State v. Lotter
301 Neb. 125
| Neb. | 2018Background
- John L. Lotter was convicted of multiple crimes, including three counts of first-degree murder; a three-judge panel imposed death sentences in the 1990s and his convictions became final in 1999.
- Lotter filed successive postconviction motions; in 2017 he filed a fourth postconviction motion asserting (1) Nebraska’s capital sentencing scheme is unconstitutional under Hurst v. Florida and the Sixth/ Fourteenth Amendments (claim 1), and (2) the death-qualification of the jury violated his Eighth and Fourteenth Amendment rights (claim 2); he later sought to amend to add an ineffective-assistance/derivative claim (claim 3).
- The district court: on Jan. 17, 2017 denied claim 2 as procedurally barred and left claim 1 for further briefing; Lotter filed a motion for reconsideration 13 days later and a motion to amend; on Feb. 22 the court denied reconsideration and denied leave to amend; Lotter filed a March 22 notice of appeal (first appeal).
- On Sept. 28, 2017 the district court denied claim 1 on the merits as time barred (holding Hurst did not announce a newly recognized right for retroactive collateral review); Lotter filed timely appeals from that order (second appeal).
- The Nebraska Supreme Court consolidated the appeals, dismissed the first appeal for lack of jurisdiction (untimely/challenged orders), and affirmed the denial of claim 1 as time barred because Hurst did not announce a new, retroactively applicable rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / jurisdiction of appeal from Jan. 17, 2017 order denying claim 2 | Lotter: his Jan. 30 motion for reconsideration (filed 13 days later) tolled/extended the appeal period; court’s Feb. 22 order created a new final judgment | State: motion was untimely to be treated as a motion to alter or amend; reconsideration does not extend statutory appeal deadlines; Feb. 22 order did not create a new appealable judgment | Court: appeal from Jan. 17 order was untimely; no jurisdiction over first appeal as to claim 2 or the denial of leave to amend (claim 3) in that appeal |
| Appealability of denial of leave to amend (claim 3) | Lotter: Feb. 22 order denying leave to amend was appealable; his notice should relate forward | State: denial of leave to amend in pending postconviction case is not a final, appealable order until resolution of other claims | Court: denial of leave to amend was not final/appealable in the first appeal; jurisdiction over that denial arises, if at all, only in the later final judgment |
| Whether Hurst announced a new rule under § 29-3001(4)(d) | Lotter: filed within 1 year of Hurst; Hurst announced a newly recognized constitutional right (jury must perform weighing/burden aspects) | State: Hurst merely applied Ring to Florida’s scheme and did not announce a new rule; it does not newly recognize a retroactive right | Court: Hurst did not announce a new rule independent of Ring; it applied Ring and therefore is not a newly recognized right that extends the § 29-3001(4)(d) limitations period |
| Retroactivity of Ring/Hurst on collateral review | Lotter: Hurst supports relief and should apply to his case | State: Ring announced a new procedural rule that is not retroactive on collateral review; Hurst is tethered to Ring and likewise not retroactive | Court: Ring is not retroactive on collateral review; Hurst does not change that result and therefore Lotter’s claim is time barred |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases penalty beyond statutory maximum must be submitted to a jury and proved beyond a reasonable doubt)
- Ring v. Arizona, 536 U.S. 584 (2002) (Apprendi applied to capital sentencing: aggravating factors that function as elements must be found by a jury)
- Hurst v. Florida, 136 S. Ct. 616 (2016) (applied Ring to Florida; held judge-alone factfinding for death sentence unconstitutional; did not announce a new rule beyond Ring)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (a new procedural rule may not apply retroactively on collateral review)
- Alleyne v. United States, 570 U.S. 99 (2013) (Sixth Amendment requires jury to find facts increasing mandatory minimums; cited in Hurst’s analysis)