Reeves v. Hopkins

• Decision Date: 16 December 1994
• Docket Number: No. CV90-L-311.,CV90-L-311.
• Citation: 871 F. Supp. 1182
• Parties: Randolph K. REEVES, Petitioner, v. Frank X. HOPKINS, Respondent.
• Court: U.S. District Court — District of Nebraska

871 F. Supp. 1182

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

No. CV90-L-311.

United States District Court, D. Nebraska.

December 16, 1994.

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Dorothy A. Walker, Mowbray & Walker, P.C., Paula B. Hutchinson, Lincoln, NE, for petitioner.

Don Stenberg, Atty. Gen., J. Kirk Brown, Asst. Atty. Gen., Lincoln, NE, for respondent.

MEMORANDUM AND ORDER

KOPF, District Judge.

This is a habeas corpus case, brought pursuant to 28 U.S.C. § 2254, challenging Petitioner's conviction for two murders and the death sentences which resulted. Pending before me is the thoughtful and comprehensive report, recommendation, and order (Filing 111) of the Honorable David L. Piester, United States Magistrate Judge, regarding Petitioner's amended petition for habeas corpus.

In his report and recommendation, Judge Piester addressed forty-four claims¹ asserted in Petitioner's amended petition and found that:

1. Petitioner abandoned certain claims (claims 3, 7, 15, 16, 33, 35, 37, 41, 43 and part of 44 (that portion not related to ineffective assistance of trial counsel)). (Filing 111, at 10-15.)

2. Certain of Petitioner's claims were procedurally defaulted (claim 20(c) (that part claiming that all types of first-degree murder except felony murder have lesser included offenses and, thus, Nebraska's felony murder rule is unconstitutional), claim 39, claim 40 (to the extent that it raises the failure to make factual findings regarding nonstatutory mitigating factors), and claim 44 (relating to ineffective assistance of trial counsel)), and such default had not been excused. (Id. at 20-31.)

3. All the claims properly before the court regarding the guilt-and-innocence phase of trial (claims 17, 18, 20, 21, 22 and 23) were without merit. (Id. at 31-52.)

4. Whether or not procedurally defaulted, claims 19 and 42 regarding Nebraska's definition of reasonable doubt should be resolved against Petitioner pursuant to Victor v. Nebraska, ___ U.S. ___, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). (Id. at 18-20.)

5. Prior errors in sentencing (if any) which took place before the "reweighing" that occurred in the Nebraska Supreme Court on remand from the United States Supreme Court were irrelevant because it was the Nebraska Supreme Court's action on remand that resentenced Petitioner (claims 1, 2, 4, 8, 9, 10, 11, 12, 13, 14, 24, 25, 28, 29, and 30). (Id. at 10.)

6. The Nebraska Supreme Court violated Petitioner's constitutional right to due process of law, entitling Petitioner to resentencing, because (a) on remand from the United States Supreme Court, the state's highest court sentenced Petitioner in a manner not prescribed by state statute (claim 31); and (b) on remand from the United States Supreme Court, the state's highest court acted as an unreviewable sentencing panel when sentencing Petitioner (claim 32). (Id. at 52-61.)

7. The court should not reach certain claims (claims 5, 6, 26, 27, 34, 36, and 38) in light of the recommendation regarding resentencing because those claims are not likely to recur at resentencing. (Id. at 61-62.)

Accordingly, Judge Piester recommended that the amended petition be granted in part and denied in part, and that Petitioner's sentences be reduced to life in prison unless, within a reasonable time after judgment, capital resentencing proceedings were initiated in state district court. In a related order, Judge Piester also denied Petitioner's request for an evidentiary hearing, for discovery, and to expand the record.

Both Petitioner (Filing 116) and Respondent (Filing 114) have objected to Judge Piester's report and recommendation. However, Petitioner has not appealed from Judge Piester's order denying an evidentiary hearing, denying discovery, and denying the request to expand the record.

After de novo review of the report and recommendation and the objections filed thereto, I agree with each and every one of Judge Piester's ultimate findings of fact, conclusions of law, and recommendations. I adopt the report and recommendation as supplemented by the following discussion of the objections of Petitioner and Respondent.

I.

In order to provide an appropriate context for my discussion of the objections to the report and recommendation, I shall first review the general factual and procedural history of this case. I shall then examine in more depth the proceedings before the Nebraska Supreme Court which give rise to the challenged death sentences.

A.

1.

There is no doubt that Randolph K. Reeves (Reeves), who had a criminal history but no significant history of violence² prior to the murders, killed two women with a kitchen knife in Lincoln, Nebraska, in the early morning hours of March 29, 1980.³ There is also no doubt that Reeves' capacity to appreciate what he was doing was grossly impaired by drug and alcohol use on the evening of the murders.

Reeves killed the women while in the process of attempting to sexually assault Janet Mesner, to whom he was distantly related. Mesner had also been Reeves' friend, although the two were never emotionally or sexually intimate. Reeves had visited Mesner's home on a number of previous occasions.

Reeves apparently broke into the building where Mesner lived, and as he was trying to rape her (stabbing Mesner seven times in the process), Victoria Lamm, who shared the apartment with Mesner, walked in on the struggle and was in turn stabbed by Reeves. Lamm passed out almost immediately as knife wounds penetrated the main pulmonary artery of her heart and another thrust penetrated her liver.

Reeves had been drinking heavily on the day of the killings, and he had also taken a hallucinogenic drug (peyote). At trial, a friend of Reeves, who had been with him earlier that morning, described Reeves as being in a "stupor" two hours and fifteen minutes before the stabbings were reported to police. The friend further testified that Reeves had told him earlier that morning that he intended to visit a girl.

Laboratory tests later confirmed the presence of mescaline in Reeves' system. It was also determined that Reeves' blood-alcohol level was .149 percent approximately three hours after the assaults occurred.⁴ There was testimony at trial that Reeves' blood-alcohol level at the time of the assaults may have been as high as .230 percent at 2:00 a.m.

After the assaults, Reeves exited the building⁵ where the stabbings had taken place, leaving behind, among other things, his wallet containing identifying information. When Reeves left, Mesner, who was still conscious, called 911. Because Reeves had ripped out the phone cord in the upstairs bedroom where the struggle had taken place, Mesner was forced to use the phone on the first floor.

Police responded to Mesner's call. They found Lamm's two-year-old daughter, unharmed, walking out of the north upstairs bedroom of the house. They also found Mesner on the first floor. Lamm's body was found in the south upstairs bedroom. The condition of this bedroom indicated that a violent struggle had taken place. The floor was covered with blood.

At the scene of the crime, and later at the hospital, Mesner, although in shock and suffering great pain, reported the crimes to police, identifying Reeves as the man who had stabbed her, raped her, and killed her roommate. She identified Reeves twice by name and gave a physical description of him once.

About 4:46 a.m., approximately an hour after Mesner's call to police, Reeves was arrested as he tried to walk across a main street in Lincoln, Nebraska. At the time of his arrest, Reeves had blood on his hands and clothing, the fly of his trousers was unzipped, and his penis was exposed.

Tests later determined that the blood on Reeves' clothing and on his penis was the same blood type as that of Mesner. Tests also confirmed that the acid phosphate level of a vaginal sample taken from Mesner was consistent with sexual intercourse having occurred. However, experts were unable to find semen on Reeves or in vaginal swabs taken from the two women. Semen was found on men's underwear located in Mesner's bedroom, and the secretion matched Reeves' blood type.

Both women died of stab wounds. Mesner lived slightly more than two hours after she first called the police.

After twice being given his Miranda rights, Reeves, who has above-average intelligence, told police that while he could not remember much about the murders, he could remember stabbing and raping Mesner.

Charged with two counts of felony murder (murder in the course of committing a sexual assault or attempted sexual assault), Reeves was found guilty by a jury on both counts. At trial, Reeves contended that he lacked the intent needed for first-degree sexual assault or first-degree attempted sexual assault and, therefore, he was not guilty of felony murder. Alternatively, he argued that if the jury believed he had the requisite intent, he was not guilty by reason of insanity.

2.

On September 11, 1981, Reeves was sentenced to death by three state district judges.

State law authorized one of two procedures for initial imposition of the death sentence in cases where the trial judge was not disabled or disqualified: (1) the judge who presided at trial could impose the death sentence, or (2) upon the request of the trial judge, the judge who presided at trial plus two other judges designated by the chief judge of the Nebraska Supreme Court could impose the death penalty. Neb.Rev.Stat. § 29-2520 (Reissue 1989).⁶

Among other things, Nebraska law required the sentencing panel to "set forth the general order of procedure at the outset of the sentence determination proceeding," Neb.Rev.Stat. § 29-2521 (Reissue 1989), and after such proceeding to issue a written determination, including findings of fact "based upon the records of the trial and the sentencing proceeding...." Neb.Rev.Stat. § 29-2522 (Reissue 1989).

Specifically, the sentencing panel, "after hearing all the evidence and...