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

Filing 87

MEMORANDUM AND ORDER - The petitioner's Motion to Alter or Amend Judgment 85 is denied. Ordered by Judge Richard G. Kopf. (Copies mailed to Petitioner) (KBJ)

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

John L. Lotter (Lotter) has filed a Motion to Alter or Amend Judgment (filing
no. 85) under Rule 59 of the Federal Rules of Civil Procedure. That motion will be
denied.
BACKGROUND
Lotter attacks my ruling regarding ground six of the Corrected Second
Amended Petition for Writ of Habeas Corpus. (Filing no. 86 (brief).) On March 18,
2011, I ruled as follows regarding that claim:
Ground Six: The prosecutor’s misconduct in knowingly using Nissen’s
perjured testimony to obtain Petitioner’s conviction violated
Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the Constitution.
Lotter’s claim six is nearly identical to claim two regarding
“knowing” use of perjured testimony. As indicated in the discussion of
claim two, in 2009, after several prior postconviction actions, the
Nebraska Supreme Court found that claim had been procedurally
defaulted, there is nothing to refute that analysis, and the default has not
been excused. On those same grounds, claim six is denied.

(Filing no. 83 at CM/ECF p. 51.)
As noted, there was a similarity between ground six and ground two.
Regarding ground two, I ruled, in part, as follows:
Ground Two: The prosecution’s use of Nissen’s perjured testimony to
obtain Petitioner’s conviction and sentence of death, and the state’s
failure to correct that conviction and sentence, violate Petitioner’s
rights under the Fifth, Eighth, and Fourteenth Amendments to the
Constitution.
Initially, to the extent that this claim is predicated upon the
assertion that the prosecutors knew or should have known that Nissen
perjured himself at or near the time that Nissen testified, the Nebraska
Supreme Court held in 2009 that such a claim was procedurally barred
because it could have been asserted during the direct appeal or in the
several postconvictions which predated the 2008 postconviction action
in which the claim was presented. That is:
[T]he recently discovered recantation by Nissen is in no
way probative of whether the State knew or should have
known Nissen’s testimony was perjured at the time of
Lotter’s trial or whether it failed to disclose exculpatory
evidence with regard to Nissen’s testimony. In fact,
Lotter’s allegation that the State knew or should have
known of Nissen’s perjury at the time of trial stems not
from the recantation affidavit, but from information known
to the State that Nissen had lied several times in the past
and had refused the State’s request that he take a lie
detector test before testifying.
The problem is that Lotter fails to allege that this evidence
was unavailable before any of the numerous challenges
already made to his convictions and sentences. None of
the facts alleged in the current motion could prove the
State knowingly used perjured testimony against Lotter.
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And, even assuming that a due process claim can rest on
the State’s negligent failure to know that testimony is
perjured, Lotter is procedurally barred from raising his
current allegations.
Lotter, 771 N.W.2d at 561 (footnote omitted).
I find nothing to refute the foregoing analysis. Accordingly, I find
and conclude that Lotter has procedurally defaulted the claim that the
prosecutors knew or should have known that Nissen perjured himself at
or about the time Nissen testified.
I also find and conclude that Lotter has not excused the
procedural default. In particular, he has shown neither “cause” nor
“prejudice” and he has certainly not shown that he is actually innocent
even if one assumes that Nissen did in fact perjure himself as to who
shot the victims. Importantly, Nissen did not recant all of his testimony.
Even though Nissen recanted the assertion that Lotter shot the victims,
Nissen did not recant the other portions of his testimony which directly
inculpated Lotter (such as by participating in the planning, acquiring the
murder weapons, traveling with Nissen to the scene of the murders, and
participating in the creation of alibis) in the three murders and made
Lotter jointly responsible.
As the Nebraska Supreme stated regarding the issue of actual
innocence,
Nothing in the allegations presented by the postconviction
motion, even if true, refutes the evidence at trial that
Nissen and Lotter, wearing gloves, traveled to Lambert’s
house in order to kill Brandon and anyone else they found
there. The recantation does not refute the evidence that
Lotter stole the gun used to murder the victims and that
Lotter obtained the knife and the gloves worn during the
crimes. It does not refute the testimony of a witness that on
the evening of the murders, Lotter told the witness he
desired to kill someone and that after the murders, Lotter
sought to obtain an alibi. As we indicated in Lotter’s
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appeal from the denial of his motion for DNA testing,
because of the joint participation in the felony and the
reckless indifference to human life, it is irrelevant to the
degree of culpability by whose hand the victims actually
died. And certainly, determination of this question does
not make a showing of actual innocence of the crimes for
which Lotter was convicted and sentenced. As such,
postconviction relief based upon Nissen’s recent
recantation was properly denied without an evidentiary
hearing.
Id. at 564 (footnote omitted).
(Filing no. 83 at CM/ECF p. 37-39 (emphasis in original).)
LOTTER’S PRIMARY RULE 59 ARGUMENT
Lotter’s primary argument is that there was no procedural default because he
presented ground six to the Nebraska Supreme Court in the 1999 postconviction
actions when he presented the affidavit of Nissen’s cell mate Jeff Haley. Haley’s
affidavit asserted that while they were celled together, Nissen told Haley that he, not
Lotter, fired the shots that killed the three victims.
To be specific, Lotter argues that “Petitioner asserted the claim that the
prosecution had knowingly used Nissen’s perjured testimony in his very first
postconviction action.” (Filing no. 86 at CM/ECF p.4.1) Lotter continues, claiming
that he “specifically cited that evidence on appeal to the Nebraska Supreme Court, . . .
including the following:
•
Nissen had previously been charged and convicted for falsely
implicating another person in a crime.
•
Nissen’s step-mother had warned the prosecutors that Nissen was
a ‘thief, liar and con-artist’ and ‘He’ll fake, he’s smart to make up
1

Lotter cites filing no. 50-30 at CM/ECF pp. 91-94 in support of this assertion.
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stories, he manipulates & he’s a GOOD LIAR & is good at making
others think he’s telling the truth.’
•
Nissen refused to take a polygraph test to confirm whether his
version of events was the truth.”
(Filing no. 86 at CM/ECF pp. 4-5.2)
ANALYSIS
Lotter’s argument–that there was no procedural default–is premised on the
implicit assumption that he was privileged to make a claim regarding the knowing use
of Nissen’s alleged perjury (1) in a piecemeal fashion and in successive
postconviction actions (2) while ignoring his obligation to present the claim on direct
appeal. Of course, that is not the law in Nebraska and that is not the federal law
either. See, e.g., the discussion of “procedural default” in the original decision
denying habeas relief. (Filing no. 83 at CM/ECF pp. 27-31.)
Lotter presented a claim to the Nebraska Supreme Court in his first
postconviction action3 that the prosecution knew (or should have known) at the time
of trial that Nissen was lying. That claim was based upon the affidavit of Nissen’s
former cell mate, Haley, plus other facts such as (1) the prosecutor knew that Nissen
had falsely implicated another person in an unrelated crime, (2) the prosecutor knew
that Nissen’s stepmother thought Nissen was a liar, and (3) the prosecutor knew that
Nissen would not take a polygraph as condition of his cooperation agreement.

2

Lotter cites filing no. 50-8 at CM/ECF pp. 9-11 in support of this assertion.

3

There were actually several postconviction actions that were consolidated into
one, and that consolidated matter was the first of Lotter’s several postconviction
actions. All together, Lotter filed four discrete postconviction actions.
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The Nebraska Supreme Court ruled that Haley’s affidavit was inadmissable
under the Nebraska Rules of Evidence because there were no corroborating
circumstances that clearly indicated the cell mate’s statement was trustworthy.
Importantly, the Nebraska Supreme Court also decided that Lotter’s claim of knowing
use of perjured testimony was procedurally defaulted because the “plus” factors that
allegedly would have tipped off the prosecutor–that Nissen had falsely implicated
another person in an unrelated matter, and so forth–“would have been equally known
to Lotter at the time of trial and on direct appeal.” State v. Lotter, 664 N.W.2d 892,
911 (Neb. 2003) (emphasis added).4 In that regard, the Nebraska Supreme Court
reiterated that a “motion for postconviction relief cannot be used to secure review of
issues which were or could have been litigated on direct appeal. State v. Curtright,
262 Neb. 975, 637 N.W.2d 599 (2002).” Id. The Court therefore “conclude[d] that
there is no competent evidence to support Lotter’s postconviction claim that the State
knowingly used perjured testimony against him at trial.” Id.
When Lotter brought his fourth postconviction action alleging once again the
knowing use of Nissen’s alleged perjury, based upon Nissen’s affidavit together with
the “plus” factors that had been rejected in the first postconviction action as
procedurally defaulted, the result, not surprisingly, was the same. That is:
4

Lotter does not challenge this finding by the Nebraska Supreme Court in his
Rule 59 motion. Even if he did, that finding is entitled to AEDPA deference since it
led to the Nebraska Supreme Court’s decision on the merits that there “is no
competent evidence” to support Lotter’s claim. See, e.g., the discussion of “AEDPA
deference” in the original decision denying habeas relief. (Filing no. 83 at CM/ECF
pp. 31-33.) Moreover, to the extent that Lotter claims this “plus” evidence was not
available to him, despite the decision of the Nebraska Supreme Court to the contrary,
because the prosecution did not disclose it in violation of Brady and Giglio, that
claim has also been procedurally defaulted. (Filing no. 83 at CM/ECF pp. 52-53.)
In fact, Lotter’s state postconviction counsel repeatedly told the district court that he
was not asserting “a direct Brady problem” and “I’m not talking about Brady.” (Filing
no. 83 at CM/ECF p. 52 (citing filing no. 59-4 at CM/ECF p. 41).
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[T]he recently discovered recantation by Nissen is in no way
probative of whether the State knew or should have known Nissen’s
testimony was perjured at the time of Lotter’s trial or whether it failed
to disclose exculpatory evidence with regard to Nissen’s testimony. In
fact, Lotter’s allegation that the State knew or should have known of
Nissen’s perjury at the time of trial stems not from the recantation
affidavit, but from information known to the State that Nissen had lied
several times in the past and had refused the State’s request that he take
a lie detector test before testifying.
The problem is that Lotter fails to allege that this evidence was
unavailable before any of the numerous challenges already made to his
convictions and sentences. None of the facts alleged in the current
motion could prove the State knowingly used perjured testimony against
Lotter. And, even assuming that a due process claim can rest on the
State’s negligent failure to know that testimony is perjured, Lotter is
procedurally barred from raising his current allegations.
The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity. Therefore,
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. Similarly, an appellate 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 available5 at the time the movant filed the prior motion.
On its face, Lotter’s motion for postconviction relief failed to
affirmatively show that he could not have raised these issues either on
direct appeal or during prior motions for new trial and postconviction
relief.

5

In a brief in support of a motion for rehearing regarding the fourth
postconviction action, Lotter admitted that “he does not allege that the second
category of evidence [the ‘plus’ factors] was previously unavailable.” (Filing no.
53-6 at CM/ECF p. 9 (emphasis added).)
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State v. Lotter, 771 N.W.2d 551, 561 (Neb. 2009) (footnotes and citations omitted)
(emphasis added).
In summary, the Nebraska courts have taken seriously their obligation to give
Lotter a full and fair opportunity to present his claim that the prosecution knew, or
should have known, at the time of trial that Nissen was lying. Lotter is not, however,
entitled to present serial iterations of this claim by evading long-standing and
consistently employed rules that seek to promote the finality of criminal judgments.
Lotter defaulted the claim that the prosecutor knew or should have known at the time
of trial that Nissen was lying, and that default has not been excused by a showing of
actual innocence or otherwise. In short, the Rule 59 motion will be denied because
my original decision was correct.6
IT IS ORDERED that the petitioner’s Motion to Alter or Amend Judgment
(filing no. 85) is denied.
DATED this 25th day of April, 2011.
BY THE COURT:

Richard G. Kopf
United States District Judge

6

Only the argument discussed in the text warrants discussion. That said, I have
considered every argument advanced by Lotter in support of his Rule 59 motion and
I reject them all because they have no merit.
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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