Charles Jess Palmer v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 03-3841
___________

Charles Jess Palmer, *
*
Appellant, *
*
v. *
*
Harold W. Clarke, Director, *
State of Nebraska Department of *
Correctional Services, * Appeals from the United States
* District Court for the
Appellee. * District of Nebraska.
*
____________________ *
*
National Association of Criminal *
Defense Lawyers, *
*
Amicus on Behalf of *
Appellant. *
___________

No. 03-3842
___________

Charles Jess Palmer, *
*
Appellee, *
*
v. *
*
Harold W. Clarke, Director, *
State of Nebraska Department of *
Correctional Services, *
*
Appellant. *
*
____________________ *
*
National Association of Criminal *
Defense Lawyers, *
*
Amicus on Behalf of *
Appellee. *
___________

Submitted: December 13, 2004
Filed: May 13, 2005
___________

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
___________

WOLLMAN, Circuit Judge.

Charles Jess Palmer and the State of Nebraska each appeal from the district
court’s partial grant of Palmer’s petition for writ of habeas corpus. We affirm in part
and reverse in part.

I. BACKGROUND
Palmer has been tried, convicted, and sentenced to death three times for the
1979 felony murder of Eugene Zimmerman in Grand Island, Nebraska. The Nebraska
Supreme Court reversed Palmer’s first conviction and death sentence because the
state trial court erroneously admitted hypnotically induced testimony. State v.
Palmer, 313 N.W.2d 648, 655 (Neb. 1981) (Palmer I). That court subsequently
reversed Palmer’s second conviction and death sentence because the trial court
allowed Palmer’s estranged wife (Cherie Palmer) to testify at trial in violation of

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Nebraska’s marital privilege. State v. Palmer, 338 N.W.2d 281, 284 (Neb. 1983)
(Palmer II). The marital privilege, as it then existed, provided that: “During the
existence of the marriage, a husband and wife can in no criminal case be a witness
against the other. This privilege may be waived only with the consent of both
spouses.” Neb. Rev. Stat. § 27-505(a)(2) (Reissue 1995). Because of Palmer’s
appeal of a divorce decree in Texas, the couple’s marriage had not yet terminated, and
thus Cherie Palmer remained incapable of testifying against Palmer during the
pendency of the second trial.

After Palmer’s second conviction was reversed, but before his third trial, the
Nebraska Legislature amended the marital privilege statute by rendering the privilege
inapplicable in cases involving crimes of violence.1 Neb. Rev. Stat. § 27-505(a)(3)(a)
(Reissue 1995). As a result, Cherie Palmer was permitted to testify against Palmer
in his third trial. Palmer was again convicted and again sentenced to death. On
appeal, the Nebraska Supreme Court affirmed Palmer’s conviction and sentence.
State v. Palmer, 399 N.W.2d 706 (Neb. 1986) (Palmer III).

Before the start of his third trial, Palmer filed a federal habeas corpus petition,
contending that his second trial violated his right against double jeopardy and that his
impending third trial would also constitute a double-jeopardy violation because the
properly admitted evidence in both his first and second trials was legally insufficient
to convict him. After four hearings before the district court, four appeals to our court,
and multiple remands, we dismissed Palmer’s petition. See Palmer v. Drum, No. 84-
8041 (8th Cir. May 10, 1984) (reversing dismissal of petition as premature); Palmer

1
Prior to the amendment, the privilege had been inapplicable only in cases
where the crime charged was rape, adultery, bigamy, incest, child abandonment, or
a crime committed against one spouse by the other or against a child of either. Palmer
III, 399 N.W.2d at 714-15; Neb. Rev. Stat. § 27-505(a)(3)(a). The amendment
replaced rape and adultery with the more general “crime of violence” category.
Palmer III, 399 N.W.2d at 717.

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v. Grammer, 863 F.2d 588 (8th Cir. 1988) (Palmer (Fed.) I) (dismissing Palmer’s
original petition but remanding the case to allow Palmer to amend); Palmer v. Clarke,
961 F.2d 771 (8th Cir. 1992) (Palmer (Fed.) II) (remanding amended petition to
district court with instructions to consider prosecutorial misconduct argument);
Palmer v. Clarke, 12 F.3d 781 (8th Cir. 1993) (per curiam) (Palmer (Fed.) III)
(dismissing Palmer’s amended petition).

Palmer subsequently filed a petition for post-conviction relief in Nebraska state
court. The state district court denied Palmer’s petition in its entirety, and the
Nebraska Supreme Court affirmed. State v. Palmer, 600 N.W.2d 756 (Neb. 1999)
(Palmer IV). Palmer next filed a twenty-two-claim federal habeas corpus petition
challenging his third conviction and sentence. The district court denied the writ as
to Palmer’s third conviction, but granted the writ as to Palmer’s resulting death
sentence. The district court held that, because of errors committed during the
sentencing phases of all three of Palmer’s trials, the death penalty could not
constitutionally be imposed upon Palmer. The district court granted a certificate of
appealability as to the claims on which it denied relief, and the State appealed those
claims on which the district court granted relief.

II. STANDARD OF REVIEW
In habeas corpus cases, we review the district court’s findings of fact for clear
error and its legal conclusions de novo. Reagan v. Norris, 365 F.3d 616, 621 (8th Cir.
2004).

A. Substantive Review of State Court Decisions
Our power to review underlying state court decisions in habeas corpus cases
is restricted to the “limited and deferential review” mandated by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Ryan v. Clarke, 387 F.3d 785, 790
(8th Cir. 2004) (quoting Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.), cert.
denied, 125 S. Ct. 670 (2004)). Under AEDPA, we may grant a writ of habeas corpus

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only if the relevant state court decision was either (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). See also Ryan, 387 F.3d at 790.

The phrase “clearly established Federal law, as determined by the Supreme
Court of the United States” “refers to the holdings, as opposed to the dicta, of [the
Court’s] decisions as of the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). A decision is contrary to clearly established
Supreme Court precedent if “the state court arrives at a conclusion opposite to that
reached by [the] Court on a question of law or…decides a case differently than [the]
Court has on a set of materially indistinguishable facts.” Id. at 412-13. A decision
constitutes an unreasonable application of clearly established Supreme Court
precedent “if the state court identifies the correct governing legal principle from [the]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413. An incorrect decision is not necessarily unreasonable, and we may
not grant a writ of habeas corpus unless the state court decision is both wrong and
unreasonable. Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.), cert. denied, 540 U.S.
851 (2003). A state court’s determination of the facts is unreasonable “only if it is
shown that the state court’s presumptively correct factual findings do not enjoy
support in the record.” Jones, 359 F.3d at 1011.

AEDPA applies, however, only to habeas petitions filed after its effective
date—April 24, 1996. Ryan, 387 F.3d at 789. The applicability of AEDPA thus
centers on what was before a federal court on that date. Woodford v. Garceau, 538
U.S. 202, 207 (2003). Accordingly:

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 If, on that date, the state prisoner had before a federal court an
application for habeas relief seeking an adjudication on the merits of the
petitioner’s claims, then amended § 2254(d) does not apply. Otherwise,
an application filed after AEDPA’s effective date should be reviewed
under AEDPA, even if other filings by that same applicant…were
presented to a federal court prior to AEDPA’s effective date.

Id. (emphasis in original).

The district court held that Palmer’s present habeas petition related back to his
prior federal petition, and that AEDPA standards therefore did not apply, because we
had “reserved judgment on the posttrial component” of Palmer’s original habeas
petition. We disagree for two reasons. First, Palmer’s original petition in federal
court contained no posttrial component. We noted in Palmer (Fed.) II that Palmer
specifically stated that he was “not alleging and [was] expressly reserving any
arguments [that] he [might] have arising out of his third trial” and that Palmer’s
original petition explicitly did not challenge his third judgment of conviction and
sentence. 961 F.2d at 775 (modification in original). We also stated that a later
petition attacking Palmer’s third conviction would not qualify as a second or
successive petition. Id. Accordingly, when Palmer’s entire pretrial petition was
denied in Palmer (Fed.) III, 12 F.3d at 783, there were no posttrial claims remaining
on which to reserve judgment.

More importantly, Palmer’s petition was not pending in federal court on April
24, 1996. In Palmer (Fed.) III, we clearly and categorically denied the habeas petition
then pending before us. Id. The district court’s conclusion that we held the petition
“in abeyance” pending the conclusion of Palmer’s third trial simply has no basis in
the record. Our mandate issued, was received by the District of Nebraska, and was
fully in force after the Supreme Court denied certiorari. See Palmer v. Clarke, 512
U.S. 1213 (1994). Furthermore, the district court’s observations about the disposition
of the case file and records following Palmer (Fed.) III cannot render nugatory our

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clear language in that case.2 Accordingly, Palmer’s present petition does not relate
back to his prior petition, and AEDPA standards apply to all of Palmer’s claims.

B. Fair Presentment
Before seeking federal habeas corpus relief, a petitioner must first fairly present
the substance of each claim to the appropriate state court, thereby alerting the state
court to the federal nature of each claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004);
Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir.), cert. denied, 540 U.S. 870
(2003). A petitioner has fairly presented a claim when he has “properly raised the
same factual grounds and legal theories in the state courts which he is attempting to
raise in his federal habeas petition.” Wemark, 322 F.3d at 1021 (internal citations
and quotations omitted).

III. CLAIMS ON WHICH THE DISTRICT COURT DENIED RELIEF

A. Claim I: Ex Post Facto Violation
Palmer first asserts that the application of the Nebraska Legislature’s marital
privilege amendment to his third trial constituted an ex post facto application of the
amended statute. See U.S. Const. art. I, § 10, cl. 1. The Nebraska Supreme Court,
relying on Hopt v. Utah, 110 U.S. 574 (1884), and Thompson v. Missouri, 171 U.S.
380 (1898), held that the marital privilege amendment (L.B. 696) simply modified a
rule of evidence, and thus its application in Palmer’s case did not violate the ex post
facto prohibition. Palmer III, 399 N.W.2d at 714-18.

In his seriatim opinion in Calder v. Bull, Justice Chase enumerated four
categories of laws that he considered violative of the Ex Post Facto Clause. 3 U.S.

2
The district court based its holding in part on the fact that the district court’s
file pertaining to Palmer’s first habeas corpus petition was never officially closed.
Palmer v. Clarke, 293 F. Supp. 2d 1011, 1022 (D. Neb. 2003).

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386, 390 (1798). The fourth of those categories consisted of “[e]very law that alters
the legal rules of evidence, and receives less, or different testimony, than the law
required at the time of the commission of the offence, in order to convict the
offender.” Id. (opinion of Chase, J.). In Hopt, decided almost ninety years later, the
Court examined a pre-trial, post-offense statutory modification that permitted
felons—who had theretofore been barred from being a witness in any case—to testify
in both civil and criminal cases. 110 U.S. at 587-88. The Court upheld the
modification against an ex post facto challenge and held that statutes which “simply
enlarge the class of persons who may be competent to testify in criminal cases” do not
offend the ex post facto prohibition because they do not make any act criminal which
was not criminal at the time of its commission, aggravate or increase the punishment
for any crime over that prescribed when the crime was committed, or alter the degree
or lessen the amount or measure of proof necessary to convict the defendant. Id. at
589. The Court later addressed a similar ex post facto challenge to a pre-trial, post-
offense evidentiary change that permitted the previously barred introduction of other
writings in order to prove the authenticity of disputed writings, and concluded that
a state does not violate the ex post facto prohibition when it enacts a statute making
competent to testify a class of persons who were excluded from doing so on public
policy grounds at the time the offense was committed. Thompson, 171 U.S. at 381,
386-87.

The Nebraska Supreme Court held that L.B. 696 was indistinguishable from
the statutes considered in Hopt and Thompson and that it thus did not run afoul of ex
post facto constraints. Palmer III, 399 N.W.2d at 716-17. Based on those cases,
which were controlling at the time that Palmer III was decided, we do not believe that
the Nebraska Supreme Court’s decision was contrary to, or an unreasonable
application of, clearly established federal law. L.B. 696 merely rendered a class of
persons previously barred from acting as witnesses in criminal cases fully competent
to testify from that point forward. Furthermore, the fact that L.B. 696 rendered
current spouses competent to testify in criminal cases did not make any acts criminal

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that were not criminal when committed, increase the punishment for any crime over
that applicable when the crime was committed, or alter the degree or amount of proof
required to convict any defendant.

Palmer contends, however, that the Supreme Court’s more recent decisions in
Carmell v. Texas, 529 U.S. 513 (2000), and Stogner v. California, 539 U.S. 607
(2003), render the Nebraska Supreme Court’s disposition of his ex post facto claim
contrary to clearly established federal law or an unreasonable application thereof. We
find his arguments unavailing. Even assuming, arguendo, that Carmell and
Stogner—which were decided well after the Nebraska Supreme Court’s 1986
decision in Palmer III—qualify as “old rules” under Teague v. Lane, 489 U.S. 288
(1989),3 and thus must be taken into account in our consideration of clearly
established federal law, see Taylor, 529 U.S. at 412, they do not affect our conclusion
that Hopt and Thompson dispose of Palmer’s claim.

In Carmell, a defendant challenged a modification to Texas’s “corroboration
or outcry” rule. 529 U.S. at 516. Prior to 1993, the rule stated that the testimony of
certain minor victims of sexual assault could not support a conviction unless it was
corroborated or unless the victim had informed another person within six months of
the offense (“outcry”). Id. at 517-18. Texas then amended the statute to eliminate the
corroboration or outcry requirement for all minor victims. Id. at 518. In holding that
the statute could not be applied to crimes committed prior to its enactment, the Court
specifically addressed Justice Chase’s fourth category and held that it was directed
at sufficiency of the evidence rules, which “mean that evidence is insufficient to
convict by the force of [those laws] alone,” as opposed to witness competency rules,
which produce that result only in combination with the normally operative sufficiency

3
An old rule is a rule announced in a Supreme Court case that was decided after
a habeas corpus petitioner’s judgment of conviction and sentence, but that was
dictated by precedent existing before that judgment became final. Stringer v. Black,
503 U.S. 222, 227 (1992).

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rule. Id. at 551-52 & n.35 (emphasis in original). Because a failure to supplement
victim testimony with corroboration or outcry made that testimony insufficient to
convict by the force of the pre-modification rule alone, the rule was a sufficiency of
the evidence rule, and thus its pre-trial, post-offense modification lessened the
amount of proof required to convict in violation of the ex post facto prohibition. Id.
at 530. Put another way, the modification made a state case based solely upon victim
testimony legally sufficient where, under the previous law, a case based solely upon
victim testimony (even if sufficient to prove the defendant’s guilt) was legally
insufficient, and thus the application of the amended statute violated the Ex Post
Facto Clause. Id. at 530-31.

In contrast, even accepting, arguendo, Palmer’s argument that Cherie Palmer’s
testimony was crucial to his conviction, the admission of that testimony pursuant to
L.B. 696 merely served to make the case factually sufficient to convict without
changing the legal sufficiency of the evidence standard. Nebraska’s prior marital
privilege did not render cases presented without spousal testimony insufficient;
rather, those cases were judged by whether they proved the defendant’s guilt beyond
a reasonable doubt. Similarly, the fact that spousal testimony became admissible by
virtue of L.B. 696’s enactment does not necessarily make a case sufficient where it
previously was insufficient. Both before and after L.B. 696, the sufficiency of a case
was judged by whether the factual evidence presented was sufficient to meet the legal
sufficiency of the evidence standard: guilt beyond a reasonable doubt.4

In Stogner, the Court considered a statute that allegedly violated Justice
Chase’s second category of ex post facto laws. 539 U.S. at 612-13. As support for
its decision that the statute was unconstitutionally applied to crimes committed prior

4
Palmer also asserts that, even if L.B. 696 is merely an evidentiary rule, its
attainder characteristic distinguishes it from other such rules. Whatever this may
mean for Palmer’s bill of attainder claim, see infra, it is irrelevant to our ex post facto
analysis.

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to its enactment, the Court looked to the historical episodes cited by Justice Chase as
alternative descriptions of his four categories, in which he detailed the various bad
acts of Parliament that gave rise to our Constitution’s ex post facto prohibition. Id.
at 612-14. In his alternative description of the fourth category implicated here,
Justice Chase stated that Parliament occasionally “violated the rules of evidence...by
admitting...the oath of the wife against the husband.” Id. at 612; Calder, 3 U.S. at
389. Palmer claims that this passage, in addition to the Court’s citation in Stogner to
Justice Chase’s alternative descriptions, makes L.B. 696 an impermissible ex post
facto law. We disagree.

As an initial matter, it is instructive to note that Justice Chase’s opinion in
Calder was written in the period in which each Justice gave his opinion seriatim.
Thus, it is not a Supreme Court holding that would be included in the definition of
“clearly established Federal law.” Justice Chase’s opinion has historical significance
solely because his four categories have been viewed “as an authoritative gloss on the
Ex Post Facto Clause’s reach” by more recent Supreme Court decisions. See
Carmell, 529 U.S. at 567 (Ginsburg, J., dissenting). Even if Calder did have full
precedential force, however, the best argument that Palmer could make is that there
is a conflict between Calder’s alternative descriptions and the holdings in Hopt and
Thompson, and thus that the applicable federal law is not clearly established.
Furthermore, although the Court did rely upon Calder’s alternative descriptions in
striking down the statute at issue in Stogner, it neither implicitly nor explicitly held
that Calder’s alternative description of the fourth ex post facto category stands on
equal precedential footing with the more traditional definition. Quite the opposite,
the Court’s brief treatment of the fourth category cited Carmell’s analysis of that
category. 539 U.S. at 615.

Accordingly, the Nebraska Supreme Court’s disposition of Palmer’s ex post
facto claim was neither contrary to nor an unreasonable application of clearly
established federal law.

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 B. Claim II: Bill of Attainder
Palmer next claims that L.B. 696 functioned as an unconstitutional bill of
attainder. U.S. Const. art. I, § 10, cl. 1. The Nebraska Supreme Court held that
because L.B. 696 did not specify Palmer as its target, it did not constitute a bill of
attainder. Palmer IV, 600 N.W.2d at 769-70.

In order to be termed a bill of attainder, a law must: (1) specify the affected
persons; (2) impose punishment; and (3) lack a judicial trial. Selective Serv. Sys. v.
Minn. Pub. Interest Research Group, 468 U.S. 841, 847 (1984). Historically, bills of
attainder identified by name the persons they intended to punish. Id. Even if an
individual is not identified by name, however, an enactment constitutes an attainder
if it describes the individual “in terms of conduct, which, because it is past conduct,
operates only as a designation of particular persons.” Communist Party v. Subversive
Activities Control Bd., 367 U.S. 1, 86 (1961). Thus, “when past activity serves as ‘a
point of reference for the ascertainment of particular persons ineluctably designated
by the legislature’ for punishment,” the enactment may be an attainder. Selective
Serv., 468 U.S. at 847 (quoting Communist Party, 367 U.S. at 87).

On its face, L.B. 696 makes no reference to Palmer and is generally applicable
to all cases in which a crime of violence is alleged. Rather than distinguishing
between persons charged with a crime, it appears to distinguish among criminal
prosecutions in which the marital privilege is applicable. Thus, there is no way to
determine which individuals were “ineluctably designated” by L.B. 696 for
punishment. Notwithstanding the frequent references to Palmer in L.B. 696’s
legislative history, we cannot say that this fact alone renders the state court decision
unreasonable.

Furthermore, even if the Nebraska Supreme Court’s conclusion that L.B. 696
did not specify Palmer were found to be so completely belied by the record as to fail
the unreasonableness standard of review, Palmer still would not be entitled to habeas

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relief on this claim. Whether a law imposes punishment upon a certain individual
requires three inquiries: “(1) whether the challenged statute falls within the historical
meaning of legislative punishment; (2) whether the statute, viewed in terms of the
type and severity of burdens imposed, reasonably can be said to further nonpunitive
legislative purposes; and (3) whether the legislative record evinces a [legislative]
intent to punish.” Selective Serv., 468 U.S. at 852 (internal citations and quotations
omitted). L.B. 696 meets none of these tests. First, the disability imposed upon
Palmer—the elimination of his ability to bar Cherie Palmer from testifying—does not
equate to those deprivations historically viewed as punishment, e.g., imprisonment,
banishment, confiscation of property, or deprivation of employment or participation
in a trade or trade union. Nixon v. Adm’r of Gen. Svcs., 433 U.S. 425, 473-74
(1977). Second, “[l]egislation designed to guarantee the availability of evidence for
use at criminal trials,” such as L.B. 696, constitutes a valid nonpunitive exercise of
legislative power. Id. at 477. Finally, the legislative record in this case cannot fairly
be characterized as evincing an intent to punish. Although both the state senator from
the victim’s district and the prosecutor in Palmer’s case specifically cited the reversal
of Palmer’s second conviction as a justification for L.B. 696, their testimony took
place in a committee hearing, and both stated that they were testifying for themselves
alone. See Palmer App., vol. II, at 413-16 (testimony of Senator Peterson and Hall
County Attorney Steven Von Reisen). In addition, although Senator Peterson
reiterated his personal appeal on the floor of the Unicameral and distributed a news
release from the Hall County Board reflecting community sentiments towards Palmer,
see Palmer App., vol. II, at 430 (statement of Senator Peterson), this isolated
statement does not show that the Unicameral as a whole “was intent on encroaching
on the judicial function of punishing an individual for blameworthy offenses.”
Nixon, 433 U.S. at 479. In fact, Senator Peterson’s brief reference to Palmer’s case
was the only reference made to Palmer in floor debates, and the prosecutor in
Palmer’s case explicitly testified that, even with the marital privilege amendment,
Palmer was entitled to a fair trial. See Palmer App., vol. II, at 416 (testimony of
Steven Von Reisen). Because L.B. 696 cannot be characterized as “punishment,”

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Palmer’s bill of attainder claim accordingly fails regardless of whether L.B. 696
specifies him.

C. Claim IX: Double Jeopardy
Palmer alleges that the prosecutor in his second trial and the judge that presided
over that trial committed misconduct by allowing Cherie Palmer to testify in violation
of Nebraska’s then-existing marital privilege, and that such misconduct should bar
his third trial on double jeopardy grounds. In Palmer (Fed.) III, however, we
specifically affirmed the district court’s conclusion that no prosecutorial or judicial
misconduct had occurred during Palmer’s second trial. 12 F.3d at 783. Furthermore,
although we stated in Palmer (Fed.) II that a later petition challenging Palmer’s third
conviction would not be second or successive, 961 F.2d at 774-75, this claim again
challenges Palmer’s third trial on grounds identical to those raised and addressed in
Palmer’s prior federal habeas petition, to wit, that because of prosecutorial and
judicial misconduct, Cherie Palmer’s testimony in the second trial should be excluded
when determining whether the evidence in the second trial was sufficient to convict
Palmer. See Palmer (Fed.) III, 12 F.3d at 782. The record also indicates that the
“goading to mistrial” argument presented by Palmer in this petition and the cases
cited in support thereof were specifically raised and rejected by the district court in
connection with the prior federal habeas petition. Thus, Palmer’s double jeopardy
claim qualifies as a second or successive claim under 18 U.S.C. § 2244(b)(1) and
must be dismissed. See, e.g., Vancleave v. Norris, 150 F.3d 926, 929 (8th Cir. 1998).

D. Claim X: Speedy Trial
Palmer claims that the seventeen-week delay between the reversal of his second
conviction and the commencement of his third trial deprived him of his constitutional
right to a speedy trial. If the length of the delay cannot be said to be presumptively
prejudicial, however, there is no deprivation of the speedy trial right. Barker v.
Wingo, 407 U.S. 514, 530 (1972).

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 The Nebraska Supreme Court, citing Barker, held that a seventeen-week delay
is not presumptively prejudicial. See Palmer III, 399 N.W.2d at 721-22. This
conclusion was not an unreasonable application of clearly established federal law.

E. Claims XI-XIII: Admission of Certain Evidence
Palmer asserts that certain evidence in his third trial was admitted in violation
of due process. In claim XI, he alleges that a pretrial photographic display shown to
the victim’s wife (Monica Zimmerman) was impermissibly suggestive because
Palmer was noticeably taller than all of the other individuals in the display, and,
accordingly, that Mrs. Zimmerman’s subsequent in-court identification of Palmer
should have been excluded. In claim XII, he argues that Mrs. Zimmerman’s
testimony in his second and third trials was impermissibly tainted by the hypnosis
session that led to the exclusion of her testimony in the first trial. In claim XIII, he
asserts that the combination of the photographic display and the hypnosis also
rendered the photographic display impermissibly suggestive. The Nebraska Supreme
Court held that the display was not impermissibly suggestive and that, even if it was,
the totality of the circumstances surrounding Mrs. Zimmerman’s review of the display
rendered the display not “unduly suggestive.” Palmer III, 399 N.W.2d at 720-21. In
addition, the court held that Nebraska evidentiary rules, as well as the court’s prior
precedent, did not bar the introduction of Mrs. Zimmerman’s testimony because the
testimony related to matters of which she had knowledge before the hypnosis session.
Id. at 719-20.

“[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Simmons v. United States,
390 U.S. 377, 384 (1968). Even if a photographic identification procedure is
impermissibly suggestive, however, the “central question” regarding eyewitness
identification at trial is “whether, under the totality of the circumstances, the

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identification was reliable despite any suggestive or inappropriate pre-trial
identification techniques.” Trevino v. Dahm, 2 F.3d 829, 833 (8th Cir. 1993) (citing
Neil v. Biggers, 409 U.S. 188 (1972)). In determining whether the identification was
reliable, a court must consider: (1) the opportunity of the witness to view the criminal
at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior description of the criminal; (4) the level of certainty demonstrated by
the witness at the time of the photographic display; and (5) the length of time between
the crime and the photographic display. Biggers, 409 U.S. at 199. The existence of
each factor is a factual determination to be made by the state court, Sumner v. Mata,
455 U.S. 591, 597 n.10 (1982) (per curiam), and is entitled to the requisite
presumption of correctness.

Although the Nebraska Supreme Court stated that the photographic display was
not suggestive because one could not determine the height of each subject (including
Palmer) by looking at the pictures, it also held that “the totality of the circumstances
ma[de] it abundantly clear that the photographic array was not unduly suggestive.”
Palmer III, 399 N.W.2d at 721. It thus appears that the court incorrectly introduced
the Biggers factors, which address the inherent reliability of the in-court
identification, into its suggestiveness analysis.

Even if the court erred in its analysis, Palmer is not entitled to relief on this
ground unless his constitutional or statutory rights were violated. See 28 U.S.C. §
2254(a). The Nebraska Supreme Court specifically found that it took Mrs.
Zimmerman “one to two” seconds to eliminate all other subjects but Palmer from the
photographic array. The district court additionally found that Mrs. Zimmerman had
observed Palmer in her home on several occasions, had described his approximate
age, height, and hair color one day after the murder, and was positive about the
identification made from the photographic array. There is ample support for these
findings in the record, and Palmer did not dispute them. Furthermore, the record
indicates that Mrs. Zimmerman last saw Palmer approximately three weeks before she

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picked him out of the photographic array. Based on a totality of the circumstances,
we conclude that Mrs. Zimmerman’s in-court identification of Palmer was inherently
reliable, despite any potentially suggestive features of the photographic array, and
thus properly admissible at trial.

The fact that Mrs. Zimmerman’s hypnosis session took place before the
photographic array and the in-court identification of Palmer does not alter our
conclusion. The “suggestions” made to Mrs. Zimmerman in the hypnosis session
regarding the physical features of the person she suspected had murdered her husband
were vague and based upon facts that she had already disclosed to investigators.
Additionally, any suggestions could not have been made with Palmer in mind, as
Palmer’s identity and physical appearance were not known to police until the
photographic array took place almost two weeks later. Finally, and most importantly,
there is no evidence that the Austin, Texas, Police Department personnel who
conducted the photographic array knew of the hypnosis session or its results.
Accordingly, the existence of the hypnosis session does not shift the totality of the
circumstances toward a finding that Mrs. Zimmerman’s in-court identification of
Palmer was unreliable.5

We also uphold as not contrary to clearly established federal law the Nebraska
Supreme Court’s determination that Mrs. Zimmerman’s testimony in the second and
third trials was admissible despite the hypnosis session. The admissibility of
evidence in a state trial is a matter of state law, and thus we will grant habeas relief
only if the state court’s evidentiary ruling “infringes upon a specific constitutional
protection or is so prejudicial that it amounts to a denial of due process.” Clark v.
Groose, 16 F.3d 960, 963 (8th Cir. 1994) (internal citations omitted). The Nebraska

5
Palmer framed his argument as whether the hypnosis session, in combination
with the photographic array, made the array unduly suggestive. We believe, however,
that the proper inquiry is whether the hypnosis session rendered Mrs. Zimmerman’s
in-court identification unreliable.

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Supreme Court found that Mrs. Zimmerman’s testimony was properly limited to facts
that she knew and had disclosed to others prior to the hypnosis session, Palmer III,
399 N.W.2d at 719, and there is ample evidence in the record to support this finding.
Therefore, the admission of Mrs. Zimmerman’s testimony resulted in no violation of
due process or of any other constitutional protection.

F. Claim XIX: Warrantless Arrest and Seizure of Evidence
Palmer next argues that his arrest in Texas (prior to his first trial), and the
seizure of evidence from him at that time, violated his Fourth Amendment rights. A
Fourth Amendment claim is not cognizable on federal habeas review unless the state
fails to provide “an opportunity for full and fair litigation of [the] claim.” Stone v.
Powell, 428 U.S. 465, 494 (1976). Thus, we will review a Fourth Amendment claim
raised in a habeas petition only if either “the state provided no procedure by which
the prisoner could raise his Fourth Amendment claim, or the prisoner was foreclosed
from using that procedure because of an unconscionable breakdown in the system.”
Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (en banc). Palmer does not
dispute that his Fourth Amendment claim was reviewed and decided by the Nebraska
Supreme Court in Palmer I, 313 N.W.2d at 652, and thus we need not reexamine that
court’s decision.

G. Claim XVIII: Death by Electrocution
Palmer asserts that Nebraska’s current method of carrying out the death penalty
by electrocution constitutes cruel and unusual punishment in violation of the Eighth
Amendment. He concedes, however, that he did not challenge electrocution as a
method of execution in state court and thus procedurally defaulted the claim. We
nevertheless may review a procedurally defaulted claim, however, if a habeas
petitioner shows “cause for the default and prejudice from the alleged violation of his
rights.” Evans v. Luebbers, 371 F.3d 438, 443 (8th Cir. 2004), cert. denied, 125 S.
Ct. 902 (2005).

-18-
 Palmer argues that cause exists to excuse his procedural default because (1) the
dearth of executions in Nebraska between 1972, when the Supreme Court declared
the death penalty unconstitutional in Furman v. Georgia, 408 U.S. 238, and 1995,
when his post-conviction evidentiary hearing took place, rendered the factual basis
of his claim unavailable, and (2) legal and social trends rejecting electrocution as a
method of execution had not emerged prior to his evidentiary hearing. We disagree
that these allegations establish cause for Palmer’s procedural default. Although
Nebraska executed only one person between 1972 and 1995 (Harold Otey, executed
September 6, 1994), the record indicates that information about that execution,
including pictures thereof and the procedures used therein, were available at the time
of Palmer’s evidentiary hearing. Thus, the factual predicate for his Eighth
Amendment claim was available during the state post-conviction process. See also
Williams v. Hopkins, 130 F.3d 333, 336-37 (8th Cir. 1997) (holding that factual
predicate underlying challenge to Nebraska electrocution procedure was available,
at the very least, at the time of Otey’s execution). Furthermore, Palmer’s argument
that, since 1997, one state has abandoned electrocution as a method of execution and
three states have provided for lethal injection as an alternative to electrocution does
nothing to change our 1997 holding that “there is no argument even plausible that
there are differences in the level of ‘evolving decency’ among the different circuits
or states of the union, or over the last very few years,” that justifies a holding that the
practice of electrocution constitutes cruel and unusual punishment. Id. at 337
(quoting In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997)). Accordingly, Palmer cannot
show cause for his procedural default, and his Eighth Amendment claim is not
cognizable on federal habeas review.

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IV. CLAIMS ON WHICH THE DISTRICT COURT GRANTED RELIEF

A. Claims III, IV, and V: Proportionality Review
Palmer argues in claims III and IV that his Eighth Amendment, Fourteenth
Amendment, and procedural due process rights were violated by the Nebraska
Supreme Court’s improper interpretation and application of Nebraska’s statutorily
mandated proportionality review scheme. See Neb. Rev. Stat §§ 29-2521.02–29-
2521.03 (Reissue 1995). He asserts that, by abandoning its previous precedents and
construing the Nebraska requirement of comparison with “previous cases involving
the same or similar circumstances” to require comparison of his case only with cases
in which the death penalty was imposed, Palmer III, 399 N.W.2d at 736, the Nebraska
Supreme Court improperly refused to consider similar cases in which life
imprisonment was imposed. Both the Supreme Court and this court have held,
however, that the Constitution does not require a federal court to reexamine a state
court’s proportionality finding in order to adjudge “the manner in which the court
conducted its review or whether the court misinterpreted the [state proportionality]
statute.” Six v. Delo, 94 F.3d 469, 478 (8th Cir. 1996). See also Walton v. Arizona,
497 U.S. 639, 656 (1990), overruled in part on other grounds, Ring v. Arizona, 536
U.S. 584, 609 (2002).

To the extent that Palmer also claims that the Nebraska Supreme Court’s
decision to affirm his sentence based on its new interpretation of the proportionality
statute, rather than to remand the case to the trial court in accordance with Nebraska’s
two-tier proportionality review, violated his procedural due process rights and
amounted to an unconstitutional appellate resentencing (claim V), we hold that such
claims are procedurally defaulted. In his motion for rehearing in Palmer III, as well
as his pleadings in Palmer IV, Palmer argued only that the Palmer III court had
incorrectly conducted its proportionality review and that its new construction of the

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proportionality statute should not have been retroactively applied to his case.6
Neither those documents nor the Nebraska Supreme Court’s Palmer IV opinion make
any mention of a claim that Palmer was unconstitutionally deprived of the two-tier
process or that the court’s use of the new proportionality review standard constituted
an appellate resentencing.7 Because Palmer presented neither the factual basis nor the
federal legal substance of these claims in state court, and because he has shown no
cause to excuse his procedural default, his claims are not cognizable on federal
habeas review. See Wemark, 322 F.3d at 1021.

B. Claims VI & VII: Vagueness of Exceptional Depravity Aggravating
Circumstance and Appellate Resentencing

Palmer claims that the “exceptional depravity” aggravating circumstance
applied to justify his third sentence, see Neb. Rev. Stat. § 29-2523(1)(d) (Reissue
1995), was unconstitutionally vague and that he was deprived of his due process right
to two-tiered sentencing review when the Nebraska Supreme Court “resentenced” him
under a reformulated version of the aggravator.

At Palmer’s third sentencing hearing, the sentencing panel specifically found
that two aggravating circumstances were present in Palmer’s case. First, the panel
found “that the murder was committed in an apparent effort to conceal defendant’s
identity as the perpetrator of the robbery.” Palmer III, 399 N.W.2d at 713. Second,
the panel found that Zimmerman’s murder “manifested exceptional depravity by
ordinary standards of morality and intelligence.” Id. Without in any way

6
Although Palmer argues that the retroactive application of the “exceptional
depravity” aggravating circumstance to his case deprived him of fair notice in
violation of due process, see infra, he makes no such claim with regard to the Palmer
III court’s construction of the proportionality review process.
7
Palmer does, however, make such a claim respecting the Nebraska Supreme
Court’s reformulated “exceptional depravity” aggravator. See infra.

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acknowledging that the definition of “exceptional depravity” applied at Palmer’s third
sentencing hearing was vague, the Nebraska Supreme Court reformulated the
aggravator to include a list of five factors8 originally laid out by the Arizona Supreme
Court in State v. Gretzler, 659 P.2d 1 (1983). Palmer III, 399 N.W.2d at 731-32. The
court then reweighed aggravating circumstances (including the reformulated
exceptional depravity aggravator) against mitigating circumstances in order to
determine whether Palmer’s death sentence was warranted. Id. at 732-33.

We subsequently held in a separate case that the definition of exceptional
depravity applied at Palmer’s sentencing hearing was unconstitutionally vague. See
Moore v. Clarke, 904 F.2d 1226, 1233 (8th Cir. 1990). We have recognized,
however, that the saving interpretation applied in Palmer III was “clearly
constitutional.” Joubert v. Hopkins, 75 F.3d 1232, 1244 & n.8 (8th Cir. 1996) (citing
Walton, 497 U.S. at 654-55). Accordingly, Palmer’s vagueness claim fails.

Palmer also is not entitled to relief on his due process/appellate resentencing
claim because state appellate courts in states that weigh aggravating circumstances
against mitigating circumstances (such as Nebraska) are permitted to cure the
constitutional deficiency that results from a trial court’s application of an
unconstitutionally vague aggravating circumstance either by reweighing the
aggravating and mitigating circumstances or by engaging in traditional harmless error
analysis. Id. at 1244 (citing Clemons v. Mississippi, 494 U.S. 738, 754 (1990)).
Such courts are permitted to do so even when state law vests primary death penalty
sentencing authority in a lower body. Reeves v. Hopkins, 76 F.3d 1424, 1429 (8th
Cir. 1996), rev’d in part on other grounds, 524 U.S. 88 (1998). This procedure is
constitutionally available only if Nebraska state law, as interpreted by the Nebraska

8
“(1) [T]he apparent relishing of the murder by the killer, (2) the infliction of
gratuitous violence on the victim, (3) the needless mutilation of the victim, (4) the
senselessness of the crime, and (5) the helplessness of the victim.” Palmer III, 399
N.W.2d at 731.
-22-
Supreme Court, authorizes it. See id. at 1428-29. If a state appellate court determines
that it is authorized to reweigh, it may do so by applying a corrected and
constitutional definition of the vague aggravator. Id. at 1428.

Prior to 2000, the Nebraska Supreme Court had determined that it possessed
the authority to reweigh. See Reeves v. Hopkins, 76 F.3d at 1430. The court in
Palmer III conducted an extensive analysis of both the aggravating and mitigating
circumstances allowable under Nebraska law, and determined that at least one
aggravating circumstance (the reformulated “exceptional depravity” aggravator) was
established beyond a reasonable doubt and that no mitigating circumstances were
established. 399 N.W.2d at 732-33. Assuming, arguendo, that this analysis
constituted a reweighing of the aggravating and mitigating circumstances in Palmer’s
case, the court’s findings, combined with the majority’s proportionality review, were
sufficient to justify the imposition of the death penalty under Nebraska law. See Neb.
Rev. Stat. § 29-2522 (Reissue 1995).

Finally, Palmer contends that State v. Reeves, 604 N.W.2d 151 (Neb. 2000),
establishes that the Nebraska Supreme Court no longer has the ability to reweigh
aggravating and mitigating circumstances. Even if this is true, however, it does not
affect our analysis. A state court’s subsequent reconsideration of its ability to
reweigh is irrelevant to federal habeas review. Reeves v. Hopkins, 76 F.3d at 1429-
30. Once the state court has asserted authority to reweigh in the petitioner’s case, the
issue is removed from the federal arena. Id. at 1430.

C. Claim VIII: Lack of Notice of Reformulated Exceptional Depravity
Aggravating Circumstance
Palmer alleges that the Nebraska Supreme Court’s reformulation of the
“exceptional depravity” aggravator deprived him of notice that his conduct would
subject him to the death penalty, in violation of the Fourteenth Amendment. In
Palmer IV, the Nebraska Supreme Court stated that a person has sufficient notice of
the scope of an aggravating circumstance which may be applied at a sentencing
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hearing where: “(1) the language of the statute and previous constructions of it in
existence at the time of the sentencing hearing” provide “reasonable notice to a
person of ordinary intelligence of the scope of criminal behavior reached by the
aggravating circumstance”; and “(2) any new construction of the aggravating
circumstance which occurs after the hearing does not increase the scope of the
behavior considered under that particular aggravating circumstance.” 600 N.W.2d
at 771. We have explicitly approved a similar construction of the Fourteenth
Amendment’s fair notice requirement as “clearly not an unreasonable application of
federal law as established by the Supreme Court.” Moore v. Kinney, 320 F.3d 767,
775-76 (8th Cir. 2003) (en banc). The construction we approved, however, examined
the defendant’s knowledge at the time of the crime.9 See id.

The Palmer IV court’s test, once the first prong is corrected to focus on the time
of the crime rather than the time of the sentencing hearing, “correctly identifie[s] the
Supreme Court’s rule regarding notice of a statute’s subsequent construction as it may
affect sentencing.” Kinney, 320 F.3d at 776. Accordingly, we utilize that test in
order to conduct our review. The Nebraska Supreme Court found that Palmer
inflicted gratuitous violence on a helpless victim, and thus that his crime “manifested
exceptional depravity.” Palmer III, 399 N.W.2d at 732. The court additionally found
that cases in which exceptional depravity was found and which predated Palmer’s
1979 acts also involved the infliction of gratuitous violence on helpless victims. Id.
See, e.g., State v. Holtan, 250 N.W.2d 876, 880 (Neb. 1977) (exceptional depravity
found where defendant “killed...unresisting victims”); State v. Peery, 261 N.W.2d 95,
105 (Neb. 1977) (exceptional depravity found where defendant repeatedly shot

9
It appears that the Nebraska Supreme Court misquoted its own governing
standard. Compare Palmer IV, 600 N.W.2d at 771 (citing State v. Moore, 553
N.W.2d 120 (Neb. 1996)) with State v. Moore, 553 N.W.2d at 134. Because notice
analysis focuses on the defendant’s knowledge at the time of the crime, the first prong
of the test applied by the Nebraska Supreme Court in Palmer IV misstates the
constitutional requirement. See Bouie v. City of Columbia, 378 U.S. 347, 354
(1964).
-24-
“thoroughly” bound victim). We cannot say that this comparison to pre-existing
cases was unreasonable. See Colvin, 324 F.3d at 587 (state court decision must be
both wrong and unreasonable to warrant habeas relief).

In addition, because the Gretzler factors adopted in Palmer III constituted a
narrowing construction of the exceptional depravity prong, the Nebraska Supreme
Court did not “increase the scope of actionable behavior considered by the
sentencers.” Kinney, 320 F.3d at 777 (internal citations omitted). Thus, Palmer was
not deprived of fair notice of the narrowed aggravator.

D. Claim XXII: Jury Sentencing
Palmer’s claim that, under Ring v. Arizona, he was entitled to have the facts
at his sentencing hearing proved to a jury beyond a reasonable doubt is foreclosed by
the Supreme Court’s holding in Schriro v. Summerlin, 124 S. Ct. 2519, 2526 (2004),
that Ring does not apply retroactively.10

E. Claim XIV: Felony Murder
Palmer claims that the death penalty cannot, consistent with the Eighth
Amendment, be imposed upon him for the crime of felony murder because no court
has found that he had an intent to kill Zimmerman. The Palmer IV court, citing State
v. Rust, 388 N.W.2d 483 (Neb. 1986), denied this claim on the ground (stated in
Rust) that the Supreme Court prohibited the imposition of the death penalty only
when a defendant does not himself kill, attempt to kill, or intend that a killing take
place. Palmer IV, 600 N.W.2d at 769; Rust, 388 N.W.2d at 492-93. This is an
accurate statement of the Supreme Court’s test. In Enmund v. Florida, 458 U.S. 782
(1982), and Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court held that the
Eighth Amendment is satisfied by a showing that the defendant actually killed,
attempted to kill, or intended to kill the victim. Tison, 481 U.S. at 150. See also

10
The district court did not have the benefit of the Schriro decision at the time
of its opinion in this case.
-25-
Cabana v. Bullock, 474 U.S. 376, 386 (1986), abrogated on other grounds, Pope v.
Illinois, 481 U.S. 497, 503 n.7 (1987); Murray v. Delo, 34 F.3d 1367, 1376 (8th Cir.
1994). Because the Nebraska Supreme Court, as well as the jury in Palmer’s third
trial,11 determined that the record in this case showed that Palmer alone killed
Zimmerman, Palmer III, 399 N.W.2d at 733, the death penalty may constitutionally
be imposed upon Palmer. See Cabana, 474 U.S. at 386-88 (so long as any state court
makes the requisite finding, the Eighth Amendment is satisfied). Accordingly, the
Nebraska Supreme Court’s disposition of this claim was not contrary to or an
unreasonable application of clearly established federal law.

F. Claim XV: Failure to Instruct on Lesser Included Offenses
Palmer claims that he was deprived of his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights because the trial court in his third trial failed to instruct the jury
on the lesser included offenses of manslaughter and second degree murder. The
United States Supreme Court has upheld the Nebraska Supreme Court’s
determination that, in Nebraska, felony murder has no lesser included offenses.
Hopkins v. Reeves, 524 U.S. 88, 96-100 (1998). See also Palmer III, 399 N.W.2d at
724. Accordingly, Palmer’s claim is without merit.

G. Claims XVI, XVII, XX, and XXI: Ineffective Assistance of Counsel
Palmer alleges that he was deprived of the effective assistance of counsel at
various points in his trial process.12 We discuss each claim in turn.

11
In order to convict a defendant of felony murder in Nebraska, a jury must find
that the defendant actually killed the victim. See Neb. Rev. Stat. § 28-303(2)
(Reissue 1995).
12
The district court granted habeas relief on Claims XX and XXI, but did not
discuss Claims XVI and XVII.
-26-
 1. Claims XVI and XVII
Palmer claims that if his counsel had objected to Cherie Palmer’s testimony at
the time it was introduced at his first sentencing hearing or during the direct appeal
of his second conviction, the prosecution would not have been able to prove the
existence of aggravating circumstances and thus Palmer would have been “acquitted”
of the death penalty.13 As a result, the State would have been barred from seeking the
death penalty against him in both his second and third trials. The Nebraska Supreme
Court analogized these claims to a claim that the evidence presented at sentencing,
absent Cherie Palmer’s testimony, was insufficient to prove the existence of
aggravating circumstances. Palmer IV, 600 N.W.2d at 774-76. The court then stated
that, under Lockhart v. Nelson, 488 U.S. 33 (1988), both properly and improperly
presented evidence could be examined to determine whether the evidence presented
at Palmer’s first sentencing hearing was sufficient to prove the existence of
aggravating circumstances, and ultimately held that the totality of the evidence was
sufficient. Palmer IV, 600 N.W.2d at 776-79. See also Lockhart, 488 U.S. at 40-42.
As a result, the court applied the “clean slate” rule and held that any errors pertaining
to the first sentencing were corrected by Palmer’s retrial.14 Palmer IV, 600 N.W.2d
at 778. See also Bullington v. Missouri, 451 U.S. 430, 442-43 (1981).

13
Our review of the record indicates that Palmer’s counsel did, in fact, object
to the presentation of Cherie Palmer’s testimony at the first sentencing hearing. See
St. D. Ct. File, Ex. 105, vol. VIII, at 984-85. His counsel’s objection, however,
apparently concerned the Nebraska statute addressing the permissible content of
presentence investigations. See id.; Neb. Rev. Stat. § 29-2261 (Reissue 1995).
Because Palmer’s present claim is that the introduction of Cherie Palmer’s testimony
violated the Nebraska marital privilege statute, see Neb. Rev. Stat. § 27-505, we must
continue with our analysis.
14
The “clean slate” rule states that where a defendant succeeds in overturning
his conviction, there is no double jeopardy bar to retrial. Bullington, 451 U.S. at 441-
42. The clean slate rule is inapplicable, however, when the ground for the reversal
was that the evidence was insufficient to convict. Id. at 442. These concepts are
equally applicable to trials and sentencing hearings. Id. at 446; Palmer IV, 600
N.W.2d at 775 (explicitly holding that double jeopardy concerns apply in Nebraska
sentencing hearings).
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 To make out a claim of ineffective assistance of counsel, a defendant must
show: (1) that his counsel’s performance was deficient; and (2) that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Although the Nebraska Supreme Court did not apply this test, which
certainly qualified as clearly established federal law when Palmer IV was decided, we
cannot say that the court’s ultimate disposition of these claims was either contrary to
Strickland or an unreasonable application of Lockhart. In Lockhart, the United States
Supreme Court addressed the claims of a habeas corpus petitioner who claimed (as
Palmer does) that his sentence enhancement was based on improperly admitted
evidence (a pardoned conviction). 488 U.S. at 34-36. The petitioner claimed that,
without the improperly admitted evidence at his first sentencing hearing, the evidence
presented in support of the enhancement was insufficient and thus double jeopardy
prevented the state from seeking the enhancement at any subsequent resentencing.
Id. at 37. The Court held that even though the evidence in support of the
enhancement in the petitioner’s case was clearly insufficient absent the pardoned
conviction, a reviewing court must consider all of the evidence admitted by the trial
court—both correctly and incorrectly—in order to determine whether the evidence
at the disputed proceeding was sufficient to convict, and therefore whether double
jeopardy permits retrial. Id. at 40-41. The Court also held that the erroneous
admission of evidence at trial is a “trial error” that is fundamentally different from a
finding that the evidence was insufficient to convict. Id. at 40.

Palmer’s claims are somewhat different. He claims that he is entitled to more
expansive double jeopardy protection because the failure to object to the trial court’s
erroneous admission of Cherie Palmer’s testimony at his first sentencing hearing and
the failure to argue the issue during his second direct appeal constituted ineffective
assistance of counsel. We see no reason, however, why Palmer should be able, via
an ineffective assistance claim, to obtain relief that he would not be entitled to via a
claim of trial error. It is plain, given Lockhart, that Nebraska would have been
permitted to seek the death penalty in the second and third sentencing proceedings if
Palmer’s sole claim had been the erroneous admission of Cherie Palmer’s testimony,

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because any finding that the introduction of such testimony warranted reversal would
be based on trial error rather than sufficiency of the evidence. Thus, any reviewing
court would be permitted to consider all of the evidence—including Cherie Palmer’s
testimony—in deciding whether the evidence at the first sentencing hearing was
sufficient to convict.

That Palmer frames the issue as ineffective assistance of counsel, rather than
trial error, does not change the fact that Palmer still would have to prove prejudice to
his case even if we were to find that his counsel performed deficiently in failing to
object to Cherie Palmer’s sentencing testimony. He cannot do so. Any potential
prejudice to his case would have resulted from the erroneous admission of Cherie
Palmer’s testimony. As the Supreme Court has stated, however, such an error is a
trial error, rather than an issue of evidentiary sufficiency, and thus the clean slate rule
is fully applicable. Accordingly, any errors resulting from Palmer’s first sentencing
hearing were cured by his second and third sentencing hearings, and thus the clean
slate rule eliminated any possible danger of prejudice from the alleged deficient
performance.15

2. Claims XX and XXI
Palmer asserts that his counsel also was ineffective for conceding the existence
of Nebraska’s “killing to conceal one’s identity” aggravating circumstance, Neb Rev.
Stat. § 29-2523(1)(b), in his first sentencing hearing and for failing to conduct any
investigation into mitigating and aggravating circumstances, to direct his probation

15
Although Palmer did not make such an argument in his habeas petition, the
district court granted habeas relief on the ground that Palmer’s counsel had failed to
conduct a proper investigation into statutory or nonstatutory mitigating factors.
Because Palmer’s second and third sentencing hearings cured any possible prejudice
resulting from errors at his first sentencing hearing, however, he is not entitled to
relief on that ground. In addition, we agree with the Tenth Circuit’s view that a
district court may not “rewrite a petition to include claims that were never presented.”
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (quotations omitted).
-29-
officer to investigate Palmer’s personal history, or to interview Cherie Palmer in
preparation for his third sentencing hearing.

The Palmer IV court reviewed these claims under its own test for ineffective
assistance of counsel:

“[T]o sustain a claim of ineffective assistance of counsel as a violation
of the Sixth Amendment of the U.S. Constitution and article I, § 11, of
the Nebraska Constitution, a defendant must show that (1) counsel’s
performance was deficient and (2) such deficient performance
prejudiced the defendant, that is, demonstrate a reasonable probability
that, but for counsel’s deficient performance, the result of the
proceeding would have been different.”

600 N.W.2d at 771 (quoting State v. Hunt, 580 N.W.2d 110, 113 (Neb. 1998)). This
accurately states the United States Supreme Court’s test. See Strickland, 466 U.S. at
687, 694.

The Palmer IV court first determined that Palmer’s counsel’s decision to
concede the 1(b) aggravator did not constitute deficient performance, and,
accordingly, that the counsel’s assistance at the first sentencing hearing was not
ineffective. 600 N.W.2d at 771-72. This conclusion was not an unreasonable
application of Strickland. Although it is true, as the district court observed, that all
murders render the victim incapable of identifying the perpetrator, it does not follow
that all victims would be capable of identifying the perpetrator in the first instance.
There was specific evidence in this case that the victim knew Palmer and his wife by
name and had met Palmer and his wife on at least three separate occasions prior to the
murder. Given that Palmer apparently had no evidence to contradict these facts, he
cannot overcome the presumption that his counsel’s decision to concede the
aggravator’s existence was “sound trial strategy.” Strickland, 466 U.S. at 689.

Similarly, Palmer’s complaints that his counsel should have conducted (or
instructed others to conduct) more thorough investigations prior to Palmer’s third
-30-
sentencing hearing are without merit. The Nebraska Supreme Court denied these
claims on the basis that the decisions not to conduct further investigation into each
challenged aspect of Palmer’s case did not constitute deficient performance and,
furthermore, that Palmer could prove no prejudice to his case. We agree.

To show ineffective assistance of counsel, Palmer must affirmatively prove
prejudice to his case, Strickland, 466 U.S. at 693, by “show[ing] that there is a
reasonable probability that, but for [his] counsel’s unprofessional errors,” the result
of his sentencing proceeding would have been different. Id. at 694. He has not made
this showing with respect to any of his counsel’s alleged errors. First, although he
argues that his counsel should have interviewed Cherie Palmer prior to his third
sentencing hearing, he has not shown what, if any, additional information would have
been gleaned from such an interview, let alone how such information would have
affected the outcome of his trial. Throughout three trials and three sentencing
hearings, the content and character of Cherie Palmer’s testimony was undoubtedly
well known to both defendant and his counsel. In addition, Palmer has not alleged
what, if any, additional information about any aspect of his case would have been
gleaned from an expanded investigation by his probation officer. Such general
allegations do not satisfy the requirement that Palmer affirmatively prove prejudice.

Finally, with regard to aggravating and mitigating circumstances, Palmer has
again failed to show what, if any, statutory or non-statutory mitigating factors would
have been uncovered through further investigation. Although the district court stated
that, through further investigation, Palmer’s counsel might have discovered
information about Palmer’s difficult childhood, such evidence was in fact presented
to the sentencing panel, and Palmer’s counsel made an extensive reference to
Palmer’s family history in his argument before the panel. See Palmer III Trial Tr.,
vol.V, at 912 (introduction of deposition of Palmer's sister), 917 (same), 934
(argument). The sentencing panel had an opportunity to review this information and
hear argument on it, and it obviously did not change their “appraisal of moral
culpability.” See St. D. Ct. File, Ex. 118, vol. IV, at 665-66 (order of sentence in

-31-
third sentencing hearing, specific discussion and rejection of Palmer’s family history
as a mitigating circumstance).16

V. CONCLUSION
The district court’s partial denial of Palmer’s habeas corpus petition is
affirmed, its partial grant of the petition is reversed, and the case is remanded to the
district court with directions to dismiss the petition in its entirety.
______________________________

16
Palmer also argues that further investigation and research would have led his
counsel to argue that the “exceptional depravity” aggravator was unconstitutionally
vague. His counsel did make such an argument on appeal, however.
-32-