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07/13/2018 09:10 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                 STATE v. McGUIRE
                                                 Cite as 299 Neb. 762




                                        State of Nebraska, appellee, v.
                                        Shawn A. McGuire, appellant.
                                                   ___ N.W.2d ___

                                         Filed April 26, 2018.    No. S-17-257.

                1.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
                    dentiary hearing on a motion for postconviction relief, the trial judge, as
                    the trier of fact, resolves conflicts in the evidence and questions of fact.
                    An appellate court upholds the trial court’s factual findings unless they
                    are clearly erroneous.
                2.	 Postconviction: Appeal and Error. Whether a claim raised in a post-
                    conviction proceeding is procedurally barred is a question of law. When
                    reviewing a question of law, an appellate court resolves the question
                    independently of the lower court’s conclusion.
                3.	 Effectiveness of Counsel. A claim that defense counsel provided inef-
                    fective assistance presents a mixed question of law and fact.
                4.	 Effectiveness of Counsel: Appeal and Error. 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
                    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
                    conclusion.
                5.	 ____: ____. When a defendant’s trial counsel is different from his or
                    her appellate counsel, all issues of ineffective assistance of trial counsel
                    that are known to the defendant or are apparent from the record must be
                    raised on direct appeal. If the issues are not raised, they are procedur-
                    ally barred.
                6.	 Appeal and Error. An alleged error must be both specifically assigned
                    and specifically argued in the brief of the party asserting the error to be
                    considered by an appellate court.
                7.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail
                    on a claim of ineffective assistance of counsel under Strickland v.
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             Nebraska Supreme Court A dvance Sheets
                     299 Nebraska R eports
                             STATE v. McGUIRE
                             Cite as 299 Neb. 762

     Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
     the defendant must show that his or her counsel’s performance was
     deficient and that this deficient performance actually prejudiced the
     defendant’s defense.
 8.	 Effectiveness of Counsel: Appeal and Error. When a claim of inef-
     fective assistance of appellate counsel is based on the failure to raise
     a claim on appeal of ineffective assistance of trial counsel (a layered
     claim of ineffective assistance of counsel), an appellate court will look
     at whether trial counsel was ineffective under the test in Strickland v.
     Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
 9.	 Trial: Attorneys at Law. Trial counsel is afforded due deference to
     formulate trial strategy and tactics.
10.	 Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
     determining whether trial counsel’s performance was deficient, there is
     a strong presumption that counsel acted reasonably.
11.	 Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
     (Reissue 2016), relevant evidence may be excluded if its probative value
     is substantially outweighed by the danger of unfair prejudice.

  Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.

   A. Michael Bianchi for appellant.

   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.

  Heavican, C.J., Miller-Lerman, Stacy, and Funke, JJ., and
Colborn and Samson, District Judges.

   Colborn, District Judge.
                       INTRODUCTION
   Shawn A. McGuire appeals from the denial of his motion
for postconviction relief following an evidentiary hearing. He
claims the district court erred in failing to find that his trial
and appellate counsel were ineffective and in failing to make
rulings on certain claims raised in his postconviction motion.
He also claims his postconviction counsel provided ineffective
assistance at the evidentiary hearing. For the reasons set forth
below, we affirm the judgment of the district court.
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          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
                       STATE v. McGUIRE
                       Cite as 299 Neb. 762

                      BACKGROUND
   Following a jury trial, McGuire was found guilty of sec-
ond degree murder under a theory of aiding and abetting,
use of a deadly weapon to commit a felony, and criminal
conspiracy to unlawfully possess and deliver a controlled
substance. The convictions were based on his involvement
with a cocaine exchange that resulted in the murder of Cesar
Sanchez-Gonzales (Sanchez) by Robert Nave. McGuire is
currently serving a combined sentence of 105 to 125 years
in prison.
                        Trial Evidence
   On October 22, 2010, a law enforcement task force was con-
ducting surveillance on an expected drug deal at an automobile
repair shop (auto shop) in South Omaha, Nebraska. The auto
shop was run by Sanchez, who was an informant for the task
force. The supplier, Cesar Ayala-Martinez, had agreed to sell
11⁄2 kilograms of cocaine to Sanchez in exchange for $40,500.
Sanchez was then going to sell the cocaine to McGuire.
McGuire had purchased cocaine from Sanchez in a similar
manner a few weeks prior to this date.
   The evidence showed that McGuire arrived at the auto
shop driving a white Chrysler Sebring and was seen convers-
ing with the occupants of a white Nissan. Abdul Vann, Kim
Thomas, and Nave were also present outside the auto shop.
Sometime after McGuire entered the auto shop, a member
of the task force observed Nave put his hood over his head,
pull a handgun from his waistband, and proceed into the auto
shop. As soon as Nave entered, McGuire almost instanta-
neously exited.
   Ayala-Martinez testified that within seconds of McGuire’s
exiting, Nave entered the office with his gun drawn. Sanchez
pulled a revolver out of his desk drawer and was attempt-
ing to open the chamber. Before Sanchez could raise his
weapon, Nave shot Sanchez two or three times. Nave then
pointed the gun at Ayala-Martinez and asked for the cocaine.
Ayala-Martinez pointed to the cocaine, and Nave ran out with
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                              STATE v. McGUIRE
                              Cite as 299 Neb. 762

it. Sanchez later died due to the gunshot wounds inflicted
by Nave.
   The task force observed Nave and Thomas running from
the building. They both ran straight to the Sebring, where
McGuire was waiting in the driver’s seat. McGuire sped off
at a high rate of speed. Members of the task force pursued
the vehicle, which crashed head on into a pickup truck shortly
thereafter. After a short foot pursuit, all three occupants of the
Sebring were apprehended.
   A search of McGuire revealed a roll of cash with $20 and
$50 bills on the outside and regular paper on the inside, mak-
ing the cash roll appear to contain a larger amount of cash.
Officers also found the keys to the Sebring, an electronic igni-
tion key for a Nissan, and approximately $3,800 in cash.
   A search of the white Nissan revealed a yellow sporting
goods store bag containing a box of “CCI” ammunition with
10 rounds missing, a pair of black gloves, and packaging mate-
rial for black duct tape. On the driver’s side of the Sebring,
10 live rounds of ammunition were found, marked “9mm CCI
Luger.” Inside the Sebring, officers located black duct tape
consistent with the packaging found in the Nissan.
   Officers also found four handguns inside the Sebring, includ-
ing a Smith & Wesson 9-mm pistol. We note that our opinion
on direct appeal1 incorrectly stated that the handguns were
found in the Nissan. The record reflects that they were found
in the Sebring. A firearms expert testified that the bullet recov-
ered from Sanchez’ body was fired from the 9-mm Smith &
Wesson. Each of the four casings found in the auto shop were
also from the 9-mm Smith & Wesson.
   The white Nissan was owned by a woman who testified
that she was dating McGuire and had allowed him to bor-
row her car on the date in question. The previous night, she
had gone to a sporting goods store to purchase bullets for the
shooting range. She had placed the ammunition, which was in

 1	
      See State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. McGUIRE
                               Cite as 299 Neb. 762

a yellow bag, in her garage and did not realize it was missing
until after she was questioned by investigators.
                          Direct A ppeal
   Following his convictions, McGuire obtained new counsel
and appealed. He assigned, as relevant to this postconviction
proceeding, that the district court erred in refusing to give his
proposed jury instruction, which added “‘not upon a sudden
quarrel’” to the language of the second degree murder instruc-
tion.2 We agreed on direct appeal that the instruction given
by the district court was an incorrect statement of the law in
that it did not require the jury to consider whether Nave killed
Sanchez upon a sudden quarrel, which could have reduced
McGuire’s conviction to manslaughter. However, we found
that this error did not result in prejudice to McGuire, because
there was no evidence at trial upon which a jury could reason-
ably conclude that Sanchez was killed as a result of a sudden
quarrel. We affirmed McGuire’s convictions and sentences in
all respects.3
                   Postconviction Proceedings
   On February 6, 2015, McGuire filed a timely motion for
postconviction relief, alleging that his trial counsel was inef-
fective in (1) failing to properly advise McGuire regarding his
right to testify at trial, (2) failing to depose certain witnesses
prior to trial, (3) failing to call certain witnesses at trial, (4)
failing to investigate and question investigators about the
existence of gunshot residue on accomplices, (5) failing to
properly cross-examine one of the task force members con-
cerning McGuire’s presence and affiliation with accomplices
just prior to the shooting, (6) failing to cross-examine Ayala-
Martinez regarding where Nave pointed the gun when he
entered the auto shop, (7) failing to challenge the admission
into evidence of the 9-mm ammunition found in the Nissan,

 2	
      Id. at 504, 837 N.W.2d at 780.
 3	
      See State v. McGuire, supra note 1.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                        STATE v. McGUIRE
                        Cite as 299 Neb. 762

and (8) failing to provide discovery materials to McGuire,
which prevented him from assisting in his own defense. He
further alleged that his appellate counsel was ineffective
for failing to raise trial counsel’s ineffectiveness in all of
these respects.
   An evidentiary hearing was held in the district court, dur-
ing which the depositions of McGuire and his trial counsel
were entered into evidence. Following the hearing, the district
court issued a written order denying McGuire’s postconviction
motion. It found that appellate counsel was not ineffective
for failing to raise the various claims of ineffective assistance
of trial counsel because trial counsel was not ineffective.
McGuire now appeals from that order.

                   ASSIGNMENTS OF ERROR
   McGuire claims the district court erred in failing to find
that his trial and appellate counsel were ineffective, and in
failing to rule on certain claims raised in his postconviction
motion. More specifically, he claims (1) trial counsel was
ineffective in (a) failing to properly examine Ayala-Martinez
about where Nave pointed his gun prior to shooting Sanchez,
(b) failing to call certain witnesses who would have provided
testimony confirming McGuire’s ignorance of the plan to rob
Sanchez of the cocaine, and (c) improperly advising McGuire
about his rights to testify and to remain silent; (2) appellate
counsel was ineffective for failing to raise trial counsel’s fail-
ure to elicit testimony of a sudden quarrel; and (3) the district
court failed to rule on his claims regarding (a) trial counsel’s
failure to object to the admission into evidence of the 9-mm
ammunition and (b) trial counsel’s failure to question or
investigate the presence of gunshot residue on accomplices.
Finally, McGuire claims that his postconviction counsel was
ineffective for failing to present adequate evidence at the post-
conviction hearing to substantiate his claims, thereby depriv-
ing him of his state and federal constitutional rights to due
process of law.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. McGUIRE
                               Cite as 299 Neb. 762

                    STANDARD OF REVIEW
   [1] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact. An appellate
court upholds the trial court’s factual findings unless they are
clearly erroneous.4
   [2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.5 When reviewing
a question of law, an appellate court resolves the question
independently of the lower court’s conclusion.6
   [3,4] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.7 When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error.8 With regard to questions of counsel’s perform­
ance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington,9 an appellate court
reviews such legal determinations independently of the lower
court’s conclusion.10
                           ANALYSIS
                    Ineffective Assistance of
                         Trial Counsel
   [5] McGuire’s first three assignments of error allege that
the district court erred in failing to find that his trial counsel
was ineffective in certain respects. The State submits that these
claims are procedurally barred, because they could have been

 4	
      State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).
 5	
      State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017).
 6	
      Id.
 7	
      State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
 8	
      Id.
 9	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
10	
      State v. Alarcon-Chavez, supra note 7.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                              STATE v. McGUIRE
                              Cite as 299 Neb. 762

raised on direct appeal and were not. When a defendant’s trial
counsel is different from his or her appellate counsel, all issues
of ineffective assistance of trial counsel that are known to the
defendant or are apparent from the record must be raised on
direct appeal.11 If the issues are not raised, they are procedur-
ally barred.12
   [6] Although McGuire’s postconviction motion asserts lay-
ered claims of ineffective assistance of trial and appellate
counsel, we agree that the underlying claims pertaining to trial
counsel are procedurally barred, because McGuire had new
counsel on direct appeal and did not raise his claims of ineffec-
tive assistance of trial counsel at that time.13 In order to present
the merits of those claims to this court, McGuire was required
to assign and argue that appellate counsel was ineffective for
failing to assert trial counsel’s ineffectiveness in those respects.
He failed to do so for his first three assignments of error, and
as a result, those claims are not properly before this court. 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.14

                    Ineffective Assistance of
                       A ppellate Counsel
   McGuire’s fourth assignment of error alleges that the dis-
trict court erred in failing to find that appellate counsel was
ineffective for failing to raise trial counsel’s failure to elicit
evidence of a sudden quarrel at trial. He asserts that appellate
counsel challenged the second degree murder instruction on
the basis that it did not include the sudden quarrel language,
which we agreed was erroneous on direct appeal but found
to be harmless due to the absence of any evidence in the

11	
      State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
12	
      Id.
13	
      See id.
14	
      State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. McGUIRE
                                Cite as 299 Neb. 762

record of a sudden quarrel. McGuire argues that trial counsel
could have elicited such evidence through a proper cross-­
examination of Ayala-Martinez.
   At trial, Ayala-Martinez testified that Nave entered the auto
shop, pointed the gun at Sanchez, and shot him two to three
times. However, McGuire claims that Ayala-Martinez had pre-
viously testified at Nave’s trial that Nave initially pointed
the gun at Ayala-Martinez but quickly turned the gun on
Sanchez when he saw Sanchez attempting to load a revolver.
McGuire argues that this was evidence of a sudden quarrel
that provoked Nave to shoot Sanchez, but was not elicited at
trial. McGuire argues that if appellate counsel had raised trial
counsel’s ineffectiveness in this regard, McGuire would have
received a new trial on direct appeal.
   [7] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,15 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defend­
ant’s defense.16
   [8] When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on appeal of
ineffective assistance of trial counsel (a layered claim of inef-
fective assistance of counsel), an appellate court will look at
whether trial counsel was ineffective under the Strickland v.
Washington test.17 If trial counsel was not ineffective, then the
defendant was not prejudiced by appellate counsel’s failure to
raise the issue.18 Much like claims of ineffective assistance of
trial counsel, the defendant must show that but for counsel’s
failure to raise the claim, there is a reasonable probability that
the outcome would have been different.19

15	
      Strickland v. Washington, supra note 9.
16	
      State v. Glass, supra note 4.
17	
      State v. Dubray, supra note 11.
18	
      Id.
19	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. McGUIRE
                               Cite as 299 Neb. 762

   We find that trial counsel’s decision not to elicit testimony
of a sudden quarrel was a reasonable strategic decision. In
his deposition, trial counsel testified that he believed the best
defense for McGuire was to convince the jury that although
McGuire was there to participate in a drug deal, there was no
evidence that he had agreed to participate in the robbery, or
even had knowledge that Nave was going to commit a robbery.
In other words, the best case scenario for McGuire was that
he would be found guilty of the drug offense, but not guilty of
felony murder or any other homicide-related charges.
   Given this trial strategy, trial counsel explained that he did
not believe it was effective to “out of one side of your mouth
say, there’s no plan, no agreement, no robbery, therefore he’s
not guilty of first degree murder; and then say, on the other
hand, it could also be a manslaughter.” He testified that he
thought he would lose credibility with the jury if he tried to
argue both theories. He chose to attack the felony murder alle-
gations, because if he could convince the jury that there was no
plan or agreement for the robbery, then he would be found not
guilty on all the homicide charges.
   [9,10] Trial counsel is afforded due deference to formulate
trial strategy and tactics.20 An appellate court does not second-
guess strategic decisions made by trial counsel, so long as
those decisions are reasonable.21 In determining whether trial
counsel’s performance was deficient, there is a strong pre-
sumption that counsel acted reasonably.22 We conclude that
trial counsel’s failure to adduce evidence of a sudden quarrel
was a reasonable strategic decision, and therefore, it does not
constitute deficient performance. Because trial counsel was not
ineffective, McGuire was not prejudiced by appellate counsel’s
failure to raise this issue on direct appeal.

20	
      State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
21	
      See State v. Alarcon-Chavez, supra note 7.
22	
      State v. Williams, supra note 20.
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                              STATE v. McGUIRE
                              Cite as 299 Neb. 762

                        Failure M ake Findings
                                  to
                               Rulings
                                  or
   McGuire’s fifth assignment of error alleges that the district
court erred by failing to make requisite findings or rulings on
his claims that (1) trial counsel failed to object to the admis-
sion into evidence of the 9-mm ammunition found in the
Nissan and (2) trial counsel failed to investigate the presence
of gunshot residue on accomplices. He argues that under Neb.
Rev. Stat. § 29-3001(2) (Reissue 2016), the district court is
required to make findings of fact and conclusions of law with
regard to all issues raised in the motion when an evidentiary
hearing is granted.
   We first note that McGuire’s appellate brief provides no
argument in support of the second part of this assignment of
error regarding trial counsel’s failure to investigate the pres-
ence of gunshot residue on accomplices. An alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by
an appellate court.23 Because it was not argued, we will not
address that portion of the assigned error.
   [11] Regarding trial counsel’s failure to object to the 9-mm
ammunition found in the Nissan, McGuire argues that it was
unduly prejudicial under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2016), and that trial counsel should have
moved to exclude it on that basis. Under rule 403, relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.24 Most, if not all,
evidence offered by a party is calculated to be prejudicial to the
opposing party; only evidence tending to suggest a decision on
an improper basis is unfairly prejudicial.25
   Trial counsel testified that he did not object to the ammuni-
tion, because any such objection would have certainly been

23	
      State v. Cook, supra note 14.
24	
      State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
25	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                              STATE v. McGUIRE
                              Cite as 299 Neb. 762

overruled. We agree. The probative value of the 9-mm ammu-
nition found in the Nissan was substantial. A firearms expert
determined that the four casings found in the auto shop and
the bullet recovered from Sanchez’ body were all fired from a
9-mm Smith & Wesson, which was found inside the Sebring
that McGuire was driving as he fled from the scene. The dis-
covery of the 9-mm ammunition in the Nissan directly linked
McGuire to the robbery conspiracy, given the evidence that the
Nissan belonged to McGuire’s girlfriend and she had allowed
him to borrow it on the date in question. We conclude the
challenged evidence was extremely probative, and we do not
see any tendency for it to suggest a decision by the jury on an
improper basis.
   Finally, while we agree that trial courts are required to make
findings of fact and conclusions of law following an eviden-
tiary hearing, we find it unnecessary to remand the cause for
further findings here. The purpose of requiring factual findings
and conclusions of law is to facilitate appellate review and
permit us to reach all assigned errors.26 Because it is clear that
this claim has no merit, there is no need to remand the matter
for further findings.

                    Ineffective Assistance of
                     Postconviction Counsel
   In his final assignment of error, McGuire asserts that his
postconviction counsel was ineffective for failing to present
adequate evidence at the postconviction hearing to substantiate
his claims, thereby depriving McGuire of his state and federal
constitutional rights to due process of law. McGuire acknowl-
edges that there is no constitutional right to effective assistance
of counsel at postconviction proceedings.27 However, he argues
that he was denied due process of law because his counsel
failed to meet the standard required under Neb. Rev. Stat.

26	
      See State v. Harris, 294 Neb. 766, 884 N.W.2d 710 (2016).
27	
      See State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                        STATE v. McGUIRE
                        Cite as 299 Neb. 762

§ 29-3004 (Reissue 2016), which provides that “[t]he district
court may appoint not to exceed two attorneys to represent the
prisoners in all [postconviction] proceedings” and that “[t]he
attorney or attorneys shall be competent and shall provide
effective counsel.”
   Assuming without deciding that there is a statutory right
to competent and effective postconviction counsel that may
be enforced on appeal from a postconviction proceeding, we
find that the plain language of the statute applies only to attor-
neys appointed by the district court. Here, McGuire’s counsel
acknowledged at oral argument that McGuire’s first postcon-
viction counsel, whom he now claims was ineffective, was
not appointed by the district court, but was privately retained
by McGuire. Thus, the statutory directive that postconviction
attorneys appointed by the district court shall be competent and
effective does not apply here.
   Furthermore, even if the statute did apply, we find no merit
to this assigned error, because the claims asserted in McGuire’s
postconviction proceeding, even if proved, would not entitle
him to any relief. Therefore, McGuire was not prejudiced by
postconviction counsel’s failure to present evidence to substan-
tiate those claims.
                        CONCLUSION
   For the reasons set forth above, we affirm the judgment of
the district court.
                                                   A ffirmed.
   Wright and Cassel, JJ., not participating.
