State of Nebraska v. Greg A. Glass

In 1999, Glass was convicted of second degree murder

and use of a firearm to commit a felony. The charges arose

from the July 1998 shooting death of Glass’ former employer,

Adolph Fentress, Sr. Fentress was shot in the head while working

at an automobile detailing shop, Downtown Auto Sales

(Downtown Auto), which he co-owned. The facts for which

we find support in the record are set forth in the memorandum

opinion of the Nebraska Court of Appeals rejecting Glass’

arguments on direct appeal. See State v. Glass, No. A-99-919,

2000 WL 944020 (Neb. App. July 11, 2000) (not designated

for permanent publication).

At trial, Glass testified in his own defense. According to his

testimony, he worked for Downtown Auto earlier in the year

but had quit. Glass claimed Fentress owed him money, and

he had tried to collect it on several occasions. According to

Glass, at one point when he tried to collect his money, Fentress

threatened him with a tire iron and told him to stay away from

Downtown Auto.

Glass testified that on July 2, 1998, he had come to

Downtown Auto again to collect his money, because Fentress

had agreed to meet him. Glass testified that he brought a gun

to protect himself because of the previous threatening encounters

with Fentress. After they met, Glass and Fentress began

arguing, and then Glass believed Fentress picked up a weapon.

Glass testified that he retreated to the door area of the office

and that Fentress came at him. According to Glass, he raised

his gun and shot Fentress in self-defense. He testified that he

then panicked and drove off in a red BMW from the lot.

Several eyewitnesses testified for the prosecution, including

Downtown Auto employee Deon Marion. Marion testified that

on the day of Fentress’ death, he was working in the parking lot

outside and noticed a person whom he later identified as Glass

standing near the Downtown Auto building. Marion witnessed

Glass call out to Fentress. Marion observed an expression from

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Fentress that communicated that something was wrong. Marion

went into the office and called the police. The sound of a gunshot

was picked up in the recording of that telephone call.

Another eyewitness was Adolph Fentress, Jr. (Adolph), the

teenage son of Fentress. Adolph testified that he observed

an argument between Fentress and Glass. Adolph said that

Fentress appeared to have something behind his back and overheard

Glass say, “drop it.” Adolph observed something under

Glass’ shirt, and saw Glass move toward the office, followed

by Fentress. Adolph testified that Glass pulled out a gun and

shot Fentress. He next observed Glass go through Fentress’

pockets, remove a wallet and keys, and drive away in a red

BMW that their shop had serviced. Glass was later found in the

red BMW. When police arrived and processed the scene, they

found Fentress’ deceased body on the floor of the shop and

found a tire iron next to his body.

The jury found Glass guilty of second degree murder and

use of a firearm to commit a felony, and not guilty of theft by

unlawful taking.

2. Postconviction Proceedings

Glass filed a pro se motion for postconviction relief on

August 23, 2012. Among the claims set forth in the motion was

a claim that trial counsel provided ineffective assistance when

counsel failed to object to the “malice” definition in the jury

instructions. The district court appointed counsel for Glass’

postconviction proceeding. Glass then amended the motion for

postconviction relief and claimed he was denied due process

based on jury instructions which did not require the jury to

consider manslaughter, that is, whether the killing was intentional,

but provoked by a sudden quarrel, before convicting

Glass of second degree murder. Glass also alleged ineffectiveness

of trial and appellate counsel.

Glass argued that the instruction given in his case did not

comply with our holdings in State v. Ronald Smith and State

v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013). He claimed

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ineffective assistance of trial counsel in three respects: failing

to call witnesses who would have testified to the victim’s

violent and aggressive character; failing to relay a plea offer in

advance of trial; and failing to obtain an expert ballistics witness

who could have testified about the range of the gunshot,

the path of the gunshot, or any other matters that may have

aided Glass in his self-defense claim. Finally, Glass claimed

that his separate appellate counsel, who was different from

his trial counsel, was ineffective on direct appeal for failing to

allege the foregoing claims against trial counsel.

A hearing was conducted, at which the court received evidence,

including testimony from Glass and exhibits including

depositions of trial and appellate counsel. In an August 25,

2016, order, the court overruled Glass’ amended motion for

postconviction relief. With regard to the claim regarding jury

instructions on second degree murder and manslaughter, the

court reasoned that the claim was procedurally barred because

Glass failed to raise it on direct appeal. Alternatively, the court

rejected the claim because the rule stated in State v. Ronald

Smith, upon which Glass relied, was not a new constitutional

rule that required retroactive application, but was a new criminal

rule which would not be retroactively applied to cases

that were final and which were not pending on direct appeal

when State v. Ronald Smith was decided. The district court

also concluded that the “step instruction” under which the jury

first considered second degree murder before considering manslaughter

to which Glass now objects was settled law at the

time of the 1999 trial.

With regard to each of Glass’ ineffective assistance of counsel

claims, the court determined that there was no prejudicial

error by trial counsel for failing to call a witness familiar

with Fentress’ aggressive character, failing to call an expert to

address ballistic and autopsy findings, and failing to relay a

plea offer. With regard to the failure to call a witness familiar

with Fentress’ character, the court noted that two witnesses

testified about the behavior of Glass and Fentress prior to

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the shooting and that the additional witness was not involved

in the incident giving rise to the case and would not have

changed the jury’s perception of events. With regard to the

decision not to call a forensic expert to reexamine the findings

of the State’s expert regarding the gunshot wound, weapon

used, autopsy report, and other forensic results, the court noted

that Glass’ only argument for why it might be necessary was

because the entrance wound was somewhat irregular. Glass did

not demonstrate how a different interpretation of the evidence

would affect the outcome of the case. With regard to the claim

that trial counsel failed to communicate a plea offer, the court

found that the evidence refuted the suggestion that a plea deal

was offered by the State.

Because the court found no prejudicial error by trial counsel

in connection with any of the claims, it found no prejudicial

error when Glass’ appellate attorney did not raise the same

issues on direct appeal.

In an August 30, 2016, order, the district court also overruled

a supplemental pro se postconviction motion filed by Glass.

This supplemental motion alleged that the jury was incorrectly

instructed at trial on second degree murder and manslaughter.

The district court rejected this claim.

This appeal followed.

III. ASSIGNMENTS OF ERROR

Glass claims that the district court erred when it rejected his

postconviction allegations that his due process rights to a fair

trial and impartial jury were violated by the jury instructions

given at his 1999 trial and that he was prejudiced by the deficient

performance of his trial and appellate counsel regarding

his convictions for second degree murder and use of a firearm

to commit a felony.

IV. STANDARDS OF REVIEW

[1] When reviewing a question of law, an appellate court

reaches a conclusion independent of the lower court’s ruling.

State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).

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[2] In an evidentiary 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. In

contrast, an appellate court independently resolves questions of

law. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d

706 (2017).

[3] 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 independently of the lower court’s

decision. See State v. Alarcon-Chavez, supra.

V. ANALYSIS

1. Summary of Analysis

of Jury Instructions

Glass filed amended and supplemental motions for postconviction

relief alleging a constitutional violation under Neb.

Rev. Stat. § 29-3001 et seq. (Reissue 2016). Our analysis of the

validity of Glass’ claim is framed by whether he was deprived

of a constitutional right. As we explain below, we conclude

that Glass’ constitutional rights were not abridged in connection

with the jury instructions of which he complains.

Glass offers several rationales for relief which we consider,

in turn, in our analysis and ultimately find unpersuasive. His

several theories rest on his assertion that our decision in State

v. Ronald Smith applies to his case and affords relief. Because

we conclude that constitutional principles do not require that

State v. Ronald Smith be applied retroactively on collateral

review, that plain error did not occur, and that Glass did not

suffer a constitutional violation and was not deprived of due

process, we reject Glass’ claim related to the jury instructions

that were used at his trial.

[4] Glass contends that under the U.S. Supreme Court’s

retroactivity test applicable to cases on collateral review, State

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v. Ronald Smith should be applied retroactively, because it

announced a new substantive rule of constitutional law which

violated his rights. See Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and

Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159

L. Ed. 2d 442 (2004). Because it was not a new substantive

constitutional rule, we reject this argument. Relying on cases

such as State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013),

Glass next contends that the jury instruction at his trial constituted

plain error requiring reversal. Because the cases on

which Glass relies were on direct appeal at the time of our

consideration, they are inapplicable to Glass’ postconviction

case on collateral review. Ultimately, Glass claims that he suffered

a constitutional violation by use of the jury instruction

that was given at his trial and that as such, it violated due

process. We recognize that “the Due Process Clause protects

the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” See In re Winship, 397 U.S.

358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Glass was

convicted by sufficient proof of second degree murder upon a

proper jury instruction regarding second degree murder. The

instruction regarding sudden quarrel manslaughter, albeit now

deemed faulty, did not deprive Glass of due process in connection

with the charge for second degree murder of which he was

convicted. See id.

2. State v. Ronald Smith

In his postconviction motion, Glass claimed that he was

denied his constitutional rights because the jury at his 1999

trial was given improper jury instructions regarding the manner

it should consider second degree murder and sudden quarrel

manslaughter and also because the elements of sudden

quarrel manslaughter were inaccurate. Under the jury instructions

given in this case, if the jury found proof of second

degree murder beyond a reasonable doubt, the jury was not

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required to consider whether the killing was the result of sudden

quarrel manslaughter. Glass does not challenge the content

of the jury instruction regarding second degree murder in and

of itself. However, he argues that the step instruction given in

his case did not comply with our holdings in State v. Ronald

Smith and State v. Trice, supra.

[5] Under our holdings in State v. Ronald Smith, both

second degree murder and voluntary manslaughter involve

intentional killing and are differentiated by the presence or

absence of the sudden quarrel provocation involved in manslaughter.

If the sudden quarrel provocation exists, it lessens

the degree of the homicide from murder to manslaughter.

Following State v. Ronald Smith, where there is evidence that

(1) a killing occurred intentionally without premeditation and

(2) the defendant

was acting under the provocation of a sudden

quarrel, a rational jury could convict a defendant of sudden

quarrel manslaughter and a jury should be given the option of

convicting of either second degree murder or sudden quarrel

manslaughter depending upon its resolution of the fact issue

regarding provocation. See, also, State v. Smith, 284 Neb. 636,

822 N.W.2d 401 (2012). Thus, a step instruction which directed

the jury to convict the defendant of second degree murder if it

found an intentional killing, but did not allow the jury to also

consider whether the killing was provoked by a sudden quarrel,

was an incorrect statement of the law.

3. Teague/Schriro

Retroactivity Test

In its decisions in Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and

Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L.

Ed. 2d 442 (2004), as well as other cases, the U.S. Supreme

Court set forth a test for determining when a new rule of constitutional

law will be applied to cases on collateral review.

See, also, Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct.

718, 193 L. Ed. 2d 599 (2016). We have adopted the Teague/

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Schriro retroactivity test. See State v. Mantich, 287 Neb. 320,

842 N.W.2d 716 (2014). The threshold question in this appeal,

as asserted by Glass, is whether the new rule pronounced in

State v. Ronald Smith applies to Glass on collateral review. If

the rule were applicable on collateral review, and assuming

evidence of sudden quarrel manslaughter existed, we would

reverse his convictions and remand the cause for a new trial.

Because Glass’ convictions were final before State v. Ronald

Smith was decided, he is entitled to relief in this postconviction

case if the rule announced in State v. Ronald Smith applies

retroactively on collateral review.

[6-8] When a decision of this court results in a “new rule,”

that rule applies to criminal cases still pending on direct

review, because they are not final. State v. Mantich, supra.

See Schriro v. Summerlin, supra. As to convictions that are

already final, however, the rule applies only in limited circumstances.

Id. New substantive rules of constitutional law for

criminal cases generally apply retroactively. Substantive rules

include “‘rules forbidding criminal punishment of certain primary

conduct’” and “‘rules prohibiting a certain category of

punishment for a class of defendants because of their status

or offense.’” Montgomery v. Louisiana, 136 S. Ct. at 728.

Constitutional substantive rules “‘alter[] the range of conduct

or the class of persons that the law punishes.’” Montgomery

v. Louisiana, 136 S. Ct. at 732. Such rules apply retroactively,

because they “‘necessarily carry a significant risk that

a defendant stands convicted of “an act that the law does not

make criminal”’” or faces a punishment that the law cannot

impose upon him or her. State v. Mantich, 287 Neb. at 330,

842 N.W.2d at 724.

[9,10] New constitutional rules of criminal procedure, on the

other hand, generally do not apply retroactively. Montgomery

v. Louisiana, supra. Most procedural rules “regulate only the

manner of determining the defendant’s culpability.” Schriro v.

Summerlin, 542 U.S. at 353 (emphasis in original). They do

not produce a class of persons convicted of conduct the law

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does not make criminal, but merely raise the possibility that

someone convicted with use of the invalidated procedure might

have been acquitted otherwise. Schriro v. Summerlin, supra.

“Because of this more speculative connection to innocence, we

give retroactive effect to only a small set of ‘“watershed rules

of criminal procedure” implicating the fundamental fairness

and accuracy of the criminal proceeding.’” 542 U.S. at 352.

Accord Montgomery v. Louisiana, supra. This class of rules is

extremely narrow. Schriro v. Sumerlin, supra.

4. New Rule in State

v. Ronald Smith

Although State v. Ronald Smith announced a new manslaughter

rule which we applied on direct review, see State v.

Trice, 286 Neb. 183, 835 N.W.2d 667 (2013), it did not recognize

a new constitutional rule, see State v. Smith, 284 Neb. 636,

822 N.W.2d 401 (2012), or a new constitutional claim for purposes

of timeliness as understood in Nebraska’s postconviction

statutes. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860

(2016). As discussed above, a new rule applies retroactively

on collateral review only if it is (1) a constitutional substantive

rule or (2) a watershed rule of criminal procedure. Glass does

not argue that the rule in State v. Ronald Smith implicates a

watershed rule of criminal procedure, and we agree. Thus, we

turn to his argument that the rule applies retroactively because

it is a substantive constitutional rule. As explained below, we

reject this argument.

In State v. Ronald Smith, we clarified both that sudden

quarrel manslaughter is an intentional crime and that a step

jury instruction requiring a jury to acquit the defendant of

second degree murder before considering sudden quarrel manslaughter

is improper. In Harrison, we concluded that State v.

Ronald Smith did not recognize a new constitutional claim and

therefore did not toll the 1-year statute of limitations under

§ 29-3001(4)(d) for timely filing a postconviction motion.

We explained that State v. Ronald Smith was based upon our

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interpretation of the criminal statute that defines manslaughter,

Neb. Rev. Stat. § 28-305 (Reissue 2016), not on a newly

recognized constitutional right.

We conclude that the holding in State v. Ronald Smith that it

is improper for a jury to consider second degree murder without

simultaneously considering sudden quarrel manslaughter

is a change to the acceptable method for the jury to deliberate

and is a procedural rule change “regulat[ing] only the manner

of determining the defendant’s culpability.” See Schriro v.

Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d

442 (2004).

State v. Ronald Smith also interpreted the language of the

manslaughter statute to clarify the intent requirement for sudden

quarrel manslaughter and dispel the confusion between

the statutory crimes of second degree murder and sudden

quarrel manslaughter. See § 28-305(1). We believe that nonretroactivity

of the State v. Ronald Smith rule poses no danger

to Glass of a wrongful conviction for second degree murder.

In the instant case, the jury found Glass guilty of second

degree murder. The record shows that a rational jury could

find each element of second degree murder beyond a reasonable

doubt.

5. Due Process

Glass contends that the holdings in State v. Ronald Smith

show that he suffered a constitutional violation, thereby depriving

him of due process. We do not agree.

When Glass was tried in 1999, the criminal law in Nebraska

regarding second degree murder had been clarified in State v.

Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and malice

was not an element of second degree murder, the absence of

provocation was not an element of second degree murder, and

a conviction for manslaughter did not require proof of intent.

[11] In another postconviction case which concerned a 2004

homicide, State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404

(2011), we reasoned that a comparable step instruction for

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second degree murder and manslaughter did not relieve the

State of its burden to prove the elements of second degree

murder and did not violate due process. Subsequently, the U.S.

Court of Appeals for the Eighth Circuit rejected the defendant’s

federal habeas petition complaining that our rejection

of his postconviction claims denied him due process rights.

Iromuanya v. Frakes, 866 F.3d 872 (8th Cir. 2017). The Eighth

Circuit stated that our rejection of the defendant’s claims relating

to his jury instructions “was not contrary to, nor an unreasonable

application of, [Nebraska] Supreme Court precedent.”

Id. at 879. The Eighth Circuit offered the following quote

regarding due process: “A federal court may grant habeas

relief on the basis of a faulty state law jury instruction only if

the erroneous instruction ‘so infected the entire trial that the

resulting conviction violates due process.’” Id. at 881 (quoting

Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d

385 (1991)). The Eighth Circuit added that complaints about

the retroactivity of State v. Ronald Smith are “not a federal due

process problem,” Iromuanya v. Frakes, 866 F.3d at 881, thus

leaving the issue for our resolution.

Applicable U.S. Supreme Court precedent for due process

requires the State to prove beyond a reasonable doubt every

fact necessary to constitute the crime with which a defendant

is charged. See In re Winship, 397 U.S. 358, 90 S. Ct. 1068,

25 L. Ed. 2d 368 (1970). At Glass’ trial, as we have noted, the

State was required to prove beyond a reasonable doubt each

of the elements of the crime of which Glass stands convicted,

second degree murder. The suggestion by Glass that the jury

might have convicted him of sudden quarrel manslaughter

does not defeat the validity of his second degree murder

conviction on collateral review where the conviction was supported

by sufficient evidence. We conclude that notwithstanding

our holdings in State v. Ronald Smith, given the sufficient

evidence of the commission of second degree murder, Glass’

due process right to trial by an impartial jury was not offended

by the step jury instruction requiring the jury to first acquit

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Glass of second degree murder before considering sudden

quarrel manslaughter, or by defining manslaughter as an unintentional

crime.

6. Ineffective Assistanc e

of Counsel

[12] Glass was represented by different counsel at trial and

on appeal. Glass sought postconviction relief for the alleged

ineffective assistance provided by his trial counsel and appellate

counsel. When a claim of ineffective assistance of appellate

counsel is based on the failure to raise a claim on appeal

of ineffective assistance of trial counsel (“a ‘layered’ claim of

ineffective assistance of counsel”), an appellate court will look

first 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). State v. Dubray, 294 Neb. 937, 953, 885

N.W.2d 540, 554 (2016). If trial counsel was not ineffective,

then the defendant was not prejudiced by appellate counsel’s

failure to raise the issue. State v. Dubray, supra.

[13,14] Before considering Glass’ specific claims for postconviction

relief, we review the applicable general standards.

The Nebraska Postconviction Act, § 29-3001 et seq., provides

that 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. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). A proper

ineffective assistance of counsel claim alleges a violation of

the fundamental constitutional right to a fair trial. State v.

Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). To prevail on a

claim of ineffective assistance of counsel under Strickland v.

Washington, supra, the defendant must show that his or her

counsel’s performance was deficient and that this deficient

performance actually prejudiced the defendant’s defense. State

v. Vela, supra. To show prejudice under the prejudice component

of the Strickland test, the defendant must demonstrate

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a reasonable probability that but for his or her counsel’s deficient

performance, the result of the proceeding would have

been different. State v. Vela, supra. A reasonable probability

does not require that it be more likely than not that the deficient

performance altered the outcome of the case; rather, the

defendant must show a probability sufficient to undermine

confidence in the outcome. Id.

Following our independent review, we conclude that the

district court did not err when it rejected Glass’ ineffective

assistance

of counsel claims after an evidentiary hearing.

(a) Trial Counsel’s Failure to Call

a Witness to Testify to the

Victim’s Violent Character

Glass alleged that trial counsel was ineffective because he

failed to call a potential witness who would have testified that

Fentress generally had a reputation for being violent. In his

testimony, Glass’ trial counsel denied that Glass told him about

“any witnesses whatsoever” who would have testified about

Fentress’ tendency for violence.

The record shows that the additional witness now proposed

by Glass was not involved in the incident giving rise to the

case and, we believe, even if relevant, would not have changed

the jury’s perception of events. As the district court noted in

its order, two witnesses testified at trial about the behavior

of Glass and Fentress prior to the shooting. Even if admitted,

the proposed additional witness testimony would have been

cumulative and Glass was not prejudiced by trial counsel’s

alleged failure to call the potential witness. See State v. Grant,

293 Neb. 163, 876 N.W.2d 639 (2016). We find no prejudicial

error.

(b) Trial Counsel’s Decision Not

to Retain an Expert to Address

Ballistic and Autopsy Findings

Glass alleged that trial counsel was ineffective by failing

to retain and call an expert to address ballistic and autopsy

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findings at trial. Glass’ trial counsel testified that he never

considered retaining an independent expert, because he saw no

reason to do so; he was comfortable with the autopsy findings,

and based on his experience, he knew that the conclusions

about the lack of stippling and its correlation to the distance

between the shooter and the victim was accurate and consistent

with the evidence.

With regard to the decision not to call a forensic expert to

reexamine the findings of the State’s expert regarding the gunshot

wound, weapon used, autopsy report, and other forensic

results, the district court in its order noted that Glass’ only

argument for why such evidence might be necessary was

because the entrance wound was somewhat irregular. Glass did

not present evidence or a specific explanation of how a different

interpretation of the evidence would have affected the

outcome of the case. Trial counsel was not deficient in failing

to engage a ballistics expert.

(c) Trial Counsel Not

Relaying Plea Offer

Glass alleged that his trial counsel was deficient and that he

was prejudiced because counsel failed to look into and relay a

plea offer by the State. At the hearing on his amended motion,

Glass testified that he asked his trial counsel to look into a

potential plea deal. Approximately 9 years after his trial, Glass

claims that his family told him that the State had “supposedly”

extended a plea offer of manslaughter. At the evidentiary hearing,

Glass’ trial counsel testified that there was never a plea

offer from the State, that the State was adamant about taking

the case to trial, and that if the State would have allowed Glass

to plead to manslaughter, counsel would have relayed it to

Glass and definitely advised him to accept the deal. The district

court found trial counsel’s testimony credible and determined

that there was no deficient performance by trial counsel for not

relaying a plea offer, because Glass did not show the existence

of a plea offer by the State, other than by an unsubstantiated

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rumor. The district court’s findings are not clearly erroneous,

and they support the district court’s rejection of this claim.

State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706

(2017). The district court did not err.

(d) Ineffectiveness of Appellate

Counsel Claims

Glass also alleged ineffectiveness of appellate counsel for

failing to raise the above issues on direct appeal. Because

the court found no prejudicial error by trial counsel in connection

with any of the claims, it found no prejudicial error

when Glass’ appellate attorney did not raise the same issues

on direct appeal. State v. Dubray, 294 Neb. 937, 885 N.W.2d

540 (2016).

Direct appeal counsel testified that he did not recall Glass’

asking him to raise claims of ineffective assistance of trial

counsel based on Glass’ present allegations. This testimony

is also supported by a letter to appellate counsel regarding

claims for ineffective assistance of trial counsel in which Glass

made no mention of the three ineffective assistance of counsel

claims Glass is currently raising.

As noted above, trial counsel was not deficient and appellate

counsel was not ineffective when he did not raise the

claims Glass now asserts without success. Accordingly, we

conclude that the district court did not err when it concluded

that Glass’ allegations regarding appellate counsel’s performance

were without merit, and we therefore affirm the orders

denying postconviction relief.

As explained above, we conclude that the holdings in State

v. Ronald Smith do not apply to Glass retroactively on collateral

review. The State was required to prove each element

of the crime of second degree murder of which Glass stands

convicted, and because the evidence was sufficient, Glass’

convictions did not offend his due process rights. Further, we

have reviewed Glass’ claims of ineffectiveness of trial and

appellate counsel and agree with the district court that they are

without merit. Accordingly, we conclude that the district court

did not err when it denied Glass’ amended and supplemental

motions for postconviction relief.

Affirmed.