State v. Mamer, 853 N.W.2d 517

Background

Mamer, a noncitizen, pled guilty to attempted first degree sexual assault in Nebraska on July 20, 2011; court advised him that conviction may have immigration consequences and he acknowledged understanding. He was sentenced to 12–18 months and was incarcerated about three weeks, released October 7, 2011.
Padilla v. Kentucky (U.S. Supreme Court, March 31, 2010) had already established defense counsel’s obligation to advise about deportation risks before Mamer’s plea.
Mamer, unrepresented while incarcerated, later received a Notice to Appear from DHS (dated Oct. 7, 2011) initiating removal proceedings.
On February 9, 2012, Mamer filed a motion under the common-law “manifest injustice” procedure (State v. Gonzalez) to withdraw his plea, alleging Padilla-based ineffective assistance of counsel for failure to advise of presumptively mandatory deportation under 8 U.S.C. § 1227(a)(2)(A)(iii).
The district court treated the State’s motion as a § 6-1112(b)(6) dismissal for failure to state a claim, concluding Mamer could have sought relief under the Nebraska Postconviction Act while in custody and therefore was not limited to the Gonzalez common-law remedy.
Mamer appealed; the Nebraska Supreme Court reviewed de novo and affirmed dismissal, holding the factual predicate (existence of deportation law) was discoverable while incarcerated and thus postconviction relief was available to him.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Gonzalez manifest-injustice claim is available when Mamer could have used postconviction relief	Mamer: Padilla-based ineffective assistance claim could not be vindicated under postconviction law because he did not learn of DHS removal proceedings until after release	State: Postconviction relief was available while Mamer was in custody; he failed to exercise due diligence to discover the claim	Held: Dismissal affirmed — Gonzalez relief not available because the claim could have been vindicated via postconviction proceedings
Whether Mamer stated an ineffective-assistance claim under Padilla	Mamer: Counsel failed to advise of presumptively mandatory deportation, causing prejudice to plea decision	State: Mamer did not timely pursue postconviction remedies and could have discovered the factual predicate earlier	Held: Allegations plausibly pleaded prejudice, but manifest-injustice threshold requires showing no other available remedy; Mamer failed that element
When the factual predicate accrued for postconviction purposes	Mamer: Factual predicate includes commencement of removal proceedings (which he learned of only after release)	State: Factual predicate is the existence of the deportation law and counsel’s omission, discoverable with due diligence while incarcerated	Held: The factual predicate is the objective existence of the deportation law and counsel’s conduct; those could have been discovered while incarcerated
Whether dismissal without evidentiary hearing violated due process	Mamer: Dismissal deprived him of opportunity to vindicate Padilla claim	State: He had available postconviction forum but failed to use it	Held: No due process violation; opportunity to pursue postconviction relief satisfied due process requirements

Key Cases Cited

State v. Gonzalez, 285 Neb. 940 (Neb. 2013) (defines narrow common-law "manifest injustice" remedy when postconviction relief is unavailable)
Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen clients of deportation risks of guilty pleas)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001) (factual-predicate accrual requires discovery of objective facts showing deficient performance and prejudice)
Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001) (accrual focuses on when objective facts could reasonably be discovered, not when legal significance is known)
State v. Yuma, 286 Neb. 244 (Neb. 2013) (custody timing can affect postconviction availability)