State v. Assad, 938 N.W.2d 297

Police executed valid warrants at Assad’s motel room after a reported scream; officers found Assad’s wife injured, alleged narcotics, a knife and a rifle, and evidence of prior felony conviction.
Assad moved pretrial to suppress evidence from the searches; district court denied the motions (also relied on Leon good-faith).
At trial, Assad’s counsel did not renew suppression objections; a jury convicted Assad on multiple charges and he received an enhanced long sentence.
Appellate counsel filed a 40‑page brief alleging suppression errors, but those claims were not preserved; the State moved for summary affirmance.
Appellate counsel unsuccessfully sought leave to amend and to supplement the brief to assert that trial counsel was ineffective for failing to preserve suppression issues; the Court of Appeals summarily affirmed.
On postconviction review Assad claimed appellate counsel was ineffective and urged a presumption of prejudice entitling him to a new direct appeal; the district court and Court of Appeals rejected that theory and denied relief; the Nebraska Supreme Court granted further review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prejudice is presumed when appellate counsel raises only unpreserved issues and the appeal is summarily affirmed	Assad: prejudice should be presumed because he effectively received no direct appeal and thus deserves a new appeal	State: Strickland governs; prejudice is not presumed because Assad was not denied an appeal outright and appellate counsel did file a brief	Prejudice is not presumed; Strickland applies
Whether ineffective‑assistance‑on-appeal claims that consist of raising the wrong issues require a showing of prejudice	Assad: raising only unpreserved issues is equivalent to denial of appeal so no prejudice showing required	State: U.S. Supreme Court precedent treats raising wrong issues as ordinary ineffective assistance requiring prejudice proof	Held that raising wrong issues is not the "denial of counsel" exception; defendant must prove prejudice under Strickland
Whether Assad demonstrated prejudice sufficient to obtain postconviction relief	Assad: relied on presumption of prejudice, did not attempt to prove actual prejudice	State: Assad did not show a reasonable probability of a different appellate result if preserved issues had been presented	Assad failed to demonstrate prejudice; postconviction relief properly denied

Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test: deficient performance and prejudice)
United States v. Cronic, 466 U.S. 648 (presumption of prejudice where counsel is effectively denied or fails to meaningfully test prosecution)
Penson v. Ohio, 488 U.S. 75 (presumption of prejudice when accused is deprived of counsel on appeal)
Roe v. Flores‑Ortega, 528 U.S. 470 (presumed prejudice where counsel fails to file a requested notice of appeal)
Garza v. Idaho, 139 S. Ct. 738 (remedy of a new opportunity to appeal when counsel disregards a defendant’s request to appeal)
Smith v. Robbins, 528 U.S. 259 (distinguishes denial of counsel on appeal from mere ineffective appellate advocacy; prejudice must be shown for the latter)
Bell v. Cone, 535 U.S. 685 (narrowly limits presumed‑prejudice exceptions; failure must be complete)
Florida v. Nixon, 543 U.S. 175 (presumption of prejudice not warranted for counsel’s partial or selective failures)
Hendricks v. Lock, 238 F.3d 985 (8th Cir.) (discusses presumption where appellate brief provided no meaningful review)
Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016) (holds presumption where only unpreserved claims were raised on appeal; Court here declined to follow)
State v. Trotter, 259 Neb. 212 (Neb. 2000) (Nebraska precedent on presumed prejudice where appeal was denied)
State v. Sundquist, 301 Neb. 1006 (Neb. 2019) (discusses consequences when counsel fails to file required appellate documents)