State v. Lotter
| Decision Date | 01 July 2022 |
| Docket Number | s. S-20-363,S-20-366,S-20-367. |
| Citation | 311 Neb. 878,976 N.W.2d 721 |
| Parties | STATE of Nebraska, appellee, v. John L. LOTTER, appellant. |
| Court | Nebraska Supreme Court |
Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E. Woodman, pro hac vice, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith, Senior Assistant Attorney General, for appellee.
In this successive motion for postconviction relief, John L. Lotter presents two claims challenging the constitutionality of his death sentences. His first claim alleges the sentences were effectively vacated, and then unconstitutionally "reimposed," as a result of the legislative process surrounding L.B. 268—a bill passed by the Nebraska Legislature in 20151 and repealed by public referendum thereafter. We refer to this as Lotter's "L.B. 268 claim." His second claim alleges that he was diagnosed as intellectually disabled in 2018 and, therefore, is ineligible for imposition of the death penalty under the U.S. Supreme Court's holding in Atkins v. Virginia.2 We refer to this as Lotter's " Atkins claim."
The district court denied postconviction relief on both of Lotter's claims without conducting an evidentiary hearing. It determined the L.B. 268 claim was meritless under settled precedent. It did not reach the merits of the Atkins claim because it determined the claim was both procedurally barred and time barred under Nebraska postconviction law.
Lotter appeals, arguing he was entitled to an evidentiary hearing on both claims. We affirm.
In 1995, a jury convicted Lotter of three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary.3 He was sentenced to death for each murder conviction and to terms of incarceration on the convictions for burglary and use of a weapon.4 On direct appeal, the burglary conviction was vacated and all other convictions and sentences were affirmed.5 Lotter's criminal judgments became final on June 7, 1999, when the U.S. Supreme Court denied his petition for writ of certiorari.6
Between 1999 and 2017, Lotter filed four motions for postconviction relief, all of which were found to be meritless.7 In addition, Lotter filed an unsuccessful motion for postconviction DNA testing in 2001,8 and unsuccessful petitions for federal habeas corpus relief in 20119 and 2017.10 None of Lotter's prior postconviction motions alleged a claim that he is intellectually disabled under Atkins.
On March 27, 2018, Lotter filed, in each of his three criminal cases, the operative motions for postconviction relief at issue in this appeal. The verified motions were identical, and the district court consolidated them and generally referred to them collectively as Lotter's fifth postconviction motion. For ease of reference, we do the same.
As stated, Lotter's fifth postconviction motion alleges two grounds for relief. Lotter's L.B. 268 claim alleges that in 2015, when the Legislature passed L.B. 268 abolishing the death penalty, it effectively vacated his death sentences and imposed life sentences. Lotter alleges that when L.B. 268 was subsequently repealed by public referendum, it resulted in "re-imposition" of his death sentences, which violated his constitutional right to due process, violated his constitutional right to be free from cruel and unusual punishment, and amounted to an unconstitutional bill of attainder.
Lotter's Atkins claim alleges that in March 2018, his attorney retained Ricardo Weinstein, Ph.D., to determine whether Lotter is intellectually disabled. After evaluating Lotter's intellectual and adaptive functioning, Weinstein issued a report concluding that Lotter "qualifies for the diagnosis of Intellectual Developmental Disability (formerly Mental Retardation)." On March 27, 2018, Lotter amended his fifth postconviction motion to add a claim that he is constitutionally ineligible for imposition of the death penalty under Atkins .11 A copy of Weinstein's report was attached as an exhibit to the operative motion.
In February 2020, the court held what was characterized as a records hearing12 on Lotter's fifth postconviction motion. Thereafter, the court entered an order denying postconviction relief on both claims without conducting an evidentiary hearing. In rejecting Lotter's L.B. 268 claim, the district court relied on several recent postconviction opinions from this court rejecting nearly identical claims as meritless.13 Based on that precedent, the court concluded as a matter of law that Lotter's L.B. 268 claim did not entitle him to postconviction relief.
The court did not address the merits of Lotter's Atkins claim, because it determined the claim was both procedurally barred and time barred under Nebraska postconviction law. The court found the claim was procedurally barred because Lotter had not raised it in any of his postconviction motions filed after 2002, when Atkins announced the constitutional rule that criminals who are intellectually disabled are ineligible for imposition of the death penalty.
The court found that Lotter's Atkins claim was time barred under Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), because it had not been filed within 1 year from any of the five triggering events identified in that statute. More specifically, the court rejected Lotter's argument that his Atkins claim was timely under § 29-3001(4)(b), reasoning that Lotter could have, with reasonable diligence, discovered the factual predicate for his Atkins claim more than 1 year before he filed the fifth postconviction motion. The court also rejected Lotter's argument that his Atkins claim was timely under § 29-3001(4)(d), which requires that a postconviction claim be filed within 1 year from "[t]he date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court ...." The court reasoned that Lotter's claim was based on the constitutional right first announced nearly 20 years ago in Atkins , and it rejected Lotter's contention that his claim was based on a new constitutional right recognized in the 2017 case of Moore v. Texas (Moore I) ,14 a case we discuss later in our analysis.
After concluding that neither of the claims presented in Lotter's fifth postconviction motion entitled him to relief, the court denied the motion without an evidentiary hearing. Lotter filed this timely appeal.
Lotter assigns, consolidated and restated, that the district court erred by not granting an evidentiary hearing on both of the claims alleged in his fifth successive motion for postconviction relief.
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.15
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which an appellate court reviews independently of the lower court's ruling.16 Similarly, if the facts in a case are undisputed, the issue as to when the statute of limitations begins to run is a question of law.17
To address Lotter's assignments of error, we begin by reviewing the legal standards, both substantive and procedural, which govern proceedings under the Nebraska Postconviction Act.18
In Nebraska, postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.19 Under the postconviction statutes, defendants in custody under sentence "may file a verified motion, in the court which imposed such sentence, stating the grounds relied upon and asking the court to vacate or set aside the sentence."20 Such a motion must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.21
The Nebraska Postconviction Act requires a court to grant a prompt hearing on a motion for postconviction relief "[u]nless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief ...."22 Under this standard, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief.23
In addition to the substantive rules governing postconviction relief, there are procedural rules which can bar postconviction relief regardless of the merits of a particular claim. Here, the district court determined that Lotter's Atkins claim was both procedurally barred and time barred under Nebraska law. We recite the general principles governing procedural bars and time bars in the next two sections of this opinion, and apply those principles later in our analysis.
The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.24 Therefore, it is fundamental that a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.25 We have explained that when an issue could have been raised on direct appeal, it is procedurally barred from postconviction relief,26 no matter how the issues may be phrased or rephrased.27
Additionally, the statute governing postconviction relief...
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State v. Lotter
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State v. Ammons
... ... We ... first address the rules governing postconviction proceedings ... Postconviction relief is a very narrow category of relief, ... available only to remedy prejudicial constitutional ... violations that render the judgment void or voidable ... State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 ... (2022). Those seeking relief under the postconviction ... statutes must file a verified motion in the court in which ... sentence was imposed "stating the grounds relied ... upon." Neb. Rev. Stat. § 29-3001(1) [314 Neb. 441] ... (Reissue 2016) ... The ... ...
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... ... 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. State v. Lotter , 311 Neb. 878, 976 N.W.2d ... 721 (2022). On appeal from the denial of postconviction ... relief without an evidentiary hearing, the question is not ... whether the movant was entitled to relief by having made the ... requisite showing; instead, it must be determined ... ...