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956 286 NEBRASKA REPORTS
State of Nebraska, appellee, v.
Matthew A. Fox, appellant.
___ N.W.2d ___
Filed November 22, 2013. No. S-13-408.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. With regard to the 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 indepen-
dently of the lower court’s decision.
3. Postconviction: Effectiveness of Counsel: Appeal and Error. When lawyers
employed by the same office represent a defendant both at trial and on direct
appeal, the defendant’s first opportunity to assert ineffective assistance of counsel
is in a motion for postconviction relief.
4. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist
ance of counsel at trial or on direct appeal, 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; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
5. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the movant’s rights
under the Nebraska or federal Constitution.
6. Postconviction: Pleadings. A defendant is required to make specific allegations
instead of mere conclusions of fact or law in order to receive an evidentiary hear-
ing for postconviction relief.
7. Postconviction. Postconviction relief without an evidentiary hearing is properly
denied when the files and records affirmatively show that the prisoner is entitled
to no relief.
8. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
9. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of
ineffective assistance of appellate counsel, courts usually begin by determin-
ing whether appellate counsel failed to bring a claim on appeal that actually
Nebraska Advance Sheets
STATE v. FOX 957
Cite as 286 Neb. 956
prejudiced the defendant. That is, courts begin by assessing the strength of the
claim appellate counsel purportedly failed to raise.
10. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Matthew A. Fox, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
Matthew A. Fox appeals the denial of his motion for post-
conviction relief without an evidentiary hearing. He asserted
three claims of ineffective assistance of counsel, two at the
trial stage and one at the appellate stage. Because (1) the
jury instructions, taken as a whole, correctly stated the ele-
ments of the crime, (2) Fox failed to identify an expert who
would have opined differently on Fox’s sanity, and (3) the
arguments omitted by appellate counsel lacked any merit,
Fox failed to make any factual allegations which, if proved,
constitute an infringement of his rights under the Nebraska or
federal Constitution.
BACKGROUND
The facts as adduced at Fox’s trial are contained in State
v. Fox1 and are not repeated herein, except as otherwise indi-
cated. A jury convicted Fox of first degree murder and use of
a weapon to commit a felony for the killing of Fox’s mother.
Fox was sentenced to life imprisonment on the murder con-
viction and to a consecutive sentence of 10 to 15 years’
imprisonment on the weapon conviction. We affirmed Fox’s
1
State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011).
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convictions on direct appeal.2 At trial and on direct appeal, Fox
was represented by lawyers from the Nebraska Commission on
Public Advocacy.
Fox’s motion for postconviction relief asserted three claims
of ineffective assistance of counsel. He alleged that (1) his trial
counsel failed to object to erroneous jury instructions, (2) his
trial counsel failed to obtain an additional expert opinion as
to Fox’s sanity at the time of the killing, and (3) his appellate
counsel failed to raise the issues of insufficient evidence and
erroneous jury instructions on appeal.
With respect to the jury instructions given at trial, Fox
claimed that instructions Nos. 7 and 9 reduced the State’s
burden of proof in establishing first degree murder by reliev-
ing it of the requirement to prove deliberation and premedita-
tion. Fox alleged that instructions Nos. 7 and 9 improperly
permitted the jury to infer the existence of deliberation and
premeditation.
Instruction No. 7 provided, in pertinent part, as follows:
As used in these instructions:
....
2. “Intentionally” means willfully or purposely.
3. “Purposely” means not suddenly or rashly but doing
an act after first considering the probable consequences.
4. “Premeditated” means forming the intent to act
before acting. The time needed for premeditation may
be so short as to be instantaneous provided the intent to
act is formed before the act and not simultaneous with
the act.
5. “Malice” means intentionally doing a wrongful act
without just cause or excuse.
As relevant to this appeal, instruction No. 9 provided:
Intention and deliberation and premeditation and pur-
pose are elements of Murder in the First Degree. . . . You
may infer intention and deliberation and premeditation
and purpose from the words and acts of . . . Fox and
from the surrounding circumstances, so long as such
inference proves beyond a reasonable doubt that . . . Fox
2
See id.
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STATE v. FOX 959
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had such intention and deliberation and premeditation
and purpose.
Fox alleged that by first equating “[i]ntentionally” to “will-
fully or purposely” and then defining “[p]urposely” with a
definition akin to “deliberate[ly],” the instructions permitted
the jury to infer that the killing was deliberate if the jury found
that it was intentional. Fox similarly alleged that instruction
No. 9 improperly permitted the jury to infer the existence
of deliberation and premeditation. Thus, according to Fox,
he was prejudiced by his trial counsel’s failure to object to
instructions Nos. 7 and 9 because they reduced the State’s
burden of proof.
Fox’s second claim asserted that his trial counsel failed to
obtain an additional expert opinion as to Fox’s sanity at the
time of the killing. In his motion, Fox alleged that his trial
counsel obtained a psychological examination finding that
there was insufficient information to reach a conclusion as to
Fox’s sanity at the time of the killing. Fox asserted that reason-
able counsel would have sought an additional examination with
conclusive results. Thus, Fox alleged, his trial counsel’s failure
to obtain a conclusive expert opinion effectively conceded the
issue of Fox’s sanity.
As to Fox’s appellate counsel, Fox alleged that he was
prejudiced by his counsel’s failure to raise the issues of insuf-
ficient evidence and erroneous jury instructions on appeal.
Fox claimed that the State failed to present any evidence at
trial that the killing was deliberate or premeditated. Further,
Fox asserted that jury instructions Nos. 7 and 9 improperly
reduced the State’s burden of proof in establishing first
degree murder. Fox alleged that his appellate counsel there-
fore caused him prejudice by failing to raise these issues
on appeal.
As we noted at the outset of this opinion, the district court
denied Fox’s motion without an evidentiary hearing. We sum-
marize the court’s reasoning regarding each of Fox’s claims.
The court first rejected Fox’s argument that he was preju-
diced by his trial counsel’s failure to object to jury instructions
Nos. 7 and 9. The court reasoned that the instructions as a
whole properly instructed the jury to find each element of first
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degree murder. Thus, because the jury instructions as a whole
correctly instructed the jury, the court concluded that Fox could
not show he was prejudiced by his counsel’s failure to object to
instructions Nos. 7 and 9.
The court also rejected Fox’s argument that he was preju-
diced by his trial counsel’s failure to obtain an additional
expert opinion as to Fox’s sanity at the time of the killing. The
court noted that Fox failed to make any showing that an addi-
tional expert would have reached a different conclusion than
the experts that testified at trial. The court further observed
that even if an expert had testified to Fox’s insanity at the time
of the killing, Fox failed to demonstrate that such testimony
would have caused the jury to reach a different conclusion on
the issue. The court therefore found that Fox failed to show any
prejudice from his trial counsel’s failure to obtain an additional
expert opinion.
The court similarly rejected Fox’s claim that he was preju-
diced by ineffective assistance of counsel on appeal. With
respect to the failure of Fox’s appellate counsel to raise the
issue of erroneous jury instructions, the court found that Fox
could not show he was prejudiced on appeal because he made
no showing that he was prejudiced by the instructions at trial.
As to the failure of Fox’s appellate counsel to raise the issue of
insufficient evidence, the court found that sufficient evidence
was introduced at trial from which the jury could properly have
found all of the elements of first degree murder. Thus, Fox
failed to show that the result would have been different had the
issue been raised on appeal.
Because Fox failed to establish prejudice arising from his
claims of ineffective assistance of counsel, the district court
concluded that Fox failed to make any factual allegations dem-
onstrating a denial or infringement of his due process rights.
Accordingly, the court denied Fox’s motion.
Fox filed a timely notice of appeal.
ASSIGNMENTS OF ERROR
Fox assigns that the district court erred in denying his
motion for postconviction relief without an evidentiary hear-
ing. Fox further assigns that the court erred in finding that he
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STATE v. FOX 961
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failed to show any prejudice arising from his claims of ineffec-
tive assistance of counsel.
STANDARD OF REVIEW
[1,2] A claim that defense counsel provided ineffec-
tive assistance presents a mixed question of law and fact.3
With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,4 an appellate court
reviews such legal determinations independently of the lower
court’s decision.5
ANALYSIS
First Opportunity
[3] At the outset, we note that this is Fox’s first opportunity
to assert that he received ineffective assistance of counsel in
the disposition of his case. When lawyers employed by the
same office represent a defendant both at trial and on direct
appeal, the defendant’s first opportunity to assert ineffective
assistance of counsel is in a motion for postconviction relief.6
Because Fox was represented both at trial and on direct appeal
by lawyers from the same office, he could not raise these
issues on direct appeal.
R equired Showings
[4] We have previously set forth the requirements to estab-
lish a right to postconviction relief based on a claim of inef-
fective assistance of counsel. In order to establish a right to
postconviction relief based on a claim of ineffective assist
ance of counsel at trial or on direct appeal, the defendant
has the burden, in accordance with Strickland,7 to show that
3
State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
5
McGhee, supra note 3.
6
State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
7
Strickland, supra note 4.
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counsel’s performance was deficient; that is, counsel’s per
formance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area.8 Next, the defendant
must show that counsel’s deficient performance prejudiced
the defense in his or her case.9 In order to show prejudice,
the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the pro-
ceeding would have been different.10 The two prongs of this
test, deficient performance and prejudice, may be addressed
in either order.11
[5-7] We have also set forth the circumstances under which
an evidentiary hearing on a motion for postconviction relief
must be granted. We have stated that an evidentiary hearing
on a motion for postconviction relief is required on an appro-
priate motion containing factual allegations which, if proved,
constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution.12 But, this court has required
that a defendant make specific allegations instead of mere
conclusions of fact or law in order to receive an evidentiary
hearing for postconviction relief.13 And postconviction relief
without an evidentiary hearing is properly denied when the
files and records affirmatively show that the prisoner is entitled
to no relief.14
The district court concluded that Fox failed to make any fac-
tual allegations demonstrating a denial or infringement of his
constitutional rights. We independently review the sufficiency
of these allegations in accordance with our case law applying
the Strickland analysis. Although the district court based its
conclusions upon the prejudice prong of Strickland, we may
address the prongs in either order.
8
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
9
Id.
10
Id.
11
Id.
12
See State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
13
Id.
14
Id.
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Jury Instructions
[8] Turning first to Fox’s argument addressing the jury
instructions, we recall both the rule governing prejudicial
error in jury instructions and the statutory elements of the
crime of first degree murder. We have previously stated that
all the jury instructions must be read together, and if, taken
as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal.15 The elements of first degree murder are set forth in
Neb. Rev. Stat. § 28-303 (Reissue 2008), which provides that
a person commits first degree murder when he or she kills
another person “purposely and with deliberate and premedi-
tated malice.”
The jury instructions, taken as a whole, imposed upon the
State the burden to prove all of the elements of first degree
murder. Jury instruction No. 4 set forth the elements of first
degree murder as a killing done “purposely and with delib-
erate and premeditated malice.” Thus, the instructions pre-
cisely followed the language of § 28-303. Further, instruction
No. 4 informed the jury that it must decide “whether the State
proved each element set forth above beyond a reasonable
doubt.” Jury instruction No. 9 did not conflict with instruc-
tion No. 4. Instruction No. 9 charged the jury that intention,
deliberation, premeditation, and purpose are elements of first
degree murder. Thus, contrary to Fox’s argument, the instruc-
tions did not reduce the State’s burden of proof. Rather, the
jury instructions as a whole correctly charged the jury regard-
ing all of the elements of first degree murder. Because the
instructions as a whole properly instructed the jury, Fox’s
trial counsel did not perform deficiently in failing to object to
instructions Nos. 7 and 9.
Additional Expert
Fox’s second claim of ineffective assistance of counsel is
based upon the failure of his trial counsel to obtain an addi-
tional expert opinion as to Fox’s sanity at the time of the
15
See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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killing. This allegation lacks sufficient specificity to satisfy the
prejudice prong of the Strickland test.
In State v. McGhee,16 we affirmed the dismissal of the
defendant’s request for postconviction relief without an evi-
dentiary hearing, based upon the defendant’s failure to identify
an expert who would have testified at trial that the defendant
was incompetent to stand trial or legally insane at the time
of the killing. We also reasoned that even if another expert
had testified, it did not follow that the competency and sanity
determinations would necessarily or even probably have been
different.17 We therefore resolved the defendant’s claim using
the prejudice prong of Strickland.18
In the instant case, Fox’s motion similarly failed to identify
an additional expert who would have testified that Fox was
insane at the time of the killing. His motion also failed to set
forth the testimony that the additional expert would have given.
Fox’s motion alleged only that his counsel’s failure to pursue
an additional expert opinion caused him prejudice. Thus, Fox
failed to allege facts which, if proved, would establish a rea-
sonable probability that the outcome of his case would have
been different if his trial counsel had retained an additional
psychiatric expert. The district court correctly concluded that
Fox failed to show any prejudice from this claim.
Claims Against Appellate Counsel
[9] Finally, Fox asserts that his appellate counsel failed to
assign and argue the allegedly erroneous jury instructions and
the sufficiency of the evidence. When analyzing a claim of
ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a
claim on appeal that actually prejudiced the defendant.19 That
is, courts begin by assessing the strength of the claim appellate
counsel purportedly failed to raise.20
16
McGhee, supra note 3.
17
See id.
18
See id.
19
State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
20
Id.
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[10] But Fox raises the same argument regarding the jury
instructions that we have already rejected. Counsel’s failure
to raise an issue on appeal could be ineffective assistance
only if there is a reasonable probability that inclusion of
the issue would have changed the result of the appeal.21 As
discussed above, the jury instructions as a whole correctly
instructed the jury to find all of the elements of first degree
murder. Appellate counsel would not have changed the result
by making the argument. Thus, the failure of Fox’s appellate
counsel to raise the jury instructions on appeal was not defi-
cient performance.
As to the failure of Fox’s appellate counsel to raise an issue
regarding the sufficiency of the evidence, we agree with the
district court’s conclusion that sufficient evidence was pre-
sented to the jury from which it could have properly found
all of the elements of first degree murder. Succinctly stated,
the State presented evidence that Fox and his mother had a
dysfunctional relationship, that Fox struck his mother multiple
times with an ax in an assault that occurred in the basement
of their home, and that Fox later told police officers that he
thought he had killed his mother. We therefore find that no rea-
sonable probability exists that raising the issue of insufficient
evidence would have changed the result on appeal. Thus, Fox’s
appellate counsel did not perform deficiently in failing to raise
this issue.
CONCLUSION
We affirm the district court’s denial of Fox’s motion for
postconviction relief without an evidentiary hearing based
upon our finding that Fox failed to make any factual allega-
tions which, if proved, constitute an infringement of his rights
under the Nebraska or federal Constitution.
Affirmed.
McCormack, J., participating on briefs.
21
Id.