- 878 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

State 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 demonstrate a violation of his or her constitutional rights or that the record 

and files affirmatively show that the defendant is entitled to no relief.

2. Postconviction: Judgments: Appeal and Error. Whether a claim 

raised in a postconviction proceeding is procedurally barred is a question of law which an appellate court reviews independently of the lower 

court’s ruling.

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 constitutional 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 evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) 

the motion alleges only conclusions of fact or law without supporting 

facts; or (3) the records and files affirmatively show that the defendant 

is entitled to no relief.

7. Postconviction. The need for finality in the criminal process requires 

that a defendant bring all claims for relief at the first opportunity.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/22/2022 09:05 AM CDT
- 879 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

8. 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 properly 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 reasonably have been discovered, not when the claimant should have discovered 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 functioning, deficits in adaptive functioning, and the onset of these deficits 

during the developmental period.
- 880 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

18. 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 evidentiary 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 appellate 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 substantive rules of federal constitutional law. Substantive rules of federal constitutional law include rules forbidding criminal punishment of certain 

primary conduct, as well as rules prohibiting a certain category of punishment 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 timeliness of a postconviction motion is at issue, the defendant must raise all 

applicable arguments in the district court to preserve them for appellate 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 
- 881 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

penalty 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 sentencing determination is made.

27. Statutes: Legislature: Intent: Words and Phrases. As a general principle 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 procedural 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 
- 882 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

of his death sentences. His first claim alleges the sentences 

were effectively vacated, and then unconstitutionally “reimposed,” as a result of the legislative process surrounding L.B. 

268—a bill passed by the Nebraska Legislature in 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 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

judgments became final on June 7, 1999, when the U.S. 

Supreme Court denied his petition for writ of certiorari. 6

Between 1999 and 2017, Lotter filed four motions for postconviction relief, all of which were found to be meritless. 7 In 

addition, Lotter filed an unsuccessful motion for postconviction DNA testing in 2001, 8 and unsuccessful petitions for federal habeas corpus relief in 2011 9 and 2017. 10 None of Lotter’s 

prior postconviction motions alleged a claim that he is intellectually disabled under Atkins.

On March 27, 2018, Lotter filed, in each of his three criminal cases, the operative motions for postconviction relief at 

issue in this appeal. The verified motions were identical, and 

the district court consolidated them and generally referred to 

them collectively as Lotter’s fifth postconviction motion. For 

ease of reference, we do the same.

As stated, Lotter’s fifth postconviction motion alleges two 

grounds for relief. Lotter’s L.B. 268 claim alleges that in 

2015, when the Legislature passed L.B. 268 abolishing the 

death penalty, it effectively vacated his death sentences and 

imposed life sentences. Lotter alleges that when L.B. 268 

was subsequently repealed by public referendum, it resulted 

in “re-imposition” of his death sentences, which violated his 

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).
- 884 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

constitutional right to due process, violated his constitutional 

right to be free from cruel and unusual punishment, and 

amounted to an unconstitutional bill of attainder.

Lotter’s Atkins claim alleges that in March 2018, his attorney retained Ricardo Weinstein, Ph.D., to determine whether 

Lotter is intellectually disabled. After evaluating Lotter’s intellectual and adaptive functioning, Weinstein issued a report concluding that Lotter “qualifies for the diagnosis of Intellectual 

Developmental Disability (formerly Mental Retardation).” 

On March 27, 2018, Lotter amended his fifth postconviction 

motion to add a claim that he is constitutionally ineligible 

for imposition of the death penalty under Atkins.

 11 A copy of 

Weinstein’s report was attached as an exhibit to the operative motion.

In February 2020, the court held what was characterized 

as a records hearing 12 on Lotter’s fifth postconviction motion. 

Thereafter, the court entered an order denying postconviction 

relief on both claims without conducting an evidentiary hearing. In rejecting Lotter’s L.B. 268 claim, the district court 

relied on several recent postconviction opinions from this court 

rejecting nearly identical claims as meritless. 13 Based on that 

precedent, the court concluded as a matter of law that Lotter’s 

L.B. 268 claim did not entitle him to postconviction relief.

The court did not address the merits of Lotter’s Atkins

claim, because it determined the claim was both procedurally 

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).
- 885 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

barred and time barred under Nebraska postconviction law. 

The court found the claim was procedurally barred because 

Lotter had not raised it in any of his postconviction motions 

filed after 2002, when Atkins announced the constitutional rule 

that criminals who are intellectually disabled are ineligible for 

imposition of the death penalty.

The court found that Lotter’s Atkins claim was time barred 

under Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), because 

it had not been filed within 1 year from any of the five triggering events identified in that statute. More specifically, the 

court rejected Lotter’s argument that his Atkins claim was 

timely under § 29-3001(4)(b), reasoning that Lotter could have, 

with reasonable diligence, discovered the factual predicate 

for his Atkins claim more than 1 year before he filed the fifth 

postconviction motion. The court also rejected Lotter’s argument that his Atkins claim was timely under § 29-3001(4)(d), 

which requires that a postconviction claim be filed within 1 

year from “[t]he date on which a constitutional claim asserted 

was initially recognized by the Supreme Court of the United 

States or the Nebraska Supreme Court . . . .” The court reasoned that Lotter’s claim was based on the constitutional right 

first announced nearly 20 years ago in Atkins, and it rejected 

Lotter’s contention that his claim was based on a new constitutional right recognized in the 2017 case of Moore v. Texas 

(Moore I),

 14 a case we discuss later in our analysis.

After concluding that neither of the claims presented in 

Lotter’s fifth postconviction motion entitled him to relief, the 

court denied the motion without an evidentiary hearing. Lotter 

filed this timely appeal.

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 postconviction relief.

14 Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017).
- 886 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

III. STANDARD OF REVIEW

[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 15

[2,3] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law which an appellate court reviews independently of the lower court’s ruling. 16

Similarly, if the facts in a case are undisputed, the issue as 

to when the statute of limitations begins to run is a question 

of law. 17

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 constitutional violations that render the judgment void or voidable. 19 Under the postconviction statutes, defendants in custody under sentence “may file a verified motion, in the court 

which imposed such sentence, stating the grounds relied upon 

and asking the court to vacate or set aside the sentence.” 20

Such a motion must allege facts which, if proved, constitute a 

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).
- 887 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

denial or violation of his or her rights under the U.S. or 

Nebraska Constitution, causing the judgment against the 

defendant to be void or voidable. 21

[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 affirmatively show that the defendant is entitled to no relief. 23

In addition to the substantive rules governing postconviction 

relief, there are procedural rules which can bar postconviction 

relief regardless of the merits of a particular claim. Here, the 

district court determined that Lotter’s Atkins claim was both 

procedurally barred and time barred under Nebraska law. We 

recite the general principles governing procedural bars and 

time bars in the next two sections of this opinion, and apply 

those principles later in our analysis.

(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 opportunity. 24 Therefore, it is fundamental that a motion for postconviction 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).
- 888 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

which were known to the defendant and could have been litigated on direct appeal. 25 We have explained that when an issue 

could have been raised on direct appeal, it is procedurally 

barred from postconviction relief, 26 no matter how the issues 

may be phrased or rephrased. 27

[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 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. 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).
- 889 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

absence of such affirmative allegations, there is “no justification 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 postconviction 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 postconviction 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 filing 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).
- 890 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

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 intellectually 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.
- 891 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

motion asserts that because he has been diagnosed as intellectually 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 constitutional 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 retardation” 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).
- 892 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

and this opinion uses the current clinical term unless quoting 

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 executing 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 following Penry, Congress and at least 18 state legislatures, including 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 forbids 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 disabled, 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 emphasized 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 Id.
- 893 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

should be guided by current “clinical definitions of mental 

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 functioning, 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 during 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”).
- 894 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

least one of these post-Atkins cases to argue that his intellectual 

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 construed 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 presenting 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 unconstitutional 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.
- 895 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

score falls within the test’s acknowledged margin of error, the 

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 professionals, 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 considered 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 prevailing 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 disabilities, 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).
- 896 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

On 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 reasoning 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 therefore not only reversed the judgment of the Texas CCA, but 

affirmatively held that the defendant had shown he was a person 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 support 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 disability” 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, intellectual disability means significantly subaverage general 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.
- 897 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

deficits 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 determination 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 therefore 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 fullscale 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).
- 898 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

which a three-judge panel imposed a sentence of death on 

each conviction.

On direct appeal, we found no error in the district court’s 

conclusion that the defendant failed to prove he was intellectually 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, relating 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 clinical diagnosis” 73 and that “to reach any meaningful determination 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 procedurally 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 functioning. In March 2018, the expert prepared a report concluding 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.
- 899 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

his 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 disability.” 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 diligence.” The factual predicate for a postconviction claim is 

properly understood as the “important objective facts” that 
- 900 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

support the claim. 76 We have explained that the 1-year period 

in § 29-3001(4)(b) 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.” 77 In 

other words, the inquiry for purposes of § 29-3001(4)(b) concerns 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 objective 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 developmental 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.
- 901 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

Atkins claim before 2018. In Lotter’s direct appeal in 1998, we 

discussed the following expert testimony:

Lotter has several mental disorders that have been ongoing 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 presumption 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 evidentiary presumption in favor of finding intellectual disability 

when the defendant has an IQ score of 70 or below on a reliably 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”’”).
- 902 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

a 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 mental retardation.” 85

Moreover, Lotter’s 2018 diagnosis of intellectual disability 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 during 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 factual predicate to support a constitutional claim of intellectual 

84 See Vela, supra note 66.

85 Id. at 150, 777 N.W.2d at 306.
- 903 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

disability under Atkins long before March 2018. 86 We therefore 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 postconviction 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 constitutional 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.
- 904 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

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 retroactively 

to cases on postconviction collateral review.” Lotter’s argument 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 substantive rule of federal constitutional law when it held that the 

8th and 14th Amendments to the U.S. Constitution categorically 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 constitutional 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’”).
- 905 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

Most state and federal courts to have considered the question 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 reasoned 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 certiorari, 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 “categorical 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.
- 906 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

Atkins. 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 constitutional 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 procedural 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).
- 907 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

even 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 constitutional 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 constitutional claim. 103 But Herrera nevertheless assumed without 

deciding that “in a capital case a truly persuasive demonstration 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 extraordinarily high.” 105

99 Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 

(1986).

100Herrera 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.

102Herrera, supra note 100, 506 U.S. at 401.

103 Id., 506 U.S. at 404.

104 Id., 506 U.S. at 417.

105 Id.
- 908 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

In Schlup v. Delo,

 106 the Court discussed using a claim of 

actual innocence as a “gateway” to obtain review of a constitutional 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 gateway 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 innocence claim—a claim that a habeas petitioner is “‘actually 

innocent’ of the death penalty.” 109 A Sawyer-type actual innocence 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.
- 909 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

federal 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 eligible 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 procedural 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”).
- 910 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

But 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 innocent 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 petitioners 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 rendered 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 decision 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 substantial 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 jurisprudence, explaining:

Martinez did not recognize a constitutional right to 

effective assistance of postconviction counsel. Based 

117Reply 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 Id.
- 911 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

upon principles of equity, it expanded only the types of 

cause permitting a federal habeas court to excuse a procedural 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 concluded 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 responding 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 constitutional 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 procedural 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 failing 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 jurisprudence. Lotter may be able to assert such a claim in a federal 

122Hessler, supra note 119, 288 Neb. at 680, 850 N.W.2d at 786.

123 See § 29-3001(3).

124Hessler, 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).
- 912 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

habeas proceeding, but if a Sawyer-type actual innocence 

exception to Nebraska’s procedural and time bars is to be recognized, 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 intellectual 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 postconviction 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) 

126Reply 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).
- 913 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

exempts 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 emphasized the importance of considering “the scope of the remedy 

to which its terms apply and [giving] the statute such an interpretation 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.

130Vela, supra note 66, 279 Neb. at 151, 777 N.W.2d at 307.

131 See 1998 Neb. Laws, L.B. 1266, § 2.
- 914 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

enacted 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.
- 915 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

now asserts a constitutional claim of intellectual disability 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 override 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.

135Reply 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).
- 916 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

Lotter’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 custody 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 overrides the procedural and time limitations applicable to postconviction 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 hearing 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.
- 917 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

We 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 sufficient 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 upcoming 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 sentences. 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.
- 918 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. LOTTER

Cite as 311 Neb. 878

because “upon the filing of a referendum petition appearing to 

have a sufficient number of signatures, operation of the legislative act is suspended so long as the verification and certification 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 evidentiary 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.

147Brief for appellant at 27.

148 Id.

149 See, Torres, supra note 13; Mata, supra note 13; Jenkins, supra note 13.