S-16-0131, State v. Michael L. Ross (Appellant)
Douglas County, Judge Duane C. Dougherty
Attorneys: Gerald L. Soucie (Appellant) --- Kimberly A. Klein (Attorney General's Office)
Civil: Postconviction
Proceedings below: The court denied an evidentiary hearing on the allegations in Appellant's 1st amended motion and denied motions to take depositions. The motion was dismissed.
Issues: 1. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND ONE that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is a facially unconstitutional criminal statute which creates small geographic areas of enforcement and other areas of immunity for the identical conduct in violation of Neb. Const. Art. III, ' 18 and the decision in Galloway v. Wolfe, 117 Neb. 824, 223 N.W. I (1929) and its progeny. 2. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND TWO that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is a facially unconstitutional criminal statute which creates geographic areas of enforcement verses other areas of immunity for the identical conduct without any rational basis for the distinction in violation of Neb. Const. Art. I, ' 16 and Equal Protection Clauses of Neb. Const. Art. I, ' 3 and the Fourteenth Amendment to the United States Constitution. 3. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND THREE that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is facially unconstitutional because the geographic areas of enforcement and areas of immunity for the identical conduct invidiously discriminates against a protected class because African-Americans, such as Mr. Ross, (and other minorities) are disproportionately represented in the area of enforcement in violation of the Equal Protection Clauses of Neb. Const. Art.I, $ 3 and the Fourteenth Amendment to the United States Constitution, and the decision in Hunter v . Underwood, 471 U .S. 222,105 S.Ct 1916 (1985). 4. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND FOUR that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is unconstitutional as applied to Mr. Ross and other African-Americans because the geographic areas of enforcement and areas of immunity for the identical conduct invidiously discriminates against a protected class because African-Americans (and other minorities) are disproportionately charged in violation of the Equal Protection Clauses of Neb. Const. Art. I, ' 3 and the Fourteenth Amendment to the United States Constitution and the decision in Hunter v. Underwood, supra. 5. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND SIX that alleged Mr. Ross did not receive effective assistance of counsel at trial and on direct appeal in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and the decision in Strickland v. Washington, 46 U.S. 668, 104 S.Ct. 2052 (1984) and its progeny for failing to move to quash the Amended Information because of the unconstitutionality of Neb. Rev. Stat. 28-1212.14 both facially and as applied, both at the trial and appellate level, as set forth in assignments of error above.