State v. Robertson
294 Neb. 29
| Neb. | 2016Background
- Robertson was convicted by jury of discharging a firearm at an inhabited building and use of a weapon to commit a felony and sentenced to 25–60 years.
- On direct appeal the Nebraska Court of Appeals affirmed convictions but resolved some issues (e.g., failure to give a defense-of-others instruction) and declined review of others as procedurally barred or unreviewable on direct appeal.
- Robertson filed a verified postconviction motion alleging ineffective assistance of appellate and trial counsel: (1) appellate counsel failed to show prejudice from omission of a defense-of-others instruction; (2) appellate counsel failed to raise that trial counsel was ineffective for not timely appealing denial of a motion for absolute discharge (speedy trial claim); and (3) appellate counsel failed to petition for further review after the Court of Appeals declined to address an ineffective-trial-counsel claim concerning juror misconduct (failure to move for mistrial).
- The district court requested a State response, then denied postconviction relief without an evidentiary hearing and denied Robertson’s postjudgment motion to alter or amend.
- Robertson appealed, arguing (inter alia) the postconviction motion warranted an evidentiary hearing, the court erred by denying leave to amend after ruling, and the court should have appointed counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to demonstrate prejudice from omission of a defense-of-others instruction | Robertson: appellate counsel should have persuaded Court of Appeals that omission was prejudicial | State: record shows jury rejected self-defense, so omission of defense-of-others could not have changed outcome | Court: Files/records show the Court of Appeals correctly resolved the legal issue; no prejudice could be shown, so claim fails |
| Whether layered ineffective-assistance claim (trial counsel failed to appeal denial of motion for absolute discharge) merits relief | Robertson: appellate counsel was ineffective for not raising trial counsel’s failure to timely appeal denial of discharge (speedy trial violation) | State: speedy-trial calculation excludes periods for pretrial motions and an authorized continuance; records show good cause and excluded time, so no violation | Court: Records affirmatively disprove violation; claim fails |
| Whether Robertson was entitled to a hearing on trial counsel’s failure to move for mistrial after juror misconduct | Robertson: appellate counsel should have petitioned for further review after Court of Appeals declined to address the claim on direct appeal | State: discretionary review to the state high court is not a constitutional right; failure to petition does not warrant postconviction relief | Court: Right to counsel does not extend to discretionary petitions; claim insufficient for hearing and not raised in the postconviction motion as trial-counsel ineffective |
| Whether district court erred by denying leave to amend postconviction motion after ruling and by not appointing counsel | Robertson: court procedure (asking State response) misled him; he later sought leave to amend and counsel | State: court may solicit a response; postconviction statutes set pleading limits; motion to amend after final order is not contemplated; appointment unnecessary if no justiciable issues | Court: Procedure was proper; civil pleading rules do not govern postconviction motions; amendment after final order is not required and would undermine finality; no justiciable issues so appointment of counsel not required |
Key Cases Cited
- State v. Cook, 290 Neb. 381 (establishing standard that postconviction movant must show constitutional violation and court may deny without hearing where files/records show no relief)
- State v. Armendariz, 289 Neb. 896 (failure to appoint postconviction counsel is not error absent abuse of discretion)
- State v. Williams, 277 Neb. 133 (speedy trial computation rules and start date for felony information)
- State v. Banks, 289 Neb. 600 (an order denying evidentiary hearing on postconviction motion is final and appealable)
- State v. Mata, 280 Neb. 849 (discussed in context of leave to amend postconviction motions; Court here clarifies civil pleading rules do not govern postconviction proceedings)