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07/28/2017 09:09 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                                    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 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
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska 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: 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,
K elch, 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 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).
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            Nebraska Supreme Court A dvance Sheets
                    296 Nebraska 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.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                 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 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).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska 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).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                  STATE v. ROSS
                                Cite as 296 Neb. 923

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

                 Constitutional Challenges A re
                       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 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.

                 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’ 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).
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                 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, 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.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                 STATE v. ROSS
                               Cite as 296 Neb. 923

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.
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                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                                 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.
                                                    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.
