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State of Nebraska, appellee, v.

Marco E. Torres, Jr., appel

___ N.W.2d ___

Filed August 3, 2018. No. S-17-740.

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. Limitations of Actions. If the facts in a case are undisputed, the issue 

as to when the statute of limitations begins to run is a question of law.

3. Postconviction: Limitations of Actions. If, as part of its preliminary review, the trial court finds the postconviction motion affirmatively shows—either on its face or in combination with the files and 

records before the court—that it is time barred under Neb. Rev. Stat. 

§ 29-3001(4) (Reissue 2016), the court is permitted, but not obliged, to 

sua sponte consider and rule upon the timeliness of the motion.

4. Postconviction: Limitations of Actions: Appeal and Error. A district 

court has discretion to adopt reasonable procedures for determining 

what the postconviction motion and the files and records show, and 

whether the defendant has raised any substantial issues, before granting 

a full evidentiary hearing. District courts also have discretion to adopt 

reasonable procedures for determining whether to rule sua sponte on the 

timeliness of a postconviction motion. An appellate court will examine 

these procedures for an abuse of discretion, which exists only when the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters 

submitted for disposition.

5. Postconviction: Appeal and Error. An appellate court will not consider as an assignment of error a question not presented to the district 

court for disposition through a defendant’s motion for postconviction relief.

Nebraska Supreme Court Online Library

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

10/26/2018 10:14 AM CDT
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6. Appeal and Error. An appellate court always reserves the right to note 

plain error that was not complained of at trial or on appeal.

7. ____. Plain error may be found on appeal when an error, plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

Appeal from the District Court for Hall County: James D.

Livingston, Judge. Affirm

Jeffery A. Pickens, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellee.

Brian William Stull, of American Civil Liberties Union 

Foundation, and Amy A. Miller, of American Civil Liberties 

Union of Nebraska Foundation, for amici curiae American 

Civil Liberties Union Capital Punishment Project and American 

Civil Liberties Union of Nebraska Foundation.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, a

JJ., and Harder and Noakes, District Judges

Stacy, 

This is an appeal from the denial of postconviction relief. 

The district court, sua sponte, found Marco E. Torres, Jr.’s, successive 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. On appeal, Torres argues the procedure used 

by the district court was improper. We find no abuse of discretion in the procedure followed, and affirm.

FACTS

In 2009, a jury found Torres guilty of two counts of first 

degree murder and other felony offenses. He was sentenced to 
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death for each of the murders and sentenced to prison terms 

for the other felonies. We affirmed his convictions and sentences on direct appeal.1

Torres moved for postconviction relief in 2013, raising 

claims of prosecutorial misconduct and ineffective assistance of counsel. After various delays, the district court conducted an evidentiary hearing and then denied postconviction 

relief. We affirmed the denial of postconviction relief in 

February 2017.2

In June 2017, Torres filed this successive motion for postconviction relief. His successive motion alleges two claims, 

each premised on a U.S. Supreme Court case. Specifically, 

Torres alleges his death sentences are unconstitutional under 

Hurst v. Florida3 and Johnson v. U.S.

4

 He alleges that Hurst

and Johnson both announced newly recognized constitutional 

claims and that both should be applied retroactively to cases 

on collateral review.

The district court did not reach the merits of either of the 

claims alleged in Torres’ successive motion because it determined, sua sponte, the motion was time barred under the 1-year 

limitations period in § 29-3001(4). Section 29-3001(4) applies 

to successive postconviction motions5 and provides:

(4) A one-year period of limitation shall apply to the 

filing of a verified motion for postconviction relief. The 

one-year limitation period shall run from the later of:

1 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).

2 State v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).

3 Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) 

(holding Florida’s capital sentencing scheme unconstitutional because 

judge, not jury, made critical findings needed for imposition of death 

sentence).

4 Johnson v. U.S., ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) 

(holding “violent felony” enhancer in Armed Career Criminal Act of 1984 

unconstitutionally vague).

5 See State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
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(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 

newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or

(e) August 27, 2011.

In its order, the district court found Torres’ successive 

motion was time barred under § 29-3001(4)(d). The court 

reasoned that Torres’ claims were based exclusively on Hurst

(decided in January 2016) and Johnson (decided in June 2015), 

and both cases had been decided more than 1 year before the 

date Torres filed his successive postconviction motion. The 

court did not expressly rule on the applicability of the other 

subsections of § 29-3001(4).

After concluding the successive motion was time barred 

under § 29-3001(4)(d), the court denied postconviction relief 

and overruled Torres’ motion for appointment of counsel. 

Torres timely appealed. He filed a motion for appointment of 

counsel on appeal, which this court granted.

ASSIGNMENTS OF ERROR

Torres assigns, restated and consolidated, that the district 

court erred in (1) failing to hold a records hearing or certify 

the record pursuant to State v. Glover,

6

 (2) determining sua 

6 State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
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sponte that his successive motion was barred by the 1-year 

limitations period without giving Torres notice and an opportunity to be heard, and (3) determining his successive motion 

failed to allege sufficient facts to support claims under Hurst

and Johnson.

Torres also assigns that this court committed plain error 

when it determined, in an earlier opinion resolving his direct 

appeal, that Torres’ convictions for kidnapping, robbery, and 

two weapons charges satisfied the first prong of the aggravator 

in Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 2008).7

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.8

[2] If the facts in a case are undisputed, the issue as to 

when the statute of limitations begins to run is a question 

of law.9

ANALYSIS

As a threshold matter, we observe that Torres does not 

assign error to the district court’s finding that his successive 

motion is time barred under § 29-3001(4)(d). Nor does Torres 

argue that his successive motion is actually timely under any 

of the subsections in § 29-3001(4). Instead, he primarily challenges the procedure followed by the district court when it 

reviewed and dismissed sua sponte his successive postconviction motion.

Before we address his procedural arguments, our de novo 

standard of review requires that we determine whether the files 

and records affirmatively show Torres is entitled to no relief 

7 See Torres, supra note 1.

8 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

9 State v. Epp, 299 Neb. 703, 910 N.W.2d 91 (2018).
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on his successive postconviction motion.10 That necessarily 

requires us to determine whether the district court correctly 

concluded his successive motion is time barred.11

Motion Is Time B

The Nebraska Postconviction Act contains a 1-year time 

limit for filing verified motions.12 Generally speaking, that 

1-year period runs from one of four triggering events or from 

August 27, 2011, whichever is later.13 Summarized, those triggering events are: (a) the date the judgment of conviction 

became final,14 (b) the date the factual predicate of the alleged 

constitutional claim could have been discovered through due 

diligence,15 (c) the date an impediment created by state action 

was removed,16 or (d) the date on which a new constitutional 

claim was recognized by either the Supreme Court of the 

United States or the Nebraska Supreme Court.17

In State in Harrison,

18 we looked to the allegations of the 

verified postconviction motion and the files and records of the 

case to determine which of the triggering events applied to our 

determination of timeliness under § 29-3001(4). We follow 

the same procedure here, and conclude none of the triggering 

events apply to make Torres’ successive motion timely.

Torres’ convictions became final on February 3, 2012,19 and 

he filed his successive motion on June 14, 2017. His successive motion is not timely under § 29-3001(4)(a), because it was 

10 See Johnson, supra note 8.

11 See State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).

12 See § 29-3001(4).

13 See Harrison, supra note 11 (citing § 29-3001(4)).

14 § 29-3001(4)(a).

15 § 29-3001(4)(b).

16 § 29-3001(4)(c).

17 § 29-3001(4)(d).

18 Harrison, supra note 11.

19 See Torres, supra note 1.
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filed more than 1 year after his conviction became final. His 

successive motion is not timely under § 29-3001(4)(b), because 

the factual predicates for the claims he asserts occurred during 

his trial and are found in the trial record. The triggering event 

in § 29-3001(4)(c) does not apply, because Torres has not 

alleged any facts suggesting the State created an impediment 

that prevented him from filing his postconviction motion.20

Torres’ successive motion is not timely under § 29-3001(4)(d), 

because he filed his motion more than 1 year after the release 

of the opinions in Hurst and Johnson—the U.S. Supreme Court 

cases that Torres contends announced a “newly recognized 

right.” And finally, Torres’ successive motion is not timely 

under § 29-3001(4)(e), because it was filed more than 1 year 

after the default date of August 27, 2011.

We thus conclude on de novo review that the verified 

motion and the files and records affirmatively show that Torres’ 

successive postconviction motion is barred by the 1-year limitations period of § 29-3001(4). Having concluded the district 

court was correct that the successive motion is time barred, 

we proceed to address Torres’ arguments that the district court 

erred in the procedure it followed.

Identification of Fil

Records Was Adequ

Torres argues the district court violated State v. Glover,

21

because it did not hold a records hearing or otherwise identify 

the files and records on which it relied in denying postconviction relief without an evidentiary hearing. He asks that we 

reverse the order and remand the matter with directions to 

comply with Glover.

In Glover, the defendant filed a motion for postconviction 

relief alleging ineffective assistance of counsel. The State filed 

a motion asking the court to deny relief without conducting an 

20 See, Amaya, supra note 5; Harrison, supra note 11.

21 Glover, supra note 6.
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evidentiary hearing. The postconviction court held a hearing on 

the State’s motion. At that hearing, it received a copy of trial 

counsel’s deposition which had been taken after the postconviction motion was filed. The court then relied on the deposition to conclude the files and records affirmatively showed the 

defendant was not entitled to relief.

The defendant in Glover appealed, and we disapproved of 

the procedure used by the district court. We explained that the 

“files and records of the case”22 upon which a postconviction 

court should rely in denying an evidentiary hearing are the files 

and records existing before the postconviction motion is filed.23

We recognized that a district court has discretion to adopt reasonable procedures for determining which files and records 

to review, but we stated that if the relevant case records and 

files are not received at a formal “records” hearing, the court 

should certify and include in the transcript the files and records 

it considered in denying relief.24 We have since explained that 

the “obvious” reason for the Glover procedure is to facilitate 

appellate review.25

Torres argues the district court erred because it did not hold 

a formal records hearing or certify the files and records it considered in denying postconviction relief. We find no error in 

the procedure followed here.

The district court’s order made express findings regarding the history of Torres’ case and based those findings on 

its “review of the files and records” in this case. The court’s 

order made specific findings regarding: (1) the date of Torres’ 

convictions, (2) the date his direct appeal became final, (3) the 

date he filed his prior postconviction motion and the date on 

which the denial of that motion was affirmed by this court, (4) 

the date he filed his successive postconviction motion, and (5) 

22 § 29-3001(2).

23 Glover, supra note 6, 276 Neb. at 628, 756 N.W.2d at 162.

24 Id.

25 State v. Lee, 282 Neb. 652, 665, 807 N.W.2d 96, 107 (2011).
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the dates both Hurst and Johnson were decided by the U.S. 

Supreme Court.

It was plainly evident from the court’s order which files and 

records it relied upon, and all such records existed before the 

successive motion was filed and are contained in the transcript. 

We find no merit to Torres’ first assignment of error, and there 

is no need to remand this matter for a formal records hearing 

under Glover.

Sua Sponte Considerati

Statute of Limitati

Next, Torres argues the sua sponte procedure utilized by 

the postconviction court did not afford him sufficient notice 

or opportunity to be heard on the question of whether his 

successive postconviction motion was time barred. He asks 

us to either overrule or modify our recent decision in State v. 

Amaya,

26 which expressly authorized such sua sponte review.

In Amaya, we held a postconviction court could, but was 

not required to, raise the statute of limitations issue sua sponte 

as part of its preliminary review under § 29-3001(2).27 The 

successive postconviction motion at issue in Amaya expressly 

acknowledged the 1-year limitations period of § 29-3001(4), 

but affirmatively alleged it was “not time barred”28 for two 

reasons: (1) because the limitations period could not be retroactively applied to the inmate and (2) because an impediment created by state action prevented the inmate from filing 

sooner.29 The district court found no merit to either allegation, 

and denied relief without an evidentiary hearing after finding 

the motion was time barred.

[3] On appeal, we affirmed the procedure followed by the 

district court. We acknowledged our prior holding that the 

26 Amaya, supra note 5.

27 Id.

28 Id. at 72, 902 N.W.2d at 678.

29 Amaya, supra note 5. See § 29-3001(4)(c).
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statute of limitations under § 29-3001(4) is an affirmative 

defense and not a jurisdictional requirement,30 so a district 

court is under no obligation to raise a time bar sua sponte. But 

we held that a postconviction court is permitted to raise a time 

bar as part of its preliminary review, and we announced the 

following rule:

[I]f, as part of its preliminary review, the trial court finds 

the postconviction motion affirmatively shows—either on 

its face or in combination with the files and records before 

the court—that it is time barred under § 29-3001(4), the 

court is permitted, but not obliged, to sua sponte consider 

and rule upon the timeliness of the motion.31

Torres notes that in Amaya, this court found “‘instructive’”32

the U.S. Supreme Court’s reasoning in Day v. McDonough.33

And although Torres concedes that the federal procedural 

requirements imposed in Day are not binding in Nebraska 

postconviction proceedings, he nevertheless urges us to adopt 

that procedure.

Day involved a federal petition for a writ of habeas corpus. 

The government’s answer had admitted the petition was timely 

filed, but several months later, the federal court found a mathematical error and concluded the petition was untimely. The 

court then dismissed the petition as time barred.

The issue in Day was whether the court could raise the 

statute of limitations issue sua sponte after the government 

had answered the petition. Notably, the parties and the Court 

generally conceded that the district court could have sua 

sponte raised the issue of timeliness during its preliminary, 

pre-answer review.34 The parties disputed only whether the 

30 State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).

31 Amaya, supra note 5, 298 Neb. at 77, 902 N.W.2d at 681. See § 29-3001(2).

32 Brief for appellant at 17.

33 Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 164 L. Ed. 2d 376 

(2006).

34 Id.
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court lost that authority once the government had answered the 

petition and admitted timeliness.

The statute of limitations for federal habeas cases is similar to the statute of limitations in § 29-3001(4).35 And like 

§ 29-3001(4), the federal habeas limitations period is considered a nonjurisdictional, affirmative defense that can be 

waived by the government.36 The U.S. Supreme Court in Day

suggested it would generally be an abuse of discretion for a 

trial court to override a State’s deliberate waiver of the limitations defense, but it nevertheless concluded the government’s 

mathematical error had not amounted to a deliberate waiver. 

Day ultimately held that “district courts are permitted, but 

not obliged, to consider, sua sponte, the timeliness of a state 

prisoner’s habeas petition.”37 The Court reasoned that it made 

“scant sense” to distinguish the statutory time bar from other 

“threshold constraints” federal district courts are routinely 

permitted to address sua sponte in habeas actions, including failure to exhaust state remedies, procedural bars, and 

nonretroactivity.38

Torres emphasizes that while Day permitted sua sponte 

consideration of limitations issues, it also imposed a specific 

procedure on federal courts undertaking such consideration:

[B]efore acting on its own initiative, a court must accord 

the parties fair notice and an opportunity to present 

their positions. . . . Further, the court must assure itself 

that the petitioner is not significantly prejudiced by the 

delayed focus on the limitation issue, and “determine 

whether the interests of justice would be better served” 

by addressing the merits or by dismissing the petition as 

time barred.39

35 Compare § 29-3001(4), with 28 U.S.C. § 2244(d)(1) (2012).

36 Day, supra note 33.

37 Id., 547 U.S. at 209.

38 Id.

39 Id., 547 U.S. at 210 (citations omitted).
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Torres urges us to either overrule Amaya altogether and preclude district courts from raising timeliness sua sponte, or 

modify Amaya by requiring district courts to follow the federal 

habeas procedure set out in Day. We decline both invitations.

In Amaya, we recognized that the plain language of 

§ 29-3001 both authorizes and requires a district court to 

conduct a preliminary review of a postconviction motion to 

determine whether “‘the files and records of the case show to 

the satisfaction of the court that the prisoner is entitled to no 

relief.’”40 And we adhere to our holding that if, as part of its 

preliminary review, the district court finds the postconviction 

motion affirmatively shows—either on its face or in combination with the files and records before the court—that it is 

time barred under § 29-3001(4), the court is permitted, but not 

obliged, to sua sponte consider and rule upon the timeliness of 

the motion.41

In connection with such review, we are not persuaded it is 

necessary to endorse or require any particular procedure for a 

district court to follow. Instead, we leave such procedural matters to the discretion of the district court.

[4] We have long recognized that a district court has discretion to adopt reasonable procedures for determining what 

the postconviction motion and the files and records show, 

and whether the defendant has raised any substantial issues, 

before granting a full evidentiary hearing.42 District courts also 

have discretion to adopt reasonable procedures for determining 

whether to rule sua sponte on the timeliness of a postconviction motion, and that necessarily includes discretion to provide 

the parties an opportunity to present their positions before 

acting sua sponte to dismiss a postconviction motion as time 

40 Amaya, supra note 5, 298 Neb. at 76, 902 N.W.2d at 680 (quoting 

§ 29-3001(2)).

41 Amaya, supra note 5.

42 See, e.g., Lee, supra note 25; Glover, supra note 6; State v. Bazer, 276 

Neb. 7, 751 N.W.2d 619 (2008); State v. McLeod, 274 Neb. 566, 741 

N.W.2d 664 (2007); State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
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barred. An appellate court will examine such procedures for 

an abuse of discretion, which exists only when the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying a just result in matters submitted for disposition.43

We find no abuse of discretion in the procedure followed 

by the district court in this case. Torres presents no argument 

that his successive motion was timely filed under any subsection of § 29-3001(4), and he points to nothing he might 

have argued or offered, if provided such an opportunity, that 

would have changed the court’s conclusion his claim was time 

barred. Under these circumstances, we cannot find the procedure followed by the district court unfairly deprived Torres of 

a substantial right or a just result, and thus we find no abuse 

of discretion.

District Court Did Not 

Merits of Torres’ Claims U

Hurst and Johns

Torres assigns that the district court erred in finding his successive motion failed to allege sufficient factual allegations to 

support his postconviction claims under Hurst and Johnson. 

This assignment misconstrues the nature of the dismissal in 

this case.

The postconviction court did not rule on the merits of Torres’ 

postconviction claims under Hurst and Johnson, because it 

never reached the merits. Instead, the court dismissed the successive postconviction motion as time barred. Because of this, 

the district court did not address the sufficiency of the factual 

allegations under Hurst and Johnson, and this assignment of 

error lacks merit.

Plain Er

In Torres’ final assignment of error, he asserts this court 

committed plain error when it determined, in his direct appeal, 

43 Lee, supra note 25.
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that his convictions for kidnapping, robbery, and weapons 

charges satisfied the first prong of the aggravator under 

§ 29-2523(1)(a).44 He asks this court to recognize the plain 

error and remand the matter for resentencing.

[5] The State argues, correctly, that Torres did not allege 

this claim in his successive motion for postconviction relief. 

We have held that an appellate court will not consider as an 

assignment of error a question not presented to the district 

court for disposition through a defendant’s motion for postconviction relief.45 We adhere to this proposition of law and 

express no opinion on how Torres might properly present such 

a claim.

[6,7] And although an appellate court always reserves the 

right to note plain error that was not complained of at trial or 

on appeal,46 we decline to exercise that right in this instance. 

Plain error may be found on appeal when an error, plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process.47 But 

the error about which Torres complains was dicta expressed in 

an alternative holding, and thus could not prejudicially affect 

his substantial right or result in damage to the integrity, reputation, and fairness of the judicial process.48

CONCLUSION

For the foregoing reasons, we affirm the district court’s 

order dismissing Torres’ successive postconviction motion as 

time barred.

Affirmed

44 See Torres, supra note 1.

45 State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015); State v. Haas, 279 

Neb. 812, 782 N.W.2d 584 (2010).

46 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

47 Id.

48 See id.