State v. Mamer

92 	289 NEBRASKA REPORTS
State of NebraSka, appellee, v.
M alual M aMer, appellaNt.
853 N.W.2d 517
Filed September 19, 2014. 	No. S-13-785.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal and
Error. A court’s grant of a motion to dismiss for failure to state a claim under
Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed de novo, accepting all the allega-
tions in the complaint as true and drawing all reasonable inferences in favor of
the nonmoving party.
2. Constitutional Law: Postconviction. A manifest injustice common-law claim
must be founded on a constitutional right that cannot and never could have been
vindicated under the Nebraska Postconviction Act or by any other means.
3. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel, the defendant must show that counsel’s performance was deficient
and that this deficient performance actually prejudiced his or her defense.
4. Effectiveness of Counsel: Pleas: Proof. To show prejudice when the alleged
ineffective assistance relates to the entry of a plea, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he or she would not
have entered the plea and would have insisted on going to trial.
5. Effectiveness of Counsel: Proof. The factual predicate for a claim based on
ineffective assistance of counsel includes facts suggesting both unreasonable
performance and the resulting prejudice.
6. Pleadings: Proof: Time. The factual predicate for a claim concerns whether the
important objective facts could reasonably have been discovered, not when the
claimant should have discovered the legal significance of those facts.
7. Due Process. Due process of law may be said to be satisfied whenever an oppor-
tunity is offered to invoke the equal protection of the law by judicial proceedings
appropriate for the purpose and adequate to secure the end and object sought to
be attained.
Appeal from the District Court for Douglas County: W.
ruSSell boWie iii, Judge. Affirmed.
Kevin Ruser, of University of Nebraska Civil Clinical Law
Program, and Sarah Safarik, Senior Certified Law Student,
for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eavicaN, c.J., WrigHt, coNNolly, StepHaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:33 AM CST

STATE v. MAMER 	93
Cite as 289 Neb. 92
MccorMack, J.
NATURE OF CASE
Malual Mamer appeals from the district court’s dismissal
of his motion to vacate his plea and set aside his conviction
under the common-law remedy for “manifest injustice” set
forth in State v. Gonzalez.1 Such procedure is only available
if the defendant was never able to seek relief through the
Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008 & Cum. Supp. 2012) or any other means.
The district court determined that Mamer could have brought
a postconviction action, but Mamer argues that postconvic-
tion relief was never available to him. Mamer alleges that he
could not have reasonably discovered the factual predicate
of his claim while incarcerated because he did not receive
notice of the government’s decision to deport him until after
his release.
BACKGROUND
On March 31, 2010, the U.S. Supreme Court decided
Padilla v. Kentucky.2 Subsequently, on February 9, 2011,
Mamer was charged with first degree sexual assault, a Class II
felony. On July 20, the State filed an amended information
charging Mamer with attempted sexual assault in the first
degree, a Class III felony. Mamer, represented by counsel,
pled guilty to the reduced charge that same date. Before the
court accepted Mamer’s plea, Mamer was given the statutory
advisement of Neb. Rev. Stat. § 29-1819.02 (Reissue 2008).
The court stated: “Do you understand that if you are not a
United States citizen, a conviction for this offense may have
the consequences of removal from the United States, or denial
of naturalization, pursuant to the laws of the United States?”
Mamer responded that he did. On September 15, the court sen-
tenced Mamer to 12 to 18 months’ incarceration, with credit
for 248 days served.
1 State v. Gonzalez, 285 Neb. 940, 942, 830 N.W.2d 504, 507 (2013).
2 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).

94 	289 NEBRASKA REPORTS
The parties agree that Mamer was incarcerated for approxi-
mately 3 weeks following his conviction, and the State does
not dispute that Mamer was not represented by counsel dur-
ing the time of his incarceration. Mamer was discharged on
October 7, 2011.
On February 9, 2012, Mamer filed a motion to withdraw
his plea and vacate the judgment. Mamer alleged that not
allowing him to withdraw his plea would result in “manifest
injustice.”
The motion specifically alleged that Mamer is not a citizen
of the United States and that his trial counsel did not inform
him before entering his plea of guilty that under 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), deportation is presumptively man-
datory for a conviction of attempted first degree sexual assault.
Mamer alleged that pursuant to Padilla,3 the failure of trial
counsel to advise him of these immigration consequences
denied him his Sixth Amendment right to effective assistance
of counsel. Mamer alleged that he entered the plea of guilty
without knowing the presumptively mandatory deportation
consequences of the conviction. He then alleged that a “deci-
sion to reject the plea bargain would have been rational” had
he been properly advised of the immigration consequences of
his plea. Mamer alleged that he was currently in removal pro-
ceedings as a result of his conviction for attempted first degree
sexual assault, and the exhibit attached to the motion showed
that a notice to appear was sent by the U.S. Department of
Homeland Security to Mamer on October 7, 2011. Mamer
generally alleged that trial counsel’s performance was deficient
and that Mamer was prejudiced by the deficient performance.
Mamer did not allege why he could not have brought this
Padilla claim in an earlier postconviction motion or through
other means.
The court granted the State’s motion to dismiss, which we
find in this context was a motion to dismiss for failure to state
a claim. The court noted that the claim under the “manifest
injustice” procedure recognized in Gonzalez4 is only stated
3 Id.
4 State v. Gonzalez, supra note 1.

STATE v. MAMER 	95
Cite as 289 Neb. 92
when the Nebraska Postconviction Act is not, and never was,
available as a means of asserting the ground or grounds justify-
ing withdrawing the plea. Because Padilla was decided before
Mamer’s conviction and Mamer was thereafter in custody, the
court concluded that the Nebraska Postconviction Act was
available to Mamer, but that he failed to avail himself of it.
Accordingly, the common-law procedure for withdrawing his
plea was not available to Mamer.
Mamer appeals the dismissal of his motion to withdraw his
plea and vacate the conviction under our common-law “mani-
fest injustice” procedure.
ASSIGNMENT OF ERROR
Mamer assigns that the district court erred in dismissing,
without an evidentiary hearing, his motion to withdraw his plea
and vacate the judgment.
STANDARD OF REVIEW
[1] A court’s grant of a motion to dismiss for failure to state
a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed
de novo, accepting all the allegations in the complaint as true
and drawing all reasonable inferences in favor of the nonmov-
ing party.5
ANALYSIS
[2] The district court dismissed without a hearing Mamer’s
motion for relief under a manifest injustice claim. The ques-
tion presented is whether, accepting all the allegations in the
motion as true, Mamer stated a manifest injustice common-
law claim to set aside his former plea. In State v. Gonzalez,
we set forth the scope and parameters of a manifest injus-
tice claim.6 A manifest injustice common-law claim must be
founded on a constitutional right that cannot and never could
have been vindicated under the Nebraska Postconviction Act
or by any other means.7 It is a limited claim created to provide
5 Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).
6 State v. Gonzalez, supra note 1.
7 See, id.; State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013).

96 	289 NEBRASKA REPORTS
due process in the “very rare circumstance” where there is no
other forum for vindicating a constitutional right.8
coNStitutioNal rigHt
[3] Mamer alleged that his constitutional right to effective
assistance of counsel was violated.9 To prevail on a claim of
ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient and that this deficient per-
formance actually prejudiced his or her defense.10
[4] Mamer alleged that under Padilla, counsel’s perform-
ance was deficient by failing to advise Mamer of the risk of
the deportation consequences associated with his plea agree-
ment.11 The U.S. Supreme Court in Padilla did not address
whether the plaintiff had demonstrated prejudice as a result of
such an inadequate advisement. But we have said that to show
prejudice when the alleged ineffective assistance relates to the
entry of a plea, the defendant must show that there is a reason-
able probability that, but for counsel’s errors, he or she would
not have entered the plea and would have insisted on going
to trial.12
Although Mamer’s assertions of prejudice were unartful,
taken together, we find they sufficiently alleged prejudice for
purposes of a motion to dismiss. To prevail against a motion to
dismiss for failure to state a claim, a plaintiff must allege suf-
ficient facts, accepted as true, to state a claim to relief that is
plausible on its face.13 In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reasonable
8 State v. Gonzalez, supra note 1, 285 Neb. at 950, 830 N.W.2d at 511.
9 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
10 See State v. Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013).
11 See State v. Gonzalez, supra note 1.
12 State v. Fester, 287 Neb. 40, 840 N.W.2d 543 (2013).
13 Bruno v. Metropolitan Utilities Dist., 287 Neb. 551, 844 N.W.2d 50
(2014).

STATE v. MAMER 	97
Cite as 289 Neb. 92
expectation that discovery will reveal evidence of the element
or claim.14
caNNot aNd Never could H ave beeN viNdicated
uNder NebraSka poStcoNvictioN act
or by aNy otHer M eaNS
Mamer did not, however, allege any facts suggesting that he
could not have vindicated his ineffective assistance of counsel
claim through other means. On that basis alone, the district
court was correct in dismissing Mamer’s motion. Even if
Mamer had asked to amend the motion to make the assertions
that now form the basis of the arguments made in this appeal,
Mamer’s motion would have been properly dismissed. In argu-
ing that he could not have brought his ineffective assistance of
counsel claim while incarcerated, Mamer fundamentally mis-
understands what objective facts formed the factual predicate
for his ineffective assistance of counsel claim.
In order to bring a postconviction action, a prisoner must be
in custody under sentence and claiming a right to be released.15
Unlike the situation recently addressed in State v. Yuma,16
Mamer was in custody following the alleged ineffective assist-
ance of counsel. And Mamer does not argue that the relatively
limited time he was incarcerated was inadequate to vindicate
his Padilla right if he had been aware of trial counsel’s inef-
fective assistance during that time. Rather, Mamer argues he
could not have vindicated his Padilla right in a postconviction
action because he was no longer in custody by the time he
was notified by the U.S. Department of Homeland Security of
its intention to begin removal proceedings. Mamer argues in
essence that his claim did not arise until after he was released
from incarceration and knew of the immigration consequences
of his plea—and thus knew that his trial counsel’s performance
was ineffective.
14 Id.
15 § 29-3001(1).
16 State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).

98 	289 NEBRASKA REPORTS
Mamer and the State agree that the Nebraska Postconviction
Act’s definition of when a postconviction action accrues for
purposes of the act’s 1-year period of limitation is the proper
framework for the question of whether Mamer’s postconviction
action could have been brought while he was still in custody.
While § 29-3001 is not directly controlling of our manifest
injustice analysis, we see no reason not to adhere to the
Legislature’s framework for when a postconviction claim could
have been brought.
Under § 29-3001(4), the 1-year limitation period shall run
from the later of:
(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review; or
(e) August 27, 2011.
The constitutional claim Mamer asserts was initially recog-
nized by the U.S. Supreme Court before Mamer’s plea. Thus,
the subsection at issue is: “(b) The date on which the factual
predicate of the constitutional claim or claims alleged could
have been discovered through the exercise of due diligence.”
Mamer views the factual predicate as including the actual
commencement of removal proceedings, especially since he
lacked representation while incarcerated to inform him of the
presumptively mandatory deportation law. The State argues
that even if the factual predicate of a Padilla claim includes
knowledge of the possibility of deportation, pro se inmates

STATE v. MAMER 	99
Cite as 289 Neb. 92
are held to the same standards as inmates represented by new
counsel to exercise due diligence in discovering potential
claims.17 Especially when Mamer was advised by the district
court that his plea could have immigration consequences,
Mamer with due diligence could have discovered his Padilla
claim while still incarcerated. We agree with the State.
[5] The court in Hasan v. Galaza18 addressed similar fac-
tual predicate language in the context of a habeas action and
said that the factual predicate for a claim based on ineffective
assistance of counsel includes facts suggesting both unreason-
able performance and the resulting prejudice.
[6] The court in Owens v. Boyd,19 addressing the habeas
statute, explained that the discovery through due diligence of
the factual predicate for a claim concerns whether the impor-
tant objective facts could reasonably have been discovered,
not when the claimant should have discovered the legal sig-
nificance of those facts. The court reasoned that if courts were
to wait “until the prisoner has spent a few years in the institu-
tion’s law library” before the limitations period began to run,
there would be “no effective time limit.”20
Although Mamer believes that our discovery rule should be
pertinent to our inquiry and that it furthers his argument, such
limitations period likewise begins when the facts underlying
the claim could reasonably be discovered.21 This is distinct
from discovering that those facts are actionable.22
The question is thus whether, while incarcerated, Mamer in
the exercise of due diligence could have discovered the impor-
tant objective facts concerning both trial counsel’s deficient
conduct and the resulting prejudice. Mamer plainly knew at
the time of trial counsel’s representation what trial counsel
did and did not advise him of. But Mamer allegedly did not
17 See State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
18 Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001).
19 Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001).
20 Id. at 359.
21 See § 29-3001(4)(b).
22 Franzen v. Deere and Co., 377 N.W.2d 660 (Iowa 1985).

100 	289 NEBRASKA REPORTS
know of Padilla, nor did he know of the immigration law that
governed his future deportation. If Mamer did not know of
Padilla or of the deportation law, he would not have had actual
knowledge that counsel’s advice was deficient. Further, with-
out knowing the deportation consequences that counsel should
have informed him of, Mamer would not have known of the
prejudice, i.e., whether he would not have entered the plea and
would have insisted on going to trial.
We conclude that Mamer’s unawareness of the Padilla opin-
ion, which was decided before his plea, does not concern the
factual predicate for his ineffective assistance of counsel claim.
Such alleged ignorance of Padilla concerns only the legal sig-
nificance of the relevant objective facts.
In contrast, the existence of the applicable deportation law
was an objective fact inasmuch as counsel would not be defi-
cient for failing to advise of law that did not exist.
What Mamer misunderstands is that the existence of the
deportation law itself forms the factual predicate, not the immi-
gration officials’ execution of deportation law. For counsel is
not required under Padilla to predict the future execution of
existing law or whether the law will change; counsel’s duty is
to advise upon the existing law’s stated terms. And the preju-
dice element of a claim to set aside a plea due to ineffective
assistance of counsel relates directly to the decision to plead
guilty, not to whether the defendant was ultimately deported as
a result of that decision.
In the exercise of due diligence—either with or without
new counsel—Mamer could have discovered the applicable
deportation law while incarcerated. The parties agree that
the court advised Mamer at sentencing, in accordance with
§ 29-1819.02: “Do you understand that if you are not a United
States citizen, a conviction for this offense may have the
consequences of removal from the United States, or denial
of naturalization, pursuant to the laws of the United States?”
The advisement, which Mamer acknowledged he understood,
put Mamer on notice of potential deportation laws. With due
diligence, Mamer could have discovered that law while incar-
cerated. Because pro se inmates are held to the same standards

STATE v. MAMER 	101
Cite as 289 Neb. 92
as inmates represented by new counsel,23 the fact that Mamer
was not represented by counsel while incarcerated does not
change this conclusion.
Mamer therefore is unable to demonstrate an essential ele-
ment of his manifest injustice claim: that he had no other
means to vindicate the constitutional right at issue. While
incarcerated, Mamer knew what trial counsel advised him
of and, with due diligence, he should have discovered that
counsel’s advice omitted important deportation consequences.
Accordingly, in the exercise of due diligence, Mamer would
have discovered his claim while incarcerated and could have
vindicated his claim through a postconviction action.
[7] We find no merit to Mamer’s argument that dismissal
of his manifest injustice claim denies him due process of law.
The very definition of a manifest injustice claim encompasses
the minimum protections of due process. If a claimant does
not satisfy the elements of manifest injustice, due process has
not been violated. Due process of law may be said to be satis-
fied whenever an opportunity is offered to invoke the equal
protection of the law by judicial proceedings appropriate for
the purpose and adequate to secure the end and object sought
to be attained.24 Mamer had the opportunity to vindicate his
Padilla claim through a postconviction action, but he failed to
exercise due diligence in discovering that claim and in bring-
ing a postconviction action while incarcerated.
CONCLUSION
Because Mamer should have discovered and brought his
Padilla claim while incarcerated, the court properly granted
the State’s motion to dismiss Mamer’s claim for manifest injus-
tice relief.
affirMed.
23 See State v. Sims, supra note 17.
24 State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d
459 (1960).