State v. Torres
915 N.W.2d 596
Neb.2018Background
- Marco E. Torres, Jr. was convicted in 2009 of two counts of first-degree murder and other felonies and sentenced to death; convictions were affirmed on direct appeal.
- Torres filed a postconviction motion in 2013 raising prosecutorial-misconduct and ineffective-assistance claims; after an evidentiary hearing the court denied relief and this Court affirmed in 2017.
- On June 14, 2017, Torres filed a successive verified postconviction motion asserting his death sentences were unconstitutional under Hurst v. Florida and Johnson v. United States, and asked that those decisions be applied retroactively on collateral review.
- The district court, sua sponte, dismissed the successive motion as time barred under the one-year limitations period in Neb. Rev. Stat. § 29-3001(4), specifically subsection (d) (newly recognized constitutional claims), without holding an evidentiary hearing or a formal records hearing.
- Torres appealed, arguing the court (1) failed to follow State v. Glover by not holding or certifying a records hearing, (2) improperly dismissed the motion sua sponte without notice/opportunity to be heard and without applying the Day v. McDonough procedural safeguards, (3) erred in finding his motion failed to plead sufficient facts under Hurst and Johnson, and (4) invited this Court to find plain error in an earlier aggravator ruling.
- This Court reviewed de novo whether the files and records affirmatively show the motion is time barred, concluded the motion was untimely under § 29-3001(4), and affirmed the dismissal, finding no procedural abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Torres) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the successive postconviction motion is time barred under § 29-3001(4) | Hurst and Johnson announce newly recognized rights that should be applied retroactively, making the motion timely | The convictions became final in 2012; Hurst and Johnson were decided more than one year before Torres filed in 2017, so the motion is untimely under (a),(b),(c),(d),(e) | Motion is time barred under § 29-3001(4); district court correctly dismissed on that basis (de novo review) |
| Whether the district court violated Glover by not holding a records hearing or certifying the files it relied on | Court should have held a formal records hearing or certified the records relied upon per Glover | Court’s order expressly states the files and dates relied upon; relied only on preexisting files in the transcript | No Glover error; the order sufficiently identified the files/records so appellate review was possible |
| Whether the court could sua sponte raise the statute-of-limitations defense without following Day’s procedural notice/opportunity rule | Amaya should be overruled or limited; Day requires courts to give fair notice and opportunity before dismissing sua sponte | Amaya permits sua sponte timeliness review as part of § 29-3001(2) preliminary review; district courts have discretion on procedures; Day is not binding and its required procedure need not be adopted wholesale | Amaya stands; district courts may raise timeliness sua sponte and may adopt reasonable procedures in their discretion; no abuse of discretion here |
| Whether the district court reached or erred on the merits of Hurst/Johnson claims or whether this Court should find plain error on an unrelated aggravator ruling | Court erred in finding Torres’ pleadings insufficient and this Court should find plain error in earlier aggravator analysis | District court did not rule on merits—dismissal was solely timeliness-based; plain-error claim was not raised below | Dismissal was on timeliness; no merits ruling to review. Plain-error claim not preserved and not appropriate to exercise plain-error review here |
Key Cases Cited
- State v. Glover, 276 Neb. 622 (explaining files/records to be considered must preexist the postconviction filing and requiring certification if not introduced at a records hearing)
- State v. Amaya, 298 Neb. 70 (authorizing district courts to raise § 29-3001(4) timeliness sua sponte during preliminary review)
- Day v. McDonough, 547 U.S. 198 (federal habeas court may consider timeliness sua sponte but must give fair notice and opportunity to be heard; used as persuasive guidance)
- Hurst v. Florida, 136 S. Ct. 616 (U.S. Supreme Court decision on Florida capital sentencing scheme; relied upon by Torres as allegedly newly recognized right)
- Johnson v. United States, 135 S. Ct. 2551 (U.S. Supreme Court decision holding ACCA’s residual clause void for vagueness; relied upon by Torres)