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 from or near a vehicle in certain municipalities), a Class IC felony.
- Ross was represented at trial and on direct appeal by the same attorney; no constitutional challenge to § 28-1212.04 was raised at trial or on direct appeal.
- After his convictions were affirmed on direct appeal, Ross filed a postconviction motion alleging § 28-1212.04 is facially and as-applied unconstitutional under Nebraska Const. art. III, § 18 (special legislation) and the Equal Protection Clause, and that the statute was discriminatorily enforced against minorities.
- Ross also alleged ineffective assistance of trial and appellate counsel for failing to investigate and preserve constitutional challenges (including failing to move to quash the information).
- The district court denied postconviction relief without an evidentiary hearing as the direct constitutional claims were procedurally barred and, relying on State v. Sanders, found counsel was not ineffective for failing to raise a novel constitutional challenge.
- The Nebraska Supreme Court affirmed, holding the direct challenges procedurally barred and that the ineffective-assistance claim failed because counsel’s omission to raise a novel constitutional theory was not deficient performance under Strickland.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether § 28-1212.04 is facially unconstitutional as special legislation (Neb. Const. art. III, § 18) | Ross: statute criminalizes conduct in some geographic areas but not others, violating the special legislation clause | State: claim could have been raised at trial or on direct appeal and is procedurally barred; no entitlement to postconviction review on this direct claim | Procedurally barred; postconviction relief denied |
| Whether § 28-1212.04 violates Equal Protection because it treats identical geographic areas differently | Ross: statute’s geographic scope leads to unequal treatment of similarly situated areas | State: claim was available earlier and is procedurally barred; no merit shown in postconviction motion | Procedurally barred; postconviction relief denied |
| Whether § 28-1212.04 is unconstitutional as applied because it was discriminatorily enforced against African‑Americans | Ross: enforcement disproportionately targeted minorities, supporting an as‑applied Equal Protection challenge | State: as‑applied challenge could have been raised earlier and is procedurally barred; pleadings do not show entitlement to relief | Procedurally barred; postconviction relief denied |
| Whether trial/appellate counsel were ineffective for failing to move to quash or preserve constitutional challenges | Ross: counsel’s failure to file motion to quash or raise challenges was deficient and prejudiced his case | State: counsel’s failure to raise a novel constitutional theory is not deficient under Strickland; Sanders controls | Counsel not ineffective; omission to raise a novel challenge did not meet Strickland’s deficient-performance requirement; no evidentiary hearing required |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
- State v. Sanders, 289 Neb. 335 (2014) (trial counsel not deficient for failing to raise a novel constitutional challenge to § 28-1212.04)
- Hall v. State, 264 Neb. 151 (2002) (procedures for raising facial constitutional challenges in criminal prosecutions)
- Engle v. Isaac, 456 U.S. 107 (1982) (principle that the Constitution guarantees a competent attorney but not the raising of every conceivable claim)