                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. PARNELL


  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.

           KEINALD V. PARNELL, ALSO KNOWN AS REGINALD V. PARNELL, APPELLANT.


                            Filed October 16, 2018.    No. A-17-1147.


       Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Affirmed.
       Keinald V. Parnell, pro se.
       Douglas J. Peterson, Attorney General, and, on brief, Sarah E. Marfisi for appellee.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Keinald V. Parnell appeals from the order of the district court for Douglas County, which
denied his motion for postconviction relief without an evidentiary hearing. For the reasons set forth
herein, we affirm.
                                       II. BACKGROUND
       As recited in this court’s memorandum opinion on direct appeal:
               Parnell was charged with burglary, terroristic threats, first degree false
       imprisonment, two counts of use of a firearm to commit a felony, possession of a firearm
       by a prohibited person, and misdemeanor violation of a protection order. The State also
       alleged that Parnell was a habitual criminal. Parnell pled guilty to the violation of a
       protection order and proceeded to trial on the remaining six charges.



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                The evidence at trial showed that in the early morning hours of May 9, 2015, Parnell
        entered the house of his ex-girlfriend, Randie Frederick. Randie was not home, but her
        adult son, Dominic Frederick, was asleep in the living room. Dominic’s two children, who
        also lived in the house, were not at home that night. Parnell brandished a knife and,
        Dominic later claimed, a gun, and forced Dominic to remain in the living room of the house
        until the morning hours. In the morning, Dominic’s uncle came by the house after receiving
        no answer to phone calls to Dominic’s cellphone. The uncle saw Dominic sitting on a couch
        inside the house and saw another figure in the house, but left without speaking to Dominic.
        Shortly thereafter, the Fredericks’ next door neighbor saw a broken window on the
        Fredericks’ house and called the police. Following the police’s arrival, Dominic was able
        to safely exit the house and an hours-long standoff between Parnell and police ensued.
        Parnell was eventually apprehended in the attic of the house and arrested.
                On the day of Parnell’s arrest, police collected a knife and a glove from the
        Fredericks’ home. Two days later, Dominic summoned the police back to his house to
        retrieve a second knife he claimed to have found in the attic. Eleven days later, police
        returned to the house with special equipment and located a gun in the basement drywall.
                The jury found Parnell guilty of burglary, false imprisonment, and terroristic
        threats, and acquitted him of the three firearms charges.
                The court ordered a presentence investigation and conducted an enhancement
        hearing. The court found Parnell to be a habitual criminal and sentenced him to 30 to 30
        years for burglary, 30 to 30 years for terroristic threats, 30 to 30 years for false
        imprisonment, and one year for violation of a protection order. The court ordered that all
        four sentences be served concurrently and awarded Parnell credit for 327 days served.

State v. Parnell, No. A-16-354, 2016 WL 7209829 at *1 (Neb. App. Dec. 13, 2016) (selected for
posting to court website).
          On direct appeal, Parnell was represented by the same attorney that had represented him at
trial. In the brief filed by his attorney, Parnell alleged that there was insufficient evidence to support
his convictions for burglary, terroristic threats, and false imprisonment. He also alleged that he
received excessive sentences for those three convictions. Although Parnell also submitted two pro
se briefs on direct appeal, his arguments in those briefs either mirrored those asserted by his
attorney or failed to comply with this court’s rules, and we did not separately address them. This
court affirmed, finding the evidence sufficient to support Parnell’s convictions for burglary,
terroristic threats, and false imprisonment and finding that the sentences imposed were not
excessive. See State v. Parnell, supra.
          On June 8, 2017, Parnell filed a pro se verified motion for postconviction relief. He set
forth various claims of ineffective assistance of trial counsel, ineffective assistance of appellate
counsel, prosecutorial misconduct, trial court error, and actual innocence. On October 6, the
district court entered an order, denying Parnell’s motion for postconviction relief without an
evidentiary hearing. We discuss the court’s reasoning below as necessary to our resolution of the
issues raised on appeal. Parnell subsequently perfected his appeal to this court.




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                                  III. ASSIGNMENTS OF ERROR
        Parnell asserts, restated, that the district court erred in failing to (1) conduct an evidentiary
hearing on the allegations contained in his motion for postconviction relief, (2) address “the
Confrontation Clause, Compulsory process and the Fourth Amendment,” (3) address “the
constitution [sic] right to a [s]peed[y] [t]rial violation in violation to due [p]rocess,” (4) hold an
evidentiary hearing on his claim that his counsel was ineffective because she had a conflict of
interest, and (5) hold an evidentiary hearing on his claims of actual innocence, ineffective
assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct,
and misconduct by the trial judge. Brief for appellant at 2.
                                   IV. 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. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).
        Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). When reviewing a question of
law, an appellate court resolves the question independently of the lower court’s conclusion. Id.
        A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact. Id. When reviewing a claim of ineffective assistance of counsel, an appellate court
reviews the factual findings of the lower court for clear error. Id. With regard to questions of
counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the lower court’s conclusion. State v.
McGuire, supra.
                                            V. ANALYSIS
                                  1. APPLICABLE LEGAL PRINCIPLES
        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. State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413
(2018). 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. Stricklin, supra.
        A trial court must grant an evidentiary hearing to resolve the claims in a postconviction
motion when the motion contains factual allegations which, if proved, constitute an infringement
of the defendant’s rights under the Nebraska or federal Constitution. State v. Stricklin, supra. If a
postconviction motion alleges only conclusions of fact or law, or if the records and files in a case
affirmatively show the defendant is entitled to no relief, the court is not required to grant an
evidentiary hearing. Id. In a postconviction proceeding, an evidentiary hearing is not required (1)
when the motion does not contain factual allegations which, if proved, constitute an infringement




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of the movant’s constitutional rights; (2) when the motion alleges only conclusions of fact or law;
or (3) when the records and files affirmatively show that the defendant is entitled to no relief. Id.
         As discussed further below, certain issues raised by Parnell in this postconviction appeal
were or could have been litigated on direct appeal and are thus procedurally barred. However,
because Parnell was represented by the same counsel at trial and on direct appeal, this is his first
opportunity to raise issues of ineffective assistance of trial and appellate counsel. Although a
motion for postconviction relief cannot be used to secure review of issues which were or could
have been litigated on direct appeal, when a defendant was represented by the same lawyer both
at trial and on direct appeal, the defendant’s first opportunity to assert ineffective assistance of
counsel is in a motion for postconviction relief. Id.
         A proper ineffective assistance of counsel claim alleges a violation of the fundamental
constitutional right to a fair trial. State v. Stricklin, supra. To establish a right to postconviction
relief because of counsel’s ineffective assistance, 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; that is, counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. State v. Foster, 300 Neb. 883, 916 N.W.2d 562
(2018). Next, the defendant must show that counsel’s deficient performance prejudiced the defense
in his or her case. Id. To establish the prejudice prong of a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. A court may address the
two prongs of this test, deficient performance and prejudice, in either order. State v. Collins, 299
Neb. 160, 907 N.W.2d 721 (2018).
         Guided by the above principles, we address Parnell’s assignments of error in this
postconviction appeal.
                             2. EVIDENTIARY HEARING ON ALL CLAIMS
         Parnell first asserts that the district court erred in failing to conduct an evidentiary hearing
on the allegations contained in his motion for postconviction relief. In arguing this assignment of
error, Parnell states that in his motion for postconviction relief he alleged “ineffective assistance
of trial counsel, ineffective assistance of appell[ate] counsel, prosecutorial [m]isconduct, [t]rial
[j]udge errors, and actual [i]nnocen[ce], that amounts to 93 errors that [were] committed before,
during and after trial that is a miscarriage of justice.” Brief for appellant at 12-13. Parnell cites
various propositions of law in this section of his brief, making a number of vague and generalized
arguments, and concludes that an evidentiary hearing was required on all claims set forth in his
motion. He does not, however, specifically argue any of the claims on which he asserts he was
entitled to an evidentiary hearing. 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. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018). Further, a generalized and vague
assignment of error that does not advise an appellate court of the issue submitted for decision will
not be considered. State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). Parnell’s assertion
that the court erred in failing to conduct an evidentiary hearing on the allegations contained in his
motion for postconviction relief and his vague and generalized arguments in support of that



                                                  -4-
assertion are not sufficiently specific to be addressed by this court on appeal. However, to the
extent that Parnell has provided more specific argument in support of his claims elsewhere in his
brief, we address those arguments below.
                             3. WITNESSES AND MOTION TO SUPPRESS
         Next, Parnell asserts that the district court erred in failing to address “the Confrontation
Clause, Compulsory process and the Fourth Amendment.” Brief for appellant at 2. More
specifically, he argues that his trial counsel was ineffective in failing to call certain witnesses and
in failing to file a motion to suppress.
                                    (a) Failure to Call Witnesses
        On appeal, Parnell asserts that his trial counsel was ineffective for failing to call the
following witnesses: Officer Andrew Passo, Anthony Warner, Danny Barfield, Lisa Estrada, Joe
Choquette, and a DNA expert. The Nebraska Supreme Court has upheld dismissal without an
evidentiary hearing of claims that trial counsel was ineffective for failing to call particular
witnesses, where the defendant’s postconviction motion did not include specific allegations as to
the testimony those witness would have given if called to testify at trial. See State v. Foster, 300
Neb. 883, 916 N.W.2d 562 (2018); State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State
v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
        [I]n a motion for postconviction relief, a defendant is required to specifically allege what
        the testimony of potential witnesses would have been if they had been called at trial in
        order to avoid dismissal without an evidentiary hearing. Absent specific allegations, a
        motion for postconviction relief effectively becomes a discovery motion to determine
        whether evidence favorable to a defendant’s position actually exists

State v. Foster, 300 Neb. at 893, 916 N.W.2d at 573-74. As discussed below, Parnell is not entitled
to an evidentiary hearing on this issue because his vague descriptions of witness testimony fail to
allege facts that, if proved, would constitute a violation of his rights. Further, he has not shown
how the result of the trial would have been different had these witnesses been called.
                                             (i) Warner
         In his motion for postconviction relief, Parnell alleged that Warner would have verified
Parnell’s employment and testified that Parnell “constantly loaned [the] victim’s mother money.”
At trial, the victim testified that Parnell held him at knife point in order to collect money from the
victim’s mother. Testimony from Warner that the victim’s mother owed Parnell money would not
have been helpful to Parnell and it would have been cumulative to the victim’s testimony.
Testimony regarding Parnell’s employment would not have been particularly relevant to the
charges at issue. Parnell has not shown how the result of the trial would have been different had
his attorney called Warner as a witness. The record affirmatively refutes Parnell’s claim that he
was prejudiced by his trial counsel’s failure to call Warner as a witness at trial.




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                                            (ii) Barfield
        In his postconviction motion, Parnell asserted that Barfield would have verified that Parnell
worked for him and would have testified as to “what kind of person [Parnell] was.” Again,
evidence regarding Parnell’s employment would not have been relevant to the charges at issue. To
the extent Parnell suggests that Barfield would have offered some testimony of his character,
Parnell has not alleged what that testimony would have been or how it would have been relevant
to the issues at trial. Parnell has not shown that there is a reasonable likelihood that the result of
the proceedings would have been different if his attorney had called Barfield as a witness.
                                            (iii) Estrada
        In his motion, Parnell asserted that Estrada would have testified as to the character of the
victim and the victim’s mother’s character and would have been able to “clarify that Victim and
his Mother lie on people for personal gain and that Victim’s mother is known to use men for there
[sic] money and then get them falsely accused of crimes and put into prison.”
        At trial, Parnell’s attorney cross-examined the victim thoroughly and asserted in closing
arguments that the victim was a “liar.” Assuming the proposed character evidence from Estrada
set forth in Parnell’s postconviction motion would have been admissible at trial, the proposed
evidence does not add any new facts regarding the underlying details of the crimes with which
Parnell was charged. His attorney presented the jury with the theory that the victim was not a
credible witness. Parnell has not shown a reasonable probability that the result of the proceeding
would have been different if his attorney had presented the testimony from Estrada set forth in his
motion for postconviction relief.
        In his brief on appeal, Parnell also asserts Estrada would have testified that she was with
Parnell until 5 a.m. the day of the burglary and that he did not “have a firearm on him.” Brief for
appellant at 17. Because this particular allegation was not contained in Parnell’s postconviction
motion, we do not consider it. See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (appellate
court will not consider question not presented to district court for disposition through defendant’s
motion for postconviction relief).
                                             (iv) Passo
         In his postconviction motion, Parnell asserted that Passo would have testified that he saw
Parnell smoking a cigarette and that this testimony “would have added more reasonable doubt to
the prosecution[’]s case that [Parnell] had a knife in one hand and gun in the other.” However, at
trial, Parnell’s attorney cross-examined the victim in detail regarding his claim that Parnell held
both a knife and a gun at the same time. The jury acquitted Parnell of the use of a deadly weapon
(firearm) to commit a felony charges, apparently rejecting the victim’s assertion that Parnell held
a firearm. The rejection of this assertion does not preclude the possibility that Parnell used a knife
during the events in question. Any testimony by Passo that Parnell held a cigarette does not
automatically conflict with the victim’s testimony that Parnell held him at knife point. Parnell
cannot show prejudice from his attorney’s failure to present the proposed testimony from Passo.




                                                -6-
                                   (v) Choquette and DNA Expert
         Finally, in his postconviction motion, Parnell alleged that his trial counsel was ineffective
for failing to call Choquette and a DNA expert as potential witnesses, but he did not allege what
their testimony would have been or explain how testimony from these two witnesses would have
helped his case. Because Parnell’s motion did not include specific allegations as to the testimony
these witnesses would have given if called at trial, an evidentiary hearing was not required. See
State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).
                               (b) Failure to File Motion to Suppress
        In connection with his second assignment of error, Parnell also argues that his trial counsel
was ineffective for failing “to even object to the illegal search and to move to suppress the knife
that was found by the victim . . . in the attic.” Brief for appellant at 18. The district court rejected
this claim raised by Parnell in his postconviction motion, finding Parnell would not have had
standing to challenge the search because the residence in question belonged to the victim, who
gave law enforcement permission to enter the premises. We agree.
        Before a party may challenge a search without a warrant, he or she must have standing in
a legal controversy. State v. Abu-Serieh, 25 Neb. App. 462, 908 N.W.2d 86 (2018). “Standing”
means that a person has a sufficient legally protectable interest which may be affected in a
justiciable controversy, entitling that person to judicial resolution of the controversy. Id. A
“standing” analysis in the context of search and seizure is nothing more than an inquiry into
whether the disputed search and seizure has infringed an interest of the defendant in violation of
the protection afforded by the Fourth Amendment. State v. Abu-Serieh, supra.
        Ordinarily, two inquiries are required to determine whether an individual may make a
challenge under the Fourth Amendment. State v. Abu-Serieh, supra. First, an individual must have
exhibited an actual (subjective) expectation of privacy, and second, the expectation must be one
that society is prepared to recognize as reasonable. Id. An individual may demonstrate
infringement of his or her own legitimate expectation of privacy by showing that he owned the
premises or that he occupied them and had dominion and control over them based on permission
from the owner. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016). Generally, a
defendant must establish that he or she was legitimately on premises where a search occurs. See
State v. Van Ackeren, 200 Neb. 812, 265 N.W.2d 675 (1978). Also, a warrantless search of a house
may be justified when the police have obtained the consent to search from a party who possessed
common authority over, or other sufficient relationship to, the premises sought to be inspected.
State v. Bowen, 232 Neb. 725, 442 N.W.2d 209 (1989).
        Here the knife was found in the home of the victim, who gave police permission to enter
the premises. We agree with the district court that Parnell did not have standing to challenge the
search and thus, any motion to suppress with respect to the knife would have been unsuccessful.
Defense counsel is not ineffective for failing to raise an argument that has no merit. State v.
Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018). Because this claim is affirmatively refuted by
the record, it does not require an evidentiary hearing.




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                                           4. SPEEDY TRIAL
         Parnell asserts that the district court erred in failing to address “the constitution [sic] right
to a [s]peed[y] [t]rial violation [sic] in violation to due [p]rocess.” Brief for appellant at 2. Any
claims of trial court error could have been raised on direct appeal, but were not. Thus any such
claims have been procedurally barred. See State v. Johnson, 298 Neb. 491, 904 N.W.2d 714
(2017). We also observe that a claim of a statutory speedy trial violation “in and of itself, would
not be cognizable in a postconviction proceeding because it is not a constitutional right,” but it can
be “considered through the prism of an ineffective assistance of counsel claim.” State v. Lee, 282
Neb. 652, 662, 807 N.W.2d 96, 105 (2011) (Nebraska Postconviction Act provides relief only for
denial or infringement of constitutional rights and 6-month statutory speedy trial right is separate
from constitutional speedy trial right). Although Parnell’s third assignment of error and his
arguments in support thereof are framed in terms of trial court error, in his fifth assignment of
error, he asserts, among other things, that the court erred in failing to grant an evidentiary hearing
on his ineffective assistance of counsel claims.
         In Parnell’s motion for postconviction relief, he asserted that his trial counsel failed to
properly protect his speedy trial rights, and although his assertions are somewhat vague, it appears
he asserted a failure to raise both his statutory and constitutional speedy trial rights. Specifically,
Parnell asserted that his trial counsel was ineffective for failing to file a motion to discharge
because “the indictment was under another name . . . and [Parnell] sat for 8 month[s] in [j]ail
violating his speedy trial constitutional rights.” He also asserted in his motion that his attorney was
ineffective for failing to “litigate violation of speedy trial,” that no pretrial motions were filed, “so
no delays can be the case,” and that the right to a speedy trial is “‘fundamental’ and is imposed by
the Due [P]rocess clause of the Fourteenth Amendment of the United States.” Although Parnell’s
constitutional reference was inaccurate, his motion contains references both to the constitution and
to the time-frame relevant in a statutory speedy trial calculation. The district court rejected these
claims without an evidentiary hearing, although it only specifically addressed the statutory speedy
trial claim. We find that the court did not err in failing to grant an evidentiary hearing on either
claim.
         In a postconviction proceeding, when a defendant alleges that trial counsel failed to
properly assert his or her speedy trial rights, the court must consider the merits of the defendant’s
speedy trial rights under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). State v. Lee, supra. Only if a motion would have resulted in the defendant’s absolute
discharge, thus barring a later trial and conviction, could the failure to move for discharge be
deemed ineffective assistance. Id. Because Parnell appears to argue that both his statutory and his
constitutional right to a speedy trial were violated and because he also assigns error to the failure
to hold an evidentiary hearing on his ineffective assistance of counsel claims, we have considered
his arguments as allegations that his trial counsel failed to properly assert both his statutory and
constitutional speedy trial rights.
         With respect to Parnell’s statutory speedy trial claim, the statutory right to a speedy trial is
set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016). State v. Vela-Montes, 287
Neb. 679, 844 N.W.2d 286 (2014). Section 29-1207(1) provides, “Every person indicted or




                                                  -8-
informed against for any offense shall be brought to trial within six months, and such time shall
be computed as provided in this section.” Section 29-1208 provides that if a defendant is not
brought to trial before the running of the time for trial as provided for in § 29-1207, as extended
by excluded periods, he or she shall be entitled to his or her absolute discharge from the offense
charged and for any other offense required by law to be joined with that offense.
        To calculate the deadline for trial for speedy trial purposes, a court must exclude the day
the State filed the information, count forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4). State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018). In this case,
the information was filed on June 29, 2015. Excluding the day the information was filed, counting
forward 6 months, and backing up 1 day, the statutory speedy trial clock would have run on
December 29, 2015, absent any excludable periods under § 29-1207(4).
        With respect to excludable periods, § 29-1207 provides:
                (4) The following periods shall be excluded in computing the time for trial:
                (a) The period of delay resulting from other proceedings concerning the defendant,
        including, but not limited to, an examination and hearing on competency and the period
        during which he or she is incompetent to stand trial; the time from filing until final
        disposition of pretrial motions of the defendant, including motions to suppress evidence,
        motions to quash the indictment or information, demurrers and pleas in abatement, and
        motions for a change of venue; and the time consumed in the trial of other charges against
        the defendant;
                (b) The period of delay resulting from a continuance granted at the request or with
        the consent of the defendant or his or her counsel. . . .

Here, there are two excludable periods relevant to our analysis.
         The first excludable period was due to Parnell’s request to continue a pretrial conference
from August 19 until September 30, 2015. See State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 22
(2017), modified on denial of rehearing 299 Neb. 22, 907 N.W.2d 15 (2018) (continuances of
pretrial conferences are excludable from speedy trial clock from original date of pretrial conference
to newly scheduled pretrial conference date). For speedy trial purposes, the calculation for a
continuance begins the day after the continuance is granted and includes the day on which the
continuance ends. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009). We calculate this
period of excludible time to start on August 20, the day after the court entered the order granting
the continuance and to end on the rescheduled conference date of September 30, resulting in 42
excludable days.
         The second excludable period in this case was due to Parnell’s motion for deposition filed
on October 8, 2015, which was granted by the district court on October 30. The plain terms of
§ 29-1207(4)(a) exclude all time between the time of the filing of a defendant’s pretrial motions
and their final disposition, regardless of the promptness or reasonableness of the delay. State v.
Williams, supra. The excludable period commences on the day immediately after the filing of a
defendant’s pretrial motion. Id. Final disposition under § 29-1207(4)(a) occurs on the date the
motion is granted or denied. State v. Williams, supra. See State v. Murphy, 255 Neb. 797, 587
N.W.2d 384 (1998) (motion for deposition is “proceeding” under § 29-1207(4)(a) and time



                                                -9-
required for its disposition is automatically excluded). The speedy trial clock was tolled for 22
days from October 9, the day after Parnell filed his motion for deposition, until resolution of that
motion on October 30.
         Adding the above 64 excludable days, the speedy trial clock would not have run until
March 2, 2016. Parnell was tried on January 27-29 and February 1, 2016, well before the running
of the speedy trial clock. Thus, any motion for discharge filed by his attorney on statutory speedy
trial grounds would have been unsuccessful, and we need not address any additional motions which
would have tolled the speedy trial clock. Because the record affirmatively refutes this claim of
ineffective assistance of trial counsel, no evidentiary hearing was required. See State v. Stricklin,
300 Neb. 794, 916 N.W.2d 413 (2018).
         Turning to Parnell’s constitutional speedy trial claim, a defendant has the right to a speedy
trial under U.S. Const. amend. VI and Neb. Const. art. I, § 11. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires a balancing test in which the courts
must approach each case on an ad hoc basis. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714
(2017). This balancing test involves four factors: (1) length of delay, (2) the reason for the delay,
(3) the defendant’s assertion of the right, and (4) prejudice to the defendant. Id. None of these four
factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the
right to speedy trial. State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016). Rather,
the factors are related and must be considered together with other circumstances as may be
relevant. Id. In analyzing the prejudice factor of the four-factor test to determine whether
constitutional speedy trial rights have been violated, the U.S. Supreme Court enumerated three
aspects: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of
the defendant, and (3) limiting the possibility that the defense will be impaired by dimming
memories and loss of exculpatory evidence. Id.
         While Parnell’s postconviction motion contains an allegation that the constitutional right
to a speedy trial is “fundamental” and an assertion that there was some delay in bringing him to
trial, which he argues on appeal was prejudicial, his allegations only amount to conclusions of fact
or law and are not sufficient to warrant an evidentiary hearing on this claim.
                                     5. CONFLICT OF INTEREST
        Parnell asserts that the district court erred in failing to hold an evidentiary hearing on his
claim that his counsel was ineffective because she had a conflict of interest. Parnell’s claim of a
conflict of interest is apparently based on the fact that he sought to represent himself at one point
prior to trial, his attorney was allowed to withdraw and was appointed as legal advisor, and his
attorney was subsequently reappointed to represent him after the State filed an amended
information in the case.
        Parnell filed a pretrial motion to represent himself, which was heard by the district court
on January 14, 2016. The court advised Parnell of his right to be represented by an attorney and
the risk in representing himself. The court then found that Parnell voluntarily, knowingly, and
intelligently waived his right to counsel and could represent himself. The court granted the
corresponding motion by Parnell’s attorney to withdraw, but it appointed her as legal advisor to
Parnell in this case.



                                                - 10 -
        Subsequently, the State filed a motion requesting leave to file an amended information,
which was granted by the court. A preliminary hearing was held on the amended information.
After the district court had stated on the record its findings and rulings regarding the preliminary
hearing, Parnell advised the court that he no longer wished to represent himself. He asked that his
standby counsel be reappointed to represent him in the scheduled jury trial, which motion was
granted by the court. After the court reappointed Parnell’s attorney to represent him, he was
arraigned on the amended information, entering pleas of not guilty to the additional charges in the
amended information.
        In his motion for postconviction relief, Parnell alleged that his trial attorney was ineffective
for “creating conflict and not with drawing [sic] for lack of communication with her client.” He
references discussion from the January 14, 2016, hearing, asserts that the court “still appointed her
to my case when there was a conflict of interest,” and alleges various work his attorney did not
perform on his behalf. Finally, he stated, “There has been a[n] actual conflict which affected the
attorney[’]s performance.” Elsewhere in his motion, Parnell asserted that his attorney admitted at
the January 2016 hearing that she wanted to withdraw and that “[f]rom this moment there was a
conflict that was never resolved.” He also stated that his trial attorney was ineffective for failing
to address her conflict of interest or bring it to the court’s attention and that his attorney, who also
represented him on appeal, “labored under a conflict of interest because she was [Parnell’s] trial
counsel and refused to raise claims of ineffectiveness of counsel against herself on direct appeal.”
        The right to effective assistance of counsel entitles the accused to his or her counsel’s
undivided loyalties, free from conflicting interests. State v. Armstrong, 290 Neb. 991, 863 N.W.2d
449 (2015). Whether a defendant’s lawyer’s representation violates a defendant’s right to
representation free from conflicts of interest is a mixed question of law and fact that an appellate
court reviews independently of the lower court’s decision. State v. Sandoval, 280 Neb. 309, 788
N.W.2d 172 (2010). A conflict of interest which adversely affects a lawyer’s performance violates
the client’s Sixth Amendment right to effective assistance of counsel. State v. Sandoval, supra. A
conflict of interest must be actual rather than speculative or hypothetical before a conviction can
be overturned on the ground of ineffective assistance of counsel. Id.
        The phrase “conflict of interest” denotes a situation in which regard for one duty tends to
lead to disregard of another or where a lawyer’s representation of one client is rendered less
effective by reason of his or her representation of another client. State v. Ely, 295 Neb. 607, 889
N.W.2d 377 (2017). The defendant who shows that a conflict of interest actually affected the
adequacy of his or her representation need not demonstrate prejudice, but such conflict of interest
must be shown to have resulted in conduct by counsel that was detrimental to the defense. State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
        While Parnell makes statements showing his dissatisfaction with the work performed by
his attorney, he has not asserted any facts showing an actual conflict of interest. Beyond Parnell’s
conclusory assertions of a conflict of interest, there have been no allegations that his trial counsel’s
loyalties were divided or tainted by conflicting interests. In his postconviction motion, Parnell only
alleged conclusions of fact and law with respect to this issue, and the district court did not err in
failing to hold an evidentiary hearing on this claim. See State v. Stricklin, 300 Neb. 794, 916
N.W.2d 413 (2018).



                                                 - 11 -
                                       6. ADDITIONAL CLAIMS
        Finally, Parnell asserts that the district court erred in failing to hold an evidentiary hearing
on his claims of actual innocence, ineffective assistance of trial counsel, ineffective assistance of
appellate counsel, prosecutorial misconduct, and misconduct by the trial judge.
                                   (a) Claims Procedurally Barred
        Since Parnell was represented by the same attorney at trial and on direct appeal, this
postconviction action is Parnell’s first opportunity to raise issues of ineffective assistance of
counsel. However, as determined by the district court, Parnell’s claims of prosecutorial misconduct
and trial judge misconduct are procedurally barred because they could have been brought on direct
appeal. See State v. Stricklin, supra. Parnell’s arguments to the contrary are without merit.
                          (b) General Arguments of Ineffective Assistance
        In arguing his fifth assignment of error, Parnell points out that no claims of ineffective
assistance of counsel were raised on direct appeal, but he presents no specific arguments showing
why any of the particular claims of ineffective assistance of trial and appellate counsel raised in
his postconviction motion required an evidentiary hearing. He argues that his trial counsel failed
to identify and call witnesses who could have exonerated him, but he does not present any
additional argument identifying specific witnesses and particular testimony beyond that discussed
above in connection with his second assignment of error. Parnell argues that he alleged facts in his
postconviction motion sufficient to “generate a justiciable issue concerning whether his trial
counsel’s performance was constitutionally deficient in several respects [sic] 29 claims.” Brief for
appellant at 30. However, as with Parnell’s other arguments about ineffective assistance of counsel
in support of his fifth assignment of error, his generalized argument, as well as the language used
in the fifth assignment of error itself, is vague and not specific enough to advise this court of the
issues to be considered on appeal. Accordingly, we do not address these arguments further. See,
State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018) (alleged error must be both specifically
assigned and specifically argued in brief of party asserting error to be considered by appellate
court); State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014) (generalized and vague
assignment of error that does not advise appellate court of issue submitted for decision will not be
considered).
                                         (c) Jury Instructions
        In connection with his fifth assignment of error, Parnell urges this court to address an issue
of plain error with respect to certain jury instructions. Specifically, Parnell argues that he was
prejudiced by an error in jury Instructions Nos. 4 and 7 regarding use of a deadly weapon (firearm)
to commit a felony. Pursuant to these instructions, the jury could find Parnell guilty of the use of
a deadly weapon counts if they found, among other things, that he intentionally used a firearm to
commit the felonies of first degree false imprisonment and terroristic threats, respectively. While
the jury found Parnell guilty of the underlying felonies, he was acquitted of the use of a weapon
charges. Even if there were some error in these jury instructions, Parnell cannot show prejudice
resulting from either his trial attorney’s or the court’s failure to correct such an error because he



                                                 - 12 -
was acquitted of these crimes. Parnell attempts to argue that his acquittal on the use of a weapon
charges undercuts the sufficiency of the evidence to support the underlying felony charges.
However, this court rejected Parnell’s claim on direct appeal that the evidence was insufficient to
support his convictions for terroristic threats and false imprisonment. See State v. Parnell, No.
A-16-354, 2016 WL 7209829 (Neb. App. Dec. 13, 2016) (selected for posting to court website).
Because those claims were litigated on direct appeal, we do not address them further here. See
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018) (motion for postconviction relief cannot
be used to secure review of issues which were or could have been litigated on direct appeal).
Claims of insufficiency of evidence that were or could have been raised on direct appeal are
procedurally barred from being raised in a postconviction action. State v. Dubray, 294 Neb. 937,
885 N.W.2d 540 (2016).
                                       (d) Actual Innocence
        Finally, Parnell argues that he is entitled to postconviction relief based on the claim of
actual innocence raised in his motion. The essence of a claim of actual innocence is that the State’s
continued incarceration of such a petitioner without an opportunity to present newly discovered
evidence is a denial of procedural or substantive due process. State v. Newman, 300 Neb. 770, 916
N.W.2d 393 (2018). The threshold to entitle a prisoner to an evidentiary hearing on a
postconviction claim of actual innocence is extraordinarily high. Id. Such a petitioner must make
a strong demonstration of actual innocence, because after a fair trial and conviction, the
presumption of innocence vanishes. Id.
        The gist of Parnell’s claim is that he is innocent because the victim lied in his testimony.
Parnell’s attorney raised the issue of the victim’s credibility during cross-examination and in
closing arguments at trial and to this court on direct appeal. In addressing Parnell’s arguments with
respect to the sufficiency of the evidence on direct appeal, this court rejected Parnell’s challenge
to the victim’s credibility. State v. Parnell, supra. In his postconviction motion, Parnell rehashes
his claims with respect to the victim’s credibility and does not allege new facts amounting to a
claim of actual innocence.
        In rejecting Parnell’s postconviction claim of actual innocence, the district court relied on
State v. Dubray, supra. In that case, the Nebraska Supreme Court found that the defendant had not
met the extraordinarily high standard as he presented no new facts supporting his claim of actual
innocence. The court also noted that any claims of the defendant’s innocence based on
insufficiency of the evidence at trial were procedurally barred because they were or could have
been raised on direct appeal. The court stated, “Merely attempting to relitigate issues decided at
trial and affirmed on appeal does not make a viable claim of actual innocence.” State v. Dubray,
294 Neb. at 948, 885 N.W.2d at 552. Similarly, in this case, Parnell has not met the extraordinarily
high threshold of alleging facts sufficient to show his actual innocence, and his claims based on
the insufficiency of the evidence at trial were previously litigated and are now procedurally barred.
The district court did not err in denying an evidentiary hearing on this claim.




                                               - 13 -
                                       VI. CONCLUSION
       The district court did not err in denying Parnell’s motion for postconviction relief without
an evidentiary hearing.
                                                                                        AFFIRMED.




                                              - 14 -
