State v. Torres, 936 N.W.2d 730

Background

Marco E. Torres, Jr. was convicted in 2009 of two counts of first-degree murder and sentenced to death; convictions and sentences were affirmed on direct appeal.
Torres filed multiple postconviction motions (2013, 2017, 2017(3rd)), raising prosecutorial-misconduct, ineffective-assistance, Hurst/Johnson, and statutory/referendum claims; lower courts denied relief and prior appeals were affirmed.
In May 2015 the Nebraska Legislature passed L.B. 268 abolishing the death penalty, to take effect August 30, 2015 unless an emergency clause was included.
Opponents filed a referendum petition on August 26, 2015; sufficient signatures suspended L.B. 268’s operation pending the public vote; the November 2016 vote rejected L.B. 268 (repealed it).
Torres’ third postconviction motion claimed L.B. 268 had briefly converted his death sentences to life and that the referendum reimposed death, violating the Eighth Amendment, due process, separation of powers, and constituting a bill of attainder; the district court denied the motion without an evidentiary hearing.
Nebraska Supreme Court affirmed, concluding Torres failed to allege facts showing a constitutional violation because L.B. 268 never took effect (it was suspended by the petition) and no resentencing or effective change to his sentence occurred.

Issues

Issue	Plaintiff's Argument (Torres)	Defendant's Argument (State)	Held
Did L.B. 268 ever change Torres’ death sentences to life imprisonment?	L.B. 268 took effect and converted death sentences to life before the referendum; the later referendum reimposed death.	Petition signatures filed before the effective date suspended L.B. 268’s operation, so it never took effect and never changed sentences.	Held: L.B. 268 never took effect because its operation was suspended by the referendum petition; no statutory change to sentences occurred.
Does the referendum’s effect or the interim uncertainty constitute cruel and unusual punishment (Eighth Amendment)?	The anxiety/uncertainty and the referendum’s reinstatement of death amounts to cruel and unusual punishment.	No Eighth Amendment violation because no actual modification of sentence occurred.	Held: Rejected—potential or temporary uncertainty does not rise to an Eighth Amendment violation.
Did the referendum violate due process by reinstating capital sentences without individualized sentencing?	The referendum reinstated capital sentences en masse, denying individualized sentencing protections.	There was no resentencing and no change to sentences; due process claim requires an actual deprivation.	Held: Rejected—no resentencing or loss of individualized process occurred because L.B. 268 never took effect.
Is the referendum an unconstitutional bill of attainder or a separation-of-powers violation?	The referendum functioned as a targeted legislative punishment (bill of attainder) and involved impermissible executive actions that violated separation of powers.	The referendum did not directly impose punishment on Torres; any procedural irregularities in executive actors do not invalidate the referendum result as to its effect.	Held: Rejected—no bill of attainder because no legislative act changed Torres’s sentence; separation-of-powers claim fails and the remedy is removal from office, not invalidation of the referendum’s result.

Key Cases Cited

State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019) (concludes L.B. 268 never took effect because petition signatures suspended its operation)
State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019) (rejects claims that suspension of L.B. 268 produced Eighth Amendment, due process, or bill-of-attainder violations)
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012) (direct appeal affirming convictions and death sentences)
State v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017) (postconviction appeal affirming denial after evidentiary hearing)
State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (second postconviction appeal affirming time-bar denial)
State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018) (standard for de novo review of sufficiency of postconviction allegations)
Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d 222 (2019) (postconviction procedural-bar considerations)