State v. Ross, 296 Neb. 923

Michael L. Ross was convicted after a 2010 jury trial of multiple felonies, including violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm in proximity to a motor vehicle), and his convictions were affirmed on direct appeal.
Trial and appellate counsel were the same attorney; counsel did not challenge the constitutionality of § 28-1212.04 at trial or on appeal.
Ross filed a postconviction motion alleging (1) § 28-1212.04 is facially and as-applied unconstitutional (special legislation and equal protection grounds), and (2) trial and appellate counsel were ineffective for failing to raise those constitutional challenges (failure to move to quash/preserve).
The district court denied the postconviction motion without an evidentiary hearing, finding direct constitutional claims procedurally barred and relying on State v. Sanders to reject ineffective-assistance claims based on the failure to raise a novel constitutional challenge.
Ross appealed, arguing the court erred by denying an evidentiary hearing on his constitutional and ineffective-assistance allegations.

Issue	Plaintiff's Argument (Ross)	Defendant's Argument (State)	Held
Whether § 28-1212.04 is facially invalid as special legislation under Neb. Const. art. III, § 18	§ 28-1212.04 criminalizes conduct in some geographic areas but not others, violating the special-legislation prohibition	Claim is procedurally barred because it could have been raised at trial or on direct appeal	Procedurally barred; district court correctly denied hearing
Whether § 28-1212.04 violates equal protection on its face for treating identical geographic areas differently	Statute is applied differently across areas and disproportionately against minorities (esp. African-Americans)	Procedural bar; no basis for postconviction hearing on direct challenge	Procedurally barred; no hearing required
Whether § 28-1212.04 is unconstitutional as applied to Ross	Ross’s facts show unlawful application of the statute to him	Claim could have been raised earlier and is barred in postconviction context	Procedurally barred; denied
Whether trial/appellate counsel were ineffective for failing to raise/preserve constitutional challenges to § 28-1212.04	Counsel’s failure to move to quash/preserve novel constitutional issues was deficient and prejudiced Ross	Counsel’s omission was not deficient because failing to raise novel legal theories is not ineffective; no prejudice shown	Denied — counsel not ineffective; no evidentiary hearing required

State v. Sanders, 289 Neb. 335 (2014) (holding counsel not ineffective for failing to raise novel constitutional challenge to § 28-1212.04)
Hall v. State, 264 Neb. 151 (2002) (procedural avenues within criminal prosecution—motions to quash—as proper method to raise facial constitutional challenges)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
Engle v. Isaac, 456 U.S. 107 (1982) (Constitution guarantees competent counsel but not every conceivable constitutional claim)