State v. Martinez, A-16-606

Background

In 1996 Martinez was convicted by jury of first-degree sexual assault, use of a deadly weapon, terroristic threats, and witness tampering; he was sentenced in 2012 to consecutive terms and given credit for time served.
Martinez appealed; the Nebraska Court of Appeals rejected sufficiency and some ineffective-assistance claims on direct appeal.
Martinez filed a pro se postconviction motion in 2014 and later an amended motion through counsel raising trial-court errors, multiple ineffective-assistance claims (trial and appellate counsel), and sentencing challenges.
The district court dismissed the amended postconviction motion without an evidentiary hearing, finding Martinez failed to allege facts establishing prejudice under Strickland.
On appeal the Court of Appeals reviewed de novo and (1) treated many claims as procedurally barred or meritless, (2) found the sentencing imposition of lifetime community supervision violated ex post facto protections, and (3) vacated only the lifetime-supervision portion of the sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal without evidentiary hearing was erroneous based on trial-court errors (e.g., 911 tape reuse, binding over, jury instruction No. 5)	Martinez argued these trial-court errors warranted an evidentiary hearing	State argued these issues were known at trial and waived on postconviction because they could have been raised on direct appeal	Court: Waived — no hearing required; claims known at trial and not preserved were forfeited
Whether trial counsel was ineffective for not objecting to marital-status evidence and not moving for a mistrial after prior-acts questions	Martinez alleged counsel’s failures prejudiced his defense	State argued issues could have been raised on direct appeal (different appellate counsel) and were procedurally barred; objections were made and curative instructions given	Court: Procedurally barred and, on merits, no prejudice shown — counsel’s failures did not undermine confidence in outcome
Whether appellate counsel was ineffective for failing to (a) raise trial-counsel claims on appeal and (b) file or advise re: petition for further review (PFR)	Martinez claimed appellate counsel should have raised those issues and should have filed or advised about a PFR	State argued (a) appellate counsel’s omission fails for lack of prejudice if trial counsel was not ineffective; (b) there is no constitutional right to counsel for discretionary PFRs so no ineffective-assistance claim	Court: No prejudice for failing to raise trial-counsel claims; no right to counsel for PFR — no relief
Whether lifetime community supervision in Martinez’s sentence violates ex post facto clauses	Martinez argued lifetime supervision was improper because law enacted after offense	State framed issue as ex post facto problem	Court: Agreed with Martinez on ex post facto grounds — vacated and struck lifetime community supervision; remainder of sentence affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
State v. Nolan, 292 Neb. 118 (postconviction standard; de novo review where records and files show entitlement to no relief)
State v. Huston, 291 Neb. 708 (when a postconviction motion warrants an evidentiary hearing)
State v. Armendariz, 289 Neb. 896 (amended pleadings supersede originals)
State v. Boche, 294 Neb. 912 (ex post facto and sentencing principles; appellate-preservation issues)
State v. Simnick, 279 Neb. 499 (lifetime community supervision is punishment and cannot be applied retroactively)
State v. Crawford, 291 Neb. 362 (no constitutional right to counsel for discretionary further review)
State v. Robertson, 294 Neb. 29 (failure to petition for further review cannot be the basis for postconviction relief)