Opinion
No. 38689.
Filed March 23, 1973.
1. Post conviction: Pleadings. In a post conviction proceeding a defendant must allege facts which, if proved, would constitute an infringement of his constitutional rights. 2. ___: ___. Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.
Appeal from the district court for Dodge County: ROBERT L. FLORY, Judge. Affirmed.
Alan Saltzman and Henry Grether, for appellant.
Clarence A. H. Meyer, Attorney General, and Harold Mosher, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is a post conviction proceeding wherein the defendant charges his personally selected attorney with incompetence due to a failure to call certain alleged witnesses. He further states the prosecuting attorney wrongfully suppressed evidence. He fails to specify what witnesses were not called, what they could have testified to, or what evidence was suppressed. We affirm the judgment denying the defendant relief.
In a post conviction proceeding a defendant must allege facts which, if proved, would constitute an infringement of his constitutional rights. See State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765.
In Harris v. Thomas, 341 F.2d 560 (6th Cir., 1965), it is stated: "The witnesses to whom the petitioner refers are not named and there are no allegations of facts about which they would testify, nor in what manner they would have been pertinent to petitioner's case.
"`Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.'"
The appeal is without merit and the judgment is affirmed.
AFFIRMED.