Lotter v. Britten, 4:04CV3187

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: Richard G. Kopf Senior United States District Judge
• Parties: JOHN L. LOTTER, Petitioner, v. FRED BRITTEN, Warden, Tecumseh State Correctional Center, ROBERT HOUSTON, Warden, Tecumseh State Correctional Center, SCOTT FRAKES, Director, Nebraska Department of Correctional Institutions, and BRIAN GAGE, Warden, Tecumseh State Correctional Institution, Respondents.
• Docket Number: 4:04CV3187
• Decision Date: 24 February 2017

JOHN L. LOTTER, Petitioner,
v.
FRED BRITTEN, Warden, Tecumseh State Correctional Center, ROBERT HOUSTON, Warden,
Tecumseh State Correctional Center, SCOTT FRAKES,
Director, Nebraska Department of Correctional Institutions,
and BRIAN GAGE, Warden, Tecumseh State Correctional Institution, Respondents.

4:04CV3187

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

February 24, 2017

MEMORANDUM AND ORDER

John L. Lotter, a convicted killer of three who is subject to the death penalty, has been accorded well more than a decade of careful review by the undersigned and the Nebraska courts. See Lotter v. Houston, 771 F. Supp. 2d 1074 (D. Neb. 2011).¹ Despite this history, on January 22, 2014 (filing no. 109), I appointed counsel as I was seemingly required to do to seek clemency and pursue "ancillary proceedings" pursuant to 18 U.S.C. § 3599(e).²

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Counsel have been afforded an ample budget which has been approved by Chief Judge Riley. Counsel have also been given ample time to thoughtfully review and investigate this matter.

Overview of My Ruling

First, I deny with prejudice the habeas petition (filing no. 149³) and stay motion (filing no. 150) because permission to proceed with this second habeas corpus action, which is inextricably related to the stay motion, has not been procured from the Court of Appeals, as required by 28 U.S.C. § 2244(b)(1)-(3).

Secondly, and alternatively, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), I also deny with prejudice Petitioner's stay motion (filing no. 150).

Thirdly, and alternatively, pursuant to Rule 4 of the Rules Governing § 2254 Cases, I deny with prejudice Lotter's habeas petition (filing no. 149) because it plainly appears from the petition and any attached exhibits that Lotter is not entitled to relief.

Finally, I will deny a certificate of appealability. A petitioner cannot appeal an adverse ruling on his petition for writ of habeas corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1)-(2); Fed. R. App. P. 22(b)(1). The standards for certificates (1) where the district court reaches the merits or (2) where the district court rules on procedural grounds are set forth in Slack v.

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McDaniel, 529 U.S. 473, 484-485 (2000). I have applied the appropriate standard and determined that Lotter is not entitled to a certificate of appealability.

Lotter's Claims

Lotter makes two claims:

CLAIM 1: NEBRASKA'S CAPITAL SENTENCING SCHEME, REQUIRING A JUDGE, NOT A JURY, TO MAKE THE FINDINGS OF FACT NECESSARY TO IMPOSE A DEATH SENTENCE, IS UNCONSTITUTIONAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES IN LIGHT OF HURST V. FLORIDA, 136 S. CT. 616 (2016); THE STATUTORY SCHEME IS THEREFORE VOID, AND MR. LOTTER'S DEATH SENTENCE MUST BE VACATED.

CLAIM 2: THE DEATH QUALIFICATION OF MR. LOTTER'S JURY, WHO HAD NO ROLE IN THE DETERMINATION OF PUNISHMENT IN THE EVENT THEY FOUND HIM GUILTY, VIOLATED MR. LOTTER'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE IT UNDERMINED THE RELIABILITY OF THE JURY'S FACTFINDING ROLE, DIMINISHED THE JURY'S SENSE OF RESPONSIBILITY FOR THEIR VERDICT, AND DENIED HIM A FAIR TRIAL.

Brief Analysis

It is apparent why Lotter has not sought the required authorization from the Court of Appeals to proceed with this second habeas petition. While recognizing that the decision is recent, the Hurst claim was essentially raised and decided against Lotter when I denied Lotter relief in Claim 15 of his previous petition. There, I held that Ring v. Arizona, 536 U.S. 584 (2002), was not retroactive, citing Supreme Court

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precedent. Lotter, 771 F. Supp. 2d at 1112 (citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)).⁴

Lotter's Hurst claim is really a repackaged Ring claim, and there is no precedent or reason to believe that Hurst would be made retroactive when Ring was not made retroactive. Indeed, Hurst did not overrule Summerlin's holding that Ring did not apply retroactively. The Hurst claim is frivolous or nearly so, particularly when one remembers that Lotter was sentenced to death in February 1996, more than 20 years before Hurst was decided. In short, I have ruled against him once previously on essentially the same grounds, and Lotter must have, but has not obtained, permission of the Court of Appeals for a second bite of the...