Carey D. Moore v. Michael L. Kinney, Warden of the Nebraska Penal and Correctional Complex

MURPHY, Before HEANEY and BEAM, Judges. Circuit HEANEY, Judge. Circuit Carey Moore was sentenced to Dean “exceptional depravity” death under the component of Nebraska Revised Statutes 29-2523(l)(d). date, he has Since constitutionality of litigated the the defini- that it is aggravator, asserting tion of the vague unconstitutionally violation Eighth and Fourteenth Amendments. The district court determined newly-crafted defini- state district court’s exceptional depravity, tion of observing explained that Moore had his resentencing, applied against Moore potential victims constitutional, confession that when his aggravator rendered the vicinity in the up, drove he hid relief. Moore and denied Moore habeas address and checked the cab to see wheth- appeals, and we reverse. young” too because

er the driver was “not man Background easier for him to shoot an older I. Factual and Procedural was man his younger rather than a nearer own on death Carey Dean Moore has been panel at 85. The remarked that age. Id. age At row since 1980. the particular and Moore selected the cab killed Omaha taxi drivers robbed and two on each occasion “because there driver during four-day span August, taxi at the were no other at the stand cabs sentenced to death a three- Moore was time, decreasing thus the chances of the panel on the of Nebraska Re- judge basis identified, being defendant and because 2523(l)(d), § per- vised Statutes 29— the driver was an older man.” Id. imposition mits the of a death sentence The Court affirmed especially murder hei- “[t]he where was death sentence on the basis of Moore’s nous, atrocious, cruel, excep- or manifested factors, placing particular emphasis three depravity by ordinary tional standards of on selection of older victims: Moore’s morality intelligence.” agreed It and face, agree following circum- vague that the statute is on its and We excep- stances exhibit a state of mind exceptional depravity has the term tionally depraved totally and sense- sparked tremendous debate the Nebras- lessly regard for human life: Eighth ka bereft courts and the Circuit. (1) coldly the murders here were original sentencing panel found that (2) planned part as a of the robberies. ‘heinous, “especially neither murder was clearly supports ” The evidence the con- atrocious, or cruel’ because “neither of clusion that the murders were to be torture, sadism, killings involved sexu- i.e., repetitive, the defendant intended to abuse, imposition by al or the the defen- continue on his selected course of con- victim,” suffering dant of extreme on the long required. duct so as his needs prong eliminating thus the first The victims were selected on basis of 29-2523(l)(d) aggravating factor. State certain characteristics which made it (Dist. Moore, at 84 Order Sentence them, easier to shoot for defendant 1980). County, Douglas Ct. June How- ages. unstated con- namely, their His ever, panel determined that the facts clusion was that human in the life of the case that the defendant established years is less valuable than a middle exceptional depravity, exhibited the second younger life. 2523(l)(d), prong §of “each of because 29— coldly murders ... [the] so (Neb.1982) added). (emphasis totally of mind indicate state senselessly regard sought of all In federal habeas bereft human life,” In defendant’s own state- relief the federal district court. “[t]he custody granting petition, ments ... while in Moore’s the court exam- indicate[d] planning upon that these crimes had been in the ined the three factors relied court, It ex- stage day for at least a or two state cited above. before plained that “as earnest as the [first homicide].” Id. at 84-85. The sen- tencing panel also noted has been in its difficult Moore’s selection Court Nebraska statutory age, bring of his on the of their task to Nebraska’s lan- victims guage of this factor into con- Moore’s was not “on no- objectivity, a sentencer is left stitutional tice” that the selection of a victim on the only frag- scattered uncertain age basis of was a sound Clarke, a definition.” Moore v. ments for indicator of the depravity ag- (D.Neb. CV84-L-754, slip op. at 5 No. gravating conclusion, factor. the court 1988). rejected Sept. The court explained that: analysis, stat- Court’s date [t]o the dissimilar results in the ing: procedure simply analyzing “The cases before the Court of Ne- appeal specific on facts of the case to braska, despite that attempt court’s they determine that fall within the ambit specificity, leave sentencer to look language prong of the second of [the closely at the facts of each ease and to depravity aggravating circum- exceptional decide enough whether those facts show ambiguous does not render stance] to lead to finding a the second of the statute constitutional.” Id. words (d) prong aggravating factor appli- emphasizing ambiguous In state of cable, without restriction beyond the 2523(l)(d), § the court made clear that 29— boundless words the statute. More Palmer, 282, State v. 224 399 Neb. specificity is required order for that (1986), 706 which articulated five circum- aggravating circumstance to have a con- depravity exceptional stances which the validity, stitutional whether the sentenc- aggravator applicable,1 failed to ade- a single judge, panel er is of judges, or quately represent pre-1986 illustrations of either jury. with the assistance of a exceptional depravity Nebraska case Id. at 6. The court ordered Moore’s sen- law. See id. at 4. imprisonment tence reduced to life unless in part upon The district court relied capital the state resentencing pro- initiated 356, Maynard Cartwright, v. 486 U.S. 108 ceedings sixty days judg- within after the (1988), L.Ed.2d 372 in hold ment became final. The promptly state ing exceptional depravity aggrava that the appealed. ting unconstitutionally vague. factor was affirmed, concluding This court that the Maynard, petitioner sought habeas Supreme Court had failed to after relief he was convicted of murder and provide guidance to sufficient the sentenc- sentenced to death in accordance an ing panel “to Oklahoma cure constitutional defi- aggravating factor statute. The vaguely-worded ciencies of this “especially Court held that statute.” Clarke, (8th heinous, atrocious, 1226, Moore v. aggravating or cruel” 1230 Cir.1990). unconstitutionally vague factor was be We noted the state provide guidance thought cause did not sufficient court’s conclusion that jury in deciding impose years whether to human life in the middle was less 363-64, 108 penalty. life, 1229, younger death Id. at S.Ct. valuable than a id. at emphasized 1853. The district court imposition but also determined that its ly, degree 1. The Nebraska Court held: exist in reference to a first mur- (1) apparent relishing der: of the murder 2523(l)(d) purpose [F]or 29— killer; gratuitous infliction of aggravating an circumstance in determin- victim; (3) violence on the needless mutila- ing penalty may whether the death be im- victim; (4) tion of the senselessness of the posed, "exceptional depravity" we hold that crime; (5) shown, helplessness of the victim. beyond in a exists murder when it is Palmer, doubt, 282, following State v. 224 Neb. 399 N.W.2d reasonable that the cir- cumstances, 706, (Neb.1986). separately either 731-32 collective- 77 8 denied the subsequently age Id. at 1232. We the basis of sentence on

the death why rehearing, Moore v. petition the reasons was one of state’s selection (8th Cir.1991), Clarke, unconstitutional. and statute remained F.2d 895 denied States the United analyzed Nebraska Su- court also This Moore, 930, certiorari, v. Clarke regarding the use precedent preme Court 1995, L.Ed.2d 591 aggravating exceptional depravity factor, previously that it had explained to the Nebraska Upon remand mean “so exceptional depravity to defined resentencing, request- the state Court for a state of coldly calculated as to indicate defíne de- ed that the court senselessly of re- totally bereft mind satisfy the way in a that would pravity life,” Harper, v. gard for human State objections to its constitu- federal court’s 568, 663, (1981); “un- 304 N.W.2d Neb. apply newly constructed defi- tionality, victims,” Peery, 199 Neb. resisting case, reweigh the to the facts of the nition (1977); 261 N.W.2d factors, mitigating and re- Simants, “exceptional,” State sentence Moore. See State (1977), and found 250 N.W.2d (Neb.1993). Neb. subjective, vague, definitions to be those request, the supreme The court declined Moore, F.2d at overly broad. See and if stating, acknowledge that this court “we Additionally, determined that 1230. we mitigating aggravating the reweighed accurately character- Palmer could not be Moore, the federal and resentenced factors state law: clarifying existing “[t]he ized as Therefore, likely .... court would reverse attempt Court’s the proceed it is futile for us to interpretation of to rearticulate its Palmer Id. at 230. The court re- resentencing,” ‘exceptional depravity’ language vague the court the case to the state district manded it cannot reconciled with fails because be judicial resentencing “in the of interest prior the Nebraska cases.” Id. economy.” supreme court did not Id. us, Further, significance greater the “[t]o explain why the state district could the Ne- of Palmer is that it demonstrates definition of de- narrow the Supreme Court’s exhaustive efforts braska it believed that it itself pravity when phrase ‘exceptional deprav- to redefine the not, provide guidance did it to should nor our conclu- ity’; simply underscores panel application for the sentencing the unconstitutionally phrase sion that the exceptional de- defunct vague.” Finally, Id. at 1232. we conclud- factor. pravity aggravating ed: pre- Our examination of the state resentencing, At the state district court sentencing guide cedent available to the state evaluated its instructions from required are bodies Nebraska which court, op- three and identified the murder “mani- to determine whether tions: exceptional depravity” fested leads us to federal Court of inasmuch as the Circuit court, that, conclude, as did the district present that the Appeals has determined earnestly as the as “exceptional depravity” is definition of provide objec- to attempted Court has unconstitutionally vague, sentencing criteria, vague- tive the unconstitutional panel is left with an ineffective and con- critical in this stat- language ness of the of “ex- stitutionally interpretation infirm sentencing body may A ute remains. proceeds to ceptional depravity” as subjective unilluminating glean only imposed on determine the sentence to be fragments existing from case law. abuse, on the That leaves us with sexual victim after the Carey Dean Moore. (1) ap- victim’s death or loss of consciousness essentially options: three we can 2) ...; the killer’s mutilation or dis- most Supreme Court’s ply the Nebraska body of the memberment victim’s after “exceptional of the recent construction 3) ...; (l)(d) apparent relishing death killings prong of to the depravity” killer, by exemplified murder knowing full that a death sen- well satisfaction, gratifi- manifestations ... on the basis of that imposed tence cation, enjoyment, or pleasure at the virtually construction is certain 4) ...; suffering victim’s or death or subsequent proceedings; vacated cold, planning killer’s (2) determining “excep- can avoid we death, exemplified by experi- victim’s aggravator, on which depravity” tional causing mentation with the method of relied to a original panel death or the purposeful victim’s imposing sen- significant degree, instead particular selection of a victim on the remaining valid tence on specific basis of characteristics such as mitigating circum- race, creed, orientation, gender, sexual attempt ... or we can stances disability, age. objective, limiting fashion our own con- “exceptional depravity” 13-14, added). struction (emphasis Id. at It con- apply that construction to the facts then cold, cluded that “the Defendant’s calculat- pending us. death, cases now before planning ed of each victim’s as man- purposeful ifested selection of a at 12 Order Sentence particular specif- victim on the basis of the 1995). (Dist. Co., Douglas Apr. Af- Ct. age, ic characteristic of establishes the ex- choosing option, the third it continued: ter exceptional depravity beyond istence of a Having appellate defini- no effective doubt, aggravating and this cir- reasonable tion, duty obligation we have a to of applicable cumstance is the murders appropriate first instance to redefine the Id. at 16. [both victims].” limiting conditions for this constitutional appealed and the Nebraska State circumstance. In order to aggravating Although Court affirmed. objections meet the raised the federal court had stated that the Palmer factors courts, this must be done a total and unconstitutionally vague, the state were manner, comprehensive superseding all supreme sought to rehabilitate the prior appellate limiting conditions. We exceptional of de Palmer construction that, restating con- also conclude such pravity component of circum ditions, affording are the Defendant we 29-2523(l)(d): is con “[Palmer] stance of opportunity appellate an for review .... It therefore cannot be said stitutional both the conditions and our factual de- resentencing, that at the time of Moore’s terminations thereunder. constitutionally no def there existed viable resentencing panel con- Id. at 12-13. The exceptional depravity. The re- inition of newly of cluded crafted definition applied could have permit exceptional depravity, which would Moore, 250 Palmer factors.” State v. Neb. sentencing authority princi- a to make “a (Neb.1996). those de- pled distinction between who continued, penalty the death and those who do serve The not,” following should include the factors: Although resentencing panel’s view

1) no viable prolonged killer’s infliction of that there was violence, exceptional depravity physical interpretation of significant such Supreme Court has nei- mistaken, was, confus- The Nebraska given issue, expressed nor desire ther abandoned nev- precedent of on ing state pre-Palmer constructions to abandon authority to define within its ertheless constitutional- that have been held be component exceptional depravity This .... ly invalid reluctance that Moore way as to ensure such prior supreme court to abandon state’s consistent sentences were received sentencer, constructions has left requirements. Obvi- with constitutional stated, previously this court has precedent, ously, in the absence of clear objective suggestions, of some ‘series for the confronting a statute a trial court choose, not, from and some in ac- apply must the statute first time com- assurance that the series is without understanding of with its own cordance Therefore, I plete.’ conclude it. resentencing panel committed constitu- Guardianship and (citing at 132. In re Id. considering aggrava- tional error Conservatorship Bloomquist, Neb. petitioner. tor to resentence the (1994); In re Estate 523 N.W.2d 352 4:99CV3263, Kinney, slip op. Moore v. No. Holt, 516 N.W.2d 608 Neb. 2000) (citation (D.Neb. Sept.19, at 17-18 Stein, (1994); omitted). (1992)). The state N.W.2d 921 magistrate also determined that the that the court then determined sentencing panel had created the fourth “cold, panel’s reformulation of the calculat- factor, of a victim on the the selection depravi- planning” aspect ed characteristic, on specific basis of a based ty purpose- Moore had was sound because panel the Moore case: “The the facts of fully selected the victims on petitioner’s facts of as is reviewed the age. their See id. citing petitioner’s from their evident appeal to the first sought habeas relief again, Once then, Court, practical purposes, for all magistrate in federal court. The recom- concluded that those facts made out the petition for mended that Moore’s Writ ‘exceptional depravity’ aggravator cre- rea- Corpus granted Habeas two ating the ‘selection of the victim’ factor.” 1) defining exceptional depravity as sons: rejected magistrate Id. at 22. The planning and calculated of each “the cold option fourth the state court’s because pur- death as evidenced victim’s placement of “such as” before the list of particular on poseful selection of a victim the sen- “specific characteristics” allowed such as specific the basis of characteristics sugges- tencer to choose from a series of properly “channel” the age” failed to tions, not, objective, some and some with- discretion, contrary sentencer’s to Su- out concern that the cited characteristics 2) preme precedent; panel’s Court subject may incomplete myri- to “a exception- application of its construction of seemingly applications.” ad of limitless depravity process al violated Moore’s due Id. at 21. post done in an ex rights because was manner, him depriving facto of notice and rejected magis The district court respond. Moore v. opportunity to See Moore v. Kin trate’s recommendations. (D.Neb. 4:99CV3263, slip op. at 22-23 Kinney, ney, F.Supp.2d No. 1024 2000). 2000). (D.Neb. Sept.18, “Nothing has It held that the changed present litigation,” prior in the had derived its definition from cases existed, depravity magistrate explained: exceptional years, the kill- the refined definition Mr. demonstrated the evidence where sought carefully, cold, planning of the vic- Moore albeit incre- calculated er’s provided Relying exemplified by pur- mentally, him. tims’ deaths cold, upon plan, on Moore com- particular of a victim poseful selection murders, separate purpose- mitted specific characteristic two the basis of fully selecting It reasoned: each victim because age. Id. at 1033 age. According pre- older to the more “cold,” that is to planning must be vigorously that Moore so cise definition Next, planning say, “calculated.” solicited, this behavior was found to be sorting pro- purposeful must involve a “exceptionally depraved” by expe- three planning to select victims. The cess judges thought- trial rienced and seven have upon focus individuals who must ful members of the Nebraska historically subjected to discrimina- been legitimate no Court. Mr. Moore has im- possess some tion or who otherwise surprised. reason to be characteristic that the victim mutable mur- change. example, For cannot Id. at 1036. plan to select victims be-

derer must II. Discussion age. together, Taken cause of their Eighth A. Circuit Precedent plainly limit the number these elements may murderers who be sen- of Nebraska This court found the Nebraska tenced to death. narrowing attempt courts’ the definition F.Supp.2d Kinney, Moore v. exceptional depravity, age where was a (D.Neb.2000). It determined pre Court case part Nebraska process by due cedent, Moore had not been denied unconstitutionally vague (1990). application of the selection on the basis Clarke, v. 904 F.2d 1226 he had notice of the fact age because petition rehearing was de The state’s (8th Clarke, occur before he was resen- nied, that this would v. 951 F.2d 895 1991), tenced: and the United States Cir. very denied certiorari on that issue. age planning

None of this evidence of surprise to Clarke selection could have been remain 118 L.Ed.2d We since it had been

Moore or his counsel opinion. our 1990 hearing bound presented in the first extensively discussed and was Hop argues The state that Joubert during the (8th Cir.1996), kins, convincing proof of the appeal authorized the courts’ definition depravity” “exceptional Moore’s depravity aggravator. Moreover, crime. the first boys, ages killed Joubert two opinion support cited as was period. He was sen within a four-month the Joubert decision and the Joubert the part to death in because sen tenced emphasized importance the decision § that 29- tencing panel determined age planning and due to selection 2523(l)(d) respect to applicable with was establishing “exceptional depravity”. of the subsection. The Ne both clauses Id. 1035. The court concluded: at the Supreme Court affirmed sen braska decision because the de peti- tencing panel’s in appeal his first the

Since “planned these abductions that the courts fendant tioner has demanded in murders clearly “excep- [t]he murders far advance more define the words repetitive to be ... and the victims intervening the were depravity.” tional Over (8th Cir.1990); would, only panels en banc have by his by the defendant selected authority prior to alter decisions. standards, de- be somewhat fantasized boys prepubescent and consist of fenseless B. The Trial Court Unconstitu- State description fitting pictorial

or women Applied the tionally Narrowed and magazine from detective covers.” gleaned Aggravator Exceptional Depravity Joubert, 224 Neb. State v. Resentencing at (Neb.1986) (citation 237, 250 omit- original). in the ted three-judge panel did not have The penalty death authority impose to court relied on the The state on the basis of its recon against Moore finding in that the defen- Palmer factors exceptional depravity ag struction of the exceptional depravity: dant had exhibited failed to cite a gravator. The state has coldly planned part “the murders were unconstitutionally vague case which an self-gratifica- repetitive program of a regarding application ag of an statute tion, involving immature victims selected gravating circumstance has been cured on availability of their at a time on the basis court, by a state trial which then remand when the likelihood of detection was the defendant to death on the resentences slight.” (citing Id. at 251 newly-defined statute. Su (1982)). precedent support not preme Court does appeal, panel On a of this court declined Arizona, proposition. In Walton exceptional depravi decide whether 639, 653-54, U.S. unconstitutionally vague ty aggravator was (1990), authorized a L.Ed.2d pre the claim was not Joubert because appellate narrowing ag state court’s of an courts, sented the state and was there trial gravating circumstance definition for procedurally Hop fore barred. Joubert v. judges apply to later on remand. It artic (8th Cir.1996). kins, reviewing ulated the federal court’s role in Nevertheless, majority, Judge J. application statutory aggra of a state’s dissenting, opined in dicta that the Gibson vator: successfully Court had court is asked to review When federal the statute in the 1982 Moore narrowed application a state court’s of an individu- decision; application of the narrowed statutory aggravating mitigating al resentencing, at definition to Joubert particular circumstance therefore, plain not error. See id. was, must first determine whether the statu- tory language defining the circumstance Contrary argument, to the state’s Jou- vague provide any guid- is itself too proposition bert cannot be cited for the so, ance to the sentencer. If then the Eighth approved Circuit “broad- attempt federal court must to determine exceptional depravity definition of than er whether the state courts have further employed resentencing Moore.” and, vague they terms if defined the Appellee’s light Brief at 14. of the fact so, have done whether those definitions that this court found the de- are sufficient. pravity prong aggravator 29- 2523(l)(d) unconstitutionally then vague 1990 Id. 110 S.Ct. 3047. in sentencing panel applied when the it to cited two additional cases which the 1980, supreme sufficiently in court had it remains unconstitutional- state de- ly vague. by opinion statutory aggravating our circum- We are bound fined the Clarke, 1226, applied by 1234-35 stance to be later the sentenc- Cartwright, ing sentencing authority at which the is Maynard v. ing panel. See 1853, 100 L.Ed.2d 372 apprised 108 S.Ct. the information relevant to U.S. Florida, (1988); 428 U.S. imposition provided sentence Proffitt 2960, 49 L.Ed.2d 913 S.Ct. guide with standards to its use of the information. Georgia, 428 Gregg v. U.S. 2909, 49 L.Ed.2d 859 96 S.Ct. 428 U.S. at S.Ct. (overturned grounds), sup also on other eliminating The concern for arbitrari- court conclusion that a state trial

ports our capriciousness expressed ness and vaguely statute may not define a worded by vesting judicial not Gregg is served Gregg requires that the at first instance. narrowing function the same tribunal “a provide capital a sentencer with state responsible applying that will for in the be distinguishing for the few meaningful basis construction; resulting first instance the im penalty] death is [the cases in which objective” no “clear and criteria could be many cases is posed from expected emerge to from the procedure (quoting not.” Id. at initiated Furman, 238, 313, upon remand. no alternative but We have (1972) (White, J., concur

33 L.Ed.2d reject conclusion that to the district court’s acknowledged opin in our first ring)). We newly exceptional depravity defined case, anticipating that the Ne ion 29-2523(l)(d) § consti- component of conduct a braska Court would tutionally applied against hearing if the a Moore. resentencing state filed motion, timely that “a state salvage facially-vague a statute

may III. Conclusion provide sentencing construing it Justice demands an end objective applying body criteria for with twenty-year litigation. pre Bound to our Moore, 904 F.2d at 1229. the statute.” decision, vious hold that the definition we logical assump a This statement reflects exceptional depravity, inclusive of a new con tion that the formulation a on the purposeful selection of victim job highest struction is a for the state’s unconstitutionally age, remains court. The Nebraska Court’s district court and vague. We reverse the this task to the sen puzzling delegation of corpus, it to direct issue the writ habeas that tencing panel leads us to conclude request that it remand the case to the only not Moore’s second death sentence is for resentenc previous this court’s deci foreclosed that the ing, opinion consistent our with product sions in his but is also the depravity prong of 29- exceptional imprudent unprecedented an ad hoc 2523(l)(d) unconstitutionally vague, and is judicial process. Gregg narrowing to death that Moore cannot be sentenced explained: depravity on the basis of the expressed in Furman that the concerns component aggravator. imposed not penalty of death be arbitrary capricious an manner can BEAM, Judge, dissenting. Circuit carefully statute by met drafted justice agree I the court that de- authori- that ensures litiga- twenty-year mands an end to this adequate information and ty given tion, is clear- through not a result that but guidance. general proposition As a suggest that the ly wrong. respectfully I by system these concerns are best met governed proceed- appeal outcome of this should be provides bifurcated 784 law, prong of Nebraska Revised nothing rowing two

by application a faithful 29-2523(l)(d) § found that Moore’s Statute else. “exceptional product murders were the premise hangs its hat on the The court depravity by ordinary standards of morali- (8th Clarke, 904 F.2d 1226 v. intelligence.” had earli- ty and Nebraska Cir.1990) (Moore I), today’s de- mandates er, conjunction in de- with the cision, opin- our stating are bound “[w]e prong “coldly a calculated” pravity used ]; only panels in I en have ion banc [Moore in two cases issued on the formulation authority prior to alter decisions.” Rust, day in VMl-State v. 197 Neb. same language, through at 782. This omis- Ante (Neb.1977) 867 and State sion, in misstates the law. The court Holtan, 544, v. 250 N.W.2d 876 (with Floyd I Judge Gibson dissent- (Neb.1977).3 panel sentencing The Moore sentenced in ing) found that Moore was precedent. applied this in Eighth 1980 violation of the Amendment Supreme Court did not Nebraska “exceptional depravity” aggra- because “coldly indicate the source of its calculat applied by the trial court vator Nebraska pen Florida death ed” formulation but the unconstitutionally vague. was 904 F.2d at statute, alty response Fur enacted However, accepting 1233. even the dubi- 238, Georgia, man v. 408 U.S. 92 S.Ct. 1 ous notion that Moore reflected valid 2726, (1972), a 33 L.Ed.2d 346 contained precedent any point subsequent at “cold, aggravator calculated” separate be Supreme precedent incompatible Court ginning Kennedy, in 1979. Jonathan See long- holdings, with its and we are thus no “Cold, Florida’s Calculated and Premedi Young Hayes, er bound. Aggravating tated” Circumstance (8th Cir.2000) no (panel longer bound Cases, Penalty L.Rev. Death Stetson opinion intervening prior panel when 47, 52, 60-61 Florida still uses this Supreme Court case is inconsistent with rule, statutory published disagree without previous opinions). Court, ment from the and the Moore was first sentenced after trial ag- Florida Court has held this three-judge State, as gravator is constitutional. Fennie v. provided by (Fla.1994), denied, law.2 Neb.Rev. 648 So.2d cert. § panel, relying upon 29-2520. The Stat. 130 L.Ed.2d (1995).4 previous nar- totally senselessly In this there have been two Nebraska state of mind bereft of 2. regard panels, trial court one in 1980 and for human life.” 250 N.W.2d at 874. generally opinion, In I one in 1995. refer panel “sentencing panel” to the 1980 as the statutorily 4.Numerous other states use a en panel "resentencing pan- and the 1995 as the "cold, acted or common law calculated” cir el.” penalty litigation. I can cumstance in death find no instance in Holtan, the court stated because the has found use of this circumstance unconsti 3. See, vagueness. e.g., attempted defendant killed and to kill unre- tutional because of Fla. 921.141(5)0) (West 2001) (Flori sisting robbery, totally "act victims of Stat. Ann. senselessly any regard statutory aggravator); Comp. bereft of for hu- da 720 Ill. Stat. (Illinois (b)(l 1) (2001) statutory Although aggrava man life.” 250 N.W.2d 5/9—1 tor); State, Angleton court did not use the terms "cold” and "cal- 714 N.E.2d Holtan, stated, Rust, (court (Ind.1999) finding culated” in the court held that of "cold Holtan, "[tjoday aggravator we have also said that blooded and calculated” did not (d) merely reprise knowing exists where the and intentional ele circumstance denied, murder), coldly first-degree murder is ment of cert. so indicate

785 them, discuss, defendant to shoot infra, easier will As this dissent namely, ages. His con- firm consti- their unstated sentencing panel was on 1980 human life in the “exceptional clusion was that a it found ground when tutional years middle is less valuable than a “each of the murders depravity” because younger life. as to indicate coldly ... calculated so senselessly totally and of mind a state Moore, 457, State v. life,” human and that regard for bereft of (Neb.1982). lan- affirming This ... own statements defendant’s “[t]he guage sentencing panel followed the for- these custody indicate[d] while entirety. mulation almost in its stage for planning in the crimes had been Then, in 1986 the Nebraska day [first] least a or two before Palmer, v. 224 Court decided State Neb. of v. Order Sen- homicide.” State (Neb.1986). 282, 399 N.W.2d 706 The Ne (Dist. County, Douglas tence at 84-85 Ct. adopted the Ari braska 1980). 20, sentencing panel also June (de zona Court’s test five-factor of his victims on noted Moore’s selection Gretzler, 42, veloped in State v. 135 Ariz. observing that age, of their the basis 1, 11-12, (Ariz.1983), denied, 659 P.2d cert. explained his confession Moore had 971, 2444, 461 103 S.Ct. 77 L.Ed.2d U.S. up, he hid potential his victims drove when (1983)), “exceptional narrow the 1327 checked vicinity of the address and aggravator. The court said: depravity” “not the driver was the cab to see whether 2523(l)(d) purpose of [F]or 29— him to it was easier for young” too because in deter- aggravating an circumstance younger man rather than shoot an older penalty may mining whether the death age. Id. at 85. The man nearer his own imposed, “exceptional hold that we affirmed the Supreme Court in murder exists when it is depravity” imposed by panel the 1980 death sentence shown, doubt, that beyond a reasonable saying: circumstances, following sepa- either following circum- agree that We in reference rately collectively, or exist excep- mind exhibit a state of stances (1) degree apparent murder: to a first totally tionally depraved and and sense- (2) killer; relishing of the murder regard for human life: lessly bereft on the gratuitous infliction of violence (1) coldly The murders here were (3) victim; mutilation of the needless (2) planned part as a robberies. (4) crime; victim; senselessness of the clearly supports the con- The evidence (5) helplessness or of the victim. murders to be clusion that were 399 at 731-32. i.e., intended to repetitive, the defendant course, Of the Palmer “senselessness on selected course of con- continue his coupled with required. the crime” articulation when long so as his needs duct “coldly planned” the circumstance of selected on the basis of The victims were “age” upon it murder based factors characteristics made certain 999-00191-CCA-R3-DD, 2012, 1132, W.L. 2000 M1 120 S.Ct. 146 L.Ed.2d 961 U.S. * 17, Smith, 251, (Tenn.Crim.App. (2000); Mar. 284067 at 11 351 N.C. State heinous, 2000) (evidence (N.C.) the defendant’s "cold (finding showed S.E.2d atrocious, planning the entire murderous aggravator supported cruel depravity of the mind "coldly designed scheme” demonstrated defendant evidence that factor), murder), aff'd, 46 S.W.3d ly planned carried out” the cert. -U.S.-, denied, (Tenn.), denied, 122 S.Ct. cert. U.S. (2000); Terry, 151 L.Ed.2d 428 No. L.Ed.2d Maynard Cartwright, the 1980 outlined both (1988)), in its 100 L.Ed.2d 372 and in Supreme and the Nebraska Court S.Ct. 764, 777-78, panel, clearly Jeffers, of the 1982 affirmance Lewis v. 497 U.S. (1990) (Ari- sufficiently channels the dis- sentencer’s L.Ed.2d 606 cretion within constitutional limits. Gret- Supreme “espe- zona Court construed the (senselessness zler, help- or heinous, 659 P.2d at cially depraved” aggrava- cruel or narrowing other combined with constitutionally permissible lessness in a ting factor separate manner). the from the circumstances crime noncapital to

norm of those considered Supreme in Since Court offenses). adopted directly Palmer its test from the brings specifics to the of this This us formulation, validated Arizona the state decision, reached, I as court’s immediately panel asked the Moore I to indicated, vigorous earlier over the dissent light in rehear and reconsider the case Gibson, Judge Floyd wherein this court deciding and Lewis. the mo Walton an found that Moore was sentenced under court, rehearing, required tion for as unconstitutionally vague exceptional de- by necessary Supreme to deference Court pravity factor. 904 F.2d at 1233. With precedent, substantively off its backed ear regard the Palmer decided six to approach, lier condemnation of the Palmer sentenced, years pan- after Moore was although retreat not in is mentioned el stated: However, today’s opinion. rehearing that Palmer

Assuming arguendo dissent) had (again Judge over Gibson’s guide panel been available to sen- still did not find in of the favor state. tencing Clarke, (8th we still are not con- Moore v. decision, Cir.1991) (Moore II). vinced the Palmer when cases, the earlier considered with cited rehearing opinion The court’s Moore II obligation fulfills the constitutional acknowledged Supreme Court Supreme the Nebraska Court.... Our application “sustained of’ the Arizona test precedent examination of state court in at both Walton Id. 897. Jeffers. guide sentencing to in available bodies However, the court held that Palmer’s conclude, Nebraska ... leads us to as narrowing unavailing effort was still court, that, earnestly did the district Minutely parsing language the state. as the Nebraska Court has at- opinions, II various the Moore criteria, tempted provide objective erroneously coldly, concluded that the “so vagueness the unconstitutional calculated” as to indicate a state of mind language critical this statute remains. totally senselessly bereft of all re- Id. 1231-32. gard human life circumstance was not issued, I employed One month after Moore was in Palmer. Id. This conclusion upheld ignores the United States Court the fact that the fourth Palmer validity constitutionality factor channels the sentencer toward con- narrowing State of Arizona’s scheme sideration of the “senselessness of the Arizona, 639, 654-55, Walton v. crime.” 399 at 732. The Moore 111 L.Ed.2d 511 II court further stated that vali- Jeffers (stating given only portion” that the construction to the dated “a of the Gretzler test challenged “virtually implied por- factors was identical” used in Palmer and that this given by to the construction tion Oklahoma did not include the “senselessness” approved prong was of the Gretzler test. 951 F.2d at However, always holding not lead to a that the specifically need position depraved.” crime is heinous or 659 P.2d wherein refuted Jeffers But, sepa- states: at 11-12. where circumstances rate the crime from the “norm” of first- to de- certiorari Walton granted We (as Rust, Holtan, degree murder Gret- ‘especially hei- Arizona’s “[w]hether cide zler, case), Palmer and this the sentencer nous, depraved’ aggravating cruel circumstance, by the Ari- that the crime com- interpreted is entitled to find courts, sentenc- in “depraved fails to channel the mitted manner.” Id. at 12. zona by Nonetheless, required Eighth today, as the as did the er’s discretion the II, judgment in ignores and our in the Amendment” court Moore Palmer negative on a plainly that case rested narrowing ignores and the fact that the circumstance, question. answer to that “coldly, adopted calculated” Supreme by early Court as Nebraska 778, 110 Jeffers, 497 S.Ct. U.S. further, fully is but a and constitu- as Walton, 652-56, 110 497 U.S. at (quoting (indeed, narrowing judicially tional ac- 3047) added). (emphasis subset) ceptable of the “senselessness of stated, standard “[t]he II also Moore crime” factor. in to Moore 1980 was modified applied Palmer, by substantially years six later Thus, given the convoluted course by the changes and the found desirable Circuit, surpris- in it is not Eighth case Supreme in Palmer then Court Nebraska court, ing that after the remand from this applied that the standards demonstrate Court, Supreme the Nebraska which can vague.” 951 F.2d at 1980] were [in interpret read and the Constitution as well simply misapplies and 897. This misreads court, expressed as this understandable applicable Palmer and other Nebraska what, if uncertainty as to frustration and If Palmer for- precedent. anything, the pass anything, might possibly constitution- approved by Supreme mulation in in al muster this circuit. While Walton, actually and broadened Jeffers mind, frame of the Nebraska the “senselessness” factor.5 remanded the case to a new- Court further So, pronounce- contrary to the court’s ly resentencing pan- constituted trial-level today, ante at ments el. 243 Neb. 502 N.W.2d Rust, rulings Court’s (Neb.1993). reconcilable; fully and Palmer are today interprets these state- The court together, they inexorably point to- indeed by the ments and acts as a concession “exception- ward a constitutional use of the that state law depravity” aggravator by the Moore al unconstitutionally vague continued to be and, more cer- inability ade- perception and that a by resentencing panel estab- tainly, aggravator existed. quately narrow the lished unsupported These are inferences. concede, must, I that Gretzler notes I It is true that the Nebraska mere existence of senselessness “[t]he victim, isolation, Court, for re- remanding Moore’s case helplessness or senselessly regard totally bereft of only requires the were and 5. The fourth Palmer factor by planning, human as evidenced cold life sentencer to consider senselessness murders, crime, Rust, the fact that the vic- pursuant repetitive and but under to the formulation, of their ad- were selected on the basis panel’s tims 1980 Moore ages. at 41. vanced the sentencer considers whether the murders cold, said, planning of acknowledge “we that if The killer’s sentencing, exemplified the victim’s death as ex- reweighed this court perimentation the method of caus- factors and resentenced mitigating purpose- ing the victim’s death or likely reverse.” the federal court would particular ful selection of a on the victim However, was Id. at 230. this statement specific characteristics such as court, the Nebraska not made because race, creed, orientation, gender, sexual today, argued believed disability age. 29-2523(l)(d) of section its construction adequately formulation more than This Instead, vague and unconstitutional.6 “coldly narrowed the Eighth court noted that the the Nebraska Indeed, calculated” circumstance. a simi- Rust, Circuit, corpus in habeas review of lar, arguably vague more formulation (8th Hopkins, see Rust v. 984 F.2d 1486 “coldly previ- calculated” factor has Cir.1993), opined appel- had that Nebraska ously approved by been this court. reweigh late courts should not and resen- Joubert, 411, 224 399 State v. Neb. Moore, capital defendant. 502 tence (Neb.1986), 237 the Nebraska Su- N.W.2d at It N.W.2d 229.7 was this issue preme found that the murders in Court prompted the Nebraska Court to exceptional depravity, that case manifested newly resentencing to a formed remand coldly in part because the murders “were panel, vagueness not concern for the of the planned part repetitive program exceptional depravity aggravator. involving self-gratification, immature vic- expressing Also concern about the fed tims selected on the basis of their avail- eral-court-imposed “excep confusion over added). ability.” (emphasis Id. at 251 On circuit, in depravity” review, tional this the re- habeas this court held that sentencing panel (apparently out of an applied by narrowed definition the Nebras- caution) “clearly abundance of decided to narrow ka in was Joubert Hopkins, 75 constitutional.” Joubert v. by the “senselessness of the crime” factor (8th Cir.1996). 1232, 1244 F.3d The nar- reiterating “coldly calculated” circum coldly rowed definition of the stance which had been earlier articulated quite factor utilized Joubert is similar to Rust, by the Nebraska that used here-the Joubert defendant se- Holtan, 874, 250 at 250 N.W.2d N.W.2d immaturity lected victims because of them 880, Moore, 41, at at 316 N.W.2d and availability and and the murders were re- 568, Harper, 208 Neb. 304 petitive. at 251. 399 N.W.2d Moore se- (Neb.1981). The N.W.2d resen lected his victims on the of their tencing panel adopted then its own more ages advanced and the murders were re- ag- version of narrow this “senselessness” petitive. gravator discussing extensively more “experimentation” Furthermore, “purposeful key and se inquiry concern- aggravator: ing “coldly lection” whether the calculated” formu- elements be said that at the time of viable the Palmer factors.” State v. resentencing er “is 805, Indeed, resentencing panel constitutional.... definition the court there 120, existed subsequently 131 exceptional depravity. [i]t could have (Neb.1996). no therefore Moore's stated, applied cannot ^[1995] Palm- 7. The Nebraska with this tiered wherein it found that under Nebraska's two- an 511, appellate 604 N.W.2d system, reweighing appraisal court denies due in State v. 151, Court later Reeves, process. resentencing by (Neb.2000), 258 Neb. agreed

789 way to render it narrowing vague statute such a a constitutional provides lation constitutional, may so a state trial court. specific sub- is not the of “senselessness” See, Garza, 573, definition, 242 496 e.g., State v. Neb. but of that narrowed stance (Neb.1993) (trial 448, sentencing process simply whether attempt first at constitu caprice. Jones must be allowed with bias or not infected States, 373, 400, interpretation validity to determine 119 S.Ct. tional 527 U.S. United statute). (1999). Piatt, This is the Beck Cal. 2090, 144 L.Ed.2d Cf. (Cal.Ct. 611, 236, App.3d Cal.Rptr. el- objective when we examine “controlling (interpretation applicability vague- App.1972) factors for and selection igibility question of law to deter California, 512 U.S. of statute is Tuilaepa v. ness.” instance”); 129 L.Ed.2d 750 mined trial court in “initial 114 S.Ct. Utils, Dep’t Public v. Freedom review is deferen- vagueness This of Info. Comm’n, however, aggra- Conn.App. 739 A.2d tial, long as an “[a]s (determination of meaning (Conn.App.Ct.1999) factor has a core vating question of with capable meaning of under- of statute is law juries should be criminal appellate province mus- of trial court and pass constitutional standing, it will court). Indeed, Jones, recognized Moore II ter.” standard, authority support of its deferential trial when 2090. Under vagueness it stated such similarity “[n]o conclusions light between narrowing given construction “coldly calculated” narrowed version language, either [statutory] ‘depravity’ and in stages of this case used at all Joubert, sentencing pan- sentencing court the Nebraska Su and 1995 the 1980 (emphasis nar- Court.” 951 F.2d at 897 preme and adequately els added). “exceptional depravity” aggra- rowed

vator. Court, early The as pro- unsupported the most Perhaps Rust, acknowledged a sen- specifically as today from the court arises nouncement authority to narrow a stat- tencing panel’s authority to con- ruling on trial court its the court noted: utory aggravator when apply strue and a state statute. interpreted panel properly think the “[w]e validity of the the established Saddled with j 2523(1)(d) definition applied the [29— factors, boldly the court states Palmer (citing case.” 250 N.W.2d at this resentencing panel erred because that the Florida, v. 428 U.S. S.Ct. Proffitt authority to further it did not have (1976)). This circuit 49 L.Ed.2d 913 statute, must that such action narrow the is of course recently “[i]t has observed appellate level. only undertaken at the interpret to supreme court] for the [state to I to reaches back Moore The court rules, no apply its own and we have stated, I “a argument. support questions of state power to redetermine facially- a may salvage state rules, law, as including procedural state by construing provide it to vague statute Bowersox, v. such.” Carter objective criteria sentencing body (8th Cir.2001). Both before and after F.2d at the statute.” applying resentencing, the Nebraska reed, quot- ante at 783. This slender low- specifically recognized this has context, way supports in no ed out of interpret apply authority to er court premise. court’s broad legislatively enacted rules. 229-30; Moore, at 553 N.W.2d 502 N.W.2d certainly it is true that state

While (Neb.1996) (resentencing panel facially- may construe supreme court authority excep- ing today from the court is that what- within its define component). depravity tional ever the State of Nebraska chooses to it do this court will find assuming, Even the face of this I wanting. With this communication straightforward determination of Nebras I vigorously disagree. Accordingly, dis- law, resentencing panel that the some ka sent. authority to narrow how did not have the instance,

the statute the first the Ne ratifi subsequent Court’s

braska any panel’s formulation cures

cation of appeal direct

possible defect. Moore’s resentence, panel’s

from the the Nebraska resentencing

Supreme Court held that the coldly

panel’s definition of the vague, “pro factor was not because America, UNITED STATES of guidance to vide[d] sufficient the sentenc Appellant, ing authority ‘so as to minimize the risk of ” wholly arbitrary capricious action.’ v. (quoting v. at 132 State THURMON, Eararick also known 153, 189, Gregg Georgia, Iroc, Appellee. (1976)). 49 L.Ed.2d 859 Court also found that America, Appellee, United States panel’s formulation was not unconstitu tionally required overbroad since it well than premeditation necessary

more Thurmon, Eararick known also support first-degree murder conviction. Iroc, Appellant. 01-1447, No. 01-1493. indicated, As earlier even the I recognized that “a state Appeals, United States Court of may salvage facially-vague statute Eighth Circuit. by construing provide body objective criteria Submitted: Nov. 2001. applying the statute.” F.2d at Requiring 1229. Filed: Jan. the Nebraska Court to now re- mand the with instructions to the apply the narrowed approved already definition that it has

applied, unnecessarily seems improp-

erly circuitous. sentencing panels

Because both con-

stitutionally “exceptional narrowed the statute,

depravity” and the Nebraska

Supreme Court ratified the narrowed appeal,

formulations on direct I would

affirm judgment the well-reasoned denying corpus

the district court habeas Otherwise, message

relief. emanat-

Case Details

Case Name: Carey D. Moore v. Michael L. Kinney, Warden of the Nebraska Penal and Correctional Complex

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 29, 2002

Citation: 278 F.3d 774

Docket Number: 00-4079

Court Abbreviation: 8th Cir.