*1 JOUBERT, Appellee/Cross- John J. Appellant, HOPKINS, Appellant/Cross-
Frank X. Appellee. 94-3687, 94-3849.
Nos. Appeals, Court of
United States Eighth Circuit. June 1995.
Submitted Jan.
Decided Suggestion
Rehearing Rehearing for April Denied En Banc 1996.*
* Judge Judge Chief S. Arnold Richard McMil- banc. grant lian suggestion rehearing en
1236 *6 BEAM, BRIGHT, MURPHY,
Before Judges. Circuit BEAM, Judge. Circuit guilty pleas John Joubert entered to two of first-degree counts He murder. received a death on pur- sentence each count. After suing direct and collateral relief state courts, petition he filed a a writ habeas corpus federal district court. The district court found Mr. Joubert’s death sen- tences were on an unconstitutionally based vagué statutory aggravating factor granted the writ. State Nebraska appeals. cross-appeals the district court’s denial presented of other claims in his petition. habeas part affirm in and re- We part. verse
I. BACKGROUND 1983, Joubert, In the fall of a recent trans- Base, began feree Offutt Airforce to act out his stabbing young boys fantasies of Early September death. morning, one he hunting went 13-year- for a victim. He saw Danny old delivering papers. Eberle Jou- grabbed, gagged, bert Danny, put and bound car, him in the trunk aof and took him to a Danny remote stripped area. He to his un- derwear, sequentially untying *7 retying and boy’s Danny’s the gag bonds. worked loose and he asked Joubert if going he was to die. yes, Danny When Joubert said tried to roll away, back, but Joubert stabbed him in the pinning him ground to the with the knife. pinned, Danny promised While not to tell if hospital. Joubert would him take to a Jou- proposition, bert considered the but decided Danny probably get him in trou- So, if ble allowed to live. he stabbed and boy the sliced until he died from loss of blood. later, again
Several months Joubert went predawn out the to hunt for a victim. He 12-year-old saw Christopher Walden walk- ing to displayed school. He his knife to Christopher him along. and told to come Brown, General, J. Kirk Atty. Lin- Asst. car, Christopher Once the Joubert made coln, Nebraska, argued, Appellant. for get down on floor sight. the boards out Weber, Omaha, Nebraska, Mark Alan ar- boy began cry, When the to Joubert consid- (J. gued Joseph McQuillan him, and A. Cal- releasing Scott ered but against decided it for kins, brief), on Appellee. the for of being fear caught. Joubert took Christo- imposing both counts. In the him to to death on spot instructed and pher to a secluded penalty, sentencing panel lay to down on his the found strip his underwear to snow, boy statutory aggravating regard balked the the two factors Because of back. 1) down, “encouraged” Danny him laying so Joubert to the murder Eberle: he Christopher’s putting hands around the by perpetra his in order to conceal was killed (Nebraska contin- Joubert forcing statutory him down. identity aggravator neck and tor’s 2) his hands strangle Christopher, 2523(1)(b)); but to ued that the murder was 29— cold, atrocious, and started heinous, took his knife got “especially so he cru [and] both boy, finally cutting slicing stabbing and represented “exceptional depravity” el” cognizant Christopher remained his throat. defined at that as those terms were time time, lapsed into gradually (Nebraska then for some statutory 29- ,2 of blood. He was 2523(1) from loss (d)) a coma died regard the murder of to resembling plant figure found with a Walden, Christopher panel found three into torso. 1) carved statutory aggravating that Chris factors: killed in to conceal topher was order January again hunting went one Joubert 2) identity; murder perpetrator’s teacher. preschool morning. He found atrocious, heinous, “especially [and] was both he observed her suspicious while became She depravi represented “exceptional cruel” and plate his license from his car and wrote down 3) murder, ty;” and that at the time of the her, approached and tried he number. When history perpetrator had “a substantial room while threat- her into a school to force terrorizing ac criminal serious assaultive her, past him and ening kill burst to she (Nebraska statutory aggravator 29- tivity” police. A license check led called the 2523(1)(a)). being questioned about While Joubert. spon- incident, began make school Joubert postconviction After direct and as to the murders taneous admissions courts, state he appeals were denied waiving rights, Joubert boys. two After petition corpus for in federal filed a habeas murders, giving details to the two confessed grounds alleging district court numerous corrobo- public which were unknown 1) including: his death sentences were relief provided He also by the crime scenes. rated “exceptional depravity” is an infirm because they had been unable police with details 2) unconstitutionally vague aggravator; reconstruct, were later corroborated. which improperly applied ag- sentencing panel subsequently physical discovered police relating history to a gravating circumstance the mur- linking evidence further Joubert activity to Jou- assaultive criminal of serious ders. 3) bert; finding sentencing panel erred in victims to avoid detec- Joubert killed his charged with two counts 4) injected tion; judge improperly trial trial, Joubert first-degree murder. Before *8 5) bargain plea process; himself into the plea pursuant to a bar guilty pleas entered constitutionally ineffective counsel was pleas, the state gain. exchange In for the trial failing to inform that the court was him the present evidence to sen agreed not to 6) plea; accept willing a conditional to previously panel that had tencing Joubert facially process penalty is Nebraska’s in After a young boy Maine.1 murdered discriminatory applied, discriminatory as ad sentencing hearing, in which the state facially arbitrary and because because it bargain, was sentenced to its Joubert hered by phrase the Nebras that has been narrowed murder in later convicted of that 1. Joubert was Joubert, beyond prong proceedings. Proving A.2d v. 603 either unrelated State ka Court. (Me.1992). 861 the existence of a reasonable doubt establishes See, 2523(1)(d). e.g., State v. aggravator 29 - law, statutory aggravator 29- 2. Under Nebraska 829, Reeves, 419, 838 476 N.W.2d 239 Neb. 2523(l)(d) the prongs. The first is that has two 837, 114, denied, (1991), 113 S.Ct. cert. 506 U.S. heinous, atrocious, "especially [and] was murder Joubert, (1992); v. 224 Neb. 71 State 121 L.Ed.2d by phrase has been narrowed cruel" as that denied, 237, (1986), 411, 249 cert. 399 N.W.2d The second is Court. Nebraska the 247, 905, L.Ed.2d 205 98 484 U.S. exceptional depravity "manifested murder (1987). morality intelligence” ordinary of standards ap- discretion results uneven 1. Procedural Bar prosecutorial plication. preju In of the absence cause and dice, showing likely or a sufficient of actual granted court relief on the district The innocence, may a federal habeas court con “exceptional depravity” is an un- claim only sider those issues which have been constitutionally vague aggravating circum- fairly presented raised and to the state stance, relief on Joubert’s and denied other 333, Sawyer Whitley, courts. v. appeals, ar- claims. The State of Nebraska 337-39, 2514, 2518-19, 112 S.Ct. 120 L.Ed.2d granted, improperly was guing the writ (1992). fairly present A claim has been granted, properly if the district that even petitioner ed when a has properly raised options improperly limited the state’s court grounds legal “same factual theories” respond to writ. as to how to Joubert is attempting the state courts which he appeals the court’s denial those district petition. E.g., raise his federal habeas other claims listed above. (8th Delo, 716, v. Forest 52 F.3d Cir. 1995), Keithley Hopkins, 43 F.3d II. DISCUSSION — (8th Cir.), denied, U.S.-, cert. Depravity” “Exceptional Statutory A. (1995); 115 S.Ct. Aggravator Delo, (8th Cir.), Flieger v. — denied, U.S.-, 355, 130 cert. relief, granting the district court found L.Ed.2d 309 vagueness claim had been properly presented courts. Al- to the state although The district court found that procedural ternatively, any it found that bar specifically vague Joubert had raised the prejudice was the cause and excused under appeal ness claim in his direct or in his state Finally, standard. the district court found postconviction proceedings, vagueness “exceptional depravity” prong ag- fairly claim presented. was nonetheless It 29-2523(l)(d) gravator unconstitutionally argument concluded that Joubert’s to the vague as it was defined at the time of Jou- state court that there was insufficient evi sentencing. Generally, bert’s the existence support dence to applying “exceptional “atrocious, heinous, prong cruel” [and] depravity” encompassed factor in his ease (which constitutionally had narrowed been vagueness. claim of Specifi unconstitutional Joubert) the time applied it was cally, the district court found that “a Four aggrava- support suffice process teenth Amendment due issue is in 29-2523(l)(d) independently tor infir- analysis herent of the [insufficient mity “exceptional depravity” prong. in the Hopkins, evidence] issue.”3 No. case, however, supra See n. 2. In this 8:CV91-00350, (D.Neb. op. mem. Oct. sentencing panel explicitly more heavi- relied 1994). Therefore, the district court held ly “exceptional on the depravity” prong than procedural that there nowas bar. “heinous, atrocious, on the prong cruel” [and] aggravator. find the closely existence of the We have examined Jou greater district arguments court, court found that such reli- bert’s state and no unconstitutionally vague prong ance on the where in “exceptional his discussion of the rendered depravity” the death sentence infirm under circumstance does he mention ei *9 Black, 222, 232, Stringer v. 112 Eighth 503 U.S. ther the or Fourteenth Amendment 1130, (1992) (use 1137, S.Ct. vagueness. unconstitutional as a Just aggravator of an weighing invalid in a state claim that there is insufficient to evidence amounts to impermissible an thumb support on a carry conviction does not within it scale). might agree death’s we challenge constitutionality While with a to the concerns, the Stringer district convicted, court’s we re- statute one under which so an grounds. verse on other argument that is there insufficient evidence Despite Fourteenth, the district Maynard court’s characterization of not the Amendment. See v. issue, 356, 360-61, the capital punishment, Cartwright, in the context of 486 U.S. 108 S.Ct. vagueness 1853, 1857, (1988). properly analyzed Eighth, is under the 100 372 L.Ed.2d
1241
capital
including
a
aggravator
examine the facts of
case
of an
support the
to
argument
mitigating
underlying aggravating
“inherently” subsume an
those
and
does not
unconstitutional,
circumstances,
filed,
charges
the
the crime of
itself is
aggravator
the
sentence,
conviction,
on
proportion-
is unconstitutional
the
it
the
and
much less that
argument
is fact- ality
compared
One
vagueness grounds.
of that sentence
with those
they are
based,
legal, and
com
imposed
capital
is
in
other
similar
crimes Nebras-
(Reis-
not
Joubert did
pletely
§§
Because
29-2521.01-03
different.
ka. Neb.Rev.Stat.
legal theory to
the same facts and
present
Supps.1992-94).
legisla-
sue 1989 &
to the
he now raises
courts that
explicit
promote
state
is to
fairness
ture’s
concern
courts,
vagueness claim was not
guard
federal
uniformity
against
to
local
and
fairly
procedurally
is
barred.
presented and
hysteria
imposition
prejudice and
Norris,
258, 261
v.
47 F.3d
See Branscomb
penalty.
The resultant
review
Cir.)
(8th
argument
competen
(rejecting
factually
is
oriented and directs the
scheme
in denial of
“essentially” considered
cy claim
Supreme Court to ascertain that
Nebraska
evaluation),
independent psychiatric
motion for
conviction,
charges,
support
the facts
—
denied,
-,
U.S.
S.Ct.
case,
rt.
capital
any given
and that
penalty
ce
(1995).
2260,
preme
apply
Court will
and
a
district court
if
found that even
constitutionally
of
vagueness
narrowed construction
fa-
Joubert had defaulted on the
court,
aggravator). Because
claim
state
he
cially vague
the Ne-
had shown cause
attempted
persuaded
his
to nar-
for
default. Joubert
Supreme
braska
Court had
the dis
although
of
trict court that
federal law to
aggravator
this
the time
Joubert’s
as
row
vagueness
unsuccessfully,
“exceptional depravity” ag
of the
sentencing,
applica-
albeit
gravator
was well settled
of
definition to
time
his
tion
that narrowed
Joubert at
actions,
Thus,
explicit
state court
sentencing
lack
state
plain
his
was not
error.
legal precedent
question
on the
established
plain error for the
there was no
Nebraska
Joubert,
According to
cause.
this lack of
review.
Court to
the absence
precedent
question
state
on the federal
ren
prejudice,
vagueness
cause and
dered
“factual basis” of the claim unavail
procedurally
claim is
barred.
proceed
able at the time
state court
ings.
argument
This
is flawed.
Prejudice
2. Cause
First,
question
there is no
that the
i. Cause
argument
vague
as
the unconstitutional
“exceptional depravity”
legally
ness of
is not
may
A federal
court
con
habeas
novel,
legally
and was not
novel at the time
petitioner’s procedurally
sider a
defaulted
proceedings. Legal
Joubert’s state court
if
petitioner
claims
establishes both cause
novelty
only
constitutes cause
if the claim is
prejudice
for
from
default. Wain
“so
legal
reasonably
novel that its
basis is not
72,
2497,
wright
Sykes,
v.
433 U.S.
97 S.Ct.
Ross,
16,
available to counsel.”
468 U.S. at
(1977);
Engle
1243
Isaac,
107, 130-31,
by
Engle
If
102
precedent5).
v.
456 U.S.
not dictated
which is
one
vile,
(1982) (lack
“outrageously
wantonly
1558, 1573,
holding that
71
783
L.Ed.2d
horrible,
unconstitutionally
is an
or inhuman”
precedent
honnovel
of state
on
constitutional
1980)
(Godfrey,
vague aggravator
dictates
cause;
a
issue is not
such
rule would be
heinous, atrocious, or
finding
“especially
that
contrary
principles supporting
to the
Wain-
1988) is
(Maynard,
also unconstitu-
cruel”
Thus,
wright
Sykes).
v.
Joubert has not
to
argument
imper-
as
tionally vague, the
shown cause for
default.
depravi-
“exceptional
vagueness of
missible
by
ty,”
narrowed
the Nebraska
even as then
Prejudice
ii.
Court,
certainly not “so novel
was
Supreme
reasonably
legal
not
avail-
that its
basis was
While
district court made no ex
at the time of Joubert’s
able to counsel”
plicit finding
prejudiced by
that
appeal in 1985.
“exceptional
depravity”
however,
Joubert,
apples
mixing
and or-
it
prong
sentencing,
apparently
in his
as
state courts’
anges, claims that the Nebraska
because,
cause,
finding
sumed so
it
after
by the
of his
to
the issue
time
failure
address
directly
proceeded
to
merits of Joubert’s
“factually” un-
argument
appeal rendered
clear, however,
claim. It is
from
district
mistakenly relies on
available to him. He
discussion of the merits that it did
court’s
1310,
Armontrout,
1325
v.
Blair
prejudiced.
Joubert to be
As men
consider
(8th Cir.1990)
support
proposition.
for this
as
tioned, the district court noted that the sen
proposition
Blair does
stand for the
panel
explicitly
tencing
had
relied more
precedent about an established
lack of state
heavily
“exceptional depravity” prong
on the
Rather,
to
issue amounts
cause.
federal
heinous, atrocious,
“especially
than on the
uncertainty
recognizes
to
Blair
as
state
finding
prong
cruel”
the existence of
[and]
for
to
itself can constitute cause
failure
law
29-2523(l)(d).
Thus,
aggravator
even
particular-
a
claim. More
raise
constitutional
finding
prong
though a
of either
will normal
ly,
equal protection
post
and ex
facto
Blair’s
ly
suffice to establish the existence
arguments
to him until the
were unavailable
232,
aggravator,
Stringer,
under
503 U.S.
that one
its
Missouri
Court held
1137,
court feared
S.Ct. at
district
applied prospectively
decisions was to be
heavy
“exceptional
on the
reliance
retroactively
in oth-
some circumstances
impermissible
depravity” prong placed an
Blair,
ers, including
F.2d at
Blair’s. See
on death’s scale. See Williams v.
thumb
1328-31;
Goddard,
v.
State
S.W.2d
(8th Cir.1994)
1529,
Clarke, 40 F.3d
1538-42
(en banc).
(Mo.1983)
Thus,
no
Blair had
analysis
(Stringer
harmless error
mandates
complaint until
the Missouri
constitutional
§
prongs of
independent
where both
29-
question.
rule in
Supreme Court created the
2523(l)(d) applied
prong
if
was constitu
one
diametrically opposed
situation
is
invalid). However,
tionally
because Joubert
facially
An
which was
Blair’s.
cause,
has
we need not decide
not shown
narrowed,
arguably
vague, and
so even
“thumb” is
unconstitutional
whether
controlling
under then existent and
federal
prejudice required
enough to establish
precedent
applied
had
in Joubert’s sen-
been
87,
Wainwright,
at 2506.
iii.
Justice
of
is
barred, it
inappropriate
would not
be
dis-
argues
proce
also
claim,
cuss
being
the merits of the
this
a
prevent
be excused to
a
dural default should
penalty
instance,
case.
In this
as we
justice.
miscarriage of
Howev
fundamental
explain, we
er,
decline
do so.
profess
actually
that he
does not
is
he
boys,
of these
innocent
the murders
nor
requisite
to make
attempt
does he
show
recognize
weighing
in a
We
—Délo,
-,
ing
Schlup v.
under
state,6 generally,
appellate
may
a state
court
851, 867,
-,
130
115 S.Ct.
L.Ed.2d 808
deficiency
cure a constitutional
arising from
(1994) (petitioner
present
must
new evidence
improper applications
aggra
or limitations of
showing that a constitutional
has
violation
vating mitigating
or
capi
circumstances in a
probably
in
resulted
the conviction of one
by engaging
tal
reweighing,
case
either in
innocent).
actually
who is
Neither does he
analysis.
traditional harmless error
Clem
showing,
argue,
any
nor make
that he is
738, 754,
Mississippi,
ons v.
494 U.S.
110
actually
penalty
innocent
the death
under
1441, 1451,
(1990).
S.Ct.
the death there is no funda N.W.2d 251. If the Supreme Nebraska miscarriage justice pro mental lift lawfully reweighed Court then aggrava cedural bar. ting mitigating underlying circumstances 3. Merits penalties, any possible Joubert’s death con though Even stitutional claim of defect Joubert’s sentence was vagueness “exceptional depravity” arguably cured. Williams, (Nebraska 6. See 40 F.3d 1535 stance vagueness overcame constitutional state). weighing 764, Jeffers, concerns. 776-78, See Lewis v. 497 U.S. 3092, 3099-3101, 111 L.Ed.2d court, relief, granting 7. The district habeas did (1990) (Walton validity 606 decision established acknowledge Supreme the Nebraska test). of entire 5-factor The Nebraska Gretzler applied properly Court had narrowed defini- Supreme adopted Court test its Gretzler appeal. tion on narrowing "exceptional own depravity” when Palmer, 282, 706, Walton, State v. 224 Neb. 399 N.W.2d Supreme
8. United States denied, (1986), 872, 731-32 cert. held 484 U.S. 108 that the test Arizona Court had 206, Gretzler, S.Ct. developed L.Ed.2d in State Ariz. And it is that denied, 11-12, P.2d cert. narrowed test which the Nebraska (1983) Joubert, "espe applied Court said it its to Joubert. cially depraved aggravating manner” circum- N.W.2d at beyond a id. However, same reasonable doubt. See we to address decline (constitutional *13 analysis error harmless entails the Nebraska either whether record). the authority reweigh under cir novo of the The other had de review the or, 29-2523(1)(d), present,9 “especial if it had such prong aggravator here of cumstances reweigh atrocious, authority, heinous, cruel,” it did indeed ly whether [and] had been so decline be Joubert’s sentence. We constitutionally cure at of narrowed the time Jou clearly not brief and parties did cause Harper, 895 F.2d 479. sentencing. bert’s at issues,10 clear argue it is not these because finding “especially that a murder hei A was Supreme Court indeed us the Nebraska nous, atrocious, independently cruel” [and] reweighing, in and be engaged a deliberate supports application aggravator of 29- application any as to cause error 2523(l)(d). 2. supra prong See note This depraved” prong harmless “exceptionally was point the crime from the of considers victim’s beyond a doubt. reasonable Joubert, at 249. To fall view. 399 N.W.2d question prong, the murder in within this Error 4. Harmless torture, sadism, abuse, must sexual involve suffering of Regardless of the effectiveness or the infliction of extreme on the appellate reweigh any arguable Harper, court at state victim. 895 F.2d 478. Murders in of ing, application unnecessarily we find error fall within which are torturous “exceptional depravity” prong at sentenc category. Id. We look to the facts this beyond a ing 29-2523(1)(d) harmless reason to have been aggravator decide whether Williams, 1539- able doubt. See regardless of would have been found to exist (federal harmless must conduct courts “exceptional depravity” prong. writ). analysis issuing the Be before error simply Supreme Court cause the Nebraska Danny Considering of the case “exceptional applied of a narrowed definition Eberle, being the evidence that after shows decision, depravity” its without in Joubert bound, transported a of gagged, and like sack there constitutional considering whether was ear, Danny in flour the trunk a sentencing, apply Chapman we anal error at underwear, going stripped to his told he was (In habeas, ysis. the more deferen See id. killed, by pinned held a knife in the to be generally tial Brecht harmless error standard bargain desperately tried to for back he applied is to constitutional errors considered life, lay help he his and then butchered as courts, by Chap the strict harmless state but lessly by nine ante bound the infliction of a standard is used where state court man Danny slicing stabbing wounds. mortem analysis applied Chapman not in the first has and aware at least three remained conscious instance.). Chapman, we must deter Under assault, plus final he or four minutes into the error, any, if harmless mine whether pled for knife his back as he endured the Williams, beyond a doubt. reasonable an minutes his life. Even to adult those F.3d at eternity. They have seemed like an a These all the more so for child. would be perform analysis, To this we binding, slicing a stripping, actions of support determine whether the facts must knowingly young boy times while he nine aggravating factor 29- deep a element 2523(l)(d) awaits his death involve without consideration of the “ex torturous, (or terrifying, A sadism. more ceptional prong, and if if depravity” so Thus, not) humiliating imagine. we whether, can aggra view all other beyond find a reasonable doubt vating mitigating circumstances found to we 523(1)(d) ap been would have present, be the sentence would have been the 29-2 10. The author of circumstances, opinion, speaking appellate him this 9. Under certain state agree con only, with the dissent’s does not self reweighing may deprivation result in court tention, infra, "Appellant Warden Clemons, process. 754 & n. due 494 U.S. at suggest Hopkins Su that the Nebraska does not 5; Hopkins, Rust v. 110 S.Ct. at & n. [any] preme defect Court cured constitutional denied, -U.S.-, (8th Cir.), cert. F.2d regard, appeal.” reweighing In this on direct Brief, pp. Appellant's 28-34. see wounds, sentencing panel plied counting large cutting not con- even had “exceptional depravity” prong. sidered the wound inflicted when Joubert slit his throat. Christopher alert remained and conscious sentencing panel The also found during ordeal, gradually lapsed this into Danny, in aggravation that Joubert killed coma, and died from loss of blood. Five of part, identity. to conceal evidence antemortem wounds were areas of thin doubt, beyond a reasonable establishes skin, penetrate deeply, indicating but did not enterprise, once embarked on Christopher had been tortured. These facts *14 seriously letting Danny go in considered re support torture, sadism, findings of and ex- tell, sponse promise to his to but decided victim, suffering treme including of the ex- to continue in order to avoid detection. A psychological treme terror. findWe that murderer, any being, like other human is a beyond these facts establish a reasonable person thought complex process, with a fluid heinous, atrocious, “especially doubt that the may multiple and have motivations for act prong applied [and] cruel” would have been satisfy ing. also killed to That Joubert sentencing panel to Joubert had the even curiosity way in and sexual fantasies no de “exceptional depravity” prong considered the from fact that he tracts finished the Christopher’s case. project Danny he believed because would get him otherwise trouble. Thus we find proven beyond have aggravator
this
to
been
panel
The
also found that Jou
a reasonable doubt.
Christopher,
part,
bert killed
to conceal
identity.
his own
The evidence shows that
mitigation,
panel
In
credited Joubert
abducted,
being
after
Christopher began to
pleading guilty.
for
It also found that Jou-
touched,
weep. Joubert was
and wanted to
significant
prior
history
bert
no
criminal
had
boy go,
it,
against
let the
but decided
as he
Danny
he killed
the time
that he was
thought Christopher
surely identify
acting
an
mental
under
extreme
disturbance.
However,
him. He therefore decided
must kill
there was also evidence that
he
while
acting
fantasies, Christopher
planned.
above,
out
As
Joubert was
disturbed
discussed
killing
multiple
he
with
way
could control
behavior and choose not
motives in no
less
to act
his fantasies.
out
ens the factual existence of each motive.
beyond
The evidence shows
a reasonable
noted,
As
there is no mathematical
doubt that
he
go
Joubert decided that
must
weighing.
process
formula
The
available
through
plan
Christopher
with his
to kill
requires a
weighing
careful examination and
identity
order to conceal his
as abductor.
given
totality
of the relevant factors
Thus,
application
the evidence supports the
Williams,
circumstances.
ing
serious assaultive
a substantial
behavior,
argues
him. He
that
to
criminal
argues
the trial
Joubert
applica
support
not
their
does
the evidence
injected
the
improperly
plea
court
itself into
considering
peti
a section 2254
tion. When
bargaining process by agreeing
accept
to
a
tion,
supporting
we review the factual basis
suppres
plea conditional on the outcome of a
application
aggravating
circumstances
the
hearing
plea.
sion
and thus coerced his
Virginia
v.
Jackson
under the deferential
context of the trial court’s statement
test,11
sufficiency
the evidence
and reverse
a
following.
sup
counsel wanted
slim
find
only
the evidence is so
where
empaneling
jury,
a
pression hearing before
arbitrary
to
ing
amounts
judge
to
but the trial
feared that due
Jeffers,
v.
capricious action. See Lewis
gruesome
any
ease
such hear
details of the
3092, 3103,
764, 783,
110 S.Ct.
impartial
ing
empaneling
would render
an
(1990). Viewing the evidence
L.Ed.2d 606
virtually
jury
impossible. Counsel insisted
state,
favorably
any
affirm if
to the
we
most
prejudiced if he had
that his client would be
factfinder could have found the
reasonable
jurors
question
as to their attitudes to
to
beyond
aggravators
a rea
existence of
dire, only
during voir
to
wards confession
already
have
We
discussed
sonable doubt.
subsequently suppressed,
have the confession
supporting
the evidence
impaired
ability
to
and that the situation
found,
depth
aggravators
each
response,
bargain
prosecutor.
with the
novo,
it
each
established
of these
de
tentatively lean
the court told counsel it was
beyond a
We
aggravators
reasonable doubt.
ing
denying
pending suppression
towards
necessarily
same conclusion
reach the
must
motion,
it
no
clarified that would have
Virginia
v.
standard.
but
under
the Jackson
Nonetheless,
plea
on the
problem accepting
we
a
conditional
elaborate.
motion,
a plea
such
of that
and that
outcome
of the details of
In Joubert’s recitation
prejudice
consideration
not
the court’s
murders,
point
a
in each
he tells of
both
However,
pled
Joubert
of that motion.
him
actions caused
to
where the victims’
suppression
unconditionally
no
guilty
plan
In both
to kill them.
reconsider
neither
hearing was ever held. Because
Jou
eases,
expressly to avoid the
he continued
suppression
nor his counsel raised the
bert
by identifying
boys getting him in trouble
plea proceedings, we review
hearing at the
favorably
Viewing
most
him.
this evidence
error standard.
state,
plain
this claim under
we find it
be such that a
to the
to
standard,
beyond a
...
rea-
Virginia
found the essential elements
a
11. Under
the Jackson
307, 319,
light
in the
most
court reviews "the evidence
doubt.”
sonable
prosecution
[to
to the
determine
favorable
any
trier of
could have
whether]
rational
fact
McBride,
1316, Therefore,
legal
failure of a
United States
court to make a
See
(8th Cir.1988).
error
the defendant’s
estab-
favor cannot
prejudice.
lish
Id. The record and Jou-
We fail
to see how the trial
testimony
own
bert’s
establish that his con-
willingness
of its
court’s mere indication
fessions were not coerced and should not
plea
accept
conditional
amounts to the
Thus,
suppressed.
been
have
even if Jou-
injecting
plea bargaining
into
itself
court
attorney
him of
bert’s
failed
inform
Further,
by
perplexed
we
process.
are
Jou
willingness
accept
trial court’s
a condition-
argument that the trial court somehow
bert’s
plea,
al guilty
and even if that
failure
wronged
holding a suppression
him
not
performance
amounted to deficient
under
hearing
plea
when his
was unconditional.
Strickland,
prejudice,
Joubert cannot show
unable,
That Joubert was
for whatever rea
claim
and this
must fail.
son,
prosecution
agree
an
to secure from the
plea,
ment to a conditional
and therefore did
Penalty
E.
Death
Nebraska’s
Scheme
court,
present
plea
such
trial
Facially Arbitrary
Arbitrary
willingness
way
that court’s
no
renders
Applied.
offered,
accept
plea, if
such a
coercive. We
This claim amounts to an attack
simply
do
see
error
these events.
prosecutorial
sentencing
on the
discre
Further,
clearly
the record
shows
system law,
tion
in our
inherent
in that
trial court alerted
to the fact that an
permitted
mercy. Mercy
actors are
to show
plea would
unconditional
be the death knell
may
plea bargain,
arise from a favorable
*16
hearing,
suppression
to
and ascertained
sentence,
pursue
from the failure to
a death
confession,
plea,
that
as well
Joubert’s
as
or from
impose
the sentencer’s refusal to
the
knowing, voluntary,
and uncoerced be
per
death sentence even when it would be
Thus,
plea.12
accepting
fore
either
even if
However,
to
missible
do so.
the
us,
escapes
there
error
were some
which
already
rejected
explicitly
Court has
ar
prejudice.
there was no
This claim is with
gument
possibility
prosecutors
that the
of
out merit.
showing mercy
sentencers
renders a death
penalty
arbitrary.
scheme
v. Flori
Proffitt
D.
Assistance
Ineffective
da,
242, 254,
2967,
2960,
428 U.S.
96 S.Ct.
49
This claim is related
one
(1976); Gregg
L.Ed.2d 913
Georgia,
v.
above,
directly
argues
in that Joubert
that
153, 199-204,
2909, 2937-39,
U.S.
96 S.Ct.
attorney
failing
was ineffective for
(1976).
L.Ed.2d 859
explained
The Court
inform him that the court would consider a
in
nothing
that
the Constitution
a
forbids
plea.
conditional
The evidence as to whether
grant
decision to
individual defendants mer
or not
accept
Joubert knew
court would
a
cy,
inquiry
rather the
into arbitrariness fo
plea
conflicting,
conditional
but the
is
ineffec
system
on
leading
cuses
to an ultimate
preju
of
tive assistance claim fails for lack
mercy.
199,
of
Gregg,
denial
428 U.S. at
assistance,
dice. To establish ineffective
a
fact,
S.Ct.
2937. In
the Court intimated
petitioner
perfor
must show both deficient
regime
that
with
mercy
a
no room for
prejudice.
mance and
v.
Strickland Wash
system
be alien to our
of law and unconstitu
668, 687,
ington,
S.Ct.
in
tional
itself. Id. at 199-200 n.
96 S.Ct.
(1984).
exists
both crimes
in
be met
in Williams cannot
as reiterated
dant is to
sentenced.
be
by 'ordinary
exceptional depravity
statutory aggravating
ques-
in
factor
manifested
1. The full
reads,
morality
intelligence.” Neb.
"The
of
two clauses and
mur-
standards
tion contains
heinous, atrocious,
29-2523(l)(d).
cruel,
§
especially
or
Rev.Stat.
der was
scale).
Joubert,
sentencing panel’s heavy
light
reliance
also
See
idity
judgment
reasoned
as to which factual cir-
require imposition
cumstances
of death and
sentencing panel noted that the
Joubert’s
by
imprisonment
which can be satisfied
life
depravity aggravating
exceptional
circum-
circumstances).
light
totality
in
disjunctive
[sep-
in the
two
stance “describes
may
operate
which
...
in
situations]
arate
Exceptional Depravity
Issue on Di-
independent
...
conjunction with
of one
Appeal
rect
“heinous,
distinguishing the first
another”
(which
cruel” clause
on
atrocious or
focuses
In
appeal,
his direct
challenged
Joubert
perspective)
the victim’s
from the second “ex-
sentencing panel’s
imposition of section
depravity”
(focusing
ceptional
clause
on the
29-2523(1)(d). The federal district court con
by
state of
defendant’s
mind manifested
process
cluded that due
was inherent in the
conduct,
by
characterized here
plan-
analysis of that
issue.
I believe that
murders).
repetitive
ning
nature
vagueness
issue was raised
Joubert’s di
sentencing panel
concluded “this
appeal
rect
brief.
In his brief to the Nebras
applicable
aggravating circumstance is
with
Court,
Supreme
ka
extensively quot
clauses, recognizing
respect to both
the evi-
ed from
prongs
the definitions of both
one
factors on the
dence and
second clause of the
29-2523(l)(d)
and two of section
contained
aggravating
outweigh
circumstance far
those
Moore,
State v.
210 Neb.
1251 claim); Hopkins, reweighing analysis. (Ap- harmless error Rust v. federal Cir.) 42-44.) (8th 1486, (finding specific pellant’s. pp. Br. at refer 1491 to sufficient deem in brief more than ences 3. Error Harmless presented court fairly need
issue prejudice), cert. de consider cause majority Finally, the determines that even — -, nied, 2950, 124 “reweighing” if improper, Nebraska’s were L.Ed.2d 697 beyond error would be harmless a rea- disagree. doubt. I sonable As we observed concurring opinion, Nebraska Su his Clarke, 1228, v. Moore 904 F.2d at respond preme Chief Justice Krivosha Court Supreme traditionally Nebraska Court itself claim, vagueness and assert ed Joubert’s applied analysis has not a harmless error misunderstood State Hunt. ed aggravating cases where an is circumstance Joubert, Although at See 399 N.W.2d invalidly applied. found to have been See response upon Krivosha focused Justice Head, 822, State v. Bird Neb. “especially prong of the first heinous” section 309, (1987) (reversing N.W.2d 319-20 253-57, 2523(1)(d), id. 399 N.W.2d at see 29 - remanding sentencing error in panel’s where opinion acknowledge seems beyond determination that a reasonable “exceptional depravi challenge to the second existed); aggravating doubt circumstance ty” prong, phrase but discuss the does not Jones, 1, State v. Neb. 328 N.W.2d “exceptional depravity” because Chief Justice (1982) (death sentence must be reversed suggests “exceptional depravi Krivosha aggrava- and cause remanded where' invalid determining ty” simply is a further factor in ting applied). circumstance But State cf. Joubert, “especially at heinous.” 399 N.W.2d Reeves, 239 Neb. N.W.2d view, my 258. In that discussion is sufficient (1991) (relying on Clemons conduct harm- Supreme to indicate the Nebraska Court review, concluding less error but error not rejected recognized Justices essence doubt). beyond reasonable harmless Where depravity” “exceptional sub silentio Joubert’s rejects I usually analysis, the state such an vagueness claim. this inappropriate think it court to assert hang error life or harmless where briefly I the comments in the also address analyzed the balance. district court maj. majority opinion, op. per part error in harmless follows: may have haps the Nebraska Greatly significant the fact that statutory language “excep narrowed sentencing panel found that the evidence depravity.” tional The Nebraska relating prong to the second factors narrowing it was Court did contend unconstitutionally that was later declared sentencing panel; definition used outweigh[ed]” vague relating “far those rather, adopted wholeheartedly panel’s it (Ex. 46.) (R.) prong. the first findings and of law re factual conclusions garding the of section 29- construction
2523(l)(d), notwithstanding its remarkably references similar to Jou [I]n case *19 bert, Palmer, 399 Eighth State v. Neb. N.W.2d the Circuit affirmed the dis denied, (1986), granting of a of habeas cert. trict court’s writ corpus on the S.Ct. See Jou based unconstitutional bert, vagueness portion aggra of of Appellant at 251. The the second 399 N.W.2d (1)(d). Moore, Hopkins vating the suggest Warden does not circumstance Moore, sentencing In Supreme 1234. the Court cured the constitu F.2d at Nebraska second, panel the not on the by reweighing appeal; tional on direct relied on but defect that, first, instead, portion aggravating appellant even if the of circumstance asserts (l)(d). granting at 1229. After an extensive district court was correct Id. writ, regarding in its the unconstitutionali it erred alternative habeas discussion (l)(d), relief, portion at sentencing ty of the of Id. requiring a remand second 1229-33, Supreme Eighth of Circuit court than to the Court affirmed rather be of district court’s conclusion that Moore appropriate Nebraska remedial action imprisonment error, guise to life dice. of “resentenced unless Under the harmless capital resentencing majority reweighed initiated it seems the State has the sentenc- however, proceedings ing within a reasonable time after Reweighing, factors. is a task Id. judgment final.” at 1228. Re- became for the Nebraska courts. Eighth Circuit’s decision to garding the sum, In Joubert’s death sentence cannot court, Eighth Circuit affirm the district stand. I would affirm the district court’s
stated: grant changing of habeas relief penalty Nebraska death stat- Since the imprisonment possi- to life sentence without aggravating requires and miti- ute bility parole of unless the Nebraska state against gating weighed be circumstances provide courts appropriate post-sentencing other, 29-2522, § each Neb.Rev.Stat. resentencing procedures. Supreme and the Nebraska Court does analysis error apply harmless an aggravating cases circum- where invalidly
stance found to have been is
applied, sentence would have to Moore’s sentencing proceed- for new
be vacated
ings. at 1228.
Id. case, finds that in the The Court Jay HIATT, Appellant, “infected,” have been sentences Id., unconstitutionally vague an factor. determining aggravating circum- CORPORATION, MAZDA MOTOR for- (l)(d) applied, sentencing panel stance merly Toyo Kogyo Ltd.; known as Co. that “the specifically stated evidence and Motor, Inc., America, Appel- Mazda aggra- on the second clause of the factors lees. vating outweigh circumstances far those (Ex. (R.) 46.) CORPORATION, under the first clause.” MAZDA MOTOR for- merly Toyo recognize Kogyo Ltd.; This Court is bound to the Ne- known as Co. Motor, Inc., Supreme America, Court’s Mazda braska’ characterization Third Party Plaintiffs, relating imposition of Nebraska law to the Stringer, penalty. of the death 230, 112 at 1137. The Nebraska Rodney WADLOW, Appellee, D. has aggrava- Coúrt stated that (l)(d) ting comprised circumstance Liability Advisory Council, Product separate, disjunctive two circumstances Inc., Amicus Curiae. may operate together which either or inde- See, Reeves, pendently. e.g., 476 N.W.2d No. 94-3629. However, at 838. the Nebraska United States of Appeals, process instructed that Court has Eighth Circuit. weighing aggravating mitigating cir- cumstance should not consist of a mere May 15, Submitted 1995. factors, counting aggravating but rather Decided Jan. process very should entail careful factors, weighing examination and
given totality of the circumstances. *20 Victor, (quoting at
Id. N.W.2d
447); Stewart, 250 N.W.2d 862-63. 6, 7,
Appellant’s pp. Addendum at 8 and 9.
The district court found error to have
“tainted” the Appellant’s sentence. Adden- p.
dum at preju- 8. That finding establishes