S-25-0395 State of Nebraska (Appellee) v. Majdal K. Elias (Appellant)
Appeal from the District Court for Lancaster County, Judge Lori A. Maret
Attorneys: Gerald L. Soucie (Attorney at Law for Appellant), Carlos Alberto Monzon (Monzon Guerra Law Firm for Appellant) and Austin N. Relph (Nebraska Attorney General’s Office for Appellee)
Criminal: Postconviction relief
Proceedings below: Appellant was convicted of second-degree murder, unlawful discharge of a firearm, and two counts of use of a deadly weapon to commit a felony. He was sentenced to consecutive terms of sixty (60) to eighty (80) years in prison for the murder conviction and ten (10) to twenty (20) years in prison for each of the other convictions. See State v. Elias, 314 Neb. 494 (2023). In the instant case, the district court denied Appellant’s motion for postconviction relief based on allegations that the cell phone data the State offered into evidence at trial was inadmissible and that Appellant received ineffective assistance from counsel. On its own motion, the Nebraska Supreme Court ordered this case to be transferred from the docket of the Nebraska Court of Appeals to its docket.
Issues: Appellant assigns the following errors: 1) The district court erred in dismissing Ground One of the petition for postconviction relief without the benefit of an evidentiary hearing as provided in Neb. Rev. Stat. § 29-3001(2). As alleged in the postconviction motion, evidence at a hearing would have established that the “cell phone data” used by the State to claim that Appellant’s cell phone was at or near the location of the shooting was not admissible. The State obtained thousands of call and location data pursuant to Neb. Rev. Stat. § 86-2,106 et seq., but then failed to comply with Neb. Rev. Stat. § 86-2,108(1)(e). No notice was given by first-class mail to any of the persons whose cell phone data was seized, including Appellant, as required by Neb. Rev. Stat. § 86- 2,108(1)(e) and in violation of 18 U.S.C. 2703, 18 U.S.C. 2705, and the facts as alleged require and evidentiary hearing for violation of Appellant’s First, Fourth, and Fourteenth Amendments to the United States Constitution; 2) The district court erred in dismissing Ground Two (A) and (B) of the petition for postconviction relief without the benefit of an evidentiary hearing as provided in Neb. Rev. Stat. § 29-3001(2). Appellate counsel and trial counsel were the same. Trial counsel failed to object to the cell phone data evidence at trial as for the reasons set forth in GROUND ONE. Appellate counsel failed to assign as error on direct appeal ineffective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution.