The Honorable Lyle E. Strom, United States District Judge for 1

the District of Nebraska.

____________

Nos. 96-1305/1306

____________

C. Michael Anderson, *

*

Appellee/Cross-appellant,*

* Appeals from the United States

v. * District Court for the

* District of Nebraska

Frank X. Hopkins, *

*

Appellant/Cross-appellee.*

____________

 Submitted: October 21, 1996

 Filed: May 12, 1997

____________

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and BEAM,

Circuit Judges.

____________

McMILLIAN, Circuit Judge.

The State of Nebraska (state) appeals from a final order and judgment

entered in the United States District Court for the District of Nebraska 1

granting partial relief on a petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 by C. Michael Anderson (petitioner). Anderson

v. Hopkins, No. CV 84-L-741 (D. Neb. Jan. 16, 1996) (Memorandum Opinion)

(hereinafter "slip op."); id. (Order and Judgment). For reversal, the

state argues that the district court erred in holding that it was not

harmless beyond a reasonable doubt for the Nebraska state 
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courts to consider an unconstitutionally vague statutory aggravating factor

in sentencing petitioner to the death penalty. Slip op. at 48 (reducing

petitioner's sentence from death to life imprisonment, subject to an

opportunity for the Nebraska Supreme Court, within ninety days, to reweigh

the aggravating and mitigating circumstances, conduct a harmless error

review, or remand the case to the state trial court for resentencing).

Petitioner cross-appeals. He argues that the district court erred in: (1)

permitting the Nebraska Supreme Court an opportunity to conduct a harmless

error review; (2) denying on the merits his claims of federal

constitutional and statutory violations resulting from the state trial

court's admission of Lon Reams's testimony at trial; (3) denying on the

merits his claims of ineffective assistance of trial counsel; and (4)

denying his remaining claims for habeas relief because they have been

procedurally defaulted and the default is not excused by cause and

prejudice nor would its enforcement result in a fundamental miscarriage of

justice, or because they otherwise may not be raised in this § 2254 action.

We modify the order and judgment of the district court and, for the reasons

stated below, affirm the order and judgment as modified.

Background 

The following facts are largely taken from the Nebraska Supreme

Court's decision affirming petitioner's conviction and sentence. State v.

Anderson, 296 N.W.2d 440 (Neb. 1980), cert. denied, 450 U.S. 1025 (1981).

On November 2, 1975, the body of Ronald J. Abboud, petitioner's employer,

was discovered in a rural area near Omaha, Nebraska. He had been shot in

the head, back, and neck with a .22 caliber pistol. By June 1976,

petitioner and his friend, Peter Hochstein, were suspects in the police

investigation of Abboud's murder. Abboud's family hired a private

investigator, 
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Dennis Whelan, and instructed him to investigate petitioner's and

Hochstein's involvement in the crime. Whelan was informed that Lon Reams

was associated with petitioner and possibly also involved. At that time,

the police already knew about Reams and had interviewed him as part of

their investigation.

Whelan's investigation of petitioner and Hochstein included, among

other things, wiretapping their apartments. Whelan also interviewed a

woman named Mila Dickman who was employed by petitioner and was closely

associated with Reams. In the spring of 1977, Whelan informed the county

prosecutor, Samuel Cooper, about his suspicions of petitioner, Hochstein,

and Reams; according to Cooper's testimony at a later suppression hearing,

however, Whelan did not provide Cooper with any new information. Later,

Cooper instructed Whelan to cease his wiretapping operation. Whelan also

learned from Cooper that there was a possibility that Reams would be

granted immunity if Reams were to testify against petitioner and Hochstein.

Whelan relayed this information to Reams and, at the same time, falsely

told Reams that he (Whelan) had overheard petitioner and Hochstein

conspiring against Reams and that he knew the prosecutor had a strong case

against Reams. After consulting with an attorney, Reams met with Whelan

and admitted his involvement in the murder of Abboud. Later that day,

Reams provided Cooper with a statement regarding the murder of Abboud.

Reams agreed to testify against petitioner and Hochstein under a

grant of immunity. The facts, according to his testimony, are summarized

as follows. Petitioner was extremely hostile toward Abboud because of

Abboud's unfair business practices, a matter which petitioner, Hochstein,

and Reams discussed. At some point, Hochstein fixed Reams's .22 caliber

Ruger pistol and offered to murder Abboud for money. Petitioner agreed to

pay Hochstein $1,500 to kill Abboud. It was agreed that Hochstein would

pose as a 
 The aggravating circumstances in Neb. Rev. Stat.

2

§ 29-2523(1)(c), (d) are fully set forth as follows:

(c) The murder was committed for hire, or for pecuniary

gain, or the defendant hired another to commit the murder

for the defendant;

(d) The murder was especially heinous, atrocious, cruel,

or manifested exceptional depravity by ordinary standards

of morality and intelligence. 

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prospective purchaser of a remote piece of rural land which Abboud's real

estate company was selling, request that Abboud drive him to the site, kill

Abboud once there, and then telephone Reams who was to telephone petitioner

and pick up Hochstein. Their first attempt failed because Abboud was not

alone when he showed Hochstein the property. Hochstein then scheduled

another visit to the site and, when Abboud alone drove Hochstein there,

Hochstein murdered Abboud and dumped Abboud's body in a creek bed. The

body was discovered three days later.

The jury found petitioner and Hochstein each guilty of first degree

murder. Following the trial, a sentencing hearing took place before a

three-judge panel, which unanimously sentenced petitioner and Hochstein

each to the death penalty. State v. Anderson, Nos. 99-392/99-394 (Neb.

Dist. Ct. Aug. 24, 1978) (Order of Sentencing). The sentencing court held

that two statutory aggravating factors applied to petitioner's case: (1)

petitioner hired another to commit the murder, as contemplated in Neb. Rev.

Stat. § 29-2523(1)(c) (hereinafter referred to as § (1)(c)), and (2) the

murder "manifested exceptional depravity by ordinary standards of morality

and intelligence," within the meaning of the second prong of Neb. Rev.

Stat. § 29-2523(1)(d) (hereinafter referred to as § (1)(d)). Petitioner 2

and Hochstein appealed to the Nebraska Supreme Court, which unanimously

affirmed their convictions and sentences. State v. Anderson, 296 N.W.2d

at 454.
 In Moore v. Clarke, 951 F.2d 895, 897 (8th Cir. 1991), cert. 3

denied, 504 U.S. 930 (1992), the Eighth Circuit noted "[t]he

standard applied to Moore in 1980 was modified substantially six

years later by [State v. Palmer, 399 N.W.2d 706 (1986), cert.

denied, 484 U.S. 872 (1987)], and the changes found desirable by

the Nebraska Supreme Court in Palmer then demonstrate that the

standards applied to Moore were vague." 

 In Williams v. Clarke, 40 F.3d 1529, 1540 (8th Cir. 1994)

4

(Williams), cert. denied, 115 S.Ct. 1397 (1995), the district court

had granted the petitioner a writ of habeas corpus because the

death penalty in that case had been based in part upon a finding of

"exceptional depravity" under the second prong of Neb. Rev. Stat.

§ 29-2523(1)(d). On appeal, the Eighth Circuit held that, absent

Supreme Court authority to the contrary, this court is authorized

to use the constitutional harmless error standard when a state

sentencing court has considered an unconstitutionally vague portion

of an aggravating circumstance. The Williams court then went on to

conclude, in that case, that the sentencing court's consideration

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Petitioner originally filed the present habeas action in federal

district court in 1984. Petitioner, with leave of court, amended his

habeas petition in 1985 and 1986. In 1986, the state filed a response.

A magistrate judge subsequently stayed the petition pending a final

decision in an unrelated case which was pending before the Eighth Circuit

and involved the constitutionality of the second prong of § (1)(d), setting

forth the "exceptional depravity" aggravator. In 1991, the Eighth Circuit

disposed of that case, holding that the "exceptional depravity" language

of § (1)(d) was too vague to provide sufficient guidance to the sentencer

and, at the time the petitioner in that case was sentenced, that language

had not been construed by the Nebraska Supreme Court with sufficient

specificity to meet constitutional standards. Moore v. Clarke, 951 F.2d

895, 896-97 (8th Cir. 1991) (Moore) (denying petition for rehearing), cert.

denied, 504 U.S. 930 (1992).3

After the Eighth Circuit decided Moore, the stay imposed in the

present habeas action was lifted. The state conceded that, in light of

Moore, the "exceptional depravity" aggravator had been improperly

considered by the sentencing panel, but argued that the error was harmless

beyond a reasonable doubt, as was the case in Williams v. Clarke, 40 F.3d

1529 (8th Cir. 1994) (Williams), cert. denied, 115 S.Ct. 1397 (1995).4
of the "exceptional depravity" factor was harmless beyond a

reasonable doubt and reversed the district court's decision to

grant habeas relief. Id. at 1541-42.

-6-

Upon review of both the sentencing 
-7-

court's and the Nebraska Supreme Court's written decisions, the district

court concluded: "[i]t is clear from those opinions that both the

sentencing court and the Nebraska Supreme Court placed considerable weight

on the exceptional depravity aggravator." Slip op. at 48. On that basis,

the district court reasoned: 

this Court cannot say that there is no reasonable possibility

that the aggravating circumstance 1(d) might have contributed

to the decision to impose the death penalty, and that is the

standard the Court is required to apply. For these reasons,

the Court believes that the petition for writ of habeas corpus

must be granted as to this issue. However, this does not

require a retrial or resentencing. It does require that the

petitioner's sentence be reduced to life imprisonment unless

within ninety (90) days of the date of this opinion, the

Nebraska Supreme Court either reweigh[s] the aggravating and

mitigating circumstances, conduct[s] a harmless error review,

or remand[s] the case back to the Douglas County District Court

for resentencing.

Id.

Providing detailed reasons, the district court denied all of

petitioner's remaining claims for habeas relief. Id. at 3-42, 48-50. This

appeal and cross-appeal followed. 
-8-

Discussion

State's appeal on harmless error issue

The state appeals the district court's holding that it was not

harmless error for the state sentencing court and the Nebraska Supreme

Court to consider the unconstitutional aggravator in their respective

decisions to impose and uphold the death penalty. The state argues that

the district court erred in focusing on whether the state courts placed

considerable weight on the invalid factor and whether that factor

contributed to their decisions. By contrast, the state argues, the test

under Williams, 40 F.3d at 1541, looks at whether the properly considered

valid factors were so overwhelming that the decision would have been the

same in the absence of the invalid factor. Although the only properly

considered aggravator was the § (1)(c) murder-for-hire factor, and the only

mitigating factor was that petitioner did not have a prior criminal record,

the state contends that the "exceptional depravity" aggravator played a

relatively minor role in both state courts' decisions. For example, the

state highlights the following statement by the sentencing court: "[t]he

evil inherent in the long planning of this murder, and in the deliberate

avoidance of opportunities to withdraw far overcomes the fact that, before

defendants began to plan this atrocity, defendants were law-abiding

citizens." State v. Anderson, Nos. 99-392/99-394, slip op. at 16 (Neb.

Dist. Ct. Aug. 24, 1978). Moreover, the state notes, the sentencing court

specifically observed that this type of cold, calculated, and dispassionate

murder plot was unprecedented in the Nebraska case law. Id. at 17. The

state also maintains that all of the circumstances that were considered by

the sentencing court in connection with the § (1)(d) "exceptional

depravity" factor were equally relevant to the § (1)(c) murder-for-hire

aggravator, which 
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was properly considered. Thus, the state concludes, the outcome of the

weighing process would have been the same even if the "exceptional

depravity" factor had not been separately considered. Turning to the

Nebraska Supreme Court's decision, the state notes strong language from

that opinion as well, and argues that the § (1)(c) murder-for-hire aspect

of the killing was particularly influential in that court's unanimous

decision to uphold the death penalty. The Nebraska Supreme Court explained

"the killing of Abboud was a business transaction and a most aggravating

circumstance within the meaning of § 29-2523." State v. Anderson, 296

N.W.2d at 454. The Nebraska Supreme Court further opined: 

[i]f ever a situation exists in which the imposition of the

death penalty is appropriate, it is clearly in the case of

"killers for hire." A careful review of the entire record in

light of both § 29-2523 and the previous decisions of this

court discloses that there are no mitigating factors in this

case which would justify not imposing the most severe penalty

for the most heinous crime[:] the absolute and willful killing

of a human for money. We believe the imposition of the death

penalty in this case is amply justified.

Id. Therefore, based upon the strong language employed by both the state

sentencing court and the Nebraska Supreme Court, and the fact that the

considerations related to the murder-for-hire aggravator were virtually the

same as those related to the "exceptional depravity" aggravator, the state

argues that the district court should have found harmless error because the

properly considered murder-for-hire factor was so overwhelming in

comparison to the mitigating factor that the outcome would have been the

same absent the "exceptional depravity" factor. 

 In response, petitioner argues that the district court properly

concluded that the use of the "exceptional depravity" factor was not

harmless beyond a reasonable doubt. Petitioner 
-10-

emphasizes that Nebraska is a pure "weighing" state -- in other words, the

state courts are required by state law to weigh the aggravating

circumstances against the mitigating circumstances in determining whether

the death penalty is appropriate in a given case. Petitioner cites Neb.

Rev. Stat. § 29-2522(2), which provides "[o]ne is not death eligible so

long as the weight of the statutory and nonstatutory mitigating

circumstances approaches or exceeds the weight of the statutory aggravating

circumstances." Petitioner argues that, because the sentencing court

viewed the § (1)(c) and § (1)(d) considerations as integrally related, the

whole weighing process was tainted by the unconstitutionally vague factor

and it is impossible to conclude that the outcome of that weighing process

would have been the same absent the invalid "exceptional depravity"

considerations. Petitioner distinguishes the present case from Williams

on the ground that, in Williams, the first prong of § (1)(d) and three

other valid aggravators were present. Petitioner also maintains that the

district court considered and rejected the state's argument that the

Nebraska Supreme Court treated the "exceptional depravity" aggravator as

having minor importance. In any case, petitioner asserts, the Nebraska

Supreme Court's opinion is fundamentally flawed insofar as it contains

legal generalizations which conflict with the constitutional requirement

of individualized sentencing in capital cases and the constitutional

prohibition against limits on the sentencer's discretion not to impose the

death penalty. Finally, petitioner notes that -- although Nebraska courts

are required to weigh, not count, aggravating and mitigating circumstances

-- it is nevertheless true that no Nebraska court has ever imposed the

death penalty on the basis of only one aggravating factor, which would be

the effect of reversing the district court's finding of no harmless error

in the present case. 
 Chapman v. California, 386 U.S. 18 (1967). 5

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Upon de novo review, we agree with the district court's recognition

in the present case of a reasonable possibility that the invalid aggravator

contributed to the state courts' decisions. Moreover, contrary to the

state's argument, the district court's analysis in the present case is not

inconsistent with Williams. The following quotation from Williams, 40 F.3d

at 1541, contains the "so overwhelming" language upon which the state

relies, and puts that language into its proper context. 

[I]n a federal habeas review where the state trial or

appellate court found no constitutional error and thus had no

reason to consider harmlessness, we apply the Chapman[5]

analysis to determine if the constitutional error that we have

identified requires habeas relief.

. . . .

We recognize the heavy burden the state bears in proving

that a constitutional error is harmless beyond a reasonable

doubt. . . . [T]he issue under Chapman is whether the sentencer

actually rested its decision to impose the death penalty on the

valid evidence and the constitutional aggravating factors,

independently of the vague factor considered; in other words,

whether what was actually and properly considered in the

decision-making process was "so overwhelming" that the decision

would have been the same even absent the invalid factor.

In the present case, the district court held that it could not say

that there was no reasonable possibility that the aggravating circumstance

in § (1)(d) might have contributed to the decision to impose the death

penalty. Implicit in this holding is the conclusion that the state has

failed to meet its burden of proving either that the state courts actually

rested their death penalty decisions on "the valid evidence and the

constitutional aggravating factors, independently of the vague factor

considered" or that 
 Clemons v. Mississippi, 494 U.S. 738 (1990). 6

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"what was actually and properly considered in the decision-making process

was 'so overwhelming' that the decision would have been the same even

absent the invalid factor." Id. Therefore, the district court's reasoning

was not materially inconsistent with Williams. In sum, we hold in the

present case that the state has not sufficiently demonstrated that

petitioner's sentence would have been the same under Nebraska state law

absent consideration of the invalid factor. We affirm the order and

judgment of the district court on this harmless error issue.

Petitioner's cross-appeal on independent harmless error review

As noted above, the district court, upon concluding that

consideration of the "exceptional depravity" factor was not harmless beyond

a reasonable doubt, ordered that petitioner's sentence be reduced to life

imprisonment "unless within ninety (90) days of the date of this opinion,

the Nebraska Supreme Court either reweigh[s] the aggravating and mitigating

circumstances, conduct[s] a harmless error review, or remand[s] the case

back to the Douglas County District Court for resentencing." Slip op. at

48. Petitioner, on cross-appeal, challenges only that portion of the

above-quoted language which permits the Nebraska Supreme Court to conduct

a harmless error review. Petitioner argues "[t]he grant of relief should

be modified to permit the Nebraska Supreme Court to conduct a Clemons[6]

reweighing of the aggravating and mitigating circumstances, if such

appellate resentencing is proper under state law, or to remand the case .

. . for resentencing." Brief for Appellee/Cross-Appellant at 12. 

Relying on Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.), cert. denied,

117 S. Ct. 307 (1996), the state argues in response: 
-13-

[i]f this court agrees with the district court that the error

in the use of the exceptional depravity aggravator was not

harmless, then we feel that we are bound by the district

court's determination that constitutionally harmless error is

not present. However, that is not the end of the options under

Clemons v. Mississippi, 494 U.S. 738 (1990). Clemons permits

a state appellate court [either to] perform a harmless error

analysis or to reweigh the mitigators and aggravators and

determine whether the scale tips in favor of death, or whether

the balance has been altered by the addition or removal of an

aggravator or mitigator so that it cannot find the error

harmless beyond a reasonable doubt. 

Reply Brief for Appellant/Cross-Appellee at 10.

In Reeves v. Hopkins, which sets forth a comprehensive analysis of

Nebraska's statutory scheme, this court explained "[a]s far as the federal

constitution is concerned, in a weighing jurisdiction, a state appellate

court may cure a constitutional deficiency arising from improper

applications or limitations of aggravating or mitigating circumstances in

a capital case by engaging either in reweighing, or in traditional harmless

error analysis." 76 F.3d at 1428 (footnote omitted) (citing Clemons, 494

U.S. at 754). This court also noted that "[s]tate appellate courts are not

required to reweigh, and may in certain cases find that remand is more

appropriate or is even required." Id. at 1430 n.8 (citing Clemons, 494

U.S. at 754 & n.5).

Thus, upon review of this issue raised by petitioner, we hold that

the district court's decision comports with Clemons, as interpreted in

Reeves v. Hopkins, insofar as it provides the Nebraska Supreme Court an

opportunity to reweigh the factors, conduct an independent harmless error

analysis, or remand the case to the state sentencing court. We note that

the district court's harmless error ruling was for the sole purpose of

deciding whether to grant the petition for a writ of habeas corpus and does

not 
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preclude the Nebraska Supreme Court from independently concluding that the

application of the § (1)(d) aggravator was harmless error. 

Accordingly, we affirm the district court's disposition, including

its holding that the Nebraska Supreme Court may engage in independent

harmless error review of the state courts' decisions.

Remaining claims for relief raised by petitioner on cross-appeal

We further find no merit to petitioner's remaining arguments on

cross-appeal. He claims his federal constitutional and statutory rights

under the Fourth, Fifth, and Fourteenth Amendments, and under the federal

wiretapping statute, 18 U.S.C. § 2510 et seq., were violated because Reams

was permitted to testify at petitioner's criminal trial even though Reams's

testimony was arguably indirectly derived from unlawful wiretaps. Upon

careful review of the procedural history of the present case and the

arguments presented on appeal, we hold these claims are foreclosed because

petitioner had a full and fair opportunity to litigate them in state court.

Stone v. Powell, 428 U.S. 465, 481-82 (1976); see also Zagarino v. West,

422 F. Supp. 812, 814-20 (E.D.N.Y. 1976) (where a habeas claim raises a

violation of a provision of the federal wiretap statute that implements a

Fourth Amendment search and seizure policy and is subject to the wiretap

statute's exclusionary rule, the same limited review shall apply as that

which applies under Stone v. Powell to Fourth Amendment search and seizure

habeas claims).

Petitioner also raises on cross-appeal the district court's denial

of his claim that he received ineffective assistance of counsel because his

trial attorney failed to interview, prepare, and call potentially favorable

witnesses. Although petitioner had procedurally defaulted this claim, the

district court, pursuant to 
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Schlup v. Delo, 513 U.S. 298 (1995) (Schlup), held an evidentiary hearing

to permit examination of the allegedly exculpatory evidence. Thereafter,

the district court concluded that "[a]n analysis of this evidence does not

persuade the Court that, with this proposed evidence, no juror, acting

reasonably, would have voted to find petitioner guilty." Slip op. at 39.

We agree that the witnesses' testimony was unlikely to have affected the

outcome of the trial. There were significant inconsistencies in the

proposed witnesses' testimony, and their testimony was in some ways

consistent with the state's theory. The trial attorney's deliberate

decision not to use many of these witnesses was appropriately treated by

the district court as a matter of trial strategy, not rising to the level

of constitutionally deficient legal representation. Accordingly, we affirm

the district court's holding that no Sixth Amendment violation occurred.

Finally, we hold that the remaining claims raised by petitioner on

cross-appeal were properly rejected by the district court either because

they have been procedurally defaulted and the default is not excused by

cause and prejudice nor would enforcement of the default result in a

fundamental miscarriage of justice, or because they otherwise may not be

raised in this § 2254 action. Thus, we affirm the district court's denial

of relief on all of petitioner's remaining claims for habeas relief.

Conclusion

The order and judgment of the district court is modified to provide

that petitioner's sentence will be reduced to life imprisonment, unless

within ninety (90) days of the date of our mandate in the present case, the

Nebraska Supreme Court reweighs the aggravating and mitigating

circumstances, conducts an 
-16-

independent harmless error review, or remands the case to the sentencing

court for resentencing. The order and judgment of the district court is

affirmed as modified.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.