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05/13/2016 09:06 AM CDT




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                                            Nebraska A dvance Sheets
                                             293 Nebraska R eports
                                                STATE v. ABDULKADIR
                                                  Cite as 293 Neb. 560




                                         State of Nebraska, appellee, v.
                                        Mohamed A bdulkadir, appellant.
                                                    ___ N.W.2d ___

                                           Filed May 13, 2016.     No. S-15-951.

                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
                     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. 	Postconviction: Constitutional Law: Judgments: Proof. An eviden-
                     tiary hearing on a motion for postconviction relief is required on an
                     appropriate motion containing factual allegations which, if proved,
                     constitute an infringement of the movant’s rights under the Nebraska or
                     federal Constitution, causing the judgment against the defendant to be
                     void or voidable.
                3.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
                     assistance of counsel, the defendant must show that counsel’s perform­
                     ance was deficient and that this deficient performance actually preju-
                     diced his or her defense.
                4.	 Postconviction: Effectiveness of Counsel: Appeal and Error. When a
                     defendant was represented both at trial and on direct appeal by the same
                     lawyers, generally speaking, the defendant’s first opportunity to assert
                     ineffective assistance of trial counsel is in a motion for postconvic-
                     tion relief.
                5.	 Self-Defense. Self-defense is a legal conclusion.
                6.	 ____. To successfully claim one was acting in self-defense, the force
                     used in defense must be immediately necessary and must be justified
                     under the circumstances.
                7.	 ____. A defendant’s use of deadly force in self-defense is justified if
                     a reasonable ground existed under the circumstances for the defend­
                     ant’s belief that he or she was threatened with death or serious bodily
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                            STATE v. ABDULKADIR
                              Cite as 293 Neb. 560

      harm, even if the defendant was actually mistaken about the extent of
      the danger.
  8.	 ____. Once the basis for an accused’s reasonable belief that he or she
      is in danger of serious bodily harm has been dispelled, the accused’s
      continued use of deadly force is not justified by self-defense.

  Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
  Stuart J. Dornan, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
      Heavican, C.J.
                       INTRODUCTION
   Mohamed Abdulkadir appeals from the district court’s order
denying his postconviction motion to vacate and set aside his
convictions without an evidentiary hearing. Abdulkadir alleged
that his convictions for the second degree murder of Michael
Grandon and for use of a deadly weapon to commit a felony
should be vacated because his trial counsel failed to call two
witnesses Abdulkadir claimed would have testified in his favor.
We affirm.
                       BACKGROUND
   This is the second time Abdulkadir has appealed to this
court. In 2013, we affirmed his convictions on direct appeal.1
Abdulkadir then filed a postconviction motion to vacate and
set aside his convictions in the district court because his trial
counsel (who also served as counsel on direct appeal) did not
call two potential witnesses: Eltio Plater and a corrections offi-
cer named “Vidal.”

 1	
      State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                      STATE v. ABDULKADIR
                        Cite as 293 Neb. 560

   In June 2011, Abdulkadir was an inmate at the Nebraska
State Penitentiary. During the afternoon of June 30, Abdulkadir
reported to a caseworker, Cody Eastman, that some items from
his cell were missing. Eastman told Abdulkadir to fill out a
report to assist in the investigation. Instead, Abdulkadir began
asking fellow inmates if they knew anything about the theft.
Abdulkadir approached Grandon in the prison gymnasium
to discuss the stolen items, but Grandon apparently denied
any involvement.
   According to Abdulkadir’s testimony and corroborating testi-
mony by another inmate, Danny Robinson, later that afternoon,
Grandon punched Abdulkadir without warning and a struggle
ensued. Abdulkadir and Robinson testified that Grandon then
took an object, later discovered to be a knife, into his hand and
that Abdulkadir wrestled the knife from Grandon. Witnesses
saw Abdulkadir stab Grandon multiple times. After the alterca-
tion, Grandon died from his injuries.
   Henry McFarland was an officer on duty in Abdulkadir’s
housing unit on the day Grandon died. McFarland testified
at trial that while working in the control center, four inmates,
including Plater and Robinson, stood shoulder-to-shoulder,
blocking his view of the unit. McFarland told the inmates
to move and then heard the struggle between Grandon and
Abdulkadir from the direction the inmates had been obstruct-
ing. He witnessed Grandon falling to the floor. Abdulkadir then
stood over Grandon, making stabbing motions while Grandon
rolled around in a fetal position.
   Three of the four inmates who had allegedly blocked
McFarland’s view testified at trial that they were merely cut-
ting each other’s hair. They claimed not to be intentionally
obstructing the control center window. Plater was not called
to testify.
   McFarland called for help, and Eastman was the first
to respond. When Eastman entered the area, he witnessed
Grandon already on the floor in a fetal position and Abdulkadir
standing over Grandon, stabbing him twice. Eastman then
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                             STATE v. ABDULKADIR
                               Cite as 293 Neb. 560

entered the area and told Abdulkadir to drop the knife;
Abdulkadir complied.
   McFarland testified that he saw Abdulkadir stab Grandon
between 10 to 15 times while Grandon was on the floor.
McFarland also said that he heard Abdulkadir yelling, “‘You
think you can steal from me?’”2 Another officer who was
also in the unit at the time testified at trial that Abdulkadir
stabbed Grandon only three or four times after Grandon fell.
Abdulkadir testified that during the struggle, he became hyster-
ical and apparently could not remember what happened after he
began stabbing Grandon. None of Abdulkadir’s trial witnesses
claimed to have seen the entire incident.
   Grandon suffered a total of 25 stab wounds. He was still alive
briefly after Abdulkadir was escorted away. But Grandon’s
heart stopped beating before he arrived at the hospital.
   After the stabbing, Abdulkadir was taken to a segregation
unit. There, an officer overheard Abdulkadir responding to
inmates’ questions about why he was in segregation. According
to that officer’s testimony, Abdulkadir told them that “‘some-
body was stealing his shit and he couldn’t let that happen and
that he’d do it again.’”3
   A jury convicted Abdulkadir, and the district court sen-
tenced him to a term of life-to-life imprisonment for second
degree murder and 15 to 25 years’ imprisonment for use of a
deadly weapon. We affirmed the convictions on direct appeal.
Abdulkadir then filed the motion for postconviction relief at
issue here on the ground of ineffective assistance of counsel.
Abdulkadir alleged, in part:
         1. That defense counsel failed to produce, as requested
      by [Abdulkadir], two witnesses who would have provided
      testimony that would have been favorable to [Abdulkadir];
         2. That one of the witnesses, . . . Plater, a recent
      parolee who had witnessed the altercation that led to the

 2	
      Id. at 420, 837 N.W.2d at 514.
 3	
      Id. at 420, 837 N.W.2d at 515.
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                       STATE v. ABDULKADIR
                         Cite as 293 Neb. 560

      charges against [Abdulkadir], would have testified that he
      observed a fist fight between [Abdulkadir] and another
      inmate and he observed [Abdulkadir] take from the other
      party in the fist fight a knife or some other object which
      he saw [Abdulkadir] use while defending himself[.]
The State moved to deny an evidentiary hearing on Abdulkadir’s
motion.
   At a June 2, 2015, hearing, the district court granted
Abdulkadir additional time to locate his potential witnesses,
Plater and Vidal. On September 4, there was a second hear-
ing on the State’s motion to deny an evidentiary hearing.
Abdulkadir stated that Vidal’s “affidavit would not add any-
thing to the petition.” Abdulkadir also stated that Plater was
proving difficult to track down because he was evading a war-
rant for child support. Although he could not say with certainty
what Plater may have testified to at trial if called, Abdulkadir
claimed that Plater’s testimony “would have corroborated . . .
Abdulkadir’s testimony and would have lended [sic] credence
to his argument that he was acting in self-defense.”
   The district court granted the State’s motion to deny an evi-
dentiary hearing. The district court discounted the assertion that
Plater would testify that Abdulkadir was “defending himself,”
because self-defense is a legal conclusion, not a factual allega-
tion. Further, it reasoned that Abdulkadir had failed to allege
facts warranting postconviction relief because Abdulkadir suf-
fered no prejudice by Plater’s absence at trial.

               ASSIGNMENTS OF ERROR
   Abdulkadir assigns that the district court erred by (1)
denying an evidentiary hearing and (2) denying postconvic-
tion relief.

                   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
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                             Nebraska A dvance Sheets
                              293 Nebraska R eports
                                 STATE v. ABDULKADIR
                                   Cite as 293 Neb. 560

constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief.4
                            ANALYSIS
   In his first assignment of error, Abdulkadir argues that the
district court erred by granting the State’s motion to deny an
evidentiary hearing. We find no error, because Abdulkadir’s
motion did not allege any facts showing his defense was preju-
diced by the absence of Plater and Vidal at his trial.
   [2] An evidentiary hearing on a motion for postconviction
relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution,
causing the judgment against the defendant to be void or void-
able.5 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.6
   [3,4] In this case, Abdulkadir claims that he received inef-
fective assistance of counsel, in violation of his constitutional
rights. To prevail on a claim of ineffective assistance of counsel,
the defendant must show that counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his
or her defense.7 When a defendant was represented both at trial
and on direct appeal by the same lawyers, generally speaking,
the defendant’s first opportunity to assert ineffective assist­
ance of trial counsel is in a motion for postconviction relief.8
Here, Abdulkadir was represented by the same counsel at trial
and upon direct appeal, so his ineffective assistance of counsel
claim has not been waived.

 4	
      State   v.   Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
 5	
      State   v.   Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
 6	
      State   v.   Ware, 292 Neb. 24, 870 N.W.2d 637 (2015).
 7	
      State   v.   Jones, 274 Neb. 271, 739 N.W.2d 193 (2007).
 8	
      State   v.   McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                            STATE v. ABDULKADIR
                              Cite as 293 Neb. 560

   Abdulkadir’s motion alleged that his trial counsel failed
to produce Plater and Vidal—which we presume Abdulkadir
claims was deficient performance. But nothing in Abdulkadir’s
motion specifically alleges any prejudice to his defense.
Instead, Abdulkadir states that Plater’s and Vidal’s testimony
“would have been favorable” to him. We question whether this
allegation is sufficient to raise the issue of prejudice in a post-
conviction motion.
   However, even assuming that Abdulkadir’s motion might
have properly alleged prejudice, the motion clearly failed to
state facts actually amounting to prejudice. Because Abdulkadir
withdrew his allegations concerning Vidal during the second
hearing on the State’s motion, we will not address the allega-
tions about Vidal’s possible testimony. As to Plater, Abdulkadir
alleged that Plater “would have testified that he observed a
fist fight between [Abdulkadir] and another inmate and he
observed [Abdulkadir] take from the other party in the fist
fight a knife or some other object which he saw [Abdulkadir]
use while defending himself.”
   In State v. Banks,9 we held that a defendant was not entitled
to an evidentiary hearing because he had only alleged con-
clusions of law or fact. The defendant claimed ineffective
assistance of counsel because his attorney allegedly failed to
investigate potential witnesses who “would have supported
a defense that [the defendant] acted in self-defense.”10 The
defendant never explained what facts the potential witnesses
could have testified to in support of the self-defense claim.
   [5] Just as in Banks, the district court in the case at bar
was correct to discount Abdulkadir’s contention that Plater
would testify that Abdulkadir used the knife “while defending
himself.” Self-defense is a legal conclusion, and the district
court could not consider this phrase in determining whether
an evidentiary hearing was warranted. The district court was

 9	
      State v. Banks, 289 Neb. 600, 856 N.W.2d 305 (2014).
10	
      Id. at 605, 856 N.W.2d at 310.
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                            STATE v. ABDULKADIR
                              Cite as 293 Neb. 560

constrained to reviewing only the factual allegations in the
motion—that Plater “observed a fist fight between [Abdulkadir]
and another inmate and he observed [Abdulkadir] take from the
other party in the fist fight a knife or some other object which
he saw [Abdulkadir] use.”
   At trial, both Abdulkadir and Robinson testified to the same
facts alleged in Abdulkadir’s motion. Abdulkadir does not
allege that Plater would have introduced any additional facts at
trial. Nor would it contradict any facts presented by the State
about what occurred after Grandon fell. Instead, Abdulkadir,
apparently overlooking Robinson’s testimony in his review
of the record, argues that he suffered prejudice because Plater
would have been the only witness to corroborate Abdulkadir’s
own testimony.
   [6-8] But even if we were to make every credibility deter-
mination in favor of Abdulkadir, all of the testimony at trial, as
well as the alleged facts in Abdulkadir’s motion for postcon-
viction relief, cannot prove he acted in self-defense. To suc-
cessfully claim one was acting in self-defense, the force used
in defense must be immediately necessary and must be justified
under the circumstances.11 A defendant’s use of deadly force in
self-defense is justified if a reasonable ground existed under
the circumstances for the defendant’s belief that he or she
was threatened with death or serious bodily harm, even if the
defendant was actually mistaken about the extent of the dan-
ger.12 Once the basis for an accused’s reasonable belief that he
or she is in danger of serious bodily harm has been dispelled,
the accused’s continued use of deadly force is not justified
by self-defense.13
   Abdulkadir and Robinson testified only that Grandon was
the initial aggressor and that Grandon produced the knife from

11	
      See State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
12	
      State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
13	
      See State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012) (finding that
      no self-defense instruction was required, because fight had ended and
      defendant shot and killed victim as victim ran away).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                             STATE v. ABDULKADIR
                               Cite as 293 Neb. 560

his pocket. Abdulkadir was then able to wrestle the knife from
Grandon. At trial, Abdulkadir apparently could not recall what
occurred next. Robinson claimed to have walked away at this
point in the struggle.
   The only other eyewitness evidence of the incident, from
the various prison officials who testified at trial, establishes
that Grandon fell to the floor and curled into a fetal position
and that Abdulkadir continued stabbing Grandon anywhere
between 3 and 15 more times. By the time the struggle ended,
Grandon had suffered 25 stab wounds. While Abdulkadir stood
over Grandon, he yelled, “‘You think you can steal from
me?’”14 Finally, Abdulkadir later told other inmates that he had
been acting in retaliation.
   Under these circumstances, Abdulkadir did not have a good
faith reasonable belief that he was still in imminent dan-
ger of serious bodily harm. Once Grandon fell helplessly to
the floor, the threat to Abdulkadir was neutralized and he
was no longer justified in using deadly force in self-defense.
Nothing in Plater’s alleged testimony, or any of Abdulkadir’s
evidence at trial, would contradict this finding. Thus, even
assuming that counsel’s choice not to call Plater would have
been deficient—which we do not decide—it did not prejudice
Abdulkadir’s defense.
   Abdulkadir’s first assignment of error is, therefore, with-
out merit.
   In Abdulkadir’s second assignment of error, he argues
that the district court erred by denying postconviction relief.
Because Abdulkadir’s first assignment of error has no merit,
his second assignment of error also fails.
                           CONCLUSION
      The decision of the district court is affirmed.
                                                                A ffirmed.

14	
      See Abdulkadir, supra note 1, 286 Neb. at 420, 837 N.W.2d at 514.
