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.
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.
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
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
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.
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.
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.
from the District Court for Scotts Bluff County: Leo P.
Dobrovolny, Judge. Affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
Douglas J. Peterson, Attorney General, and James D. Smith,
Solicitor General, for appellee.
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
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.
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.
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),  after remand
(Mata II),  [304 Neb. 328] and after denial of an
initial motion for postconviction relief (Mata
III) 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
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, 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.
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.
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.
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
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.
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,  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
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.
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. Mata filed a petition for
certiorari with the U.S. Supreme Court. On October 6, the
Supreme Court denied Mata's petition.
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. 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. Mata stated he would like an opportunity
to amend his motion, with or without counsel.
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.
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.
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.
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
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.
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.
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
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.