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State v. Torres

Supreme Court of Nebraska

January 3, 2020

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. Postconviction: Appeal and Error. Appeals of postconviction proceedings will be reviewed independently if they involve a question of law.

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

          Marco 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 Papik, JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Marco 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.

         STATEMENT OF FACTS

         In 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).

         Torres 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 (2017).

         In his 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 (2018).

         Torres 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 ...


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