                                 ____________

                            Nos. 96-1305/1306
                              ____________


C. Michael Anderson,         *
                                    *
     Appellee/Cross-appellant,*
                                    *     Appeals from the United States
     v.                             *     District Court for the
                                    *     District of Nebraska
Frank X. Hopkins,                   *
                                    *
     Appellant/Cross-appellee.*

                                 ____________

                    Submitted:   October 21, 1996

                        Filed:    May 12, 1997
                                 ____________

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and BEAM,
      Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


     The State of Nebraska (state) appeals from a final order and judgment
entered in the United States District Court1 for the District of Nebraska
granting partial relief on a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by C. Michael Anderson (petitioner).   Anderson
v. Hopkins, No. CV 84-L-741 (D. Neb. Jan. 16, 1996) (Memorandum Opinion)
(hereinafter "slip op."); id. (Order and Judgment).      For reversal, the
state argues that the district court erred in holding that it was not
harmless beyond a reasonable doubt for the Nebraska state




     1
     The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
courts to consider an unconstitutionally vague statutory aggravating factor
in sentencing petitioner to the death penalty.             Slip op. at 48 (reducing
petitioner's sentence from death to life imprisonment, subject to an
opportunity for the Nebraska Supreme Court, within ninety days, to reweigh
the aggravating and mitigating circumstances, conduct a harmless error
review, or remand the case to the state trial court for resentencing).
Petitioner cross-appeals.      He argues that the district court erred in: (1)
permitting the Nebraska Supreme Court an opportunity to conduct a harmless
error    review;    (2)   denying    on   the    merits    his   claims     of    federal
constitutional and statutory violations resulting from the state trial
court's admission of Lon Reams's testimony at trial; (3) denying on the
merits his claims of ineffective assistance of trial counsel; and (4)
denying his remaining claims for habeas relief because they have been
procedurally defaulted and the default is not excused by cause and
prejudice nor would its enforcement result in a fundamental miscarriage of
justice, or because they otherwise may not be raised in this § 2254 action.
We modify the order and judgment of the district court and, for the reasons
stated below, affirm the order and judgment as modified.


                                    Background


        The following facts are largely taken from the Nebraska Supreme
Court's decision affirming petitioner's conviction and sentence.                 State v.
Anderson, 296 N.W.2d 440 (Neb. 1980), cert. denied, 450 U.S. 1025 (1981).
On November 2, 1975, the body of Ronald J. Abboud, petitioner's employer,
was discovered in a rural area near Omaha, Nebraska.             He had been shot in
the head, back, and neck with a .22 caliber pistol.                   By June 1976,
petitioner and his friend, Peter Hochstein, were suspects in the police
investigation      of   Abboud's   murder.      Abboud's   family   hired    a    private
investigator,




                                          -2-
Dennis   Whelan,      and   instructed   him   to   investigate   petitioner's    and
Hochstein's involvement in the crime.          Whelan was informed that Lon Reams
was associated with petitioner and possibly also involved.            At that time,
the police already knew about Reams and had interviewed him as part of
their investigation.


       Whelan's investigation of petitioner and Hochstein included, among
other things, wiretapping their apartments.              Whelan also interviewed a
woman named Mila Dickman who was employed by petitioner and was closely
associated with Reams.       In the spring of 1977, Whelan informed the county
prosecutor, Samuel Cooper, about his suspicions of petitioner, Hochstein,
and Reams; according to Cooper's testimony at a later suppression hearing,
however, Whelan did not provide Cooper with any new information.               Later,
Cooper instructed Whelan to cease his wiretapping operation.            Whelan also
learned from Cooper that there was a possibility that Reams would be
granted immunity if Reams were to testify against petitioner and Hochstein.
Whelan relayed this information to Reams and, at the same time, falsely
told   Reams   that    he   (Whelan)   had   overheard   petitioner   and   Hochstein
conspiring against Reams and that he knew the prosecutor had a strong case
against Reams.     After consulting with an attorney, Reams met with Whelan
and admitted his involvement in the murder of Abboud.              Later that day,
Reams provided Cooper with a statement regarding the murder of Abboud.
       Reams agreed to testify against petitioner and Hochstein under a
grant of immunity.      The facts, according to his testimony, are summarized
as follows.     Petitioner was extremely hostile toward Abboud because of
Abboud's unfair business practices, a matter which petitioner, Hochstein,
and Reams discussed.        At some point, Hochstein fixed Reams's .22 caliber
Ruger pistol and offered to murder Abboud for money.          Petitioner agreed to
pay Hochstein $1,500 to kill Abboud.           It was agreed that Hochstein would
pose as a




                                         -3-
prospective purchaser of a remote piece of rural land which Abboud's real
estate company was selling, request that Abboud drive him to the site, kill
Abboud once there, and then telephone Reams who was to telephone petitioner
and pick up Hochstein.   Their first attempt failed because Abboud was not
alone when he showed Hochstein the property.      Hochstein then scheduled
another visit to the site and, when Abboud alone drove Hochstein there,
Hochstein murdered Abboud and dumped Abboud's body in a creek bed.     The
body was discovered three days later.
     The jury found petitioner and Hochstein each guilty of first degree
murder.   Following the trial, a sentencing hearing took place before a
three-judge panel, which unanimously sentenced petitioner and Hochstein
each to the death penalty.    State v. Anderson, Nos. 99-392/99-394 (Neb.
Dist. Ct. Aug. 24, 1978) (Order of Sentencing).   The sentencing court held
that two statutory aggravating factors applied to petitioner's case: (1)
petitioner hired another to commit the murder, as contemplated in Neb. Rev.
Stat. § 29-2523(1)(c) (hereinafter referred to as § (1)(c)), and (2) the
murder "manifested exceptional depravity by ordinary standards of morality
and intelligence," within the meaning of the second prong of Neb. Rev.
Stat. § 29-2523(1)(d) (hereinafter referred to as § (1)(d)).2   Petitioner
and Hochstein appealed to the Nebraska Supreme Court, which unanimously
affirmed their convictions and sentences.   State v. Anderson, 296 N.W.2d
at 454.




           2
           The aggravating circumstances in Neb.              Rev.   Stat.
§ 29-2523(1)(c), (d) are fully set forth as follows:

     (c) The murder was committed for hire, or for pecuniary
     gain, or the defendant hired another to commit the murder
     for the defendant;

     (d) The murder was especially heinous, atrocious, cruel,
     or manifested exceptional depravity by ordinary standards
     of morality and intelligence.

                                    -4-
     Petitioner originally filed the present habeas action in federal
district court in 1984.           Petitioner, with leave of court, amended his
habeas petition in 1985 and 1986.         In 1986, the state filed a response.
A magistrate judge subsequently stayed the petition pending a final
decision in an unrelated case which was pending before the Eighth Circuit
and involved the constitutionality of the second prong of § (1)(d), setting
forth the "exceptional depravity" aggravator.        In 1991, the Eighth Circuit
disposed of that case, holding that the "exceptional depravity" language
of § (1)(d) was too vague to provide sufficient guidance to the sentencer
and, at the time the petitioner in that case was sentenced, that language
had not been construed by the Nebraska Supreme Court with sufficient
specificity to meet constitutional standards.         Moore v. Clarke, 951 F.2d
895, 896-97 (8th Cir. 1991) (Moore) (denying petition for rehearing), cert.
denied, 504 U.S. 930 (1992).3


     After the Eighth Circuit decided Moore, the stay imposed in the
present habeas action was lifted.         The state conceded that, in light of
Moore,       the   "exceptional   depravity"   aggravator   had   been   improperly
considered by the sentencing panel, but argued that the error was harmless
beyond a reasonable doubt, as was the case in Williams v. Clarke, 40 F.3d
1529 (8th Cir. 1994) (Williams), cert. denied, 115 S.Ct. 1397 (1995).4


     3
     In Moore v. Clarke, 951 F.2d 895, 897 (8th Cir. 1991), cert.
denied, 504 U.S. 930 (1992), the Eighth Circuit noted "[t]he
standard applied to Moore in 1980 was modified substantially six
years later by [State v. Palmer, 399 N.W.2d 706 (1986), cert.
denied, 484 U.S. 872 (1987)], and the changes found desirable by
the Nebraska Supreme Court in Palmer then demonstrate that the
standards applied to Moore were vague."
         4
       In Williams v. Clarke, 40 F.3d 1529, 1540 (8th Cir. 1994)
(Williams), cert. denied, 115 S.Ct. 1397 (1995), the district court
had granted the petitioner a writ of habeas corpus because the
death penalty in that case had been based in part upon a finding of
"exceptional depravity" under the second prong of Neb. Rev. Stat.
§ 29-2523(1)(d). On appeal, the Eighth Circuit held that, absent
Supreme Court authority to the contrary, this court is authorized
to use the constitutional harmless error standard when a state
sentencing court has considered an unconstitutionally vague portion
of an aggravating circumstance. The Williams court then went on to
conclude, in that case, that the sentencing court's consideration

                                         -5-
Upon review of both the sentencing




of the "exceptional depravity" factor was harmless beyond a
reasonable doubt and reversed the district court's decision to
grant habeas relief. Id. at 1541-42.

                                     -6-
court's and the Nebraska Supreme Court's written decisions, the district
court    concluded:   "[i]t    is   clear    from   those   opinions   that   both    the
sentencing court and the Nebraska Supreme Court placed considerable weight
on the exceptional depravity aggravator."           Slip op. at 48.    On that basis,
the district court reasoned:


        this Court cannot say that there is no reasonable possibility
        that the aggravating circumstance 1(d) might have contributed
        to the decision to impose the death penalty, and that is the
        standard the Court is required to apply. For these reasons,
        the Court believes that the petition for writ of habeas corpus
        must be granted as to this issue.      However, this does not
        require a retrial or resentencing. It does require that the
        petitioner's sentence be reduced to life imprisonment unless
        within ninety (90) days of the date of this opinion, the
        Nebraska Supreme Court either reweigh[s] the aggravating and
        mitigating circumstances, conduct[s] a harmless error review,
        or remand[s] the case back to the Douglas County District Court
        for resentencing.


Id.


        Providing   detailed    reasons,     the    district   court   denied   all   of
petitioner's remaining claims for habeas relief.            Id. at 3-42, 48-50.      This
appeal and cross-appeal followed.




                                            -7-
                                       Discussion


State's appeal on harmless error issue


      The state appeals the district court's holding that it was not
harmless error for the state sentencing court and the Nebraska Supreme
Court to consider the unconstitutional aggravator in their respective
decisions to impose and uphold the death penalty.                 The state argues that
the district court erred in focusing on whether the state courts placed
considerable    weight     on    the   invalid   factor    and    whether   that   factor
contributed to their decisions.          By contrast, the state argues, the test
under Williams, 40 F.3d at 1541, looks at whether the properly considered
valid factors were so overwhelming that the decision would have been the
same in the absence of the invalid factor.                Although the only properly
considered aggravator was the § (1)(c) murder-for-hire factor, and the only
mitigating factor was that petitioner did not have a prior criminal record,
the state contends that the "exceptional depravity" aggravator played a
relatively minor role in both state courts' decisions.                 For example, the
state highlights the following statement by the sentencing court: "[t]he
evil inherent in the long planning of this murder, and in the deliberate
avoidance of opportunities to withdraw far overcomes the fact that, before
defendants began to plan this atrocity, defendants were law-abiding
citizens."     State v. Anderson, Nos. 99-392/99-394, slip op. at 16 (Neb.
Dist. Ct. Aug. 24, 1978).        Moreover, the state notes, the sentencing court
specifically observed that this type of cold, calculated, and dispassionate
murder plot was unprecedented in the Nebraska case law.                Id. at 17.     The
state also maintains that all of the circumstances that were considered by
the   sentencing   court    in    connection     with   the   §    (1)(d)   "exceptional
depravity" factor were equally relevant to the § (1)(c) murder-for-hire
aggravator, which




                                           -8-
was properly considered.    Thus, the state concludes, the outcome of the
weighing process would have been the same even if the "exceptional
depravity" factor had not been separately        considered.     Turning to the
Nebraska Supreme Court's decision, the state notes strong language from
that opinion as well, and argues that the § (1)(c) murder-for-hire aspect
of the killing was particularly influential in that court's unanimous
decision to uphold the death penalty.     The Nebraska Supreme Court explained
"the killing of Abboud was a business transaction and a most aggravating
circumstance within the meaning of § 29-2523."         State v. Anderson, 296
N.W.2d at 454.   The Nebraska Supreme Court further opined:


      [i]f ever a situation exists in which the imposition of the
      death penalty is appropriate, it is clearly in the case of
      "killers for hire." A careful review of the entire record in
      light of both § 29-2523 and the previous decisions of this
      court discloses that there are no mitigating factors in this
      case which would justify not imposing the most severe penalty
      for the most heinous crime[:] the absolute and willful killing
      of a human for money. We believe the imposition of the death
      penalty in this case is amply justified.


Id.   Therefore, based upon the strong language employed by both the state
sentencing court and the Nebraska Supreme Court, and the fact that the
considerations related to the murder-for-hire aggravator were virtually the
same as those related to the "exceptional depravity" aggravator, the state
argues that the district court should have found harmless error because the
properly   considered   murder-for-hire    factor    was   so   overwhelming   in
comparison to the mitigating factor that the outcome would have been the
same absent the "exceptional depravity" factor.
        In response, petitioner argues that the district court properly
concluded that the use of the "exceptional depravity" factor was not
harmless beyond a reasonable doubt.     Petitioner




                                    -9-
emphasizes that Nebraska is a pure "weighing" state -- in other words, the
state   courts     are   required   by    state   law   to    weigh   the   aggravating
circumstances against the mitigating circumstances in determining whether
the death penalty is appropriate in a given case.               Petitioner cites Neb.
Rev. Stat. § 29-2522(2), which provides "[o]ne is not death eligible so
long    as   the   weight   of   the     statutory   and     nonstatutory    mitigating
circumstances approaches or exceeds the weight of the statutory aggravating
circumstances."      Petitioner argues that, because the sentencing court
viewed the § (1)(c) and § (1)(d) considerations as integrally related, the
whole weighing process was tainted by the unconstitutionally vague factor
and it is impossible to conclude that the outcome of that weighing process
would have been the same absent the invalid "exceptional depravity"
considerations.     Petitioner distinguishes the present case from Williams
on the ground that, in Williams, the first prong of § (1)(d) and three
other valid aggravators were present.         Petitioner also maintains that the
district court considered and rejected the state's argument that the
Nebraska Supreme Court treated the "exceptional depravity" aggravator as
having minor importance.         In any case, petitioner asserts, the Nebraska
Supreme Court's opinion is fundamentally flawed insofar as it contains
legal generalizations which conflict with the constitutional requirement
of individualized sentencing in capital cases and the constitutional
prohibition against limits on the sentencer's discretion not to impose the
death penalty.     Finally, petitioner notes that -- although Nebraska courts
are required to weigh, not count, aggravating and mitigating circumstances
-- it is nevertheless true that no Nebraska court has ever imposed the
death penalty on the basis of only one aggravating factor, which would be
the effect of reversing the district court's finding of no harmless error
in the present case.




                                          -10-
     Upon de novo review, we agree with the district court's recognition
in the present case of a reasonable possibility that the invalid aggravator
contributed to the state courts' decisions.      Moreover, contrary to the
state's argument, the district court's analysis in the present case is not
inconsistent with Williams.   The following quotation from Williams, 40 F.3d
at 1541, contains the "so overwhelming" language upon which the state
relies, and puts that language into its proper context.


           [I]n a federal habeas review where the state trial or
     appellate court found no constitutional error and thus had no
     reason to consider harmlessness, we apply the Chapman[5]
     analysis to determine if the constitutional error that we have
     identified requires habeas relief.

     . . . .

           We recognize the heavy burden the state bears in proving
     that a constitutional error is harmless beyond a reasonable
     doubt. . . . [T]he issue under Chapman 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.


     In the present case, the district court held that it could not say
that there was no reasonable possibility that the aggravating circumstance
in § (1)(d) might have contributed to the decision to impose the death
penalty.    Implicit in this holding is the conclusion that the state has
failed to meet its burden of proving either that the state courts actually
rested their death penalty decisions on "the valid evidence and the
constitutional aggravating factors, independently of the vague factor
considered" or that




     5
         Chapman v. California, 386 U.S. 18 (1967).

                                    -11-
"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."        Id.    Therefore, the district court's reasoning
was not materially inconsistent with Williams.                 In sum, we hold in the
present     case   that   the   state    has   not   sufficiently     demonstrated   that
petitioner's sentence would have been the same under Nebraska state law
absent consideration of the invalid factor.                   We affirm the order and
judgment of the district court on this harmless error issue.


Petitioner's cross-appeal on independent harmless error review


      As     noted   above,      the     district    court,    upon    concluding    that
consideration of the "exceptional depravity" factor was not harmless beyond
a reasonable doubt, ordered that petitioner's sentence be reduced to life
imprisonment "unless within ninety (90) days of the date of this opinion,
the Nebraska Supreme Court either reweigh[s] the aggravating and mitigating
circumstances, conduct[s] a harmless error review, or remand[s] the case
back to the Douglas County District Court for resentencing."                Slip op. at
48.   Petitioner, on cross-appeal, challenges only that portion of the
above-quoted language which permits the Nebraska Supreme Court to conduct
a harmless error review.         Petitioner argues "[t]he grant of relief should
be modified to permit the Nebraska Supreme Court to conduct a Clemons[6]
reweighing of the aggravating and mitigating circumstances, if such
appellate resentencing is proper under state law, or to remand the case .
. . for resentencing."          Brief for Appellee/Cross-Appellant at 12.
      Relying on Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.), cert. denied,
117 S. Ct. 307 (1996), the state argues in response:




      6
          Clemons v. Mississippi, 494 U.S. 738 (1990).

                                            -12-
        [i]f this court agrees with the district court that the error
        in the use of the exceptional depravity aggravator was not
        harmless, then we feel that we are bound by the district
        court's determination that constitutionally harmless error is
        not present. However, that is not the end of the options under
        Clemons v. Mississippi, 494 U.S. 738 (1990). Clemons permits
        a state appellate court [either to] perform a harmless error
        analysis or to reweigh the mitigators and aggravators and
        determine whether the scale tips in favor of death, or whether
        the balance has been altered by the addition or removal of an
        aggravator or mitigator so that it cannot find the error
        harmless beyond a reasonable doubt.


Reply Brief for Appellant/Cross-Appellee at 10.


        In Reeves v. Hopkins, which sets forth a comprehensive analysis of
Nebraska's statutory scheme, this court explained "[a]s far as the federal
constitution is concerned, in a weighing jurisdiction, 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."      76 F.3d at 1428 (footnote omitted) (citing Clemons, 494
U.S. at 754).    This court also noted that "[s]tate appellate courts are not
required to reweigh, and may in certain cases find that remand is more
appropriate or is even required."          Id. at 1430 n.8 (citing Clemons, 494
U.S. at 754 & n.5).
        Thus, upon review of this issue raised by petitioner, we hold that
the district court's decision comports with Clemons, as interpreted in
Reeves v. Hopkins, insofar as it provides the Nebraska Supreme Court an
opportunity to reweigh the factors, conduct an independent harmless error
analysis, or remand the case to the state sentencing court.          We note that
the district court's harmless error ruling was for the sole purpose of
deciding whether to grant the petition for a writ of habeas corpus and does
not




                                      -13-
preclude the Nebraska Supreme Court from independently concluding   that the
application of the § (1)(d) aggravator was harmless error.


     Accordingly, we affirm the district court's disposition, including
its holding that the Nebraska Supreme Court may engage in independent
harmless error review of the state courts' decisions.


Remaining claims for relief raised by petitioner on cross-appeal


     We further find no merit to petitioner's remaining arguments on
cross-appeal.     He claims his federal constitutional and statutory rights
under the Fourth, Fifth, and Fourteenth Amendments, and under the federal
wiretapping statute, 18 U.S.C. § 2510 et seq., were violated because Reams
was permitted to testify at petitioner's criminal trial even though Reams's
testimony was arguably indirectly derived from unlawful wiretaps.      Upon
careful review of the procedural history of the present case and the
arguments presented on appeal, we hold these claims are foreclosed because
petitioner had a full and fair opportunity to litigate them in state court.
Stone v. Powell, 428 U.S. 465, 481-82 (1976); see also Zagarino v. West,
422 F. Supp. 812, 814-20 (E.D.N.Y. 1976) (where a habeas claim raises a
violation of a provision of the federal wiretap statute that implements a
Fourth Amendment search and seizure policy and is subject to the wiretap
statute's exclusionary rule, the same limited review shall apply as that
which applies under Stone v. Powell to Fourth Amendment search and seizure
habeas claims).
     Petitioner also raises on cross-appeal the district court's denial
of his claim that he received ineffective assistance of counsel because his
trial attorney failed to interview, prepare, and call potentially favorable
witnesses.   Although petitioner had procedurally defaulted this claim, the
district court, pursuant to




                                    -14-
Schlup v. Delo, 513 U.S. 298 (1995) (Schlup), held an evidentiary hearing
to permit examination of the allegedly exculpatory evidence.        Thereafter,
the district court concluded that "[a]n analysis of this evidence does not
persuade the Court that, with this proposed evidence, no juror, acting
reasonably, would have voted to find petitioner guilty."      Slip op. at 39.
We agree that the witnesses' testimony was unlikely to have affected the
outcome of the trial.        There were significant inconsistencies in the
proposed witnesses' testimony, and their testimony was in some ways
consistent with the state's theory.         The trial attorney's deliberate
decision not to use many of these witnesses was appropriately treated by
the district court as a matter of trial strategy, not rising to the level
of constitutionally deficient legal representation.    Accordingly, we affirm
the district court's holding that no Sixth Amendment violation occurred.



     Finally, we hold that the remaining claims raised by petitioner on
cross-appeal were properly rejected by the district court either because
they have been procedurally defaulted and the default is not excused by
cause and prejudice nor would enforcement of the default result in a
fundamental miscarriage of justice, or because they otherwise may not be
raised in this § 2254 action.    Thus, we affirm the district court's denial
of relief on all of petitioner's remaining claims for habeas relief.


                                  Conclusion


     The order and judgment of the district court is modified to provide
that petitioner's sentence will be reduced to life imprisonment, unless
within ninety (90) days of the date of our mandate in the present case, the
Nebraska   Supreme   Court     reweighs   the   aggravating   and   mitigating
circumstances, conducts an




                                     -15-
independent harmless error review, or remands the case to the sentencing
court for resentencing.    The order and judgment of the district court is
affirmed as modified.


     A true copy.

           Attest:

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




                                    -16-
