S-17-0740 State v. Marco E. Torres Jr. (Appellant)
Hall County, Judge James D. Livingston
Attorneys: Douglas J. Peterson (Attorney General) & James D. Smith (Solicitor General) --- Jeffery A. Pickens (Nebraska Commission on Public Advocacy) (Appellant) --- Brian William Stull (American Civil Liberties Union Foundation) & Amy A. Miller (ACLU of Nebraska Foundation) (Amicus brief of ACLU Capital Punishment Project and ACLU of Nebraska in Support of Appellant)
Civil: Postconviction
Proceedings below: The district court denied Appellant’s motion for postconviction relief without conducting an evidentiary hearing.
Issues: The district court erred in 1) failing to hold a records hearing or certify and include in the transcript the files and records it considered in denying relief, in violation of State v. Glover, 276 Neb. 622 (2008), 2) determining sua sponte the period of limitations found at Neb. Rev. Stat § 29-3001(4)(d) (Reissue 2016) expired prior to the filing of Appellant’s motion for relief and dismissing the motion without giving Appellant fair notice and an opportunity to present his position regarding the period of limitations and without considering whether justice would be better served by considering the motion's merits, in violation of the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and art. I, § 3 of the Nebraska Constitution and Day v. McDonough, 547 U.S. 198(2006), 3) denying relief without conducting an evidentiary hearing on the ground that Appellant's motion did not contain any factual allegations supporting his claim that his constitutional rights, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, art. I, § 6 of the Nebraska Constitution, and Hurst v. Florida, 136 S. Ct 616 (2016), were violated, 4) denying relief without conducting an evidentiary hearing on the ground that Appellant’s motion did not contain any factual allegations supporting his claim that his constitutional rights, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, art. I, § 6 of the Nebraska Constitution, and Johnson v. United States, 135 S. Ct. 2551 (2015), were violated, and 5) the Nebraska Supreme Court committed plain error in determining Appellant’s convictions for kidnapping, robbery, and two weapon charges satisfied the first prong of aggravator l(a).