Moore v. Kinney, 00-4079.

• Decision Date: 10 February 2003
• Docket Number: No. 00-4079.,00-4079.
• Citation: 320 F.3d 767
• Parties: Carey D. MOORE, Appellant, v. Michael L. KINNEY, Warden of the Nebraska Penal and Correctional Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

320 F.3d 767

Carey D. MOORE, Appellant, v. Michael L. KINNEY, Warden of the Nebraska Penal and Correctional Complex, Appellee.

No. 00-4079.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2002.

Filed: February 10, 2003.

COPYRIGHT MATERIAL OMITTED

Alan E. Peterson, argued, Lincoln, NE (Daniel E. Klaus, on the brief), for appellant.

J. Kirk Brown, argued, Asst. Attorney Gen., Lincoln, NE, for appellee.

Before HANSEN, Chief Judge, HEANEY, McMILLIAN, BOWMAN, WOLLMAN, BEAM, LOKEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, Circuit Judges.

BEAM, Circuit Judge, with whom HANSEN, Chief Judge, BOWMAN, WOLLMAN, LOKEN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges, join.

In this death penalty matter, Carey D. Moore appeals the district court's¹ denial of his 28 U.S.C. § 2254 petition for habeas corpus. We affirm.

I. BACKGROUND

The facts underlying Moore's initial conviction and sentencing in Nebraska state court in 1980 are undisputed and have been repeated, in some form, in no less than eight federal or state appellate court decisions. Briefly, in August 1979, Moore purchased a handgun and set out to rob and kill Omaha cab drivers. Moore carefully planned to select older targets because he thought it would be easier for him to shoot an older man rather than a man nearer his own age. In carrying out this scheme, Moore called several cabs over a period of time and hid while watching them arrive, and depart, if the driver was young. Moore confessed to the police that he felt an older victim would be an easier mark. Using this approach, Moore selectively abducted and murdered cab driver Reuel Eugene Van Ness, Jr. on August 22, 1979, and Maynard Helgeland on August 27, 1979.

Moore was convicted of two counts of first-degree murder and was sentenced to death by a three-judge panel in 1980. The Nebraska Supreme Court affirmed the convictions and sentences in State v. Moore, 210 Neb. 457, 316 N.W.2d 33, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 782 L.Ed.2d 864 (1982). Moore filed a motion for postconviction relief in 1982, which was denied by the state district court in 1983, and this denial was affirmed by the Nebraska Supreme Court in State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).

Moore then filed a petition for writ of habeas corpus in the United States District Court for the District of Nebraska, which granted the writ in Moore v. Clarke, No. CV84-L-754 (D.Neb. Sept. 20, 1988). This court affirmed, holding that the "exceptional depravity" component of the aggravating circumstance set forth in Neb. Rev.Stat. § 29-2523(1)(d)² was unconstitutionally vague, both on its face and as interpreted by the Nebraska Supreme Court. Moore v. Clarke, 904 F.2d 1226, 1233 (8th Cir.1990) (Moore I). The same panel published an opinion denying rehearing. 951 F.2d 895 (8th Cir.1991) (Moore II).

On remand, the Nebraska Supreme Court declined to resentence Moore, and, instead, sent the matter to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227, 230 (1993). A new three-judge sentencing panel of the state district court convened in 1994 and in April of 1995 again sentenced Moore to death. This decision was affirmed by the Nebraska Supreme Court in State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996) (per curiam), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997).

In early March 1997, the Nebraska Supreme Court established May 9, 1997, as Moore's execution date, and on April 30, 1997, Moore filed another state action for postconviction relief. On May 5, 1997, the Nebraska Supreme Court stayed Moore's execution and the state district court subsequently denied Moore's motion for relief without an evidentiary hearing. The Nebraska Supreme Court affirmed the denial of postconviction relief in State v. Moore, 256 Neb. 553, 591 N.W.2d 86, cert. denied sub nom., 528 U.S. 990, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999). On October 5, 1999, Moore filed the current petition for writ of habeas corpus. See Moore v. Kinney, 119 F.Supp.2d 1022 (D.Neb.2000).

II. DISCUSSION

In 1990, as indicated, this court invalidated Moore's 1980 sentences stating that the "exceptional depravity" aggravator was unconstitutionally vague as written and construed. Moore I, 904 F.2d at 1233. In so holding, the court simply failed to correctly predict the direction the United States Supreme Court's death penalty jurisprudence would take. Indeed, the impression given by the Moore I court was that any narrowing construction of the "exceptional depravity" factor would fail to pass constitutional muster. Id. at 1235 (Floyd Gibson, J., dissenting) ("It seems to me that the majority's approach in this case could defeat virtually any aggravating circumstance statute, and by the use of semantics make a dead letter of any death statute."). However, one month after Moore I was issued, the United States Supreme Court upheld the validity and constitutionality of the State of Arizona's narrowing scheme in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)³, and in Lewis v. Jeffers, 497 U.S. 764, 777-78, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (stating that Arizona Supreme Court construed the "especially heinous, cruel or depraved" aggravating circumstance in a constitutionally permissible manner) (emphasis added). The specific Arizona aggravating factor considered in these two cases was almost identical to Nebraska's "exceptional depravity" formulation. As a result of our 1990 misstep in Moore I, taken over the vigorous objection of Judge Floyd Gibson, Moore's case has been adrift in the state and federal courts for the past twelve-plus years. The court, sitting en banc, is obviously not bound by the 1990 Moore I decision. Therefore we begin with a clean slate as we examine Moore's 1995 resentencing. As we do so, we note that Moore's current habeas corpus petition, filed in 1999, is governed by the standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996.

The two issues certified for appeal in this case center around whether Neb.Rev.Stat. § 29-2523(1)(d) is unconstitutional: (1) on its face because it remains open-ended and vague, and it fails to channel application of the death penalty; and (2) as applied by the Nebraska courts because the resentencing panel's construction of the statute denied Moore due process. We cannot grant Moore habeas corpus relief on any claim that was "adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The first step in this analysis is to compare the state court decision with applicable Supreme Court precedent on the subject in question. The state court decision is only "contrary to" established Supreme Court precedent if the state court applied a rule that directly contradicts Supreme Court precedent containing "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the Court). And, a state court's application of the law is not "unreasonable" if it is merely incorrect or erroneous in this court's independent judgment; rather, it must be objectively unreasonable. Id. at 410, 120 S.Ct. 1495 (O'Connor, J., for the Court). Nor is citation to any particular Supreme Court case necessary, "so long as neither the reasoning nor the result of the state-court decision contradicts" Supreme Court precedent. Early v. Packer, ___ U.S. ___, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (per curiam). Factual findings by the state court "shall be presumed to be correct," and this presumption will be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The district court's legal conclusions are reviewed de novo, McDowell v. Leapley, 984 F.2d 232, 233 (8th Cir.1993), and its factual findings are reviewed for clear error, Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989).

With these standards in mind, we turn to Moore's 1995 resentencing, and the subsequent Nebraska Supreme Court adjudication of his current claims. Upon remand to the Nebraska Supreme Court for resentencing following our 1990 decision, the state asked the court to define "exceptional depravity" in a way that would satisfy the federal court's objections to the statute's constitutionality, to apply the newly constructed definition to the facts of the case, to reweigh the aggravating and mitigating factors, and to resentence Moore. State v. Moore, 502 N.W.2d at 228. As earlier indicated, the supreme court declined these requests and remanded the case to the state district court for resentencing. Id.

A.

At resentencing, the state district court applied its own narrowed construction of "exceptional depravity" to the facts of Moore's case. State v. Moore, 553 N.W.2d at 132. The resentencing panel determined that the definition of "exceptional depravity" should include the following:

(1) the killer's infliction of prolonged or significant physical violence, such as sexual abuse, on the victim after the victim's death or loss of consciousness; (2) the killer's mutilation or dismemberment of the victim's body after death;... (3) the apparent relishing of the murder by the killer ... [and (4)] the killer's cold, calculated planning of the victim's death, as exemplified by experimentation with the method of causing the victim's death or by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.

Id. (emphasis omitted). The resentencing panel concluded that the fourth factor was present due to Moore's selection of his victims on the basis of age. Id. Based on the presence of this and other...