STEPHAN, J.
Following a jury trial, Eric T. McGhee was convicted of first degree murder and use of a weapon to commit a felony in the 2003 shooting death of Ezra Lowry. McGhee was sentenced to life imprisonment on the murder conviction and to 5 to 10 years' imprisonment on the use of a weapon conviction. We affirmed the convictions and sentences on direct appeal.
On March 11, 2003, the same day the information charging McGhee was filed, his attorney filed a motion to determine McGhee's competency to stand trial. Following a hearing, the district court determined that McGhee was not then competent to stand trial, but that there was a substantial probability that he would become competent in the foreseeable future. The court committed McGhee to the Lincoln Regional Center until such time as he became competent to stand trial, and ordered that institution to submit written reports to the court every 6 months.
Periodic review hearings were held. At a review hearing in late 2005, Dr. Bruce Gutnik testified for McGhee. Gutnik opined that McGhee remained incompetent to stand trial. Dr. Louis Martin testified for the State and opined that McGhee was then competent to stand trial. The court accepted Martin's testimony and found McGhee competent. McGhee's counsel then filed a notice that McGhee intended to plead not responsible by reason of insanity.
The events that led to the fatal shooting are set forth in detail in our opinion on direct appeal.
Gutnik and Martin gave conflicting expert testimony at trial on the issue of McGhee's sanity at the time of the shooting. Gutnik diagnosed McGhee as suffering from paranoid schizophrenia with a history of alcohol and cannabis abuse and possible dementia. Gutnik testified that in his opinion, McGhee did not know the difference between right and wrong at the time he shot Lowry. Martin testified that McGhee had been under his care for approximately 2 years, beginning with the initial commitment for the purpose of determining competency to stand trial. Martin testified that in his opinion, although McGhee suffered from a mental illness, McGhee nevertheless understood what he was doing when he shot Lowry and also understood that his actions were wrong. On direct appeal, we concluded that the jury must have believed Martin's testimony and that this testimony was "sufficient admissible evidence for the jury to conclude that McGhee was not insane at the time he shot Lowry."
McGhee sought postconviction relief on grounds that his defense counsel was ineffective in (1) failing to acquire a third expert to evaluate and testify regarding his mental status with respect to the issues of competency and sanity, (2) failing to properly advise him regarding waiver of the privilege against self-incrimination and the advisability of testifying in his own behalf, (3) failing to impeach the testimony of one of the State's principal witnesses at
Although McGhee's postconviction motion and subsequent pleadings included in the record on this appeal were filed pro se, the district court at some point appointed counsel to represent McGhee in postconviction proceedings before that court. Counsel for McGhee appeared at the hearing which preceded the district court's decision to deny postconviction relief without conducting an evidentiary hearing. Following entry of its order, the district court denied McGhee's request for appointment of counsel to represent him on this appeal.
McGhee contends, restated and summarized, that the district court erred in (1) denying postconviction relief without conducting an evidentiary hearing, (2) failing to appoint counsel to represent him on this appeal, and (3) failing to make a definitive ruling on the State's motion to deny postconviction relief.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion.
The principal issue presented in this appeal is whether the district court erred in denying postconviction relief without conducting an evidentiary hearing. An evidentiary hearing on a motion for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution.
McGhee was represented by the Douglas County public defender's office at
McGhee's principal argument is that defense counsel was ineffective in not obtaining a third expert to evaluate and testify concerning his competence to stand trial and his sanity at the time of the shooting. McGhee characterizes the conflicting expert testimony as a "stalemate,"
In assessing postconviction claims that trial counsel was ineffective in failing to call a particular witness, we have upheld dismissal without an evidentiary hearing where the motion did not include specific allegations regarding the testimony which the witness would have given if called. For example, in State v. Davlin,
McGhee's allegations are similarly lacking in specificity. He does not identify another expert who would have testified that he was incompetent to stand trial or legally insane at the time of the shooting. He alleges only that if another expert had been consulted, his or her opinions would have served to "break and mitigate the stalemate between Dr. Gutnik and Dr. Martin." Both McGhee's premise and his conclusion are incorrect. There was no "stalemate," only conflicting expert
For completeness, we note that the district court determined that McGhee's three other claims of ineffective assistance of counsel were also without merit. McGhee's assignments of error are broad enough to encompass the disposition of these claims, but his brief includes no argument directed to them. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
McGhee contends that the district court erred in denying his motion for appointment of counsel to represent him in this postconviction appeal. There is no federal or state constitutional right to an attorney in state postconviction proceedings.
We find no merit to McGhee's argument that the district court failed to clearly adjudicate
For the reasons discussed, we affirm the judgment of the district court dismissing McGhee's motion for postconviction relief without an evidentiary hearing.
AFFIRMED.