State v. Henderson, 301 Neb. 633

Background

Henderson was convicted of first-degree murder, attempted first-degree murder, firearm offenses; convictions were affirmed on direct appeal.
At trial, Henderson was apprehended near the scene, found with one gun, seen discarding another; forensic evidence (bullets/casings, a fingerprint, and Voss’s blood on Henderson’s clothing) tied him to the shootings.
Postconviction, represented by same counsel who handled trial and appeal, Henderson alleged multiple instances of ineffective assistance of trial and appellate counsel and sought an evidentiary hearing.
The district court denied relief without an evidentiary hearing, finding Henderson’s allegations either nonspecific or lacking prejudice; Henderson appealed to the Nebraska Supreme Court.
The Supreme Court reviewed de novo whether the postconviction allegations were sufficiently specific and, under Strickland, whether alleged deficiencies and prejudice were shown to warrant a hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to call Timothy Washington	Would have impeached eyewitness testimony about Henderson’s demeanor/location	Allegation lacked specificity as to what Timothy would say	Denied—motion insufficiently specific; no hearing warranted
Failure to call Deonta Marion	Marion’s statement about shooter clothing would undercut identification of Henderson	Even if called, Marion’s testimony would be isolated and not overcome overwhelming evidence tying Henderson to the crime	Denied—no reasonable probability of different outcome
Failure to call Jermaine Westbrook	Westbrook’s 911 call would show shooter left by SUV, not on foot	Report shows Westbrook described one shooter in a brown Carhartt matching Henderson; testimony would not exculpate Henderson	Denied—no specificity and likely not prejudicial
Failure to seek gunshot residue (GSR) testing of others	GSR testing might implicate others or advance alternate theories	Officer testimony: GSR is not definitive (presence can be from proximity); testing victims/others would not exculpate Henderson	Denied—no prejudice shown
Failure to test Jeremy Terrell’s DNA	Terrell’s DNA might match mixture on gun and exculpate Henderson or point to others	DNA analyst testified the mixture was inconclusive; testing likely would not identify contributors	Denied—no reasonable probability of different result
Response to gang-affiliation evidence	Counsel should have sought curative measures/objected to photographs as prejudicial	Reference to Levering as an "infamous gang member" was isolated; photos were not evidence of gang affiliation	Denied—no prejudice; issue rejected on direct appeal/would not change result
Challenges related to cell-phone text messages (authentication, limiting instruction, timing, briefing)	Counsel/appellate counsel were ineffective in not objecting/raising limiting instruction or suppression arguments about timing/chain of custody	Texts were authenticated by context/ownership; texts were admitted for effect on Henderson’s state of mind (nonhearsay); record refutes pre-warrant download/timing claims	Denied—no viable Fourth Amendment or hearsay error that would alter outcome
Failure to object/respond to specific trial testimony or errors (Narvaez, Petrihos cross, coat photos, witness tampering, lesser-included instructions)	Various claims that counsel misstated testimony, failed to investigate or object, or failed to request instructions	Many issues were addressed on direct appeal or lacked specificity/prejudice; some alleged slips were tactical or immaterial and jury was instructed on lawyer statements	Denied—record refutes or shows no prejudice; no evidentiary hearing required

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice test for ineffective assistance of counsel)
State v. Haynes, 299 Neb. 249 (postconviction specificity and hearing standards)
State v. Newman, 300 Neb. 770 (prejudice analysis when omitted witness testimony would be isolated)
State v. Henderson, 289 Neb. 271 (direct-appeal opinion affirming convictions)
State v. Tompkins, 272 Neb. 547 (appellate consideration of good-faith exception issues)
State v. Schwaderer, 296 Neb. 932 (clarifies Strickland framework)