State v. Ross
296 Neb. 923
Neb.2017Background
- Michael L. Ross was convicted by a jury of, among other counts, violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm in proximity to a vehicle within certain municipal boundaries).
- Ross was represented at trial and on direct appeal by the same attorney; counsel did not challenge the constitutionality of § 28-1212.04 or move to quash the information.
- Ross’s convictions and sentences were affirmed on direct appeal; he then filed a motion for postconviction relief asserting (a) § 28-1212.04 is facially and as-applied unconstitutional (special legislation and equal protection theories) and (b) trial and appellate counsel were ineffective for failing to preserve those constitutional challenges.
- The district court denied the postconviction motion without an evidentiary hearing, ruling the direct constitutional claims were procedurally barred and relying on precedent that counsel’s failure to raise novel constitutional theories is not deficient performance.
- Ross appealed; the Nebraska Supreme Court reviewed de novo whether the motion alleged sufficient facts to warrant an evidentiary hearing and whether claims were procedurally barred.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether evidentiary hearing required for facial challenge under Neb. Const. art. III, § 18 (special legislation) | Ross: § 28-1212.04 is special legislation criminalizing conduct only in certain geographic areas; needs hearing | State: Direct constitutional claims could have been raised at trial or on direct appeal; thus procedurally barred | Held: Procedurally barred; no hearing required |
| Whether evidentiary hearing required for equal protection facial challenges (geographic disparity; racial disproportionality) | Ross: Statute treats identical areas differently and was applied disproportionately to African-Americans; needs hearing | State: These direct challenges were available earlier and are procedurally barred | Held: Procedurally barred; no hearing required |
| Whether § 28-1212.04 is unconstitutional as applied to Ross | Ross: Application of the statute to him violated constitutional rights; needs hearing | State: As-applied challenge could have been raised earlier and is subject to procedural bar | Held: Procedurally barred; no hearing required |
| Whether counsel was ineffective for not moving to quash or preserving constitutional challenges | Ross: Counsel’s failure to investigate and file motion to quash was deficient and prejudiced him | State: Failure to raise a novel constitutional challenge is not deficient; counsel need not allege every conceivable claim | Held: Not ineffective; allegations do not show deficient performance under Strickland; no hearing required |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part standard for ineffective assistance: deficient performance and prejudice)
- State v. Sanders, 289 Neb. 335 (2014) (trial counsel not ineffective for failing to raise novel constitutional challenge to § 28-1212.04)
- Hall v. State, 264 Neb. 151 (2002) (procedures for raising facial constitutional challenges in criminal prosecutions; motion to quash/demurrer appropriate)
- Engle v. Isaac, 456 U.S. 107 (1982) (constitutional guarantee is for competent counsel and a fair trial, not that counsel will raise every conceivable claim)