dissenting.
I dissent.
The Nebraska law in one of the aggravating circumstances underlying a possible death sentence contains the clause that the “murder ... manifested exceptional depravity by ordinary standards of morality and intelligence.”1 Neb.Rev.Stat. § 29-2523(l)(d) (Reissue 1985). The Eighth Circuit has determined that the “exceptional depravity” clause is unconstitutionally vague on its face. See Moore v. Clarke, 904 F.2d 1226, 1228-33 (8th Cir.1990). The appeal by Warden Hopkins on behalf of Nebraska raises three relatively simple, uncomplicated issues.
1. Whether a procedural bar exists to prevent Joubert from presenting his claim in federal court in a habeas application that the above-quoted aggravating circumstance was unconstitutionally vague?
The district court answered “no” to that question. The majority says “yes.” I agree with the district court for reasons stated in its decision and as amplified below.
2. Whether, on the merits, the application by the Nebraska sentencing court of the aggravator in question prejudiced Joubert? The district court determined that prejudice existed because the sentencing panel relied heavily on this aggravating circumstance based on the Nebraska sentencing panel’s statement as follows:
We recognize that all murders may be characterized as atrocious and cruel, and further recognize there must, of necessity, be some interval of time between even the most savage of knife attacks and a resulting death. We, nevertheless, conclude this aggravating circumstance is applicable with respect to both clauses, recognizing the evidence and factors on the second clause of the aggravating circumstance far outweigh those under the first clause.
We conclude and find beyond a reasonable doubt this aggravating circumstance exists in both crimes for which the defendant is to be sentenced.
Appellant’s Addendum, at p. 6 (emphasis in addendum).
I agree with the district court. I read the majority opinion as not in direct disagreement.
The district court found that such greater reliance on the unconstitutionally vague prong rendered the death sentence infirm under Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (use of an invalid aggravator in a weighing state amounts to an impermissible thumb on death’s scale). While we might agree with the district court’s Stringer concerns, we reverse on other grounds.
Maj. op. at 1240.
3.Whether the error is harmless? The majority finesses the prejudicial impact of the unconstitutional aggravator by asserting that the unconstitutional imposition of the aggravator is “harmless error.” Maj. op. at 1245-47. The majority’s harmless error analysis does not relate to the aggravator here in question, but instead concludes that the application of other aggravating circumstances requires the death penalty.
The majority’s determination of harmless error cannot stand. We have stated that:
Rather, the issue under Chapman [Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] is whether the sentencer actually rested its decision to impose the death penalty on the valid evidence and the constitutional aggravating factors, independently of the vague factor considered; in other words, whether what was actually and properly considered in the decision-making process was “so overwhelming” that the decision would have been the same even absent the invalid factor.
Williams v. Clarke, 40 F.3d 1529, 1541 (8th Cir.1994).
The Chapman standard for harmless error as reiterated in Williams cannot be met in *1250light of the sentencing panel’s heavy reliance on the “exceptional depravity” clause.
My further discussion follows.
1. Exceptional Depravity Clause Invalidity
Joubert’s sentencing panel noted that the exceptional depravity aggravating circumstance “describes in the disjunctive two [separate situations] which may ... operate in conjunction with ... or independent of one another” distinguishing the first “heinous, atrocious or cruel” clause (which focuses on the victim’s perspective) from the second “exceptional depravity” clause (focusing on the defendant’s state of mind as manifested by his conduct, characterized here by the planning and repetitive nature of the murders). Joubert’s sentencing panel concluded “this aggravating circumstance is applicable with respect to both clauses, recognizing the evidence and factors on the second clause of the aggravating circumstance far outweigh those under the first clause.” In defining the second “exceptional depravity” clause, the sentencing panel relied on the Nebraska Supreme Court’s definition in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
On appeal, the Nebraska Supreme Court agreed with the sentencing panel in both the factual findings and conclusions of law as to the construction of section 29-2523(1)(d). State v. Joubert, 224 Neb. 411, 399 N.W.2d 237, 250-51 (1986).
The Eighth Circuit has since granted habeas relief in the Moore case, -determining that this second “exceptional depravity” clause or prong was unconstitutionally vague, and that the facially-vague statute had not then been salvaged by the Nebraska Supreme Court’s construction of it. See Moore v. Clarke, 904 F.2d 1226, 1228-33 (8th Cir.1990). As the district court concluded, and the majority seems to concede, see infra, maj. op. at 1240, the sentencing panel’s greater reliance on the unconstitutionally vague “exceptional depravity” prong could make Joubert’s death sentence infirm under Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (using invalid aggravator in weighing state amounts to impermissible thumb on death’s scale). See also Joubert, 399 N.W.2d at 252 (balancing of aggravating circumstances against mitigating circumstances not merely matter of number counting, but rather requires careful weighing of various factors and reasoned judgment as to which factual circumstances require imposition of death and which can be satisfied by life imprisonment in light of totality of circumstances).
2. Exceptional Depravity Issue on Direct Appeal
In his direct appeal, Joubert challenged the sentencing panel’s imposition of section 29-2523(1)(d). The federal district court concluded that due process was inherent in the analysis of that issue. I believe that the vagueness issue was raised in Joubert’s direct appeal brief. In his brief to the Nebraska Supreme Court, Joubert extensively quoted from the definitions of both prongs one and two of section 29-2523(l)(d) contained in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982) — the same definitions employed by his sentencing panel. (See Appellant’s Appendix at 66-67.) He argued that the “exceptional depravity” prong, as defined by the Nebraska Supreme Court in Moore, “pertaining to the state of mind of the perpetrator, would apply to any perpetrator of a first degree (premeditated) murder[,]” and in fact, “would apply equally to all persons convicted of premeditated murder.” (Appellant’s Appendix at 67-68.) He argued that, as in State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), nothing appeared in this case beyond the ordinary circumstances which attend any death-dealing violence, see Appellant’s Appendix at 68, implying there was nothing to distinguish this from other capital cases in which the death sentence was not imposed.
Because Joubert in a substantial way asserted a vagueness claim before the state court on direct appeal, the majority errs in concluding that Joubert is procedurally barred from asserting these claims in his federal habeas petition. See Smith v. Lockhart, 921 F.2d 154, 156 n. 3 (8th Cir.1990); see also Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (habeas petitioner must have fairly presented to state courts “substance” of his *1251federal claim); Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir.) (finding specific references in brief more than sufficient to deem issue fairly presented and court need not consider cause and prejudice), cert. denied, — U.S. -, 118 S.Ct. 2950, 124 L.Ed.2d 697 (1993).
In his concurring opinion, Nebraska Supreme Court Chief Justice Krivosha responded to Joubert’s vagueness claim, and asserted that Joubert misunderstood State v. Hunt. See Joubert, 399 N.W.2d at 253. Although Justice Krivosha focused his response upon the first “especially heinous” prong of section 29-2523(1)(d), see id. 399 N.W.2d at 253-57, his opinion seems to acknowledge Joubert’s challenge to the second “exceptional depravity” prong, but does not discuss the phrase “exceptional depravity” because Chief Justice Krivosha suggests that “exceptional depravity” is simply a further factor in determining “especially heinous.” Joubert, 399 N.W.2d at 258. In my view, that discussion is sufficient to indicate that the Nebraska Supreme Court Justices in essence recognized and rejected sub silentio Joubert’s “exceptional depravity” vagueness claim.
I also briefly address the comments in the majority opinion, maj. op. at 1240, that perhaps the Nebraska Supreme Court may have narrowed the statutory language of “exceptional depravity.” The Nebraska Supreme Court did not contend it was narrowing the definition used by the sentencing panel; rather, it wholeheartedly adopted the panel’s factual findings and conclusions of law regarding the construction of section 29-2523(l)(d), notwithstanding its references to State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). See Joubert, 399 N.W.2d at 251. The Appellant Warden Hopkins does not suggest that the Nebraska Supreme Court cured the constitutional defect by reweighing on direct appeal; instead, the appellant asserts that, even if the district court was correct in granting the writ, it erred in its alternative to habeas relief, requiring a remand to the sentencing court rather than to the Supreme Court of Nebraska for appropriate remedial action of reweighing or harmless error analysis. (Appellant’s. Br. at pp. 42-44.)
3. Harmless Error
Finally, the majority determines that even if Nebraska’s “reweighing” were improper, any error would be harmless beyond a reasonable doubt. I disagree. As we observed in Moore v. Clarke, 904 F.2d at 1228, the Nebraska Supreme Court itself traditionally has not applied a harmless error analysis in cases where an aggravating circumstance is found to have been invalidly applied. See State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309, 319-20 (1987) (reversing and remanding where error in sentencing panel’s determination that beyond a reasonable doubt aggravating circumstance existed); State v. Jones, 213 Neb. 1, 328 N.W.2d 166, 174 (1982) (death sentence must be reversed and cause remanded where' invalid aggravating circumstance applied). But cf. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 837 (1991) (relying on Clemons to conduct harmless error review, but concluding error not harmless beyond reasonable doubt). Where the state usually rejects such an analysis, I think it inappropriate for this court to assert harmless error where life or death hang in the balance. The district court analyzed harmless error in part as follows:
Greatly significant is the fact that the sentencing panel found that the evidence and factors relating to the second prong that was later declared unconstitutionally vague “far outweigh[ed]” those relating to the first prong. (Ex. 18 (R.) at 46.)
[I]n a case remarkably similar to Joubert, the Eighth Circuit affirmed the district court’s granting of a writ of habeas corpus based on the unconstitutional vagueness of the second portion of aggravating circumstance (1)(d). Moore, 904 F.2d at 1234. In Moore, the sentencing panel relied on the second, but not on the first, portion of aggravating circumstance (l)(d). Id. at 1229. After an extensive discussion regarding the unconstitutionality of the second portion of (l)(d), Id. at 1229-33, the Eighth Circuit affirmed the district court’s conclusion that Moore be
*1252“resentenced to life imprisonment unless the State initiated capital resentencing proceedings within a reasonable time after judgment became final.” Id. at 1228. Regarding the Eighth Circuit’s decision to affirm the district court, the Eighth Circuit stated:
Since the Nebraska death penalty statute requires that aggravating and mitigating circumstances be weighed against each other, Neb.Rev.Stat. § 29-2522, and the Nebraska Supreme Court does not apply a harmless error analysis in cases where an aggravating circumstance is found to have been invalidly applied, Moore’s sentence would have to be vacated for new sentencing proceedings.
Id. at 1228.
The Court finds that in the Joubert case, the death sentences have been “infected,” Id., by an unconstitutionally vague factor. In determining that aggravating circumstance (l)(d) applied, the sentencing panel specifically stated that “the evidence and factors on the second clause of the aggravating circumstances far outweigh those under the first clause.” (Ex. 18 (R.) at 46.) This Court is bound to recognize the Nebraska’ Supreme Court’s characterization of Nebraska law relating to the imposition of the death penalty. Stringer, 503 U.S. at 230, 112 S.Ct. at 1137. The Nebraska Supreme Coúrt has stated that aggravating circumstance (l)(d) is comprised of two separate, disjunctive circumstances which may operate either together or independently. See, e.g., Reeves, 476 N.W.2d at 838. However, the Nebraska Supreme Court has instructed that the process of weighing aggravating and mitigating circumstance should not consist of a mere counting of aggravating factors, but rather the process should entail a very careful examination and weighing of the factors, given the totality of the circumstances. Id. at 836 (quoting Victor, 457 N.W.2d at 447); Stewart, 250 N.W.2d at 862-63.
Appellant’s Addendum at pp. 6, 7, 8 and 9.
The district court found the error to have “tainted” the sentence. Appellant’s Addendum at p. 8. That finding establishes prejudice. Under the guise of harmless error, the majority it seems has reweighed the sentencing factors. Reweighing, however, is a task for the Nebraska courts.
In sum, Joubert’s death sentence cannot stand. I would affirm the district court’s grant of habeas relief changing Joubert’s sentence to life imprisonment without possibility of parole unless the Nebraska state courts provide appropriate post-sentencing or resentencing procedures.
. The full statutory aggravating factor in question contains two clauses and reads, "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by 'ordinary standards of morality and intelligence.” Neb. Rev.Stat. § 29-2523(l)(d).