In the case of State of Nebraska v. John L. Lotter, the Nebraska Supreme Court addressed key principles regarding postconviction relief. The court emphasized that appellate review in postconviction cases is de novo, particularly regarding whether sufficient facts are alleged to demonstrate a constitutional rights violation. It clarified that claims may be procedurally barred if they could have been raised on direct appeal, regardless of how they are presented. The Nebraska Postconviction Act mandates that all grounds for relief must be included in the initial motion, with subsequent motions only permissible if they show that new issues were not available previously. A one-year statute of limitations governs all postconviction motions, starting when objective facts supporting the claim could have been reasonably discovered. The court also noted that an evidentiary hearing is unnecessary if the motion lacks factual allegations constituting a constitutional infringement or if the records affirmatively show entitlement to no relief.
Mental competency claims related to intellectual disability under Atkins v. Virginia do not require a formal diagnosis or a specific IQ score. Key factual elements for establishing intellectual disability include subaverage intellectual functioning, deficits in adaptive functioning, and the onset of these issues during development. Nebraska law, specifically Neb. Rev. Stat. 28-105.01(3), allows for an evidentiary presumption of intellectual disability at an IQ score of 70 or below, but does not preclude individuals with scores above 70 from presenting additional evidence of intellectual disability.
In postconviction cases, state courts must retroactively apply new substantive rules of federal constitutional law, but Hall v. Florida and Moore v. Texas do not constitute such new rules requiring retroactive application. The ruling in Sawyer v. Whitley does not obligate state courts to overlook procedural defaults in death penalty cases during collateral review. Defendants must raise all relevant arguments concerning postconviction motion timeliness in the district court to preserve them for appeal.
Statutory interpretation mandates that courts ascertain the legislature's intent from the entirety of the statute's language. Neb. Rev. Stat. 28-105.01(2) explicitly prohibits the death penalty for individuals with intellectual disabilities. The phrase "notwithstanding any other provision of law" indicates legislative intent to override conflicting laws, but does not affect the procedural and time limitations for postconviction motions under the Nebraska Postconviction Act. Lastly, the Nebraska Legislature's 2015 repeal of the death penalty did not take effect due to a referendum petition that suspended the legislative act pending verification of signatures.
In the case of John L. Lotter, the court affirmed the denial of his successive motion for postconviction relief, which raised two constitutional challenges to his death sentences. Lotter's first claim, referred to as the 'L.B. 268 claim,' argued that the Nebraska Legislature's passage of L.B. 268 in 2015 effectively vacated his death sentences and that their subsequent reimposition after a public referendum violated due process, constituted cruel and unusual punishment, and amounted to an unconstitutional bill of attainder. The district court deemed this claim meritless based on established legal precedent.
Lotter's second claim, the 'Atkins claim,' asserted his diagnosis of intellectual disability in 2018, which he argued rendered him ineligible for the death penalty under the U.S. Supreme Court's ruling in Atkins v. Virginia. The court did not address the merits of this claim, finding it both procedurally and time barred under Nebraska postconviction law. Lotter contended that he deserved an evidentiary hearing on both claims, but the court upheld the lower court's ruling. The background reveals that Lotter was convicted in 1995 of multiple serious offenses, with his death sentences affirmed on appeal, and he had previously filed several unsuccessful motions for postconviction relief. His 2018 motions, which were consolidated, included claims based on legislative changes and a newly asserted intellectual disability diagnosis, supported by an attached expert report.
In February 2020, the court held a records hearing on Lotter's fifth postconviction motion and subsequently denied his request for postconviction relief on two claims without an evidentiary hearing. The court dismissed Lotter's L.B. 268 claim, citing recent similar cases that deemed such claims meritless. It concluded that this claim did not warrant relief based on legal precedent. Regarding Lotter's Atkins claim, the court found it both procedurally and time barred. The procedural bar stemmed from Lotter not raising the claim in any postconviction motions after 2002, following the Atkins ruling that prohibits executing intellectually disabled individuals. The time bar was determined under Neb. Rev. Stat. 29-3001(4), as Lotter failed to file his claim within one year of any relevant triggering events. The court rejected Lotter's arguments for timeliness based on two specific provisions of the statute, concluding he could have discovered the factual basis for his claim earlier and that his claim did not involve a new constitutional right from the recent Moore v. Texas case. Consequently, the court denied his motion without an evidentiary hearing. Lotter appealed, arguing the court erred by not granting a hearing on his claims. The appellate court will review the denial of relief and the procedural bar independently, emphasizing that postconviction relief in Nebraska is limited to addressing significant constitutional violations that undermine the validity of a conviction.
The Nebraska Postconviction Act mandates that a court must promptly hear a motion for postconviction relief unless the motion and case records clearly show the prisoner is not entitled to relief. An evidentiary hearing is not necessary if: (1) the motion lacks factual allegations that would establish a constitutional rights infringement; (2) it contains only unsupported conclusions; or (3) the records demonstrate the defendant is entitled to no relief. Additionally, procedural rules can bar relief, irrespective of a claim's merits. In this case, the district court found Lotter's Atkins claim both procedurally and time barred under Nebraska law.
Procedurally, defendants must raise all claims for relief at the earliest opportunity, and issues known at the time of direct appeal cannot be revisited in postconviction motions. A successive motion is only permissible if it clearly indicates that the issues could not have been raised previously. This prevents endless litigation through piecemeal claims.
Regarding time limitations, a 2011 amendment established a one-year period for filing postconviction motions, starting from the later of: (a) when the judgment became final, (b) when the factual basis for the claim could have been discovered, (c) when a state-created impediment was removed, (d) when a constitutional claim was recognized retroactively, or (e) August 27, 2011.
The 1-year limitation period under Neb. Rev. Stat. 29-3001(4) applies to all postconviction motions, including those challenging death sentences. Lotter's appeal primarily concerns his Atkins claim, which alleges he should not face the death penalty due to intellectual disability. The district court denied an evidentiary hearing, ruling the claim was both procedurally and time barred. To avoid procedural barring, Lotter's fifth postconviction motion must demonstrate that the Atkins claim could not have been previously raised. He argues that the basis for his claim emerged only after his diagnosis as intellectually disabled in March 2018 and that he could not have recognized its viability until the U.S. Supreme Court's decision in Moore I. Lotter also contends that his intellectual disability claim can overcome procedural and time bars by invoking actual innocence under Sawyer v. Whitley.
Additionally, Lotter asserts that Neb. Rev. Stat. 28-105.01(2) exempts his Atkins claim from procedural and time limitations, allowing it to be raised at any time. To evaluate his arguments, the document references U.S. Supreme Court precedent, beginning with Atkins (2002), which prohibited the death penalty for individuals with intellectual disabilities, categorizing it as cruel and unusual punishment under the Eighth Amendment. The Atkins decision noted a shift in legislative consensus against executing individuals with intellectual disabilities since the earlier Penry v. Lynaugh (1989) ruling, ultimately concluding that such punishments do not serve the intended goals of deterrence or retribution.
Atkins established a constitutional rule prohibiting the death penalty for individuals who are intellectually disabled but did not specify a uniform test for determining intellectual disability, noting the absence of a national consensus. Instead, it assigned states the responsibility to create enforcement mechanisms while advising that definitions should align with contemporary clinical standards. Atkins referenced definitions from the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities, specifying that intellectual disability involves subaverage intellectual functioning and significant limitations in adaptive skills, evident before age 18.
In subsequent cases, the U.S. Supreme Court evaluated state definitions of intellectual disability against these clinical standards. The Court identified three essential criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning, and the onset of these deficits during the developmental period. The 2014 case Hall v. Florida scrutinized Florida's definition, which imposed a strict IQ cutoff of 70, preventing defendants above this score from introducing additional evidence of intellectual disability. The Supreme Court found this unconstitutional, asserting that a fixed IQ score does not reflect a defendant's true intellectual capacity and must consider the standard error of measurement (SEM). Hall emphasized that while legal definitions of intellectual disability are informed by medical diagnoses, they should not rigidly adhere to them. It concluded that courts must respect the medical community's assessments in evaluating intellectual disability claims.
In the 2017 case of Moore I, the U.S. Supreme Court evaluated the Texas Court of Criminal Appeals' (Texas CCA) definition of intellectual disability, finding it inadequate and misaligned with established clinical standards from previous cases, Atkins and Hall. The Texas CCA's definition relied on outdated perceptions and unduly emphasized adaptive strengths when assessing deficits, leading to a significant risk of imposing the death penalty on intellectually disabled individuals. Consequently, the Supreme Court vacated the defendant's death sentence and remanded the case for reevaluation.
Upon remand, the Texas CCA reaffirmed its initial conclusion regarding the defendant’s intellectual capacity. However, in Moore v. Texas (Moore II), the Supreme Court ruled that the Texas CCA's revised analysis still suffered from the same deficiencies as identified in Moore I. The Court ultimately determined that the defendant qualified as intellectually disabled and was thus exempt from the death penalty under Atkins.
Additionally, the Nebraska Legislature amended its definition of intellectual disability in 1998 to prohibit the death penalty for those with mental retardation, later updating the terminology to "intellectual disability" in 2013. The current statute defines intellectual disability as significantly subaverage general intellectual functioning concurrent with deficits in adaptive behavior, with an IQ score of 70 or below serving as presumptive evidence of such disability. Moreover, if a jury finds aggravating circumstances, a hearing must occur before any sentencing determination.
A verified motion by the defense can request a ruling to preclude the death penalty if it is shown that the defendant has an intellectual disability. The court must determine this by a preponderance of the evidence. If the defendant is found to have "significantly subaverage general intellectual functioning," the death sentence cannot be imposed. In the case of State v. Vela, the defendant, convicted of five counts of first-degree murder, claimed intellectual disability after the jury identified aggravating circumstances. The district court found that while the defendant had a low IQ score of 75, he did not demonstrate significant deficits in adaptive behavior, leading to the denial of his motion and subsequent imposition of the death penalty.
On appeal, the Nebraska Supreme Court upheld the lower court's ruling, emphasizing the importance of proving all statutory criteria for intellectual disability, particularly the deficits in adaptive behavior. The case was decided prior to relevant Supreme Court rulings but relied on established clinical models and standards for evaluating intellectual disability.
In a subsequent case, Lotter's fifth successive postconviction motion cited an expert evaluation conducted in 2018, which concluded that Lotter meets the criteria for Intellectual Developmental Disability. This report was attached to his motion for consideration in his claim of intellectual disability.
Lotter's fifth postconviction motion was evaluated by the Nebraska Supreme Court, which noted that a 2018 report indicated his full-scale IQ was 67, suggesting mild intellectual disability, and highlighted significant impairments in adaptive functioning across conceptual, social, and practical domains. Historical IQ testing revealed scores of 76 at age 10 and 92 from a defense witness during the sentencing phase. The district court deemed Lotter's Atkins claim procedurally and time barred, asserting it could have been raised in prior motions since the Atkins decision in 2002. On appeal, Lotter contested these conclusions, arguing that the procedural and time bars do not apply to Atkins claims. The court clarified that a postconviction claim is timely under statute 29-3001(4)(b) if filed within one year of discovering the factual predicate, which consists of objective facts rather than legal significance. Lotter contended that he could not have discovered the basis for his claim until 2018, but the court stated that the factual predicate for an Atkins claim includes deficits in intellectual functioning and adaptive skills, which do not hinge solely on a clinical diagnosis or specific IQ score.
Lotter's assertion that he could not have discovered critical objective facts supporting his Atkins claim before 2018 is contradicted by the existing record. During his 1998 direct appeal, expert testimony established that Lotter has several lifelong mental disorders that impaired his understanding of his actions and compliance with the law. A medical expert indicated a "high probability" of organic brain damage. Additionally, although Lotter's childhood IQ score was 76, which does not meet the statutory presumption of intellectual disability under Nebraska law, the statute does not impose a strict cutoff at 70. Instead, it allows for other evidence to be considered, and Nebraska courts apply clinical standards to evaluate claims of intellectual disability for those with IQs in the low 70s. Lotter's 2018 diagnosis of intellectual disability was supported by evidence of significant deficits in adaptive functioning present since childhood, which he has been aware of since then. Similar evidence was presented during his trial over two decades ago.
Lotter’s postconviction counsel indicated that there was an attempt to raise an intellectual disability claim following the Atkins decision during federal habeas proceedings, but this effort was ultimately abandoned without evaluations being conducted. The district court concluded that Lotter could have discovered the factual basis for such a claim through due diligence well before March 2018, rendering the claim untimely under § 29-3001(4)(b). Additionally, the court found the claim procedurally barred because it was not raised in Lotter's first postconviction motion after the Atkins ruling established that individuals with intellectual disabilities are ineligible for the death penalty.
Lotter contends that his Atkins claim is timely under § 29-3001(4)(d) because it was filed within one year of the Moore I decision, which he argues recognized a new constitutional right retroactively applicable. The determination hinges on whether Moore I introduced a new constitutional right that applies retroactively to postconviction cases. The excerpt references other cases that illustrate similar procedural and timeliness issues regarding intellectual disability claims, emphasizing the importance of due diligence in identifying the factual predicates necessary to support such claims.
State courts must apply new substantive rules of federal constitutional law retroactively during collateral review, as established by the U.S. Supreme Court. Such substantive rules include those that prohibit certain punishments based on a defendant's status or offense. The Supreme Court categorically prohibited the death penalty for intellectually disabled offenders in Atkins v. Virginia, which is recognized as a new substantive rule. However, it remains unclear whether the decisions in Hall and Moore I also announced new substantive rules requiring retroactive application. Most courts have concluded that neither Hall nor Moore I introduced new substantive rules but rather established new procedures aligned with the Atkins ruling. For instance, the Florida Supreme Court determined that Hall merely refined the procedural standards for assessing intellectual disability without broadening the protections against execution established in Atkins. Numerous other cases support this view, indicating a consensus against retroactive application of Hall and Moore I.
Kentucky's definition of intellectual disability was deemed unconstitutional, leading to a remand for an evidentiary hearing on an Atkins claim based on prevailing medical standards, without addressing retroactive application of Hall or Moore I. Both Hall and Moore I did not establish new substantive constitutional rules but refined standards for determining intellectual disability based on the earlier Atkins ruling. Consequently, Moore I does not trigger the one-year limitations period for postconviction cases. Lotter contends that Nebraska’s procedural bars should not apply to his Atkins claim due to his intellectual disability, asserting he is "actually innocent" of the death penalty, referencing the U.S. Supreme Court's Sawyer decision. The Supreme Court's "actual innocence" jurisprudence indicates that, in exceptional circumstances, a federal habeas court may grant relief without demonstrating cause for procedural defaults if a constitutional violation likely led to the conviction of an innocent person. This principle is rooted in preventing wrongful incarceration due to constitutional errors. The Court has identified three types of "actual innocence" claims, each with distinct legal standards. In Herrera v. Collins, the Court ruled that the "fundamental miscarriage of justice" exception does not apply to claims of freestanding actual innocence based solely on newly discovered evidence, as this exception is meant to address procedural errors related to other constitutional claims.
Herrera posited that in capital cases, a compelling demonstration of "actual innocence" post-trial could render a defendant's execution unconstitutional, warranting federal habeas relief if no state avenue exists to address such a claim. However, he emphasized that the threshold for this type of freestanding claim would be exceptionally high. The discussion references Schlup v. Delo, where the Supreme Court established that a claim of actual innocence can serve as a "gateway" for reviewing an otherwise procedurally barred constitutional claim in habeas proceedings. If a petitioner can show a threshold level of actual innocence, the court may then evaluate the merits of the barred constitutional claim.
Additionally, Sawyer v. Whitley introduced a distinct category of actual innocence claims concerning the death penalty, which is similar to Schlup's gateway claim but focuses on the petitioner's innocence of the death penalty rather than the underlying crime. The Sawyer Court acknowledged the difficulty of framing "innocent of death" in a conventional sense but found such claims permissible in federal habeas cases. To establish actual innocence of the death penalty, a petitioner must provide clear and convincing evidence that, absent a constitutional error, no reasonable juror would have deemed them eligible for the death penalty under state law. This requirement allows the federal court to consider the merits of constitutional claims despite procedural bars at the state level.
Nebraska's postconviction jurisprudence has recognized the freestanding "actual innocence" claim referenced in Herrera, noting that such claims can allege constitutional violations under the Nebraska Postconviction Act. However, no postconviction defendant has met the stringent requirement for an evidentiary hearing on these claims. Lotter attempted to assert a Herrera-type actual innocence claim previously but was unsuccessful. In the current case, Lotter does not claim a freestanding Herrera-type actual innocence but argues that, due to his intellectual disability, he is actually innocent of the death penalty, thereby seeking to bypass procedural and time barriers. He cites several federal cases where a Sawyer-type actual innocence claim allowed habeas petitioners to proceed on Atkins claims despite procedural bars due to intellectual disabilities. The court, however, states that recognizing an actual innocence exception to Nebraska’s procedural rules is a legislative policy decision. Citing State v. Hessler, the court declined to adopt a similar exception based on the U.S. Supreme Court's decision in Martinez v. Ryan, which did not establish a constitutional right to effective postconviction counsel.
The Nebraska Supreme Court addressed Lotter's request for recognition of a Sawyer-type actual innocence exception to the state’s procedural and time bars in postconviction relief. It reaffirmed that state courts are not compelled by federal precedents, such as Martinez or Sawyer, to excuse procedural defaults based on claims of actual innocence. The court highlighted that Nebraska law limits postconviction relief to a single proceeding and permits courts to dismiss successive motions. Thus, any change allowing such exceptions would need to come from the Legislature, not the courts.
Lotter's argument that his Atkins claim—regarding intellectual disability and the death penalty—should be exempt from procedural rules under Neb. Rev. Stat. § 28-105.01(2) was rejected. The court found this argument to lack merit, noting that it was unclear whether it had been adequately presented in the district court. The requirement for defendants to raise all applicable arguments in the district court to preserve them for appeal was emphasized. The court ultimately upheld the district court's decision to reject Lotter's claim of actual innocence regarding the death penalty.
An appellate court will not consider issues on appeal from the denial of postconviction relief if they were not raised in the original motion or addressed by the postconviction court. In the context of Nebraska law, specifically referring to State v. Conn and State v. Stelly, appellate courts typically do not entertain new arguments introduced for the first time during an appeal. The Nebraska Supreme Court ruled that an Atkins claim, which pertains to the prohibition of death penalty imposition on individuals with intellectual disabilities, is exempt from procedural and time restrictions under the Nebraska Postconviction Act. The district court had briefly dismissed a statutory argument regarding the interpretation of Neb. Rev. Stat. § 28-105.01(2), asserting it recognized only statutory claims, not constitutional ones. The court underscored the necessity of interpreting statutes in a way that aligns with legislative intent and maintains coherence among different statutory provisions. Enacted in 1998, § 28-105.01(2) established a statutory right against the death penalty for intellectually disabled individuals, predating the Atkins decision and was not intended to codify the constitutional protections established by Atkins. The statute created a procedural avenue for defendants to assert their intellectual disability before sentencing, allowing those sentenced to death prior to the statute's enactment to file a verified motion within 120 days to challenge their death sentence. Lotter, who was sentenced to death when the statute took effect, failed to utilize this provision, which was subsequently removed by the Legislature in 2013.
The enforcement procedures outlined in 28-105.01 are available only to defendants who have not yet been sentenced to death. Lotter's opportunity to request a hearing to enforce his statutory right against the death penalty has expired. He has waived his chance to pursue the enforcement procedure that was once available to him. Lotter now raises a constitutional claim of intellectual disability under Atkins, seeking to bypass procedural and time limitations established by the Nebraska Postconviction Act by interpreting the phrase “notwithstanding any other provision of law” in 28-105.01(2) as a legislative mandate that nullifies such limitations. This interpretation is rejected. Legal principles indicate that such language in statutes generally indicates an intent to override conflicting laws. However, the court finds no conflict between the rights and procedures in 28-105.01 and the limitations in the Postconviction Act. Lotter's argument improperly conflates the statutory right in 28-105.01(2) with the constitutional right acknowledged in Atkins, as the statutory right is enforced prior to sentencing under the procedures of 28-105.01(4).
The Nebraska Postconviction Act is designed exclusively to address prejudicial constitutional violations that can make a judgment void or voidable. There is no conflict between Neb. Rev. Stat. § 28-105.01(2) and § 29-3001(4), as they cover different types of claims and remedies. The former pertains to statutory claims of intellectual disability raised before sentencing, while the latter covers constitutional claims in verified postconviction motions by prisoners seeking to vacate their sentences. The phrase "notwithstanding any other provision of law" in § 28-105.01(2) does not alter the procedural and time limits for postconviction motions under the Nebraska Postconviction Act, rendering Lotter’s argument without merit.
Regarding Lotter's Atkins claim, it has been determined that it is both procedurally and time barred. Lotter also contended that he deserved an evidentiary hearing concerning his postconviction claim related to L.B. 268, which he argued vacated and reinstated his death sentences. The district court appropriately denied this claim without a hearing. The procedural history of L.B. 268 is outlined in State v. Jenkins, detailing its passage by the Nebraska Legislature in May 2015, subsequent repeal via referendum, and the legal flaws in Lotter’s claims about the legislation's effect on his death sentences. The court has previously rejected similar arguments in Jenkins, Mata, and Torres, affirming that L.B. 268 did not take effect.
Upon filing a referendum petition with sufficient signatures, the legislative act's operation is suspended until the verification process confirms the validity of the signatures. The Nebraska Supreme Court reaffirmed in Jenkins, Mata, and Torres that since L.B. 268 was suspended and did not take effect, any existing death sentences remained unchanged. Lotter acknowledged that these precedents are detrimental to his argument that L.B. 268 vacated his death sentences, which were reinstated by a public referendum. He contended that the previous cases were incorrectly decided without providing supporting arguments, leading the court to conclude there was no reason to revisit established jurisprudence. Consequently, all of Lotter's claims based on L.B. 268 were deemed meritless, and the district court appropriately denied his claims without an evidentiary hearing. Lotter's Atkins claim was also found to be both procedurally and time barred. The district court's denial of his fifth successive motion for postconviction relief was affirmed. Justice Freudenberg did not participate in the decision.
