State v. Victor, S-91-933

Decision Date29 January 1993
Docket NumberNo. S-91-933,S-91-933
Citation494 N.W.2d 565,242 Neb. 306
PartiesSTATE of Nebraska, Appellee, v. Clarence VICTOR, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Postconviction: Appeal and Error. In an appeal from a denial of a motion for postconviction relief, the lower court's findings will be upheld unless clearly erroneous.

2. Postconviction. An evidentiary hearing on a motion for postconviction relief may properly be denied when the records and files of the case affirmatively establish that the defendant is not entitled to relief.

3. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal. It is not the purpose of affording postconviction relief to permit the defendant endless appeals on matters already decided.

4. Postconviction: Appeal and Error. In the absence of a factual allegation, an initial demonstration of an extraordinary and relevant novel argument, or a reference to binding precedent not appearing in the record on direct appeal, errors of a state appellate court that are assigned for review before a state trial court in a motion for postconviction relief are without merit.

5. Effectiveness of Counsel: Proof: Appeal and Error. A defendant who asserts a claim of ineffective assistance of counsel and who seeks reversal of his convictions must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

6. Appeal and Error. Absent plain error, where an issue is raised for the first time in this court, it will be disregarded inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition.

7. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of counsel has not been raised or ruled on by the trial court and necessitates an evidentiary hearing, the matter will not be addressed on appeal.

8. Postconviction: Right to Counsel: Appeal and Error. Under Neb.Rev.Stat. § 29-3004 (Cum.Supp.1992), a district court may appoint an attorney to represent a prisoner in all postconviction proceedings under Neb.Rev.Stat. §§ 29-3001 through 29-3004 (Reissue 1989 & Cum.Supp.1992). This power is within the discretion of the district court, and failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion.

9. Constitutional Law: Postconviction: Right to Counsel: Death Penalty. Neither the Eighth Amendment nor the Due Process Clause of the federal Constitution requires states to appoint counsel for indigent death row inmates seeking state postconviction relief.

10. Postconviction: Right to Counsel. Where the record shows that a justiciable issue of law or fact is presented to the court in a postconviction action, an indigent defendant is entitled to the appointment of counsel.

J. Joseph McQuillan and Mark A. Weber, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

The defendant, Clarence Victor, appeals a decision of the district court for Douglas County to deny his pro se request for postconviction relief under Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Cum.Supp.1992).

Victor was convicted of first degree murder and use of a weapon to commit a felony in the 1987 death of 82-year-old Alice Singleton. Victor was sentenced to death for the murder offense and given a consecutive sentence of 20 years for the felony weapon offense. The convictions were upheld on direct appeal. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990) (Victor I ). The U.S. Supreme Court denied Victor's application for a writ of certiorari, Victor v. Nebraska, 498 U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1195 (1991), and Victor sought state postconviction relief from the district court. Victor was represented at both the trial and the appellate level by the same attorney, but was denied court-appointed counsel on his motion for postconviction relief.

Defendant sought relief from the district court based on alleged violations of the 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution and alleged violations of article I, §§ 3, 9, and 13, of the Nebraska Constitution. These claims summarily contended that (1) the trial court improperly instructed the jury on the law regarding the concept of "reasonable doubt"; (2) the reweighing process for aggravating and mitigating circumstances engaged in by the Nebraska Supreme Court was unconstitutional; (3) the death penalty was improperly imposed because the aggravating circumstance in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) is vague and results in an arbitrary imposition of capital punishment; (4) the sentencing panel and the Nebraska Supreme Court erroneously refused to consider defendant's inability to conform his conduct to law because of mental defect or intoxication as required by § 29-2523(2)(g); (5) neither the sentencing panel nor the Nebraska Supreme Court compared the facts of defendant's case with other "criminal homicides" of same or similar circumstances to determine the proportionality of defendant's sentences with the results of similar cases; (6) at the sentencing hearing, the sentencing panel erroneously admitted defendant's confession to a 1964 homicide because the confession did not conform to Miranda requirements; (7) defendant's confession to the present homicide was not voluntary, was a product of an unlawful arrest, and was obtained without a valid waiver of his Miranda rights; and (8) trial and appellate counsel was ineffective in failing to raise or in improperly raising each of the aforementioned issues.

On September 17, 1991, the district court denied defendant's motion for an evidentiary hearing and simultaneously entered an order overruling the motions for postconviction relief and vacation of sentences. After obtaining court-appointed counsel, defendant perfected this appeal. He now asserts that the district court erred in (1) refusing to grant an evidentiary hearing; (2) failing to appoint counsel to represent defendant for his motion to vacate sentences and convictions; (3) finding that defendant was not denied effective assistance of counsel; and (4) failing to retroactively apply Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), with regard to the reasonable doubt jury instruction. On this appeal, defendant also argues, for the first time, the failure of previous counsel to disclose a conflict of interest in representing defendant and in failing to submit evidence in support of the pretrial motion for change of venue.

In an appeal from a denial of a motion for postconviction relief, the lower court's findings will be upheld unless clearly erroneous. State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992).

Victor first argues that he was entitled to an evidentiary hearing under § 29-3001 on the additional allegations raised in his motion to vacate sentences filed before the district court.

"An evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution." Sanders, 241 Neb. at 689, 490 N.W.2d at 214. See, also, State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988); State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985).

Conversely, an evidentiary hearing on a motion for postconviction relief may properly be denied when the records and files of the case affirmatively establish that the defendant is not entitled to relief. State v. Maeder, 240 Neb. 955, 486 N.W.2d 193 (1992); State v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991).

The bulk of assigned errors raised in defendant's motion for relief before the district court were previously raised on direct appeal and finally determined by this court in Victor I. The record discloses that trial and appellate counsel did raise and argue the legality of Victor's confession, the constitutionality of § 29-2523(1)(d), the receipt into evidence of the 1964 manslaughter confession at the sentencing hearing, the determination that the aggravating circumstance found in § 29-2523(1)(d) existed and the mitigating circumstance found in § 29-2523(2)(g) did not exist, and the contention that the sentences were disproportionate and excessive.

We have repeatedly held that a motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal. It is not the purpose of affording postconviction relief to permit the defendant endless appeals on matters already decided. See, State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991); State v. El-Tabech, 234 Neb. 831, 453 N.W.2d 91 (1990). Defendant's only attempt to avoid the procedural bar of the previously raised issues is by asserting that he was denied effective assistance of counsel because trial and appellate counsel improperly raised these issues. However, defendant failed to advance, either in the motion before the district court or in the present appeal to this court, allegations of specific facts to support these bare conclusions. Since defendant failed to make a factual showing to indicate he was entitled to relief, the district court did not err in denying defendant an evidentiary hearing on these previously litigated issues.

Relying on the U.S. Supreme Court's decision in Cage v. Louisiana, ...

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  • Victor v. Nebraska
    • United States
    • U.S. Supreme Court
    • May 16, 1994
    ... ... ," its use in conjunction with the abiding conviction language must be viewed as having impressed upon the jury the need to reach the subjective state of near certitude of guilt, see Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560, and thus as not having invited ... ...
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    ...the normal procedural rules merely because of the provisions for automatic review of such cases on direct appeal. In State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993), aff'd, ___ U.S. ___, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) a death row defendant attempted to raise a number of claims ......
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