- 923 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
Cite as 296 Neb. 923



### S tate of 

### N ebraska 

### , appellee 

### , v



### .

M i c hael 

### L

. R oss 

### , appella n t



### . ___ N.W.2d ___

Filed June 16, 2017. No. S-16-131.

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 dem

onstrate 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 post

conviction 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 infringe

ment 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 Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/08/2017 01:11 AM CDT- 924 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
Cite as 296 Neb. 923

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s perform

ance 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 preju

dice, 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 exist

ing 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 com

petent attorney. It does not ensure that defense counsel will recognize and raise every conceivable constitutional claim.


### Appeal from the District Court for Douglas County: D ua n e 

### C. D ougherty 

### , Judge. Affirmed.
Gerald L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

H eavi c a n 

### , C.J., W right 

### , M iller



### - L erma n 

### , C assel 

### , S ta c y 

### , K el c h 

### , and F u n ke 

### , JJ.

S ta c y 

### , 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 hear

ing. 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

1 State v. Ross , 283 Neb. 742, 811 N.W.2d 298 (2012).- 925 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
Cite as 296 Neb. 923


### (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.

FACTS 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 direc

tion of any person, dwelling, building, structure, [or] occupied motor vehicle . . . . Violation of § 28-1212.04 is a Class IC felony. Ross’ trial counsel did not move to quash the information charging a violation of § 28-1212.04 and did not raise any argument that the statute was unconstitutional. After a jury trial, Ross was convicted of violating § 28-1212.04, as well as other felonies. Ross appealed his convictions, asserting that the evidence was insufficient. He was represented on appeal by the same counsel, who did not raise any issue regarding the consti

tutionality of § 28-1212.04. After his convictions and sentences were affirmed on appeal, Ross moved for postconviction relief. As relevant to this appeal, Ross alleged that § 28-1212.04 is both facially uncon

stitutional and unconstitutional as applied to him, based on theories of special legislation and equal protection. Generally,

2 Id.- 926 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
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### he alleged § 28-1212.04 is special legislation in violation of Neb. Const. art. III, § 18, because it criminalizes behav

ior in certain geographic areas but not in others. He alleged § 28-1212.04 violates the Equal Protection Clause of the U.S. and Nebraska Constitutions for essentially the same reason, and because the areas of enforcement resulted in the statute’s being disproportionately applied against African-Americans and other minorities. Ross also alleged he received ineffective assistance of trial and appellate counsel because counsel failed to “investigate, allege, research, present, argue, and thereby preserve” the constitutional claims. Ross alleged he was prejudiced by his trial counsel’s failure to file a motion to quash because either the district court would have granted the motion based on the unconstitutionality of § 28-1212.04 or the constitutional issues would have been preserved for appeal and the appellate court would have found § 28-1212.04 unconstitutional. The district court denied postconviction relief without con

ducting an evidentiary hearing. It found Ross’ direct chal

lenges to the constitutionality of § 28-1212.04 were procedur

ally barred because those challenges could have been raised at trial or on direct appeal. And, relying on State v. Sanders
, 3 

### it found Ross’ counsel was not ineffective for failing to raise or preserve constitutional challenges to § 28-1212.04. In Sanders
, we expressly held trial counsel was not ineffective for failing to raise a constitutional challenge to § 28-1212.04, because counsel cannot perform in a deficient manner by failing to raise novel legal arguments or assert changes to existing law. Ross filed this timely appeal.

ASSIGNMENTS OF ERROR Ross assigns, restated and consolidated, that the district court erred in (1) denying an evidentiary hearing on his allega

tion that § 28-1212.04 is facially unconstitutional, in violation

3 State v. Sanders , 289 Neb. 335, 855 N.W.2d 350 (2014).- 927 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
Cite as 296 Neb. 923


### of Neb. Const. art. III, § 18; (2) denying an evidentiary hearing on his allegation that § 28-1212.04 is facially unconstitutional on equal protection grounds because it treats identical geo

graphic areas differently; (3) denying an evidentiary hearing on his allegation that § 28-1212.04 is facially unconstitutional on equal protection grounds because it discriminates against African-Americans; (4) denying an evidentiary hearing on his allegation that the § 28-1212.04 is unconstitutional as applied to him; and (5) denying an evidentiary hearing on his allegation that he received ineffective assistance of trial and appellate counsel when counsel failed to move to quash the amended information.

STANDARD OF REVIEW [1] In appeals from postconviction proceedings, an appel

late 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 affirma

tively show that the defendant is entitled to no relief. 4 

### [2] Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. 5 

### When reviewing a question of law, an appellate court resolves the question inde

pendently of the lower court’s conclusion. 6



### ANALYSIS [3] An evidentiary hearing on a motion for postconvic

tion 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

4 State v. Nolan , 292 Neb. 118, 870 N.W.2d 806 (2015); State v. Cook , 290

Neb. 381, 860 N.W.2d 408 (2015).

5 State v. Harris , 292 Neb. 186, 871 N.W.2d 762 (2015); State v. Thorpe
,

290 Neb. 149, 858 N.W.2d 880 (2015).

6 State v. Molina , 279 Neb. 405, 778 N.W.2d 713 (2010).- 928 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
Cite as 296 Neb. 923


### that the movant is entitled to no relief, no evidentiary hearing is required. 7



### C o n stitutio n al 

### C halle n ges 

### A re 

### P ro c edurally 

### B arred 

### [4,5] In his first four assignments of error, Ross alleges the district court erred in failing to grant an evidentiary hearing on his allegations raising direct constitutional challenges to § 28-1212.04. We conclude the district court properly found these allegations were procedurally barred, because they could have been raised at trial or on direct appeal. Postconviction relief is a very narrow category of relief available only to rem

edy prejudicial constitutional violations. 8 

### A motion for postcon

viction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. 9 

### We there

fore affirm the denial of postconviction relief as to the direct constitutional challenges.

C ou n sel 

### W as 

### N ot 

### I n effe c tive 

### [6] Although a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, when a defendant was 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. 10 

### Ross’ ineffec

tive assistance of counsel claim is properly before us. [7,8] To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has

7 State v. Ware , 292 Neb. 24, 870 N.W.2d 637 (2015); State v. Sellers , 290

Neb. 18, 858 N.W.2d 577 (2015).

8 State v. Hessler , 282 Neb. 935, 807 N.W.2d 504 (2011).

9 State v. Sellers, supra note 7; State v. Marshall , 269 Neb. 56, 690 N.W.2d

593 (2005).

10 State v. Armendariz , 289 Neb. 896, 857 N.W.2d 775 (2015); State v.

Robinson , 285 Neb. 394, 827 N.W.2d 292 (2013).- 929 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
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### the burden, in accordance with Strickland v. Washington
, 11 

### to show that counsel’s performance was deficient; that is, coun

sel’s performance did not equal that of a lawyer with ordi

nary training and skill in criminal law. 12 

### Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 13 

### Under the Strickland v. Washington framework, a court may address the two elements, deficient performance and prejudice, in either order. 14 

### Ross makes a novel argument in this regard based on Hall v. State. 15 

### In Hall , the defendant, after being convicted of second degree murder, attempted to challenge the constitutionality of the Nebraska homicide statutes via declaratory judgment. We held the procedure was improper because declaratory judgment does not lie where another equally serviceable remedy is avail

able. We stated: This [constitutional] issue could have been raised by conventional forms of remedy within the criminal pros

ecution. In a criminal prosecution, a defendant can bring a constitutional challenge to the facial validity of the stat

ute under which he or she is charged by filing a motion to quash or a demurrer. . . . In the event the defendant’s counsel fails to make such a challenge, the defendant can allege ineffective assistance of counsel either on direct appeal or in an action for postconviction relief. 16 

### Ross argues that this language from Hall established a rule that any time counsel fails to file a motion to quash challeng

ing the constitutionality of a statute, a defendant has a valid

11 Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

12 State v. Armendariz, supra note 10.

13 Id.

14 State v. Torres , 295 Neb. 830, 894 N.W.2d 191 (2017).

15 Hall v. State , 264 Neb. 151, 646 N.W.2d 572 (2002).

16 Id . at 158, 646 N.W.2d at 578.- 930 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
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### ineffective assistance of counsel claim in a postconviction action. We disagree. Hall simply recognized the proper proce

dure for raising a constitutional claim within a criminal pros

ecution—it spoke to the procedure for alleging such claims. It did not, as Ross suggests, presume the validity of such claims. Whenever a claim of ineffective assistance is raised, a court must analyze whether the defendant has sufficiently alleged deficient performance resulting in prejudice. 17 

### We focus here on whether Ross has sufficiently alleged that his trial and appellate counsel performed deficiently. Ross’ postconviction motion alleged his counsel was deficient for failing to raise a constitutional challenge to § 28-1212.04. [9] We addressed a nearly identical postconviction claim in State v. Sanders

. 18 

### There, we held that trial counsel did not perform in a deficient manner when he failed to raise a con

stitutional challenge to § 28-1212.04. We reasoned “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.” 19 

### That same rationale applies to this case. Ross was tried in 2010, and his direct appeal was decided in 2012. At that time, no appellate court had been presented with a constitutional challenge to § 28-1212.04. We decided Sanders 2 years later. Given our holding in Sanders that counsel’s failure to raise a novel constitutional challenge to § 28-1212.04 did not consti

tute deficient performance, we fail to see how Ross’ trial coun

sel could be found deficient for not asserting such a challenge even earlier. [10] “‘The Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not [e]nsure that defense counsel will recognize and raise every conceivable

17 See Strickland v. Washington, supra note 11.

18 State v. Sanders, supra note 3.

19 Id . at 343, 855 N.W.2d at 357.- 931 - N ebraska S upreme C ourt A dva nc e S heets 296 N ebraska R eports
STATE v . ROSS
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### constitutional claim.’” 20 

### Ross’ postconviction motion did not contain factual allegations which would constitute deficient performance under Strickland v. Washington . No evidentiary hearing was required. 21



### CONCLUSION For the foregoing reasons, we find Ross’ direct challenges to the constitutionality of § 28-1212.04 are procedurally barred. And we conclude his ineffective assistance of counsel claim does not entitle him to an evidentiary hearing, because the allegations cannot support a finding of deficient performance. We affirm the denial of postconviction relief. A ffirmed



### .

20 Id. at 342, 855 N.W.2d at 356, quoting Engle v. Isaac , 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982).

21 See, State v. Ware, supra note 7; State v. Sellers, supra note 7.