State v. Munoz , 309 Neb. 285 ( 2021 )


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    www.nebraska.gov/apps-courts-epub/
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    - 285 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    State of Nebraska, appellee, v.
    Lucio P. Munoz, appellant.
    ___ N.W.2d ___
    Filed May 21, 2021.     No. S-20-590.
    1. Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
    in a postconviction proceeding is procedurally barred is a question of
    law. When reviewing a question of law, an appellate court reaches a
    conclusion independent of the lower court’s ruling.
    3. Postconviction: Constitutional Law: Proof. A court must grant an
    evidentiary hearing to resolve the claims in a postconviction motion
    when the motion contains factual allegations which, if proved, consti-
    tute an infringement of the defendant’s rights under the Nebraska or
    federal Constitution.
    4. Effectiveness of Counsel: Proof. In order to establish a right to post-
    conviction relief based on a claim of ineffective assistance of coun-
    sel, the defendant has the burden, in accordance with Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), to
    show that counsel’s performance was deficient and that counsel’s defi-
    cient performance prejudiced the defense in his or her case.
    5. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
    the ineffective assistance of counsel test—deficient performance and
    prejudice—may be addressed in either order, and the entire ineffective-
    ness analysis is viewed with a strong presumption that counsel’s actions
    were reasonable.
    6. Effectiveness of Counsel: Proof. To show that counsel’s performance
    was deficient, a defendant must show that counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in crimi-
    nal law.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    7. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
    not required on a motion for postconviction relief when (1) the motion
    does not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights rendering the judg-
    ment void or voidable; (2) the motion alleges only conclusions of fact or
    law without supporting facts; or (3) the records and files affirmatively
    show that the defendant is entitled to no relief.
    8. Postconviction: Effectiveness of Counsel: Records: Appeal and
    Error. A motion for postconviction relief asserting ineffective assist­
    ance of trial counsel is procedurally barred where a defendant was
    represented by a different attorney on direct appeal than at trial and the
    alleged deficiencies in trial counsel’s performance were known or appar-
    ent from the record.
    9. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    10. Postconviction: Effectiveness of Counsel. To warrant an evidentiary
    hearing based on counsel’s failure to make an alibi defense, the defend­
    ant must allege something more than the broad factual conclusion that
    there was some unspecified evidence that would have shown the defend­
    ant was not in the vicinity at the time of the crime.
    11. Postconviction. In a motion for postconviction relief, a defendant is
    required to specifically allege what the testimony of potential witnesses
    would have been if they had been called at trial in order to avoid dis-
    missal without an evidentiary hearing.
    12. ____. Absent specific allegations, a motion for postconviction relief
    effectively becomes a discovery motion to determine whether evidence
    favorable to a defendant’s position actually exists.
    13. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
    one made by the declarant while testifying at the trial or hearing, offered
    in evidence to prove the truth of the matter asserted.
    14. Rules of Evidence: Hearsay. Hearsay is not admissible unless other-
    wise provided for in the Nebraska Evidence Rules or elsewhere.
    15. Effectiveness of Counsel. As a matter of law, counsel is not ineffective
    for not attempting to adduce inadmissible testimony.
    16. Appeal and Error. Appellate courts do not generally consider argu-
    ments and theories raised for the first time on appeal.
    17. Postconviction: Appeal and Error. In an appeal from the denial of
    postconviction relief, an appellate court will not consider for the first
    time on appeal claims that were not raised in the verified motion.
    Appeal from the District Court for Scotts Bluff County:
    Andrea D. Miller, Judge. Affirmed.
    - 287 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    Lucio P. Munoz, pro se.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    The defendant appeals from the denial of postconviction
    relief without an evidentiary hearing. The defendant had pre-
    sented four layered claims of ineffective assistance of counsel
    concerning the failure to investigate witnesses, make an alibi
    defense, present expert witness testimony, or move in limine to
    exclude statements. The district court found that the allegations
    presented no more than conclusions of fact and law that lacked
    the necessary specificity to warrant an evidentiary hearing.
    II. BACKGROUND
    Following a jury trial, Lucio P. Munoz was found guilty of
    first degree murder and use of a deadly weapon to commit a
    felony in relation to the death of his girlfriend. He was sen-
    tenced to life for the murder conviction and a consecutive 20 to
    40 years’ imprisonment for the weapon conviction.
    On direct appeal, we affirmed the convictions and sen­
    tences. 1 Munoz was represented by new counsel. Munoz sub-
    sequently filed a pro se motion for postconviction relief,
    which the district court denied without an evidentiary hearing.
    Munoz appeals.
    1. Trial
    The facts pertaining to the trial are fully set forth in our
    opinion in State v. Munoz. 2 We reiterate those facts that are
    most relevant to the postconviction motion.
    1
    See State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
     (2019).
    2
    
    Id.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    The State presented evidence that at approximately 10 p.m.
    on December 30, 2016, Munoz reported to a neighbor in his
    apartment complex that his girlfriend had been raped. The
    police were called, and two officers arrived at approximately
    11 p.m. The girlfriend, who was intoxicated and had been
    sleeping in Munoz’ bedroom, did not know why the police had
    been called and refused to make a report.
    At approximately 2 a.m. on December 31, 2016, Munoz
    called his son, stating he had done something bad and wanted
    to kill himself. The police were called and arrived around
    3 a.m. at Munoz’ apartment to check on him. Munoz said
    his girlfriend had gone home. The bedroom door was closed,
    and officers did not venture beyond it. Munoz went with the
    officers to a hospital after he locked his apartment door with
    a deadbolt.
    Munoz left the hospital around 8 a.m. and went directly to
    his son’s house. At some point, arrangements had been made
    for Munoz to visit his brother in Illinois. A friend drove him
    there that same day. Munoz did not stop at his apartment to
    retrieve any belongings.
    A neighbor alerted the property manager on January 3, 2017,
    that she had not seen Munoz or the victim since December 30.
    The property manager used a master key to unlock the deadbolt
    and found the deceased victim on the bed in the bedroom.
    An autopsy revealed the victim had suffered 37 stab wounds.
    She appeared to be wearing the same clothing that the officers’
    body cameras recorded her wearing on December 31, 2016.
    A sexual assault kit showed no DNA other than the victim’s.
    The State’s blood spatter expert described bloodstain patterns
    found at the scene, which indicated the brutal nature of the
    crime and that “[s]omebody with blood on them” had walked
    to the bathroom and washed it off. No forensic evidence was
    found that positively linked Munoz to the crime.
    Munoz has a brother in Texas who began searching for
    Munoz due to a concern that “something had happened . . .
    where he live[s].” When the brother was able to reach Munoz,
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    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    Munoz asked him to forgive him and said he was going to die
    in prison.
    After Munoz was located in another state, law enforcement
    was dispatched to transport him back to Nebraska. During the
    course of their travel, Munoz made several unsolicited com-
    ments to law enforcement, including that he was “going to get
    the death penalty.”
    2. Motion for Postconviction Relief
    In his motion for postconviction relief, Munoz alleged that
    trial counsel was ineffective for failing to object to jury instruc-
    tions and for failing to challenge jurors for cause. The district
    held that both of these allegations were procedurally barred for
    failing to raise such issues on direct appeal. In doing so, the
    district court stated, “When a defendant’s trial counsel is dif-
    ferent from his or her counsel on direct appeal, the defendant
    must raise on direct appeal any issue of trial counsel’s ineffec-
    tive performance which is known to the defendant or is appar-
    ent from the record.”
    Munoz also raised in his motion several layered claims
    against appellate counsel.
    (a) Alibi and Flight Witnesses
    and Alibi Defense
    First, Munoz alleged that trial counsel was deficient in fail-
    ing to depose or interview potential witnesses Manuel Trevino
    and Jolene Condon before trial. Munoz stated that Trevino and
    Condon had knowledge of Munoz’ “whereabouts.” In a sepa-
    rate section presumably referring to these witnesses but never
    mentioning any witness by name, Munoz also broadly alleged
    that trial counsel was ineffective for failing to make an “alibi-
    defense” based on “proof that he was nowhere in the v[i]cin-
    ity or area” when the victim was murdered. Munoz generally
    asserted that appellate counsel rendered ineffective assistance
    in relation to these claims.
    Munoz claimed Condon’s testimony “would have pre-
    sented an rebuttable presumption to the [S]tate’s theory of how
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    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    [Munoz] allegedly murdered the victim” and “would have con-
    tradicted the [S]tate’s evidence underlining proof of [Munoz’]
    alibi during the time of the victim’s murder.” He did not
    describe Condon’s potential testimony in any further detail.
    Munoz asserted Trevino had engaged in conversation with
    Munoz’ son “instrumental to [Munoz’] desire to travel out
    of town during the time the alleged crime supposedly took
    place,” which would have been “pivotal” “inasmuch that
    Trevino possess knowledge of the events unfolding that lead
    to [Munoz’] desire to travel, devoid of covering up, or having
    a scapegoat.”
    The district court denied Munoz’ claims relating to Trevino
    and Condon on the grounds that Munoz had failed to assert
    “any specific allegations as to what testimony witnesses would
    have given” or “any exculpatory evidence that has been uncov-
    ered by the testimony.” As to the separate alibi-defense claim,
    the court found there were “no facts asserted showing who
    would be called as an alibi, what the alibi would testify and
    thus no showing of any exculpatory evidence.”
    (b) Failure to Suppress Statements
    Second, Munoz asserted that trial counsel was ineffective by
    failing to suppress his “statements.” He generally asserted that
    appellate counsel rendered ineffective assistance in relation to
    this claim. Munoz did not elaborate in the motion as to what
    statements he was referring to or the reason why his statements
    were allegedly inadmissible. In denying the claim without an
    evidentiary hearing, the district court observed, “There are no
    facts asserted showing any statements of Munoz which would
    be suppressed and further no showing of any exculpatory evi-
    dence. This claim is not specifically argued in the pleading
    but stated.”
    (c) Failure to Call Expert Witness
    on Blood Spatters
    Third, Munoz asserted that trial counsel was ineffective “by
    failing to call or interview an ‘Expert Witness’ to refute the
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    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    [S]tate’s theory alleging the ‘blood spattered’ evidence was
    culpable proof of [Munoz’] guilt.” He generally asserted that
    appellate counsel rendered ineffective assistance in relation to
    this claim.
    This expert allegedly “would have been able to determine
    with professional certainty the time, day, and detailed involve-
    ment of the crime, particularly, the evidence DNA and other
    intricacies involving the murder of the victim.” No other
    details were set forth in the motion for postconviction relief.
    The district court concluded that Munoz had failed to assert
    “any specific allegations as to what testimony witnesses would
    have given” or “any exculpatory evidence that has been uncov-
    ered by the . . . expert findings.”
    (d) Motion in Limine
    Fourth, Munoz alleged the ineffective assistance of appellate
    counsel for not preserving “the challenge of [Munoz’] motion
    in limine filed in the lower district court, thereby assign-
    ing such as error in [Munoz’] brief of appellant, for review.”
    There was no description of the evidence subject to the motion
    in limine, why it was inadmissible, and how it prejudiced
    him. The district court found that the allegation did not war-
    rant an evidentiary hearing because the postconviction motion
    alleged no specific statement or evidence that should have been
    included in the motion in limine.
    III. ASSIGNMENTS OF ERROR
    In his appeal from the denial of his motion for postconvic-
    tion relief, Munoz assigns as error that (1) trial and appellate
    counsel rendered ineffective assistance of counsel; (2) Munoz
    received “ineffective assistance via direct appeal review, in
    violation of the 5th, 6th and 14th Amendment to the United
    States Constitution, and Article I, §§ 3, 13 and 23 of the
    Nebraska Constitution”; and (3) trial counsel was ineffective
    by failing to object to the trial court’s failure to properly pre-
    pare jury instructions in violation of “his 5th, 6th[,] 11 and 13
    of Nebraska Constitution.”
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    IV. STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appellate
    court reviews de novo a determination that the defendant failed
    to allege sufficient facts to demonstrate a violation of his or her
    constitutional rights or that the record and files affirmatively
    show that the defendant is entitled to no relief. 3
    [2] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law. When reviewing a
    question of law, an appellate court reaches a conclusion inde-
    pendent of the lower court’s ruling. 4
    V. ANALYSIS
    [3] A 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 infringe-
    ment of the defendant’s rights under the Nebraska or federal
    Constitution. 5
    [4-6] In order to establish a right to postconviction relief
    based on a claim of ineffective assistance of counsel, the
    defendant has the burden, in accordance with Strickland v.
    Washington, 6 to show that counsel’s performance was deficient
    and that counsel’s deficient performance prejudiced the defense
    in his or her case. 7 The two prongs of this test—deficient per-
    formance and prejudice—may be addressed in either order,
    and the entire ineffectiveness analysis is viewed with a strong
    presumption that counsel’s actions were reasonable. 8 To show
    that counsel’s performance was deficient, a defendant must
    3
    State v. Stelly, 
    308 Neb. 636
    , 
    955 N.W.2d 729
     (2021).
    4
    
    Id.
    5
    State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
     (2015).
    6
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    7
    State v. Stelly, 
    supra note 3
    .
    8
    
    Id.
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    STATE v. MUNOZ
    Cite as 
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    show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law. 9
    [7] An evidentiary hearing is not required on a motion for
    postconviction relief when (1) the motion does not contain
    factual allegations which, if proved, constitute an infringement
    of the movant’s constitutional rights rendering the judgment
    void or voidable; (2) the motion alleges only conclusions of
    fact or law without supporting facts; or (3) the records and files
    affirm­atively show that the defendant is entitled to no relief. 10
    1. Assertions Against Trial Counsel and
    Separate Alibi-Defense Claim
    In his appellate brief, Munoz makes several assertions
    against trial counsel that he argues the district court should
    have granted an evidentiary hearing on, but which Munoz fails
    to tie to any argument of ineffective assistance of appellate
    counsel. In this regard, Munoz asserts that he told trial counsel
    about his alibi that “he was nowhere in the v[i]cinity or area
    when [the victim] was murdered,” yet trial counsel “prejudi-
    cially failed to give notice to the [S]tate prosecution and the
    court, pursuant to [Neb. Rev. Stat. §] 29-1927, as required.”
    (Emphasis omitted.) Munoz also argues that trial counsel was
    ineffective by failing to object to jury instructions. With the
    exception of the alibi defense, these allegations were stated
    in the motion for postconviction relief directly against trial
    counsel only and were not presented as a layered claim against
    appellate counsel for failing to assert the ineffectiveness of
    trial counsel.
    [8,9] A motion for postconviction relief asserting ineffec-
    tive assistance of trial counsel is procedurally barred where
    a defend­ant was represented by a different attorney on direct
    9
    Id.
    10
    See, State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020); State v. Allen,
    
    301 Neb. 560
    , 
    919 N.W.2d 500
     (2018).
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    STATE v. MUNOZ
    Cite as 
    309 Neb. 285
    appeal than at trial and the alleged deficiencies in trial coun-
    sel’s performance were known or apparent from the record. 11
    Further, an alleged error must be both specifically assigned and
    specifically argued in the brief of the party asserting the error
    to be considered by an appellate court. 12
    [10] We agree with the district court that the claims made
    directly against trial counsel only are procedurally barred. To
    the extent the claim regarding an alibi defense was a separate
    claim from the allegations regarding the potential testimony of
    Trevino and Condon, it was not argued on appeal as a layered
    claim and we therefore need not consider whether the court
    erred in denying such a claim. However, we also find that
    the broad allegation in the motion for postconviction relief
    that trial counsel was ineffective for failing to make an alibi
    defense constituted mere conclusions of fact and law without
    supporting facts, which did not warrant an evidentiary hearing.
    To warrant an evidentiary hearing based on counsel’s failure
    to make an alibi defense, the defendant must allege something
    more than the broad factual conclusion that there was some
    unspecified evidence that would have shown the defendant was
    not in the vicinity at the time of the crime. 13
    2. Layered Claims
    Munoz makes four general arguments of appellate counsel’s
    ineffectiveness by failing to raise on direct appeal claims of
    ineffective assistance of trial counsel. These generally corre-
    spond to the four stated claims in his motion for postconvic-
    tion relief.
    (a) Alibi and Flight Witnesses
    We hold that Munoz’ claims regarding the failure to depose
    or interview potential witnesses Trevino and Condon before
    11
    State v. Marshall, 
    269 Neb. 56
    , 
    690 N.W.2d 593
     (2005).
    12
    State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
     (2019).
    13
    See State v. Davlin, 
    277 Neb. 972
    , 
    766 N.W.2d 370
     (2009).
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    STATE v. MUNOZ
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    trial failed to allege more than conclusions of fact and law
    and, to the extent the motion presented more specific facts,
    those facts, if proved, would not constitute an infringement
    of Munoz’ constitutional rights rendering the judgment void
    or voidable. Thus, the district court did not err in denying the
    claims without an evidentiary hearing.
    [11,12] Our case law is clear that in a motion for postconvic-
    tion relief, a defendant is required to specifically allege what
    the testimony of potential witnesses would have been if they
    had been called at trial in order to avoid dismissal without an
    evidentiary hearing. 14 Absent specific allegations, a motion for
    postconviction relief effectively becomes a discovery motion to
    determine whether evidence favorable to a defendant’s position
    actually exists. 15
    Munoz’ allegations as to Condon’s testimony consist entirely
    of legal conclusions and conclusions of fact without support-
    ing facts. Munoz alleged Condon’s testimony “would have
    presented an rebuttable presumption to the [S]tate’s theory
    of how [Munoz] allegedly murdered the victim” and “would
    have contradicted the [S]tate’s evidence underlining proof of
    [Munoz’] alibi during the time of the victim’s murder.” This
    fails to satisfy the requirement that the motion include specific
    allegations regarding the testimony that the witness would have
    given if called.
    Munoz’ allegations regarding Trevino’s potential testimony
    are somewhat more specific. In essence, Munoz alleged that
    Trevino could have testified that in a conversation with Munoz’
    son, Munoz’ son reported to Trevino that Munoz had a “desire
    to travel out of town during the time the alleged crime sup-
    posedly took place.” This was alleged to be relevant exculpa-
    tory evidence because it pertained to Munoz’ “whereabouts
    14
    State v. Foster, 
    300 Neb. 883
    , 
    916 N.W.2d 562
     (2018), disapproved
    on other grounds, State v. Allen, 
    supra note 10
    . See, also, e.g., State v.
    Henderson, 
    301 Neb. 633
    , 
    920 N.W.2d 246
     (2018).
    15
    State v. Foster, 
    supra note 14
    .
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    during the time the victim was found.” It was further alleged
    that Trevino’s testimony was relevant to “the events unfolding
    that lead to [Munoz’] desire to travel, devoid of covering up,
    or having a scapegoat.” From Munoz’ arguments on appeal, it
    appears that the reference to Munoz’ “desire to travel, devoid
    of covering up” was an assertion that Trevino’s testimony
    would have been relevant to diminish the inference of guilt
    surrounding his flight to Illinois.
    The alleged testimony as to Munoz’ “whereabouts” was
    insufficiently specific to warrant an evidentiary hearing. And,
    regardless, Munoz’ “whereabouts” when the victim was found
    would not have been exculpatory under the facts of this
    case, which indicated the victim had been murdered several
    days before.
    Because Munoz failed to allege when the conversation about
    traveling to Illinois took place—specifically, whether it took
    place before the murder—the facts alleged are insufficient to
    demonstrate that, if true, Munoz’ convictions were the prod-
    uct of ineffective assistance of counsel. A conversation taking
    place after the murder, in which Munoz indicated a “desire to
    travel,” would only strengthen the inference of flight.
    [13-15] Moreover, Trevino’s potential testimony about such
    a conversation with Munoz’ son would have been inadmissible
    hearsay. 16 Hearsay is a statement, other than one made by the
    declarant while testifying at the trial or hearing, offered in
    evidence to prove the truth of the matter asserted. 17 Hearsay is
    not admissible unless otherwise provided for in the Nebraska
    Evidence Rules or elsewhere. 18 Trevino’s testimony about what
    Munoz’ son had said would have been to prove the truth of
    16
    See State v. Hill, 
    298 Neb. 675
    , 
    905 N.W.2d 668
     (2018).
    17
    State v. Poe, 
    292 Neb. 60
    , 
    870 N.W.2d 779
     (2015). See, also, 
    Neb. Rev. Stat. § 27-801
    (3) (Reissue 2016).
    18
    State v. Poe, supra note 17. See, also, 
    Neb. Rev. Stat. § 27-802
     (Reissue
    2016).
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    the matter that Munoz intended to go out of town. As a matter
    of law, counsel is not ineffective for not attempting to adduce
    inadmissible testimony. 19
    (b) Expert Witness on Mental Stability
    Munoz argues on appeal that the district court erred in
    dismissing a layered claim concerning trial counsel’s alleged
    ineffectiveness in failing to call an expert witness to testify
    as to Munoz’ mental stability during the time of the victim’s
    death. He does not expand upon this assertion, and thus, it was
    insufficient because it failed to specifically allege what the
    testimony of potential expert witnesses would have been if the
    witness had been called at trial.
    [16,17] Furthermore, this claim does not appear in Munoz’
    motion for postconviction relief. Appellate courts do not gener-
    ally consider arguments and theories raised for the first time on
    appeal. 20 In an appeal from the denial of postconviction relief,
    we will not consider for the first time on appeal claims that
    were not raised in the verified motion. 21
    (c) Expert Witness on Blood Spatters
    We also agree with the district court that Munoz failed to
    allege more than mere conclusions of fact or law without sup-
    porting facts in relation to his layered claim that trial counsel
    was ineffective “by failing to call or interview an ‘Expert
    Witness’ to refute the [S]tate’s theory alleging the ‘blood spat-
    tered’ evidence was culpable proof of [Munoz’] guilt.” Munoz
    did not indicate whose “evidence DNA” he was referring to,
    how the exact time of the murder could be established by such
    an expert, what the professional certainty of the time of the
    19
    See State v. Allen, 
    supra note 10
    .
    20
    State v. Ortega, 
    290 Neb. 172
    , 
    859 N.W.2d 305
     (2015).
    21
    See, State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
     (2018), disapproved
    on other grounds, State v. Allen, 
    supra note 10
    ; State v. Harris, 
    294 Neb. 766
    , 
    884 N.W.2d 710
     (2016).
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    STATE v. MUNOZ
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    309 Neb. 285
    crime would be, or how it might have changed the result of
    the trial.
    (d) Motion in Limine
    Lastly, Munoz argues on appeal that the district court erred
    in dismissing his claim that appellate counsel was ineffective
    “by failing to assert as error trial counsel’s failure to file a
    Motion in Limine as asserted in ground two of his Motion for
    Postconviction Relief.” 22 He generally asserts prejudice as a
    result, but does not describe the evidence he believes should
    have been the subject of the motion in limine, why it should
    have been excluded, and how the result at trial would have
    been different but for its admission.
    It does not appear that this allegation was raised in the
    postconviction motion. In his motion for postconviction relief,
    Munoz described the ineffective assistance of appellate counsel
    as not preserving “the challenge of [Munoz’] motion in limine
    filed in the lower district court, thereby assigning such as error
    in [Munoz’] brief of appellant, for review.” The failure to file
    a motion in limine is a different assertion than the failure to
    appeal the denial of a motion in limine made at trial.
    In any event, the allegation in the motion for postconvic-
    tion did not contain any description of the evidence subject
    to the motion in limine, why the evidence was inadmissible,
    and how it prejudiced him. We agree with the district court
    that the allegations did not warrant an evidentiary hear-
    ing, because the postconviction motion alleged no specific
    statement or evidence that should have been included in the
    motion in limine.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the judgment of the dis-
    trict court dismissing, without an evidentiary hearing, Munoz’
    motion for postconviction relief.
    Affirmed.
    22
    Brief for appellant at 8.