State v. Ely, 295 Neb. 607

Background

Nicholas J. Ely was convicted by a jury of first-degree (felony) murder and use of a deadly weapon; sentenced to life plus a consecutive term. His direct appeal (by the same lawyer who represented him at trial) affirmed convictions.
Ely filed pro se postconviction and amended postconviction motions alleging 29 errors—primarily ineffective assistance of trial and appellate counsel, and several claimed trial-court errors. He also moved for appointment of counsel, to proceed in forma pauperis (IFP), and for judge recusal.
The district court denied relief without an evidentiary hearing, concluding most claims were procedurally barred as having been known or knowable on direct appeal; denied IFP, appointment of counsel, and recusal motions.
On appeal, the Nebraska Supreme Court reviewed procedural-bar and postconviction standards de novo and analyzed each ineffective-assistance claim under Strickland.
The Supreme Court held most district-court-error and many ineffective-assistance claims were either procedurally barred or forfeited by the record, or otherwise lacked factual support in the files and records.
The Court found two claims required an evidentiary hearing: (1) trial counsel arguably failed to advise Ely of his right to testify; and (2) appellate counsel arguably failed to raise on direct appeal the denial of Ely’s request to proceed pro se. It reversed as to those claims, and remanded with directions to hold an evidentiary hearing and to grant IFP and appointment of counsel; all other rulings were affirmed.

Issues

Issue	Ely's Argument	State's Argument	Held
Whether postconviction claims were procedurally barred	Many claimed trial-court errors were known/knowable and reviewable on direct appeal; nevertheless raised in postconviction	Claims of direct-reviewable errors are procedurally barred in postconviction	Court: Direct-appeal–knowable trial-court errors were procedurally barred; affirmed denial as to those claims
Whether ineffective assistance claims required an evidentiary hearing	Multiple IAC claims (trial and appellate); Ely argued these could not have been raised earlier because counsel at trial and on appeal were the same	State conceded some IAC claims not barred but argued most lacked merit or factual support in record	Court: Most IAC allegations failed on the record; but two claims (failure to advise right to testify; appellate counsel’s failure to argue denial of right to proceed pro se) warranted evidentiary hearings; remanded
Whether denial of leave to proceed in forma pauperis was proper	Ely argued he met poverty affidavit and IFP should have been granted especially because some claims warranted hearings	Court objected sua sponte but provided no written findings as required	Court: Denial was error because court failed to state reasons and two claims required hearings; directed that IFP be granted on remand
Whether appointment of counsel and recusal were required	Ely sought counsel for postconviction hearing and moved to recuse judge for alleged bias stemming from earlier denials	State argued no justiciable need for counsel on claims the court properly denied; recusal unwarranted absent objective evidence of bias	Court: Appointment of counsel required because two claims merit hearing; recusal denied—no objective showing of bias

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
State v. Ely, 287 Neb. 147 (Neb. 2014) (Ely’s direct-appeal decision)
State v. Robertson, 294 Neb. 29 (standard for postconviction review without evidentiary hearing)
State v. Sellers, 290 Neb. 18 (deficient-performance and prejudice framework under Nebraska law)
State v. Iromuanya, 282 Neb. 798 (prosecutorial-inference and counsel objection principles)
State v. Patton, 287 Neb. 899 (limits on confrontation/cross-examination scope explained)
State v. Jasper, 237 Neb. 754 (use of circumstantial evidence and jury instruction guidance)