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State of Nebraska, appellee, 

v. Jason Assad, appellant.

___ N.W.2d ___

Filed February 7, 2020. No. S-17-1193.

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. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

show that his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.

3. ____: ____. To show that counsel’s performance was deficient, a defend

ant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

4. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Bishop, Judges, on 

appeal thereto from the District Court for Cheyenne County, 

Derek C. Weimer, Judge. Judgment of Court of Appeals 

affirmed.

Gerald L. Soucie and Brian S. Munnelly for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/20/2020 09:08 AM CDT
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Papik, J.

After Jason Assad was convicted of several criminal offenses, 

he appealed. The only errors his appellate counsel initially 

assigned, however, pertained to issues that were not preserved 

for appellate review. And although his counsel later sought 

leave to assert that trial counsel was ineffective in failing to 

preserve issues for appeal, those attempts were unsuccessful 

and Assad’s convictions were summarily affirmed. Assad now 

seeks postconviction relief, asserting that his appellate counsel was ineffective and arguing that, unlike most defendants 

asserting ineffective assistance of counsel, he is not required 

to demonstrate that he was prejudiced as a result of counsel’s deficient performance. The district court rejected Assad’s 

argument that he was entitled to a presumption of prejudice 

and denied his motion for postconviction relief without an 

evidentiary hearing. The Nebraska Court of Appeals affirmed, 

but did not address Assad’s argument regarding a presumption 

of prejudice.

Upon further review, we find this is not a circumstance in 

which prejudice is presumed, but, rather, Assad is required to 

demonstrate that his counsel performed deficiently and that 

he was actually prejudiced as a result of that deficient per

formance. Because Assad has not even attempted to demonstrate prejudice, we find that he is not entitled to postconviction relief and affirm.

BACKGROUND

Assad’s Convictions.

On the morning of September 14, 2014, police in Sidney, 

Nebraska, received a call from an individual who reported 

hearing the sound of a woman’s scream coming from a nearby 

motel. Assad and his wife lived at the motel at the time. A 

police officer went to the motel to investigate. After the officer was unable to make contact with anyone at the motel, he 
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obtained a search warrant. During the execution of the search 

warrant, officers entered the room in which Assad and his wife 

resided. There, the officers were confronted by Assad, who was 

yelling profanities. The officers later found Assad’s wife with 

injuries to her head and face. They also found what appeared to 

be evidence of narcotics. The officers then obtained additional 

search warrants. During the execution of the additional search 

warrants, officers seized surveillance videos, which included 

footage from the inside of the motel room. Officers continued 

to investigate and determined that Assad had possession of a 

knife and a rifle in the motel room and that he had previously 

been convicted of a felony.

Assad was later charged with possession of a weapon by a 

prohibited person, first degree false imprisonment, terroristic 

threats, use of a weapon to commit a felony, and possession 

of a firearm by a prohibited person. Prior to trial, he filed a 

series of suppression motions, each of which sought to suppress evidence obtained through the September 14, 2014, 

searches. The district court held a hearing on the motions to 

suppress and denied the motions, concluding that the searches 

were done pursuant to valid search warrants and, alternatively, 

that the good faith exception recognized in United States 

v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 

(1984), applied.

At trial, when the State introduced evidence seized through 

the September 14, 2014, searches, Assad did not renew the 

objections he made in his pretrial motions to suppress. A jury 

found Assad guilty of each of the charged offenses listed 

above. Assad was later found to be a habitual criminal at a 

sentencing enhancement hearing. He was sentenced to an 

aggregate period of 35 to 60 years’ imprisonment.

Direct Appeal.

Assad’s trial counsel filed a notice of appeal, but shortly 

thereafter new counsel entered an appearance and his trial 

counsel was granted leave to withdraw. His appellate counsel 

later filed a 40-page brief assigning two errors on appeal, both 
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of which addressed the denial of Assad’s pretrial motions to 

suppress. The brief contained arguments that evidence seized 

in the search of his residence should be suppressed, because 

officers violated his Fourth Amendment rights when they 

entered his residence, and that evidence seized after the search 

of his residence should be suppressed as fruit of the poisonous tree.

The State responded by filing a motion for summary affirm

ance. In support of its motion, the State noted that Assad’s 

trial counsel had not objected at trial to the evidence that was 

the subject of the motions to suppress. As a result, the State 

contended, Assad’s arguments that evidence should have been 

suppressed were not properly preserved for appellate review.

Following the State’s motion for summary affirmance, 

Assad’s appellate counsel filed a motion requesting leave 

to file a revised brief. The motion stated that the revised 

brief would “address issues raised in [the State’s] Motion for 

Summary Affirmance.” Attached to the motion was a proposed 

revised brief, which added a new assignment of error alleging that trial counsel’s failure to object at trial to the evidence 

Assad previously sought to suppress constituted ineffective 

assistance of counsel. The Court of Appeals denied leave to 

file the revised brief. It later granted the State’s motion for 

summary affirmance. The Court of Appeals’ disposition stated 

in full:

Motion of appellee for summary affirmance sustained; 

judgment affirmed. See Neb. Ct. R. App. P. § 2-107(B)(2); 

State v. Podrazo, 21 Neb. App. 489, 840 N.W.2d 898 

(2013) (defendant must object at trial to the admission of 

evidence sought to be suppressed to preserve an appellate 

question concerning admissibility of that evidence).

Assad’s appellate counsel subsequently filed a motion to 

file a supplemental brief. This motion attached a proposed 

supplemental brief containing a single assignment of error: 

that trial counsel’s failure to object at trial to the evidence 

that was the subject of the suppression motions constituted 
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ineffective assistance of counsel. The Court of Appeals denied 

the motion.

Assad’s appellate counsel then filed a petition for further 

review on Assad’s behalf. This court denied the petition for 

further review.

Postconviction Proceedings.

After the conclusion of the direct appeal proceedings, Assad, 

represented by yet another attorney, filed a verified motion 

for postconviction relief. The postconviction motion asserted 

various claims for relief. One layered claim of ineffective 

assistance of counsel is relevant for present purposes. Assad 

alleged that his appellate counsel’s failure to allege ineffective 

assistance on the part of his trial counsel constituted ineffective assistance of appellate counsel. Assad claimed his appellate counsel should have asserted that trial counsel’s failure to 

preserve a number of issues for appellate review, including the 

claim that the motions to suppress should have been granted, 

amounted to ineffective assistance.

The State filed a motion to dismiss the postconviction 

motion without an evidentiary hearing. Assad filed a brief in 

opposition. In the brief, Assad claimed that as a result of appellate counsel’s performance, he was denied all appellate review 

and was entitled to a new direct appeal.

The district court granted the State’s motion to dismiss and 

denied Assad’s motion for postconviction relief without an evidentiary hearing. In a written order, the district court rejected 

Assad’s argument that he was entitled to a new direct appeal. 

Instead, it concluded that Assad was entitled to relief under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984) (Strickland), only if he could show that his 

counsel was deficient and that this deficient performance prejudiced him. With respect to Assad’s layered claim of ineffective assistance of counsel, the trial court concluded that Assad 

could not show prejudice because the arguments he claimed 

counsel should have presented lacked merit.
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Court of Appeals.

Assad appealed to the Court of Appeals. Among his assignments of error was a contention that the district court erred in 

rejecting his layered claim of ineffective assistance of counsel. 

He argued that under cases such as State v. Trotter, 259 Neb. 

212, 609 N.W.2d 33 (2000), he should not have been required 

to prove prejudice, because prejudice should be presumed, and 

that he was thus entitled to a new direct appeal.

The Court of Appeals affirmed the district court’s order. 

State v. Assad, No. A-17-1193, 2019 WL 951169 (Neb. App. 

Feb. 26, 2019) (selected for posting to court website). The 

Court of Appeals observed that, with one exception not relevant here, Assad did not make any specific argument on 

appeal as to why his trial counsel’s failures to preserve issues 

for appellate review amounted to ineffective assistance. It thus 

concluded that Assad had not sufficiently argued his claim that 

appellate counsel was ineffective for not asserting a layered 

claim of ineffective assistance of counsel and did not consider 

its merits.

Petition for Further Review.

Assad filed a petition for further review. His sole assignment 

of error was that the Court of Appeals erred by affirming the 

district court’s dismissal of his ineffective assistance of appellate counsel claim. He again argued that, under the circumstances, prejudice should be presumed and that he should have 

been awarded a new direct appeal for his appellate counsel’s 

deficient performance.

We granted Assad’s petition for further review. We directed 

the parties to file supplemental briefs addressing whether, 

under the circumstances, Assad was required to demonstrate 

prejudice under Strickland or whether this is a case in which 

prejudice is presumed.

ASSIGNMENT OF ERROR

As noted above, Assad assigns one error in his petition for 

further review. He contends that the Court of Appeals erred 
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by affirming the district court’s denial of relief on his claim 

for ineffective assistance of appellate counsel. He argues that, 

under the circumstances, he is entitled to a presumption of 

prejudice and a new direct appeal.

STANDARD OF REVIEW

[1] 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 affirm

atively show that the defendant is entitled to no relief. State v. 

Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).

ANALYSIS

Question at Issue: 

Is Prejudice Presumed?

In most cases in which ineffective assistance of counsel is 

alleged, the case turns on whether the defendant can satisfy 

both parts of the familiar two-part framework of Strickland. 

Under that framework, a defendant must show that his or her 

counsel’s performance was deficient and that counsel’s deficient performance actually prejudiced the defense in his or 

her case. Martinez, supra. This case is different. It is different 

because Assad does not even attempt to show that his defense 

was prejudiced as a result of his appellate counsel’s allegedly 

deficient performance.

The Court of Appeals essentially concluded that because 

Assad did not make an argument as to prejudice, he had not 

presented sufficient argument in support of his ineffective 

assistance of appellate counsel claim. See State v. Assad, 

No. A-17-1193, 2019 WL 951169 (Neb. App. Feb. 26, 2019) 

(selected for posting to court website). From the beginning 

of this postconviction proceeding, however, Assad has consistently argued that because prejudice is presumed, he is not 

required to demonstrate prejudice and is entitled to a new 

direct appeal. We will thus proceed to consider if this is indeed 

a case in which a presumption of prejudice arises. We will do 
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so by first reviewing the applicable legal standards and then by 

applying those standards to this case.

Legal Standards Regarding 

Presumed Prejudice.

[2-4] As noted above, generally to prevail on a claim of 

ineffective assistance of counsel, the defendant must show 

both deficient performance and prejudice. See State v. AvinaMurillo, 301 Neb. 185, 917 N.W.2d 865 (2018). To show 

that counsel’s performance was deficient, a defendant must 

show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To 

show prejudice, the defendant must demonstrate a reasonable 

probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different. Id. These 

familiar general elements of a claim of ineffective assistance 

of counsel were set forth in the U.S. Supreme Court’s opinion 

in Strickland.

There are some cases, however, in which a defendant asserting ineffective assistance need not demonstrate prejudice in 

order to prevail. In Strickland and in United States v. Cronic, 

466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), 

another ineffective assistance of counsel opinion issued the 

same day as Strickland, the U.S. Supreme Court recognized 

that in some situations, prejudice is presumed. In Strickland, 

the Court stated that “[a]ctual or constructive denial of the 

assistance of counsel altogether” and “various kinds of state 

interference with counsel’s assistance” would result in a presumption of prejudice. 466 U.S. at 692. In Cronic, the Court 

held that prejudice would also be presumed if “counsel entirely 

fails to subject the prosecution’s case to meaningful adversarial 

testing.” 466 U.S. at 659. These circumstances, the Cronic 

Court observed, “are so likely to prejudice the accused that the 

cost of litigating their effect in a particular case is unjustified.” 

466 U.S. at 658.

In the years following Strickland and Cronic, the U.S. 

Supreme Court has made clear that in order for prejudice to 
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be presumed as a result of counsel’s inadequate performance, 

the failure must be extreme. In Bell v. Cone, 535 U.S. 685, 

122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Sixth Circuit 

Court of Appeals applied a presumption of prejudice in a case 

in which defense counsel in a first degree murder trial waived 

his closing argument in a sentencing proceeding that ultimately 

resulted in a death sentence. The U.S. Supreme Court reversed. 

It explained that the presumption of prejudice based on an 

attorney’s failure to test the prosecution’s case recognized in 

Cronic was limited to cases in which the attorney’s failure to 

do so was “complete.” Bell, 535 U.S. at 697. A presumption 

was not appropriate in Bell, the Court reasoned, because the 

defendant was merely arguing that his counsel failed to oppose 

the prosecution at specific points of the sentencing proceeding 

rather than throughout.

Two years later in Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 

551, 160 L. Ed. 2d 565 (2004), the U.S. Supreme Court again 

reversed a lower court’s decision, holding that a presumption 

of prejudice was not called for under the circumstances. In that 

case, defense counsel conceded the defendant’s guilt without 

the defendant’s consent. The Court held that a presumption of 

prejudice was not warranted and described the presumption of 

prejudice as a “narrow exception” to Strickland that will arise 

“infrequently.” Nixon, 543 U.S. at 190.

The cases discussed to this point have considered the general principles that determine whether a presumption of prejudice ought to apply to an ineffective assistance of counsel 

claim. The U.S. Supreme Court has also, in a number of cases, 

considered whether a presumption of prejudice was appropriate 

in cases in which ineffective assistance of appellate counsel 

was alleged.

In the appellate context, the U.S. Supreme Court has held 

that the presumption of prejudice applies when the accused is 

deprived of the assistance of counsel on appeal. See Penson v. 

Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). 

It reached this conclusion by relying on the language in 
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Strickland and United States v. Cronic, 466 U.S. 648, 104 S. 

Ct. 2039, 80 L. Ed. 2d 657 (1984), explaining that a presumption of prejudice is appropriate upon the actual or constructive 

denial of counsel. See Penson, supra.

Reasoning that a denial of an appeal altogether is even more 

serious than the denial of counsel during an appeal, the U.S. 

Supreme Court has also held that a presumption of prejudice 

arises if counsel fails to file a notice of appeal when requested 

to do so by the defendant. See Roe v. Flores-Ortega, 528 

U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). In that 

circumstance, the Court has held that the proper remedy is to 

afford the defendant a new opportunity to appeal. See Garza v. 

Idaho, ___ U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019). 

We have held the same. See State v. Trotter, 259 Neb. 212, 609 

N.W.2d 33 (2000).

With these principles in mind, we turn to whether a presumption of prejudice ought to apply in this case.

Does Presumption of Prejudice 

Apply Here?

In considering whether prejudice should be presumed here, 

we reject at the outset Assad’s argument that this case is 

directly controlled by Garza, supra, and Flores-Ortega, supra. 

As explained above, in those cases, the U.S. Supreme Court 

held that prejudice is presumed when counsel fails to file a 

notice of appeal as requested by the defendant, thereby depriving the defendant of a desired appeal altogether. In this case, 

a notice of appeal was filed on Assad’s behalf. And although 

the Court of Appeals resolved the appeal summarily, it considered the issues raised on appeal and affirmed the convictions 

rather than dismissing the appeal. Assad was thus not denied a 

direct appeal entirely, and this case cannot be quickly resolved 

in his favor with nothing more than a citation to Garza and 

Flores-Ortega.

Even if not directly governed by Garza and Flores-Ortega, 

Assad nonetheless urges us to find that prejudice is presumed 

here because, in his words, he “effectively received no direct 
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appeal.” Supplemental brief for appellant on petition for further review at 13. We are not aware, however, of any cases 

of the U.S. Supreme Court that would characterize the set of 

circumstances here as equivalent to the complete denial of an 

appeal. And, as we will explain, what the U.S. Supreme Court 

has said about a presumption of prejudice in the appellate context leads us to conclude that a presumption of prejudice is not 

warranted in this case.

In Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 145 

L. Ed. 2d 756 (2000), another case in which a party alleging 

ineffective assistance of appellate counsel argued for a presumption of prejudice, the U.S. Supreme Court drew a distinction between a “denial of counsel altogether on appeal” and 

“mere ineffective assistance of counsel on appeal.” The former, 

the Court explained, warranted a presumption of prejudice 

while the latter did not.

Although appellate counsel’s performance in this case may 

well have been deficient, we think it unfair to characterize it 

as amounting to nothing. As we have noted, Assad’s counsel 

filed a 40-page appellate brief, which assigned multiple errors. 

Additionally, once the State filed its motion for summary 

affirmance, Assad’s counsel made multiple attempts to raise 

additional assignments of error in the Court of Appeals and 

sought further review in this court. Just as it cannot be said 

that Assad was denied an appeal, it cannot be said that Assad 

effectively went without appellate counsel.

This is not to say that the performance of Assad’s appellate counsel was flawless. Indeed, all involved recognize that 

Assad’s counsel made a serious mistake by only assigning error 

to the district court’s admission of evidence challenged in the 

motions to suppress rather than asserting that trial counsel was 

ineffective for failing to preserve the right to raise the motions 

to suppress on appeal. Again, however, Smith, supra, indicates 

that this type of alleged error—raising some issues rather than 

others—is subject to the usual Strickland requirements rather 

than the presumed prejudice exception.
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In Smith, the U.S. Supreme Court acknowledged that appellate counsel can provide deficient performance by “‘ignor[ing] 

issues [that] are clearly stronger than those presented.’” 528 

U.S. at 288, quoting Gray v. Greer, 800 F.2d 644 (7th Cir. 1986). 

The Court made clear, however, that a defendant attempting to 

establish a claim of ineffective assistance of appellate counsel 

on the theory that counsel raised the wrong issues must establish traditional Strickland prejudice, i.e., demonstrate a reasonable probability that the outcome of the proceeding would 

have been different had counsel raised a different argument. 

In Penson v. Ohio, 488 U.S. 75, 88, 109 S. Ct. 346, 102 L. 

Ed. 2d 300 (1988), the Court did the same, distinguishing the 

case before it in which prejudice was properly presumed from 

a case in which “counsel fails to press a particular argument 

on appeal.”

To all this, we imagine that Assad would likely contend that 

even if defendants generally must prove prejudice when asserting that counsel performed deficiently by raising the wrong 

appellate issues, this should be treated as an exceptional case 

given that Assad’s appellate counsel raised only issues that 

were not preserved for appellate review. But again, language 

from the U.S. Supreme Court leads us to conclude this case is 

subject to the usual Strickland rule.

In Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. 

Ed. 2d 914 (2002), when discussing whether prejudice ought 

to be presumed when counsel waived closing argument in a 

sentencing proceeding, the Court noted that the difference 

between circumstances in which prejudice is presumed and in 

which prejudice must be proved under Strickland “is not of 

degree but of kind.” We read this language to undercut any 

notion that a presumption of prejudice might apply in some 

exceptional cases in which it is alleged that appellate counsel 

should have raised additional arguments. Appellate counsel 

may have failed to a serious degree in this case, but that failure 

does not differ in kind from other cases in which a defendant 

alleges that his appellate counsel raised the wrong issues on 
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appeal and, as discussed, defendants must prove prejudice 

under those circumstances.

Given our understanding of the U.S. Supreme Court’s pronouncements in this area, we are unpersuaded by the arguments 

Assad presents based on decisions of other courts. Some of 

the decisions Assad cites in which a presumption of prejudice 

was found to apply are cases in which counsel failed to file an 

appellate brief and, for that reason, the appeal was dismissed. 

See, e.g., Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011); 

People v. Moore, 133 Ill. 2d 331, 549 N.E.2d 1257, 140 Ill. 

Dec. 385 (1990). But in cases like those, the appellate court 

does not consider any issues and the appeal is dismissed as a 

result of appellate counsel’s failure. It is thus, at least arguably, 

not meaningfully different from a case in which counsel fails 

to perfect an appeal when requested to do so by the defendant 

and the defendant is denied an appeal altogether. In contrast, 

Assad’s appellate counsel did file a brief and his appeal was 

not dismissed. The Court of Appeals gave consideration to the 

errors assigned, but found they were not properly preserved, 

and affirmed.

Another case Assad directs us to, Hendricks v. Lock, 238 

F.3d 985 (8th Cir. 2001), presents a slightly different scenario, but, in our view, it is also unavailing. In Hendricks, the 

Eighth Circuit determined that prejudice should be presumed 

in a case in which appellate counsel filed a brief, but the 

Missouri Supreme Court refused to address the issues raised 

because it found that the brief lacked any reasoned arguments 

and thus “‘provide[d] nothing for meaningful review.’” 238 

F.3d at 986, quoting State v. Hendricks, 944 S.W.2d 208 (Mo. 

1997). The Eighth Circuit distinguished the circumstances 

from a case in which it was alleged that counsel failed to raise 

a particular issue, concluding that prejudice was presumed 

because the inadequacy of the appellate brief led the Missouri 

Supreme Court to decline to address the issues the defendant 

raised on appeal.
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We believe the reasoning of the Eighth Circuit in Hendricks

actually supports our determination that prejudice should not 

be presumed here. The failure on the part of Assad’s appellate 

counsel was not a failure to provide argumentation in support 

of the issues raised; it was a failure to assert particular issues 

on appeal. Hendricks indicates that prejudice is not presumed 

in the latter circumstance.

For similar reasons, we are also not persuaded by Assad’s 

reliance on a concurring opinion in State v. Sundquist, 301 

Neb. 1006, 921 N.W.2d 131 (2019) (Cassel, J., concurring; 

Miller-Lerman, J., joins). In Sundquist, counsel failed to file a 

statement of errors in an appeal from county court to district 

court. The State conceded that this was deficient performance, 

but this court found that there was no prejudice. The concurring opinion emphasized the importance of filing a timely 

statement of errors and suggested that a presumption of prejudice might have been appropriate if not for the district court’s 

consideration of the defendant’s argument for prejudicial error, 

even though the failure to file a statement of errors would have 

justified a more “cursory review by the district court for plain 

error.” Id. at 1026, 921 N.W.2d at 146 (Cassel, J., concurring; 

Miller-Lerman, J., joins).

Assad argues that his direct appeal received the same type 

of cursory review the concurring opinion in Sundquist suggested might give rise to a presumption of prejudice. We do 

not agree. The Court of Appeals did summarily affirm Assad’s 

direct appeal, but it did not review the errors assigned for mere 

plain error or under some other cursory standard of review. The 

summary affirmance was not the result of a cursory standard 

of review, but, rather, the unpreserved issues appellate counsel 

raised. And, as we have explained, an assertion that counsel 

ineffectively raised some issues rather than others requires a 

showing of prejudice.

Though cited by neither party, we believe it also appropriate to mention a decision of the Pennsylvania Supreme Court, 

given its similarity to the facts of this case. In Commonwealth 
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v. Rosado, 637 Pa. 424, 150 A.3d 425 (2016), much like this 

case, the only issue appellate counsel raised on appeal was an 

issue that was not properly preserved in the trial court. The 

Pennsylvania Supreme Court found that prejudice should be 

presumed. It reasoned that there was no meaningful difference 

between an attorney who completely fails to file a notice of 

appeal “and one who makes all necessary filings, but does 

so relative solely to claims he has not preserved for appeal, 

producing the same end.” Id., 637 Pa. at 439-40, 150 A.3d 

at 434.

It appears that Assad would be entitled to a presumption of 

prejudice under the reasoning articulated by the Pennsylvania 

Supreme Court in Rosado. We, however, respectfully disagree 

with the conclusion that the raising of unpreserved claims is 

equivalent to the complete failure to file a requested notice 

of appeal for purposes of deciding whether a presumption of 

prejudice arises.

It is of course true that a defendant will not obtain relief on 

direct appeal both when appellate counsel fails to file a notice 

of appeal and when appellate counsel raises only unpreserved 

issues, but the same could be said of any case in which appellate counsel raises issues lacking merit and the defendant later 

claims that others should have been raised. But when a claim 

is made that appellate counsel was ineffective for raising some 

issues rather than others, the U.S. Supreme Court has made 

clear that prejudice must be shown. And, in our view, Assad, 

by asserting that his counsel was ineffective for raising only 

unpreserved issues, is raising just this type of claim.

Proving Prejudice Under Strickland.

For all the reasons we have discussed, we do not believe this 

is a case in which prejudice is presumed. That does not mean, 

however, that Assad had no opportunity to establish a claim 

of ineffective assistance of appellate counsel. Instead, just as 

in most other cases in which a defendant alleges ineffective 

assistance, Assad would be entitled to relief under Strickland
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if he could prove that his appellate counsel’s performance was 

deficient and that he suffered prejudice as a result of that deficient performance.

In this case, Assad likely would have had little problem 

establishing deficient performance. His entitlement to relief 

would thus depend solely on whether he could demonstrate 

a reasonable probability that, but for his appellate counsel’s 

deficient performance, the result of his appeal would have 

been different. This would require a showing that had his 

trial counsel properly preserved issues for appellate review, 

there was a reasonable probability that his direct appeal 

would have resulted in something other than his convictions 

being affirmed.

Assad has never attempted to make such a showing. Instead, 

he has relied exclusively on his argument that prejudice is 

presumed and he is entitled to a new direct appeal. Because 

we find that prejudice is not presumed and because Assad has 

not attempted to demonstrate prejudice, his motion for postconviction relief based on a claim of ineffective assistance 

of appellate counsel was properly denied without an evidentiary hearing.

CONCLUSION

For the reasons discussed above, we find that Assad was 

required to demonstrate prejudice under Strickland and that he 

failed to do so. We therefore affirm the decision of the Court 

of Appeals.

Affirmed.

Freudenberg, J., not participating.