Williams v. Clarke

• Citation: 40 F.3d 1529
• Decision Date: 25 January 1995
• Docket Number: No. 93-2733,93-2733
• Parties: Robert WILLIAMS, Plaintiff-Appellant, v. Harold W. CLARKE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1529

40 F.3d 1529

Robert WILLIAMS, Plaintiff-Appellant, v. Harold W. CLARKE, Defendant-Appellee.

No. 93-2733.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1994.

Decided Dec. 2, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Jan. 25, 1995. ^*

Paula B. Hutchinson and Vincent Powers, Lincoln, NE, argued, for appellant.

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

Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HANSEN, Circuit Judge.

Robert Williams appeals the district court's ¹ partial denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. 823 F.Supp. 1486. In 1978, a Nebraska state-court jury convicted Williams of murdering two young women, Patricia McGarry and Catherine Brooks. The jury also convicted Williams of the first-degree sexual assault of Catherine Brooks. A panel of three state trial judges sentenced Williams to death by electrocution for each count of murder and to an indeterminate sentence of imprisonment not to exceed 25 years for the sexual assault. After his direct appeal to the Supreme Court of Nebraska and two state postconviction actions proved to be unsuccessful, Williams petitioned the United States District Court for a writ of habeas corpus. Adopting the report and recommendation of the magistrate judge, the district court granted the writ for the death sentence imposed for the murder of Patricia McGarry, but the district court denied the writ for the death sentence imposed on Williams for the murder of Catherine Brooks. Williams appeals the denial of habeas corpus relief for the death sentence imposed for the murder of Catherine Brooks. We affirm the judgment of the district court.

I.

The facts giving rise to Williams's convictions and death sentences are fully described by the Supreme Court of Nebraska in Williams's direct appeal. See State v. Williams, 205 Neb. 56, 287 N.W.2d 18, 21-23 (1979), cert. denied, 449 U.S. 891, 101 S.Ct. 255, 66 L.Ed.2d 120 (1980). We summarize them as follows:

In the late afternoon of August 11, 1977, Patricia McGarry and Catherine Brooks were found murdered in McGarry's apartment in Lincoln, Nebraska. Catherine Brooks was found dead on the living room floor lying naked in a pool of blood originating from three bullet wounds to her head and back. A medical examination revealed the presence of spermatozoa in her vagina and rectal tract, deposited within an hour of her death. A bloody trail led from the living room to Patricia McGarry's body, which was found dead on the dining room floor mortally wounded from three shots to her head and neck.

Williams's fingerprints were found in the apartment. Rifle shells found in the apartment matched those purchased by Williams the previous night when he had also purchased a .22 revolver. Further evidence established that on the morning of August 11, 1977, Williams went to the apartment of another young woman in Lincoln with whom Williams was acquainted. Williams threatened to shoot the young woman with a revolver and then he raped her repeatedly. Late in the afternoon, Williams ordered the woman and her two-year-old child to leave with him, but as they approached the curb, he let them go. The young woman immediately called the police. She testified that Williams drank one beer and smoked one joint of marijuana while with her that day but did not appear to be intoxicated.

The next morning, August 12, 1977, a deputy sheriff who had observed Williams's car abandoned at a park in Cherokee County, Iowa, since 10:15 p.m. the night before, had the car towed away. The same morning, an Iowa farmer observed Williams walking by his farmyard. Williams asked directions to the nearest town and the farmer gave Williams directions which led Williams past the Wayne Rowe farmhouse one-half mile west. Williams departed in that direction. Wayne Rowe returned home shortly after noon that day to find his wife on the bed naked, sexually assaulted, and murdered. Hairs found in her hand and on the bedspread matched Williams's hair. A bullet recovered at this Iowa murder scene matched bullets taken from the bodies of the Nebraska victims. Mrs. Rowe's car was gone and a shotgun which had been in the Rowes' home was missing. Mrs. Rowe's car was later found in St. Paul, Minnesota.

On August 13, 1977, Williams abducted a man in a suburb of St. Paul and ordered him at gunpoint to drive into the city where the victim was later found bound and gagged in a railroad freight yard. This man testified that Williams did not appear to be intoxicated. Later that day, Williams shot a woman in St. Paul as she was getting into her car. Williams then drove her in her car to a remote area where he raped her, tied her up, and left her. This woman managed to live by getting herself untied and finding help at a farmhouse. Williams travelled to Chicago, Illinois, for a few days and then returned to Lincoln, Nebraska, where police arrested him in a railroad yard on August 18, 1977.

After his arrest, Williams made a statement to the police admitting that he shot both Brooks and McGarry in Lincoln but denying that he raped Brooks. The state of Nebraska charged Williams with two counts of first-degree murder and one count of first-degree sexual assault. Williams pleaded not guilty by reason of insanity. The jury returned guilty verdicts on all three counts.

At his sentencing hearing, the three-judge panel considered the aggravating and mitigating circumstances statutorily required by Nebraska Revised Statute Sec. 29-2523. ² The sentencing panel found the existence of four of the statutory aggravating circumstances listed in Sec. 29-2523(1), three of which applied to both murders and one of which applied solely to the murder of Catherine Brooks. The three aggravating circumstances found to exist with regard to both murders are as follows: (1) aggravating circumstance (1)(a), "The offender was previously convicted of ... a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity"; (2) aggravating circumstance (1)(d), "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"; and (3) aggravating circumstance (1)(e), "At the time the murder was committed, the offender also committed another murder." The fourth aggravating circumstance, (1)(b), "The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime"; was found to apply solely to the murder of Catherine Brooks. ³

The sentencing panel found one mitigating circumstance--that Williams had an antisocial personality which, when coupled with his intoxication and emotional disturbance at the time, somewhat diminished his capability to conform his conduct to the requirements of law but did not excuse him from the legal consequences of his crimes. See Williams, 287 N.W.2d at 28. The sentencing panel found that the aggravating circumstances outweighed the mitigating circumstance with respect to each murder and imposed the death penalty on Williams for each count of first-degree murder. The sentencing panel also imposed a term of imprisonment lasting at least 8 1/3 years but not more than 25 years on the count of first-degree sexual assault.

The Supreme Court of Nebraska affirmed Williams's convictions and sentences. See Williams, 287 N.W.2d at 30. Williams filed an action for state postconviction relief in which the state district court denied relief and the Supreme Court of Nebraska affirmed the denial of relief. See State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984). In his second state postconviction action, the state district court denied relief without an evidentiary hearing, and the Supreme Court of Nebraska reversed in part and remanded for an evidentiary hearing. See State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984). After the evidentiary hearing, the state district court denied relief and the Supreme Court of Nebraska affirmed. See State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986).

II.

In 1987, Williams filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court raising numerous claims. Williams was furnished with court-appointed counsel who filed an amended petition raising 13 issues, 7 of which were later voluntarily abandoned. The case was referred to a magistrate judge for a report and recommendation. In October 1989, the magistrate judge rejected each claim as meritless, except for Williams's claim that aggravating circumstance (1)(d) is unconstitutionally vague. Aggravating circumstance (1)(d) requires a finding that "[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." Neb.Rev.Stat. Sec. 29-2523(1)(d) (emphasis added). The magistrate judge noted that the district court had previously held in Moore v. Clarke, CV84-L-754 (D.Neb. Sept. 20, 1988) (unpublished memorandum), that the second phrase of aggravating circumstance (1)(d), the "exceptional depravity" phrase, is unconstitutionally vague. The magistrate judge concluded that aggravating circumstance (1)(d) was unconstitutionally applied in the sentencing determination for the murder of Patricia McGarry because the use of that aggravator to impose a sentence of death for that murder was supported solely by findings relating to the constitutionally infirm second phrase. On the other hand, the death sentence imposed for the murder of Catherine Brooks properly included aggravating circumstance (1)(d) because the sentencing panel's specific finding that Catherine Brooks was sexually abused satisfies the first phrase of aggravating circumstance (1)(d) which is constitutional. However,...