State v. Ross, 296 Neb. 923

Michael L. Ross was convicted by a jury (including violation of Neb. Rev. Stat. § 28-1212.04) and his convictions were affirmed on direct appeal.
Ross filed a postconviction motion alleging § 28-1212.04 is unconstitutional both facially and as applied (special legislation and equal protection theories) and that trial and appellate counsel were ineffective for failing to preserve those constitutional challenges.
Trial counsel did not move to quash the information or raise constitutional objections to § 28-1212.04; the same lawyer handled the direct appeal and likewise did not raise the statute’s constitutionality.
The district court denied the postconviction motion without an evidentiary hearing, finding the direct constitutional claims procedurally barred and relying on precedent that counsel was not ineffective for failing to raise novel constitutional arguments regarding § 28-1212.04.
Ross appealed, arguing the court should have held an evidentiary hearing on (1) facial unconstitutionality under Neb. Const. art. III, § 18, (2) equal protection facial claims (including disparate impact on African-Americans), (3) as-applied unconstitutionality, and (4) ineffective assistance for failure to move to quash.

Issue	Ross’s Argument	State’s Argument	Held
Whether direct constitutional challenges to § 28-1212.04 warranted an evidentiary hearing	§ 28-1212.04 is facially unconstitutional (special legislation/equal protection) and unconstitutional as applied	Direct constitutional claims could and should have been raised at trial or on direct appeal; thus procedurally barred	Procedurally barred; no evidentiary hearing required
Whether disparate enforcement/equal protection claims required a hearing	Statute was applied disproportionately to minorities and treats identical geographic areas differently	Claims are direct challenges that were available earlier and are procedurally barred	Procedurally barred; no hearing
Whether failure to move to quash preserved an as-applied or facial challenge	Failure to move to quash deprived Ross of preserved appellate review; counsel ineffective	Postconviction is proper vehicle for ineffective-assistance claim but failure to raise novel legal arguments is not deficient performance	No deficient performance shown; no hearing required
Whether counsel was ineffective for not asserting constitutional challenge to § 28-1212.04	Counsel failed to investigate, preserve, and argue constitutional objections; prejudice ensued	At time of trial and direct appeal no appellate precedent supported such a novel challenge; failing to raise novel theories is not deficient	Counsel not ineffective under Strickland; claim fails and no hearing required

Strickland v. Washington, 466 U.S. 668 (sets two-part ineffective assistance standard: deficient performance and prejudice)
State v. Sanders, 289 Neb. 335 (holding counsel not deficient for failing to raise novel constitutional challenge to § 28-1212.04)
Hall v. State, 264 Neb. 151 (discussing proper procedures—motion to quash—for raising facial constitutional challenges in criminal prosecutions)
Engle v. Isaac, 456 U.S. 107 (noting the Constitution guarantees a fair trial and competent counsel, not recognition of every conceivable constitutional claim)