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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
State of Nebraska, appellee, v.
Wilbur L. Jackson, appellant.
___ N.W.2d ___
Filed January 9, 2024. No. A-22-903.
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. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
3. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
4. 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.
5. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of 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
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STATE V. JACKSON
Cite as 32 Neb. App. 563
his or her counsel’s deficient performance, the result of the proceeding
would have been different. 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.
7. Postconviction. The defendant’s verified motion for postconviction
relief is the operative filing before the district court in considering
whether to grant an evidentiary hearing.
8. Postconviction: Appeal and Error. A postconviction court does not
err by failing to consider claims not made in the operative motion for
postconviction relief, which are instead raised in other filings.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. When
a person seeking postconviction relief has different counsel on appeal
than at trial, the motion for postconviction relief is procedurally barred
if the person seeking relief (1) knew of the issues assigned in the post-
conviction motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error the failure
of appellate counsel on direct appeal to raise the issues assigned in the
postconviction motion.
10. 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 two-part test for
ineffectiveness established in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not inef-
fective, then the defendant was not prejudiced by appellate counsel’s
failure to raise the issue.
11. Appeal and Error. Generally, an appellate court will find plain error
only when a miscarriage of justice would otherwise occur.
12. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
13. Postconviction: Appeal and Error. The appellate court will not con-
sider allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction relief or
passed upon by the postconviction court.
Appeal from the District Court for Cass County: Michael
A. Smith, Judge. Affirmed.
Wilbur L. Jackson, pro se.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Moore, Judge.
INTRODUCTION
Wilbur L. Jackson appeals from the order of the district
court for Cass County, which denied his motion for postconvic-
tion relief without an evidentiary hearing. For the reasons set
forth herein, we affirm.
STATEMENT OF FACTS
On March 20, 2020, Jackson was charged by information
with six counts: driving under the influence of alcohol, fifth
offense/aggravated; violating the terms of an ignition interlock
order, with a habitual criminal allegation; leaving the scene of
an accident; reckless driving, second offense; false reporting;
and refusal to submit to a preliminary breath test.
On March 23, 2020, Jackson’s trial counsel filed a motion
to quash the information, alleging the ignition interlock charge
could not be enhanced under the habitual criminal statute with-
out violating established precedent prohibiting double penalty
enhancement. In an order entered on April 9, the district court
denied the motion to quash, finding that there was no “‘stack-
ing’” of enhancements regarding the ignition interlock charge,
as Jackson was subjected to an ignition interlock order due to
a prior conviction. The court reasoned that it was the violation
of that order that was prohibited and punished, not the crime
which had triggered the ignition interlock order.
A bench trial was held on September 30, 2020. The evi-
dence adduced at trial established that on February 3, Jackson
was driving eastbound on U.S. Highway 34 in Cass County
when he moved onto the right shoulder and then made an
abrupt U-turn without signaling, striking another eastbound
vehicle that was traveling behind Jackson and pushing that
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STATE V. JACKSON
Cite as 32 Neb. App. 563
vehicle toward oncoming traffic and into a field where it
struck an embankment. Jackson did not stop.
Approximately 5 minutes after the accident, a sheriff’s
deputy, responding to a witness’ call to the 911 emergency dis-
patch service, stopped Jackson’s vehicle. Jackson denied being
involved in an accident and told the deputy that his brother
had picked him up 5 minutes prior in Shenandoah, Iowa,
approximately 100 miles from the accident site. The deputy
detected the odor of alcohol, along with other mannerisms
indicative of alcohol consumption, and began a driving under
the influence of alcohol investigation. Though Jackson agreed
to a preliminary breath test, he repeatedly used his tongue to
block the airflow into the straw and pulled his head back so
that he was not blowing enough air to give a sufficient sample.
The deputy subsequently arrested Jackson and transported
him to take a chemical breath test, which demonstrated a .239
breath alcohol content.
Douglas County court records from a 2016 criminal case
and various Nebraska Department of Motor Vehicle records
established that Jackson’s license had been revoked for 15
years and he was permitted to drive only with an ignition inter-
lock device. The deputy testified that Jackson’s vehicle had no
such device.
On October 7, 2020, the district court entered a judg-
ment of conviction, finding Jackson guilty of all counts but
count II, violating the terms of an ignition interlock order
with a habitual criminal allegation, in violation of Neb. Rev.
Stat. § 60-6,211.11 (Cum. Supp. 2018). The court noted that
pursuant to previous court orders, Jackson’s driving privi-
leges had been revoked and not yet reinstated. Jackson was
allowed to obtain an ignition interlock permit and operate
motor vehicles equipped with an ignition interlock device.
The court noted that Nebraska Supreme Court precedent holds
that § 60-6,211.11 applies only to those who have interlock
permits, with a different statute applying to those who do not
have permits. The court observed that the vehicle driven by
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STATE V. JACKSON
Cite as 32 Neb. App. 563
Jackson at the time of the offense did not have an ignition
interlock device and that Jackson had not obtained an ignition
interlock permit. Thus, Jackson did not violate § 60-6,211.11,
because it was inapplicable to him.
A sentencing hearing was held on December 21, 2020.
Following argument from the State and Jackson, the district
court asked, “Counsel, we . . . overlooked something here
going forward. I think because . . . the way this case happened,
that I took it under advisement, we didn’t enhance[]. Is the
State prepared to go forward with that?”
After a brief recess, the State offered certified copies of
Douglas County District Court records evidencing Jackson’s
four prior driving under the influence of alcohol convictions
and one reckless driving conviction. The court received the
exhibits and found that they properly enhanced count I, driv-
ing under the influence of alcohol, fifth offense/aggravated, as
well as count IV, reckless driving, second offense.
The district court then sentenced Jackson to a term of 15
to 20 years’ imprisonment for driving under the influence of
alcohol, a term of 6 months’ imprisonment for leaving the
scene of an accident, a term of 6 months’ imprisonment for
reckless driving, a term of 1 year’s imprisonment for false
reporting, and a fine of $100 for refusal to submit to a pre-
liminary breath test. The court ordered that the sentences be
served concurrently, and Jackson was given 323 days’ credit
for time served.
On direct appeal, and represented by different counsel,
Jackson alleged that the district court abused its discretion by
imposing excessive sentences and that there was insufficient
evidence adduced at trial to find him guilty of false reporting.
This court summarily affirmed the district court’s order on
November 3, 2021, in case No. A-21-007.
On June 27, 2022, Jackson, now self-represented, filed
a motion for postconviction relief. In that motion, Jackson
presented claims with respect to his trial and appellate coun-
sel’s failure to contest the State’s presentation of evidence
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STATE V. JACKSON
Cite as 32 Neb. App. 563
regarding the habitual criminal enhancement. Jackson also
alleged that his appellate counsel should have argued on direct
appeal that the ignition interlock charge lacked “‘mens rea’”
as determined by the district court, due to its inconsistency
with § 60-6,211.11, and that his appellate counsel did not
review the record, instead using the brief drafted by his trial
counsel for the direct appeal. Jackson further alleged that the
district court committed plain error by engaging in “ex parte
actions” during enhancement, his trial counsel was ineffective
for failing to object to these actions, and his appellate counsel
was ineffective in failing to raise the claim on direct appeal.
The motion for postconviction relief requested an evidentiary
hearing and the appointment of counsel.
On July 11, 2022, the district court entered an order that
deferred its ruling on Jackson’s motion for postconviction
relief until the State had an adequate opportunity to respond.
The court ordered the State to submit a written response by
September 8 and noted that Jackson’s motion for postconvic-
tion relief would be taken under advisement at that time. The
State filed its answer to Jackson’s motion on July 25.
On August 25, 2022, Jackson filed a reply and objection to
the State’s answer. This reply included new claims not asserted
in his original motion for postconviction relief. Jackson alleged
that his trial counsel was ineffective by failing to assert a
facial and as-applied constitutional challenge of the habitual
criminal enhancement. Jackson also alleged that his appel-
late counsel was ineffective by failing to raise the claims on
direct appeal and that the performance of his appellate counsel
amounted to “structural error,” for which Jackson did not need
to make a showing of prejudice. Jackson also reasserted his
claim that his trial counsel was ineffective in failing to object
to judicial misconduct and his appellate counsel had failed to
raise the claim on direct appeal. The reply requested that the
district court liberally construe the claims in his motion for
postconviction relief or, in the alternative, for leave to amend
Jackson’s motion for postconviction relief.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
On November 4, 2022, Jackson filed a renewed motion to
amend and for declaratory relief. The renewed motion again
requested leave to amend his motion for postconviction relief
and asked the district court to find the Nebraska Postconviction
Act unconstitutional as it violated Jackson’s due process
and equal protection rights by failing to construe pro se fil-
ings liberally.
On November 14, 2022, the district court entered an order
denying Jackson’s motion for postconviction relief. We have
set forth details of the court’s reasoning in the analysis sec-
tion below.
Jackson appeals.
ASSIGNMENTS OF ERROR
Jackson assigns that the district court erred by (1) not grant-
ing Jackson leave to amend his motion for postconviction
relief; (2) denying Jackson’s motion for postconviction relief
without an evidentiary hearing; and (3) failing to find the
Nebraska Postconviction Act unconstitutional as it applied to
Jackson as a pro se litigant.
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. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).
ANALYSIS
Requests for Leave to Amend.
Jackson first assigns that the district court erred by fail-
ing to grant him leave to amend his postconviction motion to
“amplify and restate his claims with more certainty.” Brief for
appellant at 11. Jackson argues that his amended postconvic-
tion motion related back to his original motion, that he had
not previously amended his original motion, and that he was
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Nebraska Court of Appeals Advance Sheets
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STATE V. JACKSON
Cite as 32 Neb. App. 563
within the 1-year statute of limitations to assert or reassert
claims for relief.
Jackson twice made a request that the district court give
him leave to amend his motion for postconviction relief. As
detailed above, Jackson’s reply and objection to the State’s
answer, and his renewed motion to amend, were filed after the
State filed its answer to Jackson’s motion for postconviction
relief. The district court previously entered an order deferring
its ruling on Jackson’s motion for postconviction relief and
stating that the matter would be taken under advisement at
the time the State submitted a written response to Jackson’s
original motion. Jackson’s first request to amend was filed
31 days after the State’s answer was filed, and thus, the first
request was filed after the matter had been submitted to the
district court for decision. His renewed motion to amend was
filed 102 days after the State’s answer. Although the district
court did not specifically address Jackson’s requests for leave
to amend in its order denying the evidentiary hearing, we
find no abuse of discretion in the court’s implicit denial of
these requests.
In State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016),
the Nebraska Supreme Court distinguished postconviction
cases from other civil proceedings, holding that a postconvic-
tion action is not an ordinary civil action and that, as such,
the liberal pleading rules that govern civil actions are incon-
sistent with postconviction proceedings. The court found that
postconviction relief is a very narrow category of relief and is
intended to provide relief in those cases where a miscarriage
of justice may have occurred, and not to be a procedure to
secure a routine review for any defendant dissatisfied with his
or her sentence. The Supreme Court explicitly held in State v.
Robertson, supra, that when a district court refuses to grant
leave to amend an original postconviction motion, an appellate
court reviews that decision for an abuse of discretion, and not
pursuant to the civil pleading rules regarding amendment.
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STATE V. JACKSON
Cite as 32 Neb. App. 563
This court has previously held that a district court did not
abuse its discretion in denying a motion to amend when such
motion was filed after the court had already entered an order
denying an evidentiary hearing. See State v. Manning, 18 Neb.
App. 545, 789 N.W.2d 54 (2010). Additionally, this court has
held that a district court did not abuse its discretion in denying
a motion to amend when such motion was filed before the dis-
trict court had entered an order denying the evidentiary hear-
ing, but well after the court had taken the original motion for
postconviction relief under advisement. See State v. Williams,
No. A-21-703, 2022 WL 2433517 (Neb. App. July 5, 2022)
(selected for posting to court website).
Jackson did not ask to amend his motion for postconvic-
tion relief at any point prior to the State’s filing its answer,
even though by the time of this filing, his original motion for
postconviction relief had been pending for a month. Instead,
Jackson waited 31 days after the matter had been submitted to
the court for consideration to make his first request to amend.
He provides no indication that such new claims were not avail-
able to him prior to the State’s filing its answer to his original
motion. Given this timing, we do not find that the district court
abused its discretion in implicitly denying Jackson’s requests
for leave to amend. This assignment of error fails.
Motion for Postconviction Relief.
Jackson next assigns that the district court erred in deny-
ing his motion for postconviction relief without an eviden-
tiary hearing. Before turning to Jackson’s specific claims,
we briefly review the legal framework that governs appeals
from the denial of postconviction relief without an eviden-
tiary hearing.
[2,3] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations that render the judgment void or voidable. State v.
Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023). An eviden-
tiary hearing is not required on a motion for postconviction
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Cite as 32 Neb. App. 563
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. Id.
[4-6] 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 defend
ant’s defense. State v. Galindo, supra. To show that counsel’s
performance was deficient, the defendant must show coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. To show prejudice, 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. See id.
[7,8] Jackson raised additional claims in his reply and
objection to the State’s answer that were not asserted in
his original motion for postconviction relief. The defendant’s
verified motion for postconviction relief is the operative fil-
ing before the district court in considering whether to grant an
evidentiary hearing. State v. Jaeger, 311 Neb. 69, 970 N.W.2d
751 (2022). A postconviction court does not err by failing to
consider claims not made in the operative motion for post-
conviction relief, which are instead raised in other filings. Id.
Thus we address only those claims Jackson has both asserted
in his motion for postconviction relief and specifically argued
in this appeal.
On appeal, Jackson asserts that the district court’s denial
of his motion for postconviction relief without an evidentiary
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STATE V. JACKSON
Cite as 32 Neb. App. 563
hearing was in error, because his trial counsel was ineffec-
tive for failing to adequately challenge the habitual criminal
allegation for the purposes of the ignition interlock charge.
Jackson argues that trial counsel’s motion to quash was not
the proper method by which to challenge the enhancement.
Jackson contends that he was prejudiced by his trial coun-
sel’s deficient performance, because he would have insisted
on going to trial and then entered a plea deal with the State,
which would have resulted in a reduced sentence. Jackson
also argues that his appellate counsel was ineffective in fail-
ing to assign this claim of ineffective assistance as error on
direct appeal.
[9] Jackson was represented by different counsel on appeal
than at trial. When a person seeking postconviction relief has
different counsel on appeal than at trial, the motion for post-
conviction relief is procedurally barred if the person seeking
relief (1) knew of the issues assigned in the postconviction
motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error
the failure of appellate counsel on direct appeal to raise the
issues assigned in the postconviction motion. State v. Parnell,
305 Neb. 932, 943 N.W.2d 678 (2020). Because Jackson has
presented a layered ineffective assistance of counsel claim, we
proceed to address the merits of his argument.
In its order denying Jackson’s postconviction motion without
an evidentiary hearing, the district court found that Jackson’s
allegation related to the enhancement on the ignition interlock
charge was conclusory. The district court stated that Jackson’s
contention regarding the possibility of a more favorable plea
offer by the State was “a conclusion of fact for which there
is no basis in the record.” The district court also noted that
Jackson had been found not guilty of the ignition interlock
charge. We agree.
Jackson is unable to make a showing of prejudice on this
claim. Jackson’s trial counsel did file a motion to quash in
an attempt to remove the habitual criminal enhancement prior
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STATE V. JACKSON
Cite as 32 Neb. App. 563
to trial, although that motion was denied by the district court.
However, as the district court noted, Jackson was never subject
to a habitual criminal enhancement, because he was found not
guilty of the ignition interlock offense alleged in count II, the
only charge to which the habitual criminal enhancement was
attached. Jackson does not specifically argue what his trial
counsel should have done differently or upon what grounds an
alternative course of trial strategy would have been successful.
He makes speculative assertions without any factual support
from the record that had the habitual criminal allegation been
removed by trial counsel prior to trial, the State would have
offered Jackson a favorable plea deal. See State v. Galindo,
315 Neb. 1, 994 N.W.2d 562 (2023).
[10] Because we find that Jackson’s trial counsel was not
ineffective in this regard and that Jackson cannot show preju-
dice, his appellate counsel was not ineffective in failing to
raise the claim on direct appeal. 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 appel-
late court will look at whether trial counsel was ineffec-
tive under the two-part test for ineffectiveness established 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. State v. Parnell, supra.
Next, Jackson asserts that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his trial counsel was ineffective in
failing to object to judicial misconduct. Jackson points to the
district court’s directing the State to present its evidence for
enhancement related to the driving under the influence of
alcohol charge at sentencing. Jackson alleges that the district
court committed plain error by engaging in ex parte actions
and thus violating the Nebraska Revised Code of Judicial
Conduct. Jackson also argues that his appellate counsel was
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Cite as 32 Neb. App. 563
ineffective in failing to assign this claim of ineffective assist
ance as error on direct appeal. Had his appellate counsel
assigned this claim, Jackson contends, then his direct appeal
would have favored him.
In its order, the district court found that Jackson’s allega-
tions regarding perceived irregularities at the sentencing hear-
ing did not constitute a violation of Jackson’s constitutional
rights or show that Jackson was entitled to relief.
[11] Generally, an appellate court will find plain error only
when a miscarriage of justice would otherwise occur. State
v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021). A review
of the record reveals that the district court did not direct the
State to present its enhancement evidence. Rather, the district
court observed that enhancement had not yet occurred and
inquired as to whether the State wished to proceed with its
enhancement evidence. Although the Nebraska Revised Code
of Judicial Conduct prohibits judicial ex parte communica-
tions, the inquiry in this case occurred on the record during a
sentencing hearing where all parties were present. The record
affirmatively refutes that the district court engaged in ex parte
communications, and Jackson cites to no other authority for the
basis of the alleged judicial misconduct.
[12] We do not find that the district court’s actions amount
to plain error, and as such, Jackson’s trial counsel was not
ineffective in failing to object and his appellate counsel was
not ineffective in failing to raise the claim on direct appeal.
Defense counsel is not ineffective for failing to raise an argu-
ment that has no merit. State v. Devers, 313 Neb. 866, 986
N.W.2d 747 (2023).
Jackson also argues that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his appellate counsel was ineffec-
tive for failing to review the record and using an appellate
brief authored by Jackson’s trial counsel. Jackson asserts that
had his appellate counsel minimally investigated the facts
of the case, he would have discovered many errors. Jackson
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contends that these actions amount to deficient performance
“causing a detrimental disposition during direct appeal
against [him].”
Though the district court did not specifically address this
claim in its order, it did find that all claims raised by Jackson’s
motion for postconviction relief were “procedurally barred,
insufficiently pled, [or] affirmatively refuted by the record, or
[that Jackson] cannot establish prejudice.”
We agree that this claim is insufficiently pled. Jackson has
not specified what errors his appellate counsel should have
discovered or how using a brief allegedly prepared by his trial
counsel caused a detrimental disposition. Jackson does not
detail arguments he believes his appellate counsel could have
successfully set forth in a brief on appeal.
Because Jackson’s claims asserted in his motion for postcon-
viction relief are unable to establish that he suffered prejudice,
are affirmatively refuted by the record, or are insufficiently
pled, Jackson was not entitled to an evidentiary hearing. The
district court did not err in so finding. This assignment of
error fails.
Constitutional Claim.
Finally, Jackson assigns that the district court erred in
failing to find the Nebraska Postconviction Act unconstitu-
tional as it applied to Jackson as a pro se litigant. Jackson
first raised his constitutional claim regarding the Nebraska
Postconviction Act in his renewed motion to amend and for
declaratory relief. The district court did not address this claim
in its order denying the evidentiary hearing. As we discussed
above, a defendant’s verified motion for postconviction relief
is the operative filing before the district court in considering
whether to grant an evidentiary hearing. See State v. Jaeger,
311 Neb. 69, 970 N.W.2d 751 (2022). Additionally, Jackson
was not given leave by the district court to amend his origi-
nal motion for postconviction relief, which implicit ruling we
have found did not constitute an abuse of discretion. Thus,
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the district court did not err in failing to address Jackson’s
constitutional claim.
[13] Furthermore, the appellate court will not consider
allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction
relief or passed upon by the postconviction court. See id. This
assignment of error fails.
CONCLUSION
The district court did not err in denying Jackson’s motion
for postconviction relief without an evidentiary hearing.
Affirmed.