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State v. Mata

Supreme Court of Nebraska

October 25, 2019

State of Nebraska, appellee,
v.
Raymond Mata, 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. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling.

         3. Constitutional Law: Trial. Inherently prejudicial practices, like shackling, are constitutionally forbidden during the guilt phase of a trial unless the use is justified by an essential state interest specific to each trial.

         4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.

         5. Limitations of Actions. The doctrine of equitable tolling permits a court to excuse a party's failure to comply with the statute of limitations where, because of disability, irremediable lack of information, or other circumstances beyond his or her control, the plaintiff cannot be expected to file suit on time.

         6. Statutes: Initiative and Referendum. Upon the filing of a referendum petition appearing to have a sufficient number of signatures, operation of the legislative act is suspended so long as the verification and certification process ultimately determines that the petition had the required number of valid signatures.

         7. Postconviction: Proof. In a postconviction proceeding, an evidentiary hearing is not required when the motion does not contain factual [304 Neb. 327] allegations which, if proved, constitute an infringement of the movant's constitutional rights.

          Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge. Affirmed.

          Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, 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 of Nebraska and American Civil Liberties Union Foundation.

          Tracy Hightower-Henne, of Hightower Reff Law, G. Michael Fenner, of Creighton University School of Law, and Kevin Barry, of Quinnipiac University School of Law Legal Clinic, for amici curiae Legal Scholars.

          Robert F. Bartle, of Bartle & Geier, and Anne C. Reddy, Keith Hammeran, and Tom Lemon, of Greenberg Traurig, L.L.P, for amici curiae former Nebraska Justices and Judges.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Pirtle, Judge.

          FUNKE, J.

         Raymond Mata, Jr., appeals the district court's denial of his second amended motion for postconviction relief without an evidentiary hearing. This postconviction action follows our decisions on direct appeal (Mata I), [1] after remand (Mata II), [2] [304 Neb. 328] and after denial of an initial motion for postconviction relief (Mata III)[3] Mata argues the district court erred in denying his constitutional claims that he was made to wear shackles in front of the jury during jury selection, overruling and finding untimely his claims that the sentencing scheme requiring a judge to make factual findings to impose the death penalty was unconstitutional, and overruling and finding untimely his claims that his constitutional rights were violated by the Legislature's passing a bill repealing the death penalty but a public referendum reimposing it. For the reasons stated herein, we affirm.

         BACKGROUND

         Mata was found guilty of first degree premeditated murder, first degree felony murder, and kidnapping in association with the death of 3-year-old Adam Gomez. In Mata I,[4] we explained the evidence adduced at trial showed Adam was the son of Patricia Gomez and Robert Billie. Patricia, Billie, and Adam lived together until September 1998, when Patricia and Billie ended their relationship and Billie moved out. Shortly thereafter, Mata and Patricia began dating, and Mata moved in with Patricia and Adam in October or November. Patricia later told police that although Mata did not treat Adam badly, Mata consistently expressed resentment of Adam.

         Mata moved out on February 10, 1999, and moved in with his sister. That night, Patricia and Billie had sexual relations. On February 11, Patricia obtained a restraining order against Mata. However, Patricia continued to see Mata and they had sexual relations on February 14.

         Later in February 1999, Patricia found out she was pregnant. Mata became aware of Patricia and Billie's sexual encounter and heard that the child had been conceived between February [304 Neb. 329] 7 and 10. Mata had separate confrontations with both Patricia and Billie about their relationship.

         On March 11, 1999, Mata discovered that Patricia, Billie, and Adam attended a doctor's appointment for Adam together. That day, Mata unsuccessfully attempted to have Patricia come to his sister's house to visit him. When Patricia would not come to him, Mata went to Patricia. At her residence, Adam was watching television and Mata sent him to bed. Patricia testified she fell asleep while Mata watched television. Patricia said that when she woke up, Mata and Adam were gone, as was the sleeping bag that Adam had been using as a blanket. Mata denied knowing where Adam was when Patricia called at 3:37 a.m. Mata came back to Patricia's house and told Patricia that Adam was likely with her mother or Billie.

         In subsequent searches of Mata's sister's residence, police found Adam's sleeping bag and clothing Adam had been wearing in a bag in the dumpster behind the residence. The bag also contained trash identified as being from the residence, including a towel and a boning knife that Mata's sister denied throwing away. In the residence, police found human remains in the basement room occupied by Mata. Hidden in the ceiling was a package wrapped in plastic and duct tape which contained a crushed human skull. The skull was fractured in several places by blunt force trauma that had occurred at or near the time of death. The head had been severed from the body by a sharp object at or near the time of death. In the kitchen refrigerator, police found a foil-wrapped package of human flesh. Mata's fingerprint was found on the foil. Human remains were also found on a toilet plunger and were found to be clogging the sewer line from the residence. Human flesh, both cooked and raw, was found in a bowl of dog food and in a bag of dog food. Human bone fragments were recovered from the digestive tract of Mata's sister's dog. All of the recovered remains were later identified by DNA analysis as those of Adam. Adam's blood was also found on Mata's boots.

         [304 Neb. 330] After Mata was convicted, he was sentenced to life imprisonment for kidnapping and a three-judge panel sentenced him to death for first degree premeditated murder, finding the existence of an aggravating circumstance under Neb. Rev. Stat. § 29-2523(1)(d) (Cum. Supp. 2002). In Mata I, we affirmed these convictions and the life imprisonment sentence for kidnapping. Based upon Ring v. Arizona, [5] which was decided after the sentencing, we vacated the death sentence and remanded the cause with directions for a new penalty phase hearing and resentencing on the first degree premeditated murder conviction, requiring the jury to determine the existence of aggravating circumstances.[6]

         On remand, the jury unanimously found the existence of the aggravating circumstance of exceptional depravity. A three-judge panel then heard evidence on mitigating circumstances and sentencing disproportionality. The panel found no statutory mitigating circumstances, considered five nonstatutory mitigating circumstances, and concluded the mitigating factors did not approach or exceed the weight of the exceptional depravity finding. The panel determined the penalty was not excessive or disproportionate to the penalty imposed in similar cases and again sentenced Mata to death on the first degree premeditated murder conviction.

         In Mata II, issued February 8, 2008, we affirmed the imposition of Mata's death sentence. However, we determined that electrocution, as a means of carrying out that sentence, was cruel and unusual punishment in violation of Neb. Const, art. I, § 9, and issued an indefinite stay of Mata's execution.[7] Mata filed a petition for certiorari with the U.S. Supreme Court. On October 6, the Supreme Court denied Mata's petition.

         On July 2, 2009, Mata filed a pro se motion for postconviction relief. At a preliminary hearing in October to consider [304 Neb. 331] whether to grant a request of counsel and an evidentiary hearing, Mata argued that he believed an evidentiary hearing would be premature because he was not '"ready"' and wished for the court to first consider the appointment of counsel who he hoped could assist him in evaluating the record and amending the motion before the merits would be determined.[8] Mata explained that he filed the motion for postconviction relief without first fully reviewing the record, because he needed to toll the 1-year statute of limitations for filing an application for a writ of habeas corpus in federal court. He claimed that our indefinite stay of his execution had placed him in a legal '"limbo"' which prevented him from filing a habeas action within a year from the final judgment.[9] Mata stated he would like an opportunity to amend his motion, with or without counsel.

         In a single final order, the district court denied both an evidentiary hearing and Mata's request for appointment of counsel. The court did not specifically determine whether the motion for postconviction relief presented any justiciable issue which would entitle Mata to appointment of counsel. Instead, the court found that the files and records affirmatively showed that Mata was entitled to no relief based on the allegations in his motion.

         In Mata III, we found it was an abuse of the district court's discretion to deny Mata leave to amend his motion for postconviction relief, reversed the district court's judgment, and remanded the cause with directions to appoint Mata counsel and grant him leave to amend his motion. The mandate in Mata III was issued on March 8, 2011, and Mata was appointed postconviction counsel on March 15.

         In May 2015, the Nebraska Legislature passed 2015 Neb. Laws, L.B. 268, which abolished the death penalty in Nebraska, and then overrode the Governor's veto of the bill. Within L.B. [304 Neb. 332] 268, the Legislature provided that "in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment." The Legislature adjourned sine die on May 29. Because L.B. 268 did not contain an emergency clause, it was to take effect on August 30.[10]

         Following the passage of L.B. 268, opponents of the bill sponsored a referendum petition to repeal it. On August 26, 2015, the opponents filed with the Nebraska Secretary of State signatures of approximately 166, 000 Nebraskans in support of the referendum. On October 16, the Secretary of State certified the validity of sufficient signatures. Enough signatures were verified to suspend the operation of L.B. 268 until the referendum was approved or rejected by the electors at the upcoming election. During the November 2016 election, the referendum passed and L.B. 268 was repealed, that is, in the language of the Constitution, the act of the Legislature was "'reject[ed].'"[11]

         On December 4, 2017, Mata filed his first amended motion for postconviction relief, and on March 16, 2018, he filed a second amended motion. The district court denied Mata's second amended motion for postconviction relief without an evidentiary hearing. Mata timely appealed.

         ASSIGNMENTS OF ERROR

         On appeal, Mata assigns, consolidated and restated, that the district court erred in (1) denying the claim that his constitutional rights were violated by being shackled during jury selection, because it could have been, and was, brought and decided on direct appeal; (2) denying and finding untimely Mata's claims that his Sixth Amendment rights were violated by having a panel of judges find mitigating circumstances and weigh those circumstances against the jury's finding of aggravating [304 Neb. 333] circumstances; (3) denying and finding untimely Mata's claims that the referendum process and result amounted to an impermissible bill of attainder, cruel and unusual punishment, and violations of his due process rights by imposing a death sentence on Mata after it was changed to life imprisonment by L.B. 268; and (4) denying and finding untimely Mata's claims that the process of the referendum and its supporting campaign were an improper exercise violating constitutionally recognized separation of powers.

         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[12]

         Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling.[13]

         ANALYSIS

         Use of Shackles ...


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