State v. Ross, 899 N.W.2d 209

Michael L. Ross was convicted by a jury (including a conviction under Neb. Rev. Stat. § 28-1212.04) and his convictions were affirmed on direct appeal.
Section 28-1212.04 criminalizes unlawfully discharging a firearm from or near a motor vehicle in certain geographic jurisdictions; it was a Class IC felony.
Trial counsel did not move to quash the information or raise constitutional challenges to § 28-1212.04; the same attorney handled Ross’s direct appeal and likewise raised no constitutional challenge.
Ross moved for postconviction relief alleging § 28-1212.04 is facially and as-applied unconstitutional (special legislation and equal protection theories) and that trial and appellate counsel were ineffective for failing to preserve those challenges.
The district court denied the motion without an evidentiary hearing as the direct constitutional claims were procedurally barred and, relying on precedent, found counsel not ineffective for failing to raise a novel constitutional challenge.
The Nebraska Supreme Court affirmed, holding the direct challenges were procedurally barred and that the ineffective-assistance claim failed because counsel’s omission did not amount to deficient performance under Strickland.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-1212.04 is facially unlawful special legislation under Neb. Const. art. III, § 18	Ross: statute criminalizes conduct only in certain geographic areas, violating prohibition on special legislation	State: claim could have been raised at trial or on direct appeal and is procedurally barred	Procedurally barred; postconviction relief denied
Whether § 28-1212.04 violates equal protection (facial)	Ross: statute treats identical areas differently and is disproportionately applied to African-Americans	State: same procedural-bar defense; no preserved record showing constitutional violation	Procedurally barred; no evidentiary hearing
Whether § 28-1212.04 is unconstitutional as applied to Ross	Ross: statute was unconstitutional in the specific circumstances of his prosecution	State: was not raised at trial/appeal and is therefore procedurally barred	Procedurally barred; denied
Whether counsel was ineffective for failing to move to quash and preserve constitutional challenges	Ross: counsel’s failure was deficient and prejudiced his case; would have preserved issues for appeal or resulted in relief	State: failure to raise a novel constitutional theory is not deficient; Sanders controls	Held for State — counsel’s omission was not deficient under Strickland; no evidentiary hearing granted

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance test of deficient performance and prejudice)
Hall v. State, 264 Neb. 151 (recognizes proper procedure to raise facial constitutional challenges in criminal prosecutions)
State v. Sanders, 289 Neb. 335 (holds counsel not ineffective for failing to raise novel constitutional challenge to § 28-1212.04)
Engle v. Isaac, 456 U.S. 107 (constitutional guarantee is competent counsel, not every conceivable claim)