                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. BUTTERCASE


  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
                                               V.

                              JOSEPH J. BUTTERCASE, APPELLANT.


                           Filed December 5, 2017.    No. A-15-987.


       Appeal from the District Court for Gage County: PAUL W. KORSLUND, Judge. Affirmed.
       Joseph J. Buttercase, pro se.
       Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       BISHOP, Judge.
                                       I. INTRODUCTION
        Joseph J. Buttercase appeals from the Gage County District Court’s denial of his motions
to recuse the judge and to amend his postconviction motion. He also appeals from the court’s
denial of his motion for postconviction relief without an evidentiary hearing. We affirm.
                                       II. BACKGROUND
        In 2012, Buttercase was convicted of first degree sexual assault, first degree false
imprisonment, strangulation, and third degree domestic assault. He received sentences of 20 to 30
years’ imprisonment for his sexual assault conviction, 4 to 5 years’ imprisonment for his false
imprisonment conviction, 20 months to 5 years’ imprisonment for his strangulation conviction,
and 1 to 1 year imprisonment for his domestic assault conviction. All sentences were ordered to
be served consecutively. Buttercase appealed, and in case No. A-12-1167, in an unpublished
memorandum opinion dated November 5, 2013, this court affirmed his convictions and sentences.



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         Buttercase filed the present motion for postconviction relief on February 19, 2015. The
motion alleged that his convictions and sentences were in violation of the United States and
Nebraska constitutions, “more particularly his right to due process of law and his right to effective
assistance of counsel.” He claimed his trial counsel was ineffective for failing to: contact or
interview a witness, Sondra Aden, before trial, and to “present her evidence at trial”; raise the trial
court’s denial of his motion to suppress and motion for a Franks hearing on direct appeal; properly
investigate the case and present the exhibits for Buttercase’s review; object to certain photographic
evidence presented by the state; object to testimony by Julie Jurich (a witness called by the State);
call a medical expert witness to testify at trial; and file a motion for change of venue. In addition,
Buttercase alleged the State disclosed new evidence during trial and that this late disclosure
prejudiced his right to a fair trial and effective assistance of counsel.
         The State filed a response to Buttercase’s motion for postconviction relief, in which it
alleged: Buttercase failed to allege facts which, if proved, constituted a denial or violation of any
constitutional right; the motion was procedurally barred; the case files and records affirmatively
showed Buttercase was not entitled to any relief; and Buttercase’s motion alleged only conclusions
of law. The State asked the district court to deny the motion without an evidentiary hearing. The
district court held a status hearing on April 20, 2015, and requested briefs regarding the State’s
responsive pleading, but referred to it as a “motion to dismiss.”
         Buttercase filed a motion to recuse the presiding judge on June 26, 2015. Buttercase argued
recusal was appropriate because (1) the judge had previously chastised him in open court, (2)
Buttercase had filed a complaint against the judge, and (3) the judge’s impartiality might
reasonably be questioned. On June 29, Buttercase filed a motion to amend his motion for
postconviction relief. A hearing on both motions was held on August 14.
         In an order filed on September 15, 2015, the district court denied Buttercase’s motion to
recuse, finding the court did not demonstrate any bias towards Buttercase and that the
complained-of admonishments were necessary for proper conduct at trial.
         In an order filed on September 16, 2015, the district court denied Buttercase’s motion to
amend his motion for postconviction relief. The court noted Buttercase had one year from the filing
of his direct appeal mandate (March 5, 2014), to file his motion for postconviction relief.
Buttercase filed his postconviction motion on February 19, 2015. However, Buttercase did not
seek to amend his motion until June 29 (near the end of the briefing schedule on the State’s motion
to deny an evidentiary hearing). The court determined Buttercase sought to amend his motion for
postconviction relief outside the one-year period of limitations set forth in Neb. Rev. Stat.
§ 29-3001 (Reissue 2016), and to “avoid the one year statute of limitations under [§] 29-3001, it
is necessary to find that the proposed amendment relates back to the pending motion for
postconviction relief as provided by Neb. Rev. Stat. 25-201.02(1) [Reissue 2016].” The court noted
the statute’s language that an amendment “relates back to the date of the original pleading if the
claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading.” See id. The court stated,
“Buttercase argues that the new allegations relate to evidence that could have been used by his
trial counsel in support of the theory that the victim consented to Buttercase’s sexual conduct.”
The court concluded Buttercase’s motion to amend raised a “distinctly new factual allegation of



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the ineffectiveness assistance of trial counsel,” and therefore, the proposed amendment did not
relate back to the original motion for postconviction relief as required to circumvent the one-year
period of limitation.
        The district court denied Buttercase’s motion for postconviction relief without an
evidentiary hearing on October 2, 2015. Buttercase timely appealed.
                                 III. ASSIGNMENTS OF ERROR
         Buttercase assigns, summarized and restated, that the district court erred by denying his
motions: (1) to recuse the presiding district court judge, (2) to amend his motion for postconviction
relief, and (3) for postconviction relief without an evidentiary hearing.
                                   IV. STANDARD OF REVIEW
        A motion to recuse for bias or partiality is initially entrusted to the discretion of the trial
court, and the trial court’s ruling will be affirmed absent an abuse of discretion. Huber v. Rohrig,
280 Neb. 868, 791 N.W.2d 590 (2010).
        An appellate court reviews a refusal to grant leave to amend an original postconviction for
an abuse of discretion. See State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016). A judicial abuse
of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. Id.
        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. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
                                           V. ANALYSIS
                                        1. MOTION TO RECUSE
        Buttercase claims the district court judge should have recused himself for three reasons:
(1) the judge had previously chastised Buttercase in open court; (2) Buttercase filed a complaint
against the judge; and (3) the judge’s impartiality might reasonably be questioned.
        A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice
is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed
on appeal unless the record establishes bias or prejudice as a matter of law. Huber v. Rohrig, supra.
As a matter of law, a trial judge should recuse himself or herself when a litigant demonstrates that
a reasonable person who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though no actual bias or prejudice
was shown. Id.
        Initially, we note the State’s argument that the recusal issue is not properly before this court
because Buttercase’s claim is based upon the judge’s actions at trial and Buttercase did not raise
the issue on direct appeal, nor did he allege in his postconviction motion that his trial/appellate
counsel was ineffective for failing to do so (he was represented by same counsel at trial and on
direct appeal). The State supports its argument by citing State v. Thorpe, 290 Neb. 149, 858



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N.W.2d 880 (2015), for the proposition that a motion for postconviction relief cannot be used to
secure review of issues which were or could have been litigated on direct appeal, no matter how
those issues may be phrased or rephrased. However, Buttercase is not arguing that the district court
judge should have recused himself from the trial proceedings. Rather, he sought to have the judge
recuse himself from the postconviction proceedings because of purported bias demonstrated in
prior proceedings. Thus, the issue is not waived.
        Having reviewed the merits of Buttercase’s arguments for recusal, we find the district court
correctly denied the motion to recuse. First, Buttercase’s motion did not identify where in the
record the allegedly problematic chastisement took place. However, in his brief, he directs our
attention to page 810, lines 17 to 21, of the bill of exceptions, which reflects the following
admonition by the court given during Buttercase’s testimony at trial:
               THE COURT: All right. I will strike the last portion of the answer after “yes”, [sic]
        and then Mr. Buttercase, I’m going to instruct you, again, to answer the question that you
        are asked and don’t volunteer any information. Do you understand me?

While Buttercase did not mention it in his brief or in his motion to recuse, we note the court later
addressed the jury, stating:
               THE COURT: All right. Ladies and Gentlemen of the jury, I’m going to instruct
       you not to draw any negative inference from the admonition that I gave Mr. Buttercase.
       And Mr. Buttercase, for your information, in case you are un aware [sic], [your counsel]
       will have an opportunity to ask you follow-up questions after the prosecution’s
       cross-examination. So it is important that you just answer the questions you are asked, and
       then [your counsel] will have a chance to ask you some other questions.

        In Nebraska, a trial judge has broad discretion over the conduct of a trial. State v. Pangborn,
286 Neb. 363, 836 N.W.2d 790 (2013). It is the judge’s statutory duty to exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence. Id. There is
no rule of law which automatically disqualifies a judge who has presided at trial from subsequently
considering a postconviction action. State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990). In
order to show a constitutional violation of the right to an impartial judge, a defendant must prove
actual bias or structural error. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). A judge’s
ordinary efforts at courtroom administration cannot be the basis for bias or partiality. Huber v.
Rohrig, supra (citing Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474
(1994)).
        The admonition Buttercase complains about was well within the bounds of proper
courtroom administration during trial. The judge’s admonition does not appear to be anything but
ordinary and even-handed. The judge explained why he admonished Buttercase and directed the
jury to make no negative assumptions from the admonition. No reasonable person who knew the
circumstances of the case would question the judge’s impartiality under an objective standard of
reasonableness. See Huber v. Rohrig, supra. The trial court did not abuse its discretion when it
denied the motion to recuse on grounds that it had previously admonished Buttercase.




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         Buttercase next argues the presiding judge should have recused himself because Buttercase
filed a complaint against the judge with the Nebraska Judicial Qualifications Commission
(Commission). The Commission dismissed Buttercase’s complaint against the presiding judge on
October 10, 2013, well before the postconviction proceedings. Buttercase cites no precedent or
statute that suggests a recusal is required under such circumstances and we are not persuaded that
a reasonable person would question the judge’s impartiality in this case. See Huber v. Rohrig,
supra. Furthermore, adopting Buttercase’s argument would allow parties to force a judge’s recusal
simply by filing a complaint with the Commission, regardless of the complaint’s merit. The district
court did not abuse its discretion when it denied the motion to recuse on grounds that Buttercase
had filed a complaint with the Commission.
         Finally, Buttercase argues the presiding judge’s impartiality might reasonably be
questioned because of certain Facebook messages between the victim and Buttercase’s ex-wife.
The victim allegedly stated, “Plus my attorney and this judge play golf together and he likes me
. . .”; Buttercase asserts this demonstrates the presiding judge’s bias. However, Buttercase did not
mention these messages in the proceedings below or in his motion to recuse. An appellate court
will not consider an issue on appeal that was not presented to or passed upon by the trial court.
State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013). Because Buttercase first mentions these
alleged Facebook messages on appeal, he did not properly present them to the trial court and we
will not address them.
         After examining the record, we conclude the district court did not abuse its discretion by
denying Buttercase’s motion to recuse.
                                        2. MOTION TO AMEND
        Buttercase claims the district court erred by denying his motion to amend his motion for
postconviction relief. The new claim Buttercase sought to include in his proposed amended motion
stated:
                The State of Nebraska failed to turn over material evidence prior to the trial of this
        case, or at any time prior to the sentencing in this case. Specifically, a video of [Buttercase]
        and the State’s complaining witness engaged in sexual activity approximately one month
        prior to the alleged incident which gave rise to the charges in this case.
                [Buttercase] has been charged criminally in federal court and only learned that the
        State had possession of the video during the discovery process pursuant to the federal
        discovery process. The State would have seized the video during it’s [sic] investigation in
        this case, and would have had possession of said video prior to the trial in the above case.
                The failure to disclose the aforementioned video prejudiced [Buttercase’s] right to
        due process and effective assistance of counsel, as secured by the United States and
        Nebraska constitutions.

As previously noted, the district court found Buttercase filed his motion for postconviction relief
on February 19, 2015, which was within one year of the issuance of the direct appeal mandate
(March 5, 2014). However, since Buttercase did not file his motion to amend until June 29, 2015,




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the district court determined the amendment could only be allowed if it related back to the pending
motion for postconviction relief. The court relied upon § 25-201.02(1), which states:
                An amendment of a pleading that does not change the party or the name of the party
        against whom the claim is asserted relates back to the date of the original pleading if the
        claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
        occurrence set forth or attempted to be set forth in the original pleading.

The district court concluded Buttercase’s “new allegations relate to evidence that could have been
used by his trial counsel in support of the theory that the victim consented to Buttercase’s sexual
conduct.” Whereas, “the original motion for post-conviction relief alleges ineffective assistance of
[Buttercase’s] trial counsel that are separate deficiencies from the proposed amendment.” The
district court cited to United States v. Craycraft, 167 F.3d 451 (8th Cir. 1999) and State v. Manning,
18 Neb. App. 545, 789 N.W.2d 54 (2010), in further support of its decision to deny Buttercase’s
motion to amend.
         United States v. Craycraft, supra, involved a plea agreement with the defendant for
conspiring to distribute methamphetamine, in which the government indicated the possibility of a
sentence reduction if the defendant substantially assisted in the prosecution of other defendants.
However, instead of a reduction, the government sought a sentence enhancement because of a prior
felony drug conviction. No direct appeal was filed, and years later the defendant filed a pro se
petition for relief under 28 U.S.C. § 2255 (motion attacking sentence), which also has a time
limitation to file such a motion within 1 year of the latest date of various options provided by
statute. The federal court determined the defendant had timely filed his original motion, but that
his amendments were not timely. The defendant’s initial motion sought relief due to the ineffective
assistance of counsel for failure of counsel to do various things, but did not reference the failure
to file a direct appeal. The defendant filed two amended motions thereafter, which added the claim
that his counsel failed to file a direct appeal as instructed. The court stated the merits of the
defendant’s amended claim would be time-barred unless a relation back analysis was satisfied.
Similar to the Nebraska statute (§ 25-201.02(1)) relied upon by the district court in the present
matter, the federal court noted that “Fed. R. Civ. P. 15(c)(2)” provides that an “amendment to a
pleading shall ‘relate back’ to the date of the original pleading only if the claim asserted in the
original pleading and the claim asserted in the amended pleading arose out of the same conduct,
transaction, or occurrence.” United States v. Craycraft, 167 F.3d at 457. The court explained the
rationale of “Rule 15(c) is that a party who has been notified of the litigation concerning a
particular occurrence has been given all the notice that statutes of limitations were intended to
provide.” Id. The federal court determined the claim of ineffective assistance of counsel for failure
to file a direct appeal was a separate occurrence from the deficiencies stated in the defendant’s
original motion; therefore, the amendment could not relate back and was time barred. The district
court in the present matter applied a similar analysis to reach its conclusion to deny Buttercase’s
proposed amended claim.
         The district court’s reference to State v. Manning, supra, was to point out the similarity
between the prisoner in that case and Buttercase in that both attempted to later amend a pleading
with facts which were already known at the time of the original pleading. In Manning, this court



                                                -6-
noted that postconviction relief statutes do not accord the opportunity to amend a pleading after
the court determines the pleading is insufficient to necessitate an evidentiary hearing. Buttercase
points out that his request to amend was filed before the district court made a final determination
on the merits of his postconviction motion; however, as noted, the district court’s reference to the
case was for other reasons.
        Buttercase argues the district court erroneously characterized his original postconviction
motion as pertaining only to claims of ineffective assistance of counsel, whereas, he claims the
references to an “unfair trial” and prejudice resulting from the “State’s late disclosure of evidence,”
are sufficiently related to the amended claim asserting the State’s late disclosure of the video. Brief
for appellant at 31. In other words, Buttercase suggests the district court should have read his
original postconviction motion more liberally when deciding whether the proposed amendment
related back to his original motion. In support of a more liberal reading of his original motion,
Buttercase argues a “fair discussion and standard for grants of leave to amend pending
postconviction motions has been provided” in State v. Mata, 280 Neb. 849, 790 N.W.2d 716
(2010).
        In Mata, our Supreme Court stated that a prisoner’s ability to amend his postconviction
motion was governed by Neb. Ct. R. Pldg. § 6-1115(a), and under that rule, leave shall be freely
given when justice so requires. Looking to federal courts’ interpretations of the rule, our Supreme
Court said, “A district court’s denial of leave to amend pleadings is appropriate only in those
limited circumstances in which undue delay, bad faith on the part of the moving party, futility of
the amendment, or unfair prejudice to the nonmoving party can be demonstrated.” State v. Mata,
280 Neb. at 855, 790 N.W.2d at 720. The Supreme Court concluded it was an abuse of discretion
to deny the prisoner leave to amend his motion for postconviction relief under the circumstances
of that case. The court noted the prisoner, who had been sentenced to death, may have viable
ineffective assistance of counsel and other claims which, if not allowed to amend his motion,
would result in the prisoner being procedurally barred from ever bringing those claims before
being put to death. The circumstances described in Mata are not present here, and more
importantly, as discussed next, portions of Mata relied upon by Buttercase have been expressly
disfavored by our Supreme Court in a decision released last year after the district court’s decision
was entered in the present matter.
        In State v. Robertson, 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016), our Supreme Court
clarified that while a postconviction action is civil in nature, “it is not an ordinary civil action in
the context of either Neb. Ct. R. Pldg. § 6-1101 or [Neb. Rev. Stat.] § 25-801.01 [(Reissue 2008)].”
The Supreme Court further stated:
        Nowhere does the postconviction statute characterize the proceeding as an “action”; rather,
        the postconviction statute authorizes filing a “verified motion” in the criminal case. In
        contrast to a civil action, which typically results in a judgment or decree, postconviction
        relief is a special statutory proceeding that permits a collateral attack upon a criminal
        judgment and results in an order either sustaining or overruling the motion. This collateral
        proceeding is “cumulative” and “not intended to be concurrent with any other remedy
        existing in the courts of this state.” It normally is invoked only after the prisoner has failed
        to secure relief through a direct appeal of his or her conviction.



                                                 -7-
                Civil actions are controlled by a liberal pleading regime. A party is only required
       to set forth a short and plain statement of the claim showing that the pleader is entitled to
       relief. . . . The rationale for this liberal notice pleading standard is that when a party has a
       valid claim, he or she should recover on it regardless of a failure to perceive the true basis
       of the claim at the pleading stage. The directive in § 6-1115 that leave of court to amend a
       party’s pleading “shall be freely given when justice so requires” is consistent with the
       liberal pleading philosophy in civil actions.
                But the liberal pleading rules that govern civil actions are inconsistent with
       postconviction proceedings.

State v. Robertson, 294 Neb. at 41-42, 881 N.W.2d at 875 (citations omitted).
         The Supreme Court pointed out in State v. Robertson, supra, that postconviction relief is a
very narrow category of relief, and is intended to provide relief in those cases where a miscarriage
of justice may have occurred, and not to be a procedure to secure a routine review for any defendant
dissatisfied with his sentence. Id. Further, its procedures were intended to be swift, simple, and
easily invoked. Id. “Because extending civil pleading rules to postconviction proceedings is
unwise and unnecessary, we now clarify that civil pleading rules do not apply to postconviction
proceedings, and we expressly disapprove of language in Mata suggesting otherwise.” State v.
Robertson, 294 Neb. at 43-44, 881 N.W.2d at 876. Furthermore, the Nebraska Supreme Court has
made it clear that when a district court refuses to grant leave to amend an original postconviction
motion, an appellate court reviews that decision for an abuse of discretion. See State v. Edwards,
294 Neb. 1, 880 N.W.2d 642 (2016) (need not consider whether district court’s reason for denying
motion for leave to amend was tenable, because ruling did not deprive petitioner of substantial
right or just result, and therefore, could not have been abuse of discretion).
         Accordingly, Buttercase’s reliance on State v. Mata, supra, for his position that the district
court should have liberally construed his original motion for postconviction relief in order to find
his later amendment sufficiently related back to his original claims is no longer relevant in light of
our Supreme Court disfavoring the application of the more liberal civil pleading rules to
postconviction proceedings. See State v. Robertson, supra.
         Therefore, as set forth in State v. Edwards, supra, we review the district court’s order
denying Buttercase’s motion to amend his postconviction motion for an abuse of discretion, and
we find none. Whether Buttercase’s amendment sufficiently related back to his original
postconviction motion or not does not change the fact that Buttercase was not deprived of a
substantial right or just result by not being permitted to amend his original motion as requested.
His proposed amended claim that the State’s failure to turn over the video of Buttercase and the
victim engaged in sexual activity one month prior to the assault somehow prejudiced him and
denied him due process and effective assistance of counsel is not supported by the record. We note
initially that Buttercase’s proposed amendment did not explain the significance of the video or
how it would have changed the outcome of the case, and was therefore insufficiently pled even if
the amendment had been allowed. Notably, however, it was undisputed at trial that Buttercase and
the victim had engaged in consensual sex, including being sexually intimate periodically for
several months after they broke up in March 2011. See State v. Buttercase, No. A-12-1167



                                                 -8-
(memorandum opinion released November 5, 2013). Since the assault leading to Buttercase’s
conviction occurred in July 2011, it is unclear how a video showing Buttercase and the victim
engaged in sexual activity approximately one month before the assault would have changed the
outcome of the case. The district court did not abuse its discretion by denying the motion to amend,
even if for different reasons than found by this court. See Logan Ranch v. Farm Credit Bank, 238
Neb. 814, 472 N.W.2d 704 (1991) (if a trial court arrives at the correct result even though it uses
a reason different from that expressed by an appellate court, its judgment will still be upheld).
                              3. MOTION FOR POSTCONVICTION RELIEF
         Buttercase raised a series of ineffective assistance of counsel claims against his trial
counsel, who was also his counsel on direct appeal. He alleged his counsel was ineffective because
he failed to: use the testimony of a witness, Sondra Aden; appeal the denial of a motion to suppress;
appeal the result of the Franks hearing; properly investigate the case (in relation to allegedly late
disclosed evidence); object to some of the State’s photographic evidence; object to Dr. Jurich’s
testimony; call a medical expert at trial; and file a motion for a change of venue. Buttercase also
claimed that he was entitled to postconviction relief because the State did not timely disclose
certain evidence and that this delay prejudiced his defense.
         On appeal, Buttercase argues he should have received an evidentiary hearing on his motion
for postconviction relief because, “A) the lower court’s impartiality is demonstrated by its denials,
and B) the appellant has alleged facts which, if developed, would show that he was convicted in
violation of his state and federal rights.” Brief for appellant at 38.
         A defendant seeking relief under the Nebraska Postconviction Act must show that his or
her conviction was obtained in violation of his or her constitutional rights. State v. Robertson, 294
Neb. 29, 881 N.W.2d 864 (2016). 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 voidable. Id. When a district court denies
postconviction relief without conducting an evidentiary hearing, an appellate court must determine
whether the petitioner has alleged facts that would support a claim of ineffective assistance of
counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no
relief. Id. If the petitioner has not alleged facts which would support a claim of ineffective
assistance of counsel or if the files and records affirmatively show he or she is entitled to no relief,
then no evidentiary hearing is necessary. Id.
         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 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 deficient performance prejudiced the defense in his or her case. State
v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). The two prongs of this test, deficient performance
and prejudice, may be addressed in either order. Id.




                                                 -9-
                                        (a) Aden’s Testimony
        The district court determined that the claim regarding newly discovered evidence (Aden’s
testimony) was procedurally barred because it had been presented in a motion for a new trial and
because Buttercase challenged the denial of his motion for a new trial on direct appeal. On direct
appeal, we affirmed the trial court’s denial of the motion for a new trial based on Aden’s new
evidence, concluding that Aden’s testimony was only beneficial to discredit the victim’s
testimony, that Aden’s testimony did not necessarily contradict the evidence offered at trial and,
as such, was merely cumulative, and that the victim’s testimony was supported by ample physical
evidence. See State v. Buttercase, No. A-12-1167 (memorandum opinion released November 5,
2013).
        A motion for postconviction relief cannot be used to secure review of issues which were
or could have been litigated on direct appeal, no matter how those issues may be phrased or
rephrased. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010). Buttercase raised the issue of
Aden’s testimony in his motion for new trial and on direct appeal. He may not use a motion for
postconviction relief to seek further review on this claim. The district court correctly concluded
that this claim is procedurally barred.
                                       (b) Motion to Suppress
         Buttercase claimed his trial counsel was ineffective for failing to appeal the district court’s
denial of a pretrial motion to suppress. However, Buttercase filed more than one motion to suppress
in previous proceedings, one on February 29, 2012, and another on July 18, 2012. He did not
identify which of these two motions provide grounds for his ineffective assistance claim in his
postconviction motion.
         The district court correctly noted that the burden is on Buttercase to establish the basis for
the requested relief. State v. Golka, supra. In failing to identify which motion to suppress his trial
counsel should have appealed, Buttercase failed to establish the basis for relief. Additionally,
Buttercase failed to allege prejudice from his trial counsel’s decision not to appeal either of the
motions to suppress. We agree with the trial court that “[t]he Defendant fails to identify which
motion is the target of his claim, and the Court is not required to guess.”
         Furthermore, the trial court noted that both motions to suppress were connected to Counts
II, III, and IV of the amended information and that these charges, related to child pornography,
were eventually severed from the charges for which Buttercase was eventually convicted in this
case. The State dismissed Counts II, III, and IV, and therefore, the motions to suppress had no
connection to Buttercase’s ultimate convictions in the present case. Thus, the trial court correctly
concluded that the ineffective assistance claim connected with the motions to suppress was refuted
by the record and insufficiently pleaded to require an evidentiary hearing.
                                         (c) Franks Hearing
       Buttercase next claimed that “[p]rior to the trial the Defendant filed a motion requesting a
Franks hearing. The motion was ultimately overruled, and Defendant’s trial counsel failed to raise
the court’s ruling on the motion on appeal.” See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,
57 L.Ed.2d 667 (1978) (when a defendant makes a substantial preliminary showing that a false



                                                 - 10 -
statement knowingly and intentionally, or with reckless disregard for the truth, was included by
affiant in a search warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s
request). The district court denied the ineffective assistance claim connected with this argument,
concluding that Buttercase failed to make a specific pleading of prejudice.
         Like the motions to suppress, the Franks hearing was in connection with Counts II, III, and
IV of the amended information, and these charges were severed from the charges for which
Buttercase was eventually convicted in this case. Because the charges were ultimately severed and
dismissed, the evidence gathered from the search warrants in question during the Franks hearing
is not part of the trial record in this case. Therefore, the district court noted that “there was no
logical reason” to raise the alleged error on appeal. We agree.
                                  (d) Late Disclosure of Evidence
       Buttercase alleged that certain evidence was not disclosed to him during the discovery
process before his trial, and this failure prejudiced his:
       ability to have a fair trial and effective assistance of counsel. The State of Nebraska had an
       ongoing duty to supplement discovery and to disclose evidence to Defendant’s Counsel
       and Defendant, and Defendant’s counsel had a duty to properly investigate the case and
       present the exhibits to the Defendant for his review.

However, Buttercase did not describe the evidence at issue in his motion for postconviction relief,
nor did he indicate whether the evidence was documentary or testimony. The district court found
that this claim was conclusory and not pleaded in enough detail to warrant an evidentiary hearing.
See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013). We agree.
         A petitioner’s postconviction claims that his or her trial counsel was ineffective in failing
to investigate possible defenses are too speculative to warrant relief if the petitioner fails to allege
what exculpatory evidence that the investigation would have procured and how it would have
affected the outcome of the case. State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). Buttercase
did not describe how the alleged late disclosure of unidentified evidence created or caused
ineffective assistance by his trial counsel. His claim is too speculative to warrant an evidentiary
hearing.
                                (e) Failure to Object to Photographs
       Buttercase alleged that “the state presented photographs as exhibits and Defendant’s
Counsel failed to object based on failure to disclose pursuant to the discovery Order of the Court.”
Buttercase did not identify or describe the photographs, describe the objection he believes trial
counsel should have made, or how an objection would have affected his case. The district court
found that the claim was conclusory and not pleaded in enough detail to warrant an evidentiary
hearing. See State v. Marks, supra. We agree.
       Buttercase’s motion for postconviction relief, specifically paragraph 8 regarding
photographs, does not contain allegations specific enough to warrant an evidentiary hearing.
Buttercase does not identify the photographs in question, nor does he identify how or why his




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counsel should have objected to their introduction. The burden is on a defendant to establish the
basis for the requested relief. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). Without
identifying the subject of his allegations, e.g. specific photographs, Buttercase cannot show how
his counsel’s performance was deficient or that any defective performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
                                     (f) Dr. Jurich’s Testimony
        Buttercase alleged that his trial counsel was ineffective for failing to object to Dr. Jurich’s
testimony and her credentials as an expert witness. The district court concluded that this allegation
was insufficiently pleaded and refuted by the record.
        The record shows that Buttercase’s trial counsel objected to Dr. Jurich’s testimony.
Specifically, when asked if there were any objections, Buttercase’s trial counsel responded: “My
objections are to relevance and 403 [probative value substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence].” Buttercase did not identify
what additional objection trial counsel should have made to Dr. Jurich’s testimony or grounds on
which trial counsel should have objected to Dr. Jurich’s credentials. He thus failed to establish the
basis for the requested relief. State v. Golka, supra. Without this information, Buttercase cannot
show how his counsel’s performance was deficient or that any defective performance prejudiced
his defense. See Strickland v. Washington, supra.
                                         (g) Medical Expert
        Buttercase asserted his trial counsel was deficient for failing to call a medical expert who
had been hired to review photographs of the victim’s injuries and police reports. He alleged that
this unnamed medical expert’s opinion would contradict the victim’s testimony. Buttercase did not
identify the witness or the proposed testimony he referred to in this argument.
        A postconviction allegation that defense counsel was ineffective in failing to procure
witnesses favorable to the defendant is dismissed without an evidentiary hearing when the motion
does not specifically identify the witnesses or the nature of their testimony. State v. McGhee, 280
Neb. 558, 787 N.W.2d 700 (2010). In the absence of specific allegations in this regard, a trial court
need not conduct a discovery hearing to determine if anywhere in this wide world there is some
evidence favorable to defendant’s position. Id. The district court properly denied postconviction
relief on this ground.
                                        (h) Change of Venue
        Buttercase argued his trial counsel was ineffective for failing to file a motion for change of
venue. Buttercase claims that such a motion would have resulted in an impartial jury. The district
court concluded that Buttercase failed to allege any facts suggesting the jury was not impartial.
Finally, the district court noted that Buttercase failed to sufficiently allege he was prejudiced by
trial counsel’s failure to request a change of venue.
        Juror exposure to information about a state defendant’s prior convictions or to news
accounts of the crime with which he is charged does not alone presumptively deprive the defendant




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of due process. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). A court will normally not
presume unconstitutional partiality because of media coverage, unless the record shows a barrage
of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion
or resulting in a trial atmosphere utterly corrupted by press coverage. Id. The quantum of news
coverage is not dispositive. Id. Even the community’s extensive knowledge about the crime or the
defendant through pretrial publicity is insufficient in itself to render a trial constitutionally unfair
when the media coverage consists of merely factual accounts that do not reflect animus or hostility
toward the defendant. Id.
        Buttercase provided no evidence of inflammatory news coverage so egregious that it
corrupted the trial atmosphere. In fact, he provided no evidence of bias outside his own assertions.
The district court did not err in denying postconviction relief on this ground.
        We have reviewed each allegation in Buttercase’s motion for postconviction relief and
conclude there are no factual allegations which, if proved, constitute an infringement on his rights
under the constitutions of Nebraska and the United States. The records and files in the case
affirmatively show that Buttercase is entitled to no relief.
                                         VI. CONCLUSION
        For the reasons stated above, we affirm the district court’s denial of Buttercase’s motions
to recuse, to amend, and for postconviction relief without an evidentiary hearing.
                                                                                         AFFIRMED.




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