984 F.2d 1486 (8th Cir. 1993), 91-2453, Rust v. Hopkins

Docket Nº:91-2453, 92-2680 and 92-3195.
Citation:984 F.2d 1486
Party Name:John E. RUST, Plaintiff-Appellant, v. Frances X. HOPKINS, [*] Warden Nebraska State Penitentiary, Defendant-Appellee. John E. RUST, Plaintiff-Appellee, v. Frances X. HOPKINS, Warden, Nebraska State Penitentiary, Defendant-Appellant. John E. RUST, Plaintiff-Appellant, v. Frances X. HOPKINS, Warden, Nebraska State Penitentiary, Defendant-Appellee.
Case Date:January 20, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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984 F.2d 1486 (8th Cir. 1993)

John E. RUST, Plaintiff-Appellant,


Frances X. HOPKINS, [*] Warden Nebraska State

Penitentiary, Defendant-Appellee.

John E. RUST, Plaintiff-Appellee,


Frances X. HOPKINS, Warden, Nebraska State Penitentiary,


John E. RUST, Plaintiff-Appellant,


Frances X. HOPKINS, Warden, Nebraska State Penitentiary,


Nos. 91-2453, 92-2680 and 92-3195.

United States Court of Appeals, Eighth Circuit

January 20, 1993

Submitted Oct. 13, 1992.

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J. Kirk Brown, Asst. Atty. Gen., Lincoln, NE, for Hopkins.

Emil M. Fabian, Omaha, NE, argued (Barbara Thielen, on the brief), for Rust.

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

JOHN R. GIBSON, Circuit Judge.

Frances X. Hopkins, Warden of the Nebraska State Penitentiary, appeals from a district court 1 order granting a writ of habeas corpus and ordering resentencing of John E. Rust, who had been convicted of murder and sentenced to death. The district court granted the writ on two bases: First, the Nebraska Supreme Court denied Rust due process of law by finding on appeal that the aggravating factors were proven beyond a reasonable doubt, even though the sentencing panel had applied a lower standard of proof; second, Rust's trial counsel rendered ineffective assistance by failing to consult with Rust before sentencing and by failing to clarify the facts surrounding the killing when arguing before the sentencing panel. Hopkins argues that the first issue was not fairly presented to Nebraska courts, and thus, is procedurally barred. Hopkins also argues that even if the issue is not procedurally barred, Rust was not denied due process, because the Nebraska Supreme Court found adequate evidence to support the sentence of death beyond a reasonable doubt. As to the second issue, the warden argues that the district court erred in finding ineffective assistance of counsel and prejudice. Rust cross appeals, arguing that the district court erred in failing to grant the writ on several other grounds. We affirm the issuance of the writ.

Rust was charged with shooting and killing civilian Michael Kellogg, who had chased and shot at Rust after Rust had participated in an armed robbery. Rust returned fire and shot Kellogg three times. A police officer observed part, but not all, of the incident. At trial, the officer testified that he did not see the first shot, but did see Kellogg shot again "when he first started to fall," and "as he went down." The officer responded to the leading question, "As he was down?" by saying "Yes, sir."

Rust was convicted of Kellogg's murder, and a sentencing panel of three state district judges was convened to determine whether the death penalty was warranted. See Neb.Rev.Stat. § 29-2520 (1975). At the sentencing hearing, the prosecutor argued that the death penalty should be imposed and described the officer's trial testimony: "[Officer Wolf] saw Mr. Kellogg falling to the ground, at which time John Rust fired two more shots into his body and Michael Kellogg fell over dead." Rust's trial counsel strenuously argued the presence of mitigating factors, and described the killing:

We don't have John Rust going into somebody's house and cold-bloodedly killing them; and cold-bloodedly raping them.

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Mr. Kellogg introduced himself into the situation.

.. at no request from anyone....

He came around the corner with his gun blazing ...

So, we got Mr. Rust standing in the back yard with somebody shooting at him.

Rust's counsel, however, then said, "I don't think that all is relevant today."

The sentencing panel considered the statutory aggravating factors 2 and found that four existed: (a) Rust had been convicted of earlier crimes involving the use or threat of violence; (b) Rust murdered Kellogg to conceal the commission of crimes and his identity; (f) Rust knowingly created a great risk of death to at least several persons, and this factor existed to a great degree; and (h) Rust murdered Kellogg to disrupt and hinder the lawful exercise of a governmental function or the enforcement of the laws. Although the sentencing panel concluded that aggravating circumstance (d) did not exist, it observed that "[i]nstead of continuing with his escape, [Rust] ... deliberately fired two more shots at Kellogg while he was wounded and lying on the ground." The panel then considered all the mitigating circumstances, 3 and concluded that Rust committed the crime while he was under the influence of extreme mental or emotional disturbance. The panel weighed the aggravating and mitigating circumstances and concluded that a sentence of death was warranted. Rejecting Rust's constitutional objections, the panel entered a judgment of guilt and a sentence of death.

On direct appeal, the Nebraska Supreme Court affirmed Rust's conviction and death sentence. State v. Rust, 197 Neb. 528, 250 N.W.2d 867, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977). The Nebraska Supreme Court set out the facts of the case and stated that Rust "was observed to be shooting into Kellogg's body after Kellogg had fallen as a result of an earlier shot fired by Rust." Id. at 871. The court then discussed each of the factors in detail. Id. at 872-76. On the same day it decided Rust, the court also decided State v. Simants, 197 Neb. 549, 250 N.W.2d 881, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977), which held for the first time that aggravating circumstances must be proven beyond a reasonable doubt. Rust, 197 Neb. 528, 250 N.W.2d at 876. The court affirmed Rust's death sentence, concluding that its review

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of the evidence indicated that each circumstance in Rust's case had been proven beyond a reasonable doubt as Simants required. Id.

Rust moved for rehearing, arguing that the sentencing panel probably applied the standard from Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955), cert. denied, 352 U.S. 880, 77 S.Ct. 104, 1 L.Ed.2d 81 (1956), which did not require proof of aggravating circumstances beyond a reasonable doubt. Rust argued that the interests of justice and due process required that his sentence be vacated and the case be remanded for resentencing in light of the new Simants standard. The Nebraska Supreme Court summarily denied the motion for rehearing without opinion.

Rust then challenged his conviction and sentence under the Nebraska Post Conviction Act, Neb.Rev.Stat. §§ 29-3001 to -3004 (1985). One of his claims alleged ineffective assistance of counsel, but all claims were denied, and the Nebraska Supreme Court affirmed the denial. State v. Rust, 208 Neb. 320, 303 N.W.2d 490, cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). Rust then brought an action in the federal district court, but because certain claims had not been exhausted at the state level, he was required to again seek post-conviction relief. See State v. Rust, 223 Neb. 150, 388 N.W.2d 483, 488 (1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1987, 95 L.Ed.2d 826 (1987). His post-conviction relief request was again denied, and the Nebraska Supreme Court affirmed. Id.

Rust unsuccessfully sought state habeas corpus relief in Rust v. Gunter, 228 Neb. 141, 421 N.W.2d 458 (1988), and then filed this habeas corpus action with the district court under 28 U.S.C. § 2254 (1988). The case was referred to a magistrate judge 4 for a report and recommendation. The magistrate judge found that the sentencing panel applied the wrong standard, the Nebraska Supreme Court could not cure this error, and the factfinding process did not support a harmless error analysis. The magistrate judge recommended abstention as to the remainder of the errors Rust alleged.

The district court adopted the magistrate judge's findings and recommendations and ordered that Rust's sentence be reduced to life imprisonment unless the State initiated capital resentencing proceedings within sixty days from the date the judgment was entered. The district judge abstained from considering the remaining issues. The warden appealed from this order, and the case was briefed and argued before this panel. We remanded for consideration of the remaining issues, and because of the length of time the case had been pending, we requested that the district court decide those issues within ninety days. 5 Rust v. Clarke, 960 F.2d 72, 73-74 (8th Cir.1992).

The district court then entered an additional order, granting habeas relief on Rust's ineffective assistance of counsel claims relating to the sentencing phase of his trial. The district court thoroughly examined Rust's ineffective assistance of counsel claims and concluded that counsel had failed to adequately discuss with Rust

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the strategy and evidentiary and procedural aspects of the sentencing hearings, and failed to argue the facts surrounding the killing to the sentencing panel. The district court found that this failure gave the panel and the Nebraska Supreme Court the erroneous impression that Rust stood over Kellogg and shot him twice while he lay helpless on the ground. Accordingly, the district court entered judgment in favor of Rust, ordering that his sentence be reduced to life imprisonment unless the State initiated capital resentencing proceedings within sixty days after the judgment became final. The district court also considered and rejected other claims for relief, including ineffective assistance of counsel claims regarding Rust's conviction. We discuss these claims in part IV of this opinion.


Before considering Rust's standard of proof claim, we must determine whether the district court erred in holding that this issue was fairly presented to the...

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