C. Michael Anderson, Appellee/cross-Appellant v. Frank X. Hopkins, Appellant/cross-Appellee

Citations: 113 F.3d 825; 1997 U.S. App. LEXIS 10775; 1997 WL 236048Docket: 96-1305, 96-1306

Court: Court of Appeals for the Eighth Circuit; May 12, 1997; Federal Appellate Court

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The State of Nebraska appeals a judgment from the U.S. District Court for the District of Nebraska, which granted partial relief on a habeas corpus petition filed by C. Michael Anderson under 28 U.S.C. § 2254. The district court had determined it was not harmless beyond a reasonable doubt for Nebraska state courts to consider an unconstitutionally vague statutory aggravating factor in sentencing Anderson to death, subsequently reducing his sentence to life imprisonment. The state argues this was an error, while Anderson cross-appeals, challenging the court's decision to allow the Nebraska Supreme Court to conduct a harmless error review and contesting several claims of federal constitutional violations and ineffective assistance of counsel. The court modified the district court's order and affirmed the judgment as modified. 

The background details the murder of Ronald J. Abboud, discovered on November 2, 1975, with evidence linking Anderson and his associate, Peter Hochstein, to the crime. Abboud’s family hired a private investigator who identified Lon Reams as potentially involved in the investigation, which the police were already aware of due to prior interviews.

Whelan conducted an investigation into petitioner and Hochstein, which included wiretapping their apartments and interviewing Mila Dickman, an associate of Reams. In spring 1977, Whelan informed prosecutor Samuel Cooper of his suspicions but did not present any new evidence. Cooper later ordered Whelan to stop wiretapping and mentioned Reams could receive immunity for testimony against the petitioner and Hochstein. Whelan misled Reams by claiming he had overheard a conspiracy against Reams and that the prosecution had a strong case against him. After consulting an attorney, Reams confessed his involvement in the murder of Abboud to Whelan and later provided a statement to Cooper. Reams agreed to testify for immunity.

Reams testified that the petitioner was hostile toward Abboud due to business disputes. Hochstein, after fixing Reams's gun, offered to kill Abboud for $1,500. They planned a ruse where Hochstein would pose as a buyer, leading Abboud to a remote area where he was murdered. Their first attempt failed, but during a second visit, Abboud was killed, and his body was disposed of, discovered three days later.

Both petitioner and Hochstein were convicted of first-degree murder and received death sentences from a three-judge panel based on two aggravating factors: hiring another to commit murder (Neb.Rev.Stat. 29-2523(1)(c)) and the murder's exceptional depravity (Neb.Rev.Stat. 29-2523(1)(d)). Their convictions and sentences were affirmed by the Nebraska Supreme Court.

Petitioner filed a habeas corpus action in federal court in 1984, amending it in subsequent years. A stay was placed on the petition pending a decision on the constitutionality of the "exceptional depravity" aggravator. In 1991, the Eighth Circuit ruled that the language was too vague to provide adequate guidance for sentencing, impacting the constitutionality of the aggravator as it was applied at the time of petitioner's sentencing.

The Eighth Circuit's decision in Moore prompted the lifting of a stay in the current habeas action. The state acknowledged that the sentencing panel improperly considered the "exceptional depravity" aggravator but claimed the error was harmless beyond a reasonable doubt. The district court, after reviewing the decisions of both the sentencing court and the Nebraska Supreme Court, determined that both placed significant emphasis on the exceptional depravity aggravator. As a result, the district court could not rule out the possibility that this factor influenced the death penalty decision, leading to the conclusion that the habeas corpus petition should be granted regarding this issue. The court ordered that the petitioner’s sentence be reduced to life imprisonment unless the Nebraska Supreme Court reweighed circumstances or conducted a harmless error review within 90 days, without necessitating a retrial or resentencing.

In response, the state appealed, contesting the district court’s finding that the consideration of the unconstitutional aggravator was not harmless error. The state argued that the court incorrectly assessed the impact of the invalid factor on the sentencing decisions. The state maintained that despite the improper consideration of the "exceptional depravity" aggravator, the valid aggravator of "1)(c)" murder-for-hire was overwhelming enough to justify the death penalty. The state cited statements from the sentencing court emphasizing the premeditated nature of the crime and argued that the characteristics of the "exceptional depravity" were relevant to the properly considered "1)(c)" factor, asserting that the outcome would have remained unchanged without the invalid factor. The Nebraska Supreme Court's decision was similarly influenced by the valid murder-for-hire aspect, which was highlighted as a significant aggravating circumstance in their unanimous ruling to uphold the death penalty.

The Nebraska Supreme Court stated that the death penalty is appropriate for "killers for hire" due to the absence of mitigating factors in such cases, emphasizing the severity of willfully killing for money. The state argues that the district court should have recognized harmless error, asserting that the murder-for-hire factor was overwhelmingly strong compared to any mitigating circumstances, thus the outcome would remain unchanged without the "exceptional depravity" factor. In contrast, the petitioner contends that the district court correctly determined that the use of the "exceptional depravity" factor was not harmless beyond a reasonable doubt, arguing that Nebraska law mandates a weighing process between aggravating and mitigating factors. The petitioner cites state law, stating that one cannot be death-eligible if mitigating factors outweigh aggravating ones, and asserts that the sentencing process was compromised due to the unconstitutional vagueness of the "exceptional depravity" factor. Additionally, the petitioner differentiates this case from the precedent set in Williams, noting that Williams involved multiple valid aggravators. The district court's rejection of the state's claim about the Nebraska Supreme Court's treatment of "exceptional depravity" as minor is also supported by the petitioner, who critiques the Supreme Court's opinion for its generalizations that conflict with the constitutional requirement for individualized sentencing. The petitioner highlights that no Nebraska court has imposed the death penalty based solely on one aggravating factor, which would occur if the district court's finding of no harmless error were reversed. Upon de novo review, the district court is affirmed in its view that the invalid aggravator may have influenced the state courts' decisions, and its analysis aligns with the context of the "so overwhelming" language cited from Williams, clarifying its application in reviewing constitutional errors.

The state must prove beyond a reasonable doubt that a constitutional error is harmless, focusing on whether the decision to impose the death penalty relied solely on valid evidence and constitutional aggravating factors, independent of any invalid factors. The district court determined that there was a reasonable possibility the invalid aggravating circumstance contributed to the death penalty decision, indicating the state did not meet its burden of proof. Consequently, the district court's reasoning aligned with precedent, affirming that the petitioner's sentence could not be justified without the invalid factor. The court ordered a reduction of the sentence to life imprisonment unless the Nebraska Supreme Court reweighs the circumstances or conducts an independent harmless error review within ninety days. On cross-appeal, the petitioner challenges the provision allowing for a harmless error review, advocating instead for a Clemons reweighing of the circumstances or a remand for resentencing. The state counters that if the error is deemed not harmless, options remain under Clemons, allowing for either a harmless error analysis or a reweighing of aggravating and mitigating factors to assess the impact on the death penalty decision.

In Reeves v. Hopkins, it was established that a state appellate court can address constitutional deficiencies in capital cases through reweighing or harmless error analysis, but is not mandated to reweigh and may opt for remand if necessary. The district court's decision aligns with this precedent, allowing the Nebraska Supreme Court to either reweigh factors or perform an independent harmless error analysis. The district court's ruling regarding harmless error was specifically for evaluating a habeas corpus petition and does not prevent the Nebraska Supreme Court from independently determining the harmlessness of the "1)(d)" aggravator.

The court affirmed the district court's decision on the harmless error review and found no merit in the petitioner's cross-appeal claims. These claims included alleged violations of constitutional rights due to the testimony of Reams, which was argued to stem from unlawful wiretaps. However, the court determined these claims were barred as the petitioner had a fair opportunity to litigate them in state court, consistent with Stone v. Powell.

Additionally, the petitioner argued ineffective assistance of counsel for failing to interview and call certain witnesses. Although this claim was procedurally defaulted, the district court conducted an evidentiary hearing under Schlup v. Delo to assess the evidence. The court concluded that the proposed witnesses' inconsistent testimonies were unlikely to change the trial's outcome, determining that the attorney's strategic decisions did not constitute a constitutional violation. The court affirmed the district court's ruling that no Sixth Amendment violation occurred.

The remaining claims by the petitioner on cross-appeal were rejected by the district court due to procedural default, which was not excused by cause and prejudice, nor did it result in a fundamental miscarriage of justice. Additionally, some claims were not permissible in this 2254 action. Consequently, the district court's denial of habeas relief is affirmed for all claims. The court modified the district court's order and judgment to reduce the petitioner’s sentence to life imprisonment unless the Nebraska Supreme Court reweighs aggravating and mitigating circumstances, conducts an independent harmless error review, or remands for resentencing within ninety days of the mandate. The modified order and judgment was affirmed. Relevant aggravating circumstances under Neb.Rev.Stat. 29-2523(1)(c, d) include murders committed for pecuniary gain or that are particularly heinous. Previous cases, such as Moore v. Clarke and Williams v. Clarke, illustrate changes in standards for determining aggravating factors, particularly regarding "exceptional depravity," and establish that the constitutional harmless error standard can be applied when a vague aggravating circumstance is considered.