State v. Ross
296 Neb. 923
| Neb. | 2017Background
- Michael L. Ross was convicted by a jury of multiple felonies, including violating Neb. Rev. Stat. § 28-1212.04 (discharging a firearm from/near a vehicle in the direction of persons/structures), a Class IC felony.
- Ross was represented at trial and on direct appeal by the same counsel; counsel did not challenge the constitutionality of § 28-1212.04 or move to quash the information on that ground.
- Ross’s convictions and sentences were affirmed on direct appeal. He then filed a postconviction motion alleging § 28-1212.04 was facially and as-applied unconstitutional (special legislation and equal protection theories) and that trial and appellate counsel were ineffective for failing to preserve those challenges.
- The district court denied postconviction relief without an evidentiary hearing, finding the direct constitutional claims procedurally barred and relying on State v. Sanders to reject ineffective-assistance arguments about failing to raise novel legal theories.
- Ross appealed; the Nebraska Supreme Court reviewed de novo whether the postconviction motion alleged sufficient facts to require an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether direct constitutional challenges to § 28-1212.04 warranted an evidentiary hearing | Ross: statute is facially and as-applied unconstitutional (special legislation; equal protection; disparate impact on minorities) | State: those challenges could have been raised at trial or on direct appeal and are procedurally barred in postconviction relief | Held: Claims are procedurally barred; no hearing required |
| Whether counsel was ineffective for not moving to quash or preserving constitutional challenges | Ross: counsel’s failure to quash/preserve constituted deficient performance and caused prejudice | State: failure to raise novel constitutional arguments is not deficient performance under Strickland; Sanders controls | Held: No deficient performance pleaded; no hearing required |
| Whether Hall v. State creates a presumption of ineffective assistance when counsel fails to file a motion to quash | Ross: Hall requires a Strickland claim when counsel omits a motion to quash on constitutional grounds | State: Hall describes proper procedure to raise statutory challenges, not a presumption of validity or automatic Strickland relief | Held: Court rejects Ross’s reading of Hall; no presumption of ineffectiveness |
| Whether novel statutory challenges must be raised by counsel to avoid Strickland failure | Ross: counsel should have raised the novel constitutional theory earlier | State: Constitution guarantees competent counsel but not every conceivable or novel constitutional claim | Held: Failure to raise novel legal theories is not per se deficient; counsel not ineffective |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice standard for ineffective assistance of counsel)
- State v. Sanders, 289 Neb. 335 (holding counsel not ineffective for failing to raise novel constitutional challenge to § 28-1212.04)
- Hall v. State, 264 Neb. 151 (discusses proper procedure to raise facial constitutional challenges in criminal prosecution)
- Engle v. Isaac, 456 U.S. 107 (noting Constitution guarantees competent counsel but not that counsel will raise every conceivable constitutional claim)