State v. Goynes

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GOYNES
Cite as 318 Neb. 413
State of Nebraska, appellee, v.
Michael E. Goynes, Jr., appellant.
___ N.W.3d ___
Filed February 7, 2025. 	No. S-24-289.
1. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
a preliminary determination as to whether an evidentiary hearing is
justified.
2. ____: ____. A postconviction motion that lacks the specific factual alle-
gations necessary to support the claims made is no more than a fishing
expedition for evidence that might aid in obtaining postconviction relief
and is therefore insufficient to warrant an evidentiary hearing.
3. Postconviction. An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or law without
supporting facts.
4. 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—unless the records and files affirmatively show that the
defendant is entitled to no relief.
5. ____: ____: ____. An evidentiary hearing is required on a motion for
postconviction relief unless: (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.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:13 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GOYNES
Cite as 318 Neb. 413
7. 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.
8. ____: ____. To show that counsel’s performance was deficient, a defend-
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
9. Effectiveness of Counsel: Presumptions. Courts give counsel’s acts a
strong presumption of reasonableness.
10. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
11. Proof: Words and Phrases. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
12. Trial: Effectiveness of Counsel: Appeal and Error. When considering
the prejudice prong of ineffective assistance of counsel, appellate courts
focus on whether a trial counsel’s deficient performance renders the
result of the trial unreliable or fundamentally unfair.
13. Appeal and Error. Except for instances of plain error, only those issues
both raised or passed upon below and specifically assigned and specifi-
cally argued on appeal will be considered by the appellate court.
14. Trial: Effectiveness of Counsel: Appeal and Error. Counsel’s failure
to preserve at trial an issue for direct appeal can be ineffective assist-
ance of counsel only if there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal. The failure to
preserve an issue for appellate review is not, standing alone, ineffective
assistance of counsel.
15. Appeal and Error. Under the law-of-the-case doctrine, an appellate
court’s holdings on issues presented to it conclusively settle all matters
ruled upon, either expressly or by necessary implication.
16. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure a further review of issues already litigated on
direct appeal.
17. Evidence: Appeal and Error. Evidence objected to which is substan-
tially similar to evidence admitted without objection results in no preju-
dicial error.
18. 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.

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STATE v. GOYNES
Cite as 318 Neb. 413
19. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
20. Effectiveness of Counsel. Decisions about whether to engage in cross-
examination, and, if so, to what extent and in what manner, are strategic
in nature and generally will not support an ineffective assistance claim.
21. Constitutional Law: Effectiveness of Counsel. The simple assertion
that defense counsel could have performed better is not grounds to con-
clude defense counsel was constitutionally deficient.
22. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by an appellate court.
Appeal from the District Court for Douglas County, Peter
C. Bataillon, Judge. Affirmed.
Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz,
Dahlquist & Klein, P.C., L.L.O., for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent, for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant appeals from the denial, without an eviden-
tiary hearing, of his motion for postconviction relief seeking
to set aside his convictions of murder in the first degree and
use and possession of a deadly weapon. The defendant alleged
in his motion that trial counsel was ineffective for failing to
object to printouts of data extracted from his cell phone, pur-
suant to a warrant that we held on direct appeal satisfied the
requirements of the Fourth Amendment and article I, § 7, of
the Nebraska Constitution. 1 The defendant’s remaining allega-
tions concern the alleged ineffectiveness of trial counsel for
counsel’s failing to (1) call an additional witness to testify the
defendant was at a barbecue around the time of the crime, (2)
1 See State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).

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STATE v. GOYNES
Cite as 318 Neb. 413
better cross-examine the State’s eyewitness’ identification of
the defendant as the shooter, (3) more effectively challenge
the alleged shortcomings in law enforcement’s investigation of
other suspects, and (4) better emphasize the lack of evidence
linking the defendant to the murder weapon. We affirm.
II. BACKGROUND
Michael E. Goynes, Jr., was convicted of murder in the first
degree, use of a deadly weapon to commit a felony, and posses-
sion of a deadly weapon by a prohibited person. Goynes was
sentenced to life imprisonment for murder in the first degree,
45 to 50 years’ imprisonment for use of a deadly weapon to
commit a felony, and 20 to 25 years’ imprisonment for posses-
sion of a deadly weapon by a prohibited person.
1. Trial
Goynes’ convictions 	stem 	from 	the 	shooting 	death 	of
Barbara Williams on April 25, 2016, in front of an apartment
complex in Omaha, Nebraska. The shooter, a Black male,
arrived in a white four-door sedan, exited the sedan, and began
shooting as he approached where Williams was sitting on the
front stoop of the complex. She was sitting with two people
known as Action and Stay Ready, who were presumed to be
the intended targets.
In less than 30 seconds, the shooter fired at least 10 rounds
of ammunition in Williams’ direction, returned to the sedan,
and drove away. Security footage from the area showed that
the shooter arrived and exited the sedan at 4:23:20 p.m. He
returned to the sedan and fled the scene at 4:23:42 p.m. The
sedan was seen exiting the area at 4:23:50 p.m. The sedan
was never identified, and its owner was never found. No evi-
dence was presented tying Goynes to the weapon used in the
shooting, which was not recovered until some months after
the shooting.
Goynes’ principal defense was an alibi that he was at a
barbecue with friends at the time of the shooting. Several pho-
tographs from the barbecue were entered into evidence. The

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STATE v. GOYNES
Cite as 318 Neb. 413
first photograph showing Goynes at the barbecue was time-
stamped at approximately 4:29 p.m. It was not disputed that
Goynes was at the barbecue at that time. The State’s theory
was that Goynes did not arrive at the barbecue until 4:29 p.m.
and that he had time to get there from the time of the shooting.
The State presented evidence that the barbecue was 2.8 miles
from the scene of the shooting and that it took only approxi-
mately 4½ minutes to drive from the scene of the shooting to
the barbecue, assuming the driver obeyed all traffic laws.
There were conflicting eyewitness accounts of the identity
of the shooter. Two eyewitnesses knew Goynes and testified
he was the shooter. When the shooting occurred, Goynes
was a young man of average size with lighter brown skin, a
beard, and short hair without braids or dreadlocks. An eye-
witness who did not know Goynes identified the shooter as
being young and average size, with a beard, short hair, and
lighter brown skin. However, at least one eyewitness said a
short, young, and thin male with a very dark complexion and
dreadlocks was the shooter. There were several reports to law
enforcement at the scene that a man with dreadlocks had been
in a fight at the complex the night before the shooting.
(a) Eyewitnesses George Taylor
and Saville Hawthorne
George Taylor and Saville Hawthorne both testified for the
State at trial. They testified that they witnessed the shooting
and could identify Goynes, also known as Gang Bang, as the
shooter. Taylor and Hawthorne lived together in an apartment
building facing the building where Williams was shot. When
Williams was killed, they were sitting in the front seat of their
vehicle, facing the stoop where Williams was sitting.
Goynes is Hawthorne’s cousin, and she knew him from
family gatherings. Defense counsel adduced, however, that
Hawthorne had not seen Goynes in the 2 years prior to the
shooting. Taylor testified he had seen Goynes twice in the 2
weeks before the shooting, driving by the complex. Before
that, he had seen Goynes’ picture on the news with Goynes’

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STATE v. GOYNES
Cite as 318 Neb. 413
name underneath the picture. He had never met Goynes in
person. Hawthorne testified that when she learned Goynes had
been driving through the neighborhood, she called Goynes’
mother and warned her that Goynes should “stop coming
through the neighborhood like that [be]cause people are either
looking for him or they weren’t getting along,” and she did
not want Goynes to get in trouble.
Both Taylor and Hawthorne testified that Goynes looked
directly at them at some point during the shooting. Taylor tes-
tified that he recognized Goynes when he “locked eyes” with
him during the shooting. Taylor immediately exited the vehicle
and took cover behind a building. Hawthorne testified that as
Goynes was walking back to the sedan following the shooting,
he looked in their direction to where “people was ducking and
trying to get away,” and he “looked dead at me.” That was
when she recognized that Goynes was the shooter.
Both Taylor and Hawthorne admitted they did not identify
Goynes to law enforcement when questioned at the scene.
Taylor testified that although he did not identify Goynes as
the shooter, he had indicated to law enforcement at the scene
that he “might know something but right now wasn’t the time
to talk about it in front of everybody.” About 30 people were
present by that time, and none of them were being coopera-
tive with law enforcement. Taylor testified he was concerned
for himself if he was seen talking to law enforcement and
for Hawthorne if it was revealed in front of the witnesses
that she was the shooter’s cousin. Taylor explained that law
enforcement was called to the area several times a day and
that people in the neighborhood believed one should “[n]ever
cooperate with the law.” It was not until 4 days later that
Taylor reached out to law enforcement and reported what he
had witnessed.
Hawthorne similarly explained that when questioned by
law enforcement at the scene, she did not tell them who the
shooter was. She said, “[T]here was so many people out, that’s
just something you don’t do around people.” She was afraid

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STATE v. GOYNES
Cite as 318 Neb. 413
of retaliation. Four days later, she reached out to law enforce-
ment to report to them that Goynes was the shooter.
During cross-examination of Taylor, Taylor repeated prior
testimony that he has a prescription for glasses to correct
nearsightedness and had consumed two beers while sitting in
his vehicle. Defense counsel also adduced testimony reiterat-
ing that Taylor had never met Goynes, talked to Goynes in
person, or been at the same social event as Goynes.
Defense counsel confronted Taylor with his statement to law
enforcement during Taylor’s interview 4 days after the shoot-
ing that Taylor could not be sure if Goynes had any facial hair,
because he “didn’t see [Goynes’] face like that.” This was
later confirmed during defense counsel’s cross-examination of
the detective who interviewed Taylor. The detective elaborated
that Taylor said he “wasn’t up on [Goynes] like that,” referring
to the fact that he was not that close to Goynes.
During cross-examination of Hawthorne, defense counsel
confronted her with her initial statements to law enforcement
on the scene that the shooter was an “unknown [B]lack male”
with “braids down to his shoulders.” Hawthorne testified she
did not remember making that statement. Defense counsel then
attempted to adduce testimony that Hawthorne knew there
had been a fight at the complex the night before the shooting
between “Action” and someone with dreadlocks and asked
Hawthorne if she had made such a statement during a depo-
sition. Hawthorne stated she did not remember telling law
enforcement of a fight involving someone with dreadlocks but
stated that “[t]here was always fights” at the complex.
Both during the case in chief and during the defense,
defense counsel adduced evidence that in her interview with
law enforcement, Hawthorne was shown a photograph of “Stay
Ready” and had mistakenly identified the person in the photo-
graph as Goynes when he was younger.
Defense counsel later called as witnesses two law enforce-
ment officers who interviewed Hawthorne at the scene. One
officer testified that Hawthorne provided a description of the

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STATE v. GOYNES
Cite as 318 Neb. 413
shooter as a Black male with shoulder-length dreadlocks. He
explained that the police report said “braids” and that he con-
sidered braids and dreadlocks to be the same thing. The other
officer said that Hawthorne gave a description of the shooter as
an unknown Black male and described his clothing.
During opening statements, defense counsel emphasized that
neither Taylor nor Hawthorne told law enforcement on the day
of the shooting that the shooter was Goynes. In fact, explained
defense counsel, Hawthorne talked to law enforcement on the
day of the shooting and described the shooter as having braids,
which Goynes did not have at the time of the shooting. During
closing, defense counsel emphasized that Taylor was not very
familiar with Goynes, was not wearing his glasses when the
shooting occurred, and was hiding during a good portion of
the shooting.
Defense counsel emphasized during closing arguments that
Hawthorne appeared to have “extremely poor memory and
recollection,” explaining that during questioning, she said,
“‘I don’t know’” or “‘I don’t remember’” “too many times
to count.” Defense counsel emphasized Hawthorne’s original
description to law enforcement of the shooter’s having long
braids and her misidentification of the photograph of “Stay
Ready” as Goynes.
(b) Someone With Braids or Dreadlocks
Law 	enforcement 	witnesses 	testified 	at 	trial 	that 	they
learned from interviewing residents of the complex on the
day of the shooting that there had been a physical altercation
at the complex the night before. That altercation involved an
individual whose dreadlocks were pulled from his head during
the fight.
Defense counsel adduced evidence that, after the shoot-
ing, two different sections of dreadlocks were discovered by
law enforcement at the complex. One was found in a laundry
room, and the other was found in a courtyard. Defense counsel
adduced testimony that law enforcement had marked and pho-
tographed the dreadlocks for evidence.

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Nebraska Supreme Court Advance Sheets
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STATE v. GOYNES
Cite as 318 Neb. 413
During cross-examination, Det. Larry Cahill testified that at
the scene of the shooting, five people gave law enforcement
their names, as well as a description of the shooter. Defense
counsel also adduced that there were at least six other wit-
nesses to the shooting who gave their names to law enforce-
ment at the scene. Cahill admitted that law enforcement did not
endeavor to ask any of the witnesses to look at a photographic
lineup of suspects.
Following the State’s case in chief, the defense called
Andrea Brooks, one of the eyewitnesses to the shooting. She
testified that she saw the shooter as he was walking back to
the sedan after the shooting. The shooting began while she
was in the shower inside her apartment, and she went to the
window to see what was happening. She described the shooter
as “extremely dark skinn[ed]” with short dreadlocks, and
“small of stature.” She testified that she gave this description
to law enforcement at the scene.
When Brooks found out that Goynes had been arrested, she
contacted law enforcement. She testified, “I’m like, I don’t
think they have the right man because how could they know
this man shot, this — this man, when they never called any
of the witnesses out to identify him. So I’m like, how could
they know this was the right man?” She elaborated, “[M]e
and — me and a few people were like, well, how did they find
him when we didn’t even come out and do a witness lineup
or anything.”
After Goynes’ arrest, Brooks was brought in to look at one
photograph of a suspect whom she did not recognize. When
defense counsel pointed out Goynes, present at trial, Brooks
affirmed she did not see Goynes the day of the shooting
and did not know him at all. Brooks testified that it seemed
law enforcement “just randomly pick[ed] somebody” because
“it’s a [B]lack on [B]lack crime,” so “[t]hey want to solve
it, shut it down, instead of picking the right person that did
the murder.”

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STATE v. GOYNES
Cite as 318 Neb. 413
On redirect, the State called the law enforcement officers
who had contact with Brooks at the scene. One officer testi-
fied that Brooks said she had not seen the shooter. The other
officer testified that Brooks described the shooter as a “dark-
skinned [B]lack male” but that she did not describe braids
or dreadlocks.
In opening statements, defense counsel told the jury that
one of the tenants of the complex would testify that she saw
the shooter returning to the sedan and that he had dreadlocks,
which Goynes did not have at the time of the shooting. In
closing arguments, defense counsel suggested that the investi-
gation was biased against Goynes.
(c) Cell Phone
Over Goynes’ objection, the trial court admitted into evi-
dence Goynes’ cell phone and a compact disc containing data
extracted from the cell phone, pursuant to a search warrant.
Without objection at trial, the court also admitted into evidence
printed copies of select datasets of the information contained
on the cell phone and compact disc.
Before trial, the court had overruled Goynes’ motion to
suppress all evidence obtained from the search of his cell
phone records, which Goynes argued in his motion that such
search was conducted in violation of the 4th, 5th, and 14th
Amendments to the U.S. Constitution and article I, §§ 3, 7, 11,
and 12, of the Nebraska Constitution. The trial court found that
the search warrant for the content of Goynes’ cell phone was
supported by probable cause and was sufficiently particular
concerning the data to be searched. The court found that the
officers exercised good faith in performing the search.
According to the cell phone exhibits, there was a pause
in internet usage on Goynes’ cell phone between 3:38 p.m.
and 4:19 p.m. on the day of the shooting. Then, at 5:10 p.m.,
Goynes visited the website of a local television news sta-
tion and viewed an article about the shooting. At 9:15 p.m.,
Goynes again viewed an article about the shooting. Five
days later, the day Goynes turned himself in, he searched his

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STATE v. GOYNES
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name on various websites and accessed an article related to
the shooting.
(d) Murder Weapon
There was testimony that a single handgun was used to fire
approximately 10 rounds of ammunition at the scene of the
crime. The weapon used in the shooting was not located until
several months later. It was in the possession of Andrell Harris.
Harris testified at trial that he purchased the gun during a dice
game at his cousin’s house at the end of April 2016 toward the
beginning of May.
Harris could not identify whom he had purchased the gun
from. There was no evidence of fingerprints or DNA linking
the gun to Goynes. There were no eyewitness accounts linking
the gun to Goynes, other than those who identified Goynes as
the shooter who killed Williams.
During cross-examination, the State’s witnesses testified
they had reason to believe the gun was involved in four sepa-
rate shootings in the recent past. At least one of those shoot-
ings occurred after Goynes was in custody. There was no
indication Goynes was involved in any of the other shootings
except for the one that killed Williams.
In opening statements, defense counsel noted that “the
smoking gun [was] found in the pocket of . . . Harris” several
months after the crime. Further, defense counsel argued that law
enforcement was unable to connect the gun to Goynes, point-
ing out there would be no evidence of Goynes’ fingerprints
or DNA on the gun. In closing, defense counsel described the
State’s failure to link the murder weapon to Goynes as a “glar-
ing hole[] in the State’s case.”
(e) Barbecue Alibi
Goynes’ girlfriend at the time of the shooting originally told
law enforcement that Goynes was with her at her apartment the
entire day of the shooting. She later said that Goynes was at
a barbecue. She testified at trial that she had misremembered.

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STATE v. GOYNES
Cite as 318 Neb. 413
She had told law enforcement that Goynes told her to lie
to be his alibi. During cross-examination, defense counsel
adduced that she did not make said admission until being ques-
tioned by law enforcement in a “cold room” for an extended
period of time.
The State entered into evidence photographs from the bar-
becue on the day of the shooting. The photographs were
extracted from the cell phone of Travell Richard, who was
established to have been at the barbecue but did not testify at
trial. The photographs began at 4:27:43 p.m. However, the first
photograph with Goynes in it is time-stamped 4:29:42 p.m.
Cahill testified that he drove between the location of the bar-
becue and the location of the shooting approximately 15 times
to gauge how long it would take to drive from one place to the
other, observing the speed limit and all the traffic signals. The
approximate time was 4 minutes 20 seconds. However, there
were a couple of times when it took Cahill approximately 7 to
9 minutes due to heavy traffic and the traffic light cycles. Other
times were shorter.
Cahill admitted during cross-examination that of all the
people shown in photographs to have been at the barbecue, law
enforcement only interviewed one person other than Goynes.
Another officer, who worked in the digital forensics squad,
admitted during cross-examination that he was unable to pin-
point, using information from cell phone towers, Goynes’ loca-
tion around the time of the shooting.
Defense 	counsel 	called 	several 	witnesses 	to 	attest 	that
Goynes was at the barbecue when the shooting occurred. There
was testimony from these witnesses that the barbecue was a
memorial and that Goynes stayed there until the group went
together to a cemetery.
Dominick Hill, a friend of Goynes’, testified that he rode
with Goynes to the barbecue. Hill testified that he did not
notice Goynes leave at any point and that he would have
noticed.

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STATE v. GOYNES
Cite as 318 Neb. 413
Larry Goynes, Goynes’ cousin, testified he arrived at the
barbecue between 3:30 and 4 p.m., he never saw Goynes
leave, and he would have noticed had Goynes left. Larry tes-
tified that he saw a silver vehicle that belonged to Goynes’
girlfriend parked near the barbecue and that Goynes regularly
drove that vehicle. During Larry’s testimony, defense counsel
asked him about someone in the courtroom with long dread-
locks who had been present during Hill’s testimony. Larry
explained that person was his brother, who was there to give
Hill a ride home.
Da’Shawn Goynes, Goynes’ brother, testified he rode with
Larry to the barbecue and Goynes was there when he arrived.
Da’Shawn testified that he knew Goynes did not leave the
barbecue because Goynes was sitting right across from him at
a table. Da’Shawn explained that Goynes rode with Larry and
him from the barbecue to the cemetery around 4:50 p.m. Larry
drove a maroon vehicle.
During opening statements, defense counsel emphasized
that a photograph taken at 4:29 p.m. proved Goynes was at
a “picnic” in a friend’s backyard 6 minutes, at most, after
the shooting. Defense counsel asked the jury, “[H]ow could
[Goynes] commit this crime . . . and in less than six minutes
later be sitting in the back yard at a picnic table, calmly sit-
ting at a table surrounded by other people?” During closing,
defense counsel asked why law enforcement did not question
the numerous, identifiable individuals in the photographs from
the barbecue to further investigate Goynes’ alibi.
2. Direct Appeal
Goynes was represented by his trial counsel on direct
appeal. His sole assignment of error on direct appeal was that
the district court erred in failing to suppress cell phone data
content acquired through the execution of a warrant that was
allegedly unsupported by probable cause and insufficiently
particular. In State v. Goynes, 2 we found no merit to this
2 Id.

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STATE v. GOYNES
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assignment of error, holding that the search warrant for the
cell phone data content was supported by probable cause and
met the particularity requirement of the Fourth Amendment
and article I, § 7, of the Nebraska Constitution. We therefore
concluded that the cell phone and the compact disc containing
the cell phone data were properly admitted into evidence at
trial over defense counsel’s objection. We did not address the
admissibility of the printouts representing a select dataset from
the compact disc because Goynes had failed to object to their
admission at trial, thereby failing to adequately preserve the
issue for appellate review.
3. Motion for Postconviction Relief
Within 1 year of our decision, Goynes filed a verified motion
for postconviction relief, alleging seven points of alleged inef-
fective assistance of trial counsel. Broadly, the allegations
related to the admission of the printouts of cell phone data, the
failure to call a witness who was at the barbecue, the failure to
sufficiently challenge evidence and testimony admitted against
him, and the failure to adequately challenge law enforcement’s
investigation of an unknown suspect with dreadlocks.
(a) Printouts of Cell Phone Data
First, Goynes asserted his trial counsel was ineffective for
failing to object at trial to the printouts of his cell phone data.
He described that, pursuant to a search warrant, law enforce-
ment recovered evidence from his cell phone showing that,
beginning within an hour of the shooting, he had searched
for articles about it. Goynes noted that the district court
had denied defense counsel’s motion to suppress information
derived from the search warrant, with the court finding that
the warrant was supported by probable cause and provided
sufficient particularity and thus was exercised in good faith.
Goynes alleged in his motion for postconviction relief that
but for failing to object to the printouts, “Goynes would have
received a different result in that the Nebraska Supreme Court
could have addressed the issue.”

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STATE v. GOYNES
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(b) Cross-Examination of
Hawthorne’s Identification
Second, Goynes alleged trial counsel was ineffective by
failing to “sufficiently challenge” Hawthorne and to impeach
the credibility of her identification of Goynes as the shooter
several days after the shooting. Such impeachment allegedly
should have been made based on Hawthorne’s initial state-
ment to law enforcement at the scene that she did not know
the shooter’s identity, as well as her description of the shoot-
er’s appearance that was inconsistent with Goynes’ appear-
ance at the time of the shooting. Furthermore, trial counsel
allegedly should have sufficiently challenged Hawthorne’s
“selective memory” when she testified at trial that she was
unable to recall her initial statements to law enforcement.
Finally, Goynes pointed out that Hawthorne had misidenti-
fied a photograph of “Stay Ready” as Goynes. According to
Goynes, had trial counsel been more effective in his cross-
examination of Hawthorne, “her credibility would have been
impeached and he would have been found not guilty by the
jury on all counts.”
(c) Cross-Examination of
Taylor’s Identification
Third, Goynes alleged trial counsel was ineffective by fail-
ing to “sufficiently challenge” the eyewitness testimony of
Taylor, which allegedly would have impeached his credi-
bility in identifying Goynes as the shooter. In this regard,
Goynes described that Taylor initially refused to speak with
law enforcement but later contacted law enforcement and said
Goynes was the shooter.
(d) Dreadlocks Investigation
Fourth, Goynes alleged trial counsel was ineffective by
failing to sufficiently challenge at trial the alleged lack of
an adequate law enforcement investigation of the dreadlocks
left at the scene of the murder during an altercation that
occurred the day before the shooting. Goynes elaborated those

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witnesses reported that the person involved in the fight had
threatened to be back.
Goynes pointed out that defense counsel had filed a notice
of intent to present hearsay statements to law enforcement
from witnesses Cominque Smith, Michelle Broadnax, Alvina
Marion, and Shawntina Wynn. According to the motion for
postconviction relief, Broadnax reported there had been a man
with dreadlocks who was involved in a fight the day before
the shooting and said he would be back. Marion allegedly
reported that there was a fight the day before the shooting
involving a Black male with long dreadlocks, and she gave
a description of the shooter that did not match Goynes’ size
at the time of the shooting. Smith allegedly reported that the
shooter was short, young, and thin. Goynes alleged that “the
police did not do a sufficient investigation in the dreadlocks,
and his counsel failed to adequately expose this shortcoming
during trial” and “had his counsel done so, he would have
been found not guilty at trial on all counts.”
(e) Murder Weapon
Fifth, Goynes alleged trial counsel was ineffective for fail-
ing to “adequately pursue a defense and challenge the evi-
dence concerning the murder weapon.” Goynes pointed out
that the murder weapon was found in someone else’s posses-
sion and that Goynes’ DNA was not found on the weapon.
Goynes asserted, “Trial counsel was ineffective in failing to
pursue a defense related to the circumstances of finding the
murder weapon.”
(f) Not Calling Richard As Alibi Witness
Sixth, Goynes alleged trial counsel was ineffective for
“fail[ing] to call . . . Richard as a witness for his alibi
defense.” Goynes alleged, “Richard was a necessary wit-
ness and could testify concerning Goynes’ presence at the
barbe[c]ue. Additionally Richard had photos on his phone of
Goynes at the barbe[c]ue.” Goynes did not allege trial counsel
was ineffective for failing to offer photographs into evidence,

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nor that there were photographs not entered into evidence,
which would have shown Goynes was at the barbecue when
Williams was murdered. Rather, he alleged more generally
that “had Richard been called as a witness, the outcome would
have been different in favor of Goynes as his alibi would have
been established.”
(g) Cross-Examination of Cahill
Seventh, Goynes alleged trial counsel was ineffective for
failing to challenge or impeach—with police reports stating it
took between 7 and 9 minutes—the testimony of Cahill that
it was approximately a 4-minute drive to travel between the
barbecue and the scene of the shooting.
4. Order Denying Postconviction Relief
The district court denied the motion for postconviction relief
without an evidentiary hearing.
The court reasoned that Goynes suffered no prejudice from
his trial counsel’s failure to object to the printouts of cell
phone data because “the same logic and reasoning” of our
decision on direct appeal holding that the trial court properly
admitted the cell phone and cell phone data “would carry over
to the printouts of the same information.”
Regarding claimed failures to cross-examine or challenge
the State’s evidence, the court reasoned that because the
record demonstrated “trial counsel cross-examined the wit-
nesses consistent with the defense strategy of the case, filed
numerous pretrial motions challenging the State’s evidence,
filed a motion-in-limine restricting the State from offering
certain information, called their own witnesses to establish a
defense theory, and strenuously argued numerous points dur-
ing closing arguments,” the record refuted that counsel was
deficient for allegedly failing to meaningfully challenge the
State’s evidence or that Goynes suffered any prejudice. The
district court elaborated that trial counsel cross-examined and
attacked the credibility of Taylor, Hawthorne, and Cahill and
cross-examined “witnesses about the firearm used in this case,

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who was found with it, and establishing that [Goynes] was not
a suspect in two other shootings in which that same firearm
was used.”
As for the alleged ineffective assistance in failing to call
Richard as a witness supporting his alibi, the district court
found that Goynes had not “met his burden” of establishing
deficiency and prejudice. The court elaborated that Goynes
had failed
to establish a timeline for said barbe[c]ue, how . . .
Richard’s 	testimony 	could 	conclusively 	establish 	that
[Goynes] was not at the scene of the crime at the time
of the crime, or how . . . Richard’s testimony could over-
come the eye witness testimony of both Hawthorne and
Taylor, each [of] whom placed [Goynes] at the scene
of the crime, at the time of the crime, and committing
the crime.
Furthermore, while defense counsel did not call Richard to
testify, defense counsel submitted photographs and other evi-
dence of Goynes’ attendance at the barbecue and made “a
cohesive argument in an attempt to establish an alibi.”
III. ASSIGNMENTS OF ERROR
Goynes assigns that the district court erred in denying
postconviction relief and denying him an evidentiary hearing
on the issues of his trial counsel’s failures to (1) preserve his
objection to the cell phone evidence, (2) subject the State’s
case to meaningful adversarial testing, (3) present a defense,
and (4) call his alibi witness.
IV. 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 affirma-
tively show that the defendant is entitled to no relief. 3
3 State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).

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To the extent that cases such as State v. Boeggeman, 4 State
v. Harris, 5 and State v. Jensen 6 suggest that even if we find
in our de novo review that the defendant “failed to allege
sufficient facts to demonstrate a violation of his or her con-
stitutional rights as to render the judgment void or voidable,”
we must also conduct an analysis of whether the files and
records affirmatively show the defendant is entitled to no
relief, we disapprove.
V. ANALYSIS
Postconviction 	relief 	is 	described 	in 	Neb. 	Rev. 	Stat.
§ 29-3001 (Cum. Supp. 2024). Pursuant to § 29-3001(1),
postconviction relief is available on the ground that there was
such a denial or infringement of the rights of the prisoner as to
render the judgment void or voidable under the Constitution of
this state or the Constitution of the United States.
Under § 29-3001(1), a prisoner in custody under sentence
“may file a verified motion, in the court which imposed such
sentence, stating the grounds relied upon and asking the court
to vacate or set aside the sentence.” Section 29-3001(2) gives
the right to a hearing “[u]nless the motion and the files and
records of the case show to the satisfaction of the court that
the prisoner is entitled to no relief.”
[1-3] 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. 7 A postconviction motion that lacks the
specific factual allegations necessary to support the claims
made is no more than a fishing expedition for evidence that
might aid in obtaining postconviction relief and is therefore
4 State v. Boeggeman, 316 Neb. 581, 590, 5 N.W.3d 735, 741 (2024).
5 State v. Harris, No. A-23-718, 2024 WL 4821174 at *2 (Neb. App. Nov.
19, 2024) (selected for posting to court website).
6 State v. Jensen, No. A-23-939, 2024 WL 3770410 at *3 (Neb. App. Aug.
13, 2024) (selected for posting to court website).
7 State v. Jaeger, supra note 3.

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insufficient to warrant an evidentiary hearing. 8 An evidentiary
hearing is not required when a motion for postconviction
relief alleges only conclusions of fact or law without support-
ing facts. 9
[4,5] In contrast, 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—unless the records and files affirm-
atively show that the defendant is entitled to no relief. 10
Stated another way, an evidentiary hearing is required on a
motion for postconviction relief unless: (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. 11
[6,7] A proper 	ineffective 	assistance 	of 	counsel 	claim
alleges a violation of the fundamental constitutional right to
a fair trial. 12 To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 13 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. 14
[8,9] To show that counsel’s performance was deficient,
a defendant must show that counsel’s performance did not
8 See id.
9 State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
10 See State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
11 See State v. Jaeger, supra note 3.
12 State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).
13 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
14 State v. Galindo, supra note 12.

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equal that of a lawyer with ordinary training and skill in
criminal law. 15 Courts give counsel’s acts a strong presump-
tion of reasonableness. 16
[10-12] To show prejudice in a claim of ineffective assist-
ance of counsel, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. 17 A reason-
able probability is a probability sufficient to undermine confi-
dence in the outcome. 18 When considering the prejudice prong
of ineffective assistance of counsel, we focus on whether a
trial counsel’s deficient performance renders the result of the
trial unreliable or fundamentally unfair. 19
Goynes argues on appeal that the court erred in denying
him postconviction relief without an evidentiary hearing on
his claims that trial counsel was ineffective by failing to (1)
object at trial to printouts of his cell phone data, (2) impeach
Hawthorne’s credibility based on her initial description of the
shooter, (3) sufficiently challenge Taylor’s identification of
Goynes, (4) adequately expose at trial the shortcomings of
law enforcement’s investigation of dreadlocks found at the
scene, (5) emphasize that the murder weapon was found in
someone else’s possession and that Goynes’ DNA was not
found on the weapon, and (6) call Richard to testify in order
to substantiate his alibi “due to . . . Richard’s involvement in
the photo taking.” 20
[13] Goynes does not specifically assign and specifically
argue any error relating to his postconviction allegation that
trial counsel failed to impeach Cahill’s testimony regarding
15 State v. Haas, 317 Neb. 919, 12 N.W.3d 787 (2024).
16 See State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024), modified on
denial of rehearing 317 Neb. 917, 12 N.W.3d 787.
17 State v. Haas, supra note 15.
18 See State v. Rush, supra note 16.
19 Id.
20 Brief for appellant at 16.

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the amount of time it took to drive from the barbecue to the
scene of the shooting. Therefore, we do not address the district
court’s ruling as to that allegation. Except for instances of
plain error, only those issues both raised or passed upon below
and specifically assigned and specifically argued on appeal
will be considered by the appellate court. 21
1. Printouts
Goynes’ allegations in his motion for postconvicton relief
concerning trial counsel’s failure to object to the cell phone
data printouts, even if true, do not constitute ineffective assist-
ance of trial counsel. Therefore, the district court did not err
in denying this claim without an evidentiary hearing.
[14] Goynes alleged that but for trial counsel’s failure to
object to the admission of the printouts at trial, we would
have specifically addressed the issue of the admissibility of
the printouts on direct appeal. Counsel’s failure to preserve at
trial an issue for direct appeal can be ineffective assistance of
counsel only if there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal. 22 The
failure to preserve an issue for appellate review is not, stand-
ing alone, ineffective assistance of counsel.
[15,16] Our holding that the cell phone data was constitu-
tionally obtained is the law of the case. Under the law-of-the-
case doctrine, an appellate court’s holdings on issues presented
to it conclusively settle all matters ruled upon, either expressly
or by necessary implication. 23 A motion for postconviction
relief cannot be used to secure a further review of issues
already litigated on direct appeal. 24
21 State v. Jaeger, supra note 3.
22 See 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).
23 See 132 Ventures v. Active Spine Physical Therapy, ante p. 64, 13 N.W.3d
441 (2024).
24 See State v. Stelly, supra note 9.

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Goynes did not allege how our conclusion on direct appeal
as to the admissibility of the printouts would have been dif-
ferent from our holding that the cell phone and compact disc
containing the data extracted from the cell phone were prop-
erly admitted over trial counsel’s objections. The printouts
were obtained by the same warrant that both this court and the
trial court found was supported by probable cause and had suf-
ficient particularity under the Fourth Amendment and article I,
§ 7, of the Nebraska Constitution.
[17] Goynes also fails to explain why we would have found
the admission of the printouts prejudicial when the compact
disc containing all the data extracted from the cell phone was
deemed properly admitted. Evidence objected to which is sub-
stantially similar to evidence admitted without objection results
in no prejudicial error. 25
[18,19] For the first time on appeal, Goynes suggests he
was prejudiced, even if on direct appeal we would have found
no merit to a challenge to the admissibility of the printouts,
because Goynes “would have had the ability to petition for
a Writ of Certiorari with the United States Supreme Court
on the same issue and pursue federal Habeas relief.” 26 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. 27 Appellate courts do not gener-
ally consider arguments and theories raised for the first time
on appeal. 28
In any event, this argument lacks merit. Goynes does not
argue he would have been successful in these federal avenues,
and it is entirely speculative to conclude he would have been.
Nothing in the allegations for postconviction relief changes
our conclusion that the cell phone data was obtained in
25 In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).
26 Brief for appellant at 12.
27 State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
28 Id.

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compliance with the Fourth Amendment and article I, § 7, of
the Nebraska Constitution.
Goynes’ inability to obtain appellate or federal review of
the admissibility of the printouts, due to the failure of trial
counsel to object to their admission, does not state a claim for
an infringement of Goynes’ constitutional rights rendering his
convictions void or voidable.
2. Cross-Examination of Taylor
and Hawthorne
The records and files affirmatively show Goynes is entitled
to no relief for his claim that trial counsel was ineffective by
failing to “sufficiently challenge” Taylor’s and Hawthorne’s
eyewitness accounts that Goynes was the shooter. Specifically,
Goynes 	alleged 	Hawthorne’s 	credibility 	could 	have 	been
impeached by virtue of her initial statement to law enforce-
ment that she did not know the shooter and the fact that she
gave an initial description of the shooter that was inconsistent
with Goynes’ appearance at the time of the shooting. Further,
Hawthorne’s credibility could have been called into question
by trial counsel’s pointing out her inability at trial to recall
what she initially said to law enforcement at the scene and her
misidentification of a photograph of “Stay Ready” as Goynes.
As for Taylor, Goynes pointed to the fact that he had initially
refused to speak with law enforcement.
[20,21] The trial record shows that defense counsel cross-
examined Taylor and Hawthorne on these grounds and many
more. Defense counsel also adduced other witnesses’ testi-
monies to further call into question the reliability of Taylor’s
and Hawthorne’s identifications of Goynes as the shooter.
Decisions about whether to engage in cross-examination, and,
if so, to what extent and in what manner, are strategic in
nature and generally will not support an ineffective assistance
claim. 29 The simple assertion that defense counsel could have
29 State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

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performed better is not grounds to conclude defense counsel
was constitutionally deficient. 30
3. Murder Weapon
Likewise, the trial record affirmatively shows that Goynes
is entitled to no relief on the claim that trial counsel failed to
adequately pursue a defense challenging the lack of evidence
connecting him to the weapon and emphasizing the weapon
was found in someone else’s possession. Defense counsel pur-
sued such a defense, stating that the “smoking gun” was found
in Harris’ pocket and that the State had presented no physical
evidence, such as fingerprints or DNA, linking Goynes to the
gun. Defense counsel described this as a “glaring hole[] in
the State’s case.” Goynes does not explain what else defense
counsel should have done. He simply states that the absence of
his DNA on the weapon “should have [been] emphasized.” 31
It was. To the extent Goynes claims trial counsel should
have emphasized it more, this is not a basis for finding either
deficient conduct or prejudice rendering his convictions void
or voidable.
4. Dreadlocks Suspect
[22] Regarding trial counsel’s alleged failure to adequately
expose the shortcomings of law enforcement’s investigation of
an alternative suspect with dreadlocks, his counsel states on
appeal what “Goynes alleged” 32 in his postconviction motion
but does not argue the trial court erred in denying an evi-
dentiary hearing on those allegations. Alleged errors of the
lower court must be both specifically assigned and specifically
argued in the brief of the party asserting the errors to be con-
sidered by an appellate court. 33
30 Id.
31 Brief for appellant at 15.
32 Id. at 14.
33 State v. Dailey, 314 Neb. 325, 990 N.W.2d 523 (2023).

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Overlooking the form of Goynes’ argument on appeal,
we find that the district court did not err. Goynes seemed to
suggest in his postconviction motion that trial counsel could
have better exposed the shortcomings of law enforcement’s
investigation into the possibility that someone with dreadlocks
was the shooter by calling Broadnax, Marion, and Wynn to
testify that there was a fight at the complex the day before
the shooting. Marion additionally would have testified that
this fight involved a man with long dreadlocks, and Broadnax
and Wynn would have testified that the man had made threats
to come back. Smith allegedly would have testified he told
law enforcement at the scene that the shooter was “‘little and
kind of short, skinny, in his early 20s, wearing a red shirt
and shorts.’”
Trial counsel, in fact, made significant efforts at exposing
the shortcomings of law enforcement’s investigation into the
possibility that someone with dreadlocks was the shooter.
Hawthorne testified at trial that the shooter had long dread-
locks, and evidence was adduced of her report of the same to
law enforcement. Additionally, defense counsel emphasized
at trial that Hawthorne had initially reported the shooter
had long dreadlocks. Trial counsel even pointed suspicion
to Larry’s brother, who was in the courtroom and had long
dreadlocks.
Trial counsel emphasized that law enforcement conducting
the canvass of the area of potential witnesses had learned there
was a physical altercation at the complex the night before
the shooting involving an individual who had dreadlocks
pulled from his head during the fight. Those dreadlocks were
found at the scene of the shooting and marked as evidence in
the criminal investigation. Defense counsel questioned Cahill
regarding law enforcement’s failure to show a photographic
lineup to the eyewitnesses to the shooting.
Defense counsel called Brooks, who testified the shooter did
not in any way resemble Goynes. She described the shooter as
“extremely dark skinn[ed]” with short dreadlocks and “small

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of stature.” She passionately opined that law enforcement
failed to adequately pursue finding the real shooter. In closing
arguments, defense counsel asserted that law enforcement’s
investigation was biased against Goynes.
The allegations of Goynes’ motion for postconviction relief,
even if true, would not have exposed the shortcomings of law
enforcement’s investigation to a degree meaningfully differ-
ent than what trial counsel had already done. Thus, the trial
record affirmatively shows that trial counsel was not constitu-
tionally deficient and that Goynes was not prejudiced by trial
counsel’s failure to do more to expose the lack of law enforce-
ment’s investigation into someone with dreadlocks as being
the shooter.
5. Failure to Call Richard to Testify
Lastly, we address Goynes’ allegation of ineffective assist-
ance of counsel for the failure to call Richard to testify.
Richard allegedly would have testified “concerning Goynes’
presence at the barbe[c]ue.” Further, Richard “had photos on
his phone of Goynes at the barbe[c]ue”—a fact that was estab-
lished at trial. Without alleging any other supporting facts,
Goynes concluded in his postconviction motion that “had
Richard been called as a witness, the outcome would have
been different in favor of Goynes as his alibi would have been
established.”
Assuming Goynes’ allegations respecting the failure to call
Richard as a witness are sufficiently specific, the files and
records of the case show that Goynes is entitled to no relief on
this claim. Defense counsel called several witnesses to attest
that Goynes was at the barbecue when the shooting occurred.
The photographs from Richard’s phone were entered into
evidence. There is nothing in Goynes’ allegations respecting
the failure to call Richard to testify that raises a reasonable
probability that Richard’s testimony would have altered the
evidentiary picture presented to the jury and, thus, the outcome
of the trial.

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VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district 	court 	dismissing, 	without 	an 	evidentiary 	hearing,
Goynes’ motion for postconviction relief.
Affirmed.