Lotter v. Houston, No. 4:04CV3187.

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtMEMORANDUM AND ORDER
Citation771 F.Supp.2d 1074
PartiesJohn L. LOTTER, Petitioner,v.Robert HOUSTON, Warden, Tecumseh State Correctional Center, Respondent.
Decision Date25 April 2011
Docket NumberNo. 4:04CV3187.

771 F.Supp.2d 1074

John L. LOTTER, Petitioner,
v.
Robert HOUSTON, Warden, Tecumseh State Correctional Center, Respondent.

No. 4:04CV3187.

United States District Court, D. Nebraska.

March 18, 2011.Opinion Denying Motion to Amend April 25, 2011.


[771 F.Supp.2d 1080]

John L. Lotter, Tecumseh, NE, pro se.Andre R. Barry, Cline, Williams Law Firm, Sean J. Brennan, Brennan, Nielsen Law Firm, Lincoln, NE, for Petitioner.J. Kirk Brown, Jon C. Bruning, Attorney General's Office, Lincoln, NE, for Respondent.

MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge.

John L. Lotter (“Lotter” or “Petitioner”) seeks a writ of habeas corpus. His petition will be denied, and this matter will be dismissed with prejudice.

I. BACKGROUND

Lotter was convicted on three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary. He was sentenced to death for each murder conviction and to not less than 80 months nor more than 20 years of imprisonment for each use of a weapon conviction and the burglary conviction.

The Murders

Teena Brandon moved to Richardson County, Nebraska, in the fall of 1993. Brandon was a woman but had been presenting herself as a man by the name of “Charles Brayman.” Brandon became acquainted with Lotter and Thomas M. Nissen through a mutual friend and had attended parties with them. Lotter and Nissen later discovered that Brandon was a woman. Angry that they had been deceived, on December 25, 1993, they drove Brandon to a rural area and raped her in Lotter's car.

Nissen testified on behalf of the State and gave the following account. On Christmas Day 1993, Lotter and Nissen learned that Brandon had reported the rape to the police and began discussing ways to silence Brandon. By December 26, they had decided to kill her.

Nissen and Lotter drove to Lincoln, where they had reason to believe they would find Brandon. They brought a hatchet and some nylon rope, and each brought a change of clothing. According to Nissen, they planned to use the hatchet to chop off Brandon's head and hands so that her body would be difficult to identify. However, their plan went awry when they were unable to locate Brandon.

Having failed to locate Brandon on December 26, 1993, Nissen and Lotter continued to plan Brandon's murder. On December 28, Nissen and Lotter were questioned by Officer Keith Hayes of the Falls City Police Department concerning the allegations stemming from Brandon's rape.

On December 30, 1993, Nissen and Lotter went to the house of Lotter's mother, where Lotter picked up two pairs of gloves. They next went to Bill Bennett's house, where Lotter stole Bennett's handgun. After retrieving the handgun, Nissen and Lotter drove to Linda Gutierres' house to look for Brandon. Apparently thinking that Brandon was at the Gutierres residence, they put on the gloves and Lotter handed Nissen a knife. Lotter had the handgun in his hand as they walked to the door.

Although Brandon was not at the Gutierres residence, Gutierres did tell Nissen

[771 F.Supp.2d 1081]

and Lotter that Brandon was staying at Lisa Lambert's house near Humboldt, Nebraska. Nissen and Lotter then proceeded to Humboldt to kill Brandon.

At approximately 1 a.m. on December 31, 1993, Nissen and Lotter drove Lotter's car to Lambert's residence. Nissen drove while Lotter gave directions. Along the way, they drove by the deputy sheriff's home, apparently to ascertain whether the deputy would be on patrol that night.

When they reached Lambert's residence, Nissen drove down a long gravel driveway and parked the car by the side of the house. Both were wearing gloves when they got out of the vehicle. Lotter was armed with Bennett's handgun and a knife.

After pounding on the door and getting no response, Lotter kicked in the door and they entered Lambert's home. They entered the bedroom, where they encountered Lambert, who was lying on a waterbed, and her baby, who was in a crib.

Nissen asked Lambert where Brandon was and then noticed there was a person under a blanket on the floor at the foot of the bed. Removing the blanket, Nissen discovered Brandon, who apparently had been trying to hide. Nissen grabbed Brandon by the arm and stood her up. Lotter then shot Brandon, who fell on the bed. Brandon continued to twitch after being shot, so Nissen proceeded to ensure that she was dead by retrieving the knife from Lotter and stabbing Brandon in the abdomen.

After he stabbed Brandon, Nissen picked up the baby and handed the baby to Lambert. As soon as Nissen handed Lambert the baby, Lotter raised the pistol and shot Lambert in the stomach area, but the shot did not kill her. Nissen grabbed the baby and put him back in the crib.

While Lambert was still alive, Nissen asked her if anyone else was in the house. Lambert indicated that Phillip DeVine was present, so Lotter left the room to find DeVine.

Lotter returned to the room with DeVine and shot Lambert again, this time in the eye. DeVine, who had been pleading for his life, was led back to the living room at Nissen's suggestion. Nissen told DeVine to sit down, and DeVine complied by sitting on the couch. As soon as DeVine sat down, Lotter shot him twice.

Lotter then went back to Lambert's bedroom. The record indicates Lotter fired two or three more shots to ensure that everyone was dead. Nissen then went back to the bedroom and suggested that he and Lotter leave. Nissen and Lotter then left the house.

Nissen drove himself and Lotter back to Falls City. During the return trip to Falls City, Lotter threw the knife and a box containing the handgun into the Nemaha River. When they arrived in Falls City, Nissen and Lotter went to Nissen's house, where Nissen's wife, Kandi Nissen, and Rhonda McKenzie, Lotter's girlfriend, were staying. Nissen washed his hands with Clorox because he did not have his gloves on when he stabbed Brandon. Nissen and Lotter then informed Kandi Nissen and McKenzie that if anyone asked, they were home at 1 a.m. It was approximately 3 a.m. at that time.

Nissen's Testimony Compared To The “Other” Evidence

Prior to Lotter's trial, Nissen was convicted in a separate trial of first degree murder in the death of Brandon and second degree murder in the deaths of Lambert and DeVine. Nissen did not testify at his own trial, but, literally, on the eve of Lotter's trial, he made a deal and testified against Lotter. While Nissen's testimony was extremely important to the prosecutor's case against Lotter, it is also true

[771 F.Supp.2d 1082]

that the “other” evidence against Lotter was compelling.

A summary of some of that “other” evidence was provided by Lotter's appellate counsel in the direct appeal brief. In part, that defense summary included the following descriptions of the evidence which I quote:

* “Michael Lang and his fiancé, Carrie Gross, lived with Lisa Lambert from August to December of 1993. At approximately 10:00 p.m. on December 30, 1993, Mr. Lang went to the Lambert residence to take a shower following a game of basketball. He left around 11:30 p.m. and observed no one else at the residence, except Teena Brandon, Phillip DeVine, Lisa Lambert and Ms. Lambert's baby. The front door was not damaged at that time.” (Filing No. 49–17 at CM/ECF p. 40.)

* “At approximately 10:00 a.m. on December 31, 1993, Anna Mae Lambert, the mother of Lisa Lambert, went to her daughter's residence. The inside door was open and she could hear a baby crying. A man was slumped by the couch. She saw her daughter on the bed and knew something was wrong. She got a bottle for the baby and called authorities.” ( Id. at 41.)

* “Raymond Harrod, a Richardson County deputy sheriff, arrived at the Lambert residence at 10:13 a.m. There were signs that the front door had been forced open. The body of a black male was slumped on the couch with one of his legs propping up on an end table. There were two more bodies in the west bedroom.” ( Id.)

* “Dr. Blaine Roffman performed all three autopsies. Phillip DeVine had two bullet wounds to the head and died of severe brain damage.... Teena Brandon had two gunshot wounds to the head, one to the eye and one to the jaw. There was a stab wound to the right chest level of the tenth rib that penetrated the liver. Death was caused by either of the head wounds as the result of subarachnoid hemorrhage, brain hemorrhage, and brain disruption.... Lisa Lambert had two gunshot wounds to the head and one superficial graze type entrance and exit wound over her right anterior chest. Except for the superficial chest wound, either of the head wounds would have been fatal.” ( Id.)

* “Seven .380 cal. bullets and six shell casings were recovered from the residence, a mattress, a pillow, and the bodies of the victims.” ( Id.)

* “Shortly after midnight on January 1, 1994, police officers recovered one pair of gloves, a box containing a handgun, and a buck knife with the name ‘LOTTER’ written on the sheath from the ice of the Nemaha River just south of Falls City.” ( Id. at 42.)

* “William Bennett had purchased the .380 cal. handgun in late 1993 and kept it in a dresser in his bedroom.” ( Id.)

* “Mark Bohaty, a firearms and tool mark expert, testified.... His opinion was that all of the recovered bullets came from that handgun.” ( Id.)

* “Terry Lotter, Mr. Lotter's father, identified the knife as his and explained that he had printed his name on it with a magic marker.... He testified that the gloves were similar to the type he kept at home.” ( Id.)

* “The buck knife tested positive for human blood, type ‘A,’ the same type

[771 F.Supp.2d 1083]

as both Mr. Lotter and Teena Brandon.” ( Id.)

* “On December 28, 1993, Ofc. Keith Hayes interviewed both Mr. Lotter and Mr. Nissen at the Falls City Police Department. Mr. Lotter was told there were allegations made by Teena Brandon that she had been raped, kidnaped, and assaulted and that Mr. Lotter was a suspect. The interview ended about 10:30 a.m. and Mr. Lotter was released.” ( Id. at pp. 42–43.)

* “Rhonda McKenzie has a...

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3 practice notes
  • State v. Lotter, S-20-363
    • United States
    • Supreme Court of Nebraska
    • July 1, 2022
    ...petitions for writ of error coram nobis filed in 1999). [8] State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). [9] Lottery. Houston, 771 F.Supp.2d 1074 (D. Neb. 2011). [10] Lotter v. Britten, No. 4:04CV3187, 2017 WL 744554 (D. Neb. Feb. 24, 2017). [11] Atkins, supra note 2. [12] See Stat......
  • State v. Lotter, s. S-20-363
    • United States
    • Supreme Court of Nebraska
    • July 1, 2022
    ...petitions for writ of error coram nobis filed in 1999).8 State v. Lotter , 266 Neb. 758, 669 N.W.2d 438 (2003).9 Lotter v. Houston , 771 F. Supp. 2d 1074 (D. Neb. 2011).10 Lotter v. Britten , No. 4:04CV3187, 2017 WL 744554 (D. Neb. Feb. 24, 2017).11 Atkins, supra note 2.12 See State v. Glov......
  • Lotter v. Britten, 4:04CV3187
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 24, 2017
    ...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 clem......
2 cases
  • State v. Lotter, S-20-363
    • United States
    • Supreme Court of Nebraska
    • July 1, 2022
    ...petitions for writ of error coram nobis filed in 1999). [8] State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). [9] Lottery. Houston, 771 F.Supp.2d 1074 (D. Neb. 2011). [10] Lotter v. Britten, No. 4:04CV3187, 2017 WL 744554 (D. Neb. Feb. 24, 2017). [11] Atkins, supra note 2. [12] See Stat......
  • Lotter v. Britten, 4:04CV3187
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 24, 2017
    ...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 clem......

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