State v. Lotter

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2022 08:05 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. LOTTER
Cite as 311 Neb. 878State of Nebraska, appellee, v.
John L. Lotter, appellant.
___ N.W.2d ___
Filed July 1, 2022. Nos. S-20-363, S-20-366, S-20-367.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim
raised in a postconviction proceeding is procedurally barred is a ques-
tion of law which an appellate court reviews independently of the lower
court’s ruling.
3. Limitations of Actions. 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.
4. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
5. Postconviction: Constitutional Law: Proof. A postconviction motion
must allege facts which, if proved, constitute a denial or violation of a
defendant’s rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable.
6. ____: ____: ____. Under the Nebraska Postconviction Act, an eviden-
tiary hearing is not required when (1) the motion does not contain fac-
tual allegations which, if proved, constitute an infringement of the mov-
ant’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.
7. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
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STATE v. LOTTER
Cite as 311 Neb. 8788. Postconviction: Appeal and Error. 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.
9. ____: ____. When an issue could have been raised on direct appeal, it is
procedurally barred from postconviction relief, no matter how the issues
may be phrased or rephrased.
10. Postconviction: Pleadings. The effect of Neb. Rev. Stat. § 29-3001(3)
(Reissue 2016) is to require that all available grounds for postconviction
relief must be stated in the initial postconviction motion and, once that
motion has been judicially determined, any subsequent postconviction
motion regarding the same conviction and sentence may be dismissed by
the district court unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time of filing the
prior motion.
11. ____: ____. A defendant is entitled to bring a successive postconviction
motion only when the face of the motion affirmatively shows that the
issues raised therein could not have been raised in prior motions.
12. Postconviction: Limitations of Actions: Sentences: Death Penalty.
The 1-year limitation period set out in Neb. Rev. Stat. § 29-3001(4)
(Reissue 2016) governs all postconviction motions, including successive
motions and those challenging a death sentence.
13. Postconviction. For purposes of Neb. Rev. Stat. § 29-3001(4)(b)
(Reissue 2016), the factual predicate for a postconviction claim is prop-
erly understood as the important objective facts that support the claim.
14. Postconviction: Time. The 1-year period in Neb. Rev. Stat.
§ 29-3001(4)(b) (Reissue 2016) begins to run when the objective facts
underlying the claim could reasonably be discovered, and that date is
distinct from discovering that those facts are actionable.
15. ____: ____. The inquiry for purposes of Neb. Rev. Stat. § 29-3001(4)(b)
(Reissue 2016) concerns when the important objective facts could rea-
sonably have been discovered, not when the claimant should have dis-
covered the legal significance of those facts.
16. Mental Competency. The factual predicate for an intellectual disability
claim under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.
Ed. 335 (2002), does not depend on either a formal clinical diagnosis or
a particular intelligence quotient score.
17. ____. The important objective facts supporting a claim of intellectual
disability under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153
L. Ed. 335 (2002), include facts relating to subaverage intellectual func-
tioning, deficits in adaptive functioning, and the onset of these deficits
during the developmental period.
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STATE v. LOTTER
Cite as 311 Neb. 87818. Mental Competency: Presumptions. The plain language of Neb. Rev.
Stat. § 28-105.01(3) (Cum. Supp. 2020) does not establish a strict cutoff
score of 70 on an intelligence quotient test; rather, it creates an eviden-
tiary presumption in favor of finding intellectual disability when the
defendant has an intelligence quotient score of 70 or below on a reliably
administered test.
19. Mental Competency: Evidence: Appeal and Error. Nebraska appel-
late courts have not construed Neb. Rev. Stat. § 28-105.01(3) (Cum.
Supp. 2020) in a way that would prohibit those with a score above 70 on
an intelligence quotient test from presenting other evidence that would
support a finding of intellectual disability.
20. Constitutional Law: Sentences. Generally, state courts considering a
matter on collateral review must give retroactive effect to new substan-
tive rules of federal constitutional law. Substantive rules of federal con-
stitutional law include rules forbidding criminal punishment of ­certain
primary conduct, as well as rules prohibiting a certain category of pun-
ishment for a class of defendants because of their status or offense.
21. Postconviction: Constitutional Law: Time. Neither Hall v. Florida,
572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 1007 (2014), nor Moore
v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017),
announced a new substantive rule of constitutional law that must be
applied retroactively to cases on postconviction collateral review.
22. Postconviction: Death Penalty: Time. The holding in Sawyer v.
Whitley, 505 U.S. 333, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992), does
not require a state court to excuse procedural defaults in postconviction
cases or prevent a state court from enforcing its procedural or time bar
rules when presented with a challenge to imposition of the death penalty
on postconviction collateral review.
23. Postconviction: Time: Appeal and Error. Generally, when the timeli-
ness of a postconviction motion is at issue, the defendant must raise all
applicable arguments in the district court to preserve them for appel-
late review.
24. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
25. Statutes: Appeal and Error. The rules of statutory interpretation require
an appellate court to give effect to the entire language of a statute, and
to reconcile different provisions of the statutes so they are consistent,
harmonious, and sensible.
26. Death Penalty: Sentences: Mental Competency: Statutes:
Legislature: Pleadings. Neb. Rev. Stat. § 28-105.01(2) (Cum. Supp.
2020) establishes a statutory right prohibiting imposition of the death
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STATE v. LOTTER
Cite as 311 Neb. 878penalty on any person with an intellectual disability. To enforce that
statutory right, the Legislature enacted a specific statutory procedure to
allow a defendant facing the death penalty to file a verified motion and
request a hearing to determine intellectual disability, before any sentenc-
ing determination is made.
27. Statutes: Legislature: Intent: Words and Phrases. As a general prin-
ciple of statutory construction, use of the phrase “notwithstanding any
other provision of law” in a statute signals legislative intent to override
other provisions of law that conflict with the statute.
28. Postconviction: Limitations of Actions: Words and Phrases. The
phrase “notwithstanding any other provision of law” in Neb. Rev. Stat.
§ 28-105.01 (Cum. Supp. 2020) neither impacts nor overrides the pro-
cedural and time limitations applicable to postconviction motions under
the Nebraska Postconviction Act.
29. Death Penalty: Legislature: Initiative and Referendum. The
Legislature’s repeal of the death penalty in 2015 Neb. Laws, L.B. 268,
never went into effect, because upon the filing of a referendum petition
appearing to have a sufficient number of signatures, operation of the
legislative act was suspended so long as the verification and certification
process ultimately determines that the petition had the required number
of valid signatures.
30. Death Penalty: Sentences: Initiative and Referendum. Because 2015
Neb. Laws, L.B. 268, was suspended and never went into effect, any
death sentences in effect at the time were unchanged.
Appeal from the District Court for Richardson County:
Vicky L. Johnson, Judge. Affirmed.
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.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Stacy, J.
In this successive motion for postconviction relief, John L.
Lotter presents two claims challenging the constitutionality
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STATE v. LOTTER
Cite as 311 Neb. 878of his death sentences. His first claim alleges the sentences
were effectively vacated, and then unconstitutionally “reim-
posed,” as a result of the legislative process surrounding L.B.
268—a bill passed by the Nebraska Legislature in 2015 1 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.
I. BACKGROUND
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
1
See 2015 Neb. Laws, L.B. 268.
2
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335(2002).
3
See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on
denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999), cert. denied
526 U.S. 1162, 119 S. Ct. 2056, 144 L. Ed. 2d 222.
4
Id.5
Id.- 883 -
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STATE v. LOTTER
Cite as 311 Neb. 878judgments 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 post-
conviction relief, all of which were found to be meritless. 7 In
addition, Lotter filed an unsuccessful motion for postconvic-
tion DNA testing in 2001, 8 and unsuccessful petitions for fed-
eral habeas corpus relief in 2011 9 and 2017. 10 None of Lotter’s
prior postconviction motions alleged a claim that he is intel-
lectually disabled under Atkins.
On March 27, 2018, Lotter filed, in each of his three crimi-
nal 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
6
Id.7
See, State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018) (affirming
denial of postconviction motions filed in 2017); State v. Lotter, case
Nos. S-12-837 through S-12-839 (2013) (summarily affirming denial of
postconviction motions filed in 2012); State v. Lotter, 278 Neb. 466, 771
N.W.2d 551 (2009) (affirming denial of postconviction motions filed in
2007); State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003), (superseded
by statute as stated in State v. Harris, 292 Neb. 186, 871 N.W.2d 762(2015); affirming denial of amended postconviction motions filed in 1999;
and affirming denials of motions for new trial and 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).
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STATE v. LOTTER
Cite as 311 Neb. 878constitutional 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 attor-
ney retained Ricardo Weinstein, Ph.D., to determine whether
Lotter is intellectually disabled. After evaluating Lotter’s intel-
lectual and adaptive functioning, Weinstein issued a report con-
cluding 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 opera-
tive motion.
In February 2020, the court held what was characterized
as a records hearing 12 on Lotter’s fifth postconviction motion.
Thereafter, the court entered an order denying postconviction
relief on both claims without conducting an evidentiary hear-
ing. 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
11
Atkins, supra note 2.
12
See State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008) (recognizing
district court has discretion to hold records hearing to receive existing files
and records before deciding whether to grant or deny evidentiary hearing
on motion for postconviction relief).
13
See, State v. Torres, 304 Neb. 753, 936 N.W.2d 730 (2020), cert. denied
___ U.S. ___, 141 S. Ct. 295, 208 L. Ed. 2d 50; State v. Mata, 304 Neb.
326, 934 N.W.2d 475 (2019), cert. denied ___ U.S. ___, 141 S. Ct. 167,
207 L. Ed. 2d 1101 (2020); State v. Jenkins, 303 Neb. 676, 931 N.W.2d
851 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 2704, 206 L. Ed. 2d
844 (2020).
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STATE v. LOTTER
Cite as 311 Neb. 878barred 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 trig-
gering 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 argu-
ment 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 rea-
soned 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 consti-
tutional 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.
II. ASSIGNMENT OF ERROR
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 postcon-
viction relief.
14
Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017).
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STATE v. LOTTER
Cite as 311 Neb. 878III. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively show that the defendant is entitled to no relief. 15
[2,3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which an appel-
late 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
IV. ANALYSIS
To address Lotter’s assignments of error, we begin by
reviewing the legal standards, both substantive and procedural,
which govern proceedings under the Nebraska Postconvic­
tion Act. 18
1. Standards Governing
Postconviction Relief
[4,5] In Nebraska, postconviction relief is a very narrow
category of relief, available only to remedy prejudicial con-
stitutional violations that render the judgment void or void-
able. 19 Under the postconviction statutes, defendants in cus-
tody 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
15
State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
16
Mata, supra note 13.
17
Torres, supra note 15.
18
See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
19
State v. Combs, 308 Neb. 587, 955 N.W.2d 322 (2021).
20
§ 29-3001(1).
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STATE v. LOTTER
Cite as 311 Neb. 878denial 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
[6] 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 affirma-
tively 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.
(a) Procedural Limitations on
Postconviction Relief
[7-9] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity. 24 Therefore, it is fundamental that a motion for post-
conviction relief cannot be used to secure review of issues
21
State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019); State v. Taylor,
300 Neb. 629, 915 N.W.2d 568 (2018).
22
§ 29-3001(2).
23
See, State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021); State v.
Malone, 308 Neb. 929, 957 N.W.2d 892 (2021), modified on denial of
rehearing 309 Neb. 399, 959 N.W.2d 818.
24
State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
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STATE v. LOTTER
Cite as 311 Neb. 878which were known to the defendant and could have been liti-
gated 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
[10,11] Additionally, the statute governing postconviction
relief expressly provides that a “court need not entertain a
second motion or successive motions for similar relief on
behalf of the same prisoner.” 28 We have long construed this
provision to require that all available grounds for postconvic-
tion relief must be stated in the initial postconviction motion
and, once that motion has been judicially determined, any sub-
sequent postconviction motion regarding the same conviction
and sentence may be dismissed by the district court unless
the motion affirmatively shows on its face that the basis
relied upon for relief was not available at the time of filing
the prior motion. 29 Stated differently, a defendant is entitled
to bring a successive postconviction motion only when the
face of the motion affirmatively shows that the issues raised
therein could not have been raised in prior motions. 30 In the
25
Id.26
See Mata, supra note 13.
27
See State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).
28
§ 29-3001(3).
29
See State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971). See, also,
State v. Watkins, 284 Neb. 742, 746, 825 N.W.2d 403, 406 (2012) (holding
“court will not entertain a successive motion for postconviction relief
unless the motion affirmatively shows on its face that the basis relied upon
for relief was not available at the time the movant filed the prior motion”);
State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).
30
See Lotter, supra note 24, 278 Neb. at 477, 771 N.W.2d at 561 (finding
Lotter’s constitutional claim based on allegation of perjured trial testimony
was procedurally barred because “Lotter fails to allege that this evidence
was unavailable before any of the numerous challenges already made to
his convictions and sentences”). See, also, State v. Jackson, 296 Neb. 31,
892 N.W.2d 67 (2017); State v. Marshall, 272 Neb. 924, 725 N.W.2d 834(2007); State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
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STATE v. LOTTER
Cite as 311 Neb. 878absence of such affirmative allegations, there is “no justifica-
tion for allowing a prisoner to continue litigation endlessly
by piecemeal post conviction attacks on his conviction and
sentence.” 31 A prisoner cannot wait to see if some postconvic-
tion claims will succeed and, when they do not, dust off other
claims and subsequently attempt to litigate them. 32
(b) Time Limitations on
Postconviction Claims
In 2011, the Legislature amended the Nebraska Postconviction
Act to establish a 1-year limitations period for filing postcon-
viction motions. 33 Section 29-3001(4) of the act provides:
(4) A one-year period of limitation shall apply to the
filing of a verified motion for postconviction relief. The
one-year limitation period shall run from the later of:
(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro­
actively to cases on postconviction collateral review; or
(e) August 27, 2011.
31
Reichel, supra note 29, 187 Neb. at 467, 191 N.W.2d at 828.
32
See Ryan, supra note 29.
33
See 2011 Neb. Laws, L.B. 137, § 1, now codified at § 29-3001(4).
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STATE v. LOTTER
Cite as 311 Neb. 878[12] The 1-year limitation period set out in § 29-3001(4)
governs all postconviction motions, including successive
motions 34 and those challenging a death sentence. 35
With this substantive and procedural framework in mind, we
address Lotter’s assignments of error. Because Lotter’s primary
arguments on appeal pertain to his Atkins claim, we address
that claim first.
2. Lotter’s Atkins Claim
Lotter argues the district court erred by failing to grant
him an evidentiary hearing on his Atkins claim. As stated, the
district court denied an evidentiary hearing on Lotter’s Atkins
claim after determining it was both procedurally barred and
time barred under Nebraska law.
To avoid being procedurally barred, the face of Lotter’s
fifth postconviction motion must affirmatively show that his
Atkins claim could not have been raised in any of his prior
postconviction motions. 36 And to avoid being time barred under
§ 29-3001(4), Lotter’s Atkins claim must have been filed within
1 year from one of the triggering events in that statute.
As we read Lotter’s fifth postconviction motion, he asserts
three reasons why his Atkins claim is not procedurally barred
or time barred. The first two are somewhat interrelated, in that
he argues the face of his fifth successive motion affirmatively
shows he could not have raised an Atkins claim in any of his
prior postconviction motions because (1) the factual predicate
for his claim did not exist until he was diagnosed as intellec-
tually disabled in March 2018 37 and/or (2) he could not have
known he had a viable Atkins claim until the U.S. Supreme
released its opinion in Moore I. 38 Alternatively, Lotter’s
34
See Torres, supra note 15.
35
See, e.g., id.; Mata, supra note 13; Lotter, supra note 7.
36
See Lotter, supra note 24. See, also, Jackson, supra note 30; Marshall,
supra note 30; Ortiz, supra note 30.
37
See § 29-3001(4)(b).
38
See § 29-3001(4)(d). See, also, Moore I, supra note 14.
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Cite as 311 Neb. 878motion asserts that because he has been diagnosed as intellec-
tually disabled, he can overcome Nebraska’s procedural and
time bars by asserting a claim of “‘actual innocence’” under
the U.S. Supreme Court’s holding in Sawyer v. Whitley. 39
For the sake of completeness, we also note that Lotter’s
appellate briefing presents an issue which was not expressly
alleged in his fifth postconviction motion: He asserts that the
language of Neb. Rev. Stat. § 28-105.01(2) (Cum. Supp. 2020),
which states, “Notwithstanding any other provision of law,
the death penalty shall not be imposed upon any person with
an intellectual disability,” effectively exempts an Atkins claim
from all of the procedural and time limitations set out in the
Nebraska Postconviction Act, and allows such a claim to be
raised at any time.
To analyze Lotter’s arguments, we begin with a review of
the U.S. Supreme Court cases recognizing and refining the con-
stitutional rule that forbids imposing the death penalty on those
who are intellectually disabled. We then review Nebraska’s
statute and case law defining intellectual disability for purposes
of imposing the death penalty.
(a) U.S. Supreme Court Precedent
In the 2002 case of Atkins, 40 the U.S. Supreme Court first
held that imposing the death penalty on “mentally retarded
criminals” amounts to cruel and unusual punishment prohibited
by the Eighth Amendment. The clinical term “mental retar-
dation” has since been changed to “intellectual disability,” 41
39
Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 120 L. Ed. 2d 269(1992).
40
Atkins, supra note 2, 536 U.S. at 321.
41
See, Hall v. Florida, 572 U.S. 701, 704, 134 S. Ct. 1986, 188 L. Ed. 2d 1007(2014) (citing “Rosa’s Law, 124 Stat. 2643,” which changed entries in U.S.
Code from “‘mental retardation’” to “‘intellectual disability’”); Robert L.
Schalock et al., The Renaming of Mental Retardation: Understanding
the Change to the Term Intellectual Disability, 45 Intellectual and
Developmental Disabilities 116 (2007); American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013).
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directly from earlier opinions.
The majority in Atkins acknowledged that just a decade
earlier, in its 1989 opinion in Penry v. Lynaugh, 42 it found
“insufficient evidence of a national consensus against execut-
ing mentally retarded people convicted of capital offenses for
us to conclude that it is categorically prohibited by the Eighth
Amendment.” But Atkins observed that in the years follow-
ing Penry, Congress and at least 18 state legislatures, includ-
ing Nebraska’s, had enacted laws generally “prohibiting the
execution of mentally retarded persons.” 43 The Atkins majority
viewed that as a national legislative consensus that “death is
not a suitable punishment for a mentally retarded criminal.” 44
The majority concluded that imposing the death penalty on
this class of offenders did not further the goals of deterrence
or retribution underpinning the death penalty, and it found
“no reason to disagree with the judgment of ‘the legislatures
that have recently addressed the matter.’” 45 Atkins therefore
announced a new constitutional rule which categorically for-
bids imposing the death penalty on persons who are intellec­
tually disabled.
However, the majority in Atkins did not adopt a specific
test for determining which offenders are intellectually dis-
abled, observing there was not yet a “national consensus”
on that question. 46 Instead, Atkins expressly left to the states
“‘the task of developing appropriate ways to enforce the
constitutional restriction.’” 47 But the Atkins majority empha-
sized that when states are defining intellectual disability, they
42
Penry v. Lynaugh, 492 U.S. 302, 335, 109 S. Ct. 2934, 106 L. Ed. 2d 256(1989), abrogated, Atkins, supra note 2.
43
Atkins, supra note 2, 536 U.S. at 315.
44
Id., 536 U.S. at 321.
45
Id.46
See id., 536 U.S. at 317.
47
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retardation.” 48 Atkins cited to clinical definitions promulgated
by the American Psychiatric Association in its “Diagnostic
and Statistical Manual of Mental Disorders” and the American
Association of Mental Retardation (subsequently named
“American Association on Intellectual and Developmental
Disabilities”), 49 which Atkins summarized as defining “mental
retardation [to] require not only subaverage intellectual func-
tioning, but also significant limitations in adaptive skills such
as communication, self-care, and self-direction that manifest
before age 18.” 50
In the decades since Atkins was decided, the U.S. Supreme
Court has issued three opinions considering challenges to the
sufficiency of a state’s definition of “intellectual disability”
under the constitutional rule announced in Atkins. 51 In each
post-Atkins case, the Court measured the state’s definition of
intellectual disability against the current clinical definitions
and the medical community’s diagnostic framework, which
it has consistently described as having three criteria: “[1]
significantly subaverage intellectual functioning, [2] deficits
in adaptive functioning[,] and [3] onset of these deficits dur-
ing the developmental period.” 52 Because Lotter relies on at
48
Id., 536 U.S. at 318.
49
Id., 536 U.S. at 308, n.3.
50
Id., 536 U.S. at 318.
51
Moore v. Texas, ___ U.S. ___, 139 S. Ct. 666, 203 L. Ed. 2d 1 (2019);
Moore I, supra note 14; Hall, supra note 41.
52
Hall, supra note 41, 572 U.S. at 710. Accord Moore I, supra note 14,
137 S. Ct. at 1045 (describing “the generally accepted, uncontroversial
intellectual-disability diagnostic definition” as having “three core elements:
(1) intellectual-functioning deficits . . . ; (2) adaptive deficits . . . ; and (3)
the onset of these deficits while still a minor”); Moore, supra note 51,
139 S. Ct. at 668 (“[t]o make a finding of intellectual disability, a court
must see: (1) deficits in intellectual functioning—primarily a test-related
criterion . . . ; (2) adaptive deficits, ‘assessed using both clinical evaluation
and individualized . . . measures,’ . . . ; and (3) the onset of these deficits
while the defendant was still a minor”).
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disability claim could not have been filed sooner than 2018, we
summarize those cases before addressing his arguments.
In the 2014 case of Hall v. Florida, 53 the Court examined
Florida’s statutory definition of intellectual disability, which
appeared on its face to incorporate the diagnostic framework
referenced in Atkins. But the Florida Supreme Court had con-
strued the statutory definition to impose a strict intelligence
quotient (IQ) cutoff score of 70, and, under that construction,
defendants with an IQ above 70 were prohibited from present-
ing other evidence of intellectual disability, including evidence
of adaptive deficits. Hall found that Florida’s definition of
intellectual disability, as interpreted by its courts, was uncon-
stitutional to the extent it considered an IQ score to be final
and conclusive evidence of a defendant’s intellectual capacity.
Such a construction, Hall explained, was not “informed by the
views of medical experts,” 54 because the medical community
does not support a fixed IQ cutoff, and instead “understand[s]
that an IQ test score represents a range rather than a fixed
number.” 55 Hall instructed that when using IQ test scores “to
asses a defendant’s eligibility for the death penalty, a State
must afford these test scores the same studied skepticism
that those who design and use the tests do” 56 and therefore
must take into account an IQ test’s “‘standard error of meas­
urement’” or “SEM” range. 57 And when a defendant’s IQ
53
Hall, supra note 41, 572 U.S. at 711 (noting Florida statute defined
intellectual disability as “‘significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior
and manifested during the period from conception to age 18’” and
defined “‘significantly subaverage general intellectual functioning’” as
“‘performance that is two or more standard deviations from the mean
score on a standardized intelligence test’”).
54
Id., 572 U.S. at 721.
55
Id., 572 U.S. at 723.
56
Id.
57
Id., 572 U.S. at 722.
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defendant must be allowed to present additional evidence of
intellectual disability, including testimony regarding adaptive
deficits. The Hall majority stated that the “legal determination
of intellectual disability is distinct from a medical diagnosis,
but it is informed by the medical community’s diagnostic
framework.” 58 The majority in Hall stopped short of holding
that a state’s definition of intellectual disability will not satisfy
the principles of Atkins unless it complies in all respects with
the current diagnostic criteria employed by psychiatric profes-
sionals, but it again emphasized that courts may “not disregard
these informed assessments.” 59
In the 2017 case of Moore I, the U.S. Supreme Court consid-
ered the sufficiency of the definition used by the Texas Court
of Criminal Appeals (Texas CCA) to find the defendant was
not intellectually disabled. 60 The Supreme Court was critical of
the definition applied by the Texas CCA, because it departed
from the accepted clinical standards discussed in Atkins and
Hall. 61 Among other shortcomings, the Texas definition relied
on outdated lay perceptions and lay stereotypes to determine
who was intellectually disabled. And when assessing deficits
in adaptive functioning, the definition deviated from prevail-
ing clinical standards by overemphasizing adaptive strengths.
Based on these and other shortcomings, the Supreme Court
held that the definition of intellectual disability relied upon
by the Texas CCA created an unacceptable risk that the death
penalty would be imposed on persons with intellectual dis-
abilities, in violation of Atkins. Moore I therefore vacated the
defendant’s death sentence and remanded the matter for further
proceedings in accordance with the opinion.
58
Id., 572 U.S. at 721.
59
Id.
60
Moore I, supra note 14.
61
Id., 137 S. Ct. at 1044 (admonishing that courts do not have “leave to
diminish the force of the medical community’s consensus” when constru­
ing statutory definitions of intellectual disability).
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Cite as 311 Neb. 878On remand, the Texas CCA reevaluated the evidence and
again concluded the defendant did not meet the definition of
an intellectually disabled person. The U.S. Supreme Court
reversed that decision in Moore v. Texas (Moore II), 62 reason-
ing that on remand, the Texas CCA may have used different
language, but much of its analysis suffered from the same
shortcomings identified in Moore I. The Supreme Court there-
fore not only reversed the judgment of the Texas CCA, but
affirmatively held that the defendant had shown he was a per-
son with an intellectual disability and thus was ineligible for
imposition of the death penalty under Atkins.
(b) Nebraska’s Definition of
Intellectual Disability
In 1998, while Lotter’s case was pending on direct appeal,
the Nebraska Legislature amended § 28-105.01 to provide:
“Notwithstanding any other provision of law, the death
penalty shall not be imposed upon any person with mental
retardation.” 63 This statute was referenced in Atkins to sup-
port the Court’s finding of a national legislative consensus that
“the mentally retarded should be categorically excluded from
execution.” 64 In 2013, the language of § 28-105.01(2) was
amended to use the current clinical term “intellectual disabil-
ity” instead of “mental retardation.” 65 Currently, the relevant
provisions of § 28-105.01 provide:
(2) Notwithstanding any other provision of law, the
death penalty shall not be imposed upon any person with
an intellectual disability;
(3) As used in subsection (2) of this section, intel-
lectual disability means significantly subaverage gen-
eral intellectual functioning existing concurrently with
62
Moore II, supra note 51.
63
1998 Neb. Laws, L.B. 1266, § 2, codified at § 28-105.01(2) (Cum. Supp.
1998).
64
Atkins, supra note 2, 536 U.S. at 318.
65
See 2013 Neb. Laws, L.B. 23.
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Cite as 311 Neb. 878deficits in adaptive behavior. An [IQ] of seventy or below
on a reliably administered [IQ] test shall be presumptive
evidence of intellectual disability.
(4) If (a) a jury renders a verdict finding the existence
of one or more aggravating circumstances . . . the court
shall hold a hearing prior to any sentencing determina-
tion proceeding . . . upon a verified motion of the defense
requesting a ruling that the penalty of death be precluded
under subsection (2) of this section. If the court finds, by
a preponderance of the evidence, that the defendant is a
person with an intellectual disability, the death sentence
shall not be imposed.
Our 2010 opinion in State v. Vela 66 is the only case to date
where we have applied the definition of intellectual disability
in § 28-105.01(3). In Vela, the defendant was convicted of
five counts of first degree murder. After the jury found the
existence of aggravating circumstances, 67 the defendant filed
a verified motion using the procedure in § 28-105.01(4)(a),
seeking a ruling that he was intellectually disabled and there-
fore ineligible for imposition of the death penalty. After
an evidentiary hearing, the district court found the defend­
ant had proved “significantly subaverage general intellectual
functioning” 68 because the evidence showed he had a full-
scale IQ test score of 75 on a reliably administered test and,
adjusted for the SEM, the court considered that a score in a
“‘range between 75 and 70.’” 69 But the district court found
the defendant failed to prove, by a preponderance of the
evidence, 70 that he also had significant “deficits in adaptive
behavior.” 71 The court therefore overruled the motion, after
66
State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
67
See Neb. Rev. Stat. § 29-2520 (Cum. Supp. 2020).
68
§ 28-105.01(3).
69
Vela, supra note 66, 279 Neb. at 146, 777 N.W.2d at 304.
70
See § 28-105.01(4).
71
§ 28-105.01(3).
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each conviction.
On direct appeal, we found no error in the district court’s
conclusion that the defendant failed to prove he was intellec-
tually disabled for purposes of § 28-105.01(2). Our analysis
focused primarily on the court’s finding that the defendant had
not proved the second factor of Nebraska’s statutory test, relat-
ing to deficits in adaptive behavior. Vela was decided before
Hall and both Moore cases, but our analysis relied on Atkins
and appropriately emphasized the need to construe Nebraska’s
statutory factors in a manner consistent with “current clinical
models.” 72 Vela recognized that “[m]ental retardation is a clini-
cal diagnosis” 73 and that “to reach any meaningful determina-
tion of whether a convicted defendant with an IQ in the low
70’s is a person with mental retardation” courts must apply the
current clinical diagnostic standards. 74
With this jurisprudential and statutory background in mind,
we summarize Lotter’s allegations regarding his Atkins claim,
after which we consider, de novo, whether that claim is proce-
durally barred or time barred. 75
(c) Lotter’s Allegations of
Intellectual Disability
Lotter’s fifth successive postconviction motion alleged that
in 2018, his attorney retained an expert to evaluate whether
Lotter is intellectually disabled. The expert reviewed Lotter’s
records, conducted interviews, and administered testing to
determine Lotter’s current intellectual and adaptive function-
ing. In March 2018, the expert prepared a report conclud-
ing that Lotter “qualifies for the diagnosis of Intellectual
Developmental Disability.” Lotter attached that report to
72
Vela, supra note 66, 279 Neb. at 149, 777 N.W.2d at 306.
73
Id.74
Id. at 150, 777 N.W.2d at 306.
75
See Mata, supra note 13.
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Cite as 311 Neb. 878his fifth postconviction motion. Among other things, the report
states that in 2018, Lotter’s full-scale IQ was 67, which the
expert described as “consistent with mild intellectual disabil-
ity.” In addition to the IQ score, the report states that Lotter
“has significant impairments in all three domains of adaptive
functioning, including conceptual, social, and practical,” and
that “Lotter’s problems are developmental in nature and were
present since childhood.” The report also states that when
Lotter was approximately 10 years old, testing by his treating
psychologist showed a full-scale IQ of 76. The State’s briefing
on appeal also directs us to historical evidence in the existing
record regarding Lotter’s IQ, including a defense witness who
testified during the sentencing phase that Lotter’s full-scale IQ
was 92.
(d) Lotter’s Arguments
As stated, the district court concluded that Lotter’s Atkins
claim is procedurally barred because it could have been raised
in any of his prior postconviction motions after Atkins was
decided in 2002. Additionally, the court concluded the Atkins
claim was time barred, rejecting Lotter’s arguments it was
timely under either § 29-3001(4)(b) or § 29-3001(4)(d).
On appeal, Lotter challenges the district court’s conclusion
that his Atkins claim is procedurally barred and time barred. He
also argues that the procedural and time bars in the Nebraska
Postconviction Act do not apply to an Atkins claim. We address
each of Lotter’s arguments in turn.
(i) Lotter’s Claim Not Timely
Under § 29-3001(4)(b)
[13-15] Under § 29-3001(4)(b), a postconviction claim is
timely if it is filed within 1 year of the date “on which the
factual predicate of the constitutional claim or claims alleged
could have been discovered through the exercise of due dili-
gence.” The factual predicate for a postconviction claim is
properly understood as the “important objective facts” that
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Cite as 311 Neb. 878support the claim. 76 We have explained that the 1-year period
in § 29-3001(4)(b) begins to run when the objective facts under-
lying the claim could reasonably be discovered, and that date is
“distinct from discovering that those facts are actionable.” 77 In
other words, the inquiry for purposes of § 29-3001(4)(b) con-
cerns when the important objective facts could reasonably have
been discovered, not when the claimant should have discovered
the legal significance of those facts. 78
Lotter argues the factual predicate of his Atkins claim could
not reasonably have been discovered until March 2018, when
testing showed he had a full-scale IQ of 67 and an expert
diagnosed him as intellectually disabled. For the same reason,
Lotter argues he could not have raised an Atkins claim in any
of his prior postconviction motions, and thus the claim should
not be procedurally barred. We disagree.
[16,17] The factual predicate for an intellectual disability
claim under Atkins does not depend on either a formal clinical
diagnosis or a particular IQ score. Instead, the important objec-
tive facts supporting a claim of intellectual disability are those
relating to the clinical diagnostic factors discussed in Atkins
and the factors set out in § 28-105.01. As such, the factual
predicate of an Atkins claim necessarily includes facts relating
to subaverage intellectual functioning, 79 deficits in adaptive
functioning, 80 and the “onset of these deficits during the devel-
opmental period.” 81
Our review of the existing record in this case belies
Lotter’s argument that he could not, with reasonable diligence,
have discovered the important objective facts supporting an
76
See State v. Mamer, 289 Neb. 92, 99, 853 N.W.2d 517, 524 (2014).
77
See id.78
See id.79
See, Atkins, supra note 2; Vela, supra note 66. See, also, § 28-105.01(3).
80
Id.
81
See Hall, supra note 41, 572 U.S. at 710.
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Cite as 311 Neb. 878Atkins claim before 2018. In Lotter’s direct appeal in 1998, we
discussed the following expert testimony:
Lotter has several mental disorders that have been ongo-
ing since birth, that Lotter had those disorders at the
time the crimes were committed, and that Lotter would
continue to have those disorders. [A medical expert]
described Lotter as “extremely dysfunctional” and stated
that Lotter’s mental disorders impaired his ability to
appreciate the wrongfulness of his conduct or to conform
his conduct to the requirements of the law. 82
During Lotter’s trial, the medical expert also testified there
was a “high probability” that Lotter has “organic damage in
the brain.” The record also shows that in 1981, at the age of
10, Lotter received a full-scale IQ test score of 76. While such
a score, even after being adjusted for the SEM, would still be
above 70, and thus would not support the statutory presump-
tion of intellectual disability under § 28-105.01(3), Lotter
is simply wrong to suggest that an adjusted IQ score in the
low 70s could not support a finding of intellectual disability
in Nebraska. 83
[18,19] The plain language of § 28-105.01(3) does not
establish a strict cutoff IQ score of 70; rather, it creates an evi-
dentiary presumption in favor of finding intellectual disability
when the defendant has an IQ score of 70 or below on a reli-
ably administered test. Moreover, unlike the Florida Supreme
Court in Hall, this court has not construed § 28-105.01 in
82
Lotter, supra note 3, 255 Neb. at 516, 586 N.W.2d at 632.
83
See, e.g., Atkins, supra note 2, 536 U.S. at 309 n.5 (noting IQ between
70 and 75 “is typically considered the cutoff IQ score for the intellectual
function prong of the [intellectual disability] definition”); Vela, supra note
66, 279 Neb. at 150, 777 N.W.2d at 307 (noting expert testimony that
under clinical standard “‘“it is possible to diagnose mental retardation in
individuals with IQs between 70 and 75 who exhibit significant deficits in
adaptive behavior”’”).
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Cite as 311 Neb. 878a way that would prohibit those with an IQ score above 70
from presenting other evidence that would support a finding of
intellectual disability. 84 Instead, as Vela recognized, Nebraska
courts apply current clinical standards to the evidence in order
to “reach [a] meaningful determination of whether a convicted
defendant with an IQ in the low 70’s is a person with men-
tal retardation.” 85
Moreover, Lotter’s 2018 diagnosis of intellectual disabil-
ity was based on evidence provided to the expert regarding
significant deficits in adaptive functioning that had existed
throughout Lotter’s childhood and young adult life. In other
words, Lotter has been aware of the objective facts relative to
his deficits in adaptive functioning since his childhood. Similar
evidence of deficits in adaptive functioning was adduced dur-
ing Lotter’s trial more than 20 years ago. And we cannot
ignore the fact that Lotter’s current postconviction counsel,
during the records hearing in this case, expressly advised the
district court:
I want to make this clear for the record. There actually
was an effort to raise an intellectual disability claim
after Atkins came down in this case. I don’t know if [the
State’s counsel] is familiar with those proceedings, but it
occurred in the context of the federal habeas proceedings.
And there was a request to remand to the district court for
— or to the state court for an Atkins determination. That
ball was dropped. There were no evaluations done at that
time and . . . counsel abandoned the effort.
As such, we agree with the district court that Lotter could
have discovered, through the exercise of due diligence, the fac-
tual predicate to support a constitutional claim of intellectual
84
See Vela, supra note 66.
85
Id. at 150, 777 N.W.2d at 306.
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Cite as 311 Neb. 878disability under Atkins long before March 2018. 86 We there-
fore agree that Lotter’s Atkins claim is not timely under
§ 29-3001(4)(b). And for the same reason, we also agree with
the district court that Lotter’s Atkins claim is procedurally
barred, because he failed to raise it in his first postconvic-
tion motion after Atkins first announced the constitutional rule
that those with an intellectual disability are ineligible for the
death penalty. 87
(ii) Lotter’s Claim Not Timely
Under § 29-3001(4)(d)
Lotter argues that his Atkins claim is timely under
§ 29-3001(4)(d) because it was filed within 1 year after Moore
I was decided, and he contends Moore I recognized a new con-
stitutional rule which applies retroactively.
Under § 29-3001(4)(d), a postconviction claim is timely
if filed within 1 year of the “date on which a constitutional
86
See, e.g., In re Jones, 998 F.3d 187 (5th Cir. 2021) (holding defendant
pointed to no factual predicate discovered in prior 1-year period that
could not have been discovered earlier through exercise of due diligence
to support intellectual disability claim); In re Bowles, 935 F.3d 1210,
1221 (11th Cir. 2019) (rejecting claim that factual predicate for claim
of intellectual disability could not have been discovered previously
through exercise of due diligence, reasoning, “[i]f, as he claims, he is
an intellectually disabled person, then that factual predicate has existed
for long enough that he could have brought his Atkins claims in his first
habeas petition”); State v. Jackson, 2020 Ohio 4015, 157 N.E.3d 240(2020) (finding successive postconviction claim based on Atkins was
procedurally and time barred because defendant did not raise claim on
direct appeal in 2002, in first postconviction motion in 2003, or in federal
habeas action in 2007, and did not exercise due diligence in discovering
facts to support intellectual disability before 2019).
87
See Lotter, supra note 24, 278 Neb. at 477, 771 N.W.2d at 561
(postconviction claim of perjured testimony was procedurally barred
because “Lotter fails to allege that this evidence was unavailable before
any of the numerous challenges already made to his convictions and
sentences”). See, also, Jackson, supra note 30; Marshall, supra note 30;
Ortiz, supra note 30.
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Cite as 311 Neb. 878claim asserted was initially recognized by the Supreme Court
of the United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retroactively
to cases on postconviction collateral review.” Lotter’s argu-
ment that his Atkins claim was timely under § 29-3001(4)(d)
requires us to determine whether Moore I recognized a new
constitutional right which has been applied retroactively to
cases on collateral review.
[20] As a general principle, the U.S. Supreme Court has
said that state courts considering a matter on collateral review
must give retroactive effect to new substantive rules of federal
constitutional law. 88 Substantive rules of federal constitutional
law include “‘rules forbidding criminal punishment of certain
primary conduct but also rules prohibiting a certain category
of punishment for a class of defendants because of their status
or offense.’” 89
No one disputes that Atkins announced a new substan-
tive rule of federal constitutional law when it held that the
8th and 14th Amendments to the U.S. Constitution categori-
cally prohibit imposing the death penalty on the class of
offenders who are intellectually disabled. 90 But neither the
U.S. Supreme Court nor this court has previously considered
whether Moore I announced a new substantive rule of consti-
tutional law which must be applied retroactively to cases on
collateral review.
88
See Montgomery v. Louisiana, 577 U.S. 190, 200, 136 S. Ct. 718, 193 L.
Ed. 2d 599 (2016) (holding that “when a new substantive rule of [federal]
constitutional law controls the outcome of a case, the Constitution requires
state collateral review courts to give retroactive effect to that rule”). See,
also, Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334(1989).
89
Montgomery, supra note 88, 577 U.S. at 201, quoting Penry, supra
note 42.
90
Penry, supra note 42, 492 U.S. at 329 (noting “[i]f we were to hold that
the Eighth Amendment [to the U.S. Constitution] prohibits the execution
of mentally retarded persons . . . we would be announcing a ‘new rule’”).
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Cite as 311 Neb. 878Most state and federal courts to have considered the ques-
tion have concluded that neither Hall nor Moore I announced
new substantive rules of constitutional law which must be
applied retroactively to cases on collateral review. 91 Indeed,
one recent case described “a substantial and growing body
of case law that has declined to apply Hall and Moore [I]
retroactively.” 92 Generally speaking, these courts have rea-
soned that Hall and Moore I merely adopted new procedures
for ensuring states follow the constitutional rule announced in
Atkins, and did not expand the class of individuals protected
by Atkins’ prohibition against the execution of individuals who
are intellectually disabled. 93 For example, in Phillips v. State, 94
a case in which the U.S. Supreme Court denied a writ of cer-
tiorari, the Florida Supreme Court reasoned that while Hall
“more precisely defined the procedure that is to be followed in
certain cases to determine whether a person facing the death
penalty is intellectually disabled,” it did not expand the “cat-
egorical prohibition on executing the intellectually disabled,”
and was thus a mere application of the rule announced in
91
See, e.g., In re Richardson, 802 Fed. Appx. 750 (4th Cir. 2020); In re
Payne, 722 Fed. Appx. 534 (6th Cir. 2018); Jackson, supra note 86. See,
also, Weathers v. Davis, 915 F.3d 1025 (5th Cir. 2019) (declining to apply
Moore I retroactively); Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017)
(holding Moore I did not announce substantive rule of constitutional law
that applied retroactively to successive habeas petition); In re Henry,
757 F.3d 1151 (11th Cir. 2014) (holding Hall did not announce new
substantive constitutional rule that must be applied retroactively to cases
on collateral review); Phillips v. State, 299 So. 3d 1013 (Fla. 2020),
cert. denied ___ U.S. ___, 141 S. Ct. 2676, 210 L. Ed. 2d 837 (2021)
(holding Hall did not apply retroactively on state collateral review). But
see White v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) (without discussing
retroactive application of Hall or Moore I, applied both cases to conclude
that Kentucky’s definition of intellectual disability was unconstitutional
and remanded postconviction case for evidentiary hearing on Atkins claim
using prevailing medical standards).
92
Jackson, supra note 86 (citing cases).
93
See cases cited supra note 91.
94
Phillips, supra note 91, 299 So. 3d at 1020.
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Cite as 311 Neb. 878Atkins. The Sixth 95 and Eighth Circuits 96 have adopted similar
reasoning with respect to Moore I.
[21] We likewise hold that neither Hall nor Moore I
announced a new substantive rule of constitutional law that
must be applied retroactively to cases on collateral review.
Instead, both Hall and Moore I applied the substantive consti-
tutional rule initially announced in Atkins and then refined the
appropriate standards states should apply to determine whether
an offender is intellectually disabled. Because Moore I did not
recognize a new constitutional right which has been applied
retroactively to cases on collateral review, that case did not
trigger the 1-year limitations period under § 29-3001(4)(d).
(iii) Lotter’s “Actual Innocence” Argument
Next, Lotter argues that Nebraska’s rules governing proce-
dural bars and time limitations in postconviction cases do not
apply to his Atkins claim because, as someone who has been
diagnosed as intellectually disabled, he is “actually innocent”
of the death penalty. His argument rests on the U.S. Supreme
Court opinion in Sawyer. 97 Before addressing Lotter’s “actual
innocence” argument under Sawyer, we provide an overview of
the Supreme Court’s jurisprudence in this area.
The Supreme Court’s “actual innocence” jurisprudence
developed in the context of claims for federal habeas corpus
relief. In federal habeas cases, the general rule is that “claims
forfeited under state law may support federal habeas relief
only if the prisoner demonstrates cause for the default and
prejudice from the asserted error.” 98 But in 1986, the Court
stated that “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent, a federal habeas court may grant the writ
95
In re Payne, supra note 91.
96
Williams, supra note 91.
97
Sawyer, supra note 39.
98
House v. Bell, 547 U.S. 518, 536, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006).
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Cite as 311 Neb. 878even in the absence of a showing of cause for the procedural
default.” 99 This is sometimes referred to as the “fundamental
miscarriage of justice” exception, and it “is grounded in the
‘equitable discretion’ of habeas courts to see that federal con-
stitutional errors do not result in the incarceration of innocent
persons.” 100 Over time, the Court has discussed at least three
types of “actual innocence” claims, each with a different legal
standard and purpose. 101
In Herrera v. Collins, 102 the Court considered whether a
habeas petitioner may assert a “freestanding” constitutional
claim of actual innocence. In that case, the petitioner sought
habeas relief alleging that newly discovered evidence showed
he was “actually innocent” of the crime for which he stood
convicted. The Court found that the “fundamental miscarriage
of justice exception” did not apply, since that exception is only
available when the prisoner uses a claim of actual innocence
to excuse a procedural error relating to an independent con-
stitutional claim. 103 But Herrera nevertheless assumed without
deciding that “in a capital case a truly persuasive demonstra-
tion of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process
such a claim.” 104 Herrera noted the threshold showing for
such a freestanding claim “would necessarily be extraordi-
narily high.” 105
99
Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397(1986).
100
Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 122 L. Ed. 2d 203(1993).
101
See, generally, Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d
808 (1995); Herrera, supra note 100; Sawyer, supra note 39.
102
Herrera, supra note 100, 506 U.S. at 401.
103
Id., 506 U.S. at 404.
104
Id., 506 U.S. at 417.
105
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Cite as 311 Neb. 878In Schlup v. Delo, 106 the Court discussed using a claim of
actual innocence as a “gateway” to obtain review of a consti-
tutional claim that is otherwise procedurally barred under state
law. The Court explained that a Schlup-type actual innocence
claim is “‘not itself a constitutional claim, but instead a gate-
way through which a habeas petitioner must pass to have his
[or her] otherwise barred constitutional claim considered on the
merits.’” 107 Under Schlup, if the petitioner makes a “threshold
showing” that he or she is actually innocent of the crime, the
court may then consider whether the otherwise procedurally
barred constitutional claim entitles the petitioner to federal
habeas relief. 108
In Sawyer, the Court described a third type of actual inno-
cence claim—a claim that a habeas petitioner is “‘actually
innocent’ of the death penalty.” 109 A Sawyer-type actual inno-
cence claim resembles the gateway actual innocence claim
described in Schlup, as both are used to excuse a procedural
default. But there is a critical difference: In a Sawyer-type
claim, the petitioner alleges that the procedural default should
be excused because he or she is actually innocent of the death
penalty, rather than actually innocent of the crime itself.
The Sawyer Court acknowledged that the “prototypical
example” 110 of an actual innocence claim involves “the case
where the State has convicted the wrong person of the crime,”
and it recognized that “[i]t is more difficult to develop an
analogous framework when dealing with a defendant who
has been sentenced to death,” since “[t]he phrase ‘innocent
of death’ is not a natural usage of those words . . . .” 111 But
it nevertheless found that such a claim was permissible in
106
See Schlup, supra note 101, 513 U.S. at 315.
107
Id., quoting Herrera, supra note 100.
108
Schlup, supra note 101, 513 U.S. at 317.
109
Sawyer, supra note 39, 513 U.S. at 349.
110
Id., 513 U.S. at 340.
111
Id., 513 U.S. at 341.
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Cite as 311 Neb. 878federal habeas cases. And in crafting the framework for actual
innocence claims in the death penalty sentencing context,
Sawyer focused on whether the petitioner was eligible for the
death penalty, rather than whether the petitioner was innocent
of the crime itself. Sawyer held that to demonstrate actual
innocence of the death penalty, a petitioner “must show by
clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found the petitioner eli-
gible for the death penalty under the applicable state law.” 112 If
such a showing is made, the federal habeas court can consider
the merits of the constitutional claim, despite a state proce-
dural bar.
Lotter correctly points out that Nebraska’s postconviction
jurisprudence has addressed the type of freestanding “actual
innocence” claim described in Herrera. 113 And in 2016, we
recognized that a Herrera-style claim of actual innocence
“may be a sufficient allegation of a constitutional violation
under the Nebraska Postconviction Act.” 114 But even in cases
where we have discussed a Herrera-type actual innocence
claim, we have not once found a postconviction defendant to
have satisfied the “extraordinarily high” showing necessary for
an evidentiary hearing on such a claim. 115 Lotter himself has
previously attempted to raise such an actual innocence claim,
without success. 116
112
Id., 513 U.S. at 336.
113
See, e.g., State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016); State
v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013); State v. Edwards, 284
Neb. 382, 821 N.W.2d 680 (2012), disapproved on other grounds, State v.
Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018); Lotter, supra note
24; State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000) (Gerrard, J.,
concurring).
114
Dubray, supra note 113, 294 Neb. at 947, 885 N.W.2d at 551.
115
Id. at 948, 885 N.W.2d at 551.
116
See Lotter, supra note 24, 278 Neb. at 482, 771 N.W.2d at 564 (declining
to decide whether Herrera-type claim of actual innocence is cognizable
under Nebraska Postconviction Act because evidence failed to “present an
issue of Lotter’s actual innocence”).
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Cite as 311 Neb. 878But in this case, Lotter is not asserting a freestanding
Herrera-type actual innocence claim. Instead, he argues that
“as a person with an intellectual disability, he is actually inno-
cent of the death penalty and thus his claim is not subject to
procedural default or time bars.” 117 In other words, Lotter is
asking us to recognize a Sawyer-type claim of actual innocence
and to allow him to proceed with his Atkins claim despite
Nebraska’s time and procedural bar rules.
In asking us to apply Sawyer to his postconviction motion,
Lotter refers us to several federal cases in which habeas peti-
tioners have raised a Sawyer-type actual innocence claim to
argue they should be allowed to proceed on their procedurally
barred Atkins claims because their intellectual disability ren-
dered them ineligible for the death penalty under state law. 118
But as we explain, recognizing an actual innocence exception
to Nebraska’s procedural and time bar rules is a policy deci-
sion for the Legislature. Our opinion in State v. Hessler 119
is instructive.
In Hessler, a defendant seeking postconviction relief urged
us to recognize an exception to Nebraska’s procedural bar
rules based on the U.S. Supreme Court’s decision in Martinez
v. Ryan. 120 Martinez held that a state procedural default will
not bar a federal habeas court from considering a substan-
tial claim of ineffective assistance of trial counsel if, in the
initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective. 121 We declined to
adopt the Martinez rule as part of our postconviction jurispru-
dence, explaining:
Martinez did not recognize a constitutional right to
effective assistance of postconviction counsel. Based
117
Reply brief for appellant at 7.
118
E.g., Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015); Frazier v. Jenkins, 770
F.3d 485 (6th Cir. 2014); Sasser v. Norris, 553 F.3d 1121 (8th Cir. 2009).
119
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
120
Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012).
121
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Cite as 311 Neb. 878upon principles of equity, it expanded only the types of
cause permitting a federal habeas court to excuse a pro-
cedural default in a federal habeas proceeding. Nothing in
Martinez prevents state courts from enforcing procedural
defaults in accordance with state law. 122
Emphasizing that the Nebraska Legislature has limited state
postconviction relief to a single proceeding, and has expressly
authorized courts to reject successive motions, 123 Hessler con-
cluded that whether to allow successive postconviction motions
based on the reasoning of Martinez was a matter of policy to
“be addressed in the first instance to the Legislature.” 124
[22] We find our reasoning in Hessler instructive in respond-
ing to Lotter’s request that we recognize a Sawyer-type actual
innocence exception to Nebraska’s procedural and time bars.
While Sawyer recognized a path for a federal habeas court to
excuse a procedural default, it did not recognize a new consti-
tutional rule. And we see nothing in the language of Sawyer,
or in any subsequent Supreme Court decision, which requires
state courts to apply the reasoning of Sawyer to excuse proce-
dural defaults in postconviction cases, nor do we see anything
in Sawyer which would prevent a state court from enforcing
its procedural or time bar rules when presented with an Atkins
claim on collateral review. Indeed, state courts have held that
a postconviction defendant can waive an Atkins claim by fail-
ing to follow the state’s applicable procedural rules. 125 And the
expectation that state courts will enforce their procedural bar
rules is the reason the Schlup and Sawyer rules were developed
in the first instance.
We decline Lotter’s invitation to import a Sawyer-type
actual innocence claim into our state postconviction jurispru-
dence. Lotter may be able to assert such a claim in a federal
122
Hessler, supra note 119, 288 Neb. at 680, 850 N.W.2d at 786.
123
See § 29-3001(3).
124
Hessler, supra note 119, 288 Neb. at 681, 850 N.W.2d at 787.
125
See, State v. Frazier, 115 Ohio St. 3d 139, 873 N.E.2d 1263 (2007);
Winston v. Com., 268 Va. 564, 604 S.E.2d 21 (2004).
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Cite as 311 Neb. 878habeas proceeding, but if a Sawyer-type actual innocence
exception to Nebraska’s procedural and time bars is to be rec-
ognized, it will be a policy decision made by the Legislature,
not the courts. The district court did not err in rejecting
Lotter’s claim that he is actually innocent of the death penalty
under Sawyer.
(iv) § 28-105.01 Does Not Exempt
Atkins Claims From Procedural
and Time Bars in § 29-3001
Finally, Lotter argues that his Atkins claim is not subject to
the procedural or time limitations in § 29-3001 “because the
express language of . . . § 28-105.01(2) states that the death
penalty shall not be imposed upon any person with an intellec-
tual disability ‘notwithstanding any other provision of law.’” 126
In other words, Lotter contends that when a postconviction
motion raises an Atkins claim, that claim is exempted from the
procedural and time limitations in the Nebraska Postconviction
Act by the statutory language in § 28-105.01(2). To the extent
this argument has been preserved for appellate review, we find
it to be without merit.
[23] It is difficult to discern, from the record on appeal,
whether this argument was presented to and passed upon by
the district court. Generally, when the timeliness of a post-
conviction motion is at issue, the defendant must raise all
applicable arguments in the district court to preserve them for
appellate review. 127 The face of Lotter’s fifth postconviction
motion does not assert that the language of § 28-105.01(2)
126
Reply brief for appellant at 4 (emphasis in original).
127
See State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018). Accord State
v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021) (appellate court will not
consider issue on appeal from denial of postconviction relief that was not
raised in motion for postconviction relief or passed upon by postconviction
court); Munoz, supra note 23 (appellate courts do not generally consider
arguments and theories raised for first time on appeal; in appeal from
denial of postconviction relief, appellate court will not consider for the
first time on appeal issues not raised in verified motion).
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Cite as 311 Neb. 878exempts an Atkins claim from the procedural and time bars set
out in the Nebraska Postconviction Act. And we see no such
argument presented during the records hearing in February
2020. But the district court’s order did briefly address, and
reject, some sort of statutory argument based on the language
of § 28-105.01(2), reasoning that the statute recognized only
a “statutory claim, not a constitutional claim” that would be
cognizable under the Nebraska Postconviction Act. Assuming
without deciding that the district court was rejecting the same
statutory argument Lotter now asserts on appeal, we reject
it too.
[24,25] To consider the meaning of § 28-105.01(2), we
apply familiar principles. When construing a statute, a court
must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense. 128
Additionally, the rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute,
and to reconcile different provisions of the statutes so they are
consistent, harmonious, and sensible. 129 And in a previous case
where we considered the meaning of the statutory definition of
intellectual disability contained in § 28-105.01(3), we empha-
sized the importance of considering “the scope of the remedy
to which its terms apply and [giving] the statute such an inter-
pretation as appears best calculated to effectuate the design of
the legislative provisions.” 130
[26] The Legislature first enacted § 28-105.01(2) in 1998, 131
several years before Atkins announced the constitutional rule
banning imposition of the death penalty on persons with
an intellectual disability. As such, § 28-105.01(2) was not
128
Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d
564 (2021).
129
Id.130
Vela, supra note 66, 279 Neb. at 151, 777 N.W.2d at 307.
131
See 1998 Neb. Laws, L.B. 1266, § 2.
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Cite as 311 Neb. 878enacted to codify the constitutional right recognized in Atkins.
Rather, it was enacted to establish a statutory right in Nebraska
prohibiting imposition of the death penalty on persons who are
intellectually disabled. And to enforce that statutory right, the
Legislature enacted a specific statutory procedure to allow a
defendant facing the death penalty to file a verified motion and
request a hearing to determine intellectual disability, before
any sentencing determination is made. 132
The 1998 statutory scheme also provided a procedure for
those who had already been sentenced to death when the new
statutory right was recognized:
Within one hundred twenty days after the effective date
of this act, a convicted person sentenced to the penalty
of death prior to the effective date of this act may bring a
verified motion in the district court which imposed such
sentence requesting a ruling that the penalty of death be
precluded under subsection (2) of this section and that the
sentence be vacated. 133
Lotter had been sentenced to death when this statute took
effect, but he did not file a motion under this provision. In
2013, the Legislature removed this provision from § 28-105.01
altogether, 134 presumably because the 120-day window had
long since expired. Currently, the only enforcement procedures
available to defendants are those set out in § 28-105.01(4),
and those procedures apply only to defendants who have not
yet been sentenced to death. As such, Lotter’s opportunity to
request a hearing to enforce the statutory right not to have the
death penalty imposed has long since passed.
Having waived his opportunity to pursue the statutory
enforcement procedure previously available to him, Lotter
132
Id., codified at § 28-105.01(5) (Cum. Supp. 1998). See, also, § 28-105.01(4)
(Cum. Supp. 2020).
133
1998 Neb. Laws, L.B. 1266, § 2, codified at § 28-105.01(4) (Cum. Supp.
1998).
134
See 2002 Neb. Laws, L.B. 1, 3d Spec. Sess.
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Cite as 311 Neb. 878now asserts a constitutional claim of intellectual disabil-
ity under Atkins, and he attempts to use language from
§ 28-105.01(2) to avoid the procedural and time bars under
the Nebraska Postconviction Act. Specifically, Lotter argues
that the phrase “notwithstanding any other provision of
law” in § 28-105.01(2) should be construed as a Legislative
“mandate[]” 135 that “renders moot” 136 the procedural and time
limits which otherwise govern postconviction motions. We
reject Lotter’s proposed construction.
[27] As a general principle of statutory construction, courts
have held that use of the phrase “notwithstanding any other
provision of law” in a statute signals legislative intent to over-
ride other provisions of law that conflict with the statute. 137
We agree with this general principle, 138 but we see no conflict
between the statutory rights and enforcement procedures set
out in § 28-105.01 and the procedural and time limitations
set out in the Nebraska Postconviction Act.
135
Reply brief for appellant at 5.
136
Id. at 6.
137
See, e.g., Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S. Ct.
1898, 123 L. Ed. 2d 572 (1993) (noting that “in construing statutes, the
use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention
that the provisions of the ‘notwithstanding’ section override conflicting
provisions of any other section”); Conyers v. Merit Systems Protection
Bd., 388 F.3d 1380 (Fed. Cir. 2004) (holding phrase “notwithstanding any
other provision of law” generally signals that specific statutory provision
is to override more general conflicting statutory provisions that would
otherwise apply to same subject); Arias v. Superior Court, 46 Cal. 4th 969,
983, 209 P.3d 923, 931, 95 Cal. Rptr. 3d 588, 598 (2009) (noting statutory
phrase “notwithstanding any other provision of law” generally declares
legislative intent to override “only those provisions of law that conflict
with the act’s provisions—not, as defendants contend, every provision
of law”).
138
See State ex rel. B.H. Media Group v. Frakes, 305 Neb. 780, 798-99, 943
N.W.2d 231, 246 (2020) (“by using the phrase ‘[n]otwithstanding any
other provision of law,’ the Legislature demonstrated with clear intention
that [the subject statute] should prevail when it conflicts with another
statute”) (emphasis supplied).
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Cite as 311 Neb. 878Lotter’s argument conflates the statutory right recognized
in § 28-105.01(2) with the constitutional right recognized in
Atkins. But the statutory right is enforced presentence through
the procedures set out in § 28-105.01(4), not through the
Nebraska Postconviction Act, which exists only to remedy
prejudicial constitutional violations that render a judgment
void or voidable. 139
Simply put, there is no conflict between the provisions of
§ 28-105.01(2) and the provisions of § 29-3001(4), because
they address separate legal claims and provide separate legal
remedies. The former applies to statutory claims of intellectual
disability raised in a verified motion prior to the imposition of
any sentence, and the latter applies to all constitutional claims
raised in a verified postconviction motion by prisoners in cus-
tody seeking to vacate or set aside their sentence.
[28] We conclude the phrase “notwithstanding any other
provision of law” in § 28-105.01(2) neither impacts nor over-
rides the procedural and time limitations applicable to post-
conviction motions under the Nebraska Postconviction Act.
Lotter’s argument to the contrary is meritless.
(e) Conclusion on Lotter’s Atkins Claim
For the foregoing reasons, we agree with the district court
that Lotter’s Atkins claim is both procedurally barred and
time barred.
3. Lotter’s L.B. 268 Claim
Lotter also argues he was entitled to an evidentiary hear-
ing on his other postconviction claim, which asserted that the
passage, and subsequent repeal by public referendum, of L.B.
268 140 had the effect of vacating, and then reinstating, his death
sentences. The district court properly denied relief on this
claim without an evidentiary hearing.
139
See, § 29-3001(1); Combs, supra note 19.
140
See 2015 Neb. Laws, L.B. 268.
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Cite as 311 Neb. 878We described the procedural history of L.B. 268 in State
v. Jenkins: 141
In May 2015, the Nebraska Legislature passed 2015
Neb. Laws, L.B. 268,—which abolished the death penalty
in Nebraska—and then overrode the Governor’s veto of
the bill. The Legislature adjourned sine die on May 29.
Because L.B. 268 did not contain an emergency clause, it
was to take effect on August 30.
Following the passage of L.B. 268, opponents of the
bill sponsored a referendum petition to repeal it. On
August 26, 2015, the opponents filed with the Nebraska
Secretary of State signatures of approximately 166,000
Nebraskans in support of the referendum. On October
16, the Secretary of State certified the validity of suf-
ficient signatures. Enough signatures were verified to
suspend the operation of L.B. 268 until the referendum
was approved or rejected by the electors at the upcom-
ing election. During the November 2016 election, the
referendum passed and L.B. 268 was repealed, that is, in
the language of the constitution, the act of the Legislature
was “reject[ed].”
[29,30] All of Lotter’s constitutional claims relating to
L.B. 268 are premised on the theory that the legislation went
into effect on August 30, 2015, and commuted his death
sentences to life in prison, and that thereafter, the successful
public referendum resulted in reimposition of his death sen-
tences. But as the district court correctly recognized, we have
rejected that theory as legally flawed in three prior cases—
Jenkins, 142 State v. Mata, 143 and State v. Torres. 144 In Jenkins,
we explained that L.B. 268 never actually went into effect,
141
Jenkins, supra note 13, 303 Neb. at 706, 931 N.W.2d at 876-77. See, also,
Neb. Const. art. III, § 3.
142
Jenkins, supra note 13.
143
Mata, supra note 13.
144
Torres, supra note 13.
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Cite as 311 Neb. 878because “upon the filing of a referendum petition appearing to
have a sufficient number of signatures, operation of the leg-
islative act is suspended so long as the verification and cer-
tification process ultimately determines that the petition had
the required number of valid signatures.” 145 And we expressly
held in Jenkins, Mata, and Torres that because L.B. 268 was
suspended and never went into effect, any death sentences in
effect at the time were unchanged. 146
On appeal, Lotter acknowledges that our decisions in Jenkins,
Mata, and Torres are “adverse[]” 147 to his central premise that
L.B. 268 vacated his death sentences and the successful public
referendum reinstated them. Lotter’s appellate brief summarily
states that all three cases “were wrongly decided and should be
overruled,” 148 but he presents no argument in support, and we
see no principled reason to revisit our settled jurisprudence on
the issue.
Because all of Lotter’s L.B. 268 claims are premised on the
meritless theory that L.B. 268 vacated or changed his death
sentences, the district court properly denied relief on these
claims without conducting an evidentiary hearing. 149
V. CONCLUSION
Because Lotter’s Atkins claim is both procedurally barred
and time barred, and because his L.B. 268 claim is meritless,
the district court did not err in denying Lotter’s fifth successive
motion for postconviction relief without conducting an eviden-
tiary hearing. The judgments are affirmed.
Affirmed.
Freudenberg, J., not participating.
145
Jenkins, supra note 13, 303 Neb. at 710, 931 N.W.2d at 879. See, also,
Torres, supra note 13; Mata, supra note 13.
146
Id.147
Brief for appellant at 27.
148
Id.149
See, Torres, supra note 13; Mata, supra note 13; Jenkins, supra note 13.