Reeves v. Hopkins

• Decision Date: 27 February 1997
• Docket Number: Nos. 95-1098,95-1188,s. 95-1098
• Citation: 102 F.3d 977
• Parties: Randolph K. REEVES, Appellee/Appellant v. Frank X. HOPKINS, Warden of the Nebraska Penal and Correctional Complex, Appellant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 977

102 F.3d 977

Randolph K. REEVES, Appellee/Appellant v. Frank X. HOPKINS, Warden of the Nebraska Penal and Correctional Complex, Appellant/Appellee.

Nos. 95-1098, 95-1188.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 9, 1996.

Decided Dec. 24, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb.

27, 1997. ^*

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

Paula Hutchinson, Lincoln, NE, argued (Kent Gipson, Kansas City, MO, on the brief), for appellee.

Before BOWMAN, BRIGHT, and BEAM, Circuit Judges

BEAM, Circuit Judge.

Randolph Reeves was convicted of two counts of felony murder and sentenced to death. Following unsuccessful appeal and postconviction actions in Nebraska state court, Reeves was granted habeas corpus relief in federal district court. We reversed, but retained jurisdiction and remanded to the district court for findings on Reeves's remaining claims. The district court again granted the petition and vacated Reeves's death sentence. For the second time, the State appeals the district court's grant of the writ.

We conclude that the district court erred in its grounds for granting the writ. We also conclude, however, that the district court erred in deciding that Reeves was not entitled to a jury instruction on lesser included offenses, a violation of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). On this basis, we conditionally grant Reeves's petition for habeas corpus.

I. BACKGROUND

The facts of this case are set out fully in the Nebraska Supreme Court's opinion in Reeves's state appeal. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433, 438-40 (1984) ("Reeves I "). A summary, however, is in order.

On March 29, 1980, Reeves killed Janet Mesner and Victoria Lamm in a Quaker meetinghouse in Lincoln, Nebraska. Ms. Mesner and Reeves were friends, and were in fact related. Reeves, who had been drinking heavily and had ingested some peyote buttons, entered a window of the house and either sexually assaulted or attempted to sexually assault Ms. Mesner in her bedroom. In the course of the assault, Reeves stabbed Ms. Mesner seven times with a knife he had taken from the kitchen. When Ms. Lamm entered the room during the assault, Reeves stabbed her to death. Ms. Mesner was mortally wounded, but was able to find a telephone and dial 911. Ms. Mesner identified Reeves as her attacker before dying less than three hours later at a local hospital.

Reeves was charged with two counts of murder in the course of or while attempting a sexual assault in the first degree. See Neb.Rev.Stat. § 28-303. Reeves presented defenses of insanity and diminished capacity, but was convicted on both counts. Under Nebraska law, a first degree felony murder conviction carries possible sentences of life imprisonment or death. Neb.Rev.Stat. § 28-105(1). A three-judge sentencing panel sentenced Reeves to death. On appeal, the Nebraska Supreme Court held that the sentencing panel had failed to consider a mitigating factor and had improperly applied an aggravating factor in determining Reeves's sentence. Reeves I, 344 N.W.2d at 447-48. The court, however, reexamined the applicable factors and affirmed the death sentence. Id. at 448.

Reeves then pursued state postconviction remedies. The Nebraska Supreme Court again affirmed his sentence. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359, 388 (1990) ("Reeves II "). The United States Supreme Court, however, vacated Reeves II and remanded the case for reconsideration in light of its holdings in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Reeves v. Nebraska, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990). On remand, the Nebraska Supreme Court once again affirmed Reeves's sentence. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 841 (1991) ("Reeves III ").

Reeves then brought this federal habeas corpus action under 28 U.S.C. § 2254, raising forty-four claims. The district court granted relief on the ground that the Nebraska Supreme Court did not have authority under state law to independently reweigh aggravating and mitigating factors in affirming a death sentence. Reeves v. Hopkins, 871 F.Supp. 1182, 1202 (D.Neb.1994). The district court considered and rejected Reeves's claims related to jury instructions, including a claim that the trial court improperly denied his request to have the jury instructed on lesser included offenses of felony murder, in violation of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Reeves v. Hopkins, 871 F.Supp. at 1205. ¹ The court left unresolved seven of Reeves's claims. ²

On appeal we reversed, holding that the district court exceeded federal court authority in determining that Nebraska law did not authorize the Nebraska Supreme Court to reweigh aggravating and mitigating factors in capital cases. Reeves v. Hopkins, 76 F.3d 1424, 1427 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). We did not reach Reeves's Beck claim, instead remanding and instructing the district court to make determinations on the claims it had not reached. Id. at 1430-31. We expressly noted that we retained jurisdiction on those issues decided by the district court that we had not reached, and would consolidate those issues with any future appeal. Id. at 1431.

On remand, the district court rejected all but one of Reeves's remaining claims. The court determined that the Nebraska Supreme Court had resentenced Reeves in Reeves III when it again affirmed the death penalty on remand from the United States Supreme Court, but violated due process by failing to give Reeves notice of resentencing and an opportunity to be heard. Reeves v. Hopkins, 928 F.Supp. 941, 965-66 (D.Neb.1996). ³

The State appeals the district court's findings on the due process claim, and we agree that the court below erred on this issue. We also conclude, however, that Reeves's Beck claim is meritorious and that the district court improperly rejected this claim in its first decision in 1994.

II. DISCUSSION

In this section 2254 habeas corpus action, we review the district court's factual findings for clear error and its legal conclusions de novo. Culkin v. Purkett, 45 F.3d 1229, 1232 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995).

A. The Due Process Claim

The district court granted relief on claim 34 of Reeves's petition, in which Reeves claims that:

The death penalty was unconstitutionally applied to Petitioner in that the Nebraska Supreme Court in resentencing Petitioner on remand denied Petitioner notice and an opportunity to be heard in violation of the Sixth and Eighth Amendments and the [Due Process] and Equal Protection Clauses of the Fourteenth Amendment.

Petitioner's First Amended Petition for Writ of Habeas Corpus, at 37-38.

Reeves's claim involves his state postconviction proceedings. After his convictions and sentences were affirmed on direct appeal in Reeves I, Reeves sought state postconviction remedies. In Reeves II, the Nebraska Supreme Court affirmed denial of postconviction relief. 453 N.W.2d at 388. On petition for writ of certiorari, the United States Supreme Court vacated Reeves II and remanded for "further consideration in light of Clemons v. Mississippi." Reeves v. Nebraska, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990). In Clemons, the Supreme Court had recently held that a death sentence based in part on an invalidly applied aggravating factor (which the Nebraska court found had occurred in Reeves's case) could be affirmed by an appellate court. If state law allows, an appellate court in such a case may either: (1) conduct a harmless error analysis; or (2) independently reweigh the applicable aggravating and mitigating circumstances. 494 U.S. at 750, 752, 110 S.Ct. at 1449, 1450.

Reeves claims that when the Nebraska court once again affirmed his sentence in Reeves III, this amounted to a reimposition of the death sentence. This "resentencing," Reeves argues, was done without Reeves being aware that he would be subject to such resentencing by the state court. He was thus unable to argue against imposition of the death penalty and was caught by surprise when the court affirmed the sentence, rather than remanding to a new sentencing panel. Reeves claims that this violated his rights under the Fourteenth Amendment to notice and an opportunity to be heard.

On remand, the Nebraska Supreme Court issued an order directing Reeves and the State to submit simultaneous briefs "covering the subject of the remand." Petitioner's Brief at 2. According to Reeves, his counsel was uncertain of the meaning of the phrase "the subject of the remand." Reeves's attorney filed a series of motions with the Nebraska court attempting to clarify the scope of the issues before the court, most of which the court denied, ⁴ and unsuccessfully sought to clarify the scope of the remand at oral argument. The district court agreed with Reeves that he "was not provided with adequate notice that he would be sentenced to death." 928 F.Supp. at 961. The court reasoned that "[h]owever the 20-minute oral argument in Reeves III might otherwise be characterized, we know in retrospect that it was ultimately the one proceeding where it would be determined whether [Reeves's convictions] warranted the death penalty." Id. at 964.

We part ways with the district court on a fundamental premise: Reeves III simply was not the "one proceeding" where the state determined that Reeves's crimes "warranted the death penalty." Reeves II was Reeves's appeal of his unsuccessful postconviction attack on his convictions and sentence. After the sentencing panel originally imposed the death sentence, the Nebraska Supreme Court affirmed the sentence on direct appeal in Reeves I. ⁵ The United States Supreme Court's remand of Reeves II for reconsideration in light of Clemons did nothing to unsettle the prior conclusion in Reeves I. ⁶

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