Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/04/2019 08:07 AM CDT - 147 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 State of Nebraska, appellee, v. Jose C. Oliveira-Coutinho, appellant. ___ N.W.2d ___ Filed October 4, 2019. No. S-17-1262. 1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to dem- onstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. Postconviction: Right to Counsel: Appeal and Error. An appellate court reviews the failure of the district court to provide court-appointed counsel in a postconviction proceeding for an abuse of discretion. 3. Postconviction: Constitutional Law: Judgments. 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. 4. Postconviction: Constitutional Law: Proof. In a motion for postcon- viction relief, the defendant must allege facts which, if proved, consti- tute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. 5. ____: ____: ____. A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defend ant’s rights under the Nebraska or federal Constitution. 6. Postconviction: Proof. If a postconviction motion alleges only conclu- sions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. 7. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental con- stitutional right to a fair trial. - 148 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 8. Effectiveness of Counsel: Proof: Words and Phrases: 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 perform ance was deficient and that this deficient performance actually preju- diced the defendant’s defense. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a rea- sonable probability that but for his or her counsel’s deficient perform ance, the result of the proceeding would have been different. A reason- able 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. 9. ...
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