                                   ____________

                             Nos. 96-1309/1427
                               ____________


Peter L. Hochstein,                     *
                                        *
      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 Peter L. Hochstein (petitioner).   Hochstein
v. Hopkins, No. CV 84-L-755 (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 52 (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 counsel at trial and
sentencing; 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, for the reasons stated below,
affirm.    On this day, we have simultaneously filed an opinion in the habeas
action brought by C. Michael Anderson, who was petitioner's co-defendant
in the underlying state criminal proceedings.           Anderson v. Hopkins, Nos.
96-1305/1306 (8th Cir. May 12, 1997).          Because many of the issues raised
on appeal and cross-appeal in the present case are similar or identical to
the issues addressed in our opinion in Anderson's case, we incorporate by
reference herein portions of that opinion.


                                    Background


        The following facts are largely taken from the Nebraska Supreme
Court's decision affirming petitioner's conviction and




                                         -2-
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, 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 Anderson were suspects in the police investigation of Abboud's murder.
Abboud was Anderson's employer, and Anderson and petitioner were friends.
Abboud's family hired a private investigator, Dennis Whelan, and instructed
him to investigate Anderson's and petitioner's involvement in the crime.
Whelan was informed that Lon Reams was associated with Anderson 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 Anderson and petitioner included, among
other things, wiretapping their apartments.             Whelan also interviewed a
woman named Mila Dickman who was employed by Anderson and was closely
associated with Reams.     In the spring of 1977, Whelan informed the county
prosecutor, Samuel Cooper, about his suspicions of Anderson, petitioner,
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 Anderson.
Whelan relayed this information to Reams and, at the same time, falsely
told   Reams   that   he   (Whelan)   had   overheard    petitioner   and   Anderson
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.




                                        -3-
      Reams agreed to testify against Anderson and petitioner under a grant
of immunity.    The facts, according to his testimony, are summarized as
follows.   Anderson was extremely hostile toward Abboud because of Abboud's
unfair business practices, a matter which Anderson, petitioner, and Reams
discussed.     At some point, petitioner fixed Reams's .22 caliber Ruger
pistol and offered to murder Abboud for money.       Anderson agreed to pay
petitioner $1,500 to kill Abboud.   It was agreed that petitioner would pose
as a 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
Anderson and pick up petitioner.    Their first attempt failed because Abboud
was not alone when he showed petitioner the property.        Petitioner then
scheduled another visit to the site and, when Abboud alone drove petitioner
there, petitioner murdered Abboud and dumped Abboud's body in a creek bed.
The body was discovered three days later.


      The jury found petitioner and Anderson each guilty of first degree
murder.    Following the trial, a sentencing hearing took place before a
three-judge panel, which unanimously sentenced petitioner and Anderson 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) the
murder was committed for hire or for pecuniary gain, 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)




                                     -4-
(hereinafter referred to as § (1)(d)).2   Petitioner and Anderson appealed
to the Nebraska Supreme Court, which unanimously affirmed their convictions
and sentences.   State v. Anderson, 296 N.W.2d at 454.


      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




           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.
     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."

                                    -5-
      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" aggravating factor 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
Upon review of both the sentencing 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 52.   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




      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 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-
       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 3-47, 53-55.   This
appeal and cross-appeal followed.


                                    Discussion


State's appeal on harmless error issue


       The state appeals the district court's holding that it was not
harmless beyond a reasonable doubt 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 court decisions,
that   all   the   circumstances   relevant     to   the   "exceptional   depravity"
aggravator were equally relevant to




                                       -7-
the murder-for-hire aggravator, and that the district court should have
found harmless error.


      We have already addressed these precise arguments in Anderson v.
Hopkins, slip op. at 6-10.     Because the state courts relied upon the same
facts and reasoning in their decisions to impose and uphold the death
penalty for each of petitioner and Anderson, State v. Anderson, Nos. 99-
392/99-394, slip op. at 15-17 (Neb. Dist. Ct. Aug. 24, 1978); id., 296
N.W.2d at 454, and the district court provided virtually identical reasons
for granting partial habeas relief to each of petitioner and Anderson, we
incorporate by reference herein our reasons stated in Anderson v. Hopkins,
slip op. at 9-10, for affirming the district court's finding that the error
was not harmless.     Accordingly, we hold, in the present case, that the
state has not sufficiently proven that petitioner's sentence would have
been the same under Nebraska state law absent consideration of the invalid
factor, and 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
52.   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.     This issue is identical in all relevant respects
to the corresponding issue raised by Anderson in




                                      -8-
his habeas cross-appeal.   We therefore incorporate by reference herein our
reasons stated in Anderson v. Hopkins, slip op. at 11-13, for affirming 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 the criminal trial in state court even though
Reams's testimony was 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 of ineffective assistance of counsel at trial and at
sentencing.     In addition to alleging that his attorney was deficient in
failing to interview, prepare, and call potentially favorable witnesses,
petitioner alone maintains that his trial attorney suffered from mental,
physical, and emotional problems




                                     -9-
which    incapacitated      his    attorney       and    deprived    petitioner       of
constitutionally adequate representation at trial and sentencing.                On the
issues related to the attorney's failure to call certain witnesses, we have
already considered those issues and incorporate by reference herein our
reasons stated in Anderson v. Hopkins, slip op. at 13-14, for agreeing with
the district court that the witnesses' testimony was unlikely to have
affected the outcome of the trial.               We therefore affirm the district
court's conclusion that no Sixth Amendment violation occurred.                   As to
petitioner's other ineffective assistance arguments, we note that the
district     court   carefully    and    thoroughly     considered   all    aspects   of
petitioner's claim, slip op. at 21-47, including the specific allegation
that petitioner's attorney was incapacitated, id. at 25-32.                Upon review,
we agree with the district court's conclusion that petitioner has failed
to show that his attorney's alleged deficiencies were of constitutional
magnitude.


        Finally, we hold that the remaining claims raised by petitioner in
his cross-appeal were properly rejected by the district court 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




                                          -10-
the aggravating and mitigating circumstances, conducts an 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.




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