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State of Nebraska, appellee, v.

Raymond Mata, Jr., appell

___ N.W.2d ___

Filed October 25, 2019. No. S-18-740.

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. 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.

3. Constitutional Law: Trial. Inherently prejudicial practices, like shackling, are constitutionally forbidden during the guilt phase of a trial 

unless the use is justified by an essential state interest specific to 

each trial.

4. Postconviction: Appeal and Error. A motion for postconviction relief 

cannot be used to secure review of issues which were or could have 

been litigated on direct appeal.

5. Limitations of Actions. The doctrine of equitable tolling permits a 

court to excuse a party’s failure to comply with the statute of limitations 

where, because of disability, irremediable lack of information, or other 

circumstances beyond his or her control, the plaintiff cannot be expected 

to file suit on time.

6. Statutes: Initiative and Referendum. Upon the filing of a referendum 

petition appearing to have a sufficient number of signatures, operation 

of the legislative act is suspended so long as the verification and certification process ultimately determines that the petition had the required 

number of valid signatures.

7. Postconviction: Proof. In a postconviction proceeding, an evidentiary hearing is not required when the motion does not contain factual 

Nebraska Supreme Court Online Library

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

11/22/2019 01:06 AM CST
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allegations which, if proved, constitute an infringement of the movant’s 

constitutional rights.

Appeal from the District Court for Scotts Bluff County: Le

P. Dobrovolny, Judge. Affirm

Bernard J. Straetker, Scotts Bluff County Public Defender, 

for appellant.

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

Solicitor General, 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 of Nebraska and American Civil Liberties 

Union Foundation.

Tracy Hightower-Henne, of Hightower Reff Law, G. Michael 

Fenner, of Creighton University School of Law, and Kevin 

Barry, of Quinnipiac University School of Law Legal Clinic, 

for amici curiae Legal Scholars.

Robert F. Bartle, of Bartle & Geier, and Anne C. Reddy, 

Keith Hammeran, and Tom Lemon, of Greenberg Traurig, 

L.L.P., for amici curiae former Nebraska Justices and Judges.

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

Papik, JJ., and Pirtle, Judg

Funke, 

Raymond Mata, Jr., appeals the district court’s denial of his 

second amended motion for postconviction relief without an 

evidentiary hearing. This postconviction action follows our 

decisions on direct appeal (Mata I),1 after remand (Mata II),2

1 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other 

grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

2 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
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and after denial of an initial motion for postconviction relief 

(Mata III).3 Mata argues the district court erred in denying 

his constitutional claims that he was made to wear shackles 

in front of the jury during jury selection, overruling and finding untimely his claims that the sentencing scheme requiring 

a judge to make factual findings to impose the death penalty was unconstitutional, and overruling and finding untimely 

his claims that his constitutional rights were violated by the 

Legislature’s passing a bill repealing the death penalty but a 

public referendum reimposing it. For the reasons stated herein, 

we affirm.

BACKGROUND

Mata was found guilty of first degree premeditated murder, 

first degree felony murder, and kidnapping in association with 

the death of 3-year-old Adam Gomez. In Mata I,

4

 we explained 

the evidence adduced at trial showed Adam was the son of 

Patricia Gomez and Robert Billie. Patricia, Billie, and Adam 

lived together until September 1998, when Patricia and Billie 

ended their relationship and Billie moved out. Shortly thereafter, Mata and Patricia began dating, and Mata moved in with 

Patricia and Adam in October or November. Patricia later told 

police that although Mata did not treat Adam badly, Mata consistently expressed resentment of Adam.

Mata moved out on February 10, 1999, and moved in with 

his sister. That night, Patricia and Billie had sexual relations. 

On February 11, Patricia obtained a restraining order against 

Mata. However, Patricia continued to see Mata and they had 

sexual relations on February 14.

Later in February 1999, Patricia found out she was pregnant. 

Mata became aware of Patricia and Billie’s sexual encounter 

and heard that the child had been conceived between February 

3 State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010), disapproved, State 

v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

4 Mata I, supra note 1.
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7 and 10. Mata had separate confrontations with both Patricia 

and Billie about their relationship.

On March 11, 1999, Mata discovered that Patricia, Billie, 

and Adam attended a doctor’s appointment for Adam together. 

That day, Mata unsuccessfully attempted to have Patricia come 

to his sister’s house to visit him. When Patricia would not 

come to him, Mata went to Patricia. At her residence, Adam 

was watching television and Mata sent him to bed. Patricia 

testified she fell asleep while Mata watched television. Patricia 

said that when she woke up, Mata and Adam were gone, as 

was the sleeping bag that Adam had been using as a blanket. 

Mata denied knowing where Adam was when Patricia called at 

3:37 a.m. Mata came back to Patricia’s house and told Patricia 

that Adam was likely with her mother or Billie.

In subsequent searches of Mata’s sister’s residence, police 

found Adam’s sleeping bag and clothing Adam had been 

wearing in a bag in the dumpster behind the residence. The 

bag also contained trash identified as being from the residence, including a towel and a boning knife that Mata’s sister 

denied throwing away. In the residence, police found human 

remains in the basement room occupied by Mata. Hidden 

in the ceiling was a package wrapped in plastic and duct 

tape which contained a crushed human skull. The skull was 

fractured in several places by blunt force trauma that had 

occurred at or near the time of death. The head had been severed from the body by a sharp object at or near the time of 

death. In the kitchen refrigerator, police found a foil-wrapped 

package of human flesh. Mata’s fingerprint was found on the 

foil. Human remains were also found on a toilet plunger and 

were found to be clogging the sewer line from the residence. 

Human flesh, both cooked and raw, was found in a bowl of 

dog food and in a bag of dog food. Human bone fragments 

were recovered from the digestive tract of Mata’s sister’s dog. 

All of the recovered remains were later identified by DNA 

analysis as those of Adam. Adam’s blood was also found on 

Mata’s boots.
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After Mata was convicted, he was sentenced to life imprisonment for kidnapping and a three-judge panel sentenced him 

to death for first degree premeditated murder, finding the existence of an aggravating circumstance under Neb. Rev. Stat. 

§ 29-2523(1)(d) (Cum. Supp. 2002). In Mata I, we affirmed 

these convictions and the life imprisonment sentence for kidnapping. Based upon Ring v. Arizona,

5

 which was decided after 

the sentencing, we vacated the death sentence and remanded 

the cause with directions for a new penalty phase hearing and 

resentencing on the first degree premeditated murder conviction, requiring the jury to determine the existence of aggravating circumstances.6

On remand, the jury unanimously found the existence of the 

aggravating circumstance of exceptional depravity. A threejudge panel then heard evidence on mitigating circumstances 

and sentencing disproportionality. The panel found no statutory mitigating circumstances, considered five nonstatutory 

mitigating circumstances, and concluded the mitigating factors did not approach or exceed the weight of the exceptional 

depravity finding. The panel determined the penalty was not 

excessive or disproportionate to the penalty imposed in similar 

cases and again sentenced Mata to death on the first degree 

premeditated murder conviction.

In Mata II, issued February 8, 2008, we affirmed the imposition of Mata’s death sentence. However, we determined that 

electrocution, as a means of carrying out that sentence, was 

cruel and unusual punishment in violation of Neb. Const. art. 

I, § 9, and issued an indefinite stay of Mata’s execution.7 Mata 

filed a petition for certiorari with the U.S. Supreme Court. On 

October 6, the Supreme Court denied Mata’s petition.

On July 2, 2009, Mata filed a pro se motion for postconviction relief. At a preliminary hearing in October to consider 

5 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

6 Mata I, supra note 1.

7 Mata II, supra note 2.
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whether to grant a request of counsel and an evidentiary hearing, Mata argued that he believed an evidentiary hearing would 

be premature because he was not “‘ready’” and wished for 

the court to first consider the appointment of counsel who he 

hoped could assist him in evaluating the record and amending the motion before the merits would be determined.8

 Mata 

explained that he filed the motion for postconviction relief 

without first fully reviewing the record, because he needed 

to toll the 1-year statute of limitations for filing an application for a writ of habeas corpus in federal court. He claimed 

that our indefinite stay of his execution had placed him in 

a legal “‘limbo’” which prevented him from filing a habeas 

action within a year from the final judgment.9 Mata stated he 

would like an opportunity to amend his motion, with or without counsel.

In a single final order, the district court denied both an 

evidentiary hearing and Mata’s request for appointment of 

counsel. The court did not specifically determine whether the 

motion for postconviction relief presented any justiciable issue 

which would entitle Mata to appointment of counsel. Instead, 

the court found that the files and records affirmatively showed 

that Mata was entitled to no relief based on the allegations in 

his motion.

In Mata III, we found it was an abuse of the district court’s 

discretion to deny Mata leave to amend his motion for postconviction relief, reversed the district court’s judgment, and 

remanded the cause with directions to appoint Mata counsel 

and grant him leave to amend his motion. The mandate in 

Mata III was issued on March 8, 2011, and Mata was appointed 

postconviction counsel on March 15.

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. 

8 Mata III, supra note 3, 280 Neb. at 851, 790 N.W.2d at 717.

9 Id. at 851, 790 N.W.2d at 718.
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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 30.10

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].’”11

On December 4, 2017, Mata filed his first amended motion 

for postconviction relief, and on March 16, 2018, he filed 

a second amended motion. The district court denied Mata’s 

second amended motion for postconviction relief without an 

evidentiary hearing. Mata timely appealed.

ASSIGNMENTS OF ERROR

On appeal, Mata assigns, consolidated and restated, that the 

district court erred in (1) denying the claim that his constitutional rights were violated by being shackled during jury selection, because it could have been, and was, brought and decided 

on direct appeal; (2) denying and finding untimely Mata’s 

claims that his Sixth Amendment rights were violated by having a panel of judges find mitigating circumstances and weigh 

those circumstances against the jury’s finding of aggravating 

10 See State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

11 See id. at 706, 931 N.W.2d at 877. See, also, Neb. Const. art. III, § 3.
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circumstances; (3) denying and finding untimely Mata’s claims 

that the referendum process and result amounted to an impermissible bill of attainder, cruel and unusual punishment, and 

violations of his due process rights by imposing a death sentence on Mata after it was changed to life imprisonment by 

L.B. 268; and (4) denying and finding untimely Mata’s claims 

that the process of the referendum and its supporting campaign 

were an improper exercise violating constitutionally recognized separation of powers.

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.12

[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.13

ANALYSIS

Use of Shackles D

Jury Select

Mata first assigns that the district court erred in denying the claim that his constitutional rights were violated by 

being shackled during jury selection. On this assignment, Mata 

alleges he was required to walk with shackles into the courtroom, in front of the jury to be selected, before being seated. 

Mata argues the district court incorrectly determined this issue 

could have been, and was, brought and decided on direct 

appeal, because Deck v. Missouri14 was not decided until after 

Mata’s first appeal.

12 State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).

13 State v. Tyler, 301 Neb. 365, 918 N.W.2d 306 (2018).

14 Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005).
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[3] This argument is without merit. Deck did not establish 

a new rule for the use of shackles throughout a trial. Deck

extended the existing holding detailed in Holbrook v. Flynn15

that inherently prejudicial practices, like shackling, are constitutionally forbidden during the guilt phase of a trial unless the 

use is “justified by an essential state interest specific to each 

trial.” Deck clarified that this requirement also applies to the 

penalty phase.16

[4] In Mata I, we addressed Mata’s claim of a constitutional 

violation of his rights due to his being shackled during jury 

selection and specifically analyzed it under the requirement 

detailed in Holbrook.

17 In his current appeal, Mata makes no 

new arguments based upon Deck’s extension of that requirement. Instead, Mata seeks to relitigate his claims which were 

rejected on direct appeal, because Deck was decided after 

Mata I and restated Holbrook’s holding. A motion for postconviction relief cannot be used to secure review of issues 

which were or could have been litigated on direct appeal.18

Accordingly, this assignment is procedurally barred.

Use of Panel of Judge

Mata’s Sent

Mata next assigns the district court erred in denying and 

finding untimely his claims challenging the use of the panel 

of judges to consider mitigating circumstances and weigh 

those circumstances against the jury’s finding of aggravating 

circumstances. In considering this constitutional challenge to 

Nebraska’s capital sentencing scheme, we must first determine 

whether these claims are time barred under Neb. Rev. Stat. 

§ 29-3001(4) (Reissue 2016).

15 Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 

(1986).

16 Deck, supra note 14.

17 Mata I, supra note 1.

18 Allen, supra note 12.
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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.19 The triggering events 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 

newly recognized right has been made applicable retroactively to cases on postconviction collateral review[.]20

Mata first made his postconviction claims challenging the 

use of a panel of judges to find and consider mitigating 

circumstances in his initial amended postconviction motion 

filed December 2017. Mata argues his claims are not time 

barred, because the U.S. Supreme Court in Hurst v. Florida21

provided newly recognized constitutional requirements for 

capital sentencing schemes. Although Hurst was decided in 

January 2016,22 Mata and amici curiae argue that equitable 

tolling should apply because the passage of L.B. 268 and its 

repeal through public referendum created uncertainty as to 

Mata’s sentence.

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

20 § 29-3001(4).

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

22 Id.
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[5] The doctrine of equitable tolling permits a court to 

excuse a party’s failure to comply with the statute of limitations 

where, because of disability, irremediable lack of information, 

or other circumstances beyond his or her control, the plaintiff 

cannot be expected to file suit on time.23 However, to date, we 

have not determined whether the doctrine of equitable tolling 

applies to postconviction actions brought under § 29-3001.24

In this matter, we again need not make the determination as 

to whether equitable tolling applies to postconviction actions. 

In order for Hurst to be pertinent, the holding must have recognized a constitutional claim and that the newly recognized 

right is applicable retroactively to cases on postconviction collateral review.

In State v. Lotter,

25 we considered the question of whether 

Hurst was a triggering event under § 29-3001(4) to challenges to Nebraska’s capital sentencing scheme. In Lotter, 

the defendant filed a motion for postconviction relief alleging Nebraska’s capital sentencing scheme was unconstitutional 

in light of Hurst and within a year of the Hurst decision. In 

finding this claim time barred, we determined that the Hurst

decision did not initially recognize a constitutional claim and 

set forth a new rule of law for sentencing. We explained Hurst

merely applied the constitutional requirement recognized in 

Ring26 that “capital defendants are entitled to a jury determination of any fact that would increase the possible maximum 

punishment,” which was a holding that utilized a rule from 

Apprendi v. New Jersey27 that “‘“[i]t is unconstitutional for a 

legislature to remove from the jury the assessment of facts that 

23 State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018).

24 See, id.; State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).

25 State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied ___ 

U.S. ___, 139 S. Ct. 2716, ___ L. Ed. 2d ___ (2019).

26 Ring, supra note 5.

27 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000).
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increase the prescribed range of penalties to which a criminal 

defendant is exposed.”’”28

In Lotter, we specifically addressed the argument Mata 

now raises that Hurst expanded on Ring and Apprendi and 

announced a new requirement that a jury must find and consider mitigating circumstances instead of a panel of judges. 

We stated:

Most federal and state courts agree that Hurst did 

not hold a jury must find beyond a reasonable doubt 

that the aggravating factors outweigh the mitigating 

circumstances. The 10th Circuit aptly observed: “[T]he 

Supreme Court’s holding in Hurst only referenced the 

[finding of aggravating circumstances] . . . . The Court 

thus did not address whether the second of the required 

findings—that mitigating circumstances do not outweigh the aggravating circumstances—is also subject 

to Apprendi’s rule.” . . . 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. And this court has previously 

concluded that neither Apprendi nor Ring require[s] that 

the determination of mitigating circumstances, the balancing function, or the proportionality review be undertaken by a jury.29

We find no reason to depart from our determination in 

Lotter that the Hurst opinion merely applied previously recognized constitutional requirements to Florida’s sentencing statute and that it did not extend the holding in Ring and Apprendi 

to finding and considering mitigating circumstances in capital 

sentencing schemes. As such, Hurst did not create a triggering event under § 29-3001(4) and Mata’s claims concerning 

Nebraska’s sentencing scheme are untimely and procedurally barred.

28 Lotter, supra note 25, 301 Neb. at 129, 917 N.W.2d at 855.

29 Id. at 144-45, 917 N.W.2d at 863-64.
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L.B. 268 and Public Ref

Mata assigns that his constitutional rights against cruel and 

unusual punishment were violated and that he was deprived 

due process of law by L.B. 268 and its repeal by public referendum, which constituted an impermissible bill of attainder. 

Central to all three constitutional claims is the proposition that 

L.B. 268 changed his sentence to life imprisonment and the 

public referendum changed it back to death.

Contrary to this proposition, however, L.B. 268 never went 

into effect. L.B. 268 was passed in May 2015 and was set 

to take effect on August 30.30 On August 26, opponents filed 

with the Nebraska Secretary of State approximately 166,000 

signatures in support of a referendum.31 Under the Nebraska 

Constitution, when a referendum is invoked as to any act “by 

petition signed by not less than ten percent of the registered 

voters . . . , it shall suspend the taking effect of such act” until 

a vote on the referendum.32 Therefore, L.B. 268 was suspended 

4 days before the effective date.

Mata and amici curiae argue a suspension under article 

III, § 3, of the Nebraska Constitution applies only once the 

Secretary of State determines the validity, sufficiency, and 

count of the petition’s signatures and determines whether constitutional and statutory requirements have been met. In the 

instant case, the Secretary of State did not certify the validity 

of sufficient signatures until October 16, 2015. Under Mata 

and amici curiae’s view, L.B. 268 was not suspended until the 

October 16 certification and was in effect from its August 30 

effective date until this certification.

We addressed this argument in State v. Jenkins.

33 In that 

case, Nikko Jenkins, who was convicted but not sentenced to 

death prior to the passage of L.B. 268, argued L.B. 268 and its 

30 See Jenkins, supra note 10.

31 See id.

32 Neb. Const. art. III, § 3.

33 Jenkins, supra note 10.
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subsequent repeal amounted to a violation of the Ex Post Facto 

Clauses of the U.S. and Nebraska Constitutions. In denying 

this claim, we rejected the notion that signatures must be verified and certified before an act’s operation will be suspended. 

We reasoned:

Jenkins’ notion conflicts with several fundamental 

principles. The power of referendum must be liberally 

construed to promote the democratic process. The power 

is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. The constitutional provisions with respect to the right of referendum 

reserved to the people should be construed to make effective the powers reserved. Stated another way, the provisions authorizing the referendum should be construed in 

such a manner that the legislative power reserved in the 

people is effectual. The right of referendum should not be 

circumscribed by narrow and strict interpretation of the 

statutes pertaining to its exercise.

Jenkins’ contention—that suspension cannot occur 

until a sufficient number of signatures are certified—

would make ineffectual the people’s power to suspend an 

act’s operation. Whether an act went into effect, and for 

how long, would depend upon how quickly the Secretary 

of State and election officials counted and verified signatures. Jenkins’ argument demonstrates the absurdity of 

such a view. Because the Secretary of State was unable 

to confirm that a sufficient number of voters signed the 

petitions until October 16, 2015, Jenkins contends that 

L.B. 268 went into effect on August 30, thereby changing 

all death sentences to life imprisonment and changing the 

status of any defendant facing a potential death sentence 

to a defendant facing a maximum sentence of life imprisonment. Such an interpretation would defeat the purpose 

of this referendum—to preserve the death penalty. Our 

constitution demands that the power of referendum not be 

impaired by ministerial tasks appurtenant to the process. 
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Having produced the signatures necessary to suspend the 

act’s operation, the people were entitled to implementation of their will.34

[6] As in Jenkins, we conclude that upon the filing of a referendum petition appearing to have a sufficient number of signatures, operation of the legislative act is suspended so long as 

the verification and certification process ultimately determines 

that the petition had the required number of valid signatures.35

Accordingly, L.B. 268 was suspended on August 26, 2015, 4 

days prior to the effective date by the filing of the referendum 

petition and necessary signatures. Mata’s cruel and unusual 

punishment, due process, and bill of attainder claims which 

assert that L.B. 268 changed his sentence to life imprisonment 

and that the repeal of L.B. 268 resentenced him to death fail, 

because L.B. 268 was suspended and no such changes in his 

sentence occurred.

It appears Mata may also be claiming he was subjected 

to cruel and unusual punishment by the political debate on 

the death penalty, the possibility that his sentence would be 

changed by L.B. 268 regardless of whether it went into effect, 

and the threat of his sentence of death remaining through the 

repeal of L.B. 268. However, the entirety of Mata’s analysis 

and supporting authority presumes his sentence was changed 

by L.B. 268, which, as determined above, did not occur, 

because it was suspended prior to its effective date. Mata provides no argument or authority for the proposition that a cruel 

and unusual punishment violation could occur from a stated 

possibility of a change in a defendant’s sentence and the public 

debate on that issue, and we find none.

Additionally, Mata’s assertion that public debate and the 

potential effect of a suspended bill is enough to warrant a 

cruel and unusual punishment finding is flawed. Assuming 

without deciding that emotional or psychological harm alone 

34 Id. at 709-10, 931 N.W.2d at 878-79.

35 Jenkins, supra note 10.
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is to be considered pain in an Eighth Amendment analysis, 

the U.S. Supreme Court has repeatedly held that because 

some risk of pain is inherent in any method of execution, 

the Constitution does not require the avoidance of all risk of 

pain.36 “‘The Eighth Amendment’s prohibition of “cruel and 

unusual” punishments necessarily excludes from constitutional 

recognition de minimis uses of physical force, provided that 

the use of force is not of a sort repugnant to the conscience 

of mankind.’”37

If the potential for a modification in a defendant’s conviction or sentence were sufficient, any defendant convicted 

and sentenced for violating a law would be eligible for relief 

every time a change in that law were contemplated by the 

Legislature, contemplated by a public referendum, vetoed 

by the Governor, or subjected to public debate. Moreover, it 

would open the door to a cruel and unusual challenge following every case where an appeal of a conviction or sentence is 

granted, whether successful or unsuccessful, in that the appeal 

process would also provide a possibility for a change in the 

party’s conviction or sentence. While we acknowledge the 

potential for modification of a defendant’s conviction or sentence is likely to affect that defendant, this potential does not 

rise to the level of unnecessary and wanton infliction of pain 

necessary for a determination of cruel and unusual punishment.38 Instead, they are necessary aspects of our democratic 

system which demands the examination and reexamination of 

its laws and participation of the electorate through political 

36 Bucklew v. Precythe, ___ U.S. ___, 139 S. Ct. 1112, 203 L. Ed. 2d 521 

(2019); Glossip v. Gross, ___ U.S. ___, 135 S. Ct. 2726, 192 L. Ed. 2d 

761 (2015); Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 

(2008).

37 Wilkins v. Gaddy, 559 U.S. 34, 37-38, 130 S. Ct. 1175, 175 L. Ed. 2d 995 

(2010), quoting Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. 

Ed. 2d 156 (1992).

38 See, U.S. Const. amend. VIII; Neb. Const. art. I, § 9. See, also, Mata II, 

supra note 2.
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debate. Accordingly, Mata was not subjected to cruel and 

unusual punishment by the political debate on the death penalty, the possibility that his sentence would be changed by 

L.B. 268, and the threat of his sentence of death remaining 

through the repeal of L.B. 268.

Separation of Pow

Mata next challenges the process involved in the repeal of 

L.B. 268 through the public referendum. To the extent Mata’s 

claims under this assignment require that L.B. 268 went into 

effect prior to being suspended by the referendum process, 

those claims are without merit as described in the previous section.39

On Mata’s remaining claims under this assignment, Mata 

asserts the Governor and State Treasurer impermissibly organized and contributed to a group which opposed L.B. 268 

and worked toward its repeal through the public referendum, 

solicited money for the opposition group, and took on leadership within the opposition group. Mata seems to make claims 

of due process and cruel and unusual punishment violations 

derived from separation of powers requirements under the 

Nebraska Constitution. However, while Mata states that the 

participation of the Governor and State Treasurer in the process of the referendum violated his due process rights and 

rights against cruel and unusual punishment, it is unclear on 

what basis Mata is alleging such violations occurred. Instead, 

Mata’s argument exclusively centers on how the Governor’s 

and State Treasurer’s actions supporting and participating 

in the referendum violated the constitutional separation of 

powers requirements and that such violations invalidated 

the referendum.

Mata relies on two provisions under the Nebraska 

Constitution: Neb. Const. art. III, § 1, and Neb. Const. art. II, 

§ 1. Article III, § 1, provides:

39 See Jenkins, supra note 10.
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The legislative authority of the state shall be vested 

in a Legislature consisting of one chamber. The people 

reserve for themselves the power to propose laws and 

amendments to the Constitution and to enact or reject the 

same at the polls, independent of the Legislature, which 

power shall be called the power of initiative. The people 

also reserve power at their own option to approve or 

reject at the polls any act, item, section, or part of any act 

passed by the Legislature, which power shall be called the 

power of referendum.

Article II, § 1, provides:

The powers of the government of this state are divided 

into three distinct departments, the legislative, executive, 

and judicial, and no person or collection of persons being 

one of these departments shall exercise any power properly belonging to either of the others except as expressly 

directed or permitted in this Constitution.

Mata contends these provisions establish that legislative 

authority is vested solely within the Legislature and the people through the referendum process unless expressly directed 

or permitted under the Constitution. Mata argues that this 

means members of the executive branch, such as the Governor 

and State Treasurer, are prohibited from initiating, participating, instructing, and actively supporting legislative initiatives 

through a referendum or organizing, participating, instructing, 

and actively supporting groups to do the same.

Without determining the constitutional appropriateness of 

the Governor’s and State Treasurer’s participation in the referendum process, Mata’s separation of powers claims fail 

because the result of the referendum is not invalidated even if 

such actions were constitutionally improper as alleged. Such a 

determination is in line with cases where we have previously 

found dual-service violations.40 In those cases, the remedy 

40 See, State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 

(1995); State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 

(1991).
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was not abandonment of any action in which the violating 

party participated but was to remove the party from the violating position.41

In addition, Mata asserts the Governor and State Treasurer 

acted improperly but does not allege that the Governor’s 

and State Treasurer’s participation influenced the referendum, 

that the referendum would have been frustrated if they had 

not participated, that votes were changed due to their participation, or how the referendum and its results are impossibly linked to the alleged inappropriate participation. At oral 

argument, Mata’s counsel admitted that he was unsure what 

impact the Governor or the State Treasurer had on the referendum process.

In contrast, the facts which Mata did allege demonstrate 

the repeal of L.B. 268 did not occur solely at the Governor’s 

and State Treasurer’s direction. The referendum process was a 

public process which required a petition with the signatures of 

more than 10 percent of the registered voters for its initiation, 

it required public debate and deliberation, and it required a 

public vote.

[7] In a postconviction proceeding, an evidentiary hearing is 

not required when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights.42

Mata did not allege facts sufficient to invalidate the repeal 

of L.B. 268 due to separation of powers violations, and therefore, Mata’s claims under this assignment fail to establish a 

denial or infringement on his rights so as to render his sentence 

void or voidable. Accordingly, Mata’s separation of powers 

claims fail.

CONCLUSION

For the reasons stated above, Mata is not entitled to postconviction relief for his constitutional claims involving being 

41 See id.

42 Allen, supra note 12.
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shackled during jury selection, his having a panel of judges 

find and weigh mitigating circumstances, the effect of L.B. 

268 and the referendum rejecting it, and the Governor’s 

and State Treasurer’s participation in the referendum process. Accordingly, the district court did not err in denying 

Mata’s motion for postconviction relief without an evidentiary hearing.

Affirmed

Freudenberg, J., not participatin