Background
Roger L. Marsh was convicted after a jury trial of attempted first degree assault and use of a firearm to commit a felony. The charges arose from a March 2022 shooting outside Donovan Love’s Omaha home. Love identified Marsh as the shooter, Ring doorbell footage placed Marsh outside the home, and police recovered a .25-caliber shell casing from the driveway and observed a bullet-like hole in Love’s vehicle. Marsh received consecutive prison terms of 5 to 15 years on each count, and the Nebraska Court of Appeals affirmed his convictions and sentences on direct appeal.
Marsh later sought postconviction relief, alleging that appellate counsel was ineffective for failing to raise several claims of trial counsel’s ineffectiveness. Those claims concerned challenges to the amended information, investigation of proposed alibi witnesses, independent forensic testing of the casing and projectile, and an objection to the attempted-assault jury instruction. The district court denied the motion without an evidentiary hearing and declined to appoint postconviction counsel.
The Court’s Holding
The Nebraska Court of Appeals affirmed. It held that Marsh’s ineffective-assistance claims were either abandoned on appeal, insufficiently pleaded, or affirmatively refuted by the record. Any omission from the charging language for attempted first degree assault or failure to identify the predicate felony in the firearm count could have been readily cured through an amended information, so Marsh could not establish Strickland prejudice. His proposed alibi claim also failed because video evidence placed him outside Love’s home after the shooting.
The court further held that Marsh’s forensic-testing allegations were conclusory because he did not identify favorable evidence or expert testimony that testing would have produced. Trial counsel was not deficient for declining to challenge the attempted-assault instruction, which substantially followed the Nebraska model instruction, and Love was the only possible victim shown by the evidence. Because the postconviction motion presented no meritorious justiciable issue, the district court did not abuse its discretion by declining to appoint counsel. Marsh’s claims of plain trial error were procedurally barred because they could have been raised on direct appeal.
Key Takeaways
- A postconviction movant is not entitled to an evidentiary hearing when the allegations are conclusory or the record affirmatively establishes that no relief is available.
- Counsel’s failure to challenge a charging defect does not establish prejudice when the State could readily have cured the defect by filing an amended information.
- Speculation that forensic testing might uncover favorable evidence is insufficient without specific allegations identifying the expected evidence, testimony, and effect on the verdict.
Why It Matters
The decision illustrates Nebraska’s demanding pleading standard for layered ineffective-assistance claims. A defendant must allege concrete facts showing both deficient trial-level performance and resulting prejudice before appellate counsel can be faulted for omitting the underlying claim.
It also reinforces the limited scope of postconviction review: defendants cannot use a plain-error label to obtain review of trial-court issues that could have been presented on direct appeal.