State v. Newman, 300 Neb. 770

Background

Terrell E. Newman was convicted by a jury of two counts of first-degree murder and related weapon and manslaughter offenses based principally on eyewitness Jose Herrera‑Gutierrez and cell‑phone location records; sentences were consecutive including life terms.
Newman’s direct appeal (with different appellate counsel) raised multiple claims; the Nebraska Supreme Court affirmed but found the record inadequate to resolve certain ineffective‑assistance‑of‑trial‑counsel claims.
Newman filed a postconviction motion alleging ineffective assistance of appellate counsel for failing to raise numerous trial‑counsel errors on direct appeal, and asserting actual innocence.
The district court denied postconviction relief without an evidentiary hearing. Newman appealed.
The Nebraska Supreme Court reviewed de novo whether the motion alleged sufficient facts to warrant an evidentiary hearing and whether claims were procedurally barred.
The Court affirmed denial of relief in most respects but reversed and remanded for an evidentiary hearing limited to Newman’s claim that trial counsel failed to investigate and present alibi witnesses (Kevin Riley, Janet Mariscal, and two Chubb Foods employees).

Issues

Issue	Plaintiff's Argument (Newman)	Defendant's Argument (State)	Held
Whether postconviction motion warranted evidentiary hearing	Newman: alleged facts showing appellate counsel ineffective and trial counsel failures that, if proved, would show constitutional violations	State: many claims are conclusory, procedurally barred, or refuted by record; no hearing required	Court: grant limited evidentiary hearing only on alleged failure to investigate/present alibi witnesses; all other claims denied without hearing
Ineffective assistance — failure to investigate/present alibi witnesses	Newman: four witnesses would have placed him at other locations "at or near the time" of the shootings, contradicting eyewitness/cell‑tower evidence	State: timing vague; even if investigated, no reasonable probability of different result given strong ID and phone evidence	Court: allegations as to alibi witnesses were sufficiently specific and not resolved by record; remand for an evidentiary hearing on that claim
Ineffective assistance — investigation of other witnesses / crime‑scene investigator / cross‑examination	Newman: counsel failed to interview various witnesses, hire an investigator, or impeach credibly	State: allegations are speculative, conclusory, or refuted by the record; would not have changed outcome	Court: allegations were too speculative or contradicted by record; no hearing warranted on these claims
Actual innocence claim	Newman: cumulative counsel errors and other trial errors establish actual innocence	State: claim fails to meet the extraordinarily high threshold required for newly discovered‑evidence/actual‑innocence relief	Court: threshold not met; no hearing on actual innocence claim

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test: deficient performance and prejudice)
State v. Stricklin, 290 Neb. 542 (2015) (direct‑appeal opinion addressing identification and related evidentiary issues)
State v. Dubray, 294 Neb. 937 (2016) (discussing actual innocence threshold in postconviction proceedings)
State v. Vela, 297 Neb. 227 (2017) (standards for postconviction pleading and evidentiary hearing entitlement)
State v. Nolan, 292 Neb. 118 (2015) (remand for evidentiary hearing where record insufficient to resolve ineffective‑assistance claim)