### The Honorable Lyle E. Strom, United State s 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 ju dgment entered inthe United States District Court for the District of Nebraska 1 granting partial relief on a petition for a writ of habeas corpus file d pursuant to 28 U.S.C. § 2254 by C. Michael Anderson (petitioner). Anderso n
v. Hopkins , No. CV 84-L-741 (D. Neb. Jan. 16, 1996) (Memorandum Opinion) (hereinafter "slip op."); id. (Order and Judgment). For reversal, th e sta te argues that the district court erred in holding that it was no t harmless beyond a reasonable doubt for the Nebraska state

### -2-

courts to consider an unconstitutionally vague statutory aggravating facto r insentencing petitioner to the death penalty. Slip op. at 48 (reducing petiti oner's sentence from death to life imprisonment, subject to a n opportunity for the Nebraska Supreme Court, with in ninety days, to reweigh the aggravating and mitigating circumstances, conduct a harmless erro r revie w, or remand the case to the state trial court for resentencing)

. Petitioner cross-appeals. He argues that the di strict court erred in: (1) permitting the Nebraska Supreme Court an opportu nity to conduct a harmless
err or review; (2) denying on the merits his claims of federa l
cons titutional and statutory violations resulting from the state tria l court's admission of Lon Reams's testimony at trial; (3) denying on th e merits his claims of ineffective assistance of trial counsel; and (4 ) denying his remaining claims for habeas relief because they have bee n procedur allydefaulted and the default is not excused by cause an d 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 reason s stated below, affirm the order and judgment as modified.

Background

The following facts are largely taken from the Nebraska Suprem e Court's decision affirming petitioner's convicti on 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 r ural area near Omaha, Nebraska. He had been shot in the head, ba ck, and neck with a .22 caliber pistol. By June 1976 , pet itioner and his friend, Peter Hochstein, were suspects in the polic e invest igationof Abboud's murder. Abboud's family hired a privat e investigator,

### -3-

Den nis Whelan, and instructed him to investigate petitioner's an d Hochstein's involveme nt in the crime. Whelan was informed that Lon Reams was associated with p etitioner and possibly also involved. At that time, the police already knew about Reams and had interviewed him as part o f their investigation.

Whel an's investigation of petitioner and Hochstein included, amon g other things, wiretapping their apartments. Whelan also interviewed a
womannamed Mila Dickman who was employed by petitioner and was closel y associated with Reams . In the spring of 1977, Whelan informed the county prosecutor, Samuel Co oper, 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 Whe lan to cease his wiretapping operation. Whelan also lear ned from Cooper that there was a possibility that Reams would b e granted immunity if Reams were to testify against petitioner and Hochstein

. Whelanrelayed this information to Reams and, at the same time, falsel y told R eams that he (Whelan) had overheard petitioner and Hochstei n conspiring against Reams and that he knew the pr osecutor 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. T he facts, according to his testimony, are summarized
as follows. Petitioner was extremely hostile toward Abboud because o f Abboud's unfair busin ess 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 mo ney. Petitioner agreed to payHochstein $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 murde r for the defendant; (d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standard s of morality and intelligence.
-4- 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, kil l Abboud once there, and then telephone Reams who was to telephone petitione r and pick up Hochstein . Their first attempt failed because Abboud was not alone when he showed Hochstein the property. Hochstein then schedule d another visit to the site and, when Abboud alone drove Hochstein there , Hochstein murdered Abboud and dumped Abboud's body in a creek bed. Th e body was discovered three days later. The jury found petitioner and Hochstein each guilty of first degree murde r. Following the trial, a sentencing hearing took place before a three -judge panel, which unanimously sentenced petitioner and Hochstei n eachto 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 ordi nary standards of morality and i ntelligence," within the meaning of the second prong of Neb. Rev

. Stat. § 29 -2523(1)(d) (hereinafter referred to as § (1)(d)). Petitioner 2 and Ho chstein appealed to the Nebraska Supreme Court, which unanimousl y 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]h e sta ndard applied to Moore in 1980 was modified substantially si x years later by [ State v. Palmer , 399 N.W.2d 706 (1986), cert
. denied , 484 U.S. 872 (1987)], and the changes found desirable b y the Nebraska Supreme Court in Palmer then demonstrate that th e standards applied to Moore were vague."
In Wi lliams v. Clarke , 40 F.3d 1529, 1540 (8th Cir. 1994 ) 4 

### ( Williams ), cert. denied , 115 S.Ct. 1397 (1995), the distric t court had granted the petitioner a writ of habeas corpus because th e death penalty in that case had been based in part upon a fin ding 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 stat e sentencing court has considered an unconstitutionally vague portion of an aggravating circumstance. The Williams court then wen t on to conclude, in that case, that the sentencing court's consideration
-5- Petitioner originally filed the present habeas action in federa l district c ourt in 1984. Petitioner, with leave of court, amended hi s habeas petition in 1985 and 1986. In 1986, the state filed a response

. Amagi strate judge subsequently stayed the petition pending a fina l decision in an unrela ted case which was pending before the Eighth Circuit and involved the constitutionality of the second prong of § (1)(d), settin g forth the "exceptional depravity" aggravator. I n 1991, the Eighth Circuit disposed of that case, holding that the "exceptional depravity" language of § (1)(d) was too v ague 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 sufficien t specificityto 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 th e present h abeas action was lifted. The state conceded that, in light o f Moore , the "exceptional depravity" aggravator had been improperl y considered by the sentencing panel, but argued t hat the error was harmless beyond a reasonable d oubt, 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 t he "exceptional depravity" factor was harmless beyond a

re asonable doubt and reversed the district court's decision t o 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 th e 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 d ecision to impose the death penalty, and that is th e 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 no t require a retrial or resentencing. It does require that th e pe titioner's sentence be reduced to life imprisonment unles s within n inety (90) days of the date of this opinion, th e Ne braska Supreme Court either reweigh[s] the aggravating an d mitigating circumstances, conduct[s] a harmless error review, or remand[s] the case back to the Douglas County Di strict Court for resentencing.

Id.

Prov iding detailed reasons, the district court denied all o f petitioner's remaining claims for habeas relief. Id. at 3-42, 48-50. Thi s appeal and cross-appeal followed.

### -8- Discussion
State's appeal on harmless error issue

The st ate appeals the district court's holding that it was no t harmless error for the state sentencing court and the Nebraska Suprem e Court t o consider the unconstitutional aggravator in their respectiv e decisions to impose and uphold the death penalty. The state argues that the district court erred in focusing on whether the state courts place d consid erable weight on the invalid factor and whether that facto r 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 properl y considered aggravator was the § (1)(c) murder-for-hire factor, and the onl y mitigating factor was that petitioner did not have a prior criminal record , the st ate contends that the "exceptional depravity" aggravator played a relativelyminor 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 overc omes the fact that, before defen dants began to plan this atrocity, defendants were law-abidin g citizens." State v. Anderson , Nos. 99-392/99-394, slip op. at 16 (Neb

. Dist. Ct. Aug. 24, 1978). Moreover, the state n otes, the sentencing court specifically observed that this type of cold, calculated, and dispassionat e murder plot was unprecedented in the Nebraska case law. Id. at 17. The state also maintains that all of the circumstanc es that were considered by the se ntencing court in connection with the § (1)(d) "exceptiona l deprav ity" factor were equally relevant to the § (1)(c) murder-for-hir e aggravator, which

### -9-

was properly considered. Thus, the state concludes, the outcome of th e weighing process would have been the same even if the "exceptiona l depra vity" factor had not been separately considered. Turning to th e Nebras ka Supreme Court's decision, the state notes strong language fro m that opinion as well, and argues that the § (1)(c) murder-for-hire aspect of the killing was particularly influential in that court's unanimou s decision to uphold the death penalty. The Nebraska Supreme Court explaine d "the killing of Abboud was a business transaction and a most aggravating circu mstance within the meaning of § 29-2523." State v. Anderson , 29 6 N.W.2d at 454. The Nebraska Supreme Court further opined:

[i]f ev er a situation exists in which the imposition of th e deat hpenalty is appropriate, it is clearly in the case o f "killers for hire." A careful review of the entire record in ligh t of both § 29-2523 and the previous decisions of thi s cou rt discloses that there are no mitigating factors in thi s case which would justify not imposing the most severe penalty for the most heinous cri me[:] 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, basedupon the strong language employed by both the state sente ncing court and the Nebraska Supreme Court, and the fact that th e considerations related to the murder-for-hire aggravator were virtually th e same as those related to the "exceptional deprav ity" aggravator, the state argues that the district court should have found harmless error because th e proper lyconsidered murder-for-hire factor was so overwhelming i n comparisonto the mitigating factor that the outcome would have been the same absent the "exceptional depravity" factor. In response, petitioner argues that the district court properl y
conc luded that the use of the "exceptional depravity" factor was no t harmless beyond a reasonable doubt. Petitioner

### -10-

emphasizes that Nebraska is a pure "weighing" st ate -- in other words, the state cou rts are required by state law to weigh the aggravatin g 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 s o long a s the weight of the statutory and nonstatutory mitigatin g circumstances approaches or exceeds the weight of the statutory aggravatin g circums tances." Petitioner argues that, because the sentencing cour t viewed the § (1)(c) and § (1)(d) considerations as integrally related, the whole weighing proces s was tainted by the unconstitutionally vague factor and it is impossible to conclude that the outcom e of that weighing process would have been the same absent the invalid "exceptional depravity " considerations. Petitioner distinguishes the present case from Williams
on the g round that, in Williams , the first prong of § (1)(d) and thre e other valid aggravato rs were present. Petitioner also maintains that the distri ct court considered and rejected the state's argument that th e Nebraska Supreme Court treated the "exceptional depravity" aggravator as hav ing minor importance. In any case, petitioner asserts, the Nebrask a Suprem e Court's opinion is fundamentally flawed insofar as it contain s legal generalizations which conflict with the constitutional requirement of individualized sentencing in capital cases and the constitutiona l prohibition against limits on the sentencer's di scretion not to impose the death penalty. Finally, petitioner notes that - - although Nebraska courts are required to weigh, not count, aggravating an d mitigating circumstances

-- it is nevertheless true that no Nebraska court has ever imposed th e death penalty on the basis of only one aggravating factor, which would be the effect of reversi ng the district court's finding of no harmless error in the present case.

### Chapman v. California , 386 U.S. 18 (1967). 5


### -11- Upon de n ovo review, we agree with the district court's recognition in the present case of a reasonable possibility that the invalid aggravato r contributed to the state courts' decisions. Moreover, contrary to th e state's argument, the district court's analysis in the present case is not inconsistent with Williams . The following quotation from Williams , 40 F.3 d at 1541 , contains the "so overwhelming" language upon which the stat e relies, and puts that language into its proper context.

[I]n a federal habeas review where the state trial o r appellate court found no constitutional error and thus had no rea sonto 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 reasonabl e doubt. . . . [T]he issue under Chapmanis whether t he sentencer actually rested its decision to impose the death pe nalty on the valid evidence and the constitutional aggravating factors , independentlyof the vague factor considered; in other words, wh ether what was actually and properly considered in th e 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 sa y that there was no reasonable possibility that th e aggravating circumstance in§ (1)(d) might have contributed to the decision to impose the deat h penalty. Implicit in this holding is the conclusion that the state ha s failed to meet its burden of proving either that the state courts actually rested their death penalty decisions on "the valid evidence and th e
con stitutional aggravating factors, independently of the vague facto r considered" or that

### Clemons v. Mississippi , 494 U.S. 738 (1990). 6


### -12- "what was actually an d properly considered in the decision-making process
was 'so ov erwhelming' that the decision would have been the same eve n absent the invalid factor." Id. Therefore, the district court's reasonin g
was not materially inconsistent with Williams . In sum, we hold in th e presen t case that the state has not sufficiently demonstrated tha t pet itioner's sentence would have been the same under Nebraska state la w abse nt consideration of the invalid factor. We affirm the order an d 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 tha t consideration of the "exceptional depravity" factor was not harmless beyon d a reasonable doubt, o rdered 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 mitigatin g circumstances, conduct[s] a harmless error review, or remand[s] the case back to the Douglas C ounty District Court for resentencing." Slip op. at 48. Pe titioner, on cross-appeal, challenges only that portion of th e above-quoted language which permits the Nebraska Supreme Court to conduct a harmless error revi ew. Petitioner argues "[t]he grant of relief should be mod ified to permit the Nebraska Supreme Court to conduct a Clemons [6] rewei ghing of the aggravating and mitigating circumstances, if suc h appellate resentencin g 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.3 d 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 no t harmless , then we feel that we are bound by the distric t court's determination that constitutionally harmless error is not present. However, that is not the end of the o ptions under Clemons v. Mississippi , 494 U.S. 738 (1990). Clemons permits a s tate appellate court [either to] perform a harmless erro r analysi s or to reweigh the mitigators and aggravators an d determine whether the sc ale tips in favor of death, or whether the balance has been altered by the addition or removal of an agg ravator or mitigator so that it cannot find the erro r harmless beyond a reasonable doubt.
Reply Brief for Appellant/Cross-Appellee at 10.

In Reeve s v. Hopkins , which sets forth a comprehensive analysis o f Nebraska's statutory scheme, this court explaine d "[a]s far as the federal constitutionis concerned, in a weighing jurisdiction, a state appellate court may cure a constitutional deficiency arising from imprope r applications or limit ations of aggravating or mitigating circumstances in
a capital case by engaging either in reweighing, or in traditional harmles s 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 no t required to reweigh, and may in certain cases find that remand is mor e appropria te or is even required." Id. at 1430 n.8 (citing Clemons , 49 4 U.S. at 754 & n.5). Thus, u pon review of this issue raised by petitioner, we hold tha t the di strict court's decision comports with Clemons , as interpreted i n Reeves v. Hopkins , insofar as it provides the Nebraska Supreme Court a n opportunity to reweig h the factors, conduct an independent harmless error analysis, or remand t he case to the state sentencing court. We note that the d istrict court's harmless error ruling was for the sole purpose o f deciding whether to grant the petition for a writ of habeas corpus and doe s not

### -14-

preclude the Nebraska Supreme Court from independently concluding that th e application of the § (1)(d) aggravator was harmless error.

Acco rdingly, we affirm the district court's disposition, includin g its hol ding that the Nebraska Supreme Court may engage in independen t 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 o n cross-appeal. He claims his federal constitutional and statutory rights under the Fourth, Fif th, and Fourteenth Amendments, and under the federal wiretapping statute, 18 U.S.C. § 2510 et seq. , w ere violated because Reams
was permitted to testify at petitioner's criminal trial even though Reams' s testim onywas arguably indirectly derived from unlawful wiretaps. Upo n
care ful review of the procedural history of the present case and th e arguments presented on appeal, we hold these cla ims 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. Su pp. 812, 814-20 (E.D.N.Y. 1976) (where a habeas claim raises a violation of a provis ion of the federal wiretap statute that implements a FourthAmendment 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 Am endment search and seizure habeas claims). Pe titioner also raises on cross-appeal the district court's denia l of his claim that he received ineffective assistance of counsel because hi s trial attorney failed to interview, prepare, and call potentially favorabl e witnesses. Although petitioner had procedurally defaulted this claim, the district court, pursuant to

### -15-

Schlup v. Delo , 513 U .S. 298 (1995) ( Schlup ), held an evidentiary hearing to permit examinationof 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, actin g reasonably, would hav e voted to find petitioner guilty." Slip op. at 39. We agree that the witnesses' testimony was unlikely to have affected the outc ome of the trial. There were significant inconsistencies in th e propos ed witnesses' testimony, and their testimony was in some way s consis tent with the state's theory. The trial attorney's deliberat e decisionnot 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 affir m the district court's holding that no Sixth Amendment violation occurred.

Finally, we hold that the remaining claims raised by petitioner o n cross-appeal were properly rejected by the district court either because theyhave been procedurally defaulted and the default is not excused b y
caus e 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 t he 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 p etitioner's sentence will be reduced to life imprisonment, unles s within ninety (90) days of the date of our mandate in the present case, th e Neb raska Supreme Court reweighs the aggravating and mitigatin g 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.