State v. Ross, 296 Neb. 923

Michael L. Ross was convicted by a jury of multiple felonies, including violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm from or near a vehicle in proximity to persons or occupied structures).
Ross’s trial counsel did not move to quash the information nor raise constitutional challenges to § 28-1212.04; the same counsel represented him on direct appeal and did not raise statutory-constitutionality issues.
Ross’s convictions and sentences were affirmed on direct appeal in a prior State v. Ross decision.
Ross filed a postconviction motion 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 these challenges.
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 for failure to raise novel constitutional arguments.
The Nebraska Supreme Court affirmed, holding the constitutional claims were procedurally barred and Ross failed to allege deficient performance under Strickland.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-1212.04 is facially unconstitutional as special legislation (Neb. Const. art. III, § 18)	Ross: statute criminalizes conduct only in certain geographic areas, violating ban on special legislation	State: claim could have been raised at trial or on direct appeal; postconviction is procedurally barred	Procedurally barred; postconviction relief denied
Whether § 28-1212.04 violates equal protection (facial - disparate geographic treatment)	Ross: statute treats identical geographic areas differently	State: issue was available at trial/direct appeal; not for first-time review on postconviction	Procedurally barred; postconviction relief denied
Whether § 28-1212.04 violates equal protection (disparate impact on African-Americans)	Ross: enforcement disproportionately affected African-Americans and minorities	State: claim could have been presented earlier; motion alleges conclusions not facts sufficient for hearing	Procedurally barred; no evidentiary hearing required
Whether counsel was ineffective for failing to move to quash / raise constitutional challenges	Ross: counsel’s omission was deficient and prejudicial; would have preserved issues or succeeded	State: failure to assert novel constitutional challenges is not deficient performance under Strickland; Sanders controls	No deficient performance alleged; ineffective-assistance claim fails; no hearing required

Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
State v. Sanders, 289 Neb. 335 (trial counsel not ineffective for failing to raise novel constitutional challenge to § 28-1212.04)
Hall v. State, 264 Neb. 151 (procedural routes for raising facial constitutional claims in criminal prosecutions)
Engle v. Isaac, 456 U.S. 107 (Constitution guarantees competent counsel but not the raising of every conceivable claim)
State v. Ross, 283 Neb. 742 (direct-appeal decision affirming convictions)