State v. Jaeger , 311 Neb. 69 ( 2022 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/20/2022 09:07 AM CDT
    - 69 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    State of Nebraska, appellee, v.
    Roger Jaeger, appellant.
    ___ N.W.2d ___
    Filed March 4, 2022.    No. S-21-386.
    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: Constitutional Law: Proof. The district court must
    grant an evidentiary hearing to resolve the claims in a postconviction
    motion when the motion contains factual allegations which, if proved,
    constitute an infringement of the defendant’s rights under the state or
    federal Constitution.
    4. Postconviction: Pleadings. The allegations in a motion for postconvic-
    tion relief must be sufficiently specific for the district court to make
    a preliminary determination as to whether an evidentiary hearing is
    justified.
    5. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
    not required on a motion for postconviction relief when (1) the motion
    does not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights rendering the judg-
    ment 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.
    6. Postconviction: Appeal and Error. In appeals from the denial of post-
    conviction relief without an evidentiary hearing, as with all appeals, the
    alleged errors of the lower court must be both specifically assigned and
    - 70 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    specifically argued in the brief of the party asserting the errors to be
    considered by the appellate court.
    7.   Records: Appeal and Error. The appellate court will not scour the
    record on appeal to understand unclear arguments or find support for
    broad conclusions.
    8.   Postconviction: Appeal and Error. The appellate court will not con-
    sider allegations not presented to the district court for disposition
    through the defendant’s verified motion for postconviction relief or
    passed upon by the postconviction court.
    9.   Appeal and Error. Except for instances of plain error, only those issues
    both raised or passed upon below and specifically assigned and specifi-
    cally argued on appeal will be considered by the appellate court.
    10.   Postconviction. The defendant’s verified motion for postconviction
    relief is the operative filing before the district court in considering
    whether to grant an evidentiary hearing.
    11.   Postconviction: Appeal and Error. A postconviction court does not
    err by failing to consider claims not made in the operative motion for
    postconviction relief, which are instead raised in other filings.
    12.   Effectiveness of Counsel. A pro se party is held to the same standards
    as one who is represented by counsel.
    13.   Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all
    defenses to a criminal charge.
    14.   Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no
    contest, the defendant is limited to challenging whether the plea was
    understandingly and voluntarily made and whether it was the result of
    ineffective assistance of counsel.
    15.   Postconviction: Appeal and Error. A motion for postconviction relief
    cannot be used to secure review of issues that were or could have been
    litigated on direct appeal.
    16.   ____: ____. When the defendant is represented both at trial and on
    direct appeal by the same counsel, the defendant’s first opportunity to
    assert ineffective assistance of trial counsel is in a motion for postcon-
    viction relief.
    17.   Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel, the defendant must show that counsel’s perform­
    ance was deficient and that this deficient performance actually preju-
    diced his or her defense.
    18.   Effectiveness of Counsel: Pleas. The voluntariness of a plea entered
    upon the advice of counsel depends on whether the advice was within
    the range of competence demanded of attorneys in criminal cases.
    19.   Trial: Effectiveness of Counsel: Presumptions. In determining whether
    a trial counsel’s performance was deficient, there is a strong presump-
    tion that counsel acted reasonably.
    - 71 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    20. Effectiveness of Counsel: Pleas: Proof. In order to satisfy the prejudice
    requirement in the context of a plea, the defendant must show that his or
    her counsel erred and there is a reasonable probability that but for coun-
    sel’s errors, the defendant would not have pled and would have insisted
    upon going to trial.
    21. Pleas. A threat or promise of illegal action may invalidate a plea, but a
    threat to prosecute when the facts warrant prosecution is not coercive
    such that a subsequent plea is involuntary.
    22. Effectiveness of Counsel. Counsel’s performance is deficient when it
    objectively does not equal that of a lawyer with ordinary training and
    skill in criminal law in the area.
    23. ____. As a matter of law, counsel cannot be ineffective for failing to
    raise a meritless argument to the trial court.
    24. ____. The viability of any defense goes to the likelihood of whether a
    rational defendant would have insisted on going to trial.
    25. Postconviction: Effectiveness of Counsel. An evidentiary hearing will
    not be warranted based only upon the prisoner’s legal conclusions about
    the significance of vaguely asserted failures to investigate or to pursue
    testimony.
    26. Miranda Rights: Arrests. It is only in the context of a custodial inter-
    rogation that the Miranda safeguards are considered justified and neces-
    sary. The interrogation is not custodial unless a reasonable person would
    feel the restraint on freedom of movement of the degree associated with
    a formal arrest.
    27. Pleas: Sentences: Waiver: Appeal and Error. A voluntary guilty
    plea or plea of no contest does not waive alleged errors occurring at
    sentencing.
    28. Claims: Appeal and Error. Claims that could have been made on direct
    appeal are procedurally barred.
    29. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
    assistance of trial counsel could not have been made on direct appeal
    when appellate counsel was the same as trial counsel.
    30. Constitutional Law: Due Process: Trial: Judges. The right to an
    impartial judge is guaranteed under the Due Process Clauses of the U.S.
    and Nebraska Constitutions.
    31. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct,
    a judge must recuse himself or herself from a case if the judge’s impar-
    tiality might reasonably be questioned.
    32. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
    judge on the basis of bias or prejudice bears the heavy burden of over-
    coming the presumption of judicial impartiality.
    33. Judges: Recusal. Judicial recusal is required if a reasonable person
    who knew the circumstances of the case would question the judge’s
    - 72 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    impartiality under an objective standard of reasonableness, even though
    no actual bias or prejudice was shown.
    34. ____: ____. Judicial rulings alone almost never constitute a valid basis
    for a bias or partiality motion directed to a trial judge.
    35. ____: ____. The fact that the trial judge previously presided over other
    actions involving the parties and made rulings against one or another of
    the parties is insufficient to show bias.
    Appeal from the District Court for Sarpy County: Nathan
    B. Cox, Judge. Affirmed.
    Roger Jaeger, pro se.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    In an appeal from a motion for postconviction relief, the
    appellant challenges the district court’s denial of his motion
    without holding an evidentiary hearing. The appellant had
    alleged multiple instances of ineffective assistance of counsel
    and a violation of his Fifth Amendment right against self-
    incrimination. The appellant assigns that the district court erred
    in denying his motion without holding an evidentiary hearing
    and in not considering his reply to the State’s response to his
    motion for postconviction relief. We affirm.
    II. BACKGROUND
    Roger Jaeger, a middle school teacher, was discovered to
    possess child pornography after he took his laptop to a local
    computer shop for repairs. During the course of performing
    these repairs, the technician observed several hundred, if not
    thousands, of photographs and videos of pornography, sev-
    eral hundred of which were clearly child pornography. Law
    enforcement was contacted, and officers identified numerous
    files containing child pornography.
    - 73 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    A police report contained in the presentence investiga-
    tion report (PSI) reflects that after finding the files, officers
    obtained a search warrant and went to the school where Jaeger
    worked to execute it. Jaeger was present at the school, and the
    officers secured his electronic devices. Jaeger was escorted to
    a conference room at the school, where the officer read Jaeger
    his Miranda rights before questioning him.
    During the course of the interview, Jaeger admitted to
    viewing and obtaining child pornography for a long time
    and possessing thousands of images, with a preference for
    middle-school-aged and high-school-aged children. The officer
    confronted Jaeger with the fact that there were student year-
    book pictures mixed in with the child pornography and asked
    why they were there. Jaeger responded, “‘I do not know.’”
    He further responded, “‘[T]here were just a couple of years,
    just thought hey, I’ll keep track of these ones,’” and then
    he laughed. The police report indicates that Jaeger was not
    arrested until the conclusion of the interview.
    Jaeger was charged with six counts of possession of child
    pornography, each a Class IIA felony, in violation of 
    Neb. Rev. Stat. § 28-813.01
     (Reissue 2016).
    1. Plea Hearing
    Before trial, the parties informed the district court that a plea
    agreement had been reached. Pursuant to the agreement, Jaeger
    was to enter pleas of no contest to four counts of possession of
    child pornography and the State would dismiss the remaining
    two counts.
    Before accepting the plea agreement, the district court
    engaged in a colloquy with Jaeger which specifically included
    questions regarding whether there had been any threats or
    promises made to induce him to enter his pleas of no contest,
    to which Jaeger answered, “No.” Following the completion
    of the full colloquy and the State’s presentment of a support-
    ing factual basis, the district court found beyond a reasonable
    doubt that Jaeger understood the nature of the hearing and
    - 74 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    was alert and competent to plead. Ultimately, the district court
    accepted Jaeger’s no contest pleas to four counts of possession
    of child pornography.
    The district court ordered the PSI, which was to include a
    psychosexual evaluation. No objection was made. The court
    did not issue an order specifically compelling Jaeger to make
    any statements for the purposes of the PSI or psychosexual
    evaluation. The matter was scheduled for sentencing.
    2. Sentencing
    At the sentencing hearing, defense counsel advocated for
    Jaeger to receive probation. Defense counsel highlighted that
    this was a nonviolent offense and that other similar offenders
    in the county had been placed on probation. When discussing
    the psychosexual evaluation in the PSI, defense counsel noted
    the doctor who evaluated Jaeger believed he was being truthful
    and cooperative and found the “Good Life Treatment Model”
    could be completed under community supervision, because
    Jaeger was a low risk for sexual assault.
    Defense counsel further pointed out that the results of the
    “Static 99” evaluation found Jaeger was a low to moderate
    risk and the general criminal risk of recidivism was low to
    moderate; Jaeger had no criminal history; and the “LS/CMI
    domains” scored Jaeger very low on criminal history, medium
    in education and employment “because he can’t go back to
    his old job,” very low in the family and leisure and recreation
    categories, and low in the companions, procriminal attitude,
    and antisocial categories. Finally, counsel noted that the PSI
    stated it does not appear there would be any significant bar-
    riers to Jaeger’s participation in any community supervision
    services and highlighted Jaeger’s support in the community
    based upon the 15 to 20 character letters contained in the PSI.
    Defense counsel argued that Jaeger was classified as someone
    the community could supervise in a safe manner with addi-
    tional terms such as monitoring Jaeger’s electronics and voca-
    tional rehabilitation.
    - 75 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    The State argued that probation would promote a disrespect
    for the law. The State noted that Jaeger’s behavior had been
    ongoing for close to 20 years while employed as a teacher and
    that there were over 1,500 images found in his possession. It
    noted the probation interviewer’s description of Jaeger as “con-
    trolling and aggressive” during the PSI process.
    The district court stated it had reviewed the PSI and noted
    Jaeger’s lack of a criminal record. However, it also considered
    Jaeger’s statements to the probation interviewer, reflected in
    the PSI, indicating he did not feel like anyone had treated
    him fairly or justly. The district court took particular issue
    with a statement Jaeger made regarding teachers’ being held
    to an “impossible standard.” The court described as “absurd”
    Jaeger’s apparent belief that expecting teachers to refrain from
    possessing child pornography was too high of a standard to
    hold them to. The court observed that Jaeger’s statements,
    reflected in the PSI, contained various rationalizations justi-
    fying his behavior as not harmful and blaming others for his
    addiction and for getting caught. The court also reiterated the
    State’s concern that Jaeger had attempted to control the PSI
    process and that his behavior was aggressive. Finally, the court
    was concerned by Jaeger’s comment during the police inter-
    view about keeping track of the middle-school-aged children
    whose yearbook pictures were mixed in with his child pornog-
    raphy, which it found “chilling.”
    The court indicated it had considered all the appropriate sen-
    tencing factors, the PSI, and the statements that were received.
    The court found that Jaeger was not a suitable candidate for
    probation and that anything less than a statutory sentence
    would depreciate the seriousness of the offense, promote dis-
    respect for the law, and “would potentially place at jeopardy
    children in our community.”
    The court sentenced Jaeger to concurrent terms of 10 to
    20 years’ imprisonment on each count and ordered Jaeger
    to register as a sex offender pursuant to the Sex Offender
    Commitment Act.
    - 76 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    3. Direct Appeal
    Jaeger’s trial counsel filed a timely notice of appeal alleging
    Jaeger’s sentences were excessive. The appeal was summarily
    affirmed by the Nebraska Court of Appeals.
    4. Motion for Postconviction Relief
    Subsequently, Jaeger, pro se, filed a verified motion for
    postconviction relief. In the motion, Jaeger alleged, first, that
    counsel was ineffective in failing to “‘make reasonable inves-
    tigations’” as to Jaeger’s claim that the interviewing officer
    did not read him his Miranda rights until after he was inter-
    viewed. Jaeger claimed counsel refused to investigate when the
    Miranda rights were actually read to him as Jaeger suggested;
    nor would counsel “enter a [m]otion to [s]uppress the inter-
    view.” Jaeger asserted that the failure to investigate prejudiced
    him “by accepting the police report as fact when there were
    doubts about the accuracy” and left him no option other than to
    enter into the plea agreement.
    Second, Jaeger described that defense counsel had advised
    him to accept the plea agreement because (1) the prosecutor
    could charge a separate count of possession for each image
    found and that he was fortunate to only be charged with six
    counts and (2) the State could turn the matter over to the fed-
    eral authorities if he did not accept the plea agreement and he
    “[stood] a better chance” in state court. Jaeger asserted that in
    the email chain between the prosecutor and defense counsel,
    which he attached to the motion, there was no mention of turn-
    ing over the case to federal prosecutors or additional charges.
    He then cited the proposition that pleas induced by promises or
    threats are void and concluded that if the prosecution’s threats
    were made, they were not on record; if the threats were not
    made, he was coerced into a plea agreement by counsel’s erro-
    neous advice.
    Third, Jaeger alleged counsel was ineffective for not pur-
    suing Jaeger’s request to attempt to recuse the trial judge as
    biased against him. Jaeger supported his assertion of bias by
    pointing to the court’s denial of his bond reduction request,
    - 77 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    the court’s grant of expanded media coverage, and events that
    occurred in a separate civil matter. Jaeger asserted his ­counsel
    told him that the judge would not recuse himself and that he
    stood a better chance with this judge than another. Jaeger stated,
    “The [j]udge’s behavior showed a pattern of prejudice against
    [Jaeger] and crossed over to actually acting as the [p]rosecu-
    tion, but [c]ounsel took no action in these situations.”
    Fourth, Jaeger alleged multiple instances of ineffective
    assistance of counsel at the sentencing hearing. Jaeger alleged
    counsel stated Jaeger would have a sex offender registration
    period of 25 years even though he was arguing for a sen-
    tence of probation that would carry only a 15-year registra-
    tion period; counsel did not correct prosecution’s inaccurate
    statement about Jaeger’s length of time viewing underage
    pornography; and counsel did not protest to Jaeger’s “being
    shackled hand and foo[t] while wearing a county orange uni-
    form in a televised sentencing.” Jaeger asserted that “[t]hese
    behaviors show counsel was aware [Jaeger] would be serving
    more than a 1 year prison sentence prior to sentencing and was
    more concerned with appeasing the court than truly advocating
    for [him].”
    Fifth, Jaeger alleged counsel was ineffective in his direct
    appeal by giving Jaeger “no say” in what issues would be
    raised on appeal. He cited to Jones v. Barnes 1 for the proposi-
    tion that the client must be allowed to decide what issues are
    presented. Jaeger described that he had sent counsel a letter
    stating all the inaccuracies he could remember, but counsel
    claimed “he could only challenge abuse of discretion due to the
    plea deal and the [j]udge’s rigid implementation of procedure.”
    Further, Jaeger alleged counsel did not meet with him while
    drafting the appeal nor did Jaeger see a copy of the appeal until
    after it had been submitted.
    Lastly, Jaeger alleged the court had ordered him to submit
    to and participate in the PSI and psychosexual evaluation
    1
    Jones v. Barnes, 
    463 U.S. 745
    , 
    103 S. Ct. 3308
    , 
    77 L. Ed. 2d 987
     (1983).
    - 78 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    without Jaeger’s having sufficient awareness of the likely con-
    sequences of any statements made. He asserted that his pleas
    of no contest did not operate as a total waiver of his privilege
    against self-incrimination and that his Fifth Amendment rights
    were violated by the court’s use of his statements in the PSI
    against him at sentencing.
    5. State’s Response to Jaeger’s Motion
    The State filed a response to Jaeger’s motion for postconvic-
    tion relief, arguing Jaeger’s motion should be denied without
    an evidentiary hearing for several reasons. These included the
    argument that Jaeger had failed to articulate facts showing he
    was entitled to relief.
    6. Jaeger’s Response
    On March 24, 2021, Jaeger filed an unverified responsive
    document addressing some of the positions argued by the State
    entitled “Defendant’s Response to State’s Response to Motion
    for Postconviction Relief.” In this filing, Jaeger purported to
    set forth “Reasons to Grant an Evidentiary Hearing.” In addi-
    tion to legal arguments, Jaeger attempted to supplement the
    factual allegations of his motion for postconviction relief, in
    order to address the State’s assertion of inadequate allegations
    to warrant an evidentiary hearing.
    Regarding his claim that counsel failed to investigate when
    the Miranda advisement was given, Jaeger stated that “[h]ad
    counsel investigated and found the police report included infor-
    mation prior to the Miranda [r]ights,” Jaeger “would have
    continued his plea of [n]ot [g]uilty, forcing the State to prove
    the files on a computer that was purchased refurbished and
    a back-up drive purchased at a garage sale actually belonged
    to [him].”
    Regarding his claim that counsel’s erroneous advice coerced
    him into accepting the State’s first plea offer, Jaeger added the
    allegation that his “law library research of [f]ederal charges
    revealed they would only have one charge for multiple files
    with points added for the number of images, resulting in a
    - 79 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    36 to 60 month sentence.” Thus, in accepting the plea agree-
    ment, he had relied on counsel’s erroneous advice about being
    better off in a state court.
    7. Order on Motion for
    Postconviction Relief
    The district court denied postconviction relief without an
    evidentiary hearing. In its order, the court did not mention the
    responsive document filed by Jaeger. It summarized the allega-
    tions of the motion as one claim that the PSI violated Jaeger’s
    right against self-incrimination and five claims of ineffective
    assistance by (1) failing to investigate when law enforcement
    read him his Miranda rights; (2) “advising [Jaeger] to plead
    because the possibility of additional charges or his case being
    taken federally” was not discussed in the emails pertaining to
    his plea agreement; (3) stating during sentencing that the sex
    offender registration period would be 25 years, failing to cor-
    rect a statement by the prosecutor during sentencing, and fail-
    ing to object to Jaeger’s being shackled at the sentencing hear-
    ing; (4) failing to do anything in response to the trial court’s
    bias; and (5) failing to meet with Jaeger and “allowing him to
    dictate the issues to be argued when drafting the appeal.”
    The court found that Jaeger failed to allege how trial coun-
    sel’s actions fell below an objective standard of reasonableness
    and how the alleged deficient performance actually prejudiced
    the case. The court also described that Jaeger’s claims were
    merely conclusory, with no supporting facts, and that any
    attack on his convictions, with the exception of claims that his
    pleas were involuntary or the result of ineffective assistance of
    counsel, had been waived.
    Jaeger timely appealed the district court’s order denying
    postconviction relief to the Court of Appeals, and we moved
    the case to our docket.
    III. ASSIGNMENTS OF ERROR
    Jaeger assigns that the district court erred in (1) not hold-
    ing an evidentiary hearing on the issues raised in his motion
    - 80 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    for postconviction relief and (2) not considering his response
    to the State’s response to his motion for postconviction relief.
    IV. 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. 2
    [2] 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 inde-
    pendent of the lower court’s ruling. 3
    V. ANALYSIS
    Jaeger asserts, broadly, that the court erred in denying post-
    conviction relief without first conducting an evidentiary hear-
    ing. And he argues that this error occurred, in part, because the
    court erroneously ignored the additional allegations made in
    his responsive filing. Before addressing the specific claims of
    postconviction relief that Jaeger believes the court should have
    held an evidentiary hearing on, we set forth the general legal
    principles governing our analysis of appeals from the denial of
    postconviction claims without an evidentiary hearing.
    [3-5] The district court must grant an evidentiary hearing
    to resolve the claims in a postconviction motion when the
    motion contains factual allegations which, if proved, constitute
    an infringement of the defendant’s rights under the state or
    federal Constitution. 4 However, the allegations in a motion for
    postconviction relief must be sufficiently specific for the dis-
    trict court to make a preliminary determination as to whether
    an evidentiary hearing is justified. 5 An evidentiary hearing is
    2
    State v. Munoz, 
    309 Neb. 285
    , 
    959 N.W.2d 806
     (2021).
    3
    
    Id.
    4
    See State v. Britt, 
    310 Neb. 69
    , 
    963 N.W.2d 533
     (2021).
    5
    State v. Henderson, 
    301 Neb. 633
    , 
    920 N.W.2d 246
     (2018).
    - 81 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    not required on a motion for postconviction relief 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. 6
    [6,7] When a district court denies postconviction relief
    without conducting an evidentiary hearing, an appellate court
    determines de novo whether the petitioner has alleged facts
    that would support the claim and, if so, whether the files and
    records affirmatively show that he or she is entitled to no
    relief. 7 The appellate court does not conduct this review sua
    sponte, however; as with all appeals, the alleged errors of the
    lower court must be both specifically assigned and specifi-
    cally argued in the brief of the party asserting the errors to be
    considered by the appellate court. 8 The appellate court will not
    scour the record on appeal to understand unclear arguments or
    find support for broad conclusions. 9
    [8,9] Furthermore, the appellate court will not consider
    allegations not presented to the district court for disposition
    through the defendant’s verified motion for postconviction
    relief or passed upon by the postconviction court. 10 Except
    for instances of plain error, 11 only those issues both raised or
    passed upon below and specifically assigned and specifically
    argued on appeal will be considered by the appellate court.
    6
    State v. Munoz, 
    supra note 2
    .
    7
    See 
    id.
    8
    See State v. McGuire, 
    299 Neb. 762
    , 
    910 N.W.2d 144
     (2018).
    9
    See In re App. No. C-4973 of Skrdlant, 
    305 Neb. 635
    , 
    942 N.W.2d 196
    (2020).
    10
    See, State v. Stelly, 
    308 Neb. 636
    , 
    955 N.W.2d 729
     (2021); State v. Munoz,
    
    supra note 2
    ; State v. Deckard, 
    272 Neb. 410
    , 
    722 N.W.2d 55
     (2006).
    11
    See, e.g., State v. Childs, 
    309 Neb. 427
    , 
    960 N.W.2d 585
     (2021).
    - 82 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    1. Responsive Filing
    [10] The defendant’s verified motion for postconviction
    relief is the operative filing before the district court in con-
    sidering whether to grant an evidentiary hearing. It is also
    the filing that the appellate court is limited to in determining
    de novo if the petitioner has alleged facts that would support
    the claim. 12
    [11] The operative motion in this case did not include the
    unverified motion entitled “Defendant’s Response to State’s
    Response to Motion for Postconviction Relief.” In State v.
    Thorpe, 13 we explained that a postconviction court does not err
    by failing to consider claims not made in the operative motion
    for postconviction relief, which are instead raised in other fil-
    ings. In Thorpe, the filing at issue was referred to as an “oppo-
    sition to the State’s motion to dismiss,” but the substance of
    Jaeger’s responsive filing was similar.
    [12] Jaeger made the filing in opposition to the State’s
    response setting forth reasons the State believed the motion
    should be denied without an evidentiary hearing, and Jaeger did
    not seek leave to amend his operative motion for postconvic­
    tion relief. Assuming the district court could have considered
    Jaeger’s unverified responsive filing as a motion for leave to
    amend, it did not, and the operative motion was not in fact
    amended. In Nebraska, a pro se party is held to the same stan-
    dards as one who is represented by counsel. 14 The district court
    did not err in viewing the responsive filing as no more than
    what it purported to be and in acting accordingly.
    Because the responsive filing was not part of the operative
    motion, we find no merit to Jaeger’s assertion that the district
    court erred in failing to consider the additional allegations of
    his responsive filing when determining whether to grant an
    evidentiary hearing. Likewise, in considering the merits of
    12
    See State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
     (2015).
    13
    
    Id.
    14
    State v. Huston, 
    291 Neb. 708
    , 
    868 N.W.2d 766
     (2015).
    - 83 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    Jaeger’s arguments on appeal, we will not consider allegations
    that Jaeger did not present below through his operative motion
    for postconviction relief.
    With this in mind, we turn to Jaeger’s more specific argu-
    ments that the district court erred in finding the allegations of
    the verified motion for postconviction relief did not warrant an
    evidentiary hearing.
    2. Pleas
    [13,14] We first address Jaeger’s postconviction attacks on
    his convictions, on the grounds that his pleas were the result of
    ineffective assistance of counsel. Generally, a voluntary guilty
    plea or plea of no contest waives all defenses to a criminal
    charge. 15 Thus, when a defendant pleads guilty or no contest,
    the defendant is limited to challenging whether the plea was
    understandingly and voluntarily made and whether it was the
    result of ineffective assistance of counsel. 16
    [15,16] A motion for postconviction relief cannot be used to
    secure review of issues that were or could have been litigated
    on direct appeal, 17 but when, as here, the defendant is repre-
    sented both at trial and on direct appeal by the same counsel,
    the defendant’s first opportunity to assert ineffective assistance
    of trial counsel is in a motion for postconviction relief. 18
    [17-20] To prevail on a claim of ineffective assistance of
    counsel, the defendant must show that counsel’s performance
    was deficient and that this deficient performance actually prej-
    udiced his or her defense. 19 The voluntariness of a plea entered
    upon the advice of counsel depends on whether the advice
    was within the range of competence demanded of attorneys
    15
    State   v. Anderson, 
    305 Neb. 978
    , 
    943 N.W.2d 690
     (2020).
    16
    
    Id.
    17
    State   v. Hessler, 
    288 Neb. 670
    , 
    850 N.W.2d 777
     (2014).
    18
    State   v. Reames, 
    308 Neb. 361
    , 
    953 N.W.2d 807
     (2021).
    19
    State   v. Abdulkadir, 
    293 Neb. 560
    , 
    878 N.W.2d 390
     (2016).
    - 84 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    in criminal cases. 20 In determining whether a trial counsel’s
    performance was deficient, there is a strong presumption that
    counsel acted reasonably. 21 In order to satisfy the prejudice
    requirement in the context of a plea, the defendant must show
    that his or her counsel erred and there is a reasonable probabil-
    ity that but for counsel’s errors, the defendant would not have
    pled and would have insisted upon going to trial. 22
    Jaeger makes two arguments that his plea was the result
    of ineffective assistance of counsel. He argues, first, that his
    plea was the result of defense counsel’s deceptive tactics with
    respect to the possibility of federal prosecution. Second, he
    argues that but for counsel’s failure to investigate the timing of
    the Miranda advisement during the police interview, he would
    not have pled to the charges.
    (a) Possibility of Federal Prosecution
    The district court did not err in denying Jaeger’s postcon-
    viction claim that his pleas were the product of counsel’s
    advisement of the possibility of federal prosecution. The claim
    set forth in the verified motion was poorly articulated, but
    reasonably understood as asserting that because the attached
    emails failed to reflect the prosecution affirmatively threatened
    to turn the case over to federal officials, his pleas were the
    product of counsel’s misrepresentations as to a threat by the
    prosecution inducing his pleas. Alternatively, if the threat was
    made, Jaeger asserted his pleas were rendered involuntary by
    virtue of it.
    [21] We observe that in the plea colloquy, Jaeger denied his
    pleas were the product of any threats. But even if the motion
    raised a factual question as to whether the prosecution made
    an affirmative threat to turn the case over to federal prosecu-
    tors, a finding that such a threat was made would not have led
    20
    State v. Reddick, 
    230 Neb. 218
    , 
    430 N.W.2d 542
     (1988).
    21
    State v. Carlson, 
    260 Neb. 815
    , 
    619 N.W.2d 832
     (2000).
    22
    
    Id.
    - 85 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    to a finding that Jaeger’s postconviction claim had merit. A
    threat or promise of illegal action may invalidate a plea, but a
    threat to prosecute when the facts warrant prosecution is not
    coercive such that a subsequent plea is involuntary. 23 It is not
    illegal for a state prosecutor to drop a case and refer it instead
    to federal prosecutors. 24 If such a threat were made, it would
    not have invalidated the voluntariness of Jaeger’s pleas.
    [22] If the State, on the other hand, did not make such a
    threat, it would not mean, under the facts alleged, that Jaeger’s
    pleas were the result of ineffective assistance of counsel.
    Jaeger did not assert in his motion that counsel told him the
    prosecution was affirmatively making such threats. Instead,
    he alleged counsel told him “if the first plea offering was
    not accepted, [p]rosecution could turn the whole case over to
    [f]ederal [p]rosecutors, and [Jaeger] stands a better chance in
    the [d]istrict [c]ourt.” Jaeger did not allege counsel was incor-
    rect in stating that the prosecution had the ability to turn the
    case over to federal prosecutors and that he stood a better
    chance with a State prosecution—or that a lawyer of ordinary
    training and skill in the area would not have so believed. In
    other words, Jaeger alleged insufficient facts to demonstrate
    deficiency. Counsel’s performance is deficient when it objec-
    tively does not equal that of a lawyer with ordinary training
    and skill in criminal law in the area. 25
    Thus, we agree with the district court that the verified
    motion did not contain factual allegations pertaining to the
    threat (or lack thereof) of federal prosecution, which, if proved,
    would constitute an infringement of Jaeger’s constitutional
    rights rendering his convictions void or voidable.
    23
    State v. Robbins, 
    200 Neb. 723
    , 
    265 N.W.2d 226
     (1978).
    24
    See, U.S. v. Williams, 
    47 F.3d 658
     (4th Cir. 1995); U.S. v. Allen, 
    954 F.2d 1160
     (6th Cir. 1992); U.S. v. Gray, 
    382 F. Supp. 2d 898
     (E.D. Mich.
    2005).
    25
    See State v. Malone, 
    308 Neb. 929
    , 
    957 N.W.2d 892
     (2021).
    - 86 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    (b) Failure to Investigate Timing
    of Miranda Advisement
    With respect to the allegation that counsel was deficient
    by failing to investigate when Jaeger was given his Miranda
    advisement, Jaeger fails to articulate on appeal any support
    for his conclusory statement that he would not have pled to
    the charges but for this allegedly deficient failure to investi-
    gate. He does not argue that counsel was ineffective by failing
    to move to suppress his statements made during the police
    interview. He does not even assert on appeal that the Miranda
    warning was not given until the conclusion of the interview.
    Jaeger’s argument is vague and conclusory, and we are not
    compelled to address it.
    [23,24] But even if we generously supplement Jaeger’s argu-
    ment in his appellate brief with the allegations made in his
    verified motion, it would not change the result of this appeal.
    As a matter of law, counsel cannot be ineffective for failing
    to raise a meritless argument to the trial court. 26 Relatedly,
    the viability of any defense goes to the likelihood of whether
    a rational defendant would have insisted on going to trial. 27
    Jaeger’s motion for postconviction relief failed to assert in
    even a conclusory manner that a motion to suppress would
    have had merit. More importantly, Jaeger did not raise in his
    verified motion sufficient specific factual allegations that, if
    proved true, could demonstrate a motion to suppress would
    have been meritorious.
    [25] Jaeger did not allege what counsel could have found
    during an investigation, which would have supported Jaeger’s
    contention that the Miranda advisement was not given until
    after the interview and would have refuted the officer’s state-
    ment in the police report that the advisement was given before
    the interview commenced. An evidentiary hearing will not
    26
    See State v. Schwaderer, 
    296 Neb. 932
    , 
    898 N.W.2d 318
     (2017).
    27
    See State v. Yos-Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
     (2011).
    - 87 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    be warranted based only upon the prisoner’s legal conclusions
    about the significance of vaguely asserted failures to investi-
    gate or to pursue testimony. 28
    [26] Also, Jaeger did not allege facts that would demonstrate
    he was in custody at the time of the interview. And it is only
    in the context of a custodial interrogation that the Miranda
    safeguards are considered justified and necessary. The inter-
    rogation is not custodial unless a reasonable person would feel
    the restraint on freedom of movement of the degree associated
    with a formal arrest. 29 Without further factual allegations per-
    taining to custody, it can only be ascertained from the record
    that the police interview was conducted in a conference room
    at the school and before Jaeger was formally placed under
    arrest. This is insufficient to establish that the interview was a
    custodial interrogation.
    We have previously described a postconviction motion that
    lacks the specific factual allegations necessary to support the
    claims made as no more than a fishing expedition for evidence
    that might aid in obtaining postconviction relief and therefore
    insufficient to warrant an evidentiary hearing. 30 For Jaeger’s
    motion to warrant an evidentiary hearing on counsel’s failure
    to raise a Miranda claim, the motion needed to allege spe-
    cific facts supporting a finding that, as a threshold matter, the
    Miranda safeguards were required. It did not.
    The district court did not err in finding that the allegations
    of counsel’s failure to investigate when the Miranda advise-
    ment was given did not warrant an evidentiary hearing.
    3. Sentencing
    [27-29] We next consider Jaeger’s claims in relation to
    his sentencing. A voluntary guilty plea or plea of no contest
    28
    See, e.g., State v. Abdulkadir, 
    supra note 19
    ; State v. Banks, 
    289 Neb. 600
    ,
    
    856 N.W.2d 305
     (2014).
    29
    See State v. Rogers, 
    277 Neb. 37
    , 
    760 N.W.2d 35
     (2009).
    30
    See State v. Seberger, 
    284 Neb. 40
    , 
    815 N.W.2d 910
     (2012).
    - 88 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    does not waive alleged errors occurring at sentencing; nev-
    ertheless, claims that could have been made on direct appeal
    are procedurally barred. 31 Claims of ineffective assistance of
    trial counsel could not have been made on direct appeal when
    appellate counsel was the same as trial counsel. 32
    (a) Fifth Amendment
    Claims of trial error, on the other hand, could have been
    made on direct appeal. Jaeger’s first argument is that the court
    erred in denying him an evidentiary hearing on the court’s
    alleged violation of his Fifth Amendment right against self-
    incrimination by ordering that the psychosexual evaluation
    be included in the PSI. Although Jaeger notes in his appellate
    brief that defense counsel did not object at sentencing to the
    court’s reliance upon any of the statements from the psycho­
    sexual evaluation, there was no indication in the verified
    motion that his Fifth Amendment claim was tied to a claim
    of ineffective assistance of counsel, either at sentencing or
    on appeal. The district court’s description of this claim rec-
    ognized that fact. Because Jaeger’s Fifth Amendment claim is
    not a claim of ineffective assistance of counsel, it could have
    been brought on direct appeal and it is procedurally barred.
    The postconviction court did not err in denying it without an
    evidentiary hearing.
    (b) Failure to Move to Recuse
    [30,31] Jaeger’s second argument with respect to sentencing
    is that the district court erred in denying him an evidentiary
    hearing on his claim that defense counsel was ineffective by
    failing to move to recuse the trial judge as being biased against
    him. The right to an impartial judge is guaranteed under the
    Due Process Clauses of the U.S. and Nebraska Constitutions. 33
    31
    See, State v. Wilkinson, 
    293 Neb. 876
    , 
    881 N.W.2d 850
     (2016); State v.
    York, 
    273 Neb. 660
    , 
    731 N.W.2d 597
     (2007).
    32
    See State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
     (2017).
    33
    State v. Fuentes, 
    302 Neb. 919
    , 
    926 N.W.2d 63
     (2019).
    - 89 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    Under the Nebraska Revised Code of Judicial Conduct, a
    judge must recuse himself or herself from a case if the judge’s
    impartiality might reasonably be questioned. 34 Under Neb. Rev.
    Code of Judicial Conduct § 5-302.11(A)(1), such instances in
    which the judge’s impartiality might reasonably be questioned
    specifically include where “[t]he judge has a personal bias or
    prejudice concerning a party or a party’s lawyer . . . .”
    [32,33] A defendant seeking to disqualify a judge on the
    basis of bias or prejudice bears the heavy burden of overcom-
    ing the presumption of judicial impartiality. 35 Judicial recusal
    is required if a reasonable person who knew the circumstances
    of the case would question the judge’s impartiality under an
    objective standard of reasonableness, even though no actual
    bias or prejudice was shown. 36
    In support of his conclusion that the trial judge was biased,
    Jaeger alleged in his motion that the judge had (1) allowed
    expanded news media coverage at his sentencing hearing, (2)
    not allowed him to appear at a civil nonharassment hearing
    while he was in jail, (3) issued the nonharassment order to the
    accusing party, and (4) taken a recess during a bond reduction
    hearing to print out the nonharassment order, to prove there
    was a complaint against him. On appeal, Jaeger generally
    refers to a pattern of behavior by the judge showing prejudice,
    but only highlights the judge’s not allowing him to appear as
    his own counsel at the nonharassment hearing and taking a
    recess during the bond review. He asserts these actions made
    the judge both accuser and adjudicator.
    [34,35] Judicial rulings alone almost never constitute a valid
    basis for a bias or partiality motion directed to a trial judge. 37
    The fact that the trial judge previously presided over other
    actions involving the parties and made rulings against one
    34
    State v. Buttercase, 
    296 Neb. 304
    , 
    893 N.W.2d 430
     (2017).
    35
    
    Id.
    36
    See 
    id.
    37
    
    Id.
    - 90 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    or another of the parties is insufficient to show bias. 38 We agree
    with the district court that the alleged facts failed to show
    actual bias or reason to question the judge’s impartiality under
    an objective standard of reasonableness. As such, counsel
    could not have been deficient in failing to move for the judge
    to recuse himself. The district court did not err in denying this
    claim of ineffective assistance of counsel.
    (c) Failure to Advocate
    Jaeger’s last argument with respect to sentencing is that
    defense counsel was ineffective by arguing for probation. He
    asserts counsel knew Jaeger was likely to be sentenced to a
    period of incarceration and concludes that, in arguing for pro-
    bation, defense counsel failed to advocate for him and showed
    prior knowledge of the sentences to be instituted.
    We observe that Jaeger did not specifically allege in his
    motion for postconviction relief that counsel was ineffective by
    arguing for probation, though Jaeger did allege defense counsel
    knew he would be serving at least a year in prison and Jaeger
    generally alleged a lack of advocacy. But the Class IIA felonies
    for which Jaeger was convicted carried no minimum sentence.
    The only supporting facts for the conclusory statement that
    counsel knew Jaeger would be sentenced to incarceration were
    that counsel misstated the sex offender registration period,
    failed to correct an alleged misstatement by the prosecution
    about the length of time Jaeger had been viewing underage
    pornography, and did not object to Jaeger’s being shackled at
    the sentencing hearing. These allegations do not support the
    inference that counsel knew Jaeger would be sentenced to a
    period of incarceration.
    In any event, we find no support for Jaeger’s argument that
    defense counsel failed to advocate for him at sentencing. The
    record shows that counsel advocated strenuously on Jaeger’s
    behalf, citing to numerous facts specific to Jaeger, which
    counsel reasonably believed might sway the district court to
    38
    See 
    id.
    - 91 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    impose sentences of probation. Thus, the record affirmatively
    refutes this claim of ineffective assistance of counsel at sen-
    tencing, and the district court did not err in denying it without
    an evidentiary hearing.
    (d) Unidentified General Claim
    Jaeger makes a vague statement in his appellate brief that
    he made “several claims of ineffectiveness at the sentencing
    hearing that prejudiced [him] before the court and were used to
    justify the excessive sentence imposed.” 39 We find this insuf-
    ficient to specifically raise on appeal any additional claims of
    ineffective assistance of counsel at sentencing.
    4. Direct Appeal
    Lastly, Jaeger argues the district court erred by failing to
    have an evidentiary hearing on his allegations that defense
    counsel did not meet with him to discuss what would be raised
    on direct appeal, disregarded the issues Jaeger had informed
    counsel of in mail correspondence, and did not give Jaeger the
    opportunity to review the appeal before it was submitted. Since
    Jaeger’s trial counsel brought the direct appeal, a postconvic-
    tion motion was Jaeger’s first opportunity to make this claim
    and it was not procedurally barred.
    In his motion for postconviction relief, Jaeger alleged he
    had sent counsel a letter stating all the inaccuracies he could
    remember, but counsel “claimed he could only challenge abuse
    of discretion due to the plea deal and the [j]udge’s rigid imple-
    mentation of procedure.” Jaeger also alleged counsel did not
    meet with him while the appeal was being drafted, and Jaeger
    did not see a copy of the appeal until after it was submitted.
    Jaeger did not allege that he was unable to communicate
    with counsel at all. Indeed, the alleged facts reflected com-
    munications between Jaeger and his counsel. Rather, Jaeger
    claimed these alleged facts demonstrated that he “was given
    no say in what [c]ounsel would appeal and did not have any
    39
    Brief for appellant at 9.
    - 92 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    part in formulating or reviewing the appeal” and violated the
    mandate that the client be allowed to decide what issues are
    presented on appeal—which he asserted was stated by the U.S.
    Supreme Court in Jones v. Barnes. 40
    But Jones does not stand for this proposition. To the con-
    trary, in Jones, the Supreme Court expressly disapproved of a
    per se rule that appellate counsel must raise every nonfrivolous
    issue requested by the client. 41 Instead, the Court recognized
    the “superior ability of trained counsel in the examination into
    the record, research of the law, and marshalling of arguments
    on [the appellant’s] behalf.” 42
    Thus, the law would not support a finding of ineffective
    assistance of counsel based on Jaeger’s general allegation that
    counsel failed to press on appeal the issues Jaeger requested.
    And although Jones does not mean that the strategic decisions
    of appellate counsel are not subject to examination, 43 Jaeger
    did not specify what issues, precisely, he had asked counsel
    to pursue.
    The facts here are similar to those in State v. Dean, 44
    wherein we held the district court did not err in failing to grant
    the petitioner an evidentiary hearing upon the allegations that
    (1) counsel did not raise on direct appeal any of the issues he
    requested; (2) the petitioner did not know the contents of the
    appeal until it was filed; (3) the petitioner met only once with
    counsel after the conviction and before the appeal, despite
    counsel’s promise to meet again; and (4) counsel did not
    return his calls and filed an appellate brief without his notice
    or approval. We explained that without allegations as to what
    specific assignments of error the petitioner had wished for
    40
    Jones v. Barnes, 
    supra note 1
    .
    41
    See 
    id.
    42
    
    Id.,
     
    463 U.S. at 751
     (internal quotation marks omitted).
    43
    See State v. Dean, 
    264 Neb. 42
    , 
    645 N.W.2d 528
     (2002).
    44
    
    Id.
    - 93 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. JAEGER
    Cite as 
    311 Neb. 69
    counsel to present in the direct appeal, the motion for postcon-
    viction relief presented mere conclusions of fact and law.
    The district court did not err in denying without an eviden-
    tiary hearing Jaeger’s claim that counsel was ineffective on
    direct appeal.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court denying, without an evidentiary hearing, Jaeger’s motion
    for postconviction relief.
    Affirmed.