STATE v. VICTOR (1997)

ORDER

This matter came on for hearing this 15th day of January, 1997, upon the supplemented motion of the plaintiff-appellee, State of Nebraska, to establish an execution date, and the resistance thereto and motion for sanctions and motion to strike the State's reply brief of the defendant-appellant, Clarence Victor.

 With respect to the State's motion for the establishment of an execution date, it appears that there is presently pending in the district court for Douglas County, at docket 122 page 46, Victor's motion to vacate his conviction and sentence, filed pursuant to the provisions of Nebraska's postconviction statutes, Neb.Rev.Stat. §§ 29-3001 through 29-3004 (Reissue 1995), which motion raises issues grounded in provisions of the Constitution of the United States.   Notwithstanding the State's assertions, and irrespective of the number of successive filings permitted under the scheme of postconviction review created by the Nebraska Legislature in §§ 29-3001 through 29-3004, this court cannot ignore its obligation to uphold the Constitution of the United States, and therefore cannot establish an execution date in the face of unresolved federal constitutional questions.   See Victor v. Hopkins, 90 F.3d 276 (8th Cir.1996).

 With respect to Victor's motion for sanctions, notwithstanding that the foregoing conclusion concerning the State's motion for the establishment of an execution date was predictable, we  have prior to this date specifically held only that it was inappropriate for the State to move for the setting of an execution date while a federal stay was pending.  State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).

 With respect to Victor's motion to strike the State's reply brief, Victor correctly points out that our rules do not provide for such filing by the State.

WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED THAT:

(1) The State's motion for the establishment of an execution date be, and the same hereby is, overruled, without prejudice to its refiling at an appropriate future time;

(2) Victor's motion for sanctions be, and the same hereby is, overruled;  and

(3) Victor's motion to strike the State's reply brief be, and and the same hereby is, sustained, and said reply brief is hereby stricken.