State v. Jerke, 923 N.W.2d 78

Background

Jedo J. Jerke, a noncitizen political refugee from South Sudan, pled no contest in 2012 to second degree assault and was sentenced to 4–6 years' imprisonment.
Before accepting the plea the court gave the § 29-1819.02 statutory immigration advisement warning noncitizens that conviction "may have the consequences of removal."
Trial counsel knew Jerke's immigration status but did not advise him that the assault exposed him to deportation as an aggravated felony; counsel’s advice (or lack thereof) formed the basis of a Padilla ineffective-assistance claim.
After release, immigration authorities initiated deportation in 2017; Jerke then moved under the common-law procedure recognized in State v. Gonzalez to vacate the conviction and withdraw his plea, alleging Padilla-based ineffective assistance.
The district court granted relief; the State appealed arguing Jerke could have sought relief earlier under the Nebraska Postconviction Act (and thus Gonzalez was unavailable).
The Nebraska Supreme Court reversed, holding Gonzalez relief requires the defendant to plead and prove that postconviction relief was not, and never was, available; here the Postconviction Act was available.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gonzalez common‑law procedure applies	Jerke: Gonzalez applies because he has a constitutional Padilla claim and postconviction relief was not available to him	State: Gonzalez is inapplicable because the Nebraska Postconviction Act could have been used while Jerke was in custody	Held: Gonzalez is not available; unavailability of the Postconviction Act is an element the defendant must plead and prove, and it was available to Jerke
When the factual predicate for a Padilla claim accrues for postconviction limitations	Jerke: It accrues only when the defendant learns actual deportation consequences	State: It accrues when defendant had inquiry notice and could, with diligence, discover counsel’s deficient advice and the applicable deportation law	Held: Accrual occurs when, by reasonable diligence, the defendant could discover the objective facts (what counsel said/did and the controlling deportation law); Jerke had inquiry notice from the advisement and immigration hold
Whether the State waived argument that postconviction relief was available by not moving to dismiss	Jerke: The State waived by not moving to dismiss on that ground	State: N/A (argued on appeal)	Held: No waiver — availability of the Postconviction Act is not an affirmative defense but a material element the defendant must plead and prove
Whether trial counsel was ineffective under Padilla such that relief should have been granted	Jerke: Counsel was ineffective for failing to advise deportation consequences; relief warranted	State: Not reached on merits because procedural bar applies	Held: Court reversed based on procedural law (Gonzalez inapplicable); efficacy of counsel not resolved as basis for relief here

Key Cases Cited

State v. Gonzalez, 285 Neb. 940 (2013) (recognizes limited common‑law procedure to withdraw plea after conviction only where postconviction relief never was available and a constitutional right is at issue)
State v. Mamer, 289 Neb. 92 (2014) (defines accrual of factual predicate for Padilla claims as when defendant could have discovered objective facts through due diligence)
Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment ineffective assistance requires advising noncitizen defendants of deportation risks of pleas)
Clarke v. U.S., 703 F.3d 1098 (7th Cir. 2013) (applies inquiry‑notice principle to accrual of facts for postconviction Padilla claims)
State v. Smith, 288 Neb. 797 (2014) (postconviction relief is the sole statutory remedy to collaterally attack final convictions when it applies)