1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3642

___________

Michael W. Ryan, *

*

Petitioner - Appellant, *

* Appeal from the United States 

v. * District Court for the District 

* of Nebraska.

Harold W. Clarke, Director, State of *

Nebraska Department of *

Correctional Services *

 *

Respondent - Appellee. *

___________

 Submitted: June 17, 2004

 Filed: October 29, 2004 

___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

Petitioner-Appellant Michael W. Ryan, a state prisoner under a sentence of

death, appeals the district court’s1

 denial of habeas relief. On appeal, Ryan argues

that ex parte meetings with members of the victims’ families by the state judge who
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presided over his capital murder trial deprived him of a fair sentencing hearing. Ryan

also alleges that he was not competent to stand trial or proceed with his habeas corpus

proceeding. However, since the Nebraska courts did not make “an unreasonable

determination of the facts in light of the evidence presented in the State court

proceedings,” 28 U.S.C. § 2254(d)(2), nor apply “clearly established Federal law, as

determined by the Supreme Court of the United States” in an unreasonable manner,

28 U.S.C. § 2254(d)(1), we affirm.

I. Background

On April 10, 1986, a jury convicted Ryan of first degree murder in the death

of James Thimm. Thimm died April 29, 1985, after Ryan and four others tortured

him for three days. The state of Nebraska also charged Ryan with the murder of Luke

Stice. Ryan entered a plea of nolo contendere to the second degree murder of Stice.

The Nebraska Supreme Court set forth the underlying facts of the crimes in its

opinion on direct appeal, State v. Ryan, 444 N.W.2d 610 (Neb. 1989) (Ryan I), and

on appeal of Ryan’s first motion for post conviction relief, State v. Ryan, 534 N.W.2d

766 (Neb. 1995) (Ryan II). We granted a certificate of appealability as to three

issues: 1) the application of the Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA); 2) Ryan’s competency; and 3) the effect of any misconduct by the

trial court in holding the ex parte meeting with the victims’ families prior to

sentencing. We address in detail only facts that are relevant to these issues. 

Judge Robert T. Finn presided over Ryan’s trial. Judge Finn was to sentence

Ryan for both the first degree murder of Thimm and the second degree murder of

Stice. On September 10, 1986, following Ryan’s conviction for the Thimm murder,

one of Ryan’s trial attorneys, Richard Goos, filed a motion asking Judge Finn to

disqualify himself from Ryan’s sentencing. Goos argued that an ex parte August

meeting between Judge Finn and Stice’s family required Judge Finn to disqualify

himself.
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On September 15, 1986, Judge Finn considered the motion to disqualify

himself. Goos expressed concern that Thimm’s sentencing had been discussed during

the meeting with the Stice family. Judge Finn overruled the motion and stated that

he had not discussed Thimm’s sentencing at the ex parte meeting. The sentencing

hearing took two days, concluding on September 16, 1986. On October 16, 1986,

Judge Finn sentenced Ryan to death for the murder of Thimm. Ryan had already been

sentenced to life imprisonment for the murder of Stice. 

Ryan appealed his conviction and sentence. In his appeal, he raised the issue

of judicial misconduct based on the ex parte meeting, the fact that Judge Finn turned

his back on Ryan during Ryan’s testimony at trial, and Judge Finn’s failure to

disqualify himself from sentencing. The Nebraska Supreme Court affirmed Ryan’s

conviction and sentence on direct appeal. Ryan I, 444 N.W.2d at 656.

On October 19, 1990, Ryan filed his first motion in the Nebraska trial court for

post conviction relief, which included Ryan’s claims of judicial misconduct in

sentencing. The case was referred to retired Judge Dewayne Wolf. Ryan’s appointed

attorney, Robert Creager, investigated the issue of possible ex parte meetings between

Judge Finn and members of both victims’ families. As part of this investigation,

Creager met with Judge Finn. Judge Finn told Creager that he had not held any ex

parte meetings with the Thimm family. On April 27, 1993, Judge Finn signed an

affidavit attesting to the fact that he had not held any ex parte meetings with the

Thimm family. Judge Wolf denied Ryan’s first motion for post conviction relief. 

Ryan appealed. On appeal, Ryan again asserted that Judge Finn’s refusal to

disqualify himself from the sentencing hearing deprived Ryan of a fair sentencing

procedure. Ryan also alleged that he had been deprived of his right to effective

assistance of counsel because trial counsel failed to adequately raise the issue of

judicial misconduct regarding Judge Finn’s ex parte communications. The Nebraska

Supreme Court affirmed the district court’s decision, concluding that Ryan was not
2

The court had addressed only the meeting with the Stice Family in Ryan I

and Ryan II.

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prejudiced by the ex parte meeting between Judge Finn and the Stice family. The

court held that it had addressed the ex parte meeting issue on direct appeal and that

Ryan was not entitled to relitigate the same issues in a post conviction proceeding.

Ryan II, 534 N.W.2d at 460-61. 

On November 17, 1995, Ryan filed a pro se petition for a writ of habeas corpus

and stay of execution in federal court. The federal district court appointed counsel

to represent Ryan. On April 1, 1996, Ryan’s counsel filed an amended habeas

petition. The amended petition raised claims relating to competency. Ryan did not

raise issues regarding his competency in his first motion for state post conviction

relief. In addition, the petition included new information and allegations regarding

ex parte contact between Judge Finn and the victims’ families. In a deposition taken

by Ryan’s appointed counsel, Thimm’s foster cousin, Daneda Heppner, testified that

she and another member of the Thimm family met with Judge Finn in May 1986.

Heppner corroborated her information with a letter dated May 12, 1986, from

Heppner to her family. In her letter, she informed them of the proceedings and her

meeting with Judge Finn.

A federal magistrate judge found that Ryan had not fairly presented the factual

basis for the judicial misconduct claim to the Nebraska Supreme Court. It was not

evident whether Ryan had exhausted all of the state court remedies available to him

regarding a meeting between Judge Finn and members of the Thimm family.2

Accordingly, the district court gave Ryan the option of either withdrawing the

amended petition or dismissing the action without prejudice to pursue the new

judicial misconduct claim in state court. Ryan moved to dismiss his petition without

prejudice, and the court granted his motion. 
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On November 7, 1996, Ryan filed a second motion for post conviction relief

in the state trial court. Judge Gerald E. Moran was appointed to hear the motion.

Judge Moran held an evidentiary hearing. Judge Finn testified that he had no

recollection of an ex parte meeting, but based on the Heppner letter, such a meeting

must have occurred. Judge Finn also testified that he had no recollection of the

meeting when he overruled the motion to disqualify himself on September 15, 1986.

Judge Moran found that an improper ex parte meeting did occur on May 9,

1986, between Judge Finn and Thimm family members. Judge Moran concluded,

however, that any claims related to the May 9 meeting were procedurally barred

because Ryan and his counsel knew or reasonably should have known about the May

9 meeting during the direct appeal and the first post conviction proceedings. In the

alternative, Judge Moran determined that even if the ex parte meeting claim was not

procedurally barred, Ryan suffered no prejudice as a result of the meeting with the

Thimm family or Finn’s refusal to recuse himself. 

Judge Moran also addressed Ryan’s competency claims. He concluded that the

competency claims were procedurally barred because Ryan could have raised the

issue previously and had failed to do so. Judge Moran found, in the alternative, that

Ryan was competent to stand trial, such that even if the competency claims were not

barred, they did not entitle Ryan to relief. 

On September 10, 1999, the Nebraska Supreme Court affirmed this denial of

relief. State v. Ryan, 601 N.W.2d 473 (Neb. 1999) (Ryan III). In Ryan III, the

Nebraska Supreme Court rejected the trial court's determination that the claims

related to the May 9 meeting between Judge Finn and the Thimm family members

were procedurally barred. The Nebraska Supreme Court did conclude, however, that

Judge Moran's alternative holding that there was no showing of actual bias was not

clearly erroneous, and that the factual record supported that conclusion. As to the

competency claim, the Nebraska Supreme Court agreed that the claim was
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procedurally defaulted. The Nebraska Supreme Court concluded: “Allowing Ryan

to first raise the issue of competency after more than ten years of appellate litigation,

during which Ryan chose not to raise the issue would make a mockery of the finality

of the judicial process." Ryan III, 601 N.W.2d at 493.

Having exhausted his state remedies, Ryan filed another petition for a writ of

habeas corpus. The federal district court denied his petition. We granted a certificate

of appealability. We now address the issues of the applicability of the AEDPA,

whether Ryan’s competency claims were procedurally defaulted, whether Ryan was

competent to stand trial, whether Ryan is presently competent to stand trial in his

habeas proceeding and whether Judge Finn’s ex parte meetings with the victims’

families violated Ryan’s rights to a fair sentencing.

II. Applicability of the AEDPA

The AEDPA applies only to habeas petitions filed after April 24, 1996, the date

the AEDPA became effective. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.

2001) (“AEDPA’s provisions apply to all habeas corpus petitions filed after Act’s

effective date.”). We held in Weaver that “this rule applies even when a prisoner’s

original petition was filed prior to AEDPA’s effective date and dismissed without

prejudice for failure to exhaust state remedies.” Id.

In this case, Ryan filed his first petition for post conviction relief on November

17, 1995, prior to the effective date of the AEDPA. At that time, Ryan had not yet

exhausted his state court remedies. Consequently, the federal district court dismissed

his petition so that he could exhaust his claims at the state level. Ryan returned to

state court to again seek post conviction relief in the Nebraska state courts. On

December 10, 1999, Ryan filed another habeas petition in federal court. This petition

came after the AEDPA became effective. Under our decision in Weaver, the AEDPA

is applicable. 
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Ryan asserts that his 1999 petition should enjoy the benefit of his 1995 filing

date. We disagree for two reasons. First, Ryan’s 1999 habeas petition contains added

claims which do not arise out of the same conduct, transaction, or occurrence as the

claims in the 1995 petition. These new claims cannot relate back to the original

claim. United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999); Fed. R. Civ. P.

15(c)(2). Second, Ryan’s argument is the exact argument we rejected in Weaver.

Weaver, 241 F.3d at 1029 (holding that the AEDPA applies “even when a prisoner’s

original petition was filed prior to AEDPA’s effective date and dismissed without

prejudice for failure to exhaust state remedies.”).

Ryan also argues that Woodford v. Garceau, 538 U.S. 202 (2003), overrules

Weaver on this point. The Supreme Court held in Woodford that a case is not

pending until an actual petition for habeas relief is filed in federal court. The Court

stated in Woodford that: 

[W]hether AEDPA applies to a state prisoner turns on what was before

a federal court on the date AEDPA became effective. If, on that date,

the state prisoner had before a federal court an application for habeas

relief seeking an adjudication on the merits of the petitioner’s claims,

then amended § 2254(d) does not apply. Otherwise, an application filed

after AEDPA’s effective date should be reviewed under AEDPA, even

if other filings by that same applicant . . . were presented to a federal

court prior to AEDPA’s effective date.

Id. at 1402. The holding in Woodford is consistent with our ruling in Weaver that the

AEDPA’s provisions apply to all habeas petitions filed after the AEDPA’s effective

date. This includes petitions a prisoner filed after a district court dismissed an earlier

petition without prejudice for failure to exhaust state remedies. Thus, the AEDPA

applies in this case. 
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Federal courts are “bound by the AEDPA to exercise only limited and

deferential review of underlying state court decisions” in habeas corpus cases. Jones

v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004). See 28 U.S.C. § 2254; Williams

v. Taylor, 529 U.S. 362, 402-13 (2000). Federal review of underlying state court

decisions is limited because under the AEDPA, federal courts have the power to grant

habeas relief only if one or both of two conditions is satisfied. We may grant habeas

relief on a “claim that was adjudicated on the merits in State court proceedings,” 28

U.S.C. § 2254(d), if the state court’s decision was: 1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or 2) based on “an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2).

We have explained the standard for when a decision is “contrary to”

established Supreme Court precedent or involves an unreasonable factual

determination on a number of occasions, including in Jones, in which we stated:

A state court decision is contrary to clearly established Supreme Court

precedent if "the state court arrives at a conclusion opposite to that

reached by [the] Court on a question of law or . . . decides a case

differently than [the] Court has on a set of materially indistinguishable

facts." Williams, 529 U.S. at 413. A state court decision involves an

unreasonable application of clearly established Supreme Court precedent

"if the state court identifies the correct governing legal principle from

[the] Court's decisions but unreasonably applies that principle to the

facts of the prisoner's case.” Id. Finally, a state court decision involves

"an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings," 28 U.S.C. § 2254(d)(2), only

if it is shown that the state court's presumptively correct factual findings

do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Boyd v.

Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001) ("There is sufficient

record evidence to support such a finding and, thus, it would not
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constitute an unreasonable determination of the facts in light of the

evidence presented at trial."). 

Jones, 359 F.3d at 1011-12 (alteration in original). We apply this analysis to the

present case.

III. Competency Claims

The Nebraska Supreme Court determined that the competency issue was

procedurally defaulted. Ryan relies on Vogt v. United States, 88 F. 3d 587 (8th Cir.

1996), to argue that this conclusion by the Nebraska Supreme Court was an

unreasonable application of clearly established federal law. The Vogt court rejected

the argument that a petitioner waives or defaults a mental competency claim when he

fails to raise it in the district court or on direct appeal. The Vogt court cited Adams

v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985) (citing Pate v. Robinson, 383

U.S. 375 (1966)), for the proposition that the procedural default rule does not

preclude a defendant who fails to request a competency hearing at trial, or fails to

pursue a claim of incompetency on appeal from raising the issue through post

conviction proceedings. The rationale behind this ruling was that a defendant who

is truly incompetent does not have the ability to knowingly or intelligently waive his

right to have the competency issue determined at trial. Pate, 383 U.S. at 384.

Pate stands for the specific proposition that a defendant who fails to raise

competency at trial or on direct appeal does not waive his right to raise the issue in

post conviction relief proceedings. However, Pate does not deal with a factual and

procedural situation such as the present case, where the defendant has already gone

through a full post conviction proceeding and is now raising the competency issue

only in a second proceeding in the Nebraska courts. In fact, in the initial post

conviction action, Ryan claimed that his trial counsel was ineffective for even raising

an insanity defense. Given the unusual procedural posture of this case, where the

competency issue was not raised in the initial post conviction proceeding, we are
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reluctant to find that the Nebraska Supreme Court's determination of procedural

default was an unreasonable application of clearly established Supreme Court

precedent. 

However, even if we were to assume that the Nebraska Supreme Court was

incorrect in its determination of procedural default, there is more than ample evidence

in the record to support Judge Moran's alternative holding that Ryan was competent

and that his constitutional rights were not violated by the failure to hold a competency

hearing. The test as to whether a defendant is competent to stand trial is whether the

defendant has a “sufficient present ability to consult his lawyer with a reasonable

degree of rational understanding -- and whether he has a rational as well as factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402, 402 (1960). As the petitioner in a habeas action, Ryan has the burden of

demonstrating that the state courts’ findings of competency are not supported by the

record. 28 U.S.C. § 2254(d)(2), (e)(1). Ryan fails to meet this burden.

The record shows that Judge Moran, the judge who presided over Ryan’s

second state post conviction action, conducted a thorough review of the record and

reached a reasonable conclusion based on that record. The expert testimony reviewed

by Judge Moran offers evidence to support a finding that Ryan was competent. The

state’s experts, including Dr. Emmett Kenney, always asserted that Ryan was

competent. The state’s experts also pointed to the administration of the Minnesota

Multiphasic Personality Inventory (MMPI), a respected objective psychological test.

Results of this test showed that while Ryan had an odd personality, he had no mental

illness that would cause him to be incompetent.

A number of other experts examined Ryan, including Dr. William Logan,

M.D., a psychiatrist, and Dr. Robert E. Schulman, Ph.D., a psychologist, both hired

by the defense. Only these two experts stated that Ryan was incompetent, and they

only did so years after the trial. Judge Moran found:
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 . . . it does appear that strikingly absent in this case is even one opinion

from anyone other than the defendant’s experts, Drs. Logan and

Schulman, that he was not competent to stand trial . . . Yet, the record

is clear that neither doctor ever expressed such an opinion at a time

when it would have been an issue for the defense to explore.” Nebraska

v. Ryan, No. 2390, slip. op. at 40-41 (Neb. Dist. Ct. for Richardson

County). 

In fact, Dr. Logan originally testified he did not believe that Ryan’s mental illness

“would have prevented him from having the capacity to understand . . . that [he] could

be indicted for murder and punished.” Id. at 28.

Ryan’s trial counsel provide further evidence that a finding of competency was

reasonable. Neither Richard Goos nor Louie Ligouri, Ryan’s trial attorneys, observed

anything that caused them to suspect Ryan was incompetent. Goos testified that Ryan

had little or no difficulty communicating with his lawyers. Goos said, “what

delusions [Ryan] had about Yaweh . . . never seemed to interfere with our

conversations or his understanding of the case or what was at stake.” Ryan v. Clarke,

281 F. Supp. 2d 1008, 1032-33 (D. Neb. 2003) (Ryan IV) (alteration and omission in

original). Additionally, Robert Creager, Ryan’s attorney for the first post conviction

proceeding, examined the issue of competency and decided not to raise the issue.

Rather, he alleged that trial counsel had been incompetent for raising an insanity

defense. Although not medical experts, it seems notable that none of Ryan’s

attorneys, after meeting Ryan or reviewing the record felt it was appropriate to raise

the issue of competency at trial or in the first post conviction proceeding.

Further, the district court correctly determined that evidence of Ryan’s

competency can be found in the testimony before Judge Moran that Ryan counseled

his son to lie at his trial by blaming others for his conduct. Ryan IV, 281 F. Supp. 2d

at 1033.
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Judge Moran reasonably concluded that: 1) Logan and Schulman’s opinions

were not credible; 2) the experts’ opinions were not supported by the experts’

observations at the time of trial; 3) the MMPI tests and state experts were credible;

4) Ryan’s record of participation in trial and efforts to avoid execution by trying to

convince his son to lie about his role in criminal activities demonstrated that Ryan

was fully aware of the gravity of the charges he faced and the possible punishment;

and 5) he was competent to participate in his own defense. Given this evidence, a

court could reasonably find that Ryan possessed the capacity to understand the

charges against him, had the ability to cooperate with his attorneys, and could prepare

a rational defense. A court could make these findings even though Ryan may have

held unusual beliefs or even been delusional. Thus, Ryan was competent to stand

trial and remains competent today. 

We conclude that the Nebraska Supreme Court reasonably determined that

Ryan was competent to stand trial and remains so today.

IV. Ex Parte Meetings

Judge Finn held impermissible and inappropriate ex parte meetings with the

victims’ families. This is undisputed in light of Judge Finn’s testimony at the

evidentiary hearing. It is also clear that Judge Finn signed an affidavit claiming that

he never had ex parte communications with the victims’ families. This conduct was

improper under Nebraska law. Ryan III, 601 N.W.2d at 486. 

In light of this impropriety, we might decide this case differently if we were

considering it on direct appeal. However, under the highly deferential standard

mandated by the AEDPA, we cannot find that the Nebraska Supreme Court’s decision

was an unreasonable application of controlling Supreme Court precedent, nor did it

involve an unreasonable determination of the facts in light of the evidence presented.

28 U.S.C. § 2254(d). In this case, the Nebraska Supreme Court’s finding that the ex
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parte proceedings did not show actual bias was not an unreasonable factual

determination in light of the evidence presented in the state court proceedings.

There is sufficient evidence in the record to support the Nebraska state courts’

conclusion that any possible prejudicial effect of the ex parte meetings on Judge

Finn’s sentencing was minimal given the nature of the evidence presented at trial. As

the district court explained, “Judge Finn was not presented with any material

information about issues pertinent to Ryan’s death sentence during the Thimm or

Stice family meetings that had not already been presented to Judge Finn in earlier

court proceedings.” Ryan IV, 281 F. Supp. 2d at 1036-37. This case involves

horrific instances of torture and murder. It was not unreasonable for the Nebraska

state courts to conclude that there was little the victims’ families could say that would

have had a prejudicial effect on Judge Finn given the evidence and testimony he had

already heard. The Nebraska Supreme Court reasonably concluded that Judge Finn

could not have been presented with any evidence at the May 9, 1986 meeting that had

not already been presented to him, and that he made his sentencing decision based

upon the documentary evidence and the record before the trial court. Ryan III, 601

N.W.2d at 490.

Ryan also argued that the ex parte communications showed that Judge Finn had

an improper bias against him, and that this bias deprived him of a fair sentencing.

“[C]learly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), recognizes not only actual bias, but also the

appearance of bias, as grounds for disqualification. See, e.g., In re Murchison, 349

U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due

process. Fairness of course requires an absence of actual bias in the trial of cases.

But our system of law has always endeavored to prevent even the probability of

unfairness.”). 
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As this court stated in Jones v. Luebbers, 359 F.3d 1005, 1012-13 (8th Cir.

2004), 

Although clearly established, this standard is inherently vague.

Murchison, 349 U.S. at 136, 75 S.Ct. 623 (noting that the impermissible

interest that might cause an average person as a judge to stray from

impartiality “cannot be defined with precision.”). Application of this

vague standard, when viewed through the deferential lens of Williams

v. Taylor and the AEDPA, necessarily leaves state courts considerable

latitude to pronounce rulings that do not contradict, and are reasonable

applications of, Murchison and [Tumey v. Ohio, 273 U.S. 510 (1927)].

This is especially true when the allegations of bias do not relate to

pecuniary interests or procedural infirmities, but rather, relate to alleged

personal animosity and instances of stern courtroom administration.

In instances of “closed proceedings that evade outside review, the appearance of

impartiality is great . . . and due process may require disqualification.” Id. at 1013.

The peculiar facts of this case, however, are different because the egregious nature

of the evidence presented at trial minimized any possible effect of the ex parte

meeting.

The Nebraska state courts reasonably concluded that any possible appearance

of impartiality, in this case, was de minimis. The “opinions formed by the judge on

the basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). In this

instance, the state courts could reasonably find that any disdain Judge Finn possessed

for Ryan was motivated by evidence and testimony presented at trial. It is unlikely

that any statements by the families could have altered Judge Finn’s sentencing. 
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Thus, although we believe that Judge Finn’s ex parte meeting with the victims’

families was improper, we hold that under the highly deferential standard mandated

by the AEDPA, we cannot find that Nebraska Supreme Court’s conclusions were an

unreasonable application of controlling Supreme Court precedent, nor did they

involve an unreasonable determination of the facts in light of the evidence presented.

28 U.S.C. § 2254(d).

The judgment of the district court is affirmed.

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