960 F.2d 72 (8th Cir. 1992), 91-2453, Rust v. Clarke

Docket Nº:91-2453.
Citation:960 F.2d 72
Party Name:John E. RUST, Appellee, v. Harold W. CLARKE, Warden, Nebraska State Penitentiary, Appellant.
Case Date:March 26, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 72

960 F.2d 72 (8th Cir. 1992)

John E. RUST, Appellee,


Harold W. CLARKE, Warden, Nebraska State Penitentiary, Appellant.

No. 91-2453.

United States Court of Appeals, Eighth Circuit

March 26, 1992

Submitted March 9, 1992.

J. Kirk Brown, Asst. Atty. Gen., Lincoln, Neb., argued, for appellant.

Emil M. Fabian, Omaha, Neb., argued (Barbara Thielen, on brief), for appellee.

Page 73

Before JOHN R. GIBSON, Circuit Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.


This is a capital case. John Rust was sentenced to death by a panel of Nebraska state judges on October 30, 1975. The conviction was affirmed by the Nebraska Supreme Court on February 2, 1977. Because the defendant filed and appealed two motions for post-conviction relief, this matter remained in the state court until 1986. On June 9, 1987, Rust filed a habeas petition in the federal district court. He filed an amended petition on July 6, 1988. The case was assigned to the docket of Judge Warren Urbom and referred for recommendation to Magistrate David Piester. On May 26, 1989, the case was transferred to Judge William Cambridge and assigned to Magistrate Richard Kopf. On February 14, 1990, the magistrate issued a recommendation that Rust's sentence be reduced to life imprisonment, unless the State of Nebraska initiated capital resentencing proceedings within sixty days after the judgment became final. Magistrate Kopf found that the state trial court erred by failing to apply the reasonable doubt standard in finding aggravating circumstances. On this basis, without passing on any other claim alleging error in the conviction and sentencing proceeding, the magistrate issued his findings and recommendations. Judge Cambridge adopted the magistrate's findings on May 13, 1991. This appeal followed.

Habeas corpus is a civil action. Our jurisdiction turns on the finality of the judgment below. Serious jurisdictional questions arise from the district court's order. According to the parties, several claims relating to both the sentence and the conviction remain undecided. Resentencing (from death to life) does not obviate legal claims raised challenging the conviction. The district court's order stating that habeas relief will be granted unless the state grants a new sentencing hearing within sixty days would appear to also lack finality due to the pendency of undecided claims. To...

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