State v. Thorpe, 290 Neb. 149

Background

Thorpe was convicted by jury of two counts of first-degree murder and two weapon-enhancement counts; direct appeal affirmed convictions but remanded to replace unconstitutional life-without-parole sentences with life sentences.
Thorpe filed an amended pro se postconviction motion raising multiple claims: ineffective assistance of trial and appellate counsel, prosecutorial misconduct, insufficient evidence, and trial-court errors (jury instructions, evidentiary rulings).
Key alleged trial-counsel failures included not obtaining independent forensic experts/testing, failing to investigate/interview and call several witnesses, and not objecting to specific jury instructions.
The State moved to dismiss the postconviction motion; the district court denied relief without an evidentiary hearing, finding many claims procedurally barred or conclusory and that ineffective-assistance allegations failed to show prejudice.
Thorpe appealed; the Nebraska Supreme Court reviewed legal issues de novo and factual findings for clear error under Strickland standards and affirmed the denial of postconviction relief.

Issues

Issue	Thorpe’s Argument	State / District Court’s Argument	Held
Procedural default for claims not raised in postconviction motion	Certain evidentiary/hearsay and jury-instruction claims should be considered on appeal	Appellant failed to present those issues in the district court via his postconviction motion, so they are not preserved	Court refused to consider issues not presented to district court; claims procedurally barred
Jury instruction No. 14 (and counsel’s failure to object)	Instruction No. 14 was erroneous; counsel ineffective for not objecting	Instruction previously upheld on direct appeal; the record shows counsel objected at trial	Court found no merit; counsel objected and instruction was proper per prior decision
Failure to give felony-murder instruction	Trial court erred by omitting felony-murder instruction	Issue could and should have been raised on direct appeal; not reviewable in postconviction	Procedurally barred; claim lacks merit on postconviction review
Ineffective assistance for failing to call/ interview identified witnesses	Uncalled witnesses would have provided testimony creating reasonable doubt (possibility others committed the murders)	Alleged testimony was speculative, hearsay, or not specifically pled; record contains strong direct evidence of Thorpe’s aiding/abetting role	Court held no reasonable probability of different outcome; allegations insufficient to warrant evidentiary hearing
Prosecutorial misconduct / vouching / misleading statements	Prosecutor misstated or vouched for witness credibility during argument	These issues could have been raised on direct appeal and are therefore procedurally barred	Procedurally barred; court declined to consider on postconviction review
District court’s consideration of Thorpe’s later opposition motion	Court failed to consider additional ineffectiveness claims raised in later filing	The later motion raised claims not pleaded in the operative amended postconviction motion	Court properly limited review to claims in operative pleading and did not err

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test)
State v. Thorpe, 280 Neb. 11 (prior direct-appeal decision upholding convictions and remanding for resentencing)
State v. Phelps, 286 Neb. 89 (postconviction evidentiary-hearing standards)
State v. Robinson, 287 Neb. 606 (standard of review for ineffective-assistance mixed questions)
State v. Baker, 286 Neb. 524 (ineffective-assistance right to fair trial framing)
State v. Morgan, 286 Neb. 556 (prejudice requirement under Strickland)
State v. Foster, 286 Neb. 826 (aiding-and-abetting liability)
State v. McGuire, 286 Neb. 494 (aiding and abetting requires participation evidenced by word, act, or deed)
State v. Marks, 286 Neb. 166 (postconviction dismissal where movant fails to specify proposed witness testimony)
State v. Haas, 279 Neb. 812 (preservation rule for issues in postconviction appeals)
State v. Boppre, 280 Neb. 774 (postconviction cannot relitigate issues that were or could have been raised on direct appeal)