                           ___________

                       Nos. 95-1098/95-1188
                            ___________

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

                  Submitted:   September 9, 1996

                       Filed: December 24, 1996
                            ___________

Before BOWMAN, BRIGHT, and BEAM, Circuit Judges
                           ___________

BEAM, Circuit Judge.



     Randolph Reeves was convicted of two counts of felony murder
and sentenced to death. Following unsuccessful appeal and
postconviction actions in Nebraska state court, Reeves was
granted habeas corpus relief in federal district court. We
reversed, but retained jurisdiction and remanded to the district
court for findings on Reeves's remaining claims. The district
court again granted the petition and vacated Reeves's death
sentence. For the second time, the State appeals the district
court's grant of the writ.


     We conclude that the district court erred in its grounds for
granting the writ. We also conclude, however, that the district
court erred in deciding that Reeves was not entitled to a jury
instruction on lesser included offenses, a violation of Beck v.
Alabama, 447 U.S. 625 (1980). On this basis, we conditionally
grant Reeves's petition for habeas corpus.

I.   BACKGROUND


     The facts of this case are set out fully in the Nebraska
Supreme Court's opinion in Reeves's state appeal. State v. Reeves,
344 N.W.2d 433, 438-40 (Neb. 1984) ("Reeves I").       A summary,
however, is in order.


     On March 29, 1980, Reeves killed Janet Mesner and Victoria
Lamm in a Quaker meetinghouse in Lincoln, Nebraska. Ms. Mesner and
Reeves were friends, and were in fact related. Reeves, who had
been drinking heavily and had ingested some peyote buttons, entered
a window of the house and either sexually assaulted or attempted to
sexually assault Ms. Mesner in her bedroom. In the course of the
assault, Reeves stabbed Ms. Mesner seven times with a knife he had
taken from the kitchen. When Ms. Lamm entered the room during the
assault, Reeves stabbed her to death.      Ms. Mesner was mortally
wounded, but was able to find a telephone and dial 911. Ms. Mesner
identified Reeves as her attacker before dying less than three
hours later at a local hospital.


     Reeves was charged with two counts of murder in the course of
or while attempting a sexual assault in the first degree. See Neb.
Rev. Stat. § 28-303. Reeves presented defenses of insanity and
diminished capacity, but was convicted on both counts.        Under
Nebraska law, a first degree felony murder conviction carries
possible sentences of life imprisonment or death. Neb. Rev. Stat.
§ 28-105(1). A three-judge sentencing panel sentenced Reeves to
death.    On appeal, the Nebraska Supreme Court held that the
sentencing panel had failed to consider a mitigating factor and had
improperly applied an aggravating factor in determining Reeves's
sentence. Reeves I, 344 N.W.2d at 447-48. The court, however,


                               -2-
reexamined the applicable factors and affirmed the death sentence.
Id. at 448.

     Reeves then pursued state postconviction remedies.        The
Nebraska Supreme Court again affirmed his sentence.      State v.
Reeves, 453 N.W.2d 359, 388 (Neb. 1990) ("Reeves II"). The United
States Supreme Court, however, vacated Reeves II and remanded the
case for reconsideration in light of its holdings in Clemons v.
Mississippi, 494 U.S. 738 (1990). Reeves v. Nebraska, 498 U.S. 964
(1990). On remand, the Nebraska Supreme Court once again affirmed
Reeves's sentence.   State v. Reeves, 476 N.W.2d 829, 841 (Neb.
1991) ("Reeves III").


     Reeves then brought this federal habeas corpus action under 28
U.S.C. § 2254, raising forty-four claims.      The district court
granted relief on the ground that the Nebraska Supreme Court did
not have authority under state law to independently reweigh
aggravating and mitigating factors in affirming a death sentence.
Reeves v. Hopkins, 871 F. Supp. 1182, 1202 (D. Neb. 1994). The
district court considered and rejected Reeves's claims related to
jury instructions, including a claim that the trial court
improperly denied his request to have the jury instructed on lesser
included offenses of felony murder, in violation of Beck v.
Alabama, 447 U.S. 625 (1980). Reeves v. Hopkins, 871 F. Supp. at
1205.1 The court left unresolved seven of Reeves's claims.2


     On appeal we reversed, holding that the district court
exceeded federal court authority in determining that Nebraska law
did not authorize the Nebraska Supreme Court to reweigh aggravating

      1
      The court also rejected Reeves's claim 44, challenging the
introduction at trial of Janet Mesner's statements identifying
Reeves as her attacker. Reeves v. Hopkins, 871 F. Supp. at 1210.
Reeves has not cross-appealed this determination.
      2
       The court did not reach claims 5, 6, 26, 27, 34, 36, and
38.

                                -3-
and mitigating factors in capital cases. Reeves v. Hopkins, 76
F.3d 1424, 1427 (8th Cir.), cert. denied, 117 S. Ct. 307 (1996).
We did not reach Reeves's Beck claim, instead remanding and
instructing the district court to make determinations on the claims
it had not reached. Id. at 1430-31. We expressly noted that we
retained jurisdiction on those issues decided by the district court
that we had not reached, and would consolidate those issues with
any future appeal. Id. at 1431.


     On remand, the district court rejected all but one of Reeves's
remaining claims. The court determined that the Nebraska Supreme
Court had resentenced Reeves in Reeves III when it again affirmed
the death penalty on remand from the United States Supreme Court,
but violated due process by failing to give Reeves notice of
resentencing and an opportunity to be heard. Reeves v. Hopkins,
928 F. Supp. 941, 965-66 (D. Neb. 1996).3


     The State appeals the district court's findings on the due
process claim, and we agree that the court below erred on this
issue.   We also conclude, however, that Reeves's Beck claim is
meritorious and that the district court improperly rejected this
claim in its first decision in 1994.

II.   DISCUSSION


     In this section 2254 habeas corpus action, we review the
district court's factual findings for clear error and its legal
conclusions de novo. Culkin v. Purkett, 45 F.3d 1229, 1232 (8th
Cir.), cert. denied, 116 S. Ct. 127 (1995).


      3
      The district court also concluded that our retention of
jurisdiction in our prior decision rendered it without authority
to consider Reeves's motion to submit new evidence of actual
innocence. Reeves v. Hopkins, 928 F. Supp. at 976. Reeves
appeals this conclusion. Because we grant the writ on other
grounds, we need not reach this issue.

                               -4-
     A.   The Due Process Claim


     The district court granted relief on claim 34 of Reeves's
petition, in which Reeves claims that:

     The death penalty was unconstitutionally applied to
     Petitioner in that the Nebraska Supreme Court in
     resentencing Petitioner on remand denied Petitioner
     notice and an opportunity to be heard in violation of the
     Sixth and Eighth Amendments and the [Due Process] and
     Equal Protection Clauses of the Fourteenth Amendment.


Petitioner's First Amended Petition for Writ of Habeas Corpus, at
37-38.


     Reeves's claim involves his state postconviction proceedings.
After his convictions and sentences were affirmed on direct appeal
in Reeves I, Reeves sought state postconviction remedies. In Reeves
II, the Nebraska Supreme Court affirmed denial of postconviction
relief. 453 N.W.2d at 388. On petition for writ of certiorari,
the United States Supreme Court vacated Reeves II and remanded for
"further consideration in light of Clemons v. Mississippi." Reeves
v. Nebraska, 498 U.S. 964 (1990). In Clemons, the Supreme Court
had recently held that a death sentence based in part on an
invalidly applied aggravating factor (which the Nebraska court
found had occurred in Reeves's case) could be affirmed by an
appellate court. If state law allows, an appellate court in such
a case may either: (1) conduct a harmless error analysis; or (2)
independently reweigh the applicable aggravating and mitigating
circumstances. 494 U.S. at 750, 752.


     Reeves claims that when the Nebraska court once again affirmed
his sentence in Reeves III, this amounted to a reimposition of the
death sentence.    This "resentencing," Reeves argues, was done
without Reeves being aware that he would be subject to such
resentencing by the state court.     He was thus unable to argue
against imposition of the death penalty and was caught by surprise

                                  -5-
when the court affirmed the sentence, rather than remanding to a
new sentencing panel. Reeves claims that this violated his rights
under the Fourteenth Amendment to notice and an opportunity to be
heard.


     On remand, the Nebraska Supreme Court issued an order
directing Reeves and the State to submit simultaneous briefs
"covering the subject of the remand."     Petitioner's Brief at 2.
According to Reeves, his counsel was uncertain of the meaning of
the phrase "the subject of the remand." Reeves's attorney filed a
series of motions with the Nebraska court attempting to clarify the
scope of the issues before the court, most of which the court
denied,4 and unsuccessfully sought to clarify the scope of the
remand at oral argument. The district court agreed with Reeves
that he "was not provided with adequate notice that he would be
sentenced to death." 928 F. Supp. at 961. The court reasoned that
"[h]owever the 20-minute oral argument in Reeves III might
otherwise be characterized, we know in retrospect that it was
ultimately the one proceeding where it would be determined whether
[Reeves's convictions] warranted the death penalty." Id. at 964.


     We part ways with the district court on a fundamental premise:
Reeves III simply was not the "one proceeding" where the state
determined that Reeves's crimes "warranted the death penalty."
Reeves II was Reeves's appeal of his unsuccessful postconviction
attack on his convictions and sentence. After the sentencing panel
originally imposed the death sentence, the Nebraska Supreme Court




     4
      The court granted Reeves's motion to extend oral argument
to 20 minutes. The court denied, without comment, motions: (1)
requesting notice if the court "intended to engage in
resentencing on appeal"; (2) for an evidentiary hearing to
present evidence relevant to resentencing; and (3) to set forth
an order of procedure.

                               -6-
affirmed the sentence on direct appeal in Reeves I.5 The United
States Supreme Court's remand of Reeves II for reconsideration in
light of Clemons did nothing to unsettle the prior conclusion in
Reeves I.6


     It is true that in Reeves III the Nebraska Supreme Court
reviewed in some detail its thinking on the propriety of Reeves's
sentence.   The court reexamined the applicable aggravating and
mitigating factors, and concluded that "[w]e have balanced the
aggravating and mitigating factors anew and have determined that
the   aggravating   circumstances  outweigh   any   statutory   or
nonstatutory mitigating circumstances in this case. . . .
Sentences of death remain the appropriate penalties for Reeves."
Reeves III, 476 N.W.2d at 841. However, the court's review was not
a "resentencing" because Reeves's sentence had never been voided.
We agree with the State that the court's discussion was merely a
recasting of its prior conclusions in light of the guidance offered
by Clemons.


     5
      Reeves argues that in Reeves I, the Nebraska court, after
finding that an aggravating factor had been improperly applied by
the sentencing panel, affirmed on the basis that some aggravating
factors remained, rather than independently reweighing the mix of
aggravating and mitigating factors as required by Clemons. We
reject this contention. The court in Reeves I expressly noted
"our analysis is not confined to a mere counting process of
aggravating and mitigating circumstances but, rather, to a
reasoned judgment as to what factual situations require the
imposition of death and which of those can be satisfied by life
imprisonment in light of the totality of the circumstances
present." Reeves I, 344 N.W.2d at 448.
     6
      Reeves's reliance on Lankford v. Idaho, 500 U.S. 110
(1991), is misplaced. In Lankford, the original decision of the
trial court imposing the death sentence violated due process
because the defendant (and even the prosecution) did not know
that the trial court was contemplating the death penalty, and
neither side addressed it during the sentencing hearing. Id. at
114-17. Reeves, however, has been under a final sentence of
death since 1984, when Reeves I affirmed his sentence. He cannot
say that the affirmance of his sentence--for the third time--in
Reeves III was a surprise.

                               -7-
     We also reject Reeves's argument that the Nebraska Supreme
Court's conclusion in Reeves III that it was authorized to reweigh
aggravating and mitigating factors was a new rule that it announced
simultaneous with its application to him. First, it should have
been clear to Reeves since Reeves I that the state court believed
it had authority to reweigh, since that is exactly what it did on
direct appeal in that case. Second, the Nebraska Supreme Court had
previously stated that it could "weigh[] anew the aggravating and
mitigating circumstances . . . as permitted by Clemons v.
Mississippi." State v. Otey, 464 N.W.2d 352, 361 (Neb. 1991). We
reject Reeves's argument that the language in Otey is "summary" and
does not articulate the court's power to reweigh under Clemons. In
any event, since Reeves was not "resentenced" in Reeves III, his
"new rule" argument is largely irrelevant.7


     In sum, the Nebraska Supreme Court did not "resentence" Reeves
in Reeves III. Reeves's sentence of death was made final when the
court affirmed his convictions and sentence on direct appeal in
Reeves I, and the remand of the court's determination in Reeves's
postconviction proceedings did nothing to void that sentence. For
these reasons, we reject Reeves's due process claim.


     7
      Reeves also argues that the decision in Reeves III should
be treated as a resentencing because the State had, in prior
filings in this habeas action, referred to it as such. It is
true that a party cannot argue on appeal a legal theory directly
contrary to the one advanced in district court. Bissett v.
Burlington Northern R.R., 969 F.2d 727, 732 (8th Cir. 1992). We
do not believe, however, that the State's mere use of the word
"resentence" in discussing other issues in these proceedings
constitutes advancement of a legal theory or position. Finally,
Reeves asserts that in State v. Moore, 502 N.W.2d 227, 229 (Neb.
1993), the Nebraska Supreme Court itself referred to the
"resentencing" it had done in Reeves's appeal. ("As indicated in
State v. Reeves . . ., we have the authority to resentence by
analyzing and reweighing the aggravating and mitigating factors
of the case."). Again, we do not believe that semantic niceties
change the nature of the remand in Reeves III. In any event, the
court in Moore was referring to its decision in Reeves I, not
Reeves III.

                               -8-
     B.   The Beck Claim


     Reeves was charged with two counts of first degree murder
under a felony murder theory, for killing during the course of a
first degree sexual assault or attempted first degree sexual
assault.8 Under Nebraska law, first degree murder is punishable by
either life imprisonment or by death. Neb. Rev. Stat. §§ 28-303,
28-105(1). Reeves requested, and was denied, jury instructions on
second degree murder and manslaughter.9    The jury was therefore
only instructed on the crime of first degree felony murder. Reeves
argues that the refusal of his proposed instructions violated Beck
v. Alabama, 447 U.S 625 (1980). We agree.


     8
      Reeves was charged under Neb. Rev. Stat. § 28-303, which
provides that:

     A person commits murder in the first degree if he kills
     another person (1) purposely and with deliberate and
     premeditated malice, or (2) in the perpetration of or
     attempt to perpetrate any sexual assault in the first
     degree, arson, robbery, kidnapping, hijacking of any
     public or private means of transportation, or burglary
     . . . .

     9
      The applicable statutory provisions are as follows:

     § 28-304.   Murder in the second degree; penalty.

          (1) A person commits murder in the second degree
     if he causes the death of a person intentionally, but
     without premeditation.
     § 28-305.   Manslaughter; penalty.

          (1) A person commits manslaughter if he kills
     another without malice, either upon a sudden quarrel,
     or causes the death of another unintentionally while in
     the commission of an unlawful act.

Second degree murder carries a maximum sentence of life
imprisonment. Id. at §§ 28-304(2), 28-105(1). Manslaughter
carries a maximum sentence of twenty years. Id. at §§ 28-305(2),
28-105(1).


                                -9-
     In Beck, the petitioner was tried on a single count of
intentionally killing during the course of a robbery. Id. at 627.
Under Alabama law, when a jury found a defendant guilty of this
charge, it was required by statute to return a sentence of death.
Id. at 628 n.3. The trial court, however, was the final sentencer
and was free to impose the death sentence or a life term. Id. at
629 n.4.    The statute under which Beck was charged expressly
prohibited trial courts from giving instructions on lesser included
noncapital offenses, even if the evidence would support a
conviction on a lesser included offense. Id. at 628 & n.3.


     The Supreme Court held that in a capital case due process
requires that the jury be given the option of convicting the
defendant on a lesser included noncapital offense if the evidence
would support conviction on that offense. Id. at 638. The Court
in Beck sought to avoid presenting juries with a "death or nothing"
choice between conviction of a capital crime and finding the
defendant not guilty.     Faced with such a choice, jurors might
decide to acquit, even though they believed that the defendant had
committed a crime. On the other hand, they might convict of the
capital crime, even though they felt that the defendant did not
deserve the death penalty. This choice, the Court explained, is
unacceptable because "the unavailability of the third option of
convicting on a lesser included offense may encourage the jury to
convict for an impermissible reason--its belief that the defendant
is guilty of some serious crime and should be punished." Id. at
637. This risk of such a choice "cannot be tolerated in a case in
which the defendant's life is at stake." Id. See also Schad v.
Arizona, 501 U.S. 624, 646 (1991). As the Court later explained,
"[t]he goal of the Beck rule . . . is to eliminate the distortion
of the factfinding process that is created when the jury is forced
into an all-or-nothing choice between capital murder and
innocence." Spaziano v. Florida, 468 U.S. 447, 455 (1984).




                               -10-
      The State argues that Beck is inapplicable because the
Nebraska Supreme Court has determined that, under state law, there
are no lesser included offenses of felony murder. Both before and
after Reeves's conviction, the Nebraska court repeatedly made clear
its view that in felony murder cases "it is error for the trial
court to instruct the jury that they may find defendant guilty of
murder in the first degree, guilty of murder in the second degree,
or guilty of manslaughter." State v. Montgomery, 215 N.W.2d 881,
883 (Neb. 1974). See also State v. Massey, 357 N.W.2d 181, 185-86
(Neb. 1984) (quoting Reeves I, 344 N.W.2d at 442); State v.
Hubbard, 319 N.W.2d 116, 118 (Neb. 1982); State v. McDonald, 240
N.W.2d 8, 14 (Neb. 1976). We are directly faced, therefore, with
the question whether the State's prohibition is consistent with
Beck.


     The State contends that once the Nebraska Supreme Court has
determined that felony murder has no lesser included offenses, then
Reeves's Beck claim necessarily fails.      The State urges us to
follow Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991), in
which the Ninth Circuit rejected an Arizona prisoner's Beck claim.
The court in that case reasoned that "Greenawalt was tried solely
for felony murder, a crime for which Arizona law recognizes no
lesser included offense." Id. at 1029 (citing State v. Greenawalt,
624 P.2d 828, 846 (Ariz. 1981) (en banc). The court concluded on
this basis that Beck was inapplicable.


     We cannot agree with this interpretation of the Beck doctrine.
The State's position would say in effect that Beck means only that
a criminal defendant is entitled to instructions on lesser included
offenses to which state law says he or she is entitled. But if
this were true, then Beck itself would have been decided
differently.   In Beck, as in this case, state substantive law
specifically prohibited the giving of a lesser included offense
instruction. The problem was not merely a trial court's decision
not to instruct the jury, nor was it Alabama's definition of lesser

                               -11-
included offenses.    The unacceptable constitutional dilemma was
that state law prohibited instructions on noncapital murder charges
in cases where conviction made the defendant death-eligible. The
prohibition in Reeves's case is based on the Nebraska Supreme
Court's pronouncement of state law, rather than upon a statute.
But there is no principled reason to distinguish such a prohibition
imposed by the state courts from one imposed by the state
legislature.10 The constitutional violation is the same.




     10
      Similarly, the Fifth Circuit has held that the Beck
doctrine imposes federal constitutional limits on state law
governing when a trial court may refuse to give an instruction on
a lesser included offense. Cordova v. Lynaugh, 838 F.2d 764, 767
(5th Cir. 1988). The court noted that "[i]f due process is
violated because a jury cannot consider a lesser included offense
that the `evidence would have supported,'. . . the source of that
refusal, whether by operation of state law or refusal by the
state trial court judge, is immaterial." Id. at 767 n.2
(citation to Beck omitted).

     We note that in rejecting a petitioner's Beck argument in
Blair v. Armontrout, we stated that "Beck does not prescribe a
first-degree murder instruction in this case unless first-degree
murder is a lesser-included offense of capital murder . . . and
the [State] Supreme Court [has held] that first-degree murder
[is] not a lesser-included offense of capital murder." 916 F.2d
1310, 1326 (8th Cir. 1990). In Blair, however, we did not
directly face the issue whether Beck could be vitiated by a
state's determination that a particular crime has no lesser
included offenses. There was no Beck violation in Blair because:
(1) the jury had both the option and power to impose a life
sentence, rather than a death sentence; and (2) the defendant was
given jury instructions on both second degree murder and
manslaughter. Id. Neither is true of this case.

     We made a similar statement regarding a state's definitions
of lesser included offenses in Williams v. Armontrout, 912 F.2d
924, 928 (8th Cir. 1990) (en banc). In that case, however, Beck
did not apply because the evidence would not have supported a
conviction for the charge for which the defendant requested an
instruction. Id. at 929. Williams was thus squarely within the
limitation on Beck clarified by Hopper v. Evans, 456 U.S. 605,
611 (1982) (holding that Beck requires instructions on noncapital
offenses only when the evidence would support a conviction on
that charge).

                               -12-
     We believe that in arguing to the contrary, the State misreads
the Supreme Court's clarifications of the Beck doctrine. In Hopper
v. Evans, the Court held that under Beck "due process requires that
a lesser included offense instruction be given only when the
evidence warrants such an instruction." 456 U.S. 605, 611 (1982)
(emphasis in the original). In Spaziano, the Court held that Beck
did not apply when the statute of limitations had run on all lesser
included offenses and the defendant refused to waive the statute.
468 U.S. at 456-57.     The Court stated that "[w]here no lesser
included offense exists, a lesser included offense instruction
detracts from, rather than enhances, the rationality of the
process. Beck does not require that result." Id. at 455.


     The Ninth Circuit in Greenawalt cited Spaziano to support its
conclusion that Arizona's nonrecognition of any lesser included
offenses foreclosed a Beck claim. Greenawalt, 943 F.2d at 1029.
We believe that this reads Spaziano much too broadly. In Spaziano,
the defendant could not have been convicted of any lesser included
offenses because the applicable statutes of limitation had all run
and the defendant refused to waive them.      The Court found that
instructing the jury on a charge that could not have resulted in a
conviction would compound the distortion of factfinding that
troubled it in Beck:


     Requiring that the jury be instructed on lesser included
     offenses for which the defendant may not be convicted
     . . . would simply introduce another type of distortion
     into the factfinding process.

          . . .    Beck does not require that the jury be
     tricked into believing that it has a choice of crimes for
     which to find the defendant guilty, if in reality there
     is no choice.


Id. at 455-56.     Spaziano does not stand, therefore, for the
proposition that state law can foreclose Beck claims by declaring
that felony murder has no lesser included offenses; this is exactly


                               -13-
what the Alabama legislature had done in Beck, after all.11
Spaziano stands, rather, for the eminently sound notion that juries
should not be mislead into "convicting" someone of a charge for
which he or she cannot be convicted. There is no question of such
trickery in this case.     Reeves could have been convicted and
sentenced for either second degree murder or manslaughter.


     The State's rationale for prohibiting instructions for
noncapital murder in felony murder cases further supports our
conclusion. The Nebraska Supreme Court has said that felony murder
differs from other murder because it requires no showing of any
intent to kill: "The turpitude involved in the [underlying felony]
takes the place of intent to kill or premeditated malice, and the
purpose to kill is conclusively presumed from the criminal
intention required for [the underlying felony]." Reeves I, 344
N.W.2d at 442 (citations omitted). Thus, a finding that Reeves
intended the underlying felony (actual or attempted first degree
sexual assault) takes the place of any showing that Reeves intended
to kill.     At oral argument, the State reiterated that the
difference between the mental states required for felony murder and
premeditated first degree murder is the basis for the prohibition
on lesser included offense instructions in felony murder cases.


     There is nothing necessarily unconstitutional with the State's
definition of the mental culpability required for a felony murder
conviction.   However, the death penalty cannot be imposed on a
defendant without a showing of some culpability with respect to the
killing itself.    Enmund v. Florida, 458 U.S. 782, 801 (1982).


     11
      The State argues that "but for the specific statute struck
down which prohibited such jury instructions [on lesser included
offenses], there existed, under Alabama law, lesser included
offenses of the crime with which Beck was charged." State's
Reply Brief (1995) at 11-12. But this is merely to say that "if
state law had not prohibited an instruction, it would have
permitted it." This is, of course, true. But it is equally true
of Nebraska law.

                               -14-
Before a state can impose the death penalty, there must be a
showing of both major participation in the killing and reckless
indifference to human life. Tison v. Arizona, 481 U.S. 137, 158
(1987).   Enmund and Tison are thus independent constitutional
requirements of the mental culpability a state must prove if it is
to impose a death sentence; if the death sentence is to be imposed,
the state must necessarily produce some evidence of intent with
respect to the killing.     Nebraska's rationale for prohibiting
lesser included offense instructions in felony murder cases thus
disappears when the defendant is sentenced to death. We are led to
the conclusion that the State may not, consistent with the
Constitution, bar an instruction on noncapital homicide, in a
felony murder case where the death sentence is imposed, on the
basis that felony murder requires no showing of intent or, at
least, a reckless indifference to the value of human life. To hold
otherwise would mean that the State could avoid Beck by claiming
that it need show no intent or reckless indifference with respect
to the killing, yet could simultaneously avoid Enmund by adducing
precisely such evidence.


     We do not suggest that the State may not impose the death
penalty pursuant to a felony murder conviction. We mean to say
only that the State's prohibition on instructions on noncapital
charges in felony murder cases is inconsistent with Beck, and that
its rationale for the prohibition would put Beck at odds with
Enmund. In Greenawalt, the Ninth Circuit reads Enmund to apply
only in situations of "accomplice felony murder" where the Eighth
Amendment requires a specific showing of mens rea before the death
penalty may be imposed. 943 F.2d at 1028. We think this unduly
narrows the Supreme Court's holdings in Enmund as well as Tison,
especially in cases such as this. Reeves's insanity and diminished
capacity defenses raise the same "mental state" concerns considered
by the Court in both Enmund and Tison; indeed, the facts of this
case and Reeves's defenses indicate the need for particular care


                               -15-
that Reeves's "punishment . . . be tailored to his personal
responsibility and moral guilt." Enmund, 458 U.S. at 801.

     The death penalty concerns expressed in Enmund and Tison lie
at the core of the Beck doctrine.       As the Court explained in
Hopper, Beck teaches that the Eighth and Fourteenth Amendments
require that the death penalty must be "channeled so that arbitrary
and capricious results are avoided." 456 U.S. at 611. We believe
that Reeves's case comes within Beck and Hopper. The facts would
have supported a conviction for either second degree murder or
manslaughter, and unlike in Spaziano, Reeves could have been
convicted and sentenced for those crimes. Instead, Reeves's jury
was faced with a stark choice: convict Reeves of capital murder or
acquit him altogether.12 State law, whether expressed by a statute
or by a court, may not prohibit an instruction on a noncapital
charge that the evidence supports when the defendant is
subsequently sentenced to death.13 We therefore hold that the trial

     12
      Furthermore, the "death or acquit" dilemma may have been
exacerbated in Reeves's case. Reeves presented an insanity
defense, but the trial court refused to instruct the jury that an
acquittal by reason of insanity would not have resulted in
Reeves's release. In addition, the prosecutor erroneously told
the jury in summation that an acquittal would mean that Reeves
would "walk out of this courtroom a free man." While the
district court was unsure whether the prosecutor's statement
referred to Reeves's insanity defense or merely to the effect of
an acquittal on the merits, the Nebraska Supreme Court stated in
Reeves I that "the statement made by the prosecutor was not an
entirely correct statement of the law." 344 N.W.2d at 443.
While we agree with the district court that neither the refused
insanity instruction nor the prosecutor's misstatement is
sufficient in itself to violate due process, infra at 18-19, the
effect could only have heightened the "death or acquit" dilemma.

     13
      The State argues that Beck involved a statute that
automatically imposed the death sentence, whereas Reeves's jury
had no involvement in sentencing. But the Alabama statute in
Beck was not a "mandatory death" statute; the judge had final
sentencing authority, and was free to reject the death penalty.
Furthermore, Reeves correctly argues that when Beck was decided,
the Supreme Court had already declared "mandatory death" statutes

                               -16-
court's refusal to grant Reeves's request for instructions on
second degree murder and manslaughter violated Beck v. Alabama.

     C.   Reeves's Other Claims


     The only claims Reeves presents on cross-appeal are those
numbered 20, 20(a), 20(c), 22, and 23. We agree with the district
court's dismissal of each of those claims.14


     Claims 20 and 20(a): Reeves claims that the trial court erred
in its instructions on his insanity defense and on the culpability
the State needed to prove to establish the predicate felony (first
degree sexual assault) of the felony murder charge. The district
court rejected Reeves's argument that the trial court's
instructions established invalid conclusive presumptions of fact
and relieved the prosecution of its burden of proof of elements of
the crime charged, in violation of Sandstrom v. Montana, 442 U.S.
510 (1979). We agree with the district court that the trial court
properly instructed the jury, and did not so shift the burden of
proof.




unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 305
(1976). This case is like Beck: the jury had no ultimate
control over the imposition of a death sentence and could only
choose to convict Reeves of a death-eligible crime or to acquit
him.
     14
      In its 1994 order granting habeas, the district court
considered and rejected Reeves's claims numbered 20, 20(a),
20(c), 22, 23, and 44. On remand after we reversed, the district
court considered the remaining claims (claims 5, 6, 26, 27, 34,
36, and 38) that it had not reached in its first ruling. Claim
34 is the due process claim that the district court granted
relief on, which we discuss and reject in part II.A. In the
prior appeal before this court, Reeves did not cross-appeal the
dismissal of claim 44, nor does he now cross-appeal the district
court's conclusions on claims 5, 6, 26, 27, 36, and 38. Reeves
has therefore abandoned those claims and we need not consider the
district court's dismissal of them.

                              -17-
     Claim 20(c):    Reeves claims that the failure to give an
instruction on noncapital homicide in his case violated equal
protection, because defendants charged with premeditated first
degree murder are entitled to such an instruction under Nebraska
law. We agree with the district court that Reeves did not fairly
present this argument in state court, and that under Nebraska law
Reeves has abandoned this claim. See State v. Evans, 338 N.W.2d
788, 795 (Neb. 1983). Reeves has thus defaulted review of this
claim in federal habeas proceedings, Morris v. Norris, 83 F.3d 268,
270 (8th Cir. 1996), and has made no showing of cause to excuse his
default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).


     Claim 22:    Reeves claims that the trial court erred by
refusing his requested instruction on diminished capacity.       We
agree with the district court that the trial court's instructions
on intoxication and insanity covered largely the same ground as the
requested instruction, and that the refusal thus did not result in
a miscarriage of justice. Closs v. Leapley, 18 F.3d 574, 579 (8th
Cir. 1994).


     Claim 23: In rebuttal closing argument, the prosecutor told
the jury that if "[t]he State doesn't prove this case beyond a
reasonable doubt, then the State shouldn't win and this defendant
should walk out of this courtroom a free man." Reeves v. Hopkins,
871 F. Supp. at 1207. The trial court denied Reeves's motion for
a mistrial based on this statement.      Reeves asserts that this
comment gave the jury the false impression that an acquittal on the
basis of insanity would result in Reeves's release. This, Reeves
argues, was so misleading as to unfairly prejudice his trial.


     The district court noted that this reference was one sentence
in the midst of a forty-eight minute argument, and occurred on a
day where the jury heard more than four hours of argument from both
the prosecution and defense. The court found that the context,
ambiguity, and passing nature of the remark indicated little

                               -18-
likelihood that it could have "so infected the trial with
unfairness as to make the resulting conviction a denial of due
process." Pickens v. Lockhart, 4 F.3d 1446, 1453 (8th Cir. 1993)
(citations omitted). We agree that Reeves has not shown that this
isolated remark constituted constitutional error.

     D.      Relief


     Having found Reeves's Beck claim meritorious, we must still
determine what relief is appropriate. We have previously held that
Beck only applies in cases where the defendant is in fact sentenced
to death. Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990).
The Beck violation in this case thus can be cured in one of two
ways: (1) by granting Reeves a new trial; or (2) by resentencing
Reeves to life imprisonment, which is a statutorily authorized
sentence for felony murder.15 We therefore find it appropriate to
grant a conditional writ of habeas corpus: Reeves's conviction
will be vacated subject to a new trial unless, within 180 days from
the issuance of the mandate, his death sentence is modified to life
imprisonment.

III. CONCLUSION


     We find that the trial court's refusal to instruct the jury on
noncapital murder charges violated Beck v. Alabama, and that the
district court thus erred in dismissing Reeves's claim 20(b). We
conditionally grant Reeves's petition for the writ of habeas
corpus:   his conviction will be vacated subject to a new trial
unless the State resentences Reeves to life imprisonment within 180
days.   Because we conclude that Reeves's due process argument is
groundless, we reverse the district court's finding on claim 34.
We affirm the district court's findings dismissing all of Reeves's
other claims.

     15
          See Neb. Rev. Stat. §§ 28-303, 28-105(1).

                                  -19-
BRIGHT, Circuit Judge, concurring separately.


     Judge Beam's well written opinion persuasively and logically
explains that the application of Beck v. Alabama, 447 U.S. 625
(1980), requires that we remand this case for appropriate relief
under a conditional writ of habeas corpus. I agree.


     Having directed the issuance of a   writ of habeas corpus, which
will require the State of Nebraska        either to retry Reeves or
sentence him to life imprisonment,       I would not reach the due
process claim discussed in part II A     of the court's opinion. In
all other respects, I concur.


     A true copy.


          Attest:


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




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