State v. Ross, 296 Neb. 923

Background

Michael L. Ross was convicted by a jury (2010) of multiple felonies, including violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm near a vehicle/person in certain metropolitan/primary-class jurisdictions).
Trial counsel did not move to quash the information or raise constitutional challenges to § 28-1212.04; the same counsel handled Ross’s direct appeal and did not raise the statute’s constitutionality.
Ross’s convictions and sentences were affirmed on direct appeal. He then filed a postconviction motion alleging § 28-1212.04 was facially and as-applied unconstitutional (special legislation and equal protection claims) and that trial/appellate counsel were ineffective for failing to preserve those challenges.
The district court denied the postconviction motion without an evidentiary hearing, finding direct constitutional challenges procedurally barred and relying on precedent that counsel’s failure to raise novel constitutional arguments was not deficient.
Ross appealed, arguing he was entitled to an evidentiary hearing on both the constitutional claims and his ineffective-assistance claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether direct constitutional challenges to § 28-1212.04 warranted an evidentiary hearing	Ross: statute is facially and as-applied unconstitutional (special legislation; equal protection; disparate effect on minorities)	State: challenges could have been raised at trial or on direct appeal and are therefore procedurally barred	Denied — direct constitutional claims are procedurally barred and no hearing required
Whether failure to move to quash preserved a Strickland claim	Ross: counsel was ineffective for not moving to quash and for failing to raise constitutional claims, causing prejudice	State: counsel’s failure to raise novel constitutional theories is not deficient performance	Denied — no sufficient factual allegations of deficient performance under Strickland
Whether counsel’s omission of a novel constitutional argument can establish deficient performance	Ross: Hall supports that failure to file motion to quash yields an ineffective-assistance claim	State: Hall addresses procedure but does not presume such claims valid; must still plead Strickland elements	Denied — counsel not deficient for failing to raise novel change-in-law arguments
Whether Ross was entitled to an evidentiary hearing on ineffective assistance	Ross: factual allegations would, if proved, show deficient performance and prejudice	State: record and precedent (Sanders) show counsel’s omission was not deficient; allegations are legal conclusions	Denied — allegations insufficient; no hearing required

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance standard: deficient performance and prejudice)
State v. Sanders, 289 Neb. 335 (2014) (holding counsel not deficient for failing to raise novel constitutional challenge to § 28-1212.04)
Hall v. State, 264 Neb. 151 (2002) (discusses procedural vehicles—motion to quash—for raising facial statutory challenges within criminal prosecution)
Engle v. Isaac, 456 U.S. 107 (1982) (Constitution guarantees competent counsel, not the raising of every conceivable claim)