Buttercase v. Davis -- supplemental opinion, 985 N.W.2d 588

Joseph J. Buttercase pled guilty to federal obscenity charges (producing and transporting obscene materials) and later sued his former lawyer, James M. Davis, for legal malpractice, alleging Davis failed to investigate/discover exculpatory evidence.
Davis moved for summary judgment in the malpractice suit; Buttercase opposed, relying in part on purported evidence (Exhibit 14) and arguments of actual innocence and constitutional infirmity under Miller.
The Nebraska Supreme Court issued an opinion in Buttercase v. Davis, then Buttercase filed a motion for rehearing addressing several legal points; the Court overruled the rehearing but modified portions of its prior opinion.
On rehearing the Court clarified that a malpractice plaintiff who pleaded guilty cannot avoid demonstrating actual innocence merely by asserting he would have rejected the plea and insisted on trial; Nebraska authority does not relieve malpractice plaintiffs of showing actual innocence in that circumstance.
The Court also rejected Buttercase’s separate arguments that (1) the materials were not obscene under Miller v. California and (2) the federal obscenity statute could not apply because he only possessed/viewed private marital images, finding these contentions unavailing.
The Court noted Exhibit 14 did not purport to establish actual innocence, supporting the conclusion that Buttercase’s opposition to Davis’ summary judgment failed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a malpractice plaintiff who pled guilty need only show he would have gone to trial (not actual innocence)	Buttercase: but for counsel’s failures, he would have rejected the plea and insisted on trial	Davis: malpractice plaintiff must show actual innocence to defeat summary judgment after a guilty plea	Court: No Nebraska authority relieves malpractice plaintiffs of proving actual innocence; Buttercase failed to show actual innocence
Whether materials are non-obscene under Miller v. California	Buttercase: videos/images are not obscene under Miller	Davis: materials met obscenity standards / plaintiff’s claim unavailing	Court: Miller-based challenge unavailing; Buttercase not shown actually innocent
Whether federal obscenity statute can be applied given private possession/viewing	Buttercase: statute cannot constitutionally apply because he only possessed/viewed private intimate images	Davis: he pled to producing/transporting for distribution; statutory application stands	Court: argument rejected; plea admitted production/transporting for distribution
Whether Exhibit 14 established actual innocence or defeated summary judgment	Buttercase: Exhibit 14 supports actual innocence	Davis: Exhibit 14 does not address actual innocence	Court: Exhibit 14 does not purport to show actual innocence; opposition to summary judgment failed

Miller v. California, 413 U.S. 15 (1973) (Supreme Court test for obscenity)
State v. Thomas, 311 Neb. 989 (2022) (ineffective-assistance plea-withdrawal standard: show you would not have pled)
State v. Privett, 303 Neb. 404 (2019) (same principle regarding plea-based ineffective-assistance claims)