State v. Ross, 296 Neb. 923

Michael L. Ross was convicted by a jury of, among other counts, violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm near or from a motor vehicle) and his convictions were affirmed on direct appeal.
Ross filed a postconviction motion alleging § 28-1212.04 is facially and as-applied unconstitutional (special legislation and equal protection) and that trial and appellate counsel were ineffective for failing to challenge the statute or move to quash the information.
The district court denied postconviction relief without an evidentiary hearing, finding direct constitutional challenges procedurally barred and relying on State v. Sanders to find counsel was not ineffective for failing to raise a novel constitutional challenge.
Ross appealed the denial, arguing the district court should have held an evidentiary hearing on both the constitutional challenges and the ineffective assistance claims.
The Nebraska Supreme Court reviewed de novo whether Ross alleged sufficient facts to require an evidentiary hearing and whether his claims were procedurally barred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-1212.04 is facially unconstitutional as special legislation	Ross: statute criminalizes conduct only in certain geographic areas, violating Neb. Const. art. III, § 18	State: direct constitutional challenges could have been raised at trial or on direct appeal (procedurally barred)	Court: procedurally barred; postconviction not a vehicle to raise issues that could have been litigated earlier
Whether § 28-1212.04 violates equal protection (facial)	Ross: statute treats identical geographic areas differently and disproportionately targets African‑Americans	State: same procedural bar; no adequate factual allegations to require hearing	Court: procedurally barred; no evidentiary hearing required
Whether § 28-1212.04 is unconstitutional as applied to Ross	Ross: statute unconstitutionally applied to him	State: could have been raised earlier; no persuasive as‑applied factual allegations	Court: procedurally barred; no hearing required
Whether counsel was ineffective for failing to preserve constitutional challenges	Ross: trial/appellate counsel failed to investigate, move to quash, and preserve constitutional claims, causing prejudice	State: counsel’s failure was not deficient because raising a novel constitutional theory is not deficient; Sanders controls	Court: no deficient performance pleaded under Strickland; no evidentiary hearing warranted

Strickland v. Washington, 466 U.S. 668 (established two‑part ineffective assistance test)
State v. Sanders, 289 Neb. 335 (failure to raise novel constitutional challenge to § 28-1212.04 not deficient performance)
Hall v. State, 264 Neb. 151 (procedural mechanisms for raising statutory constitutional challenges in criminal prosecutions)
Engle v. Isaac, 456 U.S. 107 (Constitution guarantees fair trial and competent counsel, not every conceivable claim)