State v. Glass, 298 Neb. 598

Background

In 1999 Greg A. Glass was convicted by a jury of second‑degree murder and use of a firearm in the 1998 killing of his former employer, Adolph Fentress, Sr.; Glass testified he shot in self‑defense after an altercation.
At trial the jury received a "step instruction" that required it to find Glass not guilty of second‑degree murder before considering sudden‑quarrel manslaughter.
Glass filed a pro se postconviction motion in 2012, later amended, arguing (1) the jury instructions violated due process under State v. Ronald Smith and related Nebraska decisions, (2) trial counsel was ineffective for not calling a character witness, not hiring a ballistics expert, and failing to convey an alleged plea offer, and (3) appellate counsel was ineffective for not raising those claims on direct appeal.
The district court held an evidentiary hearing in 2016, found trial counsel credible, rejected the existence of a plea offer, and denied postconviction relief; Glass appealed.
The Nebraska Supreme Court affirmed, holding (a) Ronald Smith announced a procedural/state statutory rule not retroactive on collateral review, (b) Glass was not deprived of due process because evidence supported his second‑degree murder conviction, and (c) trial and appellate counsel were not ineffective under Strickland.

Issues

Issue	Plaintiff's Argument (Glass)	Defendant's Argument (State)	Held
Retroactivity of State v. Ronald Smith	Ronald Smith should apply retroactively on collateral review and require reversal because jury instruction prevented consideration of manslaughter	Ronald Smith announced a procedural/statutory clarification, not a new substantive constitutional rule, so it does not apply to cases final before Ronald Smith	Ronald Smith is procedural/statutory; not retroactive on collateral review; no relief
Due process/plain error from step instruction	The step instruction and manslaughter definition deprived Glass of due process and an impartial jury	Even if the manslaughter instruction is now deemed faulty, the State proved all elements of second‑degree murder beyond a reasonable doubt; any error did not violate due process	No due process violation; conviction supported by sufficient evidence
Ineffective assistance — failure to call character witness	Counsel failed to call witness showing victim's violent reputation, which would have supported self‑defense/mitigation	Proposed testimony would have been cumulative and not outcome‑determinative; counsel credibly testified he was not told of such witnesses	No deficient performance or prejudice; claim denied
Ineffective assistance — ballistics expert & plea offer; appellate counsel	Counsel should have retained a ballistics/expert and should have relayed a plea to manslaughter; appellate counsel should have raised these errors	Trial counsel reasonably declined an expert (no persuasive showing differing expert would alter outcome); trial counsel credibly denied any plea offer existed; appellate counsel not ineffective if trial counsel not ineffective	No Strickland prejudice; appellate counsel claim fails as layered claim requires trial‑counsel deficiency

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test)
Teague v. Lane, 489 U.S. 288 (retroactivity framework for new rules on collateral review)
Schriro v. Summerlin, 542 U.S. 348 (distinguishes substantive vs. procedural rules for retroactivity)
In re Winship, 397 U.S. 358 (Due Process requires proof beyond a reasonable doubt of every element)
Estelle v. McGuire, 502 U.S. 62 (state‑law jury instruction error warrants habeas relief only if it infected the trial with constitutional error)
State v. Smith, 282 Neb. 720 (Neb. 2011) (Ronald Smith clarifying manslaughter/second‑degree murder distinctions)
State v. Trice, 286 Neb. 183 (Neb. 2013) (application of Ronald Smith on direct review)
State v. Burlison, 255 Neb. 190 (Neb. 1998) (prior clarification that malice was not an element of second‑degree murder)