State v. Stricklin, 300 Neb. 794

Background

Derrick U. Stricklin and co-defendant Terrell Newman were tried together for the 2010 shooting deaths of Carlos Morales and Bernardo Noriega; the State’s case relied principally on eyewitness Jose Herrera‑Gutierrez and cell‑phone records linking defendants to the scene.
A jury convicted Stricklin of two counts of first‑degree murder and related weapon and attempted manslaughter offenses; this court affirmed on direct appeal.
Stricklin, represented by the same lawyer at trial and on appeal, filed a verified postconviction motion alleging numerous instances of ineffective assistance of counsel and a claim of actual innocence.
The district court denied postconviction relief without an evidentiary hearing; Stricklin appealed.
The Nebraska Supreme Court reviewed the postconviction claims de novo and limited relief: it affirmed denial of most claims but reversed and remanded for an evidentiary hearing on two specific allegations—failure to present an alibi defense and failure to investigate two potential suspects (Jefferson and Moore).

Issues

Issue	Plaintiff's Argument (Stricklin)	Defendant's Argument (State)	Held
Motion to amend postconviction motion	Asked leave to amend after counsel appointment to add claims/facts	Request was conditional and not a present amendment request	Denial not an abuse of discretion; properly denied as request was a placeholder
Failure to move for recusal of trial judge	Counsel knew of alleged “favoritism” and should have sought recusal	Allegations were conclusory; record shows admonition to jury and no basis for recusal	No hearing required; allegations insufficient to overcome presumption of judicial impartiality
Objections to jury instructions (Nos. 6, 11, 12, 20)	Counsel should have objected/requested limiting language	Issues were either raised on direct appeal and rejected or meritless	No ineffective assistance; claims denied without hearing
Failure to file notice/present alibi defense	Stricklin had specific alibi facts, witnesses, and cell‑phone calls placing him elsewhere	Trial strategy decisions deferential; alleged alibi was not affirmatively negated by motion	Court found allegations sufficient to warrant evidentiary hearing on ineffective assistance regarding alibi
Prosecutorial misconduct / mistrial (closing argument)	Counsel should have moved for mistrial when prosecutor commented about phone being turned off	Prosecutor’s remark responded to defense argument and did not express impermissible opinion on guilt/credibility	No misconduct; counsel not deficient for failing to move for mistrial
Failure to investigate / develop witnesses and alternatives (including crime‑scene investigator)	Counsel failed to depose/subpoena witnesses and investigate other suspects; would have changed outcome	Many allegations were speculative, cumulative, or unsupported by what such witnesses would have said	Mixed: most investigation claims denied for lack of specificity, but failure to investigate info concerning Jefferson and Moore warrants an evidentiary hearing
Failure to contact confidential informant / motion in limine	Counsel failed to contact informant and could have rehabilitated hearsay for admissibility	Underlying hearsay issues (two layers; not against penal interest) remain; contacting informant would not change admissibility	Files and records show counsel was not ineffective; claim denied without hearing
Advice not to testify	Counsel told Stricklin not to testify due to risk of cross‑examination about prior crimes; Stricklin says advice was unreasonable	At trial law about scope of questioning under §§27‑608/609 was unsettled; advice was reasonable tactical judgment	Advice not deficient given contemporaneous uncertainty in law; claim denied without hearing
Actual innocence claim	Asserts ineffective assistance claims and weight‑of‑evidence errors establish actual innocence	Threshold for actual innocence is high; allegations largely attack witness credibility and weight	Denied: allegations do not meet extraordinarily high threshold for an actual‑innocence hearing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficiency and prejudice test for ineffective assistance of counsel)
State v. Stricklin, 290 Neb. 542 (2015) (direct‑appeal opinion reciting facts, admissibility of cell‑phone evidence, and related holdings)
State v. Newman, 290 Neb. 572 (2015) (companion/precedent addressing instruction challenges, cell‑phone evidence, and related claims)
State v. Vela, 297 Neb. 227 (2017) (standards for postconviction relief and evidentiary hearings)
State v. Thorpe, 290 Neb. 149 (2015) (procedural standards for postconviction motions)
State v. McKinney, 279 Neb. 297 (2010) (same‑counsel rule for raising ineffective‑assistance claims in postconviction)