Moore v. Kinney

• Decision Date: 25 January 2002
• Docket Number: No. 00-4079.,00-4079.
• Citation: 278 F.3d 774
• 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

278 F.3d 774

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: June 13, 2001.

Filed: January 25, 2002.

Rehearing En Banc Granted; Opinion Vacated: March 29, 2002.

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

J. Kirk Brown, Lincoln, NE, argued, for appellee.

Before MURPHY, HEANEY and BEAM, Circuit Judges.

HEANEY, Circuit Judge.

Carey Dean Moore was sentenced to death under the "exceptional depravity" component of Nebraska Revised Statutes § 29-2523(1)(d). Since that date, he has litigated the constitutionality of the definition of the aggravator, asserting that it is unconstitutionally vague in violation of the Eighth and Fourteenth Amendments. The district court determined that the state district court's newly-crafted definition of exceptional depravity, which was applied against Moore in resentencing, rendered the aggravator constitutional, and denied Moore habeas relief. Moore appeals, and we reverse.

I. Factual and Procedural Background

Carey Dean Moore has been on death row since 1980. At the age of 21, Moore robbed and killed two Omaha taxi drivers during a four-day span in August, 1979. Moore was sentenced to death by a three-judge panel on the basis of Nebraska Revised Statutes § 29-2523(1)(d), which permits the imposition of a death sentence where "[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." It is agreed that the statute is vague on its face, and that the term exceptional depravity has sparked tremendous debate in the Nebraska courts and the Eighth Circuit.

The original sentencing panel found that neither murder was "especially `heinous, atrocious, or cruel'" because "neither of the killings involved torture, sadism, sexual abuse, or the imposition by the defendant of extreme suffering on the victim," thus eliminating the first prong of the § 29-2523(1)(d) aggravating factor. State v. Moore, Order of Sentence at 84 (Dist. Ct. Douglas County, June 20, 1980). However, the panel determined that the facts of the case established that the defendant exhibited exceptional depravity, the second prong of § 29-2523(1)(d), because "each of [the] murders was ... so coldly calculated as to indicate a state of mind totally and senselessly bereft of all regard for human life," and "[t]he defendant's own statements... while in custody ... indicate[d] that these crimes had been in the planning stage for at least a day or two before the [first homicide]." Id. at 84-85. The sentencing panel also noted Moore's selection of his victims on the basis of their age, observing that Moore had explained in his confession that when his potential victims drove up, he hid in the vicinity of the address and checked the cab to see whether the driver was "not too young" because it was easier for him to shoot an older man rather than a younger man nearer his own age. Id. at 85. The panel remarked that Moore selected the particular cab and driver on each occasion "because there were no other cabs at the taxi stand at the time, thus decreasing the chances of the defendant being identified, and because the driver was an older man." Id.

The Nebraska Supreme Court affirmed Moore's death sentence on the basis of three factors, placing particular emphasis on Moore's selection of older victims:

We agree that the following circumstances exhibit a state of mind exceptionally depraved and totally and senselessly bereft of regard for human life: (1) the murders here were coldly planned as a part of the robberies. (2) The evidence clearly supports the conclusion that the murders were to be repetitive, i.e., the defendant intended to continue on his selected course of conduct so long as his needs required. (3) The victims were selected on the basis of certain characteristics which made it easier for the defendant to shoot them, namely, their ages. His unstated conclusion was that a human life in the middle years is less valuable than a younger life.

State v. Moore, 210 Neb. 457, 316 N.W.2d 33, 41 (Neb.1982) (emphasis added).

In 1988, Moore sought federal habeas relief in the federal district court. In granting Moore's petition, the court examined the three factors relied upon by the state supreme court, cited above. It explained that "as earnest as the Supreme Court of Nebraska has been in its difficult task to bring Nebraska's statutory language of this aggravating factor into constitutional objectivity, a sentencer is left with only scattered and uncertain fragments for a definition." Moore v. Clarke, No. CV84-L-754, slip op. at 5 (D.Neb. Sept. 20, 1988). The court rejected the Nebraska Supreme Court's analysis, stating: "The procedure of simply analyzing on appeal the specific facts of the case to determine that they fall within the ambit of the language of the second prong of [the exceptional depravity aggravating circumstance] does not render the ambiguous words of the statute constitutional." Id. In emphasizing the ambiguous state of § 29-2523(1)(d), the court made clear that State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), which articulated five circumstances in which the exceptional depravity aggravator was applicable,¹ failed to adequately represent pre-1986 illustrations of exceptional depravity in Nebraska case law. See id. at 4.

The district court relied in part upon Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), in holding that the exceptional depravity aggravating factor was unconstitutionally vague. In Maynard, the petitioner sought habeas relief after he was convicted of murder and sentenced to death in accordance with an Oklahoma aggravating factor statute. The Supreme Court held that the "especially heinous, atrocious, or cruel" aggravating factor was unconstitutionally vague because it did not provide sufficient guidance to the jury in deciding whether to impose the death penalty. Id. at 363-64, 108 S.Ct. 1853. The district court emphasized that Moore's sentencing panel was not "on notice" that the selection of a victim on the basis of age was a constitutionally sound indicator of the exceptional depravity aggravating factor. In conclusion, the court explained that:

[t]o date the dissimilar results in the cases before the Supreme Court of Nebraska, despite that court's attempt at specificity, leave the sentencer to look closely at the facts of each case and to decide whether those facts show enough to lead to a finding that the second prong of aggravating factor (d) is applicable, without restriction beyond the boundless words of the statute. More specificity is required in order for that aggravating circumstance to have a constitutional validity, whether the sentencer is a single judge, a panel of judges, or either with the assistance of a jury.

Id. at 6. The court ordered Moore's sentence reduced to life imprisonment unless the state initiated capital resentencing proceedings within sixty days after the judgment became final. The state promptly appealed.

This court affirmed, concluding that the Nebraska Supreme Court had failed to provide sufficient guidance to the sentencing panel "to cure the constitutional deficiencies of this vaguely-worded statute." Moore v. Clarke, 904 F.2d 1226, 1230 (8th Cir.1990). We noted the state supreme court's conclusion that Moore thought a human life in the middle years was less valuable than a younger life, id. at 1229, but also determined that its imposition of the death sentence on the basis of age selection was one of the reasons why the statute remained unconstitutional.

This court also analyzed Nebraska Supreme Court precedent regarding the use of the exceptional depravity aggravating factor, and explained that it had previously defined exceptional depravity to mean "so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life," State v. Harper, 208 Neb. 568, 304 N.W.2d 663, 668 (1981); "unresisting victims," State v. Peery, 199 Neb. 656, 261 N.W.2d 95, 104-105 (1977); and "exceptional," State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891 (1977), and found those definitions to be subjective, vague, and overly broad. See Moore, 904 F.2d at 1230. Additionally, we determined that Palmer could not be accurately characterized as clarifying existing state law: "[t]he Nebraska Supreme Court's attempt in Palmer to rearticulate its interpretation of the vague `exceptional depravity' language fails because it cannot be reconciled with the prior Nebraska cases." Id. at 1231. Further, "[t]o us, the greater significance of Palmer is that it demonstrates the Nebraska Supreme Court's exhaustive efforts to redefine the phrase `exceptional depravity'; this simply underscores our conclusion that the phrase is unconstitutionally vague." Id. at 1232. Finally, we concluded:

Our examination of the state court precedent available to guide sentencing bodies in Nebraska which are required to determine whether the murder "manifested exceptional depravity" leads us to conclude, as did the district court, that, as earnestly as the Nebraska Supreme Court has attempted to provide objective criteria, the unconstitutional vagueness of the critical language in this statute remains. A sentencing body may glean only subjective and unilluminating fragments from existing case law.

Id. at 1232. We subsequently denied the state's petition for rehearing, Moore v. Clarke, 951 F.2d 895 (8th Cir.1991), and the United States Supreme Court denied certiorari, Clarke v. Moore, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

Upon remand to the Nebraska Supreme Court for resentencing, the state requested that the court define exceptional depravity in a way that would satisfy the federal court's objections to its constitutionality, apply the newly...