                            ___________

                       Nos. 94-3687/94-3849
                            ___________

John J. Joubert,                *
                                *
     Appellee/Cross-Appellant, * On Appeal from the United States
                                * District Court for the
     v.                         * District of Nebraska.
                                *
Frank X. Hopkins,               *
                                *
     Appellant/Cross-Appellee. *
                           ___________

                   Submitted:   June 12, 1995

                       Filed: January 25, 1996
                            ___________

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

BEAM, Circuit Judge.


     John Joubert entered guilty pleas to two counts of first-
degree murder. He received a death sentence on each count. After
pursuing direct and collateral relief in the state courts, he filed
a petition for a writ of habeas corpus in federal district court.
The district court found that Mr. Joubert's death sentences were
based on an unconstitutionally vague statutory aggravating factor
and granted the writ.    The State of Nebraska appeals.     Joubert
cross-appeals the district court's denial of other claims presented
in his habeas petition. We affirm in part and reverse in part.

I. BACKGROUND


     In the fall of 1983, Joubert, a recent transferee to Offutt
Airforce Base, began to act out his fantasies of stabbing young
boys to death. Early one September morning, he went hunting for a
victim.    He saw 13-year-old Danny Eberle delivering papers.
Joubert grabbed, gagged, and bound Danny, put him in the trunk of
a car, and took him to a remote area. He stripped Danny to his
underwear, sequentially untying and retying the boy's bonds.
Danny's gag worked loose and he asked Joubert if he was going to
die. When Joubert said yes, Danny tried to roll away, but Joubert
stabbed him in the back, pinning him to the ground with the knife.
While pinned, Danny promised not to tell if Joubert would take him
to a hospital. Joubert considered the proposition, but decided
that Danny would probably get him in trouble if allowed to live.
So, he stabbed and sliced the boy until he died from loss of blood.


     Several months later, Joubert again went out in the predawn to
hunt for a victim. He saw 12-year-old Christopher Walden walking
to school. He displayed his knife to Christopher and told him to
come along. Once in the car, Joubert made Christopher get down on
the floor boards out of sight. When the boy began to cry, Joubert
considered releasing him, but decided against it for fear of being
caught. Joubert took Christopher to a secluded spot and instructed
him to strip to his underwear and to lay down on his back. Because
of the snow, the boy balked at laying down, so Joubert "encouraged"
him by putting his hands around Christopher's neck and forcing him
down. Joubert continued to strangle Christopher, but his hands got
cold, so he took his knife and started stabbing and slicing the
boy, finally cutting his throat. Christopher remained cognizant
for some time, and then gradually lapsed into a coma and died from
loss of blood.    He was found with a figure resembling a plant
carved into his torso.


     Joubert went hunting again one January morning. He found a
preschool teacher. She became suspicious while he observed her
from his car and wrote down his license plate number.      When he
approached her, and tried to force her into a school room while
threatening to kill her, she burst past him and called the police.
A license check led to Joubert. While being questioned about the
school incident, Joubert began to make spontaneous admissions as to
the murders of the two boys. After waiving his rights, Joubert

                               -2-
confessed to the two murders, giving details unknown to the public
which were corroborated by the crime scenes.      He also provided
police with details they had been unable to reconstruct, which were
later corroborated. The police subsequently discovered physical
evidence further linking Joubert to the murders.


     Joubert was charged with two counts of first-degree murder.
Before trial, Joubert entered guilty pleas pursuant to a plea
bargain.   In exchange for the pleas, the state agreed not to
present evidence to the sentencing panel that Joubert had
previously murdered a young boy in Maine.1     After a sentencing
hearing, in which the state adhered to its bargain, Joubert was
sentenced to death on both counts. In imposing the death penalty,
the sentencing panel found two statutory aggravating factors in
regard to the murder of Danny Eberle: 1) that he was killed in
order to conceal the perpetrator's identity (Nebraska statutory
aggravator 29-2523(1)(b)); and 2) that the murder was both
"especially heinous, atrocious, [and] cruel" and represented
"exceptional depravity" as those terms were defined at that time
(Nebraska statutory aggravator 29-2523(1)(d)).2   In regard to the
murder of Christopher Walden, the panel found three statutory
aggravating factors: 1) that Christopher was killed in order to
conceal the perpetrator's identity; 2) that the murder was both
"especially heinous, atrocious, [and] cruel" and represented


         1
       Joubert was later convicted of that murder in unrelated
proceedings. State v. Joubert, 603 A.2d 861 (Me. 1992).
     2
      Under Nebraska law, statutory aggravator 29-2523(1)(d) has
two prongs. The first is that the murder was "especially heinous,
atrocious, [and] cruel" as that phrase has been narrowed by the
Nebraska Supreme Court. The second is that the murder "manifested
exceptional depravity by ordinary standards of morality and
intelligence" as that phrase has been narrowed by the Nebraska
Supreme Court.    Proving either prong beyond a reasonable doubt
establishes the existence of aggravator 29-2523(1)(d). See, e.g.,
State v. Reeves, 476 N.W.2d 829, 838 (Neb. 1991), cert. denied, 113
S. Ct. 114 (1992); State v. Joubert, 399 N.W.2d 237, 249 (Neb.
1986), cert. denied, 484 U.S. 905 (1987).

                               -3-
"exceptional depravity;" and 3) that at the time of the murder, the
perpetrator had "a substantial history of serious assaultive or
terrorizing criminal activity" (Nebraska statutory aggravator 29-
2523(1)(a)).


     After Joubert's direct and postconviction appeals were denied
by the state courts, he filed a petition for habeas corpus in
federal district court alleging numerous grounds for relief
including: 1) his death sentences were infirm because "exceptional
depravity" is an unconstitutionally vague aggravator;       2) the
sentencing panel improperly applied the aggravating circumstance
relating to a history of serious assaultive criminal activity to
Joubert; 3) the sentencing panel erred in finding that Joubert
killed his victims to avoid detection;        4) the trial judge
improperly injected himself into the plea bargain process; 5) his
counsel was constitutionally ineffective for failing to inform him
that the trial court was willing to accept a conditional plea; and
6) Nebraska's death penalty process is facially discriminatory and
discriminatory as applied, because it is facially arbitrary and
because prosecutorial discretion results in uneven application.


     The district court granted relief on the claim that
"exceptional depravity" is an unconstitutionally vague aggravating
circumstance, and denied relief on Joubert's other claims. The
State of Nebraska appeals, arguing the writ was improperly granted,
and that even if properly granted, the district court improperly
limited the state's options as to how to respond to the writ.
Joubert appeals the district court's denial of those other claims
listed above.

II. DISCUSSION


     A. "Exceptional Depravity" Statutory Aggravator




                               -4-
     In granting relief, the district court found that Joubert's
vagueness claim had been properly presented to the state courts.
Alternatively, it found that any procedural bar was excused under
the cause and prejudice standard.     Finally, the district court
found that the "exceptional depravity" prong of aggravator 29-
2523(1)(d) was unconstitutionally vague as it was defined at the
time of Joubert's sentencing.    Generally, the existence of the
"atrocious, heinous, [and] cruel" prong (which had been
constitutionally narrowed at the time it was applied to Joubert)
would suffice to support the application of aggravator 29-
2523(1)(d) independently of any infirmity in the "exceptional
depravity" prong.    See supra n.2.    In this case, however, the
sentencing panel explicitly relied more heavily on the "exceptional
depravity" prong than on the "heinous, atrocious, [and] cruel"
prong to find the existence of the aggravator. The district court
found that such greater reliance on the unconstitutionally vague
prong rendered the death sentence infirm under Stringer v. Black,
503 U.S. 222, 232 (1992) (use of an invalid aggravator in a
weighing state amounts to an impermissible thumb on death's scale).
While we might agree with the district court's Stringer concerns,
we reverse on other grounds.

          1. Procedural Bar


     In the absence of cause and prejudice, or a sufficient showing
of likely actual innocence, a federal habeas court may consider
only those issues which have been raised and fairly presented to
the state courts.    Sawyer v. Whitley, 112 S. Ct. 2514, 2518-19
(1992). A claim has been fairly presented when a petitioner has
properly raised the "same factual grounds and legal theories" in
the state courts which he is attempting to raise in his federal
habeas petition. E.g., Forest v. Delo, 52 F.3d 716, 719 (8th Cir.
1995), Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert.
denied, 115 S. Ct. 2620 (1995); Flieger v. Delo, 16 F.3d 878, 884
(8th Cir.), cert. denied, 115 S. Ct. 355 (1994).

                               -5-
     The district court found that although Joubert had not
specifically raised the vagueness claim in his direct appeal or in
his state postconviction proceedings, the vagueness claim was
nonetheless fairly presented. It concluded that Joubert's argument
to the state court that there was insufficient evidence to support
applying the "exceptional depravity" factor in his case encompassed
the claim of unconstitutional vagueness.         Specifically, the
district court found that "a Fourteenth Amendment due process issue
is inherent in the analysis of the [insufficient evidence] issue."3
Joubert v. Hopkins, No. 8:CV91-00350, mem. op. at 97 (D. Neb. Oct.
11, 1994). Therefore, the district court held that there was no
procedural bar.


     We have closely examined Joubert's arguments to the state
court, and nowhere in his discussion of the "exceptional depravity"
circumstance does he mention either the Eighth or Fourteenth
Amendment or unconstitutional vagueness.     Just as a claim that
there is insufficient evidence to support a conviction does not
carry within it a challenge to the constitutionality of the statute
under which one was convicted, so an argument that there is
insufficient evidence to support the application of an aggravator
does not "inherently" subsume an argument that the aggravator
itself is unconstitutional, much less that it is unconstitutional
on vagueness grounds. One argument is fact-based, the other is
legal, and they are completely different. Because Joubert did not
present the same facts and legal theory to the state courts that he
now raises to the federal courts, the vagueness claim was not
fairly presented and is procedurally barred.      See Branscomb v.
Norris, 47 F.3d 258, 261 (8th Cir.) (rejecting argument that
competency claim "essentially" considered in denial of motion for



     3
      Despite the district court's characterization of the issue,
in the context of capital punishment, vagueness is properly
analyzed under the Eighth, not the Fourteenth, Amendment.     See
Maynard v. Cartwright, 486 U.S. 356, 360-61 (1988).

                               -6-
independent psychiatric evaluation), cert. denied, 115 S. Ct. 2260
(1995).


     Joubert also argues there is no bar because the issue was
considered by the last state court to consider his case. To make
this claim, he misconstrues a concurrence which mentions the
"exceptional depravity" aggravator only in the context of asserting
that it is not a separate prong of a two-prong aggravator, but part
and parcel of a unitary "especially heinous, atrocious, [and]
cruel" aggravator which was proved beyond a reasonable doubt.
State v. Joubert, 399 N.W.2d 237, 253-58 (Neb. 1986), cert. denied,
484 U.S. 905 (1987) (Joubert). The concurrence does not consider
the vagueness of "exceptional depravity." Joubert's argument is
without merit.


     Joubert further argues that the issue is not barred because
the Nebraska Supreme Court exercised its responsibility to review
his death penalty, and thus necessarily considered even defaulted
errors. While the scope of mandatory state court review may be
broad enough to revive a defaulted claim, the extent of that review
is a question of state law. See Ake v. Oklahoma, 470 U.S. 68, 74-
75 (1985) (state court review for "fundamental trial error"
includes otherwise waived constitutional errors); LaRette v. Delo,
44 F.3d 681, 687 (8th Cir. 1995) (scope of mandatory review is a
question of state law, issues falling outside that scope may not be
deemed presented to the state courts). Nebraska law requires its
supreme court to examine the facts of a capital case including
those underlying aggravating and mitigating circumstances, the
charges filed, the crime of conviction, the sentence, and the
proportionality of that sentence compared with those imposed in
similar capital crimes in Nebraska.       Neb. Rev. Stat. §§ 29-
2521.01-.03 (Reissue 1989 & Supps. 1992-94).     The legislature's
explicit concern is to promote fairness and uniformity and to guard
against local prejudice and hysteria in the imposition of the death
penalty. The resultant review scheme is factually oriented and

                               -7-
directs the Nebraska Supreme Court to ascertain that the facts
support the charges, conviction, and penalty in any given capital
case, and that such penalty is not disproportionate to those meted
out in similar cases. It does not impose on the Nebraska Supreme
Court the duty to recognize and to raise, sua sponte, federal
constitutional issues. See Nave v. Delo, 22 F.3d 802, 815-16 (8th
Cir. 1994) (factually oriented state mandatory review scheme did
not impose duty to reach federal constitutional claims sua sponte).


     Finally, Joubert argues that the vagueness issue is not barred
because it is plain error, and because appellate courts in Nebraska
reserve the right to note plain error regardless of whether it has
been preserved. Even assuming the right to conduct plain error
review equates with the duty to do so, a proposition about which we
state no opinion, this argument fails. At the time of Joubert's
sentencing, the Nebraska Supreme Court had attempted several times
to constitutionally narrow the "exceptional depravity" prong of
aggravator 29-2523(1)(d) through its case law.        See Moore v.
Clarke, 904 F.2d 1226, 1234-35 (8th Cir. 1990) (F. Gibson,
dissenting) (discussing Nebraska Supreme Court's pre-Palmer cases
narrowing "exceptional depravity"), cert. denied, 504 U.S. 930
(1992).   A state supreme court may cure a defectively vague
aggravating circumstance through adoption of an acceptably narrowed
construction. Proffitt v. Florida, 428 U.S. 242, 255-56 (1976);
see also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (no reason to
assume the Georgia Supreme Court will not adopt and apply a
constitutionally   narrowed   construction    of   facially   vague
aggravator). Because the Nebraska Supreme Court had attempted to
narrow this aggravator at the time of Joubert's sentencing, albeit
unsuccessfully, the application of that narrowed definition to
Joubert at his sentencing was not plain error. Thus, there was no
plain error for the Nebraska Supreme Court to review.        In the
absence of cause and prejudice, Joubert's vagueness claim is
procedurally barred.


                               -8-
          2. Cause and Prejudice


               i. Cause


     A federal habeas court may consider a petitioner's
procedurally defaulted claims if the petitioner establishes both
cause for and prejudice from his default. Wainwright v. Sykes, 433
U.S. 72 (1977); see also Engle v. Isaac, 456 U.S. 107, 126-30
(1982) (discussing the concerns animating the application of the
cause and prejudice test to procedural defaults in habeas cases).
To establish cause, a petitioner must show that some objective
factor external to the defense prevented him from presenting or
developing the factual or legal basis of his constitutional claim.
Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Interference by
the state, ineffective assistance of counsel, and conflicts of
interest are examples of factors external to the defense which
prevent a petitioner from developing the factual basis of his
claim.     See Amadeo v. Zant, 486 U.S. 214, 222 (1988)
(interference); Coleman v. Thompson, 501 U.S. 722, 754 (1991)
(ineffective assistance); Jennings v. Purkett, 7 F.3d 779, 782 (8th
Cir. 1993) (conflict of interest). Legal novelty may be cause for
failure to present a legal claim for which the factual basis is
readily available. Reed v. Ross, 468 U.S. 1, 13-14 (1984).


     The district court found that even if Joubert had defaulted on
the vagueness claim in the state court, he had shown cause for his
default.   Joubert persuaded the district court that although
federal law as to the vagueness of the "exceptional depravity"
aggravator was well settled at the time of his state court actions,
the lack of explicit state legal precedent on the question
established cause.    According to Joubert, this lack of state
precedent on the federal question rendered the "factual basis" of
the claim unavailable at the time of his state court proceedings.
This argument is flawed.


                               -9-
     First, there is no question that the argument as to the
unconstitutional vagueness of "exceptional depravity" is not
legally novel, and was not legally novel at the time of Joubert's
state court proceedings. Legal novelty constitutes cause only if
the claim is "so novel that its legal basis is not reasonably
available to counsel." Ross, 468 U.S. at 16. The legal basis for
arguing that "exceptional depravity" was impermissibly vague was
readily available by the time of Joubert's first appeal in 1985.


     At that time, Furman v. Georgia, 408 U.S. 238 (1972), which
invalidated all death penalty procedures then in place as arbitrary
and impermissibly vague, was thirteen years old.       The case of
Godfrey v. Georgia, 446 U.S. 420, 431 (1980), which found an
"outrageously or wantonly vile, horrible, or inhuman" aggravator to
be unconstitutionally vague, was five years old. Later, in Maynard
v. Cartwright, 486 U.S. 356, 362-64 (1988), the Supreme Court found
that there was no functional difference between an "especially
heinous, atrocious, or cruel" aggravator and the unconstitutionally
vague aggravator in Godfrey. Maynard, in turn, was found to have
been dictated by precedent in Stringer v. Black, 503 U.S. 222, 228
(1992), and thus not a new rule.4 See Teague v. Lane, 489 U.S.
288, 301 (1989) (a new rule is one which is not dictated by
precedent5).   If holding that "outrageously or wantonly vile,
horrible, or inhuman" is an unconstitutionally vague aggravator
(Godfrey, 1980) dictates finding that "especially heinous,
atrocious, or cruel" (Maynard, 1988) is also unconstitutionally
vague, the argument as to the impermissible vagueness of


      4
       With limited exceptions, a new rule will not be applied
retroactively in federal habeas litigation. Teague v. Lane, 489
U.S. 288 (1989).
       5
        Precedent dictates the result in a given case when the
outcome is not "susceptible to debate among reasonable minds."
Butler v. McKellar, 494 U.S. 407, 415 (1990). Thus, Maynard was
found to be dictated by existing precedent (Godfrey) to such an
extent that reasonable minds could not disagree as to the outcome.

                               -10-
"exceptional depravity," even as then narrowed by the Nebraska
Supreme Court, was certainly not "so novel that its legal basis was
not reasonably available to counsel" at the time of Joubert's
appeal in 1985.


     Joubert, however, mixing apples and oranges, claims that the
Nebraska state courts' failure to address the issue by the time of
his appeal rendered the argument "factually" unavailable to him.
He mistakenly relies on Blair v. Armontrout, 916 F.2d 1310, 1325
(8th Cir. 1990) as support for this proposition. Blair does not
stand for the proposition that lack of state precedent about an
established federal issue amounts to cause.         Rather, Blair
recognizes that uncertainty as to state law itself can constitute
cause for failure to raise a constitutional claim.            More
particularly, Blair's equal protection and ex post facto arguments
were unavailable to him until the Missouri Supreme Court held that
one of its decisions was to be applied prospectively in some
circumstances and retroactively in others, including Blair's. See
Blair, 916 F.2d 1328-31; State v. Goddard, 649 S.W.2d 882 (Mo.
1983) (en banc). Thus, Blair had no constitutional complaint until
the Missouri Supreme Court created the rule in question.


     Joubert's situation is diametrically opposed to Blair's. An
aggravator which was facially vague, and arguably so even as
narrowed, under then existent and controlling federal precedent had
been applied in Joubert's sentencing.      No act of the Nebraska
Supreme Court was needed to create or to perfect his constitutional
complaint. The mere fact that the Nebraska Supreme Court had not
decided the issue, or even a likelihood that they would decide it
against him if he raised it, did not render the issue "factually"
unavailable to him and cannot constitute cause.       See Engle v.
Isaac, 456 U.S. 107, 130-31 (1982) (lack of state precedent on
nonnovel constitutional issue is not cause; such a rule would be
contrary to the principles supporting Wainwright v. Sykes). Thus,
Joubert has not shown cause for his default.

                               -11-
               ii. Prejudice


     While the district court made no explicit finding that Joubert
was prejudiced by the application of the "exceptional depravity"
prong in his sentencing, it apparently assumed so because, after
finding cause, it proceeded directly to the merits of Joubert's
claim. It is clear, however, from the district court's discussion
of the merits that it did consider Joubert to be prejudiced. As
mentioned, the district court noted that the sentencing panel had
explicitly relied more heavily on the "exceptional depravity" prong
than on the "especially heinous, atrocious, [and] cruel" prong in
finding the existence of aggravator 29-2523(1)(d).      Thus, even
though a finding of either prong will normally suffice to establish
the existence of the aggravator, under Stringer, 503 U.S. at 232,
the district court feared that the heavy reliance on the
"exceptional depravity" prong placed an impermissible thumb on
death's scale. See Williams v. Clarke, 40 F.3d 1529, 1538-42 (8th
Cir. 1994) (Stringer mandates harmless error analysis where both
independent prongs of § 29-2523(1)(d) applied if one prong was
constitutionally invalid). However, because Joubert has not shown
cause, we need not decide whether any unconstitutional "thumb" is
enough to establish the prejudice required by Wainwright, 433 U.S.
at 87. See United States v. Frady, 456 U.S. 152, 166-69 (1982)
(the prejudice required for a defaulted claim to undermine
constitutionality of final judgment on collateral review can be
higher than that required to merit reversal on same claim on direct
review).


               iii. Miscarriage of Justice


     Joubert also argues that his procedural default should be
excused to prevent a fundamental miscarriage of justice. However,
he does not profess that he is actually innocent of the murders of
these boys, nor does he attempt to make the requisite showing under


                               -12-
Schlup v. Delo, 115 S. Ct. 851, 867 (1994) (petitioner must present
new evidence showing that a constitutional violation has probably
resulted in the conviction of one who is actually innocent).
Neither does he argue, nor make any showing, that he is actually
innocent of the death penalty under Sawyer v. Whitley, 112 S. Ct.
2514, 2523 (1992) (petitioner must show by clear and convincing
evidence that but for constitutional error no reasonable jury would
have found him eligible for the death penalty).


     The sentencing panel found several separate statutory
aggravating circumstances for each murder. It also found that the
independent "especially heinous, atrocious [and] cruel" prong of
aggravating circumstance 29-2523(1)(d) had been proved beyond a
reasonable doubt. Therefore, the specter that the vagueness of the
"exceptional depravity" prong of 29-2523(1)(d) may have worked to
Joubert's disadvantage does not amount to clear and convincing
evidence that but for constitutional error no reasonable jury would
have found him eligible for the death penalty. Thus, there is no
fundamental miscarriage of justice to lift the procedural bar.

          3. Merits


     Even though Joubert's claim of vagueness of the "exceptional
depravity" prong of 29-2523(1)(d) is procedurally barred, it would
not be inappropriate to discuss the merits of the claim, this being
a death penalty case. In this instance, as we explain, we decline
to do so.


     We recognize that in a weighing state,6 generally, 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 v. Mississippi,

    6
     See Williams, 40 F.3d at 1535 (Nebraska is a weighing state).

                               -13-
494 U.S. 738, 754 (1990). Although the district court correctly
determined that the definition of "exceptional depravity" applied
at Joubert's sentencing was unconstitutionally vague, we note that
the Nebraska Supreme Court did apply a narrower definition of
"exceptional depravity" than that in effect at the time of
sentencing when performing its mandated review to assure that the
facts in Joubert's case supported the sentence.7 See Joubert, 399
N.W.2d at 251. That narrowed definition is clearly constitutional.
Walton v. Arizona, 497 U.S. 639, 654-55 (1990);8 see also Moore v.
Clarke, 951 F.2d 895, 896-97 (8th Cir. 1991) (Moore II). Using
that narrowed definition, the Nebraska Supreme Court found the
"exceptional depravity" prong to be established beyond a reasonable
doubt. Joubert, 399 N.W.2d at 251. If the Nebraska Supreme Court
then   lawfully   reweighed   the  aggravating   and   mitigating
circumstances underlying Joubert's death penalties, any possible
constitutional defect in Joubert's sentence was arguably cured.


     However, we decline to address either whether the Nebraska
Supreme Court had the authority to reweigh under the circumstances
here present,9 or, if it had such authority, whether it did indeed


        7
        The district court, in granting habeas relief, did not
acknowledge that the Nebraska Supreme Court had applied a properly
narrowed definition on appeal.
    8
     In Walton, the United States Supreme Court held that the test
the Arizona Supreme Court had developed in State v. Gretzler, 659
P.2d 1, 11-12 (Ariz.), cert. denied, 461 U.S. 971 (1983) for its
"especially depraved manner" aggravating circumstance overcame any
constitutional vagueness concerns. See Lewis v. Jeffers, 497 U.S.
764, 776-78 (1990) (Walton decision established validity of entire
5-factor Gretzler test). The Nebraska Supreme Court adopted the
Gretzler test as its own when narrowing "exceptional depravity" in
State v. Palmer, 399 N.W.2d 706, 731-32 (Neb. 1986), cert. denied,
484 U.S. 872 (1987).     And it is that narrowed test which the
Nebraska Supreme Court said it applied to Joubert. Joubert, 399
N.W.2d at 251.
    9
     Under certain circumstances, state appellate court reweighing
may result in a deprivation of due process. Clemons, 494 U.S. at
754 & n.5; Rust v. Hopkins,     984 F.2d 1486 (8th Cir.), cert.

                               -14-
reweigh and cure Joubert's sentence. We so decline because the
parties did not clearly brief and argue these issues,10 because it
is not clear to us that the Nebraska Supreme Court indeed engaged
in a deliberate reweighing, and because any error as to the
application of the "exceptionally depraved" prong was harmless
beyond a reasonable doubt.


          4. Harmless Error


      Regardless of the effectiveness of any arguable state court
appellate reweighing, we find any error in the application of the
"exceptional depravity" prong at sentencing to have been harmless
beyond a reasonable doubt.     See Williams, 40 F.3d at 1539-41
(federal courts must conduct harmless error analysis before issuing
the writ). Because the Nebraska Supreme Court simply applied a
narrowed definition of "exceptional depravity" in its Joubert
decision, without considering whether there was constitutional
error at sentencing, we apply Chapman analysis.        See id. (In
habeas, the more deferential Brecht harmless error standard
generally is applied to constitutional errors considered harmless
by state courts, but the strict Chapman standard is used where a
state court has not applied Chapman analysis in the first
instance.). Under Chapman, we must determine whether the error, if
any, is harmless beyond a reasonable doubt. Williams, 40 F.3d at
1541.


     To perform this analysis, we must determine whether the facts
support the application of aggravating factor 29-2523(1)(d) without


denied, 113 S. Ct. 2950 (1993).
     10
      The author of this opinion, speaking for himself only, does
not agree with the dissent's contention, infra, at 28, that
"Appellant Warden Hopkins does not suggest that the Nebraska
Supreme Court cured [any] constitutional defect by reweighing on
direct appeal." In this regard, see Appellant's Brief, pp. 7, 28-
34.

                               -15-
consideration of the "exceptional depravity" prong, and if so (or
if not) whether, in view of all the other aggravating and
mitigating circumstances found to be present, the sentence would
have been the same beyond a reasonable doubt.            See id.
(constitutional harmless error analysis entails de novo review of
the record).     The other prong of aggravator 29-2523(1)(d),
"especially   heinous,   atrocious,   [and]  cruel,"   had   been
constitutionally narrowed at the time of Joubert's sentencing.
Harper, 895 F.2d at 479. A finding that a murder was "especially
heinous, atrocious, [and] cruel" independently supports the
application of aggravator 29-2523(1)(d). See supra note 2. This
prong considers the crime from the victim's point of view.
Joubert, 399 N.W.2d at 249. To fall within this prong, the murder
in question must involve torture, sadism, sexual abuse, or the
infliction of extreme suffering on the victim. Harper, 895 F.2d at
478. Murders which are unnecessarily torturous fall within this
category. Id.    We look to the facts to decide whether aggravator
29-2523(1)(d) would have been found to exist regardless of the
"exceptional depravity" prong.


     Considering the case of Danny Eberle, the evidence shows that
after being bound, gagged, and transported like a sack of flour in
the trunk of a car, Danny was stripped to his underwear, told he
was going to be killed, held pinned by a knife in the back as he
desperately tried to bargain for his life, and then butchered as he
lay helplessly bound by the infliction of nine antemortem slicing
and stabbing wounds. Danny remained conscious and aware at least
three or four minutes into the final assault, plus he endured the
knife in his back as he pled for his life. Even to an adult those
minutes would have seemed like an eternity. They would be all the
more so for a child.    These actions of stripping, binding, and
slicing a young boy nine times while he knowingly awaits his death
involve a deep element of sadism. A more terrifying, torturous,
and humiliating death we can not imagine. Thus, we find beyond a
reasonable doubt that aggravator 29-2523(1)(d) would have been

                               -16-
applied even had the sentencing       panel   not   considered   the
"exceptional depravity" prong.


     The sentencing panel also found in aggravation that Joubert
killed Danny, in part, to conceal his identity.      The evidence
establishes beyond a reasonable doubt, that once embarked on his
enterprise, Joubert seriously considered letting Danny go in
response to his promise not to tell, but decided to continue in
order to avoid detection. A murderer, like any other human being,
is a complex person with a fluid thought process, and may have
multiple motivations for acting.     That Joubert also killed to
satisfy his curiosity and sexual fantasies in no way detracts from
the fact that he finished the project because he believed Danny
would otherwise get him in trouble. Thus we find this aggravator
to have been proven beyond a reasonable doubt.


     In mitigation, the panel credited Joubert for pleading guilty.
It also found that Joubert had no prior significant criminal
history at the time he killed Danny and that he was acting under an
extreme mental disturbance. However, there was also evidence that
while Joubert was acting out disturbed fantasies, he could control
his behavior and choose not to act out his fantasies.


     As noted, there is no mathematical formula available for
reweighing.    The process requires a careful examination and
weighing of the relevant factors given the totality of
circumstances.    Williams, 40 F.3d at 1542.       In view of the
overwhelming evidence of the callousness of Danny Eberle's murder
and of his extreme suffering, and considering that Joubert could
control his morbid desires, we find beyond a reasonable doubt that
the sentence would have been the same had the "exceptional
depravity" prong of aggravator 29-2523(1)(d) not been considered by
the sentencing panel.




                               -17-
     In Christopher Walden's murder, the evidence shows Christopher
was abducted, forced to strip, and forced to lie in the cold snow
while Joubert strangled him.      The strangling continued until
Joubert's hands got too cold, at which time he switched to stabbing
and slicing. Christopher suffered seven antemortem stabbing and
slicing wounds, not counting the large cutting wound inflicted when
Joubert slit his throat. Christopher remained alert and conscious
during this ordeal, gradually lapsed into a coma, and died from
loss of blood. Five of the antemortem wounds were in areas of thin
skin, but did not penetrate deeply, indicating Christopher had been
tortured. These facts support findings of torture, sadism, and
extreme suffering of the victim, including extreme psychological
terror. We find that these facts establish beyond a reasonable
doubt that the "especially heinous, atrocious, [and] cruel" prong
would have been applied to Joubert even had the sentencing panel
not considered the "exceptional depravity" prong in Christopher's
case.


     The panel also found that Joubert killed Christopher, in part,
to conceal his own identity. The evidence shows that after being
abducted, Christopher began to weep.     Joubert was touched, and
wanted to let the boy go, but decided against it, as he thought
Christopher would surely identify him. He therefore decided he
must kill Christopher as planned. As discussed above, killing with
multiple motives in no way lessens the factual existence of each
motive. The evidence shows beyond a reasonable doubt that Joubert
decided that he must go through with his plan to kill Christopher
in order to conceal his identity as abductor. Thus, the evidence
supports the application of this aggravating factor.     As a third
aggravating circumstance, the sentencing panel found that Joubert
had a substantial history of serious assaultive criminal behavior
at the time he killed Christopher. The panel relied on Joubert's
previous murder of Danny to apply this factor.      Even one prior
premeditated first-degree murder constitutes a substantial history


                               -18-
of serious assaultive criminal behavior, and we find that this
aggravator was established beyond a reasonable doubt.


     In mitigation in Christopher's case, the panel gave Joubert
credit for his guilty plea. It also considered Joubert's sexual
fantasies to be an extreme mental disturbance. Again, there was
evidence Joubert could control his actions in regard to these
fantasies. Reweighing these factors, as described above, we find
the overwhelming force of the evidence to be that the same penalty
would have been imposed even in the absence of the "exceptional
depravity" prong of aggravator 29-2523(1)(d). We therefore find
any error as to the application of that prong, its subsequent
narrowing, or any arguable reweighing done by the Nebraska Supreme
Court to have been harmless beyond a reasonable doubt.

     B. Improper Application of Aggravating Factors


     Joubert argued to the district court that the State of
Nebraska improperly applied the statutory aggravating factor 29-
2523(1)(b), killing to hide the perpetrator's identity, and
aggravator 29-2523(1)(a), having a substantial history of serious
assaultive criminal behavior, to him. He argues that the evidence
does not support their application.          When considering a
 section 2254 petition, we review the factual basis supporting the
application of aggravating circumstances under the deferential
Jackson v. Virginia sufficiency of the evidence test,11 and reverse
only where the evidence is so slim that finding the aggravator
amounts to arbitrary and capricious action. See Lewis v. Jeffers,
497 U.S. 764, 783 (1990).   Viewing the evidence most favorably to
the state, we affirm if any reasonable factfinder could have found


     11
      Under the Jackson v. Virginia standard, a court review "the
evidence in the light most favorable to the prosecution [to
determine whether] any rational trier of fact could have found the
essential elements . . . beyond a reasonable doubt." 443 U.S. 307,
319 (1979).

                               -19-
the existence of the aggravators beyond a reasonable doubt. We
have already discussed the evidence supporting the application of
each of the aggravators in depth and found, de novo, that it
established each of these aggravators beyond a reasonable doubt.
We must necessarily reach the same conclusion under the Jackson v.
Virginia standard. Nonetheless, we elaborate.


     In Joubert's recitation of the details of both murders, he
tells of a point in each where the victims' actions caused him to
reconsider his plan to kill them.     In both cases, he continued
expressly to avoid the boys getting him in trouble by identifying
him. Viewing this evidence most favorably to the state, we find it
to be such that a reasonable factfinder could find the aggravating
circumstance of killing to avoid identification by the victim to be
established beyond a reasonable doubt.


     In Christopher's case, the panel found that Joubert's murder
of Danny amounted to a substantial history of serious assaultive
criminal behavior.    We find Joubert's argument that only one
previous, premeditated, first-degree murder does not amount to a
substantial history of serious assaultive criminal behavior to be
absurd, and find that this evidence easily satisfies the Jackson
standard.    Therefore, Joubert's claims as to the improper
application of these aggravating factors are without merit.

     C. Plea Bargain


     Joubert argues that the trial court improperly injected itself
into the plea bargaining process by agreeing to accept a plea
conditional on the outcome of a suppression hearing and thus
coerced his plea. The context of the trial court's statement was
the following.   Joubert's counsel wanted a suppression hearing
before empaneling a jury, but the trial judge feared that due to
the gruesome details of the case any such hearing would render
empaneling an impartial jury virtually impossible.          Counsel

                               -20-
insisted that his client would be prejudiced if he had to question
jurors as to their attitudes towards confession during voir dire,
only to have the confession subsequently suppressed, and that the
situation impaired his ability to bargain with the prosecutor. In
response, the court told counsel it was tentatively leaning towards
denying the pending suppression motion, but clarified that it would
have no problem accepting a plea conditional on the outcome of that
motion, and that such a plea would not prejudice the court's
consideration of that motion.       However, Joubert pled guilty
unconditionally and no suppression hearing was ever held. Because
neither Joubert nor his counsel raised the suppression hearing at
the plea proceedings, we review this claim under the plain error
standard. See United States v. McBride, 862 F.2d 1316, 1319 (8th
Cir. 1988).


     We fail to see how the trial court's mere indication of its
willingness to accept a conditional plea amounts to the court
injecting itself into the plea bargaining process. Further, we are
perplexed by Joubert's argument that the trial court somehow
wronged him by not holding a suppression hearing when his plea was
unconditional. That Joubert was unable, for whatever reason, to
secure from the prosecution an agreement to a conditional plea, and
therefore did not present such a plea to the trial court, in no way
renders that court's willingness to accept such a plea, if offered,
coercive.    We simply do not see any error in these events.
Further, the record clearly shows that the trial court alerted
Joubert to the fact that an unconditional plea would be the death
knell to any suppression hearing, and ascertained that Joubert's
confession, as well as his plea, was knowing, voluntary, and
uncoerced before accepting either plea.12 Thus, even if there were


     12
       At the plea hearing, Joubert testified that the police had
promised him nothing and had informed him of his rights, in detail,
before he confessed. Further, Joubert's counsel, in response to
the court's searching questioning as to the voluntariness and
admissibility of the confessions, stated that the confessions were

                               -21-
some error which escapes us, there was no prejudice.   This claim is
without merit.

     D. Ineffective Assistance


     This claim is related to the one directly above, in that
Joubert argues that his attorney was ineffective for failing to
inform him that the court would consider a conditional plea. The
evidence as to whether or not Joubert knew the court would accept
a conditional plea is conflicting, but the ineffective assistance
claim fails for lack of prejudice.      To establish ineffective
assistance, a petitioner must show both deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Joubert cannot show prejudice.


     As the Supreme Court stated in Lockhart v. Fretwell, a
defendant is not entitled to have a court make an error of law,
however favorable. 113 S. Ct. 838, 843 (1993). Therefore, failure
of a court to make a legal error in the defendant's favor cannot
establish prejudice. Id. The record and Joubert's own testimony
establish that his confessions were not coerced and should not have
been suppressed. Thus, even if Joubert's attorney failed to inform
him of the trial court's willingness to accept a conditional guilty
plea, and even if that failure amounted to deficient performance
under Strickland, Joubert cannot show prejudice, and this claim
must fail.

     E. Nebraska's Death Penalty Scheme is Facially Arbitrary
        and Arbitrary as Applied.


     This claim amounts to an attack on the prosecutorial and
sentencing discretion inherent in our system of law, in that actors
are permitted to show mercy. Mercy may arise from a favorable plea


clearly admissible.

                                 -22-
bargain, from the failure to pursue a death sentence, or from the
sentencer's refusal to impose the death sentence even when it would
be permissible to do so. However, the Supreme Court has already
explicitly rejected the argument that the possibility of
prosecutors or sentencers showing mercy renders a death penalty
scheme arbitrary. Proffitt v. Florida, 428 U.S. 242, 254 (1976);
Gregg v. Georgia, 428 U.S. 153, 199-204 (1976).          The Court
explained that nothing in the Constitution forbids a decision to
grant individual defendants mercy, rather the inquiry into
arbitrariness focuses on the system leading to an ultimate denial
of mercy. Gregg, 428 U.S. at 199. In fact, the Court intimated
that a regime with no room for mercy would be alien to our system
of law and unconstitutional in itself.       Id. at 199-200 n.50.
Therefore, this claim too is without merit.

III. CONCLUSION


     For the reasons set out above, we reverse the district court's
grant of the writ, and affirm its decisions on all other issues.


BRIGHT, Circuit Judge, dissenting.


     I dissent.


     The Nebraska law in one of the aggravating circumstances
underlying a possible death sentence contains the clause that the
"murder . . . manifested exceptional depravity by ordinary
standards of morality and intelligence."1 Neb. Rev. Stat. § 29-
2523(1)(d) (Reissue 1985). The Eighth Circuit has determined that
the "exceptional depravity" clause is unconstitutionally vague on


     1
      The full statutory aggravating factor in question contains
two clauses and reads, "The murder was especially heinous,
atrocious, cruel, or manifested exceptional depravity by ordinary
standards of morality and intelligence." Neb. Rev. Stat. § 29-
2523(1)(d).

                               -23-
its face. See Moore v. Clark, 904 F.2d 1226, 1228-33 (8th Cir.
1990). The appeal by Warden Hopkins on behalf of Nebraska raises
three relatively simple, uncomplicated issues.


     1. Whether a procedural bar exists to prevent Joubert from
presenting his claim in federal court in a habeas application that
the above-quoted aggravating circumstance was unconstitutionally
vague?


     The district court answered "no" to that question.      The
majority says "yes." I agree with the district court for reasons
stated in its decision and as amplified below.


     2. Whether, on the merits, the application by the Nebraska
sentencing court of the aggravator in question prejudiced Joubert?
The district court determined that prejudice existed because the
sentencing panel relied heavily on this aggravating circumstance
based on the Nebraska sentencing panel's statement as follows:


          We recognize that all murders may be characterized
     as atrocious and cruel, and further recognize there must,
     of necessity, be some interval of time between even the
     most savage of knife attacks and a resulting death. We,
     nevertheless, conclude this aggravating circumstance is
     applicable with respect to both clauses, recognizing the
     evidence and factors on the second clause of the
     aggravating circumstance far outweigh those under the
     first clause.

          We conclude and find beyond a reasonable doubt this
     aggravating circumstance exists in both crimes for which
     the defendant is to be sentenced.


Appellant's Addendum, at p. 6 (emphasis in addendum).


     I agree with the district court. I read the majority opinion
as not in direct disagreement.
     The district court found that such greater reliance on
     the unconstitutionally vague prong rendered the death

                               -24-
     sentence infirm under Stringer v. Black, 503 U.S. 222,
     232 (1992) (use of an invalid aggravator in a weighing
     state amounts to an impermissible thumb on death's
     scale). While we might agree with the district court's
     Stringer concerns, we reverse on other grounds.


Slip op. at 5.


     3. Whether the error is harmless? The majority finesses the
prejudicial impact of the unconstitutional aggravator by asserting
that the unconstitutional imposition of the aggravator is "harmless
error." Slip op. at 15-19. The majority's harmless error analysis
does not relate to the aggravator here in question, but instead
concludes that the application of other aggravating circumstances
requires the death penalty.


     The majority's determination of harmless error cannot stand.
We have stated that:


     Rather, the issue under Chapman [Chapman v. California,
     386 U.S. 18 (1967)] is whether the sentencer actually
     rested its decision to impose the death penalty on the
     valid evidence and the constitutional aggravating
     factors, independently of the vague factor considered; in
     other words, whether what was actually and properly
     considered in the decision-making process was "so
     overwhelming" that the decision would have been the same
     even absent the invalid factor.


Williams v. Clarke, 40 F.3d 1529, 1541 (8th Cir. 1994).



     The Chapman standard for harmless error as reiterated in
Williams cannot be met in light of the sentencing panel's heavy
reliance on the "exceptional depravity" clause.


     My further discussion follows.




                               -25-
     1.   Exceptional Depravity Clause Invalidity.


     Joubert's sentencing panel noted that the exceptional
depravity aggravating circumstance "describes in the disjunctive
two [separate situations] which may . . . operate in conjunction
with . . . or independent of one another" distinguishing the first
"heinous, atrocious or cruel" clause (which focuses on the victim's
perspective) from the second "exceptional depravity" clause
(focusing on the defendant's state of mind as manifested by his
conduct, characterized here by the planning and repetitive nature
of the murders).     Joubert's sentencing panel concluded "this
aggravating circumstance is applicable with respect to both
clauses, recognizing the evidence and factors on the second clause
of the aggravating circumstance far outweigh those under the first
clause." In defining the second "exceptional depravity" clause,
the sentencing panel relied on the Nebraska Supreme Court's
definition in State v. Moore, 316 N.W.2d 33 (Neb. 1982).


     On appeal, the Nebraska Supreme Court agreed with the
sentencing panel in both the factual findings and conclusions of
law as to the construction of section 29-2523(1)(d).    State v.
Joubert, 399 N.W.2d 237, 250-51 (Neb. 1986).


     The Eighth Circuit has since granted habeas relief in the
Moore case, determining that this second "exceptional depravity"
clause or prong was unconstitutionally vague, and that the
facially-vague statute had not then been salvaged by the Nebraska
Supreme Court's construction of it. See Moore v. Clark, 904 F.2d
1226, 1228-33 (8th Cir. 1990). As the district court concluded,
and the majority seems to concede, see infra, slip op. at 5, the
sentencing panel's greater reliance on the unconstitutionally vague
"exceptional depravity" prong could make Joubert's death sentence
infirm under Stringer v. Black, 503 U.S. 222, 232 (1992) (using
invalid aggravator in weighing state amounts to impermissible thumb
on death's scale). See also Joubert, 399 N.W.2d at 252 (balancing

                               -26-
of aggravating circumstances against mitigating circumstances not
merely matter of number counting, but rather requires careful
weighing of various factors and reasoned judgment as to which
factual circumstances require imposition of death and which can be
satisfied by life imprisonment in light of totality of
circumstances).

     2.   Joubert raised the exceptional depravity issue on direct
appeal.


     In his direct appeal, Joubert challenged the sentencing
panel's imposition of section 29-2523(1)(d). The federal district
court concluded that due process was inherent in the analysis of
that issue.   I believe that the vagueness issue was raised in
Joubert's direct appeal brief.      In his brief to the Nebraska
Supreme Court, Joubert extensively quoted from the definitions of
both prongs one and two of section 29-2523(1)(d) contained in State
v. Moore, 316 N.W.2d 33 (Neb. 1982)--the same definitions employed
by his sentencing panel. (See Appellant's Appendix at 66-67.) He
argued that the "exceptional depravity" prong, as defined by the
Nebraska Supreme Court in Moore, "pertaining to the state of mind
of the perpetrator, would apply to any perpetrator of a first
degree (premeditated) murder[,]" and in fact, "would apply equally
to all persons convicted of premeditated murder."      (Appellant's
Appendix at 67-68.)    He argued that, as in State v. Hunt, 371
N.W.2d 708 (Neb. 1985), nothing appeared in this case beyond the
ordinary circumstances which attend any death-dealing violence, see
Appellant's Appendix at 68, implying there was nothing to
distinguish this from other capital cases in which the death
sentence was not imposed.


     Because Joubert in a substantial way asserted a vagueness
claim before the state court on direct appeal, the majority errs in
concluding that Joubert is procedurally barred from asserting these
claims in his federal habeas petition. See Smith v. Lockhart, 921

                               -27-
F.2d 154, 156 n.3 (8th Cir. 1990); see also Anderson v. Harless,
459 U.S. 4, 6 (1982) (per curiam) (habeas petitioner must have
fairly presented to state courts "substance" of his federal claim);
Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir.) (finding specific
references in brief more than sufficient to deem issue fairly
presented and court need not consider cause and prejudice), cert.
denied, 113 S. Ct. 2950 (1993).


     In his concurring opinion, Nebraska Supreme Court Chief
Justice Krivosha responded to Joubert's vagueness claim, and
asserted that Joubert misunderstood State v. Hunt. See Joubert,
399 N.W.2d at 253. Although Justice Krivosha focused his response
upon the first "especially heinous" prong of section 29-2523(1)(d),
see id. at 253-57, his opinion seems to acknowledge Joubert's
challenge to the second "exceptional depravity" prong, but does not
discuss the phrase "exceptional depravity" because Chief Justice
Krivosha suggests that "exceptional depravity" is simply a further
factor in determining "especially heinous." Joubert, 399 N.W.2d at
258. In my view, that discussion is sufficient to indicate that
the Nebraska Supreme Court Justices in essence recognized and
rejected sub silentio Joubert's "exceptional depravity" vagueness
claim.


     I also briefly address the comments in the majority opinion,
slip op. at 4, that perhaps the Nebraska Supreme Court may have
narrowed the statutory language of "exceptional depravity." The
Nebraska Supreme Court did not contend it was narrowing the
definition used by the sentencing panel; rather, it wholeheartedly
adopted the panel's factual findings and conclusions of law
regarding    the    construction   of    section    29-2523(1)(d),
notwithstanding its references to State v. Palmer, 399 N.W.2d 706
(Neb. 1986), cert. denied, 484 U.S. 872 (1987). See Joubert, 399
N.W.2d at 251. The Appellant Warden Hopkins does not suggest that
the Nebraska Supreme Court cured the constitutional defect by
reweighing on direct appeal; instead, the appellant asserts that,

                               -28-
even if the district court was correct in granting the writ, it
erred in its alternative to habeas relief, requiring a remand to
the sentencing court rather than to the Supreme Court of Nebraska
for appropriate remedial action of reweighing or harmless error
analysis. (Appellant's Br. at pp. 42-44.)

     3.   Harmless Error


     Finally, the majority determines that even if Nebraska's
"reweighing" were improper, any error would be harmless beyond a
reasonable doubt. I disagree. As we observed in Moore v. Clark,
904 F.2d at 1228, the Nebraska Supreme Court itself traditionally
has not applied a harmless error analysis in cases where an
aggravating circumstance is found to have been invalidly applied.
See State v. Bird Head, 408 N.W.2d 309, 319-20 (Neb. 1987)
(reversing and remanding where error in sentencing panel's
determination   that  beyond   a  reasonable   doubt  aggravating
circumstance existed); State v. Jones, 328 N.W.2d 166, 174 (Neb.
1982) (death sentence must be reversed and cause remanded where
invalid aggravating circumstance applied).      But cf. State v.
Reeves, 476 N.W.2d 829, 837 (Neb. 1991) (relying on Clemons to
conduct harmless error review, but concluding error not harmless
beyond reasonable doubt). Where the state usually rejects such an
analysis, I think it inappropriate for this court to assert
harmless error where life or death hang in the balance.       The
district court analyzed harmless error in part as follows:


          Greatly significant is the fact that the sentencing
     panel found that the evidence and factors relating to the
     second prong that was later declared unconstitutionally
     vague "far outweigh[ed]" those relating to the first
     prong. (Ex. 18 (R.) at 46.)

. . . .

         [I]n a case remarkably similar to Joubert, the
    Eighth Circuit affirmed the district court's granting of
    a writ of habeas corpus based on the unconstitutional

                               -29-
    vagueness   of  the second     portion   of   aggravating
    circumstance (1)(d). Moore, 904 F.2d at 1234. In Moore,
    the sentencing panel relied on the second, but not on the
    first, portion of aggravating circumstance (1)(d). Id.
    at 1229.   After an extensive discussion regarding the
    unconstitutionality of the second portion of (1)(d), Id.
    at 1229-33, the Eighth Circuit affirmed the district
    court's conclusion that Moore be "resentenced to life
    imprisonment   unless   the   State   initiated   capital
    resentencing proceedings within a reasonable time after
    judgment became final."     Id. at 1228.    Regarding the
    Eighth Circuit's decision to affirm the district court,
    the Eighth Circuit stated:

         Since the Nebraska death penalty statute requires
         that aggravating and mitigating circumstances be
    weighed against each other, Neb. Rev. Stat. § 29-2522,
    and the Nebraska Supreme Court does not apply a harmless
    error analysis in cases where an aggravating circumstance
    is found to have been       invalidly applied, Moore's
    sentence would have to be vacated for new sentencing
    proceedings.

    Id. at 1228.

         The Court finds that in the Joubert case, the death
    sentences    have   been    "infected,"   Id.,    by   an
    unconstitutionally vague factor.     In determining that
    aggravating circumstance (1)(d) applied, the sentencing
    panel specifically stated that "the evidence and factors
    on the second clause of the aggravating circumstances far
    outweigh those under the first clause." (Ex. 18 (R.) at
    46.)   This Court is bound to recognize the Nebraska
    Supreme Court's characterization of Nebraska law relating
    to the imposition of the death penalty. Stringer, 112 S.
    Ct. at 1137. The Nebraska Supreme Court has stated that
    aggravating circumstance (1)(d) is comprised of two
    separate, disjunctive circumstances which may operate
    either together or independently. See, e.g., Reeves, 476
    N.W.2d at 838. However, the Nebraska Supreme Court has
    instructed that the process of weighing aggravating and
    mitigating circumstance should not consist of a mere
    counting of aggravating factors, but rather the process
    should entail a very careful examination and weighing of
    the factors, given the totality of the circumstances.
    Id. at 836 (quoting Victor, 457 N.W.2d at 447); Stewart,
    250 N.W.2d at 862-63.


Appellant's Addendum at pp. 6, 7, 8 and 9.



                              -30-
     The district court found the error to have "tainted" the
sentence. Appellant's Addendum at p. 8. That finding establishes
prejudice. Under the guise of harmless error, the majority its
seems has reweighed the sentencing factors. Reweighing however, is
a task for the Nebraska courts.


     In sum, Joubert's death sentence cannot stand. I would affirm
the district court's grant of habeas relief changing Joubert's
sentence to life imprisonment without possibility of parole unless
the Nebraska State courts provide appropriate post-sentencing or
resentencing procedures.


     A true copy.


          Attest:


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




                              -31-
