Carey Dean Moore v. Michael L. Kinney

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 00-4079
___________

Carey D. Moore, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael L. Kinney, Warden of the *
Nebraska Penal and Correctional *
Complex, *
*
Appellee. *
___________

Submitted: June 13, 2001

Filed: January 25, 2002
___________

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

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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, 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, 399

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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
(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. 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

1
The Nebraska Supreme Court held:

[F]or the purpose of § 29-2523(1)(d) as an aggravating
circumstance in determining whether the death penalty may be
imposed, we hold that “exceptional depravity” in a murder exists
when it is shown, beyond a reasonable doubt, that the following
circumstances, either separately or collectively, exist in reference
to a first degree murder: (1) apparent relishing of the murder by the
killer; (2) infliction of gratuitous violence on the victim; (3)
needless mutilation of the victim; (4) senselessness of the crime;
(5) helplessness of the victim.

State v. Palmer, 399 N.W.2d 706, 731-32 (Neb. 1986).

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 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, 304
N.W.2d 663, 668 (1981); “unresisting victims,” State v. Peery, 261 N.W.2d 95, 104-
105 (1977); and “exceptional,” State v. Simants, 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

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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 (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 constructed
definition to the facts of the case, reweigh the aggravating and mitigating factors, and
resentence Moore. See State v. Moore, 502 N.W.2d 227, 228 (Neb. 1993). The
supreme court declined the request, stating, “we acknowledge that if this court
reweighed the aggravating and mitigating factors and resentenced Moore, the federal
court would likely reverse . . . . Therefore, it is futile for us to proceed with the
resentencing,” Id. at 230. The court remanded the case to the state district court for
resentencing “in the interest of judicial economy.” Id. The supreme court did not
explain why the state district court could narrow the definition of exceptional
depravity when it believed that it itself should not, nor did it provide guidance to the
sentencing panel for the application of the constitutionally defunct exceptional
depravity aggravating factor.

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 At resentencing, the state district court evaluated its instructions from the state
supreme court, and identified three options:

inasmuch as the federal Circuit Court of Appeals has determined
that the present definition of “exceptional depravity” is
unconstitutionally vague, this sentencing panel is left with an
ineffective and constitutionally infirm interpretation of
“exceptional depravity” as it proceeds to determine the sentence to
be imposed on Carey Dean Moore. That leaves us with essentially
three options: (1) we can apply the Nebraska Supreme Court’s
most recent construction of the “exceptional depravity” prong of
(1)(d) to the killings . . . knowing full well that a death sentence
imposed . . . on the basis of that construction is virtually certain to
be vacated in subsequent proceedings; or (2) we can avoid
determining the “exceptional depravity” aggravator, on which the
original sentencing panel relied to a significant degree, instead
imposing sentence on the basis of the remaining valid aggravating
and mitigating circumstances . . . or (3) we can attempt to fashion
our own objective, limiting construction of “exceptional depravity”
and then apply that construction to the facts of the cases now
pending before us.

State v. Moore, Order of Sentence at 12 (Dist. Ct. Douglas Co., Apr. 21, 1995). After
choosing the third option, it continued:

Having no effective appellate definition, we have a duty and
obligation in the first instance to redefine appropriate constitutional
limiting conditions for this aggravating circumstance. In order to
meet the objections raised in the federal courts, this must be done
in a total and comprehensive manner, superseding all prior
appellate limiting conditions. We also conclude that, in restating
such conditions, we are affording the Defendant an opportunity for
appellate review of both the conditions and our factual
determinations thereunder.

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Id. at 12-13. The resentencing panel concluded that the newly crafted definition of
exceptional depravity, which would permit a sentencing authority to make “a
principled distinction between those who deserve the death penalty and those who do
not,” should include the following factors:

1) the killer’s infliction of prolonged or significant physical
violence, such as sexual abuse, on the victim after the victim’s
death or loss of consciousness . . . ; 2) the killer’s mutilation or
dismemberment of the victim’s body after death . . . ; 3) the
apparent relishing of the murder by the killer, as exemplified by
manifestations of satisfaction, gratification, enjoyment, or pleasure
at the victim’s suffering or death . . . ; 4) the killer’s cold,
calculated planning of the victim’s death, as exemplified by
experimentation with the method of causing the victim’s death or
by the purposeful selection of a particular victim on the basis of
specific characteristics such as race, gender, creed, sexual
orientation, disability, or age.

Id. at 13-14 (emphasis added). It concluded that “the Defendant’s cold, calculated
planning of each victim’s death, as manifested by the purposeful selection of a
particular victim on the basis of the specific characteristic of age, establishes the
existence of exceptional depravity beyond a reasonable doubt, and this aggravating
circumstance is applicable to the murders of [both victims].” Id. at 16.

Moore appealed and the Nebraska State Supreme Court affirmed. Although
this court had stated that the Palmer factors were unconstitutionally vague, the state
supreme court sought to rehabilitate the Palmer construction of the exceptional
depravity component of aggravating circumstance § 29-2523(1)(d): “[Palmer] is
constitutional . . . . It therefore cannot be said that at the time of Moore’s
resentencing, there existed no constitutionally viable definition of exceptional
depravity. The resentencing panel could have applied the Palmer factors.” State v.
Moore, 553 N.W.2d 120, 131 (Neb. Sept. 27, 1996).

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 The court continued,

Although the resentencing panel’s view that there was no
constitutionally viable interpretation of exceptional depravity was
mistaken, it was, given the confusing state of precedent on the
issue, nevertheless within its authority to define the exceptional
depravity component in such a way as to ensure that Moore
received sentences that were consistent with constitutional
requirements. Obviously, in the absence of clear precedent, a trial
court confronting a statute for the first time must apply the statute
in accordance with its own understanding of it.

Id. at 132. (citing In re Guardianship and Conservatorship of Bloomquist, 523
N.W.2d 352 (1994); In re Estate of Holt, 516 N.W.2d 608 (1994); State v. Stein, 486
N.W.2d 921 (1992)). The state supreme court then determined that the sentencing
panel’s reformulation of the “cold, calculated planning” aspect of exceptional
depravity was sound because Moore had purposefully selected the victims on the
basis of their age. See id. at 133.

Once again, Moore sought habeas relief in federal court. The magistrate
recommended that Moore’s petition for Writ of Habeas Corpus be granted for two
reasons: 1) defining exceptional depravity as “the cold and calculated planning of
each victim’s death as evidenced by the purposeful selection of a particular victim on
the basis of specific characteristics such as . . . age” failed to properly “channel” the
sentencer’s discretion, contrary to Supreme Court precedent; and 2) the panel’s
application of its construction of exceptional depravity violated Moore’s due process
rights because it was done in an ex post facto manner, depriving him of notice and
opportunity to respond. See Moore v. Kinney, No. 4:99CV3263, slip op. at 22-23
(D. Neb. Sept. 18, 2000). “Nothing has changed in the present litigation,” the
magistrate explained:

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 The Nebraska Supreme Court has neither abandoned nor expressed
a desire to abandon pre-Palmer constructions that have been held
to be constitutionally invalid . . . . This reluctance of the state’s
supreme court to abandon prior constructions has left the sentencer,
as this court has previously stated, with a ‘series of suggestions,
some objective and some not, from which to choose, without
assurance that the series is complete.’ . . . Therefore, I conclude the
resentencing panel committed constitutional error in considering
this aggravator to resentence the petitioner.

Moore v. Kinney, No. 4:99CV3263, slip op. at 17-18 (D. Neb. Sept. 19, 2000)
(citation omitted).

The magistrate also determined that the sentencing panel had created the fourth
factor, the selection of a victim on the basis of a specific characteristic, based on the
facts of the Moore case: “The panel reviewed the facts of petitioner’s case, as is
evident from their citing of petitioner’s first appeal to the Nebraska Supreme Court,
and then, for all practical purposes, concluded that those facts made out the
‘exceptional depravity’ aggravator by creating the ‘selection of the victim’ factor.”
Id. at 22. The magistrate rejected this fourth option because the state court’s
placement of “such as” before the list of “specific characteristics” allowed the
sentencer to choose from a series of suggestions, some objective, and some not,
without concern that the cited characteristics may be incomplete and subject to “a
myriad of seemingly limitless applications.” Id. at 21.

The district court rejected the magistrate’s recommendations. Moore v.
Kinney, No. 4:99CV3263, slip op. at 1 (D. Neb. Nov. 14, 2000). It held that the
sentencing panel had derived its definition from prior cases in which exceptional
depravity existed, where the evidence demonstrated the killer’s cold, calculated
planning of the victims’ deaths as exemplified by the purposeful selection of a
particular victim on the basis of the specific characteristic of age. Id. at 19. It
reasoned:

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 The planning must be “cold,” that is to say, “calculated.” Next, the
planning must involve a purposeful sorting process to select
victims. The planning must focus upon individuals who have
historically been subjected to discrimination or who otherwise
possess some immutable characteristic that the victim cannot
change. For example, the murderer must plan to select victims
because of their age. Taken together, these elements plainly limit
the number of Nebraska murderers who may be sentenced to death.

Moore v. Kinney, No. 4:99CV3263, slip op. at 15 (D. Neb. Nov. 14, 2000). It
determined that Moore had not been denied due process by the application of the
selection on the basis of age because he had notice of the fact that this would occur
before he was resentenced:

None of this evidence of planning or age selection could have been
a surprise to Moore or his counsel since it had been presented in
the first sentencing hearing and was extensively discussed by the
Nebraska Supreme Court during the 1982 appeal as convincing
proof of the “exceptional depravity” of Moore’s crime. Moreover,
in 1986, the first Moore opinion was cited as support for the
Joubert decision and the Joubert decision emphasized the
importance of planning and selection due to age as establishing
“exceptional depravity.

Id. at 22. The court concluded:

Since his first appeal in 1982, the petitioner has demanded that the
courts more clearly define the words “exceptional depravity.”
Over the intervening years, the refined definition that Mr. Moore
sought was carefully, albeit incrementally, provided to him.
Relying upon a cold, calculated plan, Moore committed two
separate murders, purposefully selecting each victim because of
older age. According to the more precise definition that Moore so
vigorously solicited, this behavior was found to be “exceptionally
depraved” by three experienced trial judges and seven thoughtful

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 members of the Nebraska Supreme Court. Mr. Moore has no
legitimate reason to be surprised.

Id. at 25.

II. Discussion

A. Eighth Circuit Precedent

This court found the Nebraska courts’ attempt at narrowing the definition of
exceptional depravity, where age was a part of Nebraska Supreme Court case
precedent, unconstitutionally vague in 1990. Moore v. Clarke, 904 F.2d 1226 (1990).
The state’s petition for rehearing was denied, Moore v. Clarke, 951 F.2d 895 (8th Cir.
1991), and the United States Supreme Court denied certiorari on that very issue.
Clarke v. Moore, 504 U.S. 930 (1992). We remain bound by our 1990 opinion.

The state argues that Joubert v. Hopkins, 75 F.3d 1232, 1240-41 (8th Cir.
1996), authorized the Nebraska courts’ definition of the exceptional depravity
aggravator. Joubert killed two boys, ages 12 and 13, within a four-month period. He
was sentenced to death in part because the sentencing panel determined that § 29-
2523 (1)(d) was applicable with respect to both clauses of the subsection. The
Nebraska Supreme Court affirmed the sentencing panel’s decision because the
defendant “planned these abductions and murders far in advance . . . [t]he murders
were to be repetitive . . . and the victims selected by the defendant would, by his
fantasized standards, be somewhat defenseless and consist of prepubescent boys or
women fitting the pictorial description gleaned from detective magazine covers.”
State v. Joubert, 399 N.W.2d 237, 250 (Neb. 1986) (citation omitted in the original).

The state supreme court relied on the Palmer factors in finding that the
defendant had exhibited exceptional depravity: “the murders were coldly planned as

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part of a repetitive program of self-gratification, involving immature victims selected
on the basis of their availability at a time when the likelihood of detection was
slight.” Id. at 251 (citing State v. Moore, 316 N.W.2d 33 (1982)).

On appeal, a panel of this court declined to decide whether the exceptional
depravity aggravator was unconstitutionally vague in Joubert because the claim was
not presented in the state courts, and was therefore procedurally barred. Joubert v.
Hopkins, 75 F.3d 1232, 1240-41 (8th Cir. 1996). Nevertheless, the majority, with
Judge J. Gibson dissenting, opined in dicta that the Nebraska Supreme Court had
successfully narrowed the statute in the 1982 Moore decision; the application of the
narrowed definition to Joubert at resentencing, therefore, was not plain error. See id.

Contrary to the state’s argument, Joubert cannot be cited for the proposition
that the Eighth Circuit approved a “broader definition of exceptional depravity than
was employed in resentencing Moore.” Appellee’s Brief at 14. In light of the fact
that this court found the exceptional depravity prong of aggravator § 29-2523 (1)(d)
unconstitutionally vague in 1990 when the sentencing panel applied it to Moore in
1980, it remains unconstitutionally vague. We are bound by our opinion in Moore
v. Clarke, 904 F.2d 1226, 1234-35 (8th Cir. 1990); only en banc panels have the
authority to alter prior decisions.

B. The State Trial Court Unconstitutionally Narrowed and Applied
the Exceptional Depravity Aggravator at Resentencing

The three-judge panel did not have the authority to impose the death penalty
against Moore on the basis of its reconstruction of the exceptional depravity
aggravator. The state has failed to cite a case in which an unconstitutionally vague
statute regarding the application of an aggravating circumstance has been cured on
remand by a state trial court, which then resentences the defendant to death on the
basis of the newly-defined statute. Supreme Court precedent does not support that

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proposition. In Walton v. Arizona, 497 U.S. 639, 653-54 (1990), the Court
authorized a state appellate court’s narrowing of an aggravating circumstance
definition for trial judges to later apply on remand. It articulated the federal court’s
role in reviewing the state’s application of a statutory aggravator:

When a federal court is asked to review a state court’s application
of an individual statutory aggravating or mitigating circumstance
in a particular case, it must first determine whether the statutory
language defining the circumstance is itself too vague to provide
any guidance to the sentencer. If so, then the federal court must
attempt to determine whether the state courts have further defined
the vague terms and, if they have done so, whether those
definitions are constitutionally sufficient.

Id. at 654. The Court then cited two additional cases in which the state supreme court
had sufficiently defined the statutory aggravating circumstance to be applied later by
the sentencing panel. See Maynard v. Cartwright, 486 U.S. 356 (1988); Proffitt v.
Florida, 428 U.S. 242 (1976).

Gregg v. Georgia, 428 U.S. 153, 195 (1976) (overturned on other grounds),
also supports our conclusion that a state trial court may not define a vaguely worded
statute at first instance. Gregg requires that the state provide a capital sentencer with
“a meaningful basis for distinguishing the few cases in which [the death penalty] is
imposed from the many cases in which it is not.” Id. at 188 (quoting Furman, 408
U.S. 238, 313 (1972) (White, J., concurring)). We acknowledged in our first opinion
in this case, anticipating that the Nebraska Supreme Court would conduct a
resentencing hearing if the state filed a timely motion, that “a state supreme court may
salvage a facially-vague statute by construing it to provide the sentencing body with
objective criteria for applying the statute.” Moore, 904 F.2d at 1229. This statement
reflects a logical assumption that the formulation of a new construction is a job for
the state’s highest court. The Nebraska Supreme Court’s puzzling delegation of this

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task to the sentencing panel leads us to conclude that Moore’s second death sentence
is not only foreclosed by this court’s previous decisions in his case, but is also the
product of an imprudent and unprecedented ad hoc judicial narrowing process. The
Gregg court explained:

the concerns expressed in Furman that the penalty of death not be
imposed in an arbitrary or capricious manner can be met by a
carefully drafted statute that ensures that the sentencing authority
is given adequate information and guidance. As a general
proposition these concerns are best met by a system that provides
for a bifurcated proceeding at which the sentencing authority is
apprised of the information relevant to the imposition of sentence
and provided with standards to guide its use of the information.

428 U.S. at 195.

The concern for eliminating arbitrariness and capriciousness expressed in
Gregg is not served by vesting the judicial narrowing function in the same tribunal
that will be responsible for applying in the first instance the resulting construction;
no “clear and objective” criteria could be expected to emerge from the procedure
initiated by the Nebraska Supreme Court upon remand. We have no alternative but
to reject the district court’s conclusion that the newly defined exceptional depravity
component of § 29-2523 (1)(d) was constitutionally applied against Moore.

III. Conclusion

Justice demands an end to this twenty-year litigation. Bound to our previous
decision, we hold that the definition of exceptional depravity, inclusive of the
purposeful selection of a victim on the basis of age, remains unconstitutionally vague.
We reverse the district court and direct it to issue the writ of habeas corpus, and
request that it remand the case to the Nebraska Supreme Court for resentencing,
consistent with our opinion that the exceptional depravity prong of § 29-2523 (1)(d)

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is unconstitutionally vague, and that Moore cannot be sentenced to death on the basis
of the exceptional depravity component of the aggravator.

BEAM, Circuit Judge, dissenting.

I agree with the court that justice demands an end to this twenty-year litigation,
but not through a result that is clearly wrong. I respectfully suggest that the outcome
of this appeal should be governed by a faithful application of law, nothing else.

The court hangs its hat on the premise that Moore v. Clarke, 904 F.2d 1226
(8th Cir. 1990) (Moore I), mandates today's decision, stating "[w]e are bound by our
opinion in [Moore I]; only en banc panels have the authority to alter prior decisions."
Ante at 13. This language, through omission, misstates the law. The court in Moore
I (with Judge Floyd Gibson dissenting) found that Moore was sentenced in 1980 in
violation of the Eighth Amendment because the "exceptional depravity" aggravator
applied by the Nebraska trial court was unconstitutionally vague. 904 F.2d at 1233.
However, even accepting the dubious notion that Moore I reflected valid precedent
at any point in 1990, subsequent Supreme Court precedent is incompatible with its
holdings, and we are thus no longer bound. Young v. Hayes, 218 F.3d 850, 853 (8th
Cir. 2000) (panel no longer bound by prior panel opinion when intervening Supreme
Court case is inconsistent with previous opinions).

Moore was first sentenced after trial in 1980 by a three-judge sentencing panel
as provided by Nebraska law.2 Neb. Rev. Stat. § 29-2520. The panel, relying upon
a previous Nebraska Supreme Court narrowing of prong two of Nebraska Revised
Statute § 29-2523(1)(d) found that Moore's murders were the product of "exceptional

2
In this case, there have been two Nebraska trial court sentencing panels, one
in 1980 and one in 1995. In this opinion, I generally refer to the 1980 panel as the
"sentencing panel" and the 1995 panel as the "resentencing panel."

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depravity by ordinary standards of morality and intelligence." Nebraska had earlier,
in conjunction with the exceptional depravity prong used a "coldly calculated"
formulation in two cases issued on the same day in 1977–State v. Rust, 250 N.W.2d
867 (Neb. 1977) and State v. Holtan, 250 N.W.2d 876 (Neb. 1977).3 The Moore
sentencing panel applied this precedent.

The Nebraska Supreme Court did not indicate the source of its "coldly
calculated" formulation but the Florida death penalty statute, enacted in response to
Furman v. Georgia, 408 U.S. 238 (1972), contained a separate "cold, calculated"
aggravator beginning in 1979. See Jonathan Kennedy, Florida's "Cold, Calculated
and Premeditated" Aggravating Circumstance in Death Penalty Cases, 17 Stetson L.
Rev. 47, 52, 60-61 (1987). Florida still uses this statutory rule, without published
disagreement from the Supreme Court, and the Florida Supreme Court has held this
aggravator is constitutional. Fennie v. State, 648 So.2d 95, 98 (Fla. 1994), cert.
denied, 513 U.S. 1159 (1995).4

3
In Holtan, the court stated that because the defendant killed and attempted to
kill unresisting victims of robbery, the "act was totally and senselessly bereft of any
regard for human life." 250 N.W.2d at 880. Although the court did not use the terms
"cold" and "calculated" in Holtan, in Rust, the court stated, "[t]oday in Holtan, we
have also said that aggravating circumstance (d) exists where the murder is so coldly
calculated as to indicate a state of mind totally and senselessly bereft of regard for
human life." 250 N.W.2d at 874.
4
Numerous other states use a statutorily enacted or common law "cold,
calculated" circumstance in death penalty litigation. I can find no instance in which
the Supreme Court has found use of this circumstance unconstitutional because of
vagueness. See, e.g., Fla. Stat. Ann. § 921.141(5)(i) (West 2001) (Florida statutory
aggravator); 720 Ill. Comp. Stat. 5/9-1(b)(11) (2001) (Illinois statutory aggravator);
Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999) (court held that finding of "cold-
blooded and calculated" aggravator did not merely reprise knowing and intentional
element of first-degree murder), cert. denied, 529 U.S. 1132 (2000); State v. Smith,
524 S.E.2d 28, 44-45 (N.C.) (finding of heinous, atrocious, or cruel aggravator
supported by evidence that defendant "coldly and designedly planned and carried out"

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 As this dissent will discuss, infra, the 1980 sentencing panel was on firm
constitutional ground when it found "exceptional depravity" because "each of the
murders was . . . so coldly calculated as to indicate a state of mind totally and
senselessly bereft of regard for human life," and that "[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." State v. Moore,
Order of Sentence at 84-85 (Dist. Ct. Douglas County, June 20, 1980). 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 Nebraska Supreme Court
affirmed the death sentence imposed by the 1980 panel saying:

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, 316 N.W.2d 33, 41 (Neb. 1982). This affirming language followed
the sentencing panel formulation almost in its entirety.

the murder), cert. denied, 531 U.S. 862 (2000); State v. Terry, No. M1999-00191-
CCA-R3-DD, 2000 W.L. 284067 at *11 (Tenn. Crim. App. Mar. 17, 2000) (evidence
showed the defendant's "cold calculated planning of the entire murderous scheme"
demonstrated depravity of the mind aggravating factor), aff'd, 46 S.W.3d 147 (Tenn.),
cert. denied, 122 S. Ct. 553 (2001).

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 Then, in 1986 the Nebraska Supreme Court decided State v. Palmer, 399
N.W.2d 706 (Neb. 1986). The Nebraska Supreme Court adopted the Arizona
Supreme Court's five-factor test (developed in State v. Gretzler, 659 P.2d 1, 11-12,
(Ariz.), cert. denied, 461 U.S. 971 (1983)), to narrow the "exceptional depravity"
aggravator. The court said:

[F]or the purpose of § 29-2523(1)(d) as an aggravating circumstance in
determining whether the death penalty may be imposed, we hold that
"exceptional depravity" in a murder exists when it is shown, beyond a
reasonable doubt, that the following circumstances, either separately or
collectively, exist in reference to a first degree murder: (1) apparent
relishing of the murder by the killer; (2) infliction of gratuitous violence
on the victim; (3) needless mutilation of the victim; (4) senselessness of
the crime; or (5) helplessness of the victim.

399 N.W.2d at 731-32.

Of course, the Palmer "senselessness of the crime" articulation when coupled
with the circumstance of a "coldly planned" murder based upon factors of "age" as
outlined by both the 1980 sentencing panel and the Nebraska Supreme Court in its
1982 affirmance of the panel, clearly and sufficiently channels the sentencer's
discretion within constitutional limits. Gretzler, 659 P.2d at 12 (senselessness or
helplessness combined with other narrowing circumstances separate the crime from
the norm of those considered to be noncapital offenses).

This brings us to the specifics of this court's 1990 Moore I decision, reached,
as earlier indicated, over the vigorous dissent of Judge Floyd Gibson, wherein this
court found that Moore was sentenced under an unconstitutionally vague exceptional
depravity factor. 904 F.2d at 1233. With regard to the Palmer case, decided six years
after Moore was sentenced, the panel stated:

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 Assuming arguendo that Palmer had been available to guide the panel
sentencing Moore, we still are not convinced that the Palmer decision,
when considered with the earlier cited cases, fulfills the constitutional
obligation of the Nebraska Supreme Court. . . . Our examination of the
state court precedent available to guide sentencing bodies in Nebraska
. . . 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.

Id. at 1231-32.

One month after Moore I was issued, the United States Supreme Court upheld
the validity and constitutionality of the State of Arizona's narrowing scheme in
Walton v. Arizona, 497 U.S. 639, 654-55 (1990) (stating that the construction given
to the challenged factors was "virtually identical" to the construction given by the
Oklahoma Supreme Court which was approved in Maynard v. Cartwright, 486 U.S.
356 (1988)), and in Lewis v. Jeffers, 497 U.S. 764, 777-78 (1990) (Arizona Supreme
Court construed the "especially heinous, cruel or depraved" aggravating factor in a
constitutionally permissible manner).

Since the Nebraska Supreme Court in Palmer adopted its test directly from the
validated Arizona formulation, the state immediately asked the Moore I panel to
rehear and reconsider the case in light of Walton and Lewis. In deciding the motion
for rehearing, the court, as required by necessary deference to Supreme Court
precedent, substantively backed off its earlier condemnation of the Palmer approach,
although this retreat is not mentioned in today's opinion. However, the rehearing
court (again over Judge Gibson's dissent) still did not find in favor of the state.
Moore v. Clarke, 951 F.2d 895, 897-98 (8th Cir. 1991) (Moore II).

The court's Moore II rehearing opinion acknowledged that the Supreme Court
"sustained application of" the Arizona test in both Walton and Jeffers. Id. at 897.

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However, the court held that Palmer's narrowing effort was still unavailing to the
state. Minutely parsing the language of various opinions, the Moore II court
erroneously concluded that the "so coldly, calculated" as to indicate a state of mind
totally and senselessly bereft of all regard for human life circumstance was not
employed in Palmer. Id. This conclusion ignores the fact that the fourth Palmer
factor channels the sentencer toward consideration of the "senselessness of the
crime." 399 N.W.2d at 732. The Moore II court further stated that Jeffers validated
only "a portion" of the Gretzler test used in Palmer and implied that this portion did
not include the "senselessness" prong of the Gretzler test. 951 F.2d at 897. However,
this position is specifically refuted in Jeffers wherein the Supreme Court states:

We granted certiorari in Walton to decide "[w]hether Arizona's
'especially heinous, cruel or depraved' aggravating circumstance, as
interpreted by the Arizona courts, fails to channel the sentencer's
discretion as required by the Eighth Amendment" . . . and our judgment
in that case plainly rested on a negative answer to that question.

Jeffers, 497 U.S. at 778 (quoting Walton, 497 U.S. at 652-56) (emphasis added).

Moore II also stated, "[t]he standard applied to Moore in 1980 was modified
substantially six years later by Palmer, and the changes found desirable by the
Nebraska Supreme Court in Palmer then demonstrate that the standards applied to
Moore [in 1980] were vague." 951 F.2d at 897. This simply misreads and misapplies
Palmer and other applicable Nebraska precedent. If anything, the Palmer formulation
approved by the Supreme Court in Jeffers and Walton, actually broadened the
"senselessness" factor.5

5
The fourth Palmer factor only requires the sentencer to consider the
senselessness of the crime, but under Rust, and pursuant to the 1980 Moore
sentencing panel's formulation, the sentencer considers whether the murders were
totally and senselessly bereft of regard for human life as evidenced by cold planning,
repetitive murders, and the fact that the victims were selected on the basis of their

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 So, contrary to the court's pronouncements today, ante at 5, the Nebraska
Supreme Court's rulings in Rust, Moore (1982) and Palmer are fully reconcilable;
indeed together, they inexorably point toward a constitutional use of the "exceptional
depravity" aggravator by the Moore sentencing panel in 1980 and, more certainly, by
the resentencing panel established in 1995.

I concede, as I must, that Gretzler notes that "[t]he mere existence of
senselessness or helplessness of the victim, in isolation, need not always lead to a
holding that the crime is heinous or depraved." 659 P.2d at 11-12. But, where
circumstances separate the crime from the "norm" of first-degree murder (as in Rust,
Holtan, Gretzler, Palmer and this case), the sentencer is entitled to find that the crime
was committed in a "depraved manner." Id. at 12. Nonetheless, the court today, as
did the court in Moore II, ignores the Palmer narrowing and ignores the fact that the
"coldly, calculated" circumstance, adopted by the Nebraska Supreme Court as early
as 1977, is but a further, and fully constitutional narrowing (indeed, a judicially
acceptable subset) of the "senselessness of the crime" factor.

Thus, given the convoluted course of this case in the Eighth Circuit, it is not
surprising that after the remand from this court, the Nebraska Supreme Court, which
can read and interpret the Constitution as well as this court, expressed understandable
frustration and uncertainty as to what, if anything, might possibly pass constitutional
muster in this circuit. While in this frame of mind, the Nebraska Supreme Court
further remanded the case to a newly constituted trial-level resentencing panel. 502
N.W.2d 227, 228 (Neb. 1993).

The court today interprets these statements and acts as a concession by the
Nebraska Supreme Court that state law continued to be unconstitutionally vague and

advanced ages. 316 N.W.2d at 41.

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that a perception of inability to adequately narrow the aggravator existed. These are
unsupported inferences.

It is true that the Nebraska Supreme Court, in remanding Moore's case for
resentencing, said, "we acknowledge that if this court reweighed the aggravating and
mitigating factors and resentenced Moore, the federal court would likely reverse."
Id. at 230. However, this statement was not made because the Nebraska court, as
argued by the court today, believed that its construction of section 29-2523(1)(d) was
vague and unconstitutional.6 Instead, the Nebraska court noted that the Eighth
Circuit, in habeas corpus review of Rust, see Rust v. Hopkins, 984 F.2d 1486 (8th
Cir. 1993), had opined that Nebraska appellate courts should not reweigh and
resentence a capital defendant. Moore, 502 N.W.2d at 229.7 It was this issue that
prompted the Nebraska Supreme Court to remand to a newly formed resentencing
panel, not concern for the vagueness of the exceptional depravity aggravator.

Also expressing concern about the federal-court-imposed confusion over
"exceptional depravity" in this circuit, the resentencing panel (apparently out of an
abundance of caution) decided to narrow the "senselessness of the crime" factor by
reiterating the "coldly calculated" circumstance which had been earlier articulated by
the Nebraska Supreme Court in Rust, 250 N.W.2d at 874, Holtan, 250 N.W.2d at 880,
Moore, 316 N.W.2d at 41, and State v. Harper, 304 N.W.2d 663, 668 (Neb. 1981).

6
Indeed, the court subsequently stated, Palmer "is constitutional. . . . [i]t
therefore cannot be said that at the time of Moore's [1995] resentencing there existed
no constitutionally viable definition of exceptional depravity. The resentencing panel
could have applied the Palmer factors." State v. Moore, 553 N.W.2d 120, 131 (Neb.
1996).
7
The Nebraska Supreme Court later agreed with this appraisal in State v.
Reeves, 604 N.W.2d 151, 168-69 (Neb. 2000), wherein it found that under Nebraska's
two-tiered system, reweighing and resentencing by an appellate court denies due
process.

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The resentencing panel then adopted its own more narrow version of this
"senselessness" aggravator by discussing more extensively the "experimentation" and
"purposeful selection" elements of the aggravator:

The killer's cold, calculated planning of the victim's death as
exemplified by experimentation with the method of causing the victim's
death or by the purposeful selection of a particular victim on the basis
of specific characteristics such as race, gender, creed, sexual orientation,
disability or age.

This formulation more than adequately and constitutionally narrowed the "coldly
calculated" circumstance. Indeed, a similar, and arguably more vague formulation of
the "coldly calculated" factor has previously been approved by this court.

In State v. Joubert, 399 N.W.2d 237 (Neb. 1986), the Nebraska Supreme Court
found that the murders in that case manifested exceptional depravity, in part because
the murders "were coldly planned as part of a repetitive program of self-gratification,
involving immature victims selected on the basis of their availability." Id. at 251
(emphasis added). On habeas review, this court held that the narrowed definition
applied by the Nebraska Supreme Court in Joubert was "clearly constitutional."
Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir. 1996). The narrowed definition of
the coldly calculated factor utilized in Joubert is quite similar to that used here–the
Joubert defendant selected victims because of their immaturity and availability and
the murders were repetitive. 399 N.W.2d at 251. Moore selected his victims on the
basis of their advanced ages and the murders were repetitive.

Furthermore, the key inquiry concerning whether the "coldly calculated"
formulation provides a constitutional narrowing of "senselessness" is not the specific
substance of that narrowed definition, but simply whether the sentencing process is
not infected with bias or caprice. Jones v. United States, 527 U.S. 373, 400 (1999).
This is the "controlling objective when we examine eligibility and selection factors

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for vagueness." Tuilaepa v. California, 512 U.S. 967, 973 (1994). This vagueness
review is deferential, however, and "[a]s long as an aggravating factor has a core
meaning that criminal juries should be capable of understanding, it will pass
constitutional muster." Jones, 527 U.S. at 400. Under this deferential standard, and
in light of the similarity between the narrowed version of "coldly calculated" used at
all stages of this case and in Joubert, the 1980 and 1995 sentencing panels adequately
and constitutionally narrowed the "exceptional depravity" aggravator.

Perhaps the most unsupported pronouncement by the court today arises from
its ruling on trial court authority to construe and apply a state sentencing statute.
Saddled with the established validity of the Palmer factors, the court boldly states that
the resentencing panel erred because it did not have the authority to further narrow
the statute, that such action must only be undertaken at the appellate level. The court
reaches back to Moore I to support this argument. Moore I stated, "a state supreme
court may salvage a facially-vague statute by construing it to provide the sentencing
body with objective criteria for applying the statute." 904 F.2d at 1229, ante at 14.
This slender reed, quoted out of context, in no way supports the court's broad
premise.

While it is certainly true that a state supreme court may construe a facially-
vague statute in such a way as to render it constitutional, so may a state trial court.
See, e.g., State v. Garza, 496 N.W.2d 448, 452 (Neb. 1993) (trial court must be
allowed first attempt at constitutional interpretation to determine validity of statute).
Cf. Beck v. Piatt, 101 Cal. Rptr. 236, 239 (Cal. Ct. App. 1972) (interpretation and
applicability of statute is a question of law to be determined by trial court in "initial
instance"); Dep't of Public Utils. v. Freedom of Info. Comm'n, 739 A.2d 328, 331
(Conn. App. Ct. 1999) (determination of meaning of statute is question of law within
province of trial court and appellate court). Indeed, Moore II recognized this trial
court authority when in support of its vagueness conclusions it stated "[n]o such

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narrowing construction was given the [statutory] 'depravity' language, either by the
sentencing court or the Nebraska Supreme Court." 951 F.2d at 897 (emphasis added).

The Nebraska Supreme Court, as early as Rust, specifically acknowledged a
sentencing panel's authority to narrow a statutory aggravator when the court noted:
"[w]e think the panel properly interpreted and applied the [29-2523(1)(d)] definition
in this case." 250 N.W.2d at 874 (citing Proffitt v. Florida, 428 U.S. 242 (1976)).
This circuit has recently observed that "[i]t is of course for the [state supreme court]
to interpret and apply its own rules, and we have no power to redetermine questions
of state law, including state procedural rules, as such." Carter v. Bowersox, 265 F.3d
705, 716 (8th Cir. 2001). Both before and after resentencing, the Nebraska Supreme
Court has specifically recognized this lower court authority to interpret and apply
legislatively enacted rules. State v. Moore, 502 N.W.2d at 229-30; 553 N.W.2d 120,
132-33 (Neb. 1996) (resentencing panel within its authority to define the exceptional
depravity component).

Even assuming, in the face of this straightforward determination of Nebraska
law, that the resentencing panel somehow did not have the authority to narrow the
statute in the first instance, the Nebraska Supreme Court's subsequent ratification of
the panel's formulation cures any possible defect. In Moore's direct appeal from the
panel's resentence, the Nebraska Supreme Court held that the resentencing panel's
definition of the coldly calculated factor was not vague, because it "provide[d]
sufficient guidance to the sentencing authority 'so as to minimize the risk of wholly
arbitrary and capricious action.'" State v. Moore, 553 N.W.2d at 132 (quoting Gregg
v. Georgia, 428 U.S. 153, 189 (1976)). The Nebraska Supreme Court also found that
the panel's formulation was not unconstitutionally overbroad since it required well
more than the premeditation necessary to support a first-degree murder conviction.
553 N.W.2d at 133.

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 As earlier indicated, even the Moore I court recognized that "a state supreme
court may salvage a facially-vague statute by construing it to provide the sentencing
body with objective criteria for applying the statute." 904 F.2d at 1229. Requiring
the Nebraska Supreme Court to now remand the case, with instructions to the
sentencing panel to apply the narrowed and approved definition that it has already
applied, seems unnecessarily and improperly circuitous.

Because both sentencing panels constitutionally narrowed the "exceptional
depravity" statute, and the Nebraska Supreme Court ratified the narrowed
formulations on direct appeal, I would affirm the well-reasoned judgment of the
district court denying habeas corpus relief. Otherwise, the message emanating from
the court today is that whatever the State of Nebraska chooses to do in this case, this
court will find it wanting. With this communication I vigorously disagree.
Accordingly, I dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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