State v. Assad ( 2020 )

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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. ASSAD
Cite as 304 Neb. 979
State of Nebraska, appellee,
v. Jason Assad, appellant.
___ N.W.2d ___
Filed February 7, 2020. No. S-17-1193.
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. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
3. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
4. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Riedmann and Bishop, Judges, on
appeal thereto from the District Court for Cheyenne County,
Derek C. Weimer, Judge. Judgment of Court of Appeals
affirmed.
Gerald L. Soucie and Brian S. Munnelly for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
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STATE v. ASSAD
Cite as 304 Neb. 979
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Papik, J.
After Jason Assad was convicted of several criminal offenses,
he appealed. The only errors his appellate counsel initially
assigned, however, pertained to issues that were not preserved
for appellate review. And although his counsel later sought
leave to assert that trial counsel was ineffective in failing to
preserve issues for appeal, those attempts were unsuccessful
and Assad’s convictions were summarily affirmed. Assad now
seeks postconviction relief, asserting that his appellate coun-
sel was ineffective and arguing that, unlike most defendants
asserting ineffective assistance of counsel, he is not required
to demonstrate that he was prejudiced as a result of coun-
sel’s deficient performance. The district court rejected Assad’s
argument that he was entitled to a presumption of prejudice
and denied his motion for postconviction relief without an
evidentiary hearing. The Nebraska Court of Appeals affirmed,
but did not address Assad’s argument regarding a presumption
of prejudice.
Upon further review, we find this is not a circumstance in
which prejudice is presumed, but, rather, Assad is required to
demonstrate that his counsel performed deficiently and that
he was actually prejudiced as a result of that deficient per­
formance. Because Assad has not even attempted to demon-
strate prejudice, we find that he is not entitled to postconvic-
tion relief and affirm.
BACKGROUND
Assad’s Convictions.
On the morning of September 14, 2014, police in Sidney,
Nebraska, received a call from an individual who reported
hearing the sound of a woman’s scream coming from a nearby
motel. Assad and his wife lived at the motel at the time. A
police officer went to the motel to investigate. After the offi-
cer was unable to make contact with anyone at the motel, he
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obtained a search warrant. During the execution of the search
warrant, officers entered the room in which Assad and his wife
resided. There, the officers were confronted by Assad, who was
yelling profanities. The officers later found Assad’s wife with
injuries to her head and face. They also found what appeared to
be evidence of narcotics. The officers then obtained additional
search warrants. During the execution of the additional search
warrants, officers seized surveillance videos, which included
footage from the inside of the motel room. Officers continued
to investigate and determined that Assad had possession of a
knife and a rifle in the motel room and that he had previously
been convicted of a felony.
Assad was later charged with possession of a weapon by a
prohibited person, first degree false imprisonment, terroristic
threats, use of a weapon to commit a felony, and possession
of a firearm by a prohibited person. Prior to trial, he filed a
series of suppression motions, each of which sought to sup-
press evidence obtained through the September 14, 2014,
searches. The district court held a hearing on the motions to
suppress and denied the motions, concluding that the searches
were done pursuant to valid search warrants and, alternatively,
that the good faith exception recognized in United States
v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984), applied.
At trial, when the State introduced evidence seized through
the September 14, 2014, searches, Assad did not renew the
objections he made in his pretrial motions to suppress. A jury
found Assad guilty of each of the charged offenses listed
above. Assad was later found to be a habitual criminal at a
sentencing enhancement hearing. He was sentenced to an
aggregate period of 35 to 60 years’ imprisonment.
Direct Appeal.
Assad’s trial counsel filed a notice of appeal, but shortly
thereafter new counsel entered an appearance and his trial
counsel was granted leave to withdraw. His appellate counsel
later filed a 40-page brief assigning two errors on appeal, both
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STATE v. ASSAD
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of which addressed the denial of Assad’s pretrial motions to
suppress. The brief contained arguments that evidence seized
in the search of his residence should be suppressed, because
officers violated his Fourth Amendment rights when they
entered his residence, and that evidence seized after the search
of his residence should be suppressed as fruit of the poison-
ous tree.
The State responded by filing a motion for summary affirm­
ance. In support of its motion, the State noted that Assad’s
trial counsel had not objected at trial to the evidence that was
the subject of the motions to suppress. As a result, the State
contended, Assad’s arguments that evidence should have been
suppressed were not properly preserved for appellate review.
Following the State’s motion for summary affirmance,
Assad’s appellate counsel filed a motion requesting leave
to file a revised brief. The motion stated that the revised
brief would “address issues raised in [the State’s] Motion for
Summary Affirmance.” Attached to the motion was a proposed
revised brief, which added a new assignment of error alleg-
ing that trial counsel’s failure to object at trial to the evidence
Assad previously sought to suppress constituted ineffective
assistance of counsel. The Court of Appeals denied leave to
file the revised brief. It later granted the State’s motion for
summary affirmance. The Court of Appeals’ disposition stated
in full:
Motion of appellee for summary affirmance sustained;
judgment affirmed. See Neb. Ct. R. App. P. § 2-107(B)(2);
State v. Podrazo, 21 Neb. Ct. App. 489, 840 N.W.2d 898
(2013) (defendant must object at trial to the admission of
evidence sought to be suppressed to preserve an appellate
question concerning admissibility of that evidence).
Assad’s appellate counsel subsequently filed a motion to
file a supplemental brief. This motion attached a proposed
supplemental brief containing a single assignment of error:
that trial counsel’s failure to object at trial to the evidence
that was the subject of the suppression motions constituted
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ineffective assistance of counsel. The Court of Appeals denied
the motion.
Assad’s appellate counsel then filed a petition for further
review on Assad’s behalf. This court denied the petition for
further review.
Postconviction Proceedings.
After the conclusion of the direct appeal proceedings, Assad,
represented by yet another attorney, filed a verified motion
for postconviction relief. The postconviction motion asserted
various claims for relief. One layered claim of ineffective
assistance of counsel is relevant for present purposes. Assad
alleged that his appellate counsel’s failure to allege ineffective
assistance on the part of his trial counsel constituted ineffec-
tive assistance of appellate counsel. Assad claimed his appel-
late counsel should have asserted that trial counsel’s failure to
preserve a number of issues for appellate review, including the
claim that the motions to suppress should have been granted,
amounted to ineffective assistance.
The State filed a motion to dismiss the postconviction
motion without an evidentiary hearing. Assad filed a brief in
opposition. In the brief, Assad claimed that as a result of appel-
late counsel’s performance, he was denied all appellate review
and was entitled to a new direct appeal.
The district court granted the State’s motion to dismiss and
denied Assad’s motion for postconviction relief without an evi-
dentiary hearing. In a written order, the district court rejected
Assad’s argument that he was entitled to a new direct appeal.
Instead, it concluded that Assad was entitled to relief under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984) (Strickland), only if he could show that his
counsel was deficient and that this deficient performance preju-
diced him. With respect to Assad’s layered claim of ineffec-
tive assistance of counsel, the trial court concluded that Assad
could not show prejudice because the arguments he claimed
counsel should have presented lacked merit.
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STATE v. ASSAD
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Court of Appeals.
Assad appealed to the Court of Appeals. Among his assign-
ments of error was a contention that the district court erred in
rejecting his layered claim of ineffective assistance of counsel.
He argued that under cases such as State v. Trotter, 259 Neb.
212, 609 N.W.2d 33 (2000), he should not have been required
to prove prejudice, because prejudice should be presumed, and
that he was thus entitled to a new direct appeal.
The Court of Appeals affirmed the district court’s order.
State v. Assad, No. A-17-1193, 2019 WL 951169 (Neb. App.
Feb. 26, 2019) (selected for posting to court website). The
Court of Appeals observed that, with one exception not rel-
evant here, Assad did not make any specific argument on
appeal as to why his trial counsel’s failures to preserve issues
for appellate review amounted to ineffective assistance. It thus
concluded that Assad had not sufficiently argued his claim that
appellate counsel was ineffective for not asserting a layered
claim of ineffective assistance of counsel and did not consider
its merits.
Petition for Further Review.
Assad filed a petition for further review. His sole assignment
of error was that the Court of Appeals erred by affirming the
district court’s dismissal of his ineffective assistance of appel-
late counsel claim. He again argued that, under the circum-
stances, prejudice should be presumed and that he should have
been awarded a new direct appeal for his appellate counsel’s
deficient performance.
We granted Assad’s petition for further review. We directed
the parties to file supplemental briefs addressing whether,
under the circumstances, Assad was required to demonstrate
prejudice under Strickland or whether this is a case in which
prejudice is presumed.
ASSIGNMENT OF ERROR
As noted above, Assad assigns one error in his petition for
further review. He contends that the Court of Appeals erred
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STATE v. ASSAD
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by affirming the district court’s denial of relief on his claim
for ineffective assistance of appellate counsel. He argues that,
under the circumstances, he is entitled to a presumption of
prejudice and a new direct appeal.
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 affirm­
atively show that the defendant is entitled to no relief. State v.
Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
ANALYSIS
Question at Issue:
Is Prejudice Presumed?
In most cases in which ineffective assistance of counsel is
alleged, the case turns on whether the defendant can satisfy
both parts of the familiar two-part framework of Strickland.
Under that framework, a defendant must show that his or her
counsel’s performance was deficient and that counsel’s defi-
cient performance actually prejudiced the defense in his or
her case. Martinez, supra. This case is different. It is different
because Assad does not even attempt to show that his defense
was prejudiced as a result of his appellate counsel’s allegedly
deficient performance.
The Court of Appeals essentially concluded that because
Assad did not make an argument as to prejudice, he had not
presented sufficient argument in support of his ineffective
assistance of appellate counsel claim. See State v. Assad,
No. A-17-1193, 2019 WL 951169 (Neb. App. Feb. 26, 2019)
(selected for posting to court website). From the beginning
of this postconviction proceeding, however, Assad has con-
sistently argued that because prejudice is presumed, he is not
required to demonstrate prejudice and is entitled to a new
direct appeal. We will thus proceed to consider if this is indeed
a case in which a presumption of prejudice arises. We will do
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STATE v. ASSAD
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so by first reviewing the applicable legal standards and then by
applying those standards to this case.
Legal Standards Regarding
Presumed Prejudice.
[2-4] As noted above, generally to prevail on a claim of
ineffective assistance of counsel, the defendant must show
both deficient performance and prejudice. See State v. Avina-
Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018). To show
that counsel’s performance was deficient, a defendant must
show that counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. Id. To
show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. Id. These
familiar general elements of a claim of ineffective assistance
of counsel were set forth in the U.S. Supreme Court’s opinion
in Strickland.
There are some cases, however, in which a defendant assert-
ing ineffective assistance need not demonstrate prejudice in
order to prevail. In Strickland and in United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984),
another ineffective assistance of counsel opinion issued the
same day as Strickland, the U.S. Supreme Court recognized
that in some situations, prejudice is presumed. In Strickland,
the Court stated that “[a]ctual or constructive denial of the
assistance of counsel altogether” and “various kinds of state
interference with counsel’s assistance” would result in a pre-
sumption of prejudice. 466 U.S. at 692. In Cronic, the Court
held that prejudice would also be presumed if “counsel entirely
fails to subject the prosecution’s case to meaningful adversarial
testing.” 466 U.S. at 659. These circumstances, the Cronic
Court observed, “are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.”
466 U.S. at 658.
In the years following Strickland and Cronic, the U.S.
Supreme Court has made clear that in order for prejudice to
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be presumed as a result of counsel’s inadequate performance,
the failure must be extreme. In Bell v. Cone, 535 U.S. 685,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Sixth Circuit
Court of Appeals applied a presumption of prejudice in a case
in which defense counsel in a first degree murder trial waived
his closing argument in a sentencing proceeding that ultimately
resulted in a death sentence. The U.S. Supreme Court reversed.
It explained that the presumption of prejudice based on an
attorney’s failure to test the prosecution’s case recognized in
Cronic was limited to cases in which the attorney’s failure to
do so was “complete.” Bell, 535 U.S. at 697. A presumption
was not appropriate in Bell, the Court reasoned, because the
defendant was merely arguing that his counsel failed to oppose
the prosecution at specific points of the sentencing proceeding
rather than throughout.
Two years later in Florida v. Nixon, 543 U.S. 175, 125 S. Ct.
551, 160 L. Ed. 2d 565 (2004), the U.S. Supreme Court again
reversed a lower court’s decision, holding that a presumption
of prejudice was not called for under the circumstances. In that
case, defense counsel conceded the defendant’s guilt without
the defendant’s consent. The Court held that a presumption of
prejudice was not warranted and described the presumption of
prejudice as a “narrow exception” to Strickland that will arise
“infrequently.” Nixon, 543 U.S. at 190.
The cases discussed to this point have considered the gen-
eral principles that determine whether a presumption of preju-
dice ought to apply to an ineffective assistance of counsel
claim. The U.S. Supreme Court has also, in a number of cases,
considered whether a presumption of prejudice was appropriate
in cases in which ineffective assistance of appellate counsel
was alleged.
In the appellate context, the U.S. Supreme Court has held
that the presumption of prejudice applies when the accused is
deprived of the assistance of counsel on appeal. See Penson v.
Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988).
It reached this conclusion by relying on the language in
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Strickland and United States v. Cronic, 466 U.S. 648, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984), explaining that a presump-
tion of prejudice is appropriate upon the actual or constructive
denial of counsel. See Penson, supra.
Reasoning that a denial of an appeal altogether is even more
serious than the denial of counsel during an appeal, the U.S.
Supreme Court has also held that a presumption of prejudice
arises if counsel fails to file a notice of appeal when requested
to do so by the defendant. See Roe v. Flores-Ortega, 528
U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). In that
circumstance, the Court has held that the proper remedy is to
afford the defendant a new opportunity to appeal. See Garza v.
Idaho, ___ U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019).
We have held the same. See State v. Trotter, 259 Neb. 212, 609
N.W.2d 33 (2000).
With these principles in mind, we turn to whether a pre-
sumption of prejudice ought to apply in this case.
Does Presumption of Prejudice
Apply Here?
In considering whether prejudice should be presumed here,
we reject at the outset Assad’s argument that this case is
directly controlled by Garza, supra, and Flores-Ortega, supra.
As explained above, in those cases, the U.S. Supreme Court
held that prejudice is presumed when counsel fails to file a
notice of appeal as requested by the defendant, thereby depriv-
ing the defendant of a desired appeal altogether. In this case,
a notice of appeal was filed on Assad’s behalf. And although
the Court of Appeals resolved the appeal summarily, it consid-
ered the issues raised on appeal and affirmed the convictions
rather than dismissing the appeal. Assad was thus not denied a
direct appeal entirely, and this case cannot be quickly resolved
in his favor with nothing more than a citation to Garza and
Flores-Ortega.
Even if not directly governed by Garza and Flores-Ortega,
Assad nonetheless urges us to find that prejudice is presumed
here because, in his words, he “effectively received no direct
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appeal.” Supplemental brief for appellant on petition for fur-
ther review at 13. We are not aware, however, of any cases
of the U.S. Supreme Court that would characterize the set of
circumstances here as equivalent to the complete denial of an
appeal. And, as we will explain, what the U.S. Supreme Court
has said about a presumption of prejudice in the appellate con-
text leads us to conclude that a presumption of prejudice is not
warranted in this case.
In Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 145
L. Ed. 2d 756 (2000), another case in which a party alleging
ineffective assistance of appellate counsel argued for a pre-
sumption of prejudice, the U.S. Supreme Court drew a distinc-
tion between a “denial of counsel altogether on appeal” and
“mere ineffective assistance of counsel on appeal.” The former,
the Court explained, warranted a presumption of prejudice
while the latter did not.
Although appellate counsel’s performance in this case may
well have been deficient, we think it unfair to characterize it
as amounting to nothing. As we have noted, Assad’s counsel
filed a 40-page appellate brief, which assigned multiple errors.
Additionally, once the State filed its motion for summary
affirm­ance, Assad’s counsel made multiple attempts to raise
additional assignments of error in the Court of Appeals and
sought further review in this court. Just as it cannot be said
that Assad was denied an appeal, it cannot be said that Assad
effectively went without appellate counsel.
This is not to say that the performance of Assad’s appel-
late counsel was flawless. Indeed, all involved recognize that
Assad’s counsel made a serious mistake by only assigning error
to the district court’s admission of evidence challenged in the
motions to suppress rather than asserting that trial counsel was
ineffective for failing to preserve the right to raise the motions
to suppress on appeal. Again, however, Smith, supra, indicates
that this type of alleged error—raising some issues rather than
others—is subject to the usual Strickland requirements rather
than the presumed prejudice exception.
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STATE v. ASSAD
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In Smith, the U.S. Supreme Court acknowledged that appel-
late counsel can provide deficient performance by “‘ignor[ing]
issues [that] are clearly stronger than those presented.’” 528
U.S. at 288, quoting Gray v. Greer, 800 F.2d 644 (7th Cir. 1986).
The Court made clear, however, that a defendant attempting to
establish a claim of ineffective assistance of appellate counsel
on the theory that counsel raised the wrong issues must estab-
lish traditional Strickland prejudice, i.e., demonstrate a rea-
sonable probability that the outcome of the proceeding would
have been different had counsel raised a different argument.
In Penson v. Ohio, 488 U.S. 75, 88, 109 S. Ct. 346, 102 L.
Ed. 2d 300 (1988), the Court did the same, distinguishing the
case before it in which prejudice was properly presumed from
a case in which “counsel fails to press a particular argument
on appeal.”
To all this, we imagine that Assad would likely contend that
even if defendants generally must prove prejudice when assert-
ing that counsel performed deficiently by raising the wrong
appellate issues, this should be treated as an exceptional case
given that Assad’s appellate counsel raised only issues that
were not preserved for appellate review. But again, language
from the U.S. Supreme Court leads us to conclude this case is
subject to the usual Strickland rule.
In Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L.
Ed. 2d 914 (2002), when discussing whether prejudice ought
to be presumed when counsel waived closing argument in a
sentencing proceeding, the Court noted that the difference
between circumstances in which prejudice is presumed and in
which prejudice must be proved under Strickland “is not of
degree but of kind.” We read this language to undercut any
notion that a presumption of prejudice might apply in some
exceptional cases in which it is alleged that appellate counsel
should have raised additional arguments. Appellate counsel
may have failed to a serious degree in this case, but that failure
does not differ in kind from other cases in which a defendant
alleges that his appellate counsel raised the wrong issues on
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appeal and, as discussed, defendants must prove prejudice
under those circumstances.
Given our understanding of the U.S. Supreme Court’s pro-
nouncements in this area, we are unpersuaded by the arguments
Assad presents based on decisions of other courts. Some of
the decisions Assad cites in which a presumption of prejudice
was found to apply are cases in which counsel failed to file an
appellate brief and, for that reason, the appeal was dismissed.
See, e.g., Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011);
People v. Moore, 133 Ill. 2d 331, 549 N.E.2d 1257, 140 Ill.
Dec. 385 (1990). But in cases like those, the appellate court
does not consider any issues and the appeal is dismissed as a
result of appellate counsel’s failure. It is thus, at least arguably,
not meaningfully different from a case in which counsel fails
to perfect an appeal when requested to do so by the defendant
and the defendant is denied an appeal altogether. In contrast,
Assad’s appellate counsel did file a brief and his appeal was
not dismissed. The Court of Appeals gave consideration to the
errors assigned, but found they were not properly preserved,
and affirmed.
Another case Assad directs us to, Hendricks v. Lock, 238
F.3d 985 (8th Cir. 2001), presents a slightly different sce-
nario, but, in our view, it is also unavailing. In Hendricks, the
Eighth Circuit determined that prejudice should be presumed
in a case in which appellate counsel filed a brief, but the
Missouri Supreme Court refused to address the issues raised
because it found that the brief lacked any reasoned arguments
and thus “‘provide[d] nothing for meaningful review.’” 238
F.3d at 986, quoting State v. Hendricks, 944 S.W.2d 208 (Mo.
1997). The Eighth Circuit distinguished the circumstances
from a case in which it was alleged that counsel failed to raise
a particular issue, concluding that prejudice was presumed
because the inadequacy of the appellate brief led the Missouri
Supreme Court to decline to address the issues the defendant
raised on appeal.
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We believe the reasoning of the Eighth Circuit in Hendricks
actually supports our determination that prejudice should not
be presumed here. The failure on the part of Assad’s appellate
counsel was not a failure to provide argumentation in support
of the issues raised; it was a failure to assert particular issues
on appeal. Hendricks indicates that prejudice is not presumed
in the latter circumstance.
For similar reasons, we are also not persuaded by Assad’s
reliance on a concurring opinion in State v. Sundquist, 301
Neb. 1006, 921 N.W.2d 131 (2019) (Cassel, J., concurring;
Miller-Lerman, J., joins). In Sundquist, counsel failed to file a
statement of errors in an appeal from county court to district
court. The State conceded that this was deficient performance,
but this court found that there was no prejudice. The concur-
ring opinion emphasized the importance of filing a timely
statement of errors and suggested that a presumption of preju-
dice might have been appropriate if not for the district court’s
consideration of the defendant’s argument for prejudicial error,
even though the failure to file a statement of errors would have
justified a more “cursory review by the district court for plain
error.” Id. at 1026, 921 N.W.2d at 146 (Cassel, J., concurring;
Miller-Lerman, J., joins).
Assad argues that his direct appeal received the same type
of cursory review the concurring opinion in Sundquist sug-
gested might give rise to a presumption of prejudice. We do
not agree. The Court of Appeals did summarily affirm Assad’s
direct appeal, but it did not review the errors assigned for mere
plain error or under some other cursory standard of review. The
summary affirmance was not the result of a cursory standard
of review, but, rather, the unpreserved issues appellate counsel
raised. And, as we have explained, an assertion that counsel
ineffectively raised some issues rather than others requires a
showing of prejudice.
Though cited by neither party, we believe it also appropri-
ate to mention a decision of the Pennsylvania Supreme Court,
given its similarity to the facts of this case. In Commonwealth
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v. Rosado, 637 Pa. 424, 150 A.3d 425 (2016), much like this
case, the only issue appellate counsel raised on appeal was an
issue that was not properly preserved in the trial court. The
Pennsylvania Supreme Court found that prejudice should be
presumed. It reasoned that there was no meaningful difference
between an attorney who completely fails to file a notice of
appeal “and one who makes all necessary filings, but does
so relative solely to claims he has not preserved for appeal,
producing the same end.” Id., 637 Pa. at 439-40, 150 A.3d
at 434.
It appears that Assad would be entitled to a presumption of
prejudice under the reasoning articulated by the Pennsylvania
Supreme Court in Rosado. We, however, respectfully disagree
with the conclusion that the raising of unpreserved claims is
equivalent to the complete failure to file a requested notice
of appeal for purposes of deciding whether a presumption of
prejudice arises.
It is of course true that a defendant will not obtain relief on
direct appeal both when appellate counsel fails to file a notice
of appeal and when appellate counsel raises only unpreserved
issues, but the same could be said of any case in which appel-
late counsel raises issues lacking merit and the defendant later
claims that others should have been raised. But when a claim
is made that appellate counsel was ineffective for raising some
issues rather than others, the U.S. Supreme Court has made
clear that prejudice must be shown. And, in our view, Assad,
by asserting that his counsel was ineffective for raising only
unpreserved issues, is raising just this type of claim.
Proving Prejudice Under Strickland.
For all the reasons we have discussed, we do not believe this
is a case in which prejudice is presumed. That does not mean,
however, that Assad had no opportunity to establish a claim
of ineffective assistance of appellate counsel. Instead, just as
in most other cases in which a defendant alleges ineffective
assistance, Assad would be entitled to relief under Strickland
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if he could prove that his appellate counsel’s performance was
deficient and that he suffered prejudice as a result of that defi-
cient performance.
In this case, Assad likely would have had little problem
establishing deficient performance. His entitlement to relief
would thus depend solely on whether he could demonstrate
a reasonable probability that, but for his appellate counsel’s
deficient performance, the result of his appeal would have
been different. This would require a showing that had his
trial counsel properly preserved issues for appellate review,
there was a reasonable probability that his direct appeal
would have resulted in something other than his convictions
being affirmed.
Assad has never attempted to make such a showing. Instead,
he has relied exclusively on his argument that prejudice is
presumed and he is entitled to a new direct appeal. Because
we find that prejudice is not presumed and because Assad has
not attempted to demonstrate prejudice, his motion for post-
conviction relief based on a claim of ineffective assistance
of appellate counsel was properly denied without an eviden-
tiary hearing.
CONCLUSION
For the reasons discussed above, we find that Assad was
required to demonstrate prejudice under Strickland and that he
failed to do so. We therefore affirm the decision of the Court
of Appeals.
Affirmed.
Freudenberg, J., not participating.