State v. Ross
296 Neb. 923
| Neb. | 2017Background
- Michael L. Ross was convicted by a jury (including a count under Neb. Rev. Stat. § 28-1212.04) and his convictions were affirmed on direct appeal.
- § 28-1212.04 (at the time) made it a felony to unlawfully discharge a firearm in or near a motor vehicle toward persons or occupied structures within certain metropolitan/primary-class jurisdictions.
- Ross did not challenge the statute’s constitutionality at trial or on direct appeal; the same counsel represented him at both stages.
- In a postconviction motion Ross argued § 28-1212.04 was facially and as-applied unconstitutional (special legislation and equal protection, including racial disparate impact) and that trial/appellate counsel were ineffective for failing to preserve those challenges (failure to move to quash).
- The district court denied an evidentiary hearing, finding the direct constitutional claims procedurally barred and relying on precedent (State v. Sanders) to reject the ineffective-assistance claim; Ross appealed.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether direct facial challenge to § 28-1212.04 (special legislation) required an evidentiary hearing | § 28-1212.04 is special legislation (violates Neb. Const. art. III, § 18) and thus facially unconstitutional | Direct constitutional challenges could have been raised at trial or on direct appeal and are procedurally barred in postconviction proceedings | Procedurally barred; no evidentiary hearing required |
| Whether equal protection facial challenges (geographic/classification) required a hearing | Statute treats identical geographic areas differently; disparate geographic application violates equal protection | Same procedural-bar argument; claims are direct constitutional challenges that were not raised earlier | Procedurally barred; no hearing |
| Whether equal protection/as-applied challenge based on racial disparity required a hearing | Statute was disproportionately enforced against African‑Americans and minorities; as-applied relief warranted | As a direct constitutional/as-applied claim it could have been raised earlier and is procedurally barred; insufficient postconviction factual allegations | Procedurally barred; no hearing |
| Whether counsel was ineffective for failing to move to quash and preserve constitutional challenges | Counsel’s failure to investigate/raise/quash foreclosed relief; this deficient performance prejudiced Ross (would have led to reversal) | Under Strickland, counsel is not deficient for failing to raise novel legal theories; Sanders holds failing to challenge § 28-1212.04 was not deficient performance | Counsel not ineffective; allegations do not show deficient performance or prejudice; no evidentiary hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficient-performance and prejudice test for ineffective assistance of counsel)
- Hall v. State, 264 Neb. 151 (procedural guidance on raising facial constitutional challenges in criminal prosecutions)
- State v. Sanders, 289 Neb. 335 (holding counsel not deficient for failing to raise a novel constitutional challenge to § 28-1212.04)
- Engle v. Isaac, 456 U.S. 107 (noting Constitution guarantees a competent attorney but not recognition of every conceivable constitutional claim)