State v. Allen
301 Neb. 560
| Neb. | 2018Background
- Kevin Allen was convicted by a jury of first-degree murder and use of a firearm to commit a felony for the 1995 killing of Omaha police officer James Wilson; he received life plus 18–20 years consecutive. Allen’s convictions were affirmed on direct appeal.
- The shooting involved a gang (South Family Bloods) van; eyewitnesses and co-defendant accounts were inconsistent, and the murder weapon was never recovered. Minor and Perry provided testimony implicating Allen; other witnesses at times identified Quincy Hughes as the shooter.
- Police found nine latent fingerprints of Allen in and near the sliding door/driver area of the van; no fingerprints of Hughes were found. Hughes was initially charged but later dismissed; Minor’s deposition (taken earlier by Allen’s counsel) was read at trial after Minor asserted his Fifth Amendment right mid-testimony.
- Allen filed a verified pro se postconviction motion (later amended with counsel) asserting: trial error (fair trial violations), ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, and newly discovered evidence. The district court granted the State’s motion to dismiss and denied an evidentiary hearing; Allen appealed pro se.
- The district court ruled some claims procedurally barred (because or could have been raised on direct appeal), and rejected ineffective-assistance claims on the merits (no deficient performance or prejudice). The court also rejected the newly discovered evidence claim for lack of factual support.
Issues
| Issue | Allen's Argument | State's Argument | Held |
|---|---|---|---|
| Trial-court error re: Minor’s mid-testimony invocation of Fifth and use of deposition | Trial court violated Allen’s Sixth Amendment confrontation rights by allowing deposition and not striking live testimony | Issues were litigated on direct appeal; no basis for postconviction review | Procedurally barred; cannot raise plain error in postconviction; denial affirmed |
| Ineffective assistance of trial counsel for failing to call/allege witnesses and object to evidence | Counsel failed to call key witnesses (Burns, Smith, Circo) and failed to object to firearm evidence, prejudicing the defense | Proposed testimony either cumulative, noncritical, or legally inadmissible (polygraph); objections lacked merit | Denied — counsel not ineffective; no prejudice shown |
| Ineffective assistance of appellate counsel for not raising certain trial errors and prosecutorial misconduct on direct appeal | Appellate counsel failed to challenge Minor deposition/Fifth issues and prosecutorial misconduct | Appellate brief did not present arguments; layered claims fail if trial counsel was not ineffective | Denied — claims not argued on appeal and fail on the merits |
| Newly discovered evidence / forensic tampering (Kofoed, 2012 lab error) | Alleged later revelations about crime-lab personnel and a misidentified fingerprint case render forensic evidence unreliable | Allegations are generalized, lack specific factual linkage to Allen’s evidence, and would not likely change the outcome | Denied — no factual showing to merit an evidentiary hearing |
Key Cases Cited
- State v. Allen, 252 Neb. 187 (Neb. 1997) (direct-appeal decision affirming convictions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- State v. Robertson, 294 Neb. 29 (Neb. 2016) (postconviction proceedings not governed by civil pleading rules)
- State v. Foster, 300 Neb. 883 (Neb. 2018) (standard of review in postconviction appeals)
- State v. Newman, 300 Neb. 770 (Neb. 2018) (postconviction evidentiary-hearing standards)
- State v. Castaneda, 287 Neb. 289 (Neb. 2014) (polygraph evidence unreliability and inadmissibility)