State v. Cullen , 311 Neb. 383 ( 2022 )


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    05/06/2022 12:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. CULLEN
    Cite as 
    311 Neb. 383
    State of Nebraska, appellee, v.
    Sarah A. Cullen, appellant.
    ___ N.W.2d ___
    Filed April 15, 2022.    No. S-21-447.
    1. Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    2. Postconviction: Constitutional Law: Judgments: Proof. Postconviction
    relief is available to a prisoner in custody under sentence who seeks to
    be released on the ground that there was a denial or infringement of his
    or her constitutional rights such that the judgment was void or voidable.
    Thus, in a motion for postconviction relief, the defendant must allege
    facts which, if proved, constitute a denial or violation of his or her rights
    under the U.S. or Nebraska Constitution, causing the judgment against
    the defendant to be void or voidable.
    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, constitute
    an infringement of the defendant’s rights under the U.S. or Nebraska
    Constitution. If a postconviction motion alleges only conclusions of fact
    or law, or if the records and files in the case affirmatively show that the
    defendant is entitled to no relief, the court is not required to grant an
    evidentiary hearing.
    4. Constitutional Law: Effectiveness of Counsel. A proper ineffective
    assistance of counsel claim alleges a violation of the fundamental con-
    stitutional right to a fair trial.
    5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    ,
    
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must show that
    his or her counsel’s performance was deficient and that this deficient
    performance actually prejudiced the defendant’s defense.
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    6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. To show prejudice under the prejudice component of the test
    under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must demonstrate a reasonable
    probability that but for his or her counsel’s deficient performance, the
    result of the proceeding would have been different. 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.
    7. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
    test under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), may be addressed in either order, and the entire
    ineffectiveness analysis should be viewed with a strong presumption that
    counsel’s actions were reasonable.
    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). If
    trial counsel was not ineffective, then the defendant was not prejudiced
    by appellate counsel’s failure to raise the issue. Much like claims of
    ineffective assistance of trial counsel, the defendant 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.
    9. 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.
    10. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
    mary responsibility for advising a defendant of his or her right to testify
    or not to testify, of the strategic implications of each choice, and that the
    choice is ultimately for the defendant to make.
    Appeal from the District Court for Douglas County:
    Gregory M. Schatz, Judge. Affirmed.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
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    STATE v. CULLEN
    Cite as 
    311 Neb. 383
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Sarah A. Cullen appeals the order of the district court for
    Douglas County which denied her motion for postconviction
    relief. Cullen, who is serving a sentence of imprisonment for
    70 years to life for a conviction for intentional child abuse
    resulting in death, set forth claims of ineffective assistance of
    both trial and appellate counsel. The district court determined
    that all of Cullen’s claims were insufficiently pled, and it there-
    fore denied her motion for postconviction relief without an
    evidentiary hearing. We affirm.
    STATEMENT OF FACTS
    Cullen was convicted of intentional child abuse resulting in
    death in connection with the death of an infant who was in her
    care. The district court sentenced her to imprisonment for 70
    years to life, and her conviction and sentence were affirmed
    on direct appeal. State v. Cullen, 
    292 Neb. 30
    , 
    870 N.W.2d 784
     (2015).
    Further details may be found in the opinion on direct appeal,
    but the evidence generally showed as follows: In January
    2013, Christopher (Chris) Bell and Ashley Bell hired Cullen to
    work temporarily in their home as a nanny for their son, Cash
    Christopher Bell, who was born in October 2012. On the morn-
    ing of February 28, 2013, Cullen was caring for Cash while the
    Bells were at work. Both Chris and Ashley testified that it had
    been a typical morning before they went to work and that Cash
    was acting normally. Cullen arrived at the Bells’ house at 7:15
    a.m. Chris had already left for work, and Ashley left for work
    at around 7:40 a.m.
    Around 9:19 a.m., Chris returned home to retrieve a check-
    book. Chris looked in on Cash who was lying face down.
    Chris rolled Cash over; Cash did not open his eyes, but he
    took a breath and Chris believed that he was sleeping. Cullen
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    STATE v. CULLEN
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    was in a nearby bathroom while Chris was in the house. Chris
    estimated he was in the house for less than a minute, and as
    he was getting into his car, Cullen came to the door with Cash
    in her arms.
    At around 10:15 a.m., Cullen called her boyfriend and told
    him that Cash was not breathing and that his feet were blue.
    Her boyfriend came to the Bells’ house. Cash was not respon-
    sive but was breathing. Cullen’s boyfriend took Cash and
    Cullen to a hospital. When they arrived at the hospital’s emer-
    gency room, Cullen stated that she found Cash “sleeping on his
    belly and he doesn’t normally sleep like that.”
    Cullen called Ashley shortly after calling her boyfriend.
    Cullen told Ashley that she was taking Cash to the hospital
    because he had just woken up from a nap and was not breath-
    ing right. The Bells arrived at the emergency room. Ashley
    questioned Cullen about what had happened that morning,
    and Cullen stated only that Cash woke up from his nap in
    that condition.
    Cash was eventually transported to a pediatric hospital due
    to the extent of his injuries. Cash’s neurological condition
    rapidly deteriorated over the following days. He exhibited a
    lack of responsiveness and frequent seizures that could be con-
    trolled only through high doses of medication. Doctors deter-
    mined that Cash would not have any significant neurologic
    recovery, and based on the doctors’ long-term prognosis that
    Cash would never be able to see, hear, or walk or be without a
    feeding tube and a ventilator, the Bells decided to take Cash off
    life support on March 5, 2013. He died that day.
    Law enforcement officers interviewed Cullen on February
    28 and March 1, 2013. During the February 28 interview,
    Cullen told four versions of what had occurred with Cash that
    morning. She first stated that Cash had been acting normally
    but that after he woke from a nap, his breathing was not
    normal. At that time, Cullen denied that Cash had fallen or
    had an accident that morning. After the interviewer informed
    Cullen that Cash’s skull was fractured and that his head had
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    STATE v. CULLEN
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    to have hit something or something had to have hit his head,
    Cullen stated that when she was walking out the back door
    with Cash, she may have accidentally hit his head on the door.
    The interviewer later informed Cullen that a pediatrician had
    said that Cash’s injuries could not have been caused by hitting
    his head on a door. Cullen initially denied that anything else
    had happened, but she later stated that Cash had fallen out of
    his swing at about 8:15 a.m. and that he whimpered but then
    fell asleep. The interviewer again consulted with a pediatri-
    cian and informed Cullen that Cash’s injuries could not have
    been caused by a short fall from the swing and that instead,
    his injuries were consistent with shaking or being thrown down
    hard. Cullen began crying and admitted that she had lied. She
    stated that Cash had fallen out of the swing the day before, but
    that at about 8:15 a.m. on February 28, she had slipped on the
    stairs while carrying Cash and he had fallen onto the tile floor
    below. She denied shaking Cash. Cullen generally maintained
    this fourth version of events in a written statement and during
    an interview on March 1.
    Several medical experts testified about the extent of Cash’s
    injuries and their possible causes. Evidence indicated signifi-
    cant injuries, including a large hematoma and a smaller bruise
    on the back of the head, two skull fractures, ­hemorrhages in
    the surface of the brain, injury to the brain itself, and multiple
    retinal hemorrhages. Doctors testified that the brain injuries
    affected Cash’s entire brain and that 90 percent of his brain
    was permanently damaged. The medical experts agreed that
    Cash’s injuries were consistent with nonaccidental trauma
    caused by shaking or impacts to the head or both. None of the
    experts could pinpoint an exact date and time of injury, but
    they estimated that the brain and eye injuries occurred within
    0 to 2 days of February 28, 2013. Based on medical evidence
    and statements given by the Bells and Cullen, two medical
    experts opined that Cash’s brain injury occurred sometime
    after Ashley left for work on February 28. They testified that
    children with Cash’s type of brain injury are immediately
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    STATE v. CULLEN
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    unwell and that symptoms would manifest fairly quickly and
    would be noticeable. Several medical experts testified that
    Cullen’s versions of events could not have accounted for all of
    Cash’s injuries.
    Cullen appealed her conviction and sentence to this court.
    Cullen had new counsel on direct appeal, and in addition to
    other assignments of error, she set forth claims of ineffec-
    tive assistance of trial counsel. She claimed that trial counsel
    was ineffective in four respects, and we determined that three
    of the claims were without merit. The fourth claim was that
    trial counsel was ineffective for failing to investigate and call
    a medical expert to testify on her behalf. We concluded that
    the record on direct appeal was inadequate to address this
    claim. Having rejected Cullen’s other assignments of error, we
    affirmed her conviction and sentence. State v. Cullen, 
    292 Neb. 30
    , 
    870 N.W.2d 784
     (2015).
    On November 16, 2016, Cullen filed a verified motion for
    postconviction relief in which she set forth four claims of inef-
    fective assistance of trial counsel and one claim of ineffective
    assistance of appellate counsel. We quote these allegations
    later in our opinion. Before setting forth her specific claims of
    ineffective assistance of counsel, Cullen made certain allega-
    tions in her motion. She generally alleged as follows: After
    being charged in this case, Cullen was originally represented
    by counsel retained by her father. She asserted that her original
    counsel “performed valuable service” but that he eventually
    withdrew as counsel upon the advice of a trial consultant.
    Cullen’s original counsel had contacted a trial consultant from
    Ohio with whom he had a professional relationship. He asked
    the trial consultant, who had 25 years of experience assisting
    in the defense of persons charged with child abuse, to eval­
    uate Cullen’s case. After meeting with Cullen and reviewing
    evidence in this case, the trial consultant determined that
    Cullen’s case was “fully defensible.” The trial consultant made
    suggestions of how Cullen’s case could be defended, and she
    recommended “several experts” who could provide testimony
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    STATE v. CULLEN
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    in Cullen’s defense. In her motion for postconviction relief,
    Cullen included a list of the names of several experts who had
    been recommended by the trial consultant. The trial consultant
    further advised that Cullen’s original counsel should withdraw,
    because Cullen’s father could not afford to hire the expert wit-
    nesses, and that if original counsel withdrew, Cullen would
    be eligible to be represented by the public defender’s office,
    which would have the budget to hire the experts.
    After her original counsel withdrew, Cullen was represented
    at trial by public defenders. Cullen alleged that her original
    counsel provided the public defenders with a confidential
    memorandum setting forth various issues and his suggestions
    of how Cullen’s defense should be handled, including potential
    witnesses and theories of defense. Those theories of defense
    involved the possibility that Cash’s injuries occurred prior to
    the time Cullen was caring for him on February 28, 2013, and
    the possibility that one of Cash’s parents caused the injuries.
    The memorandum also set forth suggestions of the trial con-
    sultant, including the names of experts recommended by the
    trial consultant.
    In support of her claims of ineffective assistance of trial
    counsel, Cullen generally alleged that trial counsel failed to
    follow up on the suggestions and recommendations of her
    original counsel and the trial consultant and that trial counsel
    failed to consult with her regarding potential defenses and wit-
    nesses and her right to testify at trial. In support of her claim
    of ineffective assistance of counsel on direct appeal, Cullen
    alleged that upon her conviction, her father hired new counsel
    to prosecute her direct appeal but that such counsel provided
    inadequate representation. She alleged that appellate counsel
    failed to meet with her to discuss the issues in her appeal and
    never explained to her the need to bring forward all instances
    of ineffective assistance of trial counsel. She alleged that if
    appellate counsel had so advised her, she would have identified
    the failures of trial counsel that she set forth in her postconvic-
    tion claims of ineffective assistance of trial counsel.
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    STATE v. CULLEN
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    The State moved the district court to dismiss Cullen’s motion
    for postconvicton relief without an evidentiary hearing. The
    court granted the State leave to submit written arguments, and
    it granted Cullen leave to file responsive written arguments.
    After the parties submitted written arguments, the court filed
    an order on May 7, 2021, in which it found that Cullen was not
    entitled to an evidentiary hearing. The court generally deter-
    mined that each of Cullen’s claims was not pled with adequate
    specificity, and it therefore dismissed Cullen’s motion for post-
    conviction relief.
    Cullen’s first claim of ineffective assistance of trial coun-
    sel was that counsel “failed to adequately investigate [her]
    defenses and advise [her] of her options, including but not
    limited to the alternate theories of the cause of the severity of
    the injuries.” With regard to this claim, the district court stated
    that Cullen had “failed to set out what exculpatory evidence
    might have been found with an adequate investigation, or how
    the outcome of the trial would have been different with such
    an investigation.” The court stated that Cullen simply listed the
    names of potential witnesses that should have been contacted
    but that she provided “no facts as to what information . . .
    they would have provided or how any such information might
    have impacted cross-examination of the State’s witnesses.” The
    court concluded that Cullen made “no specific allegations as
    to how a more effective investigation would have changed the
    outcome of the trial.”
    Cullen’s second claim of ineffective assistance of trial
    counsel was that counsel “failed to investigate the hiring
    of expert witnesses to support [her] description of how the
    injury occurred and failed to utilize [a] trial consultant with
    25 years of experience who had examined the facts and met
    with [Cullen].” With regard to this claim, the court stated that
    Cullen “provided no specific defenses that would have been
    offered through any such expert witnesses, or the details of
    any alternative explanations that might have been presented
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    . . . at trial” and that she “failed to set forth any testimony that
    such an expert would have given.” Regarding the use of a trial
    consultant, the court stated that Cullen “failed to show how an
    expert assisting [Cullen] could have provided [Cullen’s] coun-
    sel with assistance in a more effective cross-examination of the
    State’s expert witnesses.”
    Cullen’s third claim of ineffective assistance of trial counsel
    was that counsel “failed to meet with her on a single occasion
    to discuss the facts of the case, failed to consult with her about
    her right to testify and fail[ed] to inquire as to her desire to
    testify at trial.” With regard to this claim, the court stated that
    Cullen “failed to show how any such meeting with [Cullen]
    might have had an impact on the outcome of the trial, or that
    there is a reasonable probability that the outcome of [her]
    trial would be different.” Regarding Cullen’s right to testify,
    the court stated that Cullen’s claim was a “generic” allegation
    that “if called to testify, she would [have] explained ‘how the
    incident actually happened.’” But, the court stated, Cullen
    alleged “no other facts as to how the incident occurred or how
    her testimony would be different than the numerous statements
    given to law enforcement, which were introduced at trial.” The
    court noted that Cullen also alleged that she would have testi-
    fied “‘about her care and love for the child and about the sor-
    row she had that the child was injured in any way’” and that
    such testimony “would have negated the State’s closing argu-
    ment that she lacked emotion during the entirety of the trial.”
    The court again characterized this allegation as “generic”
    and stated that such testimony “could not have changed the
    outcome of the trial in light of the other evidence adduced at
    the trial.”
    Cullen’s fourth claim of ineffective assistance of trial coun-
    sel was that counsel “failed to adequately prepare for trial
    in that they did not depose a single witness or prepare for
    cross examination of any of the medical or expert witnesses.”
    With regard to this claim, the court stated that Cullen did not
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    “allege what information would have been obtained . . . in
    deposing the State’s expert witnesses in order to provide for
    more effective cross-examination of the witnesses, or what
    questions should have been asked on cross-examination from
    any such depositions.” The court further stated that Cullen
    failed “to identify what questions should have been asked
    of the State’s witnesses that would have favorably assisted”
    her defense.
    Cullen finally claimed ineffective assistance of appellate
    counsel, and she alleged that counsel “fail[ed] to meet with
    her and discuss the ineffective assistance of trial counsel so
    as to effectively set out those complaints in her appellate brief
    and thereby limiting the parameters of her [postconviction]
    proceedings.” With regard to this claim, the court stated that
    Cullen had “[o]nce again . . . failed to allege facts as to how
    this failure . . . effected [sic] the outcome of [her] appeal, or
    that there is a reasonable probability that the outcome of [her]
    appeal would have been different.”
    In summary, the district court found that
    as to each ground presented by [Cullen] in her motion for
    postconviction relief, [she] has failed to show how she
    was prejudiced by either her trial or appellate counsel’s
    failure, or that but for her trial or appellate counsel’s fail-
    ure to provide effective professional representation, . . .
    there is a reasonable probability that the outcome . . . in
    this case could have been any different than it was.
    The court concluded that Cullen was not entitled to an eviden-
    tiary hearing and that her motion should be dismissed.
    Cullen appeals the district court’s order that dismissed her
    motion for postconviction relief.
    ASSIGNMENT OF ERROR
    Cullen claims that the district court erred when it denied her
    claims of ineffective assistance of trial counsel and her claim
    of ineffective assistance of appellate counsel without an evi-
    dentiary hearing.
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    STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defendant
    failed to allege sufficient facts to demonstrate a violation of
    his or her constitutional rights or that the record and files
    affirm­atively show that the defendant is entitled to no relief.
    State v. Britt, 
    310 Neb. 69
    , 
    963 N.W.2d 533
     (2021).
    ANALYSIS
    We begin our analysis by setting forth standards that are
    applicable to our review of postconviction claims. We then
    review each of Cullen’s claims under those standards, and
    as discussed below, we determine that the district court did
    not err when it denied Cullen’s claims without an eviden-
    tiary hearing.
    Postconviction Standards.
    [2] Postconviction relief is available to a prisoner in custody
    under sentence who seeks to be released on the ground that
    there was a denial or infringement of his or her constitutional
    rights such that the judgment was void or voidable. 
    Id.
     Thus,
    in a motion for postconviction relief, the defendant must allege
    facts which, if proved, constitute a denial or violation of his
    or her rights under the U.S. or Nebraska Constitution, caus-
    ing the judgment against the defendant to be void or voidable.
    Britt, 
    supra.
    [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 U.S. or Nebraska
    Constitution. Britt, 
    supra.
     If a postconviction motion alleges
    only conclusions of fact or law, or if the records and files in
    the case affirmatively show that the defendant is entitled to no
    relief, the court is not required to grant an evidentiary hear-
    ing. 
    Id.
    [4-7] Cullen’s claims for postconviction relief assert that
    she received ineffective assistance of counsel. A proper
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    ineffective assistance of counsel claim alleges a violation of
    the fundamental constitutional right to a fair trial. State v.
    Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020). 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 coun-
    sel’s performance was deficient and that this deficient per-
    formance actually prejudiced the defendant’s defense. Britt,
    
    supra.
     To show prejudice under the prejudice component of
    the Strickland test, the defendant must demonstrate a reason-
    able probability that but for his or her counsel’s deficient per-
    formance, the result of the proceeding would have been dif-
    ferent. Britt, 
    supra.
     A reasonable probability does not require
    that it be more likely than not that the deficient performance
    altered the outcome of the case; rather, the defendant must
    show a probability sufficient to undermine confidence in the
    outcome. 
    Id.
     The two prongs of this test may be addressed in
    either order, and the entire ineffectiveness analysis should be
    viewed with a strong presumption that counsel’s actions were
    reasonable. See State v. Munoz, 
    309 Neb. 285
    , 
    959 N.W.2d 806
     (2021).
    [8] Cullen was represented on direct appeal by counsel dif-
    ferent from her trial counsel. In addition to asserting claims of
    ineffective assistance of trial counsel, Cullen alleges that her
    appellate counsel performed deficiently when counsel failed
    to consult with her and to assign error on direct appeal assert-
    ing claims of ineffective assistance of trial counsel. 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 ineffective assistance of
    counsel), an appellate court will look at whether trial counsel
    was ineffective under the Strickland test. Parnell, 
    supra.
     If
    trial counsel was not ineffective, then the defendant was not
    prejudiced by appellate counsel’s failure to raise the issue. 
    Id.
    Much like claims of ineffective assistance of trial counsel, the
    defendant must show that but for appellate counsel’s failure
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    to raise the claim, there is a reasonable probability that the
    outcome would have been different. 
    Id.
    With these principles in mind, we review Cullen’s claims of
    ineffective assistance of counsel. We note that the sole claim of
    ineffective assistance of trial counsel that Cullen preserved in
    her direct appeal was the claim that trial counsel was ineffec-
    tive for failing to investigate and call a medical expert to tes-
    tify on her behalf. In her motion for postconviction relief now
    under review, Cullen set forth claims of ineffective assistance
    of trial counsel not raised on direct appeal which would ordi-
    narily be procedurally barred for failure to raise the claims on
    direct appeal. See State v. Kipple, 
    310 Neb. 654
    , 
    968 N.W.2d 613
     (2022) (when trial counsel is different from counsel on
    direct appeal, defendant must raise on direct appeal any issue
    of trial counsel’s ineffective performance known to defendant
    or apparent from record; otherwise, issue will be procedur-
    ally barred).
    However, Cullen also sets forth a claim of ineffective assist­
    ance of appellate counsel in which she asserts, inter alia, that
    appellate counsel failed to raise claims of ineffective assistance
    of trial counsel, including the claims she now sets forth in her
    postconviction motion. As noted above, reviewing a claim of
    ineffective assistance of appellate counsel for failing to raise
    claims on direct appeal requires an assessment of whether trial
    counsel was ineffective. We therefore review each of Cullen’s
    claims of ineffective assistance of trial counsel and her claim
    of ineffective assistance of appellate counsel to determine
    whether the district court erred when it concluded that Cullen’s
    claims were not sufficiently pled.
    Cullen Did Not Allege Sufficient Facts to
    Support Her First Claim of Ineffective
    Assistance of Trial Counsel.
    Cullen claims that the district court erred when it refused
    an evidentiary hearing on her claim that trial counsel “failed
    to adequately investigate [her] defenses and advise [her] of
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    her options, including but not limited to the alternate theories
    of the cause of the severity of the injuries.” The district court
    generally determined that Cullen set forth no specific allega-
    tions of what potential evidence would have been found with
    an adequate investigation or how such an investigation would
    have resulted in a different outcome in her trial. We agree.
    The district court stated that Cullen simply listed the names
    of potential witnesses that should have been contacted but
    that she provided “no facts as to what information that they
    would have provided or how any such information might have
    impacted cross-examination of the State’s witnesses.” In her
    claim, Cullen asserted that counsel should have investigated a
    defense asserting “alternate theories” for the cause of Cash’s
    injuries, including the possibility that one of Cash’s parents
    caused his injuries. She asserted that trial counsel should have
    focused on the evidence that Chris came home briefly on the
    morning that Cash was injured. Cullen also alleged that an
    anonymous witness had contacted her original counsel and
    claimed that Ashley had anger management issues and that she
    had been involved in an altercation at her workplace. Cullen
    alleged that her original counsel provided trial counsel with the
    name of a person who might have been the anonymous wit-
    ness, as well as the name of a contact at Ashley’s workplace
    who might have information regarding the alleged altercation.
    Cullen alleged that her trial counsel failed to follow up on this
    information provided by her original counsel.
    [9] 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. State v. Munoz, 
    309 Neb. 285
    , 
    959 N.W.2d 806
     (2021). 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. 
    Id.
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    Cullen’s allegations regarding potential defenses were gen-
    erally that an investigation might have uncovered helpful evi-
    dence. Although she asserts trial counsel could have argued a
    defense which would have placed suspicion on Cash’s parents,
    she makes no specific allegations of actual evidence or testi-
    mony that would have implicated either parent. Cullen specu-
    lates about Chris’ reasons for briefly returning home that morn-
    ing, and regarding Ashley’s alleged anger issues, Cullen only
    asserted that if trial counsel contacted the potential witnesses
    identified by her original counsel, those witnesses might have
    provided some evidence regarding an altercation at her work-
    place. She alleged no specific evidence that would have been
    discovered, and to the extent she alleged that counsel might
    have found evidence of an altercation at work, Cullen did not
    show why evidence regarding an alleged workplace altercation
    would translate or prove that Ashley had injured Cash.
    We determine that Cullen’s allegations did not set forth
    sufficient facts to support her first claim of ineffective assist­
    ance of trial counsel. We therefore conclude that the district
    court did not err when it refused an evidentiary hearing on
    this claim.
    Cullen Did Not Allege Sufficient Facts to
    Support Her Second Claim of Ineffective
    Assistance of Trial Counsel.
    Cullen claimed that trial counsel was ineffective because
    counsel “failed to investigate the hiring of expert witnesses to
    support [her] description of how the injury occurred and failed
    to utilize [a] trial consultant with 25 years of experience who
    had examined the facts and met with [Cullen].” The district
    court generally determined that Cullen made no specific allega-
    tions of what such experts would have testified. We agree.
    Cullen alleged that the trial consultant identified specific
    potential expert witnesses, and Cullen provided the list of
    names in her motion. However, regarding the substance of
    such expert’s testimony, Cullen alleged only that the trial
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    consultant asserted that their testimony would have been help-
    ful to her defense. Such allegations are not allegations of spe-
    cific fact and instead are conclusory. She made no allegations
    of the specific testimony those experts would have given in her
    defense, and she therefore did not show how their testimony
    would have resulted in a different outcome in her trial.
    We therefore conclude that the district court did not err
    when it denied this claim without an evidentiary hearing.
    Cullen Did Not Allege Sufficient Facts to
    Support Her Third Claim of Ineffective
    Assistance of Trial Counsel.
    Cullen also claims that the district court erred when it
    refused to conduct an evidentiary hearing on her claim that
    trial counsel “failed to meet with her on a single occasion to
    discuss the facts of the case, failed to consult with her about
    her right to testify and fail[ed] to inquire as to her desire to tes-
    tify at trial.” The district court determined that Cullen failed to
    make specific allegations of what she would have told counsel
    or the substance of her potential testimony and failed to make
    allegations that showed that her testimony would have resulted
    in a different outcome in the trial. We agree.
    [10] Cullen generally alleged that counsel did not discuss
    the case with her, and in particular, she alleged that counsel
    did not discuss with her her right to testify and whether or not
    she should testify in her defense. We have recognized that a
    defendant has a fundamental constitutional right to testify, but
    a trial court does not have a duty to advise the defendant of his
    or her right to testify or to ensure that the defendant waived
    this right on the record. State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
     (2011). We have recognized that defense counsel
    bears the primary responsibility for advising a defendant of his
    or her right to testify or not to testify, of the strategic implica-
    tions of each choice, and that the choice is ultimately for the
    defendant to make. 
    Id.
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    In a postconviction action when a defendant raises a claim
    of ineffective assistance of trial counsel related to counsel’s
    failure with regard to advising the defendant on his or her
    right to testify, we have subjected the claim to the Strickland
    standard and required the defendant to show how trial coun-
    sel’s alleged deficient performance prejudiced the defense. In
    Iromuanya, we concluded that “because the record show[ed]
    that the jury heard [the defendant’s] statement of events from
    his police interview, he was not prejudiced by his trial coun-
    sel’s alleged failure to reasonably advise him to testify.” 282
    Neb. at 812-13, 806 N.W.2d at 423. See, also, Yannai v. U.S.,
    
    346 F. Supp. 3d 336
    , 347 (E.D.N.Y. 2018) (relying on Weaver
    v. Massachusetts, ___ U.S. ___, 
    137 S. Ct. 1899
    , 
    198 L. Ed. 2d 420
     (2017), to the effect that on direct review, prejudice
    resulting from structural error may be presumed but even if
    denial of right to testify may be structural error, in habeas cor-
    pus action, Strickland applied to claim of ineffective assistance
    of trial counsel with regard to right to testify and defendant
    was required “to demonstrate prejudice flowing from failure
    to testify”). See, similarly, State v. Fuentes, 
    302 Neb. 919
    , 
    926 N.W.2d 63
     (2019) (citing Weaver, supra). Therefore, even if
    we presume that trial counsel did not discuss with Cullen her
    right to testify and whether she should testify in her defense as
    Cullen has alleged, she was required to show how such failure
    prejudiced her defense.
    Cullen made general allegations that she would have testi-
    fied that she would have told her side of the story. However,
    she does not specify what that story would have been. The
    evidence in this case already included her statements to police
    in which she set forth four versions of what happened to Cash
    that morning. As we noted in Iromuanya, supra, there was no
    prejudice when the defendant’s side of the story was already
    in evidence through statements the defendant had made to
    police. Cullen does not allege whether the version she would
    have testified to at trial was one of those four versions or yet
    another account. It is unclear how her telling her story would
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    have changed the outcome of the trial, especially in light of the
    fact that the evidence already included four versions of what
    she told police.
    Cullen also asserts that she would have testified she loved
    Cash and was upset about what had happened to him and that
    this would have countered the State’s arguments that she was
    cold and uncaring. We believe her hypothetical testimony
    would have opened the door to harsh cross-examination, fur-
    ther diminishing any impact it might have had on the trial’s
    outcome. We think the district court was correct to find that
    such testimony would not reasonably have resulted in a dif-
    ferent outcome to the trial, in light of the other evidence
    against Cullen.
    Even assuming as we have done that Cullen was not advised
    by counsel regarding her right to testify, we agree with the
    district court’s determination that Cullen did not adequately
    allege how she was prejudiced by trial counsel’s failure to so
    advise her and that the record is to the contrary. We therefore
    conclude that the district court did not err when it refused an
    evidentiary hearing on this claim.
    Cullen Did Not Allege Sufficient Facts to
    Support Her Fourth Claim of Ineffective
    Assistance of Trial Counsel.
    Cullen claims that the district court erred when it refused
    an evidentiary hearing on her claim that counsel provided
    ineffective assistance because counsel “failed to adequately
    prepare for trial in that they did not depose a single witness or
    prepare for cross examination of any of the medical or expert
    witnesses.” The district court determined that she alleged no
    specific testimony. We agree.
    As we discussed with Cullen’s other claims, Cullen was
    required to identify specific witnesses who could have testi-
    fied, what their specific testimony would have been, and how
    that would have resulted in a different outcome. Instead, in her
    motion Cullen alleged only generalities.
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    The district court did not err when it refused an evidentiary
    hearing on this claim.
    Cullen Did Not Allege Sufficient Facts
    to Support Her Claim of Ineffective
    Assistance of Appellate Counsel.
    Cullen claims that the district court erred when it refused
    an evidentiary hearing on her claim that her appellate counsel
    “fail[ed] to meet with her and discuss the ineffective assistance
    of trial counsel so as to effectively set out those complaints in
    her appellate brief and thereby limiting the parameters of her
    [postconviction] proceedings.” The district court determined
    that Cullen failed to allege how the outcome of her appeal
    would have been different if appellate counsel had raised the
    claims. We agree.
    Because Cullen’s claim of ineffective assistance of appellate
    counsel was a layered claim based on the failure of appellate
    counsel to raise claims of ineffective assistance of trial coun-
    sel, we review whether trial counsel was ineffective under the
    Strickland test. See State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020). Cullen must show that but for appellate counsel’s
    failure to raise the claims, there is a reasonable probability that
    the outcome of the appeal would have been different, and if
    Cullen failed to adequately allege that trial counsel was inef-
    fective, then Cullen was not prejudiced by appellate counsel’s
    failure to raise the issues. See 
    id.
    For her claim of ineffective assistance of appellate counsel,
    Cullen relied on the claims she set forth in her postconvic-
    tion motion alleging ineffective assistance of trial counsel. As
    discussed above, we agreed with the district court’s determina-
    tion that each of those claims was not sufficient. Therefore,
    Cullen’s claim of ineffective assistance of appellate counsel to
    raise those claims on direct appeal is of no avail.
    We conclude the district court did not err when it rejected
    Cullen’s claim of ineffective assistance of appellate counsel
    without an evidentiary hearing.
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    CONCLUSION
    As explained, we conclude that the court did not err when
    it denied Cullen’s postconviction claims without an evidentiary
    hearing. We therefore affirm the district court’s order.
    Affirmed.
    Freudenberg, J., not participating.