Torres v. Frakes

Filing 37

ORDER - IT IS ORDERED: Petitioner's Unopposed Motion to Continue Stay (Filing No. 36 ) is granted. This case shall continue to be stayed and held in abeyance until the Supreme Court either denies certiorari in State v. Torres, 936 N.W.2d 73 0 (Neb. 2020), or grants certiorari and rules on his claims. Petitioner shall file a notice advising the Court of the date he files his petition for certiorari. Petitioner shall notify the Court within 14-days regarding whether the Supreme Court grants or denies his petition for certiorari. If the Supreme Court denies certiorari, the Court will enter an order lifting the stay. If the Supreme Court grants certiorari, Petitioner shall file status reports every 90-days after certiorari is g ranted advising the Court of the status of the appeal. Respondent shall have an extension of time to file a response to the Petition until 30-days after the stay is lifted. The Clerk of Court shall terminate the previous case management deadline and set a new case management deadline of May 25, 2020: check for filing of petition for certiorari. Ordered by Magistrate Judge Michael D. Nelson. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCO E. TORRES, JR.,
Petitioner,

4:17CV3078

vs.
ORDER
SCOTT FRAKES, Director, Nebraska
Department of Correctional Services,
Respondent.

This matter is before the Court on the Unopposed Motion to Continue Stay (Filing No.
36) filed by the petitioner, Marco Torres, Jr. (“Torres”). The Court previously granted Torres’
motion to hold the instant proceedings in abeyance and stayed this case pending the resolution of
the state court proceedings on Torres’ claims pursuant to Hurst v. Florida, 577 U.S. ___, 136 S.
Ct. 616 (2016), and Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). (Filing No.
32). On August 3, 2018, the Nebraska Supreme Court affirmed the dismissal of Torres’ Hurst
claims. See State v. Torres, 915 N.W.2d 596 (Neb. 2018). On August 17, 2018, Torres notified
this Court that his Hurst claims were exhausted. (Filing No. 33). Thereafter, the Court granted
Torres’ request that the Court continue to hold these proceeding in abeyance while he exhausts
additional claims based upon the State of Nebraska’s repeal and re-imposition of the death
penalty. (Filing No. 35).
On January 3, 2020, the Nebraska Supreme Court issued its opinion affirming the Hall
County district court’s denial of Torres’ motion for post-conviction relief. State v. Torres, 936
N.W.2d 730 (Neb. 2020), and issued its mandate on February 11, 2020. Torres intends to file a
petition of certiorari to the Supreme Court of the United States and asks the Court to continue the
stay until the Supreme Court either denies certiorari or grants certiorari and rules on his claims.
After review of the instant motion and Torres’ Petition, the Court finds that this matter should
continue to be held in abeyance, pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Upon
consideration,

IT IS ORDERED:
1. Petitioner’s Unopposed Motion to Continue Stay (Filing No. 36) is granted. This case
shall continue to be stayed and held in abeyance until the Supreme Court either denies
certiorari in State v. Torres, 936 N.W.2d 730 (Neb. 2020), or grants certiorari and
rules on his claims.
2. Petitioner shall file a notice advising the Court of the date he files his petition for
certiorari.
3. Petitioner shall notify the Court within 14-days regarding whether the Supreme Court
grants or denies his petition for certiorari. If the Supreme Court denies certiorari, the
Court will enter an order lifting the stay. If the Supreme Court grants certiorari,
Petitioner shall file status reports every 90-days after certiorari is granted advising the
Court of the status of the appeal.
4. Respondent shall have an extension of time to file a response to the Petition until 30days after the stay is lifted.
5. The Clerk of Court shall terminate the previous case management deadline and set a
new case management deadline of May 25, 2020: check for filing of petition for
certiorari.
Dated this 25th day of February, 2020.

BY THE COURT:

s/ Michael D. Nelson
United States Magistrate Judge