State v. DeJong

Summary

The Nebraska Supreme Court affirmed the denial, without an evidentiary hearing, of Susan M. DeJong’s pro se motion for postconviction relief following her convictions for first degree murder and use of a deadly weapon to commit a felony. The opinion addresses ineffective assistance of counsel, procedural bars on claims that could have been raised on direct appeal, and the requirements for alleging actual innocence and obtaining an evidentiary hearing.

Holdings

1. A postconviction movant is not entitled to an evidentiary hearing on ineffective-assistance claims based on further investigation or questioning when the allegations are speculative and do not identify facts that further investigation would have uncovered or explain how the alleged deficiencies would probably have changed the result.
2. The postconviction claim failed because the record and files affirmatively showed that DeJong was entitled to no relief and that counsel's alleged failure to expressly challenge the sufficiency of the evidence did not prejudice her.
3. Claims concerning the admission of evidence that were known and litigated, or could have been litigated, on direct appeal are procedurally barred in a postconviction proceeding, regardless of how the claims are phrased or rephrased.
4. A postconviction movant asserting actual innocence must make a strong, extraordinarily high-threshold showing before a court will consider whether continued incarceration may present a constitutional claim.
5. The district court did not err in denying postconviction relief on the motion-for-new-trial claim because the record showed that DeJong withdrew the motion at sentencing; the district court therefore did not deny it.
6. Conclusory, speculative allegations that evidence was improperly admitted do not require an evidentiary hearing when the motion fails to allege specific constitutional violations and the record either refutes entitlement to relief or does not establish a constitutional claim.

Questions Presented

1. Whether DeJong alleged sufficient facts to warrant an evidentiary hearing on ineffective assistance claims based on counsel's failure to investigate and further question witnesses.
2. Whether DeJong was entitled to postconviction relief based on counsel's alleged failure to argue insufficiency of the evidence on direct appeal.
3. Whether claims challenging the admission of prior-bad-act evidence and other trial evidence were procedurally barred because they were known or litigated on direct appeal.
4. Whether DeJong's actual-innocence claim made a sufficient threshold showing to warrant an evidentiary hearing or postconviction relief.
5. Whether the district court erred in denying a motion for new trial when the record showed that DeJong had withdrawn that motion at sentencing.

Disposition

affirmed