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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

STATE v. ROSS

Cite as 296 Neb. 923

State of Nebraska, appellee, v. 

Michael L. Ross, appellant.

___ 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 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 

Nebraska Supreme Court Online Library

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

09/08/2017 01:11 AM CDT
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STATE v. ROSS

Cite as 296 Neb. 923

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 

1 State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012).
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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 direction 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 constitutionality 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 unconstitutional and unconstitutional as applied to him, based on 

theories of special legislation and equal protection. Generally, 

2 Id.
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STATE v. ROSS

Cite as 296 Neb. 923

he alleged § 28-1212.04 is special legislation in violation 

of Neb. Const. art. III, § 18, because it criminalizes behavior 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 conducting an evidentiary hearing. It found Ross’ direct challenges to the constitutionality of § 28-1212.04 were procedurally 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 allegation that § 28-1212.04 is facially unconstitutional, in violation 

3 State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014).
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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 geographic 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 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.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 independently of the lower court’s conclusion.6

ANALYSIS

[3] 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 

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).
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that the movant is entitled to no relief, no evidentiary hearing 

is required.7

Constitutional Challenges Are

Procedurally Barred

[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 remedy prejudicial constitutional violations.8

 A motion for postconviction relief cannot be used to secure review of issues which 

were or could have been litigated on direct appeal.9 We therefore affirm the denial of postconviction relief as to the direct 

constitutional challenges.

Counsel Was Not Ineffective

[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’ ineffective 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).
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STATE v. ROSS

Cite as 296 Neb. 923

the burden, in accordance with Strickland v. Washington,

11 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.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 available. We stated:

This [constitutional] issue could have been raised by 

conventional forms of remedy within the criminal prosecution. In a criminal prosecution, a defendant can bring 

a constitutional challenge to the facial validity of the statute 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 challenging 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.
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Cite as 296 Neb. 923

ineffective assistance of counsel claim in a postconviction 

action. We disagree. Hall simply recognized the proper procedure for raising a constitutional claim within a criminal prosecution—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 constitutional 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 constitute deficient performance, we fail to see how Ross’ trial counsel 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.
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STATE v. ROSS

Cite as 296 Neb. 923

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.

Affirmed.

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.