- 575 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

State of Nebraska, appellee, v. 

Decabooter Williams, appellant.

___ N.W.2d ___

Filed January 20, 2017. No. S-16-083.

1. Postconviction: Proof: Appeal and Error. A defendant requesting 

postconviction relief must establish the basis for such relief, and the 

findings of the district court will not be disturbed unless they are clearly 

erroneous.

2. 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.

3. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When 

reviewing questions of law, an appellate court resolves the questions 

independently of the lower court’s conclusion.

4. Postconviction: Constitutional Law. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations.

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. Postconviction: Records. Neb. Rev. Stat. § 29-3001(2) (Reissue 2016) 

requires that the court grant a prompt hearing unless the motion and the 

files and records of the case show to the satisfaction of the court that 

the prisoner is entitled to no relief.

7. Postconviction: Constitutional Law: Proof: Records. Under the 

Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004 

(Reissue 2016), an evidentiary hearing on a motion for postconviction 

Nebraska Supreme Court Online Library

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

01/20/2017 08:08 AM CST
- 576 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

relief must be granted when the motion contains factual allegations 

which, if proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution. However, if the motion alleges 

only conclusions of fact or law, or the records and files in the case 

affirmatively show that the movant is entitled to no relief, no evidentiary 

hearing is required.

8. Postconviction: Effectiveness of Counsel: Appeal and Error. A 

motion for postconviction relief asserting ineffective assistance of trial 

counsel is procedurally barred when (1) the defendant was represented 

by a different attorney on direct appeal than at trial, (2) an ineffective 

assistance of trial counsel claim was not brought on direct appeal, and 

(3) the alleged deficiencies in trial counsel’s performance were known 

to the defendant or apparent from the record.

9. Postconviction: Appeal and Error. On postconviction relief, a defendant cannot secure review of issues which were or could have been 

litigated on direct appeal. A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not 

exist at the time the first motion was filed.

10. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a 

defendant is represented both at trial and on appeal by the same lawyers, 

the defendant’s first opportunity to assert the ineffective assistance of 

trial counsel is in a postconviction motion.

11. Effectiveness of Counsel: Proof. Under Strickland v. Washington, 466 

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

burden to show that (1) counsel performed deficiently—that is, counsel 

did not perform at least as well as a lawyer with ordinary training and 

skill in criminal law—and (2) this deficient performance actually prejudiced the defendant in making his or her defense.

12. ____: ____. The prejudice prong of the ineffective assistance of counsel 

test requires that the defendant show a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding in question would have been different.

13. Effectiveness of Counsel: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

14. Effectiveness of Counsel: Appeal and Error. An appellate court may 

address the two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, in either order.

15. Trial: Effectiveness of Counsel: Appeal and Error. In determining 

whether trial counsel’s performance was deficient, there is a strong presumption that counsel acted reasonably.

16. Trial: Attorneys at Law. Trial counsel is afforded due deference to 

formulate trial strategy and tactics.
- 577 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

17. Effectiveness of Counsel: Presumptions: Appeal and Error. The 

entire ineffectiveness analysis is viewed with a strong presumption 

that counsel’s actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there 

was prejudice.

18. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and 

Error. When reviewing a claim of ineffective assistance of counsel, 

an appellate court will not second-guess reasonable strategic decisions 

by counsel.

19. Right to Counsel. When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to the court for 

the removal of counsel, his or her only alternative is to proceed pro se if 

he or she is competent to do so.

20. ____. An indigent defendant’s right to counsel does not give the defendant the right to choose his or her own counsel.

21. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct. If it concludes that 

the prosecutor’s acts were misconduct, it next considers whether the 

misconduct prejudiced the defendant’s right to a fair trial.

22. ____: ____: ____. In determining whether a prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, an appellate court 

considers the following factors: (1) the degree to which the prosecutor’s 

conduct or remarks tended to mislead or unduly influence the jury; (2) 

whether the conduct or remarks were extensive or isolated; (3) whether 

defense counsel invited the remarks; (4) whether the court provided 

a curative instruction; and (5) the strength of the evidence supporting 

the conviction.

23. Trial: Prosecuting Attorneys: Juries. Prosecutors are not to inflame 

the prejudices or excite the passions of the jury against the accused.

24. Insanity: Proof. The two requirements for the insanity defense are 

that (1) the defendant had a mental disease or defect at the time of the 

crime and (2) the defendant did not know or understand the nature and 

consequences of his or her actions or that he or she did not know the 

difference between right and wrong.

25. Insanity: Intoxication. Insanity immediately produced by intoxication 

does not destroy responsibility when the defendant, when sane and 

responsible, made himself or herself voluntarily intoxicated.

26. Criminal Law: Intoxication: Intent. Voluntary intoxication is no justification or excuse for crime unless the intoxication is so excessive that 

the person is wholly deprived of reason so as to prevent the requisite 

criminal intent.
- 578 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

27. Criminal Law: Intoxication: Mental Competency. As a matter of law, 

voluntary intoxication is not a complete defense to a crime, even when 

it produces psychosis or delirium.

28. Insanity: Intoxication. A defendant may not assert an insanity defense 

when the insanity was temporary and brought on solely by voluntary 

intoxication through the use of drugs.

29. Homicide: Intent. It is not the provocation alone that reduces the 

grade of the crime, but, rather, the sudden happening or occurrence of 

the provocation so as to render the mind incapable of reflection and 

obscure the reason so that the elements necessary to constitute murder 

are absent.

30. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

31. Trial: Photographs. The admission of photographs of a gruesome 

nature rests largely with the discretion of the trial court, which must 

determine their relevancy and weigh their probative value against their 

prejudicial effect.

32. Trial: Photographs: Homicide: Intent. In a homicide prosecution, a 

court may admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and extent of 

wounds and injuries to it, and to establish malice or intent.

33. Postconviction: Constitutional Law: Effectiveness of Counsel. There 

is no constitutional guarantee of effective assistance of counsel in a 

postconviction proceeding.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Reversed and remanded with directions.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

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

for appellee.

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

Kelch, and Funke, JJ.

Heavican, C.J.

I. INTRODUCTION

Decabooter Williams was convicted of two counts of first 

degree murder. His convictions and sentences were affirmed on 
- 579 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

direct appeal.1 A subsequent postconviction motion was denied, 

and the appeal from that denial was dismissed for the failure 

to file a brief. Williams then filed a second motion for postconviction relief, which was granted in part and in part denied. 

Williams appeals. We reverse, and remand with directions.

II. BACKGROUND

Williams was convicted of two counts of first degree murder in connection with the deaths of Victoria Burgess and 

LaTisha Tolbert in a 2003 house fire. Eyewitness testimony 

and surveillance video presented at Williams’ trial, in addition 

to Williams’ taped confession, established the following overwhelming evidence that Williams committed the crimes for 

which he was charged.

According to the evidence, Burgess and Williams had an 

argument at Burgess’ house. Following the argument, Williams 

went to a convenience store where he filled a wine bottle with 

gasoline and obtained matches. Williams woke Diane Williams 

(Diane), his former girlfriend who lived with Burgess, and 

warned her to leave because he was going to burn the house 

down. Williams then poured gasoline around the interior of the 

house and lit it. Diane escaped through a window, but Burgess 

and Tolbert perished in the fire. A more detailed summary of 

the facts can be found in our opinion on direct appeal.

1. Trial

Following a jury trial, Williams was convicted of two counts 

of murder in the first degree. He was sentenced to life without 

parole on both counts. Williams was represented at trial by 

counsel from the Douglas County public defender’s office.

2. Direct Appeal

Williams appealed his convictions.2 He was represented 

on appeal by different counsel than at trial. His direct appeal 

1 State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).

2 Id.
- 580 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

counsel was appointed by the court. On appeal, Williams contended that (1) he did not voluntarily waive his Miranda rights, 

because he was sleep deprived and intoxicated and therefore 

his confession should be suppressed; (2) he should have been 

allowed to use a transcript of a taped statement to refresh a witness’ recollection; and (3) the court improperly instructed the 

jury that Williams had been charged with arson.3

On May 27, 2005, this court affirmed Williams’ convictions, 

holding that the trial court did not err in allowing Williams’ 

confession into evidence, because “[h]e waived any argument 

about the use of a police transcript to refresh Diane’s recollection or to impeach her testimony, and he was not denied effective assistance of counsel.”4

3. First Motion for Postconviction Relief

On August 5, 2009, Williams, by and through court-appointed 

direct appeal counsel, filed his first petition for postconviction 

relief. Williams argued that he was denied due process of law, 

the right to effective assistance of counsel, and the right to 

properly cross-examine and confront all witnesses against him 

because of trial counsel’s failure to (1) take the deposition of 

Diane, (2) make an offer of proof and preserve the record as 

to Diane’s prior inconsistent statements in her recorded police 

interview, (3) object to improper jury instructions that Williams 

was charged with arson and make a record of the same, (4) 

assert a “drug psychosis/insanity” defense, and (5) object to 

the playing of the taped confession. The State filed a motion 

to dismiss.

On December 8, 2010, the district court filed an order sustaining the State’s motion to dismiss Williams’ petition for postconviction relief without an evidentiary hearing. The district 

court rejected the claims, holding that (1) trial counsel’s failure 

to depose Diane would have been apparent to Williams at the 

3 Id.

4 Id. at 925, 697 N.W.2d at 280.
- 581 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

time of appeal or apparent from the record, because Diane’s 

deposition was not in the record; (2) trial counsel’s failure to 

make an offer of proof or otherwise preserve the record would 

not have resulted in not guilty verdicts, because there was significant other evidence that would support the jury’s verdicts; 

(3) trial counsel’s failure to object to improper jury instructions 

that Williams was “‘charged’ with arson” and make record of 

the same was not prejudicial error, because the jury instructions, when taken together, were not prejudicial; (4) trial counsel’s failure to assert a drug psychosis/insanity defense was an 

issue that would have been apparent to Williams at the time of 

appeal or apparent from the record, because Williams’ drug and 

alcohol abuse was raised in his motion to suppress a statement; 

and (5) trial counsel’s failure to object to the playing of a taped 

confession would have been apparent to Williams at the time of 

appeal or apparent from the record.

4. Appeal of First Postconviction

Williams appealed from the denial of his first postconviction motion. The district court again appointed direct appeal 

counsel to represent Williams in his postconviction appeal. 

On April 25, 2011, in case No. S-11-035, this court dismissed 

the appeal, because Williams’ counsel failed to file a brief. 

Williams sought discharge of counsel due to counsel’s failure to file a brief, and direct appeal counsel filed a motion 

to withdraw.

5. Second Motion for Postconviction Relief

Williams filed a second motion for postconviction relief. 

The district court granted counsel’s motion to withdraw as 

counsel for Williams, and the court appointed the Nebraska 

Commission on Public Advocacy to represent Williams in his 

motion for postconviction relief.

In his second motion, Williams argued that he was denied 

the right to effective assistance of both trial counsel and direct 

appeal counsel. Williams filed a second amended motion for 
- 582 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

postconviction relief that incorporated the arguments from 

Williams’ first motion for postconviction relief and his second 

motion prior to amendment.

Williams argued that his direct appeal and first postconviction counsel was operating under a conflict of interest when 

he represented Williams on postconviction after representing 

him on direct appeal, because he could not raise his own ineffectiveness. Therefore, if granted a new direct appeal, Williams 

would argue, in addition to the arguments in his first motion for 

postconviction relief, there was an unconstitutional breakdown 

in the attorney-client relationship at the trial, direct appeal, and 

postconviction levels.

Additionally, Williams argued that counsel, when representing Williams as direct appeal counsel, erred in failing to assign 

as error trial counsel’s failure to (1) take Diane’s deposition; 

(2) make an offer of proof or otherwise preserve the record 

regarding Diane’s inconsistent statements; (3) object to the 

playing of a redacted version of Williams’ postarrest statement; 

(4) investigate a college student witness who had conducted 

a survey at the jail where Williams was incarcerated; (5) 

withdraw following Williams’ oral motion for new counsel at 

his sentencing hearing; (6) object to the testimony of Officer 

Barry DeJong as to an admission that implied the existence 

of Williams’ propensity for criminal activity; (7) timely object 

and move for a mistrial due to improper statements during the 

closing arguments presented by the State; (8) assert a drug 

psychosis/insanity or drug impairment defense; (9) present a 

defense that the fire was started accidentally or due to provocation; (10) comply with Williams’ request to view discovery; 

and (11) communicate with Williams.

Williams also argued the following claims solely against 

direct appeal counsel: (1) an unconstitutional breakdown in 

the attorney-client relationship at the direct appeal level and 

(2) a failure to present and preserve for review the claim that 

two gruesome photographs were received over trial counsel’s 

objections. Williams further contended that appellate counsel 
- 583 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

failed to (1) withdraw from the case prior to the initial postconviction proceeding and (2) file Williams’ brief in the appeal 

of the initial postconviction proceeding.

The State filed a motion to dismiss, arguing that Williams’ 

claims were procedurally barred. In addition, the State argued 

that any remaining issues that were not procedurally barred 

should be overruled, as the motion alleged only conclusions 

of fact or law, or the records and files affirmatively show that 

Williams was not entitled to relief.

On January 20, 2016, the district court partially granted 

Williams’ amended successive postconviction motion without 

an evidentiary hearing. The district court’s order stated in pertinent part:

In his Second Amended Motion for Post-conviction Relief 

[Williams] raises other issues which almost entirely relate 

to the issues that [he] was not able to raise in the first 

post-conviction relief proceedings due to the aforementioned failure to timely file a brief.

. . . [F]ailure to raise the issue of whether trial counsel 

was ineffective in [Williams’] appeal and post-conviction 

proceedings for failing to make an offer of proof as to the 

contents of the police transcript which was objected to 

by the State at trial and the Court sustained the objection 

. . . would not likely have made any difference even if it 

was in the record as an offer of proof because there was 

significant other evidence that would support the jury’s 

verdict including [Williams’] own confession to starting 

the fire . . . .

While the Court generally agrees with the State’s argument that [Williams] does not have a constitutional right 

to effective post-conviction counsel (see State v. Becerra, 

263 Neb. 753[, 642 N.W.2d 143] (2002)[)], where 

[Williams] was denied the opportunity to present issues in 

his appeal of the Court’s Order on post-conviction due to 

alleged ineffective assistance of counsel, [he] was denied 

an important opportunity which should be restored.
- 584 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

While Neb. Rev. Stat. Sec. 29-3001 (3) provides that 

the Court “need not” entertain a second motion or successive motions for post-conviction relief, it does not bar the 

Court from such consideration.

On [Williams’] Second Motion for Post-conviction 

Relief the Court orders that [Williams] is allowed to 

appeal the Court’s Order of December 10, 2010 overruling [his] Motion for Post-conviction Relief to the 

Nebraska Supreme Court.

The district court relied largely on Neb. Rev. Stat. § 29-3001 

(Reissue 2016) in its opinion. That statute states in pertinent part:

(2) Unless the motion and the files and records of the 

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. If the 

court finds that there was such a denial or infringement 

of the rights of the prisoner as to render the judgment 

void or voidable under the Constitution of this state or the 

Constitution of the United States, the court shall vacate 

and set aside the judgment and shall discharge the prisoner or resentence the prisoner or grant a new trial as may 

appear appropriate. . . .

(3) A court may entertain and determine such motion 

without requiring the production of the prisoner, whether 

or not a hearing is held. Testimony of the prisoner or 

other witnesses may be offered by deposition. The court 

need not entertain a second motion or successive motions 

for similar relief on behalf of the same prisoner.

The district court held that Williams was “allowed to appeal 

the Court’s Order of December 10, 2010 overruling [his] 

Motion for Post-conviction Relief to the Nebraska Supreme 

Court.” Williams appealed from the district court’s order.
- 585 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

III. ASSIGNMENTS OF ERROR

Williams assigns, restated and consolidated, that the district 

court erred in (1) granting postconviction relief without an 

evidentiary hearing, (2) granting limited postconviction relief 

of a reinstated appeal of the denial of postconviction relief 

under the first postconviction motion, and (3) denying the 

remainder of Williams’ allegations of ineffective assistance of 

trial and appellate counsel.

IV. STANDARD OF REVIEW

[1-3] A defendant requesting postconviction relief must 

establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.5

 In appeals from postconviction proceedings, we review 

de novo a determination that the defendant failed to allege 

sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show 

that the defendant is entitled to no relief.6 Whether a claim 

raised in a postconviction proceeding is procedurally barred is 

a question of law. When reviewing questions of law, an appellate court resolves the questions independently of the lower 

court’s conclusion.7

V. ANALYSIS

Williams makes various arguments on appeal, but the crux 

of his argument is that the district court should have never 

permitted direct appeal counsel to also represent Williams in 

Williams’ first postconviction motion. Williams additionally 

contends that the relief granted by the district court—a reinstated appeal from the denial of Williams’ first postconviction 

motion—was erroneous.

5 State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

6 State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).

7 Id.
- 586 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

1. District Court’s Authority

(a) Lack of Evidentiary Hearing

We turn first to Williams’ assertion that the district court 

erroneously granted limited postconviction relief without an 

evidentiary hearing. The district court ruled—without holding an evidentiary hearing—that Williams was “allowed to 

appeal the Court’s Order of December 10, 2010 overruling [his] Motion for Post-conviction Relief to the Nebraska 

Supreme Court.”

Williams contends that because § 29-3001(2) of the Nebraska 

Postconviction Act8 gives the district court the option to either 

determine that the defendant is entitled to no relief based on a 

review of the record or grant a hearing on the motion, the district court erred in granting a new appeal from Williams’ first 

postconviction motion without holding an evidentiary hearing. 

Williams also cites to State v. Jim.9

This court held in Jim that a court commits reversible error 

if postconviction relief is granted without an evidentiary hearing and the making of findings of fact and conclusions of law. 

In addition, Williams notes, this court is clear in Jim that the 

relief should be a “new” direct appeal, and not a “reinstated” 

direct appeal.10

The State agrees that the district court had no authority to 

grant such relief without an evidentiary hearing. However, the 

State argues that the district court had no authority to grant 

such relief, with or without an evidentiary hearing, because it 

was successive relief so the court’s failure to comply with necessary procedure is immaterial.

[4-7] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations.11 In a motion for postconviction relief, the defendant 

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

9 State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).

10 Brief for appellant at 16.

11 State v. Bazer, 276 Neb. 7, 17, 751 N.W.2d 619, 627 (2008).
- 587 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

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.12 Section 29-3001(2) requires that the court 

grant a prompt hearing “[u]nless the motion and the files and 

records of the case show to the satisfaction of the court that 

the prisoner is entitled to no relief . . . .” Under the act, an evidentiary hearing on a motion for postconviction relief must be 

granted when the motion contains factual allegations which, if 

proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution. However, if the motion 

alleges only conclusions of fact or law, or the records and files 

in the case affirmatively show that the movant is entitled to no 

relief, no evidentiary hearing is required.13

The record indicates that the district court did not grant 

Williams an evidentiary hearing prior to awarding Williams 

the limited relief of an appeal from the denial of the first postconviction motion. But, as we make clear in Jim, and as the 

plain language of § 29-3001 states, in order to award relief, a 

prompt hearing must first be held “‘[u]nless the motion and 

the files and records of the case show to the satisfaction of 

the court that the prisoner is entitled to no relief . . . .’” The 

failure to hold such a hearing before ordering reinstatement 

was error.

(b) Whether Williams’ Claims 

Were Procedurally Barred

We turn next to the question of whether the district court 

had the authority to grant any postconviction relief at all. The 

State contends that it did not, as all of Williams’ claims were 

procedurally barred.

[8,9] As noted above, if the motion alleges only conclusions 

of fact or law, or the records and files in the case affirmatively 

show that the movant is entitled to no relief, no evidentiary 

12 State v. Jim, supra note 9.

13 Id.
- 588 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

hearing is required.14 A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred 

when (1) the defendant was represented by a different attorney 

on direct appeal than at trial, (2) an ineffective assistance of 

trial counsel claim was not brought on direct appeal, and (3) 

the alleged deficiencies in trial counsel’s performance were 

known to the defendant or apparent from the record.15 On postconviction relief, a defendant cannot secure review of issues 

which were or could have been litigated on direct appeal.16 A 

defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the 

time the first motion was filed.17

(i) Trial Counsel

We first address Williams’ claims of ineffective assistance 

of trial counsel. Williams was represented by different counsel 

on direct appeal than at trial. Williams brought one ineffective 

assistance of trial counsel argument in his direct appeal. All of 

Williams’ allegations of ineffective assistance of trial counsel 

could have been raised on direct appeal because he had different appellate counsel than trial counsel. The claims of ineffective assistance of trial counsel are procedurally barred.

(ii) Direct Appeal Counsel

We turn next to Williams’ claims of ineffective assistance 

of his direct appeal counsel. Williams argues that he could 

not raise the ineffective assistance of appellate counsel claims 

because of the continued representation of direct appeal counsel in his first postconviction relief proceedings. The State 

argues that although Williams had the same counsel for direct 

appeal and for his first postconviction proceeding, this was 

14 Id. at 487, 747 N.W.2d at 415.

15 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).

16 See State v. Bazer, supra note 11.

17 State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
- 589 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

not his first opportunity to raise claims against direct appeal 

counsel, because he could have raised those claims pro se in 

the prior postconviction.

[10] In State v. Payne,

18 this court held that the defendant’s 

claims of ineffective assistance of trial counsel were not procedurally barred, despite his failure to raise them on direct 

appeal, because trial counsel was still engaged as counsel 

during the critical appeal period. This court reasoned that 

“[i]f trial counsel was still engaged as counsel, trial counsel 

could not be expected to raise or address his or her own ineffectiveness, and the failure to file such an appeal would not 

result in those claims being procedurally barred in a later 

postconviction action.”19 If the court required counsel to raise 

his or her own ineffectiveness, it “would create the potential 

for a conflict of interest.”20 This court ultimately held that 

“where a defendant is represented both at trial and on appeal 

by the same lawyers, the defendant’s first opportunity to assert 

the ineffective assistance of trial counsel is in a postconviction motion.”21

In State v. Bazer,

22 this court held that the defendant’s claims 

of ineffective assistance of trial counsel were not procedurally barred in his motion for postconviction relief, despite the 

defendant’s failure to file a direct appeal or to allege that his 

counsel was ineffective for failing to file a direct appeal. The 

court reasoned:

When a defendant was represented both at trial and on 

direct appeal by the same lawyers, the defendant’s first 

opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief. The same is 

18 State v. Payne, supra note 6.

19 Id. at 472, 855 N.W.2d at 787.

20 Id. at 471, 855 N.W.2d at 786.

21 Id. at 472, 855 N.W.2d at 787.

22 State v. Bazer, supra note 11.
- 590 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

true where trial counsel elects not to file a direct appeal 

at all.23

Williams was represented by the same counsel on both 

direct appeal and in his first postconviction motion. Counsel 

then failed to file an appeal to Williams’ first postconviction 

motion. Different counsel was appointed to Williams for his 

second postconviction motion. As in Payne, Williams’ first 

postconviction counsel “could not be expected to raise or 

address his or her own ineffectiveness.”24 This is true even 

though, ordinarily, the failure to raise the ineffective assistance 

of direct appeal counsel in a postconviction proceeding would 

make those claims procedurally barred.

The State argues that Williams had a pro se duty to raise 

his ineffective assistance of counsel claims against appellate 

counsel. We reject that assertion in the context of appointed 

counsel in this case. The State has provided no support for 

its claim, and we find it to be without merit. Williams has a 

Sixth Amendment right to the effective assistance of counsel 

on direct appeal.25 And Williams’ first meaningful opportunity to raise the issue of ineffective assistance of appellate 

counsel was in his second postconviction motion, after he was 

appointed different counsel that could allege the ineffectiveness of appellate counsel.

We therefore hold that under these facts, Williams may raise 

his ineffective assistance of appellate counsel claims in his 

second postconviction motion in this case. Because Williams 

was appointed the same counsel by the court on both direct 

appeal and on his motion for postconviction relief, the second 

motion was Williams’ first opportunity to raise a claim of 

violation of his constitutional right to effective assistance of 

appellate counsel. Williams’ claims of ineffective assistance 

concerning counsel’s representation on direct appeal, including 

23 Id. at 18, 751 N.W.2d at 627.

24 See State v. Payne, supra note 6, 289 Neb. at 472, 855 N.W.2d at 787.

25 See U.S. Const. amend. VI.
- 591 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

his “layered claims” of failure to raise ineffectiveness of trial 

counsel, are not procedurally barred.26

This ruling does not expand the Nebraska Postconviction 

Act. Williams did not have a meaningful opportunity to challenge his assistance of appellate counsel prior to his second 

motion for postconviction relief, as he was represented by the 

same appointed counsel on direct appeal in his first motion 

for postconviction, and on the appeal of his first postconviction relief. We discourage courts from appointing the same 

counsel for direct appeal and postconviction relief in order to 

avoid situations in which a defendant’s ineffective assistance 

of counsel claims are preserved until the second postconviction 

relief motion.

2. Analysis of Claims Under Strickland

[11-14] Because we have determined that Williams’ claims 

of ineffective assistance of direct appeal counsel are not procedurally barred, we analyze the claims under the two-prong 

test set forth in Strickland v. Washington.27 Under Strickland, 

a defendant has the burden to show that (1) counsel performed 

deficiently—that is, counsel did not perform at least as well 

as a lawyer with ordinary training and skill in criminal law—

and (2) this deficient performance actually prejudiced the 

defendant in making his or her defense.28 The prejudice prong 

of the ineffective assistance of counsel test requires that the 

defendant show a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding in question 

would have been different.29 A reasonable probability is a probability sufficient to undermine confidence in the outcome.30

26 Brief for appellant at 29.

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

(1984).

28 See State v. Jackson, supra note 15.

29 Id.

30 Id.
- 592 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

An appellate court may address the two prongs of this test, 

deficient performance and prejudice, in either order.31

[15-18] In determining whether trial counsel’s performance 

was deficient, there is a strong presumption that counsel acted 

reasonably.32 Trial counsel is afforded due deference to formulate trial strategy and tactics.33 The entire ineffectiveness 

analysis is viewed with a strong presumption that counsel’s 

actions were reasonable and that even if found unreasonable, 

the error justifies setting aside the judgment only if there was 

prejudice.34 When reviewing a claim of ineffective assistance 

of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.35

(a) Claims of Ineffective Assistance of 

Direct Appeal Counsel Failing to Allege 

Ineffectiveness of Trial Counsel

(i) Failure to Take Diane’s Deposition

Williams argues that appellate counsel failed to assign as 

error the failure of trial counsel to make an offer of proof concerning the disparity between Diane’s statements to the police 

and her trial testimony as to when the fire started.

Diane’s statements to the police were inconsistent with her 

trial testimony that Williams woke her and warned her to leave 

prior to burning down the house. Diane was never deposed, 

and her statements in the police report were ruled inadmissible 

at trial.

We find that Williams was not prejudiced by any alleged 

deficient conduct. Other evidence introduced at trial, in addition to Diane’s testimony, included (1) a neighbor’s testimony 

31 State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

32 State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).

33 Id.

34 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

35 State v. Jim, supra note 9.
- 593 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

that following an argument with Burgess, one of the victims, 

Williams went to the neighbor’s house and asked for a gun, 

which request the neighbor refused; (2) a convenience store 

employee’s testimony that Williams went to a convenience 

store, where he filled a bottle with gasoline and obtained 

matches; (3) surveillance footage of Williams at the convenience store filling a bottle with gasoline; and (4) the neighbor’s testimony that Williams returned to the neighbor’s home 

and stated that he was going to burn Burgess’ house down.36 In 

addition, Williams confessed to starting the fire.

In light of the evidence outside of Diane’s testimony, 

there is not a reasonable probability that any discrepancy in 

Diane’s testimony would have affected the jury’s finding that 

Williams started the fire intentionally. Any deficient conduct 

was not prejudicial, and as such, counsel’s performance was 

not ineffective.

(ii) Failure to Make Offer of Proof 

or Otherwise Preserve Record

Williams argues that direct appeal counsel failed to assign 

as error the failure of trial counsel to make an offer of proof 

of the police transcript of Diane’s statements for the purpose 

of impeachment or to refresh her memory.

On direct appeal, this court held that the issue was waived 

as to whether the “trial court erred when it denied the use of 

a police transcript of Diane’s statements for the purpose of 

impeachment or to refresh her recollection,” because Williams 

failed to make an offer of proof and the transcript was not in 

the record.37 In its order denying Williams’ first postconviction 

motion, the district court held that the disparity of Diane’s incourt testimony and statement in the police report would not 

have made any difference in the jury verdicts, because there 

was “significant other evidence that would support the jury’s 

36 State v. Williams, supra note 1.

37 Id. at 923, 697 N.W.2d at 279.
- 594 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

verdict[s], including [Williams’] own confession to starting 

the fire.”

We agree that based on the evidence admitted at trial, aside 

from Diane’s testimony, even if trial counsel performed deficiently by failing to make an offer of proof of Diane’s testimony, Williams was not prejudiced by that failure. Appellate 

counsel’s performance was not ineffective.

(iii) Failure to Object to Playing 

of Taped Confession

Williams argues that trial counsel failed to object to the 

playing of a redacted version of a videotape of Williams’ 

interrogation. Williams contends that the officer had already 

testified as to Williams’ statements recorded on the tape, so the 

admission of the tape was cumulative evidence. Additionally, 

Williams contended in his motion for postconviction relief that 

the redaction did not accurately portray the interview, because 

it eliminated the “‘down time’” between questions and failed 

to show the “drowsy and weary state of mind that . . . Williams 

exhibited during the interview.”

Even assuming that Williams’ trial counsel performed deficiently when he failed to object to the admission of Williams’ 

taped police interview after the officer had already testified to 

the interview, we do not find that trial counsel was ineffective. 

Williams does not contend that his statements on the video 

differed from the officer’s testimony of Williams’ statements. 

He only contends that it was unduly cumulative. This court 

has held that “[g]enerally, erroneous admission of evidence is 

harmless error and does not require reversal if the evidence 

is cumulative and other relevant evidence, properly admitted, 

supports the finding by the trier of fact.”38 Williams was not 

prejudiced by any failure on the part of his appellate counsel to 

object to the taped confession.

38 State v. Jenkins, 294 Neb. 475, 487, 883 N.W.2d 351, 361 (2016).
- 595 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

(iv) Failure to Investigate 

Witness From Jail

Williams contends that trial counsel failed to investigate a 

college student who was conducting a survey at the jail prior 

to Williams’ police interview. Williams argues in his motion 

for postconviction relief that he told the student that he could 

not take part in the survey because his mind was “‘messed 

up.’” Williams contends that this interaction could substantiate a defense of his inability to make a knowing, intelligent, 

and voluntary waiver of his rights before giving a statement 

to law enforcement. Williams claims that he told trial counsel 

about this interaction and that trial counsel failed to investigate it further.

The police officer conducting the interview following 

Williams’ alleged conversation with the college student testified that Williams stated that he had consumed “‘a bunch of 

beer and gin’” and that he fell asleep “on a couple of occasions” during the interview. The officer further testified that 

despite this, during the interview, it did not appear Williams 

was under the influence of alcohol or drugs and he appeared to 

understand the questions and respond appropriately. Additional 

testimony from the college student that Williams claimed he 

was “messed up” would not have affected the jury’s decision. The conversation would likely have been inadmissible, 

and even if it were admissible, it would not have proved that 

Williams was unable to waive his Miranda rights. We fail to 

see how Williams could have been prejudiced by any failure 

of trial counsel to investigate this alleged conversation with a 

college student.

(v) Counsel’s Continued Representation of 

Williams Following Oral Motion for 

New Counsel at Sentencing Hearing

Williams made an oral motion for new counsel during the 

sentencing hearing, because (1) counsel and Williams had 

numerous conflicts, (2) counsel did not provide discovery 

when Williams requested it, (3) counsel did not call an expert 
- 596 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

witness to testify as to Williams’ substance abuse, (4) counsel 

failed to inform Williams that the probation officer would conduct an interview, and (5) counsel may have failed to review 

the presentence investigation report with Williams prior to 

sentencing. No ruling on this motion is apparent on the record, 

and the sentencing proceeded with continued representation 

from trial counsel.

[19] When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to the 

court for the removal of counsel, his or her only alternative is 

to proceed pro se if he or she is competent to do so.39

[20] Williams has a right to counsel, but he does not have 

a right to counsel of his own choosing.40 Williams’ allegations 

merely indicate dissatisfaction with his appointed counsel. We 

conclude that counsel’s failure to withdraw did not prejudice 

Williams’ defense.

Williams also contends that the district court erred in failing to appoint new counsel following his oral motion. For the 

reasons stated above, we find no prejudice.

(vi) Testimony of Officer DeJong

Williams argues that trial counsel failed to object to the 

admission of testimony from Officer DeJong. He testified that 

when he asked Williams to go downtown to the police station 

for an interview, Williams stated that he did not have a problem 

with it, but that the last time he went with the police, he ended 

up going to jail. Williams argues in his motion for postconviction relief that admission of the evidence of prior crimes was 

unduly prejudicial and that “[w]ithout the taint of this evidence, 

the results of the proceedings would have been different.”

Even assuming counsel was deficient in not objecting, we 

find that Williams suffered no prejudice. Because of the overwhelming evidence to support Williams’ convictions, including 

39 State v. McPhail, 228 Neb. 117, 421 N.W.2d 443 (1988).

40 State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007).
- 597 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

Williams’ confession to starting the fire, surveillance video of 

him filling a bottle with gasoline, and eyewitness testimony, 

we conclude that Williams was not prejudiced by any alleged 

failure of trial counsel to object. Williams has not alleged facts 

which, if true, would entitle him to postconviction relief.

(vii) Failure to Timely Object and Move for Mistrial 

Due to Improper Statements During Closing 

Arguments Presented by State

Williams argues that trial counsel failed to object to improper 

statements made by the State during closing arguments. During 

those arguments, the prosecutor stated that opposing counsel 

was “blowing smoke,” and called Williams a “punk,” a “thief,” 

and a “murderer.”

[21-23] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute misconduct.41 If we conclude that the prosecutor’s acts 

were misconduct, we next consider “whether the misconduct 

prejudiced the defendant’s right to a fair trial.”42 In determining whether a prosecutor’s improper conduct prejudiced the 

defendant’s right to a fair trial, we consider the following 

factors: (1) the degree to which the prosecutor’s conduct or 

remarks tended to mislead or unduly influence the jury; (2) 

whether the conduct or remarks were extensive or isolated; (3) 

whether defense counsel invited the remarks; (4) whether the 

court provided a curative instruction; and (5) the strength of 

the evidence supporting the convictions.43 This court has held 

that “[p]rosecutors are not to inflame the prejudices or excite 

the passions of the jury against the accused.”44

41 State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

42 Id. at 223, 854 N.W.2d at 602.

43 Id.

44 State v. Barfield, 272 Neb. 502, 512, 723 N.W.2d 303, 312 (2006), 

disapproved on other grounds, State v. McCulloch, 274 Neb. 636, 742 

N.W.2d 727 (2007).
- 598 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

In his rebuttal closing arguments, the prosecutor stated that 

Williams “is a punk.” The prosecutor further stated, “I thought 

we had had enough smoke in this courtroom and in this case. 

But defense counsel gets up and we have more.” The prosecutor then referenced a quote from another prosecutor that “[i]f 

you don’t have the courage to point to the defendant and call 

him what he is — he’s a thief and he’s a murderer — you can’t 

ask the jury to find him guilty.” The prosecutor then closed his 

argument telling the jury, “[G]o back and do your duty. The 

cries of Victoria Burgess, you answer them. You answer them, 

ladies and gentlemen of the jury.”

While these statements appeal to the jury’s passions and 

prejudices, we cannot conclude that these statements were of 

such a nature as to mislead the jury. Moreover, considered in 

light of the evidence at trial, the statement that Williams was 

a “punk” was likely in reference to Diane’s testimony that 

Williams told her after the fire that he “wasn’t going to be 

treated like a punk.” First, the remarks were isolated in nature 

in the context of the prosecutor’s rebuttal argument. The prosecutor’s entire rebuttal argument consisted of just 172 lines of 

the record. In addition, there is significant evidence supporting the convictions: testimony from Diane, the neighbor, and 

the convenience store employee, and the surveillance video of 

Williams filling a bottle with gasoline.

Any taint that resulted from the allegedly improper statements made by the prosecutor were outweighed by the significant weight of evidence that supported Williams’ convictions. Therefore, any improper conduct did not prejudice 

Williams’ right to a fair trial. Finding no prejudice, we cannot 

conclude that counsel was ineffective for failing to object to 

the statements.

(viii) Failure to Assert Drug Psychosis/Insanity 

or Drug Impairment Defense

Williams argues that direct appeal counsel should have raised 

trial counsel’s failure to present evidence or a psychiatrist 
- 599 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

to show that Williams did not have the requisite intent to 

commit the crime of arson due to his prolonged substance 

abuse and his drug use prior to the fire and the subsequent 

police interview.

[24-28] Under our current common-law definition, the two 

requirements for the insanity defense are that (1) the defendant 

had a mental disease or defect at the time of the crime and (2) 

the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know 

the difference between right and wrong.45 Insanity immediately 

produced by intoxication does not destroy responsibility when 

the defendant, when sane and responsible, made himself or 

herself voluntarily intoxicated.46 Voluntary intoxication is no 

justification or excuse for crime unless the intoxication is so 

excessive that the person is wholly deprived of reason so as to 

prevent the requisite criminal intent.47 As a matter of law, voluntary intoxication is not a complete defense to a crime, even 

when it produces psychosis or delirium.48 A defendant may not 

assert an insanity defense when the insanity was temporary and 

brought on solely by voluntary intoxication through the use 

of drugs.49

As we understand Williams’ arguments, Williams contends 

that he suffered from a mental defect at the time of the crime 

due his prolonged drug use. Williams has not submitted any 

further details of the effect of this alleged mental defect. Nor 

does the evidence indicate that Williams did not know or 

understand the nature and consequences of his actions or that 

he did not know the difference between right and wrong.

45 State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).

46 Id., citing Schlenker v. The State, 9 Neb. 241, 1 N.W. 857 (1879), reversed

9 Neb. 300, 2 N.W. 710.

47 See State v. Hotz, supra note 45.

48 Id.

49 Id.
- 600 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

Rather, the evidence proves the contrary. According to 

Diane’s testimony, Williams woke her and warned her to 

leave the house prior to setting the house on fire. According 

to the neighbor’s testimony, Williams asked him for a gun, 

and when he refused to provide the gun, Williams made a 

statement to the neighbor that he intended to burn the house 

down. Williams then borrowed the neighbor’s telephone, called 

Williams’ mother, and told her that “‘[t]he next time you hear 

from me, you’ll be hearing from me from the penitentiary.’” 

Furthermore, Diane testified that after Williams poured gasoline around the house and on one of the victims, he lit a match 

that didn’t catch fire, and proceeded to light two more matches 

which he threw on the gasoline in the house. This is strong 

evidence of Williams’ intent to commit arson, that he understood the nature of his actions, and that he knew the difference 

between right and wrong.50

Williams contends that the evidence contained in the police 

interview that he had consumed beer and gin in excess prior 

to the time of the interview supports his argument regarding 

intent. It is unclear from the record whether Williams was 

intoxicated at the time of the interview or at the time he set 

the fire. However, Williams alleges that he voluntarily became 

intoxicated, which resulted in drug impairment and a druginduced psychosis. Since this court has found that a defendant 

may not assert an insanity defense when the insanity was 

temporary and brought on solely by voluntary intoxication, 

Williams’ claim is not an actionable claim.

Therefore, Williams’ trial counsel was not deficient in failing to introduce evidence or call a psychiatrist to produce 

evidence of Williams’ mental state as a result of drug and 

alcohol use the day of the fire as well as his prolonged substance abuse. We conclude that Williams was not prejudiced 

by any failure of trial counsel to pursue his suggested insanity defense.

50 See State v. Williams, supra note 1.
- 601 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

(ix) Failure to Present Defense That 

Fire Was Started Accidentally 

or Due to Provocation

Williams also alleges that trial counsel was ineffective for 

failing to present a defense that the fire was not started intentionally but was an accident or set as a result of provocation.

[29] This court has held that “[i]t is not the provocation 

alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render 

the mind incapable of reflection and obscure the reason so that 

the elements necessary to constitute murder are absent.”51

According to testimony and surveillance video, following an 

argument with Burgess at Burgess’ house, Williams went to a 

neighbor’s house and asked for a gun, and when the neighbor 

refused, Williams proceeded to the convenience store, where 

he filled a bottle with gasoline. Williams then returned to 

Burgess’ house and used the gasoline to set fire to her house. 

We find that Williams’ argument that he started the fire due 

to provocation is without merit. This string of events does not 

constitute a “sudden happening” of which Williams was “incapable of reflection.”

[30] Williams further argues that trial counsel failed to present a defense that the fire was started accidentally. Significant 

evidence of Williams’ intent to commit arson was presented 

at trial. In addition to the evidence listed above, according to 

Diane’s testimony, Williams poured gasoline around Burgess’ 

house, lit a match, and threw the match at Burgess’ feet, setting 

the house on fire; lit another match that went out; and lit a third 

match to set the kitchen on fire. Because of the overwhelming 

evidence that Williams intentionally set the fire, we conclude 

that Williams has not alleged facts which, if true, might entitle 

him to postconviction relief. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.52

51 State v. Smith, 284 Neb. 636, 642, 822 N.W.2d 401, 408 (2012).

52 State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
- 602 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

Therefore, Williams was not prejudiced by any failure by counsel to raise the defense that he started the fire accidentally.

(x) Failure to Comply With Williams’ Requests 

to View Discovery and Failure to 

Communicate With Williams

Williams next argues that he made numerous requests to 

trial counsel to see discovery in the case and that he was only 

permitted to see his statement to law enforcement. Williams 

also contends that trial counsel insufficiently communicated 

to him during the trial and that thus, he was not informed of 

the case against him or make a knowing waiver of the right 

to testify.

Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify.53

Williams states that during trial, counsel ignored Williams’ 

notes and conversation. Williams also claims that if he had 

received adequate advice from counsel, he would have testified that “either the deaths were not caused intentionally 

because of the impairment [of] drugs or a drug-induced 

psychosis; by accident; or that the deaths were caused during the provocation of a sudden quarrel necessitating lesser 

included offense instructions for second degree murder and 

manslaughter.”

This court takes very seriously a defendant’s right to testify. 

However, as we discussed above, there was strong evidence 

to rebut the claims Williams would have asserted in his testimony. The evidence presented at trial clearly showed that 

Williams was not under a drug-induced psychosis from prolonged drug use, because he understood the nature and consequences of his actions and understood the difference between 

right and wrong. Furthermore, Williams’ psychosis and intoxication defense based on drug and alcohol use the day of the 

fire would not have been actionable, because it was temporary 

53 State v. White, 246 Neb. 346, 518 N.W.2d 923 (1994).
- 603 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

and brought on solely by voluntary intoxication. Finally, there 

is strong evidence of Williams’ actions from the time of the 

argument until he set the house on fire which shows that he 

was not incapable of reflection and that the crimes did not happen suddenly. Based on the overwhelming evidence supporting Williams’ convictions, we find that Williams’ testimony 

would not have affected the verdicts. Therefore, Williams 

was not prejudiced by any alleged failure by trial counsel 

to communicate.

(b) Claims of Ineffective Assistance That Center 

Solely on Direct Appeal Counsel

Williams also asserts ineffective assistance of counsel claims 

that center solely on appellate counsel’s alleged failures, not on 

any failure to raise trial counsel’s ineffectiveness. Williams 

argues that he received ineffective assistance of counsel in his 

direct appeal for the following reasons.

(i) Unconstitutional Breakdown in Attorney-Client 

Relationship at Direct Appeal Level

Williams argues in his motion for postconviction relief that 

there was an unconstitutional breakdown in the attorney-client 

relationship with his direct appeal counsel, because counsel 

“failed to communicate with [Williams] in order to effectively 

select challenges to the validity of [his] conviction[s] and 

sentence[s].” Williams does not provide any support beyond 

this statement for his claim of counsel’s failure to communicate. Williams does not allege any facts that show that he 

may be entitled to relief. As such, Williams is not entitled 

to relief.

(ii) Failure to Present and Preserve Claim 

That Two Photographs Were Received 

Over Trial Counsel’s Objections

Williams argues that his direct appeal attorney failed to 

assign as error on appeal Williams’ claim that two gruesome 

photographs of the bodies of Burgess and a dog were not 
- 604 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

relevant and were unduly prejudicial. The photographs were 

admitted over the objection of trial counsel.

[31,32] The admission of photographs of a gruesome nature 

rests largely with the discretion of the trial court, which must 

determine their relevancy and weigh their probative value 

against their prejudicial effect.54 In a homicide prosecution, 

a court may admit into evidence photographs of a victim for 

identification, to show the condition of the body or the nature 

and extent of wounds and injuries to it, and to establish malice 

or intent.55

At trial, the State argued that the photographs show corroboration of witnesses, where the bodies were located, and the 

burning of the body. The district court found that the prejudice 

did not substantially outweigh the probative value.

We agree with the State that the admission of these photographs was not prejudicial. The photograph of Burgess’ body 

showed the condition of the body or the nature and extent of 

the wounds, and the court did not abuse its discretion in admitting the photograph. And while the photograph of the burned 

dog’s body might have lacked probative value, we cannot 

conclude that such was prejudicial, given the other evidence 

offered against Williams. We conclude that counsel was not 

ineffective for failing to assign the admission of the photographs on direct appeal.

(c) Postconviction Counsel

Finally, we turn to Williams’ claims of ineffective assistance of postconviction counsel. Williams contends that his 

first postconviction counsel failed to (1) withdraw from the 

case and request new counsel to be appointed and (2) file 

Williams’ brief and proceed with the appeal of the postconviction proceeding.

[33] Section 29-3001 requires evidentiary hearings only 

if the motion contains factual allegations which, if proved, 

54 See State v. Dubray, supra note 41.

55 See id.
- 605 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

constitute an infringement of the movant’s rights under the 

Nebraska or federal Constitution. This court stated in State v. 

Hessler56 that “[t]here is no constitutional guarantee of effective assistance of counsel in a postconviction action . . . .” 

As such, Williams’ claims of ineffective assistance in the first 

postconviction and the appeal of the first postconviction are 

without merit.

3. Limited Postconviction Relief

Williams argues that the district court erroneously granted 

the limited postconviction relief of a reinstated appeal of the 

denial of postconviction relief under the first postconviction motion rather than a new direct appeal. Williams further 

argues that the district court order ruled on issues contained 

only in the first motion for postconviction relief and that thus, 

the court did not rule on the second motion for postconviction relief. The State contends that the district court had no 

authority to reinstate Williams’ right to appeal from the denial 

of his first postconviction motion, because the district court 

only has authority to reinstate a civil appeal in postconviction 

cases when an appeal has been lost solely due to a mistake 

by the clerk or the court, not when the mistake is attributable to the parties or his or her agent. The State argues that 

all of Williams’ claims were implicitly denied in the district 

court order.

Under § 29-3001(2), “[u]nless the motion and the files and 

records of the case show to the satisfaction of the court that 

the prisoner is entitled to no relief, the court shall . . . grant a 

prompt hearing thereon . . . .”

We have established above that none of the files or records 

of the case show that Williams is entitled to relief on any of his 

claims of ineffective assistance of counsel. Therefore, Williams 

is not entitled to a hearing on his claims. As such, Williams’ 

argument that the lower court may not grant a reinstated appeal 

is irrelevant in the current proceedings.

56 State v. Hessler, supra note 17, 288 Neb. at 679, 850 N.W.2d at 785-86.
- 606 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. WILLIAMS

Cite as 295 Neb. 575

Finally, we read the trial court’s decision as disposing of all 

of Williams’ claims. Williams’ second assignment of error is 

without merit.

VI. CONCLUSION

We conclude that the district court erred in granting postconviction relief without conducting an evidentiary hearing, 

because failing to hold such a hearing before ordering reinstatement is improper under the requirements set forth in 

§ 29-3001(2). However, based on our reading of Williams’ 

second motion for postconviction relief and our review of 

the record, Williams is not entitled to an evidentiary hearing, 

either because he failed to allege sufficient facts to demonstrate a violation of his constitutional rights or because the 

record and the files affirmatively show that he is entitled to 

no relief.

Therefore, under § 29-3001(2), Williams is not entitled to 

a hearing on his claims. The decision of the district court is 

reversed, and the cause is remanded with directions to overrule 

Williams’ second motion for postconviction relief.

Reversed and remanded with directions.