Moore v. Kinney, No. 4:99CV3263.

• Decision Date: 14 November 2000
• Docket Number: No. 4:99CV3263.
• Citation: 119 F.Supp.2d 1022
• Parties: Carey Dean MOORE, Petitioner, v. Michael L. KINNEY, Respondent.
• Court: U.S. District Court — District of Nebraska

119 F.Supp.2d 1022

Carey Dean MOORE, Petitioner, v. Michael L. KINNEY, Respondent.

No. 4:99CV3263.

United States District Court, D. Nebraska.

November 14, 2000.

COPYRIGHT MATERIAL OMITTED

Alan E. Peterson, Cline, Williams Law Firm, Lincoln, NE, Daniel E. Klaus, Rembolt, Ludtke Law Firm, Lincoln, NE, for Petitioner.

Donald B. Stenberg, J. Kirk Brown, Attorney General's Office, Lincoln, NE, for Respondent.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the Magistrate Judge's Report and Recommendation (filing 49) and the objections to the Report and Recommendation filed by Respondent (filing 50) and Petitioner (filing 51), as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. After a de novo review of the portions of the Recommendation to which objections have been made, I find that the Magistrate Judge's Recommendation that the Petition for Writ of Habeas Corpus (filing 1) be granted with respect to claims (1) and (2) should be rejected for the reasons stated below.

I also find, without extended discussion, that I should adopt the Magistrate Judge's Recommendation that claims (3) through (12) be denied for essentially the same reasons stated by the Magistrate Judge. While I might employ a slightly different analysis than that performed by the Magistrate Judge on some of the issues presented in claims (3) through (12), I have no material disagreement with the Magistrate Judge's ultimate disposition of those claims. In his objections to the Magistrate Judge's Report and Recommendation, Petitioner also asserts what is in reality an appeal from the Magistrate's order denying Petitioner's request for an evidentiary hearing and the Magistrate's unstated, but implicit, denial of Petitioner's request for expansion of the record. (Filing 51, at 2.) I shall deny Petitioner's appeal because the Magistrate Judge's orders were not "clearly erroneous or contrary to law." NELR 72.3.

I. FACTUAL AND PROCEDURAL BACKGROUND

During a four-day span in August 1979, Petitioner Carey Dean Moore robbed and murdered two Omaha taxi drivers. The relevant events surrounding the murders have been described by the Nebraska Supreme Court:

About August 20, 1979, [Moore] purchased the handgun with which the murders were committed. He acquired the gun by purchasing it from a cabdriver who had pawned the gun. [Moore] and the seller went together to the pawnshop where the gun was redeemed, [Moore] furnishing the money for the redemption and paying the seller an additional $50. The gun was then testfired.

We now quote from the findings made by the sentencing panel in its order, which findings are fully supported by uncontroverted evidence: "[Moore's] own statements, in his confession to Officers O'Donnell and Thompson while in custody at Charles City, Iowa, indicate that these crimes had been in the planning stage for at least a day or two before the [Reuel Eugene] Van Ness[, Jr.,] homicide. Apparently on the evening prior to the Van Ness murder [Moore] had called a number of cabs from a telephone booth somewhere on Farnam Street in the downtown Omaha area to see how quickly each would respond to his call. [Moore] then hid somewhere in the vicinity to await each cab's arrival, at which time he checked the cab to determine whether the driver would be a suitable victim, i.e., not too young, since [Moore] stated that it was easier for him to shoot an older man rather than a younger man nearer his own age. On the evening of the Van Ness homicide, [Moore's] plan was to call one cab at a time from the Smoke Pit restaurant, and, if the driver who responded `wasn't too old,' [Moore] would just not identify himself as the fare for which the cab had been summoned. When ... Van Ness arrived at the Smoke Pit on August 22, 1979, [Moore] determined that this was the driver who would be robbed and shot because `he wasn't too young'.

"A similar pattern of events unfolded on August 26, 1979. [Moore] went to the Greyhound Bus depot at 18th and Farnam Streets in Omaha that evening, and, when he saw a lone cab with an older driver [Maynard D. Helgeland] parked at the taxi stand outside the depot, he got into the cab and directed the driver to take him to the Benson area. According to [Moore], this particular cab and driver were selected both because there were no other cabs at the taxi stand at the time, thus decreasing the chances of [Moore's] being identified, and because the driver was an older man. [Moore] then stated that, as previously discussed, he had planned ahead of time to rob and shoot the driver of whichever cab he selected." In his confessions [Moore] stated that he killed each of the victims in order that the victim would not be able to identify him as the robber.

State v. Moore, 250 Neb. 805, 806-08, 553 N.W.2d 120, 125-26 (1996) (quoting Nebraska Supreme Court's opinion of Jan. 29, 1982, affirming on direct appeal original sentences of death imposed upon Moore by sentencing panel of the district court on June 20, 1980, State v. Moore, 210 Neb. 457, 461-62, 316 N.W.2d 33, 36-37, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982)), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997).

Moore was convicted of two counts of first-degree murder, based on a felony murder theory, and was sentenced to death by a three-judge panel in 1980.¹ The Nebraska Supreme Court affirmed the convictions and sentence in State v. Moore, 210 Neb. 457, 316 N.W.2d 33, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). Moore filed a motion for postconviction relief in 1982, which was denied by the district court in 1983, and which 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), holding unconstitutionally vague the "exceptional depravity" component of the aggravating circumstance provided in Neb. Rev.Stat. § 29-2523(1)(d) — that is, that the "murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence" (emphasis added)² — and ordering the reduction of Moore's sentence to life imprisonment unless the State initiated capital resentencing proceedings within 60 days after the judgment became final. The State of Nebraska then appealed to the Eighth Circuit Court of Appeals, which affirmed the grant of habeas corpus relief and order of resentencing, holding unconstitutionally vague, both on its face and as interpreted by the Nebraska Supreme Court, the "exceptional depravity" component of the aggravating circumstances provided in Neb.Rev.Stat. § 29-2523(1)(d). Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990). The Eighth Circuit's affirmance of the grant of habeas corpus relief and order of resentencing was reaffirmed by the Eighth Circuit on denial of rehearing. Moore v. Clarke, 951 F.2d 895 (8th Cir.1991), cert. denied, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

On remand, the Nebraska Supreme Court determined that it would decline to resentence Moore itself, but instead would remand the matter to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993). The three-judge sentencing panel of the state district court again sentenced Moore to death, a decision affirmed by the Nebraska Supreme Court in State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997).

After the Nebraska Supreme Court set an execution date for May 9, 1997, Moore filed a state action for postconviction relief on April 30, 1997. On May 5, 1997, the Nebraska Supreme Court stayed Moore's execution and the district court denied Moore's motion for postconviction relief without an evidentiary hearing. The Nebraska Supreme Court affirmed the judgment of the district court in State v. Moore, 256 Neb. 553, 591 N.W.2d 86, cert. denied, 528 U.S. 990, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999). On October 5, 1999, Moore filed in this court the petition for writ of habeas corpus now under consideration.

II. ANALYSIS

The Magistrate Judge concludes that Moore's Petition for Writ of Habeas Corpus should be granted because: (1) the narrowing construction of "exceptional depravity" used by the sentencing panel and adopted by the Nebraska Supreme Court is insufficient; and (2) even if the narrowing construction was appropriate, Moore was denied procedural due process because the sentencing panel announced the construction at the same time it pronounced sentence and, therefore, the panel failed to give Moore proper notice.

A. Narrowing "Exceptional Depravity" Over Time

In order to understand what follows, a timeline regarding the narrowing of "exceptional depravity" is helpful. I provide that chronology next.

1982

In 1982, the Nebraska Supreme Court first dealt with and affirmed the death sentence for the petitioner. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). In that case, the court made it clear that the facts of the case, including the fact that the murders were "coldly planned" and the defendant selected victims because of their age, warranted the conclusion that the murders were "exceptionally depraved." Id. at 471, 316 N.W.2d at 41.

1986

Four years later, the Nebraska Supreme Court adopted a five-part narrowing test for "exceptional depravity," and that test was derived from the Arizona case of State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See State v. Palmer, 224 Neb. 282, 318-20, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). The factors which tended to narrow "exceptional depravity" included: (1) the apparent relishing of the murder by the killer; (2) the infliction of...