State v. Stricklin , 300 Neb. 794 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. STRICKLIN
    Cite as 
    300 Neb. 794
    State of Nebraska, appellee, v.
    Derrick U. Stricklin, appellant.
    ___ N.W.2d ___
    Filed August 17, 2018.   No. S-17-914.
    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: 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.
    3.	 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.
    4.	 ____: ____: ____. 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.
    5.	 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.
    6.	 ____: ____. 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.
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    7.	 Postconviction: Effectiveness of Counsel: Appeal and Error. Although
    a motion for postconviction relief cannot be used to secure review of
    issues which were or could have been litigated on direct appeal, when a
    defendant was represented by the same lawyer both at trial and on direct
    appeal, the defendant’s first opportunity to assert ineffective assistance
    of counsel is in a motion for postconviction relief.
    8.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective
    assistance of counsel claim alleges a violation of the fundamental con-
    stitutional right to a fair trial.
    9.	 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.
    10.	 ____: ____. 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.
    11.	 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.
    12.	 Judges: Recusal. To demonstrate that a trial judge should have recused
    himself or herself, the moving party must demonstrate that a reason-
    able 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.
    13.	 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.
    14.	 Effectiveness of Counsel. Defense counsel is not ineffective for failing
    to raise an argument that has no merit.
    15.	 Trial: Attorneys at Law: Presumptions. Trial counsel is afforded due
    deference to formulate trial strategy and tactics, and there is a strong
    presumption that counsel acted reasonably.
    16.	 Trial: Prosecuting Attorneys. Prosecutors generally may not give their
    personal opinions on the veracity of a witness or the guilt or innocence
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    of the accused. The principle behind this rule is that the prosecutor’s
    opinion carries with it the imprimatur of the government and may
    induce the jury to trust the government’s judgment rather than its own
    view of the evidence.
    17.	   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.
    18.	   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.
    19.	   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.
    20.	   Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
    Waiver. Defense counsel’s advice to waive the right to testify can pre­
    sent a valid claim of ineffective assistance of counsel in two instances:
    (1) if the defendant shows that counsel interfered with his or her free-
    dom to decide to testify or (2) if counsel’s tactical advice to waive the
    right was unreasonable.
    21.	   Postconviction: Evidence: Presumptions: Proof. The threshold show-
    ing that must be made to entitle a prisoner to an evidentiary hearing
    on a postconviction claim of actual innocence is extraordinarily high,
    because after a fair trial and conviction, the presumption of inno-
    cence 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.
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    STATE v. STRICKLIN
    Cite as 
    300 Neb. 794
    Stacy, J.
    A jury found Derrick U. Stricklin guilty of two counts of
    first degree murder, three counts of use of a deadly weapon
    to commit a felony, attempted intentional manslaughter, and
    possession of a deadly weapon by a prohibited person. 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.1
    Stricklin now moves 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. Stricklin filed this timely appeal. We
    affirm in part, and in part reverse and remand for an eviden-
    tiary hearing.
    I. FACTS
    Stricklin’s trial was consolidated with codefendant Terrell
    E. Newman. The underlying facts are set forth in our opinion
    in Stricklin’s direct appeal.2 Summarized, Stricklin’s convic-
    tions arose from the shooting 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 Stricklin and Newman 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 Stricklin and
    Newman 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
    1
    State v. Stricklin, 
    290 Neb. 542
    , 
    861 N.W.2d 367
     (2015).
    2
    
    Id.
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    showed that Newman’s cell phone was in the area of the mur-
    der scene during the relevant timeframe.3
    A jury found Stricklin guilty of two counts of first degree
    murder, three counts of use of a deadly weapon to commit a
    felony, attempted intentional manslaughter, and possession of
    a deadly weapon by a prohibited person. He was sentenced 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’ imprison-
    ment for the attempted manslaughter conviction, and 15 to 25
    years’ imprisonment for the possession of a deadly weapon
    conviction.4 The district court denied his motion for new trial,
    and he filed a direct appeal.
    Stricklin was represented by the same counsel at trial and
    on direct appeal. In his direct appeal, Stricklin assigned the
    trial court erred in (1) denying his motion to sever, (2) exclud-
    ing statements of a confidential informant, (3) limiting his
    cross-examination of Herrera-Gutierrez, (4) failing to include
    relevant language in certain jury instructions, (5) overruling his
    motion for new trial based on juror misconduct, and (6) over-
    ruling his motion to reopen the evidence. This court affirmed
    his convictions and sentences.5
    Stricklin then filed the instant motion for postconviction
    relief, along with a motion for appointment of counsel. His
    postconviction motion alleges counsel was ineffective for (1)
    not moving to recuse the trial judge; (2) failing to object to
    jury instructions Nos. 6, 11, 12, and 20; (3) failing to file
    notice of his alibi defense and present certain alibi evidence;
    (4) failing to object and move for a mistrial during closing
    arguments; (5) failing to raise a confrontation objection at a
    hearing on his motion for new trial; (6) abandoning, during
    the hearing on the motion for new trial, all arguments except
    juror misconduct; (7) failing to call a witness at the hearing
    3
    
    Id.
    4
    
    Id.
    5
    
    Id.
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    on the motion for new trial; (8) failing to obtain a crime scene
    investigator; (9) failing to object to cell phone record evidence
    on “authentication” grounds; (10) failing to depose and call
    certain identified witnesses and investigate certain defenses;
    (11) failing to file a motion in limine regarding the admissibil-
    ity of testimony of a confidential informant; (12) unreasonably
    advising him to waive his right to testify; (13) failing to assign
    as error on direct appeal the insufficiency of the evidence
    to support his convictions and the improper identification of
    Stricklin as one of the perpetrators; and (14) failing to obtain a
    complete record for appeal. Finally, Stricklin alleges a claim of
    actual innocence. The district court denied the postconviction
    motion without conducting an evidentiary hearing. Stricklin
    filed this appeal.
    II. ASSIGNMENTS OF ERROR
    Stricklin assigns, restated, that the district court erred in (1)
    denying him an opportunity to amend his motion for postcon-
    viction relief, (2) denying him an evidentiary hearing on his
    motion for postconviction relief, (3) finding he did not meet
    the threshold for actual innocence, and (4) denying his motion
    for postconviction relief.
    III. STANDARD OF REVIEW
    [1] 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.6
    IV. ANALYSIS
    1. General Propositions
    Governing Postconviction
    [2,3] Postconviction relief is available to a prisoner in cus-
    tody under sentence who seeks to be released on the ground
    6
    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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    that there was a denial or infringement of his or her constitu-
    tional rights such that the judgment was void or voidable.7 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.8
    [4-6] 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.9 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.10 Thus,
    in a postconviction proceeding, an evidentiary hearing is not
    required (1) when the motion does not contain factual allega-
    tions which, if proved, constitute an infringement of the mov-
    ant’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.11
    [7] Here, Stricklin was represented by the same counsel
    at trial and on appeal, and his postconviction motion alleges
    counsel provided ineffective assistance both at trial and on
    direct appeal. Although a motion for postconviction relief can-
    not be used to secure review of issues which were or could
    have been litigated on direct appeal, when a defendant was
    represented by the same lawyer both at trial and on direct
    appeal, the defendant’s first opportunity to assert ineffective
    assistance of counsel is in a motion for postconviction relief.12
    7
    Vela, 
    supra note 6
    .
    8
    
    Id.
    9
    
    Id.
    10
    
    Id.
    11
    State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
     (2015).
    12
    State v. McKinney, 
    279 Neb. 297
    , 
    777 N.W.2d 555
     (2010).
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    Recognizing this, the district court addressed all of Stricklin’s
    ineffective assistance of counsel claims.
    [8-11] A proper ineffective assistance of counsel claim
    alleges a violation of the fundamental constitutional right to
    a fair trial.13 To prevail on a claim of ineffective assistance
    of counsel under Strickland v. Washington,14 the defendant
    must show that his or her counsel’s performance was defi-
    cient and that this deficient performance actually prejudiced
    the defendant’s defense.15 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.16 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.17 A reasonable probability does not
    require that it be more likely than not that the deficient per­
    formance altered the outcome of the case; rather, the defendant
    must show a probability sufficient to undermine confidence in
    the outcome.18
    2. Motion to A mend
    Postconviction Motion
    Stricklin assigns error to the district court’s “denying [him]
    an opportunity to amend his motion for postconviction relief.”
    We review the district court’s decision in this regard for an
    abuse of discretion.19
    13
    Thorpe, supra note 11; State v. Baker, 
    286 Neb. 524
    , 
    837 N.W.2d 91
    (2013).
    14
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    15
    See Vela, 
    supra note 6
    .
    16
    See State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
     (2018).
    17
    See Vela, 
    supra note 6
    .
    18
    
    Id.
    19
    State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
     (2016).
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    STATE v. STRICKLIN
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    300 Neb. 794
    Approximately 4 months after filing his verified motion for
    postconviction relief, Stricklin filed a motion seeking “per-
    mission to Amend the Motion for Postconviction after the
    Court grants appointment of Counsel.” Newman filed a similar
    motion in his postconviction proceeding. At a joint telephonic
    hearing on the motions, the court asked for clarification:
    THE COURT: Okay. There was a motion filed by both
    . . . Newman and . . . Stricklin on August 17, 2016, which
    was a Request for Counsel and a Request to Amend the
    Postconviction Motion. I need to ask, and I’ll start with
    you, Mr. Newman, are you asking to amend at this time?
    MR. NEWMAN: Yes.
    THE COURT: What are you asking to amend?
    MR. NEWMAN: The motion for postconviction.
    THE COURT: How are you asking for that to be
    amended?
    MR. NEWMAN: By way of counsel.
    THE COURT: Okay. So — what I want to make clear
    is, there was a motion asking for counsel, and then if
    counsel is appointed you want to keep open your ability
    to amend your Motion for Postconviction. Am I under-
    standing that correctly?
    MR. NEWMAN: Yes. Correct.
    THE COURT: Okay. But you’re not asking to amend
    here today?
    MR. NEWMAN: No.
    THE COURT: All right. And I’ll ask you the same
    questions, Mr. Stricklin. Are you asking to amend your
    postconviction today?
    MR. STRICKLIN: No.
    THE COURT: Okay. Again, I’ll just make it clear with
    Mr. Stricklin. So you’re asking if the Court determines
    that an evidentiary hearing is warranted, then you’re ask-
    ing for Counsel to be appointed and then the ability to
    amend at that time; is that correct?
    MR. STRICKLIN: Correct.
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    THE COURT: All right. So that matter will remain
    pending until the Court reviews — because I still have
    to review whether or not the evidentiary hearing will be
    granted, and then we can go from there.
    MR. STRICKLIN: Okay.
    The record affirmatively shows Stricklin was not seeking leave
    to immediately amend his postconviction motion in order to
    add factual allegations or include additional claims.20 Instead,
    he intended the motion to serve as a placeholder of sorts for a
    possible future motion to amend by appointed counsel. Given
    the conditional nature of Stricklin’s request, we find no abuse
    of discretion in denying the motion.
    3. Failure to Seek R ecusal
    of Trial Judge
    Stricklin’s postconviction motion alleges his trial counsel
    was ineffective for not moving to recuse the trial judge and
    for abandoning an opportunity to have an evidentiary hear-
    ing on such a motion. Stricklin alleges that during his trial,
    “individuals and spectators in the audience” noticed “favorit-
    ism” and “deference favoring the state prosecution to the point
    of no return.” Stricklin’s postconviction motion alleges these
    concerns were brought to the attention of his counsel, and he
    claims counsel was ineffective for failing to pursue recusal
    based on these concerns. His motion does not explain what
    gave rise to these concerns nor does he allege any support-
    ing facts.
    [12,13] To demonstrate prejudice from counsel’s failure to
    seek recusal, Stricklin must allege facts sufficient to demon-
    strate there was a reasonable probability such a motion would
    have been successful.21 To demonstrate that a trial judge
    20
    Cf. State v. Mata, 
    280 Neb. 849
    , 
    790 N.W.2d 716
     (2010) (defendant
    requested leave to amend even if counsel was not appointed), disapproved,
    Robertson, 
    supra note 19
    .
    21
    See, e.g., State v. Nolt, 
    298 Neb. 910
    , 
    906 N.W.2d 309
     (2018) (unless
    motion to suppress would have been successful, it cannot be said counsel
    was deficient in failing to file such motion).
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    should have recused himself or herself, the moving party must
    demonstrate that a reasonable person who knew the circum-
    stances of the case would question the judge’s impartiality
    under an objective standard of reasonableness, even though
    no actual bias or prejudice was shown.22 A defendant seeking
    to disqualify a judge on the basis of bias or prejudice bears
    the heavy burden of overcoming the presumption of judi-
    cial impartiality.23
    Here, Stricklin’s conclusory allegations of “favoritism” and
    “deference favoring the state” were insufficient to overcome
    the presumption of judicial impartiality and, without more,
    would not have required recusal. Moreover, the record affirma-
    tively shows that when instructing the jury, the court specifi-
    cally admonished it regarding such issues, explaining:
    I am not permitted to comment on the evidence, and I
    have not intentionally done so. If it appears to you that I
    have commented on the evidence, during either the trial
    or the giving of these instructions, you must disregard
    such comment entirely.
    You must not interpret any of my statements, actions, or
    rulings, nor any of the inflections of my voice as reflect-
    ing an opinion as to how this case should be decided.
    [14] Because defense counsel is not ineffective for failing to
    raise an argument that has no merit,24 we find no error in the
    postconviction court’s denial of this claim without an eviden-
    tiary hearing.
    4. Jury Instructions
    Stricklin argues his counsel was ineffective for failing to
    object to jury instructions Nos. 6, 11, 12, and 20. The district
    court denied Stricklin’s motion as to instructions Nos. 5, 11,
    and 12, because it found errors related to those instructions
    had been addressed and rejected on direct appeal. The court
    22
    State v. Nolan, 
    283 Neb. 50
    , 
    807 N.W.2d 520
     (2012).
    23
    
    Id.
    24
    State v. Vo, 
    279 Neb. 964
    , 
    783 N.W.2d 416
     (2010).
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    denied Stricklin’s motion as to instruction No. 20, because it
    found Stricklin failed to allege either what objection trial coun-
    sel should have made or what proposed alternative instruction
    should have been requested.
    In his brief on appeal, Stricklin concedes that instruction No.
    5 was addressed in his direct appeal and he presents no further
    argument regarding that instruction or his assigned error for
    instruction No. 6. Stricklin also concedes instructions Nos.
    11 and 12 were addressed in codefendant Newman’s direct
    appeal, but Stricklin contends he is not procedurally barred
    from raising those claims on postconviction, because he had
    the same counsel at trial and on direct appeal.25 While it is true
    the claims of ineffective assistance premised on instructions
    Nos. 11 and 12 are not procedurally barred, Stricklin presents
    the same arguments regarding those instructions that Newman
    raised on direct appeal. And, in State v. Newman,26 our opin-
    ion resolving Newman’s direct appeal, we found such claims
    were meritless:
    Instruction No. 11 provided the jury with definitions.
    Newman contends that the instruction was erroneous for
    omitting the phrase “‘or intentional manslaughter,’” as
    stated in the pattern jury instruction. He does not iden-
    tify the erroneous definition or the relevant pattern jury
    instruction, but we presume that he refers to the definition
    of “‘[a] felony.’” Notwithstanding any error in that defi-
    nition, the jury correctly understood that the offense of
    attempted intentional manslaughter constituted a felony.
    The jury found Newman guilty of attempted intentional
    manslaughter and the corresponding charge of use of a
    deadly weapon to commit a felony.
    As to instruction No. 12, Newman contends that the
    instruction failed to correctly charge the jury on intent.
    However, instruction No. 12 was modeled on the relevant
    25
    See McKinney, 
    supra note 12
    .
    26
    State v. Newman, 
    290 Neb. 572
    , 585, 
    861 N.W.2d 123
    , 135 (2015).
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    pattern jury instruction. As such, the instruction was
    not erroneous.
    None of Newman’s allegations of error in the instruc-
    tions given to the jury caused him prejudice. Thus, the
    record affirmatively establishes that this claim of ineffec-
    tive assistance of counsel is without merit.
    Our reasoning in Newman shows that if Stricklin’s counsel
    had challenged jury instructions Nos. 11 and 12, that challenge
    would likewise have been meritless. Because Stricklin’s coun-
    sel cannot be ineffective for failing to raise an argument that
    has no merit,27 the district court correctly denied postconviction
    relief on the claim involving instructions Nos. 11 and 12.
    With respect to instruction No. 20, Stricklin alleges his
    counsel should have asked the court for a limiting instruc-
    tion informing the jury that the records of Newman’s cell
    phone use could not be considered in Stricklin’s case. But in
    Stricklin’s direct appeal, we specifically held Newman’s cell
    phone records were admissible evidence against both Stricklin
    and Newman.28 And we rejected the suggestion that a limiting
    instruction was necessary regarding an exhibit showing calls to
    Newman’s cell phone and the location of the cell tower used
    to service those calls.29 Because it would not have been error
    to deny such a limiting instruction if counsel had requested it,
    Stricklin’s allegations of ineffective assistance as to instruction
    No. 20 were also insufficient to warrant an evidentiary hear-
    ing. We find no error in the postconviction court’s denial of
    this claim without an evidentiary hearing.
    5. A libi Defense
    Stricklin alleges his counsel was ineffective for failing to
    file notice of and present an alibi defense. In his postconviction
    27
    See Vo, supra note 24.
    28
    Stricklin, 
    supra note 1
    , 290 Neb. at 552, 861 N.W.2d at 381 (“the evidence
    of Newman’s cell phone records and exhibit 288 would have been
    relevant, admissible in a separate trial against Stricklin”).
    29
    Id.
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    STATE v. STRICKLIN
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    motion, Stricklin alleges that at 10 a.m. on the day of the
    crimes, he took his stepson to a barber shop in downtown
    Omaha, Nebraska. He further alleges they left the barber shop
    around noon and drove to Stricklin’s grandmother’s house
    “located on 36th and Himebaugh.” He alleges he took the
    “North freeway” en route to his grandmother’s house and that
    during the drive, he made a call on his cell phone at 12:34 p.m.
    The postconviction motion does not allege how long Stricklin
    stayed at his grandmother’s house, but it does allege that four
    named witnesses would corroborate this alibi. The motion fur-
    ther alleges Stricklin’s cell phone records would corroborate
    this alibi.
    The district court found these allegations were insufficient
    to warrant an evidentiary hearing, because they did not “defini-
    tively state [Stricklin] was not at the murder scene and merely
    suggest [Stricklin] may have been at these other places at some
    point in the day.” Stricklin’s brief concedes his motion did
    not affirmatively allege he was not at the crime scene, but he
    contends it was sufficient to describe that he was somewhere
    else at the time the State claims the shootings occurred and
    to allege that numerous alibi witnesses would corroborate
    that claim.
    [15] At trial, the State relied on cell phone evidence linking
    Stricklin and Newman to the crime scene between 11:42 a.m.
    and 12:36 p.m. Thus, based on the State’s theory of the case,
    the crimes occurred during the general time period Stricklin
    has alleged alibi witnesses would confirm he was someplace
    else. Stricklin alleges his counsel knew of this alibi informa-
    tion and was deficient in failing to present it. Stricklin’s brief
    acknowledges that trial counsel is afforded due deference to
    formulate trial strategy and tactics and that there is a strong
    presumption that counsel acted reasonably.30 But he argues
    that the reasonableness of trial counsel’s strategy in rejecting
    his alibi defense cannot be determined without an evidentiary
    hearing. We agree.
    30
    See State v. Watt, 
    285 Neb. 647
    , 
    832 N.W.2d 459
     (2013).
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    We find Stricklin has alleged facts which, if proved, are
    sufficient to show both deficient performance and prejudice
    regarding his alibi defense. Stricklin is entitled to an eviden-
    tiary hearing on whether trial counsel was ineffective for fail-
    ing to file notice of and present evidence of his alibi defense.
    6. Closing A rguments/Mistrial
    Stricklin alleges his trial counsel was ineffective for failing
    to move for mistrial based on prosecutorial misconduct. His
    motion alleges two instances of alleged misconduct, but he
    argues only one of them on appeal, so we limit our analysis to
    that instance.31
    During closing arguments, Stricklin’s counsel referred to
    cell phone records showing Stricklin’s cell phone neither made
    nor received any calls between 11:13 a.m. and 12:34 p.m.
    During his closing argument, defense counsel suggested the
    lack of calls during that timeframe was because Stricklin was
    driving. In the prosecutor’s rebuttal, she responded to that
    argument, stating:
    At 11:13 . . . Stricklin has no more calls. From 11:13 until
    12:34, he has no more calls. And the call that he wants
    you to believe he’s traveling while it’s being made, that
    call wasn’t answered at 12:34. Why are there no more
    calls? The two of them are together. And in my mind
    . . . Stricklin turned his phone off. He had no incoming or
    outgoing calls at all between 11:13 and 12:34.
    In response to this statement, Stricklin’s attorney objected,
    stating, “That’s not in evidence.” The prosecutor countered
    that the cell phone records were in evidence, and the trial court
    overruled the objection.
    In Stricklin’s direct appeal, he alleged the prosecutor’s
    comments amounted to prosecutorial misconduct. We found
    Stricklin had not preserved the issue for appellate review
    31
    See Fetherkile v. Fetherkile, 
    299 Neb. 76
    , 
    907 N.W.2d 275
     (2018) (errors
    must be both specifically assigned and specifically argued to be considered
    by appellate court).
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    because his counsel had not requested a mistrial based on the
    prosecutor’s comments.32 Now, in his postconviction motion,
    Stricklin alleges his trial counsel was ineffective for failing to
    move for a mistrial and thus preserve for appellate review the
    issue of prosecutorial misconduct.
    The district court denied postconviction relief on this claim
    without an evidentiary hearing, finding the prosecutor’s com-
    ments did not mislead or unduly influence the jury and further
    finding that any resulting prejudice was not substantial enough
    to damage the integrity, reputation, or fairness of the judicial
    process. We agree.
    [16] Prosecutors generally may not give their personal opin-
    ions on the veracity of a witness or the guilt or innocence of
    the accused.33 The principle behind this rule is that the prosecu-
    tor’s opinion carries with it the imprimatur of the government
    and may induce the jury to trust the government’s judgment
    rather than its own view of the evidence.34 We have empha-
    sized the importance of this rule and have admonished prosecu-
    tors to avoid using phrases such as “‘I believe’” or “‘the State
    believes’”35 when arguing their case to the jury.
    But here, to the extent Stricklin suggests the prosecutor’s
    remark “in my mind” was an attempt to express a personal
    opinion, it was not one relating to the veracity of a witness or
    to Stricklin’s guilt or innocence. Rather, the prosecutor was
    responding to an argument advanced by defense counsel on the
    possible interpretation of cell phone evidence. While prosecu-
    tors would be wise to avoid language expressing their personal
    opinion on any matter, the statement at issue here was not
    32
    Stricklin, supra note 1.
    33
    State v. Hernandez, 
    299 Neb. 896
    , 
    911 N.W.2d 524
     (2018). See, also,
    Neb. Ct. R. of Prof. Cond. § 3-503.4 (“[a] lawyer shall not . . . in trial . . .
    state a personal opinion as to the justness of a cause, the credibility of a
    witness, the culpability of a civil litigant or the guilt or innocence of an
    accused”).
    34
    Hernandez, 
    supra note 33
    .
    35
    
    Id. at 928
    , 911 N.W.2d at 549.
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    misconduct. Thus, Stricklin’s trial counsel was not deficient
    for failing to move for a mistrial based on the remark. The dis-
    trict court correctly denied postconviction relief on this claim
    without an evidentiary hearing.
    7. Same Claims as Newman
    Stricklin raises several claims of ineffective assistance of
    counsel that are identical, or nearly identical, to claims raised
    by Newman in his motion for postconviction relief. These
    claims relate to: trial counsel’s failure to object during the
    motion for new trial, trial counsel’s failure to obtain a crime
    scene investigator, and trial counsel’s failure to challenge the
    authentication of Newman’s cell phone records. These assign-
    ments of error are analyzed, and rejected, in State v. Newman,36
    our opinion resolving Newman’s appeal of his postconviction
    motion. We briefly address them here as well.
    (a) Failure to Object During
    Motion for New Trial
    Stricklin, like codefendant Newman, alleges his trial counsel
    should have objected when an attorney appointed to represent
    a juror accused of misconduct made a substantive representa-
    tion about the juror’s knowledge at a particular point in time,
    instead of eliciting such information from his client. Stricklin
    alleges that due to his counsel’s deficient performance in not
    objecting to the remark, the juror’s attorney was permitted to
    testify on behalf of his client and Stricklin was deprived of the
    opportunity to confront and cross-examine the juror. As we
    concluded in Newman’s case, the files and records affirma-
    tively refute this claim.
    The record shows Stricklin and Newman both filed motions
    for new trial on the basis of juror misconduct, and the motions
    were heard together. Although Stricklin’s counsel did not
    object to the substantive remark make by the juror’s attorney,
    Newman’s trial counsel did object, and argued the juror’s
    36
    State v. Newman, ante p. 770, ___ N.W.2d ___ (2018).
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    attorney should not be permitted to testify for his client. The
    court agreed and subsequently allowed both Stricklin and
    Newman 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.
    Thus, although Stricklin’s counsel did not join in the objec-
    tion raised by Newman’s counsel, Stricklin can show no preju-
    dice resulting from this failure. The files and records affirma-
    tively refute his claim that he was denied an opportunity to
    question the juror directly, and the postconviction court did not
    err in denying an evidentiary hearing on this issue.
    (b) Crime Scene Investigator
    Stricklin alleges his trial counsel was ineffective in failing
    to hire a crime scene investigator to rebut Herrera-Gutierrez’
    testimony. Stricklin’s allegations are nearly identical to those
    made by Newman in his motion for postconviction relief. And
    Stricklin’s allegations fail for the same reasons articulated in
    our opinion analyzing Newman’s claims.
    Stricklin alleges his trial counsel was “content to cross-
    examine” the State’s witnesses and was deficient for not hiring
    a crime scene investigator or specialist to refute the evidence
    regarding footprints and blood splatter, and to do additional
    DNA testing. But Stricklin’s postconviction 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.
    [17] 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.37 The district court correctly concluded
    that Stricklin’s conclusory allegations about the failure to
    37
    State v. Edwards, 
    284 Neb. 382
    , 
    821 N.W.2d 680
     (2012).
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    hire a crime scene investigator did not warrant an eviden-
    tiary hearing.38
    (c) Cell Phone Records
    Stricklin alleges his counsel was ineffective for failing to
    object to the authenticity of the cell phone records received
    into evidence at trial. Stricklin alleges that if his attorney had
    objected to the cell phone evidence on the ground of “authen-
    tication of who was actually using the cellphones in ques-
    tion,” the corroborative cell phone evidence would have been
    excluded. Stricklin’s allegations are nearly identical to those
    made by Newman in his motion for postconviction relief, and
    they fail for the same reason.
    As we discussed in Newman, the files and records affirma-
    tively show an authentication objection would not have been
    successful and, therefore, Stricklin’s counsel could not have
    been ineffective for failing to make such an objection.39 The
    district court correctly denied postconviction relief on this
    claim without an evidentiary hearing.
    8. Motion for New Trial
    Stricklin alleges his trial counsel was ineffective in handling
    his motion for new trial. He alleges counsel was deficient in
    two respects: (1) abandoning certain grounds that had been
    alleged in the motion and (2) failing to adduce certain evidence
    at the hearing.
    (a) Abandoned Arguments
    Stricklin alleges his trial counsel filed a motion for new trial
    alleging juror misconduct, irregularities in the proceedings, the
    verdict was not supported by sufficient evidence, the verdict
    was contrary to law, error in the jury instructions, and failure
    to sustain his motion for directed verdict. At the hearing on
    the motion for new trial, counsel argued only the issue of juror
    38
    See 
    id.
    39
    See, Newman, supra note 36; Vo, supra note 24.
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    misconduct. Stricklin alleges his counsel abandoned the other
    arguments out of “neglect and inattention,” and he alleges gen-
    erally that if the other grounds had been pursued they would
    have been meritorious.
    Stricklin’s conclusory allegation that the abandoned argu-
    ments would have been meritorious is not supported by any
    factual allegations and is insufficient to show either deficiency
    in performance or resulting prejudice. The district court did not
    err in denying postconviction relief on this claim without an
    evidentiary hearing.
    (b) Failure to Call
    Additional Witness
    As noted, Stricklin’s motion for new trial was premised on
    juror misconduct when, after the first day of deliberation, a
    juror made a telephone call to his brother and discussed the
    status of his vote. Stricklin alleges his counsel performed
    deficiently during the hearing on his motion.
    At the hearing on the motion for new trial, portions of
    an affidavit from the juror were admitted into evidence and
    the juror was questioned by counsel for both Stricklin and
    Newman. The juror admitted he had telephoned his brother
    during an evening recess from deliberations. The juror told
    his brother, who lives in Georgia, that he was a juror in
    a murder trial, that he was the only juror wanting to vote
    “not guilty,” and that he did not know what he was going to
    do. During the conversation with his brother, the juror also
    learned that his father was an acquaintance of Stricklin and
    Newman. Eventually, the jury returned a unanimous verdict
    of guilt.
    After this hearing, the district court found the juror had
    committed misconduct, but that Stricklin had not been prej-
    udiced by the misconduct. On direct appeal, we agreed,
    reasoning:
    [W]e agree with the district court that Stricklin was
    not prejudiced by the extraneous information received
    by the juror during the telephone call to his brother.
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    Whether prejudice resulted from jury misconduct must
    be resolved by the trial court’s drawing reasonable infer-
    ences as to the effect of the extraneous information on an
    average juror. The test to determine whether extraneous
    material was prejudicial looks to the possible effect of
    the extraneous material on an average juror’s delibera-
    tive process.
    The extraneous information received by the juror
    would not have affected an average juror’s deliberative
    process. The district court determined that the juror had
    testified credibly that his brother informed him only that
    his father and [Stricklin and Newman] had a neutral
    acquaintance. . . . We agree with the district court that
    such knowledge of a neutral family acquaintance would
    not motivate an average juror to change his vote from not
    guilty to guilty.40
    In his postconviction motion, Stricklin alleges his counsel
    was ineffective because he asked objectionable questions about
    the juror’s thought process and he “should have known bet-
    ter.” He also alleges his attorney was deficient for not calling
    the juror’s brother as a witness during the hearing. Because
    Stricklin’s brief argues only the latter allegation, we limit our
    analysis accordingly.41
    Stricklin alleges that if his attorney had called the juror’s
    brother to testify, the brother would have established that (1)
    the juror was aware before beginning deliberations that his
    family knew Stricklin and Newman and (2) the juror’s father
    once injured his shoulder in an altercation with Newman.
    The district court found this alleged testimony, even if
    proved, would have been cumulative to similar testimony
    adduced during the hearing, so any deficiency could not
    have prejudiced Stricklin. Our de novo review leads us to the
    same conclusion.
    40
    Stricklin, supra note 1, 290 Neb. at 569-70, 861 N.W.2d at 391-92.
    41
    See Fetherkile, 
    supra note 31
    .
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    Several individuals testified at the hearing on the motion
    for new trial, including the juror accused of misconduct and
    the private investigator hired by the defense. Stricklin and
    Newman also testified via an offer of proof. The private inves-
    tigator testified the juror had told him that the day before delib-
    erations began, he started thinking he might know Stricklin and
    Newman, because he recognized some people in the gallery,
    and that was one of the reasons he called his brother. Newman
    testified that he knew the juror’s family but had not recog-
    nized the juror. Newman also described an altercation with the
    juror’s father: “It was just once. Me and him was wrestling
    around, and I hip tossed him and threw his shoulder out of
    a socket.”
    Because the purported testimony of the juror’s brother would
    have been cumulative to other similar testimony, any deficient
    performance by trial counsel in not calling the brother did not
    result in prejudice to Stricklin. The district court did not err in
    denying this claim without an evidentiary hearing.
    9. Failure to Investigate
    Stricklin alleges that despite his request, trial counsel failed
    to “independently interview, depose, subpoena, or contact” var-
    ious witnesses. In this regard, Stricklin presents some claims
    which are nearly identical to Newman’s, and other claims
    which Newman did not raise.
    [18,19] A defense attorney has a duty to make reasonable
    investigations or to make a reasonable decision that makes
    particular investigations unnecessary.42 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.43 Strategic decisions made by
    trial counsel will not be second-guessed so long as those deci-
    sions are reasonable.44
    42
    State v. Alarcon-Chavez, 
    295 Neb. 1014
    , 
    893 N.W.2d 706
     (2017).
    43
    
    Id.
    44
    
    Id.
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    (a) Same Witnesses
    as Newman
    Stricklin alleges his counsel failed to “independently inter-
    view, depose, subpoena, or contact” many of the same potential
    witnesses identified in Newman’s postconviction motion. Like
    Newman, Stricklin alleges these witnesses would have testified
    to hearing that unnamed “Mexicans” or “Latino’s” had killed
    Noriega and Morales; to hearing gunshots near the crime scene
    around 1:15 p.m. on the day of the shootings; to observing two
    men standing in a parking lot near the crime scene around 1
    p.m. on the day of the shootings; to being scared of Herrera-
    Gutierrez and not believing his story “add[ed] up”; to observ-
    ing Herrera-Gutierrez “acting crazy” on the day of the shoot-
    ings; and to the belief that Noriega and Morales were “killed
    over drugs.”
    The district court addressed all of these allegations col-
    lectively and concluded Stricklin had failed to allege how
    deposing or subpoenaing any of these witnesses would have
    produced a different outcome at trial. For the same reason,
    we found these allegations insufficient to show prejudice in
    Newman’s postconviction case, we find them insufficient in
    Stricklin’s case.
    Considering the alleged testimony of these potential wit-
    nesses in the context of all the evidence adduced at trial, we
    conclude the 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 the claims involving these witnesses without
    an evidentiary hearing.
    (b) Police Investigation
    Stricklin’s motion alleges his counsel did not investigate
    “irregularities” in the police investigation. He alleges the
    lead detective told crime scene technicians not to preserve
    blood evidence, gave false testimony at the suppression hear-
    ing, failed to check Herrera-Gutierrez’ fingerprints against
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    crime scene prints, and would unexpectedly show up at the
    jail while Stricklin was meeting with his trial counsel, which
    Stricklin alleged was an attempt to intimidate him.
    Stricklin has not alleged which witnesses would have testi-
    fied to these irregularities, nor has he alleged how his counsel’s
    failure to investigate any of these alleged actions prejudiced
    his defense. For these reasons, we find no error in the district
    court’s denial of an evidentiary hearing on this claim.
    (c) Other Possible Suspects
    Stricklin’s postconviction motion also alleges his counsel
    failed to investigate and present evidence of two other poten-
    tial suspects: Marcus Jefferson and James Moore.
    Stricklin alleges that 2 days after the shooting, his half
    brother, Marcus Jefferson, told him that Morales had been
    “murdered by a guy named James Moore” because Morales
    had sold Moore “bad drugs” and refused to correct the problem
    or refund the money. Stricklin alleges he told his counsel about
    this discussion but counsel failed to investigate Moore as a
    potential suspect.
    Stricklin also alleges he asked his counsel to investigate
    Jefferson as a potential suspect. Stricklin alleges he told his
    counsel that after the shootings, Jefferson seemed to know
    details of the crime that were not yet public. He also alleges
    Jefferson had a motive to murder Morales, because Morales
    owed Jefferson “alot [sic] of money” as a result of a fire in
    Morales’ shop that destroyed Jefferson’s “show car.”
    Stricklin’s motion generally suggests that if his counsel
    had investigated this information, Jefferson and Moore would
    have been identified as suspects and the result of the trial
    would have been different. We conclude these allegations
    are sufficient, if proved, to allege both deficient performance
    and prejudice. Thus, Stricklin is entitled to an evidentiary
    hearing on his allegation that counsel was ineffective for
    failing to investigate the information related to Jefferson
    and Moore.
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    10. Motion in Limine and
    Confidential Informant
    Stricklin alleges his trial counsel was ineffective when he
    failed to “contact, interview, or depose” a confidential inform­
    ant. Details relating to the confidential informant are set forth
    in our opinion on Stricklin’s direct appeal.45
    The parties learned, summarized, that a confidential inform­
    ant had told police that 1 week before the crimes occurred,
    Morales told the informant he wanted to obtain firearms,
    because he was “having problems with two black males,” one
    of whom was nicknamed “‘Sip.’”46 The informant told police
    he was not sure of the origin of Morales’ problems with the
    men but believed it possibly arose from a “‘drug tax’” for sell-
    ing drugs in the neighborhood.47
    Both Stricklin and Newman filed motions in limine asking
    the court to allow the police detective to testify about the con-
    fidential informant’s statements. The district court overruled
    the motions in limine, finding the evidence was inadmissible
    hearsay. On Stricklin’s direct appeal, we affirmed, reasoning
    the proffered testimony involved two layers of hearsay and did
    not fall under any of the exceptions argued to and considered
    by the trial court.48
    In his postconviction motion, Stricklin alleges that after
    learning the identity of the confidential informant, his counsel
    failed to contact that informant or otherwise investigate what
    the informant had told police. Stricklin also alleges that he
    asked his counsel to show the confidential informant a photo-
    graph of “Sip” to confirm his identity. Stricklin alleges counsel
    never did so and, if he had, could have obtained enough cor-
    roborating evidence of trustworthiness so that the testimony of
    45
    Stricklin, supra note 1.
    46
    Id. at 553, 861 N.W.2d at 382.
    47
    Id. at 554, 861 N.W.2d at 382.
    48
    Id.
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    the confidential informant would have been admissible under
    the residual hearsay exception.49
    Stricklin’s argument appears to misunderstand the nature
    of the hearsay issue presented on direct appeal. In that
    appeal, we focused on the admissibility of Morales’ state-
    ments that he was seeking firearms because he was having
    issues with “Sip.” We held that such a statement was not
    against Morales’ penal interest50 and was not admissible under
    the residual hearsay exception.51 With respect to the latter, we
    reasoned Morales’ statements did not necessarily motivate
    him to speak truthfully, the statements were not made under
    oath, Morales was not subject to cross-examination, and there
    was no evidence he subsequently reaffirmed the statements.52
    We also reasoned that Morales’ statements established only
    that Morales was having trouble with other persons—it did
    not establish that Stricklin and Newman were innocent of
    the crimes.
    None of the allegations Stricklin makes in his motion would
    affect this analysis. We find the files and records affirmatively
    show counsel was not ineffective in this regard. Accordingly,
    the district court did not err in denying postconviction relief
    without an evidentiary hearing on this issue.
    11. A dvising Stricklin
    Not to Testify
    [20] Stricklin alleges his counsel was ineffective for advis-
    ing him not to testify. Defense counsel’s advice to waive the
    right to testify can present a valid claim of ineffective assist­
    ance of counsel in two instances: (1) if the defendant shows
    that counsel interfered with his or her freedom to decide to
    49
    See, 
    Neb. Rev. Stat. §§ 27-803
    (23) and 27-804(2)(e) (Reissue 2016); State
    v. Epp, 
    278 Neb. 683
    , 
    773 N.W.2d 356
     (2009).
    50
    See § 27-804(2)(c).
    51
    See § 27-804(2)(e).
    52
    Stricklin, 
    supra note 1
    .
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    testify or (2) if counsel’s tactical advice to waive the right
    was unreasonable.53
    Stricklin waived his right to testify in open court, and he
    makes no claim that his waiver was not free and voluntary or
    that counsel interfered with his freedom to decide whether to
    testify. Instead, he alleges his attorney’s advice not to testify
    was legally unreasonable and thus deficient, because it was
    incorrect to suggest he could have been asked about details of
    his prior crimes.
    Specifically, Stricklin alleges he chose not to testify based
    on counsel’s advice that if he testified, the State could adduce
    evidence that he went to prison for “selling drugs” and he
    would be “‘opening up a can of worms.’” He alleges this
    advisement was inaccurate and suggests his attorney should
    have advised him that if he testified, the jury could learn he
    was a convicted felon but that details of his prior crimes would
    be inadmissible.54
    Stricklin’s postconviction motion does not allege what his
    testimony would have been at trial or how it would have
    changed the outcome of the trial. Instead, he alleges he was
    prejudiced because there was evidence the jury convicted him
    due to his silence. In support of such a contention, he points to
    one paragraph in the affidavit of the juror accused of miscon-
    duct. In that paragraph, the juror avers he changed his vote to
    guilty “primarily because [Stricklin and Newman] did not tes-
    tify and attempt to clear their names.” The trial court sustained
    the State’s objection to this paragraph and struck it pursuant
    to 
    Neb. Rev. Stat. § 27-606
    (2) (Reissue 2016). We express no
    opinion on whether an inadmissible averment in a juror’s affi-
    davit can ever support a showing of prejudice under Strickland,
    because we conclude, under the first prong of Strickland, that
    counsel’s advice was not deficient.
    53
    State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
     (2017).
    54
    See 
    Neb. Rev. Stat. § 27-608
    (2) (Reissue 2016).
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    The State points out that at the time of Stricklin’s trial, the
    law was unclear as to whether Stricklin could have been cross-
    examined under § 27-608(2) about the details of his prior
    felony drug conviction, and thus, the advice counsel gave
    him was not unreasonable. In fact, we addressed the inter-
    play between § 27-608 and 
    Neb. Rev. Stat. § 27-609
     (Reissue
    2016) for the first time in Stricklin’s direct appeal, noting it
    appeared there had been confusion on that issue and we had
    not previously addressed it.55
    After analyzing federal court decisions involving the fed-
    eral equivalent to §§ 27-608(2) and 27-609, we held that
    when impeaching a witness pursuant to § 27-609, once the
    conviction is established, the inquiry must end there and
    it is improper to inquire into the details.56 And we held
    that although § 27-608(2) permits questioning during cross-­
    examination on specific instances of prior conduct, those
    instances are limited to conduct not resulting in a prior
    conviction.57
    At the time Stricklin’s counsel advised him, this court had
    not yet addressed the interplay between §§ 27-608(2) and
    27-609. Thus, the tactical advice of Stricklin’s counsel was, at
    the time, not unreasonable and the district court did not err in
    denying this claim of ineffective assistance without an eviden-
    tiary hearing.
    12. Insufficiency of Evidence
    and Lack of I dentification
    Stricklin alleges his counsel was ineffective because, on
    direct appeal, he failed to include assignments of error that (1)
    the evidence at trial was insufficient to support his convictions
    and (2) there was an unduly suggestive identification of him
    as the perpetrator. Stricklin alleges generally that these claims
    55
    Stricklin, supra note 1.
    56
    Id.
    57
    Id.
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    would have been meritorious if raised and further alleges that
    counsel refused to raise these claims even though Stricklin
    “beg[ged]” him to. The record and files affirmatively refute
    these claims.
    (a) Identification
    Although Stricklin’s counsel did not argue on direct appeal
    that the pretrial identification procedure was unduly sug-
    gestive, the procedure was similar for both Stricklin and
    Newman. Newman did present such a claim on direct appeal,
    and we concluded it lacked merit.58 Thus, Stricklin’s appel-
    late counsel could not have been ineffective in failing to raise
    this claim.59
    (b) Insufficient Evidence
    Stricklin alleges his counsel was deficient in failing to
    assign, on direct appeal, that the evidence was insufficient
    to prove guilt beyond a reasonable doubt, because Herrera-
    Gutierrez’ testimony was not credible and was uncorroborated
    by forensic or circumstantial evidence. Newman raised the
    same claim in his direct appeal, and we found it lacked merit,
    reasoning:
    Newman’s arguments invite us to exceed the scope
    of our appellate review. We decline to do so. We have
    repeatedly stated that an appellate court does not resolve
    conflicts in the evidence, pass on the credibility of wit-
    nesses, or reweigh the evidence; such matters are for the
    finder of fact. From the jury’s verdicts, it is apparent that
    the jury found Herrera-Gutierrez to be credible. It is not
    the province of this court to question that determination.
    This assignment of error is without merit.60
    58
    Newman, supra note 26.
    59
    See, Fetherkile, 
    supra note 31
    ; State v. McLeod, 
    274 Neb. 566
    , 577, 
    741 N.W.2d 664
    , 674 (2007) (“[d]efense counsel is not ineffective for failing
    to raise an argument that has no merit”).
    60
    Newman, supra note 26, 290 Neb. at 582, 861 N.W.2d at 133-34.
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    The same analysis applies here. Thus, if Stricklin’s counsel
    had assigned error to the sufficiency of the evidence on direct
    appeal, the assignment would have been meritless. The district
    court did not err in denying postconviction relief without an
    evidentiary hearing on this claim.
    13. Failure to Obtain
    R ecord for A ppeal
    Stricklin alleges his counsel was ineffective on direct appeal
    because he failed to include a complete transcript in the appel-
    late record. Specifically, Stricklin argues his attorney failed to
    include two items in the appellate transcript: (1) his motion to
    sever and (2) a supplemental jury instruction.
    Stricklin’s postconviction motion does not allege how these
    omissions affected the outcome of his appeal. His allega-
    tions are therefore insufficient to allege prejudice and do not
    warrant an evidentiary hearing. The district court correctly
    denied postconviction relief on these claims without an eviden-
    tiary hearing.
    14. Actual Innocence
    Stricklin alleges he is entitled to postconviction relief
    because he is actually innocent. He alleges all of his allegations
    of ineffective assistance of counsel support this claim, and he
    also alleges that the evidence adduced was so lacking in cred-
    ibility that it cannot be used to establish his guilt.
    [21] Newman made essentially the same allegations and
    raised the same argument in his appeal from the district court’s
    denial of an evidentiary hearing on his motion for postcon-
    viction relief. As we noted in our resolution of Newman’s
    appeal, the threshold showing that must be made to entitle a
    prisoner to an evidentiary hearing on a postconviction claim
    of actual innocence is extraordinarily high, because after a fair
    trial and conviction, the presumption of innocence vanishes.61
    61
    Newman, supra note 36, citing State v. Dubray, 
    294 Neb. 937
    , 
    885 N.W.2d 540
     (2016).
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    Stricklin’s allegations, like those made by Newman, largely
    attack the weight of the evidence used against him and do
    not meet the high threshold. The district court did not err in
    denying postconviction relief on this claim without an eviden-
    tiary hearing.
    V. CONCLUSION
    The district court properly denied an evidentiary hearing
    on most of Stricklin’s allegations, as Stricklin either failed
    to make sufficient factual allegations to support his claims
    or the files and records affirmatively show he is not entitled
    to relief.
    However, Stricklin is entitled to an evidentiary hearing on
    his claims that trial counsel (1) failed to file notice of and
    present evidence of his alibi defense and (2) failed to inves-
    tigate information regarding potential suspects Jefferson and
    Moore.
    We thus affirm in part, and in part reverse and remand for
    an evidentiary hearing limited to these two claims.
    A ffirmed in part, and in part reversed
    and remanded with directions.
    Heavican, C.J., not participating.