State v. Sellers
858 N.W.2d 577
| Neb. | 2015Background
- Terry J. Sellers was convicted by a jury of two counts of first-degree murder, one count of attempted first-degree murder, and related weapon counts; sentences included life terms and long terms of years.
- Sellers pursued a direct appeal with different counsel; this court affirmed his convictions (State v. Sellers).
- In April 2011 Sellers filed a pro se motion for postconviction relief alleging numerous instances of ineffective assistance of trial and appellate counsel (failure to investigate, Miranda and speedy-trial issues, failure to object to instructions, failure to challenge jury composition/Batson, failure to object to jury separation, and actual innocence).
- The district court denied the motion without an evidentiary hearing, concluding the allegations were conclusory and did not plead specific facts showing prejudice.
- Sellers appealed; the Supreme Court reviewed de novo whether the motion alleged sufficient facts to warrant relief or an evidentiary hearing and affirmed the denial.
Issues
| Issue | Plaintiff's Argument (Sellers) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Jury separation without consent | Trial counsel failed to object and failed to tell Sellers his consent was required; appellate counsel was ineffective for not raising it on direct appeal | Any statutory presumption of prejudice is distinct from Strickland prejudice; Sellers failed to plead facts showing the State could not rebut the presumption | Denied — presumption under §29-2022 is distinct from Strickland; Sellers failed to allege facts showing he would have prevailed on appeal, so no relief or hearing required |
| Failure to conduct reasonable pretrial investigation | Counsel did not pursue discovery, hire investigators, consult experts, or interview witnesses; appellate counsel ineffective for not raising it | Allegations are speculative and conclusory; no specific exculpatory evidence or witnesses identified to show prejudice | Denied — conclusory/speculative allegations insufficient to show prejudice under Strickland |
| Failure to object to jury instructions Nos. 22 and 24 | Instructions were erroneous or created improper presumptions; appellate counsel ineffective for not raising trial counsel’s failure to object | Instruction No. 22 merely labeled Matheny a "claimed accomplice" and was not prejudicial; Instruction No. 24 was a limiting credibility instruction and did not prevent defense presentation; appellate counsel in fact raised these on direct appeal | Denied — no prejudice shown; Instruction No. 22 not improper; Instruction No. 24 did not foreclose defense; claim fails |
| Failure to request premeditated murder theory instruction | Trial counsel failed to request and appellate counsel ineffective for not raising it | Claim was not presented to the district court as ineffective-assistance claim; procedurally barred in postconviction review | Not considered — assignment not presented below; court declines review |
Key Cases Cited
- State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (affirming convictions; direct-appeal decision relied upon) (discussing challenged instructions and record sufficiency)
- State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980) (held that absent defendant consent, statutory jury-sequestration violation created rebuttable presumption of prejudice)
- State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011) (overruled Robbins prospectively regarding consent waiver)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Kitt v. Clarke, 931 F.2d 1246 (8th Cir. 1991) (distinguishing statutory sequestration prejudice from Strickland prejudice in habeas/ineffective-assistance context)