Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/25/2019 09:06 AM CDT




                                                        - 326 -
                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                                   STATE v. MATA
                                                 Cite as 304 Neb. 326




                                        State of Nebraska, appellee, v.
                                        R aymond M ata, Jr., appellant.
                                                   ___ 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 shack-
                    ling, 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 certi-
                    fication process ultimately determines that the petition had the required
                    number of valid signatures.
                 7. Postconviction: Proof. In a postconviction proceeding, an eviden-
                    tiary hearing is not required when the motion does not contain factual
                                    - 327 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

      allegations which, if proved, constitute an infringement of the movant’s
      constitutional rights.

   Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
   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, Funke, and
Papik, JJ., and Pirtle, Judge.
   Funke, J.
   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).
                                  - 328 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. MATA
                            Cite as 304 Neb. 326

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 find-
ing untimely his claims that the sentencing scheme requiring
a judge to make factual findings to impose the death pen-
alty 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 thereaf-
ter, 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 con-
sistently 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.
                              - 329 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                          STATE v. MATA
                        Cite as 304 Neb. 326

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 resi-
dence, 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 sev-
ered 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.
                                    - 330 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                               STATE v. MATA
                             Cite as 304 Neb. 326

   After Mata was convicted, he was sentenced to life impris-
onment for kidnapping and a three-judge panel sentenced him
to death for first degree premeditated murder, finding the exis-
tence 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 kid-
napping. 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 convic-
tion, requiring the jury to determine the existence of aggravat-
ing circumstances.6
   On remand, the jury unanimously found the existence of the
aggravating circumstance of exceptional depravity. A three-
judge panel then heard evidence on mitigating circumstances
and sentencing disproportionality. The panel found no statu-
tory mitigating circumstances, considered five nonstatutory
mitigating circumstances, and concluded the mitigating fac-
tors 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 impo-
sition 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 postconvic-
tion 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.
                                   - 331 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                               STATE v. MATA
                             Cite as 304 Neb. 326

whether to grant a request of counsel and an evidentiary hear-
ing, 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 amend-
ing 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 applica-
tion 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 with-
out 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 post-
conviction 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.
                                      - 332 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                 STATE v. MATA
                               Cite as 304 Neb. 326

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 emer-
gency 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 certi-
fied 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 constitu-
tional rights were violated by being shackled during jury selec-
tion, 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 hav-
ing 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.
                                     - 333 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                 STATE v. MATA
                               Cite as 304 Neb. 326

circumstances; (3) denying and finding untimely Mata’s claims
that the referendum process and result amounted to an imper-
missible bill of attainder, cruel and unusual punishment, and
violations of his due process rights by imposing a death sen-
tence 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 recog-
nized separation of powers.
                   STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively 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 During
                        Jury Selection
   Mata first assigns that the district court erred in deny-
ing 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 court-
room, 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).
                                    - 334 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

   [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 consti-
tutionally 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 require-
ment. 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 post-
conviction 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 Judges in
                      M ata’s Sentencing
   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.
                                     - 335 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

   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 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
      newly recognized right has been made applicable retro-
      actively 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. Florida 21
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.
                                    - 336 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

   [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 rec-
ognized a constitutional claim and that the newly recognized
right is applicable retroactively to cases on postconviction col-
lateral review.
   In State v. Lotter,25 we considered the question of whether
Hurst was a triggering event under § 29-3001(4) to chal-
lenges to Nebraska’s capital sentencing scheme. In Lotter,
the defendant filed a motion for postconviction relief alleg-
ing 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
Ring 26 that “capital defendants are entitled to a jury determi-
nation of any fact that would increase the possible maximum
punishment,” which was a holding that utilized a rule from
Apprendi v. New Jersey 27 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).
                                    - 337 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

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 con-
sider 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 out-
      weigh 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 rea-
      sonable 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 bal-
      ancing function, or the proportionality review be under-
      taken by a jury.29
   We find no reason to depart from our determination in
Lotter that the Hurst opinion merely applied previously recog-
nized constitutional requirements to Florida’s sentencing stat-
ute 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 trigger-
ing event under § 29-3001(4) and Mata’s claims concerning
Nebraska’s sentencing scheme are untimely and procedur-
ally 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.
                                    - 338 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

                  L.B. 268 and Public R eferendum
   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 ref-
erendum, 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 con-
stitutional 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.
                              - 339 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                          STATE v. MATA
                        Cite as 304 Neb. 326

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 veri-
fied 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 full-
      est tenable measure of spirit as well as letter. The consti-
      tutional provisions with respect to the right of referendum
      reserved to the people should be construed to make effec-
      tive the powers reserved. Stated another way, the provi-
      sions 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 sig-
      natures. 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 impris-
      onment. 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.
                                    - 340 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

      Having produced the signatures necessary to suspend the
      act’s operation, the people were entitled to implementa-
      tion of their will.34
   [6] As in Jenkins, we conclude that upon the filing of a ref-
erendum petition appearing to have a sufficient number of sig-
natures, 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 pro-
vides 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.
                                     - 341 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                 STATE v. MATA
                               Cite as 304 Neb. 326

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 convic-
tion 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 follow-
ing 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 sen-
tence 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 punish-
ment.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.
                                    - 342 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                                STATE v. MATA
                              Cite as 304 Neb. 326

debate. Accordingly, Mata was not subjected to cruel and
unusual punishment by the political debate on the death pen-
alty, 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 Powers
   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 previ-
ous section.39
   On Mata’s remaining claims under this assignment, Mata
asserts the Governor and State Treasurer impermissibly orga-
nized 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 leader-
ship 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 proc­
ess 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.
                                  - 343 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. MATA
                            Cite as 304 Neb. 326

         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 prop-
      erly 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 peo-
ple 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, participat-
ing, 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 ref-
erendum 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).
                                   - 344 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                               STATE v. MATA
                             Cite as 304 Neb. 326

was not abandonment of any action in which the violating
party participated but was to remove the party from the violat-
ing 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 par-
ticipation, or how the referendum and its results are impos-
sibly 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 refer-
endum 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 allega-
tions which, if proved, constitute an infringement of the mov-
ant’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 there-
fore, 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 post-
conviction relief for his constitutional claims involving being

41
     See id.
42
     Allen, supra note 12.
                            - 345 -
          Nebraska Supreme Court A dvance Sheets
                  304 Nebraska R eports
                        STATE v. MATA
                      Cite as 304 Neb. 326

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 proc­
ess. Accordingly, the district court did not err in denying
Mata’s motion for postconviction relief without an eviden-
tiary hearing.
                                                  A ffirmed.
   Freudenberg, J., not participating.
