Ineffective Assistance of Counsel in Nebraska: the Scope of the Nebraska Supreme Court's Analysis in State v. Rocha, 286 Neb. 256, 836 N.w.2d 774 (2013), and the Effects of the Postconviction Procedural Default Rule

• Publication year: 2021

93 Nebraska L. Rev. 495. Ineffective Assistance of Counsel in Nebraska: The Scope of the Nebraska Supreme Court's Analysis in State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013), and the Effects of the Postconviction Procedural Default Rule

Ineffective Assistance of Counsel in Nebraska: The Scope of the Nebraska Supreme Court's Analysis in State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013), and the Effects of the Postconviction Procedural Default Rule

TABLE OF CONTENTS

I. Introduction .......................................... 496

II. Background ........................................... 498

A. Ineffective Assistance of Counsel Claims ........... 498
1. Sixth Amendment Right to Counsel ............ 498
2. Appellate Review and Claims of Ineffective Assistance ..................................... 499

III. Analysis .............................................. 500
A. Ineffective Assistance of Counsel in Nebraska: State v. Faust ........................................... 500
B. State v. Rocha ..................................... 502
1. Facts and Procedural History .................. 502
2. Majority Opinion .............................. 502
3. Dissenting Opinion ............................ 503

IV. Argument ............................................. 504
A. The Nebraska Supreme Court Should Clarify Its Standard for Future Cases ........................ 504
1. The Court's Analysis in Rocha Could Be Interpreted as Creating a Broader Rule than That Articulated in Faust ...................... 504

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2. The Court Has a Strong History of Deferring Claims for Postconviction Review .............. 505
3. The Test Articulated in Rocha Should Be Reformed ...................................... 507
4. A Return to Faust or a Clearer Standard ....... 508
B. Ineffectiveness Claims Should Be Excluded from Procedural Default Rules .......................... 509
1. The Postconviction Procedural Default Rule . . . . 509
2. Subjecting Ineffectiveness Claims to Procedural Default Frustrates the Purpose of the Procedural Rules .............................. 510
a. The Wrong Forum at the Wrong Time ...... 510
b. Inefficiencies Created by Procedural Default .................................... 514
3. Proposed Change for Ineffectiveness Claims . . . . 515

V. Conclusion ............................................ 516

I. INTRODUCTION

Criminal defendants have a constitutional right to effective assistance of counsel.(fn1) In Nebraska, defendants can enforce this right either on direct appeal or through a postconviction proceeding.(fn2) In either forum, a defendant must show that his counsel's performance was deficient.(fn3) When determining whether counsel's performance was deficient, the court must not judge counsel's performance in hindsight, but from his perspective at the time he provided the assistance.(fn4) Judging counsel's actions from his perspective at the time he rendered assistance is a difficult task on direct appeal, because the trial record does not reflect why an attorney did something or what he knew when he did it-it only reflects the act or decision itself. This difficulty is particularly relevant when an ineffectiveness claim turns on trial strategy and not an obvious mistake of law or other inappropriate attorney behavior. Because the record is inadequate, ineffective assistance claims that turn on trial strategy are usually deferred to a postconviction proceeding when raised on direct appeal, where an evidentiary hearing can be used to reveal the motives behind counsel'schosen strategy.(fn5)

Recently, the Nebraska Supreme Court took up two ineffectiveness claims on direct appeal that rested on trial strategy: State v. Faust(fn6)

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and State v. Rocha.(fn7) The court overturned both convictions, reasoning in each case that because the court could not conceive of any reasonable trial strategy supporting the attorney's approach, there was no reason to wait for an evidentiary hearing on the matter.(fn8) It concluded that it would have been a waste of judicial time to defer the ineffectiveness claims for an evidentiary hearing on counsels' motives because the ineffectiveness was clear on the trial record.(fn9)

This Note argues that the Nebraska Supreme Court extended the scope of its review of ineffectiveness claims in Rocha, and the test the court applied in Rocha needs reform. Part II explains the standard for ineffective assistance claims under Strickland v. Washington(fn10) and examines the Nebraska Supreme Court's analysis in Faust. Part III looks closely at the Rocha decision, and Part IV compares the analyses employed by the Nebraska Supreme Court in Faust and Rocha. It argues that although the court claimed its decision in Rocha was in line with Faust, the court's reasoning in Rocha actually expanded the scope of the court's review of ineffective assistance claims significantly. It asserts that, consistent with the court's concern for conservation of judicial resources, the Nebraska Supreme Court should reform the test it applied in Rocha.

Subsection IV.B argues that reforming the Rocha test is not enough to correct Nebraska's approach; the Nebraska Supreme Court should also stop applying the postconviction procedural default rule to the claims. Nebraska's use of the procedural default rule pressures defendants into raising ineffectiveness claims on direct appeal that could never be resolved there, a result inconsistent with the policies behind the rule. Nebraska's appellate courts must then address the claims prematurely, potentially wasting judicial resources(fn11) and harming defendants.(fn12) Additionally, in a postconviction proceeding, more resources are wasted when the court must analyze whether the claim is defaulted before it can turn to the merits.(fn13) The sounder policy, endorsed by the Supreme Court of the United States and the great majority of states, is to allow defendants to bring ineffectiveness claims in the first instance in a collateral proceeding,(fn14) no matter the

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state of the record.(fn15) This dual reform is necessary to conserve Nebraska's judicial resources and protect Nebraska defendants.

II. BACKGROUND

A. Ineffective Assistance of Counsel Claims

1. Sixth Amendment Right to Counsel

Under the Sixth Amendment to the Constitution of the United States, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."(fn16) The Sixth Amendment guarantees more than the right to just any coun-sel-"the right to counsel is the right to effective assistance of coun-sel."(fn17) This right "exists, and is needed, in order to protect the fundamental right to a fair trial."(fn18) Courts judge whether counsel provided effective assistance under the standard set out in Strickland v. Washington.(fn19)

Under Strickland, a court must reverse a defendant's conviction because of ineffective assistance if the defendant can show two components:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.(fn20)

The standard for attorney performance is "reasonably effective assis-tance."(fn21) The Court in Strickland also cautioned that "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it was proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."(fn22)To prevent this, a court must make every effort "to evaluate the conduct from counsel's perspective at the time"(fn23) and to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."(fn24) Strickland's presumption of 4

reasonableness creates a difficult hurdle for direct appellate review of ineffectiveness claims based on counsel's trial strategy.

2. Appellate Review and Claims of Ineffective Assistance

The state of the trial record makes ineffectiveness claims an awkward fit for direct appellate review.(fn25) Generally, an appellate court will only consider issues that were raised at trial and therefore preserved in the record.(fn26) There are two rationales for this rule. First, when an issue is not raised at trial, evidence relevant to the issue is not introduced, and therefore the appellate court "has no factual basis, or at best a shaky basis, on which to make a decision."(fn27) Second, because such an issue was not addressed by the lower court, the appellate court must act as fact finder to resolve it.(fn28) Appellate courts' function is to review decisions of lower courts for error; they rarely act as fact finders and do not have the resources to do so.(fn29) Therefore, in general, when an issue is raised for the first time on appeal, "it will be disregarded, as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition."(fn30) Ineffectiveness claims do not function well in the appellate framework...