State v. Ely, 945 N.W.2d 492

Nicholas Ely was tried (Oct. 2012) for an attempted robbery that resulted in a homicide; he was convicted of first-degree felony murder and use of a deadly weapon, sentenced to life plus a consecutive term, and his convictions were affirmed on direct appeal.
In August 2012 Ely filed motions seeking to dismiss his appointed counsel and to proceed pro se, and simultaneously moved for a continuance; he also requested appointed counsel in an advisory/standby role.
The district court denied the request to proceed pro se and denied the continuance; trial proceeded with counsel, and Ely did not testify.
After direct appeal, Ely sought postconviction relief alleging (inter alia) that trial counsel failed to advise him of his right to testify and that appellate counsel failed to raise on appeal that his Faretta (self-representation) rights were violated.
The Nebraska Supreme Court ordered an evidentiary hearing on those two claims and remanded. At the hearing the court heard depositions and other filings and then found counsel had advised Ely about his right to testify and that the Faretta claim lacked merit; the district court denied relief.
The Nebraska Supreme Court affirmed the denial of postconviction relief, agreeing Ely did not establish deficient performance or prejudice on either claim.

Issue	Ely's Argument	State/Counsel's Argument	Held
Whether trial counsel was ineffective for failing to advise Ely of his right to testify	Ely said he was not told he had the right to testify and therefore counsel was ineffective	Counsel testified she advised Ely about the right and the risks; Ely chose not to testify	Court held counsel did advise Ely; factual dispute resolved for the district court; no deficient performance found
Whether appellate counsel was ineffective for not arguing the trial court denied Ely his right to self-representation (Faretta)	Ely argued he clearly asked to proceed pro se and that denial is structural error, so appellate counsel should have raised it	State argued Ely’s request was equivocal (conditioned on a continuance and advisory counsel) so a Faretta claim would have failed on appeal	Court held Ely did not clearly and unequivocally assert his Faretta right (requests were tied to a continuance and hybrid representation); appellate counsel not ineffective because the issue lacked merit

Strickland v. Washington, 466 U.S. 668 (established two‑part ineffective assistance of counsel test)
Faretta v. California, 422 U.S. 806 (defendant has Sixth Amendment right to self‑representation, but request must be clear and unequivocal)
McKaskle v. Wiggins, 465 U.S. 168 (no constitutional right to hybrid or standby counsel)
State v. Ely, 287 Neb. 147 (direct appeal affirming convictions)
State v. Ely, 295 Neb. 607 (remand ordering evidentiary hearing on right‑to‑testify and Faretta claims)
State v. Iromuanya, 282 Neb. 798 (defendant’s right to testify; counsel’s duty to advise)