State v. Ross
296 Neb. 923
Neb.2017Background
- Michael L. Ross was convicted after a 2010 jury trial of multiple felonies including violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm near a motor vehicle); convictions were affirmed on direct appeal.
- § 28-1212.04 criminalizes unlawfully discharging a firearm in or near certain motor vehicles within specified metropolitan/primary class jurisdictions; it is a Class IC felony.
- Ross filed a postconviction motion alleging (1) § 28-1212.04 is facially and as-applied unconstitutional (special legislation and equal protection), and (2) trial and appellate counsel were ineffective for failing to challenge the statute or move to quash.
- The district court denied relief without an evidentiary hearing, holding the direct constitutional challenges were procedurally barred and that counsel was not ineffective under existing precedent.
- Ross appealed, arguing he was entitled to an evidentiary hearing on the statutory constitutional challenges and on his ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether direct facial and as-applied constitutional challenges to § 28-1212.04 may be heard in postconviction | Ross: statute is special legislation and violates equal protection; constitutional defects could be shown by evidence | State: direct constitutional claims could and should have been raised at trial or on direct appeal; procedurally barred | Held: Procedurally barred; postconviction cannot review issues that were or could have been raised earlier |
| Whether Ross is entitled to an evidentiary hearing on the constitutional claims | Ross: factual allegations warrant an evidentiary hearing | State: records show no entitlement to relief; allegations are legal conclusions | Held: No evidentiary hearing required for the direct constitutional claims (procedural bar) |
| Whether counsel was ineffective for failing to move to quash and raise constitutional challenge | Ross: counsel failed to investigate/preserve constitutional claims, causing prejudice | State: counsel not deficient for failing to raise novel constitutional theories; lack of precedent made challenge novel | Held: Counsel was not shown to have performed deficiently; no evidentiary hearing required |
| Whether Hall v. State establishes a presumption of ineffective assistance when counsel fails to move to quash on constitutional grounds | Ross: Hall implies a postconviction ineffective-assistance claim arises when counsel fails to move to quash | State: Hall only describes proper procedural routes, not a presumption of merit | Held: Court rejects Ross’s reading of Hall; Hall explains procedure, not automatic validity of ineffective-assistance claims |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes deficiency and prejudice test for ineffective assistance of counsel)
- 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) (describing proper procedural means to raise facial constitutional challenges in criminal cases)
- State v. Ross, 283 Neb. 742 (2012) (Ross’s direct appeal affirming convictions)
- Engle v. Isaac, 456 U.S. 107 (1982) (noting Constitution guarantees competent counsel but not raising every conceivable claim)