State v. Betancourt-Garcia

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.3d ___
Filed July 19, 2024. 	No. S-23-738.
1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary hearing on a motion for postconviction relief, the trial judge,
as the trier of fact, resolves conflicts in the evidence and questions of
fact. An appellate court upholds the trial court’s findings unless they are
clearly erroneous.
2. 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 inde-
pendently of the lower court’s decision.
3. Criminal Law: Evidence: Proof. To establish an alibi defense, a
defendant must show (1) he or she was at a place other than where the
crime was committed and (2) he or she was at such other place for such
a length of time that it was impossible to have been at the place where
and when the crime was committed.
4. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on direct appeal of ineffective assistance of trial counsel (a
layered claim of ineffective assistance of counsel), an appellate court
will first look at 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 was
not prejudiced by appellate counsel’s failure to raise the issue.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:25 AM CDT

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
5. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s defense.
6. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
7. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in 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.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
8. Trial: Effectiveness of Counsel: Appeal and Error. A reasonable stra-
tegic decision to present particular evidence, or not to present particular
evidence, will not, without more, sustain a finding of ineffective assist-
ance of counsel. Strategic decisions made by trial counsel will not be
second-guessed so long as those decisions are reasonable.
9. Rules of Evidence: Impeachment: Prior Statements. Prior inconsist-
ent statements are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise admissible
under the Nebraska Evidence Rules.
10. Actions: Claim Preclusion: Issue Preclusion. Unlike the doctrines
of claim preclusion and issue preclusion, which involve successive
lawsuits, the law-of-the-case doctrine involves successive stages of one
continuing lawsuit.
11. Actions: Appeal and Error. When it applies, the law-of-the-case doc-
trine operates to preclude reconsideration of substantially similar, if not
identical, issues at successive stages of the same suit or prosecution.
12. ____: ____. The law-of-the-case doctrine promotes judicial efficiency
and protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action.
Appeal from the District Court for Madison County, Mark
A. Johnson, Judge. Affirmed.
Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
INTRODUCTION
This appeal arises from a petition for postconviction relief
filed by Rosario Betancourt-Garcia (Betancourt). After an
evidentiary hearing, the district court for Madison County,
Nebraska, granted Betancourt relief in the form of corrected
sentences for two of his convictions. But the district court
denied Betancourt’s claim that his appellate counsel was
ineffective for failing to raise a claim on direct appeal that
his trial counsel were ineffective in their handling of his
alibi defense and his “misidentification defense.” Betancourt
appeals that ruling and also argues that he was entitled to an
evidentiary hearing on other claims of ineffective assistance
of counsel. Because the district court did not err in finding
that trial counsel made a reasonable strategic decision in their
handling of the purported defenses, and because Betancourt’s
other claims either resulted in relief or are precluded under
the law-of-the-case doctrine, we affirm.
BACKGROUND
This is the fourth time that we have opined on matters
related to Betancourt’s convictions. 1 The following summary of
the proceedings to date is based on our prior opinions.
Convictions and Direct Appeal
Betancourt was convicted of kidnapping, use of a firearm
to commit a felony, and conspiracy to commit kidnapping
after his nephew was found bound and gagged in Madison,
1 See, State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021);
State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018); State v.
Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016), abrogated on
other grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Nebraska, on November 15, 2003. Betancourt was subse-
quently arrested in Texas, but he did not stand trial until over
a decade later. At trial, Betancourt testified that he was work-
ing 6 days a week or more in Houston, Texas, at the time
of the offenses. However, Betancourt’s nephew testified that
Betancourt was one of two men who kidnapped and threat-
ened to kill him and left him bound and gagged in a shed near
Betancourt’s former house. The other man involved in the
kidnapping also testified to Betancourt’s involvement.
Betancourt was sentenced to consecutive terms of life
imprisonment for kidnapping and 10 to 30 years’ imprison-
ment, including a mandatory minimum of 5 years’ imprison-
ment, for use of a weapon to commit a felony. Further, the
district court treated the conspiracy conviction as a Class II
felony and sentenced Betancourt to 30 to 50 years’ imprison-
ment, to be served concurrently with the other sentences.
Betancourt appealed his convictions and sentences, argu-
ing that the district court erred in several regards and that
he received ineffective assistance of counsel. We rejected
those arguments. We also declined to consider Betancourt’s
argument that his trial counsel were ineffective in failing to
investigate, develop, and present exculpatory evidence to sup-
port his alibi defense, because that claim was not assigned in
his brief on appeal. 2 But we found plain error in Betancourt’s
sentence for the conspiracy conviction, which was inconsist-
ent with the statutory framework. As such, we vacated that
sentence and remanded the matter to the district court with
directions to resentence Betancourt to “life imprisonment”
for conspiracy.
On remand, Betancourt was resentenced, without objection,
to “life imprisonment without parole.”
2 See, e.g., State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024) (to be
considered by appellate court, error must be both specifically assigned and
specifically argued in brief of party asserting error).

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Motion for Postconviction Relief and Appeal
of Denial of Evidentiary Hearing
Betancourt then filed a verified petition for postconviction
relief. In that petition, Betancourt alleged that his appellate
counsel on direct appeal was ineffective for failing to raise
several claims of ineffective assistance of trial counsel (lay-
ered claims of ineffective assistance of counsel). The district
court granted an evidentiary hearing on Betancourt’s layered
claims of ineffective assistance of counsel, based on the fail-
ure to assert an alibi defense, pursuit of a “misidentification
defense,” and failure to object to Betancourt’s sentence for
use of a firearm to commit a felony, which should not have
included a mandatory minimum. But the district court denied
Betancourt’s remaining claims without an evidentiary hear-
ing on the grounds that they were insufficiently alleged, were
affirmatively refuted by the evidence in the record, or were
not examples of ineffective assistance of counsel.
Betancourt appealed the district court’s order denying him
an evidentiary hearing on his remaining claims. On appeal,
we affirmed that order except as to Betancourt’s claim that
appellate counsel, while serving as trial counsel upon remand
for resentencing on the conspiracy conviction, was ineffec-
tive for not objecting to the imposition of a sentence of “life
imprisonment without parole.” Because that sentence was not
a valid sentence, we remanded the cause to the trial court for
a hearing on Betancourt’s sentence for conspiracy.
Evidentiary Hearing
On remand, the district court held an evidentiary hearing
on Betancourt’s layered claims of ineffective assistance of
counsel regarding his (1) alibi defense, (2) “misidentification
defense,” (3) sentence for use of a firearm to commit a felony,
and (4) sentence for conspiracy. Betancourt testified at the
hearing, as did four of the five attorneys (Attorneys 1 through
5) who represented him in these proceedings. That testimony
is summarized below as it relates to the parties’ arguments
on appeal.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Betancourt testified that he moved to Houston 20 days
or more before the offenses and that he was working in
Houston on November 15, 2003. Betancourt also testified that
he advised counsel that his former employer and an employee
of his former landlord (the Texas witnesses) were willing and
able to testify to that effect. Betancourt similarly testified
that he informed counsel that his former neighbor in Madison
“could testify” that Betancourt had not lived there “for sev-
eral months” before the offenses. According to Betancourt,
Attorney 2 spoke with the Texas witnesses and learned that
their testimony would have been “practically” the same as his.
Betancourt acknowledged that he later learned that the Texas
witnesses stated they could not place him in Texas on the date
of the offenses and also resisted testifying. But Betancourt
opined that this was because counsel “threatened” to “put
[one of the witnesses] in jail to ensure [her] testimony in the
trial” and that “[n]o attorney does that.” Otherwise, Betancourt
maintained that the Texas witnesses were “still willing” to tes-
tify on his behalf.
Attorney 2 did not testify at the hearing. However, the other
attorneys all described difficulties in identifying or obtaining
testimony from the Texas witnesses, in particular.
Attorney 1, the public defender who represented Betancourt
before he hired Attorney 2, testified that Betancourt “didn’t
have firm dates or people” in terms of his alibi. Attorney 1
described working with Betancourt to “try[] to get somebody”
and “attempt[ing] to contact people.” But Attorney 1 stated
that he ultimately never “got ahold of anybody” who could
corroborate that Betancourt was elsewhere at the time of
the offenses.
Attorney 3, the public defender who represented Betancourt
after Attorney 2 withdrew, testified that he spoke with the
Texas witnesses and that they could not testify that Betancourt
was in Texas on November 15, 2003. Attorney 3 admitted to
telling the landlord’s employee that she could be “brought to
Nebraska . . . through law enforcement” to testify if necessary.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
But Attorney 3 testified that even before he told her this and
she became uncooperative, she failed to provide any informa-
tion beneficial to Betancourt’s defense. According to Attorney
3, he eventually discussed the matter with Betancourt and
informed him that given the prospective witness’ inability to
provide an alibi and her reluctance to testify, “it wouldn’t be
beneficial to bring her up here forcibly because that would
just make things worse for her testimony.”
Attorney 3 testified similarly that he did not attempt to
depose the landlord’s employee, because even if she had
testified that Betancourt was in Texas before and after the
offenses, that information would not have been helpful to the
case, because the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after
the offenses. As such, Attorney 3 reasoned that the “best
trial defense” was to put Betancourt “somewhere else on the
date of the incident rather than other days in November.” In
particular, Attorney 3 noted the danger of the witness’ being
called and “corroborating the co-defendant.”
Attorney 3’s deputy, Attorney 4, also testified that the Texas
witnesses could not place Betancourt in Texas on November
15, 2003, or for such a length of time that it was impossible
for him to have been in Madison when the offenses were
committed. Further, Attorney 4 testified that the landlord’s
employee hired an attorney “to try to avoid coming up to
testify” and that due to the passage of time, Betancourt’s for-
mer employer no longer had the paperwork pertaining to his
employment. According to Attorney 4, she was concerned that
“forcibly [bringing the Texas witnesses] up . . . might make
it get worse,” and her superior, Attorney 3, discussed the
“dangers of an alibi defense” with Betancourt. But Attorney 4
acknowledged that Betancourt’s claim that he was misidenti-
fied was “essentially the same” as his alibi defense. Attorney
4 testified that it would have been “very difficult” to argue

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
that Betancourt was misidentified without alibi witnesses,
given that his nephew and codefendant had identified him.
Attorney 4 also acknowledged that Betancourt’s former
neighbor in Madison was not called to testify at the trial
despite her affidavit stating that as of November 15, 2003,
Betancourt “had not been living at his house for at least three
months.” However, Attorney 4 indicated that she viewed this
information as consistent with the State’s evidence at trial
that Betancourt “had not lived in that house for an extended
period.”
Attorney 5, who represented Betancourt on appeal, testified
that he did not consider trying to “make an appeal issue” out
of the failure to call the Texas witnesses, because he did not
see “any merit” to a claim based on trial counsel’s failure to
“call an unhelpful witness who refused to testify.” Attorney 5
also testified that he reviewed his recommendations regard-
ing “what . . . would be [a] good appeal” with Betancourt
and that Betancourt was “okay with it.” But Betancourt testi-
fied in rebuttal that he “wanted” Attorney 5 to “raise the alibi
defense” on appeal.
Order Following Evidentiary Hearing
The district court subsequently issued an order correcting
Betancourt’s sentences and resentencing him to 10 to 30 years’
imprisonment for use of a firearm to commit a felony and to
life imprisonment for conspiracy to commit kidnapping. But
the district court denied Betancourt’s claims as to his alibi
defense and “misidentification defense,” which it essentially
treated as a single claim involving the Texas witnesses.
The district court reasoned that calling the Texas witnesses
“presented a dilemma to the defense” because the witnesses
could not testify that Betancourt was in Texas on November
15, 2003, and they were unwilling to testify at all. The district
court also noted that even if Betancourt had called Attorney
2 to testify that the witnesses had stated otherwise to her, the
witnesses were not under oath when speaking to Attorney 2,

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
and any impeachment testimony would not have been admis-
sible as substantive evidence to prove alibi or misidentifica-
tion. The district court thus concluded that the decision not
to pursue an alibi defense was a reasonable strategic deci-
sion and did not amount to ineffective assistance of counsel.
Accordingly, the district court found that Betancourt was not
prejudiced by appellate counsel’s failure to raise the issue.
Betancourt timely appealed, and we moved the matter to
our docket. 3
ASSIGNMENTS OF ERROR
Betancourt assigns, restated, that the district court erred in
denying his layered claims of ineffective assistance of counsel
related to his alibi defense and his “misidentification defense.”
Betancourt also assigns that the district court erred in denying
him an evidentiary hearing on an additional 16 layered claims
of ineffective assistance of counsel.
STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. 4 An appellate
court upholds the trial court’s findings unless they are clearly
erroneous. 5
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 6 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 7 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
4 State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022).
5 Id.
6 Id.
7 Id.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
articulated in Strickland v. Washington, 8 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 9
ANALYSIS
No Error as to Alibi and
Misidentification Defenses
[3] We begin with Betancourt’s argument that the district
court erred in denying his layered claims of ineffective assist-
ance of counsel regarding his alibi defense and his “misiden-
tification defense.” We have recognized that the alibi defense
places a “heavy evidentiary burden” on the defendant. 10 To
establish an alibi defense, a defendant must show (1) he or
she was at a place other than where the crime was committed
and (2) he or she was at such other place for such a length of
time that it was impossible to have been at the place where
and when the crime was committed. 11 Misidentification, in
contrast, is not a defense with specific elements that must be
proved by the defendant. Betancourt raises separate assign-
ments of error regarding both alibi and misidentification.
However, his arguments on appeal and the evidence in the
record before us show that his concerns as to both alibi and
misidentification are similar—namely, trial counsel’s failure
to present evidence from witnesses who, Betancourt claims,
could have placed him elsewhere on November 15, 2003, or
other dates. As such, our analysis below pertains equally to
both defenses.
[4] When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on direct
appeal of ineffective assistance of trial counsel (a layered
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
9 Ellis, supra note 4.
10 State v. Newman, 310 Neb. 463, 474, 966 N.W.2d 860, 870 (2021).
11 State v. Newman, supra note 10.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
claim of ineffective assistance of counsel), as is the case here,
an appellate court will first look at whether trial counsel was
ineffective under the test in Strickland. 12 If trial counsel was
not ineffective, then the defendant was not prejudiced by
appellate counsel’s failure to raise the issue. 13
[5-7] Generally, to prevail on a claim of ineffective assist-
ance of counsel under Strickland, the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 14 To show that counsel’s performance was defi-
cient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill
in criminal law. 15 To show prejudice in a claim of ineffec-
tive assistance of counsel, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 16 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 17 A court may examine
performance and prejudice in any order and need not examine
both prongs if a defendant fails to demonstrate either. 18
Under the foregoing framework, Betancourt’s claim that
his appellate counsel was ineffective ultimately rests on his
argument that his trial counsel were ineffective in failing to
subpoena, depose, or obtain sworn statements from his former
employer, an employee of his former landlord, and his former
neighbor, each of whom he claims “could have” corroborated
he was elsewhere at the time of the offenses. 19 Betancourt
12 See State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
13 Cullen, supra note 12.
14 State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024).
15 Id.
16 Id.
17 Id.
18 Id.
19 Brief for appellant at 20.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
argues that there was “[n]o reasonable strategic reason . . .
to not call these witnesses,” because such corroboration was
necessary to show an alibi or misidentification. 20 Betancourt
argues that absent corroboration, he “ended up with no cogent
defense.” 21 The State counters that trial counsel made a reason-
able strategic decision not to present the witnesses’ evidence,
because “none of those witnesses could actually provide an
alibi for Betancourt” and the Texas witnesses, in particular,
were “uncooperative.” 22 The State also argues that Betancourt
was not prejudiced by trial counsel’s failure to present the
evidence, because Betancourt’s nephew and codefendant other-
wise identified him as the perpetrator.
[8] When the evidence in the record before us is considered
under the standard of review previously noted, we agree with
the State that the district court did not err in finding that trial
counsel made a reasonable strategic decision not to subpoena,
depose, or obtain sworn statements from the witnesses and,
thus, were not ineffective. As we have explained, a reason-
able strategic decision to present particular evidence, or not
to present particular evidence, will not, without more, sustain
a finding of ineffective assistance of counsel. 23 Strategic deci-
sions made by trial counsel will not be second-guessed so long
as those decisions are reasonable. 24
The record here shows that the Texas witnesses, in par-
ticular, ultimately stated that they could not place Betancourt
in Texas at the time of the offenses, and they were unwill-
ing to testify. Attorneys 3 and 4 testified to this effect, and
Betancourt himself acknowledged that counsel had informed
him prior to trial that the Texas witnesses were unable to
place him in Houston on November 15, 2003, and that they
20 Id. at 21.
21 Id. at 22.
22 Brief for appellee at 12.
23 Newman, supra note 10.
24 Id.

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STATE v. BETANCOURT-GARCIA
Cite as 317 Neb. 174
resisted testifying. Admittedly, Betancourt also testified that
this was because trial counsel “threatened” the witnesses and
that the witnesses otherwise were “still willing” to testify on
his behalf. However, the district court resolved any conflict
in the evidence here by finding the Texas witnesses could
not corroborate Betancourt’s claim that he was in Houston on
November 15 and they were unwilling to testify. Under the
standard of review previously noted, we find no clear error in
these findings. There was also evidence that trial counsel were
concerned that “forc[ing]” the witnesses to testify might make
things worse. In short, there was competent evidence in the
record supporting the district court’s decision.
Betancourt also points to the fact that the Texas witnesses
“could have” testified that he lived and worked in Texas before
and after the date of the offenses. 25 However, Betancourt
never identified any specific dates when he was in Texas
according to those witnesses. This lack of detail is signifi-
cant, given that the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after the
offenses. In fact, Attorney 3 testified that he was concerned
that the Texas witnesses could have ended up “corroborating
the co-defendant.”
[9] Betancourt’s claim that the Texas witnesses could have
been impeached about their prior inconsistent statements that
he was in Houston on November 15, 2003, is similarly with-
out merit. Betancourt takes issue with the district court’s
suggestion that under State v. Davis, 26 he might not have
25 Brief for appellant at 20.
26 State v. Davis, 310 Neb. 865, 878, 969 N.W.2d 861, 870 (2022) (impeach-
ment of party’s own witness by means of prior inconsistent statement
may not be employed as “‘mere subterfuge’” or for “‘primary purpose’”
of placing before jury substantive evidence which is not otherwise
admissible, when party is aware prior to calling witness that witness’
testimony will not be consistent with witness’ prior statement). See, also,
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).

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been allowed to impeach the witnesses with those statements.
Betancourt maintains that the district court misconstrued Davis
and that impeachment would have been allowed here. We need
not resolve this dispute, because even if Betancourt is correct
that the Texas witnesses could have been impeached about
their prior statements, such evidence would have served only
to discredit his own witnesses. This is because when allowed
under Davis and related cases, prior inconsistent statements
are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise
admissible under the Nebraska Evidence Rules. 27
The prior inconsistent statements in this case were allegedly
made in conversations with Attorney 2, and not under oath.
As such, they are hearsay. 28 Betancourt does not argue that
the statements are otherwise admissible under the Nebraska
Evidence Rules. 29 Thus, they would not have been admissible
as substantive evidence that he was in Houston on November
15, 2003. Instead, they would have served only to show that
the Texas witnesses—upon whose testimony Betancourt oth-
erwise hoped to rely to show that he was in Texas before and
after the date of the offenses—were not credible. 30
We take a similar view of the failure to present the evi-
dence of Betancourt’s former neighbor. Betancourt relies upon
an affidavit from the neighbor attached to his petition for
postconviction relief, wherein the neighbor states that on the
27 State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).
28 See Clark, supra note 14 (hearsay is statement, other than one made by
declarant while testifying at trial or hearing, offered into evidence to prove
truth of matter asserted).
29 See Neb. Rev. Stat. §§ 27-802 to 27-806 (Reissue 2016).
30 Cf. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021) (counsel not
ineffective for failing to call witnesses to impeach testimony of defendant’s
girlfriend where her prior inconsistent statements could not have been
used as substantive evidence that she did not pick him up after robbery or
that he did not hand her gun, but, rather, would have been limited solely
to discrediting her).

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night in question, she observed three to five men “getting out
of cars” at Betancourt’s former residence. The neighbor also
stated that the residence had been vacant for at least 3 months
and that after Betancourt’s family moved away, she never
saw him again. On appeal, Betancourt argues that testimony
by his former neighbor to this effect at the trial would have
supported his claims of alibi and misidentification, apparently
by showing he was not one of the men she saw on November
15, 2003. However, the neighbor also stated that she observed
the events in the dark from across the street, and she gave
no indication that she was able to identify the men as not
being Betancourt.
Betancourt’s remaining argument, regarding the “striking” 31
similarities between his case and State v. Lang, 32 is similarly
without merit. The defendant in Lang moved to vacate and
set aside his judgment and conviction on the ground that
his trial counsel was ineffective for failing to interview and
subpoena witnesses known to counsel who would have cor-
roborated the defendant’s version of events. 33 We agreed that
the defendant’s counsel “failed to perform a function which a
reasonably competent attorney would perform,” and, as such,
we remanded the cause for a new trial. 34
Betancourt seemingly construes Lang to mean that the fail-
ure to subpoena the witnesses, in and of itself, was deficient
performance; he argues that insofar as he wanted the witnesses
to testify, counsel should have “honor[ed his] requests.” 35
However, 	the 	specific 	defect 	that 	we 	noted 	in 	counsel’s
performance in Lang was the failure to investigate. Because
the counsel in Lang did not interview the witnesses, he was
unaware they had evidence that contradicted the State’s theory
31 Brief for appellant at 20.
32 State v. Lang, 202 Neb. 9, 272 N.W.2d 775 (1978).
33 Id.
34 Id. at 16, 272 N.W.2d at 779.
35 Brief for appellant at 18.

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of the case. Here, in contrast, all of Betancourt’s attorneys,
except for Attorney 1, were aware of the identity of his pro-
posed witnesses and the testimony he hoped to elicit from them.
Betancourt did testify at the evidentiary hearing that Attorney
1 was remiss in investigating because he did “[n]othing” with
the information Betancourt gave him about the Texas wit-
nesses. However, Attorney 1 testified that Betancourt “didn’t
have firm dates or people” and that Attorney 1 attempted to
contact people, but ultimately failed.
Because Betancourt’s trial counsel made a reasonable stra-
tegic decision not to subpoena, depose, or obtain sworn state-
ments from his witnesses, Betancourt was not prejudiced by
appellate counsel’s failure to raise the issue on direct appeal.
As such, Betancourt’s argument that the district court erred
in denying his layered claims of ineffective assistance of
counsel regarding his alibi defense and his “misidentification
defense” is without merit.
Remaining Claims Addressed or Precluded
We next turn to Betancourt’s argument that the district court
erred in denying him an evidentiary hearing on an additional
16 layered claims of ineffective assistance of counsel.
The record on appeal shows that one of those claims, regard-
ing trial counsel’s failure to object to Betancourt’s sentence
of “life imprisonment without parole” for conspiracy to com-
mit kidnapping, was actually heard by the district court. The
district court sustained Betancourt’s petition on that claim and
resentenced him to “life imprisonment.”
As 	to 	the 	other 	15 	claims, 	we 	previously 	found 	that
Betancourt was not entitled to an evidentiary hearing on those
claims when we affirmed, in relevant part, the district court’s
order denying him such a hearing. As a result, the law-of-the-
case doctrine precludes reconsideration of the claims here.
[10-12] Unlike the doctrines of claim preclusion and issue
preclusion, which involve successive lawsuits, the law-of-the-
case doctrine involves successive stages of one continuing

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lawsuit. 36 When it applies, the law-of-the-case doctrine oper-
ates to preclude reconsideration of substantially similar, if
not identical, issues at successive stages of the same suit or
prosecution. 37 The doctrine promotes judicial efficiency and
protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action. 38
We have previously recognized certain exceptions to the
law-of-the-case doctrine, where “‘considerations of substantial
justice suggest a reexamination of the issue is warranted,’”
where materially and substantially different facts are pre-
sented, or where the applicable law has changed. 39 However,
nothing in the record before us suggests that any such excep-
tion applies here.
CONCLUSION
The trial court did not err in denying Betancourt’s peti-
tion for postconviction relief, because trial counsel’s decision
not to subpoena, depose, or obtain sworn statements from
Betancourt’s proposed witnesses was a reasonable strategic
decision and, thus, did not constitute ineffective assistance.
As such, Betancourt was not prejudiced by appellate coun-
sel’s failure to raise the issue on direct appeal. Additionally,
Betancourt’s other claims of ineffective assistance of counsel
either resulted in relief or are precluded under the law-of-
the-case doctrine. Accordingly, we affirm the order of the
district court.
Affirmed.
Freudenberg, J., not participating.
36 State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).
37 Id.
38 Id.
39 Id. at 233, 995 N.W.2d at 52.