State v. Stelly , 308 Neb. 636 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/30/2021 12:09 AM CDT
    - 636 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    State of Nebraska, appellee, v.
    Malik M. Stelly, appellant.
    ___ N.W.2d ___
    Filed March 12, 2021.    No. S-20-635.
    1. Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
    in a postconviction proceeding is procedurally barred is a question of
    law. When reviewing a question of law, an appellate court reaches a
    conclusion independent of the lower court’s ruling.
    3. Postconviction: Judgments: Proof. In a postconviction proceeding,
    an evidentiary hearing is not required when (1) the motion does not
    contain factual allegations which, if proved, constitute an infringement
    of the movant’s constitutional rights, rendering the judgment void or
    voidable; (2) the motion alleges only conclusions of fact or law without
    supporting facts; or (3) the records and files affirmatively show that the
    defendant is entitled to no relief.
    4. Postconviction: Appeal and Error. In determining whether a motion
    for postconviction relief contains factual allegations that, if proved, con-
    stitute an infringement of the movant’s constitutional rights and whether
    the records and files affirmatively show the defendant is entitled to no
    relief, an appellate court considers whether the allegations are procedur-
    ally barred.
    5. ____: ____. 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 or which were known to the defendant and
    counsel at the time of the trial and which were capable of being raised,
    but were not raised, in the defendant’s direct appeal.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    6. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    7. Postconviction: Effectiveness of Counsel: Appeal and Error. A
    motion for postconviction relief asserting ineffective assistance of trial
    counsel is procedurally barred when (1) the defendant was represented
    by a different attorney on direct appeal than at trial, (2) an ineffective
    assistance of trial counsel claim was not brought on direct appeal, and
    (3) the alleged deficiencies in trial counsel’s performance were known
    to the defendant or apparent from the record.
    8. ____: ____: ____. A claim of ineffective assistance of appellate counsel
    which could not have been raised on direct appeal may be raised on
    postconviction review.
    9. Trial: Evidence. There are three components of a true violation under
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963): (1) The evidence at issue must be favorable to the accused,
    either because it is exculpatory, or because it is impeaching; (2) that
    evidence must have been suppressed by the State, either willfully or
    inadvertently; and (3) prejudice must have ensued.
    10. Effectiveness of Counsel: Proof. In order to establish a right to post-
    conviction relief based on a claim of ineffective assistance of coun-
    sel, the defendant has the burden, in accordance with Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), to
    show that counsel’s performance was deficient and that counsel’s defi-
    cient performance prejudiced the defense in his or her case.
    11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
    the ineffective assistance of counsel test—deficient performance and
    prejudice—may be addressed in either order, and the entire ineffective-
    ness analysis is viewed with a strong presumption that counsel’s actions
    were reasonable.
    12. Effectiveness of Counsel: Proof. To show that counsel’s performance
    was deficient, a defendant must show that counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in criminal law.
    13. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
    ecutorial misconduct encompasses conduct that violates legal or ethical
    standards for various contexts because the conduct will or may under-
    mine a defendant’s right to a fair trial.
    14. Postconviction. An evidentiary hearing is not required when a motion
    for postconviction relief alleges only conclusions of fact or law without
    supporting facts.
    Appeal from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    Malik M. Stelly, pro se.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    The defendant appeals from an order of the district court
    denying his pro se motion for postconviction relief without an
    evidentiary hearing. The defendant asserts that the trial record
    demonstrates the probability that the extraction of information
    from his cell phone found at the scene of the crime took place
    before the crime occurred. The defendant concludes that if law
    enforcement extracted information from his cell phone before
    the crime, then law enforcement had his cell phone before the
    crime and had unlawfully searched it before obtaining a war-
    rant. Related to this claim, the defendant asserts that the State
    committed various acts of prosecutorial misconduct during
    trial and concealed exculpatory evidence in violation of the
    prosecution’s duty under Brady v. Maryland. 1 The allegedly
    exculpatory evidence the prosecution concealed is the original
    disc containing the full extraction report, which the defend­
    ant believes would show that the extraction occurred before
    the crime. The defendant asserts that both trial counsel and
    appellate counsel were ineffective in failing to discover that
    the State had concealed such exculpatory information that he
    believes is contained on the disc. We affirm.
    BACKGROUND
    Malik M. Stelly was convicted of first degree murder, use
    of a deadly weapon to commit a felony, and possession of a
    deadly weapon by a prohibited person.
    1
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
     (1963).
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    Trial
    The facts underlying Stelly’s convictions are set forth in
    detail in our opinion resolving Stelly’s direct appeal. 2 We
    reiter­ate those facts from the trial record most pertinent to
    Stelly’s current postconviction appeal.
    After the “ShotSpotter” system in Omaha, Nebraska, indi-
    cated shots were fired at 2:37 a.m. on January 11, 2017, the
    victim was found on a residential sidewalk, dead of multiple
    gunshot wounds to the head. Witnesses described a Chrysler
    PT Cruiser driving away. One witness described the PT Cruiser
    as having rust around the wheel wells. Shell casings and two
    cell phones were found at the scene. An LG cell phone was
    found in the street about 10 to 15 feet from the victim’s body.
    A ZTE cell phone was found in the victim’s pocket.
    Later that day, officers obtained a search warrant and
    extracted data from the LG cell phone found in the street. The
    data indicated the cell phone belonged to Stelly.
    Officers surveilled the apartment complex where Stelly
    lived, finding a PT Cruiser in the parking lot that was reg-
    istered to Stelly’s friend, Royce White. Pursuant to a search
    warrant, officers later searched Stelly’s apartment and the
    PT Cruiser.
    Stelly’s fingerprint was recovered from the interior door-
    frame of the PT Cruiser, which had damage to the wheel wells
    on the driver’s side. Evidence adduced at trial showed that
    White had loaned Stelly the PT Cruiser before the shooting,
    because Stelly’s car had been in an accident.
    A hat was seized from Stelly’s apartment that, due to time-
    stamped photographs on Stelly’s social media profile, officers
    believed Stelly had worn the day of the crime. Blood found
    on the hat was tested, and the victim’s DNA was not excluded
    as the major contributor to the DNA contained therein, with
    a probability of that DNA’s coming from someone other than
    the victim being 1 in 47.4 nonillion. Stelly was not excluded
    as the major contributor to the DNA collected from inside the
    2
    State v. Stelly, 
    304 Neb. 33
    , 
    932 N.W.2d 857
     (2019).
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
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    308 Neb. 636
    headband of the hat, and the probability of that DNA’s having
    come from someone other than Stelly was 1 in 1.01 octillion.
    DNA found on the LG cell phone was tested, and Stelly was
    not excluded as the major contributor, with a probability of
    that DNA’s having come from someone other than Stelly at 1
    in 4.12 sextillion.
    The district court denied Stelly’s pretrial motion to suppress
    evidence obtained from searching the contents of the LG cell
    phone. Trial counsel had argued that the warrant, and the affi-
    davit in support thereof, were insufficient because they identi-
    fied the ZTE cell phone found in the victim’s pocket rather
    than the LG cell phone. At the suppression hearing, the warrant
    and attached affidavit were received into evidence.
    The affidavit recited the facts of the shooting and that an
    LG model cell phone was found in the street about 10 feet
    from the victim. The affidavit stated it was unknown who the
    LG cell phone belonged to and that an examination of the
    electronic data contained in the cell phone would be a benefit
    to the investigation. The affidavit also stated that the electronic
    device to be searched was in the lawful possession of the
    Omaha Police Department and was “found in the street at the
    scene of a homicide and seized as evidence.”
    But elsewhere in the affidavit, the device to be searched
    was identified as the ZTE cell phone. Likewise, the warrant
    that was issued identified the ZTE cell phone as the device to
    be searched. The warrant was issued January 11, 2017, after
    which the LG cell phone found in the street was searched.
    The officer who swore the affidavit testified at the suppres-
    sion hearing that he noticed after the search that he had made
    an error when listing the ZTE cell phone. The officer applied
    for and obtained another search warrant referencing only the
    LG cell phone.
    Officer Ryan Hinsley testified at the motion to suppress
    hearing that the cell phone review began early in the morning
    on January 11, 2017, in order to identify the owner of the LG
    cell phone found at the scene of the crime. Officer Thomas
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    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    Queen testified that as part of the police department’s evi-
    dence processing protocols, the cell phone was “hooked up” to
    a “Cellebrite” machine in order to unlock the cell phone and
    look at the identification data. Queen did not know exactly
    when this occurred, but it was some hours after he was called
    in to work, subsequent to the crime.
    Officer Nicholas Herfordt testified during the motion to
    suppress hearing that the LG cell phone was booked into
    property at 10:21 a.m. on January 11, 2017, and that he
    retrieved it at 2:11 p.m. that same day, after a search warrant
    had been obtained. Herfordt testified that he began the process
    of extracting all of the raw data from the LG cell phone at
    6:49 p.m. on January 11 and that the extraction was completed
    at 6:58 p.m.
    The district court held that the inadvertent defect in the
    original search warrant was cured by reference to the affidavit
    used to obtain the warrant, which was attached thereto.
    At trial, the State presented photographs of Stelly that were
    taken with his cell phone and posted on a social media website,
    one of which showed Stelly wearing the hat that Stelly’s and
    the victim’s blood were later found on. The photographs were
    posted at approximately 8 p.m. on January 10, 2017.
    Exhibit 590 is one such photograph, attached to which is an
    “Upload Ip” from the social media’s business records show-
    ing the photograph was uploaded on January 11, 2017, at
    “2:06:24 UTC.”
    Exhibit 591 is a photograph of two bottles of cognac cham-
    pagne Stelly appeared to be holding in the prior photograph. It
    was uploaded to the social media site, according to its business
    records, at “1:50:43 UTC” the same date.
    The State also presented exhibit 589, a picture of a puppy
    and conversations on January 8, 2017, on social media regard-
    ing Stelly’s potential purchase of the puppy, in the course of
    which Stelly mentions driving a PT Cruiser.
    Several witnesses testified that the term “UTC” stands for
    coordinated universal time, which is approximately 5 or 6
    hours before central time.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STELLY
    Cite as 
    308 Neb. 636
    The State also presented cell phone records indicating that
    from approximately 8:15 p.m. until just before 11 p.m. on
    January 10, 2017, Stelly’s cell phone was near White’s house
    and the crime scene. Further, between 1:43 and 1:51 a.m. on
    January 11, Stelly had a text message conversation in which he
    told someone that he was “bored” and “wanna act bad.”
    Exhibit 576 contains call records and cell phone loca-
    tion records.
    Exhibit 592 is an “Extraction Report” from Cellebrite show-
    ing the text messages and the time they were read and sent,
    which was between 1:43 and 1:51 a.m. on January 11, 2017.
    Direct Appeal
    Following his convictions and sentencing, Stelly filed a
    direct appeal with new counsel. He alleged that the trial court
    erred in denying his motion to suppress the search of his cell
    phone and 18 different claims of ineffective assistance of
    trial counsel.
    Regarding the motion to suppress, Stelly argued that the
    warrant was not particular enough in its description of the cell
    phone to be searched and that the affidavit did not cure the
    deficiency. We disagreed, holding that the detailed information
    in the supporting affidavit, referred to and accompanying the
    warrant, demonstrated that the reference to the ZTE cell phone
    was an inadvertent scrivener’s error and cured such defect, and
    that the affidavit and warrant together described with sufficient
    particularity the item to be searched.
    The claims of ineffective assistance of counsel included two
    claims related to the LG cell phone.
    First, Stelly claimed that trial counsel had failed to investi-
    gate the source of calls to White’s cell phone from two specific
    telephone numbers which would have revealed that officers
    called White’s cell phone themselves after illegally search-
    ing the LG cell phone found near the victim’s body without
    a warrant.
    Second, Stelly claimed trial counsel failed to consult
    with and call as a witness an independent cell phone expert
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    STATE v. STELLY
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    308 Neb. 636
    who, upon analyzing the LG cell phone found near the victim’s
    body, would have testified that the data officers purportedly
    extracted from the LG cell phone was not in fact present on
    it and that one or more officers manufactured cell phone evi-
    dence. Such expert would also have testified that officers sent
    and received text messages and voice calls using the LG cell
    phone, but testified falsely and failed to disclose this fact to
    trial counsel, the trial court, and the jury.
    We held that the trial record affirmatively refuted the first
    claim. We explained that we had already held in our analysis of
    the motion to suppress that the search of Stelly’s LG cell phone
    was pursuant to a valid warrant.
    We found the trial record insufficient to resolve the second
    claim with respect to deficient conduct, and we did not decide
    whether the trial record was sufficient to determine whether
    Stelly was prejudiced from the alleged deficient conduct.
    Motion for Postconviction Relief
    In an amended motion for postconviction relief filed on
    January 9, 2020, Stelly presented three alleged grounds for
    vacating his convictions.
    “Ground 1” was the allegation that his convictions were
    obtained in violation of due process, because evidence was
    admitted that was inadmissible due to the illegality of the
    searches and seizures which produced the evidence. This alleg-
    edly unlawfully obtained evidence included data from Stelly’s
    cell phone, which evidence Stelly claimed was extracted before
    the crime, at a time when there was no probable cause to do so,
    and was not found at the scene of the crime, but, rather, was
    in the possession of law enforcement before the crime. Stelly
    asserted that the search of the cell phone and other places was
    warrantless because the sworn affidavits in support of the war-
    rants were issued after the searches.
    “Ground 2” was the allegation that Stelly’s convictions were
    obtained as a result of prosecutorial misconduct. This pros-
    ecutorial misconduct allegedly included staged, perjured, and
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    STATE v. STELLY
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    308 Neb. 636
    false testimony. In this regard, Stelly again alleged that the data
    from his cell phone was extracted before the crime, which he
    asserted rendered exhibits 590 through 592 inadmissible as a
    search and seizure without probable cause or a warrant.
    Stelly did not allege newly discovered evidence but sur-
    mised the time of extraction based on the testimony at the
    pretrial hearing on his trial counsel’s motion to suppress.
    Specifically, Stelly pointed out Herfordt’s testimony that data
    extraction was conducted at 6:49 to 6:58 p.m. on January 11,
    2017. Stelly asserted this testimony was inconsistent with the
    testimony of Hinsley that the cell phone review began early in
    the morning on January 11, 2017.
    Stelly also claimed that the “metadata” contained in exhib-
    its 590 and 591 demonstrated that the printouts were created
    at 1:50 and 2:06 a.m. on January 11, 2017, before the crime
    occurred. Stelly asserted, based on the “World Book,” that
    “Universal Time Coordinate is not a time zone.” He did not
    explain, however, how precisely this connected to his argument
    that the times of 1:50 and 2:06 a.m. were when the data extrac-
    tion of the cell phone took place rather than when he posted
    onto social media.
    “Ground 3” contained allegations of ineffective assistance
    of both trial counsel and appellate counsel. For trial counsel,
    Stelly elaborated that “[f]or the following reasons set forth in
    Ground 1 and Ground 2 trial counsel was ineffective based
    on the mishandling of the fourth amendment violation claim,”
    which ineffective assistance led to the admission of exhibits
    576 and 589 through 592. Among other things, Stelly argued
    that through discovery, as well as through evidence presented
    at the pretrial hearings and at trial, trial counsel should have
    realized and argued that the data from his cell phone was
    extracted before the crime occurred. In this regard, he reiter-
    ated his claim that the “metadata” from exhibits 590 and 591
    show those printouts were “created” January 11, 2017, at 1:50
    and 2:06 a.m. before the crime occurred, proving the cell
    phone was not found at the crime scene.
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    STATE v. STELLY
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    308 Neb. 636
    As to his claims against appellate counsel, Stelly incorpo-
    rated all prior allegations, including those against trial counsel,
    and explained:
    Through the evidence provided to the trial counsel and
    appeallate [sic] counsel through the discovery process,
    trial counsel and appeallate [sic] counsel should have
    argued (Ev. #1) data was extracted before this crime
    occurred, and Exhibits 2, 3, 5, 6, 7, 8, and 13 are affi-
    davits and applications for issuance of a search warrant,
    not signed search warrants from a judge (Referencing
    Ground 1 section 1).
    Again, Stelly repeated his claim that the “metadata” from
    exhibits 590 and 591 show that the printouts were “created”
    January 11, 2017, at 1:50 and 2:06 a.m. before the crime
    occurred, proving the cell phone was not found at the crime
    scene. Stelly concluded that “[t]he mishandling of the defend­
    ants fourth amendment violation claim amounts to the defend­
    ant being prejudiced” and that both trial counsel’s and appel-
    late counsel’s performance were deficient and their deficient
    performance prejudiced him by depriving him of a fair trial.
    He asserted that but for the ineffective assistance, no reason-
    able fact finder would have found him guilty of the underly-
    ing offenses.
    On April 22 and July 2, 2020, Stelly filed additional docu-
    ments setting forth additional information which he asked the
    court to take into consideration, along with the verified motion
    for postconviction relief. It is unclear if the court did so. Stelly
    seemed to reiterate in these filings that the cell phone was not
    found at the crime scene, because the data from the cell phone
    was extracted before the crime. Again, in making the argu-
    ment that the data was extracted before the crime, Stelly relied
    on testimony at the motion to suppress hearing and at trial
    rather than on any newly discovered evidence. He theorized
    that, because the time of extraction proves the cell phone was
    not at the scene of the crime, the affidavit asserting the cell
    phone was found near the victim at the crime scene contained
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    STATE v. STELLY
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    a knowingly false statement and was therefore invalid. The
    April 22 filing does not mention ineffective assistance of
    counsel, but the July 2 filing asserts that trial counsel and
    appellate counsel should have argued that statements in the
    affidavits that the cell phone was found near the victim at the
    crime scene were false and recklessly made. This allegedly
    prejudiced Stelly by allowing the introduction of inadmissible
    evidence, such as exhibits 589 through 591.
    Order Denying Postconviction Relief
    On August 13, 2020, the district court, without an eviden-
    tiary hearing, denied the amended motion for postconviction
    relief. The court explained that the claims relating to viola-
    tions of due process rights and prosecutorial misconduct were
    procedurally barred because they could have been brought on
    direct appeal.
    The court found that all Stelly’s allegations of ineffec-
    tive assistance of appellate counsel relate to the same issues
    addressed within the ineffective assistance of trial counsel
    claims and that all such claims were either procedurally barred
    or affirmatively refuted by the trial record. Citing to State
    v. Sellers, 3 the postconviction court concluded that Stelly’s
    ineffectiveness claim regarding trial counsel’s and appellate
    counsel’s failure to discover exculpatory evidence was dif-
    ficult to decipher, but failed because it set forth no more than
    conclusory allegations with regard to the lack of investigation
    and did not specifically identify any exculpatory evidence the
    investigation would have procured. The court also noted that
    much of Stelly’s argument was based on a misunderstanding
    of the evidence at trial. For instance, the court elaborated as to
    exhibits 590 and 591 that the times of 1:50 and 2:06 a.m. were
    when the photographs were downloaded to social media rather
    than when they were downloaded by law enforcement.
    After the court’s order denying postconviction relief,
    Stelly moved to compel the Douglas County Attorney who
    3
    State v. Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
     (2015).
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    handled his prosecution to surrender the entire case file. Stelly
    specifically requested police reports and all copies of affidavits
    and search warrants. He made no reference in the motion to
    a disc containing an extraction report for his cell phone. The
    court denied the motion.
    On September 2, 2020, Stelly appealed from the district
    court’s order denying postconviction relief.
    ASSIGNMENTS OF ERROR
    Stelly assigns as error that (1) the State committed a Brady
    violation by failing to disclose the disc containing the extraction
    report for his cell phone information, which allegedly would
    demonstrate that the cell site location, call detail records, text
    history, social media posts, and pictures entered into evidence
    through exhibits 566, 576, and 590 through 592 were fraud­
    ulently misrepresented as being extracted from the device after
    the crime; (2) trial counsel and appellate counsel were ineffec-
    tive in failing to raise this alleged Brady violation, which they
    would have discovered had they demanded a copy of the disc
    to resolve the discrepancy between witness testimony that the
    extraction occurred a little before 7 p.m. on January 11, 2017,
    and witness testimony that the extraction occurred in the early
    morning hours of January 11; and (3) there was plain error
    committed during trial through the prosecutor’s failure to cor-
    rect its witnesses’ false testimony pertaining to the dates and
    times of exhibits 590 through 592.
    STANDARD OF REVIEW
    [1] 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. 4
    [2] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law. When reviewing
    4
    State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020).
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    a question of law, an appellate court reaches a conclusion
    i­ndependent of the lower court’s ruling. 5
    ANALYSIS
    [3] Stelly asserts that the district court erred in denying his
    motion for postconviction relief without an evidentiary hear-
    ing. The Nebraska Postconviction Act provides:
    A prisoner in custody under sentence and claiming a right
    to be released on the ground that there was such a denial
    or infringement of the rights of the prisoner as to render
    the judgment void or voidable under the Constitution of
    this state or the Constitution of the United States, may
    file a verified motion, in the court which imposed such
    sentence, stating the grounds relied upon and asking the
    court to vacate or set aside the sentence.
    . . . Unless the motion and the files and records of the
    case show to the satisfaction of the court that the prisoner
    is entitled to no relief, the court shall cause notice thereof
    to be served on the county attorney [and] grant a prompt
    hearing thereon . . . . 6
    In a postconviction proceeding, an evidentiary hearing is not
    required when (1) the motion does not contain factual alle-
    gations which, if proved, constitute an infringement of the
    movant’s constitutional rights, rendering the judgment void or
    voidable; (2) the motion alleges only conclusions of fact or law
    without supporting facts; 7 or (3) the records and files affirm­
    atively show that the defendant is entitled to no relief. 8
    [4,5] In determining whether a motion for postconviction
    relief contains factual allegations that, if proved, constitute
    an infringement of the movant’s constitutional rights and
    whether the records and files affirmatively show the defendant
    is entitled to no relief, we consider whether the allegations
    5
    State v. Harris, 
    267 Neb. 771
    , 
    677 N.W.2d 147
     (2004).
    6
    
    Neb. Rev. Stat. § 29-3001
     (Reissue 2016).
    7
    See State v. Allen, 
    301 Neb. 560
    , 
    919 N.W.2d 500
     (2018).
    8
    See State v. Parnell, 
    supra note 4
    .
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    are procedurally barred. 9 Generally, a motion for postconvic-
    tion relief cannot be used as a substitute for an appeal or to
    secure a further review of issues already litigated on direct
    appeal or which were known to the defendant and counsel at
    the time of the trial and which were capable of being raised,
    but were not raised, in the defendant’s direct appeal. 10
    [6] While Stelly makes many arguments in his brief, an
    alleged error must be both specifically assigned and spe-
    cifically argued in the brief of the party asserting the error
    to be considered by an appellate court. 11 To the extent Stelly
    makes arguments not specifically assigned as error, we do not
    address them.
    Ineffective Assistance
    Stelly argues in relation to his second assignment of error
    that both trial counsel and appellate counsel violated his Sixth
    Amendment rights by “not addressing the Brady violation
    of the defense not being given the disc or a copy of the disc
    containing the Cellebrite extraction report for the device.” 12
    This disc allegedly would have demonstrated that the cell site
    location, call detail records, text history, social media posts,
    and pictures entered into evidence through exhibits 566, 576,
    and 590 through 592 were fraudulently misrepresented at trial
    as being extracted from the device after the crime, when in
    fact they were extracted before the crime. Stelly alleges that
    both trial counsel and appellate counsel would have discovered
    this had they demanded a copy of the disc to resolve what
    Stelly considers to be a discrepancy between witness testimony
    that the extraction occurred a little before 7 p.m. on January
    11, 2017, and witness testimony that the extraction occurred
    in the early morning hours of January 11. Stelly infers the
    9
    See 
    id.
    10
    See 
    id.
    11
    State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
     (2014).
    12
    Brief for appellant at 12.
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    disc would show the data was extracted from the cell phone
    before the crime, based on this allegedly conflicting testimony
    and his reading of exhibits 590 through 592. Stelly concludes
    a disc showing the data was extracted before the crime would
    be exculpatory, because it would negate a nexus between the
    crime alleged and the item to be searched and would have
    invalidated the search warrant, which would have made most
    of the evidence against him inadmissible under the exclusion-
    ary doctrine.
    Stelly’s claim against trial counsel was not brought on direct
    appeal. While there is a common theme surrounding Stelly’s
    cell phone and law enforcement tampering, we read the post-
    conviction allegation against trial counsel to be distinct from
    those brought on direct appeal. Stelly alleged on direct appeal
    that trial counsel had failed to investigate the source of calls to
    White’s cell phone from two specific telephone numbers that
    would have revealed officers called White’s cell phone them-
    selves after a warrantless search of the LG cell phone found at
    the scene of the crime, a claim which we found to be without
    merit. Stelly also asserted on direct appeal that trial counsel
    failed to call as a witness an independent cell phone expert
    who would have testified that the data the officers purportedly
    extracted from the LG cell phone was not in fact present and
    was manufactured, a claim which we did not determine on
    direct appeal. These claims are distinct from the current alle-
    gation that the data from the cell phone was extracted before
    the crime.
    [7] A motion for postconviction relief asserting ineffec-
    tive assistance of trial counsel is procedurally barred when
    (1) the defendant was represented by a different attorney on
    direct appeal than at trial, (2) an ineffective assistance of trial
    counsel claim was not brought on direct appeal, and (3) the
    alleged deficiencies in trial counsel’s performance were known
    to the defendant or apparent from the record. 13 Stelly was
    13
    State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
     (2017).
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    represented by new counsel on direct appeal. He relies on testi-
    mony and exhibits presented at the pretrial hearing and at trial
    to support his allegations of ineffective assistance, evidence
    which was known to him and was apparent from the record.
    And the current allegations of ineffective assistance of trial
    counsel were not raised on direct appeal. Therefore, Stelly’s
    claim against trial counsel is procedurally barred.
    [8] In contrast, this postconviction proceeding was Stelly’s
    first opportunity to assert that his appellate counsel was inef-
    fective. A claim of ineffective assistance of appellate counsel
    which could not have been raised on direct appeal may be
    raised on postconviction review. 14 But the district court did not
    err in denying, without an evidentiary hearing, Stelly’s claim
    for postconviction relief based on the alleged ineffective assist­
    ance of appellate counsel.
    First, we agree with the State that the claims made in the
    second assignment of error were not made in Stelly’s post-
    conviction motion. The postconviction motion made no refer-
    ence to a Brady violation or to a disc containing the Cellebrite
    extraction report that either trial counsel or appellate counsel
    should have obtained. This court will not consider an issue on
    appeal from the denial of postconviction relief that was not
    raised in the motion for postconviction relief or passed upon by
    the postconviction court. 15
    [9-12] Second, we agree with the district court that the
    record affirmatively refutes Stelly’s claim of ineffective assist­
    ance of appellate counsel for failing to discover and challenge
    the alleged Brady violation. There are three components of a
    true Brady violation: (1) The evidence at issue must be favor-
    able to the accused, either because it is exculpatory, or because
    14
    State v. Sellers, supra note 3.
    15
    See, State v. Oliveira-Coutinho, 
    304 Neb. 147
    , 
    933 N.W.2d 825
     (2019);
    State v. Vela, 
    297 Neb. 227
    , 
    900 N.W.2d 8
     (2017); State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
     (2015); State v. Thomas, 
    262 Neb. 138
    , 
    629 N.W.2d 503
     (2001).
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    it is impeaching; (2) that evidence must have been suppressed
    by the State, either willfully or inadvertently; and (3) preju-
    dice must have ensued. 16 In order to establish a right to post-
    conviction relief based on a claim of ineffective assist­ance
    of counsel, the defendant has the burden, in accordance with
    Strickland v. Washington, 17 to show that counsel’s perform­
    ance was deficient and that counsel’s deficient performance
    prejudiced the defense in his or her case. 18 The two prongs
    of this test—deficient performance and prejudice—may be
    addressed in either order, and the entire ineffectiveness analy-
    sis is viewed with a strong presumption that counsel’s actions
    were reasonable. 19 To show that counsel’s performance was
    deficient, a defendant must show that counsel’s performance
    did not equal that of a lawyer with ordinary training and skill
    in criminal law. 20
    We find that the record affirmatively refutes Stelly’s allega-
    tion that appellate counsel was deficient for failing to raise trial
    counsel’s ineffectiveness in failing to discover and challenge at
    trial the Brady violation of concealing the extraction disc. The
    evidence Stelly points to as raising questions about the time of
    extraction, which he claims should have alerted trial counsel to
    the possible Brady violation and should have likewise alerted
    appellate counsel of trial counsel’s ineffectiveness, does not
    in fact indicate the State was concealing exculpatory evidence
    that it had extracted the data from Stelly’s cell phone before
    the crime.
    The trial record demonstrates that, on their face, exhibits
    590 through 592 are photographs that show when they were
    16
    State v. Starks, 
    294 Neb. 361
    , 
    883 N.W.2d 310
     (2016). See Brady v.
    Maryland, 
    supra note 1
    .
    17
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    18
    See State v. Assad, 
    304 Neb. 979
    , 
    938 N.W.2d 297
     (2020).
    19
    See State v. Oliveira-Coutinho, 
    supra note 15
    .
    20
    State v. Assad, 
    supra note 18
    .
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    uploaded onto the social media website and not, as Stelly sug-
    gests, when they were printed out. The fact that these photo-
    graphs were uploaded to social media before the crime does
    not indicate that law enforcement had possession of Stelly’s
    cell phone and searched it before the crime.
    The trial record also affirmatively demonstrates that there is
    no discrepancy between Herfordt’s testimony that the extrac-
    tion occurred a little before 7 p.m. on January 11, 2017, and
    Hinsley’s testimony that the extraction occurred in the early
    morning hours of January 11. Hinsley testified during the
    motion to suppress hearing that the cell phone review began
    early in the morning on January 11, in order to identify the
    owner of the LG cell phone found at the scene of the crime.
    Herfordt testified during the motion to suppress hearing that
    the LG cell phone was booked into property at 10:21 a.m. on
    January 11 and that he retrieved it at 2:11 p.m. that same day,
    after a search warrant had been obtained. Herfordt testified that
    he began the process of extracting all of the raw data from the
    LG cell phone at 6:49 p.m. on January 11 and that the extrac-
    tion was completed at 6:58 p.m.
    The record shows that the first extraction was of a more
    limited nature to identify the owner of the cell phone, while the
    second extraction was a full search of its contents. And even if
    the testimonies of Herfordt and Hinsley were inconsistent, both
    testified that the extractions occurred after the crime. We fail to
    see how any inconsistency should have led either trial counsel
    or appellate counsel to believe that the extraction of data from
    the cell phone occurred before the crime.
    The record affirmatively refutes Stelly’s allegation that
    appellate counsel’s performance was deficient by failing to
    suspect and raise the issue of whether the data extraction of the
    LG cell phone occurred before the crime. The evidence Stelly
    points to would not give reason for a lawyer with ordinary
    training and skill in criminal law to believe that such precrime
    extraction might have occurred.
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    Prosecutorial Misconduct
    [13] Stelly’s arguments pertaining to his first and third
    assignments of error are that the State committed a Brady
    violation by concealing the disc and committed other acts of
    prosecutorial misconduct by presenting false testimony that
    the data was extracted after the crime. Generally, prosecutorial
    misconduct encompasses conduct that violates legal or ethical
    standards for various contexts because the conduct will or may
    undermine a defendant’s right to a fair trial. 21
    As pertains to the alleged Brady violation, as stated, the
    postconviction motion made no reference to a Brady violation
    or to a disc containing the Cellebrite extraction report. Thus,
    we need not address this claim that is being raised for the first
    time on appeal.
    [14] As to both the alleged Brady violation and the remain-
    ing allegations of prosecutorial misconduct, we agree with
    the district court that Stelly alleged only conclusions of fact
    without supporting facts. An evidentiary hearing is not required
    when a motion for postconviction relief alleges only conclu-
    sions of fact or law without supporting facts. 22
    Conclusions of fact that are insufficient to warrant an eviden-
    tiary hearing are often broad characterizations without specific-
    ity, such as an allegation of “false” testimony, 23 but we have
    also found a more specific allegation to be a mere conclusion
    of fact when it appears based on speculation due to the lack of
    adequate supporting factual allegations. 24 Thus, for instance,
    in State v. Allen, 25 we concluded that the allegation that law
    enforcement tampered with the evidence was a mere conclu-
    sion of fact without supporting facts when it was based on
    21
    State v. Nolan, 
    292 Neb. 118
    , 
    870 N.W.2d 806
     (2015).
    22
    State v. Parnell, 
    supra note 4
    .
    23
    See State v. Dean, 
    264 Neb. 42
    , 49, 
    645 N.W.2d 528
    , 534 (2002).
    24
    See, e.g., State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
     (2017).
    25
    State v. Allen, 
    supra note 7
    .
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    nothing more than the allegation that a former supervisor, who
    was found to have tampered with evidence in other cases when
    he was involved in evidence collection, 26 had diagrammed the
    crime scene, but had not collected any evidence.
    There was no allegation that Stelly’s claims were based
    on newly discovered evidence that was not available to him
    during trial or his direct appeal. Stelly’s only support for his
    conclusory assertions that there was an undisclosed exculpa-
    tory disc and that the State presented false testimony is the
    same evidence relied upon in asserting that both trial counsel
    and appellate counsel were ineffective. Given that the evidence
    Stelly relies on does not support an inference that the extrac-
    tion occurred before the crime, Stelly’s allegation of false testi-
    mony that the data was extracted after the crime and allegation
    of an undisclosed disc showing extraction occurred before the
    crime are nothing more than conclusions of fact without sup-
    porting facts. Accordingly, an evidentiary hearing on the claims
    of prosecutorial misconduct was not required.
    CONCLUSION
    We find no merit to Stelly’s assignments of error relating
    to the district court’s denial of Stelly’s motion for posconvic-
    tion relief without an evidentiary hearing. The claims were all
    either procedurally barred, based upon mere conclusions of
    fact and law without supporting facts, or affirmatively refuted
    by the trial record. We therefore affirm the judgment of the
    district court.
    Affirmed.
    Heavican, C.J., not participating.
    26
    See State v. Kofoed, 
    283 Neb. 767
    , 
    817 N.W.2d 225
     (2012).