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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 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: 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 postconviction 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 sentencing 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/

05/22/2020 08:09 AM CDT
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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 convictions and sentences on direct appeal 4 and in two prior postconviction 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 aggravating circumstances. Roughly 10 months after Hurst was 

decided, Hessler filed this successive motion for postconviction 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.
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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 8th and 14th

Amendments.”

Identical 6th, 8th, and 14th Amendment claims based on 

Hurst were raised in a successive motion for postconviction 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 filing a verified motion for postconviction relief, which runs from 

one of four triggering events or from August 27, 2011, whichever 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 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 

7 See Neb. Rev. Stat. §§ 29-2521 to 29-2522 (Cum. Supp. 2018).

8 Lotter, supra note 2.

9 § 29-3001(4).
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. HESSLER

Cite as 305 Neb. 451

newly recognized right has been made applicable retroactively 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 triggering 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 constitutional rule from the 2002 case of Ring v. Arizona. 10 Lotter

also held that the “plain language of Hurst reveals no holding 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 collateral 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).
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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 hearing, 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 distinction 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 contending 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.
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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 aggravating 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 sentencing range. 18

As such, McKinney makes clear there is no merit to the underlying premise of Hessler’s postconviction claims.

We thus affirm the district court’s order denying postconviction 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.