State v. McGuire , 299 Neb. 762 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    State of Nebraska, appellee, v.
    Shawn A. McGuire, appellant.
    ___ N.W.2d ___
    Filed April 26, 2018.    No. S-17-257.
    1.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
    dentiary hearing on a motion for postconviction relief, the trial judge, as
    the trier of fact, resolves conflicts in the evidence and questions of fact.
    An appellate court upholds the trial court’s factual findings unless they
    are clearly erroneous.
    2.	 Postconviction: Appeal and Error. Whether a claim raised in a post-
    conviction proceeding is procedurally barred is a question of law. When
    reviewing a question of law, an appellate court resolves the question
    independently of the lower court’s conclusion.
    3.	 Effectiveness of Counsel. A claim that defense counsel provided inef-
    fective assistance presents a mixed question of law and fact.
    4.	 Effectiveness of Counsel: Appeal and Error. When reviewing a
    claim of ineffective assistance of counsel, an appellate court reviews
    the factual findings of the lower court for clear error. With regard to
    questions of counsel’s performance or prejudice to the defendant as
    part of the two-pronged test articulated in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), an appellate court
    reviews such legal determinations independently of the lower court’s
    conclusion.
    5.	 ____: ____. When a defendant’s trial counsel is different from his or
    her appellate counsel, all issues of ineffective assistance of trial counsel
    that are known to the defendant or are apparent from the record must be
    raised on direct appeal. If the issues are not raised, they are procedur-
    ally barred.
    6.	 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.
    7.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail
    on a claim of ineffective assistance of counsel under Strickland v.
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    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    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 performance actually prejudiced the
    defendant’s defense.
    8.	 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 test in Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    9.	 Trial: Attorneys at Law. Trial counsel is afforded due deference to
    formulate trial strategy and tactics.
    10.	 Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
    determining whether trial counsel’s performance was deficient, there is
    a strong presumption that counsel acted reasonably.
    11.	 Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
    (Reissue 2016), relevant evidence may be excluded if its probative value
    is substantially outweighed by the danger of unfair prejudice.
    Appeal from the District Court for Douglas County: J
    Russell Derr, Judge. Affirmed.
    A. Michael Bianchi for appellant.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Miller-Lerman, Stacy, and Funke, JJ., and
    Colborn and Samson, District Judges.
    Colborn, District Judge.
    INTRODUCTION
    Shawn A. McGuire appeals from the denial of his motion
    for postconviction relief following an evidentiary hearing. He
    claims the district court erred in failing to find that his trial
    and appellate counsel were ineffective and in failing to make
    rulings on certain claims raised in his postconviction motion.
    He also claims his postconviction counsel provided ineffective
    assistance at the evidentiary hearing. For the reasons set forth
    below, we affirm the judgment of the district court.
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    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    BACKGROUND
    Following a jury trial, McGuire was found guilty of sec-
    ond degree murder under a theory of aiding and abetting,
    use of a deadly weapon to commit a felony, and criminal
    conspiracy to unlawfully possess and deliver a controlled
    substance. The convictions were based on his involvement
    with a cocaine exchange that resulted in the murder of Cesar
    Sanchez-Gonzales (Sanchez) by Robert Nave. McGuire is
    currently serving a combined sentence of 105 to 125 years
    in prison.
    Trial Evidence
    On October 22, 2010, a law enforcement task force was con-
    ducting surveillance on an expected drug deal at an automobile
    repair shop (auto shop) in South Omaha, Nebraska. The auto
    shop was run by Sanchez, who was an informant for the task
    force. The supplier, Cesar Ayala-Martinez, had agreed to sell
    11⁄2 kilograms of cocaine to Sanchez in exchange for $40,500.
    Sanchez was then going to sell the cocaine to McGuire.
    McGuire had purchased cocaine from Sanchez in a similar
    manner a few weeks prior to this date.
    The evidence showed that McGuire arrived at the auto
    shop driving a white Chrysler Sebring and was seen convers-
    ing with the occupants of a white Nissan. Abdul Vann, Kim
    Thomas, and Nave were also present outside the auto shop.
    Sometime after McGuire entered the auto shop, a member
    of the task force observed Nave put his hood over his head,
    pull a handgun from his waistband, and proceed into the auto
    shop. As soon as Nave entered, McGuire almost instanta-
    neously exited.
    Ayala-Martinez testified that within seconds of McGuire’s
    exiting, Nave entered the office with his gun drawn. Sanchez
    pulled a revolver out of his desk drawer and was attempt-
    ing to open the chamber. Before Sanchez could raise his
    weapon, Nave shot Sanchez two or three times. Nave then
    pointed the gun at Ayala-Martinez and asked for the cocaine.
    Ayala-Martinez pointed to the cocaine, and Nave ran out with
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    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    it. Sanchez later died due to the gunshot wounds inflicted
    by Nave.
    The task force observed Nave and Thomas running from
    the building. They both ran straight to the Sebring, where
    McGuire was waiting in the driver’s seat. McGuire sped off
    at a high rate of speed. Members of the task force pursued
    the vehicle, which crashed head on into a pickup truck shortly
    thereafter. After a short foot pursuit, all three occupants of the
    Sebring were apprehended.
    A search of McGuire revealed a roll of cash with $20 and
    $50 bills on the outside and regular paper on the inside, mak-
    ing the cash roll appear to contain a larger amount of cash.
    Officers also found the keys to the Sebring, an electronic igni-
    tion key for a Nissan, and approximately $3,800 in cash.
    A search of the white Nissan revealed a yellow sporting
    goods store bag containing a box of “CCI” ammunition with
    10 rounds missing, a pair of black gloves, and packaging mate-
    rial for black duct tape. On the driver’s side of the Sebring,
    10 live rounds of ammunition were found, marked “9mm CCI
    Luger.” Inside the Sebring, officers located black duct tape
    consistent with the packaging found in the Nissan.
    Officers also found four handguns inside the Sebring, includ-
    ing a Smith & Wesson 9-mm pistol. We note that our opinion
    on direct appeal1 incorrectly stated that the handguns were
    found in the Nissan. The record reflects that they were found
    in the Sebring. A firearms expert testified that the bullet recov-
    ered from Sanchez’ body was fired from the 9-mm Smith &
    Wesson. Each of the four casings found in the auto shop were
    also from the 9-mm Smith & Wesson.
    The white Nissan was owned by a woman who testified
    that she was dating McGuire and had allowed him to bor-
    row her car on the date in question. The previous night, she
    had gone to a sporting goods store to purchase bullets for the
    shooting range. She had placed the ammunition, which was in
    1
    See State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
    (2013).
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    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    a yellow bag, in her garage and did not realize it was missing
    until after she was questioned by investigators.
    Direct A ppeal
    Following his convictions, McGuire obtained new counsel
    and appealed. He assigned, as relevant to this postconviction
    proceeding, that the district court erred in refusing to give his
    proposed jury instruction, which added “‘not upon a sudden
    quarrel’” to the language of the second degree murder instruc-
    tion.2 We agreed on direct appeal that the instruction given
    by the district court was an incorrect statement of the law in
    that it did not require the jury to consider whether Nave killed
    Sanchez upon a sudden quarrel, which could have reduced
    McGuire’s conviction to manslaughter. However, we found
    that this error did not result in prejudice to McGuire, because
    there was no evidence at trial upon which a jury could reason-
    ably conclude that Sanchez was killed as a result of a sudden
    quarrel. We affirmed McGuire’s convictions and sentences in
    all respects.3
    Postconviction Proceedings
    On February 6, 2015, McGuire filed a timely motion for
    postconviction relief, alleging that his trial counsel was inef-
    fective in (1) failing to properly advise McGuire regarding his
    right to testify at trial, (2) failing to depose certain witnesses
    prior to trial, (3) failing to call certain witnesses at trial, (4)
    failing to investigate and question investigators about the
    existence of gunshot residue on accomplices, (5) failing to
    properly cross-examine one of the task force members con-
    cerning McGuire’s presence and affiliation with accomplices
    just prior to the shooting, (6) failing to cross-examine Ayala-
    Martinez regarding where Nave pointed the gun when he
    entered the auto shop, (7) failing to challenge the admission
    into evidence of the 9-mm ammunition found in the Nissan,
    2
    
    Id. at 504,
    837 N.W.2d at 780.
    3
    See State v. McGuire, supra note 1.
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    STATE v. McGUIRE
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    and (8) failing to provide discovery materials to McGuire,
    which prevented him from assisting in his own defense. He
    further alleged that his appellate counsel was ineffective
    for failing to raise trial counsel’s ineffectiveness in all of
    these respects.
    An evidentiary hearing was held in the district court, dur-
    ing which the depositions of McGuire and his trial counsel
    were entered into evidence. Following the hearing, the district
    court issued a written order denying McGuire’s postconviction
    motion. It found that appellate counsel was not ineffective
    for failing to raise the various claims of ineffective assistance
    of trial counsel because trial counsel was not ineffective.
    McGuire now appeals from that order.
    ASSIGNMENTS OF ERROR
    McGuire claims the district court erred in failing to find
    that his trial and appellate counsel were ineffective, and in
    failing to rule on certain claims raised in his postconviction
    motion. More specifically, he claims (1) trial counsel was
    ineffective in (a) failing to properly examine Ayala-Martinez
    about where Nave pointed his gun prior to shooting Sanchez,
    (b) failing to call certain witnesses who would have provided
    testimony confirming McGuire’s ignorance of the plan to rob
    Sanchez of the cocaine, and (c) improperly advising McGuire
    about his rights to testify and to remain silent; (2) appellate
    counsel was ineffective for failing to raise trial counsel’s fail-
    ure to elicit testimony of a sudden quarrel; and (3) the district
    court failed to rule on his claims regarding (a) trial counsel’s
    failure to object to the admission into evidence of the 9-mm
    ammunition and (b) trial counsel’s failure to question or
    investigate the presence of gunshot residue on accomplices.
    Finally, McGuire claims that his postconviction counsel was
    ineffective for failing to present adequate evidence at the post-
    conviction hearing to substantiate his claims, thereby depriv-
    ing him of his state and federal constitutional rights to due
    process of law.
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    STATE v. McGUIRE
    Cite as 
    299 Neb. 762
    STANDARD OF REVIEW
    [1] In an evidentiary hearing on a motion for postcon-
    viction relief, the trial judge, as the trier of fact, resolves
    conflicts in the evidence and questions of fact. An appellate
    court upholds the trial court’s factual findings unless they are
    clearly erroneous.4
    [2] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law.5 When reviewing
    a question of law, an appellate court resolves the question
    independently of the lower court’s conclusion.6
    [3,4] A claim that defense counsel provided ineffective
    assistance presents a mixed question of law and fact.7 When
    reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court
    for clear error.8 With regard to questions of counsel’s perform­
    ance or prejudice to the defendant as part of the two-pronged
    test articulated in Strickland v. Washington,9 an appellate court
    reviews such legal determinations independently of the lower
    court’s conclusion.10
    ANALYSIS
    Ineffective Assistance of
    Trial Counsel
    [5] McGuire’s first three assignments of error allege that
    the district court erred in failing to find that his trial counsel
    was ineffective in certain respects. The State submits that these
    claims are procedurally barred, because they could have been
    4
    State v. Glass, 
    298 Neb. 598
    , 
    905 N.W.2d 265
    (2018).
    5
    State v. Ross, 
    296 Neb. 923
    , 
    899 N.W.2d 209
    (2017).
    6
    Id.
    7
    State v. Alarcon-Chavez, 
    295 Neb. 1014
    , 
    893 N.W.2d 706
    (2017).
    8
    Id.
    9
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984).
    10
    State v. Alarcon-Chavez, supra note 7.
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    raised on direct appeal and were not. When a defendant’s trial
    counsel is different from his or her appellate counsel, all issues
    of ineffective assistance of trial counsel that are known to the
    defendant or are apparent from the record must be raised on
    direct appeal.11 If the issues are not raised, they are procedur-
    ally barred.12
    [6] Although McGuire’s postconviction motion asserts lay-
    ered claims of ineffective assistance of trial and appellate
    counsel, we agree that the underlying claims pertaining to trial
    counsel are procedurally barred, because McGuire had new
    counsel on direct appeal and did not raise his claims of ineffec-
    tive assistance of trial counsel at that time.13 In order to present
    the merits of those claims to this court, McGuire was required
    to assign and argue that appellate counsel was ineffective for
    failing to assert trial counsel’s ineffectiveness in those respects.
    He failed to do so for his first three assignments of error, and
    as a result, those claims are not properly before this court. An
    alleged error must be both specifically assigned and specifi-
    cally argued in the brief of the party asserting the error to be
    considered by an appellate court.14
    Ineffective Assistance of
    A ppellate Counsel
    McGuire’s fourth assignment of error alleges that the dis-
    trict court erred in failing to find that appellate counsel was
    ineffective for failing to raise trial counsel’s failure to elicit
    evidence of a sudden quarrel at trial. He asserts that appellate
    counsel challenged the second degree murder instruction on
    the basis that it did not include the sudden quarrel language,
    which we agreed was erroneous on direct appeal but found
    to be harmless due to the absence of any evidence in the
    11
    State v. Dubray, 
    294 Neb. 937
    , 
    885 N.W.2d 540
    (2016).
    12
    
    Id. 13 See
    id.
    14
    State 
    v. Cook, 
    290 Neb. 381
    , 
    860 N.W.2d 408
    (2015).
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    record of a sudden quarrel. McGuire argues that trial counsel
    could have elicited such evidence through a proper cross-­
    examination of Ayala-Martinez.
    At trial, Ayala-Martinez testified that Nave entered the auto
    shop, pointed the gun at Sanchez, and shot him two to three
    times. However, McGuire claims that Ayala-Martinez had pre-
    viously testified at Nave’s trial that Nave initially pointed
    the gun at Ayala-Martinez but quickly turned the gun on
    Sanchez when he saw Sanchez attempting to load a revolver.
    McGuire argues that this was evidence of a sudden quarrel
    that provoked Nave to shoot Sanchez, but was not elicited at
    trial. McGuire argues that if appellate counsel had raised trial
    counsel’s ineffectiveness in this regard, McGuire would have
    received a new trial on direct appeal.
    [7] To prevail on a claim of ineffective assistance of coun-
    sel under Strickland v. Washington,15 the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defend­
    ant’s defense.16
    [8] When a claim of ineffective assistance of appellate
    counsel is based on the failure to raise a claim on appeal of
    ineffective assistance of trial counsel (a layered claim of inef-
    fective assistance of counsel), an appellate court will look at
    whether trial counsel was ineffective under the Strickland v.
    Washington test.17 If trial counsel was not ineffective, then the
    defendant was not prejudiced by appellate counsel’s failure to
    raise the issue.18 Much like claims of ineffective assistance of
    trial counsel, the defendant must show that but for counsel’s
    failure to raise the claim, there is a reasonable probability that
    the outcome would have been different.19
    15
    Strickland v. Washington, supra note 9.
    16
    State v. Glass, supra note 4.
    17
    State v. Dubray, supra note 11.
    18
    
    Id. 19 Id.
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    We find that trial counsel’s decision not to elicit testimony
    of a sudden quarrel was a reasonable strategic decision. In
    his deposition, trial counsel testified that he believed the best
    defense for McGuire was to convince the jury that although
    McGuire was there to participate in a drug deal, there was no
    evidence that he had agreed to participate in the robbery, or
    even had knowledge that Nave was going to commit a robbery.
    In other words, the best case scenario for McGuire was that
    he would be found guilty of the drug offense, but not guilty of
    felony murder or any other homicide-related charges.
    Given this trial strategy, trial counsel explained that he did
    not believe it was effective to “out of one side of your mouth
    say, there’s no plan, no agreement, no robbery, therefore he’s
    not guilty of first degree murder; and then say, on the other
    hand, it could also be a manslaughter.” He testified that he
    thought he would lose credibility with the jury if he tried to
    argue both theories. He chose to attack the felony murder alle-
    gations, because if he could convince the jury that there was no
    plan or agreement for the robbery, then he would be found not
    guilty on all the homicide charges.
    [9,10] Trial counsel is afforded due deference to formulate
    trial strategy and tactics.20 An appellate court does not second-
    guess strategic decisions made by trial counsel, so long as
    those decisions are reasonable.21 In determining whether trial
    counsel’s performance was deficient, there is a strong pre-
    sumption that counsel acted reasonably.22 We conclude that
    trial counsel’s failure to adduce evidence of a sudden quarrel
    was a reasonable strategic decision, and therefore, it does not
    constitute deficient performance. Because trial counsel was not
    ineffective, McGuire was not prejudiced by appellate counsel’s
    failure to raise this issue on direct appeal.
    20
    State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017).
    21
    See State v. Alarcon-Chavez, supra note 7.
    22
    State v. Williams, supra note 20.
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    Failure M ake Findings
    to
    Rulings
    or
    McGuire’s fifth assignment of error alleges that the district
    court erred by failing to make requisite findings or rulings on
    his claims that (1) trial counsel failed to object to the admis-
    sion into evidence of the 9-mm ammunition found in the
    Nissan and (2) trial counsel failed to investigate the presence
    of gunshot residue on accomplices. He argues that under Neb.
    Rev. Stat. § 29-3001(2) (Reissue 2016), the district court is
    required to make findings of fact and conclusions of law with
    regard to all issues raised in the motion when an evidentiary
    hearing is granted.
    We first note that McGuire’s appellate brief provides no
    argument in support of the second part of this assignment of
    error regarding trial counsel’s failure to investigate the pres-
    ence of gunshot residue on accomplices. 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.23 Because it was not argued, we will not
    address that portion of the assigned error.
    [11] Regarding trial counsel’s failure to object to the 9-mm
    ammunition found in the Nissan, McGuire argues that it was
    unduly prejudicial under Neb. Evid. R. 403, Neb. Rev. Stat.
    § 27-403 (Reissue 2016), and that trial counsel should have
    moved to exclude it on that basis. Under rule 403, relevant
    evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice.24 Most, if not all,
    evidence offered by a party is calculated to be prejudicial to the
    opposing party; only evidence tending to suggest a decision on
    an improper basis is unfairly prejudicial.25
    Trial counsel testified that he did not object to the ammuni-
    tion, because any such objection would have certainly been
    23
    State v. Cook, supra note 14.
    24
    State v. Chauncey, 
    295 Neb. 453
    , 
    890 N.W.2d 453
    (2017).
    25
    See 
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    overruled. We agree. The probative value of the 9-mm ammu-
    nition found in the Nissan was substantial. A firearms expert
    determined that the four casings found in the auto shop and
    the bullet recovered from Sanchez’ body were all fired from a
    9-mm Smith & Wesson, which was found inside the Sebring
    that McGuire was driving as he fled from the scene. The dis-
    covery of the 9-mm ammunition in the Nissan directly linked
    McGuire to the robbery conspiracy, given the evidence that the
    Nissan belonged to McGuire’s girlfriend and she had allowed
    him to borrow it on the date in question. We conclude the
    challenged evidence was extremely probative, and we do not
    see any tendency for it to suggest a decision by the jury on an
    improper basis.
    Finally, while we agree that trial courts are required to make
    findings of fact and conclusions of law following an eviden-
    tiary hearing, we find it unnecessary to remand the cause for
    further findings here. The purpose of requiring factual findings
    and conclusions of law is to facilitate appellate review and
    permit us to reach all assigned errors.26 Because it is clear that
    this claim has no merit, there is no need to remand the matter
    for further findings.
    Ineffective Assistance of
    Postconviction Counsel
    In his final assignment of error, McGuire asserts that his
    postconviction counsel was ineffective for failing to present
    adequate evidence at the postconviction hearing to substantiate
    his claims, thereby depriving McGuire of his state and federal
    constitutional rights to due process of law. McGuire acknowl-
    edges that there is no constitutional right to effective assistance
    of counsel at postconviction proceedings.27 However, he argues
    that he was denied due process of law because his counsel
    failed to meet the standard required under Neb. Rev. Stat.
    26
    See State v. Harris, 
    294 Neb. 766
    , 
    884 N.W.2d 710
    (2016).
    27
    See State v. Deckard, 
    272 Neb. 410
    , 
    722 N.W.2d 55
    (2006).
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    § 29-3004 (Reissue 2016), which provides that “[t]he district
    court may appoint not to exceed two attorneys to represent the
    prisoners in all [postconviction] proceedings” and that “[t]he
    attorney or attorneys shall be competent and shall provide
    effective counsel.”
    Assuming without deciding that there is a statutory right
    to competent and effective postconviction counsel that may
    be enforced on appeal from a postconviction proceeding, we
    find that the plain language of the statute applies only to attor-
    neys appointed by the district court. Here, McGuire’s counsel
    acknowledged at oral argument that McGuire’s first postcon-
    viction counsel, whom he now claims was ineffective, was
    not appointed by the district court, but was privately retained
    by McGuire. Thus, the statutory directive that postconviction
    attorneys appointed by the district court shall be competent and
    effective does not apply here.
    Furthermore, even if the statute did apply, we find no merit
    to this assigned error, because the claims asserted in McGuire’s
    postconviction proceeding, even if proved, would not entitle
    him to any relief. Therefore, McGuire was not prejudiced by
    postconviction counsel’s failure to present evidence to substan-
    tiate those claims.
    CONCLUSION
    For the reasons set forth above, we affirm the judgment of
    the district court.
    A ffirmed.
    Wright and Cassel, JJ., not participating.