State v. Ammons, 990 N.W.2d 897

Background

Ammons pleaded guilty to two counts of possession of a deadly weapon by a prohibited person and was sentenced to consecutive terms of 6–8 years; he did not file a timely direct appeal.
Less than a year later Ammons filed a verified postconviction motion alleging ineffective assistance of counsel, repeatedly alleging he had asked trial counsel to file an appeal but counsel failed to do so.
The district court held an evidentiary hearing, credited trial counsel’s testimony that he would have filed an appeal if asked, found Ammons’ testimony less credible, and denied relief (finding Ammons did not direct counsel to appeal).
The Nebraska Court of Appeals agreed the district court was correct that Ammons did not instruct counsel to appeal, but nonetheless reversed and ordered a new direct appeal based on a separate theory: that counsel was ineffective for failing to consult with Ammons about an appeal under Flores-Ortega.
The Nebraska Supreme Court granted further review and held the Court of Appeals erred: Ammons’ verified motion did not plead a failure-to-consult claim, and appellate courts may not grant relief on a theory not raised in the verified motion in postconviction proceedings. The Supreme Court reversed the Court of Appeals and directed that the district court’s denial be affirmed.

Issues

Issue	Ammons' Argument	State's Argument	Held
Whether an appellate court may grant postconviction relief on a failure-to-consult (Flores-Ortega) theory not pleaded in the verified motion	Court of Appeals should grant relief because counsel failed to consult, so Ammons reasonably would have appealed	Relief may not be granted on a theory not raised in the verified motion; new theories cannot be raised on appeal	Court: No — appellate court erred; unpled failure-to-consult theory was not before the district court and cannot be raised for the first time on appeal; reverse Court of Appeals and affirm district court
Whether trial counsel was ineffective for disregarding an express request to file a direct appeal	Ammons alleged he repeatedly requested counsel to file an appeal and counsel refused	Trial counsel testified he would have filed an appeal if asked; district court found Ammons did not ask and credited counsel	Court: District court’s factual finding that Ammons did not direct counsel to appeal stands; no deficient performance on that ground was shown
Whether Flores-Ortega required the district court to consider a failure-to-consult claim sua sponte despite no such allegation in the verified motion	Flores-Ortega’s consultation duty is relevant and district court should have considered it	Flores-Ortega does not obligate courts to address unpled failure-to-consult claims; such claims must be pleaded with supporting facts	Court: Flores-Ortega does not compel addressing a theory not pleaded; failure-to-consult is a distinct claim that must be alleged and developed at the trial level

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective assistance test)
Roe v. Flores-Ortega, 528 U.S. 470 (defense counsel’s duty to consult about appeal when there is reason to think defendant would want to appeal)
State v. Beehn, 303 Neb. 172 (standard of review for mixed questions in ineffective assistance claims)
State v. Munoz, 309 Neb. 285 (cannot raise postconviction claims for first time on appeal)
State v. Lotter, 311 Neb. 878 (postconviction relief is narrow and remedial for constitutional violations)
Elbert v. Young, 312 Neb. 58 (appellate courts generally cannot reverse on theories not presented below)
U.S. v. Roe, 913 F.3d 1285 (10th Cir.) (failure-to-consult is a separate claim that does not relate back to an express-instruction claim)
U.S. v. Alaniz, 5 F.4th 632 (5th Cir.) (same point regarding separate nature of failure-to-consult claim)