                            ___________

                       Nos. 95-1098/95-1188
                            ___________

Randolph K. Reeves,             *
                                *
          Appellee/Appellant,   *
                                *
     v.                         * Appeal from the United States
                                * District Court for the
Frank X. Hopkins, Warden of the * District of Nebraska.
Nebraska Penal and Correctional *
Complex,                        *
                                *
          Appellant/Appellee.   *
                           ___________

                  Submitted:   September 11, 1995

                       Filed: February 8, 1996
                            ___________

Before BOWMAN, BRIGHT, and BEAM, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

     Randolph K. Reeves was convicted of two counts of felony
murder and sentenced to death by the State of Nebraska.        His
convictions and sentences were affirmed by the Nebraska Supreme
Court both on appeal and in postconviction actions. The United
States   Supreme  Court   vacated   the  state   supreme   court's
postconviction decision and remanded for reconsideration in light
of intervening Supreme Court decisions. On remand, after hearing
argument from both sides, the Nebraska Supreme Court affirmed
Reeves' death sentences.     Reeves then petitioned the federal
district court for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court granted the writ and the state appeals.      We
reverse in part and remand.
I. BACKGROUND


     In the early morning hours of March 29, 1980, Randy Reeves
killed Janet Mesner and Victoria Lamm.      Reeves, a construction
worker idled by a rainy day, had begun drinking the previous day at
8:00 or 9:00 a.m., and continued drinking at various locales until
after midnight.    At Reeves' last stop, he ingested some peyote
buttons, and, according to friends, was in a near stupor when he
left to go visit Ms. Mesner, the live-in caretaker of the Quaker
meetinghouse. Ms. Mesner and Reeves1 were distantly related, both
of the Quaker faith, and had been good friends all of their lives.
They had never had any sort of romantic relationship.


      Evidently, Reeves climbed into the meetinghouse through a
kitchen window, obtained a kitchen knife, went upstairs and
assaulted Ms. Mesner in her bedroom. Ms. Mesner was stabbed seven
times. Ms. Lamm, who was visiting with her young daughter, walked
in on the struggle and was also stabbed by Reeves.      Ms. Lamm's
wounds were almost immediately fatal, but Ms. Mesner was able to
make her way downstairs to summon help. Police found Ms. Mesner
still conscious. She identified her attacker as Reeves, expressing
shock and disbelief that he would do such a thing to her and Ms.
Lamm.


     Police found Ms. Mesner's bedroom in a shambles, indicating a
great struggle. There, they discovered Reeves' underwear, sock,
and billfold. Soon thereafter, police found Reeves walking across
a major thoroughfare, covered with blood, his fly undone and his
genitals exposed. Reeves was arrested and given Miranda warnings.
He waived his rights and made no attempt to deny his actions.
Reeves stated that he was too drunk to remember much, but that he
did remember stabbing and raping Ms. Mesner.


    1
     Reeves is an American Indian who was adopted and raised by a
Quaker family.

                               -2-
     Reeves' blood alcohol level was .149 when it was tested
approximately three hours after the assault. According to trial
testimony, Reeves' blood alcohol level may have been as high as
.230 at the time of the crimes. There was conflicting testimony as
to whether the peyote buttons he ingested would have exaggerated or
counteracted the effects of the alcohol, but, either way, there is
no doubt that Reeves' capacity to appreciate what he was doing was
grossly impaired by his voluntary drug and alcohol abuse on the
night of the murders.


     At trial, Reeves did not dispute that he committed the crimes.
Rather he argued that he was not guilty either because he did not
have the ability to form the requisite intent, or, because he was
insane at the time of the murders. The jury found Reeves guilty of
both counts of felony murder, and a three-judge sentencing panel
subsequently imposed the death penalty on each count. On appeal,
the Nebraska Supreme Court found that the sentencing panel had
improperly applied one aggravating circumstance and had improperly
failed to apply one mitigating circumstance in determining Reeves'
sentences. State v. Reeves, 344 N.W.2d 433, 447-48 (Neb.) (Reeves
I), cert. denied, 469 U.S. 1029 (1984). Nonetheless, the Nebraska
Supreme Court affirmed the death sentences. Id. at 449.


     Reeves subsequently filed a state postconviction action, which
raised arguments as to the propriety of the aggravating
circumstances applied by the sentencing panel.        The Nebraska
Supreme Court found that those concerns had been adequately
addressed in Reeves' direct appeal and refused to reconsider them.
State v. Reeves, 453 N.W.2d 359, 385-86 (Neb.) (Reeves II),
vacated, 498 U.S. 964 (1990).     The United States Supreme Court
vacated Reeves II and remanded for reconsideration in view of its
recent Clemons decision, a case in which the Court outlined the
types of appellate reweighing of the factors underlying a death
sentence that were constitutionally unobjectionable, state law
permitting. Reeves v. Nebraska, 498 U.S. 964 (1990). In response,

                               -3-
the Nebraska Supreme Court, explicitly relying on its own
precedent, reexamined and reweighed the aggravating and mitigating
circumstances applied in Reeves' sentencings in a manner it deemed
permissible under Clemons. State v. Reeves, 476 N.W.2d 829, 835
(Neb. 1991) (Reeves III), cert. denied, 113 S. Ct. 114 (1992). As
a result of that reweighing, the Nebraska Supreme Court affirmed
Reeves' death sentences.


     Reeves then filed a petition for habeas corpus in federal
district court.     The district court granted the writ as to
sentencing, agreeing with Reeves' claim that the Nebraska Supreme
Court's reweighing of the aggravating and mitigating factors in his
case was not authorized by state law, and therefore violated his
right to be sentenced by due process of law.      Having found the
reweighing unauthorized, the district court did not consider or
resolve Reeves' other objections to his death sentences.        The
district court did consider and deny relief on several trial
claims, including Reeves' claim that, considering the state of the
evidence, the state trial court's failure to instruct the jurors on
any lesser noncapital offense, and thereby give the jury an
alternative to capital conviction or acquittal, violated his due
process rights.


     The State of Nebraska appeals the grant of the writ. Reeves
appeals the district court's denial of relief as to his claim that
he was entitled to an instruction on at least one lesser noncapital
offense.2




    2
     As explained infra, we defer our consideration of this claim
until the district court has addressed the other issues properly
presented by Reeves.

                               -4-
II.   DISCUSSION


      A. Reweighing by the State Supreme Court


     The district court's decision to grant the writ rests on two
prongs: 1) our decision in Rust v. Hopkins, 984 F.2d 1486 (8th
Cir.), cert. denied, 113 S. Ct. 2950 (1993); and 2) the district
court's exhaustive independent examination of Nebraska statutory
law. The district court properly concluded that, under Rust (and
under Clemons v. Mississippi, 494 U.S. 738 (1990), for that
matter), state appellate court reweighing of the factors underlying
a death sentence is permissible only if state law allows it.
However, the district court erred in dismissing the Nebraska
Supreme Court's assertion of authority to reweigh as an incorrect
interpretation of Nebraska law.


     The Nebraska Supreme Court is the final arbiter of Nebraska
law. Once that court has asserted its authority to reweigh based
on its own practice, our only concern is whether the resultant
configuration of state law results in a scheme that violates
federal constitutional rights. See Clemons, 494 U.S. at 746-48
(state supreme court's assertion of authority to reweigh, based on
its past practice, defeats petitioner's assertion of unqualified
state law right to have all factfinding and weighing done by
initial sentencer only); see also Hicks v. Oklahoma, 447 U.S. 343
(1980) (due process is violated when state appellate court admits
it is without authority to cure a void sentence, but affirms such
sentence nonetheless). In this case, the Nebraska Supreme Court
based its assertion of authority on its own past practice and its
interpretation of Clemons.    Reeves III, 476 N.W.2d at 835.     By
performing an exhaustive review of Nebraska statutory law in an
attempt to show the Nebraska Supreme Court the inadequacy of its
interpretation of its own authority under its own law, the district
court exceeded the bounds of federal court authority. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991) (it is not the province of

                                -5-
federal courts to reexamine state court determinations of state law
questions).


     As far as the federal constitution is concerned, in a weighing
jurisdiction,3 a state appellate court may cure a constitutional
deficiency arising from improper applications or limitations of
aggravating or mitigating circumstances in a capital case by
engaging either in reweighing, or in traditional harmless error
analysis. Clemons, 494 U.S. at 754. "Reweighing," in the case of
a sentence tainted by improper application of an aggravating
factor, may be accomplished in one of two ways.          The state
appellate court may jettison the improper factor and weigh only the
remaining aggravating and mitigating factors.4 Or, that court may
apply a corrected definition of an impermissible factor and include
it in the balance.    Id. at 751.    What an appellate court in a
"weighing" state may not do under the guise of "reweighing" is to
create an automatic rule that a death sentence will be upheld as
long as one valid aggravating circumstance remains. Id. at 751-52.


     Because Nebraska is a weighing state, it may, state law
permitting, constitutionally cure a death sentence tainted by the
improper application of an aggravating factor by reweighing. The
district court based its belief to the contrary on its independent
interpretation of Nebraska law and on Rust v. Hopkins, 984 F.2d at
1486.   As noted, the district court exceeded the bounds of its



        3
      See Williams v. Clarke, 40 F.3d 1529, 1535 (8th Cir. 1994)
(Nebraska is a weighing state), cert. denied, 115 S. Ct. 1397
(1995).
    4
      To review a death sentence tainted by an improper aggravator
under harmless error analysis, the state appellate court engages in
a similar analysis. However, rather than coming to an independent
decision as to the resultant balance, it decides whether there is
any reasonable doubt that the sentencer would have come to the same
result had the improper factor been jettisoned, or, alternatively,
been properly defined. Clemons, 494 U.S. at 752-53.

                               -6-
authority in rejecting the Nebraska Supreme Court's interpretation
of Nebraska law. The district court also misread Rust.

     In Rust, we addressed a very limited and unique situation. We
were faced with a death sentence which had been imposed under a
wrong and too lenient burden of proof. Rust, 984 F.2d at 1489,
1493 The Nebraska Supreme Court attempted to cure that grave error
by applying the correct and more rigorous "beyond a reasonable
doubt" burden on direct appeal. Id. at 1492. Relying on Hicks v.
Oklahoma, 447 U.S. 343 (1980), we found that such a procedure
violated due process because Rust had the right to have a three-
judge sentencing panel (which we analogized to the jury in Hicks)
find the relevant facts and impose his sentence in the first
instance. Rust, 984 F.2d at 1493. Because a less rigorous burden
of proof had been used below, there were no facts found for the
Nebraska Supreme Court to review, and no death sentence for it to
cure.   Id.   We found that under Nebraska's capital sentencing
scheme, appellate factfinding and sentencing in the first instance
amounted to an arbitrary and capricious disregard of state law, and
deprived Rust of his liberty interest in his life without due
process of law. Id.; see Hicks, 447 U.S. at 345-47.


     We further found that conducting an initial sentencing
proceeding on appeal, after "the entire first tier of the
sentencing process was invalid[ated]," deprived Rust of his right
to independent appellate review of his sentence (because, there
was, in essence, no sentence, not just a flawed sentence, to
review).   Rust, 984 F.2d at 1493 (emphasis added).    Because we
interpreted Supreme Court precedent to require appellate review of
capital sentences to prevent unconstitutionally arbitrary and
capricious infliction of the death penalty, we found that the
initial appellate sentencing carried out in Rust's case also
violated due process. Id.




                               -7-
     However, in Rust we also recognized that the United States
Supreme Court had explicitly found nothing constitutionally
objectionable in state appellate courts making those findings of
fact, even in the first instance, which are necessary to assure
that Eighth Amendment capital sentencing channeling concerns are
satisfied. Id.; see Clemons, 494 U.S. at 745-46. We therefore
limited our Rust decision, very carefully stating that "[a state]
appellate court is fully competent to `cure' some sentencing
deficiencies in capital cases."    Rust, 984 F.2d at 1493.     We
explained that Clemons applied to minor errors such as "improper
consideration of an invalid aggravating circumstance," but not to
entirely void sentencings requiring completely new factfindings.
Id. at 1493-95.   Nowhere in Rust did we intimate that Nebraska
could not, consistent with due process, reweigh aggravating and
mitigating circumstances to cure "minor" sentencing errors such as
those in issue in Clemons. Nor did we intimate, as indeed in view
of Clemons we could not, that such reweighing would amount to a
deprivation of a defendant's right to appeal his sentence.5   As we
have stated in other cases, whether the Nebraska Supreme Court will
engage, or has the authority to engage, in reweighing in
circumstances similar to those presented in Clemons is a question
of state law which only it can decide.6 See Moore v. Clarke, 951


    5
     We could not so intimate because Clemons specifically stated
that the examination of the record and attendant factfinding
inherent in independent appellate reweighing does not violate due
process in capital cases, and may, in fact, be necessary to assure
that the petitioner receives the individualized sentencing
consideration required by the Eighth Amendment. See Clemons, 494
U.S. at 745-50; Parker v. Dugger, 498 U.S. 308, 321 (1991).
Clemons thus renders untenable any contention that appellate
reweighing of aggravating and mitigating circumstances and the
factfinding inherent therein conflicts with a defendant's due
process rights in states with two-tier systems. Clemons, 494 U.S.
at 746-47.
     6
      The petitioner in Clemons relied on Hicks to argue that the
Mississippi Supreme Court could not, consistent with due process,
engage in reweighing because he had a statutory state law right to
have all facts found by a jury and to be sentenced by a jury. In

                               -8-
F.2d 895, 897 (8th Cir. 1991), cert. denied, 504 U.S. 930 (1992);
Harper v. Grammer, 895 F.2d 473, 480 (8th Cir. 1990).


     In Clemons, the Supreme Court rejected the very argument
accepted by the district court.         Clemons argued that the
Mississippi statutory scheme explicitly vesting death penalty
sentencing authority in the jury rendered reweighing in his case
unauthorized by state law and therefore a violation of due process
under Hicks.   Clemons, 494 U.S. at 746.     According to Clemons,
vesting factfinding and sentencing authority in the jury meant that
the appellate courts could not, consistent with state law, engage
in the "factfinding" and "sentencing" inherent in independent
appellate reweighing of the factors underlying a death sentence.
Since appellate courts had no state law sentencing authority,
appellate reweighing would violate Clemons' right not to be
deprived of a liberty interest (his life) without due process of
law. The Supreme Court rejected this argument, finding that the
state supreme court's assertion of independent authority to reweigh
tempered the statutory scheme and made unavailable Clemons' claim
to an unqualified right to exclusive jury examination or weighing
of the facts or factors underlying his death penalty. Id. at 747.
Clemons' express consideration and rejection of the argument that
appellate reweighing is constitutionally objectionable in states
where sentencing authority is statutorily vested in a lower
sentencing body makes the question one of state law. Id. at 746-
47.


     Clemons distinguished Hicks as an instance of an appellate
court admittedly acting without authority and imposing a sentence
in the first instance, rather than "cur[ing] the deprivation by


rejecting Clemons' argument, the Supreme Court looked to the
Mississippi Supreme Court's assertion of authority to reweigh, and
to its history of doing so. Clemons, 494 U.S. at 747. As the
Court said, it had no basis for disputing a state supreme court's
interpretation of its own law. Id.

                               -9-
itself reconsidering the appropriateness" of the underlying void
sentence. Id. at 747. The Supreme Court found the Mississippi
Supreme Court's independent assertion of authority to reweigh
sufficient to overcome any Hicks problem.          Id.    That the
Mississippi Supreme Court later reconsidered its interpretation of
its own law is of no moment.7 Compare Clemons v. State, 535 So. 2d
1354, 1362-63 (Miss. 1988) (court may affirm death sentence when an
invalid aggravator has been considered), vacated, 494 U.S. 738
(1990) with Clemons v. State, 593 So. 2d 1004, 1006 (Miss. 1992)
(court is without authority to affirm death sentence when an
invalid aggravator has been considered). What is relevant is that
the original assertion of authority was enough to take the question
out of the federal arena. Clemons, 494 U.S. at 747.


     Nebraska's   capital   punishment   scheme   is   similar   to
Mississippi's, except that a judge or panel of three judges, rather
than a jury, imposes the death penalty in the first instance. A
state appellate court's practice of reweighing defeats a
defendant's assertion of an unqualified due process right to have
a "jury [read sentencing panel] assess the consequences of the
invalidation of one of the aggravating circumstances [which the
jury had applied]." Id. at 747. The Nebraska Supreme Court has
expressly asserted its authority to reweigh aggravating and
mitigating circumstances.    Reeves III, 476 N.W.2d at 837; see
State v. Moore, 502 N.W.2d 227, 229-30 (Neb. 1993); see also Neb.
Rev. Stat. § 29-2521.02 (Reissue 1989 & Supps. 1992-94). Because
"[w]e have no basis for disputing [the Nebraska Supreme Court's]


    7
      We in no way intend to imply that the Nebraska Supreme Court
could not, like the Mississippi Supreme Court, reconsider its
somewhat cryptic assertion of authority to reweigh, perhaps along
the lines of the district court's thoughtful analysis.       On the
other hand, neither do we mean to suggest that the Nebraska Supreme
Court should reconsider its authority.      Our point is only that
once the Nebraska Supreme Court has stated what Nebraska law is, as
federal courts, our only concern is whether that determination
conflicts with federal constitutional rights.

                               -10-
interpretation of [Nebraska] law," and because reweighing under
Nebraska's sentencing scheme does not violate federal due process
requirements, we find Nebraska's assertion of authority to reweigh
to have been effective in Reeves' case.8 Clemons, 494 U.S. at 747;
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).


     The dissent asserts that the Nebraska Supreme Court interprets
Rust as the district court did. See infra p. 24.       However, and
aside from the precatory nature of any state court interpretation
of our decisions, the Nebraska Supreme Court has expressly and
correctly found that Rust is a limited decision, based on the
invalidity of the entire sentencing proceeding, which is
distinguishable on its facts from the "minor" sentencing errors at
issue in Clemons.    Moore, 502 N.W.2d at 229-30.     The Nebraska
Supreme Court has further emphatically rejected the proposition
that Rust forbids state appellate reweighing in the more typical
situation involving an invalid sentencing factor, and adheres to
its position that it has the authority to reweigh.    Moore, 502
N.W.2d at 229-30.


     That the Nebraska Supreme Court has chosen, in the interests
of judicial economy, to refrain from exercising its asserted
authority to reweigh, pending clarification of the scope of Rust in
cases such as the one now before us, cannot fairly be said to be an
embracement of the district court's position.       See Moore, 502
N.W.2d at 230 (declining to exercise authority to reweigh in the
interests of judicial economy). That the Nebraska Supreme Court
bowed, in State v. Ryan, 534 N.W.2d 766, 796 (Neb. 1995), to the


     8
      State appellate courts are not required to reweigh, and may
in certain cases find that remand is more appropriate or is even
required.   Clemons, 494 U.S. at 754 & n.5.    When cases have a
troublesome posture, such as that in Rust, "[a] state appellate
court's decision to conduct harmless-error analysis or to reweigh
aggravating and mitigating factors rather than remand to the
sentencing jury [will] violate[] the Constitution [as being] made
arbitrarily." Id. at 754-55 n.5.

                               -11-
district court's decision and interpretation of Rust in this case,
hardly amounts to the Nebraska Supreme Court interpreting Rust as
the district court did. Indeed, it only further highlights the
injury done to comity when federal courts reject state supreme
court interpretations of their own law.


     In fact, even the dissent acknowledges that Rust is no bar to
reweighing by the Nebraska Supreme Court.       See infra p. 24.
Rather, the dissent joins the district court in finding fault with
the Nebraska Supreme Court's interpretation its own law.

     B. Instructions


     Because of its application of Rust, the district court did not
consider all matters raised by Reeves. Reeves v. Hopkins, 871 F.
Supp. 1182, 1193 n.11 (D. Neb. 1994). Since we prefer to address
all the issues in a case at one time, rather than have a
protracted, issue by issue, series of remands, see generally Rust
v. Clarke, 960 F.2d 72, 73-74 (8th Cir. 1992), cert. denied, 113 S.
Ct. 2950 (1993),9 we return this case with instructions to consider
and decide all issues raised but not addressed by the district
court. We request that the district court make every effort to
decide these issues within 120 days. We retain jurisdiction and
will consolidate any appeal of the resolution of the undecided
issues with those issues still pending before us.

III. CONCLUSION


     We reverse in part, and remand for further proceedings
consistent with this opinion and with our instructions.



     9
      We realize that this may be a case of "do as we say and not
as we do." Nonetheless, we prefer that district courts address and
resolve all issues to avoid time-consuming remands and to ensure
that cases are fully resolved within a reasonable time frame.

                               -12-
BRIGHT, Circuit Judge, dissenting.



     I dissent.
                               I.


     To place this case in its appropriate context, we examine the
action of the Nebraska Supreme Court in this case.       The court
stated:


     We have balanced the aggravating and mitigating factors
     anew   and  have   determined   that  the   aggravating
     circumstances outweigh any statutory or non statutory
     mitigating circumstances in this case. . . . Sentences
     of death remain the appropriate penalties for Reeves.


State v. Reeves (Reeves III), 476 N.W.2d 829, 841 (Neb. 1991).


     The question for this court is from whence did the Nebraska
Supreme Court obtain and assert this power?


     The Reeves court articulates a very specific source. This
right derives from the United States Supreme Court case of Clemons
v. Mississippi, 494 U.S. 738 (1990).       As the Reeves opinion
asserts:


          In summary, Clemons v. Mississippi, 494 U.S. 738
     . . . (1990), sets forth three options available to
     appellate courts in death penalty cases where there has
     been an error concerning the trial court's finding of
     aggravating and/or mitigating circumstances. First, the
     court may analyze and reweigh the aggravating and
     mitigating circumstances itself to determine whether or
     not the scale tips in favor of the death penalty.
     Second, the court may conduct a harmless error analysis
     to determine whether or not error by the district court
     in finding aggravating or mitigating circumstances has
     prejudiced the rights of the defendant. Third, the court
     may remand the cause for a new sentencing hearing.



                              -13-
Reeves, 476 N.W.2d at 834.

     All well and good so far! The Nebraska Supreme Court asserts
a power permitted by the United States Supreme Court. But what if
the statutes of a state do not permit the sentencing options
permitted by Clemons?


     An answer is indicated by the very same Clemons case. The
Mississippi Supreme Court on remand from the United States Supreme
Court stated that the United States Supreme Court has


     settled the question from a federal constitutional
     standpoint of a state appellate court's ability to
     reweigh aggravating and mitigating circumstances . . .
     [but] we must decide, as a matter of state law, our
     authority   to  reweigh   aggravating  and   mitigating
     circumstances in order to uphold a death sentence which
     is based in part upon an improperly defined aggravating
     circumstance.


Clemons v. State, 593 So.2d 1004, 1005 (Miss. 1992).


     Reviewing its own sentencing procedures, which as the majority
notes are quite similar to those in Nebraska, the Mississippi high
court stated,


          From these statutory provisions, two things are
     clear: only the jury, by unanimous decision, can impose
     the death penalty; as to aggravating circumstances, this
     Court only has the authority to determine whether the
     evidence supports the jury's or judge's finding of a
     statutory aggravating circumstance.        There is no
     authority for this Court to reweigh remaining aggravating
     circumstances when it finds one or more to be invalid or
     improperly defined, nor is there authority for this Court
     to find evidence to support a proper definition of an
     aggravating circumstance in order to uphold a death
     sentence by reweighing.        Finding aggravating and
     mitigating circumstances, weighing them, and ultimately
     imposing a death sentence are, by statute, left to a
     properly instructed jury.


                               -14-
Id. at 1006.

     Moreover, the Mississippi Supreme Court recognized that it had
previously upheld death sentences on several occasions earlier
where there existed an invalid aggravating circumstance.        The
Clemons court then unequivocally rejected its previous opinion
(Johnson v. State, 547 So.2d 59, 60 (Miss. 1989)), which may have
contained an "indication" or "implication" for the court's
authority to reweigh under Clemons. Id. at 1006.


     Does a similar analysis apply in Nebraska?


     After following the tortured and extensive course of the
Clemons litigation in state and federal courts, this basic question
arises in state appellate review of death sentences in weighing
states such as Mississippi and Nebraska where an invalid
aggravating circumstance has been improperly weighed in with other
aggravating and mitigating circumstances and produced a death
penalty: Does the state appellate court have power under state law
to reweigh the remaining valid aggravating and mitigating
circumstances so as to sustain that penalty?


     As I have observed, Mississippi, through its Supreme Court,
has said "No."


     What has Nebraska said on this issue? The answer is plainly
"Nothing." It has never spoken on the subject. Like Mississippi's
earlier cases,10 it merely assumed it possessed the power.


     10
          The Supreme Court of Mississippi wrote:

          We acknowledge, as the United States Supreme Court
     recognized in its opinion, that this Court has upheld
     death sentences in the face of an invalid aggravating
     circumstance. See, e.g. Nixon v. State, 533 So.2d 1078,
     1099 (Miss. 1988); Lanier v. State, 533 So.2d 473, 491
     (Miss. 1988); Faraga v. State, 514 So.2d 295, 309 (Miss.

                                  -15-
     In this case, two excellent Nebraska judges serving the
federal courts, Magistrate Judge David Piester initially in
recommending habeas relief and United States District Judge Richard
Kopf in granting relief under habeas corpus, carefully examined the
Nebraska cases and the Nebraska law.


     In an extensive district court opinion, Judge Kopf reached the
following conclusions:


     the Nebraska Supreme Court wrongly read Clemons (and its
     progeny) to mean that if federal law allowed appellate
     resentencing,   state   law   also   allowed   appellate
     resentencing; . . .

     When the Nebraska Supreme court made this assumption, it
     created a state procedure that had not been authorized by
     the Nebraska Legislature.


Reeves v. Hopkins, 871 F. Supp. 1182, 1194 (D. Neb. 1994).


     The federal district court then addressed in detail the state
statutes of Nebraska relating to death sentences:


          Nebraska statutes clearly create a two-tier
     sentencing process.    Moreover, the Nebraska statutes
     differentiate the roles to be performed by the state
     district court sentencing panel and the Nebraska Supreme


     1987); Johnson v. State, 511 So.2d 1333, 1337 (Miss.
     1987); Stringer v. State, 500 So.2d 928, 945 (Miss.
     1986); Wiley v. State, 484 So.2d 339, 351 (Miss. 1986);
     Irving v. State, 498 So.2d 305, 314 (Miss. 1986); Edwards
     v. State, 441 So.2d 84, 92 (Miss. 1983). However, these
     cases express the notion, based on Zant v. Stephens, 462
     U.S. 862, 880-84 . . . (1983), that so long as there
     remains even one valid aggravating circumstance this
     Court can uphold the death sentence. The United States
     Supreme Court has now unequivocally established in
     Clemons that an "automatic rule of affirmance in a
     weighing State would be invalid. . . ." 494 U.S. at 752.
     . . .

Clemons v. State, 593 So.2d at 1006.

                               -16-
Court.   And, most importantly, the Nebraska statutes
simply do not give the Nebraska Supreme Court the
authority to resentence once it has found that the
sentencing panel engaged in harmful error in its weighing
of aggravating and mitigating circumstances.      Rather,
state law makes clear that it is the sentencing panel
that must "sentence," not the appellate court, and when
Petitioner was deprived of this state-created right in
Reeves III, his federal due process rights were violated.
     First, the Nebraska statutes go to great lengths to
set out how the sentencing hearing will be conducted by
the district court sentencing panel, even requiring the
sentencing panel to "set forth the general order of
procedure at the outset of the sentence determination
proceeding." Neb. Rev. Stat. § 29-2521 (Reissue 1989).
After such proceedings have been completed, the
sentencing panel is required to issue a written
determination, including findings of fact, "based upon
the records of the trial and the sentencing proceeding
. . . ."    Neb. Rev. Stat. § 29-2522 (Reissue 1989).
There is no similar provision in the Nebraska statutes
pertaining to the Nebraska Supreme Court and, hence,
absolutely no reason to think that the Nebraska
Legislature authorized or intended to authorize the
Nebraska Supreme Court to perform the same function as
the sentencing panel.

     Second, Nebraska statutes provide only two remedies
where the Nebraska Supreme Court disagrees with the
sentencing   panel   on   aggravating   and   mitigating
circumstances:    (a) the Nebraska Supreme Court may
"reduce" the sentence, Neb. Rev. Stat. § 29-2521.03
(Reissue 1989); or (b) it may remand for a "new trial"
(sentencing proceeding).    Neb. Rev. Stat. § 29-2528
(Reissue 1989).

     If the Nebraska Supreme Court disagrees with the
sentencing panel regarding aggravating and mitigating
circumstances, "[t]he Supreme Court may reduce any
sentence which it finds not to be consistent with
sections . . . 29-2522 [which requires the sentencing
panel to, among other things, weigh the statutory
aggravating and mitigating circumstances] . . . ." Neb.
Rev. Stat. § 292-2521.03 (emphasis added).

     If the Nebraska Supreme Court chooses not to reduce
the sentence pursuant to Neb. Rev. Stat. § 29-2521.03
under such circumstances, there is no authorization in
the Nebraska statutes for the court to "reweigh" the
aggravating and mitigating circumstances for purposes of
resentencing. Indeed, aside from the ability to "reduce"

                          -17-
a death penalty sentence because it does not comply with
the Nebraska statute that requires the district court
sentencing panel to weigh aggravating and mitigating
circumstances, Neb. Rev. Stat. § 29-2521.03, the Nebraska
Supreme Court is limited to three orders, none of which
allow resentencing through reweighing by the Nebraska
Supreme Court:

     Death penalty cases; Supreme Court; orders.
     In all cases when the death penalty has been
     imposed by the district court, the Supreme
     Court shall, after consideration of the
     appeal, order the prisoner to be discharged, a
     new trial to be had, or appoint a day certain
     for the execution of the sentence.


Neb. Rev. Stat. § 29-2528 (emphasis added).


Since the Nebraska Legislature went to the trouble to be
quite explicit about the remedies given the Nebraska
Supreme Court in the event of nonharmless error regarding
aggravating/mitigating    circumstances   (reduction   of
sentence or remand for a new hearing), the Nebraska
statutes cannot properly be construed to provide a remedy
that is not explicitly mentioned in those statutes.

     Third, the Nebraska statutes give the "weighing"
function only to the district court sentencing panel.
Neb. Rev. Stat. § 29-2522. In contrast, the statutes
direct the Nebraska Supreme Court to "review and analyze"
the actions of the sentencing panel. Neb. Rev. Stat.
§§ 29-2521.01(5) & 29-2521.02 (Reissue 1989).

     The only place in the Nebraska statutes where any
court is directed by the Nebraska Legislature to "weigh"
aggravating and mitigating circumstances is Neb. Rev.
Stat. § 29-2522, where "the judge or judges" are directed
to "fix the sentence at either death or life
imprisonment" after determining, among other things,
"[w]hether sufficient mitigating circumstances exist
which approach or exceed the weight given to the
aggravating circumstances . . . ."       Id.    (emphasis
added).

     In this regard, I observe that the phrase "judge or
judges" as used in the foregoing statute can only mean
the state district court sentencing panel which must,
pursuant to Neb. Rev. Stat. § 29-2520 (Reissue 1989),
consist of the trial judge or the trial judge plus two

                          -18-
     other judges (or in the case of disability or
     disqualification of the trial judge, three other state
     district judges). The Nebraska statutes consistently use
     the words "Supreme Court" when referring to the Nebraska
     Supreme Court.     See, e.g., Neb. Rev. Stat. §§ 29-
     2521.01(5), 29-2521.02, 29-2521.03, 29-2521.04 (Reissue
     1989). Thus, the difference in the statutory language,
     i.e., "judge or judges" versus "Supreme Court," makes it
     clear that the words "judge or judges" in section 29-2522
     refer to the sentencing panel and not the Nebraska
     Supreme Court.

. . . .

          In summary, the Nebraska statutes plainly do not
     permit appellate resentencing when there is nonharmless
     error regarding aggravating/mitigating circumstances
     because (1) the Nebraska statutes provide a very specific
     procedure for sentencing before the sentencing panel, but
     no such procedure is provided for the appellate court;
     (2) the Nebraska statutes explicitly provide that the
     Nebraska Supreme Court's remedial powers in the event of
     nonharmless   error   regarding   aggravating/mitigating
     circumstances are limited to "reduction" of sentence or
     to ordering a new sentencing hearing; (3) the "weighing"
     function is explicitly given to the state district court
     sentencing panel, and the "review-and-analysis" function
     is allocated to the Nebraska Supreme Court; and (4) the
     only court authorized to impose a death sentence is the
     district court, not the Nebraska Supreme Court.
                                b.

          The second reason I am persuaded that Nebraska law
     does not allow appellate resentencing is that Reeves III
     is silent on the matter. Nowhere in Reeves III does the
     Nebraska Supreme Court explicitly confront the question
     of whether Nebraska law allows appellate resentencing.
     Nowhere does the Nebraska Supreme Court explain under
     what state grant of authority the court believed itself
     empowered to engage in appellate resentencing. Nowhere
     does the Nebraska Supreme Court explain by reference to
     the Nebraska death penalty laws how the court derived the
     power to engage in appellate resentencing, thereby
     depriving Reeves of his statutory entitlement to
     sentencing by the district court sentencing panel.


Reeves v. Hopkins, 871 F. Supp. at 1195-98 (footnotes omitted).




                               -19-
     Judge Kopf's opinion then observes that the Nebraska Supreme
Court has never referred to state law as a basis for its reweighing
function. Id. at 1198-99.

     I, too, have searched the Nebraska case law and agree with the
district court in concluding that the Nebraska Supreme Court has
never articulated a source of authority to reweigh in its state
statutes.


     For its excellent scholarship and discourse on Nebraska law,
the majority gives these Nebraska federal judges this comment: "As
noted, the district court exceeded the bounds of its authority in
rejecting the Nebraska Supreme Court's interpretation of Nebraska
law." Slip. op. at 6-7.


     This comment is undeserved.   One can look in vain for any
source of state statutory power authorizing the Supreme Court of
Nebraska to reweigh. Nowhere does the majority discuss Nebraska
statutory sentencing procedures. Moreover, nowhere in its opinion
does the majority discuss statutory sentencing procedures or
Nebraska cases discussing state law as authorizing reweighing
(resentencing).


     As I see it, where the Nebraska Supreme Court has never
interpreted its sentencing statutes in regard to resentencing or
reweighing, the federal courts are free to do so, indeed may be
obligated to do so. See Burrus v. Young, 808 F.2d 578, 586 (7th
Cir. 1986) (Coffey, J., concurring) ("when reviewing a federal writ
of habeas corpus we are frequently called upon to interpret state
law and in that manner are properly performing our function as a
federal appellate court"); see also Banner v. Davis, 886 F.2d 777,
782 (6th Cir. 1989) (contrasting prior case where court had
permissibly interpreted state law in "narrow situation in which the
state courts below had failed to give a clear expression on the
issue" with present case where state courts had carefully

                               -20-
considered and analyzed scope of state statues); cf. Cole v. Young,
817 F.2d 412, 422-23 n.7 (7th Cir. 1987) (refuting dissent's
criticism that majority was failing to abide by state court's
interpretation of state law question and claiming state law
question left unanswered by state court).


     Thus, the district court did not depart from its proper
function in examining and interpreting the Nebraska statutes in
this habeas proceeding. No prior Nebraska Supreme Court decision
foreclosed that duty.
                              II.


     In addition, the district court properly followed the
precedent laid down by another panel of this court relating to a
Nebraska death sentence in Rust v. Hopkins, 984 F.2d 1486 (8th
Cir.), cert. denied, 113 S. Ct. 2950 (1993) and, in my judgment the
majority failed in its obligation to follow that case.


     Judge Richard Kopf, then serving as magistrate judge, made the
analysis in the Rust case. The district judge then adopted Judge
Kopf's analysis. I am certain that with this background, Judge
Kopf became keenly aware of the issues relating to the death
sentences imposed on Reeves.


     In Rust, the state sentencing panel in imposing death found
aggravating circumstances by a standard of proof less than beyond
a reasonable doubt.    This erroneous proof was reweighed by the
Nebraska Supreme Court as sufficiently proved beyond a reasonable
doubt and it reinstated the death penalty. Rust, 984 F.2d at 1487-
89.


     A panel of three judges, John R. Gibson, Lay and Loken, in an
unanimous opinion by Judge John R. Gibson, affirmed the grant of
habeas relief notwithstanding the claim of Nebraska through Warden


                               -21-
Hopkins that Clemons v. Mississippi, 494 U.S. 738 (1990), the
reweighing analysis performed by the Nebraska Supreme Court.


        The panel reviewed the Nebraska statutes and determined that
Rust:
        had a statutory right to: (1) have his trial judge or a
        three-judge panel including his trial judge consider
        aggravating circumstances based on facts proven beyond a
        reasonable doubt and to sentence him based on those
        findings; and (2) have the determination of that
        sentencing panel reviewed in the Nebraska Supreme Court.
        While created by state law, these are not "procedural
        right[s] of exclusively state concern," they are liberty
        interests protected by the Fourteenth Amendment.


Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir. 1993).


     The Nebraska two-tiered sentencing procedure first created a
liberty interest in having a panel of judges make particular
findings which could not be cured by appellate review and,
secondly, a constitutional right to a meaningful appellate review
of the sentence. The Rust court said:


        The whole point of the two-tier sentencing procedure is
        that the initial determination is reviewed by an
        independent appellate court. The two-tier process would
        be subverted if the Nebraska Supreme Court could step in
        and fully perform the work of the sentencing panel. Yet
        that is precisely what happened in this case.


Id.

     The majority seeks to distinguish Rust on its facts but such
attempted distinction has no application to the crucial
underpinning of Rust that Nebraska follows a two-tier sentencing
scheme, giving a criminal defendant the due process right to be
sentenced or resentenced (reweighed) by a panel of district judges
and further to receive meaningful appellate review.


        The district court properly relied on Rust for its ruling.


                                 -22-
                               III.


     As I have noted, the district court applied Rust as one of its
reasons to bar appellate reweighing in Nebraska.


     As the district court aptly observed and commented that the
Nebraska Supreme Court has read and followed Rust, and has not
attempted to reweigh a defendant's sentence after the issuance of
the Rust decision by this circuit.    The district court opinion
stated:


          Subsequent to Reeves III, the Nebraska Supreme Court
     announced it would no longer engage in appellate
     resentencing as a result of the Eighth Circuit decision
     in Rust v. Hopkins. State v. Moore, 243 Neb. 679; 502
     N.W.2d 227 (1993). While asserting that "we have the
     authority to resentence by analyzing and reweighing the
     aggravating and mitigating factors of the case," id., 243
     Neb. at 681, 502 N.W.2d at 229, the Nebraska Supreme
     Court stated in Moore that it would no longer do so in
     light of Rust v. Hopkins. The court made it clear that
     it disagreed with Rust v. Hopkins, but also recognized
     that it would be a waste of judicial resources to proceed
     with appellate resentencing in light of the holding in
     Rust because "the federal court would likely reverse."
     Id., 243 Neb. at 683; 502 N.W.2d at 230.

          The only basis for the opinion expressed in Moore
     that the Nebraska Supreme Court had the authority under
     state law to engage in appellate resentencing was a
     citation to Reeves III. Id., 243 Neb. at 681; 502 N.W.2d
     at 228-29. And, as noted earlier, the only basis for
     appellate resentencing in Reeves III was the Supreme
     Court's opinion in Clemons.   Accordingly, Moore is no
     more illuminating than the earlier opinions of the
     Nebraska Supreme Court on the state law basis for
     appellate resentencing.

          I am thus convinced that none of the opinions of the
     Nebraska Supreme Court have articulated a state law basis
     for appellate resentencing.


Reeves v. Hopkins, 871 F. Supp. at 1199.


                               -23-
     Finally, I would add the additional language of the Nebraska
Supreme Court as written in State v. Ryan, 534 N.W.2d 766 (Neb.
1995):


          However, the U.S. Court of Appeals for the Eighth
     Circuit has held that appellate reweighing violates a
     defendant's right to due process under Nebraska's death
     penalty sentencing statutes. See Rust v. Hopkins, 984
     F.2d 1486 (8th Cir. 1993), cert. denied, 113 S.Ct. 2950
     . . . . See, also, Reeves v. Hopkins, 871 F. Supp. 1182
     (D.Neb. 1994). That leaves this court with the options
     of performing a harmless error analysis or remanding the
     cause to the district court for a new sentencing hearing.
     See State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991),
     cert. denied, 113 S. Ct. 114 . . . (1992). We elect to
     perform a harmless error analysis.


Ryan, 534 N.W.2d at 796.


     It is odd jurisprudence that the majority here gives so little
credence to a panel opinion of the Eighth Circuit while district
judges and the fine judges of the Nebraska Supreme Court have
little difficulty in interpreting the language of the Rust case to
mean that the Nebraska Supreme Court will violate a prisoner's due
process rights by barring that prisoner's right to resentencing to
death or not by the sentencing panel and thereafter to meaningful
appellate review, except for a review for harmless error.


     I add a comment.    I personally have high regard, as do my
brothers and sister on this circuit, for the distinguished justices
of the Nebraska Supreme Court.      If that court should make an
analysis of the Nebraska statutes and determine that those laws
authorize reweighing by the high court of Nebraska, no federal
judge can overrule that decision on state law. But until such a
result is reached, which may be quite unlikely given the text of
the relevant statutes, I believe that the Nebraska Supreme Court in
its current practice is properly following a federal constitutional



                               -24-
due process requirement in assigning reweighing (resentencing) in
death sentence cases to the initial sentencing panel.


     I believe that the majority opinion serves to confuse and
create great uncertainty in the law of sentencing a person to death
in Nebraska, where uncertainty is now absent.


     A true copy.


          Attest:


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




                               -25-
