State v. McGuire, 299 Neb. 762

Background

McGuire was convicted by a jury of second degree murder (aiding and abetting), use of a deadly weapon to commit a felony, and conspiracy related to a cocaine transaction that ended with Sanchez’s shooting; he is serving 105–125 years.
Surveillance showed McGuire at an auto shop where a drug sale and robbery occurred; accomplice Nave entered with a gun, shot Sanchez, and fled; McGuire fled in a Sebring and was arrested after a crash.
Evidence included a 9-mm Smith & Wesson found in the Sebring, 9-mm casings at the scene and a matching bullet from Sanchez’s body, 9-mm ammunition found in a Nissan registered to McGuire’s girlfriend, and cash/keys on McGuire.
On direct appeal McGuire had new counsel; this court found the trial court’s murder instruction erroneously omitted “not upon a sudden quarrel” but held the error harmless because no evidence supported sudden quarrel, and affirmed convictions.
McGuire filed a postconviction motion alleging ineffective assistance of trial counsel (multiple specific failures), ineffective appellate counsel for not raising those trial counsel claims, and ineffective postconviction counsel; an evidentiary hearing was held and the district court denied relief.

Issues

Issue	McGuire's Argument	State's Argument	Held
Whether trial counsel was ineffective for failing to elicit testimony showing a sudden quarrel	Trial counsel failed to cross-examine Ayala‑Martinez to show Nave first pointed at Ayala‑Martinez then at Sanchez (evidence of sudden quarrel/ manslaughter)	Claims of trial-counsel ineffectiveness were not raised on direct appeal and are procedurally barred; strategic choice by trial counsel was reasonable	Trial counsel’s choice not to pursue sudden‑quarrel evidence was a reasonable strategy; not deficient; appellate counsel not ineffective for not raising it
Whether other trial-counsel errors (right to testify, witness investigation, GSR, discovery) warrant relief	Trial counsel failed to advise re: testimony, failed to investigate/depose/call witnesses, and failed to test for gunshot residue or object to ammunition evidence	Many of these claims were known or apparent on the record and thus procedurally barred because not raised on direct appeal	Under procedural‑bar rules, most trial‑counsel claims are barred; district court did not err in denying them
Whether trial counsel should have objected to admission of 9‑mm ammunition found in Nissan	Ammunition was prejudicial and should have been excluded under Neb. Evid. R. 403	Ammunition was highly probative (matched scene casings/bullet and tied to vehicle associated with McGuire); objection would have been overruled	Evidence was probative and not unfairly prejudicial; trial counsel’s decision not to object was reasonable; no remand for additional findings needed
Whether postconviction counsel was ineffective at the evidentiary hearing	Postconviction counsel failed to present adequate evidence, depriving McGuire of due process	There is no constitutional right to effective counsel in postconviction proceedings; the statutory competence provision applies only to appointed counsel and, regardless, the underlying claims lack merit so no prejudice	No reversible error: statutory competence provision did not apply to privately retained counsel, and McGuire suffered no prejudice from counsel’s performance

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
State v. McGuire, 286 Neb. 494 (Neb. 2013) (direct appeal opinion addressing murder instruction and harmlessness)
State v. Dubray, 294 Neb. 937 (Neb. 2016) (issues of appellate counsel and requirement to raise trial‑counsel claims on direct appeal when different counsel)
State v. Williams, 295 Neb. 575 (Neb. 2017) (deference to trial counsel strategic decisions)