# Palmer v. Clarke

> District Court, D. Nebraska · October 9, 2003 · 293 F. Supp. 2d 1011

URL: https://www.frixlaw.com/law-library/cases/2294645

## Case

- **Full name:** Charles Jess PALMER, Petitioner, v. Harold W. CLARKE, Director, State of Nebraska Department of Correctional Services, Respondent
- **Court:** District Court, D. Nebraska
- **Decided:** October 9, 2003
- **Citations:** 293 F. Supp. 2d 1011; 2003 U.S. Dist. LEXIS 18023; 2003 WL 22327180
- **Precedential status:** Published
- **Opinion:** Opinion by Bataillon
- **Judges:** Bataillon
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Schriro v. Summerlin, 542 U.S. 348 (2004).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2294645

## How later opinions describe it (automated extraction)

- noting that some courts treat the substantive verses procedural question as a threshold matter, while others conflate it with the inquiry under the first Teague exception

## Opinion text

MEMORANDUM and ORDER
BATAILLON, District Judge.
This matter is before the court on Charles Jess Palmer’s third amended petition for a writ of habeas corpus. Filing No. 44. Charles Jess Palmer has been on death row since 1979. He has been convicted of capital felony murder and sentenced to death three times under Nebraska’s Death Penalty Statute, Neb.Rev.Stat. § 29-2523.
1
The court has carefully re
*1018
viewed the voluminous record in this case and the numerous submissions of the parties at this and earlier levels of the proceedings and now concludes that Charles Jess Palmer has been sentenced to death in violation of the United States Constitution.
I. Background
A. First Trial
Palmer was tried and convicted of first degree murder under a felony-murder theory in 1979 for the death of Eugene Zimmerman. The state’s case against Palmer in the first trial was based largely on circumstantial evidence. The evidence adduced at Palmer’s trial shows that Zimmerman was found murdered in his residence above his coin shop in Grand Island, Nebraska, on March 6, 1979.
State v. Palmer,
210 Neb. 206 , 313 N.W.2d 648, 649 (1981)
(“Palmer I”).
The evidence also shows that before the trial, the victim’s wife, Monica Zimmerman, and two other witnesses, Deanna Klintworth and Jim Mracek, had been hypnotized during pretrial interviews to refresh their recollections.
Palmer I, 313 N.W.2d
at 653; Trial I Tr., Vol. VI at 886-887. They all testified that they had seen Palmer in Grand Island at or near the time of the murder. Monica Zimmerman testified that she had seen Palmer and his wife and child in Grand Island on several occasions before the murder. Trial I Tr., Vol. III at 355. She testified that she had first seen Charles and Cherie Palmer at the coin shop in October 1978 and she identified Palmer as the man who had been at Zimmerman’s residence and coin shop in late 1978.
Id.
at 345 . Deanna Klintworth testified that she had seen a man, a woman, and a baby exit the Zimmerman house and coin shop at 4:45 p.m. on March 6, 1979. Trial I Tr., Vol. TV at 456-58. Jim Mracek testified that he had seen Zimmerman in the 7-Eleven coffee shop with a man, a woman, and a baby on that day. Trial I Tr., Vol. VI at 886.
2
The testimony of the witnesses that had been refreshed under hypnosis was the only direct evidence that tied Palmer to the murder. Trial I Tr., Vol. Ill at 371, Vol. IV at 455-456.
The evidence also shows that earlier in the day on March 6, 1979, “C. Palmer” had received a ticket for an equipment violation at a highway checkpoint nine miles south of Hastings, Nebraska, which was midway between Grand Island, Nebraska, and Guide Rock, Nebraska, where Palmer was living at the time of the murder.
Palmer I,
313 N.W.2d at 651 ; Trial I Tr., Vol. Ill at 428. The owners of a dog farm where Palmer had been employed in Guide Rock testified that they last spoke with him on March 18, 1979.
Palmer I,
313 N.W.2d at 651 ; Trial I Tr., Vol. Ill at 299, 303-304, 317. Palmer had arranged for a neighbor to take care of the dogs on March 19, 1979.
Palmer I,
313 N.W.2d at 651 ; Trial I Tr., Vol. Ill at 676-678. The neighbor testified he believed Palmer left Guide Rock on March 19 or 20, 1979.
Palmer I,
313 N.W.2d at 651 ; Trial I Tr., Vol. Ill at 679.
The evidence adduced at the trial further shows that law enforcement authorities were later alerted to Palmer’s whereabouts when a coin dealer in Austin, Texas, contacted the police after he purchased several items from Palmer, including items that had been stolen from Zimmerman’s coin shop.
3
Palmer I,
313
*1019
N.W.2d at 651-652; Trial I Tr., Vol. IV at 577, 580, 586-587. The police instructed the coin dealer to call them if Palmer were to initiate contact again.
Palmer I,
313 N.W.2d at 651-652 ; Trial I Tr., Vol. IV at 589. Palmer later did so and the coin dealer immediately called the police.
Palmer I,
313 N.W.2d at 651 ; Trial I Tr., Vol. IV at 579-580. The police officer testified that he did not have time to obtain an arrest warrant in the twenty minutes between the call and the arranged meeting.
Palmer I,
313 N.W.2d at 652 .
The jury returned a guilty verdict. Pursuant to the Nebraska death penalty statute in effect at the time, Neb.Rev.Stat. § 29-2521, a three-judge panel conducted a sentencing hearing. At the sentencing hearing, the prosecutor sought to apply two statutory aggravators under Neb.Rev. Stat. § 29-2523.
4
Trial I Tr., Vol. VIII at 985. The prosecutor argued: (1) that the murder had been “committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of the crime,” under Neb.Rev. Stat. § 29 — 2523(1) (b); and (2) that the murder was “especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence” under Neb.Rev.Stat. § 29-2523(l)(d).
Id.
Palmer’s counsel conceded the applicability of the “murder to conceal crime” aggravator, stating, “I have no qualms with [the prosecutor’s] conclusion with regard to subparagraph ‘b.’ I think there is obvious evidence in the record that you could justify that.” Trial I Tr., Vol. VIII at 988.
A three-judge sentencing panel sentenced Palmer to death, as provided in Neb.Rev.Stat. § 29-2520 (1980).
Nebraska v. Palmer,
No. 30-011, Hall Co. Clerk’s Rec. (“St.Ct.File”), Vol. I at 173-83, Order of Sentencing (Aug. 27, 1980). The sentencing panel found that both aggravating factors applied. It found no mitigating circumstances applied and noted that “the defendant in this case has stood mute and offered no evidence of any mitigating circumstance whether or not such mitigating
*1020
circumstance was described by the statute.”
5
Id.
at 181.
Palmer’s first conviction and sentence were reversed on appeal.
Palmer I,
313 N.W.2d at 654-55 . The Nebraska Supreme Court found the trial court had committed reversible error in admitting the hypnotically-induced testimony of Monica Zimmerman, Deanna Klintworth and Jim Mracek.
Id.
at 653.
B. Second Trial
Palmer was retried in 1982 and was again convicted. Between the first and second trials, Cherie Palmer, Charles Palmer’s wife, had filed for divorce in Texas. The prosecutor sought to use her testimony at the second trial since it would no longer be barred by Nebraska’s statutory ban on testimony by a spouse. Trial II Tr., Vol. I at 25-26. He successfully moved for a continuance of the trial once.
Id.
at 50. The divorce was granted in Texas on March 12,1981, and the prosecutor moved for a second continuance in anticipation of an appeal of the divorce decree.
Id.
at 55; Ex. 1. The trial court overruled the second motion and the case proceeded to trial.
Id.
The evidence adduced at the second trial again circumstantially linked Palmer to the murder. Importantly, Cherie Palmer’s testimony was admitted over an objection that it violated spousal immunity.
Id.,
Vol. II at 292-93. She testified that she, Charles Palmer, and their child traveled to Grand Island on March 6, 1979, to sell some diamond rings to Zimmerman.
Id.
at 309-11. She went on to testify essentially that Palmer murdered Zimmerman.
Id.
at 312-23. According to Cherie Palmer, Charles Palmer hit Zimmerman and took him upstairs.
Id.
at 314-16. She later heard a thump and a “course sounding voice ... a chant sort of voice.”
Id.
at 320. Cherie Palmer’s testimony was thus the strongest evidence that linked Palmer to the murder.
6
A three-judge panel again sentenced Palmer to death, finding the same two aggravators that were found in the first trial. St. Ct. File, Vol. II at 419-34, Order of Sentence (July 19,1982).
Palmer’s second conviction was also reversed on direct appeal.
State v. Palmer,
215 Neb. 273 , 338 N.W.2d 281 (1983)
(“Palmer II”).
The Nebraska Supreme Court found the trial court’s admission of Cherie Palmer’s testimony violated the spousal privilege statute.
Id.
at 282 , 338 N.W.2d 281 . Shortly after
Palmer II
was issued, but before Palmer’s third trial, the Nebraska Legislature passed new legislation that limited the application of the spousal privilege.
See
1983 Neb. Laws,
*1021
L.B. 696. The statute was amended to provide that the privilege could not be claimed “in any criminal case where the crime charged is a crime of violence.” Neb.Rev.Stat. § 27-505(3)(A) (Reissue 1985).
C. Federal Pretrial Double Jeopardy Challenge
Before his third trial Palmer filed a
pro se
action in federal district court raising an ex post facto and double jeopardy challenge.
See Palmer v. Clarke,
No. 4:84CV144, Filing No. 1, Petition for Ha-beas Corpus Relief (D.Neb. Feb. 29, 1984) (“Fed.Ct.File”). He contended that both his second trial violated double jeopardy and his impending trial would violate double jeopardy because the evidence, excluding inadmissible evidence, was insufficient to convict him in either the first trial or the second trial. He sought a stay to prevent the state from trying him again because a finding of insufficient evidence would amount to an acquittal and would trigger double jeopardy protections.
Id.
The federal district court first dismissed the claim as premature.
Id.
at Filing No. 2 (D.Neb. March 1, 1984). That dismissal was reversed by the Eighth Circuit in
Palmer v. Drum,
No. 84-8041 (8th Cir. May 10, 1984) (unpublished opinion).
See
Fed. Ct. File at Filing No. 8. The Eighth Circuit remanded the case to district court for reconsideration in light of the Supreme Court’s holding in
Justices of Boston Mun. Ct. v. Lydon,
466 U.S. 294 , 104 S.Ct. 1805 , 80 L.Ed.2d 311 (1984) (plurality opinion), that exhaustion of a double jeopardy claim does not require a defendant to undergo a second trial. Fed. Ct. File, Filing No. 8 at 2-3. On remand, the district court again dismissed, this time finding the petition meritless and frivolous.
See id.
at Filing No. 14, Memorandum and Order (D.Neb. May 22, 1984) (ruling that the Double Jeopardy Clause is not violated by a retrial after a conviction is reversed for evidentia-ry error rather than for insufficient evidence).
Palmer again appealed to the Eighth Circuit. Meanwhile, because the federal district court had denied Palmer’s motion for a stay,
id.
at Filing No. 15, Palmer was tried and convicted for the third time in June 1984. The Eighth Circuit Court of Appeals held the action in abeyance pending resolution of all proceedings in the Nebraska state courts.
See Palmer v. Grammer,
863 F.2d 588, 590 (8th Cir.1988)
(“Palmer (Fed.) I
”). In 1986, the Nebraska Supreme Court affirmed Palmer’s conviction and sentence on Palmer’s direct appeal,
State v. Palmer,
224 Neb. 282 , 399 N.W.2d 706 (1986)
(“Palmer III
” or “direct appeal”). The Eighth Circuit then addressed Palmer’s double jeopardy challenge.
Palmer (Fed.) I,
863 F.2d at 590-92 . The Eighth Circuit agreed that Palmer’s claim, as written, lacked merit, but remanded the case to the district court to allow Palmer to amend his petition.
Id.
at 594 . It specifically found that “[a] properly exhausted and nonprocedurally barred claim by Palmer challenging the sufficiency of
all
the evidence in his first or second trial (or both) would constitute a cognizable double jeopardy claim.”
Id.
On remand, Palmer amended his petition and added the allegation that Cherie Palmer’s testimony at the second trial should not be considered in determining sufficiency because the testimony had been procured through prosecutorial and judicial misconduct. Fed. Ct. File, Filing No. 22. The district court concluded that the evidence (including the improperly admitted evidence) in the first and second trials was sufficient to support Palmer’s first and second convictions.
Id.,
Filing No. 55, Rept. & Rec. of Mag. Judge (D.Neb. May 25, 1990); Filing No. 57, Order Adopting Rept. & Rec. of Mag. Judge (D.Neb. Sept. 17, 1990). The district court did not ad
*1022
dress the prosecutorial misconduct allegations because it found the claim was outside the scope of the remand.
Id.,
Filing No. 46 at 1, Mem. and Order Granting Protective Order (D.Neb. Sept. 11, 1989).
Palmer again appealed and the Eighth Circuit again remanded.
Palmer v. Clarke,
961 F.2d 771, 774 (8th Cir.1992)
(“Palmer (Fed.) II”).
It found the misconduct claim was an integral part of Palmer’s sufficiency argument, noting that evidence obtained through prosecutorial misconduct is an exception to the rule that all evidence must be considered to determine sufficiency.
Id.
at 773 . The action was remanded for the district court to consider whether misconduct had occurred.
Id.
The Eighth Circuit expressly determined, in addition, that a later post-trial double jeopardy challenge would not be a second or successive petition.
Id.
at 764.
The federal district court held an evi-dentiary hearing on February 24, 1993.
See
Fed. Ct. File, Filing No. 87, Tr. of Feb. 24, 1993, Hearing (Hrg. Tr.). Attorney Stephen Von Riesen, who prosecuted Palmer at the second trial, testified that he had tried to determine Cherie Palmer’s marital status in order to introduce her testimony in the second Palmer trial. Hrg. Tr. at 19. He had successfully moved to continue the trial once, before the divorce was final.
Id.
at 22, 23. The Palmers’ divorce was granted in Texas on May 12, 1982, and Von Riesen had filed for another continuance on May 25, 1982, assuming that an appeal of the divorce decree could prevent Cherie from testifying.
Id.
at 36-37. Von Riesen also testified that he had known Cherie Palmer’s testimony would be significant, if not essential, in the absence of Deanna Klintworth’s testimony.
Id.
at 43. He also testified that the trial judge had informed, ex parte, before the trial, that Cherie Palmer would be allowed to testify.
Id.
at 49. He also testified, however, that he had been satisfied that a competent legal argument could be made that Cherie Palmer’s testimony was admissible, and that he had not offered her testimony knowing that it would be inadmissible.
Id.
at 60. The district court found that no prosecutorial or judicial misconduct had occurred and that Cherie Palmer’s testimony should be considered in determining the sufficiency of the evidence.
See
Fed. Ct. File, Filing Nos. 89 and 97. It further found the evidence sufficient to support the conviction.
Id.,
Filing No. 89 at 12; Filing No. 97 at 6. That decision was ultimately affirmed.
See Palmer v. Clarke,
12 F.3d 781, 782 (8th Cir.1993)
(“Palmer (Fed.) III”).
Interestingly, the record shows that after the Eighth Circuit remanded the case to district court, the mandate was issued and records were ordered transferred to Hall County, Nebraska, District Court.
See
Fed. Ct. File, Filing No. 108. The case was never dismissed; the file was merely closed.
D. Third Trial
As noted, Palmer was tried, convicted, and sentenced to death for the third time in 1984. Cherie Palmer again testified and provided the only direct evidence linking Palmer to the murder. She testified that she and her husband and their child went to Zimmerman’s coin shop on March 6, 1979, to sell jewelry. Trial III Tr., Vol. II at 477. Charles Palmer hit Zimmerman, knocking him to the floor, and asked him for money.
Id.
Palmer then shoved Zimmerman up the stairs, where the two remained for fifteen minutes.
Id.
at 482. Cherie Palmer went upstairs and observed Zimmerman lying on a bed with his hands and feet tied.
Id.
at 483. Charles Palmer rummaged through drawers looking for jewelry.
Id.
at 484-85. Zimmerman said his stomach hurt.
Id.
at 484. Cherie Palmer offered to get him some medicine
*1023
and then gave him some Valium.
Id.
Charles Palmer then told Cherie Palmer to go downstairs.
Id.
at 486. She testified that shortly thereafter “there was a — a lot of thumping noises. Thump, Thump, Thump, Thump, and some kind of a — a guttural noise. I kept hearing a — a low, monotonous, almost a chant — like sound. A very deep and very throaty guttural type, over and over, again.”
Id.
Cherie Palmer further testified that Charles Palmer came back downstairs after about fifteen minutes and then Charles, Cherie, and the child left the house.
Id.
Cherie testified that she told Palmer, “Charlie, Mr. Zimmerman knows who we are.”
Id.
at 490. Cherie also testified that they had been to see Mr. Zimmerman on about five previous occasions and that she had entered into a plea bargain and had spent 18 months in jail.
Id.
at 513.
Dr. Pierce T. Sloss, a pathologist, testified that he conducted a postmortem examination on Eugene Zimmerman’s body.
Id.
at 575. Dr. Sloss first “observed tightly encircled about the neck of the decedent an electrical cord.”
Id.
at 576. He testified that his examination of Zimmerman’s body revealed that
the voice box and the windpipe immediately below where the cord, electrical cord had been encircled around the neck were broken and bleeding had taken place into these broken structures and about these broken structures. A large amount of blood had been entrapped in the blood vessels of the head above the level of the encircling cord.
Id.
at 577. He also observed that “the face contained multiple bruises and several broad scratches and a fresh cut” and “there was a fresh bruise just below the left collar bone.”
Id.
He opined that “death was due to strangulation and that death occurred approximately at 4:30 on the afternoon of the 6th day of March, 1979.”
Id.
He further noted that there was no postmortem evidence that the victim’s hands had been bound and that there were no stomach contents consistent with medication to be given within a half hour of death.
Id.
at 578-9. Monica Zimmerman’s testimony identified Charles Palmer as the man who had attempted to sell coins and jewelry at their store on previous occasions.
Id.
at 453-54.
The defense argued that it was equally likely that Cherie Palmer had murdered Zimmerman. Trial III Tr., Vol. IV at 822-30. Defense counsel argued that Charles Palmer, 'because of his size and strength, would have had no reason to use an electrical cord to strangle Zimmerman; he could have done so with his bare hands.
Id.
at 827.
At the close of evidence, the court instructed the jury that Palmer had been charged as follows: “On or about the 6th day of March, 1979, in Hall County, Nebraska, the Defendant Charles Jess Palmer, then and there being, did in the perpetration of a robbery, kill Eugene Zimmerman....” Instruction No. 2, St. Ct. File, Vol. IV at 758. With respect to the elements of the crime, the court instructed the jury that:
1. On or about the 6th day of March, 1979, in Grand Island, Hall County, Nebraska, the defendant Charles Jess Palmer did kill one Eugene William Zimmerman in the following manner:
a. That the defendant strangled the said Eugene William Zimmerman; and
b. That the strangulation was the proximate cause of the death of the said Eugene William Zimmerman; and
2. That said killing was done while the said Charles Jess Palmer was in the perpetration of a robbery.
Instruction No. 6, St. Ct. File, Vol. IV at 762.
*1024
The jury was further instructed that an element of robbery was “that such taking was
done with intent to rob or steal.” Id.
(emphasis added). With respect to intent, the jury was instructed that “criminal intent is a material and necessary element of the crime of First Degree Murder as charged against the defendant. But the intent required is not an intent to kill Eugene William Zimmerman but is an intent to deprive him of money or personal property of value.” Instruction No. 7, St. Ct. File, Vol. IV at 764.
A three-judge panel conducted a sentencing hearing. Trial III Tr., Vol. V (May 25, 1984, and September 6, 1984). At the hearing, defense counsel presented evidence of convictions and sentences in other murder cases. See Trial III, Ex. 62
(State v.
Schaeffer); Trial III, Exs. 63, 64, and 65
(State v.
Roewert); Trial III, Exs. 66, 67, and 68
(State v.
Floyd); Trial III, Exs. 71 and 72
(State v.
Thornton); Trial III, Ex. 73
(State v.
Lynch); Trial III, Ex. 74
(State v.
Jones). Cherie Palmer’s conviction and sentence were also offered into evidence. Trial III, Ex. 76. The sentencing panel also admitted Palmer’s presen-tence investigation report and Palmer’s response thereto. Trial III, Ex. 55 and Ex. 77. In mitigation, defense counsel offered a statement of Palmer’s sister showing that Palmer had a turbulent childhood and had been subjected to abuse by his stepfather. Trial III, Ex. 75. With respect to the “murder to conceal identity” aggravator, Palmer’s attorney argued that the ag-gravator amounted to “impermissible doubling up,”
id.,
but he did not argue that the aggravator was inapplicable. Trial III Tr., Vol. V at 933. In response, the prosecutor argued that family history should not remain a mitigating circumstance “into middle age.”
Id.
at 922. On September 6, 1984, the panel sentenced Palmer pursuant to Neb.Rev.Stat. § 29-2522.
7
The panel found that the statutory aggravators of “murder to conceal identity” and “manifesting exceptional depravity,” Neb.Rev. Stat. § 29-2523(l)(b) and (d), applied to the case, but found no mitigating circumstances.
8
St. Ct. File at 177-78, Order of Sentence (Sept. 6, 1984). The court stated that the evidence relating to Palmer’s childhood and the abusive conduct of Palmer’s stepfather toward the defendant, his sister, and his mother “does not give rise to a mitigatory circumstance.”
Id.
at 181. In support of aggravator 1(b), the panel stated:
*1025
The evidence is that the defendant and his wife, Cheri Hanson Palmer, had been at the home of the decedent, which was also his place of business, on previous occasions and were known to both the decedent and his wife. The robbery was in large part completed prior to the killing of Eugene D. Zimmerman by defendant.
Id.
at 177. In support of the exceptional depravity aggravator the sentencing panel stated,
Death in this case was caused by strangling. To accomplish the strangling the defendant employed an electrical cord which was wrapped around the neck of the victim and so tightened as to fracture the windpipe
of
the victim and to cause his death by suffocation. The evidence does not indicate that the act of killing itself was prolonged or lengthy so as to rise to the level of being ‘especially’ heinous, atrocious or cruel when compared with other cases of murder in the first degree.
The evidence further indicates, that, in the course of the robbery and the disabling of the victim in connection with the robbery the victim had been removed from the location at which a weapon had been available to him; had been bound with his hands behind his body; had been struck about the head sufficiently to knock him to the floor; and had been placed in a condition of inability to resist or otherwise to threaten the defendant.
Id.
at 178-79. The panel again sentenced Palmer to death.
Id.
at 182-83.
The panel also stated that the murder was comparable to one committed by Wesley Peery.
9
Id.
at 179. The panel also stated, without elaboration, that it had performed a proportionality review pursuant to Neb.Rev.Stat. § 29-2522(3), comparing the murder to all other murders committed since 1973, and found Palmer’s sentence proportionate.
Id.
at 182. The cases compared are not named.
1. Direct Appeal
Palmer’s third conviction was affirmed on direct appeal.
Palmer III,
399 N.W.2d at 706 . In
Palmer III,
the Nebraska Supreme Court rejected Palmer’s ex post facto and bill of attainder arguments, as well as a sufficiency of evidence challenge.
Id.
at 714. The court found the evidence “more than sufficient for the jury to find the defendant guilty of felony-murder,” but did not discuss sufficiency of the evidence to support the imposition of the death penalty.
Id.
The court also rejected Palmer’s posttrial double jeopardy challenge, finding that Palmer’s second conviction had been reversed for procedural error and not for insufficiency of evidence and further finding the evidence adduced in his second trial was sufficient to convict him of felony murder.
Id.
at 719. Again, the court did not address sufficiency of the evidence to support imposition of the death penalty in connection with the double jeopardy claim. The court similarly rejected Palmer’s contentions that refusal to consider a lesser-included offense and sentencing by a three-judge panel instead of a jury were constitutionally infirm.
Id.
at 724-25.
Palmer also raised the issue of the constitutional validity of the “exceptional depravity” aggravator in his direct appeal.
Id.
at 713. The court first noted that “exceptional depravity” had been defined in earlier cases to mean “totally and senselessly bereft of regard for human life.”
Id.
at 729-30. The court then compared Palmer’s crime to several eases in which
*1026
such “exceptional depravity” had been found.
10
Id.
It set forth several “objective factors” to distinguish a death penalty case from a ease where the death penalty is not imposed and adopted a five-factor test to determine whether “exceptional depravity” existed.
[F]or the purpose of [applying] § 29-2523(l)(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.
Id.
at 731-32 (adopting the factors set forth in
State v. Gretzler,
135 Ariz. 42 , 659 P.2d 1, 10 (1983)). The Nebraska Supreme Court applied those factors to Palmer’s case and found Zimmerman’s murder manifested exceptional depravity under the first prong of section 29-2523(l)(d).
Id.
at 732. The court further found that Zimmerman’s murder was “especially heinous, atrocious, or cruel,” and thus satisfied the second prong of section 29 — 2523(l)(d), although the sentencing panel had expressly found that the murder was not heinous.
Id.;
St. Ct. File at 178.
The court also conducted a proportionality review as required by Neb.Rev.Stat. § 29-2521.03.
11
Over a vigorous dissent by then-Chief Justice Krivosha,
Palmer III,
399 N.W.2d at 738-82 , the court compared Palmer’s crime to “the records in all
cases in which the death penalty was imposed
for offenses committed on or after April 20, 1973,” instead of comparing the crime to similar first-degree murders.
Id.
at 737-38 (emphasis added). The court found the sentence was proportional, and Palmer’s conviction and sentence of death were both affirmed.
Id.
2.
State Court Post-Conviction Proceedings
Palmer then filed an action for post-conviction relief in Hall County, Nebraska, District Court. An evidentiary hearing was held on June 19, 1995. St. Ct. File, Transcript of Post-Conviction Hearing at 10 (“PosWConv.Hrg.Tr.”). At the hearing, Palmer elicited the testimony of John A. Wolf, the attorney who had been appointed lead counsel to represent Palmer in his first trial.
Id.
A young lawyer in his office, Jerry Milner, was appointed co-counsel.
Id.
at 11. Wolf testified that at the time he was appointed, he had never defended a murder trial.
Id.
at 8. Wolf had never participated in a capital sentencing procedure before the sentencing hearing in Palmer’s first trial.
Id.
at 18.
Wolf testified that he had read and researched the statute regarding aggravating and mitigating factors, but had not
*1027
consulted with any other counsel.
Id.
at 18-19. With respect to mitigating factors, he stated, “I know I went over them with Charlie [Palmer] and asked him if any of those applied.”
Id.
at 17. He further testified that he did not think he presented any evidence regarding mitigating circumstances, because he “wasn’t aware of any mitigating” factors.
Id.
at 18. He did not recall whether he had conceded the existence of the aggravator that the murder had been committed to conceal another crime under section 29 — 2523(l)(b), but stated that if he had it was because “it was pretty obvious.”
Id.
at 19-20.
He did not recall whether he challenged the sufficiency of evidence to support the death penalty on Palmer’s direct appeal after the first trial,
id.
at 20, but the record shows he did not.
See
Brief of Appellant,
Palmer I.
Moreover, he did not object to Cherie Palmer’s statements in the presentence investigation report on the ground of marital privilege because he thought it would not have “done much good.” Post-Conv. Hrg. Tr. at 22. He further did not recall whether he had ever considered filing a plea in bar or other motion raising the double jeopardy issue before Palmer’s second trial.
Id.
at 23.
With respect to Palmer’s second trial, Wolf testified that he was assisted by attorney David A. Bush.
Id.
at 23. He testified that he knew that the state intended to call Cherie Palmer and that he knew what she would testify about from reading the presentence investigation in Palmer’s first trial.
Id.
at 24-25. He had not interviewed or deposed Cherie Palmer.
Id.
With respect to the sentencing phase in Palmer’s second trial, Wolf again testified that he did not recall putting on any evidence in mitigation “because I don’t think any applied.”
Id.
at 32.
Attorney Bush also testified at the post-conviction hearing.
Id.
at 45. He assisted Wolf in Palmer’s second and third trials.
Id.
He testified that he did “an extensive amount of investigation ... in the sense of legal briefing and the like” regarding the “heinous, atrocious and cruel and manifests exceptional depravity” aggravator, but did not do any investigation regarding the “murder committed to conceal identity” aggravator because he was “not sure what investigation would have been warranted.”
Id.
at 51. He further testified that he believed he had contacted Palmer’s sister to obtain evidence about Palmer’s turbulent childhood before the sentencing hearing in either the second or third trial.
Id.
at 53. The record shows that a statement by Palmer’s sister was admitted in the third sentencing hearing.
See
Trial III, Ex. 75. He also testified that before the sentencing hearing in the third trial, he had extensively investigated the proportionality review portion of the sentencing procedure by obtaining the records from other first degree murder cases.
Id.
Ronald York, a probation officer, also testified at the post-conviction hearing.
Id.
at 59. He testified that he did the original and subsequent presentence investigation reports on Palmer.
Id.
at 61. He stated that the reports included a statement from Cherie Palmer.
Id.
at 62. He further testified that he did no investigation on any mitigating circumstances and that Palmer’s attorneys did not ask him to conduct any sort of investigation or to obtain any school or health records when preparing Palmer’s presentence investigation reports.
Id.
at 66-68. Further, he stated that he did not contact or consult any of Palmer’s friends, neighbors, or relatives, other than Cherie Palmer.
Id.
at 68. He did not interview Palmer while preparing the reports; he talked only to the attorneys who said that Palmer had nothing to say. “He was advised not to talk to me.”
Id.
at 66. The Hall County District Court denied the petition. St. Ct. File,
*1028
Judge’s Notes & Journal Entries at 126-34 (Nov. 21,1995).
Palmer appealed the denial of post-conviction relief to the Nebraska Supreme Court. The Nebraska Supreme Court found that Palmer was not entitled to relief.
State v. Palmer,
257 Neb. 702 , 600 N.W.2d 756 (1999)
(“Palmer IV”
or “state post-conviction action”). The court declined to reconsider issues that had been raised and addressed in the direct appeal.
Id.
at 767-68 . It therefore did not discuss Palmer’s claims with respect to: (1) the comparative review analysis and proportionality; (2) the arbitrariness and capriciousness of Palmer’s sentence; (3) the constitutionality of the Nebraska death penalty statutes as applied; (4) a violation of the ex post facto provisions of the United States and Nebraska Constitutions; (5) failure to give a lesser-included offense instruction on manslaughter and second degree murder; and (6) the unconstitutional and/or illegal arrest of Palmer in Texas.
12
Id.
The court also found certain claims were proeedurally barred.
Id.
at 768 .
The court addressed the merits of ten claims. With respect to Palmer’s claim that his conviction for felony murder was unconstitutional because there had been no finding of the requisite intent, the court found, without discussion, “[I]t is clearly established that a person may be convicted of first degree murder under a felony murder theory without violating his Eighth or Fourteenth Amendment rights.”
Id.
at 769 . The court also rejected Palmer’s claim that amendment of the spousal privilege statute amounted to an unconstitutional bill of attainder.
Id.
at 770 .
It also summarily rejected Palmer’s claim that the “exceptional depravity” ag-gravator was unconstitutionally vague. Relying on
Joubert v. Hopkins,
75 F.3d 1232 (8th Cir.1996), the court stated, “[t]he Court of Appeals has since stated that the exceptional depravity definition under § 29-2523(l)(d), as we narrowed it in
Palmer III,
is constitutional.”
Id.
Further, the court found that Palmer had been afforded constitutional notice of the reformulated aggravator in that “[a]t the time of his sentencing hearing, Palmer had notice of the language of § 29-2523(l)(d) and the various fact patterns” that the court had used as specific examples to demonstrate the meaning of “exceptional depravity” in
Palmer III. Id.
at 771, 399 N.W.2d 706 . The court also rejected Palmer’s claims of ineffective assistance of counsel and, in connection with those claims, found that the evidence in the first trial was sufficient to sentence Palmer to the death penalty.
Id.
at 777, 399 N.W.2d 706 .
Palmer filed the present action on January 28, 2000, and now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 . Palmer contends that his 1984 conviction and sentence are unconstitutional and void under Article I, §§ 9 and 10, and under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. All claims have been properly exhausted and no claims are proeedurally barred.
See
Filing No. 58, Mem. and Order (D.Neb. Sept. 14, 2001).
II. Discussion
A. Applicability of AEDPA— Standard of Review
Review by federal courts of state court decisions for constitutional errors under 28 U.S.C. § 2254 was altered by the Antiter-rorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), which became effective on April 24, 1996. A threshold question is the applicability of the AEDPA to Palmer’s action.
*1029
1. Second or Successive Petition
The AEDPA has further restricted the power of federal courts to grant writs of habeas corpus to state prisoners.
Miller-El v. Cockrell,
537 U.S. 322 , 123 S.Ct. 1029, 1039 , 154 L.Ed.2d 931 (2003). It contains strict restrictions on the filing of second or successive petitions. 28 U.S.C. § 2244 . Under the AEDPA, any habeas corpus claim presented in a second or successive habeas corpus application that had been presented in a prior application is subject to dismissal.
Id.
Further, any claim that was
not
presented in a prior application is also subject to dismissal unless the applicant can show either: (1) “that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2)that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244 (1) and (2)(A) and (B)(i) and (ii).
This court must thus determine whether Palmer’s present petition constitutes a second or successive petition. The court finds that it is not. Not every habe-as corpus petition that is filed after a prior one is properly considered a “second or successive” filing in the technical sense required by the AEDPA.
Muniz v. United States,
236 F.3d 122, 125 (2d Cir.2001). Although the AEDPA does not define what constitutes a “second or successive” application, courts generally acknowledge that the interpretation of “second or successive” involves the application of pre-AEDPA abuse-of-the-writ principles.
Stewart v. Martinez-Villareal,
523 U.S. 637, 643-45 , 118 S.Ct. 1618 , 140 L.Ed.2d 849 (1998) (relying on pre-AEDPA law to determine that section 2244(b) did not bar petitioner’s request to reopen habeas claim raised in prior petition but dismissed by district court as premature);
Crouch v. Norris,
251 F.3d 720, 723 (8th Cir.2001).
To hold that every refiled petition is second or successive under AEDPA “would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.”
Martinez-Villareal,
523 U.S. at 645 , 118 S.Ct. 1618 (stating “[tjhis may have been the second time that respondent had asked the federal courts to provide relief on his [previously unripe] claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b)”). The Seventh Circuit has acknowledged the possibility that
a claim in no sense abusive, because it could not have been raised earlier, yet not within the dispensation that section 2244(b)(2) grants for the filing of some second or successive petitions, would have sufficient merit that the barring of it would raise an issue under the clause of the Constitution that forbids suspending federal habeas corpus other than in times of rebellion or invasion.
In re Page,
179 F.3d 1024, 1025 (7th Cir.1999).
There is a substantive difference between a dismissal for failure to exhaust and a dismissal as premature or unripe. Palmer’s first habeas corpus petition was originally dismissed as premature and later as frivolous, but was never dismissed for failure to exhaust. This case is thus on the same procedural footing as the petitioner’s action in
Stewart v. Martinez-Villareal,
523 U.S. at 645 , 118 S.Ct. 1618 (holding that a claim dismissed as prema
*1030
ture and later refiled was not subject to the AEDPA); see
also Slack v. McDaniel,
529 U.S. 473, 486-487 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000) (noting that a petition “unadjudicated on its merits ... is not a second or successive petition”). In this case, the Eighth Circuit expressly noted that Palmer’s posttrial double jeopardy challenge would not amount to a second or successive petition.
Palmer (Fed.) II,
961 F.2d at 764 .
This action is Palmer’s first habeas corpus petition on all issues except the pretrial double jeopardy issue. Accordingly, the court finds that the action is not a second or successive petition and that 28 U.S.C. § 2244 does not apply to this case.
13
2. Substantive Standard of Review
The inquiry does not end at the finding that Palmer’s present petition is not second or successive. The court must still determine whether the AEDPA’s revised standards of review will apply to the action. “Whether a petition is a ‘second or successive’ application under the AEDPA is an entirely different question” than whether AEDPA applies to a petition filed after the Act’s effective date.
Weaver v. Bowersox,
241 F.3d 1024, 1029 (8th Cir.2001).
Since the AEDPA does not apply retroactively to cases pending when the Act was signed into law,
14
the inquiry is whether Palmer’s action can be said to have been “pending” on April 24, 1996.
Lindh v. Murphy,
521 U.S. 320, 327 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Whether the AEDPA applies to a state prisoner turns on what was before a federal court on the date the AEDPA became effective on April 24, 1996.
Woodford v. Garceau,
538 U.S. 202 , -, 123 S.Ct. 1398, 1399 , 155 L.Ed.2d 363 (2003).
15
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 section 2254(d) does not apply.
Id.
Otherwise, an application filed after AEDPA’s effective date should be reviewed under AEDPA, even if other filings by that same applicant — such as a request for the appointment of counsel or a motion for a stay of execution' — were presented to a federal court prior to AEDPA’s effective date.
Id. See also Ellzey v. United States,
324 F.3d 521, 524 (7th Cir.2003) (finding an amended petition a continuation of earlier petition for statute of limitations purposes).
*1031
On the date the AEDPA was passed, Palmer had an action pending that raised issues on the merits. The petition in Palmer’s initial habeas petition sought resolution of the merits of the double jeopardy/sufficiency of evidence issue. The court resolved the pretrial component of that claim, but reserved judgment on the posttrial component, effectively finding the double jeopardy issue premature as to the completed third trial. The claims in the present petition, especially those that involve sufficiency of evidence at the first and second trials as part of Palmer’s ineffective assistance claim and the double jeopardy issues, are inextricably tied to claims raised in Palmer’s first petition.
Only Palmer’s pretrial double jeopardy challenge has been addressed on its merits. Palmer’s other claims, which involve challenges to his third conviction, as well as claims relating to his first and second trials, could not have been raised earlier. Most claims were premature, and Palmer was unable to raise his ineffective assistance of counsel claims because he was represented by the same counsel. In addition, because both the federal and state courts held Palmer’s actions in abeyance pending resolution of proceedings in the other court, the present petition is a continuation of the first and should relate back to the first. The lengthy delays in resolving the merits of Palmer’s claims can largely be attributed to actions (or inac-tions) by the courts. The court is thus inclined to view this action as a natural extension of the proceedings in Palmer’s first habeas corpus action,
Palmer v. Drum,
84-L-144.
16
Accordingly, since Palmer’s action was pending, or is deemed to have been pending, when the AEDPA was passed, pre-AEDPA standards of review should apply. This finding is of no real consequence, however, because the court would reach the same conclusion under either the pre- or post-AEDPA standards of review. Although the AEDPA altered the substantive standards by which federal courts review state court determinations of law under 28 U.S.C. § 2254 , those subtle distinctions would not affect the outcome of this action. This court’s findings generally relate to legal, not factual, issues.
Under pre-AEDPA standards, the reviewing court would give the state court’s factual findings a “presumption of correctness” and would review
de novo
state court interpretations of federal law, as well as mixed questions of fact and law.
See Jones v. Delo,
258 F.3d 893, 900 (8th Cir.2001) (regarding factual findings);
Henderson v. Norris,
258 F.3d 706, 707 (8th Cir.2001) (regarding issues of law);
Stringer v. Hedgepeth,
280 F.3d 826, 829 (8th Cir.2002) (same). A court could overturn a state court’s factual findings if they were not supported by evidence.
See Jones,
258 F.3d at 900-901 .
Under the AEDPA, a federal court may grant a writ of habeas corpus if the relevant state court decision is “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254 (d)(1);
Lockyer v. Andrade,
538 U.S. 63 ,-, 123 S.Ct. 1166, 1172 , 155 L.Ed.2d 144 (2003). A state court decision is “contrary to” the Supreme Court’s es
*1032
tablished precedent: (1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law
(i.e.,
applies a rule that contradicts the governing law in Supreme Court cases); or (2) if the state court confronts facts that are materially indistinguishable from relevant Supreme Court precedent and arrives at a result opposite to that reached by the Supreme Court.
Williams v. Taylor,
529 U.S. 362, 404-05 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). A state court decision is an “unreasonable application” of clearly established federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case.
Id.
If the state court’s application of clearly established federal law was not unreasonable, a federal court may not grant habeas relief even if in the federal court’s judgment its application was incorrect.
Williams,
529 U.S. at 411 , 120 S.Ct. 1495 ;
see also Penry v. Johnson,
532 U.S. 782, 793 , 121 S.Ct. 1910 , 150 L.Ed.2d 9 (2001).
“Clearly established federal law” under section 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision and includes whatever would qualify as an “old rule” under the Supreme Court’s
Teague
jurisprudence.
17
Id.
at 411, 120 S.Ct. 1495 . The “clearly established” phrase refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.
Id.
Also, under the AEDPA, factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254 (e)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding.
Miller-El v. Cockrell,
537 U.S. at-, 123 S.Ct. at 1040. Nevertheless, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.”
Id.
Deference does not by definition preclude relief.
Id.
A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.
Id.
The distinctions, then, are that the court must find factual error to have occurred by clear and convincing evidence and must find legal error to have occurred because the state court result was either contrary to Supreme Court precedent or because the state court unreasonably applied Supreme Court precedent. Even under the AEDPA’s marginally more rigorous standards, this court’s findings would be the same.
B. Merits of Petitioner’s Claims
1. Ex Post Facto (Claim I)
In his first claim, Palmer asserts that the amendment to the spousal privilege statute in 1984 operated as an ex post facto law in violation of the Constitution. In the state court post-conviction action, the Nebraska Supreme Court refused to consider this claim, stating that the court in
Palmer III
had raised and addressed it.
Palmer IV,
600 N.W.2d at 767-68 . This finding effectively adopted the Nebraska Supreme Court’s holding in
Palmer III
that amending the spousal privilege statute did not violate the ex post facto prohi
*1033
bition in the Constitution because the legislature had not created any criminal act, altered the standard of proof necessary for conviction, or altered the punishment prescribed for the crime.
Palmer III,
399 N.W.2d at 716 . In
Palmer III,
the Nebraska Supreme Court analogized the legislative act to a change in the rules of evidence and found that the rights abrogated were not substantial enough to render retroactive application of the statute unconstitutional.
Id.
Article I, section 10 of the Constitution prohibits the states from passing any ex post facto law.
Carmell v. Texas,
529 U.S. 513, 520 , 120 S.Ct. 1620 , 146 L.Ed.2d 577 (2000). The Ex Post Facto Clause incorporates a term of art into a meaning already established when the Constitution was framed.
Id.
at 521-22 , 120 S.Ct. 1620 . The clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.
Id.
at 522 , 120 S.Ct. 1620 . The proscription against ex post facto laws was derived from English common law and applies to four categories of criminal laws: (1) a law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) a law that aggravates a crime, or makes it greater than it was, when committed; (3) a law that changes the punishment, and inflicts a greater punishment, than the law that existed when the crime was committed; and (4) a law that alters the legal rules of evidence, and requires less or different testimony to convict the offender, than the law required at the time of the commission of the offence.
Id.
Palmer’s contentions invoke the fourth prong of this definition.
See id.
at 531 , 120 S.Ct. 1620 (reaffirming the continued viability of the fourth category and noting that “[a] law reducing the quantum of evidence required to convict an offender or retrospectively eliminating an element of the offense” violates the Ex Post Facto Clause). Palmer argues that the Nebraska Legislature’s amendment of the spousal privilege statute is analogous to the statute challenged in
Carmell
that increased the age limit for application of the “outcry or corroboration” rule in a sexual assault case from age fourteen to age eighteen.
See Carmell,
529 U.S. at 518-19 , 120 S.Ct. 1620 . The state argues on the other hand that the amendment to the spousal privilege statute is more closely analogous to the situation presented in
Hopt v. People of Territory of Utah,
110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884), and
Thompson v. Missouri,
171 U.S. 380 , 18 S.Ct. 922 , 43 L.Ed. 204 (1898) (involving competency of witnesses and evidence).
Not every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause.
Carmell,
529 U.S. at 533 n. 23, 120 S.Ct. 1620 . Ordinary rules of evidence, for example, do not violate the clause.
Id.
Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the state or the defendant in any given case.
Id.
at 546 , 120 S.Ct. 1620 (noting changes lowering quantum of proof, and thus implicating Ex Post Facto Clause, will always inure to state’s benefit, but witness competency laws “do not necessarily run in the State’s favor”). More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.
Id.
Thus, it is only evidentiary rules which affect the quantum of evidence,
i.e.,
make it easier for the government to overcome the presumption of innocence, that will violate the Ex Post Facto Clause.
Id.
at 532 , 120 S.Ct. 1620 .
See also Stogner v. California,
— U.S.-,
*1034
-, 123 S.Ct. 2446, 2451 , 156 L.Ed.2d 544 (2003) (holding retroactive extension of statutes of limitation for serious sexual offenses against minors was ex post facto law and stating in dicta that the new law would alter the quantum of proof by effectively eliminating an existing conclusive presumption forbidding prosecution). In addition, evidentiary rules that simply regulate the mode by which the parties could place facts before the jury, but do not “govern the sufficiency of those facts for meeting the burden of proof,” will not violate the Ex Post Facto Clause.
Id.
at 545, 546-47, 120 S.Ct. 1620 .
The court finds the change to the spousal privilege statute is closer to a witness competency rule. The change did not affect the amount of evidence necessary to convict the defendant; it merely created a class of persons (spouses) competent to testify with respect to certain issues (crimes of violence).
See Janecka v. Cockrell,
301 F.3d 316, 324 (5th Cir.2002) (regarding change in burden of production to refute exculpatory evidence in a confession); and
Neill v. Gibson,
278 F.3d 1044, 1052 (10th Cir.2001) (regarding admissibility of victim-impact statements). The court finds the spousal privilege statute is more in the nature of an ordinary rule of evidence that does not violate the Ex Post Facto Clause.
Carmell,
529 U.S. at 533 n. 23, 120 S.Ct. 1620 . Such rules are “ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case.”
Id.
Amendment of the spousal privilege statute to allow spousal testimony in certain cases would not always inure to the benefit of the state. The statute would also allow evidence that favored a defendant.
Accordingly, the court finds that the amendment to the spousal privilege did not operate as an ex post facto law against Palmer.
2. Bill of Attainder (Claim II)
On a closely related issue, Palmer also argues that the passage of the spousal privilege amendment operated as a bill of attainder against him in violation of Article I, Section 10 of the Constitution.
18
The Constitution includes two clauses prohibiting enactment of “bills of attainder.”
See
U.S. Const. art. I, §§ 9, 10. Section 9 applies to Congress; section 10 to the states.
Id.
Briefly stated, a constitutionally proscribed bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”
Nixon v. Administrator of Gen. Servs.,
433 U.S. 425, 468 , 97 S.Ct. 2777 , 53 L.Ed.2d 867 (1977);
see also United States v. Lovett,
328 U.S. 303, 315 , 106 Ct.Cl. 856 , 66 S.Ct. 1073 , 90 L.Ed. 1252 (1946) (“[l]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.”). Put another way, the Bill of Attainder Clause bars the imposition of punishment resulting from “trial by legislature.”
United States v. Brown,
381 U.S. 437, 442 , 85 S.Ct. 1707 , 14 L.Ed.2d 484 (1965).
A statute can be a bill of attainder only if (1) it “determines guilt and inflicts punishment,” (2) “upon an identifiable individual,” (3) “without provision of the protections of a judicial trial.”
Nixon,
433
*1035
U.S. at 468, 97 S.Ct. 2777 ;
United States v. Van Horn,
798 F.2d 1166, 1168 (8th Cir.1986). Thus, to constitute a bill of attainder, the statute must (1) specify affected persons, (2) impose punishment, and (3) fail to provide for a judicial trial.
See Selective Serv. Sys. v. Minnesota Pub. Int. Research Group,
468 U.S. 841, 847 , 104 S.Ct. 3348 , 82 L.Ed.2d 632 (1984). The party challenging the statute has the burden of “establishing] that the legislature’s action constituted punishment and not merely the legitimate regulation of conduct.”
Nixon,
433 U.S. at 476 n. 40, 97 S.Ct. 2777 .
The state post-conviction court found that Palmer was not subject to a bill of attainder because the amended statute did not specify persons to be punished.
The privilege, as amended, neither names specific persons or groups to be punished nor isolates past activity by which persons can later be designated as appropriate candidates for punishment. The amended spousal privilege is not concerned with distinguishing between persons, but between crimes. The amendment allowed spousal testimony to be admitted in future trials for violent crimes. Therefore, the amendment of § 27-505 was not a bill of attainder against Palmer.
Palmer IV,
600 N.W.2d at 769 .
Id.
Whether the challenged statutory amendment “specifies” Palmer, or singles him out, is a close question. The court is inclined to find that it does. Various guideposts aid in determining whether legislation singles out a person or class within the meaning of the Bill of Attainder Clause.
See, e.g., Selective Serv. v. Sys.,
468 U.S. at 847 , 104 S.Ct. 3348 . First, the court considers whether the statute or provision explicitly names the individual or class, or instead, describes the affected population in terms of general applicability.
Id.; Nixon,
433 U.S. at 469-71 , 97 S.Ct. 2777 . Second, intricately connected with the first, is whether the identity of the individual or class was “easily ascertainable” when the legislation was passed.
Brown,
381 U.S. at 448-49 , 85 S.Ct. 1707 . Third, the court examines whether the legislation defines the individual or class by “past conduct [that] operates only as a designation of particular persons.”
Selective Serv. Sys.,
468 U.S. at 847 , 104 S.Ct. 3348 . Finally, the court reviews whether the past conduct defining the affected individual or group consists of “irrevocable acts committed by them.”
Id.
Under those standards, this court finds that although the statute does not single out Palmer by name, his identity was easily ascertainable at the time the statute was amended. Palmer has presented compelling evidence that the bill was specifically aimed at him.
See
Legislative History, LB 696, Floor Debate (Jan. 17,1984). The bill’s introduction was occasioned by the reversals in
Palmer I
and
Palmer II.
The prosecutor in the second trial testified to the legislature in support of the amendment.
Id.
at 6.
Cf. WMX Tech., Inc. v. Gasconade County, Mo.,
105 F.3d 1195, 1203 (8th Cir.1997) (noting no evidence of any legislative intent to punish in that case).
However, even if the specificity element is satisfied, the Bill of Attainder Clause is not automatically implicated.
Nixon,
433 U.S. at 472 , 97 S.Ct. 2777 . The court must next inquire whether the statutory amendment “inflict(ed) punishment” within the constitutional proscription against bills of attainder.
Id.
at 472-73 , 97 S.Ct. 2777 . Three inquiries determine whether a statute inflicts punishment on the specified individual or group: “(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 bur
*1036
dens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’ ”
Selective Serv. Sys.,
468 U.S. at 852 (quoting
Nixon,
433 U.S. at 473, 475-76 , 97 S.Ct. 2777 ). Thus, to rise to the level of “punishment” under the Bill of Attainder Clause, harm must fall within the traditional meaning of legislative punishment, must fail to further a nonpunitive purpose, or must be based on a legislative intent to punish.
Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Dempsey,
167 F.3d 458, 465 (8th Cir.1999).
Traditionally, bills of attainder sentenced the named individual to death, imprisonment, banishment, the punitive confiscation of property, or erected a bar to designated individuals or groups participating in specified employments or vocations.
Nixon,
433 U.S. at 473-74 , 97 S.Ct. 2777 . Courts apply “a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.”
Id.
at 475-76 , 97 S.Ct. 2777 . Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decision-makers.
Id.
Applying the functional approach to this case, this court rejects the argument that the amendment of the spousal privilege statute rests upon a legislative determination of Palmer’s blameworthiness and its desire to punish him.
See id.
Notably, the amendment to the statute furthers a nonpunitive purpose.
Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress’ responsibility to the ‘due process of law in the fair administration of criminal justice,’ and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to the discovery of truth within the bounds set by law.
Nixon,
433 U.S. at 477 , 97 S.Ct. 2777 (quoting
United States v. Nixon,
418 U.S. 683, 713 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974)).
The evidence presented by Palmer, while it may show prosecutorial over zealousness, does not rise to the level of proof of legislative intent to punish. There are legitimate justifications for the statutory amendment. Because Cherie Palmer’s testimony was pivotal, the legislative act furthered Palmer’s conviction and sentencing; however, the nexus between the amendment to the spousal privilege statute and Palmer’s conviction is attenuated, especially since the testimony eventually became “available” as a result of the Palm-ers’ divorce. The court thus finds that Palmer has not met his burden of showing that the amendment to the spousal privilege statute is a bill of attainder.
3. Double Jeopardy (Claim IX)
In his ninth claim, Palmer argues that the prosecutor’s actions in the second and third trials, coupled with the trial court’s erroneous admission of Cherie Palmer’s testimony, violated Palmer’s right not to be put in double jeopardy. Palmer argues that prosecutorial misconduct — conduct showing an intent to gain an unfair advantage at trial — which is analogous to “goading to mistrial,” prevented Palmer’s acquittal in the second trial. Consequently, Palmer’s argues that his third trial violated double jeopardy.
The state argues that Palmer is collaterally estopped from making this argument. The court first finds that Palmer is not. “The loss of a pretrial double jeopardy challenge on the merits
*1037
does not preclude a defendant from raising a double jeopardy challenge in a posttrial habeas petition.”
Palmer (Fed.) II,
961 F.2d at 774 ;
see also Stratton v. United States,
862 F.2d 7, 8 (1st Cir.1988) (per curiam) (noting “[a] pre-trial double jeopardy claim may fail where a post-trial one will succeed”). The only issue addressed in Palmer’s federal court habeas corpus action was whether Palmer’s impending trial (his third trial) would violate the Double Jeopardy Clause.
See Palmer (Fed.) II,
961 F.2d at 764 (noting “Palmer did not (and could not) challenge the legality of the third conviction or resulting sentence because the third trial had not yet occurred”). The Eighth Circuit’s finding that Palmer’s “third trial did not violate double jeopardy” refers only to whether Palmer properly could be tried for a third time and not, as the state argues, to the sufficiency of evidence to support his conviction in the third trial.
19
The challenge the Eighth Circuit addressed was a challenge to an impending trial.
Id.
Prosecu-torial misconduct was addressed only in the context of whether Cherie Palmer’s testimony had been obtained through pros-ecutorial and judicial misconduct so as to prevent its consideration as evidence to support Palmer’s conviction in the second trial.
Palmer’s argument in the present claim is that the misconduct amounts to or can be compared to a “goading to mistrial” situation.
See, e.g., Oregon v. Kennedy,
456 U.S. 667, 679 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982);
United States v. Wallach,
979 F.2d 912, 916 (2d Cir.1992). This is a different issue. Actions by a prosecutor that may not quite rise to the level of misconduct that would preclude use of the resultant evidence to support a sufficiency finding in a pretrial double jeopardy challenge could arguably support a finding of “goading to mistrial” or of obtaining an unfair advantage short of goading to mistrial.
United States v. Cotton,
130 F.3d 805, 807 (7th Cir.1997). In other words, the evidence is viewed under a different standard in the former situation than the latter.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “twice put in jeopardy of life or limb” for the same offense. U.S. Const, amend. V. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.
See Sattazahn v. Pennsylvania,
537 U.S. 101, 106 , 123 S.Ct. 732 , 154 L.Ed.2d 588 (2003) (plurality opinion). In general, double jeopardy will “not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.”
Lockhart v. Nelson,
488 U.S. 33, 38 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988) (citation omitted). There are a few exceptions to this rule. Palmer’s pretrial double jeopardy challenge addressed in prior federal court proceedings is one such example: if a conviction is reversed because the evidence is legally insufficient to convict, retrial is barred because this is equivalent to a judgment of acquittal for double jeopardy purposes.
See id.,
488 U.S. at 39 , 109 S.Ct. 285 .
.Generally, the Double Jeopardy Clause will not bar retrial if a defendant requests a mistrial.
United States v. Din-
*1038
itz,
424 U.S. 600, 607 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976). Double jeopardy will bar a retrial, however, in the limited situation where the government engages in prosecutorial misconduct that gives rise to a successful motion for mistrial, and such misconduct “was intended to provoke the defendant into moving for a mistrial.”
Oregon v. Kennedy,
456 U.S. at 679 , 102 S.Ct. 2083 . If the prosecutor deliberately introduces error in order to provoke the defendant into moving for a mistrial and to “rescue” a trial going badly, “the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative.”
United States v. Higgins,
75 F.3d 332, 333 (7th Cir.1996). This “goading to mistrial” concept may, in an appropriate case, also bar a defendant’s retrial in the case of deliberate prosecutorial misconduct undertaken not to provoke a mistrial, but to avoid an acquittal that the prosecutors believed was likely in the absence of then-misconduct.
United States v. Wallach,
979 F.2d at 916 .
The argument in favor of such extension is that, without it, a prosecutor would have “an unimpaired incentive to commit an error that would not be discovered until after the trial and hence could not provide the basis for a motion for a mistrial, yet would as effectively stave off an acquittal and thus preserve the possibility of a retrial.”
Catton,
130 F.3d at 807 . An example would be where
the prosecutor does not expect to prevail at this trial — the case in which he knows that his misconduct is likely to be discovered and that if it is discovered the verdict will be set aside either on direct appeal or, later, in a collateral attack on the conviction — and what he is seeking to obtain by committing a reversible error is the opportunity to retry a defendant who but for the error would be acquitted. In such a case, the prosecutor’s ultimate aim is not to obtain a conviction at this trial but to obtain a conviction at a subsequent trial....
Id.
Under this theory, a defendant asking a court to block a retrial on the basis of prosecutorial error must show
that the prosecutor committed the error
because
he thought that otherwise the jury would acquit and he would therefore be barred from retrying the defendant. It is not enough that there was an error; it is not enough that it was committed or procured by the prosecutor; it is not enough that it was deliberate prosecutorial misconduct; it must in addition have been committed for the purpose of preventing an acquittal that, even if there was enough evidence to convict, was likely if the prosecutor refrained from misconduct.
Id.
(emphasis in original). The Eighth Circuit has intimated that it would extend
Oregon v. Kennedy
in a proper case.
See Jacob v. Clarke,
52 F.3d 178, 181 (8th Cir.1995).
This court is unwilling to extend the “goading to mistrial” principle to this situation. Palmer has presented compelling evidence that shows the prosecution knew that an acquittal (at the least of imposition of the death penalty) was likely in the absence of Cherie Palmer’s testimony. Evidence is lacking, however, on whether any prosecutorial misconduct, assuming it occurred, was deliberate and was undertaken for the purpose of preventing an acquittal. This court is bound by the finding that the trial judge and prosecutor did not know that Cherie Palmer’s testimony would be inadmissible in the second trial. Palmer argues, however, that there is evidence to support a finding that, although the prosecutor may not have known with certainty that the evidence was not admissible, he had a strong hunch that it would turn out to be barred, yet he
*1039
presented the evidence anyway in hopes of gaining an advantage. The advantage was that Palmer’s divorce would be final on retrial and Cherie Palmer’s testimony could then be admitted.
20
Whatever the appeal of Palmer’s argument, finding a violation of double jeopardy in the circumstances of this case is too great a stretch. The court is bound by the Eighth Circuit’s earlier finding that no prosecutorial misconduct occurred. The circuit court affirmed the factual finding that the prosecutor did not know that Cherie Palmer’s testimony would be inadmissible when it was offered. There may be a subtle distinction between concrete, certain “knowledge” and what amounts to a suspicion, but the distinction is not clear enough for this court to find that the prosecutor’s “hunch” is enough on which to base an extension of the “goading to mistrial” concept. Accordingly, the court finds no double jeopardy violation on grounds of prosecutorial misconduct in Palmer’s third trial.
21
4. The Nebraska Death Sentencing Scheme (Claims III, IV, V, VI, VIII, XXII)
Palmer challenges the Nebraska death penalty sentencing scheme in several particulars. He first argues that the Nebraska Supreme Court’s method of proportionality review violates due process and the Eighth Amendment. He further argues that his due process rights were violated when the Nebraska Supreme Court resenteneed him under a different proportionality paradigm and a newly narrowed definition of “exceptional depravity,” thus denying him access to Nebraska’s two-tiered sentencing procedure. Palmer also argues that the reformulated definition of “exceptional depravity” that was set out in
Palmer III,
399 N.W.2d at 728-32 , did not afford him constitutional notice. Last, Palmer asserts a claim based on
Apprendi v. New Jersey,
530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and now,
Ring v. Arizona,
536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), arguing that Nebraska’s death penalty scheme violates his Sixth Amendment right to trial by a jury.
The question of whether a statute is constitutional is a question of law.
United States v. Prior,
107 F.3d 654, 658 (8th Cir.1997). Under pre-AEDPA standards, this court reviews state court decisions
de novo;
under post-AEDPA standards, this court determines whether the state court decision is either contrary to or is an unreasonable application of clearly established law at the time of the decision. Under either standard, this court’s findings are the same.
Under the Nebraska death penalty scheme in force at the time of Palmer’s sentencing, the determination of whether the defendant should be sentenced to death or life imprisonment was made fol
*1040
lowing a sentencing hearing by the judge who presided over the trial or accepted the guilty plea, or by a three-judge sentencing panel, after a hearing. Neb.Rev.Stat. §§ 29-2520, 29-2521. Aggravating and mitigating circumstances were listed in Neb.Rev.Stat. § 29-2523.
See supra
at note 4 and note 5. The trial judge or a three-judge sentencing panel was required to fix the sentence at either life or death and to determine: (1) whether sufficient aggravating circumstances existed to justify imposition of a sentence of death; (2) whether sufficient mitigating circumstances existed which approached or exceeded the weight given to the aggravating circumstances; and (3) whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Neb.Rev.Stat. § 29-2522. The statute also provided for automatic review of any death sentence by the Nebraska Supreme Court. Neb.Rev.Stat. § 29-2525.
a. Proportionality Review
In Claims III, IV, and V, Palmer asserts he was deprived of Eighth and Fourteenth Amendment rights because the Nebraska Supreme Court failed to conduct a proper proportionality review. As noted, Nebraska’s death penalty scheme mandates automatic review of all cases where the death sentence is imposed. Neb.Rev.Stat. § 29-2525. Moreover, Nebraska law mandates that a proportionality review be performed at both the sentencing level and by the Supreme Court on mandatory review. Neb.Rev.Stat. §§ 29-2522(3), 29-2521.03.
The state again argues that Palmer raises only an issue of state law.
22
To the contrary, this court earlier found that Palmer raises a constitutional claim.
See
Filing No. 58, Mem. and Order at 4-5. The underlying constitutional principle embodied in the Nebraska death penalty scheme “is, that given the life interest at stake, the death penalty shall not be imposed without due process.”
State v. Reeves,
258 Neb. 511 , 604 N.W.2d 151, 163 (2000). The Nebraska Supreme Court acknowledges that a challenge to a sentence of death under the Nebraska statute involves a due process analysis.
Id.
This court is required in habeas matters to accept the state courts’ interpretation of state law, but is not similarly bound as to the constitutional effect of that construction.
McIntyre v. Caspari,
35 F.3d 338, 342 (8th Cir.1994). Although state courts have the final authority to interpret that state’s legislation, this court is authorized to consider claims asserting constitutional violations.
Id.
While the federal Constitution does not mandate a proportionality review, once one is in place it must be conducted consistently with the Due Process Clause.
Kilgore v. Bowersox,
124 F.3d 985, 995 (8th Cir.1997) (finding no constitutional error in a comparison to similar cases). Although a mere violation of state law is not the automatic equivalent of a violation of the federal Constitution, some aspects of the sentencing process created by state law are so fundamental that the states must adhere to them in order to impose a valid sentence.
Hicks v. Oklahoma,
447 U.S. 343, 345 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980) (involving state statute providing for trial by jury and stating that a defendant “has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves
*1041
against arbitrary deprivation by the State”);
Chambers v. Bowersox,
157 F.3d 560, 564 (8th Cir.1998). Nebraska’s two-tiered sentencing scheme is one such fundamental aspect.
State v. Reeves,
604 N.W.2d at 157 (recourse to the two-tier system is a liberty interest);
Rust v. Hopkins,
984 F.2d 1486, 1492-95 (8th Cir.1993) (deprivation of meaningful appellate review under the two-tier system is a violation of due process).
Proportionality review satisfies due process when a state court compares the defendant’s case with other
similar
cases.
See Kilgore,
124 F.3d at 986 (emphasis added). Where a state creates a right, such as a defendant’s right to a review of his sentence, the Fourteenth Amendment entitles him to procedures to ensure that the right is not arbitrarily denied.
Foster v. Delo,
39 F.3d 873, 882 (8th Cir.1994) (finding no error in conducting a relevant “reasoned” review). If this due process requirement is met, the court will look no further.
Chambers,
157 F.3d at 570 . Proportionality review has been upheld in a comparison that defined “similar” cases narrowly, in that a murder during a robbery was compared to other murders during robberies.
Hall v. Luebbers,
296 F.3d 685, 700 (8th Cir.2002),
cert. denied
— U.S. -, 123 S.Ct. 1638 , 155 L.Ed.2d 497 (2003). Accordingly, the court finds that Palmer had a “substantial and legitimate expectation” that the state statute requiring proportionality review that compared similar crimes at two levels would be followed. The validity of the proportionality review undertaken in Palmer’s case involves two issues. First, whether the proportionality review was proper (in the sense that the comparisons were appropriate) and, second, whether Palmer received the benefit of a two-tiered review.
i. Proper Comparison
The Nebraska statute plainly requires “the Supreme Court to review and analyze
all
criminal homicides committed under the existing law in order to insure that each case produces a result similar to that arrived at in other cases with the same or similar circumstances.” Neb.Rev. Stat. § 29-2521.01 (Reissue 1985) (emphasis added). The purpose of the statute, “to compensate for the lack of uniformity in charges which are filed as a result of similar circumstances,” was expressed in legislative findings incorporated into the law. Neb.Rev.Stat. § 29-2521.01. The legislature then imposed an obligation on the Supreme Court to review and analyze all criminal homicides committed after April 20, 1973.
Palmer III,
399 N.W.2d at 746 . As part of the review and analysis, the Supreme Court was to “examine (1) the facts including mitigating and aggravating circumstances, (2) the charges filed, (3) the crime for which defendant was convicted, and (4) the sentence imposed.” Neb.Rev. Stat. § 29-2521.02;
Palmer III,
399 N.W.2d at 746-47 (Krivosha, C.J., concurring in part and dissenting in part).
This court agrees with then-Chief Justice Krivosha that
[t]he plain language of the act seems to make it clear that all criminal homicide cases are to be reported to the Supreme Court and that the Supreme Court, in conducting its review, is to look at all of these cases and to then compare the case on appeal with those other cases having
same or similar circumstances, not penalties,
to determine whether the imposition of the death penalty in the case on appeal is more severe than that imposed in other cases having same or similar circumstances.
Id.
at 747 (emphasis added). Thus, the court finds the Nebraska Supreme Court majority erred in
Palmer III
when it ef
*1042
fectively rewrote the statute to require comparison to other
death sentences
rather than to other
“criminal homicides
” or at least to all other
first degree murders.
Moreover, because the statute created a liberty interest and a substantial and legitimate expectation that the statute would be followed, this error is of constitutional proportions and amounts to a denial of due process.
The statute, as interpreted by the Nebraska Supreme Court in
Palmer III,
399 N.W.2d at 733-37 , cannot afford meaningful appellate review to ensure that the death penalty is not applied in an arbitrary or capricious manner.
See State v. Simants,
197 Neb. 549 , 250 N.W.2d 881, 890 (1977) (stating, before the legislature enacted proportionality review, that, in order to satisfy the requirements of
Gregg v. Georgia,
428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), the Supreme Court would guarantee that the death penalty was not imposed in an arbitrary and capricious manner by comparing “each capital case under review with those previous cases in which the death penalty has or
has not
been imposed”) (emphasis in original). The method of comparison adopted in
Palmer III
is illogical and renders proportionality review a nullity.
See State v. Lotter,
255 Neb. 456 , 586 N.W.2d 591, 637 (1998) (Connolly, J., concurring),
modified in nonrelevant part on rehearing,
255 Neb. 889 , 587 N.W.2d 673 (1999). Any proportionality review conducted under the criteria of
Palmer III
is meaningless. Finding a sentence of death “no greater than or disproportionate to” another sentence of death is a fallacy since a death penalty cannot be “greater than or disproportionate to” another death sentence.
Id.
at 638. Limiting proportionality review to death sentence cases is irrational and destroys the analytic value of proportionality review itself.
State v. Bey,
137 N.J. 334 , 645 A.2d 685, 690 (1994) (establishing the universe of cases as those that are death-eligible). Limiting review to cases in which the death penalty has been imposed is like looking for race discrimination in public transportation by comparing only those riding in the back of the bus.
See Palmer III,
399 N.W.2d at 752 .
Had a proportionality review been properly performed in Palmer’s case, as then-Chief Justice Krivosha observed in his concurrence and dissent, the result would have been fifty-seven robbery/murders to compare to Palmer’s crime, only six of which resulted in a sentence of death (10.5 percent as opposed to 89.5 percent of similar crimes that received a sentence of life).
Id.
at 752-53 (noting the similar cases “clearly exemplify that what Palmer did, while morally repugnant and deserving of the maximum punishment permitted by law, was really no different from what many others have done and for which they received a life sentence.”). Thus, the finding that Palmer’s death sentence was proportionate was error. The finding was not only incorrect but was an unreasonable application of Supreme Court precedent.
Accordingly, the statute, as interpreted, violates the maxim announced in
Godfrey v. Georgia,
446 U.S. 420, 427 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980), that “the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” The proportionality review is aimed at narrowing the class of capital defendants, separating those murders that warrant the extreme sanction of death from those that do not.
Id.
Comparison to other sentences of death cannot perform this function.
See
David C. Baldug et al.,
Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999),
81 Neb. L.Rev. 486, 519 n. 105 (2002) (noting “It is
*1043
clear that the limitation of comparison cases by the sentencing courts to death cases minimizes the capacity of trial court proportionality to maintain consistency in sentencing outcomes”). The court finds that the Nebraska Supreme Court violated Palmer’s due process rights when it arbitrarily applied an unconstitutional proportionality paradigm.
ii. Two-Tiered Review
Palmer asserts that he was denied recourse to the two-tiered system when the Nebraska Supreme Court applied a different comparison in its proportionality review than the sentencing panel had. The sentencing panel compared Zimmerman’s murder to other first degree murders. On direct review, the Nebraska Supreme Court compared the murder to other cases in which the death penalty was imposed.
[I]n some of our prior decisions we have indicated that the proportionality review in all death penalty cases is a comparison of the facts and circumstances in all first degree murder cases, whether the penalty imposed was death or life imprisonment. Upon further consideration of this question we have concluded that the review should include only those cases in which the death penalty was imposed.
Palmer III,
399 N.W.2d at 736 .
This change in the comparison formula abrogated Palmer’s right to an automatic, mandatory review of the sentencing court’s proportionality analysis. The Supreme Court’s reformulated proportionality analysis was not subject to any review (save by this court). Palmer had a statutory right to: (1) have the sentencing panel conduct a proportionality review, and (2) have the determination of that sentencing panel reviewed in the Nebraska Supreme Court.
See, e.g., Rust v. Hopkins,
984 F.2d at 1493 (regarding the right to two-tiered determination of aggravating circumstances based on facts proved beyond a reasonable doubt). “While created by state law, these are not ‘procedural right[s] of exclusively state concern,’ they are liberty interests protected by the Fourteenth Amendment.”
Id.
(quoting
Hicks v. Oklahoma,
447 U.S. at 346 , 100 S.Ct. 2227 ). Accordingly, although an appellate court can sometimes “cure” sentencing deficiencies, such is not the case with a deprivation of the two-tiered scheme. “The whole point of the two-tier sentencing procedure is that the initial determination is reviewed by an independent appellate court,” a right that “would be subverted if the Nebraska Supreme Court could step in and fully perform the work of the sentencing panel.”
Rust v. Hopkins,
984 F.2d at 1493 .
When the Nebraska Supreme Court re-sentenced Palmer using a different universe of defendants to determine proportionality than the sentencing panel had used, the Nebraska Supreme Court acted as an independent and unreviewable sentencing panel. This action deprived Palmer of a proper sentencing procedure in the trial court, an error comparable to that which led to reversals in
Rust v. Hopkins,
984 F.2d at 1493 , and
State v. Reeves,
604 N.W.2d at 166 . Palmer was deprived of the entire first tier of the sentencing procedures in Neb. Rev. Stats. §§ 29-2520, 29-2521, and 29-2522, and further deprived of the second tier of appellate review set forth in sections 29-2521.02 and 29-2521.03.
Accord Reeves,
604 N.W.2d at 166 . Accordingly, the court finds Palmer’s right to due process was violated when the Nebraska Supreme Court applied a different proportionality review to Palmer’s case than the sentencing panel had performed,
iii. Appellate Resentencing
Additionally, Palmer asserts that the failure of the Nebraska Supreme Court to conduct a proper proportionality
*1044
review amounts to impermissible “appellate resentencing” in violation of the Due Process Clause. This court agrees. As it had in
Rust ,
“[t]he Nebraska Supreme Court did not merely ‘review’ the determinations of the sentencing panel, it effectively resentenced [the defendant] under a standard it had created that very same day.”
Rust v. Hopkins,
984 F.2d at 1493 . This deprivation of meaningful appellate review is an independent violation of Palmer’s constitutional rights.
Id.
When a state-created liberty interest is taken away in sentencing, the violation is far more serious than when no state law entitlement is jeopardized, or when an appellate “cure” is authorized by state law.
See id.
at 1493 (declining to apply
Clemons v. Mississippi,
494 U.S. 738, 747 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990), which authorizes an appellate court to remedy sentencing errors, to Nebraska’s two-tiered system).
Supreme Court precedent requires appellate review of capital sentences to prevent unconstitutionally arbitrary and capricious infliction of the death penalty.
See Reeves v. Hopkins,
76 F.3d 1424, 1428 (8th Cir.1996). Although there is nothing generally constitutionally objectionable in a state appellate court’s finding of facts, even in the first instance (which may be necessary to assure that Eighth Amendment capital sentencing “channeling” concerns are satisfied to correct minor errors), appellate factfinding and reweighing cannot be applied to an entirely void sentencing which would require completely new fact findings.
Id.
The validity of appellate reweighing depends on state law.
Id.
at 1428-29 .
See also Clemons,
494 U.S. at 752-54 , 110 S.Ct. 1441 (authorizing a state appellate court to either reweigh or conduct harmless error review without offending federal constitutional principles
if state law authorizes
an appellate court to take such action). It is now clear that the Nebraska Supreme Court lacks the necessary authority under state law to resen-tence a defendant.
State v. Reeves,
604 N.W.2d at 163 . When the Supreme Court acts as an unreviewable sentencing panel in violation of state law, it denies a defendant’s right to due process.
Id.
at 166.
The court finds that the Supreme Court’s application of a different proportionality review to Palmer’s case than that applied by the sentencing court also amounted to prohibited appellate resen-tencing in violation of state law and consequently in violation of federal due process.
b. “Exceptional Depravity” Aggravator
i. Vagueness
Palmer asserts that the “exceptional depravity” prong of section 1(d) is unconstitutionally vague. When Palmer’s third conviction became final on October 5, 1987,
23
certain precepts of death penalty jurisprudence were clearly established.
In
Furman v. Georgia,
408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the Supreme Court found the death penalty, as applied in most states, unconstitutional. After
Fuman,
if a state wished to authorize capital punishment, it would have to tailor and apply its law in a manner that would avoid the arbitrary and capricious infliction of the death penalty.
Id.
at 294-95 , 92 S.Ct. 2726 (concurring opinion). The state “must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ”
Godfrey v. Georgia,
446
*1045
U.S. 420, 428, 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) (citations omitted).
The Nebraska death penalty scheme, Neb.Rev.Stat. § 29-2519
et seq.,
was amended in 1973 by adding aggravating and mitigating factors to address the concerns expressed in
Furman. See
Neb. Rev.Stat. §§ 29-2519 to 29-2546 (Reissue 1995);
Palmer III,
399 N.W.2d at 754 (Krivosha, C.J., concurring and dissenting). The death penalty statute was again amended in 1978 to provide for a proportionality review.
Palmer III,
399 N.W.2d at 725 . The Nebraska statutory capital sentencing procedures that were in effect at the time that Palmer was convicted and sentenced were substantially similar to those enacted following
Furman. See State v. Gales,
265 Neb. 598 , 658 N.W.2d 604, 612 (2003).
The Eighth Amendment requires that state law define with reasonable specificity the circumstances in which the death penalty is to be imposed and articulate guidelines to provide a factfinder with principled means to distinguish a case in which the death penalty is appropriate from those cases in which it is not.
Maynard v. Cartwright,
486 U.S. 356, 362-63 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988). Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment. Such challenges characteristically assert that the questioned provision fails adequately to inform the factfinders what they must find in order to impose the death penalty and as a result leaves them and the appellate courts with the kind of open-ended discretion held invalid in
Furman .
24
Id.
at 361 , 108 S.Ct. 1853 . For a capital sentencing scheme to comply with the Eighth Amendment, “it must perform a narrowing function with respect to (1) the class of persons eligible for the death penalty and must also ensure (2) that capital sentencing decisions rest upon an individualized inquiry.”
Gales,
658 N.W.2d at 614 (describing eligibility phase and selection phase of capital sentencing). To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment.
Coker v. Georgia,
433 U.S. 584, 592 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977). To render a defendant eligible for the death penalty in a homicide case, the trier of fact must convict the defendant of murder and find one “aggravating circumstance” (or its equivalent) at either the guilt or penalty phase.
See, e.g., Zant v. Stephens,
462 U.S. 862, 878 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983).
A valid aggravating circumstance must not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder, and it must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.
Id.
at 877 , 103 S.Ct. 2733 . Also, the aggravating circumstance may
not be
unconstitutionally vague.
Godfrey,
446 U.S. at 428 , 100 S.Ct. 1759 (invalidating the aggravator “outrageously or wantonly vile, horrible and inhuman” because “[a] person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman’ ”).
*1046
A sentencing decision must also be based on the facts and circumstances of the individual and his crime.
Zant,
462 U.S. at 879 , 103 S.Ct. 2733 . The Nebraska scheme thus' consists of an “eligibility decision,” in which there is a determination of the existence of one or more of the prescribed aggravating circumstances that render a defendant convicted of a capital crime eligible for a sentence of death, and a “selection decision,” in which the sen-' tencer determines whether a defendant eligible for the death penalty should in fact receive it, based upon an individualized determination of the character of the individual and the circumstances of the crime.
See Tuilaepa v. California,
512 U.S. 967, 971 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994);
Gales,
658 N.W.2d at 614 .
The Nebraska Supreme Court has interpreted Neb.Rev.Stat. § 29 — 2523(l)(d) as having two components, which the word “or” divides.
See State v. Moore,
210 Neb. 457 , 316 N.W.2d 33, 41 (1982) (“[aggravating circumstance (l)(d) ... describes in the disjunctive two separate circumstances [especially heinous and exceptionally depraved] which may operate in conjunction with or independent of one another”). The two prongs are not separate factors, however; each of the prongs simply purports to be justification for the application of the aggravating factor.
Harper v. Grammer,
895 F.2d 473, 479 (8th Cir.1990). The validity of the “exceptional depravity” prong of the aggravator, both on its face and as applied, is at issue in this case. Neb.Rev.Stat. § 29-2520(d)(l).
An aggravator similar to Nebraska’s “exceptional depravity” prong was found unconstitutional on its face for “standard-less and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury.”
Godfrey,
446 U.S. at 429 , 100 S.Ct. 1759 (involving “depravity of mind”);
see also Newlon v. Armontrout,
885 F.2d 1328, 1333-35 (8th Cir.1989). Although a constitutionally narrowed construction can validly resolve a vagueness problem, it can do so only if the narrowed construction is actually applied.
Godfrey,
446 U.S. at 428-33 , 100 S.Ct. 1759 .
The Nebraska Supreme Court had arguably narrowed the language of both prongs of § 29-2523(l)(d) in decisions that predated Palmer’s trial.
25
The Nebraska Supreme Court construed the “exceptional depravity” component of section 29-2523(l)(d) to encompass acts that are “so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life” or that encompass depravity so apparent “as to obviously offend all standards of morality and intelligence.”
See, e.g., State v. Harper,
208 Neb. 568 , 304 N.W.2d 663, 668 (1981);
Rust,
250 N.W.2d 867, 874 (1977);
Simants,
250 N.W.2d at 891 . The court also noted the importance of violence directed at unresisting victims.
See State v. Holtan,
197 Neb. 544 , 250 N.W.2d 876, 880 (Neb.1977);
State v. Peery,
199 Neb. 656 ,
*1047
261 N.W.2d 95, 104-05 (1977). Additionally, the court noted that the word “exceptional” sets a capital defendant’s acts apart from the usual or the norm of first degree murder cases.
Simants,
250 N.W.2d at 891 .
In the direct appeal of Palmer’s third conviction, the Nebraska Supreme Court recited these definitions and adopted additional “objective factors,” such as those adopted by the Arizona Supreme Court in
State v. Gretzler,
659 P.2d at 10 , to guide a sentencer’s discretion. The court stated 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.
Palmer III,
224 Neb. 282 , 399 N.W.2d 706, 731-32 .
Between Palmer’s direct appeal and his state court post-conviction action, the Eighth Circuit found the exceptional depravity prong, as narrowed in
Palmer III ,
was unconstitutionally vague on its face.
Moore v. Clarke,
904 F.2d 1226, 1229 (8th Cir.1990)
(Moore I)
(invalidating a 1980 conviction in reliance on
Godfrey
and Gregg). The Eighth Circuit later denied a petition for rehearing in the Moore case, despite the Supreme Court’s intervening ruling in
Walton v. Arizona,
497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990),
26
that the
Gretzler
factors adopted in
Palmer III
were a valid limiting construction.
See Moore v. Clarke,
951 F.2d 895 (8th Cir.1991)
(Moore
II). The Eighth Circuit continued, in later cases, to refer to the “exceptional depravity” prong of the statute as unconstitutionally vague.
See, e.g., Williams v. Clarke,
40 F.3d 1529, 1539 (8th Cir.1994). In
Joubert v. Hopkins,
75 F.3d 1232, 1243 (8th Cir.1996), however, while expressly declining to reach the issue, the Eighth Circuit stated in dicta that the narrowed construction of “exceptional depravity” adopted in
Palmer III
was clearly constitutional.
Joubert,
75 F.3d at 1244 .
Recently, the Eighth Circuit rejected a vagueness and notice challenge to the constitutionality of the “exceptional depravity” prong as applied to a sentence of death imposed in 1995.
Moore v. Kinney,
320 F.3d 767, 775 (8th Cir.2003) (en banc),
cert. denied,
— U.S.-, 123 S.Ct. 2580 , 156 L.Ed.2d 609 (June 16, 2003)
(Moore III).
In that case the court found that at the time of Moore’s resentencing in 1995, the “exceptional depravity” prong of section 1(d) had been afforded a constitutionally valid narrowing construction “achieved through the requirement of a selection of victims on the basis of age.”
Id.
at 773-75 (affirming application of either the
Palmer III
factors or the “cold, calculated” test to define “exceptional depravity”). Generally, a state appellate court may provide such a limiting construction.
Walton v. Arizona,
497 U.S. at 654-55 , 110 S.Ct. 3047 ;
Sloan v. Delo,
54 F.3d 1371, 1384-85 (8th Cir.1995) (“A state appellate court may cure an unconstitutionally vague instruction ... by establishing and then later applying a valid limiting construction”).
27
*1048
The court finds the exceptional depravity prong of the statute is facially unconstitutional because it offers nothing objective as an “inherent restraint on the arbitrary and capricious infliction of the death sentence,”
Godfrey,
446 U.S. at 428 , 100 S.Ct. 1759 , and is not “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,”
Gregg,
428 U.S. at 189 , 96 S.Ct. 2909 .
See Moore I,
904 F.2d at 1229 (“We agree with the district court’s conclusion that the text of the statute, standing alone, is not constitutionally sufficient”).
28
The question before the court is whether the sentencing bodies had the guidance necessary to cure the vaguely-worded statute at the time Palmer’s conviction became final.
See id.
The court must determine whether, either at the time Palmer was sentenced in 1984 or when his conviction became final in 1987, the Supreme Court of Nebraska had construed the “exceptional depravity” language in a manner that directed and limited the discretion of the sentencing body “so as to minimize the risk of wholly arbitrary and capricious action,” and provided a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.”
Gregg,
428 U.S. at 188-89 , 96 S.Ct. 2909 .
The court finds that at the time Palmer was sentenced in 1984 the Nebraska Supreme Court had not sufficiently narrowed the meaning of “exceptional depravity.”
See id.
at 1232 (finding insufficient narrowing with respect to 1980 sentencing). Similarly, the “exceptional depravity” prong had not been constitutionally narrowed at the time Palmer’s conviction became final in 1987. Accordingly, because there was nothing to guide the sentencing panel, the panel’s application of the vague aggravator to Palmer was error.
The court further finds that the Nebraska Supreme Court erred in
Palmer III
when it applied the
Gretzler
factors to Palmer’s case. Nothing in the exceptional depravity definitions that pre-dated Palmer’s sentencing foreshadowed the
Gretzler
factors. In
Palmer III ,
the Nebraska Supreme Court used the following cases to illustrate that the five
Gretzler
factors were present in Nebraska cases that found “exceptional depravity”:
State v. Holtan,
250 N.W.2d at 880 (involving a murder during a robbery);
29
State v. Simants,
250 N.W.2d at 891 (involving the sexual assault and murder of a ten-year-old girl and five members of her family; finding depravity in three out of five murders: one involving first degree sexual assault, one involving sexual molestation of an elderly victim’s body after death, and one involving pubic bruising on a seven-year-old victim);
30
State v. Peery,
261 N.W.2d at 104 (involving murder and robbery where victim was bound, “shot once between the eyes, once in the right temple, and once when the mouth was open, the gun thrust into her
*1049
mouth, and a bullet was fired into the roof of the mouth directly into the brain,” noting evidence of torture in firing gun into mouth if it were the first shot and “an attack on the body after death” if it were not);
State v. Otey,
205 Neb. 90 , 287 N.W.2d 36 (1979) (involving a finding of torture, sadism, sexual abuse, and the imposition of extreme suffering in infliction of over fifteen stab wounds to victim pleading for mercy);
State v. Harper,
304 N.W.2d at 668 (involving slow and agonizing deaths by poisoning with a carcinogen; murders were also premeditated, coldly planned in advance and calculated);
31
State v. Moore,
316 N.W.2d at 41 (involving murders of cab drivers found to be coldly planned as part of robberies and repetitive, where victims were chosen on the basis of age); and
State v. Reeves,
216 Neb. 206 , 344 N.W.2d 433, 447 (1984) (involving brutal double murders and stabbings; the 1(d) aggravator was found to apply to the murder that involved “horrible sexual abuse and the imposition of extreme suffering,” but not to the murder that did not involve sexual assault, where death occurred swiftly and suddenly).
32
The court is unable to see the connection between these cases and the factors set forth in
Gretzler .
Although
Peery
and
Holtan
involve robbery/murders, the facts of the Zimmerman murder equally resemble the facts in cases that pre-dated the sentencing in which application of the section 1(d) factor was rejected.
See State v. Rust,
250 N.W.2d at 874 (holding “exceptional depravity” aggravator did not exist where bank robber repeatedly shot helpless civilian who was assisting police);
State v. Stewart,
197 Neb. 497 , 250 N.W.2d 849 (1977) (holding “exceptional depravity” aggravator did not apply to defendant, who came “prepared to defend himself’ with a gun, shot van driver at point blank range in the back of the head, shot second victim in the eye, and afterwards set fire to the van in order to cover up the murder and shooting).
33
Moreover, even if the
Gr-etzler
factors are valid, the facts of Palmer’s case do not support their application. On direct appeal, the court found the evidence supported application of the “helplessness” factor and the “infliction of gratuitous violence” factor.
Palmer III,
399 N.W.2d at 732 . The Nebraska Supreme Court characterized
the murder itself
as the infliction of gratuitous violence, since the physical abuse of the victim was not necessary to complete the robbery.
Id.
(emphasis added).
As noted in the discussion on the “exceptional depravity” aggravator, an aggra-vator is intended to narrow the class of murderers, creating a subclass of murderers who deserve the death penalty. The
*1050
Nebraska Supreme Court’s method would instead narrow the class of murderers, creating a subclass of robber/murderers. Robber/murderers are felony murderers, but the death, penalty cannot be imposed on every felony murderer; the class must be narrowed since capital crimes must reflect a consciousness materially more “depraved” than that of any person guilty of murder.
Godfrey,
446 U.S. at 443 , 100 S.Ct. 1759 . “In order for aggravating circumstance (l)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence.”
State v. Hunt,
220 Neb. 707 , 371 N.W.2d 708, 721 (1985). Even the description of “infliction of gratuitous violence” in
Gretzler
itself does not fit the facts of Zimmerman’s murder. Noting the presence of the factor in another case, the court stated that the
defendant shot the female victim twice in the chest, dragged her into the bedroom, and then shot her four more times in the head for no apparent reason. He shot the male victim three times, and after his victim had fallen, shot him once more in the back. He then began kicking the male victim in the face repeatedly, at a time when the victim was already unconscious or dead.
Gretzler,
659 P.2d at 11 . The court finds the evidence adduced at Palmer’s third trial does not support a finding of infliction of gratuitous violence, separate and apart from the violence attendant to the murder by strangulation.
Helplessness as an aggravator ordinarily applies to the victim’s
status
as helpless
(i.e.,
age, infirmity, limited mental capacity, etc.), not to the fact of tying a victim up.
See, e.g., Arizona v. Zaragoza,
135 Ariz. 63 , 659 P.2d 22, 28 (1983) (finding that advanced age and limited mental capacities demonstrate helplessness). Also, the “helplessness” factor alone, without consideration of other circumstances present in a particular case, will not compel a finding of heinousness or depravity.
Gretzler,
659 P.2d at 11 . Notably, the medical examiner testified that he found no evidence in this case that the victim’s hands had been bound. Moreover, whatever the validity of the
Gretzler
factors, they were not applied by the sentencing panel in the first instance.
Although the Nebraska Supreme Court also found the Zimmerman murder “heinous,” the evidence does not support that finding, as construed to mean torture.
See State v. Rust,
250 N.W.2d at 874. Zimmerman’s physical injuries (a collapsed wind pipe and head injuries) were connected to the strangulation and assault. Such injuries cannot be said to equate to torture.
ii. Lack of Notice
Palmer further asserts that the Nebraska Supreme Court’s post hoc construction of the aggravator deprived him of constitutional notice. The Nebraska Supreme Court’s “reformulation” of the aggravator occurred in his own direct appeal.
See Palmer III,
399 N.W.2d at 728-29 .
At the time Palmer was tried, convicted and sentenced, “exceptional depravity” had been defined to mean that either: (1) the victims were helpless or unresisting,
Holtan,
250 N.W.2d at 880 ; (2) the act itself was “so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life,”
Rust,
250 N.W.2d at 874 ; or (3) the depravity is so apparent “as to obviously offend all standards of morality and intelligence,”
Simants,
250 N.W.2d at 891 . As noted earlier, Eugene Zimmerman’s murder does not meet those criteria. Under those definitions, the available constructions could not have alerted Palmer to the conduct that would implicate a death sentence. A defendant’s right to notice and to fair warning of the conduct that impacts upon his liberty is a basic principle long recognized
*1051
by the Supreme Court.
Bouie v. City of Columbia,
378 U.S. 347, 350-51 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964);
In re Oliver,
333 U.S. 257, 273 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948). Palmer’s due process rights were first violated when he was deprived of advance notice pf the factors that would make him eligible for the death penalty, and were later violated by the Nebraska Supreme Court’s post hoc application of its newly-defined “exceptional depravity” ag-gravator to his case.
In some circumstances, a reviewing court can salvage a facially-vague aggravator by construing it to provide the sentencing body with objective criteria for applying the statute.
See Walton,
497 U.S. at 653-54 , 110 S.Ct. 3047 ;
Godfrey,
446 U.S. at 428 , 100 S.Ct. 1759 . The problem here is that the sentencing body was never provided with the definition of the narrowed aggravator. The sentencing body, unlike the three-judge panel in the 1995 resen-tencing of Carey Dean Moore in
Moore III,
was never given an opportunity to apply the reviewing court’s construction.
Cf. Moore III,
320 F.3d at 776 . The adversarial process was complete when the Nebraska Supreme Court decided the criteria on which it would rely to determine whether Palmer would be sentenced to death.
A post hoc sentencing scheme such as this denies defendants due process in the most basic sense, for they have no prior notice of the law to be used against them.
Accord, Osborne v. Ohio,
495 U.S. 103, 115 , 110 S.Ct. 1691 , 109 L.Ed.2d 98 (1990) (holding new construction of statute may be applied to conduct occurring prior to construction only where defendant has fair warning of new application);
Marks v. United States,
430 U.S. 188, 191 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977) (same). In this case, the aggravator was construed and narrowed after a full presentation of the evidence and without any notice to the defendant as to the standards to be applied in making the decision on imposition of the death penalty. The failure to first clearly set out the construction of the ag-gravator and the subsequent failure to advise the defendant of that construction is contrary to clearly established Supreme Court precedent, specifically,
Bouie,
378 U.S. at 350-54 , 84 S.Ct. 1697 (1964).
Bouie
makes it clear that the Fourteenth Amendment is violated when a person is required to speculate as to the application of a statute.
Id.
Moore III
does not alter this analysis.
Moore III
involved a resentencing in 1995. The requisite notice to Moore of the narrowed definition of “exceptional depravity” had been provided by the factors set out in
Palmer III ,
along with the language of the statute,
pre-Palmer
constructions, the definition set out in
Joubert,
75 F.3d 1232, 1243 , the definition found in the earlier
Moore
case,
State v. Moore,
316 N.W.2d at 41 (regarding selection on basis of age), and Supreme Court affirmance of the
Gretzler
factors.
Moore III,
320 F.3d at 776, 778 (noting Moore had “ample notice in 1994 and 1995 that the state planned to pursue a narrowed definition of ‘exceptional depravity’ which would include the notion that Moore selected his victims on the basis of their ages”). Palmer had no such notice, since the “coldly calculated” definition did not fit the fact pattern in Palmer’s case and the
Palmer III
(Gretzler) factors had not been elucidated until his own appeal. The fact patterns identified by the Supreme Court to justify post hoc imposition of the
Gretzler
factors simply do not support application of the “inflicted gratuitous violence” and “helplessness of the victim” factors to Palmer.
See
discussion in section II(B)(4)(b)(i). Any infliction of gratuitous violence in those cases was much more severe than that involved in the Zimmerman murder and generally involved torture, sadism, sexual abuse, or abuse of the body after death.
*1052
iii. Two-Tiered System
Palmer again asserts the Nebraska Supreme Court’s application of a different definition of exceptional depravity to the facts of his case than that applied by the sentencing panel denies him of his liberty interest in a two-tiered review and amounts to improper appellate resentenc-ing. The court finds that application of a reformulated aggravator by the Nebraska Supreme Court violated Palmer’s due process rights for the same reasons as application of a reformulated proportionality paradigm did.
See
discussion in section H(B)(4)(a)(ii).
iv. Appellate Reweighing
In a state where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment.
Espinosa v. Florida,
505 U.S. 1079, 1081 , 112 S.Ct. 2926 , 120 L.Ed.2d 854 (1992). Nebraska is a weighing state.
Williams v. Clarke,
40 F.3d at 1535 . The sentencing panel’s reliance on the unconstitutionally vague “exceptional depravity” prong makes Palmer’s death sentence infirm.
Stringer v. Black,
503 U.S. 222, 232 , 112 S.Ct. 1130 , 117 L.Ed.2d 367 (1992) (using invalid aggravator in weighing state amounts to impermissible thumb on death’s scale). An aggravating circumstance is invalid if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor.
Id.
at 235 , 112 S.Ct. 1130 . “[I]f a weighing state decides to place capital-sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances.”
Espinosa,
505 U.S. at 1082 , 112 S.Ct. 2926 .
The court finds that the Nebraska Supreme Court’s application of an invalid aggravator to Palmer on direct review violates the Eighth Amendment. Moreover, any reweighing by the state post-conviction court in
Palmer TV
cannot cure the infirmity.
See Reeves,
604 N.W.2d at 163 .
5. Jury Finding of Aggravator (Claim XIII)
a. Applicability/Retroactivity of Ring
In
Ring v. Arizona,
536 U.S. at 589 , 122 S.Ct. 2428 , the Supreme Court held that criminal defendants have a Sixth Amendment right to a jury determination of any fact that increases their maximum punishment. The court must determine whether the
Ring
decision should be retroactively applied to this habeas corpus action. Notably, Palmer has preserved this issue; he has raised it throughout these proceedings.
34
See,
e.g., St. Ct. File, Vol. IV at 629, motion for jury trial on sentencing (April 12, 1984);
Palmer III,
399 N.W.2d at 724-25 (addressing issue on direct appeal). District and appellate courts are allowed to decide the retroactive applicability of a new rule of constitutional law announced by the Supreme Court in reviewing an initial petition.
See United States v. Mora,
293 F.3d 1213, 1218 (10th Cir.),
cert. denied,
537 U.S. 961 , 123 S.Ct. 388 , 154 L.Ed.2d 315 (2002);
Ashley v. United States,
266 F.3d 671, 673 (7th Cir.2001);
United States v. Lopez,
248 F.3d 427, 431 (5th Cir.2001);
United States v. Sanders,
247 F.3d 139 , 146 n. 4 (4th Cir.),
cert denied,
534 U.S. 1032 , 122 S.Ct. 573 , 151 L.Ed.2d 445 (2001) (all holding that 28 U.S.C. § 2244 (b)(3)(C), which requires a retroactivity determination to be made by the Supreme Court itself, does not apply to initial petitions).
35
Accord, United States
*1053
v. Moss, 252 F.3d 998, 997-1001 (8th
Cir.2001) (addressing and rejecting the argument that
Apprendi
is a watershed rule of constitutional procedure that may be applied to habeas petitions, an issue that has not been resolved by the Supreme Court).
New rules of substantive criminal law are presumptively retroactive.
See Santana-Madera v. United States,
260 F.3d 133, 138 (2d Cir.2001),
cert. denied,
534 U.S. 1083 , 122 S.Ct. 817 , 151 L.Ed.2d 701 (2002). As a general rule, “new constitutional rules of criminal
procedure
will not be applicable to those cases which have become final before the new rules are announced.”
Teague v. Lane,
489 U.S. at 288, 310, 109 S.Ct. 1060 (1989) (emphasis added). Courts employ a three-step inquiry to determine when new rules of criminal procedure apply retroactively on collateral review.
O’Dell v. Netherlands
521 U.S. 151, 156 , 117 S.Ct. 1969 , 138 L.Ed.2d 351 (1997). First, the court must determine the date on which the defendant’s conviction became final.
Id.
Second, the court must decide whether the Supreme Court’s ruling constitutes a new rule of constitutional criminal procedure;
Teague
is inapplicable unless the court finds both that the rule is new and that it involves a procedural rather than a substantive change.
Bousley v. United States,
523 U.S. 614, 620 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998).
36
Third, a new procedural rule may nonetheless apply if it falls within one of two narrow exceptions to
Teague’s
general rule barring retroactivity.
37
See United States v. Sanders,
247 F.3d 139, 148 (4th Cir.2001).
There is no dispute that Palmer’s conviction became final well before the Supreme Court’s
Ring
decision was announced in 2002. Similarly, it cannot be seriously disputed that
Ring
announces a new rule. To determine “newness,” courts are directed to “survey the legal landscape as it then existed,” and to determine whether a court considering a petitioner’s claim at the time his conviction became final “would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.”
Lambrix v. Singletary,
520 U.S. 518, 526 , 117 S.Ct. 1517 , 137 L.Ed.2d 771 (1997). Prior to
Ring ,
precedent instructed that the finding of aggravating facts fell within the traditional scope of capital sentencing and could legitimately be made by a judge instead of a jury.
See Jones v. United States,
526 U.S. 227, 251 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999). Whether viewed as a threshold question obviating the need for a
Teag-ue
inquiry, or as the second step in a
Teague
analysis, the determination of
Ring’s
retroactivity largely turns on whether
Ring
establishes a substantive or procedural rule.
See, e.g., Summerlin v. Stewart,
341 F.3d 1082 (9th Cir.2003) (en banc);
Santana-Madera v. United States,
260 F.3d at 137-38 (“[w]hether or not a new rule of law announced by the Supreme Court is to be applied retroactively in criminal cases on habeas review for the first time depends largely on whether the rule is substantive or procedural”). Un
*1054
like strictly procedural rules, new rules of substantive criminal law are presumptively retroactive.
Bousley v. U.S.,
523 U.S. 614, 620 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998).
The substantive/procedural question, in turn, depends on an analysis of just what “new rule” can be gleaned from
Ring .
If
Ring
stands only for the proposition that every element of a crime must be submitted to a jury, as an extension of
Apprendi v. New Jersey,
530 U.S. at 490 , 120 S.Ct. 2348 , then it could be characterized as a procedural rule which should be analyzed under
Teague
standards.
See, e.g., Sanders,
247 F.3d at 147 (stating that
“Appren-di
constitutes a procedural rule because it dictates what fact-finding procedure must be employed to ensure a fair trial”). If, on the other hand,
Ring
is read as refining the definition of a capital offense, then it is a substantive decision.
See Jones,
526 U.S. at 251 n. 11, 119 S.Ct. 1215 (noting constitutional concerns inherent in judicial determination of facts that “raise a sentencing ceiling”);
Davis v. United States,
417 U.S. 333, 346-47 , 94 S.Ct. 2298 , 41 L.Ed.2d 109 (1974) (holding that a defendant may collaterally attack a conviction based on an intervening substantive change in the interpretation of a federal criminal statute).
Substantive rules determine the meaning of criminal statutes.
Bousley,
523 U.S. at 620 , 118 S.Ct. 1604 (holding that a finding that effectively alters the elements of a crime is a substantive rule). Decisions announcing substantive rules often ad

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2294645. Public record. Not legal advice.