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04/17/2020 01:07 AM CDT




                                                          - 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).
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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 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.
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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 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).
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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 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).
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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 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.
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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 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.
