State v. Munoz, 309 Neb. 285

Background

Munoz was convicted by jury of first degree murder and use of a deadly weapon; sentenced to life plus 20–40 years. His convictions were affirmed on direct appeal.
Munoz filed a pro se postconviction motion alleging layered ineffective-assistance claims against trial and appellate counsel: failure to investigate/depose witnesses (Manuel Trevino, Jolene Condon) and pursue an alibi; failure to suppress unspecified statements; failure to call expert witnesses (blood-spatter and mental-stability); and failure to file/preserve a motion in limine.
The district court denied the motion without an evidentiary hearing, finding claims were procedurally barred or amounted to conclusory allegations lacking the required specificity about what the missing witnesses or experts would have testified to.
The court emphasized that when trial counsel differs from counsel on direct appeal, issues known or apparent from the record must be raised on direct appeal or are procedurally barred in postconviction proceedings.
The court also found key proposed testimony (e.g., Trevino’s account of conversations about Munoz’s travel) would likely be hearsay and thus inadmissible; counsel is not ineffective for failing to pursue inadmissible evidence.
The Nebraska Supreme Court affirmed, applying Strickland and Nebraska precedent: the motion contained only conclusory assertions or facts that, even if true, would not demonstrate constitutional infirmity warranting an evidentiary hearing.

Issues

Issue	Plaintiff's Argument (Munoz)	Defendant's Argument (State)	Held
1) Were trial-counsel errors properly preserved or procedurally barred?	Munoz: trial counsel was ineffective (e.g., failing to object to jury instructions, pursue alibi); appellate counsel was ineffective for not raising these on appeal.	State: Many claims were known or apparent from the record and Munoz had different counsel on direct appeal, so claims vs. trial counsel are procedurally barred; others lack specificity.	Held: Claims directly against trial counsel are procedurally barred; broad alibi assertion is conclusory and fails specificity requirement.
2) Did failure to depose/interview Trevino and Condon and present an alibi warrant a hearing?	Munoz: Trevino and Condon had testimony establishing his whereabouts and an alibi; trial/appellate counsel were ineffective for not using them.	State: Munoz failed to allege the specific testimony; alleged facts, if true, would not be exculpatory (timing) and some claimed testimony would be hearsay.	Held: Denied — allegations were conclusory or insufficiently specific; potential testimony would be inadmissible hearsay and would not show prejudice.
3) Did counsel err in failing to suppress Munoz’s statements?	Munoz: unspecified statements should have been suppressed; appellate counsel ineffective for not raising it.	State: Motion did not identify what statements or grounds for suppression; no facts pled to support a constitutional violation.	Held: Denied — claims were vague, unparticularized, and did not merit an evidentiary hearing.
4) Was counsel ineffective for failing to call expert witnesses (blood-spatter, mental stability) or to pursue a motion in limine?	Munoz: experts would have rebutted State’s blood-spatter timing and established mental instability; motion in limine would have excluded prejudicial evidence.	State: Munoz failed to describe what experts would testify to, how it would change the result, or what evidence the motion in limine targeted.	Held: Denied — conclusory assertions; no specific proposed testimony or evidence alleged; arguments raised for first time on appeal (mental-stability claim) are not considered.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard: deficient performance and prejudice)
State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019) (direct-appeal opinion affirming convictions)
State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021) (standards for postconviction review)
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015) (when an evidentiary hearing is required on postconviction motion)
State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005) (procedural bar when different counsel on appeal and trial-based errors were known or apparent)
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009) (specificity required for alibi allegations in postconviction motions)
State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018) (allegations must show how putative testimony would be exculpatory)
State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015) (definitions and limits of hearsay and admissibility)