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State v. Ross

Supreme Court of Nebraska

June 16, 2017

State of Nebraska, appellee,
Michael L. Ross, appellant.

         1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

         2. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion.

         3. Postconviction: Constitutional Law. An evidentiary hearing on a motion for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. However, if the motion alleges only conclusions of fact or law, or the records and files in the case affirmatively show that the movant is entitled to no relief, no evidentiary hearing is required.

         4. __: __ . Postconviction relief is a very narrow category of relief available only to remedy prejudicial constitutional violations. 5. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.

         6. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant is represented both at trial and on direct appeal by the same lawyer, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief.

         7. __: __: __ . To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 [296 Neb. 924] S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.

         8. Effectiveness of Counsel. Under the framework of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a court may address the two elements, deficient performance and prejudice, in either order.

         9. __ . Counsel's failure to raise novel legal theories or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.

         10. Constitutional Law: Criminal Law: Effectiveness of Counsel. The Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not ensure that defense counsel will recognize and raise every conceivable constitutional claim.

         Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Affirmed.

          Gerald L. Soucie for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         After a jury trial, Michael L. Ross was convicted of three counts, including violation of Neb. Rev. Stat. § 28-1212.04 (Supp. 2009). We affirmed Ross' convictions on direct appeal, [1]and he moved for postconviction relief. The district court denied his motion without conducting an evidentiary hearing. In this appeal, Ross contends he should have received an evidentiary hearing on his allegations (1) that § 28-1212.04 is unconstitutional both facially and as applied to him and

         [296 Neb. 925] (2) that his trial and appellate counsel were ineffective for failing to preserve constitutional challenges to § 28-1212.04. We conclude Ross' arguments are without merit, and affirm the denial of postconviction relief.


         The facts of the underlying crimes are fully set forth in Ross' direct appeal.[2] As relevant here, Ross argues the district court erred in denying an evidentiary hearing on his motion for postconviction relief. His arguments are premised on the constitutionality of § 28-1212.04, which at the time of his crime prohibited

[a]ny person, within the territorial boundaries of any city, incorporated village, or county containing a city of the metropolitan class or primary class [from] unlawfully, knowingly, and intentionally or recklessly discharg[ing] a firearm, while in or in the proximity of any motor vehicle that such person has just exited, at or in the general ...

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