State v. Thomas

court did not err when it concluded that trial counsel’s actions
did not constitute deficient performance, and therefore, appel-
late counsel was not ineffective when he did not raise this pur-
ported error on direct appeal.
CONCLUSION
Because Jim did not establish that his trial counsel was inef-
fective, he failed to establish that his appellate counsel was
ineffective. The district court did not err when it denied Jim’s
motion for postconviction relief based on the claim that he
was denied effective assistance of appellate counsel. We there-
fore affirm.
A ffirmed.
StAte of NebrASkA, Appellee , v.
l.t. thomAS, AppellANt.
769 N.W.2d 357
Filed July 31, 2009. 	No. S-08-1177.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. A defendant moving for postconvic-
tion relief must allege facts which, if proved, constitute a denial or violation of
his or her rights under the Nebraska or U.S. Constitution.
3. 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.
4. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
5. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s perform-
ance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
6. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues that were known to the defendant and could have
been litigated on direct appeal.
248 	278 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

7. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
order to raise the issue of ineffective assistance of trial counsel where appellate
counsel is different from trial counsel, a defendant must raise on direct appeal
any issue of ineffective assistance of trial counsel which is known to the defend-
ant or is apparent from the record, or the issue will be procedurally barred on
postconviction review.
8. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist-
ance of counsel at trial or on direct appeal, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
9. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, there is a strong presumption that such counsel
acted reasonably.
10. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call,
a particular witness, made by counsel as a matter of trial strategy, even if that
choice proves unproductive, will not, without more, sustain a finding of ineffec-
tiveness of counsel.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. ruSSell boWie iii, Judge. Affirmed.
James E. Schaefer and Jill A. podraza, of Gallup & Schaefer,
for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
heAvicAN, c.J., Wright, coNNolly, gerrArd, StephAN, and
miller-lermAN, JJ.
heAvicAN, C.J.
I. INTrODUCTION
L.T. Thomas appeals the denial of his motion for postconvic-
tion relief by the Douglas County District Court. Thomas was
convicted in 1995 of murder in the second degree, first degree
assault, and two counts of use of a firearm to commit a felony.
Afterward, Thomas was found to be a habitual criminal and his
STATE v. ThOmAS 	249
Cite as 278 Neb. 248

sentences were enhanced. In 2002, Thomas appealed, and in
State v. Thomas (Thomas I),1 we affirmed Thomas’ convictions
but found there was insufficient evidence to sentence Thomas
as a habitual criminal and remanded the cause for resentencing.
Thomas was found to be a habitual criminal at his resentenc-
ing, and, on appeal in 2004, in State v. Thomas (Thomas II),2
we affirmed his sentences. Thomas filed this postconviction
motion, alleging ineffective assistance of trial and appellate
counsel. Thomas’ motion was denied, and he appealed. We
affirm the decision of the district court.
II. FACTS
A more detailed recitation of facts can be found in Thomas I.
But in summary, Thomas was convicted of second degree mur-
der, first degree assault, and two counts of use of a firearm to
commit a felony. In June 1994, Thomas shot at two men who
were in a vehicle in Omaha, Nebraska. Thomas claimed that
he shot the men in self-defense after being threatened with
a gun. The driver of the vehicle was shot in the left leg and
crashed into a building while attempting to drive to a hospital
at a high rate of speed. The driver later died of the injuries
he received in the crash. The passenger was shot three times
but survived.
Thomas’ first direct appeal failed because his attorney, rather
than Thomas, signed the poverty affidavit, but we granted
Thomas a new direct appeal. Among the claims raised in
Thomas I was a claim that his trial counsel was ineffective
for failing to call a witness who would have impeached the
testimony of certain witnesses for the prosecution and for fail-
ing to object to testimony regarding the speed of the vehicle
driven by one of the victims. As noted, we affirmed Thomas’
convictions but found insufficient evidence to sentence him as
a habitual criminal. We therefore vacated Thomas’ sentences
and remanded the cause for a new enhancement hearing and
for resentencing.3
1 State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
2 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
3 Thomas I, supra note 1.
250 	278 NEBrASkA rEpOrTS

On rehearing, Thomas filed a motion to quash the information
charging him with second degree murder, on the ground that it
was based on an unconstitutional statute, and filed a motion to
arrest judgment on the same ground.4 The district court denied
his motions and resentenced Thomas as a habitual criminal.
Thomas appealed from his resentencing, and in Thomas II, we
affirmed.5 Thomas then filed this postconviction appeal. After
hearing arguments and receiving evidence, the district court
denied Thomas’ motion for postconviction relief.
III. ASSIGNmENTS OF ErrOr
Thomas assigns as error that his trial counsel was inef-
fective for failing to (1) object to second degree murder as a
lesser-included offense of first degree murder, (2) request a
jury instruction for manslaughter, (3) call a necessary witness,
and (4) object to testimony regarding the speed of the victim’s
vehicle at impact. Thomas also assigns as error that his appel-
late counsel was ineffective for failing to (1) assign as error
trial counsel’s failure to object to second degree murder as
a lesser-included offense and (2) provide an adequate record
regarding the fact that a necessary witness was not called.
IV. STANDArD OF rEVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the dis-
trict court will not be disturbed unless they are clearly errone-
ous.6 A defendant moving for postconviction relief must allege
facts which, if proved, constitute a denial or violation of his or
her rights under the Nebraska or U.S. Constitution.7
[3] 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.8
4 Thomas II, supra note 2.
5 Id.
6 State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001).
7 State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
8 Caddy, supra note 6.
STATE v. ThOmAS 	251
Cite as 278 Neb. 248

[4,5] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.9 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,10 an appellate court
reviews such legal determinations independently of the lower
court’s decision.11
V. ANALYSIS
[6,7] We first note that three of Thomas’ four allegations of
ineffective assistance of trial counsel are procedurally barred.
These include failing to (1) object to second degree murder as
a lesser-included offense of first degree murder, (2) request a
jury instruction for manslaughter, and (3) object to testimony
regarding the speed of the vehicle at impact. A motion for post-
conviction relief cannot be used to secure review of issues that
were known to the defendant and could have been litigated on
direct appeal.12 In order to raise the issue of ineffective assist-
ance of trial counsel where appellate counsel is different from
trial counsel, a defendant must raise on direct appeal any issue
of ineffective assistance of trial counsel which is known to the
defendant or is apparent from the record, or the issue will be
procedurally barred on postconviction review.13
Thomas’ appellate counsel was different from his trial coun-
sel. Thomas was aware of those alleged issues of ineffective
assistance of trial counsel on his direct appeal, and even if
Thomas was not aware of those issues, they are apparent from
the record. The only ineffective assistance of trial counsel
claim preserved from Thomas’ direct appeal is his trial coun-
sel’s failure to call a witness he claims would have impeached
9 State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
10 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
11 Hudson, supra note 9.
12 Burlison, supra note 7.
13 State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
252 	278 NEBrASkA rEpOrTS

the testimony of other prosecution witnesses.14 In Thomas I,
we found the record was insufficient to properly consider that
assignment of error. Therefore, the ineffective assistance of
trial counsel claim is the only one not barred on postconvic-
tion review.
1. thomAS’ couNSel WAS Not iNeffective
for fAiliNg to cAll WitNeSS
[8,9] Thomas contends that his trial counsel was ineffective
for failing to call a certain police officer as a witness to testify
during his trial. In order to establish a right to postconviction
relief based on a claim of ineffective assistance of counsel at
trial or on direct appeal, the defendant has the burden, in accord-
ance with Strickland,15 to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the
area.16 Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case. In order
to show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order.17 In determining whether a trial
counsel’s performance was deficient, there is a strong presump-
tion that such counsel acted reasonably.18
Thomas claims the officer’s testimony would have impeached
the testimony of certain witnesses for the prosecution. Thomas
states that if the officer had been called to testify, “his testi-
mony could have impeached the testimony of . . . a witness
offered by the State, as to who was present the evening the
alleged events took place.”19 Thomas is referring to an eyewit-
ness who testified for the State during Thomas’ trial as to those
14 Thomas I, supra note 1.
15 Strickland, supra note 10.
16 State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008).
17 Id.
18 Id.
19 Brief for appellant at 32.
STATE v. ThOmAS 	253
Cite as 278 Neb. 248

present at the scene.20 Trial counsel was deposed regarding the
testimony of the police officer. During that testimony, counsel
could not remember that particular officer. he further testified
that it was his regular practice to call police officers when their
testimony was inconsistent with that of other witnesses.
[10] The district court found that trial counsel’s decision not
to call the police officer was a matter of trial strategy. “The
decision to call, or not to call, a particular witness, made by
counsel as a matter of trial strategy, even if that choice proves
unproductive, will not, without more, sustain a finding of inef-
fectiveness of counsel.”21
Other than the assertion that his attorney was ineffective
for failing to call the police officer, Thomas has given us no
reason to believe that his counsel’s performance was deficient
or that Thomas was prejudiced. Thomas’ claim at trial was that
he had acted in self-defense. There was never any dispute as
to whether Thomas or the two victims were at the scene. Even
if the officer’s testimony had impeached testimony from other
witnesses as to who was present at the scene, Thomas cannot
maintain a claim of prejudice, as he never denied that he and
the victims were present.
2. thomAS’ clAim of iNeffective ASSiStANce of
A ppellAte couNSel iS Without merit
(a) Thomas’ Appellate Counsel Was Not Ineffective
for Failing to Create record
Thomas alleges that his appellate counsel was ineffective
for failing to create a sufficient record regarding trial counsel’s
failure to call the police officer as a witness. In Thomas I, we
stated that only the trial record was properly before us and
that the testimony of trial counsel was not part of that record.22
Even if the performance of Thomas’ appellate counsel was
deficient for failing to ensure that we had a complete record in
Thomas I, Thomas cannot show prejudice. Thomas’ appellate
20 Thomas I, supra note 1.
21 State v. Lindsay, 246 Neb. 101, 108, 517 N.W.2d 102, 107 (1994).
22 Thomas I, supra note 1. See, also, Lindsay, supra note 21.
254 	278 NEBrASkA rEpOrTS

counsel deposed trial counsel regarding his failure to call the
police officer, and the issue was raised on direct appeal. As
already discussed, Thomas could not show any prejudice from
his trial counsel’s failure to call the officer. The record is prop-
erly before us now, and we find that Thomas suffered no preju-
dice from our inability to reach the issue in Thomas I.
(b) Thomas’ Appellate Counsel Was Not Ineffective
for Failing to raise Issue of Second Degree
murder Instruction
Thomas also claims his appellate counsel was ineffective for
failing to allege that his trial counsel was ineffective for not
objecting to the lesser-included second degree murder instruc-
tion. Essentially, Thomas contends that the lesser-included sec-
ond degree murder jury instruction was given in error, because
there was a requirement of malice in the jury instruction not
present in the statute defining second degree murder.
Neb. rev. Stat. § 28-304 (reissue 2008) has not contained
language regarding malice for second degree murder since
1979. malice was read into the statute by prior decisions of
this court, and hence used in pattern jury instructions until our
decision in State v. Burlison,23 decided 3 years after Thomas’
convictions. In Burlison, we determined that malice was no
longer a required element of second degree murder.24 We later
determined that our decision in Burlison could be applied
retroactively.25
Thomas alleges that because the statutory language relied
upon in Burlison was in place at the time of his jury trial, his
appellate counsel was ineffective for failing to allege inef-
fective assistance of trial counsel on this matter in his direct
appeal. In essence, appellate counsel should have considered
Thomas’ trial counsel’s failure to anticipate Burlison to be
deficient performance. We conclude that Thomas is unable to
demonstrate that he was prejudiced by any alleged deficiency
in appellate counsel’s performance.
23 Burlison, supra note 7.
24 Id.
25 State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001).
STATE v. ThOmAS 	255
Cite as 278 Neb. 248

We held in State v. Davis26 that a defendant convicted of sec-
ond degree murder was not prejudiced when a jury instruction
required a finding of malice. We determined that proving mal-
ice “created a greater burden on the State regarding intent.”27
The prosecution in this case likewise bore a greater burden to
prove the additional element of malice, and therefore, Thomas
cannot demonstrate prejudice.
3. § 28-304 iS Not uNcoNStitutioNAl
Finally, Thomas argues that removing the malice require-
ment from the second degree murder statute renders § 28-304
unconstitutional. The State contends that Thomas argued this
claim but did not assign it as error. We agree with the State
that Thomas did not technically assign this issue as error.
We nevertheless conclude that Thomas’ assignment of error
with respect to the ineffectiveness of appellate counsel on the
second degree murder instruction encompassed his argument
regarding the constitutionality of § 28-304 and is therefore
preserved on appeal. We conclude, however, that this issue is
procedurally barred.
Thomas raised this issue in Thomas II, having filed both
a motion to quash and a motion in arrest of judgment after
his first appeal, arguing that § 28-304 was unconstitutionally
vague.28 At that time, we concluded that Thomas’ claim was
waived because he did not raise it in his first direct appeal.29
In order to preserve this issue for review now, Thomas should
have argued that his appellate counsel was ineffective for fail-
ing to timely raise the constitutional issue in his first direct
appeal, which he did not do. Even if the issue had been prop-
erly raised, however, Thomas cannot show that he was preju-
diced, because we addressed the issue of whether § 28-304 was
unconstitutionally vague in State v. Caddy.30
26 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
27 Id. at 761, 757 N.W.2d at 373.
28 Thomas II, supra note 2.
29 Id.
30 Caddy, supra note 6.
256 	278 NEBrASkA rEpOrTS

In Caddy, the defendant sought postconviction relief for his
second degree murder conviction, arguing that § 28-304 was
unconstitutionally vague. The defendant’s argument was that
§ 28-304 was void for vagueness because it was indistinguish-
able from the crime of manslaughter as defined by Neb. rev.
Stat. § 28-305 (reissue 2008). We stated that while there may
be some ambiguity between §§ 28-304 and 28-305, “there is
still little question whether § 28-304 provides with reasonable
clarity that the intentional killing of another may be criminal.”31
We went on to conclude that
provided that conduct is of a sort known among the lay
public to be criminal, a person is not entitled to clear
notice that the conduct violates a particular criminal stat-
ute. It is enough that he or she knows that what he or she
is about to do is probably or certainly criminal.32
Furthermore, the language of the two statutes makes the
differences between manslaughter and second degree murder
clear. Section 28-305 states that “[a] person commits man-
slaughter if he kills another without malice, either upon a
sudden quarrel, or causes the death of another unintentionally
while in the commission of an unlawful act.” Section 28-304,
in contrast, states in part that “[a] person commits murder in
the second degree if he causes the death of a person inten-
tionally, but without premeditation.” The differences between
manslaughter and second degree murder are apparent from the
plain language of the statutes.
VI. CONCLUSION
In order to prevail on a motion for postconviction relief, a
defendant must demonstrate that his or her constitutional rights
were violated. And, in order to prevail on an ineffective assistance
of counsel claim, a defendant must show that his or her counsel’s
performance was deficient and that he or she was prejudiced by
that deficient performance. Thomas has not been able to show
that his constitutional rights were violated, that either his trial
counsel’s or appellate counsel’s performance was deficient, or
31 Id. at 45, 628 N.W.2d at 258.
32 Id. at 46, 628 N.W.2d at 259 (emphasis in original).
STATE v. ThOmAS 	257
Cite as 278 Neb. 248

that he was prejudiced by either of his counsel’s alleged defi-
cient performance. Thomas’ request for postconviction relief
was therefore properly denied by the district court.
A ffirmed.
mccormAck, J., participating on briefs.
258 	278 NEBrASkA rEpOrTS