S-20-0363, S-20-0366, S-20-0367 State of Nebraska v. John L. Lotter (Appellant)
Richardson County District Court, Hon. Vicky L. Johnson
Attorneys: James D. Smith (Office of the Attorney General, for Appellee); Rebecca E. Woodman (pro hac vice) and Timothy S. Noerringer (Naylor & Rappl) Attorneys for Appellant
Civil: Postconviction
Proceedings Below: The district court entered an order denying postconviction relief without an evidentiary hearing finding that 1) Appellant’s intellectual disability claim was time barred by Neb. Rev. Stat. 29-3001(4), and also procedurally barred because Appellant did not raise any claim of intellectual disability on direct appeal, nor was this raised in any of the Appellant’s four prior postconviction proceedings; 2) Appellant’s intellectual disability claim is not a new rule of constitutional law applicable on collateral review and the factual predicate of the claim could have been discovered through the exercise of due diligence within the one-year period of limitation when the constitutional claim itself had been recognized by the U.S. Supreme Court in Hall v. Florida, 572 U.S. 701 (2014); 3) the Supreme Court decision in Hall v. Florida was after “Atkins v. Virginia, 536 U.S. 304 (2002), which held that under the Eighth Amendment to the execution of the intellectually disabled is cruel and unusual punishment … Atkins was decided in 2002;” 4) Appellant’s intellectual disability claim is procedurally barred for not raising it in any of his four prior postconvication proceedings; and 5) Appellant’s claims based on LB 268 have no merit because Appellant makes the same arguments reject by the NE Supreme Court in State v. Jenkins, State v. Mata, and State v. Torres because LB 268 never went into effect.
Issues on Appeal: Whether the district court erred in failing to grant an evidentiary hearing on Appellant’s claim that he is intellectually disabled, and therefore “actually innocent” of the death penalty, as he belongs to the class of offenders for whom execution is categorically prohibited by the Eighth and Fourteenth Amendments; and whether the district court erred in denying an evidentiary hearing on Appellant’s claim that his death sentence was vacated by the enactment of LB 268, and that the reinstatement of his death sentence through the referendum process violated his rights to due process, to be free from cruel and unusual punishment and was an unconstitutional bill of attainder in violation of the U.S. and Nebraska Constitutions.