inline"> Nebraska Advance Sheets STATE v. BRANCH 83 Cite as 286 Neb. 83


district court will not be disturbed unless they are clearly
erroneous. State v. Robinson,

285 Neb. 394

827 N.W.2d 292

(2013). “The entry of filing by the clerk is the best evidence
of the date of filing and is presumed to be correct until the
contrary is shown.” State v. Hess,

261 Neb. 368, 377-78

622 N.W.2d 891, 901

 (2001). The district court’s finding
that Smith filed his motion outside the 1-year period was not
clearly erroneous.
                       VI. CONCLUSION
   The district court did not err in denying postconviction
relief without an evidentiary hearing. We affirm the judgment
of the district court.
                                                   Affirmed.



    State   of   Nebraska,   appellee, v. James         L. Branch,       appellant.
                                    ___ N.W.2d ___

                        Filed June 14, 2013.    No. S-12-1010.

 1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals from post
     conviction proceedings, an appellate court reviews de novo a determination that
     the defendant failed to allege sufficient facts to demonstrate 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: Constitutional Law: Judgments: Proof. An evidentiary hear
     ing on a motion for postconviction relief is required on an appropriate motion
     containing factual allegations which, if proved, constitute an infringement of the
     movant’s rights under the Nebraska or federal Constitution, causing the judgment
     against the defendant to be void or voidable.
 3.	 Postconviction. An evidentiary hearing is not required when a motion for post
     conviction relief alleges only conclusions of fact or law.
 4.	 Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes
     sufficient allegations of a constitutional violation which would render a judg
     ment void or voidable, an evidentiary hearing on a motion for postconviction
     relief may be denied only when the records and files affirmatively show that the
     defend nt is entitled to no relief.
            a

  Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
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  Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
   Jon Bruning, Attorney General, and George R. Love
for appellee.
  Heavican,         C.J.,   Wright,      Stephan,     McCormack,   and
Cassel, JJ.
      Heavican, C.J.
                      INTRODUCTION
   James L. Branch’s motion for postconviction relief was
denied without an evidentiary hearing. He appeals. We con
clude that Branch is entitled to an evidentiary hearing on
his allegation regarding potential alibi evidence and accord
ingly reverse the district court’s denial of a hearing. As to
Branch’s other allegations, however, we affirm the district
court’s judgment.
                        BACKGROUND
   In March 2008, Branch was charged by amended informa
tion with robbery, first degree false imprisonment, and kid
napping. At his jury trial, Branch testified in his own behalf
that he was not present during the alleged crimes. Following
the conclusion of his trial, Branch was convicted of rob
bery and kidnapping, and the false imprisonment charge was
dismissed. He was sentenced to 40 to 50 years’ imprison
ment for robbery and life imprisonment for kidnapping; this
court affirmed.1
   In April 2011, Branch filed a pro se motion for postconvic
tion relief. He was appointed counsel, and an amended motion
for postconviction relief was filed. That motion alleged that
trial and appellate counsel were the same and that this counsel
was ineffective as follows:
         a. Trial counsel was aware [Branch] claimed not to be
      present during the incident and did not commit the crimes
      charged but failed to call witnesses on [Branch’s] behalf,
      such as Laqu[e]sha Martin, who would testify [Branch]

 1	
      State v. Branch,

277 Neb. 738

764 N.W.2d 867

 (2009).
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	                        STATE v. BRANCH	85
	                        Cite as

286 Neb. 83


     was not present during the incident and did not commit
     the crimes charged;
         b. Trial counsel failed to use an investigator to dis
     cover additional witnesses and/or evidence that tended
     to establish that [Branch] was not present during the
     incident and did not commit the crimes charged even
     though [Branch] provided trial counsel with information
     in this regard;
         c. Trial counsel knew there were latent fingerprints
     from the crime scene, but did not request for indepen
     dent scientific evaluation of any and all lifts of latent
     fingerprints;
         d. Trial counsel knew there was blood or suspected
     blood samples, but did not request for independent scien
     tific evaluation of any and all blood or suspected blood
     samples; and
         e. Trial counsel failed to consult with [Branch] regard
     ing critical aspects of the case, e.g., calling or not calling
     witnesses vital to the defense, theory of the defense, and
     final argument.
Branch further alleged that he was prejudiced by this deficient
performance because:
         a. The lack of additional defense witnesses and expert
     testimony regarding the physical evidence unfairly preju
     diced the jury against [Branch] and his theory of defense;
         b. Consultation with [Branch] regarding potential
     defense witnesses, expert testimony, and trial strategy
     would have resulted in a stronger defense at trial and
     would have produced a different result at trial; and
         c. There is a reasonable probability that but for trial
     counsel’s deficient performance the results of the trial
     would have been different.
  The district court denied Branch’s motion without an evi
dentiary hearing. Branch appeals.

                ASSIGNMENT OF ERROR
   Branch assigns that the district court erred in failing to
grant an evidentiary hearing on his motion for postconvic
tion relief.
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                   STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma
tively show that the defendant is entitled to no relief.2

                           ANALYSIS
   [2-4] In his sole assignment of error, Branch asserts that
the district court erred in failing to grant him an evidentiary
hearing. An evidentiary hearing on a motion for postconvic
tion relief is required on an appropriate motion containing
factual allegations which, if proved, constitute an infringe
ment of the movant’s rights under the Nebraska or federal
Constitution, causing the judgment against the defendant to
be void or voidable.3 An evidentiary hearing is not required
when the motion alleges only conclusions of fact or law.4 If
the defendant makes sufficient allegations of a constitutional
violation which would render the judgment void or voidable,
an evidentiary hearing may be denied only when the records
and files affirmatively show that the defendant is entitled to
no relief.5

Alibi Testimony.
   We turn first to Branch’s argument that the district court
erred in failing to grant an evidentiary hearing on his allegation
that his trial counsel was ineffective for failing to present alibi
evidence in the form of Laquesha Martin’s testimony.
   As is set forth above, Branch alleged that trial counsel was
aware of Branch’s alibi defense and further alleged that Martin
would testify that Branch was not present during the inci
dent and did not commit the crimes charged. Standing alone,
these allegations are insufficient to support the granting of an


 2	
      State v. Edwards,

284 Neb. 382

821 N.W.2d 680

 (2012).
 3	
      State v. Poe,

284 Neb. 750

822 N.W.2d 831

 (2012).
 4

Id.

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evidentiary hearing, because they do not specifically allege that
Martin would provide an alibi for Branch.
   Given the restrictions of the Nebraska Postconviction Act,6
those seeking postconviction relief ought to plead any and all
allegations with as much detail as possible in order to avoid the
dismissal of their motion without an evidentiary hearing. But
in this case, an otherwise vague allegation is made sufficiently
clear upon review of the record.
   At trial, Branch testified in his own behalf. In that testi
mony, Branch stated that on the date of the robbery, he was
asleep until just prior to either 11 a.m. or 2 p.m., at which
time he picked up Martin from work. Branch explained that
he was uncertain about the time because Martin had been
working a lot of overtime and he was unsure about whether
she worked overtime on that day. In any event, Branch testi
fied that after he picked Martin up, he and Martin drove to
the home of a friend of Branch’s who was keeping Branch’s
dog. Branch estimated that they were gone about 11⁄2 hours
before returning to the apartment they shared. Upon returning
to their apartment, the two met with Paul Miller. Miller had in
his possession a credit card, and he asked Branch if he would
go around town with Miller and fill up gas tanks. We note that
this timeline, while vague, is not obviously inconsistent with
the victim’s testimony regarding the robbery, which is also
somewhat vague.
   When the allegations regarding Martin’s proposed testimony
are considered in conjunction with Branch’s trial testimony,
they are sufficient to warrant the granting of an evidentiary
hearing. The allegations in Branch’s motion state that Martin
would testify that Branch was not present during the incident
and did not commit the crimes charged. And Branch testi
fied that he was with Martin. A logical reading of both sug
gests that Martin would testify that Branch was not present
and did not commit the crimes charged because he was with
Martin. As such, Branch is entitled to an evidentiary hearing
on this allegation.


 6

Neb. Rev. Stat. § 29-3001

 et seq. (Reissue 2008 & Cum. Supp. 2012).
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Remaining Allegations.
   Branch also alleges that his counsel was ineffective for fail
ing to use an investigator to discover additional witnesses, for
failing to consult with Branch on critical aspects of the case,
and for failing to order independent testing of fingerprint and
blood evidence.
   While Branch is entitled to an evidentiary hearing on the
question of the ineffectiveness of his trial counsel with regard
to a potential alibi witness, the remainder of his allegations
are merely conclusory and insufficient to warrant postconvic
tion relief. Branch fails to allege what other witnesses might
be called or what their testimony might be. In addition, he
fails to allege what specifically would have been different
about these “critical aspects of the case” if only he had been
consulted by trial counsel. And Branch fails to set forth any
prejudice that would result from independent analyses of fin
gerprint and blood evidence when nothing at trial suggested
that this evidence in any way implicated Branch, and where
there were other perpetrators of the crimes in addition to
Branch. Thus, Branch is not entitled to an evidentiary hearing
on these allegations.
                           CONCLUSION
   We reverse the district court’s denial of Branch’s request for
an evidentiary hearing regarding trial counsel’s alleged inef
fectiveness in failing to present Martin’s alibi testimony. We
otherwise affirm the denial of Branch’s request. The judgment
of the district court is affirmed in part and in part reversed, and
the cause remanded for further proceedings.
	Affirmed in part, and in part reversed and
	                  remanded for further proceedings.
   Connolly and Miller-Lerman, JJ., participating on briefs.

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