State v. McGhee

judgment as a matter of law.35 In reviewing a summary judg-
ment, we view the evidence in the light most favorable to the
party against whom the judgment was granted, and give that
party the benefit of all reasonable inferences deducible from
the evidence.36
Here, the district court correctly found that Wilson had a
valid leasehold interest. Thus, the claim Wilson filed against
the property was not false or malicious. And the record lacks
any evidence to suggest Wilson filed the claim to slander the
title to the property. She believed, rightfully so, that she had
a valid interest in the property. The district court did not err
in granting Wilson’s motion for summary judgment, as no
genuine issue of material fact could be drawn from the facts
presented.
CONCLUSION
The district court correctly determined that Wilson had
a valid legal interest in the leased property. Fieldgrove was
required to give at least 6 months’ notice of his intention to
terminate the lease and failed to do so. Therefore, the lease was
renewed for an additional year commencing March 1, 2008.
The district court did not err in granting Wilson’s motion for
summary judgment on Fieldgrove’s slander of title claim.
A ffirmed.
35 See, Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010); Bamford v.
Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
36 Bamford, supra note 35; Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545
(2009).
StAte of NebrASkA, Appellee , v.
eric t. mc G hee , AppellANt.
787 N.W.2d 700
Filed September 3, 2010. 	No. S-10-337.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
558 	280 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

2. Effectiveness of Counsel: Appeal and 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, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
3. Postconviction: Right to Counsel: Appeal and Error. Failure to appoint coun-
sel in postconviction proceedings is not error in the absence of an abuse of
discretion.
4. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual allega-
tions which, if proved, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. However, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively show that the mov-
ant is entitled to no relief, no evidentiary hearing is required.
5. 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, 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 deficient performance
prejudiced the defense in his or her case. In order to show prejudice, the defend-
ant 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.
6. Expert Witnesses. The weight and credibility of an expert’s testimony are a
question for the trier of fact.
7. ____. Triers of fact are not required to take opinions of experts as binding
upon them.
8. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
9. Postconviction: Right to Counsel. There is no federal or state constitutional
right to an attorney in state postconviction proceedings.
10. ____: ____. Under the Nebraska postconviction Act, it is within the discre-
tion of the trial court as to whether counsel shall be appointed to represent
the defendant.
11. Postconviction: Justiciable Issues: Right to Counsel. When the assigned errors
in a postconviction petition before the district court contain no justiciable issues
of law or fact, it is not an abuse of discretion to fail to appoint counsel for an
indigent defendant.
Appeal from the District Court for Douglas County: JoSeph
S. troiA, Judge. Affirmed.
eric T. McGhee, pro se.
STATe v. McGHee 	559
Cite as 280 Neb. 558

Jon bruning, Attorney General, and George r. Love for
appellee.
heAvicAN, 	c.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
StephAN, J.
Following a jury trial, eric T. McGhee was convicted of
first degree murder and use of a weapon to commit a felony
in the 2003 shooting death of ezra Lowry. McGhee was sen-
tenced to life imprisonment on the murder conviction and to 5
to 10 years’ imprisonment on the use of a weapon conviction.
We affirmed the convictions and sentences on direct appeal.1
McGhee then filed a motion for postconviction relief in which
he alleged that his defense counsel’s performance was consti-
tutionally ineffective at trial and on direct appeal. The district
court for Douglas County denied the postconviction motion
without an evidentiary hearing, and McGhee now appeals from
that order. We affirm.
bACkGrOUND
On March 11, 2003, the same day the information charging
McGhee was filed, his attorney filed a motion to determine
McGhee’s competency to stand trial. Following a hearing, the
district court determined that McGhee was not then competent
to stand trial, but that there was a substantial probability that
he would become competent in the foreseeable future. The
court committed McGhee to the Lincoln regional Center until
such time as he became competent to stand trial, and ordered
that institution to submit written reports to the court every
6 months.
periodic review hearings were held. At a review hearing
in late 2005, Dr. bruce Gutnik testified for McGhee. Gutnik
opined that McGhee remained incompetent to stand trial. Dr.
Louis Martin testified for the State and opined that McGhee
was then competent to stand trial. The court accepted Martin’s
testimony and found McGhee competent. McGhee’s counsel
1 State v. McGhee, 274 Neb. 660, 742 N.W.2d 497 (2007).
560 	280 NebrASkA repOrTS

then filed a notice that McGhee intended to plead not respon-
sible by reason of insanity.
The events that led to the fatal shooting are set forth in
detail in our opinion on direct appeal.2 briefly summarized,
the shooting occurred at McGhee’s home, where he, Lowry,
and others had been drinking and smoking marijuana. As we
noted in the direct appeal, McGhee did not contest that he shot
Lowry; rather, his theory of defense was that his actions did not
amount to first degree murder and that in any event, he was not
responsible by reason of insanity.
Gutnik and Martin gave conflicting expert testimony at trial
on the issue of McGhee’s sanity at the time of the shooting.
Gutnik diagnosed McGhee as suffering from paranoid schizo-
phrenia with a history of alcohol and cannabis abuse and pos-
sible dementia. Gutnik testified that in his opinion, McGhee
did not know the difference between right and wrong at the
time he shot Lowry. Martin testified that McGhee had been
under his care for approximately 2 years, beginning with the
initial commitment for the purpose of determining competency
to stand trial. Martin testified that in his opinion, although
McGhee suffered from a mental illness, McGhee nevertheless
understood what he was doing when he shot Lowry and also
understood that his actions were wrong. On direct appeal, we
concluded that the jury must have believed Martin’s testimony
and that this testimony was “sufficient admissible evidence for
the jury to conclude that McGhee was not insane at the time he
shot Lowry.”3
McGhee sought postconviction relief on grounds that his
defense counsel was ineffective in (1) failing to acquire a third
expert to evaluate and testify regarding his mental status with
respect to the issues of competency and sanity, (2) failing to
properly advise him regarding waiver of the privilege against
self-incrimination and the advisability of testifying in his own
behalf, (3) failing to impeach the testimony of one of the
State’s principal witnesses at trial, and (4) failing to preserve
2 Id.
3 Id. at 669, 742 N.W.2d at 505.
STATe v. McGHee 	561
Cite as 280 Neb. 558

and raise on direct appeal the issue of whether the trial court
erred in receiving and permitting the jury to hear a recording
of a conversation McGhee had with his sister during his pre-
trial incarceration. In response, the State filed a motion to deny
postconviction relief. McGhee filed a reply. The district court
concluded on the basis of McGhee’s motion and the files and
records of the case that McGhee was not entitled to postcon-
viction relief and dismissed his motion without conducting an
evidentiary hearing.
Although McGhee’s postconviction motion and subsequent
pleadings included in the record on this appeal were filed pro
se, the district court at some point appointed counsel to repre-
sent McGhee in postconviction proceedings before that court.
Counsel for McGhee appeared at the hearing which preceded
the district court’s decision to deny postconviction relief with-
out conducting an evidentiary hearing. Following entry of its
order, the district court denied McGhee’s request for appoint-
ment of counsel to represent him on this appeal.
ASSIGNMeNTS OF errOr
McGhee contends, restated and summarized, that the district
court erred in (1) denying postconviction relief without con-
ducting an evidentiary hearing, (2) failing to appoint counsel to
represent him on this appeal, and (3) failing to make a defini-
tive ruling on the State’s motion to deny postconviction relief.
STANDArD OF reVIeW
[1,2] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.4 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,5 an appellate court reviews such legal
determinations independently of the lower court’s decision.6
4 State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010); State v.
Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674
(1984).
6 State v. McKinney, supra note 4; State v. Dunster, supra note 4.
562 	280 NebrASkA repOrTS

[3] Failure to appoint counsel in postconviction proceedings
is not error in the absence of an abuse of discretion.7
ANALYSIS
[4] The principal issue presented in this appeal is whether
the district court erred in denying postconviction relief without
conducting an evidentiary hearing. An evidentiary hearing on
a motion for postconviction relief must be granted when the
motion contains factual allegations which, if proved, constitute
an infringement of the movant’s rights under the Nebraska
or federal Constitution.8 However, if the motion alleges only
conclusions of fact or law, or the records and files in the case
affirmatively show that the movant is entitled to no relief, no
evidentiary hearing is required.9
clAimS of iNeffective ASSiStANce of couNSel
[5] McGhee was represented by the Douglas County public
defender’s office at trial and on direct appeal, so this post-
conviction proceeding is his first opportunity to raise claims
of ineffective assistance of counsel.10 In order to establish a
right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden, in accord-
ance with Strickland v. Washington,11 to show that counsel’s
performance was deficient and that counsel’s deficient perform-
ance prejudiced the defense in his or her case.12 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.13 The two
7 State v. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001); State v. Soukharith,
260 Neb. 478, 618 N.W.2d 409 (2000).
8 State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010); State v. Davlin, 277
Neb. 972, 766 N.W.2d 370 (2009).
9 Id.
10 See, State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002); State v.
Soukharith, supra note 7.
11 Strickland v. Washington, supra note 5.
12 State v. McKinney, supra note 4.
13 Id.
STATe v. McGHee 	563
Cite as 280 Neb. 558

prongs of this test, deficient performance and prejudice, may
be addressed in either order.14
McGhee’s principal argument is that defense counsel was
ineffective in not obtaining a third expert to evaluate and tes-
tify concerning his competence to stand trial and his sanity at
the time of the shooting. McGhee characterizes the conflict-
ing expert testimony as a “stalemate,”15 and he alleged in his
postconviction motion that a third expert opinion would have
broken the stalemate by providing additional support for either
his expert, Gutnik, or the State’s expert, Martin.
In assessing postconviction claims that trial counsel was
ineffective in failing to call a particular witness, we have upheld
dismissal without an evidentiary hearing where the motion did
not include specific allegations regarding the testimony which
the witness would have given if called. For example, in State
v. Davlin,16 the defendant claimed that trial counsel was inef-
fective in failing to adduce the testimony of certain witnesses.
We affirmed dismissal of the postconviction claim without an
evidentiary hearing, reasoning that there was nothing in the
postconviction motion or record to indicate the nature of any
exculpatory evidence which the witnesses would have given if
called. In State v. Threet,17 we held that a postconviction allega-
tion that defense counsel was ineffective in failing to procure
witnesses favorable to the defendant was properly dismissed
without an evidentiary hearing where the motion did not spe-
cifically identify the witnesses or the nature of their testimony.
We stated that in the absence of specific allegations in this
regard, “a trial court need not conduct a discovery hearing to
determine if anywhere in this wide world there is some evi-
dence favorable to defendant’s position.”18
14 Id.
15 brief for appellant at 11.
16 State v. Davlin, supra note 8.
17 State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989), disapproved on
other grounds, State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
18 Id. at 813, 438 N.W.2d at 749.
564 	280 NebrASkA repOrTS

[6,7] McGhee’s allegations are similarly lacking in speci-
ficity. He does not identify another expert who would have tes-
tified that he was incompetent to stand trial or legally insane at
the time of the shooting. He alleges only that if another expert
had been consulted, his or her opinions would have served
to “break and mitigate the stalemate between Dr. Gutnik and
Dr. Martin.” both McGhee’s premise and his conclusion are
incorrect. There was no “stalemate,” only conflicting expert
testimony on disputed issues. And even if a second expert had
testified in support of McGhee’s position, it does not follow
that the competency and sanity determinations would neces-
sarily or even probably have been different. The weight and
credibility of an expert’s testimony are a question for the trier
of fact,19 and triers of fact are not required to take opinions of
experts as binding upon them.20 Whether there had been one or
two experts testifying in support of McGhee’s claims of incom-
petency and insanity, the judge and jury would have been free
to reject such testimony and accept the testimony of Martin
with respect to these issues.21 And on appeal, this court would
have been required to give deference to the determination of
the finders of fact on questions of weight and credibility of
expert testimony, as we did in the direct appeal of this case.22
We therefore conclude that McGhee did not allege facts which,
if proved, would establish a reasonable probability that the out-
come of his case would have been different if his trial counsel
had retained another psychiatric expert. because McGhee’s
allegations are insufficient to satisfy the prejudice prong of the
Strickland analysis, we need not consider his allegations with
respect to the performance prong.
[8] For completeness, we note that the district court deter-
mined that McGhee’s three other claims of ineffective assist-
ance of counsel were also without merit. McGhee’s assignments
19 State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
20 Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997).
21 See Bruno v. State, 111 Neb. 715, 197 N.W. 612 (1924) (holding weight of
testimony not determined by number of witnesses).
22 See State v. McGhee, supra note 1.
STATe v. McGHee 	565
Cite as 280 Neb. 558

of error are broad enough to encompass the disposition of these
claims, but his brief includes no argument directed to them. An
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be
considered by an appellate court.23 because McGhee makes no
specific argument with respect to the district court’s disposition
of his remaining claims of ineffective assistance of counsel, we
need not address them.
deNiAl of motioN to A ppoiNt couNSel for A ppeAl
[9-11] McGhee contends that the district court erred in
denying his motion for appointment of counsel to represent
him in this postconviction appeal. There is no federal or state
constitutional right to an attorney in state postconviction pro-
ceedings.24 Under the Nebraska postconviction Act, it is within
the discretion of the trial court as to whether counsel shall
be appointed to represent the defendant.25 When the assigned
errors in a postconviction petition before the district court con-
tain no justiciable issues of law or fact, it is not an abuse of
discretion to fail to appoint counsel for an indigent defendant.26
Having determined that McGhee’s motion for postconviction
relief presented no justiciable issues, the district court did not
abuse its discretion in denying McGhee’s motion for appoint-
ment of appellate counsel.
diSpoSitioN of StAte’S motioN
We find no merit to McGhee’s argument that the district
court failed to clearly adjudicate the State’s motion to deny
postconviction relief. The district court’s order concluded: “IT
IS, THEREFORE, ORDERED that Defendant’s Motion for
postconviction relief is denied and Defendant is not entitled to
23 State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009); State v. Amaya,
276 Neb. 818, 758 N.W.2d 22 (2008).
24 State v. Soukharith, supra note 7.
25 State v. Vo, supra note 8; State v. McLeod, 274 Neb. 566, 741 N.W.2d 664
(2007).
26 Id.
566 	280 NebrASkA repOrTS

an evidentiary hearing.” That order effectively disposed of all
matters then pending before the court.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court dismissing McGhee’s motion for postconviction
relief without an evidentiary hearing.
A ffirmed.
STATe v. McGHee 	567
Cite as 280 Neb. 558