Lotter v. Houston (PURSUANT TO ORDER #21, SEND A COPY OF ALL UNSEALED FILINGS TO PETITIONER)

Filing 124

MEMORANDUM AND ORDER - Counsel for Lotter and Nebraska shall file initial briefs addressing the matters set out above no later than Thursday, June 18, 2015. Reply briefs may be submitted no later than Thursday, June 25, 2015. No later than Frida y, June 5, 2015, counsel for Lotter and counsel for Nebraska shall contact my judicial assistant, Kris Leininger, at 402.437.1640, in a joint conference call to schedule the precise date and time for oral argument. Counsel for Lotter shall contact co unsel for Nebraska and then initiate the joint telephone conference call with my judicial assistant. Oral argument shall be held on or after Monday, June 29, 2015, at a time convenient for the Court and counsel. The undersigned will hear one hour of oral argument. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN L. LOTTER,
Petitioner,
V.
ROBERT HOUSTON, Warden,
Tecumseh State Correctional Center,
Respondent.

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4:04CV3187

MEMORANDUM AND ORDER

Yesterday, the Nebraska legislature repealed the death penalty. The legislative bill
repealing the death penalty will become effective in late August or early September.
In my opinion, Lotter has exhausted all available federal and state judicial remedies
and he cannot now pursue any further federal or state judicial remedies. Therefore, the only
justifiable reason for appointing federal counsel in this matter is to allow Lotter to seek
clemency. See 18 U.S.C. § 3599 (federal counsel may be appointed for “executive or other
clemency as may be available to defendant”; for other matters, appointment is only proper
for “available judicial proceedings” and “available post conviction process”) (emphasis
added). See also Harbison v. Bell, 556 U.S. 180 (2009) (federal statute, governing
appointment of counsel for an indigent state prisoner seeking federal habeas corpus relief to
vacate or set aside a death sentence imposed by a state court, authorizes federally appointed
counsel to represent the prisoner in subsequent state clemency proceedings).
On my own, I have come to the conclusion that Lotter’s federal counsel should cease
all work on this matter until further order of this court1, and if the death penalty repeal bill
becomes effective, I should then dismiss this matter (and the appointment of federal counsel)

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Counsel for Lotter are informed that yesterday I conferred with Chief Judge Riley
regarding their pending ex parte motion. On my recommendation, he will withhold further
consideration of that motion until the matters described in this Memorandum and Order are
resolved.

without prejudice. However, before I do so, I want to hear counsel for both sides by brief
and oral argument.
IT IS ORDERED that:
1. Counsel for Lotter and Nebraska shall file initial briefs addressing the
matters set out above no later than Thursday, June 18, 2015.
2. Reply briefs may be submitted no later than Thursday, June 25, 2015.
3. No later than Friday, June 5, 2015, counsel for Lotter and counsel for
Nebraska shall contact my judicial assistant, Kris Leininger, at 402.437.1640,
in a joint conference call to schedule the precise date and time for oral
argument. Counsel for Lotter shall contact counsel for Nebraska and then
initiate the joint telephone conference call with my judicial assistant.
4. Oral argument shall be held on or after Monday, June 29, 2015, at a time
convenient for the Court and counsel. The undersigned will hear one hour of
oral argument.
DATED this 28th day of May, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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