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04-3187 - Lotter v. Frakes (PURSUANT TO ORDER #21, SEND A COPY OF ALL UNSEALED FILINGS TO PETITIONER; PURSUANT TO ORDER #72, DO NOT FILE ANY PRO SE DOCUMENTS SUBMITTED BY PETITIONER)


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04-3187 - Lotter v. Frakes (PURSUANT TO ORDER #21, SEND A COPY OF ALL UNSEALED FILINGS TO PETITIONER; PURSUANT TO ORDER #72, DO NOT FILE ANY PRO SE DOCUMENTS SUBMITTED BY PETITIONER)
April 19, 2005
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ORDER denying 28 Motion for Leave to Allow Petitioner to Attend Status Conference. The court finds no purpose requiring petitioner's attendance, and no right to attend. Signed by Magistrate Judge David L. Piester on 4/19/2005. (JAR)
April 21, 2005
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05. (GJG, )ORDER - Respondent's motion to continue the status conference, filing 30 is granted. The status conference is continued to June 27, 2005 at 2:00 p.m., in the chambers of the undersigned. Signed by Magistrate Judge David L. Piester on 4/21/20
April 29, 2005
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MEMORANDUM AND ORDER - Petitioner's motion for stay of proceedings, filing 25 is granted in part. No further actions shall be taken in this case regarding any motions, briefs, hearings, conferences or otherwise until further order of the court. The status conference previously scheduled to be held on June 27, 2005 is cancelled. It will be re-scheduled once the case is reactivated in accordance with this order. The clerk shall terminate this case for administrative purposes only. It shall be restored to the active docket in accordance with the provisions of this order. Within thirty days following the effective date of the final judgment issued in the petitioner's pending postconviction case in the District Court of Richardson County, Nebraska, petitioner's counsel shall notify the clerk of this court and the office of the undersigned that the judgment has become final. At that time the clerk shall restore this case to the active docket. Counsel for both parties shall then confer regarding a possible progression schedule for this case, and shallnotify the office of the undersigned of dates when they can be available for a conference with the undersigned to address scheduling of this case to disposition. Such a conference will be scheduled as soon as practicable. Upon consideration of the respondent's motion to substitute party, that motion, filing 31 is granted, and all further pleadings herein shall name Robert Houston as the respondent. Robert Houston rep by J. Kirk Brown added. Fred Britten terminated Signed by Magistrate Judge David L. Piester on 4/29/2005. (GJG, )
August 10, 2005
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ORDER - A hearing on the matter of representation of counsel for petitioner is set for August 24, 2005 at 11:00 a.m. in Courtroom 2, United States Courthouse and Federal Building, 100 Centennial Mall North, Lincoln, Nebraska. The clerk is directed to prepare the necessary documents to secure the presence of petitioner at the hearing. In Court Hearing set for 8/24/2005 11:00 AM in Courtroom 2 (Lincoln) before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 8/10/2005. (Copy mailed to defendant.)(JAR)
March 19, 2008
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MEMORANDUM AND ORDER regarding a telephone conference call was held with counsel on February 26, 2008. IT THEREFORE HEREBY IS ORDERED, The stay order previously entered by this court continues in effect. Counsel shall inform the undersigned within thirty days following the entry of a final order in the state proceedings. Ordered by Magistrate Judge David L. Piester. (Copy mailed to Petitioner) (JAB) Modified on 3/20/2008 to reflect copy mailed to petitioner pursuant to Order21. (JAB)
April 26, 2010
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MEMORANDUM AND ORDER - Telephone StatusConference set for 5/6/2010 at 02:00 PM before Magistrate Judge Cheryl R. Zwart. Counsel for plaintiff will place the conference call. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(JAE)
May 6, 2010
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MEMORANDUM AND ORDER, 1) This case is no longer stayed. The clerk shall reopen the case. 2) The petitioners amended habeas petition shall be filed on or before June 7, 2010. 3) The defendants response to the amended habeas petition shall be filed on or before July 7, 2010. 4) A status conference will be held in chambers before the undersigned magistrate judge on July 30, 2010 at 1:30 p.m. to discuss further progression of this case to resolution. Case reopened., Lifting Stay, ( Status Conference set for 7/30/2010 at 01:30 PM before Magistrate Judge Cheryl R. Zwart.) Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to petitioner)(PCV, )
June 17, 2010
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ORDER that elbow clerk, Laura R. Hegge, has been assigned towork on this matter. IT IS ORDERED that if any party desires that this case be reassigned to another elbow clerk in my chambers, the party shall file an objection (which the Clerk will treat as a motion) and supporting brief within ten days of this order. Any party opposing such an objection may respond by brief within ten days of the submission of the objection. The Clerk shall provide a copy of this Memorandum and Order to Judge Zwart. Ordered by Judge Richard G. Kopf. (Copy mailed to petitioner)(ADB, )
July 1, 2010
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ORDER that the Cline-Williams firm represents Petitioner together with Mr. Brennan. I have done additional research regarding the fact that Laura Hegge (one of my law clerks) and Bren Chambers( Judge Zwarts law clerk) once worked for the Cline-Williams firm as associates. IT IS ORDERED that Ms. Hegge and Mr. Chambers shall do no work on this case and they shall be screened from discussions regarding this matter. Ordered by Judge Richard G. Kopf. (ADB, )
July 2, 2010
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MEMORANDUM AND ORDER regarding: State Court Records60 filed by Robert Houston. The respondents have filed a designation of state court records in support of answer that refer to trial exhibits offered in Richardson County District Court Docket Nos. 2682, 2683, 2684, and 2685. (See Filing 60) The designation attached a CD containing various PDF copies of the documents. Obviously, CM/ECF cannot upload the physical disc. Therefore, IT IS ORDERED that: (1) The Clerk of Court shall access the CD attached to Filing 60 and upload the PDF copies contained therein. (2) The CD and the documents uploaded from the CD shall be restricted and made available only to counsel of record. Ordered by Judge Richard G. Kopf. (Copy mailed to petitioner)(JAB)
July 2, 2010
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MEMORANDUM AND ORDER - On initial review, the nineteen claims raised by Petitioner in the Corrected Second Amended Petition for Writ of Habeas Corpus (filing 47 at CM/ECF pp. 32-46) are potentially cognizable for purposes of federal habeas corpus relief. The parties are cautioned that this determination is preliminary only. Respondents answer and brief shall address each of these claims. No amendments or supplements to the Corrected Second Amended Petition forWrit of Habeas Corpus (filing 47) shall be filed without first securing leave of the Court. No summary judgment motion will be filed. The respondent shall follow the procedures set forth in the order. By August 8, 2010, Respondent shall file all state court records which are relevant to the cognizable claims. By September 8, 2010, Respondent shall file an answer and a separate brief. By November 8, 2010, Petitioner shall file and serve a brief in response. By December 8, 2010, Respondent shall file and serve a reply brief. The Clerk of Court is directed to set a case management deadline in this case using the following text: December 9, 2010, check that required briefs have been submitted. Determine whether case ready for decision to the extent allowed by briefs and record. Issue memorandum and order deciding claims that are ripe for decision without discovery or an evidentiary hearing. ***Set/Reset All Deadlines: ( Case Management Deadline set for 12/9/2010, checkthat required briefs have been submitted. Determine whether case ready for decision to the extent allowed by briefs and record. Issue memorandum and order deciding claims that are ripe for decision without discovery or an evidentiary hearing. No discovery shall be undertaken without leave of the court. This order supersedes the deadlines set by Judge Zwart in filing 44 and the telephone conference previously scheduled by Judge Zwart is cancelled. State Court Record Deadline set for 8/8/2010). Ordered by Judge Richard G. Kopf. (Copy mailed)(MKR)
November 15, 2010
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MEMORANDUM AND ORDER denying without prejudice Petitioner's Motion to Compel 70. The clerk of the court shall not file any further pro se documents submitted by Petitioner in this case, but instead shall forward such documents to one of Petitioner's attorneys of record. Pursuant to the court's previous order 21, the clerk of the court shall send a copy of this memorandum and order directly to Petitioner. Ordered by Judge Richard G. Kopf. (Copy mailed as directed) (JSF)
December 10, 2010
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ORDER granting 74 the Petitioner's Motion for Leave to file sur-reply brief. Petitioner shall have until December 15, 2010, to file sur-reply brief limited to the 6 issues identified in the motion. Ordered by Judge Richard G. Kopf. (Copy mailed to petitioner)(MKR)
January 12, 2011
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MEMORANDUM AND ORDER - On or before the close of business on Friday, February 25, 2011, the parties shall jointly file an agreed Joint Index of State Records. On or before the close of business on Friday, February 25, 2011, the Petitioner shall file a Petitioner's Statement Regarding Location in the Record of Presentment and Resolution of Federal Claims to and by State Courts. ( Case Management Deadline set for 2/25/2011 - Joint Index of State Records due. Petitioner's Statement due.) Ordered by Judge Richard G. Kopf. (Copy mailed to petitioner)(JAE)
March 18, 2011
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MEMORANDUM AND ORDER - Shortly after this case was reopened, I gave notice 48 that Laura Hegge, one of my elbow law clerks, had previously worked for the Cline Williams law firm as an associate and that I had assigned Ms. Hegge to work on this case. She had represented to me that, during her employment with Cline Williams, she performed no work on this matter and did not access office files relating to it. I gave the parties an opportunity to object to my assignment of Ms. Hegge and no objections were submitted. This will supplement that notice. For reasons stated in this Order, I reassigned this matter to another elbow clerk. As a result, Ms Hegge never did anything of substance on this case. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(KBJ)
March 18, 2011
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e United States District Courts, the court denies the issuance of a certificate of appealability as to all claims. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(KBJ)MEMORANDUM AND ORDER - The Corrected Second Amended Petition for Writ of Habeas Corpus 47 is denied and this case is dismissed with prejudice. A separate judgment will be issued. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in th
April 25, 2011
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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)
May 25, 2011
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ORDER - Defendant's appeal 88 appears to be taken in good faith; Defendant's motion to proceed in forma pauperis on appeal 89 is granted; and The clerk is directed to process the appeal and to provide a copy of this order to the United States Court of Appeals for the Eighth Circuit. Ordered by Judge Richard G. Kopf. (Copies mailed as directed)(KBJ)
May 15, 2012
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MEMORANDUM AND ORDER - The State Court Records filed as an attachment to Filing 60 (a CD containing various PDF documents), be returned to J. Kirk Brown, counsel for Respondent, for appropriate disposition. The State Court Records may be picked up in Lincoln, Nebraska. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA)
December 18, 2013
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ORDER- No later than Monday, January 6, 2014, Rebecca Woodman shall cause affidavits to be filed in support of the Motion for Appointment of Counsel For Representation in Ancillary Proceedings, Including Clemency (filing no. 101). Such affidavits must be executed by a person or persons with personal knowledge setting forth facts establishing (a) that John L. Lotter has consented to the appointment of Rebecca Woodman and Jessica Sutton as his counsel in lieu of Andre Robert Barry and Sean Joseph Brennan and (b) that Andre Robert Barry and Sean Joseph Brennan are no longer available to represent Mr. Lotter. No later than Monday, January 6, 2014, Rebecca Woodman shall cause a brief to be filed setting forth specifically the ancillary proceedings that Mr. Lotter intends to pursue and why such proceedings are covered by 18 U.S.C. § 3599(e). In addition to Ms. Woodman and Ms. Sutton, the Clerk shall provide notice of this Order to Mr. Barry, Mr. Brennan and Mr. Brown. The Clerk shall also mail a copy of this Order to Mr. Lotter. My chambers shall bring this matter to my attention on January 7, 2014. Ordered by Senior Judge Richard G. Kopf. (Notice and copies mailed as directed) (MKR)
January 13, 2014
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MEMORANDUM AND ORDER - No later than the close of business on January 21, 2014, Lotter and the lawyers seeking appointment shall supplement the record in this court by filing an evidence index including affidavits and copies of documents demonstrating the status of the motion filed with the Eighth Circuit regarding the appointment of counsel. The Clerk of Court shall provide a copy of this order to counsel of record and Mr. Lotter. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (AOA)
January 22, 2014
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ORDER - The motion (filing no. 101) to appoint Rebecca Woodman and Jessica Sutton as counsel in clemency and ancillary proceedings pursuant to 18 U.S.C. § 3599(e) is granted. The objection (filing no. 102) is denied. Andre Barry and Sean Brennan are formally relieved of any furtherobligation to Mr. Lotter. The appointment will terminate automatically one year from this date unless extended by the undersigned. Any extension must be sought by filing a motion for extension on or after January 1, 2015, but before January 22, 2015. Said motion must recite good cause for the extension, recount the actions taken by counsel to date, and state the actions proposed to be taken by counsel in the future. The Federal Public Defender for the District of Nebraska shall provide counsel with the appropriate vouchers. Every three months measured from the date of this order, counsel shall submit completed vouchers to the undersigned. The Federal Public Defender for the District of Nebraska shall promptly advise the undersigned if any further or other orders or provisions are required. The Clerk shall mail a copy of this Order to the Federal Public Defenderfor the District of Nebraska and Mr. Lotter and provide notice viaCM/ECF to newly appointed counsel, Mr. Barry, Mr. Brennan and Mr. Brown. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed)(AOA)
October 16, 2014
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ORDER - Petitioner's motion (filing 113) to permit attorney Jessica E. Sutton to withdraw as counsel, and to substitute attorney Carol R. Camp in her place, is granted. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
January 26, 2015
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ORDER granting 117 Motion to Extend counsel's appointment. Rebecca E. Woodman and Carol R. Camp will continue to serve as appointed counsel for Mr. Lotter until March 30, 2015. On or before such date, Petitioner, by and through his appointed counsel, shall make an ex parte showing as to why the appointment should continue for a longer period of time. Ordered by Senior Judge Richard G. Kopf. (KMG)
April 1, 2015
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ORDER - I am inclined to grant Petitioner's pending ex parte motion (filing 120), but I first require that counsel submit to me a draft order granting the motion. After submission of the order, and assuming I agree with it, I will forward the order to Chief Judge Riley for his review and approval. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
May 28, 2015
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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 Fridaf oral argument. Ordered by Senior Judge Richard G. Kopf. (GJG)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 counsel 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 o
September 9, 2015
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ORDER that the Petitioners motion to attend oral argument and request for transport order (filing 130) is denied. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed)(LAC)
September 15, 2015
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ORDER that Ms. Woodman and Ms. Camp are authorized to proceed as counsel in this matter and my previous order restricting their activities is lifted. This order does not authorize the expenditure of fees and expenses for investigative and expert services under the provisions of 18 U.S.C. § 3599(g)(2), as that matter remains pending before Chief Judge Riley. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed)(LAC)
September 21, 2015
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ORDER that according to counsel for the Respondent, the proper Respondent in this is case not Brian Gage, Warden, Tecumseh State Correctional Institution, but rather Scott Frakes, Director, Nebraska Department of Correctional Institutions. There was no formal motion to substitute Brian Gage, Warden, Tecumseh State Correctional Institution. Therefore, my direction to the Clerk of Court on September 15, 2015, was in error and the non-public remark should be stricken. The proper style of this case is John L. Lotter v. Scott Frakes, Director, Nebraska Department of Correctional Institutions, Case No. 4:04CV3187-RGK. Counsel shall act accordingly. Ordered by Senior Judge Richard G. Kopf. (LAC)
April 26, 2016
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ORDER that on or before October 3, 2016, counsel for Petitioner shall file ex parte and under seal a report on the status of investigative and other activities conducted on behalf of Petitioner since October 1, 2015. On or before October 3, 2016, counsel for Petitioner shall file ex parte and under seal a report on the status of investigative and other activities conducted on behalf of Petitioner since October 1, 2015. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
October 5, 2016
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MEMORANDUM AND ORDER - that the appointment of counsel will automatically terminate on Monday, June 5, 2017, unless prior to that date separate clemency or separate ancillary proceedings have been commenced by counsel and proof thereof has been provided herein. The Clerk shall provide Chief Judge Riley with a copy of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and copy to Chief Judge Riley) (KLF)
October 5, 2016
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ORDER - that Lotter's counsel may submit monthly vouchers on a schedule to be set by Mr. Stickman. My chambers shall provide Mr. Stickman with a copy of this Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
December 13, 2016
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ORDER that the Petitioner's motion for withdrawal and substitution of counsel (filing no. 146) is granted. The granting of this motion does not alter the deadline set by this court. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to petitioner)(LAC)
January 13, 2017
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MEMORANDUM AND ORDER - The respondent shall submit a brief regarding petitioner's motion to stay habeas proceedings pending state court remedies on or before close of business on February 13, 2017. Unless otherwise ordered, the petition for writ of habeas corpus will not be progressed until I have ruled upon petitioner's motion for a stay. Accordingly, respondent need not respond to the petition for writ of habeas corpus at this time. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to petitioner) (KLF)
February 14, 2017
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ORDER that Respondent's motion for extension of time (filing no. 155) is granted, as follows: Respondent shall have until February 21, 2017, to file a brief in response to Petitioner's motion to stay (filing no. 150). Ordered by Senior Judge Richard G. Kopf. (LAC)
February 24, 2017
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MEMORANDUM AND ORDER that the stay motion (filing no. 150) is denied with prejudice. The petition for writ of habeas corpus (filing no. 149) is denied with prejudice. No certificate of appealability is or will be issued. A separate judgment will be filed. Nothing set forth herein alters the June 5, 2017, deadline imposed upon Lotter and his counsel. Ordered by Senior Judge Richard G. Kopf. (LAC)
March 27, 2017
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MEMORANDUM AND ORDER that the Petitioner's Motion to Alter or Amend Judgment (filing no. 162) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
April 27, 2017
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ORDER that the notice of appeal (filing no. 165), construed also as a request to proceed in forma pauperis, is granted. The Clerk shall process the appeal. No certificate of appealability has been or will be issued. Ordered by Senior Judge Richard G. Kopf. (LAC)
May 25, 2017
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n (filing no. 172). Ordered by Senior Judge Richard G. Kopf. (LAC)ORDER that Rebecca E. Woodman, counsel for Petitioner, shall contact James D. Smith, counsel for Respondents, concerning the Petitioner's ex parte supplemental budget request and request for additional time (filing no. 172). No later than May 31, 2017, both Ms. Woodman and Mr. Smith shall jointly contact the undersigned's judicial Assistant, Kris Leininger, at (402) 437-1640, to schedule a telephonic recorded hearing for June 1 or 2, 2017, on the Petitioner's ex parte motio
June 2, 2017
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will be recorded. A transcript of the hearing held today shall be prepared, filed, and available to the public and counsel. Ordered by Senior Judge Richard G. Kopf. (LAC)ORDER that Counsel for Mr. Lotter shall continue to represent him, and the June 5, 2017, deadline is canceled. A status conference will be held on January 4, 2018, at 12:00 noon, with counsel for Mr. Lotter and Respondent. That telephone conference
January 4, 2018
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ORDER that Counsel are to advise me by filing a notice in the CM/ECF filing system when both of the following things have occurred: (a) resolution of the petition for certiorari now pending in the Supreme Court regarding this case; and (b) resolution of the consolidated appeals by the Nebraska Supreme Court regarding the state post-conviction matters. Upon the filing of the foregoing advice, my chambers shall call this matter to my attention and I will enter an order for a status conference. Ordered by Senior Judge Richard G. Kopf. (LAC)