IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. TALIAFERRO
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DONYAL R. TALIAFERRO, APPELLANT.
Filed April 9, 2019. No. A-18-098.
Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge. Affirmed
in part, and in part reversed and remanded for further proceedings.
Donyal R. Taliaferro, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
MOORE, Chief Judge.
INTRODUCTION
Donyal R. Taliaferro appeals from the order of the district court for Douglas County, which
denied his motion for postconviction relief without an evidentiary hearing. We determine that the
district court erred when it denied Taliaferro an evidentiary hearing on his claim that his trial
counsel was ineffective for failing to provide him with a copy of a certain deposition prior to
entering his plea, and we reverse the decision of the district court on this point and remand the
cause for an evidentiary hearing on this single claim. In all other respects, the decision of the
district court is affirmed.
BACKGROUND
Following his plea-based conviction in the district court for robbery, a Class II felony,
Taliaferro was sentenced to a term of 30 to 50 years’ imprisonment. Pursuant to his plea agreement,
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another count of robbery, and charges of possession of a deadly weapon by a prohibited person
and second offense carrying a concealed weapon on another docket, were dismissed in exchange
for his no contest plea. The factual basis for the charge of robbery to which Taliaferro pled shows
that Taliaferro and his coperpetrator robbed two individuals at gunpoint in their apartment, in the
presence of their young child. During the robbery, the coperpetrator sexually assaulted one of the
victims; however, Taliaferro was not involved in the assault. The factual basis further recited that
police responded to a report of a home invasion and sexual assault and made contact with the
victims, a man and his girlfriend. The man advised police that he and his girlfriend had been
expecting a female acquaintance, Christie Hughes, to spend the evening with them, that they heard
a knock, and that when the man went to the door, he observed that she was the person knocking.
However, when he opened the door, two male suspects armed with what appeared to be handguns
forced their way into the apartment. The factual basis proceeded with details of the men’s actions
while in the apartment, and then indicated that shortly after the men left, a warrant was issued for
Hughes’ arrest for conspiracy to commit robbery. Hughes was arrested, represented by counsel,
waived her Miranda rights, and gave a statement advising that the individuals who forced their
way into the victims’ apartment were her acquaintances, one being Taliaferro. The factual basis
also indicated that Hughes “has given a deposition to that effect.”
On direct appeal, Taliaferro was represented by the same attorney as at trial, and his sole
assignment of error was that his sentence was excessive; this court summarily affirmed his
conviction and sentence. See State v. Taliaferro, 21 Neb. App. xxxv (No. A-13-576, Oct. 22,
2013).
Thereafter, Taliaferro filed a postconviction motion asserting claims of ineffective
assistance of “appellate” counsel, prosecutorial misconduct, and trial court error. His allegations
regarding appellate counsel include failure to retrieve the full and complete court file, failure to
file an adequate brief, failure to include additional documents in the record on direct appeal, failure
to provide Taliaferro with police reports, failure to raise issues on direct appeal including
Taliaferro “not being provided with copies of ‘Brady’ materials under the direct control and
possession of both the prosecution and trial counsel,” and failure to file a petition for further
review. Taliaferro also alleged that his trial counsel engaged in “OTHER BRADY
VIOLATIONS,” by making an agreement with the State to not provide him with copies of police
reports and transcripts of depositions. As relevant to his arguments on appeal, Taliaferro alleged
further that his trial counsel was ineffective for failing to provide him with a copy of the deposition
of Hughes until after sentencing. Taliaferro asserts that Hughes stated in her deposition that she
“assumed” that it was Taliaferro who was involved in the robbery without direct observation of
any criminal act. He alleged that trial counsel was ineffective for informing him prior to entering
his plea that Hughes had positively identified him in her deposition.
Taliaferro also alleged prosecutorial misconduct arising out of the agreement with trial
counsel noted above, the State’s failure to allow him access to police reports, and the State’s
comments at sentencing regarding Taliaferro’s lack of cooperation. Finally, Taliaferro alleged trial
court error, pointing to comments made by the court at sentencing regarding a victim’s
traumatization and Taliaferro’s silence during sentencing.
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On January 10, 2018, the district court entered an order, denying Taliaferro’s
postconviction motion without an evidentiary hearing. First, the court observed that within
Taliaferro’s claims of ineffective assistance of appellate counsel, Taliaferro made several
arguments relating to ineffective assistance of trial counsel. The court observed that Taliaferro had
the same attorney during the plea proceedings and on direct appeal and that he could not have
asserted these claims regarding trial counsel on direct appeal. Because Taliaferro only made
generic statements, such as if counsel had provided him more information, he “would have insisted
on going to trial,” the court found that his motion failed to set forth sufficient facts to establish that
there was a reasonable probability that, but for counsel’s errors, he would not have pled no contest
and would have insisted on going to trial. The court, citing State v. Yos-Chiguil, 28l Neb. 618, 798
N.W.2d 832 (2011), noted that Taliaferro’s “self-serving” declarations were insufficient and thus
he failed to show prejudice. The court also addressed whether Taliaferro’s trial counsel performed
deficiently by failing to investigate in various ways alleged by Taliaferro in his postconviction
motion. Again, the court found that Taliaferro’s allegations were generic and failed to state what
additional evidence would have been gathered or how a different result would have been obtained.
Next, the district court addressed Taliaferro’s claims of ineffective assistance of appellate
counsel. The court determined that the claims Taliaferro asserts appellate counsel should have
brought on appeal do not have enough facts or law to establish that inclusion of such claims would
have changed the result of the appeal.
Finally, the district court rejected Taliaferro’s claims of prosecutorial misconduct and trial
court error. The court determined that these claims were procedurally barred since they could have
been raised on direct appeal.
Taliaferro subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Taliaferro asserts, reordered, that the district court erred by failing to recognize that trial
counsel was ineffective in failing to make a record of all proceedings and not making “Brady”
material available to him.
STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
ANALYSIS
Before addressing Taliaferro’s specific arguments on appeal, we set forth the general
principles with respect to postconviction actions asserting claims of ineffective assistance of
counsel. Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. Id. On appeal from
the denial of postconviction relief without an evidentiary hearing, the question is not whether the
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movant was entitled to relief by having made the requisite showing. Id. Instead, it must be
determined whether the allegations were sufficient to grant an evidentiary hearing. Id.
The allegations in a motion for postconviction relief must be sufficiently specific for the
district court to make a preliminary determination as to whether an evidentiary hearing is justified.
Id. In a proceeding under the Nebraska Postconviction Act, the application is required to allege
facts which, if proved, constitute a violation or infringement of constitutional rights, and the
pleading of mere conclusions of fact or of law is not sufficient to require the court to grant an
evidentiary hearing. State v. Henderson, supra. A postconviction evidentiary hearing must be
granted when the facts alleged, if proved, would justify relief, or when a factual dispute arises as
to whether a constitutional right is being denied. Id.
Here, Taliaferro alleges that his trial counsel was ineffective in failing to make a record of
all proceedings and not making certain material available to him required by Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). When a defendant was represented both at
trial and on direct appeal by the same counsel, the defendant’s first opportunity to assert ineffective
assistance of counsel is in a motion for postconviction relief. Id. 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. State v. Henderson, supra.
A court may address the two prongs of this test, deficient performance and prejudice, in either
order. Id.
In order to establish a right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden first 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. Id. In determining whether trial counsel’s performance was
deficient, courts give counsel’s acts a strong presumption of reasonableness. Id. An appellate court
will not judge an ineffectiveness of counsel claim in hindsight. Id. An appellate court must assess
trial counsel’s performance from counsel’s perspective when counsel provided the assistance. Id.
When reviewing claims of ineffective assistance, an appellate court will not second-guess trial
counsel’s reasonable strategic decisions. Id.
When a conviction is based upon a guilty or no contest plea, the prejudice requirement for
an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable
probability that but for the errors of counsel, the defendant would have insisted on going to trial
rather than pleading guilty or no contest. State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661
(2017).
Using these principles, we address Taliaferro’s arguments on appeal. First, Taliaferro
asserts that his trial counsel was ineffective for failing “to make a record of all the proceedings.”
However, he does not provide any argument in support of this assertion. Taliaferro merely quotes
from Neb. Ct. R. App. P. § 2-105(A)(1) (rev. 2018), which provides that court reporting personnel
“shall in all instances make a verbatim record of the evidence offered at trial or other evidentiary
proceeding, including but not limited to objections to any evidence and rulings thereon, oral
motions, and stipulations by the parties,” which record may not be waived. He also notes the
proposition that all evidentiary proceedings require the presence of a court reporter who shall make
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a verbatim record of the proceedings, and such recording may not be waived by the court or the
parties. Borley Storage & Transfer Co. v. Whitted, 265 Neb. 533, 657 N.W.2d 911 (2003). These
recitations do nothing to advise this court of which proceedings Taliaferro’s trial counsel allegedly
failed to make a record or further illuminate his argument. We do not address this portion of
Taliaferro’s assigned error further. For an alleged error to be considered by an appellate court, an
appellant must both assign and specifically argue an alleged error. State v. Smith, 292 Neb. 434,
873 N.W.2d 169 (2016). An argument that does little more than restate an assignment of error does
not support the assignment, and an appellate court will not address it. Id.
Next, in support of his assertion that his trial counsel was ineffective for failing to provide
him with certain Brady material, Taliaferro argues that there were depositions taken of certain
witnesses, police reports, preliminary hearing transcripts, and other “discovery Brady materials”
that trial counsel refused to provide him during the course of the prosecution, despite many
requests. Brief for appellant at 4. Taliaferro argues that, contrary to what he was told by his trial
counsel, the deposition of “the State’s star witness” (Hughes) shows that she did not positively
identify him. Id. He also argues that she “admitted to even lying under oath and changed her story.”
Id. Taliaferro argues that had he known of Hughes’ statements before entering his plea, he would
have elected to go to trial.
We agree with the State that Taliaferro’s allegations regarding his trial counsel do not
amount to a Brady violation. Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), the prosecution has a duty to disclose all favorable evidence to a criminal defendant
prior to trial. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017). Favorable evidence includes
both exculpatory and impeachment evidence. Id. Suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. To the
extent Taliaferro is claiming a Brady violation, his assignment of error is without merit as he does
not argue that the prosecution suppressed evidence favorable to his case.
Although framed in terms of his trial counsel’s failure to provide him with Brady material,
Taliaferro’s argument on appeal is more properly characterized as an assertion that trial counsel
refused to provide him relevant information about the case, specifically Hughes’ deposition, which
he argues would have changed his willingness to enter a plea as opposed to going to trial.
In determining the prejudice component of alleged ineffective assistance of counsel in a
plea context, the likelihood of the defense’s success had the defendant gone to trial should be
considered along with other factors, such as the likely penalties the defendant would have faced if
convicted at trial, the relative benefit of the plea bargain, and the strength of the State’s case. State
v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen,
301 Neb. 560, 919 N.W.2d 500 (2018). In a motion for postconviction relief, self-serving
declarations that fail to allege specific facts that will be presented in an evidentiary hearing will
not be sufficient on their own to raise a question of prejudice in an allegation of ineffective
assistance of counsel. Id. A motion for postconviction relief seeking to set aside a conviction
pursuant to a plea on the grounds that it was the result of ineffective assistance of counsel must
allege objective facts that raise a question of whether a rational defendant would have insisted on
going to trial. Id.
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Taliaferro argues that because he was not provided with Hughes’ deposition, his plea was
not knowingly, voluntarily and intelligently made, and he asks this court to reverse the lower court
and remand with instructions to allow him to withdraw his plea. However, at this stage, the relevant
question is whether he alleged sufficient facts showing a violation of his constitutional rights to
entitle him to an evidentiary hearing. Here, the only facts tying Taliaferro to the crime from the
factual basis is that Hughes identified him as one of the perpetrators entering the apartment. If
Hughes’ identification of Taliaferro was equivocal, as he suggests, it could have impacted his
willingness to enter a plea. Thus, we conclude that an evidentiary hearing is necessary to determine
whether Taliaferro’s allegations have any merit.
We reverse the decision of the district court and remand the cause with directions to hold
an evidentiary hearing on Taliaferro’s motion for postconviction relief.
CONCLUSION
The district court erred when it denied Taliaferro relief without an evidentiary hearing on
his claim that his trial counsel was ineffective for failing to provide him with a copy of Hughes’
deposition prior to entering his plea. We reverse the court’s decision on this point and remand the
cause for an evidentiary hearing on this single claim. In all other respects, the decision of the
district court is affirmed.
AFFIRMED IN PART, AND IN PART REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS.
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