- Associated Press - Saturday, October 25, 2014

LINCOLN, Neb. (AP) - An Omaha man who had argued that his lawyer should have challenged an anti-gang violence law as unconstitutional has lost his appeal to the Nebraska Supreme Court.

The state’s high court on Friday affirmed a lower court’s denial of his appeal, The Omaha World-Herald reported (https://bit.ly/1taae0C ).

Sanders was convicted of firing a gun at an Omaha home in 2011 under a law passed in 2009 and amended in 2010 by the Nebraska Legislature and sentenced to up to 30 years in prison. He lost his direct appeal in 2012, then filed a motion for post-conviction relief, which Douglas County District Judge Gregory Schatz denied without a hearing.

Prison inmates file post-conviction relief motions once they have exhausted all other appeals. Inmates often claim in such motions that their lawyer did not effectively defend them.

In his motion, Sanders said his lawyer should have argued that the law was unconstitutional special legislation, because it pertains only to drive-by shootings in Omaha, Lincoln and 30 first-class cities, where almost all of the state’s African-Americans live.

But the high court, citing a U.S. Supreme Court ruling, said a lawyer can’t be found deficient for not raising “every conceivable” constitutional claim. The state Supreme Court also said a defense lawyer cannot be found deficient for failing to raise a “novel” constitutional argument.

Sanders’ current attorney, Jerry Soucie of Lincoln, said he was concerned with the finding about “novel” arguments, saying that initial appeal of a new law could be considered novel and that barring lawyers on appeal from challenging such laws is an unintended consequence of the ruling.

Soucie said will ask the Supreme Court to reconsider.


Information from: Omaha World-Herald, https://www.omaha.com



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