Petition for Writ of Certiorari — John L. Lotter, Petitioner v. Nebraska

No. _____ (CAPITAL CASE)

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________________________________________

JOHN L. LOTTER,

Petitioner,

v.

STATE OF NEBRASKA,

Respondent.

__________________________________________________________________

On Petition For A Writ Of Certiorari

To The Nebraska Supreme Court

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Shawn Nolan*

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 545 West—The Curtis

601 Walnut Street

Philadelphia, PA 19106

(215) 928-0520

Shawn_Nolan@fd.org

*Counsel of Record

Member of the Bar of the Supreme Court

Counsel for Petitioner, John L. Lotter

November 28, 2022

QUESTION PRESENTED

CAPITAL CASE

Atkins v. Virginia, 536 U.S. 304 (2002), decided that the Eighth Amendment

“places a substantive restriction on the State’s power to take the life” of an individual

with an intellectual disability. Id. at 321 (quoting Ford v. Wainwright, 477 U.S. 399,

405 (1986)). Twice since Atkins, this Court has answered questions regarding “how

intellectual disability should be measured and assessed” by States exercising their

“discretion to define the full scope of the constitutional protection.” Hall v. Florida,

572 U.S. 701, 719 (2014). The Court first rejected a rule that had treated anyone with

a score over 70 on an IQ test as someone who “does not have an intellectual disability”

and that had “barred” the person “from presenting other evidence that would show

his faculties are limited.” Id. at 711–12. The Court subsequently decided that “[t]he

medical community’s current standards supply one constraint on States’ leeway” to

define intellectual disability and, in particular, the “adaptive functioning” criterion

for such a disability. Moore v. Texas, 137 S. Ct. 1039, 1050–53 (2017) (Moore I).

Lower courts have diverged in three different ways when applying this Court’s

federal retroactivity rules to both Hall and Moore I. The decision below joined one

group of courts that view both cases as having “adopted new procedures” that do not

apply retroactively. App. 28a. That is at odds with a second approach, which applies

both Hall and Moore I retroactively after having explained that the former was

substantive—not procedural—because it altered how to define a class of people who

are subject to a prohibition on capital punishment. And these two approaches are at

odds with a third that treats Hall and Moore I as old rules that were dictated by

Atkins and, as a result, can apply retroactively.

The question presented is: Did Hall and Moore I announce new substantive

rules of federal constitutional law that apply retroactively to cases on collateral

review?

i

PARTIES TO THE PROCEEDING

John Lotter was the defendant/petitioner in the proceedings below. The State

of Nebraska was the plaintiff/respondent in those proceedings.

ii

RELATED PROCEEDINGS

Nebraska Supreme Court:

• State v. Lotter, Nos. S-17-325, S-17-338, S-17-339, S-17-1126, S-17-1127, S-171129 (Neb. Sept. 28, 2018), cert. denied, Lotter v. Nebraska, No. 18-8415 (2019).

• State v. Lotter, Nos. S-12-837 to S-12-839 (Neb. Mar. 20, 2013).

• State v. Lotter, Nos. S-08-449 to S-08-451 (Neb. Sept. 4, 2009), cert. denied,

Lotter v. Nebraska, No. 09-8682 (2010).

• State v. Lotter, Nos. S-03-1278 to S-03-1280 (Neb. Apr. 21, 2004).

• State v. Lotter, Nos. S-02-1072 to S-02-1074 (Neb. Sept. 26, 2003).

• State v. Lotter, Nos. S-01-091 to S-01-093 (Neb. July 11, 2003), cert. denied,

Lotter v. Nebraska, No. 03-7361 (2004).

• State v. Lotter, Nos. S-96-297, S-96-298, S-96-312 (Neb. Nov. 6, 1998), cert.

denied, Lotter v. Nebraska, No. 98-8847 (1999).

Nebraska District Court, Richardson County:

• State v. Lotter, Nos. 2682, 2683, 2684 (Sept. 28, 2017).

• State v. Lotter, Nos. 2682, 2683, 2684 (Aug. 29. 2012).

• State v. Lotter, Nos. 2682, 2683, 2684 (Apr. 2, 2008).

• State v. Lotter, No. 2682 (Feb. 5, 2008).

• State v. Lotter, Nos. 2682, 2683, 2684 (Oct. 22, 2003).

• State v. Lotter, Nos. 2682, 2683, 2684 (Sept. 12, 2002).

• State v. Lotter, Nos. 2682, 2683, 2684 (Dec. 19, 2000).

• State v. Lotter, Nos. 2682, 2683, 2684 (Feb. 21, 1996).

United States Court of Appeals for the Eighth Circuit:

• Lotter v. Britten, No. 17-2000 (8th Cir. July 31, 2017), cert. denied, Lotter v.

Frakes, No. 17-6602 (2018).

• Lotter v. Houston, No. 11-2223 (8th Cir. Aug. 23, 2011), cert. denied, Lotter v.

Houston, No. 11-8458 (2012).

United States District Court for the District of Nebraska:

• Lotter v. Britten, No. 4:04-cv-03187 (D. Neb. Mar. 27, 2017).

• Lotter v. Houston, No. 4:04-cv-3187 (D. Neb. Mar. 18, 2011).

iii

TABLE OF CONTENTS

QUESTION PRESENTED…………………………………………………………………….i

PARTIES TO THE PROCEEDING .............................................................................. ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... vi

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 3

JURISDICTION............................................................................................................. 4

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 4

STATEMENT OF THE CASE....................................................................................... 4

REASONS FOR GRANTING THE WRIT .................................................................. 14

I.

THE DECISION BELOW DEEPENS A SPLIT OF AUTHORITY REGARDING THE

RETROACTIVITY OF HALL AND MOORE I. ............................................................. 17

II. THE DECISION BELOW MISAPPLIED THIS COURT’S RETROACTIVITY JURISPRUDENCE

AND CALLS OUT FOR THIS COURT’S REVIEW TO RESOLVE THE SPLIT ON THIS

CRITICAL QUESTION. ........................................................................................... 24

A.

The decision below cannot be squared with this Court’s retroactivity

precedents. .............................................................................................. 24

B.

The Court should use this case to resolve the critical and recurring

question of Hall’s and Moore I’s retroactivity. ...................................... 31

CONCLUSION............................................................................................................. 34

iv

APPENDIX

Opinion of the Nebraska Supreme Court Affirming the District Court’s

Judgment (July 1, 2022) ........................................................................................1a

Order of the District Court of Richardson County, Nebraska, on Petitioner’s

Amended Post-conviction Motion (Apr. 15, 2020) ................................................42a

Order of Sentence of Death Entered by the District Court of Richardson

County, Nebraska (Feb. 21, 1996).........................................................................52a

Petitioner’s Amended Motion for Postconviction Relief, with Declaration

from Dr. Ricardo Weinstein (Mar. 27, 2018) ........................................................100a

State’s Response to Amended Motion for Postconviction Relief

(May 29, 2018)........................................................................................................176a

Petitioner’s Reply to State’s Response (June 27, 2018)........................................184a

v

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .............................................................. passim

Beard v. Banks, 542 U.S. 406 (2004)........................................................................... 26

Bobby v. Bies, 556 U.S. 825 (2009) ................................................................ 1, 7, 17, 27

Boyde v. California, 494 U.S. 370 (1990) ...................................................................... 1

Brumfield v. Cain, 808 F.3d 1041 (5th Cir. 2015) ........................................................ 8

Brumfield v. Cain, 854 F. Supp. 2d (M.D. La. 2012) .................................................... 8

Chaidez v. United States, 568 U.S. 342 (2013) ..................................................... 15, 23

Davis v. Kelley, 854 F.3d 967 (8th Cir. 2017) (per curiam) ........................................ 21

Edwards v. Vannoy, 141 S. Ct. 1547 (2021) ............................................................... 26

Ford v. Wainwright, 477 U.S. 399 (1986) ........................................................... passim

Fulks v. Watson, 4 F.4th 586 (7th Cir. 2021) .............................................................. 22

Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014) (per curiam) ............................. 21, 28

Hall v. Florida, 572 U.S. 701 (2014) ................................................................... passim

In re Graham, 714 F.3d 1181 (10th Cir. 2013) (per curiam) ...................................... 23

In re Henry, 757 F.3d 1151 (11th Cir. 2014) ............................................. 15, 21, 25, 28

In re Milam, 838 F. App’x 796 (5th Cir. 2020) (per curiam) ...................................... 22

In re Payne, 722 F. App’x 534 (6th Cir. 2018)............................................................. 22

In re Richardson, 802 F. App’x 750 (4th Cir. 2020) (per curiam). ............................. 22

Jones v. Mississippi, 141 S. Ct. 1307 (2021) ..................................................... 3, 29, 30

Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301 (11th Cir. 2015) ......................... 26

vi

Lambrix v. Singletary, 520 U.S. 518 (1997).......................................................... 25, 26

Miller v. Alabama, 567 U.S. 460 (2012) ...................................................................... 29

Montgomery v. Louisiana, 577 U.S. 190 (2016) .................................................. passim

Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I) ............................................... passim

Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam) (Moore II) .................................... 7

Penry v. Lynaugh, 492 U.S. 302 (1989) ....................................................... 1, 19, 26, 28

Phillips v. State, 299 So. 3d 1013 (Fla. 2020) (per curiam) .................................. 14, 23

Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016). ............................................. 23

Roper v. Simmons, 543 U.S. 551 (2005) .......................................................... 16, 31, 32

Schriro v. Summerlin, 542 U.S. 348 (2004) .................................................... 16, 28, 29

Shoop v. Hill, 139 S. Ct. 504 (2019) (per curiam) ....................................................... 17

Smith v. Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330 (11th Cir. 2019) .... 14, 20, 21, 25

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) ........................................ 2, 15, 23, 24

State v. Jackson, 157 N.E.3d 240 (Ohio Ct. App. 2020) ....................................... 15, 23

State v. Lotter, 664 N.W.2d 892 (Neb. 2003)............................................................. 5, 6

State v. Vela, 777 N.W.2d 266 (Neb. 2010) ........................................................... 11, 33

Teague v. Lane, 489 U.S. 288 (1989) ................................................................... passim

Welch v. United States, 578 U.S. 120 (2016)........................................................... 3, 30

White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016) ................................ 2, 14, 19, 20

Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017) (per curiam)................. 14, 21, 22, 32

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) ................................ 2, 14, 20, 33

Young v. State, 860 S.E.2d 746 (Ga. 2021) ........................................................... 14, 20

vii

Statutes

28 U.S.C. § 1257 ............................................................................................................. 4

28 U.S.C. § 2244 ........................................................................................................... 22

28 U.S.C. § 2255 ........................................................................................................... 22

Neb. Rev. Stat. § 25-1912 .............................................................................................. 4

Neb. Rev. Stat. § 29-3001 ...................................................................................... 12, 13

Neb. Rev. Stat. § 29-3002 .............................................................................................. 4

Other Authorities

American Association on Intellectual and Developmental Disability (AAIDD),

Intellectual Disability: Definition, Classification, and Systems of Support

(11th Ed. 2010) ...................................................................................................... 8, 9

American Association on Mental Retardation, Mental Retardation: Definition,

Classification, and Systems of Supports (9th ed. 1992) ........................................... 5

American Psychiatric Association, Diagnostic and Statistical Manual

(5th ed. 2013) (DSM-5) .......................................................................................... 8, 9

American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 2000) ............................................................................................ 6

Constitutional Provisions

U.S. Const. amend. VIII ................................................................................................ 4

U.S. Const. amend. XIV ................................................................................................. 4

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner John Lotter respectfully petitions for a writ of certiorari to review

the judgment of the Nebraska Supreme Court.

INTRODUCTION

This Court originally created a categorical prohibition on executing individuals

with intellectual disabilities in Atkins v. Virginia, 536 U.S. 304, 321 (2002), but

declined to “provide definitive procedural or substantive guides for determining when

a person who claims [intellectual disability] ‘will be so impaired as to fall within

[Atkins’ compass],’” Bobby v. Bies, 556 U.S. 825, 831 (2009) (quoting Atkins, 536 U.S.

at 317) (second alteration in original). The Court “le[ft]” that “task” to the States in

the early days after Atkins. See 536 U.S. at 317 (quoting Ford v. Wainwright, 477

U.S. 399, 405, 416–17 (1986)). But the Court later took up the task itself. And it has

since changed the meaning of “intellectual disability” for purposes of the Eighth

Amendment’s bar on executing anyone in the “class” of individuals who have that

“status.” Cf. Penry v. Lynaugh, 492 U.S. 302, 329–30 (1989), holding modified by

Boyde v. California, 494 U.S. 370, 378–86 (1990), and abrogated on other grounds by

Atkins, 536 U.S. 304, 321. The Court decided in Hall v. Florida, 572 U.S. 701 (2014),

that a State cannot exclude from the class individuals who have “scored a 71 instead

of a 70 on an IQ test” solely because of that score. See id. at 724. And Moore v. Texas,

137 S. Ct. 1039 (2017) (Moore I), decided that States must adhere to “clinical

standards” that focus on “adaptive deficits”—not “adaptive strengths”—when

deciding whether individuals are within the class. See id. at 1050.

1

Lower courts have diverged and reached three different answers when asking

whether these changes constitute new substantive rules of constitutional law that

must be applied retroactively. First, the Kentucky Supreme Court applies both Hall

and Moore I retroactively, after having explained that Hall was a “sea change” in the

law and substantive because it “define[d] the manner in which the mental deficiencies

of offenders must be evaluated” for purposes of a categorical bar on capital

punishment. See White v. Commonwealth, 500 S.W.3d 208, 214–15 (Ky. 2016),

abrogated on other grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018);

Woodall, 563 S.W.3d at 2–7. A second approach—the one adopted by the decision

below—views Hall and Moore I as new, but as having “merely adopted new

procedures for ensuring states follow the constitutional rule announced in Atkins.”

See App. 28a–29a. Unlike these two approaches, a third one applies throughout the

Tenth Circuit. There, Hall and Moore I are old rules that—regardless of whether they

are procedural or substantive—can apply retroactively under Teague v. Lane, 489

U.S. 288 (1989), and its progeny. See Smith v. Sharp, 935 F.3d 1064, 1083–85 (10th

Cir. 2019).

This split calls out for the Court’s intervention, and the decision below provides

an excellent vehicle to resolve it. The Nebraska Supreme Court squarely answered

the question presented and embraced the second of the three approaches. See App.

28a–29a. In doing so, it both mischaracterized Hall and Moore I and misapplied this

Court’s retroactivity jurisprudence. Hall and Moore I both “alter[ed] . . . the class of

persons that the law punishes” with a sentence of death. See Jones v. Mississippi, 141

2

S. Ct. 1307, 1317 n.4 (2021) (quoting Welch v. United States, 578 U.S. 120, 129 (2016)).

Unlike in the early days after Atkins, an individual who scores a 74 on an IQ test

(with a standard error of measurement of five points) and who has exhibited some

adaptive strengths, but who everyone agrees has an intellectual disability under

“current medical standards,” has the same status under the Eighth Amendment

today. See Moore I, 137 S. Ct. at 1050–53. Both Hall and Moore I expanded the class

under the Eighth Amendment and are substantive.

Now is the time to answer the question presented. Every time it arises, it can

mean the difference between an execution and life imprisonment without the

possibility of parole. Unlike similarly situated petitioners in a jurisdiction like

Kentucky, in Nebraska John Lotter was denied an evidentiary hearing to prove his

intellectual disability and categorical ineligibility to be executed. Yet he received an

intellectual-disability diagnosis under current medical guidelines—a diagnosis

grounded in evidence that dates back to his placement in special education classes

when he was a child attempting to navigate the first grade. This Court should resolve

the federal question that has divided lower courts and that was dispositive in the

appeal below.

OPINIONS BELOW

The decision of the Nebraska Supreme Court (App. 1a–41a) is reported at 311

Neb. 878, 976 N.W.2d 721. The opinion and order of the District Court of Richardson

County, Nebraska, is unreported and appears at App. 42a–51a.

3

JURISDICTION

The Nebraska Supreme Court, exercising jurisdiction under Neb. Rev. Stat.

§§ 25-1912 and 29-3002, entered judgment on July 1, 2022. See App. 1a, 41a. On

September 19, 2022, Justice Kavanaugh extended the time to file a petition for a writ

of certiorari until November 28, 2022. This Court has jurisdiction over this petition

under 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII.

The Fourteenth Amendment to the U.S. Constitution provides, in part: “nor

shall any State deprive any person of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

1. John Lotter was tried and convicted by a jury in Nebraska state court for

three counts of first-degree murder in May 1995 and, in February 1996, was

sentenced to death by a three-judge panel. See App. 52a–99a. The sentencing judges

found multiple mitigating circumstances, including that Lotter’s “capacity . . . to

conform his conduct to the requirements of law was impaired as a result of mental

illness” at the time of the crime. App. 95a. Lotter had a history of “serious

medical/psychiatric

problems,”

“cognitive

4

deficits,

learning

disabilities

and

educational deficiencies,” and a “turbulent family history” that included “removal

from his home in the second grade” followed by “placement in group homes, foster

ca[r]e, psychiatric hospitals,” and—when he was sixteen years old—state prison. See

App. 78a–79a, 95a–96a. The sentencing panel found three types of aggravating

circumstances—with two such circumstances applying to each murder conviction—

and decided that neither the mitigating circumstances nor the fact that Lotter’s codefendant had been sentenced to life imprisonment justified a life sentence for Lotter.

See App. 85a, 94a–97a. Ultimately, the panel sentenced Lotter to death. App. 98a.

The judgment became final in June 1999. App. 6a.

2. Lotter sought state post-conviction relief later that year. See App. 6a. In

June 2002, while appellate state post-conviction proceedings were ongoing, this Court

decided Atkins. See App. 6a; State v. Lotter, 664 N.W.2d 892, 901–02 (Neb. 2003).

Atkins concluded that the Eighth Amendment to the U.S. Constitution “places

a substantive restriction on the State’s power to take the life” of an individual with

an intellectual disability. See 536 U.S. at 321 (quoting Ford, 477 U.S. at 405). In doing

so, the Court pointed to definitions of intellectual disability from two clinical sources.

See id. at 308 n.3, 317 n.22, 318. These clinical sources recognized three criteria for a

diagnosis of intellectual disability: (1) “significantly subaverage intellectual

functioning,” (2) “limitations in . . . [designated] adaptive skill areas,” and

(3) “manifest[ation] before age 18.” Id. at 308 n.3 (quoting American Association on

Mental Retardation, Mental Retardation: Definition, Classification, and Systems of

Supports 5 (9th ed. 1992); and going on to cite American Psychiatric Association,

5

Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000)). Atkins

acknowledged, however, “serious disagreement” among the States when it came to

“determining which offenders are in fact [intellectually disabled].” Id. at 317.

Regarding that disagreement, the Court “le[ft] to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction upon [their] execution of

sentences.” Id. (second and third alterations in original) (footnote omitted) (quoting

Ford, 477 U.S. at 405, 416–417).

Lotter’s counsel did not raise an intellectual-disability claim when this Court

first issued Atkins, and the Nebraska Supreme Court subsequently affirmed the

denial of Lotter’s initial motion for post-conviction relief in July 2003. See Lotter, 664

N.W.2d at 923. 1 In May 2004, counsel for Lotter initially sought “an Atkins

determination” in a motion for state post-conviction relief, but later “abandoned the

effort” without appearing to have completed any evaluations and without obtaining

judicial review of the merits of such a claim. See App. 25a; Lotter v. Britten, No. 4:04cv-03187, ECF No. 1-2, PageID 29–30, 95–96 (D. Neb. filed May 11, 2004). Apart from

any Atkins claim, Lotter filed three additional motions for state post-conviction relief

and two petitions for federal habeas corpus relief between 2007 and 2017, all of which

were denied. See App. 6a.

1 Also that year, the Nebraska Supreme Court affirmed a separate denial of relief

Lotter had sought under a state DNA testing statute. See App. 6a.

6

During these intervening years, this Court twice decided cases regarding “how

intellectual disability should be measured and assessed” after acknowledging “that

Atkins ‘did not provide definitive procedural or substantive guides for determining

when a person who claims mental retardation’ falls within the protection of the

Eighth Amendment.” See Hall, 572 U.S. at 718–19 (quoting Bies, 556 U.S. at 831). In

May 2014, the Court “invalidated” one State’s use of a “strict IQ cutoff” for the

intellectual-functioning prong of the definition of intellectual disability, “because the

cutoff took ‘an IQ score as final and conclusive evidence of a defendant’s intellectual

capacity, when experts in the field would consider other evidence.’” Moore I, 137 S.

Ct. at 1050 (quoting Hall, 572 U.S. at 712). And on March 28, 2017, the Court held

that “[t]he medical community’s current standards” for defining both the intellectualfunctioning prong and the adaptive-functioning prong “constrain[]” the “leeway”

States had when defining intellectual disability under the Eighth Amendment. Id. at

1050–53; see also Moore v. Texas, 139 S. Ct. 666, 672 (2019) (per curiam) (Moore II)

(reversing a subsequent state-court judgment that “rest[ed] upon analysis too much

of which too closely resemble[d] what [the Court] previously found improper” in Moore

I). Each case arose in a post-conviction posture. See Moore I, 137 S. Ct. at 1044–45;

Hall, 572 U.S. at 707.

3. On March 27, 2018, Lotter filed an amended motion for post-conviction relief

that led to the decision below. App. 100a–61a. The motion included a declaration from

a forensic psychologist, Dr. Ricardo Weinstein, who had evaluated Lotter and

diagnosed him with an intellectual disability. App. 162a–75a. Specifically, the

7

psychologist determined that Lotter met the requirements for each of the three

prongs that define intellectual disability: (1) “‘significant limitations in intellectual

functioning’” and (2) “deficits” in “‘adaptive functioning,’” which (3) “originate[d]

before” Lotter turned eighteen years old or during his “‘developmental period.’” App.

165a–68a (quoting American Association on Intellectual and Developmental

Disability (AAIDD), Intellectual Disability: Definition, Classification, and Systems of

Support 1, 15 (11th Ed. 2010); American Psychiatric Association, Diagnostic and

Statistical Manual 33 (5th ed. 2013) (DSM-5)).

To evaluate Lotter’s intellectual functioning (prong one), the psychologist

administered the Fourth Edition of the Woodcock-Johnson Tests of Cognitive

Abilities in March 2018. App. 163a, 169a–70a. Lotter achieved a full-scale score of 67,

which “is more than two standard deviations below the mean” score. App. 163a, 169a–

70a. The psychologist added that this score “is at the level of someone who is [eight]

years [seven] months old.” App. 169a. The psychologist also noted a prior score of 76

on a test from May 1981, when Lotter was under ten years old. App. 170a. Based on

the Flynn Effect, 2 the psychologist adjusted that score to a 73, which “is within the

2 The Flynn Effect “describes the phenomenon whereby the American public’s score

on any given IQ test increases by approximately three points per decade,” such that

“‘when an older test is used to measure a test subject, the subject’s IQ score may be

artificially inflated because that test was normalized using a past sample of

Americans.’” See Brumfield v. Cain, 808 F.3d 1041, 1060 n.27 (5th Cir. 2015) (quoting

Brumfield v. Cain, 854 F. Supp. 2d 366, 391 (M.D. La. 2012)). To “accurately depict

8

70–75 range” to meet the intellectual-functioning prong while accounting for “the

standard error of measurement.” App. 170a. 3 The psychologist concluded that Lotter’s

IQ scores met the requirements of prong one. App. 163a, 169a–70a.

Relying on reports from witnesses who knew Lotter throughout his life, the

psychologist next found that Lotter exhibited “significant adaptive deficits” (prong

two). App. 168a–74a. According to the AAIDD’s diagnostic guidelines, an individual

who experienced “significant limitations in one” of three adaptive-skill categories—

“conceptual,” “social,” and “practical” skills—satisfies this prong. App. 166a (citing

AAIDD, Intellectual Disability: Definition, Classification, and Systems of Support, at

15, 43) (emphasis omitted). The DSM-5 similarly “identifies three parallel domains

of adaptive functioning” and does not require limitations in all three to meet this

prong. App. 166a (citing DSM-5 at 33, 37–38). The psychologist explained that Lotter

“has significant adaptive deficits” in each of the three categories. App. 170a.

an individual’s intellectual functioning” in light of this phenomenon, experts adjust

scores from tests that used “out-of-date test norms” through a process the

psychologist applied to Lotter’s score from 1981. See App. 165a n.17, 170a.

3 Lotter had taken other IQ tests as a child, one of which resulted in a reported

score of 92 at age twelve. See App. 22a; Lotter, No. 4:04-cv-03187, ECF No. 57-21 at

PageID 7888–90. The psychologist acknowledged additional childhood scores, but

explained that “[t]here were no records and[/]or protocols of prior testing performed

available for review.” App. 170a & n.43. “Without a proper review of the data,” it

“[wa]s not possible to opine regarding the accuracy and validity of the test[] results.”

App. 170a n.43.

9

Lotter suffered from significant deficits in the “conceptual” domain “as early

as the first grade” when he was placed in a “special education” program. App. 170a–

71a. That type of placement continued “[e]ven at youth detention facilities,” when

Lotter later “was placed in separate classrooms” and received “special—and

sometimes one-on-one—instruction.” App. 171a. A psychiatrist who treated Lotter in

Lotter’s childhood added that Lotter had impairments in his ability to consider

“various potential outcomes of his actions and weigh the consequences” beforehand.

App. 171a.

Lotter also exhibited significant deficits in the “social” domain. App. 171a– 72a.

He was manipulated and “bullied” by “his peers” throughout “nearly every stage of

his life.” App. 171a–72a. A social worker who knew Lotter when Lotter was a young

boy, for instance, described how “Lotter wanted to fit in and would do anything his

[foster] brothers asked,” even though “[t]he other kids would set him up, and [Lotter]

kept falling for it.” App. 171a–72a. Unable to avoid being manipulated by children

his own age, “Lotter was more comfortable playing with children three to four years

younger than him.” App. 172a. One example of how Lotter acted years behind his age

group occurred around age ten: Lotter “asked his foster mother to give him a bottle

and hold him like a baby.” App. 172a. Throughout his life, Lotter was considered “a

follower and easily influenced.” App. 172a.

Lotter struggled significantly with “practical” skills too, which include “ageappropriate tasks of daily living.” App. 173a. As a child, he struggled with simple

activities like washing dishes or combing his hair. App. 173a. Even as an adult, he

10

“could not cook,” “lived primarily with family members who did not charge him rent,”

and “struggled to manage money and maintain long-term employment” while mostly

working jobs that “involved unskilled labor.” App. 173a. The psychiatrist who treated

Lotter in Lotter’s childhood opined that “Lotter’s impairments are so severe that he

would require an assisted living facility for adults.” See App. 173a.

Finally, Lotter “exhibited very significant deficits and required intervention by

professionals . . . early on in his developmental years.” App. 174a. The psychologist

who evaluated Lotter opined that his deficits were “present since childhood” and that

he met the third and final prong to qualify for a diagnosis of intellectual disability.

App. 174a.

Lotter relied on this diagnosis and the Court’s decisions in Hall and Moore I to

argue (as relevant here) that he is a member of a “[c]lass” of individuals who are

ineligible to be executed under the Eighth Amendment. See App. 144a–58a. Although

the Nebraska Supreme Court had previously “relied on evidence of [a defendant’s]

adaptive strengths, not his deficits,” when deciding whether the defendant had an

intellectual disability as matter of law, Lotter argued that this type of reasoning was

“inconsistent with Moore [I] and current medical standards.” See App. 153a–54a

(discussing State v. Vela, 777 N.W.2d 266, 308 (Neb. 2010)).

11

4. A state trial-level court denied Lotter’s motion on procedural grounds

without an evidentiary hearing. App. 48a–50a. 4 In relevant part, the court applied

Neb. Rev. Stat. § 29-3001(4), which imposes “[a] one-year period of limitation . . . to

the filing of a verified motion for postconviction relief.” See App. 48a–50a. The statute

of limitations can start running on “[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, if the newly recognized right has been made applicable

retroactively to cases on postconviction collateral review.” Neb. Rev. Stat.

§ 29-3001(4)(d); see also id. § 29-3001(4) (listing other potential start dates). But the

state trial-level court reasoned that Lotter’s “constitutional claim has been recognized

by the United States Supreme Court for more than fifteen years” (i.e., since Atkins),

App. 48a, and that Lotter’s “intellectual disability claim is not a new rule of

constitutional law applicable on collateral review,” App. 49a.

The Nebraska Supreme Court affirmed. Regarding the relevant time bar, the

decision below explained that Lotter’s argument “require[d] [the court] to determine

whether Moore I recognized a new constitutional right which has been applied

retroactively to cases on collateral review.” App. 26a–27a. The Nebraska Supreme

4 The court held a “records hearing” in February 2020. App. 7a (footnote omitted).

No witnesses testified; the purpose of this type of hearing was “to receive existing

files and records before deciding whether to grant or deny [an] evidentiary hearing

on [the] motion for postconviction relief.” App. 7a n.12.

12

Court recognized that it had an obligation to “give retroactive effect to new

substantive rules of federal constitutional law,” App. 27a (footnote omitted), and that

Atkins announced such a rule, App. 27a. But the Nebraska Supreme Court decided

to follow a group of “state and federal courts” that “ha[s] 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.” App. 28a (footnotes omitted). The Nebraska Supreme Court decided, in

turn, “that neither Hall nor Moore I announced a new substantive rule of

constitutional law that must be applied retroactively to cases on collateral review.”

App. 29a. After having resolved this federal issue, the Nebraska Supreme Court

explained that Lotter could not rely on Moore I to “trigger the [one]-year limitations

period under § 29-3001(4)(d),” because the case “did not recognize a new

constitutional right which has been applied retroactively to cases on collateral

review.” App. 29a.

13

REASONS FOR GRANTING THE WRIT

The decision below squarely answered a question that has divided courts

around the country and that calls for this Court’s review: whether the rules governing

the substantive definition of “intellectual disability” this Court announced in Hall

and Moore I “must be applied retroactively to cases on collateral review” under

Teague and its progeny. See App. 27a–29a.

The division among lower courts breaks down into three types of decisions.

First, the Kentucky Supreme Court applies both Hall and Moore I retroactively. See

White, 500 S.W.3d at 214–15; Woodall, 563 S.W.3d at 2–7. And it does so after having

treated this Court’s “directive” in Hall regarding how to “evaluate[]” intellectual

disability as a new substantive rule that “must be retroactively applied.” See White,

500 S.W.3d at 215. The Georgia Supreme Court recently lent support to this approach

when it reasoned that Hall and Moore I answered “questions regarding the

substantive definition of intellectual disability,” not a “procedural question,” like the

burden of proof to meet that definition. See Young v. State, 860 S.E.2d 746, 771 (Ga.

2021) (plurality op.).

A second set of courts, including the Nebraska Supreme Court in the decision

below, similarly view Hall and Moore I as having created new rules, but treat them

as procedural rules that do not apply retroactively on collateral review. See Smith v.

Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330, 1338–39 (11th Cir. 2019); Williams v.

Kelley, 858 F.3d 464, 474 (8th Cir. 2017) (per curiam); App. 27a–29a; see also Phillips

v. State, 299 So. 3d 1013, 1022 (Fla. 2020) (per curiam) (deciding that “Hall

14

announced a new procedural rule”); State v. Jackson, 157 N.E.3d 240, 253 (Ohio Ct.

App. 2020) (concluding “that Hall and Moore did not announce new substantive rights

that must be applied retroactively”).

And there is yet a third approach: The Tenth Circuit applies Hall and Moore I

retroactively, but—unlike the aforementioned courts—views both decisions to be

applications of an old rule, i.e., as having been “dictated by” by Atkins. See Smith, 935

F.3d at 1083–85 (quoting Chaidez v. United States, 568 U.S. 342, 348 (2013)).

The Court should use this case to resolve the split. The decision below reflects

what numerous courts have gotten wrong when applying this Court’s retroactivity

precedents. According to the decision below, “neither Hall nor Moore I announced a

new substantive rule of constitutional law” because both cases merely “refined the

appropriate standards states should apply to determine whether an offender is

intellectually disabled.” App. 29a. That analysis correctly recognized that neither

Moore I nor Hall was “dictated by precedent.” See Teague, 489 U.S. at 301 (plurality

op.); see also, e.g., In re Henry, 757 F.3d 1151, 1159 (11th Cir. 2014) (cited in App. 28a

nn.91, 93). But it misunderstood Hall’s and Moore I’s effects as well as this Court’s

retroactivity jurisprudence. Both Hall and Moore I redefined “intellectual disability”

as a matter of law; both decisions “expand[ed] the class of individuals” who qualify

for the status of having an intellectual disability under the Eighth Amendment. But

see App. 28a. Both Hall and Moore I therefore announced “substantive guarantee[s]”

that apply retroactively, not mere “rule[s] that ‘regulate only the manner of

determining the defendant’s culpability’” that would be inapplicable on collateral

15

review. See Montgomery v. Louisiana, 577 U.S. 190, 210 (2016) (quoting Schriro v.

Summerlin, 542 U.S. 348, 353 (2004)) (emphasis and alteration omitted).

The Court should answer this important, recurring question now. Each time

the question arises, it has extraordinary implications for petitioners and States. And

a decision that both Hall and Moore I established new substantive rules that define

“the entire category of [intellectually disabled] offenders,” Moore I, 137 S. Ct. at 1051

(quoting Roper v. Simmons, 543 U.S. 551, 563–64 (2005)), would be dispositive of

Lotter’s appeal. All he sought was a remand for an evidentiary hearing on his

intellectual-disability claim. Without resolving any factual disputes, the decision

below relied on an understanding of both federal law and a bar to collateral review

that would be wiped away by this Court’s clarification of its retroactivity precedent

and long-overdue recognition of Hall’s and Moore I’s retroactivity.

16

I.

The decision below deepens a split of authority regarding the

retroactivity of Hall and Moore I.

Since this Court announced Atkins, Hall, and Moore I, lower courts have

diverged on how to address the retroactivity of the latter two. The Kentucky Supreme

Court gives retroactive effect to both, after having expressly described why Hall

constitutes a new substantive rule. Another group of courts, including the Nebraska

Supreme Court in the decision below, views Hall and Moore I to have announced new

rules that are merely procedural in nature and thus not retroactively applicable to

criminal judgments that became final before this Court issued each decision. And the

Tenth Circuit considers both Hall and Moore I to be mere applications of old rules

that can apply retroactively. As a result of this split, and based merely on geographic

happenstance, similarly situated petitioners are treated differently on a life-or-death

question of federal law.

1. The Atkins Court decided for the first time “that the Constitution ‘places a

substantive restriction on the State’s power to take the life’ of” individuals with

intellectual disabilities. See Atkins, 536 U.S. at 321 (quoting Ford, 477 U.S. at 405).

At the time, however, the Court “did not provide definitive procedural or substantive

guides for determining when a person who claims mental retardation ‘will be so

impaired as to fall within [Atkins’ compass].’” Bies, 556 U.S. at 831 (quoting Atkins,

536 U.S. at 317); see also Shoop v. Hill, 139 S. Ct. 504, 507 (2019) (per curiam)

(reaffirming that “Atkins gave no comprehensive definition of ‘mental retardation’ for

17

Eighth Amendment purposes”). Instead, Atkins decided to “leave” such tasks “to the

State[s].” 536 U.S. at 317 (quoting Ford, 477 U.S. at 405, 416–17).

The Court later changed course in Hall and ruled that, “[i]f the States were to

have complete autonomy to define intellectual disability as they wished, the Court’s

decision in Atkins could become a nullity.” Hall, 572 U.S. at 720. Hall then held that

a State’s “rigid rule” that “foreclosed” “all further exploration of intellectual

disability” for any individual sentenced to death who “[wa]s deemed to have an IQ

above 70” was unconstitutional. Id. at 704. “[I]nformed by the medical community’s

diagnostic framework,” id. at 721, Hall recognized that, “when a defendant’s IQ test

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

must be able to present additional evidence of intellectual disability, including

testimony regarding adaptive deficits,” id. at 723.

Moore I further extended the legal definition of intellectual disability, holding

that a state court’s approach to someone’s “adaptive functioning” that “deviated from

prevailing clinical standards and from [an earlier set of] clinical standards the court

claimed to apply” was unconstitutional. 137 S. Ct. at 1050. Moore I explicitly decided

that “[t]he medical community’s current standards supply one constraint on States’

leeway” to “enforc[e] Atkins’ holding” and “‘to define intellectual disability.’” Id. at

1053 (quoting Hall, 572 U.S. at 720–21). Thus, when States define and apply the

criteria for an intellectual disability, they must follow medical standards that focus

“the adaptive-functioning inquiry on adaptive deficits”—not “adaptive strengths.” See

id. at 1050.

18

2. Hall’s and Moore I’s retroactive application to final criminal judgments turns

on a set of well-known questions: whether each rule is “new” and, if so, whether each

is “substantive.” Old rules, i.e., rules that were “dictated by precedent existing at the

time the defendant’s conviction became final,” apply regardless of the date of a

conviction’s finality. See Teague, 489 U.S. at 301 (plurality op.) (emphasis omitted).

So do new rules that are “substantive,” e.g., “rules prohibiting a certain category of

punishment for a class of defendants because of their status or offense.” Montgomery,

577 U.S. at 198, 201 (quoting Penry, 492 U.S. at 330); see also id. at 198 (including

“rules forbidding criminal punishment of certain primary conduct” as “substantive”

rules (quoting Penry, 492 U.S. at 330)). In contrast, “a new constitutional rule of

criminal procedure does not apply . . . to convictions that were final when the new

rule was announced.” See id.

3. The Kentucky Supreme Court has decided that Teague poses no bar to the

retroactive application of Hall and Moore I. Echoing Justice Alito, the Kentucky

Supreme Court first described Hall as having created a “sea change” in the law. See

White, 500 S.W.3d at 214; see also Hall, 572 U.S. at 736 (Alito, J., dissenting). It then

decided on collateral review that Hall “must be retroactively applied,” explaining that

“Hall[] does not deal with criminal procedure,” but rather “is ‘a substantive restriction

on the State’s power to take the life’ of individuals suffering from intellectual

disabilities.” White, 500 S.W.3d at 215 (quoting Atkins, 536 U.S. at 321); see also id.

at 214 (explaining that Teague “governed” the analysis). To the Kentucky Supreme

Court, a rule from this Court that “defines the manner in which the mental

19

deficiencies of offenders must be evaluated” for purposes of a categorical bar to

execution under the Eighth Amendment is substantive, not procedural. See id. at 215.

In a later case similarly arising on collateral review, the Kentucky Supreme Court

held that lower courts also “must follow” Moore I, which “predicate[s] a finding of

intellectual disability” on the application of “prevailing medical standards.” See

Woodall, 563 S.W.3d at 2, 6 (footnote omitted).

The Georgia Supreme Court recently lent support to this approach. In a direct

appeal, a plurality opinion of the court reasoned that both Hall and Moore I answered

“questions regarding the substantive definition of intellectual disability and the

requirement that states must . . . adhere to prevailing clinical definitions of

intellectual disability in fashioning such a definition.” Young, 860 S.E.2d at 771. And

the Georgia Supreme Court’s opinion distinguished a “procedural question”—a

petitioner’s burden of proof to demonstrate an intellectual disability—from

“substantive” questions about the meaning of intellectual disability this Court

answered in Moore I and Hall. See id. (plurality op.).

4. Another set of decisions, including the decision below, has agreed that both

Hall and Moore I established new rules, but has viewed them to be new rules of

procedure that are barred from applying retroactively on collateral review.

The Eleventh Circuit illustrated this approach when it stated that Moore I

established a new rule that “may have the effect of expanding the class of people

ineligible for the death penalty.” See Smith, 924 F.3d at 1338. In spite of this

observation, the Eleventh Circuit decided that Moore I “effectively narrowed the

20

range of permissible methods—the procedure—that states may use to determine

intellectual disability.” Id. The Eleventh Circuit therefore viewed Moore I to be

procedural in nature and to not apply retroactively under Teague. Id. at 1338–40.

That conclusion followed the circuit’s earlier decisions that Hall did not apply

retroactively either. See id. at 1339 n.5. The Eleventh Circuit acknowledged that this

Court’s retroactivity precedent “stands for the proposition that a right can be

substantive under Teague even if it only guarantees the chance to present evidence

in support of relief sought, not ultimate relief itself.” Id. (citing Montgomery, 577 U.S.

at 210). In spite of that acknowledgment, the Eleventh Circuit stayed its ultimate

course, deciding that Hall and Moore I announced new “procedural” rules, not

“substantive” ones. Id. at 1338–39.

The Eighth Circuit has followed this course, but included its own caveat. The

Eighth Circuit agreed with the Eleventh Circuit that “Hall ‘created a procedural

requirement.’” See Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 2014) (per curiam)

(quoting Henry, 757 F.3d at 1161). Later, the Eighth Circuit similarly concluded “that

Moore [I] discussed purely procedural issues.” See Williams, 858 F.3d at 474 (quoting

Davis v. Kelley, 854 F.3d 967, 970 (8th Cir. 2017) (per curiam)). In doing so, however,

the circuit noted that the Chief Justice’s “observation” that Moore I “had crafted ‘a

constitutional holding’ may presage an eventual ruling by the Court that Moore [I]

will be given [retroactive] effect.” Id. (quoting Moore I, 137 S. Ct. at 1054 (Roberts,

C.J., dissenting)). Yet the Eighth Circuit left the issue “for the [Supreme] Court to

21

decide in due course and not [the circuit]” when the issue had arisen on a request to

file a second or successive federal habeas petition under AEDPA. Id. 5

Two state supreme courts have adopted this approach, including the Nebraska

Supreme Court in the decision below. The decision below held “that neither Hall nor

Moore I announced a new substantive rule of constitutional law,” reasoning that these

decisions “refined the appropriate standards states should apply to determine

whether an offender is intellectually disabled.” App. 29a. It also pointed to the Florida

Supreme Court and a court of appeals in Ohio as other state courts that have treated

5 Other circuits have also avoided squarely answering the question in the context

of AEDPA’s restrictions on “second or successive” petitions. See 28 U.S.C. §§ 2244(b),

2255(h). The Sixth Circuit “assume[d], without deciding, that Hall and Moore I

announce new rules of constitutional law,” and cited lower-court decisions concluding

that both “merely created new procedural requirements” that do not apply

retroactively. See In re Payne, 722 F. App’x 534, 538 (6th Cir. 2018). “More

importantly,” though, the circuit was applying AEDPA’s limitations on “second or

successive” habeas applications, § 2244(b)(2), and simply concluded that this Court

has never “dictate[d] that the decisions . . . are to be applied retroactively.” See Payne,

722 F. App’x at 538–39. The Fourth Circuit denied a request to file a “second or

successive” petition for the same reason. See In re Richardson, 802 F. App’x 750, 755–

56 (4th Cir. 2020) (per curiam). So far, the Fifth Circuit has avoided its own definitive

ruling on the question. See In re Milam, 838 F. App’x 796, 798 (5th Cir. 2020) (per

curiam) (noting that it has “not definitively rejected or supported the contention that

Moore [I] is a new retroactive rule of constitutional law in the context of successive

habeas petitions sought under 28 U.S.C. § 2244”). And the Seventh Circuit has

characterized Hall and Moore I as having “refined the application of Atkins” without

having announced “‘new rule[s] of constitutional law, made retroactive to cases on

collateral review by [this] Court,’ that would permit a second or successive motion

under § 2255(h)(2).” See Fulks v. Watson, 4 F.4th 586, 592 (7th Cir. 2021). But the

Seventh Circuit did so only after a petitioner had “concede[d] that his Atkins claim

does not satisfy either of [§ 2255(h)’s] exceptions,” when denying that petitioner’s

separate effort to invoke § 2255(e)’s “savings clause.” Id. at 589–92.

22

Hall and Moore I as having “adopted new procedures.” See App. 28a; see also Phillips,

299 So. 3d at 1022; Jackson, 157 N.E.3d at 253. 6

5. The Tenth Circuit has taken a third approach to the question, deciding that

neither Moore I nor Hall created a “new” rule at all and applying both on collateral

review. See Smith, 935 F.3d at 1083–85. The Tenth Circuit reached this result by

explaining

that,

in

Atkins,

this

Court

“declared

‘a

rule

of

general

application . . . designed for the specific purpose of evaluating a myriad of factual

contexts.’” See id. at 1084 (quoting Chaidez, 568 U.S. at 348). Hall and Moore I merely

applied that “general standard to the kind of factual circumstances it was meant to

address,” Smith, 935 F.3d at 1084 (quoting Chaidez, 568 U.S. at 348), much as

extending “Strickland’s guarantee of effective counsel to the plea-bargaining context

merely applied Strickland rather than created a new rule,” id. at 1085 (quoting In re

Graham, 714 F.3d 1181, 1183 (10th Cir. 2013) (per curiam)). To the Tenth Circuit

then, Moore I and Hall were “dictated by” Atkins. See Smith, 935 F.3d at 1084–85

(quoting Chaidez, 568 U.S. at 348). 7 Teague therefore poses no bar to petitioners in

6 The Tennessee Supreme Court has declined to apply Hall retroactively too, but

its reasoning focused on the fact that neither this Court nor a federal court of appeals

had decided that “Hall must be applied retroactively to cases on collateral review.”

See Payne v. State, 493 S.W.3d 478, 490–91 (Tenn. 2016).

7 The Alabama Court of Criminal Appeals similarly “view[ed] Hall, not as a new

rule of constitutional law, but simply as an application of existing law, i.e., Atkins, to

a specific set of facts,” though it did not cite Teague alongside that conclusion. See

Reeves v. State, 226 So. 3d 711, 727 n.7 (Ala. Crim. App. 2016).

23

that circuit who seek to rely on both Hall and Moore I in collateral proceedings. See

Smith, 935 F.3d at 1084–85.

II.

The decision below misapplied this Court’s retroactivity

jurisprudence and calls out for this Court’s review to resolve the

split on this critical question.

This Court’s longstanding precedent on retroactivity demonstrates that the

decision below—along with the others that have declined to view Hall and Moore I as

having established new substantive rules—is wrong. And this case provides an

excellent vehicle to answer a question that will continue to arise and have life-ordeath consequences every time.

A. The decision below cannot be squared with this Court’s retroactivity

precedents.

The decision below started out on the right track by concluding that Hall and

Moore I created new rules and that the Nebraska Supreme Court must apply any new

“substantive” rule on collateral review. But the decision below went off course by

misapplying this Court’s precedent governing the difference between procedural and

substantive rules. Contrary to the Nebraska Supreme Court’s decision, Hall and

Moore I did “expand the class of individuals” whom the Eighth Amendment defines

as having intellectual disabilities and announced new substantive rules, not merely

procedural ones. But see App. 28a.

1. The Nebraska Supreme Court properly agreed with the courts that treat

Hall and Moore I as having established “new” rules for petitioners whose convictions

had become final on a date before this Court announced each decision. Resolving this

24

issue required a “survey” of “the legal landscape as of that date[] to determine

whether the rule later announced in [each case] was dictated by then-existing

precedent—whether, that is, the unlawfulness of [a petitioner]’s conviction was

apparent to all reasonable jurists.” See Lambrix v. Singletary, 520 U.S. 518, 527–28

(1997). As explained by one decision the Nebraska Supreme Court followed,

“[n]othing in Atkins dictated or compelled [this] Court in Hall to limit the states’

previously recognized power to set an IQ score of 70 as a hard cutoff.” See Henry, 757

F.3d at 1159; see also App. 28a. Nor did Atkins or Hall require that States treat “[t]he

medical community’s current standards” for the adaptive-deficits prong—like not

using adaptive strengths to offset deficits in a way no clinician would condone—to be

a “constraint on States’ leeway in this area,” as Moore I later mandated. See Moore I,

137 S. Ct. at 1050–53; see also Smith, 924 F.3d at 1338 (concluding that, because

Moore I “defined the appropriate manner for determining who belongs to that class

of defendants ineligible for the death penalty,” it “announced a new rule”).

The dissenting Justices in each case helped to prove the point. Hall’s dissenters

considered the decision to be a “remarkable change in what [this Court] took to be a

universal understanding of intellectual disability just 12 years [earlier].” Hall, 572

U.S. at 736 (Alito, J., dissenting). Moore I’s dissenters saw a “depart[ure] from this

Court’s precedents, followed in Atkins and Hall, establishing that the determination

of what is cruel and unusual rests on a judicial judgment about societal standards of

decency, not a medical assessment of clinical practice.” Moore I, 137 S. Ct. at 1057–

68 (Roberts, C.J., dissenting). Contrary to the Tenth Circuit’s approach then, Hall’s

25

and Moore I’s constitutional rules were not “already ‘apparent to all reasonable

jurists’” before this Court decided them. See Edwards v. Vannoy, 141 S. Ct. 1547,

1555 (2021) (quoting Lambrix, 520 U.S. at 528); see also Kilgore v. Sec’y, Fla. Dep’t of

Corr., 805 F.3d 1301, 1311 (11th Cir. 2015) (applying this Court’s observation “that

it may rely on a dissenting opinion to determine whether the holding in a case was

dictated by existing precedent” (citing Beard v. Banks, 542 U.S. 406, 416 (2004)). 8

2. The Nebraska Supreme Court also correctly recognized state courts’

obligation to apply any constitutional rule on collateral review that is “substantive,”

e.g., one that “‘prohibit[s] a certain category of punishment for a class of defendants

because of their status.’” See App. 27a (quoting Montgomery, 577 U.S. at 201). There

is no doubt that “when a new substantive rule of constitutional law controls the

outcome of a case, the Constitution requires state collateral review courts to give

retroactive effect to that rule.” Montgomery, 577 U.S. at 200.

3. The critical question then is whether the new rules Hall and Moore I

announced are “substantive” ones that must apply retroactively. They are.

Both rules “prohibit[] ‘a certain category of punishment for a class of

defendants because of their status.” Id. at 206 (quoting Penry, 492 U.S. at 330). Atkins

prohibited the execution of a “class of defendants” whose “status” as individuals with

8 The “newness” of each rule vis-à-vis Lotter’s final judgment is beyond doubt in

this case, because that judgment became final years before this Court had decided

Atkins, i.e., at a time when federal constitutional law permitted the execution of

individuals with intellectual disabilities. See Penry, 492 U.S. at 340.

26

intellectual disabilities was defined by the States. See Bies, 556 U.S. at 831

(acknowledging that Atkins “did not provide definitive . . . substantive guides” for

defining intellectual disability). At the time, States could deem individuals who had

received an IQ score over 70 and who had exhibited adaptive strengths in some

domains that “offset[]” deficits in other domains to have no intellectual disabilities as

a matter of Eighth Amendment law. Compare Moore I, 137 S. Ct. at 1049–50 & n.8

(rejecting such a way of defining intellectual disability), with, e.g., Atkins, 536 U.S. at

316–17 (referring to “a known IQ less than 70” when describing States’ practices

before Atkins and defining intellectual disability for purposes of the Eighth

Amendment only in terms of a meaning for which “there is a national consensus”

(footnotes omitted)). Such a definition of intellectual disability was controlling under

the Eighth Amendment, even if a physician diagnosed an individual as having an

intellectual disability based on a medically necessary consideration of a range of IQ

scores and a set of well-known adaptive deficits.

Only years later did Hall and Moore I redefine the class or the status of being

a person with an intellectual disability under the Eighth Amendment based on “[t]he

medical community’s current standards.” See Moore I, 137 S. Ct. at 1053. After

Moore I, individuals who have IQ scores over 70 and exhibited some adaptive

strengths, but whose status or class would still be “individuals with intellectual

disabilities” under “current medical standards,” now have that very same status or

class under the Eighth Amendment. See id. at 1053. To put it differently, both Hall

and Moore I expanded the boundaries for the “status” of intellectual disability or the

27

“class of defendants” who have it. See Montgomery, 577 U.S. at 206 (quoting Penry,

492 U.S. at 330); see also Goodwin, 814 F.3d at 905 (Murphy, J., concurring in part

and dissenting in part) (“Under Atkins, defendants with IQ scores above 70 in Florida

were not protected from capital punishment because they were not intellectually

disabled. Now, under Hall, defendants with IQ scores above 70 in Florida may be

considered intellectually disabled under Atkins.”); Henry, 757 F.3d at 1167 (Martin,

J., dissenting) (“Hall is substantive because it grew the class of people who are not

eligible for the death penalty.”). Neither rule was merely “designed to enhance the

accuracy of a conviction or sentence by regulating ‘the manner of determining the

defendant’s culpability.’” See Montgomery, 577 U.S. at 201 (quoting Summerlin, 542

U.S. at 353; and citing Teague, 489 U.S. at 313 (plurality op.)). Both rules redefined

what it means to have an “intellectual disability” as a matter of law. Just as a decision

from this Court “that modifies the elements of an offense is normally substantive,” so

too is a decision that “modifies the elements” of a categorical restriction on the

punishment of death. See Summerlin, 542 U.S. at 354.

For example, after Moore I, to say that someone does not have an intellectual

disability simply because he exhibited some strengths in prison would be invalid as

a matter of both medical guidelines and Eighth Amendment law. See Moore I, 137 S.

Ct. at 1050. If a court upheld a death sentence on that faulty basis and in spite of

overwhelming evidence of “adaptive deficits” alongside evidence satisfying the other

clinical criteria for an intellectual disability, id., then no one could conclude that the

death sentence still is “accurate” in any sense of that word. See Montgomery, 577 U.S.

28

at 201–02. To execute that individual would not simply reflect adherence to a flawed

“sentencing procedure[]”; it would reflect a flawed understanding of the very status

that renders the person one with an intellectual disability under the Eighth

Amendment and, in turn, ineligible for the punishment of death. Cf. id. at 202

(explaining that “the use of flawless sentencing procedures” could not “legitimate a

punishment where the Constitution immunizes the defendant from the sentence

imposed”); id. at 211–12 (distinguishing decisions that “altered the processes in which

States must engage before sentencing a person to death,” which “may have had some

effect on the likelihood that capital punishment would be imposed,” but did not

“render[] a certain penalty unconstitutionally excessive for a category of offenders”

(emphasis added)). The fact that Hall and Moore I changed the boundaries of the

status or class of defendants with intellectual disabilities makes each one “a

substantive guarantee,” not “a rule that ‘regulate[s] only the manner of determining

the defendant’s culpability.’” See id. at 210 (quoting Summerlin, 542 U.S. at 353).

The views of all nine Justices in Jones v. Mississippi confirm that Moore I and

Hall created new “substantive” rules. The opinion for the Court viewed Miller v.

Alabama, 567 U.S. 460 (2012), as having mandated “a discretionary sentencing

procedure” and did not view “permanent incorrigibility” as “an eligibility criterion.”

Jones, 141 S. Ct. at 1314–17. But the majority did not question that a rule “permitting

life-without-parole sentences only for ‘those whose crimes reflect permanent

incorrigibility,’ rather than ‘transient immaturity’” would be substantive. See id. at

1317 (quoting Montgomery, 577 U.S. at 209). And the opinion called for “the Court’s

29

retroactivity precedents that both pre-date and post-date Montgomery” to “guide the

determination of whether rules other than Miller are substantive.” Id. at 1317 n.4.

Based on those precedents, a rule that prohibits States from executing an individual

who scored a 72 on one IQ test and has various adaptive strengths but who has an

intellectual disability under “[t]he medical community’s current standards,” Moore I,

137 S. Ct. at 1053, is a rule that “alters . . . the class of persons that the law punishes”

with a sentence of death. See Jones, 141 S. Ct. at 1317 n.4 (quoting Welch, 578 U.S.

at 129).

Hall and Moore I are “substantive” under Justice Thomas’s and the dissenting

Justices’ views too. Justice Thomas viewed Miller as “procedural” and Montgomery

as having “reimagined” Miller in a way that “was substantive under [the Court’s]

precedents.” Jones, 141 S. Ct. at 1325 (Thomas, J., concurring in the judgment). To

Justice Thomas though, Montgomery’s definition of a class of individuals

“categorically exempt” from a given punishment, minus those “whose crimes reflect

permanent incorrigibility,” was “a substantive rule.” Id. (Thomas, J., concurring in

the judgment). By that same logic, Hall’s and Moore I’s redefinitions of a class that is

“categorically exempt” from the death penalty were “substantive rule[s]” too. Cf. id.

(Thomas, J., concurring in the judgment). Likewise for the dissenting Justices who

took issue with Justice Thomas’s view of Miller: These Justices reasoned that Miller

itself “rendered life without parole an unconstitutional penalty for a class of

defendants because of their status[,] that is, juvenile offenders whose crimes reflect

the transient immaturity of youth.” Id. at 1334 n.3 (Sotomayor, J., dissenting)

30

(quoting Montgomery, 577 U.S. at 208). Hall and Moore I warrant retroactive

application under every line of reasoning this Court employed in Jones.

Imagine, for instance, if this Court were to redefine the “juvenile offender”

protected by the Eighth Amendment’s bar on capital punishment to include not only

one who was “younger than [eighteen] when he committed a capital crime,” but also

one who was younger than twenty-one. See Roper, 543 U.S. at 555–56, 568–74; see

also Montgomery, 577 U.S. at 209 (taking it as a given that Roper adopted a new

“substantive” rule). Would this Court call a redrawing of the line between adulthood

and adolescence—an expansion of the class of protected defendants—a mere change

in procedure, and then deny relief to a nineteen-year-old scheduled to be executed? If

this Court would answer “No” to that question, it should not hesitate to grant

certiorari and answer the question presented here. An individual who relies upon

Hall’s and Moore I’s new, medically grounded definitions of intellectual disability

under the Eighth Amendment is relying upon a substantive change in the law.

B. The Court should use this case to resolve the critical and recurring

question of Hall’s and Moore I’s retroactivity.

The question presented has arisen numerous times. Each time, it has life-ordeath consequences. This case, in which the Nebraska Supreme Court squarely

addressed the question outside the strictures of AEDPA, presents an ideal

opportunity for this Court to answer it once and for all.

1. This Court has made clear that “States may not execute anyone in ‘the entire

category of [intellectually disabled] offenders,’” Moore I, 137 S. Ct. at 1051 (quoting

31

Roper, 543 U.S. at 563–64). Yet federal courts of appeals and state courts of last resort

remain divided on both whether this Court’s own expansion of the bounds of that

“category” is “new” and whether it is a “substantive” or “procedural” development in

the law. Without an answer from this Court, lower courts are likely to continue to

seek this Court’s guidance and to apply Hall’s and Moore I’s holdings inconsistently

from one jurisdiction to the next. These courts are left to continue guessing, for

instance, whether the Chief Justice’s dissent in Moore I “may presage an eventual

ruling” that Moore I applies retroactively. See Williams, 858 F.3d at 474.

2. This case provides an ideal vehicle to finally answer the question. The

Nebraska Supreme Court answered it directly. The answer was dispositive of Lotter’s

appeal and reaches this Court unadorned by any restrictions AEDPA might place on

the Court’s review. A decision from this Court that Moore I is a new rule that applies

retroactively would also mean that Lotter’s “claim was timely” under state law. See

App. 27a. And the Nebraska Supreme Court already recognized its obligation to

“appl[y] retroactively to cases on collateral review” “a new substantive rule of

constitutional law.” App. 27a.

All Lotter sought was an opportunity to prove his intellectual disability under

current clinical guidelines and this Court’s precedent demanding fidelity to those

guidelines. See App. 144a–58a. Yet, even before the decision below rejected Lotter’s

claim without an evidentiary hearing, the Nebraska Supreme Court’s pre–Moore I

precedent “overemphasized [a petitioner]’s perceived adaptive strengths” in a way

this Court has repudiated. Compare Moore I, 137 S. Ct. at 1050 (rejecting one court’s

32

focus on adaptive strengths and “improved behavior in prison” because it “deviated

from . . . clinical standards”), with Vela, 777 N.W.2d at 307 (applying the same type

of focus by emphasizing that a petitioner had a job, “was well-liked, responsive, hardworking, friendly, and talkative,” and “selected books from the prison book cart,”

among other adaptive strengths). Only after Moore I and its announcement that

petitioners like Lotter must be assessed for an intellectual disability based on current

clinical guidelines did Lotter’s Eighth Amendment claim become cognizable and

timely in a subsequent state post-conviction proceeding. At that time, he underwent

an evaluation, was diagnosed with an intellectual disability (and an IQ of 67), and

presented the claim in a motion for state post-conviction relief within a year of

Moore I’s announcement. See App. 108a–10a, 149a–58a, 163a–64a. If Lotter had done

so in a jurisdiction like Kentucky, he would have had a meaningful opportunity to

prove his disability. See Woodall, 563 S.W.3d at 2, 6. Unless the Nebraska Supreme

Court’s erroneous decision is corrected, he may be denied that opportunity by virtue

of geography alone. This disparity—and its extraordinary consequences for Lotter

and others who are similarly situated—deserves resolution from this Court. Cf.

Teague, 489 U.S. at 305 (plurality op.) (criticizing this Court’s prior retroactivity

standard’s “unfortunate disparity in the treatment of similarly situated defendants

on collateral review”).

33

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

Shawn Nolan*

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 545 West-The Curtis

601 Walnut Street

Philadelphia, PA 19106

(215) 928-0520

Shawn_Nolan@fd.org

*Counsel of Record

Member of the Bar of the Supreme Court

Counsel for Petitioner, John L. Lotter

Dated: November 28, 2022