**127I. INTRODUCTION
*854In identical, successive postconviction motions filed in three cases, John L. Lotter sought relief based on a 2016 U.S. Supreme Court decision
**128II. BACKGROUND
1. CONVICTIONS AND SENTENCING
Lotter's crimes are well known, and the underlying facts are set forth in our decision on Lotter's direct appeal.
A criminal conviction is final for purposes of collateral review when the judgment of conviction is rendered, the availability of appeal is exhausted, and the time for petition for certiorari has lapsed.
*8552. KEY U.S. SUPREME COURT SIXTH AMENDMENT CASES
(a) Apprendi v. New Jersey
In 2000, the U.S. Supreme Court decided Apprendi v. New Jersey ,
The Apprendi Court addressed whether a judge, rather than a jury, could find facts that increased the defendant's maximum sentence. The Court determined that the statute violated the Due Process Clause of the 14th Amendment and the 6th Amendment right to trial by jury. It declared:
Other than the fact of a рrior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."7
(b) Ring v. Arizona
Two years after Apprendi , the U.S. Supreme Court decided Ring v. Arizona .
(c) Hurst v. Florida
On January 12, 2016, the U.S. Supreme Court filed its decision in Hurst v. Florida
3. NEBRASKA'S CAPITAL SENTENCING SCHEME
At the time of Lotter's convictions and sentences, Nebraska law provided that after a defendant was found guilty of first **131degree murder, a trial judge or a three-judge panel determined whether statutory aggravating circumstances existed.
In response to Ring , the Nebraska Legislature enacted L.B. 1,
4. FOURTH POSTCONVICTION MOTION PROCEEDINGS
Exactly 1 year after the Hurst decision, Lotter filed in each case a fourth motion for postconviction relief. He set forth two **132grounds for relief. Lotter first alleged that Nebraska's capital sentencing scheme was unconstitutional in light of Hurst (claim 1). Second, Lotter alleged that the death qualification of the jury violated his rights under the 8th and 14th Amendments (claim 2).
The district court promptly conducted a "preliminary review" to determine whether an evidentiary hearing should be granted. On January 17, 2017, the court entered an order denying claim 2 as being procedurally barred. The court neither granted nor denied an evidentiary hearing on claim 1. The pertinent portion of the court's order is as follows:
*857Lotter's claim for post-conviction relief on Claim 1 is presently set for briefing from the State of Nebraska before this court determines whether a hearing is required. ... Upon submission of the briefs, this court will determine if any further hearings will be necessary.
Lotter's claim for post-conviction relief on Claim 2 [ ] is denied. Lotter's request to reverse his convictions are [sic] denied.
On Friday, January 27, 2017, the district court held a hearing cоncerning a mandate in a previous postconviction proceeding. During the hearing, Lotter's counsel asked how to proceed with asking the court to reconsider its denial of claim 2. Counsel expressed concern that "if we file a motion for reconsideration within 10 days, there's a potential that that can be construed as a final judgment in the case and so the issues would be bifurcated and we would have to litigate this piecemeal." The court suggested that the "best path" may be to file a motion for reconsideration which "should hold it in abeyance."
On Mondаy, January 30, 2017, Lotter filed a "Motion for Reconsideration and to Hold in Abeyance." In the motion, Lotter asked the court to reconsider its ruling on claim 2 and to hold the motion in abeyance for hearing and decision together with the hearing and decision on claim 1. He asserted that before claim 2 is disposed of, the court should allow briefing **133on whether cause existed to excuse any procedural default. Lotter further stated that "[i]n an abundance of caution, this motion is being filed in accordance with the provisions for filing a motion to alter or amend judgment under
Before the district court ruled on Lotter's motion for reconsideration, Lotter filed a motion for leave to amend his postconviction motion. He sought to add an additional claim, which would allege that his direct appeal counsel was constitutionally ineffective for failing to challenge the death qualification of his jury and that his initial postconviction counsel had an actual conflict of interest which precluded counsel from asserting a claim based on ineffective assistance of direct appeal counsel (claim 3).
On February 22, 2017, the district court entered an order denying Lotter's motion for reconsideration and denying the motion for leave to amend. Identical orders were filed in each case.
On March 22, 2017, Lotter filed a notice of appeal in each case, which were docketed in this court as cases Nos. S-17-325, S-17-338, and S-17-339 (first appeal). The State moved for summary dismissal, asserting lack of jurisdiction. We overruled the motion but reserved the jurisdictional issue until plenary submission of the appeals.
On September 28, 2017, the district court denied relief on claim 1 without an evidentiary hearing. The court determined that the claim was time barred, because Hurst did not create a newly recognized right. The court also concluded that neither Hurst nor Ring were retroactive on collateral review. Identical orders were filed in each case. Lotter, in turn, filed a timely appeal in each case, and those appeals have been docketed in this court as cases Nos. S-17-1126, S-17-1127, and S-17-1129 (second appeal).
On our own motion, we consolidated the appeals in the first appeal with the appeals in the second appeal for purposes of oral argument and disposition.
**134III. ASSIGNMENTS OF ERROR
In the first appeal, Lotter assigns that the district court erred in (1) finding that claim 2 was procedurally defaulted, (2) finding that the postconviction motion *858could not be amended, and (3) determining the merits of claim 2 and claim 3 without an evidentiary hearing.
In the second appeal, Lotter assigns no error to an action by the district court. Rather, he assigns that (1) the Nebraska capital sentencing scheme violates Hurst and the 6th and 14th Amendments, (2) Nebraska's capital sentencing scheme allowing a three-judge panel to impose a death sentence violates the 8th Amendment, and (3) this court has jurisdiction over Lotter's appeal from the denial of claim 2 and claim 3.
IV. STANDARD OF REVIEW
Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court's resolves the question independently of the lower court's conclusion.
V. ANALYSIS
1. JURISDICTION IN FIRST APPEAL
We begin by addressing the jurisdictional issue raised by the State in its motion for summary dismissal. The State claimed that Lotter's appeal from the denial of claim 2 was untimely and that his notice of appeal from the denial of his motion to amend to add claim 3 was premature. Thus, the State contends that we lack jurisdiction over the first appeal.
**135(a) General Principles
For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken.
A party has 30 days from the entry of a judgment or final order to appeal the decision of a district court unless a party has filed a timely motion which tеrminates the appeal period.
*859In cases involving a motion to alter or amend a judgment, a critical factor is whether the motion was filed within 10 days of the final order, because a timely motion terminates the time for filing a notice of appeal.
**136(b) Lotter's Arguments
Lotter advances two reasons to support his contention that his appeal as to the denial of claim 2 was timely. He also argues that we have jurisdiction over claim 3. We address the arguments separately.
(i) Motion Was Not Timely
Lotter's motion, filed 13 days after the district court denied Lotter's claim 2, did not terminate or extend the time to appeal that denial. A motion for reconsideration does not terminate the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.
Lotter contends that his motiоn was timely under the circumstances. He asserts that when the court advised him to file a motion for reconsideration, the court enlarged the time for filing the motion for reconsideration as authorized under Neb. Ct. R. Pldg. § 6-1106(b)(1). Lotter quotes the following part of § 6-1106(b):
**137When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order[.]
But we conclude the rule is inapplicable for two primary reasons.
First, the rule of pleading that Lotter relies upon does not apply to this proceeding. Postconviction proceedings are not governed by the Nebraska Court Rules of Pleading in Civil Cases.
Second, even if the rule did apply, the pertinent statute does not allow for an extension of time. Lotter's discussion of the rule omitted the portion of § 6-1106(b) stating that "[t]he court may not extend the time for taking any action specified in any statute, except to the extent and under the conditions stated in the statutes." Section 25-1329 mandates that "[a] motion to alter or amend a judgment *860shall be filed no later than ten days after the entry of the judgment."
Lotter's motion did not terminate the time for filing an appeal from the January 17, 2017, order. The appeal time expired 30 days after the entry of the order. Thus, the notice **138of appeal filed on March 22 was not timely to challenge the denial of claim 2.
(ii) Order Was Not New Judgment
Lotter next argues that the February 22, 2017, order substantially altered the January 17 order and constituted a new judgment. The February order accomplished two things. First, it denied Lotter's motion for reconsideration of the denial of claim 2. Second, it denied Lotter's motion for lеave to amend his postconviction motion to add claim 3. Because Lotter filed a notice of appeal within 30 days of that order, he contends his appeal is timely as to both claim 2 and claim 3. We consider each.
a. Claim 2
Lotter claims that the February order substantively altered its previous order, because it ruled on the merits of claim 2. The court stated that it denied claim 2 "for reasons set out in its January 17 ... order" and that it denied the motion for reconsideration of that ruling. Thus, the February order did not alter the court's reasons for its denial of claim 2. To the extent the court discussed whether claim 2 had any merit, it did so in the context of ruling on the motion for leave to amend to add claim 3. We conclude Lotter's appeal as to claim 2 was not timely. The court's February order, which denied Lotter's untimely motion to alter or amend the judgment, was itself not an appealable order.
b. Claim 3
Lotter also argues that we have jurisdiction over claim 3, the claim that the court denied leave to add. To the extent his argument applies to the first appeal, we disagree.
An order ruling on a motion filed in a pending postconviction case seeking to amend the postconviction motion to assert additional claims is not a final judgment and is not **139appealable under § 29-3002.
Lotter also argues that we have jurisdiction because the district court rulеd on the merits of claim 3. In declining to allow the motion for leave to amend, the court provided three reasons. The first reason was that the motion to amend was filed after the court already denied claim 2. Second, the court stated that claim 3 would *861be time barred. Third, the court stated that claim 3 was a "derivative claim" based on claim 2 and that the court could have easily denied claim 2 on its merits. But the court's discussion touching on the merits of claim 2 and, thus, claim 3 was mere surplusage. After the court determined that claim 2 was procedurally barred, it was unnecessаry for the court to engage in any further analysis as to whether the claim would otherwise have merit. This surplusage does not create jurisdiction.
Lotter argues that we have jurisdiction because his premature notice of appeal as to claim 3 related forward to the date of entry of the final judgment. But this argument depends upon Lotter's assertion that the court decided the merits of claim 3. It is true that § 25-1912(2) provides:
A notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the entry of the judgment, decree, or final order shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.
However, "to trigger the savings clause for premature notices of appeal under § 25-1912(2), an announcement must pertain **140to a decision or order that, once entered, would be final and appealable."
At this point, we recognize that our analysis in State v. Robertson
For all of the above reasons, we lack jurisdiction over the first appeal. Therefore, we do not consider any arguments directed to the merits of claim 2.
2. SECOND APPEAL
(a) Refusal to Allow Addition of Claim 3
Our disposition of the first appeal naturally leads to the conclusion that in the second appeal, we have jurisdiction of the denial of leave to amend to add claim 3. But in Lotter's appellate brief, he did not assign error to the denial of that motion. As we have said many times, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate **141court.
(b) Merits of Claim 1
The crux of the second appeal concerns the district court's denial of claim 1. Lotter argues that Nebraska's capital sentencing scheme is unconstitutional under the 6th, 8th, and 14th Amendments to the U.S.
*862Constitution and under Hurst . But we will not resolve his arguments if his motion is time barred under § 29-3001(4).
The Nebraska Postconviction Act contains a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of four triggering events or August 27, 2011, whichever is later.
(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;
(b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of duе diligence;
(c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;
(d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review[.]47
Lotter clаims that his motion is not time barred, because it was filed within 1 year of the Hurst decision. Thus, **142Lotter appears to be relying on the triggering event found in § 29-3001(4)(d). But Hurst will save Lotter's otherwise untimely motion only if it initially recognized a constitutional claim and that newly recognized right is applicable retroactively to cases on collateral review. And his argument based on the Eighth Amendment can be timely only to the extent it is based on Hurst.
We do not read Hurst as announcing a new rule of law. Rather, Hurst applied the analysis of Ring to Florida's sentencing scheme. In the introductory paragraph of Hurst , the Court stated that Florida's sentencing scheme was unconstitutional because: "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough."
**143We are not persuaded by Lotter's and amici's attempt to distinguish Hurst from *863Ring . Lotter and amici contend that Ring was limited to the Sixth Amendment jury trial right and identity of the fact finder, while Hurst also implicates the proof beyond a reasonable doubt requirement. Lotter maintains that Hurst clarified the weighing of facts in aggravation and mitigation must be made by a jury. Lotter and amici read too much into Hurst .
The analysis in Hurst made fleeting references to the burden of proof and weighing of aggravating and mitigating circumstances. The analysis began by citing Alleyne v. United States
Most federal
Even if we found that Hurst did announce a new law, it would not apply retroactively to Lotter. As we concluded above, Hurst merely applied Ring . And it is well established that Ring does not apply retroactively to cases on collateral review. The U.S. Supreme Court declared that " Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review."
Likewise, Hurst has no retroactive application to cases on collateral review. Because Hurst is tethered to Ring , we see no reason why Hurst would apply retroactively on collateral review when Ring does not. In considering an identical issue raised in Lotter's petition for habeas corpus, the Nebraska federal district court reached the same conclusion.
**146Other federal courts agree.
*865Although Lotter filed his motion for postcоnviction relief within 1 year of the Hurst decision, that decision is not a "newly recognized right [that] has been made applicable retroactively to cases on postconviction collateral review."
VI. CONCLUSION
We conclude that we lack jurisdiction over Lotter's first appeal. Because we agree with the district court that the claim raised in Lotter's second appeal is barred by the limitation period set forth in § 29-3001 and that subsection (4)(d) does not extend the limitation period, we affirm the court's decision.
APPEALS IN NOS . S-17-325, S-17-338, AND S-17-339 DISMISSED .
JUDGMENT AND FINAL ORDER IN NOS . S-17-1126, S-17-1127, AND S-17-1129 AFFIRMED .
Miller-Lerman and Freudenberg, JJ., not participating.
Notes
Hurst v. Florida, --- U.S. ----,
See State v. Lotter ,
State v. Lotter ,
See
Apprendi v. New Jersey ,
Ring v. Arizona,
Hurst v. Florida , supra note 1.
See 2002 Neb. Laws, L.B. 1.
See § 29-2520(2) (Reissue 2008).
See § 29-2520(4)(e) and (f).
§ 29-2521(1) and (3) (Reissue 2008).
§ 29-2522 (Reissue 2008).
See L.B. 1.
State v. Coble ,
State v. McGuire,
State v. Hudson,
See, State v. Determan ,
See, State v. Determan , supra note 27; State v. Silvers,
See State v. Hudson , supra note 26.
See
See Clarke v. First Nat. Bank of Omaha,
See Fitzgerald v. Fitzgerald ,
See Kinsey v. Colfer, Lyons ,
County of Douglas v. Nebraska Tax Equal. & Rev. Comm.,
State v. Bellamy ,
State v. Robertson ,
§ 25-1329.
See Fitzgerald v. Fitzgerald , supra note 32.
State v. Marshall ,
See Mason v. Cannon ,
State v. Hudson , supra note 26.
See
Lindsay Internat. Sales & Serv. v. Wegener,
State v. Robertson , supra note 36.
See State v. McGuire , supra note 25.
State v. Harrison ,
§ 29-3001(4).
Hurst v. Florida , supra note 1,
Alleyne v. United States,
Hurst v. Florida , supra note 1,
Texas v. Cobb ,
Truehill v. Florida , --- U.S. ----,
See, Underwood v. Royal ,
See, e.g., Ex Parte Bohannon,
Underwood v. Royal , supra note 59,
See, e.g., Rauf v. State ,
Rauf v. State , supra note 62,
See State v. Gales ,
Schriro v. Summerlin ,
State v. Lotter , supra note 4.
Lotter v. Britten, 4:04CV3187,
Lotter v. Britten, case No. 17-2000,
Lotter v. Frakes, --- U.S. ----,
See, Rhines v. Young,
See, Taylor v. Dunn , No. 14-0439-WS-N,
See, Reeves v. State,
Rauf v. State , supra note 62.
See Powell v. Delaware ,
§ 29-3001(4)(d).