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: Appeal and Error. Appeals of
postconviction proceedings will be reviewed independently if
they involve a question of law.
from the District Court for Hall County: James D. Livingston,
E. Torres, Jr., pro se.
Douglas J. Peterson, Attorney General, and James D. Smith,
Solicitor General, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
E. Torres, Jr., appeals from the order of the district court
for Hall County which denied his third motion for
postconviction relief without an evidentiary hearing. Torres
asserts that the Legislature's statute providing for the
repeal of the [304 Neb. 754] death penalty, 2015 Neb. Laws,
L.B. 268, went into effect, thereby changing his death
sentence to life imprisonment. Torres further asserts that
the rejection of L.B. 268 by public referendum reimposed a
death sentence, that the referendum was constitutionally
impermissible in a variety of ways, and that he was harmed
thereby. We find no merit to Torres' claims and affirm
the order of the district court.
2009, a jury found Torres guilty of two counts of first
degree murder and other felony offenses. He was sentenced to
death for each of the murders and sentenced to prison terms
for the other felonies. We affirmed his convictions and
sentences on direct appeal. State v. Torres, 283
Neb. 142, 812 N.W.2d 213 (2012).
first moved for postconviction relief in 2013, raising claims
of prosecutorial misconduct and ineffective assistance of
counsel. The district court denied postconviction relief
after conducting an evidentiary hearing. We affirmed in
State v. Torres, 295 Neb. 830, 894 N.W.2d 191
second postconviction proceeding, filed on June 14, 2017,
Torres claimed that his death sentences were unconstitutional
under Hurst v. Florida, __U.S.__, 136 S.Ct. 616, 193
L.Ed.2d 504 (2016), and Johnson v. U.S., __U.S.__,
135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The district court
found that Torres' 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. We affirmed in
State v. Torres, 300 Neb. 694, 915 N.W.2d 596
filed a third postconviction proceeding on December 4, 2017.
It is the denial of relief from the third postconviction
action which gives rise to this appeal. In his third
postconviction motion, Torres generally alleged that he was
entitled to relief based on the proposition that L.B. 268
changed his sentence from the death penalty to life
imprisonment and the 2016 [304 Neb. 755] public ...