                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. SAMAYOA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                     STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLANT,
                                                  V.

                 MAXILIAMO CANO SAMAYOA, APPELLANT AND CROSS-APPELLEE.


                               Filed April 14, 2020.    No. A-19-565.


       Appeal from the District Court for Scotts Bluff County: ANDREA D. MILLER, Judge.
Affirmed.
       Leonard G. Tabor for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
       MOORE, Chief Judge.
                                         INTRODUCTION
       Maxiliamo Cano Samayoa appeals from the district court’s denial, without an evidentiary
hearing, of his motion for postconviction relief. We affirm.
                                          BACKGROUND
        Following a jury trial, Samayoa was convicted of three counts of first degree sexual assault
of a child and one count of third degree sexual assault of a child. He was sentenced to concurrent
terms of imprisonment of 35 to 40 years and 1 to 3 years, respectively. The facts in this case can
be found in State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015). It is not necessary to set
forth the facts in resolving this appeal.
        Samayoa timely appealed his conviction and sentence. On appeal, Samayoa argued that (1)
the evidence was insufficient to support his conviction, (2) the trial court erred in admitting certain



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testimony, and (3) the trial court erred in advising the jury that with respect to third degree sexual
assault of a child, the exact time when the offense is committed is not an essential element of the
crime. These arguments were rejected by the Nebraska Supreme Court and the mandate was
entered on January 27, 2016, affirming the decision of the lower court. The order spreading the
mandate was filed on February 1, 2016.
        Samayoa filed a motion for postconviction relief on February 2, 2017. In his motion,
Samayoa asserted that he does not speak, write, or read English; that on December 10, 2016, he
found a bilingual person to assist him with his postconviction motion; and that due to his language
barriers, he had not been able to file a postconviction motion sooner. Samayoa also asserted his
belief that the 1-year statute of limitations expired on the date that the court adopted the mandate
from the Nebraska Supreme Court, and that in any event, the motion was timely filed within the
limitations period under Neb. Rev. Stat. § 29-3001(4)(b) and (c) (Reissue 2016). Samayoa alleged
that he did not have any records (transcripts or bill of exceptions) of his case, and as a result, was
not able to present facts or issues constituting violations of his constitutional rights. Nevertheless,
Samayoa asserts that such violations exist, “in specific, violations of his trial and appellate counsel,
[and] his trial was unfair product of his counsel’s actions and inactions.” Samayoa sought the
opportunity to amend his motion following a fair opportunity to inspect the record and appointment
of bilingual counsel or an interpreter for counsel.
        A records review hearing was held on April 17, 2019. On May 14, the district court entered
an order denying Samayoa’s request for a full evidentiary hearing and dismissing his motion for
postconviction relief. The court found that Samayoa failed to allege any facts that would establish
a constitutional violation, and thus did not establish the basis for any relief.
                                   ASSIGNMENTS OF ERROR
       Samayoa assigns that the district court erred in refusing to grant his request for an
evidentiary hearing and his motion for postconviction relief.
                                     STANDARD OF REVIEW
         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. State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017). A defendant
requesting postconviction relief must establish the basis for such relief, and the findings of the
district court will not be disturbed unless they are clearly erroneous. State v. Starks, 294 Neb. 361,
833 N.W.2d 310 (2016).
                                             ANALYSIS
        Samayoa assigns that the district court erred in denying his motion for postconviction relief
without an evidentiary hearing. In his summary of argument section, he also asserts that his counsel
was ineffective for failing to file a petition for further review, and that the trial court abused its
discretion by not ruling on the issue of the timely filing of his motion for postconviction relief.
Samayoa’s postconviction motion did not contain any allegation regarding counsel’s failure to file
a petition for further review. An appellate court will not consider as an assignment of error a



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question not presented to the district court for disposition through a defendant’s motion for
postconviction relief. See State v. Caddy, 262 Neb. 38, 628 N.W.d 251 (2001). Samayoa’s
argument regarding the district court’s failure to rule on the timeliness of his motion was not
contained in the assignment of error section of the brief. 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. State v. Chacon, 296 Neb. 203, 894 N.W.2d 236 (2017). Accordingly, we do not
consider the arguments regarding counsel’s failure to file a petition for further review or the court’s
failure to address the timeliness issue. We then turn to the court’s denial of the postconviction
motion on the basis that it failed to allege any facts to support constitutional violations.
         Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. § 29-3001(1). Thus, in a motion for postconviction
relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or
her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to
be void or voidable. State v. Starks, 294 Neb. 361, 833 N.W.2d 310 (2016). If a postconviction
motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required to grant an evidentiary
hearing. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017). As discussed below, Samayoa
alleged no factual basis on which a court could conclude that his judgment of conviction was void
or voidable because of a violation of his constitutional rights at trial or in the prosecution of his
case.
          To prevail on a claim of ineffective assistance of counsel under Strickland v. 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. State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017). To show prejudice
under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable
probability that but for his or her counsel’s deficient performance, the result of the proceeding
would have been different. Id. A reasonable probability does not require that it be more likely than
not that the deficient performance altered the outcome of the case. Id. Rather, the defendant must
show a probability sufficient to undermine confidence in the outcome. Id.
         Here, Samayoa admittedly did not allege in his motion any facts to show that his trial or
appellate counsel’s performance was deficient or that his counsel’s deficient performance
prejudiced his defense. Samayoa simply claimed that his trial was unfair due the actions or
inactions of his counsel and that his constitutional rights were violated. Therefore, we find no error
in the district court’s determination that Samayoa failed to assert facts sufficient to demonstrate a
violation of his constitutional rights and in denying his motion for postconviction relief without a
full evidentiary hearing.
         The State also cross-appealed, assigning that the district court erred in ignoring the State’s
motion to dismiss and in making a ruling on the merits of Samayoa’s petition, instead of dismissing
it as untimely pursuant to § 29-3001(4)(a). An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy before it. Saylor v. State, 304
Neb. 779, 936 N.W.2d 924 (2020). Because we are affirming the district court’s dismissal of the
motion for postconviction relief, we need not address the State’s cross-appeal argument.


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                                       CONCLUSION
       The district court did not err when it denied Samayoa’s motion for postconviction relief
without an evidentiary hearing. The judgment of the district court is affirmed.
                                                                                   AFFIRMED.




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