State v. Merheb
858 N.W.2d 226
Neb.2015Background
- Ramez Merheb pled guilty (Oct 6, 2008) to attempted possession of marijuana with intent to deliver and was sentenced to 1–2 years; no direct appeal was filed.
- Merheb previously filed a postconviction motion (May 22, 2009) alleging ineffective assistance of immigration counsel; that postconviction appeal was dismissed as moot after his release and parole expiration.
- U.S. Supreme Court decided Padilla v. Kentucky on Mar 31, 2010 (counsel must advise clients of deportation risk from pleas); Chaidez later held Padilla announced a new rule (not retroactive).
- Merheb moved to set aside his plea (Aug 16, 2012), arguing his immigration counsel gave erroneous advice about immigration consequences and that, but for that advice, he would have gone to trial or appealed a suppression ruling.
- The district court denied the motion: Merheb’s conviction was final before Padilla, so Padilla did not apply; Gonzalez limits post-judgment plea withdrawal and the motion was untimely; Merheb did not show entitlement to manifest injustice relief.
- On appeal, the Nebraska Supreme Court affirmed, concluding Padilla’s rule is not retroactive and Merheb’s conviction was final before Padilla, so he is not entitled to relief.
Issues
| Issue | Plaintiff's Argument (Merheb) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Merheb can set aside plea based on counsel's erroneous immigration advice | Immigration counsel was ineffective under Padilla; but for advice, Merheb would have gone to trial/appealed | Padilla does not apply because conviction was final before Padilla; postconviction avenue unavailable | Denied — Padilla inapplicable as a matter of law because conviction was final before Padilla |
| Retroactivity of Padilla claim | Padilla creates a Sixth Amendment right to be advised of deportation risk, warranting relief | Chaidez/Teague make Padilla a new rule that is not retroactive to convictions finalized before Padilla | Held not retroactive — Merheb cannot benefit from Padilla |
| Availability of manifest injustice common-law remedy (Gonzalez) | Merheb seeks relief under Gonzalez because postconviction could not vindicate Padilla claim | Gonzalez relief is narrow and requires a right that could not otherwise be vindicated; Padilla does not apply here | Gonzalez procedure unavailable because Padilla does not apply to convictions final before its date |
| Whether counsel’s advice about collateral immigration consequences is actionable under Strickland | Padilla treats deportation advice as within Strickland scope | Generally collateral advice is not covered by Strickland, but Padilla treated deportation as unique — however only prospectively per Chaidez | Court assumes Padilla’s rule applies to such advice but finds it not applicable retroactively to Merheb |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (counsel must advise about deportation risk from plea)
- Strickland v. Washington, 466 U.S. 668 (standards for ineffective assistance of counsel)
- Teague v. Lane, 489 U.S. 288 (test for retroactivity of new rules of criminal procedure)
- State v. Gonzalez, 285 Neb. 940 (narrow common-law manifest injustice plea withdrawal procedure)
- State v. Chiroy Osorio, 286 Neb. 384 (postconviction relief unavailable after prisoner released/parole expired)