State v. Henk, 299 Neb. 586

Background

In 2003, Ivan K. Henk confessed to killing his son and pled guilty to first‑degree murder in exchange for the State not seeking the death penalty; he was sentenced to life without parole.
In 2009 Henk filed a pro se postconviction motion alleging that crime‑scene investigator David Kofoed planted blood evidence from a dumpster and falsified reports, and that this evidence influenced his decision to plead guilty.
The district court denied relief without an evidentiary hearing as procedurally barred; this Court reversed, holding Henk alleged facts warranting an evidentiary hearing on whether a constitutional violation occurred and whether Henk was prejudiced.
On remand Henk sought leave to amend to add claims for prosecutorial misconduct and ineffective assistance of trial counsel; the district court allowed amendment and held an evidentiary hearing on all claims.
The district court denied postconviction relief on all claims, applying a ‘‘but‑for’’ prejudice test (would Henk have rejected the plea but for the fabricated evidence?). Henk appealed; the State cross‑appealed the allowance to amend.

Issues

Issue	Henk's Argument	State's Argument	Held
Whether the district court exceeded the appellate mandate by allowing amendment and hearing additional claims	Henk argued the remand authorized a hearing to determine constitutional violation and prejudice and thus permitted consideration of related claims	State argued mandate limited district court to the single issue this Court remanded (fabricated evidence claim) and the court lacked jurisdiction to hear new claims	Court held the mandate was limited; granting leave to amend and hearing the prosecutorial and ineffective‑assistance claims exceeded the remand and those parts of the order were vacated
Whether the prosecutorial‑misconduct claim was within the remand	Henk contended the hearing could address whether the prosecution disregarded or concealed fabrications	State argued Henk had abandoned that claim on the first appeal, so it was not part of the mandate	Court held prosecutorial‑misconduct claim was outside the mandate and thus the hearing on it was beyond the remand
Whether ineffective assistance of counsel claim could be heard on remand / leave to amend	Henk sought to add an IAC claim that counsel failed to challenge the dumpster/DNA evidence and thus led to an involuntary plea	State argued adding new claims on remand was improper and that Henk was judicially estopped from reasserting claims he abandoned	Court vacated leave to amend; also noted Henk is judicially estopped from reasserting a previously abandoned claim and did not resolve procedural‑bar issues for IAC
Whether Henk proved prejudice from fabricated evidence (but‑for test) on the permitted claim	Henk argued he would not have pled but for the planted evidence; the fabricated evidence tainted the process	State argued the record showed other reasons Henk pled (desire to avoid publicity, his admissions) and he could not prove but‑for prejudice	Court held Henk failed to prove but‑for prejudice; evidence showed he would have accepted the plea regardless, so postconviction relief was denied on the merits

Key Cases Cited

State v. Lee, 290 Neb. 601 (applying but‑for prejudice test to guilty‑plea postconviction IAC claims)
State v. Payne, 298 Neb. 373 (mandate and remand principles; lower court must follow appellate mandate)
Pennfield Oil Co. v. Winstrom, 276 Neb. 123 (issues waived on appeal are not part of mandate)
County of Sarpy v. City of Gretna, 276 Neb. 520 (mandate/opinion interplay; lower court should consult appellate opinion when executing mandate)
State v. Kofoed, 283 Neb. 767 (criminal proceedings against the investigator whose misconduct is at issue)