State v. Ross
296 Neb. 923
| Neb. | 2017Background
- Michael L. Ross was convicted after a 2010 jury trial of, among other counts, violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm near or from a vehicle); convictions affirmed on direct appeal.
- § 28-1212.04 criminalizes knowingly or recklessly discharging a firearm while in or near a motor vehicle in specified incorporated/metro areas; it is a Class IC felony.
- Ross filed a postconviction motion claiming (1) § 28-1212.04 is facially and as-applied unconstitutional under the Nebraska Constitution (special legislation) and Equal Protection (including racial disparities), and (2) trial and appellate counsel were ineffective for failing to raise/ preserve those constitutional challenges (no motion to quash was filed).
- The district court denied postconviction relief without an evidentiary hearing, finding the direct constitutional challenges procedurally barred and relying on State v. Sanders to hold counsel was not ineffective for failing to raise novel constitutional arguments.
- Ross appealed, arguing the court should have granted an evidentiary hearing on his constitutional claims and on his ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Ross’s direct facial and as-applied constitutional challenges to § 28-1212.04 may proceed in postconviction | § 28-1212.04 is special legislation and violates Equal Protection; claims warrant an evidentiary hearing | Direct constitutional claims were or could have been raised at trial/direct appeal and thus are procedurally barred | Procedurally barred — postconviction cannot relitigate issues that could've been raised at trial or on direct appeal |
| Whether Ross alleged sufficient facts to require an evidentiary hearing on as-applied Equal Protection / racial-disparity claim | Alleged disparate enforcement and discriminatory effect against African-Americans; factual development necessary | Record and motion do not allege facts sufficient to overcome procedural bar or require evidentiary development | No hearing — claims procedurally barred and motion lacks sufficient factual allegations |
| Whether counsel (trial and appellate) were ineffective for failing to move to quash or raise constitutional challenges to § 28-1212.04 | Counsel’s failure to challenge statute was deficient and prejudiced Ross; would have preserved claim or succeeded | Failure to raise a novel constitutional theory is not deficient performance; counsel not required to assert every novel claim | No deficient performance shown under Strickland; no evidentiary hearing required |
| Whether Hall v. State creates a presumption of ineffective assistance when counsel fails to move to quash on constitutional grounds | Hall allegedly establishes that failure to move to quash creates a viable postconviction ineffective-assistance claim | Hall merely describes proper procedural mechanisms; it does not presume the merits of such claims — Strickland still governs | Hall does not create a presumption; Strickland analysis required and Ross failed to plead deficient performance |
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 (holding counsel is not deficient for failing to raise novel constitutional challenges to § 28-1212.04)
- Hall v. State, 264 Neb. 151 (describes proper procedure for raising facial constitutional challenges via motion to quash/demurrer; does not presume claim validity)
- Engle v. Isaac, 456 U.S. 107 (constitutional guarantee is fair trial and competent counsel, not raising every conceivable claim)
- State v. Nolan, 292 Neb. 118 (postconviction standards: when evidentiary hearing required and limits on relief)