State v. Torres, 300 Neb. 694

Background

Marco E. Torres, Jr. was convicted in 2009 of two first-degree murders and other felonies and sentenced to death; convictions were affirmed on direct appeal.
Torres filed an initial postconviction motion in 2013 raising prosecutorial-misconduct and ineffective-assistance claims; after an evidentiary hearing the district court denied relief and this Court affirmed in 2017.
On June 14, 2017, Torres filed a successive verified postconviction motion invoking Hurst v. Florida and Johnson v. United States as newly recognized constitutional rules that should apply retroactively.
The district court, acting sua sponte during preliminary review, concluded Torres’s successive motion was time barred under Neb. Rev. Stat. § 29-3001(4)(d) (the one-year trigger based on when a new constitutional claim was recognized) and dismissed without an evidentiary hearing.
Torres appealed, arguing (1) the court failed to follow State v. Glover’s records-hearing/certification requirements, (2) the court improperly raised the limitations defense sua sponte without notice/opportunity to be heard, (3) the district court erred in finding his motion failed to allege sufficient facts under Hurst and Johnson, and (4) this Court committed plain error on an aggravator issue in his direct appeal.

Issues

Issue	Plaintiff's Argument (Torres)	Defendant's Argument (State)	Held
Did the district court properly rely on files and records without a formal Glover records hearing/certification?	Glover requires a records hearing or certification of the files considered; failure to do so mandates reversal and remand.	The district court’s order expressly identified and relied on preexisting files and records; Glover’s procedure is satisfied where the record makes clear what was considered.	The court did not err; the order plainly identified the files/records relied upon and no formal Glover hearing was required.
Could the court sua sponte dismiss the successive motion as time barred without giving notice/opportunity to be heard?	Day’s federal procedure should be required: courts must give fair notice and opportunity to present positions before acting sua sponte.	Under Amaya and § 29-3001(2), a court may—but is not required to—raise timeliness sua sponte during preliminary review; procedural details are left to trial-court discretion.	The court affirmed Amaya: sua sponte consideration is permitted; no fixed procedural rule is required; the district court did not abuse discretion here.
Was the successive motion timely under any trigger in § 29-3001(4)?	Hurst and Johnson announce new rights that should trigger § 29-3001(4)(d) and be applied retroactively, making the successive motion timely.	Torres’s convictions became final in 2012, the asserted new cases were decided more than one year before filing, and the other § 29-3001(4) triggers do not apply.	De novo review: the files and records show the motion was filed more than one year after the relevant triggers; the motion is time barred under § 29-3001(4).
May this Court consider plain error on an aggravator ruling from Torres’s direct appeal now?	The Court should recognize plain error and remand for resentencing based on alleged error about aggravators.	Torres did not raise this claim in the successive postconviction motion; appellate review is improper on an issue not presented to the district court.	The Court declined to consider it; issue not preserved below and dicta in the prior opinion cannot show the requisite prejudicial plain error.

Key Cases Cited

State v. Torres, 283 Neb. 142 (discusses Torres’s earlier appeal and convictions)
State v. Torres, 295 Neb. 830 (affirms denial of Torres’s prior postconviction relief)
State v. Amaya, 298 Neb. 70 (Permits—but does not require—sua sponte time-bar review during preliminary postconviction screening)
State v. Glover, 276 Neb. 622 (sets out requirement to identify/certify files and records relied upon when denying hearing)
State v. Harrison, 293 Neb. 1000 (guidance on selecting which § 29-3001(4) trigger applies)
State v. Lee, 282 Neb. 652 (discusses appellate review and procedures in postconviction context)
Day v. McDonough, 547 U.S. 198 (federal habeas decision permitting sua sponte timeliness review but prescribing notice/opportunity procedure)