State v. Cross, 297 Neb. 154

Background

Shawn L. Cross was convicted by a jury in March 2010 of second-degree assault and use of a weapon; later adjudicated a habitual criminal and sentenced to 20–25 years.
Cross previously raised ineffective-assistance and conflict-of-interest claims (regarding attorney Richard DeForge) at multiple stages: before trial, on direct appeal, and in postconviction proceedings; those prior proceedings were resolved against him.
In December 2015 and again in March 2016 (each more than five years after the verdict), Cross filed pro se motions for a new trial asserting newly discovered evidence under Neb. Rev. Stat. § 29-2101(5).
The district court, relying on amended § 29-2102(2), dismissed the 2016 motion without an evidentiary hearing because the motion and supporting documents failed to set forth sufficient facts.
Cross appealed, arguing the court applied the wrong standard, erred by not holding a hearing, and failed to address the alleged DeForge conflict of interest.
The Nebraska Supreme Court moved the case to its docket to construe 2015 amendments to the new-trial statutes and to resolve the proper standard of review for dismissals under § 29-2102(2).

Issues

Issue	Cross's Argument	State's Argument	Held
Proper standard of review for dismissal under § 29-2102(2) without hearing	District court should be reviewed for abuse of discretion	De novo review is appropriate because court performs a thresholdsufficiency review similar to postconviction screening	De novo review applies to dismissals without evidentiary hearing; abuse of discretion remains for denials after hearing
Timeliness of motion filed >5 years after verdict under § 29-2103(4) (two-prong test)	Cross asserted three categories of "new" evidence (aunt's recantation letter; victim’s immigration/deposition; DeForge conflict) and argued they met the statute	State argued evidence was not new or was not shown to be discoverable only with reasonable diligence and not sufficiently substantial to change result	Motion untimely: Cross failed the first prong (could not show with reasonable diligence that evidence could not have been discovered at trial) and thus did not meet § 29-2103(4)
Requirement for evidentiary hearing under § 29-2102(2) and sufficiency of supporting evidence	Cross contended the court should have held a hearing and fully evaluated conflict and recantation claims	State argued the motion/supporting docs did not set forth sufficient facts (and some attachments were improper forms) so dismissal without hearing was authorized	Dismissal without hearing was proper because the motion/supporting documents failed to set forth sufficient facts that, if true, would materially affect Cross’s substantial rights

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (general abuse-of-discretion practice for new-trial denials)
State v. Draper, 289 Neb. 777 (standards for new-trial review and timeliness)
State v. Archie, 273 Neb. 612 (trial judge's advantage in assessing witness credibility)
State v. Nolan, 292 Neb. 118 (postconviction screening and de novo review of threshold sufficiency)
State v. Hessler, 288 Neb. 670 (successive motions and related precedent)
State v. Merchant, 285 Neb. 456 (new-trial timeliness and substance principles)