Joubert v. Hopkins

• Decision Date: 09 April 1996
• Docket Number: 94-3849,Nos. 94-3687,s. 94-3687
• Citation: 75 F.3d 1232
• Parties: John J. JOUBERT, Appellee/Cross-Appellant, v. Frank X. HOPKINS, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1232

75 F.3d 1232

John J. JOUBERT, Appellee/Cross-Appellant, v. Frank X. HOPKINS, Appellant/Cross-Appellee.

Nos. 94-3687, 94-3849.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1995.

Decided Jan. 25, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied April

9, 1996. ^*

On Appeal from the United States District Court for the District of Nebraska; William G. Cambridge, Judge.

J. Kirk Brown, Asst. Atty. General, Lincoln, Nebraska, argued, for Appellant.

Mark Alan Weber, Omaha, Nebraska, argued (J. Joseph McQuillan and Scott A. Calkins, on the brief), for Appellee.

Before BEAM, BRIGHT, and MURPHY, Circuit Judges.

BEAM, Circuit Judge.

John Joubert entered guilty pleas to two counts of first-degree murder. He received a death sentence on each count. After pursuing direct and collateral relief in the state courts, he filed a petition for a writ of habeas corpus in federal district court. The district court found that Mr. Joubert's death sentences were based on an unconstitutionally vague statutory aggravating factor and granted the writ. The State of Nebraska appeals. Joubert cross-appeals the district court's denial of other claims presented in his habeas petition. We affirm in part and reverse in part.

I. BACKGROUND

In the fall of 1983, Joubert, a recent transferee to Offutt Airforce Base, began to act out his fantasies of stabbing young boys to death. Early one September morning, he went hunting for a victim. He saw 13-year-old Danny Eberle delivering papers. Joubert grabbed, gagged, and bound Danny, put him in the trunk of a car, and took him to a remote area. He stripped Danny to his underwear, sequentially untying and retying the boy's bonds. Danny's gag worked loose and he asked Joubert if he was going to die. When Joubert said yes, Danny tried to roll away, but Joubert stabbed him in the back, pinning him to the ground with the knife. While pinned, Danny promised not to tell if Joubert would take him to a hospital. Joubert considered the proposition, but decided that Danny would probably get him in trouble if allowed to live. So, he stabbed and sliced the boy until he died from loss of blood.

Several months later, Joubert again went out in the predawn to hunt for a victim. He saw 12-year-old Christopher Walden walking to school. He displayed his knife to Christopher and told him to come along. Once in the car, Joubert made Christopher get down on the floor boards out of sight. When the boy began to cry, Joubert considered releasing him, but decided against it for fear of being caught. Joubert took Christopher to a secluded spot and instructed him to strip to his underwear and to lay down on his back. Because of the snow, the boy balked at laying down, so Joubert "encouraged" him by putting his hands around Christopher's neck and forcing him down. Joubert continued to strangle Christopher, but his hands got cold, so he took his knife and started stabbing and slicing the boy, finally cutting his throat. Christopher remained cognizant for some time, and then gradually lapsed into a coma and died from loss of blood. He was found with a figure resembling a plant carved into his torso.

Joubert went hunting again one January morning. He found a preschool teacher. She became suspicious while he observed her from his car and wrote down his license plate number. When he approached her, and tried to force her into a school room while threatening to kill her, she burst past him and called the police. A license check led to Joubert. While being questioned about the school incident, Joubert began to make spontaneous admissions as to the murders of the two boys. After waiving his rights, Joubert confessed to the two murders, giving details unknown to the public which were corroborated by the crime scenes. He also provided police with details they had been unable to reconstruct, which were later corroborated. The police subsequently discovered physical evidence further linking Joubert to the murders.

Joubert was charged with two counts of first-degree murder. Before trial, Joubert entered guilty pleas pursuant to a plea bargain. In exchange for the pleas, the state agreed not to present evidence to the sentencing panel that Joubert had previously murdered a young boy in Maine. ¹ After a sentencing hearing, in which the state adhered to its bargain, Joubert was sentenced to death on both counts. In imposing the death penalty, the sentencing panel found two statutory aggravating factors in regard to the murder of Danny Eberle: 1) that he was killed in order to conceal the perpetrator's identity (Nebraska statutory aggravator 29-2523(1)(b)); and 2) that the murder was both "especially heinous, atrocious, [and] cruel" and represented "exceptional depravity" as those terms were defined at that time (Nebraska statutory aggravator 29-2523(1)(d)). ² In regard to the murder of Christopher Walden, the panel found three statutory aggravating factors: 1) that Christopher was killed in order to conceal the perpetrator's identity; 2) that the murder was both "especially heinous, atrocious, [and] cruel" and represented "exceptional depravity;" and 3) that at the time of the murder, the perpetrator had "a substantial history of serious assaultive or terrorizing criminal activity" (Nebraska statutory aggravator 29-2523(1)(a)).

After Joubert's direct and postconviction appeals were denied by the state courts, he filed a petition for habeas corpus in federal district court alleging numerous grounds for relief including: 1) his death sentences were infirm because "exceptional depravity" is an unconstitutionally vague aggravator; 2) the sentencing panel improperly applied the aggravating circumstance relating to a history of serious assaultive criminal activity to Joubert; 3) the sentencing panel erred in finding that Joubert killed his victims to avoid detection; 4) the trial judge improperly injected himself into the plea bargain process; 5) his counsel was constitutionally ineffective for failing to inform him that the trial court was willing to accept a conditional plea; and 6) Nebraska's death penalty process is facially discriminatory and discriminatory as applied, because it is facially arbitrary and because prosecutorial discretion results in uneven application.

The district court granted relief on the claim that "exceptional depravity" is an unconstitutionally vague aggravating circumstance, and denied relief on Joubert's other claims. The State of Nebraska appeals, arguing the writ was improperly granted, and that even if properly granted, the district court improperly limited the state's options as to how to respond to the writ. Joubert appeals the district court's denial of those other claims listed above.

II. DISCUSSION

A. "Exceptional Depravity" Statutory Aggravator

In granting relief, the district court found that Joubert's vagueness claim had been properly presented to the state courts. Alternatively, it found that any procedural bar was excused under the cause and prejudice standard. Finally, the district court found that the "exceptional depravity" prong of aggravator 29-2523(1)(d) was unconstitutionally vague as it was defined at the time of Joubert's sentencing. Generally, the existence of the "atrocious, heinous, [and] cruel" prong (which had been constitutionally narrowed at the time it was applied to Joubert) would suffice to support the application of aggravator 29-2523(1)(d) independently of any infirmity in the "exceptional depravity" prong. See supra n. 2. In this case, however, the sentencing panel explicitly relied more heavily on the "exceptional depravity" prong than on the "heinous, atrocious, [and] cruel" prong to find the existence of the aggravator. The district court found that such greater reliance on the unconstitutionally vague prong rendered the death sentence infirm under Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (use of an invalid aggravator in a weighing state amounts to an impermissible thumb on death's scale). While we might agree with the district court's Stringer concerns, we reverse on other grounds.

1. Procedural Bar

In the absence of cause and prejudice, or a sufficient showing of likely actual innocence, a federal habeas court may consider only those issues which have been raised and fairly presented to the state courts. Sawyer v. Whitley, 505 U.S. 333, 337-39, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992). A claim has been fairly presented when a petitioner has properly raised the "same factual grounds and legal theories" in the state courts which he is attempting to raise in his federal habeas petition. E.g., Forest v. Delo, 52 F.3d 716, 719 (8th Cir.1995), Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2620, 132 L.Ed.2d 862 (1995); Flieger v. Delo, 16 F.3d 878, 884 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994).

The district court found that although Joubert had not specifically raised the vagueness claim in his direct appeal or in his state postconviction proceedings, the vagueness claim was nonetheless fairly presented. It concluded that Joubert's argument to the state court that there was insufficient evidence to support applying the "exceptional depravity" factor in his case encompassed the claim of unconstitutional vagueness. Specifically, the district court found that "a Fourteenth Amendment due process issue is inherent in the analysis of the [insufficient evidence] issue." ³ Joubert v. Hopkins, No. 8:CV91-00350, mem. op. at 97 (D.Neb. Oct. 11, 1994). Therefore, the district court held that there was no procedural bar.

We have closely examined Joubert's arguments to the state court, and nowhere in his discussion of the "exceptional depravity" circumstance does he mention either the Eighth or Fourteenth Amendment or unconstitutional vagueness. Just as a claim that there is insufficient evidence to support a...