- 451 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451

State of Nebraska, appellee, v.

Jeffrey Hessler, appellant. ___ N.W.2d ___ Filed April 3, 2020. No. S-19-652.
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 dem

onstrate 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: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling. Appeal from the District Court for Scotts Bluff County: Andrea D. Miller , Judge. Affirmed. Jerry M. Hug for appellant. Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellee. Heavican , C.J., Miller

- Lerman , Cassel , Stacy , Funke , and Papik , JJ. Stacy , J. In October 2016, Jeffrey Hessler filed this motion for post

conviction relief. The motion relies on the U.S. Supreme Court’s decision in Hurst v. Florida 1 and alleges Hessler’s death sentence is invalid because Nebraska’s capital sentenc

ing statutes violate Hessler’s rights under the 6th, 8th, and

1 Hurst v. Florida , ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016). Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/26/2020 08:08 AM CDT- 452 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451
14th Amendments to the U.S. Constitution. We addressed an identical argument in State v. Lotter 2 and held Hurst was not a proper triggering event for the 1-year limitations period of the Nebraska Postconviction Act. 3 Citing Lotter , the district court found Hessler’s motion was time barred and denied it without conducting an evidentiary hearing. Hessler appeals, and we affirm.
FACTS In 2004, Hessler was convicted by a jury of first degree murder, kidnapping, first degree sexual assault, and use of a firearm to commit a felony. He was sentenced to death on the murder conviction. He unsuccessfully challenged his convic

tions and sentences on direct appeal 4 and in two prior postcon

viction proceedings. 5 On January 12, 2016, the U.S. Supreme Court decided Hurst

. 6 Hurst found that Florida’s capital sentencing scheme was unconstitutional, because it required the trial court alone to find both that sufficient aggravating circumstances existed to justify imposition of the death penalty and that there were insufficient mitigating circumstances to outweigh the aggra

vating circumstances. Roughly 10 months after Hurst was decided, Hessler filed this successive motion for postconvic

tion relief. The motion asserts: Jurisdiction is proper in this Court as the decision in Hurst v. Florida . . . was issued by the United States Supreme Court on January 12, 2016 and . . . Hessler is asserting that Hurst is applicable in his case and therefore has one year from the date of that decision to file this motion pursuant to . . . § 29-3001 . . . .

2 State v. Lotter , 301 Neb. 125, 917 N.W.2d 850 (2018).
3 Neb. Rev. Stat. § 29-3001(4) (Reissue 2016).
4 State v. Hessler , 274 Neb. 478, 741 N.W.2d 406 (2007).
5 State v. Hessler , 282 Neb. 935, 807 N.W.2d 504 (2011); State v. Hessler ,

288 Neb. 670, 850 N.W.2d 777 (2014).
6 Hurst, supra note 1.- 453 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451
Hessler’s motion relies on Hurst and alleges that Nebraska’s capital sentencing statutes 7 violate the 6th, 8th, and 14th Amendments. It specifically alleges the Sixth amendment is violated because the Nebraska statutes allow a panel of judges, and not a jury, to “make factual findings in imposing a death sentence.” The motion further alleges “to the extent that Nebraska’s death-penalty statutes do not require a unanimous recommendation from a jury regarding whether a sentence of death should be imposed, [the statutes] violate[] the 8 th and 14 th Amendments.” Identical 6th, 8th, and 14th Amendment claims based on Hurst were raised in a successive motion for postconvic

tion relief in Lotter , 8 and we rejected them in an opinion released September 28, 2018. We reasoned that the Nebraska Postconviction Act contains a 1-year limitations period for fil

ing a verified motion for postconviction relief, which runs from one of four triggering events or from August 27, 2011, which

ever is later. 9 The triggering events under § 29-3001(4) are: (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 due 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 fil

ing 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

7 See Neb. Rev. Stat. §§ 29-2521 to 29-2522 (Cum. Supp. 2018).
8 Lotter, supra note 2.
9 § 29-3001(4).- 454 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451 newly recognized right has been made applicable retroac

tively to cases on postconviction collateral review[.] Like Hessler’s postconviction claims, the claims alleged in Lotter regarding the 6th, 8th, and 14th Amendments were all based on Hurst , and the defendant in Lotter relied on the trig

gering event in § 29-3001(4)(d) to contend the claims were timely. We rejected this contention. We held in Lotter that Hurst could not trigger the 1-year statute of limitations under § 29-3001(4)(d), because Hurst did not announce a new rule of law and merely applied the con

stitutional rule from the 2002 case of Ring v. Arizona. 10 Lotter also held that the “plain language of Hurst reveals no hold

ing that a jury must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating circumstances.” 11 Finally, Lotter reasoned that even if Hurst announced a new rule of law, it would not apply retroactively to cases on col

lateral review, because it was based on Ring and the U.S. Supreme Court has held that Ring announced a procedural rule that does not apply retroactively. 12 Having concluded in Lotter that Hurst did not announce a new rule of law, we rejected the defendant’s contention that Hurst could trigger the 1-year statute of limitations under § 29-3001(4)(d), and we found the defendant’s postconviction claims were time barred. 13 The defendant’s petition for a writ of certiorari was denied by the U.S. Supreme Court on June 17, 2019. 14 Citing to our analysis and holding in Lotter , the district court here found that Hessler’s motion was time barred, and it dismissed the motion without an evidentiary hearing. Hessler timely appealed.

10 Ring v. Arizona , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
11 Lotter, supra note 2, 301 Neb. at 144, 917 N.W.2d at 864.
12 Schriro v. Summerlin , 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442

(2004).
13 Accord State v. Mata , 304 Neb. 326, 934 N.W.2d 475 (2019).
14 Lotter v. Nebraska , ___ U.S. ___, 139 S. Ct. 2716, 204 L. Ed. 2d 1114

(2019).- 455 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451
ASSIGNMENT OF ERROR Hessler assigns, restated, that the district court erred in denying his postconviction motion without an evidentiary hear

ing, because Nebraska’s capital sentencing scheme violates Hurst and the 6th, 8th, and 14th Amendments to the U.S. Constitution. STANDARD OF REVIEW [1] 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. 15 [2] Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling. 16 ANALYSIS At oral argument before this court, Hessler conceded the claims made in his successive motion for postconviction relief are identical to those raised and rejected by this court in Lotter . Hessler further conceded there was no factual distinc

tion between his postconviction claims and those asserted in Lotter , and he pointed to no change in the relevant law since our decision in Lotter

. Our decision in Lotter is dispositive of the issues presented in this appeal, and Hessler does not contend otherwise. Hurst did not announce a new rule of law, and thus it cannot trigger the 1-year statute of limitations under § 29-3001(4)(d). Because this is the only triggering event relied upon by Hessler in con

tending that his postconviction claims are timely, we agree with the district court that Hessler’s postconviction claims are time barred. For the sake of completeness, we note that even if Hessler’s claims were not time barred, they would not entitle him to

15 Mata, supra note 13.
16 Id.- 456 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v . HESSLER Cite as 305 Neb. 451 postconviction relief. After oral arguments in this case, the U.S. Supreme Court decided McKinney v. Arizona

. 17 McKinney explained: Under Ring and Hurst , a jury must find the aggravat

ing circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentenc

ing range. 18 As such, McKinney makes clear there is no merit to the under

lying premise of Hessler’s postconviction claims. We thus affirm the district court’s order denying postconvic

tion relief without an evidentiary hearing. Affirmed. Freudenberg , J., not participating.

17 McKinney v. Arizona , ___ U.S. ___, 140 S. Ct. 702, ___ L. Ed. 2d ___

(2020).
18 Id. , 140 S. Ct. at 707.