State v. Davlin

CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
mccormAck, J., not participating.
StAte of NebrASkA, Appellee , v.
clifford J. dAvliN, AppellANt.
766 N.W.2d 370
Filed June 19, 2009. 	No. S-08-969.
1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the 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 indepen-
dently of the lower court’s decision.
2. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assis-
tance of counsel at trial or on direct appeal, 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 in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
3. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, there is a strong presumption that such counsel
acted reasonably.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court will not second-guess reasonable
strategic decisions by counsel.
5. ____: ____. When analyzing a claim of ineffective assistance of appellate coun-
sel, courts usually begin by determining whether appellate counsel failed to bring
a claim on appeal that actually prejudiced the defendant. That is, courts begin by
assessing the strength of the claim appellate counsel failed to raise.
972 	277 NEbrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

6. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal.
7. ____: ____. When a case presents layered ineffectiveness claims, an appellate
court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If trial
counsel was not ineffective, then the defendant suffered no prejudice when appel-
late counsel failed to bring an ineffective assistance of trial counsel claim.
8. Evidence: Intent. Most, if not all, evidence is intended to be prejudicial; it is
only that evidence which is unduly prejudicial that is inadmissible.
9. Trial: Witnesses. It is the province of the fact finder to judge the credibility of
a witness.
10. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual allega-
tions which, if proved, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. However, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively show that the mov-
ant is entitled to no relief, no evidentiary hearing is required.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
Clifford J. Davlin, pro se.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
H eAvicAN, c.J., coNNolly, G errArd, StepHAN, mccormAck,
and miller-lermAN, JJ.
H eAvicAN, C.J.
INTrODUCTION
Clifford J. Davlin was convicted of second degree murder
and first degree arson in 2000. On appeal, this court affirmed
Davlin’s conviction for arson, but reversed his murder con-
viction.1 Following a retrial, Davlin was again convicted of
second degree murder. This court affirmed that conviction in
2006.2 Davlin filed a motion for postconviction relief, which
1 State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
2 State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
STATE v. DAvLIN 	973
Cite as 277 Neb. 972

was denied by the district court without an evidentiary hearing.
Davlin appeals. We affirm.
FACTUAL bACkGrOUND
The facts of this case were set forth in our decision in
Davlin’s appeal of his first conviction:
Tamara Ligenza, also known as Tamara Martin, was
found dead in her Lincoln apartment after a fire on
September 7, 1993. Ligenza was legally blind and was
6 months pregnant at the time of her death. Ligenza had
been living with Davlin, but on September 6, Ligenza told
Davlin to leave the apartment. . . . Davlin remained at or
near the apartment building on September 6 and into the
morning of September 7.
Ligenza was last seen alive, by her roommate, at about
1 a.m. on September 7, 1993. Ligenza lived in a house
that had been converted to a duplex with one entrance that
led to both apartments. Witnesses who lived in the build-
ing testified that they were awakened at approximately
4:30 a.m. by reports of a fire in the building. Davlin was
identified as being in the duplex at the time of the fire,
staying in the other apartment. Firefighters removed a
severely burned body from the bedroom of Ligenza’s
apartment; the body was later identified by dental records
as Ligenza’s. An autopsy was performed, and the coro-
ner’s physician concluded that Ligenza had been killed by
manual strangulation prior to the fire.3
Davlin was originally charged in 1997 with first degree
murder and arson in connection with Tamara Ligenza’s death.
Davlin was found guilty of second degree murder and arson
in 2000. On appeal, this court reversed Davlin’s conviction
for second degree murder, but affirmed Davlin’s arson convic-
tion. We further noted that the State was prohibited on double
jeopardy grounds from retrying Davlin on first degree mur-
der charges.
The State then filed an amended information against Davlin
on April 12, 2002, charging Davlin with second degree murder.
3 State v. Davlin, supra note 1, 263 Neb. at 286-87, 639 N.W.2d at 638-39.
974 	277 NEbrASkA rEpOrTS

Several pretrial motions were denied, including a motion to
quash and a plea in bar. Eventually, Davlin was retried and
was convicted of second degree murder. The district court sen-
tenced Davlin to life imprisonment, to be served consecutively
to his sentence of 20 to 60 years’ imprisonment for arson.
Davlin appealed.
Davlin was represented by different counsel on appeal. In
that appeal, this court affirmed Davlin’s conviction and sen-
tence on August 4, 2006. On September 26, Davlin filed a
pro se motion for postconviction relief. Davlin subsequently
filed an “addendum” motion for postconviction relief, followed
by a second amended motion for postconviction relief. The
district court denied Davlin relief without an evidentiary hear-
ing, concluding:
There has been no showing of factual allegations which,
if proved, constitute an infringement of [Davlin’s] consti-
tutional rights so as to render his conviction void or void-
able. With respect to [Davlin’s] allegations of ineffective
assistance of counsel, there has been no showing that the
performance of [Davlin’s] trial [or his appellate counsel]
was in any way deficient or, even if any deficiency does
exist, that such a deficiency prejudiced [Davlin].
(Alteration in original.)
Davlin, still acting pro se, appeals.
ASSIGNMENTS OF ErrOr
On appeal, Davlin generally assigns that the district court
erred by not granting him an evidentiary hearing and by deny-
ing him postconviction relief. In his brief, Davlin argues,
restated, that his appellate counsel was ineffective for failing
to allege the following instances of ineffective assistance of
trial counsel: (1) failure to present evidence regarding Davlin’s
defense that Ligenza was alive when the fire was set, (2) failure
to adequately cross-examine keri Dugan, (3) failure to ade-
quately impeach the testimony of Wade potter, and (4) failure
to object to the district court’s failure to file its jury instruc-
tions prior to reading them to the jury. In his fifth and final
assignment of error, Davlin assigns that his trial counsel was
ineffective for failing to request a continuance so that certain
STATE v. DAvLIN 	975
Cite as 277 Neb. 972

witnesses from his first trial could be located and subpoenaed
to testify at his second trial or to have those witnesses’ testimo-
nies from his first trial read into evidence at the second trial.
This final assignment of error was raised on direct appeal, but
this court declined to address it.
STANDArD OF rEvIEW
[1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.4 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.5 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,6 an appellate court
reviews such legal determinations independently of the lower
court’s decision.7
ANALYSIS
[2] On appeal, Davlin contends the district court failed to
find that either his trial counsel or his appellate counsel was
ineffective in several particulars. In order to establish a right to
postconviction relief based on a claim of ineffective assistance
of counsel at trial or on direct appeal, the defendant has the
burden, in accordance with Strickland,8 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 in the area.9 Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case.10 In order to show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
4 State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008).
5 Id.
6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
7 State v. Lopez, supra note 4.
8 Strickland v. Washington, supra note 6.
9 State v. Lopez, supra note 4.
10 Id.
976 	277 NEbrASkA rEpOrTS

deficient performance, the result of the proceeding would have
been different.11 The two prongs of this test, deficient perfor-
mance and prejudice, may be addressed in either order.
[3,4] In determining whether a trial counsel’s performance
was deficient, there is a strong presumption that such coun-
sel acted reasonably.12 When reviewing a claim of ineffective
assistance of counsel, an appellate court will not second-guess
reasonable strategic decisions by counsel.13
[5-7] In this case, in addition to arguing that his trial counsel
was ineffective, Davlin also argues that appellate counsel was
ineffective for failing to raise the ineffectiveness of his trial
counsel. When analyzing a claim of ineffective assistance of
appellate counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that actually
prejudiced the defendant. That is, courts begin by assessing
the strength of the claim appellate counsel failed to raise.14
Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the
appeal.15 When, as here, the case presents layered ineffective-
ness claims, we determine the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel
was ineffective under the Strickland test.16 If trial counsel was
not ineffective, then the defendant suffered no prejudice when
appellate counsel failed to bring an ineffective assistance of
trial counsel claim.
If trial counsel was ineffective, then the defendant suffered
prejudice when appellate counsel failed to bring such a claim.
We must then consider whether appellate counsel’s failure
to bring the claim qualifies as a deficient performance under
Strickland. In other words, we examine whether the claim’s
11 Id.
12 Id.
13 Id.
14 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
15 Id.
16 Id.
STATE v. DAvLIN 	977
Cite as 277 Neb. 972

merit was so compelling that appellate counsel’s failure to raise
it amounted to ineffective assistance of appellate counsel.17 If
it was, then the defendant suffered ineffective assistance of
appellate counsel. If it was not, then the defendant was not
denied effective appellate counsel.
Failure to Pursue Defense That Ligenza
Was Killed by Fire.
Davlin first assigns that his appellate counsel was ineffective
for failing to allege the ineffectiveness of trial counsel in fail-
ing to pursue a defense that Ligenza was not killed by stran-
gulation, but instead was killed by the fire. Davlin points to
evidence that there was a 1.2-percent level of carbon monoxide
in Ligenza’s system at the time of her death. Davlin, relying on
medical encyclopedias, argues that this level suggests Ligenza
was alive at the time of the fire and that the carbon monoxide
from the fire was the cause of her death, not any alleged stran-
gulation by Davlin.
At trial, the State presented evidence from three patholo-
gists suggesting that Ligenza was dead before the fire was set:
in particular, the pathologists noted that Ligenza’s muscle was
its usual reddish-brown color, while Ligenza’s dying in the
fire would cause the muscle to be a different color, probably
a cherry red. There was also testimony regarding the lack of
soot in Ligenza’s mouth or nose, the lack of a high level of
carbon monoxide in her system, and a lack of vital response
on Ligenza’s skin. In addition, a burn specialist testified that
Ligenza was not alive at the time of the fire, as evidenced by
the lack of any evidence of inhalation of hot gas—blistering of
the mouth, swelling of the lips or tongue, and charring of the
lips or the roof of the mouth.
because of this overwhelming evidence that Ligenza was
dead prior to the fire, we conclude that Davlin was not preju-
diced by any failure of trial counsel to pursue Davlin’s sug-
gested defense. We further note that Davlin is essentially argu-
ing that his trial counsel was ineffective for failing to pursue a
defense that suggested Davlin did not strangle the victim, but
17 Id.
978 	277 NEbrASkA rEpOrTS

instead set her on fire. We fail to see how Davlin could have
been prejudiced by his trial counsel’s failure to pursue such
a theory.
Davlin was not prejudiced by any failure on the part of his
trial or appellate counsel to raise this defense and was therefore
not entitled to postconviction relief on this point. Davlin’s first
assignment of error is without merit.
Testimony of Keri Dugan.
In his second assignment of error, Davlin argues that appel-
late counsel erred in failing to raise on appeal the ineffective-
ness of his trial counsel with regard to the cross-examination of
Dugan, an acquaintance of Davlin.
Dugan testified for the State. On direct, Dugan was asked
about the events preceding the fire in the early morning of
Ligenza’s death. Dugan testified that she went to visit richard
Guilliatt, who resided in an apartment in a duplex. (Ligenza
resided in the other apartment in the duplex.) Dugan testified
that after entering the apartment, she said hello to Davlin, who
was in the apartment with Guilliatt. In response to Dugan’s
greeting, Davlin replied, “‘That bitch kicked me out.’”
On cross-examination, Dugan was asked about Davlin’s
apparently unsolicited statement about being “kicked out.”
Trial counsel had Dugan refresh her memory from police
notes taken during the interview in the hours after the fire.
Upon refreshing her recollection, Dugan then testified that at
the time, she told the officer that she “just said hi [to Davlin],
and that was it.” The State then questioned Dugan on redirect,
and asked whether in that interview the officer had specifically
asked her whether Davlin had said anything to her. Dugan
replied that the officer did not ask her that question, but that in
fact, Davlin had said something to her, namely that the “‘bitch
kicked me out.’”
As we understand Davlin’s argument on appeal, he contends
appellate counsel was ineffective for failing to allege that trial
counsel was ineffective in failing to object to Dugan’s testi-
mony, on redirect, that Davlin told her that the “bitch kicked
him out.” Davlin argues that allowing Dugan to testify to this a
second time was unduly prejudicial.
STATE v. DAvLIN 	979
Cite as 277 Neb. 972

[8] Davlin’s argument is without merit. Most, if not all,
evidence is intended to be prejudicial; it is only that evidence
which is unduly prejudicial that is inadmissible.18 And this
testimony was brief, was impeached by trial counsel (as hav-
ing not been initially told to police), and, given the weight of
the remaining evidence against Davlin, was not likely to have
changed the results of the proceedings. We conclude that Davlin
was not prejudiced by any alleged deficiency in trial counsel’s
performance and therefore was not prejudiced by appellate
counsel’s failure to raise this issue on direct appeal.
We additionally note Davlin appears to argue that trial coun-
sel failed to effectively cross-examine Dugan with regard to
prior statements made stating that everyone, including Davlin,
was asleep when Dugan entered the apartment, and thus Davlin
could not have told Dugan that Ligenza had “kicked him out.”
However, the district court was not presented with this allega-
tion in any of Davlin’s three motions for postconviction relief,
and we need not address it here.
[9] Finally, to the extent Davlin argues that his trial counsel
was ineffective for failing to ask the district court to admonish
the jury that Dugan was lying, such argument is without merit.
It is the province of the fact finder, in this case the jury, to
judge the credibility of a witness19; it would be improper for
the trial court to suggest that a witness was not being truth-
ful. As such, trial counsel could not have been ineffective in
failing to ask for such an admonishment, nor could appellate
counsel have been ineffective for failing to raise the issue on
direct appeal.
Davlin’s second assignment of error is without merit.
Testimony of Wade Potter.
Davlin next assigns that his appellate counsel was ineffec-
tive for failing to allege that trial counsel erred in his cross-
examination of potter.
potter testified at trial that when he and Davlin were in the
Sarpy County jail together, Davlin confessed to him that he,
18 See State v. Lee, 247 Neb. 83, 525 N.W.2d 179 (1994).
19 See State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
980 	277 NEbrASkA rEpOrTS

Davlin, killed Ligenza. potter was cross-examined as to his
motive for reporting this confession, his changing story, and his
criminal record, but trial counsel did not attempt to impeach
potter’s testimony by suggesting that potter and Davlin were
not housed together at the Sarpy County jail. It is this omission
which Davlin now argues was ineffective.
[10] As an initial matter, we note that Davlin does not actu-
ally allege that he was not acquainted with potter from the
time spent at the Sarpy County jail, nor does he allege that the
fact he and potter were not housed together necessarily means
the two had no contact. We thus question whether Davlin
has alleged sufficient facts to support his claim of ineffective
assistance of counsel. An evidentiary hearing on a motion for
postconviction relief must be granted when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the movant’s rights under the Nebraska or federal
Constitution. However, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively
show that the movant is entitled to no relief, no evidentiary
hearing is required.20
but in any case, we note that in addition to potter’s tes-
timony that Davlin confessed to killing Ligenza, three other
witnesses also testified to the same. And these confessions
were in addition to other evidence also supporting a finding
of Davlin’s guilt. We conclude that Davlin was not prejudiced
by any alleged deficient performance with respect to potter’s
cross-examination and that appellate counsel was not ineffec-
tive for failing to raise such issues on direct appeal. Davlin’s
third assignment of error is therefore without merit.
Failure to File Jury Instructions.
In his fourth assignment of error, Davlin contends that his
appellate counsel erred in failing to allege the ineffectiveness of
trial counsel in not objecting to the district court’s failure to file
jury instructions in compliance with Neb. rev. Stat. § 25-1114
(reissue 2008) and also in failing to object to the verdict and
sentence rendered against him for the same reasons.
20 State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
STATE v. DAvLIN 	981
Cite as 277 Neb. 972

Section 25-1114 provides in part that jury instructions must
be filed by the clerk before being read to the jury by the court.
It is clear such did not occur in this case since, according to the
record, the instructions were given to the jury on January 31,
2005, but not filed with the clerk until February 1.
Assuming Davlin is correct that his trial counsel’s perfor-
mance was deficient by his failure to object to the failure of
the court to file the instructions, we conclude Davlin is unable
to show that he was prejudiced by this failure. Specifically,
Davlin contends he was deprived of his due process rights
when the district court failed to file the instructions before
instructing the jury. beyond this general assertion, however,
Davlin makes no specific argument about how he was harmed
by this failure.
And indeed, it is clear that Davlin’s due process rights
were not violated by any failure to have the jury instruc-
tions filed prior to being read to the jury. A review of the
record shows the district court held a jury instruction confer-
ence with Davlin, his counsel, and the prosecutor all present.
Davlin’s counsel fully participated in this conference. Davlin
and his counsel were fully aware of all instructions prior to
the time the instructions were given to the jury. Additionally,
we note Davlin does not argue that any of those instructions
were erroneous.
Davlin was not prejudiced by the failure of his counsel to
object to the district court’s failure to file the instructions with
the clerk before reading them to the jury. As such, Davlin’s
appellate counsel was not ineffective for failing to raise the
issue on direct appeal. We conclude that Davlin’s fourth assign-
ment of error is without merit.
Failure to Produce Testimony
of Certain Witnesses.
Finally, Davlin assigns that his trial counsel was ineffective
for failing to subpoena and/or produce the testimony of two
witnesses from the first trial. We note that these issues were
raised by appellate counsel in Davlin’s direct appeal, but that
this court declined to reach the issue, given the state of the
record before us.
982 	277 NEbrASkA rEpOrTS

Though it is not entirely clear from the record, apparently
these witnesses—Guilliatt and Lee Davis—both testified at
Davlin’s first trial. Davlin generally claims in his motion that
Guilliatt and Davis would provide him with an alibi and would
provide other exculpatory evidence. In his motion, Davlin also
generally alleges that trial counsel was ineffective for failing to
introduce Guilliatt’s and Davis’ testimonies from the first trial
in lieu of live testimony at his second.
Davlin’s first argument—that trial counsel was ineffective
with respect to his failure to subpoena and/or produce the testi-
mony of Guilliatt and Davis—is without merit. In fact, a review
of the record demonstrates that trial counsel actually requested
a continuance in order to attempt to locate the witnesses and
had subpoenas issued which could not be served because the
witnesses could not be located. We conclude that because trial
counsel actually did what he is now accused of not doing, his
performance could not have been deficient.
With respect to Davlin’s other contention—that trial counsel
was ineffective for failing to introduce Guilliatt’s and Davis’
testimonies from Davlin’s first trial—we conclude that Davlin
has not alleged sufficient facts to entitle him to postconvic-
tion relief.
As is noted above, an evidentiary hearing on a motion for
postconviction relief must be granted when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the movant’s rights under the Nebraska or federal
Constitution; no such hearing is required where a motion
alleges only conclusions of fact or law.21
In his motion, Davlin alleges the following:
Trial counsel provided ineffective assistance of counsel
by not offering the sworn prior testimony of . . . Davis
and . . . Guilliatt if, in fact, witnesses Guilliatt and Davis
[were] unavailable and in so doing failed to offer impor-
tant exculpatory and alibi evidence. [Davlin] was preju-
diced thereby and such error was not harmless beyond a
reasonable doubt.
21 Id.
STATE v. DAvLIN 	983
Cite as 277 Neb. 972

There is nothing in Davlin’s motion (or indeed in the record)
that would suggest the nature of the exculpatory evidence
to which Guilliatt and Davis would testify. Nor is there any
indication what alibi either might provide Davlin. rather than
providing any detail, Davlin alleges only conclusions of fact
and law. Such are insufficient to support the granting of an evi-
dentiary hearing. As such, Davlin’s fifth and final assignment
of error is without merit.
CONCLUSION
The decision of the district court denying Davlin’s motion
for postconviction relief should be affirmed.
A ffirmed.
WriGHt, J., participating on briefs.
984 	277 NEbrASkA rEpOrTS