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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
State of Nebraska, appellee, v.
Lucio P. Munoz, appellant.
___ N.W.2d ___
Filed May 21, 2021. No. S-20-590.
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: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
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, consti-
tute an infringement of the defendant’s rights under the Nebraska or
federal Constitution.
4. Effectiveness of Counsel: Proof. In order to establish a right to post-
conviction relief based on a claim of ineffective assistance of coun-
sel, 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 and that counsel’s defi-
cient performance prejudiced the defense in his or her case.
5. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
the ineffective assistance of counsel test—deficient performance and
prejudice—may be addressed in either order, and the entire ineffective-
ness analysis is viewed with a strong presumption that counsel’s actions
were reasonable.
6. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
7. 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.
8. Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. A motion for postconviction relief asserting ineffective assist
ance of trial counsel is procedurally barred where a defendant was
represented by a different attorney on direct appeal than at trial and the
alleged deficiencies in trial counsel’s performance were known or appar-
ent from the record.
9. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
10. Postconviction: Effectiveness of Counsel. To warrant an evidentiary
hearing based on counsel’s failure to make an alibi defense, the defend
ant must allege something more than the broad factual conclusion that
there was some unspecified evidence that would have shown the defend
ant was not in the vicinity at the time of the crime.
11. 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.
12. ____. 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.
13. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
14. Rules of Evidence: Hearsay. Hearsay is not admissible unless other-
wise provided for in the Nebraska Evidence Rules or elsewhere.
15. Effectiveness of Counsel. As a matter of law, counsel is not ineffective
for not attempting to adduce inadmissible testimony.
16. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
17. Postconviction: Appeal and Error. In an appeal from the denial of
postconviction relief, an appellate court will not consider for the first
time on appeal claims that were not raised in the verified motion.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
Lucio P. Munoz, pro se.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant appeals from the denial of postconviction
relief without an evidentiary hearing. The defendant had pre-
sented four layered claims of ineffective assistance of counsel
concerning the failure to investigate witnesses, make an alibi
defense, present expert witness testimony, or move in limine to
exclude statements. The district court found that the allegations
presented no more than conclusions of fact and law that lacked
the necessary specificity to warrant an evidentiary hearing.
II. BACKGROUND
Following a jury trial, Lucio P. Munoz was found guilty of
first degree murder and use of a deadly weapon to commit a
felony in relation to the death of his girlfriend. He was sen-
tenced to life for the murder conviction and a consecutive 20 to
40 years’ imprisonment for the weapon conviction.
On direct appeal, we affirmed the convictions and sen
tences. 1 Munoz was represented by new counsel. Munoz sub-
sequently filed a pro se motion for postconviction relief,
which the district court denied without an evidentiary hearing.
Munoz appeals.
1. Trial
The facts pertaining to the trial are fully set forth in our
opinion in State v. Munoz. 2 We reiterate those facts that are
most relevant to the postconviction motion.
1
See State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).
2
Id.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
The State presented evidence that at approximately 10 p.m.
on December 30, 2016, Munoz reported to a neighbor in his
apartment complex that his girlfriend had been raped. The
police were called, and two officers arrived at approximately
11 p.m. The girlfriend, who was intoxicated and had been
sleeping in Munoz’ bedroom, did not know why the police had
been called and refused to make a report.
At approximately 2 a.m. on December 31, 2016, Munoz
called his son, stating he had done something bad and wanted
to kill himself. The police were called and arrived around
3 a.m. at Munoz’ apartment to check on him. Munoz said
his girlfriend had gone home. The bedroom door was closed,
and officers did not venture beyond it. Munoz went with the
officers to a hospital after he locked his apartment door with
a deadbolt.
Munoz left the hospital around 8 a.m. and went directly to
his son’s house. At some point, arrangements had been made
for Munoz to visit his brother in Illinois. A friend drove him
there that same day. Munoz did not stop at his apartment to
retrieve any belongings.
A neighbor alerted the property manager on January 3, 2017,
that she had not seen Munoz or the victim since December 30.
The property manager used a master key to unlock the deadbolt
and found the deceased victim on the bed in the bedroom.
An autopsy revealed the victim had suffered 37 stab wounds.
She appeared to be wearing the same clothing that the officers’
body cameras recorded her wearing on December 31, 2016.
A sexual assault kit showed no DNA other than the victim’s.
The State’s blood spatter expert described bloodstain patterns
found at the scene, which indicated the brutal nature of the
crime and that “[s]omebody with blood on them” had walked
to the bathroom and washed it off. No forensic evidence was
found that positively linked Munoz to the crime.
Munoz has a brother in Texas who began searching for
Munoz due to a concern that “something had happened . . .
where he live[s].” When the brother was able to reach Munoz,
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
Munoz asked him to forgive him and said he was going to die
in prison.
After Munoz was located in another state, law enforcement
was dispatched to transport him back to Nebraska. During the
course of their travel, Munoz made several unsolicited com-
ments to law enforcement, including that he was “going to get
the death penalty.”
2. Motion for Postconviction Relief
In his motion for postconviction relief, Munoz alleged that
trial counsel was ineffective for failing to object to jury instruc-
tions and for failing to challenge jurors for cause. The district
held that both of these allegations were procedurally barred for
failing to raise such issues on direct appeal. In doing so, the
district court stated, “When a defendant’s trial counsel is dif-
ferent from his or her counsel on direct appeal, the defendant
must raise on direct appeal any issue of trial counsel’s ineffec-
tive performance which is known to the defendant or is appar-
ent from the record.”
Munoz also raised in his motion several layered claims
against appellate counsel.
(a) Alibi and Flight Witnesses
and Alibi Defense
First, Munoz alleged that trial counsel was deficient in fail-
ing to depose or interview potential witnesses Manuel Trevino
and Jolene Condon before trial. Munoz stated that Trevino and
Condon had knowledge of Munoz’ “whereabouts.” In a sepa-
rate section presumably referring to these witnesses but never
mentioning any witness by name, Munoz also broadly alleged
that trial counsel was ineffective for failing to make an “alibi-
defense” based on “proof that he was nowhere in the v[i]cin-
ity or area” when the victim was murdered. Munoz generally
asserted that appellate counsel rendered ineffective assistance
in relation to these claims.
Munoz claimed Condon’s testimony “would have pre-
sented an rebuttable presumption to the [S]tate’s theory of how
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
[Munoz] allegedly murdered the victim” and “would have con-
tradicted the [S]tate’s evidence underlining proof of [Munoz’]
alibi during the time of the victim’s murder.” He did not
describe Condon’s potential testimony in any further detail.
Munoz asserted Trevino had engaged in conversation with
Munoz’ son “instrumental to [Munoz’] desire to travel out
of town during the time the alleged crime supposedly took
place,” which would have been “pivotal” “inasmuch that
Trevino possess knowledge of the events unfolding that lead
to [Munoz’] desire to travel, devoid of covering up, or having
a scapegoat.”
The district court denied Munoz’ claims relating to Trevino
and Condon on the grounds that Munoz had failed to assert
“any specific allegations as to what testimony witnesses would
have given” or “any exculpatory evidence that has been uncov-
ered by the testimony.” As to the separate alibi-defense claim,
the court found there were “no facts asserted showing who
would be called as an alibi, what the alibi would testify and
thus no showing of any exculpatory evidence.”
(b) Failure to Suppress Statements
Second, Munoz asserted that trial counsel was ineffective by
failing to suppress his “statements.” He generally asserted that
appellate counsel rendered ineffective assistance in relation to
this claim. Munoz did not elaborate in the motion as to what
statements he was referring to or the reason why his statements
were allegedly inadmissible. In denying the claim without an
evidentiary hearing, the district court observed, “There are no
facts asserted showing any statements of Munoz which would
be suppressed and further no showing of any exculpatory evi-
dence. This claim is not specifically argued in the pleading
but stated.”
(c) Failure to Call Expert Witness
on Blood Spatters
Third, Munoz asserted that trial counsel was ineffective “by
failing to call or interview an ‘Expert Witness’ to refute the
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
[S]tate’s theory alleging the ‘blood spattered’ evidence was
culpable proof of [Munoz’] guilt.” He generally asserted that
appellate counsel rendered ineffective assistance in relation to
this claim.
This expert allegedly “would have been able to determine
with professional certainty the time, day, and detailed involve-
ment of the crime, particularly, the evidence DNA and other
intricacies involving the murder of the victim.” No other
details were set forth in the motion for postconviction relief.
The district court concluded that Munoz had failed to assert
“any specific allegations as to what testimony witnesses would
have given” or “any exculpatory evidence that has been uncov-
ered by the . . . expert findings.”
(d) Motion in Limine
Fourth, Munoz alleged the ineffective assistance of appellate
counsel for not preserving “the challenge of [Munoz’] motion
in limine filed in the lower district court, thereby assign-
ing such as error in [Munoz’] brief of appellant, for review.”
There was no description of the evidence subject to the motion
in limine, why it was inadmissible, and how it prejudiced
him. The district court found that the allegation did not war-
rant an evidentiary hearing because the postconviction motion
alleged no specific statement or evidence that should have been
included in the motion in limine.
III. ASSIGNMENTS OF ERROR
In his appeal from the denial of his motion for postconvic-
tion relief, Munoz assigns as error that (1) trial and appellate
counsel rendered ineffective assistance of counsel; (2) Munoz
received “ineffective assistance via direct appeal review, in
violation of the 5th, 6th and 14th Amendment to the United
States Constitution, and Article I, §§ 3, 13 and 23 of the
Nebraska Constitution”; and (3) trial counsel was ineffective
by failing to object to the trial court’s failure to properly pre-
pare jury instructions in violation of “his 5th, 6th[,] 11 and 13
of Nebraska Constitution.”
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
IV. STANDARD OF REVIEW
[1] 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. 3
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling. 4
V. ANALYSIS
[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 Nebraska or federal
Constitution. 5
[4-6] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
defendant has the burden, in accordance with Strickland v.
Washington, 6 to show that counsel’s performance was deficient
and that counsel’s deficient performance prejudiced the defense
in his or her case. 7 The two prongs of this test—deficient per-
formance and prejudice—may be addressed in either order,
and the entire ineffectiveness analysis is viewed with a strong
presumption that counsel’s actions were reasonable. 8 To show
that counsel’s performance was deficient, a defendant must
3
State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
4
Id.
5
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
7
State v. Stelly, supra note 3.
8
Id.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. 9
[7] 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 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. 10
1. Assertions Against Trial Counsel and
Separate Alibi-Defense Claim
In his appellate brief, Munoz makes several assertions
against trial counsel that he argues the district court should
have granted an evidentiary hearing on, but which Munoz fails
to tie to any argument of ineffective assistance of appellate
counsel. In this regard, Munoz asserts that he told trial counsel
about his alibi that “he was nowhere in the v[i]cinity or area
when [the victim] was murdered,” yet trial counsel “prejudi-
cially failed to give notice to the [S]tate prosecution and the
court, pursuant to [Neb. Rev. Stat. §] 29-1927, as required.”
(Emphasis omitted.) Munoz also argues that trial counsel was
ineffective by failing to object to jury instructions. With the
exception of the alibi defense, these allegations were stated
in the motion for postconviction relief directly against trial
counsel only and were not presented as a layered claim against
appellate counsel for failing to assert the ineffectiveness of
trial counsel.
[8,9] A motion for postconviction relief asserting ineffec-
tive assistance of trial counsel is procedurally barred where
a defendant was represented by a different attorney on direct
9
Id.
10
See, State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020); State v. Allen,
301 Neb. 560, 919 N.W.2d 500 (2018).
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309 Nebraska Reports
STATE v. MUNOZ
Cite as 309 Neb. 285
appeal than at trial and the alleged deficiencies in trial coun-
sel’s performance were known or apparent from the record. 11
Further, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error
to be considered by an appellate court. 12
[10] We agree with the district court that the claims made
directly against trial counsel only are procedurally barred. To
the extent the claim regarding an alibi defense was a separate
claim from the allegations regarding the potential testimony of
Trevino and Condon, it was not argued on appeal as a layered
claim and we therefore need not consider whether the court
erred in denying such a claim. However, we also find that
the broad allegation in the motion for postconviction relief
that trial counsel was ineffective for failing to make an alibi
defense constituted mere conclusions of fact and law without
supporting facts, which did not warrant an evidentiary hearing.
To warrant an evidentiary hearing based on counsel’s failure
to make an alibi defense, the defendant must allege something
more than the broad factual conclusion that there was some
unspecified evidence that would have shown the defendant was
not in the vicinity at the time of the crime. 13
2. Layered Claims
Munoz makes four general arguments of appellate counsel’s
ineffectiveness by failing to raise on direct appeal claims of
ineffective assistance of trial counsel. These generally corre-
spond to the four stated claims in his motion for postconvic-
tion relief.
(a) Alibi and Flight Witnesses
We hold that Munoz’ claims regarding the failure to depose
or interview potential witnesses Trevino and Condon before
11
State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
12
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
13
See State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
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STATE v. MUNOZ
Cite as 309 Neb. 285
trial failed to allege more than conclusions of fact and law
and, to the extent the motion presented more specific facts,
those facts, if proved, would not constitute an infringement
of Munoz’ constitutional rights rendering the judgment void
or voidable. Thus, the district court did not err in denying the
claims without an evidentiary hearing.
[11,12] 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. 14 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. 15
Munoz’ allegations as to Condon’s testimony consist entirely
of legal conclusions and conclusions of fact without support-
ing facts. Munoz alleged Condon’s testimony “would have
presented an rebuttable presumption to the [S]tate’s theory
of how [Munoz] allegedly murdered the victim” and “would
have contradicted the [S]tate’s evidence underlining proof of
[Munoz’] alibi during the time of the victim’s murder.” This
fails to satisfy the requirement that the motion include specific
allegations regarding the testimony that the witness would have
given if called.
Munoz’ allegations regarding Trevino’s potential testimony
are somewhat more specific. In essence, Munoz alleged that
Trevino could have testified that in a conversation with Munoz’
son, Munoz’ son reported to Trevino that Munoz had a “desire
to travel out of town during the time the alleged crime sup-
posedly took place.” This was alleged to be relevant exculpa-
tory evidence because it pertained to Munoz’ “whereabouts
14
State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018), disapproved
on other grounds, State v. Allen, supra note 10. See, also, e.g., State v.
Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
15
State v. Foster, supra note 14.
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STATE v. MUNOZ
Cite as 309 Neb. 285
during the time the victim was found.” It was further alleged
that Trevino’s testimony was relevant to “the events unfolding
that lead to [Munoz’] desire to travel, devoid of covering up,
or having a scapegoat.” From Munoz’ arguments on appeal, it
appears that the reference to Munoz’ “desire to travel, devoid
of covering up” was an assertion that Trevino’s testimony
would have been relevant to diminish the inference of guilt
surrounding his flight to Illinois.
The alleged testimony as to Munoz’ “whereabouts” was
insufficiently specific to warrant an evidentiary hearing. And,
regardless, Munoz’ “whereabouts” when the victim was found
would not have been exculpatory under the facts of this
case, which indicated the victim had been murdered several
days before.
Because Munoz failed to allege when the conversation about
traveling to Illinois took place—specifically, whether it took
place before the murder—the facts alleged are insufficient to
demonstrate that, if true, Munoz’ convictions were the prod-
uct of ineffective assistance of counsel. A conversation taking
place after the murder, in which Munoz indicated a “desire to
travel,” would only strengthen the inference of flight.
[13-15] Moreover, Trevino’s potential testimony about such
a conversation with Munoz’ son would have been inadmissible
hearsay. 16 Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. 17 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 18 Trevino’s testimony about what
Munoz’ son had said would have been to prove the truth of
16
See State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
17
State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015). See, also, Neb. Rev.
Stat. § 27-801(3) (Reissue 2016).
18
State v. Poe, supra note 17. See, also, Neb. Rev. Stat. § 27-802 (Reissue
2016).
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STATE v. MUNOZ
Cite as 309 Neb. 285
the matter that Munoz intended to go out of town. As a matter
of law, counsel is not ineffective for not attempting to adduce
inadmissible testimony. 19
(b) Expert Witness on Mental Stability
Munoz argues on appeal that the district court erred in
dismissing a layered claim concerning trial counsel’s alleged
ineffectiveness in failing to call an expert witness to testify
as to Munoz’ mental stability during the time of the victim’s
death. He does not expand upon this assertion, and thus, it was
insufficient because it failed to specifically allege what the
testimony of potential expert witnesses would have been if the
witness had been called at trial.
[16,17] Furthermore, this claim does not appear in Munoz’
motion for postconviction relief. Appellate courts do not gener-
ally consider arguments and theories raised for the first time on
appeal. 20 In an appeal from the denial of postconviction relief,
we will not consider for the first time on appeal claims that
were not raised in the verified motion. 21
(c) Expert Witness on Blood Spatters
We also agree with the district court that Munoz failed to
allege more than mere conclusions of fact or law without sup-
porting facts in relation to his layered claim that trial counsel
was ineffective “by failing to call or interview an ‘Expert
Witness’ to refute the [S]tate’s theory alleging the ‘blood spat-
tered’ evidence was culpable proof of [Munoz’] guilt.” Munoz
did not indicate whose “evidence DNA” he was referring to,
how the exact time of the murder could be established by such
an expert, what the professional certainty of the time of the
19
See State v. Allen, supra note 10.
20
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
21
See, State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved
on other grounds, State v. Allen, supra note 10; State v. Harris, 294 Neb.
766, 884 N.W.2d 710 (2016).
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STATE v. MUNOZ
Cite as 309 Neb. 285
crime would be, or how it might have changed the result of
the trial.
(d) Motion in Limine
Lastly, Munoz argues on appeal that the district court erred
in dismissing his claim that appellate counsel was ineffective
“by failing to assert as error trial counsel’s failure to file a
Motion in Limine as asserted in ground two of his Motion for
Postconviction Relief.” 22 He generally asserts prejudice as a
result, but does not describe the evidence he believes should
have been the subject of the motion in limine, why it should
have been excluded, and how the result at trial would have
been different but for its admission.
It does not appear that this allegation was raised in the
postconviction motion. In his motion for postconviction relief,
Munoz described the ineffective assistance of appellate counsel
as not preserving “the challenge of [Munoz’] motion in limine
filed in the lower district court, thereby assigning such as error
in [Munoz’] brief of appellant, for review.” The failure to file
a motion in limine is a different assertion than the failure to
appeal the denial of a motion in limine made at trial.
In any event, the allegation in the motion for postconvic-
tion did not contain any description of the evidence subject
to the motion in limine, why the evidence was inadmissible,
and how it prejudiced him. We agree with the district court
that the allegations did not warrant an evidentiary hear-
ing, because the postconviction motion alleged no specific
statement or evidence that should have been included in the
motion in limine.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the dis-
trict court dismissing, without an evidentiary hearing, Munoz’
motion for postconviction relief.
Affirmed.
22
Brief for appellant at 8.