State v. Newman , 300 Neb. 770 ( 2018 )


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    10/19/2018 01:12 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. NEWMAN
    Cite as 
    300 Neb. 770
    State of Nebraska, appellee, v.
    Terrell E. Newman, appellant.
    ___ N.W.2d ___
    Filed August 17, 2018.   No. S-17-842.
    1.	 Appeal and Error. The purpose of an appellant’s reply brief is to
    respond to the arguments the appellee has advanced against the errors
    assigned in the appellant’s initial brief.
    2.	 ____. An assignment of error raised for the first time in a reply brief is
    untimely and will not be considered by an appellate court.
    3.	 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
    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.	 Postconviction: Constitutional Law: Judgments. Postconviction relief
    is available to a prisoner in custody under sentence who seeks to be
    released on the ground that there was a denial or infringement of his or
    her constitutional rights such that the judgment was void or voidable.
    5.	 Postconviction: Constitutional Law: Proof. In a motion for postcon-
    viction relief, the defendant must allege facts which, if proved, consti-
    tute a denial or violation of his or her rights under the U.S. or Nebraska
    Constitution, causing the judgment against the defendant to be void
    or voidable.
    6.	 ____: ____: ____. A trial 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 Nebraska or federal Constitution.
    7.	 Postconviction: Proof. If a postconviction motion alleges only conclu-
    sions of fact or law, or if the records and files in a case affirmatively
    show the defendant is entitled to no relief, the court is not required to
    grant an evidentiary hearing.
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    STATE v. NEWMAN
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    8.	 ____: ____. In a postconviction proceeding, an evidentiary hearing is
    not required (1) when the motion does not contain factual allegations
    which, if proved, constitute an infringement of the movant’s consti-
    tutional rights; (2) when the motion alleges only conclusions of fact
    or law; or (3) when the records and files affirmatively show that the
    defend­ant is entitled to no relief.
    9.	 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.
    10.	 ____: ____: ____. Claims of ineffective assistance of appellate counsel
    may be raised for the first time on postconviction review.
    11.	 Effectiveness of Counsel: Appeal and Error. When a claim of inef-
    fective assistance of appellate counsel is based on the failure to raise
    a claim on direct appeal of ineffective assistance of trial counsel, an
    appellate court will first look at whether trial counsel was ineffective
    under the test in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). If trial counsel was not ineffective, then
    the defendant was not prejudiced by appellate counsel’s failure to raise
    the issue.
    12.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the defendant must show that his
    or her counsel’s performance was deficient and that this deficient per­
    formance actually prejudiced the defendant’s defense.
    13.	 ____: ____. To show that counsel’s performance was deficient under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the defendant must show counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in criminal law in
    the area.
    14.	 Effectiveness of Counsel: Proof: Words and Phrases: Appeal
    and Error. To show prejudice under the prejudice component of the
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), test, the defendant must demonstrate a reasonable probabil-
    ity that but for his or her counsel’s deficient performance, the result of
    the proceeding would have been different. A reasonable probability does
    not require that it be more likely than not that the deficient performance
    altered the outcome of the case; rather, the defendant must show a prob-
    ability sufficient to undermine confidence in the outcome.
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    STATE v. NEWMAN
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    300 Neb. 770
    15.	 Effectiveness of Counsel: Proof. The two prongs of the ineffective
    assistance of counsel test under Strickland v. Washington, 
    466 U.S. 668
    ,
    
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), deficient performance and
    prejudice, may be addressed in either order.
    16.	 Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
    duty to make reasonable investigations or to make a reasonable decision
    that makes particular investigations unnecessary.
    17.	 Trial: Effectiveness of Counsel: Evidence. A reasonable strategic deci-
    sion to present particular evidence, or not to present particular evidence,
    will not, without more, sustain a finding of ineffective assistance of
    counsel. Strategic decisions made by trial counsel will not be second-
    guessed so long as those decisions are reasonable.
    18.	 Rules of Evidence. Neb. Rev. Stat. § 27-901(1) (Reissue 2016) does not
    impose a high hurdle for authentication or identification.
    19.	 Rules of Evidence: Proof. A proponent of evidence is not required to
    conclusively prove the genuineness of the evidence or to rule out all
    probabilities inconsistent with authenticity. Rather, if the proponent’s
    showing is sufficient to support a finding that the evidence is what it
    purports to be, the proponent has satisfied the requirements of Neb. Rev.
    Stat. § 27-901(1) (Reissue 2016).
    20.	 Sentences. If there is a discrepancy between the oral pronouncement
    of a valid sentence and the later written order, the oral pronouncement
    controls calculation of the prison term.
    21.	 Rules of Evidence: Juries: Testimony: Affidavits. Neb. Rev. Stat.
    § 27-606(2) (Reissue 2016) prohibits a juror from testifying as to any
    matter or statement occurring during the course of the jury’s delibera-
    tions. Thus, a juror’s affidavit may not be used to impeach a verdict on
    the basis of jury motives, methods, misunderstanding, thought proc­
    esses, or discussions during deliberations.
    22.	 Postconviction: Effectiveness of Counsel: Proof. A petitioner’s post-
    conviction claims that his or her defense counsel was ineffective in fail-
    ing to investigate possible defenses are too speculative to warrant relief
    if the petitioner fails to allege what exculpatory evidence the investiga-
    tion would have procured and how it would have affected the outcome
    of the case.
    23.	 Postconviction: Constitutional Law. A claim of actual innocence may
    be a sufficient allegation of a constitutional violation under the Nebraska
    Postconviction Act.
    24.	 Postconviction: Evidence. The essence of a claim of actual innocence
    is that the State’s continued incarceration of such a petitioner without an
    opportunity to present newly discovered evidence is a denial of proce-
    dural or substantive due process.
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    STATE v. NEWMAN
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    25.	 Postconviction: Evidence: Presumptions: Proof. The threshold to
    entitle a prisoner to an evidentiary hearing on a postconviction claim of
    actual innocence is extraordinarily high. Such a petitioner must make a
    strong demonstration of actual innocence, because after a fair trial and
    conviction, the presumption of innocence vanishes.
    Appeal from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed in part, and in part reversed and
    remanded with directions.
    Stuart J. Dornan and Jason E. Troia, of Dornan, Troia,
    Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
    H all, District Judge.
    Stacy, J.
    A jury found Terrell E. Newman guilty of two counts of
    first degree murder, three counts of use of a deadly weapon to
    commit a felony, attempted intentional manslaughter, and pos-
    session of a deadly weapon by a prohibited person.1 He was
    sentenced to life imprisonment for the murders and to addi-
    tional terms of years for the other offenses, the sentences to
    run consecutively. We affirmed his convictions and sentences
    on direct appeal.2
    Newman then moved for postconviction relief, raising
    claims of ineffective assistance of counsel and a claim of actual
    innocence. The district court denied relief without conducting
    an evidentiary hearing. Newman filed this timely appeal. We
    affirm in part, and in part reverse and remand for an eviden-
    tiary hearing.
    1
    State v. Newman, 
    290 Neb. 572
    , 
    861 N.W.2d 123
    (2015).
    2
    
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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. NEWMAN
    Cite as 
    300 Neb. 770
    I. FACTS
    Newman’s trial was consolidated with codefendant Derrick
    U. Stricklin. The underlying facts are fully set forth in our
    opinion affirming Stricklin’s convictions and sentences.3
    Summarized, Newman’s convictions arose from the shoot-
    ing deaths of Carlos Morales and Bernardo Noriega during
    a drug transaction at an automobile body shop owned by
    Morales. Jose Herrera-Gutierrez was also present during the
    drug transaction and the shootings, and he was the State’s
    primary witness at trial. Herrera-Gutierrez identified Newman
    and Stricklin as the shooters and testified that he recognized
    both men from prior visits to Morales’ shop. He had seen
    Stricklin approximately four times at the shop, and he had seen
    Newman approximately three times at the shop.
    The State’s theory of the case was that Newman and
    Stricklin committed the crimes together. Newman’s cell phone
    records showed that Newman was in communication with both
    Morales and Stricklin on the day of the shootings, and also
    showed that Newman’s cell phone was in the area of the mur-
    der scene during the relevant timeframe.4
    A jury found Newman guilty of all the charges. He was sen-
    tenced to consecutive sentences of life imprisonment for each
    murder conviction, 15 to 25 years’ imprisonment for each use
    of a deadly weapon conviction, 20 months’ to 5 years’ impris-
    onment for the attempted manslaughter conviction, and 15 to
    25 years’ imprisonment for the possession of a deadly weapon
    conviction.5 The district court denied his motion for new trial,
    and he filed a direct appeal.
    On direct appeal, Newman was represented by different coun-
    sel. Appellate counsel raised numerous assignments of error
    challenging Newman’s identification by Herrera-Gutierrez, the
    sufficiency of the evidence, the admission of certain evidence,
    3
    State v. Stricklin, 
    290 Neb. 542
    , 
    861 N.W.2d 367
    (2015).
    4
    Id.
    5
    Newman, supra note 1.
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    the exclusion of other evidence, limitations imposed on the
    cross-examination of Herrera-Gutierrez, the overruling of a
    motion for new trial based on juror misconduct, and the over-
    ruling of a motion to withdraw his rest.
    Newman’s appellate counsel also alleged trial counsel had
    been ineffective in failing to (1) introduce certain testimony
    at the hearing on the motion for new trial, (2) object to cer-
    tain jury instructions, and (3) adequately investigate an alibi
    defense. In the direct appeal, we concluded the files and
    records affirmatively showed the jury instruction claim lacked
    merit and we found the record was insufficient to address the
    other two allegations of ineffective assistance of trial counsel.6
    After we affirmed his convictions and sentences, Newman
    filed the instant motion for postconviction relief. He alleges
    his appellate counsel was ineffective in (1) failing to obtain
    a complete record prior to Newman’s direct appeal and (2)
    failing to raise on direct appeal claims that his trial counsel
    was ineffective for (a) failing to investigate certain witnesses,
    including alibi witnesses; (b) failing to object to certain jury
    instructions; (c) failing to present evidence of third-party guilt
    via a motion in limine; (d) failing to object to the authentica-
    tion of cell phone records; (e) failing to object to the truth-in-
    sentencing advisement; (f) failing to present certain evidence
    at the motion for new trial; and (g) failing to hire a crime
    scene investigator. Newman also alleges in his postconviction
    motion, and argues in his brief, that he is actually innocent
    of the crimes. The district court denied the postconviction
    motion without conducting an evidentiary hearing. Newman
    filed this appeal.
    II. ASSIGNMENTS OF ERROR
    Newman assigns the district court erred in (1) denying him
    an evidentiary hearing on his motion for postconviction relief,
    (2) finding he did not meet the threshold for actual innocence,
    and (3) denying his motion for postconviction relief.
    6
    
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    STATE v. NEWMAN
    Cite as 
    300 Neb. 770
    Newman also attempts to raise additional assignments of
    error in his reply brief, including that he was denied an oppor-
    tunity to amend his postconviction motion and that additional
    jury instructions were flawed. The State filed an objection,
    arguing Newman could not raise new assignments of error in
    his reply brief. We agree.
    [1,2] The purpose of an appellant’s reply brief is to respond
    to the arguments the appellee has advanced against the errors
    assigned in the appellant’s initial brief.7 An assignment of
    error raised for the first time in a reply brief is untimely and
    will not be considered by the court.8 We therefore limit our
    analysis to the assignments made and argued in Newman’s
    original appellate brief. We note for the sake of completeness
    that Stricklin properly raised nearly identical assignments of
    error in his appeal from the district court’s denial of his motion
    for postconviction relief, and we found those assignments
    lacked merit.9
    III. STANDARD OF REVIEW
    [3] In appeals from postconviction proceedings, an appel-
    late 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 affirma-
    tively show that the defendant is entitled to no relief.10
    IV. ANALYSIS
    1. General Propositions
    Governing Postconviction
    [4,5] Postconviction relief is available to a prisoner in cus-
    tody under sentence who seeks to be released on the ground that
    there was a denial or infringement of his or her constitutional
    7
    Rodriguez v. Surgical Assoc., 
    298 Neb. 573
    , 
    905 N.W.2d 247
    (2018).
    8
    See id.
    9
    See State v. Stricklin, post p. 794, ___ N.W.2d ___ (2018).
    10
    State v. Vela, 
    297 Neb. 227
    , 
    900 N.W.2d 8
    (2017); State v. Watson, 
    295 Neb. 802
    , 
    891 N.W.2d 322
    (2017).
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    rights such that the judgment was void or voidable.11 In a
    motion for postconviction relief, the defendant must allege
    facts which, if proved, constitute a denial or violation of his or
    her rights under the U.S. or Nebraska Constitution, causing the
    judgment against the defendant to be void or voidable.12
    [6-8] A trial 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 Nebraska
    or federal Constitution.13 If a postconviction motion alleges
    only conclusions of fact or law, or if the records and files in a
    case affirmatively show the defendant is entitled to no relief,
    the court is not required to grant an evidentiary hearing.14
    Thus, in a postconviction proceeding, an evidentiary hearing
    is not required (1) when the motion does not contain factual
    allegations which, if proved, constitute an infringement of the
    movant’s constitutional rights; (2) when the motion alleges
    only conclusions of fact or law; or (3) when the records
    and files affirmatively show that the defendant is entitled to
    no relief.15
    [9] Here, Newman alleges he received ineffective assist­
    ance of counsel. A motion for postconviction relief asserting
    ineffective assistance of trial counsel is procedurally barred
    when (1) the defendant was represented by a different attor-
    ney 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.16
    Newman was represented by different counsel on direct appeal
    11
    Vela, supra note 10.
    12
    
    Id. 13 Id.
    14
    
    Id. 15 State
    v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
    (2015).
    16
    State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017).
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    than at trial. He therefore cannot raise on postconviction any
    claims of ineffective assistance of trial counsel that were not
    preserved on direct appeal, as those claims would be procedur-
    ally barred.17
    [10,11] However, claims of ineffective assistance of appel-
    late counsel may be raised for the first time on postconviction
    review.18 When a claim of ineffective assistance of appellate
    counsel is based on the failure to raise a claim on appeal of
    ineffective assistance of trial counsel, an appellate court will
    first look at whether trial counsel was ineffective under the test
    in Strickland v. Washington.19 If trial counsel was not ineffec-
    tive, then the defendant was not prejudiced by appellate coun-
    sel’s failure to raise the issue.20
    [12-14] To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington,21 the defendant must
    show that his or her counsel’s performance was deficient
    and that this deficient performance actually prejudiced the
    defendant’s defense.22 To show that counsel’s performance
    was deficient, the defendant must show counsel’s performance
    did not equal that of a lawyer with ordinary training and skill
    in criminal law in the area.23 To show prejudice under the
    prejudice component of the Strickland test, the defendant must
    demonstrate a reasonable probability that but for his or her
    counsel’s deficient performance, the result of the proceeding
    would have been different.24 A reasonable probability does
    not require that it be more likely than not that the deficient
    17
    See 
    id. 18 State
    v. Dubray, 
    294 Neb. 937
    , 
    885 N.W.2d 540
    (2016).
    19
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984). See State v. Glass, 
    298 Neb. 598
    , 
    905 N.W.2d 265
    (2018).
    20
    See Glass, supra note 19.
    21
    Strickland, supra note 19.
    22
    Vela, supra note 10.
    23
    See State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
    (2018).
    24
    Vela, supra note 10.
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    performance altered the outcome of the case; rather, the defend­
    ant must show a probability sufficient to undermine confidence
    in the outcome.25
    [15] The two prongs of the ineffective assistance of counsel
    test under Strickland, deficient performance and prejudice, may
    be addressed in either order.26 We examine Newman’s allega-
    tions under this standard.
    2. Failure to Investigate
    [16,17] A defense attorney has a duty to make reasonable
    investigations or to make a reasonable decision that makes
    particular investigations unnecessary.27 A reasonable strategic
    decision to present particular evidence, or not to present par-
    ticular evidence, will not, without more, sustain a finding of
    ineffective assistance of counsel.28 Strategic decisions made by
    trial counsel will not be second-guessed so long as those deci-
    sions are reasonable.29
    (a) Alibi Defense
    Newman’s motion for postconviction relief alleges his appel-
    late counsel was ineffective for failing to raise on direct appeal
    that his trial counsel was ineffective for failing to preserve
    and submit his alibi defense. But the record shows appellate
    counsel did raise this claim on direct appeal, and we found the
    record was insufficient to address it.30 Thus, Newman’s allega-
    tion that appellate counsel was ineffective for failing to raise
    the issue is without merit.
    However, Newman’s postconviction motion also alleges his
    trial counsel was ineffective for failing to preserve and submit
    25
    
    Id. 26 Haynes,
    supra note 23.
    27
    State v. Alarcon-Chavez, 
    295 Neb. 1014
    , 
    893 N.W.2d 706
    (2017).
    28
    
    Id. 29 Id.
    30
    Newman, supra note 1.
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    his alibi defense. Because he raised this claim in his direct
    appeal and we found the record was insufficient to consider or
    rule on that claim, it is not procedurally barred.31 We therefore
    consider whether Newman has alleged facts sufficient to war-
    rant an evidentiary hearing on this claim.
    Newman’s postconviction motion alleges his trial counsel
    failed to “independently interview, depose, or subpoena” four
    witnesses whom he alleges would have established an alibi
    defense. Newman alleges that Kevin Riley and Janet Mariscal
    would have testified Newman “was either at Clayton’s BBQ
    restaurant or on a run to Chubb[] Foods to purchase supplies at
    or near the time of the shooting.” Newman further alleges that
    two unnamed “Employees of Chubb[] Foods,” one working at
    the customer service counter and the other at the cash register,
    would have “confirmed Newman’s presence at Chubb[] Foods
    at or near the time of the shooting.”
    The district court denied an evidentiary hearing on this
    claim. It reasoned that because the allegations were vague as
    to time, they did not “definitively state that [Newman] was not
    at the murder scene and merely suggest [Newman] may have
    been at these other places at some point in the day.” Moreover,
    the court found no prejudice could have resulted from coun-
    sel’s failure to develop this evidence given the overwhelming
    evidence of Newman’s guilt provided by Herrera-Gutierrez’
    eyewitness testimony and cell phone records placing Newman
    in the area at or near the time of the murders.
    It is true Newman has not alleged a specific time he claims
    he was at the restaurant or the grocery store. But in his brief,
    Newman argues he used the general phrase “at or near the
    time of the shooting” in his postconviction motion, because
    there was uncertainty at trial about the exact time of the mur-
    ders.32 He argues the allegations in his motion are sufficient
    to show both deficient performance and prejudice, because
    they show trial counsel failed to present testimony from four
    31
    See State v. York, 
    273 Neb. 660
    , 
    731 N.W.2d 597
    (2007).
    32
    Brief for appellant at 10.
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    witnesses who would have testified Newman was somewhere
    else at the time of the murders. The State, in its response,
    generally agrees with the district court’s conclusion that even
    if trial counsel was deficient in this regard, there could be no
    prejudice to Newman in light of the overwhelming evidence
    of his guilt adduced at trial. Our de novo review persuades
    us otherwise.
    While we agree the eyewitness identification and corroborat-
    ing cell phone records, in the context of the evidence admitted
    at trial, provided overwhelming evidence of guilt, we can-
    not overlook the fact that the alibi evidence Newman alleges
    his attorney should have investigated could, if proved, have
    contradicted the eyewitness identification. Newman alleges,
    summarized, that four witnesses would have testified he was
    at a specific location other than the crime scene at or near the
    time of the murders. This testimony could have contradicted
    Herrera-Gutierrez’ eyewitness testimony and, depending on the
    location of the restaurant and the grocery store, may also have
    affected the weight of the cell phone record evidence. Thus,
    depending on the evidence actually presented and found credi-
    ble, there may be a reasonable probability that if such evidence
    had been presented at trial, the result of the proceeding could
    have been different.
    In Newman’s direct appeal, we found the record was insuf-
    ficient to evaluate the substance of this particular claim of inef-
    fective assistance. He presents the same claim on postconvic-
    tion, and because the record is still insufficient to analyze the
    claim, Newman is entitled to an evidentiary hearing.33
    (b) Other Witnesses
    Newman also alleges his appellate counsel was ineffective
    for failing to assign as error that trial counsel was ineffective
    33
    See, State v. Nolan, 
    292 Neb. 118
    , 
    870 N.W.2d 806
    (2015) (district court
    erred in failing to grant evidentiary hearing on ineffective assistance claim
    where claim was raised on direct appeal but record was insufficient to
    analyze claim, and same claim was raised on postconviction); State v.
    Seberger, 
    284 Neb. 40
    , 
    815 N.W.2d 910
    (2012) (same).
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    for failing to “independently interview, depose, or subpoena”
    other potential witnesses “despite Newman’s request.”
    Newman alleges two of these witnesses would have testified
    that unnamed “Mexicans” or “Latino’s” killed Noriega and
    Morales; one would have testified to hearing gunshots near the
    crime scene around 1:15 p.m. on the day of the shootings; one
    would have testified she observed two men standing in a park-
    ing lot near the crime scene around 1 p.m. on the day of the
    shootings; one would have testified she was afraid of Herrera-
    Gutierrez and did not think his story “add[ed] up”; two would
    have testified to observing Herrera-Gutierrez “acting crazy” on
    the day of the shootings; and one would testify she thought the
    murders involved drugs.
    The district court addressed all of these allegations col-
    lectively and concluded Newman had failed to allege how
    deposing or subpoenaing any of these witnesses would have
    produced a different outcome at trial. We agree that Newman’s
    allegations regarding these other witnesses did not show a
    reasonable likelihood that, absent the alleged deficiency, the
    outcome at trial would have been different.
    In Strickland, the U.S. Supreme Court addressed how a
    court should approach the prejudice prong of an ineffective
    assistance of counsel claim:
    In making [the prejudice] determination, a court hear-
    ing an ineffectiveness claim must consider the totality
    of the evidence before the judge or jury. Some of the
    factual findings will have been unaffected by the errors,
    and factual findings that were affected will have been
    affected in different ways. Some errors will have had
    a pervasive effect on the inferences to be drawn from
    the evidence, altering the entire evidentiary picture, and
    some will have had an isolated, trivial effect. Moreover,
    a verdict or conclusion only weakly supported by the
    record is more likely to have been affected by errors
    than one with overwhelming record support. Taking the
    unaffected findings as a given, and taking due account
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    of the effect of the errors on the remaining findings,
    a court making the prejudice inquiry must ask if the
    defendant has met the burden of showing that the deci-
    sion reached would reasonably likely have been different
    absent the errors.34
    Considering the alleged testimony of these eight potential
    witnesses in the context of all the evidence adduced at trial,
    we conclude the alleged testimony would not have altered the
    evidentiary picture and would, at best, have had an isolated
    or trivial effect on the jury’s findings. We find no error in
    the district court’s denial of this claim without an eviden-
    tiary hearing.
    In sum, we conclude Newman is entitled to an eviden-
    tiary hearing on his claim relating to his alibi defense, but
    is not entitled to an evidentiary hearing on any of his other
    claims of failure to interview, depose, or subpoena potential
    witnesses.
    (c) Cross-Examination
    Newman also alleges his appellate counsel was ineffective
    for failing to raise, on direct appeal, that trial counsel failed to
    adequately investigate existing files and prepare for the trial
    testimony of Nelson Martinez-Reyes. This witness testified at
    trial that he saw a man matching Herrera-Gutierrez’ descrip-
    tion near the murder location at approximately 11 a.m. on the
    day of the shootings, but he did not know the race of the male.
    Newman alleges Herrera-Gutierrez is Hispanic, and claims his
    trial counsel failed to cross-examine Martinez-Reyes about a
    prior statement in which he reported seeing a white male near
    the scene of the crime. We conclude this allegation of failure to
    cross-examine a witness on a minor credibility issue is not suf-
    ficient to demonstrate either deficient performance or resulting
    prejudice. Newman was not entitled to an evidentiary hearing
    on this claim.
    34
    Strickland, supra note 
    19, 466 U.S. at 695-96
    .
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    3. Jury Instructions
    Newman alleges his appellate counsel was ineffective for
    failing to assert, on direct appeal, that trial counsel was inef-
    fective for not objecting to “flawed” jury instructions Nos. 5, 6,
    11, 12, and 18. Newman’s motion specifically alleges instruc-
    tions Nos. 5, 11, and 12 were “flawed” because they did not
    conform to the pattern Nebraska Jury Instructions.
    The district court found the claim that trial counsel was
    ineffective for failing to object to instructions Nos. 5, 11,
    and 12 had been raised on direct appeal and rejected by this
    court. It reasoned the factual allegations as to the other jury
    instructions failed to specifically allege deficient performance
    and prejudice. Our de novo review leads us to the same
    conclusion.
    Newman’s brief to this court generally concedes that the
    argument he presents as to instructions Nos. 5, 11, and 12 was
    resolved on direct appeal. His brief also generally concedes
    that his postconviction motion did not include sufficient alle-
    gations as to instructions Nos. 6 and 18. The district court did
    not err in denying postconviction relief without an evidentiary
    hearing on this issue.
    4. Confidential Informant
    Newman alleges his appellate counsel was ineffective for
    failing to raise, on direct appeal, that trial counsel was inef-
    fective for not doing more to secure the admission of testi-
    mony regarding an out-of-court statement made by a con-
    fidential informant. The confidential informant’s statement
    related to the possible involvement of a man known as “Sip”
    in the crimes.
    Admissibility of the testimony regarding the confidential
    informant’s statement was addressed in the direct appeal of
    Newman’s codefendant Stricklin. Before trial, both Newman
    and Stricklin filed motions in limine seeking a ruling on the
    admissibility of testimony from a detective about statements a
    confidential informant made to the detective. The statements
    made to the detective were essentially that one of the murder
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    victims, Morales, had attempted to buy two firearms from the
    informant, telling the informant that he was “having problems
    with two black males” and that Morales told the informant one
    of the males was nicknamed “‘Sip.’”35 The detective showed
    the informant photographs of Newman and Stricklin, and the
    informant did not identify either as “Sip.”
    The State objected to this evidence, arguing it contained
    two levels of hearsay—Morales’ statements to the informant
    and the informant’s statements to the detective. The district
    court excluded the evidence on that basis, and we affirmed
    on appeal.
    Newman’s motion for postconviction relief generally
    alleges that if trial counsel had done more, the statements
    from the confidential informant would have been admitted.
    But Newman’s motion does not identify any actions that
    would have removed the hearsay issues we addressed on
    direct appeal, and thus, we agree with the district court that
    these allegations are insufficient to show ineffective assistance
    of counsel. The district court properly found Newman is not
    entitled to an evidentiary hearing on this claim.
    5. Cell Phone Authentication
    Evidence at trial showed a cell phone or phones associated
    with Newman were used to contact Stricklin and Morales
    on the date of the murders, and evidence showed Newman
    received six calls between 11:42 a.m. and 12:36 p.m. using
    a cell tower in the immediate vicinity of Morales’ shop.
    Newman alleges his appellate counsel was ineffective for
    failing to assign, on direct appeal, that trial counsel was inef-
    fective for failing to require the State to “authenticate” who
    was actually using the cell phones associated with his name.
    His postconviction motion alleges that if trial counsel had
    objected on authentication grounds, the State would have been
    unable to prove he was actually using the cell phones, and the
    35
    Stricklin, supra note 
    3, 290 Neb. at 553
    , 861 N.W.2d at 382.
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    substantial cell phone evidence linking him to the murders
    would have been inadmissible.
    The district court found this allegation was without merit,
    reasoning that such an objection would not have been success-
    ful. We agree.
    [18,19] According to Neb. Rev. Stat. § 27-901(1) (Reissue
    2016), “[t]he requirement of authentication or identification as
    a condition precedent to admissibility is satisfied by evidence
    sufficient to support a finding that the matter in question is
    what its proponent claims.” Section 27-901 does not impose
    a high hurdle for authentication or identification.36 Indeed, a
    proponent of evidence is not required to conclusively prove
    the genuineness of the evidence or to rule out all probabili-
    ties inconsistent with authenticity.37 Rather, if the proponent’s
    showing is sufficient to support a finding that the evidence is
    what it purports to be, the proponent has satisfied the require-
    ments of § 27-901.38
    The files and records affirmatively show authentication was
    established. Newman’s former girlfriend testified at trial that
    she bought him a cell phone with a certain number and also
    called him at a different cell phone number. Law enforcement
    obtained the cell phone records associated with those two num-
    bers, and the cell phone associated with the second number
    was found on Newman at the time of his arrest. This cell phone
    evidence was properly admitted at trial.39
    The files and records affirmatively show that if Newman’s
    counsel had objected on the ground the State had not “authen-
    ticated” who was actually using the cell phones, such an objec-
    tion would not have been successful. Newman’s counsel did
    not perform deficiently in this regard, and the district court
    36
    State v. Elseman, 
    287 Neb. 134
    , 
    841 N.W.2d 225
    (2014).
    37
    
    Id. 38 Id.
    39
    See Stricklin, supra note 3.
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    correctly denied postconviction relief on this claim without an
    evidentiary hearing.
    6. Truth-in-Sentencing
    A dvisement
    Newman alleges his appellate counsel was ineffective for
    failing to assign as error, on direct appeal, that trial counsel
    was ineffective for failing to object to the truth-in-sentencing
    advisement given by the trial court. His postconviction motion
    alleges the truth-in-sentencing advisement, delivered in open
    court, informed him he would be given credit for time served
    of 405 days, but the written sentencing order gave him credit
    for only 403 days. He argues the 2-day difference in the sen-
    tences imposed is prejudicial.
    [20] The district court found Newman’s claim lacked merit,
    because he suffered no prejudice. It reasoned that in Nebraska,
    if there is a discrepancy between the oral pronouncement of a
    valid sentence and the later written order, the oral pronounce-
    ment controls calculation of the prison term.40
    Our de novo review of the record confirms this rule was
    applied in Newman’s case. The commitment order entered
    after Newman’s sentencing awarded him credit for 405 days
    served. Thus, the files and records thus affirmatively show
    that Newman has suffered no prejudice, and the district
    court properly denied Newman an evidentiary hearing on
    this claim.
    7. Motion for New Trial
    Newman’s postconviction motion includes several allega-
    tions that his appellate counsel was ineffective for failing to
    raise, on direct appeal, the ineffective assistance of trial counsel
    related to the motion for new trial based on juror misconduct.
    His brief to this court argues only two of those allegations.
    40
    See State v. Olbricht, 
    294 Neb. 974
    , 
    885 N.W.2d 699
    (2016).
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    We thus limit our review to those errors both assigned and
    argued to this court.41
    Before addressing these claims, we note that in our opinion
    on Newman’s direct appeal, we found the record was insuf-
    ficient to address Newman’s claim that his trial counsel was
    ineffective for failing to timely offer an affidavit of a nonjuror
    during the hearing on Newman’s motion for new trial. Newman
    did not include such an allegation in his postconviction motion.
    Instead, he alleges his appellate counsel was ineffective for
    failing to raise other instances of ineffective assistance related
    to the hearing on his motion for new trial. To understand his
    claims, we briefly summarize the basis for Newman’s motion
    for new trial.
    Newman alleged he was entitled to a new trial because one
    of the jurors had communicated with the juror’s brother, a
    nonjuror, after the first day of deliberations and before a ver-
    dict had been reached. A hearing was held on the motion for
    new trial, and the juror testified that he telephoned his brother
    and learned that their father was acquainted with Newman
    and Stricklin. But the juror testified he did not know either of
    them personally.
    Newman’s postconviction motion alleges his appellate coun-
    sel was ineffective for failing to raise, on direct appeal, that his
    trial counsel was ineffective for (1) failing to object to certain
    remarks by counsel and (2) conceding that portions of the
    juror’s affidavit were inadmissible.
    (a) Failure to Object
    Newman’s postconviction motion alleges his trial counsel
    should have objected when an attorney appointed to represent
    the juror accused of misconduct made substantive representa-
    tions to the trial court instead of eliciting such information
    41
    See State v. Hill, 
    298 Neb. 675
    , 
    905 N.W.2d 668
    (2018) (alleged error
    must be both specifically assigned and specifically argued to be considered
    by appellate court).
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    from the juror in question. Newman alleges his appellate
    counsel was ineffective for failing to assign, on direct appeal,
    that his trial counsel was deficient in failing to object to the
    remarks of the juror’s attorney.
    At the hearing on the motion for new trial, the parties dis-
    puted the admissibility of the juror’s affidavit. Portions of that
    affidavit averred that during trial, the juror
    realized that I recognized people in the audience who
    were familiar to me, then subsequently realized that I
    knew both [Newman and Stricklin] and my family has
    family relationships with them. In fact, at some point
    I learned that . . . Newman had an altercation with my
    father . . . and injured [my father’s] shoulder[.]
    During the hearing, the juror’s attorney told the court the
    juror had not actually learned of the altercation between
    Newman and the juror’s father until after the verdicts were
    returned. The court then asked the juror’s attorney whether the
    juror recalled knowing Newman and Stricklin prior to return-
    ing the verdicts, and the attorney responded, “No.”
    Newman alleges that due to his counsel’s deficient perform­
    ance in not objecting to this colloquy, the juror’s attorney was
    permitted to testify on behalf of his client and Newman was
    deprived of the opportunity to cross-examine the juror. The
    files and records affirmatively refute this claim.
    The records shows that contrary to the allegations made in
    Newman’s motion for postconviction relief, Newman’s trial
    counsel did object to counsel’s remarks, arguing the juror’s
    attorney should not be permitted to testify for his client. The
    court agreed. Then both Newman and Stricklin were permitted
    to call the juror as a witness and ask questions about the timing
    and substance of the telephone conversation the juror had with
    his brother.
    Because the files and records affirmatively refute Newman’s
    claim that his counsel failed to object to the complained-of
    statements by the juror’s attorney, and also refute any claim
    that he was denied an opportunity to question the juror directly,
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    the postconviction court did not err in denying an evidentiary
    hearing on this issue.
    (b) Concession at Hearing
    Newman also alleges his appellate counsel was ineffec-
    tive for failing to raise, on direct appeal, that his trial counsel
    was ineffective during the motion for new trial, because he
    improperly conceded that a portion of the juror’s affidavit was
    inadmissible.
    The relevant portion of the affidavit averred, “During the
    deliberations, the other jurors persuaded me to change my
    vote to guilty primarily because [Newman and Stricklin] did
    not testify and attempt to clear their names.” Newman alleges
    his trial counsel was ineffective, because even though counsel
    drafted the juror’s affidavit after interviewing the juror, coun-
    sel “conceded and became submissive during the hearing on
    the motion for new trial” and admitted that this paragraph of
    the affidavit was not admissible under Nebraska law. The State
    argues that trial counsel was not ineffective, because that por-
    tion of the affidavit was plainly inadmissible under Nebraska
    law and was properly stricken by the trial court.
    Neb. Rev. Stat. § 27-606(2) (Reissue 2016) provides:
    Upon inquiry into the validity of a verdict or indictment, a
    juror may not testify as to any matter or statement occur-
    ring during the course of the jury’s deliberations or to the
    effect of anything upon his or any other juror’s mind or
    emotions as influencing him to assent to or dissent from
    the verdict or indictment or concerning his mental proc­
    esses in connection therewith, except that a juror may tes-
    tify on the question whether extraneous prejudicial infor-
    mation was improperly brought to the jury’s attention or
    whether any outside influence was improperly brought to
    bear upon any juror. Nor may his affidavit or evidence of
    any statement by him indicating an effect of this kind be
    received for these purposes.
    [21] Section 27-606(2) prohibits a juror from testifying as
    to any matter or statement occurring during the course of the
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    jury’s deliberations. Thus, a juror’s affidavit may not be used
    to impeach a verdict on the basis of jury motives, methods,
    misunderstanding, thought processes, or discussions during
    deliberations.42 Because the record shows counsel did not per-
    form deficiently in conceding this point, the district court did
    not err in denying postconviction relief without an evidentiary
    hearing on this claim.
    8. Crime Scene Investigator
    Newman alleges appellate counsel was ineffective in fail-
    ing to raise, on direct appeal, that trial counsel was ineffective
    in failing to hire a crime scene investigator. He alleges vari-
    ous items at the crime scene were inconsistent with Herrera-
    Gutierrez’ testimony and that counsel should have hired an
    investigator to rebut these inconsistencies.
    Specifically, Newman alleges only one set of footprints
    “‘with evidentiary value’” was found at the scene, but Herrera-
    Gutierrez testified five people went in to the shop where the
    murders occurred and only three came out. He alleges Herrera-
    Gutierrez testified the victims were tied up and shot “‘real
    fast,’” but blood splatter at the scene was on the ceiling and
    the outside landing. He alleges Herrera-Gutierrez testified that
    the victims were shot as they lay face down, but a shell casing
    was found underneath one of their bodies.
    Newman’s postconviction motion concedes that trial counsel
    cross-examined the State’s witnesses on this evidence, and the
    record confirms that Newman’s counsel presented evidence
    regarding each of these issues either on direct examination or
    through cross-examination at trial. But Newman alleges trial
    counsel should also have hired a “crime scene investigator or
    specialist” who “would and could have rebutted” this evidence.
    Newman’s motion presents no allegations regarding what such
    an investigator or specialist would have testified to if called, or
    how such testimony would have rebutted the state’s evidence
    or affected the outcome of the case.
    42
    See State v. Thomas, 
    262 Neb. 985
    , 
    637 N.W.2d 632
    (2002).
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    [22] A petitioner’s postconviction claims that his or her
    defense counsel was ineffective in failing to investigate pos-
    sible defenses are too speculative to warrant relief if the peti-
    tioner fails to allege what exculpatory evidence the investiga-
    tion would have procured and how it would have affected the
    outcome of the case.43 The district court correctly concluded
    that Newman’s conclusory allegations about the failure to
    hire a crime scene investigator did not warrant an eviden-
    tiary hearing.44
    9. Failure to Obtain
    Complete R ecord
    Newman’s postconviction motion alleges appellate counsel
    was ineffective for failing to obtain the complete record prior
    to the direct appeal. He alleges the missing portion of the
    record was a supplemental jury instruction not included in the
    final instructions sent to the jury.
    Newman’s motion does not allege how his lack of access
    to that instruction affected his appeal or what assignment of
    error was not raised on appeal due to the lack of access to that
    record. The district court thus correctly found Newman did not
    plead sufficient facts to necessitate an evidentiary hearing on
    this claim.
    10. Actual Innocence
    Newman’s postconviction motion alleges he was actually
    innocent of the crimes. He supports this allegation by ref-
    erencing all of his alleged claims of ineffective assistance
    of counsel, in addition to other unassigned errors during
    trial. In his brief to this court, Newman contends the errors
    of appellate counsel in failing to raise such issues on direct
    appeal “taken as a whole establish that [he] was actually
    innocent.”45 The trial court found Newman’s allegations of
    43
    State v. Edwards, 
    284 Neb. 382
    , 
    821 N.W.2d 680
    (2012).
    44
    See 
    id. 45 Brief
    for appellant at 20.
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    actual innocence were insufficient to show a constitutional
    violation. We agree.
    [23-25] In State v. Dubray,46 we explained:
    A claim of actual innocence may be a sufficient alle-
    gation of a constitutional violation under the Nebraska
    Postconviction Act. The essence of a claim of actual
    innocence is that the State’s continued incarceration of
    such a petitioner without an opportunity to present newly
    discovered evidence is a denial of procedural or substan-
    tive due process. The threshold to entitle a prisoner to
    an evidentiary hearing on such a postconviction claim is
    “‘extraordinarily high.’” Such a petitioner must make a
    strong demonstration of actual innocence because after
    a fair trial and conviction, the presumption of inno-
    cence vanishes.
    Newman has not met his extraordinarily high threshold of
    alleging facts sufficient to show he is actually innocent of the
    crimes. The district court did not err in denying an evidentiary
    hearing on this claim.
    V. CONCLUSION
    For the foregoing reasons, we conclude the district court
    erred in denying Newman an evidentiary hearing on his
    claim that trial counsel was ineffective for failing to inves-
    tigate and present alibi evidence from Riley, Mariscal, and
    two employees of Chubb Foods, and we reverse the court’s
    decision in part and remand the matter for an evidentiary
    hearing limited to that claim. In all other respects, we affirm
    the district court’s denial of postconviction relief without an
    evidentiary hearing.
    A ffirmed in part, and in part reversed
    and remanded with directions.
    Heavican, C.J., not participating.
    46
    Dubray, supra note 
    18, 294 Neb. at 947-48
    , 885 N.W.2d at 551, quoting
    State v. Phelps, 
    286 Neb. 89
    , 
    834 N.W.2d 786
    (2013). Accord Herrera v.
    Collins, 
    506 U.S. 390
    , 
    113 S. Ct. 853
    , 
    122 L. Ed. 2d 203
    (1993).