State v. Henderson
| Decision Date | 30 November 2018 |
| Docket Number | No. S-17-535.,S-17-535. |
| Citation | 920 N.W.2d 246,301 Neb. 633 |
| Parties | STATE of Nebraska, Appellee, v. Tillman T. HENDERSON, Appellant. |
| Court | Nebraska Supreme Court |
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Papik, J.Tillman T. Henderson was convicted of first degree murder, attempted first degree murder, and related firearms offenses. We affirmed his convictions on direct appeal. See State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014). Henderson now appeals the order of the district court for Douglas County that denied his motion for postconviction relief without an evidentiary hearing. He alleges various claims of ineffective assistance of trial and appellate counsel. Finding that the district court did not err by denying Henderson’s postconviction claims without an evidentiary hearing, we affirm.
A detailed recitation of the evidence at trial can be found in our opinion on direct appeal. See State v. Henderson, supra.
In summary, Henderson was charged in connection with the shooting death of Matthew Voss and the nonfatal shooting of Antonio Washington. Evidence at Henderson’s jury trial showed that in the early morning hours of February 18, 2012, Voss and Antonio Washington both sustained gunshot wounds
after a fight broke out at an after-hours party in downtown Omaha, Nebraska. Witnesses reported seeing two men firing guns. After a person at the scene identified Henderson to a police officer as one of the shooters, police apprehended Henderson as he was running from the scene of the incident. Henderson was in possession of one gun when he was arrested, and a police officer saw him throw another gun under a vehicle as the officer was chasing him. Forensic evidence presented at trial tied bullets and casings found at the scene of the shootings to those guns. DNA testing indicated that blood found on clothing worn by Henderson had come from Voss.
The jury found Henderson guilty of first degree murder, attempted first degree murder, two counts of use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person.
Represented by the same counsel that represented him at trial, Henderson appealed his convictions. See State v. Henderson, supra. He made numerous assignments of error pertaining to pretrial and trial rulings. This court affirmed Henderson’s convictions and sentences. The U.S. Supreme Court denied Henderson’s petition for certiorari. See Henderson v. Nebraska, ––– U.S. ––––, 135 S.Ct. 2845, 192 L.Ed.2d 881 (2015).
Following direct appeal, Henderson filed an application for postconviction relief. He alleged various instances of ineffective assistance of trial and appellate counsel. In response, the State filed a motion to dismiss. The district court denied postconviction relief without an evidentiary hearing. It determined that Henderson had failed to show either that he had received deficient representation or that he had suffered prejudice. Henderson now appeals that order.
Henderson assigns, rephrased and summarized, that the district court erred in denying him an evidentiary hearing on his application for postconviction relief, which alleged various instances of ineffective assistance of counsel at trial and on appeal.
In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
Before turning to Henderson’s specific arguments on appeal, we review the general principles governing postconviction actions asserting claims of ineffective assistance of counsel. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018). On appeal from the denial of postconviction relief without an evidentiary hearing, the question is not whether the movant was entitled to relief by having made the requisite showing. Instead, it must be determined whether the allegations were sufficient to grant an evidentiary hearing. Id.
The allegations in a motion for postconviction relief must be sufficiently specific for the district court to make a preliminary determination as to whether an evidentiary hearing is justified. Id. In a proceeding under the Nebraska Postconviction Act, the application is required to allege facts which, if proved, constitute a violation or infringement of constitutional rights, and the pleading of mere conclusions of fact or of law is not sufficient to require the court to grant an evidentiary hearing. Id. An evidentiary hearing must be granted when the facts alleged, if proved, would justify relief, or when a factual dispute arises as to whether a constitutional right is being denied. Id.
Here, Henderson bases his claim to postconviction relief on ineffective assistance of trial and appellate counsel. When, as here, a defendant was represented both at trial and on direct appeal by the same counsel, the defendant’s first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). A court may address the two prongs of this test, deficient performance and prejudice, in either order. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden first to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Haynes, supra. In determining whether trial counsel’s performance was deficient, courts give counsel’s acts a strong presumption of reasonableness. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). An appellate court will not judge an ineffectiveness of counsel claim in hindsight. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). We must assess trial counsel’s performance from counsel’s perspective when counsel provided the assistance. Id. When reviewing claims of ineffective assistance, we will not second-guess trial counsel’s reasonable strategic decisions. Id.
Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. State v. Haynes, supra. To establish the prejudice prong of a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. See State v. Schwaderer, supra. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
With these principles in mind, we turn to Henderson’s arguments.
In his motion for postconviction relief, Henderson asserted that trial counsel was ineffective in failing to interview, depose, and call three additional witnesses to testify. He now contends that the district court erred in denying him an evidentiary hearing concerning these claims. For reasons explained below, we disagree.
First, Henderson claims his trial counsel should have called Timothy Washington. Henderson argues that had Timothy Washington been called to testify, he would have rebutted the testimony of a witness called by the State, Vasili Petrihos. At trial, Petrihos testified that a young black man, who was later apprehended and identified as Henderson, was "tensed up and all hyped up," "huffing and puffing," and "getting aggravated" and appeared "ready to fight" near the shooting site immediately prior to the shooting.
In his motion for postconviction relief, however, Henderson did not reference Petrihos or his testimony. Henderson asserted only that Timothy Washington was willing to testify about Henderson’s "demeanor and the direction ... Henderson had been headed ... minutes before the shooting" and that such testimony could have impeached the testimony of other unspecified witnesses as to Henderson’s whereabouts, demeanor, and actions in the minutes before the shooting. The motion did not explain what Timothy Washington would have testified regarding Henderson’s location, demeanor, or direction.
The lack of explanation as to what Timothy Washington would have testified is relevant because in a motion for postconviction relief, a defendant is required to specifically allege what the testimony of potential witnesses would have been if they had been called. See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). Absent specific allegations, a motion for postconviction relief is subject to dismissal without an evidentiary hearing. See id. Because Henderson’s motion did not describe Timothy Washington’s alleged testimonywith sufficient specificity, an evidentiary hearing was not warranted.
Next, Henderson asserts that he is entitled to postconviction...
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