed as 

follows:

(a) Events of October 29, 2016

Between 4 and 4:30 a.m. on October 29, 2016, Curtis 

Goodwin was paying bills on his laptop computer in the home 

shared with his fiance, Suzanne Pope, in Omaha, Nebraska, 

while Pope was sleeping in a bed in the main floor living room 

of the residence, which the couple used as their bedroom.

During this time, Goodwin left the home through the back 

door to investigate a knocking sound he heard at the front of 

the house. Goodwin testified that family and friends never used 

the front door of the residence, but instead entered and exited 

through the rear door.

Goodwin grabbed a baseball bat before leaving the house. 

Goodwin then walked around to his front door, where he discovered a man knocking on the door. Goodwin asked the man 

if he could help him. The man pointed a gun in Goodwin’s face 

1 State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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and responded, “Yeah, n-----, I’m your worst mother f------ 

nightmare.” The man, whom Goodwin testified he did not recognize, then told Goodwin to go into the house.

The two walked around the side of the house to the back 

entrance. Goodwin testified that at some point along the way, 

he dropped the bat. Once inside, the man told Goodwin to 

“give me all your money and your shit.” Goodwin woke Pope 

to tell her that someone was there to rob them. According 

to Goodwin, both he and Pope told the intruder they did not 

have any money. At that point, the intruder shot Pope, took 

Goodwin’s laptop, and shot Goodwin as Goodwin lunged 

at him.

Goodwin was able to follow the intruder out of the house 

and into the backyard, where Goodwin collapsed as the 

intruder ran down the street carrying Goodwin’s laptop. At this 

time, Goodwin noticed an unfamiliar dark-colored Chevrolet 

Suburban or Tahoe parked in his driveway, which was located 

in the backyard of the residence. Goodwin testified that this 

vehicle had no license plates and described the back doors 

as opening “like kitchen cabinets.” The intruder walked back 

past Goodwin. By this time, Goodwin had retrieved the bat he 

dropped earlier and swung it in the direction of the intruder. 

Goodwin testified that he hit “something,” but did not know 

if it was the intruder. The intruder then shot Goodwin again, 

dropped the laptop, and drove away.

Pope was killed and Goodwin was injured in this incident. 

Goodwin was in a coma for nearly 3 months and sustained the 

loss of one of his kidneys, his spleen and gallbladder, and several feet of his small intestine. Complications from his injuries 

caused Goodwin to fall into a second coma, during which he 

nearly died.

“Shotspotter” evidence corroborated the timing of the gunshots. Shotspotter is a technology utilized by the Omaha Police 

Department to determine the location of gunshots based upon 

sounds captured by microphones positioned in certain parts of 

the city. Here, Shotspotter captured the sound of two gunshots 
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at 4:30 and 4:31 a.m., 20 seconds apart, sounding from outside Goodwin and Pope’s residence. Neighbors also testified 

they heard gunshots around that time.

In addition, neighbors witnessed a vehicle travel west from 

the residence after they heard the gunshots. One neighbor 

testified that she saw a dark blue, green, or black Suburban 

or Tahoe. A second neighbor testified that he witnessed a 

dark-colored Suburban or Tahoe with a loud exhaust, custom 

wheels, and tinted windows, and that based upon his experience with vehicles, he estimated the vehicle was between a 

1996 and 1999 model.

(b) DNA and Other Evidence

Goodwin’s laptop computer was found in the backyard near 

the driveway. It had a partial shoeprint on its cover. A tread 

expert testified that the shoeprint was consistent with a Nike 

“Shox” tennis shoe.

Various items of evidence were also recovered from the 

scene and tested. The State’s DNA expert testified that the 

blood and baseball bat found at the scene were both swabbed 

and tested. Each produced a statistical match to Lessley’s 

DNA.

Law enforcement later determined that on October 12, 2016, 

Lessley had purchased a 2001 green Chevrolet Suburban from 

an Omaha dealership. That dealership had global positioning 

system records placing the Suburban less than a mile southeast 

of the Goodwin-Pope residence at 4:18 a.m. on October 29. 

One of the investigating officers testified that it had taken him 

about 2 minutes to drive from the residence to the location 

noted in the global positioning system records.

Lessley was arrested in January 2017. At the time of arrest, 

Lessley was wearing a pair of Nike Shox shoes, which were 

consistent with the shoeprint found on the laptop computer. 

Lessley’s Suburban was impounded at the time of his arrest. 

The Suburban still had in-transit signs and no license plates. 

It also had tinted windows, “barn-door” style rear doors, and 
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a louder-than-stock exhaust. A search of Lessley’s residence 

recovered custom aftermarket rims.

At the time of the shooting, Lessley and his girlfriend lived 

a 3-minute drive northwest of the Goodwin-Pope residence. 

Lessley’s girlfriend testified that Lessley returned from work 

on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell 

asleep shortly after Lessley returned home and was awoken 

before 5:30 a.m. by Lessley’s talking on the telephone. At 

this time, Lessley’s girlfriend noticed a “hole” in the right 

side of Lessley’s forehead that he did not have when he 

came home from work. Lessley’s cell phone records show 

that he was on the cell phone between 4:58 and 5:06 a.m. on 

October 29.

The jury was instructed only on the felony murder theory 

and was not instructed as to any other theory of first degree 

murder, or as to any other degree of murder. Lessley did not 

object to the instructions as given and did not offer any proposed instructions.

The jury found Lessley guilty on all five counts. At the sentencing hearing, the district court initially sentenced Lessley 

to life imprisonment for first degree murder, 20 to 20 years’ 

imprisonment for first degree assault, 3 to 3 years’ imprisonment for possession of a deadly weapon by a prohibited person, and 5 to 5 years’ imprisonment on both use of a deadly 

weapon to commit a felony convictions. After counsel for the 

State and for Lessley raised the issue of indeterminate sentences, telling the district court that the sentences had to be 

different, the district court amended its sentences for counts 

II through V, where it added 1 day to the maximum term of 

each sentence so the minimum and maximum terms would 

not be the same. All sentences were ordered to be served 

consecutively.

2. Direct Appeal and Resentencing

On direct appeal, Lessley, with trial counsel, assigned that 

there was insufficient evidence to support his convictions 
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and that the district court erred in not instructing the jury 

on the lesser-included offense of manslaughter. This court 

affirmed Lessley’s convictions and determined that the district court did not err when it did not instruct the jury on 

manslaughter. However, this court found plain error in the 

sentences imposed for counts II through V. This court concluded that the original sentences imposed for these convictions were valid because the maximum term imposed by the 

court (5 years and 3 years) was not greater than the maximum 

term provided for by law (50 years) and the minimum term 

was the minimum term provided for by law (5 years and 3 

years), as set forth in Neb. Rev. Stat. § 29-2204(1)(b) (Reissue 

2016). Therefore, this court vacated the modified sentences 

and remanded the cause for resentencing in conformity with 

the initial sentences of 5 to 5 years’ imprisonment for each 

use conviction and 3 to 3 years’ imprisonment for the possession conviction.

3. Postconviction Proceedings

Lessley filed a timely motion for postconviction relief. 

The motion alleged various claims of ineffective assistance of 

counsel at trial and on direct appeal and numerous claims of 

error by the trial court. Many claims made in Lessley’s postconviction motion have not been raised in his appeal.

Relevant to the issues being raised on appeal, Lessley 

asserted in his postconviction motion that his trial counsel 

was ineffective for (1) advising him to waive his speedy trial 

rights, (2) failing to interview potential witnesses, (3) refusing to allow Lessley to testify regarding an extramarital affair 

he had with Pope and an altercation that ensued between him 

and Goodwin, (4) failing to present readily available expert 

testimony such as a serology expert, and (5) failing to object 

to the State’s amendment of the first degree murder charge on 

the first day of trial. Lessley further asserted that his appellate counsel was ineffective for failing to raise on appeal the 

district court’s error in allowing the State to amend its information on the first day of trial and his excessive sentences 
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issue. Lessley also claimed the district court erred when ruling on the motion to suppress and instructing the jury. Lessley 

alleged his trial counsel was ineffective for failing to successfully pursue the motion to suppress and object to erroneous 

jury instructions at trial and was ineffective on appeal for 

failing to pursue those issues.

The district court entered a written order denying Lessley’s 

motion for postconviction relief without an evidentiary hearing, finding that each of the claims were either procedurally barred, insufficiently alleged, or affirmatively refuted by 

the record.

III. ASSIGNMENTS OF ERROR

Lessley assigns, consolidated and restated, that the district 

court erred when it (1) denied his request for appointment 

of postconviction counsel without a hearing, (2) denied his 

motion for postconviction relief without allowing the State 

to respond, and (3) denied his motion for postconviction 

relief without an evidentiary hearing as being without merit 

or procedurally barred. He also assigns that the district court 

erred during the trial stage of his proceedings by (1) failing 

to suppress evidence derived from an unlawful search warrant 

and supporting affidavit, (2) failing to find the State’s use of 

peremptory challenges to exclude jurors of a specific racial 

class violated his rights to due process and equal protection, 

(3) abusing its discretion by supporting a verdict that was 

insufficient to support his conviction for first degree murder, 

and (4) giving certain jury instructions.

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 State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
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[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. 3 When reviewing a 

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

[3] 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 an appellate court. 5

V. ANALYSIS

Lessley asserts on appeal, broadly, that the district court 

erred in denying postconviction relief without first conducting 

an evidentiary hearing and in determining that his claims are 

without merit and are procedurally barred. More specifically, 

Lessley asserts multiple errors by the trial court and multiple 

claims of ineffective assistance of counsel.

Before addressing the specific claims of postconviction 

relief that Lessley 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 and dispose of 

any claims Lessley raised that are procedurally barred or not 

properly before us for appellate review.

[4-6] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

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

Thus, in a motion for postconviction relief, the defendant must 

allege facts which, if proved, constitute a denial or violation of 

his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. 6

3 State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).

4 Id.

5 Id.

6 Cullen, supra note 2.
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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. 7

[7,8] 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. 8 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. 9

[9,10] 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. 10 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. 11 The appellate court will not 

scour the record on appeal to understand unclear arguments or 

find support for broad conclusions. 12

7 Id.; Jaeger, supra note 3.

8 Jaeger, supra note 3.

9 Id.

10 Id.

11 Id.

12 Id.
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1. Claims Not Properly Brought 

for Appellate Review

With these general principles in mind, this court notes that 

Lessley assigns many errors on appeal that he does not specifically argue in his brief. Lessley assigns that the district 

court erred in denying his request for appointment of counsel 

without a hearing, failing to suppress evidence derived from 

an unlawful search warrant and supporting affidavit, failing to 

find the State’s use of peremptory challenges to exclude jurors 

of a specific racial class violated his rights to due process and 

equal protection, and supporting a verdict based on evidence 

that was insufficient to support a conviction of Lessley as 

guilty beyond a reasonable doubt for felony murder. These 

errors were not specifically argued in Lessley’s appellate brief, 

and we accordingly decline to consider these assignments in 

this appeal.

[11,12] Other issues that are not properly before an appellate court for review are issues that are not preserved below. 

A motion for postconviction relief must mirror the arguments 

made in a party’s appellate brief because we have said that 

when an issue is raised for the first time in an appellate court, 

it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted 

to it for disposition. 13 Therefore, an issue not presented to or 

decided on by the trial court is not an appropriate issue for 

consideration on appeal. 14

Lessley asserts in one general statement in his brief that 

“[t]rial counsel rendered ineffective assistance of counsel by 

not making proper objections to evidence discovered in violation of [Lessley’s] 4th amendment right to be free from 

unreasonable search and seizure.” 15 Lessley words this allegation in his motion for postconviction relief as “[t]rial counsel 

13 See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).

14 State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).

15 Brief for appellant at 11.
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rendered ineffective assistance of counsel when said counsel 

fumbled what should have been a successful motion to suppress evidence seized pursuant to the search warrant of his 

home, cell phone[,] and the questioning of his minor daughter 

. . . without a guard[ian] present at [the] interview.” These 

allegations are different. One focuses on the pretrial motion to 

suppress hearing, and the other focuses on trial counsel’s failure to object to the evidence received at trial after the motion 

to suppress was denied.

Lessley also contends in his appellate brief that counsel was 

ineffective because counsel failed to object to the court’s continued delay of pretrial proceedings and that this caused him 

to unknowingly waive his speedy trial right. In contrast, in his 

motion, Lessley alleged that trial counsel was ineffective for 

advising him to waive his statutory right to speedy trial and 

argued that if he had not done so, the prosecution would have 

been pressed to move forward with trial with less than 30 days 

on the speedy trial clock.

With both of these issues, Lessley is asserting for the first 

time on appeal that trial counsel was ineffective for failing to 

object during trial, but he raised different allegations in his 

motion for postconviction relief. Since the district court was 

not presented with these arguments, and thus did not decide 

whether trial counsel was ineffective for failing to object, it is 

inappropriate for this court to consider them on appeal.

2. Claims That Are Procedurally Barred

Lessley also assigns and argues errors that the district court 

correctly determined are procedurally barred. Lessley contends 

that the district court abused its discretion when it “meted out 

an invalid indeterminate sentence by imposing a fix[ed] indeterminate sentence plus one day” and when it “failed and/or 

neglected to adjudicate this claim on postconviction relief.” 16

Further, Lessley raises an issue with the jury instructions given 

16 Id. at 13 and 14.
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at trial, asserting that the trial court improperly defined reasonable doubt as a lower standard by which the State had to prove 

him guilty and in giving an instruction regarding the elements 

of “intent” because “[i]ntent is a mental element of the crime 

of [f]irst degree [m]urder (felony) and assault in the [f]irst 

[d]egree” and “[t]he trial court failed to give proper instructions of willful, knowingly, with specific intent to [commit] the 

allege[d] crime, resulting in prejudice to [Lessley].” 17

On direct appeal, 18 Lessley contended that the district court 

erred in not instructing the jury on the lesser-included offense 

of manslaughter and that there was insufficient evidence to 

support his convictions. The State raised the issue of Lessley’s 

sentences. We affirmed Lessley’s convictions and determined 

that it was not error for the district court to not instruct the 

jury on manslaughter. We also determined that the district 

court’s modifying Lessley’s sentences by adding 1 day to his 

maximum sentences was an invalid modification because the 

original sentences for the use and possession convictions were 

valid. We remanded the cause for resentencing, directing the 

district court to resentence Lessley according to the original 

sentences imposed.

Lessley attempts to argue again that his sentences with 1 

day added were invalid indeterminate sentences. Lessley’s 

argument fails to take into account that these are no longer his 

sentences based on our remand in his direct appeal. Further, 

his motion attempts to argue that other jury instructions were 

incorrect. Since we considered a different issue regarding the 

instructions to the jury in his direct appeal, these issues should 

have been known to Lessley and should have been raised on 

his direct appeal. Therefore, we decline to consider these arguments here.

[13-15] The need for finality in the criminal process 

requires that a defendant bring all claims for relief at the first 

17 Id. at 9.

18 Lessley, supra note 1.
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opportunity. 19 We have consistently said that a motion for postconviction relief cannot be used to secure review of issues that 

were known to the defendant and which were or could have 

been litigated on direct appeal. 20 To the extent these arguments 

are being raised for the first time in relation to his motion for 

postconviction relief, they have not been brought at the first 

opportunity. To the extent these issues were raised and directly 

addressed or necessarily decided in our decision on direct 

appeal, they are barred by claim preclusion. Claim preclusion 

bars litigation of any claim that has been directly addressed or 

necessarily included in a former adjudication, as long as (1) 

the former judgment was rendered by a court of competent 

jurisdiction, (2) the former judgment was a final judgment, (3) 

the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions. 21

3. Due Process

An issue that is properly before us and appropriate for 

appellate review is Lessley’s contention that the district court 

erred when it failed to allow the State the opportunity to 

respond to his motion for postconviction relief before ruling upon it. Lessley acknowledges that the petitioner has the 

burden of pleading and proving the facts necessary to entitle 

him to relief, but he argues that the State had the burden of 

pleading grounds of preclusion and then the burden returns to 

the petitioner to disprove the preclusion’s existence. He asserts 

that because the State was “never given the opportunity to 

respond,” the record was not complete for the district court to 

make a factual finding. 22

Lessley’s motion for postconviction relief was filed on 

February 3, 2020, and the district court’s order denying 

19 State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

20 State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).

21 State v. Marrs, 295 Neb. 399, 888 N.W.2d 721 (2016).

22 Brief for appellant at 7.
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Lessley’s motion was filed on September 1, 2021. Lessley 

asserts in his brief that “[i]t has been the formal policy of the 

Douglas County District Court judges to allow the State 60 to 

90 days to respond to formal pleading of postconviction once 

the court has had an opportunity to review the postconviction 

pleading.” 23 While this may be true, the State had substantially 

more time than 60 to 90 days to respond to Lessley’s motion 

if it wished to.

The State was not required to respond to Lessley’s motion 

for postconviction relief, and the district court was not in 

error in failing to order the State to respond. Neb. Rev. Stat. 

§ 29-3001(2) (Reissue 2016) states, in relevant part:

Unless the motion and the files and records of a case 

show to the satisfaction of the court that the prisoner is 

entitled to no relief, the court shall cause notice thereof to 

be served on the county attorney, grant a prompt hearing 

thereon, and determine the issues and make findings of 

fact and conclusions of law with respect thereto.

In State v. Burries,

 24 we declined to conclude that the State 

has an obligation to raise issues concerning a postconviction action at a time prior to that mandated by the statute. In 

Burries, the State had filed a motion to dismiss in response 

to the defendant’s first motion for postconviction relief. The 

defendant later filed a second amended motion for postconviction relief and argued on appeal that when the State failed 

to file a brief in response, the State effectively withdrew its 

motion to dismiss and conceded that he was entitled to relief. 

We acknowledged that though the State, through its county 

attorneys, can, and often does, participate at earlier points in 

the process, the State is only called upon to take action with 

respect to a motion once it receives notice from the court. And, 

under § 29-3001(2), that notice is only mandated once the court 

determines that a prisoner is entitled to a hearing. Therefore, 

23 Id. at 7-8.

24 State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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we declined to conclude that the State has an obligation prior 

to the notice mandated through § 29-3001(2) to respond to a 

petitioner’s motion for postconviction relief.

Similarly here, the district court determined that Lessley was 

not entitled to an evidentiary hearing on any claim he raised 

in his motion for postconviction relief. Therefore, the court 

was never required to provide notice to the State to issue a 

response, and the State was not obligated to provide a response 

to Lessley’s motion. Thus, the district court did not err in ruling on Lessley’s motion for postconviction relief without first 

receiving a response from the State.

[16] To the extent Lessley argues the record was not complete without the State’s response, we reiterate that it is the 

appellant’s responsibility to present a record that permits appellate review of the issue assigned as error. 25 Therefore, Lessley 

could not depend on any action from the State in order for the 

record to be complete for the district court to make a decision 

or for the appellate court to review its decision. The district 

court’s decision regarding whether a motion for postconviction 

relief is entitled to an evidentiary hearing is based solely on 

the facts alleged in the petitioner’s motion and the files and 

records of the case, which need not require a response from 

the State. 26

4. Ineffective Assistance of Counsel

[17] Lessley’s remaining contentions are ineffective assist

ance of counsel claims. Generally, a motion for postconviction 

relief cannot be used to secure review of issues that were or 

could have been litigated on direct appeal. However, 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. 27

25 State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).

26 See § 29-3001.

27 Jaeger, supra note 3.
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[18-21] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

 28 the defendant must 

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

that this deficient performance actually prejudiced the defend

ant’s defense. 29 To show that counsel’s performance was deficient, the defendant must show counsel’s performance did 

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

criminal law. 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. The 

likelihood of a different result must be substantial, not just 

conceivable. 30 The two prongs of this test may be addressed 

in either order, and the entire ineffectiveness analysis should 

be viewed with a strong presumption that counsel’s actions 

were reasonable. 31

Lessley asserts that trial counsel was ineffective when counsel (1) failed to interview and investigate potential alibi witnesses, (2) refused to allow him to testify, (3) did not make 

readily available expert witnesses, and (4) failed to object to 

the State’s amendment of the information. We will discuss each 

of these claims individually.

(a) Failure to Investigate or 

Interview Alibi Witnesses

Lessley argues that trial counsel was ineffective because 

counsel failed to interview and investigate potential alibi 

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

(1984).

29 State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).

30 Id.

31 Cullen, supra note 2.
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witnesses, such as Cordell Westbrook. Lessley asserts that 

Westbrook would have given testimony that he was with 

Lessley between 1:30 and 4:30 a.m. on October 29, 2016. 

Lessley argues that “[h]ad counsel interviewed and investigated . . . Westbrook as part of his trial investigation of the 

facts of the case, compelling testimony likely would have been 

given resulting in [Lessley’s] acquittal of aforemention[ed] 

charge to which the jury found him guilty.” 32

In his motion for postconviction relief, Lessley added the 

allegation that Westbrook would have testified that he observed 

the “scar” on Lessley’s head at that time; however, we will 

not consider this allegation in our analysis because it was not 

alleged in Lessley’s brief. An appellate court considers errors 

that are both specifically assigned and specifically argued in 

the brief of the party asserting the error and will not read the 

brief together with a motion for postconviction relief in order 

to discern what the appellant’s complete argument is.

[22,23] 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. 33 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. 34

In State v. Munoz,

 35 we determined the defendant’s allegations regarding witness testimony did not warrant an evidentiary hearing because they were insufficiently specific. In 

Munoz, the defendant alleged in his motion for postconviction 

relief that trial counsel was deficient in failing to depose or 

interview certain named witnesses who had knowledge of his 

whereabouts during the crime. The defendant claimed one 

32 Brief for appellant at 11.

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

34 Id.

35 Id.
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named witness’ testimony would have presented a rebuttable 

presumption to the State’s theory of how he allegedly murdered the victim and “‘would have contradicted the [S]tate’s 

evidence underlining proof of [his] alibi during the time of the 

victim’s murder.’” 36 But the defendant did not elaborate as to 

this potential testimony in any further detail. As to this witness, we concluded that the defendant’s allegations consisted 

entirely of legal conclusions and conclusions of fact without 

supporting facts.

The defendant in Munoz also alleged that another named 

witness had engaged in a conversation with the defendant’s son 

that was instrumental to his desire to travel out of town during 

the time the crime took place and that this testimony would 

have been pivotal because the witness possessed knowledge 

of the events leading to the defendant’s desire to travel. While 

the facts alleged by the defendant were more specific regarding 

the witness’ testimony, we found it was still insufficient to warrant an evidentiary hearing. We explained that the defendant 

failed to allege when the conversation regarding his desire to 

travel with the witness took place—specifically whether the 

conversation took place before the murder—and the testimony 

would not have been exculpatory under the facts of the case 

because the alleged alibi was for when the victim, who had 

been murdered several days before, was found, not when she 

was murdered. We also noted that the testimony would have 

been inadmissible hearsay.

In contrast, we found the facts alleged by the defendant in 

State v. Stricklin 37 were sufficient to show, if proved, both deficient performance and prejudice regarding his alibi defense. In 

Stricklin, the defendant alleged that on the day of the crimes, 

he took his stepson to a barber shop at 10 a.m., left the barber 

shop around noon, and drove to his grandmother’s house, during which drive he made a call on his cell phone at 12:34 p.m. 

36 Id. at 295, 959 N.W.2d at 812.

37 Stricklin, supra note 29.
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The defendant alleged that four specifically named witnesses 

and his cell phone records would corroborate this alibi. At trial, 

the State relied on cell phone evidence that linked the defend

ant and his codefendant to the crime scene between 11:42 a.m. 

and 12:36 p.m. We noted that, based on the State’s theory of 

the case, the crimes occurred during the general time period 

the defendant’s alleged alibi witnesses would confirm he was 

someplace else. Since the defendant alleged that counsel knew 

of this alibi information and was deficient in failing to pre

sent it, we found that the defendant had alleged facts which, 

if proved, were sufficient to show both deficient performance 

and prejudice regarding his alibi defense and that the defendant 

was entitled to an evidentiary hearing on whether trial counsel 

was ineffective for failing to file notice of and present evidence of the defendant’s alibi defense.

While Lessley alleged Westbrook would have attested that 

he was with Lessley between 1:30 and 4:30 a.m. on the day 

of Pope’s murder and Goodwin’s assault, he did not allege 

where Westbrook would have testified he and Lessley were 

at those times. Thus, this alleged potential testimony was not 

inconsistent with Westbrook’s being with Lessley outside of 

the victims’ house. Unlike in Stricklin, it was not potential 

evidence that Lessley was somewhere else. It was not alibi evidence. The allegation that had counsel interviewed and investigated Westbrook as part of his trial investigation of the facts 

of the case, “compelling testimony likely would have been 

given resulting in [his] acquittal,” 38 is a factual conclusion and 

also insufficient.

The district court did not err in denying Lessley’s motion 

without an evidentiary hearing on this claim.

(b) Refusal to Allow Lessley to Testify

Lessley asserts that trial counsel was ineffective because 

counsel refused to allow him to testify to an extramarital affair 

with Pope and the altercation that ensued between him and 

38 Brief for appellant at 11.
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Goodwin between 12:30 and 1:15 a.m. the night of Pope’s 

murder. Lessley argues that had this testimony been presented 

to the jury, it would have explained some of the circumstantial 

evidence present at the crime scene, which we presume means 

his DNA and his shoe print on Goodwin’s laptop.

[24-27] A defendant has a fundamental constitutional right 

to testify, and the right to testify is personal to the defendant 

and cannot be waived by defense counsel’s acting alone. 39

Defense counsel bears the primary responsibility for advising 

a defendant of his or her right to testify or not to testify, of 

the strategic implications of each choice, and that the choice 

is ultimately for the defendant to make. 40 Defense counsel’s 

advice to waive the right to testify can present a valid claim 

of ineffective assistance of counsel in two instances: (1) if the 

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

waive the right was unreasonable. 41 In a postconviction action, 

when a defendant raises a claim of ineffective assistance of 

trial counsel related to counsel’s failure with regard to advising 

the defendant on his or her right to testify, we have subjected 

the claim to the Strickland standard and required the defendant 

to show how trial counsel’s alleged deficient performance 

prejudiced the defense. 42

Lessley does not specifically allege supporting facts that 

show how counsel interfered with his decision on whether 

to testify or if counsel’s advice to waive his right to testify 

was unreasonable. Lessley provides no detail regarding what 

discussions he had with counsel that would show counsel 

interfered with his right to testify and little detail as to what 

his testimony actually would have been. His allegation that 

counsel refused to let him testify to an extramarital affair 

39 State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).

40 Cullen, supra note 2.

41 Stricklin, supra note 29.

42 Cullen, supra note 2.
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with Pope and an altercation between him and Goodwin is a 

conclusory factual statement that is insufficient without supporting facts.

Lessley failed to allege sufficient facts that, if proved, would 

show counsel’s performance was ineffective with respect to 

Lessley’s right to testify. The district court did not err when it 

denied this claim without an evidentiary hearing.

(c) Failure to Offer Expert Witnesses

Lessley contends that trial counsel did not perform as a 

competent attorney because counsel did not make readily available expert witnesses who would have presented scientific and 

forensic testimony to “refute the State’s evidence.” 43 More 

specifically, Lessley asserts that had counsel elicited testimony 

of a serology expert, “an expert would have testified the bloodspatter from the baseball bat and laptop was a mixture of . . . 

Goodwin and possibly [Lessley]” and would have “testified to 

the [n]ew testing procedures and the flaw[ed] testing procedures use[d] by the State[’]s forensic department.” 44 Lessley 

generally asserts that the failure to consult with an expert 

prejudiced his defense.

[28] We will not consider Lessley’s argument that this 

expert would have testified to the flawed testing procedures by the State because this allegation does not appear in 

Lessley’s motion for postconviction relief. 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. 45

As for the remaining assertions, Lessley fails to allege how 

a serology expert’s testimony that the blood spatter was a mixture of Goodwin’s and Lessley’s blood would have changed 

the outcome of the trial. Lessley does not seem to dispute that 

at least some of the blood on the bat was his, and in light of 

43 Brief for appellant at 12.

44 Id.

45 State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
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all the evidence offered against him at trial, it is unclear how 

this expert testimony that would “refute the State’s evidence” 

would be enough to alter the outcome of the trial.

Again, the facts Lessley alleges are insufficient to require 

an evidentiary hearing. The district court did not err in denying 

an evidentiary hearing on the alleged ineffectiveness of failing to elicit testimony of a serology expert.

(d) Failure to Object to Amendment 

of Information

Finally, Lessley generally asserts trial counsel was ineffective because counsel failed to object to the State’s amending 

the information on the first day of trial. Lessley argues that this 

prejudiced him “in that there was no time to prepare for the 

new charges.” 46

The record affirmatively refutes this. The State is correct 

when it argues that there was no prejudice to Lessley. The 

State did not change or add charges when it amended the 

information; rather, it simply removed one of the theories of 

first degree murder that Lessley had been charged with. The 

State removed the premeditated murder theory and proceeded 

to trial on only the felony murder theory. Therefore, Lessley 

did not have to “prepare for the new charges” 47 or “prepare 

and present a new defense strategy” as he asserts. Lessley fails 

to allege facts to show that he was prejudiced by this amendment and that counsel was ineffective for failing to object to it. 

The district court did not err in denying Lessley an evidentiary 

hearing on this claim.

VI. CONCLUSION

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

court denying Lessley’s motion for postconviction relief without an evidentiary hearing.

Affirmed.

46 Brief for appellant at 12.

47 Id.