State v. Henderson, 301 Neb. 633

Background

Henderson was convicted of first-degree murder, attempted first-degree murder, related firearms offenses; convictions affirmed on direct appeal (State v. Henderson, 289 Neb. 271).
At the scene, witnesses identified Henderson; he was arrested running from the scene with one gun on his person and seen throwing another; forensic and DNA evidence linked the guns and victim’s blood to Henderson.
After direct appeal and denial of certiorari, Henderson filed a postconviction motion alleging multiple instances of ineffective assistance of trial and appellate counsel; the district court denied relief without an evidentiary hearing.
On appeal from denial, Nebraska Supreme Court reviewed de novo whether Henderson’s allegations were sufficiently specific to warrant an evidentiary hearing under the Nebraska Postconviction Act and Strickland v. Washington.
The court analyzed discrete claims (failure to call witnesses, failure to seek DNA/GSR testing, handling of cellphone/text-evidence, gang-related evidence, and other trial tactics) and found either insufficient specificity, a lack of prejudice, or record refutation for each claim.

Issues

Issue	Henderson’s Argument	State’s/Defendant’s Argument	Held
Failure to call Timothy Washington, Deonta Marion, Jermaine Westbrook	Counsel was ineffective for not calling these witnesses whose testimony would impeach ID/demeanor or show shooters’ clothing/flight	Motions lacked specificity about proposed testimony; even if credited, omitted testimony would be isolated and not alter outcome given overwhelming evidence	Denied — no evidentiary hearing; claims speculative or would be trivial against record evidence
Failure to seek gunshot residue or further DNA testing (e.g., Jeremy Terrell)	Tests might implicate others or exculpate Henderson	GSR evidence would be inconclusive (residue can result from proximity); DNA mixtures rendered comparisons inconclusive and record shows no reasonable probability of different outcome	Denied — no prejudice shown; hearing not required
Challenges to cellphone/text evidence (authentication, suppression, limiting instruction, timing)	Counsel deficient in failing to object to/authenticate, seek limiting instruction, or challenge timing/download before warrant; appellate counsel ineffective in not raising good faith issue per Tompkins	Authentication standard low; texts were admitted for their effect on Henderson’s state of mind (nonhearsay); record refutes pre-warrant download and shows counsel litigated suppression; Tompkins does not bar State argument on appeal here	Denied — subjects either refuted by record or would not change outcome
Gang-related evidence & other trial tactics (reference to Levering, photos, Narvaez testimony, failure to request lesser-included instruction, misc. trial errors)	Counsel failed to limit/strike gang reference, object to photos, object timely to Narvaez, request other instructions, or follow up on alleged witness tampering/misstatements	Gang reference was isolated; photos and Narvaez testimony were not unfairly prejudicial per direct appeal; many claims were previously litigated or lacked specific factual allegations of prejudice	Denied — no ineffective assistance established; many issues either litigated on direct appeal or lacked specificity/prejudice

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice test for ineffective assistance of counsel)
State v. Henderson, 289 Neb. 271 (direct appeal affirming convictions; recited trial evidence and addressed many evidentiary points)
State v. Haynes, 299 Neb. 249 (postconviction pleading specificity and hearing standard)
State v. Newman, 300 Neb. 770 (analysis of prejudice for omitted witness testimony)
State v. Tompkins, 272 Neb. 547 (issue whether appellate court may consider good-faith exception sua sponte)
State v. Torres, 300 Neb. 694 (standard of review in postconviction appeals)