State v. Dubray, 294 Neb. 937

Background

In 2012, Dominick L. Dubray was convicted of two counts of first-degree murder and two counts of using a weapon to commit a felony for the killings of Catalina Chavez and Mike Loutzenhiser; he was sentenced to consecutive life terms plus lengthy additional terms.
At the scene, police recovered three kitchen knives and numerous stab wounds on all parties; Dubray had many superficial wounds and one life-threatening chest wound he later admitted self-inflicting.
Dubray did not testify at trial; his defense was self-defense or manslaughter based on a sudden quarrel. The Nebraska Supreme Court on direct appeal affirmed the convictions, finding the evidence strong and noting Dubray’s inculpatory statements.
Dubray filed a timely pro se postconviction petition alleging actual innocence, multiple claims of ineffective assistance of trial and appellate counsel, trial-court error, and prosecutorial misconduct.
The State moved to dismiss without an evidentiary hearing; the district court granted the motion. Dubray appealed the dismissal.
The Nebraska Supreme Court affirmed, holding many claims procedurally barred, conclusory, or insufficiently pleaded to warrant an evidentiary hearing, and finding no prejudice from the one nonbarred claim (failure to call a witness).

Issues

Issue	Dubray's Argument	State's Argument	Held
Actual innocence	Evidence at trial was insufficient; he woke up with no memory and therefore is actually innocent	No new, reliable evidence of innocence; insufficiency claims are procedurally barred if could have been raised on direct appeal	Dismissed: claim fails extraordinary threshold; procedurally barred where based on sufficiency; no new facts shown
Ineffective assistance — failure to call Megan (witness about victim keeping a knife)	Megan would have testified Chavez kept a knife under mattress, supporting self-defense/sudden quarrel	Testimony would have minimal probative value and would not create reasonable probability of a different outcome given strong inculpatory evidence	Dismissed on merits: no prejudice shown under Strickland; no entitlement to hearing
Ineffective assistance — other trial counsel claims (voir dire, experts, insanity, suppression, juror bias, etc.)	Trial counsel failed in multiple respects (juror questioning, experts, insanity defense, motions, suppression)	Most claims were known or apparent from the record and thus must be raised on direct appeal; allegations are conclusory or unsupported by record	Dismissed: procedurally barred or insufficiently pleaded; record contradicts some claims (meaningful adversarial testing)
Ineffective appellate counsel	Appellate counsel failed to raise various claims (rehearing, insufficiency, competency, layered claims)	Many issues were meritless, contradicted by the record, or were linked to trial counsel errors that were not shown to be prejudicial	Dismissed: no prejudice shown; some claims contradicted by record (e.g., motion for rehearing was filed)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel: deficient performance and prejudice)
State v. Dubray, 289 Neb. 208 (Neb. 2014) (direct-appeal opinion describing trial facts and strength of evidence)
State v. Phelps, 286 Neb. 89 (Neb. 2013) (standards for postconviction pleading and actual innocence threshold)
State v. Nesbitt, 264 Neb. 612 (Neb. 2002) (procedural-bar principles for postconviction claims that were or could have been raised on direct appeal)
State v. Nolan, 292 Neb. 118 (Neb. 2015) (review standards for Strickland claims and postconviction pleadings)