___________

Nos. 95-1098/95-1188

___________

Randolph K. Reeves, *

*

Appellee/Appellant *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Frank X. Hopkins, Warden of the *

Nebraska Penal and Correctional *

Complex, *

*

Appellant/Appellee. *

___________

 Submitted: September 9, 1996

 Filed: December 24, 1996

___________

Before BOWMAN, BRIGHT, and BEAM, Circuit Judges

___________

BEAM, Circuit Judge.

Randolph Reeves was convicted of two counts of felony murder

and sentenced to death. Following unsuccessful appeal and

postconviction actions in Nebraska state court, Reeves was

granted habeas corpus relief in federal district court. We

reversed, but retained jurisdiction and remanded to the district

court for findings on Reeves's remaining claims. The district

court again granted the petition and vacated Reeves's death

sentence. For the second time, the State appeals the district

court's grant of the writ. 

We conclude that the district court erred in its grounds for

granting the writ. We also conclude, however, that the district

court erred in deciding that Reeves was not entitled to a jury

instruction on lesser included offenses, a violation of Beck v.
-2-

Alabama, 447 U.S. 625 (1980). On this basis, we conditionally

grant Reeves's petition for habeas corpus.

I. BACKGROUND

The facts of this case are set out fully in the Nebraska

Supreme Court's opinion in Reeves's state appeal. State v. Reeves,

344 N.W.2d 433, 438-40 (Neb. 1984) ("Reeves I"). A summary,

however, is in order.

On March 29, 1980, Reeves killed Janet Mesner and Victoria

Lamm in a Quaker meetinghouse in Lincoln, Nebraska. Ms. Mesner and

Reeves were friends, and were in fact related. Reeves, who had

been drinking heavily and had ingested some peyote buttons, entered

a window of the house and either sexually assaulted or attempted to

sexually assault Ms. Mesner in her bedroom. In the course of the

assault, Reeves stabbed Ms. Mesner seven times with a knife he had

taken from the kitchen. When Ms. Lamm entered the room during the

assault, Reeves stabbed her to death. Ms. Mesner was mortally

wounded, but was able to find a telephone and dial 911. Ms. Mesner

identified Reeves as her attacker before dying less than three

hours later at a local hospital.

Reeves was charged with two counts of murder in the course of

or while attempting a sexual assault in the first degree. See Neb.

Rev. Stat. § 28-303. Reeves presented defenses of insanity and

diminished capacity, but was convicted on both counts. Under

Nebraska law, a first degree felony murder conviction carries

possible sentences of life imprisonment or death. Neb. Rev. Stat.

§ 28-105(1). A three-judge sentencing panel sentenced Reeves to

death. On appeal, the Nebraska Supreme Court held that the

sentencing panel had failed to consider a mitigating factor and had

improperly applied an aggravating factor in determining Reeves's

sentence. Reeves I, 344 N.W.2d at 447-48. The court, however,
 1

The court also rejected Reeves's claim 44, challenging the

introduction at trial of Janet Mesner's statements identifying

Reeves as her attacker. Reeves v. Hopkins, 871 F. Supp. at 1210. 

Reeves has not cross-appealed this determination.

 2The court did not reach claims 5, 6, 26, 27, 34, 36, and

38.

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reexamined the applicable factors and affirmed the death sentence.

Id. at 448.

Reeves then pursued state postconviction remedies. The

Nebraska Supreme Court again affirmed his sentence. State v.

Reeves, 453 N.W.2d 359, 388 (Neb. 1990) ("Reeves II"). The United

States Supreme Court, however, vacated Reeves II and remanded the

case for reconsideration in light of its holdings in Clemons v.

Mississippi, 494 U.S. 738 (1990). Reeves v. Nebraska, 498 U.S. 964

(1990). On remand, the Nebraska Supreme Court once again affirmed

Reeves's sentence. State v. Reeves, 476 N.W.2d 829, 841 (Neb.

1991) ("Reeves III").

Reeves then brought this federal habeas corpus action under 28

U.S.C. § 2254, raising forty-four claims. The district court

granted relief on the ground that the Nebraska Supreme Court did

not have authority under state law to independently reweigh

aggravating and mitigating factors in affirming a death sentence.

Reeves v. Hopkins, 871 F. Supp. 1182, 1202 (D. Neb. 1994). The

district court considered and rejected Reeves's claims related to

jury instructions, including a claim that the trial court

improperly denied his request to have the jury instructed on lesser

included offenses of felony murder, in violation of Beck v.

Alabama, 447 U.S. 625 (1980). Reeves v. Hopkins, 871 F. Supp. at

1205.1 The court left unresolved seven of Reeves's claims.2

On appeal we reversed, holding that the district court

exceeded federal court authority in determining that Nebraska law

did not authorize the Nebraska Supreme Court to reweigh aggravating
 3

The district court also concluded that our retention of

jurisdiction in our prior decision rendered it without authority

to consider Reeves's motion to submit new evidence of actual

innocence. Reeves v. Hopkins, 928 F. Supp. at 976. Reeves

appeals this conclusion. Because we grant the writ on other

grounds, we need not reach this issue.

-4-

and mitigating factors in capital cases. Reeves v. Hopkins, 76

F.3d 1424, 1427 (8th Cir.), cert. denied, 117 S. Ct. 307 (1996).

We did not reach Reeves's Beck claim, instead remanding and

instructing the district court to make determinations on the claims

it had not reached. Id. at 1430-31. We expressly noted that we

retained jurisdiction on those issues decided by the district court

that we had not reached, and would consolidate those issues with

any future appeal. Id. at 1431.

On remand, the district court rejected all but one of Reeves's

remaining claims. The court determined that the Nebraska Supreme

Court had resentenced Reeves in Reeves III when it again affirmed

the death penalty on remand from the United States Supreme Court,

but violated due process by failing to give Reeves notice of

resentencing and an opportunity to be heard. Reeves v. Hopkins,

928 F. Supp. 941, 965-66 (D. Neb. 1996).3

The State appeals the district court's findings on the due

process claim, and we agree that the court below erred on this

issue. We also conclude, however, that Reeves's Beck claim is

meritorious and that the district court improperly rejected this

claim in its first decision in 1994.

II. DISCUSSION

In this section 2254 habeas corpus action, we review the

district court's factual findings for clear error and its legal

conclusions de novo. Culkin v. Purkett, 45 F.3d 1229, 1232 (8th

Cir.), cert. denied, 116 S. Ct. 127 (1995).
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A. The Due Process Claim

The district court granted relief on claim 34 of Reeves's

petition, in which Reeves claims that:

The death penalty was unconstitutionally applied to

Petitioner in that the Nebraska Supreme Court in

resentencing Petitioner on remand denied Petitioner

notice and an opportunity to be heard in violation of the

Sixth and Eighth Amendments and the [Due Process] and

Equal Protection Clauses of the Fourteenth Amendment.

Petitioner's First Amended Petition for Writ of Habeas Corpus, at

37-38. 

Reeves's claim involves his state postconviction proceedings.

After his convictions and sentences were affirmed on direct appeal

in Reeves I, Reeves sought state postconviction remedies. In Reeves

II, the Nebraska Supreme Court affirmed denial of postconviction

relief. 453 N.W.2d at 388. On petition for writ of certiorari,

the United States Supreme Court vacated Reeves II and remanded for

"further consideration in light of Clemons v. Mississippi." Reeves

v. Nebraska, 498 U.S. 964 (1990). In Clemons, the Supreme Court

had recently held that a death sentence based in part on an

invalidly applied aggravating factor (which the Nebraska court

found had occurred in Reeves's case) could be affirmed by an

appellate court. If state law allows, an appellate court in such

a case may either: (1) conduct a harmless error analysis; or (2)

independently reweigh the applicable aggravating and mitigating

circumstances. 494 U.S. at 750, 752.

Reeves claims that when the Nebraska court once again affirmed

his sentence in Reeves III, this amounted to a reimposition of the

death sentence. This "resentencing," Reeves argues, was done

without Reeves being aware that he would be subject to such

resentencing by the state court. He was thus unable to argue

against imposition of the death penalty and was caught by surprise
 4

The court granted Reeves's motion to extend oral argument

to 20 minutes. The court denied, without comment, motions: (1)

requesting notice if the court "intended to engage in

resentencing on appeal"; (2) for an evidentiary hearing to

present evidence relevant to resentencing; and (3) to set forth

an order of procedure. 

-6-

when the court affirmed the sentence, rather than remanding to a

new sentencing panel. Reeves claims that this violated his rights

under the Fourteenth Amendment to notice and an opportunity to be

heard.

On remand, the Nebraska Supreme Court issued an order

directing Reeves and the State to submit simultaneous briefs

"covering the subject of the remand." Petitioner's Brief at 2.

According to Reeves, his counsel was uncertain of the meaning of

the phrase "the subject of the remand." Reeves's attorney filed a

series of motions with the Nebraska court attempting to clarify the

scope of the issues before the court, most of which the court

denied,4 and unsuccessfully sought to clarify the scope of the

remand at oral argument. The district court agreed with Reeves

that he "was not provided with adequate notice that he would be

sentenced to death." 928 F. Supp. at 961. The court reasoned that

"[h]owever the 20-minute oral argument in Reeves III might

otherwise be characterized, we know in retrospect that it was

ultimately the one proceeding where it would be determined whether

[Reeves's convictions] warranted the death penalty." Id. at 964.

We part ways with the district court on a fundamental premise:

Reeves III simply was not the "one proceeding" where the state

determined that Reeves's crimes "warranted the death penalty."

Reeves II was Reeves's appeal of his unsuccessful postconviction

attack on his convictions and sentence. After the sentencing panel

originally imposed the death sentence, the Nebraska Supreme Court
 5

Reeves argues that in Reeves I, the Nebraska court, after

finding that an aggravating factor had been improperly applied by

the sentencing panel, affirmed on the basis that some aggravating

factors remained, rather than independently reweighing the mix of

aggravating and mitigating factors as required by Clemons. We

reject this contention. The court in Reeves I expressly noted

"our analysis is not confined to a mere counting process of

aggravating and mitigating circumstances but, rather, to a

reasoned judgment as to what factual situations require the

imposition of death and which of those can be satisfied by life

imprisonment in light of the totality of the circumstances

present." Reeves I, 344 N.W.2d at 448.

 6Reeves's reliance on Lankford v. Idaho, 500 U.S. 110

(1991), is misplaced. In Lankford, the original decision of the

trial court imposing the death sentence violated due process

because the defendant (and even the prosecution) did not know

that the trial court was contemplating the death penalty, and

neither side addressed it during the sentencing hearing. Id. at

114-17. Reeves, however, has been under a final sentence of

death since 1984, when Reeves I affirmed his sentence. He cannot

say that the affirmance of his sentence--for the third time--in

Reeves III was a surprise.

-7-

affirmed the sentence on direct appeal in Reeves I.5 The United

States Supreme Court's remand of Reeves II for reconsideration in

light of Clemons did nothing to unsettle the prior conclusion in

Reeves I.6 

It is true that in Reeves III the Nebraska Supreme Court

reviewed in some detail its thinking on the propriety of Reeves's

sentence. The court reexamined the applicable aggravating and

mitigating factors, and concluded that "[w]e have balanced the

aggravating and mitigating factors anew and have determined that

the aggravating circumstances outweigh any statutory or

nonstatutory mitigating circumstances in this case. . . .

Sentences of death remain the appropriate penalties for Reeves."

Reeves III, 476 N.W.2d at 841. However, the court's review was not

a "resentencing" because Reeves's sentence had never been voided.

We agree with the State that the court's discussion was merely a

recasting of its prior conclusions in light of the guidance offered

by Clemons.
 7

Reeves also argues that the decision in Reeves III should

be treated as a resentencing because the State had, in prior

filings in this habeas action, referred to it as such. It is

true that a party cannot argue on appeal a legal theory directly

contrary to the one advanced in district court. Bissett v.

Burlington Northern R.R., 969 F.2d 727, 732 (8th Cir. 1992). We

do not believe, however, that the State's mere use of the word

"resentence" in discussing other issues in these proceedings

constitutes advancement of a legal theory or position. Finally,

Reeves asserts that in State v. Moore, 502 N.W.2d 227, 229 (Neb.

1993), the Nebraska Supreme Court itself referred to the

"resentencing" it had done in Reeves's appeal. ("As indicated in

State v. Reeves . . ., we have the authority to resentence by

analyzing and reweighing the aggravating and mitigating factors

of the case."). Again, we do not believe that semantic niceties

change the nature of the remand in Reeves III. In any event, the

court in Moore was referring to its decision in Reeves I, not

Reeves III.

-8-

We also reject Reeves's argument that the Nebraska Supreme

Court's conclusion in Reeves III that it was authorized to reweigh

aggravating and mitigating factors was a new rule that it announced

simultaneous with its application to him. First, it should have

been clear to Reeves since Reeves I that the state court believed

it had authority to reweigh, since that is exactly what it did on

direct appeal in that case. Second, the Nebraska Supreme Court had

previously stated that it could "weigh[] anew the aggravating and

mitigating circumstances . . . as permitted by Clemons v.

Mississippi." State v. Otey, 464 N.W.2d 352, 361 (Neb. 1991). We

reject Reeves's argument that the language in Otey is "summary" and

does not articulate the court's power to reweigh under Clemons. In

any event, since Reeves was not "resentenced" in Reeves III, his

"new rule" argument is largely irrelevant.7

In sum, the Nebraska Supreme Court did not "resentence" Reeves

in Reeves III. Reeves's sentence of death was made final when the

court affirmed his convictions and sentence on direct appeal in

Reeves I, and the remand of the court's determination in Reeves's

postconviction proceedings did nothing to void that sentence. For

these reasons, we reject Reeves's due process claim.
 8

Reeves was charged under Neb. Rev. Stat. § 28-303, which

provides that:

A person commits murder in the first degree if he kills

another person (1) purposely and with deliberate and

premeditated malice, or (2) in the perpetration of or

attempt to perpetrate any sexual assault in the first

degree, arson, robbery, kidnapping, hijacking of any

public or private means of transportation, or burglary

. . . .

 9The applicable statutory provisions are as follows:

§ 28-304. Murder in the second degree; penalty.

(1) A person commits murder in the second degree

if he causes the death of a person intentionally, but

without premeditation.

§ 28-305. Manslaughter; penalty.

(1) A person commits manslaughter if he kills

another without malice, either upon a sudden quarrel,

or causes the death of another unintentionally while in

the commission of an unlawful act.

Second degree murder carries a maximum sentence of life

imprisonment. Id. at §§ 28-304(2), 28-105(1). Manslaughter

carries a maximum sentence of twenty years. Id. at §§ 28-305(2),

28-105(1).

-9-

B. The Beck Claim

Reeves was charged with two counts of first degree murder

under a felony murder theory, for killing during the course of a

first degree sexual assault or attempted first degree sexual

assault.8 Under Nebraska law, first degree murder is punishable by

either life imprisonment or by death. Neb. Rev. Stat. §§ 28-303,

28-105(1). Reeves requested, and was denied, jury instructions on

second degree murder and manslaughter.9 The jury was therefore

only instructed on the crime of first degree felony murder. Reeves

argues that the refusal of his proposed instructions violated Beck

v. Alabama, 447 U.S 625 (1980). We agree.
-10-

In Beck, the petitioner was tried on a single count of

intentionally killing during the course of a robbery. Id. at 627.

Under Alabama law, when a jury found a defendant guilty of this

charge, it was required by statute to return a sentence of death.

Id. at 628 n.3. The trial court, however, was the final sentencer

and was free to impose the death sentence or a life term. Id. at

629 n.4. The statute under which Beck was charged expressly

prohibited trial courts from giving instructions on lesser included

noncapital offenses, even if the evidence would support a

conviction on a lesser included offense. Id. at 628 & n.3.

The Supreme Court held that in a capital case due process

requires that the jury be given the option of convicting the

defendant on a lesser included noncapital offense if the evidence

would support conviction on that offense. Id. at 638. The Court

in Beck sought to avoid presenting juries with a "death or nothing"

choice between conviction of a capital crime and finding the

defendant not guilty. Faced with such a choice, jurors might

decide to acquit, even though they believed that the defendant had

committed a crime. On the other hand, they might convict of the

capital crime, even though they felt that the defendant did not

deserve the death penalty. This choice, the Court explained, is

unacceptable because "the unavailability of the third option of

convicting on a lesser included offense may encourage the jury to

convict for an impermissible reason--its belief that the defendant

is guilty of some serious crime and should be punished." Id. at

637. This risk of such a choice "cannot be tolerated in a case in

which the defendant's life is at stake." Id. See also Schad v.

Arizona, 501 U.S. 624, 646 (1991). As the Court later explained,

"[t]he goal of the Beck rule . . . is to eliminate the distortion

of the factfinding process that is created when the jury is forced

into an all-or-nothing choice between capital murder and

innocence." Spaziano v. Florida, 468 U.S. 447, 455 (1984).
-11-

The State argues that Beck is inapplicable because the

Nebraska Supreme Court has determined that, under state law, there

are no lesser included offenses of felony murder. Both before and

after Reeves's conviction, the Nebraska court repeatedly made clear

its view that in felony murder cases "it is error for the trial

court to instruct the jury that they may find defendant guilty of

murder in the first degree, guilty of murder in the second degree,

or guilty of manslaughter." State v. Montgomery, 215 N.W.2d 881,

883 (Neb. 1974). See also State v. Massey, 357 N.W.2d 181, 185-86

(Neb. 1984) (quoting Reeves I, 344 N.W.2d at 442); State v.

Hubbard, 319 N.W.2d 116, 118 (Neb. 1982); State v. McDonald, 240

N.W.2d 8, 14 (Neb. 1976). We are directly faced, therefore, with

the question whether the State's prohibition is consistent with

Beck.

The State contends that once the Nebraska Supreme Court has

determined that felony murder has no lesser included offenses, then

Reeves's Beck claim necessarily fails. The State urges us to

follow Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991), in

which the Ninth Circuit rejected an Arizona prisoner's Beck claim.

The court in that case reasoned that "Greenawalt was tried solely

for felony murder, a crime for which Arizona law recognizes no

lesser included offense." Id. at 1029 (citing State v. Greenawalt,

624 P.2d 828, 846 (Ariz. 1981) (en banc). The court concluded on

this basis that Beck was inapplicable.

We cannot agree with this interpretation of the Beck doctrine.

The State's position would say in effect that Beck means only that

a criminal defendant is entitled to instructions on lesser included

offenses to which state law says he or she is entitled. But if

this were true, then Beck itself would have been decided

differently. In Beck, as in this case, state substantive law

specifically prohibited the giving of a lesser included offense

instruction. The problem was not merely a trial court's decision

not to instruct the jury, nor was it Alabama's definition of lesser
 10Similarly, the Fifth Circuit has held that the Beck

doctrine imposes federal constitutional limits on state law

governing when a trial court may refuse to give an instruction on

a lesser included offense. Cordova v. Lynaugh, 838 F.2d 764, 767

(5th Cir. 1988). The court noted that "[i]f due process is

violated because a jury cannot consider a lesser included offense

that the `evidence would have supported,'. . . the source of that

refusal, whether by operation of state law or refusal by the

state trial court judge, is immaterial." Id. at 767 n.2

(citation to Beck omitted).

We note that in rejecting a petitioner's Beck argument in

Blair v. Armontrout, we stated that "Beck does not prescribe a

first-degree murder instruction in this case unless first-degree

murder is a lesser-included offense of capital murder . . . and

the [State] Supreme Court [has held] that first-degree murder

[is] not a lesser-included offense of capital murder." 916 F.2d

1310, 1326 (8th Cir. 1990). In Blair, however, we did not

directly face the issue whether Beck could be vitiated by a

state's determination that a particular crime has no lesser

included offenses. There was no Beck violation in Blair because:

(1) the jury had both the option and power to impose a life

sentence, rather than a death sentence; and (2) the defendant was

given jury instructions on both second degree murder and

manslaughter. Id. Neither is true of this case. 

We made a similar statement regarding a state's definitions

of lesser included offenses in Williams v. Armontrout, 912 F.2d

924, 928 (8th Cir. 1990) (en banc). In that case, however, Beck

did not apply because the evidence would not have supported a

conviction for the charge for which the defendant requested an

instruction. Id. at 929. Williams was thus squarely within the

limitation on Beck clarified by Hopper v. Evans, 456 U.S. 605,

611 (1982) (holding that Beck requires instructions on noncapital

offenses only when the evidence would support a conviction on

that charge).

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included offenses. The unacceptable constitutional dilemma was

that state law prohibited instructions on noncapital murder charges

in cases where conviction made the defendant death-eligible. The

prohibition in Reeves's case is based on the Nebraska Supreme

Court's pronouncement of state law, rather than upon a statute.

But there is no principled reason to distinguish such a prohibition

imposed by the state courts from one imposed by the state

legislature.10 The constitutional violation is the same.
-13-

We believe that in arguing to the contrary, the State misreads

the Supreme Court's clarifications of the Beck doctrine. In Hopper

v. Evans, the Court held that under Beck "due process requires that

a lesser included offense instruction be given only when the

evidence warrants such an instruction." 456 U.S. 605, 611 (1982)

(emphasis in the original). In Spaziano, the Court held that Beck

did not apply when the statute of limitations had run on all lesser

included offenses and the defendant refused to waive the statute.

468 U.S. at 456-57. The Court stated that "[w]here no lesser

included offense exists, a lesser included offense instruction

detracts from, rather than enhances, the rationality of the

process. Beck does not require that result." Id. at 455.

The Ninth Circuit in Greenawalt cited Spaziano to support its

conclusion that Arizona's nonrecognition of any lesser included

offenses foreclosed a Beck claim. Greenawalt, 943 F.2d at 1029.

We believe that this reads Spaziano much too broadly. In Spaziano,

the defendant could not have been convicted of any lesser included

offenses because the applicable statutes of limitation had all run

and the defendant refused to waive them. The Court found that

instructing the jury on a charge that could not have resulted in a

conviction would compound the distortion of factfinding that

troubled it in Beck: 

Requiring that the jury be instructed on lesser included

offenses for which the defendant may not be convicted

. . . would simply introduce another type of distortion

into the factfinding process.

. . . Beck does not require that the jury be

tricked into believing that it has a choice of crimes for

which to find the defendant guilty, if in reality there

is no choice.

Id. at 455-56. Spaziano does not stand, therefore, for the

proposition that state law can foreclose Beck claims by declaring

that felony murder has no lesser included offenses; this is exactly
 11The State argues that "but for the specific statute struck

down which prohibited such jury instructions [on lesser included

offenses], there existed, under Alabama law, lesser included

offenses of the crime with which Beck was charged." State's

Reply Brief (1995) at 11-12. But this is merely to say that "if

state law had not prohibited an instruction, it would have

permitted it." This is, of course, true. But it is equally true

of Nebraska law. 

-14-

what the Alabama legislature had done in Beck, after all.11

Spaziano stands, rather, for the eminently sound notion that juries

should not be mislead into "convicting" someone of a charge for

which he or she cannot be convicted. There is no question of such

trickery in this case. Reeves could have been convicted and

sentenced for either second degree murder or manslaughter.

The State's rationale for prohibiting instructions for

noncapital murder in felony murder cases further supports our

conclusion. The Nebraska Supreme Court has said that felony murder

differs from other murder because it requires no showing of any

intent to kill: "The turpitude involved in the [underlying felony]

takes the place of intent to kill or premeditated malice, and the

purpose to kill is conclusively presumed from the criminal

intention required for [the underlying felony]." Reeves I, 344

N.W.2d at 442 (citations omitted). Thus, a finding that Reeves

intended the underlying felony (actual or attempted first degree

sexual assault) takes the place of any showing that Reeves intended

to kill. At oral argument, the State reiterated that the

difference between the mental states required for felony murder and

premeditated first degree murder is the basis for the prohibition

on lesser included offense instructions in felony murder cases.

There is nothing necessarily unconstitutional with the State's

definition of the mental culpability required for a felony murder

conviction. However, the death penalty cannot be imposed on a

defendant without a showing of some culpability with respect to the

killing itself. Enmund v. Florida, 458 U.S. 782, 801 (1982).
-15-

Before a state can impose the death penalty, there must be a

showing of both major participation in the killing and reckless

indifference to human life. Tison v. Arizona, 481 U.S. 137, 158

(1987). Enmund and Tison are thus independent constitutional

requirements of the mental culpability a state must prove if it is

to impose a death sentence; if the death sentence is to be imposed,

the state must necessarily produce some evidence of intent with

respect to the killing. Nebraska's rationale for prohibiting

lesser included offense instructions in felony murder cases thus

disappears when the defendant is sentenced to death. We are led to

the conclusion that the State may not, consistent with the

Constitution, bar an instruction on noncapital homicide, in a

felony murder case where the death sentence is imposed, on the

basis that felony murder requires no showing of intent or, at

least, a reckless indifference to the value of human life. To hold

otherwise would mean that the State could avoid Beck by claiming

that it need show no intent or reckless indifference with respect

to the killing, yet could simultaneously avoid Enmund by adducing

precisely such evidence. 

We do not suggest that the State may not impose the death

penalty pursuant to a felony murder conviction. We mean to say

only that the State's prohibition on instructions on noncapital

charges in felony murder cases is inconsistent with Beck, and that

its rationale for the prohibition would put Beck at odds with

Enmund. In Greenawalt, the Ninth Circuit reads Enmund to apply

only in situations of "accomplice felony murder" where the Eighth

Amendment requires a specific showing of mens rea before the death

penalty may be imposed. 943 F.2d at 1028. We think this unduly

narrows the Supreme Court's holdings in Enmund as well as Tison,

especially in cases such as this. Reeves's insanity and diminished

capacity defenses raise the same "mental state" concerns considered

by the Court in both Enmund and Tison; indeed, the facts of this

case and Reeves's defenses indicate the need for particular care
 12Furthermore, the "death or acquit" dilemma may have been

exacerbated in Reeves's case. Reeves presented an insanity

defense, but the trial court refused to instruct the jury that an

acquittal by reason of insanity would not have resulted in

Reeves's release. In addition, the prosecutor erroneously told

the jury in summation that an acquittal would mean that Reeves

would "walk out of this courtroom a free man." While the

district court was unsure whether the prosecutor's statement

referred to Reeves's insanity defense or merely to the effect of

an acquittal on the merits, the Nebraska Supreme Court stated in

Reeves I that "the statement made by the prosecutor was not an

entirely correct statement of the law." 344 N.W.2d at 443. 

While we agree with the district court that neither the refused

insanity instruction nor the prosecutor's misstatement is

sufficient in itself to violate due process, infra at 18-19, the

effect could only have heightened the "death or acquit" dilemma.

 13The State argues that Beck involved a statute that

automatically imposed the death sentence, whereas Reeves's jury

had no involvement in sentencing. But the Alabama statute in

Beck was not a "mandatory death" statute; the judge had final

sentencing authority, and was free to reject the death penalty. 

Furthermore, Reeves correctly argues that when Beck was decided,

the Supreme Court had already declared "mandatory death" statutes

-16-

that Reeves's "punishment . . . be tailored to his personal

responsibility and moral guilt." Enmund, 458 U.S. at 801.

The death penalty concerns expressed in Enmund and Tison lie

at the core of the Beck doctrine. As the Court explained in

Hopper, Beck teaches that the Eighth and Fourteenth Amendments

require that the death penalty must be "channeled so that arbitrary

and capricious results are avoided." 456 U.S. at 611. We believe

that Reeves's case comes within Beck and Hopper. The facts would

have supported a conviction for either second degree murder or

manslaughter, and unlike in Spaziano, Reeves could have been

convicted and sentenced for those crimes. Instead, Reeves's jury

was faced with a stark choice: convict Reeves of capital murder or

acquit him altogether.12 State law, whether expressed by a statute

or by a court, may not prohibit an instruction on a noncapital

charge that the evidence supports when the defendant is

subsequently sentenced to death.13 We therefore hold that the trial
unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 305

(1976). This case is like Beck: the jury had no ultimate

control over the imposition of a death sentence and could only

choose to convict Reeves of a death-eligible crime or to acquit

him.

 14In its 1994 order granting habeas, the district court

considered and rejected Reeves's claims numbered 20, 20(a),

20(c), 22, 23, and 44. On remand after we reversed, the district

court considered the remaining claims (claims 5, 6, 26, 27, 34,

36, and 38) that it had not reached in its first ruling. Claim

34 is the due process claim that the district court granted

relief on, which we discuss and reject in part II.A. In the

prior appeal before this court, Reeves did not cross-appeal the

dismissal of claim 44, nor does he now cross-appeal the district

court's conclusions on claims 5, 6, 26, 27, 36, and 38. Reeves

has therefore abandoned those claims and we need not consider the

district court's dismissal of them.

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court's refusal to grant Reeves's request for instructions on

second degree murder and manslaughter violated Beck v. Alabama.

C. Reeves's Other Claims

The only claims Reeves presents on cross-appeal are those

numbered 20, 20(a), 20(c), 22, and 23. We agree with the district

court's dismissal of each of those claims.14

Claims 20 and 20(a): Reeves claims that the trial court erred

in its instructions on his insanity defense and on the culpability

the State needed to prove to establish the predicate felony (first

degree sexual assault) of the felony murder charge. The district

court rejected Reeves's argument that the trial court's

instructions established invalid conclusive presumptions of fact

and relieved the prosecution of its burden of proof of elements of

the crime charged, in violation of Sandstrom v. Montana, 442 U.S.

510 (1979). We agree with the district court that the trial court

properly instructed the jury, and did not so shift the burden of

proof.
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Claim 20(c): Reeves claims that the failure to give an

instruction on noncapital homicide in his case violated equal

protection, because defendants charged with premeditated first

degree murder are entitled to such an instruction under Nebraska

law. We agree with the district court that Reeves did not fairly

present this argument in state court, and that under Nebraska law

Reeves has abandoned this claim. See State v. Evans, 338 N.W.2d

788, 795 (Neb. 1983). Reeves has thus defaulted review of this

claim in federal habeas proceedings, Morris v. Norris, 83 F.3d 268,

270 (8th Cir. 1996), and has made no showing of cause to excuse his

default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

Claim 22: Reeves claims that the trial court erred by

refusing his requested instruction on diminished capacity. We

agree with the district court that the trial court's instructions

on intoxication and insanity covered largely the same ground as the

requested instruction, and that the refusal thus did not result in

a miscarriage of justice. Closs v. Leapley, 18 F.3d 574, 579 (8th

Cir. 1994).

Claim 23: In rebuttal closing argument, the prosecutor told

the jury that if "[t]he State doesn't prove this case beyond a

reasonable doubt, then the State shouldn't win and this defendant

should walk out of this courtroom a free man." Reeves v. Hopkins,

871 F. Supp. at 1207. The trial court denied Reeves's motion for

a mistrial based on this statement. Reeves asserts that this

comment gave the jury the false impression that an acquittal on the

basis of insanity would result in Reeves's release. This, Reeves

argues, was so misleading as to unfairly prejudice his trial.

The district court noted that this reference was one sentence

in the midst of a forty-eight minute argument, and occurred on a

day where the jury heard more than four hours of argument from both

the prosecution and defense. The court found that the context,

ambiguity, and passing nature of the remark indicated little
 15See Neb. Rev. Stat. §§ 28-303, 28-105(1).

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likelihood that it could have "so infected the trial with

unfairness as to make the resulting conviction a denial of due

process." Pickens v. Lockhart, 4 F.3d 1446, 1453 (8th Cir. 1993)

(citations omitted). We agree that Reeves has not shown that this

isolated remark constituted constitutional error.

D. Relief

Having found Reeves's Beck claim meritorious, we must still

determine what relief is appropriate. We have previously held that

Beck only applies in cases where the defendant is in fact sentenced

to death. Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990).

The Beck violation in this case thus can be cured in one of two

ways: (1) by granting Reeves a new trial; or (2) by resentencing

Reeves to life imprisonment, which is a statutorily authorized

sentence for felony murder.15 We therefore find it appropriate to

grant a conditional writ of habeas corpus: Reeves's conviction

will be vacated subject to a new trial unless, within 180 days from

the issuance of the mandate, his death sentence is modified to life

imprisonment.

III. CONCLUSION

We find that the trial court's refusal to instruct the jury on

noncapital murder charges violated Beck v. Alabama, and that the

district court thus erred in dismissing Reeves's claim 20(b). We

conditionally grant Reeves's petition for the writ of habeas

corpus: his conviction will be vacated subject to a new trial

unless the State resentences Reeves to life imprisonment within 180

days. Because we conclude that Reeves's due process argument is

groundless, we reverse the district court's finding on claim 34.

We affirm the district court's findings dismissing all of Reeves's

other claims.
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BRIGHT, Circuit Judge, concurring separately.

Judge Beam's well written opinion persuasively and logically

explains that the application of Beck v. Alabama, 447 U.S. 625

(1980), requires that we remand this case for appropriate relief

under a conditional writ of habeas corpus. I agree.

Having directed the issuance of a writ of habeas corpus, which

will require the State of Nebraska either to retry Reeves or

sentence him to life imprisonment, I would not reach the due

process claim discussed in part II A of the court's opinion. In

all other respects, I concur.

A true copy.

Attest:

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