State v. Seberger

40 	284 NEBRASKA REPORTS
county board appealed from is based.11 Here, TERC should
have exercised its authority to make a determination pursu-
ant to § 49-1201 of whether the return was timely mailed
and therefore filed, based upon all of the evidence. We
reverse, and remand with directions to the Court of Appeals
to reverse the order of TERC and to remand the cause with
directions to review all the evidence in the record before it
and determine whether the return was filed in accordance
with § 49-1201.
CONCLUSION
The Board applied the wrong law when it decided Midwest’s
appeal. TERC erred on the record when it failed to analyze
the effects of this and when it failed to recognize that the
record before it contained evidence not presented to the Board.
Accordingly, we reverse the judgment of the Court of Appeals
and remand the cause with directions to reverse the order of
TERC and remand the cause with directions to TERC to deter-
mine whether the return was timely mailed and filed pursuant
to § 49-1201.
R eveRsed and Remanded with diRections.
11 § 77-5016(8).
state of nebRaska, appellee, v.
fRancis l. sebeRgeR, appellant.
815 N.W.2d 910
Filed July 13, 2012. 	No. S-10-1207.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews factual findings of the
trial court for clear error.
3 	Records: Appeal and Error. It is incumbent upon an appellant to supply a
record which supports his or her appeal.
4. 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 review.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. SEBERGER 	41
Cite as 284 Neb. 40
5. Postconviction: Constitutional Law: Proof. A court must grant an evidentiary
hearing on a postconviction motion when the motion contains factual allegations
which, if proven, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution.
6. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law—or if the records and files in the case affirmatively show that the
movant is entitled to no relief—no evidentiary hearing is required.
7. Criminal Law: Motions to Dismiss: Directed Verdict: Waiver: Convictions:
Appeal and Error. In a criminal trial, after a court overrules a defendant’s
motion for a dismissal or a directed verdict, the defendant waives any right to
challenge the trial court’s ruling if the defendant proceeds with trial and intro-
duces evidence. But the defendant may challenge the sufficiency of the evidence
for the conviction.
Appeal from the District Court for Sarpy County: william
b. Z asteRa, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Francis L. Seberger, pro se.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heavican, 	c.J., 	connolly, 	stephan, 	mccoRmack, 	and
milleR-leRman, JJ.
heavican, c.J.
I. INTRODUCTION
Francis L. Seberger was convicted of first degree murder
in 1998. His conviction was affirmed by this court in March
2010. In June 2010, Seberger filed a motion for postconviction
relief. That motion was denied without an evidentiary hearing.
Seberger appeals.
II. FACTUAL BACKGROUND
A full recitation of the facts surrounding Seberger’s convic-
tion for first degree murder can be found in this court’s opinion
in State v. Seberger.1 As such, only a brief recitation of the
underlying facts will be noted here.
Seberger and his wife were estranged. On May 31, 1997,
she called the 911 emergency dispatch service to report that
1 State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010).

42 	284 NEBRASKA REPORTS
someone was trying to break into her residence. Shortly there-
after, her neighbor called to report a fire at that residence.
Seberger’s wife died from injuries sustained in the fire.
In the investigation that followed, Seberger was arrested
and eventually charged with first degree murder and arson.
He was convicted on the murder charge, but acquitted of
arson. A capital sentencing hearing was held, after which
Seberger was sentenced to life imprisonment. Seberger filed
no direct appeal initially, but he subsequently filed a post-
conviction motion seeking a direct appeal. That relief was
granted, and Seberger’s direct appeal was filed with this court
in 2009.
In his appeal, Seberger alleged that the district court erred
in failing to make a determination as to the voluntariness of
statements made by Seberger in the days following the fire and
that he was denied effective assistance of counsel when his
trial counsel (1) advised him to waive his right to a jury trial,
(2) advised him not to testify at trial, and (3) failed to offer
evidence that his wife sold oil-based candles which could have
been the source of ignition of the fire.
We affirmed the district court’s decision. We found no merit
to Seberger’s arguments regarding the voluntariness of his
statements. We concluded that the record was insufficient to
evaluate his claims of ineffective assistance of counsel.
Shortly after we issued our opinion, Seberger, acting pro se,
filed a second motion for postconviction relief. In that motion,
he raised Sixth Amendment concerns regarding his trial and
appellate court representation. In its response to Seberger’s
motion, the State acknowledged that Seberger might be entitled
to an evidentiary hearing with regard to whether he was prop-
erly advised as to his right to testify, but otherwise argued that
the motion alleged only conclusions of law, not fact, and that
thus the claims were insufficient.
The district court denied Seberger’s motion in its entirety.
In so doing, it first addressed Seberger’s contention that
appellate counsel was ineffective for failing to raise those
allegations regarding the ineffectiveness of trial counsel which
Seberger had raised in his first motion for postconviction
relief. The district court concluded that Seberger’s appellate

STATE v. SEBERGER 	43
Cite as 284 Neb. 40
counsel was not ineffective for failing to raise all the issues
Seberger suggested simply because he wished counsel to
do so.
The district court then noted that all allegations of ineffec-
tive assistance of trial counsel were procedurally barred. The
court discussed the allegations as related to ineffectiveness of
appellate counsel and noted:
Having concluded that [Seberger’s] appellate counsel
were reasonable in restricting their claims to those they
selected to advance on appeal, this Court likewise finds
no egregious error or oversight on the part of [Seberger’s]
trial counsel that was overlooked by his appellate counsel
and/or the Nebraska Supreme Court. The case files and
records do not support [Seberger’s] claims. Furthermore,
his trial counsel were entitled to some degree of latitude
in their strategy of defending the case. This Court does
not find anything upon its review to overcome the pre-
sumption defense counsel acted as reasonable and compe-
tent attorneys in their representation of [Seberger].
As such, the district court denied Seberger’s postconviction
motion without an evidentiary hearing. Seberger appeals.
III. ASSIGNMENTS OF ERROR
Seberger assigns that the district court erred in (1) failing
to rule on his motion to amend his motion for postconviction
relief, (2) failing to find that he received ineffective assistance
of trial counsel, (3) failing to find that he received ineffective
assistance of appellate counsel, and (4) denying his motion for
postconviction relief without an evidentiary hearing.
IV. STANDARD OF REVIEW
[1,2] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.2 When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews factual findings of the trial court for
clear error.3
2 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
3 See State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).

44 	284 NEBRASKA REPORTS
V. ANALYSIS
1. motion to amend
[3] In his first assignment of error, Seberger argues that
the district court erred by not ruling on his pending motion
for leave to amend his motion for postconviction relief. This
motion to amend does not appear in the record before us. It is
incumbent upon an appellant to supply a record which supports
his or her appeal.4 And in this case, Seberger failed to do so.
Seberger notes in his brief that he placed the motion in ques-
tion in the prison mail system. But Nebraska does not have
a prison delivery rule,5 and the fact that Seberger allegedly
placed this motion to amend in the mail does not cause the
motion to automatically be filed with the district court.
Seberger’s first assignment of error is without merit.
2. ineffectiveness of tRial counsel
Before we address Seberger’s remaining assignments of
error, we note that while Seberger’s brief contains many argu-
ments, we will address only those that were alleged in his
postconviction motion.6
[4] In his second assignment of error, Seberger argues that
the district court erred in failing to find that his trial counsel
was ineffective. But, as was noted by the district court, any
claims of ineffective assistance of trial counsel are procedur-
ally barred. 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 review.7 And in this
case, Seberger was represented by different counsel on appeal
than he was at trial. Thus, any allegations of ineffective assist-
ance of trial counsel should have been raised in Seberger’s
direct appeal. Seberger’s second assignment of error is with-
out merit.
4 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
5 State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); State v. Parmar, 255
Neb. 356, 586 N.W.2d 279 (1998).
6 See State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
7 State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).

STATE v. SEBERGER 	45
Cite as 284 Neb. 40
3. ineffectiveness of appellate counsel
In his third and fourth assignments of error, Seberger con-
tends that his appellate counsel was ineffective in various par-
ticulars and that the district court erred in not granting him an
evidentiary hearing on those allegations. This case presents,
in part, a layered ineffectiveness claim in which Seberger
alleges, in part, the ineffectiveness of appellate counsel in
failing to raise certain claims of ineffective assistance of
trial counsel.
[5,6] A court must grant an evidentiary hearing on a post-
conviction motion when the motion contains factual allega-
tions which, if proven, 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 if the records and files in the case affirmatively show
that the movant is entitled to no relief—no evidentiary hearing
is required.9
(a) Failure to Raise Certain Issues on Appeal
Seberger’s first claim is that his appellate counsel was inef-
fective in that he failed to raise on appeal certain issues which
Seberger believed should have been raised. The district court
rejected this contention, finding that counsel was not ineffec-
tive simply for failing to raise every issue presented to him by
Seberger. We agree. In order to prove that appellate counsel
was ineffective, Seberger must specifically allege how appel-
late counsel’s failure to raise these issues violated Seberger’s
constitutional rights. He failed to do so, and this argument is
without merit.
(b) Sufficiency of Evidence
Seberger next argues that his appellate counsel erred in fail-
ing to raise on appeal that the evidence was insufficient to sup-
port his conviction. The records and files in this case plainly
do not support this conclusion—the evidence as presented
was clearly sufficient to support Seberger’s conviction. The
8 State v. Iromuanya, supra note 2.
9 Id.

46 	284 NEBRASKA REPORTS
record included Seberger’s admissions to spraying the victim
with gasoline, as well as eyewitnesses placing Seberger at the
victim’s home at the time of the fire. This argument is with-
out merit.
(c) Directed Verdict
In his postconviction motion, Seberger also contended that
his appellate counsel erred in failing to raise the ineffective-
ness of trial counsel in not properly moving for a directed
verdict at the close of the State’s evidence. The record in
this case shows that trial counsel did, in fact, move that the
case against Seberger be dismissed, both at the close of the
State’s evidence and after the defense rested. To the extent that
Seberger does not believe that counsel’s motion was sufficient,
he does not further explain such reasoning in his postconvic-
tion motion.
[7] We also note that in a criminal trial, after a court over-
rules a defendant’s motion for a dismissal or a directed verdict,
the defendant waives any right to challenge the trial court’s
ruling if the defendant proceeds with trial and introduces
evidence.10 But the defendant may challenge the sufficiency of
the evidence for the conviction.11 Because Seberger presented
a defense, he waived any right to raise on appeal the denial of
the motion to dismiss. And as we have noted above, the record
does not support any argument that the evidence was insufficient
to sustain his conviction. Seberger is not entitled to relief on
these grounds.
(d) Admission of Audiotape
Seberger next alleges that appellate counsel erred in fail-
ing to raise the ineffectiveness of trial counsel for not object-
ing to the admission of “[t]he audio tape,” and further erred
by failing to raise on appeal the error of the district court in
admitting such audiotape into evidence.12 In his postconvic-
tion motion, Seberger contended generally that this audiotape
10 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
11 Id.
12 Brief for appellant at 21.

STATE v. SEBERGER 	47
Cite as 284 Neb. 40
was “inaudible”; did not “reveal anything that could be used
against [him], due to its poor and paltry condition”; was “highly
prejudicial”; and lacked “probative value, because it existed
unlawfully.” Seberger appears to concede in that motion that his
counsel objected to the admission of this audiotape, but did not
do so “in a fashion whereas [sic] the court would have thought
long and hard of the admissions of this said tape.”
We reject Seberger’s allegations regarding the audiotape for
several reasons. Seberger does not identify in his motion which
audiotape he objects to. But our review of the record shows
that for each audiotape offered into evidence by the State,
Seberger’s counsel objected to its admission at trial.
We are not persuaded by Seberger’s assertion that his trial
counsel did not object in a sufficiently vehement and persua-
sive manner. The level of trial counsel’s perceived vehemence,
vigor, or persuasiveness is not relevant to an ineffective assist-
ance of counsel claim. Rather, we are concerned simply with
whether the proper objections were made.
We also note that Seberger fails to allege with any specific-
ity how the audiotape was “highly prejudicial” or how it could
be both prejudicial and “inaudible.” And Seberger fails to
explain how the audiotape “existed unlawfully.”
Seberger’s motion either alleges only conclusions of fact or
law or is not supported by the records and files in this case, and
as such, he is not entitled to relief.
(e) Testimony of Victim’s
Treating Physicians
Seberger next contends that his appellate counsel was inef-
fective by failing to raise errors relating to the admission of
the testimony and curriculum vitae of the victim’s treating
physicians David Voight, Chester Paul, Paul Gobbo, and John
Rudersdorf. Seberger appears to contend both that appellate
counsel was ineffective in failing to raise trial counsel’s inef-
fectiveness and also that appellate counsel erred in failing
to separately raise these issues on appeal. Though most of
his allegations are general in nature, Seberger makes more
specific allegations with respect to the testimony of Voight
and Gobbo.

48 	284 NEBRASKA REPORTS
Seberger 	contended 	in 	his 	postconviction 	motion 	that
Voight’s testimony was highly prejudicial and was inadmis-
sible and also that trial counsel erred by not objecting to this
testimony or by raising only “paltry” objections which should
have been further raised on appeal.
But Seberger does not explain in what way this testimony
was prejudicial, and we therefore conclude that Seberger’s
motion alleges only conclusions of law. The records and files
in this case do not support Seberger’s allegation that his coun-
sel did not properly object; the record shows that Seberger’s
counsel filed a motion in limine to exclude Voight’s testimony
and objected often during Voight’s testimony. As noted above,
the fact that Seberger finds these objections to be “paltry” does
not affect our analysis.
With respect to Gobbo, Sebeger asserts that Gobbo’s tes-
timony was inconsistent in that Gobbo first testified that the
victim’s cause of death could have been the fire, but later testi-
fied that her cause of death could also have been pneumonia.
A review of the record refutes that allegation—Gobbo testified
that in his opinion, the victim’s cause of death was pneumonia
caused by her burns.
With respect to Seberger’s more general contention that the
testimony of Paul and Rudersdorf, as well as all curriculum
vitae, was prejudicial, we note that Seberger does not explain
how this evidence was prejudicial.
We conclude that either Seberger has alleged conclusions of
law or the records and files do not support his allegations, and
he is not entitled to relief.
(f) Photographs of Victim
Seberger also alleges that his appellate counsel was ineffec-
tive by failing to raise errors relating to the admission of pho-
tographs of the victim into evidence. Seberger again contends
that his appellate counsel erred both in failing to raise on direct
appeal the admission of the photographs and in failing to raise
trial counsel’s ineffectiveness for failing to object to the photo-
graphs. Seberger contends generally that the photographs were
more prejudicial than probative.

STATE v. SEBERGER 	49
Cite as 284 Neb. 40
A review of the record shows that trial counsel filed a
motion in limine regarding these photographs and objected
to the introduction of the photographs at trial. And we have
reviewed the photographs and conclude that they are necessary
to an understanding of the medical testimony regarding the
severity of the victim’s injuries. As such, the records and files
in this case show that Seberger is also not entitled to relief on
these grounds.
(g) Admission of Other Evidentiary Items
In 	his 	postconviction 	motion, 	Seberger 	also 	generally
argued that
[t]he evidence submitted, offered, and admitted in this
criminal matter (i.e. audio tape, photographs, testimony
from witnesses, Death Certificate of victim, the cur-
riculum vitae, lab report, map, photos of tangible items,
diagrams, book of matches, gas cap and nozzle, VHS
tape, autopsy report, beer bottle, CPU, paper bag, billfold,
fire extinguisher, and medical report, etc.) was either
not objected to, or not challenged by counsels during
introduction.
(We note that some of these items are raised elsewhere in his
motion and may be addressed separately within this opinion.)
Seberger does not explain on what grounds any or all
of these pieces of evidence were inadmissible. As such, his
motion asserts only conclusions of law, and he is not entitled
to relief.
(h) Testimony of Law Enforcement
Seberger alleges that several members of law enforcement
who testified made statements that were either coerced or
concocted and that the evidence given by these witnesses was
conflicting. Seberger argues that his appellate counsel erred by
failing to raise trial counsel’s lack of objection to the testimony
of these individuals.
Though Seberger makes specific reference to particular law
enforcement personnel in his motion, he fails to allege which
of their statements or testimony was false or concocted and
further fails to explain how the evidence given by these

50 	284 NEBRASKA REPORTS
individuals was conflicting. As such, Seberger has alleged
only conclusions of law, which are insufficient to entitle him
to relief.
In addition to his general allegations, Seberger specifi-
cally takes issue with the testimony of an investigator with
Nebraska’s State Fire Marshal’s office. Seberger complains
that the State asked the fire investigator leading questions and
was allowed to offer the investigator’s opinion testimony. In
addition, Seberger argued in his postconviction motion that the
investigator gave inconsistent statements throughout his testi-
mony. Seberger also contends that this testimony was hearsay
because the State failed to show that it was “not hearsay” under
Neb. Rev. Stat. § 27-801(4) (Reissue 2008).
As with his more general allegations concerning law enforce-
ment testimony, Seberger fails to allege which statements made
by the investigator were the result of leading questions, which
testimony was opinion testimony, why that opinion testimony
was in error, and what statements made by the investigator
were inconsistent. As to his hearsay argument, Seberger mis-
apprehends the definition of hearsay statements as opposed
to those that are “not hearsay” under § 27-801(4). In sum,
Seberger again alleges only conclusions of law, which are
insufficient to entitle him to postconviction relief.
(i) Testimony of Other Witnesses
Seberger also alleges that the testimony given by other wit-
nesses was variously outside the scope of the criminal mat-
ter, irrelevant, prejudicial, filled with redundant questioning,
speculative, or hearsay and that appellate counsel erred by
failing to assign on appeal trial counsel’s failure to object to
this evidence. But in each instance, Seberger fails to allege
the testimony or statements to which he objected. So Seberger
again alleged only conclusions of law, which are insufficient to
entitle him to relief.
(j) Vehicle Stop and Seizure
Seberger argues that his appellate counsel erred in failing to
allege trial counsel’s ineffectiveness in failing to file a motion
to suppress the seizure of his person following an illegal traf-
fic stop. But a review of the record contradicts Seberger’s

STATE v. SEBERGER 	51
Cite as 284 Neb. 40
assertion that the stop was illegal. The officer who effected the
stop on Seberger testified that he was dispatched to the vic-
tim’s residence on the report of a burglary in progress. While
en route, a second dispatch reported a fire at the residence.
The officer testified that as he approached the residence, he
saw flames emanating from the first floor of the residence
and further observed a vehicle backing out of the driveway of
the residence. When the vehicle was stopped, the driver was
identified as Seberger. The records and files in this case clearly
establish that there was probable cause to support the stop of
Seberger’s vehicle and show that Seberger is not entitled to
relief on this allegation.
(k) Prosecutorial Misconduct
Seberger alleges that appellate counsel was ineffective for
failing to raise his trial counsel’s ineffectiveness in not object-
ing to the misconduct of the prosecutor during closing argu-
ments. In particular, Seberger complains that
[r]emarks like, “kudos to the defendant who at 10:35
p.m. thought it might be wise to take her back to court,”
“intentionally doing an act without just cause,” and “he
must have smelled gasoline on her,” were highly prejudi-
cial and egregious in nature because it imparted untrust-
worthiness from the bench trial and proceedings held
during arguments.13
Seberger compares these statements to the ones made in State
v. Barfield.14 He noted in his postconviction motion that this
court was “not having it” in Barfield and should also not now
“condone this prejudicial and egregious act.”
We have reviewed the closing arguments in this case. They
do not approach the concerns noted by this court in Barfield, in
which we recognized that “‘[h]yperbole in closing arguments
is hardly rare, and juries should be given credit for the ability
to filter out oratorical flourishes.’”15 We went on in Barfield to
13 Id. at 31-32.
14 State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
15 Id. at 513, 723 N.W.2d at 313-14.

52 	284 NEBRASKA REPORTS
condemn the closing arguments of the prosecution, which not
only involved extreme hyperbole with respect to the defendant,
but also called all defense attorneys, including the defendant’s
counsel, liars. We noted:
[T]he remarks made by the prosecutor, especially the
prosecutor’s statement to the effect that defense lawyers
are liars, are of a very serious nature. In addition, the
prosecutor’s unacceptable remarks do not reflect a single,
isolated instance, but were numerous. Moreover, because
the disparaging remark as to defense attorneys was made
during rebuttal, defense counsel had no opportunity to
respond to and mitigate the last impression left with the
jury before deliberations: that defense counsel, like all
defense lawyers, was a liar.16
Conversely, this case presents, at most, mild hyperbole
used by the prosecution in making its rebuttal. And we note,
too, that unlike the case in Barfield, which was tried to a jury,
Seberger’s case was tried to the bench. We will presume that
the trial court was able to disregard any hyperbole and focus
on the evidence presented on the issue on Seberger’s guilt. The
records and files show that Seberger is not entitled to relief as
to the prosecution’s closing arguments.
(l) Intoxication Defense
Seberger alleged in his postconviction motion that his appel-
late counsel was ineffective in failing to raise trial counsel’s
ineffectiveness in not “mount[ing] a vigorous defense” on the
issue of Seberger’s intoxication. But the record shows that trial
counsel asked questions relating to Seberger’s level of intoxi-
cation and addressed the issue in his closing argument. Also
lending support to the conclusion that trial counsel addressed
this sufficiently is the specific finding made by the trial court
that Seberger had been drinking alcohol on the evening in
question. Moreover, the record shows that during sentencing,
the three-judge panel noted that intoxication was a mitigating
factor for the imposition of the death penalty. As we stated
earlier, to the extent Seberger argues that his counsel was not
16 Id. at 515, 723 N.W.2d at 315.

STATE v. SEBERGER 	53
Cite as 284 Neb. 40
vigorous enough in presenting that defense, we reject this
contention. The records and files show that the intoxication
defense was adequately raised and that Seberger is not entitled
to relief on that basis.
(m) Discovery Violation
Seberger also asserted in his postconviction motion that
“[t]he prosecuting attorney obviously violated the discovery
rules and order of the court by failing to provide the defense
with a copy of each one of the named above [sic] offi-
cers[’] investigative and police reports prior to their testimony”
and that such violated his due process rights under the 14th
Amendment to the U.S. Constitution. Seberger argued that
these reports could have been used to impeach the officers’
testimony and that the failure to provide the reports means that
all of this testimony was inadmissible and should have been
stricken. Seberger further alleged that his trial counsel should
have known the reports had not been provided and that appel-
late counsel erred in not raising the trial court’s error and the
prosecutor’s misconduct on appeal.
To the extent Seberger alleges that any failure of the State
to provide the investigative reports of any officer would have
resulted in the inadmissibility of that officer’s testimony, he
is incorrect. Consistent with the 14th Amendment, a prosecu-
tor must fail to turn over evidence “favorable to an accused”17
before a due process violation is found to have occurred.
And in this case, Seberger has failed to allege any facts
which would indicate what information was in those reports
that might be favorable to him, let alone allege what informa-
tion might be included which could be used to impeach the
testimony of these officers. As before, Seberger alleges conclu-
sions of law. Given the absence of more specific allegations
as to what these reports might include, we must conclude that
Seberger is simply fishing for evidence which he hopes might
aid him in obtaining postconviction relief. This he cannot do.
Seberger is not entitled to relief on these grounds.
17 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).

54 	284 NEBRASKA REPORTS
(n) Right to Testify
Finally, Seberger alleged in his postconviction motion that
his appellate counsel erred in failing to raise trial coun-
sel’s failure “to provide objectively reasonable advice to
[Seberger] so that he could make a knowing, intelligent, and
voluntary waiver of the right to testify in his own behalf.”
Seberger further averred that had he received such advice,
he would have testified in his own behalf, and that this tes-
timony would have established his innocence. In particular,
Seberger contended that he would have testified “that he did
not threatened [sic] the victim; that he did not take part in any
derogatory tactics inducive [sic] of threatening overtones; and
that he did not pose a threat to the victim in any shape, form
or fashion.”
We note that Seberger claimed in his motion that his appel-
late counsel failed to assign and preserve this issue on direct
appeal. But a review of Seberger’s direct appeal shows that
appellate counsel did raise this issue, among other claims of
ineffective assistance of counsel. This court declined to reach
the issue on direct appeal, concluding that the record was
insufficient to analyze it. Seberger alleged again in his postcon-
viction motion that he was not advised of this right and that if
he had been, he would have testified.
This court recently decided State v. Iromuanya,18 which pre-
sented a similar procedural posture—the defendant claimed in
his postconviction motion that trial counsel was ineffective in
failing to advise him whether he should testify, and that motion
for relief was subsequently denied without an evidentiary
hearing. In that case, we concluded that the denial was proper
because a review of the record affirmatively showed that the
defendant had been advised, in that instance by the district
court, of his right to testify in his own behalf; the record fur-
ther showed the defendant had waived that right.
But in this case, we do not have such a record—there is
no indication on the record before us whether Seberger was
properly advised of and waived his right to testify in his own
behalf. We noted that we lacked such a record on direct appeal,
18 State v. Iromuanya, supra note 2.

STATE v. ABRAM 	55
Cite as 284 Neb. 55
and because there was no evidentiary hearing granted in this
case, we still lack such a record.
Based upon his allegations, we conclude that Seberger has
adequately pled facts which, if true, would have been a viola-
tion of his constitutional right to testify in his own behalf. As
such, the district court erred when it failed to grant Sebeger an
evidentiary hearing on this issue.
VI. CONCLUSION
The district court erred in denying Seberger an evidentiary
hearing on his allegation that he was not properly advised of
his right to testify. We reverse the decision of the district court
on this point and remand the cause for an evidentiary hearing
on this single allegation. In all other respects, the decision of
the district court is affirmed.
affiRmed in paRt, and in paRt ReveRsed and
Remanded foR fuRtheR pRoceedings.
wRight, J., not participating.
state of nebRaska, appellee, v.
R ayshawn c. abRam, appellant.
815 N.W.2d 897
Filed July 13, 2012. 	No. S-11-057.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
4. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
5. Jurisdiction: Courts: Appeal and Error. After a party perfects an appeal to an
appellate court, the lower courts are generally divested of subject matter jurisdic-
tion over that case.
6. ____: ____: ____. The mere filing of a petition for certiorari does not auto-
matically stay proceedings in a lower court and does not divest a trial court
of jurisdiction.