AP NEWS

Nebraska death row inmate’s post-conviction motion sat idle for 2 years after judge retired

April 11, 2019

A Nebraska death row inmate’s case raising constitutional claims has sat idle for more than two years, following a Scotts Bluff County judge’s retirement.

In 2004, a jury there found Jeffrey Hessler guilty for raping and killing 15-year-old Heather Guerrero after he abducted her while she delivered newspapers, and he got a death sentence.

On Friday, a federal judge asked for an update on where Hessler’s motion for post-conviction relief stood in state court, because his federal court case has been stayed since 2015 so that issues raised in it could be handled first.

U.S. District Judge David G. Kays’ request led to a status hearing by phone Tuesday in Scottsbluff.

According to court records, the state’s motion to dismiss Hessler’s motion for post-conviction relief has been pending since District Judge Randall Lippstreu retired Feb. 28, 2017.

Both sides had submitted briefs prior to his retirement, but there was no decision.

District Judge Andrea Miller, who was appointed to succeed the retired judge in November 2017, wasn’t made aware of the pending motion to dismiss. But, according to court records, she will make a decision on the briefs that previously were submitted.

In 2016, Hessler had asked to be taken off death row because a three-judge panel and not a jury sentenced him to death for Guerrero’s murder.

His motion cited a U.S. Supreme Court decision earlier that year that struck down part of Florida’s system because jurors didn’t play a great enough role in determining whether defendants were sentenced to die.

In Florida, a jury had considered evidence before making a recommendation on whether the death penalty was appropriate, but the decision ultimately fell to a judge. In January 2016, the nation’s high court found that sentencing scheme violated the Sixth Amendment.

Nebraska has a similar method: A jury must determine whether certain aggravating circumstances alleged by the state existed to make the case eligible for the death penalty, then a three-judge panel weighs mitigating factors before making a decision.