State v. Kellogg

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
State of Nebraska, appellee, v. Keiandre T.
Kellogg, appellant.
___ N.W.3d ___
Filed May 29, 2026. 	No. S-25-310.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law and
fact. When reviewing 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, 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.
3. Postconviction: Right to Counsel: Appeal and Error. An appellate
court reviews the failure of the district court to provide court-appointed
counsel in a postconviction proceeding for an abuse of discretion.
4. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
5. Postconviction: Constitutional Law: Proof. Under the Nebraska
Postconviction Act, an evidentiary hearing is not required when (1) the
motion does not contain factual allegations which, if proved, constitute
an infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:44 AM CDT

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
6. Effectiveness of Counsel: Proof. In order to establish a right to post-
conviction relief based on a claim of ineffective assistance of coun-
sel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to
show that counsel’s performance was deficient and that counsel’s defi-
cient performance prejudiced the defense in his or her case.
7. ____: ____. To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
8. 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.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
9. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
10. Trial: Mental Competency. The competency standard includes both (1)
whether the defendant has a rational as well as factual understanding of
the proceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with a reason-
able degree of rational understanding.
11. Mental Competency. There are no fixed or immutable signs of incom-
petence, and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental conditions, and
suicidal tendencies.
12. Effectiveness of Counsel: Mental Competency: Proof. In order to
demonstrate prejudice from counsel’s failure to seek a competency
hearing, the defendant must demonstrate that there is a reasonable prob-
ability that he or she was, in fact, incompetent and that the trial court
would have found the defendant incompetent had a competency hearing
been conducted.
13. Postconviction: Right to Counsel. Under the Nebraska Postconviction
Act, it is within the discretion of the trial court to decide whether coun-
sel shall be appointed to represent the defendant.
14. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. Where the alleged errors in the postconviction petition before
the district court are either procedurally barred or without merit, thus
establishing that the postconviction proceeding contained no justiciable

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
issue of law or fact, it is not an abuse of discretion to fail to appoint
postconviction counsel for an indigent defendant.
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed.
Keiandre T. Kellogg, pro se.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, C.J., Cassel, Stacy, Papik, and Freudenberg, JJ.,
and Hall and Smith, District Judges.
Freudenberg, J.
INTRODUCTION
Keiandre T. Kellogg, appealing pro se, argues that the dis-
trict court erred when it denied his motion for postconviction
relief without an evidentiary hearing. Specifically, Kellogg
argues that the district court erred in finding that the allega-
tions in his motion were not sufficient to demonstrate that
his counsel was ineffective for failing to raise a competency
defense. Relatedly, Kellogg argues the district court erred in
failing to appoint counsel to represent him in the postconvic-
tion proceedings.
BACKGROUND
Initial Charges and Pleas
In August 2018, Kellogg was charged with first degree
murder, a Class IA felony; use of a deadly weapon (firearm) to
commit a felony, a Class IC felony; and possession of a deadly
weapon by a prohibited person, a Class ID felony. The charges
stem from an incident in June 2018 where Kellogg approached
a man at a service station in Omaha, Nebraska; drew a pistol;
and shot and killed the man.
In September 2019, pursuant to a plea agreement, the State
filed an amended information reducing Kellogg’s first degree

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
murder charge to second degree murder, a Class IB felony.
Pursuant to the amended information, Kellogg pled guilty to
all three charges.
The court held a plea hearing where it conducted a plea
colloquy with Kellogg. The court asked Kellogg if he had
“ever been treated for a mental illness of any kind,” to which
Kellogg responded, “No.” Kellogg also answered that he was
not suffering from any kind of mental or emotional disorder.
The court advised Kellogg of the constitutional protections
he would give up by entering the guilty pleas; Kellogg said
he understood that he was giving up these rights by plead-
ing guilty.
The court confirmed that Kellogg understood each of the
three charges against him before explaining the penalties for
each offense. Kellogg responded that he understood the pos-
sible penalties for each offense: up to life in prison for second
degree murder, a minimum term of 5 years and maximum
term of 50 years in prison for use of a deadly weapon (fire-
arm) to commit a felony, and a minimum term of 3 years and
maximum term of 50 years in prison for possession of a deadly
weapon by a prohibited person.
Kellogg acknowledged that he had fully discussed the case
with his attorneys and was satisfied with their representation.
Kellogg stated that he did not agree with the State’s factual
basis, but he conceded that he shot the victim in Douglas
County, Nebraska, and that he did so intentionally but without
premeditation.
The court found that Kellogg voluntarily, knowingly, and
intentionally entered the guilty pleas. The court therefore found
Kellogg guilty on all three charges.
Sentencing
In December 2019, Kellogg was sentenced. At the sentenc-
ing hearing, the court received a letter from Kellogg’s counsel
and a sentencing memorandum from the State. The court heard

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
arguments from counsel on both sides and heard from the vic-
tim’s mother.
The 	letter 	from 	Kellogg’s 	counsel, 	exhibit 	1, 	detailed
Kellogg’s family history of mental illness, including his father’s
and paternal grandmother’s suffering from paranoid schizo-
phrenia. The letter stated that Kellogg’s mother “has suspected
schizophrenia since [Kellogg] was 13 years old and experi-
enced extreme mood swings.” The letter further explained
that Kellogg was shot in 2012 and that “[i]t would not be a
stretch to believe that he suffers from severe [post-traumatic
stress disorder].” Kellogg’s attorney also shared reports from
Kellogg’s girlfriend and family concerning Kellogg’s mental
health, including his becoming angry quickly, being “seriously
depressed,” hearing voices, and locking himself in a bathroom
with a knife.
Based on these reports and observations, Kellogg’s attor-
ney shared his assertion that mental health played a role in
Kellogg’s actions in this case and asked the court for a lower
sentence. Kellogg’s attorney referenced the presentence inves-
tigation report, which he stated showed that Kellogg exhibited
symptoms consistent with “schizophrenia, depressive disorder,
manic episodes, panic disorder, a learning disorder, and even
mental retardation.” Further, Kellogg’s attorney noted that
the probation officer wrote that a consultation with a mental
health specialist was “st[r]ongly recommended.”
The State argued at the sentencing hearing that this was the
first time mental illness was brought up and that Kellogg did
not plead not guilty by reason of insanity.
After considering the evidence and arguments presented,
the court announced Kellogg’s sentence. On count 1, second
degree murder, Kellogg was sentenced to 70 years’ to life
imprisonment. On count 2, use of a deadly weapon (firearm)
to commit a felony, Kellogg was sentenced to 20 to 30 years’
imprisonment. On count 3, possession of a deadly weapon by
a prohibited person, Kellogg was sentenced to 5 to 10 years’
imprisonment.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
Direct Appeal
Kellogg appealed his sentences with the assistance of trial
counsel, asserting that his sentences were excessive. Kellogg
did not argue on direct appeal that he was incompetent to stand
trial or plead but did argue that the trial court failed to con-
sider his mental health issues as a mitigating factor in his
sentences. His sentences were summarily affirmed on appeal
in June 2020.
Motion for Postconviction Relief
Kellogg, pro se, timely moved for postconviction relief.
Kellogg asserted that his convictions were in violation of
his 5th, 6th, and 14th Amendment rights guaranteed by the
U.S. Constitution and the Nebraska Constitution. Specifically,
Kellogg asserted that he was denied his Sixth Amendment
right to effective assistance of counsel. Kellogg argued his trial
counsel was ineffective for failing to file a motion to quash
the information due to a date defect, failing to advise him of a
competency defense and present a competency defense to the
court, failing to interview witnesses who may have supported
a self-defense claim, and withholding from him important
information about a possible self-defense claim. Trial coun-
sel’s failure to file a motion to quash and pursue a self-defense
claim are not raised on appeal.
In March 2025, the district court denied Kellogg’s motion
for postconviction relief. The court found that an evidentiary
hearing was not needed on Kellogg’s motion for postconvic-
tion relief, because the court determined that “the records and
files of the case show that [Kellogg] is entitled to no relief or
that his allegations are insufficient to entitle him to relief.”
The court found that the records and files affirmatively
showed Kellogg’s trial counsel was not ineffective by failing
to advise him of an incompetency defense, because the allega-
tions in his motion were not sufficient to demonstrate a reason-
able probability that he was, in fact, incompetent and the trial
court would have found him incompetent had a competency

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
hearing been conducted. The court explained that a person is
competent to plead if he or she has the capacity to understand
the nature and object of the proceedings against him or her,
to comprehend his or her own condition in reference to such
proceedings, and to make a rational defense.
The court relied heavily on our decision in State v. Harms, 1
a case the court found to be similar in nature to Kellogg’s case.
The assertion that Kellogg potentially suffered from mental
health issues, the court explained, did not provide a basis for
showing that he was incompetent to stand trial at the time of
his pleas and at sentencing. The court also noted that Kellogg’s
responses to the plea colloquy suggested he was oriented and
understood the proceedings at that time. The court ultimately
found that Kellogg’s allegations were insufficient to dem-
onstrate a reasonable probability that he was incompetent;
therefore, the court found he failed to properly allege he was
prejudiced by his trial counsel’s failure to raise a competency
defense. As a result, the court denied Kellogg relief on his
motion for postconviction relief on the grounds that his trial
counsel was ineffective for failing to raise and pursue a com-
petency defense without an evidentiary hearing.
Kellogg appeals. In his praecipe for transcript, Kellogg
requested two separate motions for the appointment of counsel
to be part of the record on appeal. An employee of the district
court clerk’s office noted that the motions were requested but
were not part of the record.
ASSIGNMENTS OF ERROR
Kellogg, appealing pro se, asserts, restated and consoli-
dated, that the district court erred in (1) denying his motion
for postconviction relief on the grounds of ineffective assis-
tance of counsel without an evidentiary hearing and (2) deny-
ing him the appointment of counsel during the postconvic-
tion proceedings.
1 State v. Harms, 315 Neb. 445, 996 N.W.2d 859 (2023).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. 2
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 3 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 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
[3] An appellate court reviews the failure of the district
court to provide court-appointed counsel in a postconviction
proceeding for an abuse of discretion. 7
ANALYSIS
On appeal, Kellogg asserts that the district court erred in
denying his motion for postconviction relief without an evi-
dentiary hearing and without appointing counsel during the
postconviction proceedings. Kellogg’s motion for postconvic-
tion relief alleged, as relevant here, that his trial counsel was
ineffective for failing to pursue a competency defense. For the
reasons that follow, we disagree with Kellogg’s arguments.
2 State v. Trail, 319 Neb. 84, 21 N.W.3d 61 (2025), cert. denied No.
25-6512, 2026 WL 1052085 (U.S. Apr. 20, 2026).
3 State v. Keadle, 320 Neb. 583, 28 N.W.3d 524 (2025).
4 Id.
5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
6 State v. Keadle, supra note 3.
7 State v. Cox, 314 Neb. 104, 989 N.W.2d 65 (2023).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
Denial of Motion for Postconviction Relief
Without Evidentiary Hearing
Kellogg asserts that the district court erred in denying his
motion for postconviction relief without an evidentiary hear-
ing. Kellogg specifically argues the district court erred by
finding that his trial counsel was not ineffective for failing to
pursue a competency hearing before he pled guilty pursuant
to the plea agreement.
[4,5] Under our postconviction statutes, defendants in cus-
tody 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.” 8 In
Nebraska, postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional viola-
tions that render the judgment void or voidable. 9 The Nebraska
Postconviction Act requires a court to grant a prompt hearing
on a motion for postconviction relief “[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 . . . .” 10 Under
this standard, an evidentiary hearing is not required when
(1) the motion does not contain factual allegations which, if
proved, constitute an infringement of the movant’s constitu-
tional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without sup-
porting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. 11
[6-8] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
defendant has the burden, in accordance with Strickland, to
show that counsel’s performance was deficient and that coun-
sel’s deficient performance prejudiced the defense in his or
8 See Neb. Rev. Stat. § 29-3001(1) (Cum. Supp. 2024).
9 State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).
10 See § 29-3001(2).
11 State v. Lotter, supra note 9.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
her case. 12 To show that counsel’s performance was deficient,
a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crim-
inal law. 13 To show prejudice in a claim of ineffective assis-
tance 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. 14 A rea-
sonable probability is a probability sufficient to undermine
confidence in the outcome. 15
[9-12] We have said that a person is competent to plead or
stand trial if he or she has the capacity to understand the nature
and object of the proceedings against him or her, to compre-
hend his or her own condition in reference to such proceedings,
and to make a rational defense. 16 The competency standard
includes both (1) whether the defendant has a rational as well
as factual understanding of the proceedings against him or her
and (2) whether the defendant has sufficient present ability
to consult with his or her lawyer with a reasonable degree of
rational understanding. 17 There are no fixed or immutable signs
of incompetence, and a defendant can meet the modest aim
of legal competency, despite paranoia, emotional disorders,
unstable mental conditions, and suicidal tendencies. 18 In order
to demonstrate prejudice from counsel’s failure to seek a com-
petency hearing, the defendant must demonstrate that there is a
reasonable probability that he or she was, in fact, incompetent
and that the trial court would have found the defendant incom-
petent had a competency hearing been conducted. 19
12 State v. Keadle, supra note 3.
13 Id.
14 Id.
15 Id.
16 State v. Harms, supra note 1.
17 Id.
18 Id.
19 State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
In Harms, which the district court relied on here, we
affirmed the denial of a motion for postconviction relief
without an evidentiary hearing. 20 The defendant in Harms
asserted that he received ineffective assistance of counsel
in part for failure to investigate and assert a competency
defense. 21 The Nebraska Court of Appeals affirmed the denial
of the defendant’s motion for postconviction relief without
an evidentiary hearing, finding that the defendant had made
generalized allegations regarding his mental health, includ-
ing alcoholism, depression, post-traumatic stress disorder, and
a history of suicide attempts but that he had failed to make
factual allegations sufficient to tie his alleged medical issues
to a lack of competency. 22 On further review, we affirmed,
finding: “Although [the defendant] made allegations regarding
his mental history, he made no allegations that show that the
conditions from which he had suffered prevented him from
being competent to stand trial in the sense of being able to
understand the proceedings and assist in his defense.” 23
Here, the plea colloquy demonstrates Kellogg had a rational
as well as a factual understanding of the proceedings against
him and had sufficient present ability to consult with his trial
counsel with a reasonable degree of rational understanding.
The trial court inquired into whether Kellogg understood
his plea options and his constitutional rights to a jury trial,
whether he had ever been treated for mental illness, and
whether he was suffering the effects of any kind of mental
or emotional disorder. Kellogg’s answers to each of these
inquires satisfied the trial court that Kellogg made his guilty
pleas freely, knowingly, intelligently, and voluntarily. Kellogg
also was able to express that he did not agree with the State’s
20 State v. Harms, supra note 1.
21 Id.
22 State v. Harms, No. A-22-393, 2023 WL 2656390 (Neb. App. Mar. 28,
2023) (selected for posting to court website).
23 State v. Harms, supra note 1, 315 Neb. at 457, 996 N.W.2d at 867.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. KELLOGG
Cite as 321 Neb. 502
factual basis, but agreed to the basic facts underlying his
charges and, ultimately, guilty pleas.
Further, Kellogg does not show that there was a reasonable
probability he would have been found incompetent had a com-
petency hearing been requested by his trial counsel. Much like
the defendant in Harms, Kellogg makes generalized allegations
about his family history of mental health issues and vague
possibilities that he may suffer from conditions such as schizo-
phrenia, depression, and post-traumatic stress disorder. None
of Kellogg’s allegations show that the conditions from which
he may or may not have suffered prevented him from being
competent to plead guilty. In short, Kellogg has not made suf-
ficient allegations to show that he had a viable competency
defense. Accordingly, Kellogg cannot show his counsel was
ineffective for failing to request a competency hearing.
We see no error in the district court’s denial of Kellogg’s
motion for postconviction relief without an evidentiary hear-
ing. Kellogg’s allegations failed to tie his potential mental
health issues to a lack of competency at the time he entered the
guilty pleas. As such, the district court did not err in denying
Kellogg’s motion for postconviction relief without an eviden-
tiary hearing.
Failure to Appoint Counsel for
Postconviction Hearing
[13,14] Kellogg also claims the district court erred when
it denied him the appointment of counsel for the postconvic-
tion proceedings. Under the Nebraska Postconviction Act, it
is within the discretion of the trial court to decide whether
counsel shall be appointed to represent the defendant. 24 Where
the alleged errors in the postconviction petition before the
district court are either procedurally barred or without merit,
thus establishing that the postconviction proceeding con-
tained no justiciable issue of law or fact, it is not an abuse
24 State v. Cox, supra note 7.

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STATE v. KELLOGG
Cite as 321 Neb. 502
of discretion to fail to appoint postconviction counsel for
an indigent defendant. 25 Because we have determined that
Kellogg’s motion for postconviction relief contained no justi-
ciable issue of law or fact, the district court did not abuse its
discretion by failing to appoint Kellogg with counsel for the
postconviction proceedings.
CONCLUSION
For the foregoing reasons, the district court’s denial of
Kellogg’s motion for postconviction relief without an eviden-
tiary hearing is affirmed.
Affirmed.
Bergevin and Vaughn, JJ., not participating.
25 Id.