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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

State of Nebraska, appellee, v. 

Marco E. Torres, Jr., appellant.

___ N.W.2d ___

Filed January 3, 2020. No. S-19-276.

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. Affirmed.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/10/2020 01:06 AM CST
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

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 
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

public referendum which “reject[ed]” L.B. 268 changed it back 

to a death sentence. Neb. Const. art. III, § 3.

Torres specifically alleged that the referendum reimposed 

the death penalty on him and that such imposition was cruel 

and unusual punishment, violated due process, constituted an 

unconstitutional bill of attainder that targeted the individuals 

on death row, and violated separation of powers. The district 

court rejected Torres’ claims based on the insufficiency of 

allegations in the motion and denied the third postconviction 

motion without an evidentiary hearing. Torres appeals.

ASSIGNMENTS OF ERROR

Torres contends, summarized and restated, that (1) the district court’s analysis regarding the powers of the Legislature 

to enact sentencing laws was flawed and (2) the referendum 

process and result amounted to imposition of cruel and unusual 

punishment, violated due process, constituted an impermissible 

bill of attainder, and violated separation of powers.

Because our analysis differs from that of the district court 

and eclipses Torres’ arguments regarding the powers of the 

Legislature to enact sentencing statutes, it is not necessary to 

consider Torres’ first assignment of error.

STANDARDS OF REVIEW

[1,2] 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. State v. 

Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). Appeals of postconviction proceedings will be reviewed independently if they 

involve a question of law. See State v. Thieszen, 295 Neb. 293, 

887 N.W.2d 871 (2016).

ANALYSIS

As an initial matter, we recognize that the State has suggested 

that Torres’ current postconviction motion is procedurally 
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

barred. Although there may be merit to this argument, as we 

recognized in Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d 

222 (2019), a postconviction action may be a suitable procedure to examine the claims that are central to this death 

penalty case, and we therefore proceed to consideration of 

the merits.

We have reviewed Torres’ motion for postconviction relief, 

and although our reasoning differs from that of the district 

court, we agree with the determination that Torres has failed to 

allege sufficient facts to demonstrate a violation of his constitutional rights. See State v. Allen, supra. The allegations assert 

that certain constitutional guarantees were violated; however, 

we have recently considered and rejected at length the essential 

substance of each of Torres’ allegations. See, State v. Mata, 

ante p. 326, 934 N.W.2d 475 (2019); State v. Jenkins, 303 Neb. 

676, 931 N.W.2d 851 (2019).

The principal but flawed premise for Torres’ constitutional 

claims is that L.B. 268 went into effect, thereby changing his 

death sentence to life imprisonment, and that the successful 

referendum reimposed the death penalty. In State v. Jenkins, we 

concluded that “the filing of petitions on August 26, 2015—

prior to the effective date of L.B. 268—suspended [L.B. 268’s] 

operation until Nebraskans effectively rejected the bill by voting to repeal it. . . . L.B. 268 never went into effect . . . .” 303 

Neb. at 710-11, 931 N.W.2d at 879.

In State v. Mata, we described the process as follows:

In May 2015, the Nebraska Legislature passed 2015 

Neb. Laws, L.B. 268, which abolished the death penalty 

in Nebraska, and then overrode the Governor’s veto of 

the bill. Within L.B. 268, the Legislature provided that 

“in any criminal proceeding in which the death penalty 

has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life 

imprisonment.” The Legislature adjourned sine die on 

May 29. Because L.B. 268 did not contain an emergency 

clause, it was to take effect on August 30.
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

Following the passage of L.B. 268, opponents of the 

bill sponsored a referendum petition to repeal it. On 

August 26, 2015, the opponents filed with the Nebraska 

Secretary of State signatures of approximately 166,000 

Nebraskans in support of the referendum. On October 

16, the Secretary of State certified the validity of sufficient signatures. Enough signatures were verified to 

suspend the operation of L.B. 268 until the referendum 

was approved or rejected by the electors at the upcoming 

election. During the November 2016 election, the referendum passed and L.B. 268 was repealed, that is, in the 

language of the Constitution, the act of the Legislature 

was “‘reject[ed].’”

Ante at 331-32, 934 N.W.2d at 480. See, also, Neb. Const. art. 

III, § 3; State v. Jenkins, supra.

As we addressed in our analysis of comparable claims in 

State v. Mata, the essential substance of claims based on cruel 

and unusual punishment, due process, and bill of attainder 

which assert that L.B. 268 changed a death sentence to life 

imprisonment fails “because L.B. 268 was suspended and 

no such changes in his sentence occurred.” Ante at 340, 934 

N.W.2d at 485.

Torres contends that the anxiety created by the potential 

modification of a sentence is cruel and unusual punishment. 

However, we have concluded that such potential does not rise 

to an Eighth Amendment violation. See State v. Mata, supra. 

Accordingly, we reject this claim.

Torres also contends that his due process rights were violated when the successful referendum “reinstat[ed] the capital 

sentences en masse.” Brief for appellant at 26. He claims he 

was denied the benefits of individualized sentencing. However, 

as we have explained, no resentencing occurred, and therefore 

this argument fails.

In a similar manner, Torres’ assertion that the rejection 

of L.B. 268 by referendum was essentially a bill of attainder which was directed at him also fails. Torres specifically 
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. TORRES

Cite as 304 Neb. 753

claims that the “repeal of LB 268 by referendum sentenced 

. . . Torres to death.” Brief for appellant at 31. As we have 

explained, Torres’ death sentence was not suspended and the 

imposition of the death penalty was not a direct consequence 

of the referendum.

Finally, to the extent that Torres’ claim is based on a violation of separation of powers, we addressed and rejected this 

claim in State v. Mata, ante p. 326, 343, 934 N.W.2d 475, 487 

(2019), in which we concluded that the claim fails “because the 

result of the referendum is not invalidated even if such actions 

[of the Governor and other executive officers in the referendum 

process] were constitutionally improper.” The remedy is not 

invalidation of the referendum, but instead removal from “the 

violating position.” Id. at 344, 934 N.W.2d at 487.

CONCLUSION

We have reviewed de novo the district court’s determination 

that Torres failed to allege sufficient facts that demonstrate a 

violation of his constitutional rights and find no error in this 

determination. Accordingly, we affirm the district court’s order 

which denied postconviction relief.

Affirmed.

Freudenberg, J., not participating.