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State v. Torres

Supreme Court of Nebraska

August 3, 2018

State of Nebraska, appellee,
v.
Marco E. Torres, Jr., appellant.

         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 demonstrate 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. Limitations of Actions. If the facts in a case are undisputed, the issue as to when the statute of limitations begins to run is a question of law.

         3. Postconviction: Limitations of Actions. If, as part of its preliminary review, the trial court finds the postconviction motion affirmatively shows-either on its face or in combination with the files and records before the court-that it is time barred under Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), the court is permitted, but not obliged, to sua sponte consider and rule upon the timeliness of the motion.

         4. Postconviction: Limitations of Actions: Appeal and Error. A district court has discretion to adopt reasonable procedures for determining what the postconviction motion and the files and records show, and whether the defendant has raised any substantial issues, before granting a full evidentiary hearing. District courts also have discretion to adopt reasonable procedures for determining whether to rule sua sponte on the timeliness of a postconviction motion. An appellate court will examine these procedures for an abuse of discretion, which exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

         5. Postconviction: Appeal and Error. An appellate court will not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief.

         [300 Neb. 695] 6. Appeal and Error. An appellate court always reserves the right to note plain error that was not complained of at trial or on appeal.

         7. __. Plain error may be found on appeal when an error, plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

          Appeal from the District Court for Hall County: James D. Livingston, Judge. Affirmed.

          Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Brian William Stull, of American Civil Liberties Union Foundation, and Amy A. Miller, of American Civil Liberties Union of Nebraska Foundation, for amici curiae American Civil Liberties Union Capital Punishment Project and American Civil Liberties Union of Nebraska Foundation.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Harder and Noakes, District Judges.

          Stacy, J.

         This is an appeal from the denial of postconviction relief. The district court, sua sponte, found Marco E. Torres, Jr.'s, successive motion for postconviction relief was time barred under the 1-year limitations period of Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) and denied relief without conducting an evidentiary hearing. On appeal, Torres argues the procedure used by the district court was improper. We find no abuse of discretion in the procedure followed, and affirm.

         FACTS

         In 2009, a jury found Torres guilty of two counts of first degree murder and other felony offenses. He was sentenced to [300 Neb. 696] death for each of the murders and sentenced to prison terms for the other felonies. We affirmed his convictions and sentences on direct appeal.[1]

         Torres moved for postconviction relief in 2013, raising claims of prosecutorial misconduct and ineffective assistance of counsel. After various delays, the district court conducted an evidentiary hearing and then denied postconviction relief. We affirmed the denial of postconviction relief in February 2017.[2]

         In June 2017, Torres filed this successive motion for postconviction relief. His successive motion alleges two claims, each premised on a U.S. Supreme Court case. Specifically, Torres alleges his death sentences are unconstitutional under Hurst v. Florida[3] and Johnson v. U.S.[4] He alleges that Hurst and Johnson both announced newly recognized constitutional claims and that both should be applied retroactively to cases on collateral review.

         The district court did not reach the merits of either of the claims alleged in Torres' successive motion because it determined, sua sponte, the motion was time barred under the 1-year limitations period in § 29-3001(4). Section 29-3001(4) applies to successive postconviction motions[5] and provides:

(4) A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of:
[300 Neb. 697] (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 filing 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 retroactively to cases on postconviction collateral review; or
(e) August 27, 2011.

         In its order, the district court found Torres' successive motion was time barred under § 29-3001(4)(d). The court reasoned that Torres' claims were based exclusively on Hurst (decided in January 2016) and Johnson (decided in June 2015), and both cases had been decided more than 1 year before the date Torres filed his successive postconviction motion. The court did not expressly rule on the applicability of the other subsections of § 29-3001(4).

         After concluding the successive motion was time barred under § 29-300l(4)(d), the court denied postconviction relief and overruled Torres' motion for appointment of counsel. Torres timely appealed. He filed a motion for appointment of counsel on appeal, which this court granted.

         ASSIGNMENTS OF ERROR

         Torres assigns, restated and consolidated, that the district court erred in (1) failing to hold a records hearing or certify the record pursuant to State v. Glover, [6] (2) determining sua [300 Neb. 698] sponte that his successive motion was barred by the 1-year limitations period without giving Torres notice and an opportunity to be heard, and (3) determining his successive motion failed to allege sufficient facts to support claims under Hurst and Johnson.

         Torres also assigns that this court committed plain error when it determined, in an earlier opinion resolving his direct appeal, that Torres' convictions for kidnapping, robbery, and two weapons charges satisfied the first prong of the aggravator in Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 2008).[7]

         STANDARD OF REVIEW

         In appeals from postconviction proceedings, an appellate 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 affirmatively show that the defendant is entitled to no relief.[8]

         If the facts in a case are undisputed, the issue as to when the statute of limitations begins to run is a question of law.[9]

         ANALYSIS

         As a threshold matter, we observe that Torres does not assign error to the district court's finding that his successive motion is time barred under § 29-300 l(4)(d). Nor does Torres argue that his successive motion is actually timely under any of the subsections in § 29-3001(4). Instead, he primarily challenges the procedure followed by the district court when it reviewed and dismissed sua sponte his successive postconviction motion.

         Before we address his procedural arguments, our de novo standard of review requires that we determine whether the files and records affirmatively show Torres is entitled to no relief [300 Neb. 699] on his successive postconviction motion.[10] That necessarily requires us to determine ...


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