                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1618
                                   ___________

Lawrence E. Lupien,                   *
                                      *
           Appellee,                  *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
Harold W. Clarke, Director of the     *
Nebraska Department of Correctional *
Services,                             *
                                      *
           Appellant.                 *
                                  __________

                             Submitted: December 13, 2004
                                Filed: March 31, 2005
                                 ___________

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

COLLOTON, Circuit Judge.

       Harold W. Clarke, Director of the Nebraska Department of Correctional
Services (“DCS”), appeals an order of the district court granting habeas corpus relief
to Lawrence Lupien. The DCS argues that the district court erroneously based its
grant of habeas relief on an interpretation of Nebraska law that is in direct conflict
with the Nebraska Court of Appeals’ determination of the same issue. We agree, and
therefore reverse.
                                         I.

       On August 13, 1997, Lupien pled nolo contendere in Nebraska state court to
delivery of marijuana and conspiracy to deliver marijuana. [Red 6, Appellee’s App.
4, 9] Under Nebraska law, these crimes are classified as Class III felonies and carry
punishments of between one and twenty years in prison. Neb. Rev. Stat. §§ 28-416
(delivery), -202(4) (conspiracy), -105 (classification of penalties). Lupien was
sentenced on October 7, 1997, to a maximum of ten years’ imprisonment for each
offense of conviction, but the parties dispute whether the judge also imposed a
different minimum term of imprisonment.

       At the time of Lupien’s sentencing, Nebraska used a bifurcated sentencing
regime, under which prisoners subject to so-called “indeterminate sentences” were
eligible for parole, while those subject to “determinate sentences” were not eligible
for parole. 1998 Neb. Att’y Gen. Op. 98013, 1998 WL 65250, at *3 (Feb. 17, 1998).
Indeterminate sentences under Nebraska’s system were those in which the court
imposed different minimum and maximum terms of imprisonment. State v. Wilson,
546 N.W.2d 323, 332 (Neb. Ct. App. 1996). Determinate sentences, by contrast, were
those in which the minimum and maximum terms of imprisonment were the same, see
Johnson v. Clarke, 603 N.W.2d 373, 377 (Neb. 1999), or in which the sentencing
court stated only one term of imprisonment. Neb. Rev. Stat. § 29-2204(1)(a) (Reissue
1995);1 Johnson, 603 N.W.2d at 377.



      1
       Section 29-2204 has since been amended to reinstate indeterminate sentencing
by operation of law. See Neb. Rev. Stat. § 29-2204 (2004); State v. Urbano, 589
N.W.2d 144, 158 (Neb. 1999). This amendment is not at issue in this case because
it did not take effect until July 1, 1998, well after Lupien’s sentencing, and its
provisions have not been applied retroactively. See Johnson, 603 N.W.2d at 377-78.

                                        -2-
      In sentencing Lupien, the state district judge made the following statements:

             On Count I, you’re sentenced to ten years in the Nebraska Penal
      and Correctional Complex and on Count II,2 you’re sentenced to 10
      years in the Nebraska Penal and Correctional Complex. Count II to be
      served consecutive to Count I.

             ....

             Now, the law requires me to tell you what that means. The
      mandatory minimum amount of time that is to be served on a ten-year
      sentence is six years on two of them, that would be 12 years total time
      with good time statutory credit, and you will also receive whatever time
      you have served previous to this date in connection with these matters
      as a credit. Your parole eligibility will be in six years.

The Order of Commitment issued after Lupien’s sentencing provided that Lupien was
to “be imprisoned in the Nebraska Penal and Correctional Complex for a term of 10
years” on each count. Lupien did not appeal his conviction or sentence.

       Lupien was sentenced under Nebraska’s “truth in sentencing” law, which the
Nebraska legislature enacted in 1993. See Johnson, 603 N.W.2d at 377. At the time
of Lupien’s sentencing, DCS apparently was uncertain whether prisoners subject to
determinate sentences were eligible for parole; the department sought guidance from
the Office of the Nebraska Attorney General on the issue in 1998. The Attorney
General then issued an opinion that a defendant serving a determinate sentence was
ineligible for parole. See 1998 WL 65250, at *3.

       Nine days later, the DCS published a memorandum informing prisoners subject
to determinate sentences of their ineligibility for parole. See State v. Lupien, No. A-

      2
      The sentencing court later corrected its references to Count II, which should
have been to Count III.

                                         -3-
00-025, 2001 WL 485420, at *3 (Neb. Ct. App. May 8, 2001) (unpublished opinion)
(“Lupien”). On the same day, the Nebraska Board of Parole (“Board”) informed
Lupien that he would be eligible for parole in August 1998. Id. On August 3, 1999,
the Board retracted its earlier statement, notifying Lupien that it had deferred review
of his parole until August 19, 2007, the first date of Lupien’s eligibility for release
pursuant to the DCS memorandum. See id.

       After receiving the Board’s retraction, Lupien brought a motion for post-
conviction relief in state court, alleging that he was illegally sentenced under
Nebraska law, and in violation of ex post facto principles. The state district court
denied relief, and the Nebraska Court of Appeals affirmed, rejecting Lupien’s
arguments that the sentencing court had implicitly imposed a minimum term of
imprisonment (thus making his sentence indeterminate) when the court made
statements concerning Lupien’s parole eligibility. Id. at *3. The state appellate court
reviewed the sentencing court’s pronouncements and concluded that “when the court
imposed only one term of years, namely 10 years for each conviction, Lupien’s
sentence was determinate.” Id. at *5. The court determined that the balance of the
sentencing court’s oral statement, regarding time for parole eligibility, “was not part
of the sentence imposed.” Id. at *6.

       Having concluded that Lupien’s sentence was determinate, the court of appeals
decided that he was not subject to an ex post facto application of the law. Because
determinate sentences were permitted under Nebraska law at the time of Lupien’s
sentencing, the court held that he “was sentenced pursuant to the sentencing statutes
then in effect and ex post facto principles are not implicated.” Id. at *7.

       Lupien then petitioned for a writ of habeas corpus in federal district court
pursuant to 28 U.S.C. § 2254. In his habeas petition, Lupien alleged that his sentence
had been imposed in violation of state law. The district court granted relief on a
different theory. The court concluded that because the Nebraska sentencing court

                                         -4-
stated that “[t]he mandatory minimum amount of time to be served on a ten-year
sentence is six years on two of them,” the sentencing court had “articulated a
minimum term,” and thus imposed an indeterminate sentence. (Add. at 6). The
district court concluded that the sentencing court’s written order, which merely stated
a term of imprisonment of “10 years” on each count with no minimum term, was
inconsistent with the sentence announced orally in court. The district court reasoned
that under Nebraska law, a sentence announced in open court controls over a
subsequent written order or judgment, so that Lupien’s sentence must be considered
indeterminate. The court then held that because “the legal effect of the sentence as
pronounced in open court by the sentencing judge conflicts with the subsequent
execution of that sentence by [Lupien’s] custodian, DCS,” the Director of DCS
“thereby violated ex post facto principles.” (Add. at 14). On this basis, the court
granted a writ of habeas corpus and declared void any order or memorandum that
construed Lupien’s minimum prison term as 10 years.

                                          II.

        Under 28 U.S.C. § 2254(d), habeas corpus relief is appropriate with respect to
state prisoners only if a state court’s adjudication of the prisoner’s claim “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or if such an adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). State court factual findings are “presumed to be
correct,” and this presumption can be rebutted only by clear and convincing evidence.
Id. § 2254(e)(1). We review the facts underlying a district court’s grant of habeas
relief for clear error, and its legal determinations de novo. Colvin v. Taylor, 324 F.3d
583, 586 (8th Cir.), cert. denied, 540 U.S. 851 (2003).




                                          -5-
       The Ex Post Facto Clauses of the Constitution prohibit, inter alia, “[e]very law
that changes the punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed.” Stogner v. California, 539 U.S. 607, 612 (2003)
(quoting Calder v. Bull, 3 U.S. 386, 390 (1798)); see also Lynce v. Mathis, 519 U.S.
433, 441 & n.13 (1997). Lupien argues that DCS’s treatment of his sentence as
determinate rather than as indeterminate retrospectively increased the punishment
imposed by the state court judge and thereby violated the Ex Post Facto Clause. The
DCS maintains that Lupien’s sentence was determinate all along, and that the
Nebraska Court of Appeals authoritatively decided this question in considering
Lupien’s post-conviction motion. See Lupien, 2001 WL 485420, at *6. The parties
do not dispute that if Lupien’s sentence as pronounced by the sentencing judge was
determinate, then he was never eligible for parole, and the Ex Post Facto Clause is
not implicated by the Order of Commitment and DCS’s subsequent actions.

       Determinations of state law made by a state court are binding on a federal court
in habeas proceedings. Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir. 1998);
Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir. 1991). We may not review
questions of state law that have been decided by a state court, “even under the
deferential standard of 28 U.S.C. § 2254(d).” Lee v. Gammon, 222 F.3d 441, 443 (8th
Cir. 2000). As the Supreme Court has emphasized, “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); see also Johnston v. Luebbers, 288 F.3d 1048, 1056 (8th
Cir. 2002).

      In this case, the Nebraska Court of Appeals held that Lupien’s sentence was
determinate, and that legal conclusion is binding in these federal habeas proceedings.
In Lupien’s post-conviction proceeding, the state court of appeals quoted the remarks
of the state court judge in sentencing Lupien, 2001 WL 485420, at *1, and

                                         -6-
characterized the judge’s comments regarding a minimum amount of time to be
served as “statements regarding parole eligibility.” Id. at *6. The court observed that
it previously had interpreted the language of section 29-2204 to mean that a
sentencing court’s “‘statement regarding time for parole eligibility was not part of the
sentence.’” Id. (quoting State v. Glover, 535 N.W.2d 724, 727 (Neb. Ct. App. 1995)).
The court then held that because “the sentencing court’s statement regarding time for
parole eligibility was not part of the sentence imposed, it does not render the sentence
invalid.” Id. The court specifically addressed the question of determinacy, holding
that “when the court imposed only one term of years, namely 10 years for each
conviction, Lupien’s sentence was determinate.” Id. at *5. This express resolution
of the nature of Lupien’s sentence stands in irreconcilable conflict with the district
court’s conclusion that Lupien “received an indeterminate sentence on October 17,
1997.” (Add. at 6).

       Lupien contended at oral argument that the determinacy or indeterminacy of
his sentence was a mixed question of fact and state law that may be re-examined in
a federal habeas corpus proceeding. Even if a determination concerning the nature
of Lupien’s sentence could be characterized as a “mixed” question of law and fact,
however, it would not be subject to review by a federal court. As the Supreme Court
explained in an analogous situation with respect to a state death penalty statute,
“[e]ven if a determination under Arizona’s narrowing construction could be
characterized as a ‘mixed’ question of law and fact, any such determination would
nevertheless remain a question of state law, errors of which are not cognizable in
federal habeas proceedings.” Lewis v. Jeffers, 497 U.S. 764, 782-83 (1990) (internal
citation omitted).

       A “factual issue,” of course, would be susceptible to limited review in this
habeas proceeding. See 28 U.S.C. § 2254(e)(1). But the asserted question of fact
identified by Lupien – whether the “plain statement” of the sentencing court that
Lupien would serve a “mandatory minimum” of six years meant that Lupien’s

                                          -7-
sentence was indeterminate – is not a “factual issue” within the meaning of § 2254(e).
That section, which was formerly codified at § 2254(d), applies to “basic, primary,
or historical facts: facts in the sense of a recital of external events and the credibility
of their narrators,” and to certain other issues where resolution “depends heavily on
the trial court’s appraisal of witness credibility and demeanor.” Thompson v.
Keohane, 516 U.S. 99, 110-11 (1995) (internal quotations omitted). There is no
dispute in this case about historical facts or matters that turn on appraisal of witness
credibility or demeanor. The words spoken and written by the sentencing court are
undisputed, and the only point of dispute is the legal effect of the judge’s words. That
is a question of state law on which the decision of the Nebraska Court of Appeals is
dispositive.

       As a matter of state law decided by the Nebraska courts, Lupien received a
determinate sentence on October 17, 1997. Under Nebraska law in effect at that time,
the determinate sentence made him ineligible for parole. Thus, the subsequent state
actions treating his sentence as one for which parole is unavailable did not
retroactively increase the punishment for Lupien’s crimes. Without such an increase
in punishment, there was no violation of the Ex Post Facto Clause. Accordingly, the
district court’s order granting a writ of habeas corpus is reversed, and the case is
remanded for entry of an order denying Lupien’s petition under 28 U.S.C. § 2254.
                           ______________________________




                                           -8-
