Reeves v. Hopkins

• Decision Date: 14 May 1996
• Docket Number: No. CV90-L-311.,CV90-L-311.
• Parties: Randolph K. REEVES, Petitioner, v. Frank X. HOPKINS, Respondent.
• Court: U.S. District Court — District of Nebraska

928 F. Supp. 941

Randolph K. REEVES, Petitioner, v. Frank X. HOPKINS, Respondent.

No. CV90-L-311.

United States District Court, D. Nebraska.

May 14, 1996.

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Paula Hutchinson, Paula Hutchinson Law Firm, Lincoln, NE, Dorothy Walker, Mowbray, Walker Law Firm, Lincoln, NE, for Petitioner.

J. Kirk Brown, Assistant Attorney General, Lincoln, NE, for Respondent.

MEMORANDUM AND ORDER

KOPF, District Judge.

This habeas corpus case involving the death penalty is before me upon the decision of the United States Court of Appeals for the Eighth Circuit, Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.1996) hereinafter Reeves V, reversing in part this court's opinion in Reeves v. Hopkins, 871 F.Supp. 1182 (D.Neb. 1994) hereinafter Reeves IV, and remanding for further proceedings.¹

I. BACKGROUND

Reeves's case is unique. It became unusual when the United States Supreme Court vacated the postconviction judgment of the Nebraska Supreme Court. In Reeves's prior direct appeal, as well as in a prior postconviction appeal, the state appellate court implied that a state appellate court could reimpose the death penalty even if the trial court engaged in harmful error during sentencing.

The Supreme Court remanded the Reeves case to the state appellate court to explicitly determine whether state law allowed an appellate court to sentence. As a result of that remand, the Nebraska Supreme Court announced for the first time that it had the power to impose the death penalty on its own even where there was harmful error in the sentencing decision at the trial level. This appellate sentencing mechanism would be used instead of sending the case back to the lower court for resentencing. The court also announced the standard it would use and the record it would review for purposes of imposing the death penalty.

At the same time the court announced its landmark ruling, it applied the ruling to Reeves. The court conducted a new examination of the record and sentenced Reeves to death.

Based on Rust v. Hopkins, 984 F.2d 1486 (8th Cir.), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), and a review of Nebraska law, I concluded in Reeves IV, 871 F.Supp. at 1192-1202, that the Nebraska Supreme Court violated Reeves's constitutional right to due process of law when it sentenced him to death, thus entitling Reeves to resentencing.

I reached this conclusion for two related reasons. Id. at 1194. First, I found that Reeves was entitled to habeas relief because the Nebraska Supreme Court had misapplied federal law as providing a source of power for a state appellate court to impose the death penalty. Id. at 1194-95 (pt. IIA1), 1202 (pt. D, finding & conclusion 3) (misapplication of federal law). Moreover, I believed Reeves was entitled to relief because when it imposed the death penalty, the Nebraska Supreme Court deprived Reeves of certain state statutory rights (state-created liberty interests) regarding the manner in which death sentences must be imposed under state law. By failing to follow these state statutes, the Nebraska Supreme Court violated federal due process of law standards under the Fourteenth Amendment since the court deprived Reeves of his state-created liberty interests without authority under local law. Id. at 1194-99 (pt. IIA1(a)-(c)), 1202 (pt. D, findings & conclusions 1, 5) (deprivation of state-created liberty interests).

In addition, I agreed with the recommendation of United States Magistrate Judge David L. Piester that the court should not reach certain claims. Id. at 1193 n. 11. As a result, I did not reach the question of whether Reeves had been denied notice and an opportunity to be heard before the Nebraska Supreme Court sentenced him to death in Reeves III.

The majority in Reeves V found that I erred in granting the writ because "the Nebraska Supreme Court is the final arbiter of Nebraska law" and by "performing an exhaustive review of Nebraska statutory law in an attempt to show the Nebraska Supreme Court the inadequacy of its interpretation of its own authority under its own law, the district court exceeded the bounds of federal court authority." Reeves V, 76 F.3d at 1427. The Reeves V majority stated that the Nebraska Supreme Court had asserted the power to sentence. In the view of the majority, this assertion of power was a sufficient pronouncement of state law to preclude federal court review.

In its opinion reversing and remanding, the Eighth Circuit Court of Appeals stated: "Because of its application of Rust, the district court did not consider all matters raised by Reeves.... We return this case with instructions to consider and decide all issues raised but not addressed by the district court." Reeves V, 76 F.3d at 1430-31. The issues raised but not addressed by this court are issues 5, 6, 26, 27, 34, 36, and 38. Reeves IV, 871 F.Supp. at 1193 n. 11. Specifically, the following issues remain to be addressed on remand:

(5) Aggravating factor "(1)(d)" (Neb.Rev. Stat. § 29-2523(1)(d) "especially heinous, atrocious, cruel, or manifest exceptional depravity by ordinary standards of morality and intelligence") is unconstitutionally vague.

(6) Aggravating factor "(1)(b)" (Neb.Rev. Stat. § 29-2523(1)(b) "apparent effort to conceal the commission of a crime, or the identity of the perpetrator") is unconstitutionally vague.

(26) Presentence investigation report contained uncounseled statements Petitioner gave to a probation officer.

(27) Presentence investigation report contained unreliable and inaccurate information, was racially biased, and contained hearsay and speculative statements.

(34) On remand the Nebraska Supreme Court denied Petitioner notice and an opportunity to be heard.

(36) On remand the Nebraska Supreme Court improperly considered evidence of "inaccurate and unreliable allegations of unadjudicated misconduct."

(38) On remand the Nebraska Supreme Court applied the incorrect standard when it applied aggravating factor "(1)(d)" with regard to the death of Janet Mesner.

See Reeves IV, 871 F.Supp. at 1193 n. 11, 1212-13.

I will address each of these issues, but I shall not repeat the factual and procedural history of this case except as such facts are relevant to my discussion of each issue. See Reeves IV, 871 F.Supp. at 1186-1192 (factual and procedural history of case recited). I will also address Reeves's motion "to keep the record open." (Filing 144.)

Ultimately, I find and conclude that the petition should be granted because claim 34 is meritorious. I also find and conclude that the other claims do not entitle Reeves to relief. With regard to the motion to keep the record open, I find and conclude that I have no jurisdiction to grant the motion because the court of appeals retained jurisdiction in Reeves V. Therefore, I will deny the motion.

II. DISCUSSION

I first address issue 34 since it is the most complex of the claims and an understanding of issue 34 provides important context for a complete understanding of the remaining claims. I then turn to the remaining claims.

A. Issue 34 — Notice and Hearing²

Reeves claims the Nebraska Supreme Court violated his federal rights when it sentenced him to death in Reeves III without "notice and an opportunity to be heard." The sentence was pronounced after the United States Supreme Court vacated the prior Nebraska judgment and remanded the case to the Nebraska Supreme Court "for further consideration in light of 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).

Reeves argues that the Nebraska Supreme Court imposed the death penalty³ after the remand and then told him what the rules were. Reeves believes such a decision violated his federal constitutional right to due process of law. I agree.

1. "Due process" requires adequate notice and a meaningful opportunity to be heard.

The Due Process Clause of the Fourteenth Amendment requires that a person subject to the death penalty be given adequate notice and a meaningful opportunity to be heard before he is sentenced to death by a state such as Nebraska. Specifically, a person who receives a death sentence must first be given notice that the death penalty may be imposed and then a fair opportunity to contest the imposition of the penalty before it is pronounced. Lankford v. Idaho, 500 U.S. 110, 126-27 & n. 22, 111 S.Ct. 1723, 1732-33 & n. 22, 114 L.Ed.2d 173 (1991) (sentencing process violated Due Process Clause of the Fourteenth Amendment because at the time of the sentencing hearing, Lankford and his counsel did not have adequate notice that the judge might sentence him to death, given the prosecutor's failure to request the death penalty). See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (petitioner denied due process of law when death sentence imposed, at least in part, on the basis of information contained in a presentence report that he had no opportunity to deny or explain).

In Lankford, the Supreme Court found a long history of precedent to support these elemental precepts. The Court described that history this way:

Baldwin v. Hale, 1 Wall. 223, 233 17 L.Ed. 531 (1864) ("Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make his defense"); In re Oliver, 333 U.S. 257, 273 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948) (due process requires that a person be given "reasonable notice of a charge against him, and an opportunity to be heard in his defense ... to examine the witnesses against him, to offer testimony, and to be represented by counsel"). In a variety of contexts, our cases have repeatedly emphasized the importance of giving the parties sufficient notice to enable them to identify the issues on which a decision may turn. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

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