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03/10/2017 09:08 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                                 STATE v. JACKSON
                                                  Cite as 296 Neb. 31




                                        State of Nebraska, appellee, v.
                                        Michael T. Jackson, appellant.
                                                   ___ N.W.2d ___

                                         Filed March 10, 2017.   No. S-16-643.

                1.	 Postconviction: Appeal and Error. Whether a claim raised in a post-
                     conviction proceeding is procedurally barred is a question of law.
                2.	 Judgments: Appeal and Error. When reviewing questions of law,
                     an appellate court resolves the questions independently of the lower
                     court’s conclusion.
                3.	 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.
                4.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
                     presented for review, it is the duty of an appellate court to determine
                     whether it has jurisdiction over the matter before it, even where no party
                     has raised the issue.
                5.	 Postconviction: Appeal and Error. A defendant is entitled to bring a
                     second proceeding for postconviction relief only if the grounds relied
                     upon did not exist at the time the first motion was filed.
                 6.	 ____: ____. There are two circumstances which provide a new ground
                     for relief constituting an exception to the procedural bar to a successive
                     postconviction proceeding: (1) where the defendant brings a motion for
                     postconviction relief based on ineffective assistance of trial or direct
                     appeal counsel which could not have been raised earlier and (2) where
                     the defendant brings a successive motion for postconviction relief based
                     on newly discovered evidence that was not available at the time the
                     prior motion was filed.
                7.	 Postconviction. The need for finality in the criminal process requires
                     that a defendant bring all claims for relief at the first opportunity.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                               STATE v. JACKSON
                                Cite as 296 Neb. 31

 8.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
     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 the claim and, if
     so, whether the files and records affirmatively show that he or she is
     entitled to no relief.

  Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
      Jerry M. Hug and Alan G. Stoler, P.C., L.L.O., for appellant.
  Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, Stacy M. Foust for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
      Cassel, J.
                       I. INTRODUCTION
   Michael T. Jackson appeals from an order denying his
second motion for postconviction relief. Jackson was proce-
durally barred in asserting all but one of his claims, and he
failed to allege sufficient facts to support his remaining claim.
We affirm.
                      II. BACKGROUND
   Jackson was convicted of first degree murder, attempted
first degree murder, and two counts of use of a deadly weapon
to commit a felony. He was sentenced to life imprisonment
on the murder conviction and various terms of imprisonment
on the other convictions. In our opinion on direct appeal, we
recounted the underlying facts and circumstances and affirmed
his convictions and sentences.1
   After his direct appeal concluded, Jackson filed his first
motion for postconviction relief and alleged several claims of
ineffective assistance of trial counsel, ineffective assistance of

 1	
      State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                              STATE v. JACKSON
                               Cite as 296 Neb. 31

appellate counsel, and prosecutorial misconduct. The district
court granted an evidentiary hearing, but after the hearing, it
overruled Jackson’s motion. On appeal, we affirmed the denial
of postconviction relief.2
   Jackson was represented by one attorney at trial, a second
attorney on direct appeal, a third attorney for the first postcon-
viction motion, and a fourth attorney on the appeal from the
denial of the first postconviction motion.
   Represented by a fifth attorney, Jackson filed a second
motion for postconviction relief. He alleged numerous claims
in his motion, which we summarize as follows: (1) The trial
court committed reversible plain error in instructing the jury
on seven separate jury instructions, (2) he received ineffec-
tive assistance of both trial counsel and appellate counsel, (3)
there was prosecutorial misconduct, (4) his appellate counsel
had a conflict of interest, (5) there was a denial of due proc­ess
through the negligence of postconviction counsel and appellate
postconviction counsel, and (6) there was a denial of due proc­
ess and right to a fair trial through the misconduct of David
Kofoed, the former supervisor of the Crime Scene Investigation
Division for the Douglas County sheriff’s office.
   In support of Jackson’s claim concerning Kofoed’s miscon-
duct allegedly occurring in the division’s crime laboratory,
Jackson argued that of the two investigating officers who
conducted a search of the vehicle he was known to be driving,
only one noticed “‘red stains’” on some of the clothing found
in the trunk of the vehicle. He specifically alleged Kofoed’s
history of tampering with evidence and falsifying reports
and argued that it was only after Kofoed and the other initial
investigating officer inventoried the items found in the trunk
that the officer noted apparent bloodstains. He also argued
that the “Crime Lab, and as a result, Kofoed,” had vials of
the murder victim’s blood for months before the clothing
was tested and revealed the presence of the victim’s blood.

 2	
      State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                               STATE v. JACKSON
                                Cite as 296 Neb. 31

Therefore, Jackson suggested that Kofoed, or another officer,
planted the victim’s blood on Jackson’s clothing that was
found in the vehicle.
   In the same motion, Jackson petitioned in the alternative
for relief under the common-law writ of error coram nobis. He
alleged that the above claims all presented matters of fact that
were “effectively unavailable to him at the time of trial” and
that would have prevented the judgment had they been known
at the time.
   The district court denied Jackson’s motion. The court found
that Jackson’s claims concerning jury instructions, ineffective
assistance of counsel, prosecutorial misconduct, and appellate
counsel’s conflict of interest were procedurally barred. The
court also found that Jackson was not entitled to relief on his
claims concerning postconviction counsel. It noted that Jackson
argued the claims as a denial of due process but that he pro-
vided no supporting authority for this argument. Therefore, the
court concluded that his claims were grounded in ineffective
assistance of postconviction counsel. And there is no relief for
ineffective assistance of postconviction counsel.3 Finally, the
court denied Jackson’s claim concerning the involvement of
Kofoed in the crime laboratory investigation. The court found
that Jackson merely alleged Kofoed’s involvement and history
of fabricating evidence and that this was insufficient to support
a claim. Furthermore, the court noted that no evidentiary hear-
ing was warranted, especially since “the original investigating
officer noticed ‘red stain type discolorations’ on the clothing
before Kofoed was involved.”
   Jackson now appeals to this court.
               III. ASSIGNMENTS OF ERROR
   Jackson assigns, restated, that the district court erred in
determining that (1) he was procedurally barred in his claims
that certain jury instructions given at trial were reversible

 3	
      See State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                STATE v. JACKSON
                                 Cite as 296 Neb. 31

error, (2) he was procedurally barred in his claim that appellate
counsel had a conflict of interest, and (3) he was not entitled to
an evidentiary hearing on his claim of evidence tampering and
outrageous governmental conduct.
   Jackson did not assign error to the district court’s denial of
his request for a writ of error coram nobis. Thus, we do not
address the denial of this alternative motion.

                  IV. STANDARD OF REVIEW
   [1,2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.4 When reviewing
questions of law, an appellate court resolves the questions inde-
pendently of the lower court’s conclusion.5
   [3] 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.6

                         V. ANALYSIS
                         1. Jurisdiction
   [4] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, even where no party has
raised the issue.7 Relying on the procedure in State v. Smith8
and based solely on official negligence, the district court effec-
tively extended the time for appeal. Such orders must be sup-
ported by evidence.9 Although we have no bill of exceptions,

 4	
      State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
 5	
      Id.
 6	
      State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
 7	
      In re Interest of Luz P. et al., 295 Neb. 814, ___ N.W.2d ___ (2017).
 8	
      State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
 9	
      See In re Interest of Luz P. et al., supra note 7.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                               STATE v. JACKSON
                                Cite as 296 Neb. 31

the order persuades us that it had the necessary support. We
have jurisdiction of Jackson’s appeal.
              2. Denial of Postconviction R elief
   [5,6] A defendant is entitled to bring a second proceed-
ing for postconviction relief only if the grounds relied upon
did not exist at the time the first motion was filed.10 We have
recognized two circumstances which provide a new ground
for relief constituting an exception to this procedural bar: (1)
where the defendant brings a motion for postconviction relief
based on ineffective assistance of trial or direct appeal counsel
which could not have been raised earlier and (2) where the
defendant brings a successive motion for postconviction relief
based on newly discovered evidence that was not available at
the time the prior motion was filed.11
                (a) Procedurally Barred Claims
   Jackson apparently concedes that his claims concerning jury
instructions are procedurally barred because postconviction
counsel “fail[ed] to properly present these specific issues to
the courts on his first Motion for Postconviction relief.”12 To
avoid the procedural bar, he asks this court to reconsider our
decision in State v. Hessler.13 In Hessler, we reaffirmed our
determination that postconviction relief cannot be obtained on
the basis of ineffective assistance of postconviction counsel.
However, Jackson offers no persuasive authority and we see
no reason to reconsider our holding in Hessler. We will con-
tinue to enforce our well-established procedural rules.
   [7] The need for finality in the criminal process requires that
a defendant bring all claims for relief at the first opportunity.14

10	
      See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
11	
      See State v. Hessler, supra note 3.
12	
      Brief for appellant at 10.
13	
      State v. Hessler, supra note 3.
14	
      State v. Ely, supra note 4.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                              STATE v. JACKSON
                               Cite as 296 Neb. 31

Jackson’s claims concerning jury instructions and his claim of
appellate counsel conflict of interest could have been raised
earlier. Therefore, Jackson was procedurally barred from rais-
ing these claims in his second motion for postconviction relief.
Jackson’s first two assignments of error are without merit.
                 (b) Claim of Crime Laboratory
                           Misconduct
   [8] When a district court denies postconviction relief with-
out conducting an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would
support the claim and, if so, whether the files and records
affirm­atively show that he or she is entitled to no relief.15
   Jackson claims that he was entitled to an evidentiary hear-
ing to establish that evidence used against him was planted or
fabricated by Kofoed or another crime laboratory official. In
his motion, Jackson alleged that there were inconsistent state-
ments about blood on clothing that was found in the trunk
of the vehicle Jackson had been driving. He further alleged
that Kofoed was involved in discovering and matching the
blood to that of the homicide victim and that Kofoed had
access to samples of the victim’s blood before the clothing
was tested. In light of these circumstances, Jackson argued
that there were enough similarities to Kofoed’s pattern of fab-
ricating evidence in other cases to doubt the reliability of the
blood evidence.
   In State v. Cook,16 another case involving an allegation
that Kofoed tampered with evidence, we found that “[s]imply
alleging Kofoed’s involvement in the investigation and his
history of fabricating evidence is not sufficient on its own
to support a claim for postconviction relief.” In reaching this
conclusion, we reviewed our decision in State v. Edwards,17

15	
      Id.
16	
      State v. Cook, 290 Neb. 381, 390, 860 N.W.2d 408, 414 (2015).
17	
      State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                               STATE v. JACKSON
                                Cite as 296 Neb. 31

where we granted an evidentiary hearing on a defendant’s
claim that Kofoed tampered with evidence, and noted that
we did so “when the allegations made by the defendant
were similar to Kofoed’s unlawful conduct in two prior
investigations.”18
   Like the situation in Cook, the facts and allegations in this
case do not suggest unlawful conduct similar to Kofoed’s two
prior investigations. Here, “‘red stain type discolorations’”
were found on the clothing before Kofoed was ever involved.
And, when Kofoed was called to document the evidence, he
worked alongside the officers already on the scene. The report-
ing officer, not Kofoed, characterized the red stains as blood
and noted in his report that the blood found on the clothing was
along the rear pocket and seam of a pair of jeans and along the
right rear hip area of a shirt and coat. This report was created
the day after the homicide, several hours before the victim’s
blood samples were retrieved and placed into evidence at the
crime laboratory. And, Kofoed was not the one to send the
clothing and blood samples into evidence.
   These facts distinguish the instant case from the situation
in Edwards. Jackson’s allegations do not resemble Kofoed’s
pattern of “finding” blood in obscure places, keeping evidence
for days before another investigator could test it, and alleg-
edly submitting swabs of evidence instead of the evidence
itself.19 Thus, the evidence does not support Jackson’s theory
that the blood was planted by Kofoed in the time before the
clothing was tested and after he had access to the victim’s
blood samples.
   Jackson also offered the depositions of two witnesses who
claimed to see him within an hour of the homicide and who
stated that they did not see blood on the clothing he was
wearing. But that does not mean that it was not there. As the
State correctly argues, the report identified blood on the rear

18	
      State v. Cook, supra note 16, 290 Neb. at 389, 860 N.W.2d at 414.
19	
      See, e.g., id.; State v. Edwards, supra note 17.
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           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                        STATE v. JACKSON
                         Cite as 296 Neb. 31

pocket of the jeans and the rear hip area of the shirt and coat.
Given this location, the witnesses could have failed to notice it
or to recognize that it was blood. Without more factual allega-
tions, this leaves only Jackson’s allegation of Kofoed’s history
and involvement in the investigation of his case. On its own,
this fails to support a claim for postconviction relief.
   We agree with the district court’s conclusion that no eviden-
tiary hearing was required. Jackson’s last assignment of error
lacks merit.
                       VI. CONCLUSION
   Jackson’s claims concerning jury instructions and appellate
counsel conflict of interest were known and could have been
raised in prior proceedings. As such, they are procedurally
barred. Jackson also failed to allege sufficient facts to support
his claim of Kofoed’s crime laboratory misconduct. For these
reasons, we affirm the denial of Jackson’s second motion for
postconviction relief.
                                                      A ffirmed.
