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Abstract

Criminal defendants have a constitutional right to effective assistance of counsel. In Nebraska, defendants can enforce this right either on direct appeal or through a postconviction proceeding. In either forum, a defendant must show that his counsel’s performance was deficient. This Note argues that the Nebraska Supreme Court extended the scope of its review of ineffectiveness claims in State v. Rocha, and the test the court applied in Rocha needs reform. Part II explains the standard for ineffective assistance claims under Strickland v. Washington 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 and harming defendants. 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. 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, no matter the state of the record. This dual reform is necessary to conserve Nebraska’s judicial resources and protect Nebraska defendants.

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