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
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.
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.
__ . 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
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.
__: __ . 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.
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
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
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
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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, 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
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
facts of the underlying crimes are fully set forth in
Ross' direct appeal. 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