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State of Nebraska, appellee, v.

Avery R. Tyler, appell

___ N.W.2d ___

Filed October 19, 2018. No. S-17-870.

1. Postconviction: Judgments: Appeal and Error. Whether a claim 

raised in a postconviction proceeding is procedurally barred is a 

question of law which is reviewed independently of the lower court’s 

ruling.

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: Constitutional Law: Judgments. Under the Nebraska 

Postconviction Act, a prisoner in custody may file a petition for relief 

on the ground that there was a denial or infringement of the prisoner’s 

constitutional rights that would render the judgment void or voidable.

4. Postconviction. In the absence of alleged facts that would render the 

judgment void or voidable, the proper course is to dismiss a motion for 

postconviction relief for failure to state a claim.

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

is not a substitute for an appeal.

6. ____: ____. A motion for postconviction relief cannot be used to secure 

review of issues which were known to the defendant and could have 

been litigated on direct appeal; such issues are procedurally barred.

7. Postconviction: Prosecuting Attorneys: Appeal and Error. Whether 

a claim of prosecutorial misconduct could have been litigated on direct 

appeal and is thus procedurally barred from being litigated on postconviction depends on the nature of the claim.

8. ____: ____: ____. Where the claim of prosecutorial misconduct is 

such that a determination of the merits is possible based on the record 

Nebraska Supreme Court Online Library

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

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on direct appeal, it is procedurally barred from being litigated on 

postconviction.

9. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial 

misconduct in closing arguments, a court first determines whether the 

prosecutor’s remarks were improper. It is then necessary to determine 

the extent to which the improper remarks had a prejudicial effect on the 

defendant’s right to a fair trial.

10. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different.

Appeal from the District Court for Douglas County: Dua

C. Dougherty, Judge. Affirmed

Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, 

L.L.P., for appellant.

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

for appellee.

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

Papik, JJ

Funke, 

Avery R. Tyler appeals from the district court’s denial of 

postconviction relief without an evidentiary hearing. Tyler 

asserts claims of prosecutorial misconduct and ineffective 

assistance of trial and appellate counsel. For the reasons set 

forth herein, we affirm.

I. BACKGROUND

This appeal follows our decision in State v. Tyler,

1

 which 

affirmed Tyler’s jury trial convictions and sentences therefrom, 

including one count of premeditated first degree murder, a 

Class IA felony for which Tyler received a sentence of life 

imprisonment, and one count of use of a firearm to commit a 

1 State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
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felony, a Class IC felony for which Tyler received a sentence 

of 20 to 30 years imprisonment. The trial court ordered the 

sentences to run consecutively.

1. Fac

On September 3, 2012, Delayno Wright was shot and killed 

outside Halo Ultra Lounge (Halo) in Omaha, Nebraska. Prior 

to the shooting, Wright, his girlfriend Brittany Ashline, and 

his cousin LaRoy Rivers were walking through the parking lot 

toward Wright’s vehicle when two men walked past them. One 

of the men grabbed or brushed against Ashline, which led to 

Ashline and Wright’s confronting the men. Rivers thought he 

recognized one of the men who was wearing a brown, striped 

shirt and saw that man break away from the group. Rivers saw 

a dome light turn on in a vehicle in the parking lot, heard the 

voice of the man he thought he recognized yelling, “‘What’s 

up now?’” and heard gunshots. Rivers could not see the 

shooter, but Ashline said she saw a man run to a tan or gold 

sport utility vehicle or Jeep and leave the scene after the shots 

were fired. Wright indicated he had been shot, was driven to 

a hospital, and was subsequently pronounced dead due to a 

gunshot wound to his torso.

When Rivers spoke to investigators, he informed them that 

he thought he recognized the man wearing the brown, striped 

shirt as a person he played basketball with in high school. 

Rivers explained that he thought the man’s first name was 

Avery, but that he was unsure of his last name. While on a 

detective’s computer, Rivers accessed a social media page, 

viewed Tyler’s profile picture, and identified him as the individual in the brown, striped shirt.

During the investigation of the shooting, investigators 

obtained a photograph of Tyler from a wedding he attended 

the day before the shooting in which he was wearing a brown, 

striped shirt. Investigators also obtained security footage showing a sport utility vehicle leaving the scene near the time of the 

shooting at a high rate of speed. It was subsequently discovered Tyler’s girlfriend owned a silver Jeep Commander. At the 
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scene of the shooting, investigators found eight shell casings. 

A crime laboratory technician reported that the casings were 

all fired from the same gun and that there are about 20 guns 

capable of firing them, including an “FN Five-seveN” pistol. It 

was discovered Tyler had purchased an FN Five-seveN pistol 

approximately 21⁄2 months prior to the shooting.

Investigators obtained and executed four search warrants for 

Tyler’s car and for his grandparents’, mother’s, and girlfriend’s 

residences. During the searches, investigators discovered a cell 

phone from Tyler’s car, a gunlock bearing the “FN” logo from 

his grandparents’ residence, and a letter from his mother’s 

residence. Tyler signed a consent form that allowed investigators to download and search the contents of the cell phone. 

On the cell phone, investigators discovered another picture of 

the September 2, 2012, wedding in which Tyler was wearing a 

brown, striped shirt; a deleted text message from September 2 

that read, “What’s it like and where is halo?”; and call records 

and location information.

Based upon this information, Tyler was arrested and charged 

for the shooting.

2. Tria

A jury trial was held in June 2014. At trial, the court 

heard testimony from 24 witnesses for the State and 5 for the 

defense. Among the State’s witnesses were Ronald King and 

Jelani Johnson. Tyler’s assignments of error in the current 

appeal concern King’s and Johnson’s testimony; therefore, a 

summary of their testimony and the State’s arguments concerning their testimony is provided in relevant part below.

(a) King’s Testimony

King testified he met Tyler and Johnson playing basketball 

for Bellevue University in Nebraska from 2008 to 2010. After 

those 2 years, King moved back to his hometown in Illinois.

In September 2012, King returned to Nebraska for the wedding of a former teammate and stayed with Johnson who was 

also attending the wedding. King testified that Tyler attended 
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the wedding and was wearing a brown, striped shirt. King 

testified that he left the wedding to go to Halo with Tyler in 

the vehicle Tyler was driving, a “light-colored Jeep.” King 

explained that once they got to Halo, they parked in the parking lot and were walking on a sidewalk leading into the club 

when they passed two men and a woman. King testified that he 

brushed against the woman as she was walking by and that the 

woman and one of the men confronted them about the contact. 

King explained that Tyler and the man who confronted them 

got into a heated exchange and that the other man and King 

had to separate the two. King testified that Tyler left at some 

point and that when King walked back toward Tyler’s Jeep, 

he saw Tyler walking from the Jeep toward the location where 

the confrontation happened with something in his hand. King 

testified he saw Tyler fire three to five gunshots in the direction where King had last seen the group of three people. After 

firing the shots, King testified that Tyler returned to the vehicle 

and Tyler drove them to a second bar. King then texted another 

friend for a ride and parted ways with Tyler. King testified that 

he returned to Illinois on his scheduled return flight. Later, 

King was arrested in Illinois for an unrelated matter and held 

for a Nebraska warrant. King obtained a lawyer when Omaha 

Police Department detectives began to question him about the 

shooting. Eventually, he was given immunity. King explained 

the terms of the immunity by describing that he gave a formal 

interview to the police and that if called to testify, he would 

“have to say the exact same thing.”

During cross-examination, King was asked by Tyler’s counsel to look at a letter leading to the following exchange:

Q. Do you recognize [the letter]?

A. Yes.

Q. Is it something that you authored, you wrote it?

A. Yes.

Q. When?

A. I don’t believe that I wrote it. I probably was speaking and somebody else wrote it.
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Q. Okay. What were the circumstances of you making 

those statements and giving that information?

A. You know, just follow-up on my reactions and how 

I felt about the situation.

Q. Okay. Was it before you spoke to the cops or after 

you spoke to the cops?

A. After.

Q. And who — you say you don’t think you typed it, 

someone else did?

A. Yes.

Q. Who?

A. My attorney, possibly.

Q. Well, what do you mean “possibly?”

A. I don’t remember who wrote it.

Q. Okay. But it’s your words?

A. Yes.

Q. And you say this was done after the police spoke to 

you in Illinois?

A. Correct.

The letter was not offered into evidence, and King provided no other testimony concerning the letter outside of this 

exchange. However, Tyler attached a letter to his motion for 

postconviction relief and alleged the document was the letter 

his counsel questioned King about at trial. Tyler alleges his 

trial counsel was informed by the State during an off-therecord recess that the letter discussed was actually written by 

Johnson. Neither the State nor Tyler’s trial counsel disclosed to 

the jury that Johnson had authored the letter.

(b) Johnson’s Testimony

Johnson testified he has known Tyler since childhood. 

Johnson played basketball at Bellevue University with Tyler 

and King and asserted that he is friends with both men.

On September 2, 2012, King and Johnson attended a 

wedding where they saw Tyler. King and Tyler left the wedding reception without Johnson, and Johnson did not see 

King again until the next day. The next morning, Johnson 
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had a conversation with King about what had occurred the 

night before. Tyler showed up uninvited at Johnson’s house, 

where he talked to Johnson and had a private conversation 

with King.

Johnson testified that days after the wedding, Tyler came 

to the restaurant where Johnson worked and told Johnson 

that Tyler’s property had been searched by police. Tyler 

also told him that “his car couldn’t be placed at Halo that 

night,” to which Johnson agreed. Johnson further testified that 

after the meeting at Johnson’s workplace, Tyler again came 

over to Johnson’s house and used Johnson’s cell phone to 

call King.

In October 2012, Omaha Police Department detectives initiated an interview with Johnson. Johnson testified that during 

the interview, detectives questioned him about the night of 

the wedding and Johnson lied and told them King had driven 

his car from the wedding and had come back to pick him up 

later. A couple weeks after this initial interview, detectives 

again attempted to interview Johnson. Johnson declined to talk 

with the detectives without an attorney and was charged with 

accessory to a felony. After Johnson hired an attorney, another 

interview was set up and Johnson admitted that King did not 

take his car the night of the wedding and that King did not 

return later to pick him up.

At trial, Johnson was questioned concerning whether he 

had a plea agreement. On direct examination, the following 

exchange occurred:

Q. Are you testifying here today pursuant to any type 

of agreement with the Douglas County Attorney’s Office?

A. Are you asking if I do have an agreement?

Q. Yes.

A. No.

Q. Okay. Has there been any type of plea agreement entered into between you and the Douglas County 

Attorney’s Office regarding this case?

A. No.
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Q. Is there any reason why you haven’t already pled to 

this charge?

A. I mean, I had conversations with my lawyer, and he 

told me just by coming . . . forth and being truthful that 

that would be the best route.

On cross-examination, Johnson again testified that he did 

not have a plea agreement worked out in exchange for his 

testimony. Johnson explained that after consulting with his 

attorney, he believed coming forward and being truthful would 

be the best thing to do. Johnson believed that testifying truthfully would lead to a lesser charge or a dismissal of the accessory charge.

(c) State’s Closing Argument

In the State’s closing argument, the State addressed both 

King’s and Johnson’s testimony and stated, in relevant part:

King and . . . Johnson were put in a bad place. Their 

teammate and their friend did something very bad. He 

told them to be quiet about it. He told them to lie about 

it. When . . . King is approached by the police, sure, he’s 

scared. He’s worried he’s going to get arrested. He was 

at a crime scene, a very serious crime scene, one where 

someone was killed, and he doesn’t even bother calling 

the cops to tell them about it. He leaves the scene, doesn’t 

tell anyone about it. He remains quiet. He was probably 

scared. He probably didn’t want . . . Tyler to get in trouble because it’s a friend of his.

So when he’s in jail and the police want to talk to 

him, he wanted a deal. And [defense counsel] criticizes 

us for giving him that deal. But keep in mind what the 

police knew versus what . . . King knew. And what I 

would argue to you is the police and prosecutors don’t 

give deals to liars. We didn’t give a deal to . . . Johnson. 

In fact, the police arrested him and that charge is still 

pending. But what we knew about . . . King when he 

said, “Hey, I want immunity,” frankly, it’s easy to give it 

to him. Why? Because all the evidence was pointing to 
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. . . Tyler being the shooter; Jeep Commander leaving the 

scene that we tied to his girlfriend; FN Herstal gun was 

the weapon used to kill, we tied that to . . . Tyler; we have 

a witness, not only identify him at the scene, telling the 

. . . police, not coincidentally, what he was wearing that 

night and a picture of him. We have cell phone evidence 

of him using his phone that night. There was nothing to 

suggest . . . King was the shooter, and the cops knew 

that. So to tell . . . King, “We aren’t going to arrest you 

as long as you tell the truth,” was simple, which is why it 

was different with [Johnson]. He didn’t tell the truth, so 

he was arrested.

3. Disposition and Direct 

The jury found Tyler guilty of first degree murder and use 

of a firearm to commit a felony. Utilizing the same counsel he 

had at trial, Tyler filed a direct appeal with this court claiming errors relating to the district court’s denial of various 

motions to suppress. We concluded the district court did not 

err by overruling Tyler’s motions to suppress and affirmed 

Tyler’s convictions.2

4. Tyler’s Motion 

Postconviction 

In October 2016, Tyler filed a motion for postconviction 

relief alleging prosecutorial misconduct and ineffective assistance of trial counsel. As to prosecutorial misconduct, Tyler 

claimed the State (1) allowed King’s known, false testimony 

concerning the authorship of the letter provided by Tyler’s 

counsel to go uncorrected; (2) introduced new and impermissible evidence during closing arguments in providing the 

reasoning for King’s immunity deal; (3) improperly vouched 

for and bolstered King’s testimony by stating during closing 

arguments that “‘the police and prosecutors don’t give deals 

to liars’”; (4) lied to the jury during closing arguments in 

2 See id.
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representing that Johnson would not receive a deal; and (5) 

failed to disclose to Tyler’s counsel that Johnson’s charge 

would be dropped in exchange for his testimony at trial. As to 

ineffective assistance, Tyler claimed trial counsel (1) allowed 

King’s false testimony to go uncorrected, (2) failed to object 

to prosecutorial misconduct in introducing new and impermissible evidence during closing arguments and vouching 

for and bolstering a State’s witness, and (3) failed to appeal 

the comments made by the county attorney. Tyler additionally argued the cumulative effect of these errors denied him 

a fair trial.

In an amended order, the district court denied Tyler’s motion 

without an evidentiary hearing. The court found Tyler’s claims 

were procedurally barred, insufficiently pled, and affirmatively refuted by the record. Tyler appeals this order.

II. ASSIGNMENTS OF ERROR

Tyler assigns, consolidated and restated, that the district 

court erred in finding an evidentiary hearing was not warranted and (1) dismissing his claims of prosecutorial misconduct regarding King’s and Johnson’s testimony and the State’s 

closing argument and (2) dismissing his claims of ineffective 

assistance of counsel for not objecting, correcting, or appealing the alleged prosecutorial misconduct.

III. STANDARD OF REVIEW

[1] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law which is reviewed 

independently of the lower court’s ruling.3

[2] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.4

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

4 State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
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IV. ANALYSIS

[3] Under the Nebraska Postconviction Act, Neb. Rev. Stat. 

§§ 29-3001 to 29-3004 (Reissue 2016), a prisoner in custody 

may file a petition for relief on the ground that there was a 

denial or infringement of the prisoner’s constitutional rights 

that would render the judgment void or voidable. This category 

of relief is “very narrow.”5

[4] Section 29-3001(2) entitles a prisoner to an evidentiary 

hearing on a claim for postconviction relief, 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.” In order 

to be entitled to an evidentiary hearing, a prisoner must allege 

facts in the motion for postconviction relief that, if proved, 

would constitute a violation of his or her rights under the 

U.S. or Nebraska Constitution.6 A prisoner is not entitled to 

an evidentiary hearing on the basis of claims that present only 

conclusory statements of law or fact.7 In the absence of alleged 

facts that would render the judgment void or voidable, the 

proper course is to dismiss the motion for postconviction relief 

for failure to state a claim.8

[5-8] A motion for postconviction relief is not a substitute 

for an appeal.9 Therefore, a motion for postconviction relief 

cannot be used to secure review of issues which were known 

to the defendant and could have been litigated on direct appeal; 

such issues are procedurally barred.10 Whether a claim of 

prosecutorial misconduct could have been litigated on direct 

appeal and is thus procedurally barred from being litigated on 

postconviction depends on the nature of the claim.11 Where 

5 Haynes, supra note 3, 299 Neb. at 260, 908 N.W.2d at 51.

6 State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).

7 Id.

8 See State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).

9 State v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).

10 Id.

11 Id.
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the claim of prosecutorial misconduct is such that a determination of the merits is possible based on the record on direct 

appeal, it is procedurally barred from being litigated on postconviction.12 But where an evidentiary hearing is necessary 

to decide the merits of the claim, the failure to raise the issue 

on direct appeal does not preclude it from being litigated 

on postconviction.13

1. Prosecutorial Misc

On appeal, Tyler’s allegations of prosecutorial misconduct 

include (1) the prosecutor knowingly misrepresented to the 

jury that Johnson would not receive a deal before dismissing 

his felony charge and committed a Brady v. Maryland14 violation by failing to disclose the deal to Tyler, (2) the prosecutor 

failed to correct King’s testimony about authoring the letter, (3) 

the prosecutor introduced new and impermissible facts during 

closing arguments, and (4) the prosecutor improperly bolstered 

a witness during closing arguments.

Prosecutors are charged with the duty to conduct criminal 

trials in a manner that provides the accused with a fair and 

impartial trial.15 Because prosecutors are held to a high standard for a wide range of duties, the term “prosecutorial misconduct” cannot be neatly defined.16 Generally, prosecutorial 

misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may 

undermine a defendant’s right to a fair trial.17

(a) Plea Deal

Tyler claims that the State committed prosecutorial misconduct in failing to disclose to the jury that Johnson had 

12 See id.

13 Id.

14 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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

16 Id.

17 Id.
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received a plea deal. Tyler also claims that the State committed a violation of Brady18 when it failed to disclose that 

Johnson had received a plea deal.

These claims center on Tyler’s allegation that the prosecutor 

told the jury during his closing argument that Johnson would 

not be getting a deal and that after trial, Johnson had his criminal case dismissed as a result of his testimony. A determination 

of these claims on the merits is possible based on the record 

without further evidentiary hearing.

[9] In assessing allegations of prosecutorial misconduct in 

closing arguments, a court first determines whether the prosecutor’s remarks were improper.19 It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant’s right to a fair trial.20

A prosecutor must base his or her argument on the evidence 

introduced at trial rather than on matters not in evidence.21

However, a prosecutor is entitled to draw inferences from the 

evidence in presenting his or her case, and such inferences 

generally do not amount to prosecutorial misconduct.22 As we 

stated in State v. Dubray23:

[W]hen a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, he or she is permitted to present a spirited summation that a defense theory 

is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State 

and the defense. These types of comments are a major 

purpose of summation, and they are distinguishable from 

attacking a defense counsel’s personal character or stating 

18 Brady, supra note 14.

19 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

20 Id.; State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).

21 Johnson, supra note 19.

22 Id.

23 Dubray, supra note 15, 289 Neb. at 227, 854 N.W.2d at 604-05.
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a personal opinion about the character of a defendant 

or witness.

During trial, Johnson testified that he did not have a deal 

with the State but that he hoped his cooperation would lead to 

a lesser charge or dismissal of his accessory charge. In closing 

arguments, the State asserted that Johnson had been arrested, 

had a charge pending, and did not have a deal in place at the 

time of trial.

Even if Johnson later received a dismissal or reduction 

of his charge, it would not make Johnson’s testimony or 

the State’s assertions during closing arguments untrue. In 

fact, in review of Johnson’s testimony and the State’s assertions during closing arguments, the record makes clear that 

Johnson believed it possible and the State did not dispute that 

Johnson’s charge or sentence might be modified as a result of 

his testimony. As such, the State’s assertions during closing 

arguments did not mislead or unduly influence the jury. As 

we have previously stated, a prosecutor’s conduct that does 

not mislead and unduly influence the jury does not constitute 

misconduct.24 Tyler’s claim that the prosecutor misled the jury 

is without merit.

In regard to an alleged Brady violation, the U.S. Supreme 

Court has held that the prosecution has a duty to disclose all 

favorable evidence to a criminal defendant prior to trial.25

Favorable evidence includes both exculpatory and impeachment evidence.26

Tyler’s motion for postconviction relief alleges that the State 

committed the Brady violation when the State gave Johnson a 

plea deal after telling the jury that Johnson would not be given 

a deal. More specifically, Tyler alleges the prosecutor stated 

24 See Johnson, supra note 19.

25 Brady, supra note 14.

26 See United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 

481 (1985), citing Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 

L. Ed. 2d 104 (1972).
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in closing that Johnson would not be getting a deal and that 

therefore, the State was precluded from giving Johnson a deal 

after trial.

However, the record does not support this allegation. Instead, 

the record indicates that the prosecutor stated that “[w]e didn’t 

give a deal to . . . Johnson.” The prosecutor’s statement was 

made during rebuttal argument in response to defense counsel’s 

questioning as to why King wanted immunity. The prosecutor’s 

statement was a correct statement of the evidence which indicated that Johnson lied to investigators, that he was charged 

with accessory to a felony, and that he did not have a deal at 

the time of trial.

Tyler’s motion for postconviction relief did not allege that 

Johnson’s testimony was false or that the State had a plea 

agreement with Johnson at the time of trial and failed to 

disclose that fact to Tyler. As a result, Tyler did not present 

allegations that the prosecution failed to disclose exculpatory 

or impeachment evidence to support a Brady violation. This 

assignment of error is without merit.

(b) False Testimony

Tyler alleges that the State committed prosecutorial misconduct in failing to correct King’s testimony about authoring the letter provided by Tyler’s counsel. In his motion for 

postconviction relief, Tyler noted that, though King testified 

he authored the letter, the State informed Tyler’s counsel 

during an off-the-record recess that the letter was written 

by Johnson. Neither the State nor Tyler’s counsel disclosed 

Johnson’s authorship of the letter to the jury. Tyler claims he 

could not have brought this claim of prosecutorial misconduct 

on direct appeal, because the State’s disclosure that Johnson, 

not King, authored the letter occurred off the record. However, 

Tyler acknowledges in his motion for postconviction relief that 

this issue was known to Tyler’s counsel at the time of trial, 

and there is no evidence that it was raised on direct appeal. It 

is well settled that a motion for postconviction relief cannot 
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be used to secure review of issues which were known to the 

defendant and which were or could have been litigated on 

direct appeal.27 Therefore, Tyler’s claim of prosecutorial misconduct for failing to correct known, false testimony is procedurally barred.

(c) Comments During Closing

Tyler alleges that the State committed prosecutorial misconduct in introducing new and impermissible facts during 

closing arguments. On this claim, Tyler asserts the State committed prosecutorial misconduct in informing the jury that the 

reason King was offered immunity was because King was at 

the scene of a crime and failed to report it to the police. Tyler 

asserts this information was not introduced at trial and, as 

such, the State should have been precluded from discussing 

these facts during closing arguments.

A review of the trial record and the State’s comments in 

closing is sufficient to determine whether the State introduced new and impermissible information during closing 

arguments. Therefore, Tyler could have raised this claim on 

direct appeal, but failed to do so. As such, this claim is procedurally barred.

(d) Witness Bolstering

Tyler alleges that the State committed prosecutorial misconduct by improperly bolstering a witness during closing 

arguments. Tyler argues that the prosecution’s statement that 

“the police and prosecutors don’t give deals to liars” bolstered 

King’s credibility.

As with Tyler’s previous claim, Tyler’s bolstering claim is 

based on the record of what occurred during closing arguments. 

The issues of whether the State’s comments were improper 

or materially prejudicial could have been resolved on direct 

appeal. Because Tyler failed to raise the claim on direct appeal, 

the claim is procedurally barred.

27 Torres, supra note 9.
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In consideration of all of the above, we conclude that the 

district court did not err in dismissing Tyler’s claims of prosecutorial misconduct without an evidentiary hearing.

2. Ineffective Assi

of Counse

As to his claims for ineffective assistance, Tyler alleged that 

his trial counsel allowed King’s false testimony to go uncorrected, failed to object to prosecutorial misconduct in introducing new and impermissible evidence during closing arguments 

and bolstering a State’s witness, and failed to appeal the comments made by the county attorney. Tyler additionally argued 

the cumulative effect of these errors denied him a fair trial. 

Stated another way, Tyler claims his counsel was ineffective 

in failing to object, correct, or appeal the alleged instances of 

prosecutorial misconduct.

[10] Where trial counsel and appellate counsel are the same, 

a postconviction motion is a defendant’s first opportunity to 

raise a claim of ineffective assistance.28 A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.29 To prevail on a 

claim of ineffective assistance of counsel under Strickland v. 

Washington,

30 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.31 To show 

prejudice under the prejudice component of the Strickland test, 

the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding would have been different.32 A reasonable probability 

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

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

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

(1984).

31 Vela, supra note 29.

32 Id.
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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.33 In determining whether counsel 

was ineffective in failing to object to prosecutorial misconduct, an appellate court must first determine whether the 

petitioner has alleged any action or remarks that constituted 

prosecutorial misconduct.34

(a) King’s Testimony

In his motion for postconviction relief, Tyler alleged his 

counsel was ineffective for failing to correct King’s known, 

false testimony that King authored the letter and, on direct 

appeal, in failing to allege prosecutorial misconduct that the 

State allowed known, false testimony to go uncorrected. This 

claim is without merit, because Tyler has failed to allege sufficient facts to show King’s testimony misled or unduly influenced the jury.

Tyler contends that correcting the testimony about the letter 

would have provided the jury evidence relevant to King’s credibility which was at issue as a primary witness for the State. 

However, Tyler’s counsel cross-examined King at trial and 

questioned King’s credibility, including the amount of alcohol 

he consumed on the day of the shooting, his receiving immunity for his cooperation, and his statements to law enforcement. 

The jury was able to compare King’s testimony with the other 

witnesses’ accounts and consider the terms of King’s immunity 

deal. The authorship of a letter that the jury did not review or 

have substantive information about had little probative value to 

King’s credibility. Tyler failed to show how evidence that King 

authored the letter caused any prejudicial effect.

Tyler also claims his counsel should have introduced the 

letter to impeach King’s testimony that he saw Tyler firing 

33 Id.

34 Johnson, supra note 19.
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the gun, because the letter allegedly states that the author did 

not see the shooting. However, Tyler admits that the letter 

was actually written by Johnson, so regardless of the alleged 

content of the letter, any statements about what the author of 

the letter observed are irrelevant to King’s testimony about his 

own observations.

Therefore, based on all of the above, Tyler has failed 

to state sufficient allegations under the prejudice prong of 

Strickland to show that, but for counsel’s failure to correct 

King’s testimony about the letter and failure to allege on direct 

appeal that the State committed prosecutorial misconduct in 

not correcting King’s testimony, the result of trial would have 

been different.

(b) Closing Arguments

Tyler’s remaining claims of ineffective assistance consist 

of his counsel’s failure to object to the State’s statements during closing arguments and failure to raise the issue on appeal. 

Specifically, these claims concern the State’s comments about 

King’s immunity deal and Johnson’s lack of a plea deal.

(i) New Evidence

Tyler claims his counsel failed to object to prosecutorial 

misconduct when the State discussed the reasoning for King’s 

immunity deal. Specifically, Tyler claims prosecutorial misconduct in the State’s explaining that the reason King was 

offered immunity was because King was at the scene of a 

crime and failed to report it to the police. According to Tyler, 

this amounts to misconduct, because “information was not 

introduced into evidence during the trial to show that King 

had broken the law in any way” for which he would need the 

immunity deal. He further asserts that “[w]ithout this evidence 

being introduced improperly, the jury very well could have 

concluded that King was hiding something or testifying falsely 

because most witnesses with no involvement in a crime do not 

need immunity to testify.”
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Here, the record shows King testified that he was with Tyler 

on the night of the offense, that King was involved in the 

altercation which eventually led to the shooting, that King saw 

Tyler shoot a gun toward the group with whom they had the 

altercation, that King rode in Tyler’s vehicle after witnessing 

him shoot the gun, that King flew back to Illinois, and that 

King received an immunity deal before he gave an interview 

about the shooting. King did not testify to notifying the police 

of the shooting before the Omaha Police Department detectives initiated contact. In addition, Tyler’s counsel argued in 

closing that if King was not the shooter, then he would not 

need immunity.

It was a reasonable inference for the State to draw from 

this testimony that King received his immunity deal to protect 

him from possible charges connected with his participation in 

the events surrounding the shooting, and it was appropriate to 

rebut Tyler’s closing argument. As such, the State’s assertion 

that King received his immunity deal in connection with witnessing the shooting and not reporting it does not amount to 

prosecutorial misconduct.

(ii) Witness Bolstering

Tyler claims his counsel was ineffective for failing to 

object to the State’s improperly bolstering King’s testimony. 

Specifically, Tyler points to the State’s comment that “the 

police and prosecutors don’t give deals to liars” while noting 

King received an immunity deal as opposed to Johnson, who 

did not. Such a statement, Tyler argues, implied that King must 

be honest because he got an immunity deal.

The trial testimony of both King and Johnson support 

the State’s comments in closing. King testified that he was 

approached by investigators, that he demanded an immunity 

deal in exchange for an interview, and that he received the 

deal. Johnson, in turn, testified that he lied to investigators, 

that he was charged with accessory to a felony, and that he did 

not have a deal at the time of trial. The inferences made by the 

State were reasonable given these facts.
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In addition, the jury was able to determine on its own the 

weight and credibility to be given to King’s testimony as it 

heard King testify, heard King being cross-examined as to his 

credibility, heard testimony from other witnesses concerning 

King, and heard Tyler’s closing argument which addressed 

concerns about King’s truthfulness.

Further, the prosecutor’s statement was made in the State’s 

rebuttal argument. In U.S. v. Delgado,

35 the court held that the 

prosecutor did not commit misconduct by arguing during closing arguments that the defendant had lied. The court noted that 

“context is crucial” and that the prosecutor’s statement was 

made in response to defense counsel’s attack of government 

witnesses and after a detailed summary of the evidence.36 The 

statement that the defendant lied, the court explained, was a 

commentary on what the evidence showed; it was not an assertion of the prosecutor’s personal opinion or an attack on the 

defendant’s character.37

Here, Tyler’s counsel, during closing, raised the issue of 

King’s credibility repeatedly. More specifically, Tyler’s counsel questioned why King would need immunity if he had not 

done anything illegal. To rebut that contention, the prosecutor addressed the reason King was granted immunity and the 

reason Johnson was not granted immunity. The prosecutor’s 

statement was a commentary on what the evidence showed; it 

was not an assertion of the prosecutor’s personal opinion or a 

bolstering of King’s credibility.

Lastly, the trial judge instructed the jury that the attorneys’ 

statements were not to be taken as evidence. Therefore, absent 

other evidence, the State’s comment that “the police and prosecutors don’t give deals to liars” and the State’s emphasis on 

King’s having received an immunity deal does not amount 

to prosecutorial misconduct. Counsel is not ineffective for 

35 U.S. v. Delgado, 672 F.3d 320 (5th Cir. 2012).

36 Id. at 335.

37 Id.
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failing to make an objection that has no merit.38 As a result, 

Tyler’s trial counsel could not be ineffective for failing 

to object.

(iii) Plea Deal

Tyler argues that the State’s comment during closing arguments, “what I would argue to you is the police and prosecutors don’t give deals to liars[; we] didn’t give a deal to 

. . . Johnson,” amounted to prosecutorial misconduct, because 

Johnson received a deal to drop his pending charge after he 

provided his testimony. Such a statement, Tyler claims, bolstered Johnson’s credibility with the jury, because it appeared 

as if Johnson were providing testimony against his own best 

interests even though he had not been given a plea deal.

As discussed in a previous section, however, this ignores 

Johnson’s testimony concerning the status of his then-current 

charge. Johnson testified that he did not have an agreement 

with the State in exchange for his testimony and explained 

that he decided to testify after consulting with his attorney and 

determining that testifying would be the best decision to lead 

to his own best outcome. He further explained that the best 

outcome in his situation would hopefully be that his cooperation would lead to a reduction or dismissal of his accessory charge.

The State’s assertion during closing arguments that Johnson 

had been arrested, had a charge pending, and did not have a 

deal in place at the time of trial aligns with this testimony. 

Further, the State’s explanation that Johnson did not currently 

have a deal in place because he lied to police and “the police 

and prosecutors don’t give deals to liars” is a natural inference 

from the evidence.39

Tyler further argues the State’s assertion that Johnson lied to 

the police and “the police and prosecutors don’t give deals to 

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

39 See Johnson, supra note 19.
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liars” implied the State meant Johnson would never be given 

a deal because of his untruthfulness. However, in review of 

the record, the State commented only that Johnson had been 

arrested and charged because he had lied and that Johnson 

did not have a deal at the time of trial. The State did not say 

Johnson could not redress his incorrect statements and rehabilitate himself to obtain a deal. Through Johnson’s testimony, 

it is clear that he believed there was a possibility for a future 

deal if he testified truthfully at trial. Therefore, these claims 

fail to make sufficient factual allegations to lead to a finding of 

prosecutorial misconduct.

In consideration of all of the above, Tyler failed to allege 

sufficient facts that the complained-of remarks in the State’s 

closing argument misled and unduly influenced the jury and 

constituted prosecutorial misconduct.40 Therefore, the district 

court did not err in dismissing, without an evidentiary hearing, 

the claims of ineffective assistance of counsel for failing to 

object and appeal the alleged prosecutorial misconduct.

V. CONCLUSION

For the reasons stated above, we conclude that Tyler was not 

entitled to an evidentiary hearing on his claims of prosecutorial 

misconduct and ineffective assistance of counsel. We further 

conclude that the district court did not err in dismissing Tyler’s 

motion for postconviction relief. Therefore, we affirm the district court’s order.

Affirmed

Freudenberg, J., not participatin

40 See id.