State v. Cullen, 311 Neb. 383

Background

Sarah Cullen, a nanny, was convicted of intentional child abuse resulting in the death of an infant and sentenced to 70 years to life; conviction affirmed on direct appeal.
Medical testimony showed catastrophic, nonaccidental brain and retinal injuries consistent with shaking or severe impact; experts could not fix an exact time but estimated injury within 0–2 days of discovery. Cullen had given police four inconsistent accounts.
On direct appeal Cullen (with new counsel) preserved one ineffective-assistance claim (failure to investigate/call a medical expert); the Nebraska Supreme Court found the record inadequate to resolve that claim but affirmed the conviction.
Cullen filed a verified postconviction motion raising four additional ineffective-assistance-of-trial-counsel claims (failure to investigate defenses/witnesses, failure to hire/use experts/trial consultant, failure to consult about/testify, failure to prepare/depose witnesses) and one ineffective-assistance-of-appellate-counsel claim.
The district court dismissed the postconviction motion without an evidentiary hearing, finding the allegations conclusory and lacking specific factual detail about what additional witnesses or experts would have said or how counsel’s alleged deficiencies prejudiced the outcome.
The Nebraska Supreme Court affirmed, holding Cullen failed to plead sufficient factual allegations to support entitlement to an evidentiary hearing under Strickland and Nebraska postconviction standards.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Failure to investigate defenses/advice	Cullen: trial counsel did not investigate alternate theories (e.g., parents) or follow leads from original counsel/trial consultant	State/District Ct.: allegations merely list potential witnesses without stating what they would say or how outcome would change	Affirmed dismissal — allegations speculative, not specific facts showing prejudice
2) Failure to hire/use expert witnesses and trial consultant	Cullen: counsel failed to retain experts recommended by trial consultant who would have supported her account	State: Cullen named experts but pleaded no specific proffer of their testimony or how it would alter verdict	Affirmed — conclusory assertions about experts; no specific testimony alleged
3) Failure to advise re: right to testify	Cullen: counsel never met or advised her about testifying; she would have testified to her version and love for the child	State: statements to police (four versions) were already in evidence; Cullen didn’t specify what new testimony would be; risk of damaging cross-examination	Affirmed — no specific proffer; no showing of prejudice given record statements
4) Failure to prepare/depose State witnesses	Cullen: counsel did not depose or prepare cross-examination of medical/expert witnesses	State: Cullen failed to identify what depositions would have shown or what cross questions would have accomplished	Affirmed — generalized claims without specific factual allegations
5) Ineffective assistance of appellate counsel (layered claim)	Cullen: appellate counsel failed to consult and raise trial-counsel IAC claims on direct appeal	State: layered claim depends on showing trial counsel was ineffective; since trial IAC claims fail, appellate IAC fails	Affirmed — appellate claim fails because underlying trial IAC claims not sufficiently alleged

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong deficient performance and prejudice test for IAC)
State v. Britt, 310 Neb. 69 (describes pleading and hearing standards for postconviction motions)
State v. Cullen, 292 Neb. 30 (direct appeal opinion; preserved limited IAC claim re: medical expert)
State v. Parnell, 305 Neb. 932 (explains layered IAC review and Strickland application)
State v. Munoz, 309 Neb. 285 (requires specific factual allegations about uncalled witnesses in postconviction motions)
State v. Iromuanya, 282 Neb. 798 (addresses counsel’s duty re: defendant’s right to testify and prejudice analysis)
Weaver v. Massachusetts, 137 S. Ct. 1899 (discusses structural error and relation to right to testify in postconviction context)