State v. Assad

Summary

The Nebraska Supreme Court held that Jason Assad was required to demonstrate both deficient performance and actual prejudice to prevail on his ineffective-assistance-of-appellate-counsel claim. Although appellate counsel raised only issues that were not preserved for review and the direct appeal was summarily affirmed, the court concluded that these circumstances did not warrant a presumption of prejudice or a new direct appeal. The court affirmed the Nebraska Court of Appeals’ judgment denying postconviction relief.

Holdings

1. Prejudice is not presumed when appellate counsel files a brief and pursues an appeal but raises only issues that were not preserved for appellate review. Such a claim is treated as an allegation that counsel raised some issues rather than others and is governed by the ordinary Strickland requirement of proving prejudice.
2. Assad was required to show both deficient performance and actual prejudice under Strickland, and because he made no attempt to demonstrate prejudice, his postconviction claim was properly denied without an evidentiary hearing.
3. Nebraska appellate courts review de novo whether a postconviction defendant failed to allege sufficient facts showing a constitutional violation or whether the files and record affirmatively show that the defendant is entitled to no relief.

Questions Presented

1. Whether prejudice should be presumed under Strickland when appellate counsel raises only issues that were not preserved for appellate review, rather than asserting that trial counsel was ineffective for failing to preserve those issues.
2. Whether Assad was entitled to postconviction relief or an evidentiary hearing despite failing to allege or demonstrate a reasonable probability that the result of his direct appeal would have been different.

Disposition

affirmed