State v. Parnell , 305 Neb. 932 ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/10/2020 08:08 AM CDT
    - 932 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    State of Nebraska, appellee, v.
    Tracy N. Parnell, appellant.
    ___ N.W.2d ___
    Filed May 29, 2020.     No. S-19-425.
    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
    demonstrate a violation of his or her constitutional rights or that the
    record and files affirmatively show that the defendant is entitled to
    no relief.
    2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
    in a postconviction proceeding is procedurally barred is a question of
    law which is reviewed independently of the lower court’s ruling.
    3. Postconviction. Postconviction relief is a very narrow category of
    relief.
    4. Postconviction: Appeal and Error. A motion for postconviction relief
    cannot be used to secure review of issues which were or could have
    been litigated on direct appeal.
    5. Postconviction: Proof. 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.
    6. ____: ____. In the absence of alleged facts that would render the judg-
    ment void or voidable, the proper course is to overrule a motion for
    postconviction relief without an evidentiary hearing.
    7. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
    of ineffective assistance of appellate counsel which could not have been
    raised on direct appeal may be raised on postconviction review.
    8. ____: ____: ____. When a person seeking postconviction relief has
    different counsel on appeal than at trial, the motion for postconviction
    - 933 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    relief is procedurally barred if the person seeking relief (1) knew of the
    issues assigned in the postconviction motion at the time of the direct
    appeal, (2) failed to assign those issues on direct appeal, and (3) did not
    assign as error the failure of appellate counsel on direct appeal to raise
    the issues assigned in the postconviction motion.
    9. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. 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 per­
    formance was deficient and that this deficient performance actually
    prejudiced the defendant’s defense. To show prejudice under the preju-
    dice component of the Strickland test, the defendant must demonstrate
    a reasonable probability that but for his or her counsel’s deficient per-
    formance, the result of the proceeding would have been different. A rea-
    sonable 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 probability sufficient to undermine confidence in
    the outcome.
    10. 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 appeal of ineffective assistance of trial counsel (a layered
    claim of ineffective assistance of counsel), an appellate court will look
    at whether trial counsel was ineffective under the two-part test for inef-
    fectiveness established 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.
    11. ____: ____. Much like claims of ineffective assistance of trial counsel,
    a defendant claiming ineffective assistance of appellate counsel must
    show that but for appellate counsel’s failure to raise the claim, there is a
    reasonable probability that the outcome would have been different.
    Appeal from the District Court for Douglas County: Gary
    B. Randall, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    - 934 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    Funke, J.
    Tracy N. Parnell appeals from the denial of postconvic-
    tion relief without an evidentiary hearing. Parnell asserts that
    the trial court erred in determining that his claims of ineffec-
    tive assistance of appellate counsel are procedurally barred.
    Although we agree that one of Parnell’s claims is not procedur-
    ally barred, we nonetheless conclude that Parnell is not entitled
    to relief. We therefore affirm.
    BACKGROUND
    Convictions and Sentences
    In State v. Parnell, 1 this court affirmed Parnell’s jury trial
    convictions of first degree murder, attempted first degree mur-
    der, two counts of use of a deadly weapon to commit a felony,
    and possession of a weapon by a prohibited person. The district
    court for Douglas County sentenced Parnell to life imprison-
    ment on the murder conviction, 40 to 50 years’ imprisonment
    for attempted first degree murder, 40 to 50 years’ imprisonment
    for each count of use of a deadly weapon to commit a felony,
    and 3 to 20 years’ imprisonment for possession of a weapon by
    a prohibited person, to be served consecutively, with credit for
    time served. The facts which resulted in Parnell’s convictions
    are set forth in our opinion on direct appeal.
    On October 30, 2012, at around 8:14 p.m., Eriana Carr and
    Nakia Johnson were shot in Omaha, Nebraska. Carr was shot
    twice and died from her injuries. Johnson was shot 11 times
    and survived. Johnson told investigators that the shots came
    from “a blue Nissan Altima with a messed up front bumper.”
    Johnson stated that Parnell and three others threatened her at
    a party at her friend’s apartment 2 days before the shooting,
    because “they felt like [she] had brought someone into the
    house from another side,” or “[a]nother hood.”
    Detectives discovered that Parnell had been stopped while
    driving a blue Nissan Altima several months earlier. The
    1
    State v. Parnell, 
    294 Neb. 551
    , 
    883 N.W.2d 652
    (2016).
    - 935 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    registered owner of the car was Jasmine Nero, the mother of
    Parnell’s child. When interviewed by investigators, Parnell
    denied any knowledge of an Altima and stated that he never
    drove any of Nero’s vehicles.
    Parnell spoke to Nero about the Altima in a call from jail.
    Nero testified that she understood from that call that Parnell
    wanted her “to get rid of” the car. Nero moved the car to
    a garage, where investigators later found it. The car’s front
    bumper was damaged, and it contained a box with Parnell’s
    thumbprint on it.
    Pretrial Discovery
    Prior to trial, Parnell filed a motion to exclude the State’s
    expert witness William Shute, a special agent with the Federal
    Bureau of Investigation (FBI) and a member of the FBI’s
    “Cellular Analysis Survey Team” who performs “historical
    cell site analysis” using call detail records provided by cellu-
    lar carriers. Shute explained that call records show the tower
    and the sector that a particular cell phone used. Cell towers
    usually have three sectors. The towers and sectors can be
    plotted on a map in order to locate a cell phone at a particu-
    lar time.
    Shute testified regarding the locations of Parnell’s cell phone
    around the time of the shooting. Parnell’s call detail records
    showed that his cell phone connected to tower: (1) 201 at 7:52
    p.m., (2) 729 at 8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20
    p.m., and (5) 201 at 8:20 p.m. Shute plotted the towers and
    their coverage areas on a map. He testified that the coverage
    areas for towers 201 and 729 overlap and that the way Parnell’s
    cell phone switched between towers 201 and 729 showed it
    was definitely located within the overlapping coverage area
    at the time of the shooting. The court overruled the motion to
    exclude, finding that Shute was qualified to testify as an expert
    and that his methods were reliable.
    Parnell’s counsel later moved to exclude Shute’s testimony or
    continue trial based on the discovery of undisclosed evidence.
    Counsel filed an affidavit stating that he attended a seminar
    - 936 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    with a presentation by cellular analyst Michael O’Kelly. The
    State had disclosed in discovery that O’Kelly had performed
    cell phone mapping services on the case for the Omaha Police
    Department (OPD). In response to a question from Parnell’s
    counsel, O’Kelly stated that he performed more serv­ices than
    disclosed in the report. In supplemental discovery, O’Kelly
    provided Parnell’s counsel with an affidavit detailing his inter-
    actions with the State, and the State disclosed a series of
    emails between O’Kelly, a detective of the OPD, and a deputy
    county attorney.
    In the emails, the detective asked O’Kelly if he had a formal
    report to present to the county attorney. O’Kelly responded
    that he could do so in about 10 days. He stated, “Remember,
    if it’s in writing it’s Discoverable[.] I would recommend the
    county attorney and I visiting and then letting them decide.”
    O’Kelly then later wrote to the deputy county attorney, “It was
    a pleasure visiting Friday[.] I am sending the cell maps and my
    cell forms, guides and CV[.] When you have a moment after
    reviewing these, call and I will walk you through each.”
    In his affidavit, O’Kelly stated that he “reviewed the . . .
    call detail records and concluded that [Parnell’s cell phone]
    appeared to travel from the west side of Omaha [where Parnell
    lived] to the east side, then north and south and then travel-
    ing back to the general area on the west side.” O’Kelly said
    that he “began processing and mapping the individual cell
    site registrations. The handset transition west to east, north/
    south and east to west activities were confirmed.” He then
    provided the OPD detective with “multiple maps depicting
    handset movements consistent with cell site registrations that
    supported physical movement from Omaha’s west side to the
    east side and possible travel movements north and south on the
    east side.”
    O’Kelly also stated that he informed the detective that “it
    is impossible to identify a specific location stop(s), specific
    surface roadway travels based upon the existing cellular data.”
    He stated that “drawing circles and other shapes with defined
    - 937 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    boundaries is unreliable and at best simple guessing with an
    agenda. The ‘guessing’ may be based upon experience and
    training but will still have no foundation and/or credible sup-
    port that is rooted with existing electronic wireless data.”
    And he stated that “in order to possibly place the subject
    [cell phone] in the immediate area of the crime scene . . . it
    will be necessary to conduct an RF Signal Field Survey.” He
    explained that his approach to performing such a survey, or
    drive test, “is time consuming and labor intensive covering
    days if not weeks.”
    In his motion to exclude Shute’s testimony or continue trial,
    Parnell argued that the State failed to disclose O’Kelly’s opin-
    ions that a drive test was necessary and that the FBI’s methods
    were not reliable. In support of his motion, Parnell offered
    O’Kelly’s affidavit, but not the emails. The State responded
    that O’Kelly’s opinion was not exculpatory and that O’Kelly
    placed Parnell’s cell phone in the same area as Shute had,
    although O’Kelly was not as specific. The court overruled the
    motion, finding the evidence was not exculpatory and had been
    provided at an early date. The court permitted Parnell to retain
    O’Kelly as an expert witness and allowed 12 days to prepare
    his testimony.
    Before trial, Parnell renewed his motion to continue the trial,
    offering the email exchanges with O’Kelly as support. The
    court overruled the renewed motion.
    Trial
    At trial, Johnson testified and described the shooting, the
    blue Nissan Altima, and the threatening incident 2 days before
    the shooting. Nero testified regarding the Altima and her rela-
    tionship with Parnell. Nero testified that she lied to police for
    Parnell and was charged as an accessory to a felony. Shute
    testified that towers 201 and 729 form an overlap area and that
    Parnell was within the overlap area at the time of the shooting.
    O’Kelly was present throughout the trial but did not testify.
    The jury returned a verdict of guilty on all counts.
    - 938 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    Motion for New Trial
    Parnell timely moved for a new trial. He offered a second
    affidavit from O’Kelly which he contended showed proof of
    newly discovered evidence which could not have been discov-
    ered and produced at trial. O’Kelly averred that after his initial
    work on Parnell’s case, he “informed the government that addi-
    tional field testing by means of a ‘drive test’ would be required
    in order to move from speculation to accuracy in the cell tower
    connection plotting.” A drive test involves making cell phone
    calls while driving and then obtaining call detail records to see
    which towers the cell phone used. Shute did not perform such
    a drive test.
    O’Kelly began a drive test on the last day of the trial. He
    averred that the drive test revealed that the crime scene was
    between towers 201 and 729, which are 1.84 miles apart. The
    drive test showed that the coverage areas for towers 201 and
    729 do not overlap or border each other, as Shute claimed.
    O’Kelly stated that Parnell had to have left the crime scene in
    order to connect to tower 729. However, O’Kelly also said that
    the data showed that Parnell’s cell phone “was in the general
    vicinity (1 - 2 miles of the crime scene) before, during and
    after the shooting.”
    The district court overruled the motion for new trial, finding
    that O’Kelly’s opinions could have been discovered and pro-
    duced using reasonable diligence. In addition, the court found
    that Parnell could have disputed Shute’s testimony by calling
    O’Kelly as a witness. The court noted that the State had dis-
    closed early in the discovery process that O’Kelly had worked
    on the case. Lastly, the court concluded that O’Kelly’s opinions
    were not material, because they would not have affected the
    outcome of trial. The court found that the drive test results
    “seem to incriminate [Parnell].”
    Direct Appeal
    On direct appeal, Parnell assigned that the district court
    erred in overruling his motion to exclude Shute’s testimony
    - 939 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    or continue trial and his motion for a new trial. Parnell also
    claimed that his trial counsel was ineffective because he did
    not call O’Kelly to testify as an expert witness at trial.
    We found no merit to any of Parnell’s assigned errors. We
    found that under Brady v. Maryland, 2 the timing of the State’s
    disclosure of O’Kelly’s opinions did not violate Parnell’s
    right to due process because the State disclosed the evidence
    1 week before trial. We found that the State had no duty
    to disclose O’Kelly’s oral, unrecorded opinions under Neb.
    Rev. Stat. § 29-1912 (Reissue 2016), because his comments
    on the need for more data were akin to an internal, informal
    document and were not results or reports of examinations or
    scientific tests under § 29-1912(1)(e). We also found Parnell
    did not make it clear to the district court that O’Kelly required
    more than 12 days to perform a drive test. We therefore con-
    cluded that the district court did not abuse its discretion in
    overruling Parnell’s motion to exclude Shute’s testimony or
    continue trial.
    We rejected Parnell’s argument that the court erred in over-
    ruling his motion for a new trial, finding that, even assuming
    O’Kelly’s opinions constituted newly discovered evidence,
    there was not a reasonable probability of a substantially dif-
    ferent result. We found that even though O’Kelly criticized
    the precision of Shute’s opinions, O’Kelly’s opinions still
    incriminated Parnell, because O’Kelly placed Parnell’s cell
    phone within 1 to 2 miles of the crime scene before, dur-
    ing, and after the shooting. In addition, the incriminating
    testimony of Johnson and Nero substantially diminished the
    importance of the evidence regarding the location of Parnell’s
    cell phone.
    In addressing Parnell’s argument that his trial attorneys
    were ineffective for failing to call O’Kelly to testify, we first
    addressed whether Parnell was represented by the same coun-
    sel at trial as on appeal and concluded that he was not. We
    2
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963).
    - 940 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    found that the two attorneys who represented Parnell at trial
    intended to withdraw in the trial court, but because there was
    no order memorializing their withdrawal, they were certified
    as appellate counsel to this court, and that they did not then
    file a motion to withdraw in this court. In response to our
    show cause order, Parnell’s trial counsel submitted affidavits
    stating that they had no contact with him after sentencing
    and did not participate in his appeal. As such, we concluded
    that we were able to address Parnell’s ineffectiveness claim
    on direct appeal. We found that had O’Kelly testified, the
    outcome would not have been different, because he opined
    that Parnell’s cell phone was near the crime scene when the
    shooting occurred. We determined that the record conclusively
    refuted Parnell’s claim that he was prejudiced by the actions
    of his trial counsel.
    Postconviction
    As a self-represented litigant, Parnell filed a motion for
    postconviction relief which asserted claims of trial court error,
    prosecutorial misconduct, and ineffective assistance of trial
    and appellate counsel. Most of the allegations in Parnell’s
    motion concern issues previously raised and addressed on
    direct appeal, especially with regard to O’Kelly’s opinions and
    the drive test. Of particular note in this appeal, Parnell alleged
    that his trial counsel and appellate counsel failed to “submit”
    the email exchanges with O’Kelly to show that O’Kelly’s data
    is more reliable than Shute’s data. Parnell further alleged that
    the State committed prosecutorial misconduct by “allowing the
    testimony of Shute at trial knowing that his testimony as an
    expert was not accurate.” He alleged that, contrary to Shute’s
    testimony that cell towers 201 and 729 form an overlap area,
    O’Kelly opined that the cell tower areas do not overlap and that
    the performance of a drive test was required in order to obtain
    more accurate data. The district court dismissed the motion
    without an evidentiary hearing, concluding that all of Parnell’s
    claims are procedurally barred because they were known or
    - 941 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    knowable at the time of his direct appeal. Parnell filed a notice
    of appeal. Parnell’s counsel entered his appearance and filed a
    brief on his behalf.
    ASSIGNMENTS OF ERROR
    Parnell assigns, restated, that the district court erred in
    determining that his claims for postconviction relief are pro-
    cedurally barred; in particular, his claim in which he alleges
    that appellate counsel was ineffective by failing to raise trial
    counsel’s failure to “introduce certain evidence and correct
    prosecutorial misconduct.” In the alternative, Parnell assigns
    that the court erred in determining that any of his claims are
    procedurally barred because it was unclear as to whether he
    was represented by the same lawyers during trial and direct
    appeal.
    STANDARD OF REVIEW
    [1,2] 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
    affirmatively show that the defendant is entitled to no relief. 3
    Whether a claim raised in a postconviction proceeding is pro-
    cedurally barred is a question of law which is reviewed inde-
    pendently of the lower court’s ruling. 4
    ANALYSIS
    Parnell argues that the district court erred in determining
    that all of his claims are procedurally barred, because his
    motion raises ineffective assistance of appellate counsel claims
    and postconviction is his first opportunity to raise such claims.
    The State does not contest this point, but argues that based on
    the ineffective assistance of appellate counsel allegations raised
    in the motion, Parnell is entitled to no relief.
    3
    State v. Hessler, ante p. 451, 
    940 N.W.2d 836
    (2020).
    4
    State v. Mata, 
    304 Neb. 326
    , 
    934 N.W.2d 475
    (2019).
    - 942 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    [3,4] Under the Nebraska Postconviction Act, 5 a prisoner
    in custody may file a motion for relief on the ground that
    there was a denial or infringement of the prisoner’s consti-
    tutional rights that would render the judgment void or void-
    able. Postconviction relief is a very narrow category of relief. 6
    A motion for postconviction relief cannot be used to secure
    review of issues which were or could have been litigated on
    direct appeal. 7
    [5,6] 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 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. 8 In a motion for postconviction relief, the defend­
    ant must allege facts which, if proved, constitute a denial
    or violation of his or her rights under the U.S. or Nebraska
    Constitution. 9 In the absence of alleged facts that would ren-
    der the judgment void or voidable, the proper course is to
    overrule a motion for postconviction relief without an eviden-
    tiary hearing. 10
    Claims Procedurally Barred
    Parnell contends that his claims of prosecutorial miscon-
    duct were not procedurally barred. However, we agree with
    the State that this portion of Parnell’s motion asserts in a con-
    clusory fashion, without factual support, that he was denied
    ineffective assistance of appellate counsel. An evidentiary
    hearing is not required when a motion for postconviction
    5
    Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
    6
    State v. Beehn, 
    303 Neb. 172
    , 
    927 N.W.2d 793
    (2019).
    7
    Mata, supra note 4.
    8
    State v. Newman, 
    300 Neb. 770
    , 
    916 N.W.2d 393
    (2018).
    9
    Id. 10 State
    v. Allen, 
    301 Neb. 560
    , 
    919 N.W.2d 500
    (2018).
    - 943 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    relief alleges only conclusions of fact or law without support-
    ing facts. 11
    Upon review of the allegations supporting Parnell’s pros-
    ecutorial misconduct claims, it is clear that he did not allege
    that his appellate counsel was ineffective for failing to raise on
    direct appeal that his trial counsel was ineffective for failing
    to raise the alleged prosecutorial misconduct with respect to
    Shute’s testimony. Additionally, he did not allege how inclu-
    sion of the issue would have changed the outcome of his direct
    appeal. Because Parnell’s prosecutorial misconduct claims do
    not include factual allegations concerning the effectiveness
    of appellate counsel, we do not view these claims as ineffec-
    tive assistance of appellate counsel claims, and as a result, the
    district court did not err when it determined these claims were
    procedurally barred.
    Claim Not Procedurally Barred
    While we agree with the district court’s observation that
    Parnell’s motion mainly discusses claims that either were
    raised or could have been raised on direct appeal, upon de
    novo review of Parnell’s postconviction motion, and in consid-
    eration of the errors assigned by Parnell in this appeal, we find
    that Parnell has raised one ineffective assistance of appellate
    counsel claim which is not procedurally barred and must be
    analyzed under Strickland v. Washington. 12
    [7] In the instant case, Parnell was represented by differ-
    ent counsel on direct appeal than at trial. Ordinarily, when a
    defendant’s trial counsel is different from his or her counsel
    on direct appeal, the defendant must raise on direct appeal
    any issue of trial counsel’s ineffective performance which
    is known to the defendant or is apparent from the record. 13
    11
    Id. 12 Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674
    (1984).
    13
    Parnell, supra note 1.
    - 944 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    Otherwise, the issue will be procedurally barred. 14 A claim
    of ineffective assistance of appellate counsel which could not
    have been raised on direct appeal may be raised on postconvic-
    tion review. 15
    Parnell’s counsel on direct appeal argued that trial coun-
    sel was ineffective for failing to call O’Kelly as a witness.
    For reasons previously discussed herein, we rejected Parnell’s
    argument, because O’Kelly’s testimony tended to incriminate
    Parnell and had O’Kelly testified, the outcome of trial would
    have been the same. In his motion for postconviction relief,
    Parnell asserts that his appellate counsel was ineffective for
    failing to raise trial counsel’s failure to “submit the e-mails by
    [the OPD detective, the deputy county attorney,] and O’Kelly,
    concerning their meeting about O’Kelly’s data being more reli-
    able than Shute’s data.”
    [8] When a person seeking postconviction relief has differ-
    ent counsel on appeal than at trial, the motion for postconvic-
    tion relief is procedurally barred if the person seeking relief
    (1) knew of the issues assigned in the postconviction motion at
    the time of the direct appeal, (2) failed to assign those issues
    on direct appeal, and (3) did not assign as error the failure of
    appellate counsel on direct appeal to raise the issues assigned
    in the postconviction motion. 16 Here, the record reflects that at
    the time of his direct appeal, Parnell was aware of the fac-
    tual basis for his claim that trial counsel was ineffective for
    failing to “submit the e-mails.” While trial counsel did offer
    the emails in support of Parnell’s renewed motion to exclude
    Shute’s testimony or continue trial, the emails were not offered
    into evidence during trial for the jury’s consideration. Parnell’s
    appellate counsel did not assert this issue on direct appeal.
    Because Parnell alleged in his motion for postconviction relief
    that appellate counsel was ineffective in not doing so, the issue
    14
    Id. 15 State
    v. Vela, 
    297 Neb. 227
    , 
    900 N.W.2d 8
    (2017).
    16
    State v. Bishop, 
    263 Neb. 266
    , 
    639 N.W.2d 409
    (2002).
    - 945 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    was presented at Parnell’s first opportunity and is not procedur-
    ally barred. 17
    Because we conclude that Parnell has raised an ineffective
    assistance of appellate counsel claim that is not procedurally
    barred, we do not reach Parnell’s alternative assignment of
    error that the court erred in determining that any of his claims
    are procedurally barred because it was unclear as to whether
    he was represented by the same lawyers during trial and
    direct appeal.
    An appellate court is not obligated to engage in an analysis
    that is not necessary to adjudicate the case and controversy
    before it. 18 Moreover, it is clear from the discussion on this
    issue in our opinion on direct appeal that Parnell’s counsel on
    appeal was different than his counsel at trial.
    Appellate Counsel Not Ineffective
    Although we find that Parnell’s motion raises a discrete
    issue that is not procedurally barred, given that we concluded
    on direct appeal that Parnell was not prejudiced by counsel’s
    failure to call O’Kelly as a witness, we similarly conclude
    that Parnell failed to show that he was prejudiced by counsel’s
    failure to submit the emails by the OPD detective, the deputy
    county attorney, and O’Kelly into evidence at trial.
    [9] A proper ineffective assistance of counsel claim alleges a
    violation of the fundamental constitutional right to a fair trial. 19
    To prevail on a claim of ineffective assistance of counsel under
    Strickland, the defendant must show that his or her counsel’s
    performance was deficient and that this deficient performance
    actually prejudiced the defendant’s defense. 20 To show preju-
    dice under the prejudice component of the Strickland test, the
    defendant must demonstrate a reasonable probability that but
    17
    See
    id. 18 State
    v. Goynes, 
    303 Neb. 129
    , 
    927 N.W.2d 346
    (2019).
    19
    Vela, supra note 15.
    20
    Id. - 946
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    for his or her counsel’s deficient performance, the result of the
    proceeding would have been different. 21 A reasonable prob-
    ability 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 probability sufficient to undermine
    confidence in the outcome. 22
    [10,11] When a claim of ineffective assistance of appel-
    late counsel is based on the failure to raise a claim on appeal
    of ineffective assistance of trial counsel (a layered claim of
    ineffective assistance of counsel), an appellate court will look
    at whether trial counsel was ineffective under the Strickland
    test. 23 If trial counsel was not ineffective, then the defendant
    was not prejudiced by appellate counsel’s failure to raise the
    issue. 24 Much like claims of ineffective assistance of trial coun-
    sel, the defendant must show that but for counsel’s failure to
    raise the claim, there is a reasonable probability that the out-
    come would have been different. 25 In determining whether trial
    counsel’s performance was deficient, courts give counsel’s acts
    a strong presumption of reasonableness. 26
    In analyzing Parnell’s claim, we focus on the allegations
    in his postconviction motion. 27 Here, on the issue of preju-
    dice, Parnell alleged that had his trial counsel submitted the
    emails into evidence, “[t]his would have proved that the State
    knew that there existed exculpatorial [sic] material evidence
    that [Parnell] was possibly in another area of town when the
    21
    Id. 22 Id.
    23
    State v. Foster, 
    300 Neb. 883
    , 
    916 N.W.2d 562
    (2018), disapproved on
    other grounds, Allen, supra note 10.
    24
    Id. 25 Id.
    26
    Id. 27 See
    State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
    (2018), disapproved
    on other grounds, Allen, supra note 10 (appellate court will not consider
    factual allegations made for first time on appeal).
    - 947 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    murder was committed.” Based on the record, we find no
    support for Parnell’s claim that counsel’s introduction of the
    emails would have created a probability sufficient to under-
    mine confidence in the outcome at trial. This is because, as
    stressed by this court in its opinion on direct appeal, the testi-
    mony of Johnson and Nero provided powerful and compelling
    evidence of Parnell’s guilt, which significantly reduced the
    importance of the expert testimony concerning the location of
    Parnell’s cell phone. 28
    Johnson testified that Parnell had threatened her 2 days
    before the shooting and that the shooter was driving a blue
    Nissan Altima with a damaged bumper. Nero testified that
    Parnell drove her Altima on the night of the shooting, and she
    admitted to lying to police about the Altima in order to help
    Parnell. When police found the Altima, the car’s front bumper
    was damaged and an item inside the car contained Parnell’s
    thumbprint. Because these witnesses directly incriminated
    Parnell in several respects, even if the emails were introduced
    into evidence and effectively used to rebut aspects of Shute’s
    testimony, the likelihood of acquittal is low.
    This conclusion is reinforced when the actual content of the
    emails are considered. Had the jury been presented with the
    emails, it would have merely learned that O’Kelly met with
    the prosecution to discuss his report and findings and that the
    prosecution ultimately had Shute testify as an expert rather
    than O’Kelly. While Parnell’s claim about the emails does not
    refer to calling O’Kelly as a witness, his motion does state that
    the emails concern the prosecution’s “meeting about O’Kelly’s
    data being more reliable than Shute’s data.” Parnell’s claim of
    ineffectiveness therefore includes a comparison between the
    findings of the two experts. In evaluating this claim, we assume
    for the sake of argument only that Parnell’s trial counsel would
    have introduced the emails through O’Kelly as a witness and
    that the jury would then have learned O’Kelly’s opinions. We
    28
    See Parnell, supra note 1.
    - 948 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. PARNELL
    Cite as 
    305 Neb. 932
    explained on direct appeal that, although he was not as precise
    as Shute, O’Kelly’s testimony incriminated Parnell, because
    O’Kelly placed Parnell in the general vicinity of the crime
    scene at the time of the shooting. We must therefore conclude
    that trial counsel was not ineffective, because it is clear that
    trial counsel’s strategic decision not to call O’Kelly as a wit-
    ness and introduce the emails through him benefited Parnell,
    because O’Kelly would have incriminated Parnell. Because
    Parnell’s trial counsel was not ineffective, Parnell’s appellate
    counsel was not ineffective in failing to raise this issue, and
    Parnell suffered no prejudice as a result of the actions of appel-
    late counsel. Postconviction relief without an evidentiary hear-
    ing is properly denied when the files and records affirmatively
    show that the prisoner is entitled to no relief. 29
    CONCLUSION
    For the foregoing reasons, although our reasoning differs
    from that of the district court, we affirm the order of the dis-
    trict court denying Parnell’s motion for postconviction relief
    without an evidentiary hearing.
    Affirmed.
    Freudenberg, J., not participating.
    29
    State v. Fox, 
    286 Neb. 956
    , 
    840 N.W.2d 479
    (2013).