State v. Allen
919 N.W.2d 500
Neb.2018Background
- Kevin Allen was convicted by a jury of first-degree murder and use of a firearm to commit a felony in the 1995 killing of Omaha police officer Jimmy Wilson; sentenced to life plus 18–20 years consecutively. Allen’s direct appeal was unsuccessful.
- The shooting involved occupants of a van; initial investigation implicated Quincy Hughes but later shifted to Allen based on witness statements (including Perry and Minor) and physical evidence (security photo and nine latent fingerprints of Allen in the van).
- At trial Minor testified but later invoked the Fifth Amendment; portions of his earlier deposition were read into evidence. The State dismissed charges against Hughes before charging Allen.
- Allen filed a pro se postconviction motion (docketed 2007) and later an amended counseled motion (2016) asserting: trial unfairness, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and newly discovered evidence. The district court dismissed the amended motion without an evidentiary hearing.
- The district court held many allegations were procedurally barred (could have been raised on direct appeal), rejected ineffective-assistance claims for lack of deficient performance or prejudice, and denied a hearing on newly discovered evidence as speculative.
- The Nebraska Supreme Court affirmed, applying the Strickland standard for ineffective-assistance claims and holding Allen failed to allege facts entitling him to postconviction relief or an evidentiary hearing.
Issues
| Issue | Allen's Argument | State's Argument | Held |
|---|---|---|---|
| District court erred by allowing Minor to invoke Fifth mid-testimony and by reading his deposition | Allowing deposition and not striking in-court testimony violated Sixth Amendment confrontation rights; merits plain-error review | Issue was raised on direct appeal and is procedurally barred in postconviction; plain error not available in postconviction | Procedurally barred; affirmed |
| Ineffective assistance of trial counsel for failing to call or investigate witnesses (e.g., Burns, Smith, polygraph examiner Circo) | Counsel failed to call witnesses who would have supported an alternate shooter theory or undermined key witnesses | Proposed witnesses’ testimony either would not change outcome or would be inadmissible (polygraph evidence is barred) | No deficient performance or prejudice; claim fails |
| Ineffective assistance of appellate counsel for failing to raise certain trial errors on direct appeal | Appellate counsel failed to meaningfully challenge constitutional errors and prosecutorial misconduct | Layered claims require showing trial counsel ineffective; Allen failed to specify or argue how counsel erred | Denied for failure to specifically argue or show prejudice; affirmed |
| Newly discovered evidence (alleged forensic tampering and later fingerprint lab errors) | Recent revelations about forensic personnel and lab errors render fingerprint and other forensic evidence unreliable and warrant hearing | Allegations are generalized/speculative; no specific proof that Allen’s evidence was misidentified or that outcome would differ | Denied; no factual support for an evidentiary hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard: deficient performance and prejudice)
- State v. Foster, 300 Neb. 883 (postconviction review standard; motion dismissal when no facts alleged to show relief)
- State v. Newman, 300 Neb. 770 (standards for postconviction relief and when hearings are not required)
- State v. Robertson, 294 Neb. 29 (clarified that postconviction practice is not governed by civil pleading rules)
- State v. Castaneda, 287 Neb. 289 (polygraph evidence and jury’s role in assessing credibility)