Randolph K. Reeves, Appellee/appellant v. Frank X. Hopkins, Warden of the Nebraska Penal and Correctional Complex, Appellant/appellee

tance of the interests involved and the nature Cir.1989) F.2d (en banc)). subsequent proceedings.” Id. at None of the classifications that merit height- 91 S.Ct. at 786. general, “In ‘something equal less’ ened protection scrutiny is involved than a full evidentiary hearing Rather, this sufficient case. “protected class” of prior to adverse administrative which Purisch action.” is a member consists of those Cleveland Bd. Loudermill, Educ. v. personnel Tennessee Tech grieve who mat- 532, 545, U.S. 1487, 1495, ters involving sexual harassment. Such L.Ed.2d 494 (quoting class merits v. El protection Mathews constitutional only dridge, 319, 343, insofar as state actor could have had no (1976)). 47 L.Ed.2d 18 conceivable rational basis for distinguishing it. See United States Railroad Retirement The Fourteenth Amendment does Fritz, Board v. require procedural more protection than 453, 461-62, 66 (1980); L.Ed.2d 368 Muller v. Quattlebaum Yolpe afforded Purisch. Lujan, 207, 210 (6th Cir.1991). grievance proceedings were not We hold that the Tennessee policy Tech equivalent of a full-fledged judicial inquiry, question is rationally legitimate related to a they but did days involve two of examination government interest. Proceedings address- evidence five committee plus members ing sexual harassment are usually divisive, Quattlebaum. The committee heard testimo inquiries sensitive involving factual determi- ny from all six witnesses that Purisch re dependent nations on the kind of state-of- quested, in addition to seven others whom mind evidence that par- cross-examination is the committee called its own initiative. ticularly adept at eliciting. Although Purisch Purisch presented himself grievance his both argues that grievance his likewise would orally and in writing. Although Purisch dis profited from the use of cross-examina- putes the overall conclusion that the commit tion, rational basis review does not demand reached, tee the evidence in the record indi exacting discernment on part of the state. cates that conclusion was the result of an The application of procedural rule there- impartial thorough inquiry easily fore did not violate the equal Constitution’s satisfied requirements of due process. protection guarantees. Summary judgment Because we find no violation, constitutional on all the section 1983 claims proper. we need explore qualified the issue of immu For nity the foregoing reasons, no further. we AFFIRM judgment of the district court. Purisch’s section against 1983 claim Quattlebaum also allegation includes an she violated his Fourteenth Amendment equal protection. The basis for this claim seems to be that Tennessee Tech’s Randolph REEVES, K. grievance procedure allows cross-examina Appellee/Appellant, tion of witnesses when sexual harass ment is at issue. words, In other Purisch Frank X. HOPKINS, asserts that this distinction Warden of between individu als grieving a Penal and sexual harassment Correctional claim and Complex,

individuals grieving Appellant/Appellee. other concerns denies the latter grievants equal protection of the Nos. 95-1188. law. United States Court of Appeals, “ ‘To state a claim under Eighth Circuit. Equal Clause, Protection §a 1983 plaintiff Sept. 11, Submitted 1995. must allege that a state actor intentionally Decided Feb. against discriminated plaintiff because of ” membership protected class.’ Henry v. Metropolitan Dist., Sewer 922 F.2d (6th Cir.1990) (quoting Morel, Johnson v. Lincoln, Gen., Atty. Brown, Asst. Kirk

J. NE, appellant. for NE, Lincoln, Hutchinson, Belford Paul appellee. BEAM, BRIGHT, and BOWMAN,

Before Judges. Circuit Judge. BEAM, Circuit two convicted Randolph K. sentenced felony murder counts convic- His of Nebraska. by the State by the affirmed were sentences tions appeal both Supreme Court States The United actions. postconviction Supreme Court vacated the supreme deny his actions. Reeves stated that he was postconviction decision and remanded too drunk to much, remember but that he did for reconsideration in light of intervening remember stabbing and raping Ms. Mesner. remand, decisions. On after Reeves’ blood alcohol level was .149 when hearing argument sides, from both the Ne- it was tested approximately three hours after braska Supreme Court affirmed Reeves’ the assault. According to trial testimony, death sentences. Reeves then petitioned the Reeves’ blood alcohol level have been as federal district court for a writ of habeas high as .230 the time of the crimes. There corpus § under 28 U.S.C. 2254. The district was conflicting testimony as to whether the granted the writ and the appeals. state peyote buttons ingested he would exag- part reverse in and remand. gerated or counteracted effects of the alcohol, but, way, either there is no I. doubt BACKGROUND capacity Reeves’ appreciate what he In early morning hours of 29, March was doing was grossly impaired by his volun- 1980, Randy Reeves killed Janet Mesner and tary drug and alcohol abuse night on the Victoria Reeves, Lamm. a construction the murders. worker by a rainy idled day, had begun drinking trial, previous At day at Reeves did dispute 8:00 or 9:00 that he a.m., and committed drinking continued crimes. various lo- argued Rather he cales until after he midnight. not guilty At was either Reeves’ last because he did stop, ingested he not have peyote some buttons, ability and, to form the requisite according friends, intent, or, was in a stupor near because he was insane at the time when he go left visit Mesner, Ms. murders. jury The live- found Reeves Quaker caretaker of the guilty of both meetinghouse. counts of felony murder, and a Ms. Mesner and three-judge Reeves1 distantly were sentencing panel re- subsequently lated, both Quaker faith, of the imposed had been death penalty on each count. good friends all of their On appeal, lives. They had the Nebraska Supreme Court never had sort romantic found that relationship. had improp erly applied one aggravating Evidently, circumstance Reeves climbed into the meet- and had improperly inghouse failed to apply one miti through a window, kitchen obtained gating circumstance in determining knife, kitchen Reeves’ upstairs went and assaulted sentences. Reeves, State v. Ms. 216 206, Mesner in Neb. her bedroom. Ms. Mesner 344 433, (Reeves N.W.2d was I), 447-48 stabbed seven cert. times. Ms. Lamm, who denied, 1028, 447, 105 visiting with S.Ct. young her 83 daughter, walked (1984). L.Ed.2d 372 in on Nonetheless, the struggle Ne was also stabbed braska Supreme Court Reeves. Ms. affirmed Lamm’s the death wounds were almost sentences. Id. 344 immediately fatal, N.W.2d at 449. but Ms. Mesner was able way make her downstairs to summon help. Reeves subsequently filed a postcon- Police found Ms. Mesner still conscious. She action, viction arguments raised as to identified her Reeves, attacker as expressing the propriety of the aggravating circum- shock and disbelief that he would do such a stances applied by the sentencing panel. thing to her and Ms. Lamm. Court found that Police found Ms. Mesner’s those bedroom in a concerns had been adequately ad- shambles, indicating a great struggle. dressed in Reeves’ direct appeal and refused There, they discovered Reeves’ underwear, to reconsider them. Reeves, State v. 234 sock, and billfold. thereafter, Soon 711, police Neb. (Reeves N.W.2d found Reeves walking across a major II), vacated, thor- 498 U.S. 111 S.Ct. oughfare, blood, covered with fly his undone (1990). L.Ed.2d 409 The United States Su genitals his exposed. Reeves preme was ar- Court vacated Reeves II and remand rested and given warnings. Miranda He ed for reconsideration in view of its recent rights waived his and made no attempt decision, a case in which the Court 1. Reeves is an American Indian who was adopted by Quaker and raised family. v. reweighing deeision types of outlined denied, Cir.), U.S. underlying a death the factors 2) (1993); and 124 L.Ed.2d unobjectionable, constitutionally were Nebraska, independent exhaustive district permitting. L.Ed.2d law. The examination that, response, the concluded prece- own on its relying Court, Mississippi, 494 explicitly (and under Clemons Rust aggra- reweighed the dent, reexamined applied mitigating circumstances vating and matter), appellate court (1990), for that in a manner sentencings in Reeves’ underlying a death factors State Clemons. permissible deemed law al only if state permissible is sentence Reeves, 476 N.W.2d 239 Neb. However, court erred the district it. lows denied, 506 (Reeves III), (Neb.1991) Supreme Court’s dismissing the Nebraska L.Ed.2d 837, 113 S.Ct. an incor reweigh as authority to of assertion the reweighing, result of As a law. interpretation of Nebraska rect Reeves’ affirmed the final Supreme death sentences. Court is The Nebraska court law. Once that arbiter of for habeas petition filed then Reeves reweigh based authority to its asserted The district court. district corpus federal concern practice, our its own on sentencing, as to the writ granted court configuration of state the resultant whether that the Nebras- claim with Reeves’ agreeing violates federal in a scheme law results aggra- reweighing of ka Court’s Clemons, 494 U.S. rights. See constitutional his case factors in mitigating vating and (state su- 746-48, law, and therefore by state authorized authority to re- of court’s assertion preme due by to be sentenced right his violated defeats practice, past its on weigh, based Having found the of law. process unqualified state law of assertion petitioner’s con- unauthorized, court did the district weighing factfinding and all to have right objections to other Reeves’ or resolve sider only); see also sentencer by initial done court did The district sentences. his death Oklahoma, Hicks v. trial on several deny relief consider (due process is that, consid- claim claims, including Reeves’ it admits appellate court evidence, trial the state when violated of ering the state sentence, a void jurors authority to cure on instruct is without failure to court’s nonetheless). thereby give offense, and such noncapital affirms but lesser capital conviction Court jury case, alternative rights. process his due its own violated on acquittal, assertion based its interpretation Clem its practice past grant appeals of Nebraska The State By III, at 835. ons. Reeves the district appeals writ. Nebras review an exhaustive performing he to his claim as of relief denial court’s attempt to show in an least one on at to an instruction was entitled inadequacy of noncapital offense.2 lesser authority under of its own exceeded law, the district court its own II. DISCUSSION Es authority. See of federal bounds 67-68, McGuire, 502 U.S. telle Reweighing the State A. (1991) (it 116 L.Ed.2d to reex of federal province not the of state law determinations amine state decision district 1) questions). our prongs: two rests grant the writ presented issues other dressed infra, our consideration defer explained we 2. As ad- Reeves. court has until this claim farAs constitution is L.Ed.2d 175 we found that concerned, in a weighing jurisdiction,3 a state procedure such a violated process due be- cure a constitutional de cause Rust had to have a three- ficiency arising from improper applications judge (which sentencing panel we analogized or limitations of aggravating or mitigating Hicks) jury find the relevant facts capital circumstances in a case engaging impose his sentence in the first instance. either reweighing, or in traditional harm Rust, 984 F.2d at 1493. Because a less less error analysis. Clemons, 494 U.S. at rigorous burden proof had been used be- 754, 110 S.Ct. at 1451. “Reweighing,” in the low, there were no facts found for the Ne- ease of a sentence by improper tainted appli braska review, and no cation of an aggravating factor, may be ac death sentence for it to cure. Id. We found complished in one of ways. two The state that under capital Nebraska’s may jettison the improper scheme, appellate factfinding and sentencing weigh factor and only the remaining aggrava in the first instance amounted to an arbitrary ting and mitigating Or, factors.4 that court capricious disregard law, of state may apply a corrected definition of an imper deprived Rust liberty of his interest in his missible factor and include in the balance. life without Id.; of law. see Id. at 110 S.Ct. at 1449. What an Hicks, 345-47, 447 U.S. at 100 S.Ct. at 2228- appellate court in a “weighing” state 30. do under guise of “reweighing” is to We further create an found automatic that conducting rule that a an death initial sen sentencing tence will upheld proceeding on appeal, as long as after “the one valid entire first aggravating tier of the sentencing process circumstance remains. Id. at 751-52, 110 invalid[ated],” deprived S.Ct. at Rust 1449-50. of right his to independent appellate review of his sentence Because Nebraska is state, a weighing (because, was, there essence, in sentence, no may, state law permitting, constitutionally just & sentence, review). to Rust, flawed cure a death sentence tainted the improp- 984 F.2d at 1493 (emphasis added). Because er application of an aggravating factor we interpreted Supreme precedent reweighing. The district court based its be- require appellate capital review of lief to sentences the contrary on independent inter- to prevent unconstitutionally arbitrary pretation of Nebraska law Rust v. capricious infliction of the penalty, Hopkins, we 984 F.2d at noted, 1486. As found that the initial appellate sentencing district court exceeded the bounds of its au- carried out in Rust’s case also thority in violated due rejecting the process. Id. Court’s interpretation of Nebraska law. The district court also misread Rust. However, in Rust we also recognized that Rust, we addressed a very limited and the United States explic- Court had unique situation. We were faced with a itly found nothing constitutionally objectiona- death sentence which imposed had been un- ble in state appellate courts making those der a wrong and too lenient burden proof. of findings fact, even in the instance, first Rust, 984 F.2d at 1493. The Nebraska which are necessary to assure Eighth Supreme Court attempted to grave cure that capital Amendment sentencing channeling error by applying the correct and rig- more concerns Id.; are satisfied. Clemons, see orous “beyond a reasonable doubt” burden 745-46, U.S. at 110 S.Ct. at 1446-47. We on direct appeal. Id. at 1492. Relying on therefore our limited decision, Rust very Hicks v. Oklahoma, 447 U.S. carefully stating that “[a appellate state] Clarke, 3. See Williams v. 40 F.3d analysis. However, coming rather than to an Cir.1994) (Nebraska weighing is a state), cert. independent balance, decision as to the resultant - denied, -, it decides whether there is reasonable doubt L.Ed.2d 247 that the sentencer would have come to the same result improper had the jettisoned, factor To been review a death sentence tainted an im- or, alternatively, proper aggravator been defined. harmless Clem analysis, error ons, appellate engages S.Ct. at in a 1450-51. similar law, not, with consistent could courts some sen- ‘cure’ competent to fully “sentencing” Rust, “factfinding” and in the engage cases.” capital in tencing deficiencies reweighing appellate independent in that Clem- inherent explained at 1493. We F.2d sentence. “improp- underlying a death as such the factors minor errors applied ons state law sen- had no invalid Since er consideration reweighing entirely void sen- authority, circumstance,” tencing but not factfind- new not to be de- completely requiring Clemons’ tencings violate would life) (his did in Rust Nowhere liberty without at 1493-95. interest ings. prived Id. of a not, consis- could intimate of law. The we due reweigh aggravating process, finding that the argument, tent rejected this “minor” cure circumstances mitigating au- independent court’s assertion supreme in in issue as those such sentencing errors reweigh tempered thority to intimate, in indeed Nor did we Clemons. claim Clemons’ unavailable and made scheme not, that such could we of Clemons view jury ex- right to exclusive unqualified to an deprivation to a amount reweighing would or factors facts weighing of the amination his sentence.5 appeal right to a defendant’s penalty. Id. underlying his death cases, whether in other stated we have As express consider Clemons’ at 1447. engage, or Supreme Court will argument rejection of the ation authority engage, constitutionally objec reweighing is presented to those similar where tionable states law which of state ais in a lower statutorily vested Clarke, Moore See it can decide.6 law. of state question one body makes the denied, (8th Cir.1991), 746-47, 110 at 1447-48. Id. at 1995, 591 118 L.Ed.2d 930, 112 S.Ct. 473, in- Grammer, an Hicks as distinguished 895 (1992); Harper v. acting admittedly Cir.1990). appellate of stance 480 imposing a sentence authority and without rejected Clemons, Supreme the Court In “cur[ing] instance, the rather than the first by the district accepted argument very the reconsidering appro- the by itself deprivation Mississippi that the argued court. Clemons void sentence. underlying of priateness” vesting death explicitly statutory scheme Supreme The 747, at 1447. 110 S.Ct. Id. at jury ren- authority in penalty Supreme Court’s Mississippi found the Court his case unauthorized reweighing in dered authority re- to of assertion independent due of therefore violation and state law prob- any Hicks overcome to weigh sufficient Clemons, at 494 U.S. Hicks. process under Supreme Mississippi Id. That lem. According to Clem- 746, at 1447. 110 S.Ct. of its later reconsidered sentencing au- Court factfinding and ons, vesting Compare no is of moment.7 law its own appellate jury meant that thority engage in re- not, process, due with consistent because Clemons intimate not so 5. We could he had a weighing because the examination specifically stated that by jury to be facts found in- to have all factfinding inherent in attendant record argu- rejecting Clemons' jury. does not violate dependent sentenced ment, fact, cases, Mississip- may, to the Supreme capital Court looked process due authority petitioner re- receives of necessary Supreme assure that pi assertion Court's Clemons, re- doing consideration history so. weigh, the individualized its Clemons, See Eighth Amendment. 747, Court quired As the 110 S.Ct. at U.S. at 494 said, 1446-49; 745-50, Parker at disputing at su- 494 U.S. basis it had no 731, 321, 308, 111 Dugger, 498 U.S. Id. interpretation of its own law. preme court’s 739-40, Clemons thus contention untenable renders imply Nebras- that the way intend in no 7.We mitigating cir- aggravating and reweighing of not, Mississippi like Supreme could Court factfinding therein inherent and the cumstances cryptic Court, its somewhat reconsider Supreme rights in due with a defendant's conflicts along reweigh, perhaps authority to assertion Clemons, 494 U.S. systems. two-tier states analy- thoughtful court's the district lines of at 1447-48. hand, mean to do we neither the other On sis. Supreme should that the suggest on Hicks in Clemons relied petitioner 6. The only that point is authority. Our reconsider Supreme Mississippi Court could argue State, Clemons v. 535 So.2d 1362-63 court interpretation our decisions, the Ne- (Miss.1988) (court may affirm death sentence braska expressly when an aggravator invalid has been consid correctly found that Rust is a limited deci- ered), vacated, sion, based on the invalidity of the entire 108 L.Ed.2d 725 with Clemons v. sentencing proceeding, which is distinguish- State, (Miss.1992) (court So.2d able on its facts from the “minor” sentencing without to affirm death sentence errors at issue in Moore, Clemons. when an aggravator invalid has been consid N.W.2d at 229-30. The ered). What is relevant is that original Court has further emphatically rejected the assertion of authority enough to take the proposition that Rust forbids question out of the federal Clemons, arena. reweighing in the typical more situation in- S.Ct. at 1447. volving an invalid sentencing factor, and ad- position heres to its that it has the authority capital Nebraska’s punishment to reweigh. Moore, 502 N.W.2d at 229-30. scheme is similar to Mississippi’s, except that That Court has a judge judges, three rather than chosen, in the judicial interests of economy, a jury, imposes the penalty in the first to refrain from exercising its asserted au- instance. A state appellate practice court’s thority to reweigh, pending clarification of of reweighing defeats a defendant’s assertion the scope of Rust in eases such as the one of an unqualified process right to have a us, now before fairly cannot be said to be an “jury [read sentencing panel] assess the con embracement of the district position. sequences of the invalidation of one of the Moore, See 502 N.W.2d at 230 (declining to aggravating circumstances [which jury exercise authority to reweigh in the interests applied].” had Id. at 110 S.Ct. at 1448. judicial economy). That Court has expressly bowed, in State v. Ryan, 248 asserted its authority to reweigh aggravating Neb. to the and mitigating III, circumstances. Reeves district court’s decision and interpretation of 837; N.W.2d at Moore, see State v. case, Rust in this hardly amounts to the Neb. (1993); N.W.2d see Nebraska Supreme Court interpreting Rust also (Reissue § Neb.Rev.Stat. 29-2521.02 as the district court Indeed, did. it only 1989 Supps.1992-94). & Because “[w]e have further highlights injury done comity to no basis for disputing [the Nebraska Su when federal reject courts supreme state preme Court’s] interpretation of [Nebraska] interpretations of their own law. law,” and because reweighing under Nebras ka’s sentencing scheme fact, does not In violate fed even the dissent acknowledges that eral requirements, we find Rust is Ne no bar to reweighing by the Nebras- braska’s assertion of authority to reweigh Court. See p. 1436. infra have been effective in Rather, Reeves’ case.8 Clem joins dissent the district court in ons, 494 U.S. at 1447-48; finding S.Ct. at fault with the McGuire, Estelle v. 62, 67-68, 112 Court’s its own law. 475, 479-80, 116 L.Ed.2d 385 B. Instructions The dissent asserts the Nebraska Su- preme Court interprets Rust as the district Because of its application Rust, court did. p. See However, 1436. and infra district court did not consider all matters aside from precatory any nature of state raised Reeves. Reeves Hopkins, once the Court has stated n. 5. When cases a posture, have troublesome is, what courts, as federal our Rust, such as that in appellate "[a] state court’s concern is whether that determination conflicts decision to conduct analysis harmless-error or to with federal rights. constitutional reweigh aggravating mitigating and factors rath- er than remand to jury 8. [will] State required courts are not to re- ] weigh, being] [as violate! trarily.” Constitution and in made arbi- certain cases find that remand Id. at appropriate more 754-55 n. required. or at 1451 even n. Clem- ons, at 754 n.& 110 S.Ct. at 1451 & Mississippi, summary, Clemons (D.Neb.1994). n. F.Supp. a all the issues address prefer we Since options three forth sets ... protract time, than have rather at one case pen- in death available remands, see issue, series ed, issue an error has been there alty where cases 72, 73-74 Clarke, Rust v. generally ag- finding of court’s trial concerning the denied, 508 U.S. Cir.1992), mitigating circumstances. gravating and/or (1993),9 re we 2950, 124 L.Ed.2d reweigh may analyze and First, the court to consider instructions ease with this turn circum- mitigating and aggravating ad but not raised issues all decide and or whether to determine itself stances request We court. by the district dressed penalty. of the tips favor the scale every effort make a harmless Second, may conduct the court days. We within issues these decide whether analysis to determine error any consolidate will jurisdiction retain aggra- finding by the district error undecided the resolution appeal has circumstances mitigating vating or before pending still issues those with issues defendant. rights of the prejudiced us. the cause Third, may remand the court hearing. a new III. CONCLUSION Reeves, at 834. fur- remand for part, We reverse far! The good so All well opinion this consistent proceedings ther permitted power asserts Supreme Court our instructions. and with But what Supreme Court. United States permit do not aof if the statutes dissenting. Judge, BRIGHT, Circuit “l by Clemons permitted sentencing options I dissent. very same by the is indicated An answer Mississippi ease. I. States the United from on remand con- appropriate case in place To States the United stated action of text, examine we Supreme Court stat- case. The in this consti- from settled ed: of a standpoint tutional aggravating balanced aggravating and reweigh ability to have deter- anew mitigating factors we [but] ... circumstances mitigating circumstances that the mined law, our decide, a matter must statutory non outweigh miti- aggravating and reweigh authority to case.... in this circumstances mitigating uphold in order gating appropriate remain of death Sentences upon part which based sentence death for Reeves. penalties circum- aggravating defined improperly an III), (Reeves 239 Neb. v. Reeves stance. State (1991). (Miss. State, 593 So.2d v. Clemons 1992). from whence this court is question The obtain sentencing procedures, Nebraska did the Reviewing its own quite similar power? this notes are majority assert as the which high Nebraska, Mississippi to those very specific articulates The Reeves stated, the United from right derives This source. two provisions, statutory these From Clemons case of States by unani- jury, only things are clear: 738, 110 Mississippi, 494 U.S. penal- the death decision, impose can mous opinion the Reeves As circumstances, this aggravating ty; as asserts: to ensure time-consuming remands to avoid we of "do may a case be this realize a reasonable within fully resolved Nonetheless, cases are prefer we do.” as we say time frame. issues all and resolve address that district authority to determine What has Nebraska said on this issue? whether the supports evidence jury’s plainly answer is “Nothing.” It has judge’s finding of a aggrava- spoken never subject. on the Like Mississip- ting circumstance. There authority is no pi’s cases,10 earlier merely it pos- assumed it for this reweigh Court to remaining aggra- sessed the power. vating when circumstances it finds one or case, In this two excellent Nebraska more to be invalid defined, or improperly judges serving courts, Magistrate federal nor authority there for this Court to find Judge David Piester initially in recommend- support evidence to a proper definition of ing habeas relief and United States District aggravating circumstance in order to Judge Kopf Richard in granting relief under uphold a death sentence by reweighing. habeas corpus, carefully examined Ne- Finding aggravating and mitigating cir- braska cases and the Nebraska law. cumstances, them, weighing and ultimately imposing are, by statute, In an extensive district opinion, left to a jury. instructed Judge Kopf reached the following conclu- Id. at 1006. sions: Moreover, the Mississippi Supreme Court Nebraska wrongly recognized that previously had upheld (and read Clemons its progeny) to mean death sentences on several occasions earlier that if federal law allowed appellate resen- where there existed an invalid aggravating tencing, state law also allowed circumstance. The Clemons court then un- resentencing; ... equivocally rejected previous its opinion When court made (Johnson State, (Miss. 547 So.2d this assumption, it created a proce- 1989)), have contained an “indica- dure that had not been authorized tion” “implication” for the court’s authori- Legislature. ty reweigh under Clemons. Id. at 1006. Reeves v. Hopkins, 871 F.Supp. Does a analysis similar apply in Nebraska? (D.Neb.1994). After following the tortured and extensive The federal district court then course of the addressed litigation in state and in detail the state courts, statutes of relat- basic arises ing to death sentences: review of death sentences in weighing states such as Mississippi and Ne- clearly statutes create a two- braska where an invalid aggravating circum- tier sentencing process. Moreover, stance has been improperly weighed in with Nebraska statutes differentiate the roles to other and mitigating circum- performed by the state district court produced stances and a death penalty: Does sentencing panel and the Nebraska Su- the state power have preme And, Court. most importantly, the state law reweigh the remaining valid simply give do not aggravating and mitigating so Nebraska Supreme Court as to sustain that penalty? once resentence it has found that the sen- As I observed, Mississippi, through tencing panel engaged in harmful error in Supreme Court, has said “No.” its weighing of aggravating and mitigating 10. The Court of Mississippi State, wrote: 305, 498 (Miss.1986); So.2d 314 Ed- State, (Miss. wards v. 1983). 441 So.2d 92 acknowledge, as the United States Su- However, notion, express these cases the 862, based preme recognized Court opinion, in its that Stephens, on Zant v. 880-84, upheld this Court has death sentences in the 2733, 2744-47, 77 L.Ed.2d 235 ... face of aggravating invalid circumstance. long that so as there remains one even See, State, e.g. Nixon v. 533 So.2d valid aggravating circumstance this Court can (Miss.1988); State, Lanier v. 533 So.2d uphold the death sentence. The United States (Miss.1988); State, Faraga v. 514 So.2d Supreme Court has now unequivocally estab- (Miss.1987); State, Johnson v. lished in Clemons that an “automatic rule of (Miss.1987); So.2d Stringer v. affirmance in a weighing State would be inval- State, (Miss.1986); 500 So.2d Wileyv. id...." 494 U.S. at 110 S.Ct. at 1450. State, (Miss.1986); So.2d Irving State, Clemons v. 593 So.2d at 1006. mitigating and aggravating the “reweigh” Rather, law makes circumstances. purposes of resentenc- sentencing panel is the it clear ability to Indeed, the “re- from court, ing. aside “sentence,” the not must it because penalty a death sentence duce” deprived of when Petitioner and statute with Nebraska comply the not III, does his feder- right in state-created sentencing district requires the were violated. rights al due mitigating and aggravating weigh panel to great go to statutes First, Nebraska the § 29- circumstances, Neb.Rev.Stat. sentencing hear- the out how to lengths set Supreme Court is 2521.03, Nebraska the district by the conducted will be ing orders, which al- none of to three limited sen- requiring the even sentencing panel, through resentencing low general the forth to “set panel tencing Supreme Court: the Nebraska the of the outset procedure order Court; cases; Supreme penalty Death Neb. proceeding.” sentence determination the death when In all cases 1989). orders. (Reissue After § 29-2521 Rev.Stat. by the district imposed penalty has been the completed, been proceedings such shall, after court, Supreme Court the to issue required sentencing panel is the appeal, order the consideration findings determination, including written trial to discharged, new to prisoner be trial of the records fact, upon the “based for the day had, certain appoint or be Neb. sentencing proceeding....” and sentence. 1989). execution (Reissue § 29-2522 Rev.Stat. (emphasis Ne- add- § in the 29-2528 provision similar Neb.Rev.Stat. is no There ed). the Nebraska pertaining to statutes braska hence, absolutely no and, Supreme Court went to Legislature the Nebraska Since Legisla- the Nebraska think that to explicit reason about quite the trouble to authorize or intended authorized ture the Nebraska given remedies perform Supreme Court Nebraska error nonharmless in the event Court sentencing panel. function as same circum- aggravating/mitigating regarding remand (reduction only or of sentence provide stances Second, statutes Nebraska Nebraska statutes hearing), the Su- for a new where remedies two provide sentencing be construed disagrees with cannot preme Court explicitly mentioned cir- mitigating remedy that is aggravating panel on (a) those statutes. cumstances: sentence, Neb. give the may “reduce” Third, statutes the Nebraska 1989); (Reissue § 29-2521.03 to the “weighing” Rev.Stat. function (sen- trial” (b) for a “new may remand sentencing panel. Neb.Rev.Stat. § 29- contrast, Neb.Rev.Stat. direct tencing proceeding). the statutes § 29-2522. 1989). (Reissue to “review actions analyze” the dis- If the Nebraska 29-2521.01(5) & §§ panel. Neb.Rev.Stat. regarding sentencing panel with agrees 1989). (Reissue circumstances, 29-2521.02 mitigating aggravating any sen- may reduce Supreme Court in the only place “[t]he to be consistent Nebras- it finds is directed tence where requires aggravating [which ... “weigh” sections Legislature to, among other is Neb.Rev.Stat. mitigating circumstances ” judges jttdge or weigh “the things, where § circumstances]_” Neb. either mitigating “fix the are directed added). (emphasis deter- after imprisonment” § 292-2521.03 life Rev.Stat. “[wjhether things, other among mining, chooses If the exist mitigating circumstances sufficient pursuant the to reduce given weight the or exceed approach which such § 29-2521.03 Neb.Rev.Stat. Id. circumstances....” to the circumstances, is no authorization there added). (emphasis for the statutes Nebraska the regard, I phrase observe that the explain under grant what state of authority “judge judges” or as used in the foregoing the court believed itself empowered to en- only statute can mean the state district gage in appellate resentencing. Nowhere court sentencing panel must, pursu- does the Supreme Nebraska Court explain (Reissue ant § to Neb.Rev.Stat. by reference to the Nebraska death penal- 1989), of the trial judge consist or the trial ty laws how the court power derived the judge plus (or judges two other in the case engage resentencing, thereby disability disqualification of the trial depriving Reeves statutory of his entitle- judge, other three state district judges). ment to sentencing by The Nebraska statutes consistently use sentencing panel. words “Supreme Court” when referring to Hopkins, Reeves v. F.Supp. at 1195-98 Supreme See, Nebraska e.g., Court. (footnotes omitted). 29-2521.01(5), §§ Neb.Rev.Stat. 29- Judge Kopfs opinion then observes 2521.02, 29-2521.03, (Reissue 29-2521.04 Supreme Nebraska 1989). Court has never re- Thus, the difference in the statuto- ferred to state law aas basis for its reweigh- ry i.e., language, “judge judges” versus ing function. Id. at 1198-99. “Supreme Court,” makes it clear that the “judge words or judges” in section 29-2522 I, too, have searched the Nebraska case refer to the sentencing panel and not the agree law and with the district court in con- Supreme Nebraska Court. cluding that Supreme Nebraska

has never articulated a source of authority to In summary, reweigh in its state Nebraska statutes. plainly permit do not appellate resentenc- For its excellent scholarship and discourse ing when there is nonharmless error re- on law, majority gives these garding aggravating/mitigating circum- Nebraska federal judges this comment: “As (1) stances because the Nebraska statutes noted, the district court exceeded the bounds provide very specific procedure for sen- of its authority in rejecting the Nebraska tencing before the sentencing panel, but no Supreme Court’s of Nebraska procedure such provided for the appel- Op. law.” at 1427-28. court; (2) late the Nebraska statutes ex- This comment is undeserved. can One plicitly provide that the Nebraska Su- look in vain source preme Court’s powers remedial in the power authorizing Court of Ne- event of nonharmless error regarding ag- braska to reweigh. Nowhere does ma- gravating/mitigating are jority discuss Nebraska statutory sentencing limited to “reduction” of sentence or to procedures. Moreover, nowhere in opin- ordering a new (3) hearing; ion does the majority discuss statutory sen- “weighing” function explicitly given to tencing procedures or Nebraska dis- cases the state district panel, cussing state law as authorizing reweighing and the “review-and-analysis” function is (resentencing). allocated to the Court; Nebraska Supreme it, authorized to impose As I see where the a death sentence court, is the district has never interpreted its sentencing Court. statutes in regard to resentencing or re weighing, the federal so, courts are free to do b. indeed obligated to do so. See Bur The second persuaded reason I am v. Young, rus (7th 808 F.2d Cir. 1986) Nebraska law does not allow J., (Coffey, (“when re- concurring) review sentencing is that III ing is silent federal writ of corpus habeas we are the matter. Nowhere in Reeves III frequently does upon called to interpret state law Court explicitly that manner are performing confront of whether Nebraska our function as a appellate court”); law allows appellate resentencing. No- see Davis, also Banner v. 886 F.2d where does Cir.1989) (contrasting prior case where (1) trial have his statutory right to: had a law interpreted state permissibly had court including his three-judge panel judge a courts the state in which “narrow situation in circum- expression on judge consider give a clear trial had failed below beyond proven a where state facts case on present stances based the issue” analyzed and him carefully to sentence considered and had doubt reasonable Young, statues); v. Cole findings; and scope of state based on those cf. Cir.1987) (7th (refuting sentencing panel n. 7 re- F.2d of that determination failing to majority was that criticism Supreme Court. dissent’s in the Nebraska viewed of state by law, these are not by abide While created question claiming state law exclusively right[s] of “procedural court). by state pro- unanswered concern,” liberty left they are interests Amendment. by the Fourteenth tected depart Thus, did not court district examining in proper function its from 1486, 984 F.2d Hopkins, v. Rust in this interpreting Cir.1993). Su- prior Nebraska No proceeding. habeas sentencing pro- The Nebraska two-tiered duty. that foreclosed decision preme Court liberty in hav- a interest first created cedure find- particular judges ing panel a make II. by appellate not be cured ings which could fol addition, court the district In right to and, secondly, a constitutional review by another down precedent laid lowed review of the sen- meaningful appellate a relating to a Nebraska panel of this said: The Rust court tence. Hopkins, 984 Rust death sentence point of the two-tier The whole 967, 118 denied, (8th Cir.), determination that the initial procedure is (1993) and, my independent appellate by an is reviewed obligation in its majority failed judgment would sub- process two-tier court. The that case. to follow if verted mag- serving as Kopf, then Judge Richard fully perform work step could analysis in the Rust made judge, istrate precisely sentencing panel. Yet Judge adopted judge then The district case. in this case. happened what that with I am certain analysis. Kopf s Id. keenly Kopf Judge became background, relating death to the distinguish issues on Rust majority aware seeks to The on Reeves. imposed has attempted sentences distinction facts but such its underpinning of crucial to the application no panel in im- Rust, the state sen- follows two-tier that Nebraska Rust aggravating circum- found posing death scheme, a criminal defendant giving tencing than proof less by a standard stances be sentenced This erroneous doubt. beyond reasonable of dis- panel (reweighed) resentenced Su- by the Nebraska reweighed proof was meaning- receive further to judges and trict beyond a sufficiently proved preme Court appellate review. ful reinstated the and it doubt reasonable Rust, at 1487-89. 984 F.2d penalty. Rust properly relied The district Gibson, judges, John R. of three panel ruling. A Loken, opinion in an Lay and unanimous Gibson, grant of affirmed Judge R. John III. claim of notwithstanding the relief habeas applied noted, the district As I have Hopkins through Warden to bar of its reasons as one Rust Mississippi 494 U.S. reweighing Nebraska. (1990), the re- 1441, 108 L.Ed.2d Nebras- analysis performed weighing aptly observed theAs Supreme Court. commented Rust, and followed has read statutes Court reviewed sen- reweigh defendant’s attempted to that Rust: and determined tenee after the issuance of the denied, Rust decision 697_ by this circuit. The opinion district court See, also, Hop Reeves v. stated: kins, (D.Neb.1994). 871 F.Supp. 1182 That leaves this court options with the Subsequent III, to Reeves the Nebraska performing a harmless analysis error

Supreme Court announced it would no remanding the cause to the district court longer engage appellate resentencing as for a new hearing. See State Eighth a result Circuit decision in Reeves, 239 Neb. 476 N.W.2d 829 Hopkins. Moore, Rust v. State v. denied, cert. (1993). Neb. 502 N.W.2d 227 While 121 L.Ed.2d 71 ... asserting elect that “we have authority perform analysis. harmless error resentence analyzing and reweighing and mitigating factors of Ryan, 534 N.W.2d at 796. case,” id., Neb. It is odd jurisprudence majority Supreme Court stat gives here so little credence to a opin- ined Moore longer would no do so ion of Eighth Circuit while district judges light Hopkins. Rust v. The court judges fíne of the Nebraska Supreme made it disagreed clear that it with Rust v. Court have little difficulty in interpreting the Hopkins, but recognized also that it would language of the Rust case to mean that the judicial abe waste of proceed resources to Supreme Nebraska Court will violate pris- appellate resentencing light of the process oner’s due rights by barring that holding in Rust because “the federal court prisoner’s right resentencing to death or likely Id., would reverse.” 243 Neb. at the sentencing panel and thereafter to 683, 502 N.W.2d at 230. meaningful appellate review, except for a only opinion basis for the expressed review for harmless error. in Moore that I add I comment. personally high Court had under state law to regard, my as do brothers and sister on this engage in appellate resentencing was a circuit, for the distinguished justices of the Id., citation to Reeves III. 243 Neb. at Court. If that court And, N.W.2d at 228-29. as noted should make an analysis of the Nebraska earlier, for basis resen- determine that those au- laws tencing in Reeves III was thorize high court of Ne- opinion Court’s in Clemons. Accordingly, braska, no judge can overrule that Moore is no more illuminating than the decision on state law. But until such a result opinions earlier reached, quite unlikely given the state law basis for the text of statutes, the relevant I believe resentencing. that the Nebraska Supreme Court in its cur- I am thus convinced that none of the practice rent following a federal opinions of the process constitutional requirement due in as- have articulated a state law ap- basis for signing reweighing (resentencing) in death pellate resentencing. sentence cases to the initial sentencing panel. Reeves v. Hopkins, 871 F.Supp. at 1199. I believe that the majority opinion serves Finally, I would add the additional lan- to confuse and great create uncertainty in guage of the Nebraska Supreme Court as the law of sentencing person to death in written in Ryan, State Nebraska, Neb. where uncertainty is now absent. (1995): N.W.2d 766

However, the U.S. Appeals Court of

the Eighth Circuit has held

reweighing violates a defendant’s penal- Nebraska’s death ty sentencing statutes. See Hop- Rust v.

kins, 984 Cir.1993),

Case Details

Case Name: Randolph K. Reeves, Appellee/appellant v. Frank X. Hopkins, Warden of the Nebraska Penal and Correctional Complex, Appellant/appellee

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 8, 1996

Citation: 76 F.3d 1424

Docket Number: 95-1098, 95-1188

Court Abbreviation: 8th Cir.