State v. Mata , 304 Neb. 326 ( 2019 )


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    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
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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: 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).
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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 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.
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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 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.
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    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.
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    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.
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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 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.
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    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).
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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 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.
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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 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
    
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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 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).
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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 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.
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    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.
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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 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.
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    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.
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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 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.
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    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.
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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 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).
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    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.
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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 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.