Opinion
No. 4:00CV3020
September 14, 2001
MEMORANDUM AND ORDER
This mailer is before the court on respondent's assertion that certain of petitioner's claims are procedurally barred, in accordance with the court's scheduling order of September 15, 2000. Filing No. 41. This is an action for habeas corpus relief under 28 U.S.C. § 2254 by an inmate who has been sentenced to death.
Respondent Michael Kenney ("the State") asserts that eight of Palmer's twenty-one claims for habeas corpus relief are not appropriate for consideration by this court. It asserts that seven claims are barred by procedural default and one is barred by collateral estoppel.
I. Background
A. Procedural History
In 1979, Charles Jess Palmer was tried and convicted of first degree murder in Hall County, Nebraska District Court for the fatal stabbing of Eugene Zimmerman. He was sentenced to death by the Hall County District Court. His conviction and sentence were reversed on appeal. State v. Palmer, 213 N.W.2d 648 (Neb. 1981) (finding reversible error in admission of hypnotically induced evidence) ( Palmer I). He was then retried and convicted in Hall County District Court and was again sentenced to death. That conviction and sentence was also reversed on appeal. State v. Palmer, 338 N.W.2d 281 (Neb. 1983) (finding error in admission of wife's testimony in violation of spousal privilege) ( Palmer II). Palmer was again tried and convicted. His conviction was affirmed on appeal. See State v. Palmer, 399 N.W.2d 706 (Neb. 1986) ( Palmer III). Before his third trial, Palmer asserted a double jeopardy claim in federal district court. That claim was ultimately rejected. See Palmer v. Clarke, 12 F.3d 781 (8th Cir. 1993) (retaining jurisdiction pending exhaustion of claims in state court). Palmer then sought postconviction review in state court. The Nebraska Supreme Court found that Palmer was not entitled to postconviction relief. State v. Palmer, 600 N.W.2d 756 (1999) ( Palmer IV). Palmer now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.
In his third amended petition for habeas corpus relief in this court, Palmer asserts twenty-one claims for relief. In its answer, the State contends that Claims III, IV, V, VI, XIV, XVII and XVIII are procedurally barred and that Claim IX is precluded by the doctrine of collateral estoppel.
II. Discussion
Before a state prisoner is entitled to federal habeas corpus relief, he must first exhaust his state remedies and present the habeas claim to the state court. See Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc). If a petitioner has not presented his habeas corpus claim to the state court, the claim is generally defaulted. See id. The court will not review a procedurally defaulted habeas claim because the State has been deprived of an opportunity to address the claim in the first instance. See id. In order to present a habeas claim to the state court, a prisoner must "fairly present" not only the facts, but also the substance of his federal habeas corpus claim. See id. In this circuit, to satisfy the "fairly presented" requirement, a petitioner is required to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue. See id. at 411-12. Although the "constitutional substance of a claim must be apparent, it is not necessary to cite 'book and verse on the federal Constitution.'" Satter, 977 F.2d at 1262 (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been fairly presented when a petitioner has properly raised the "same factual grounds and legal theories" in the state courts that he is attempting to raise in his federal habeas petition. Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996). See also, Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir. 1993) (finding specific references in brief more than sufficient to deem issue fairly presented).
In making its argument, the State conflates issues of exhaustion and procedural bar. These are separate and distinct concepts. See Satter v. Leapley, 977 F.2d 1259, 1261-62 (8th Cir. 1992). Exhaustion implicates whether the petitioner has presented claims to state court, while procedural bar relates to whether petitioner has complied with state procedural rules in doing so. Id. at 1261. The distinction is of no consequence to this discussion, since the State relies only on petitioner's alleged failure to present the contested claims to the Nebraska courts.
In Claim III, Palmer asserts he was deprived of his rights under the Eighth and Fourteenth Amendments of the Constitution by the failure of the Nebraska Supreme Court to conduct a proper proportionality review. In Claim IV, Palmer asserts that this failure deprived him of his rights to procedural due process under the Fourteenth Amendment. The State contends that Claims III and IV were not argued to nor addressed by the Nebraska Supreme Court in terms of a federal constitutional violation, but were, argued and resolved solely as questions of state law.
There is no dispute that the same facts were presented to the state court, thus the issue is whether the same legal theory was advanced. This court finds that it was. in his brief to the Nebraska Supreme Court in Palmer III, Palmer explicitly raised the issue of proportionality review as a deprivation of the Eighth and Fourteenth Amendments. See Brief of Appellant at 64, Palmer III, No. 84-733. The majority opinion in Palmer III discussed and cited federal constitutional cases. Palmer III, 224 Neb. at 328 (discussing Pulley v. Harris, 465 U.S. 37 (1984); Gregg v. Georgia, 428 U.S. 153 (1976); and Furman v. Georgia, 408 U.S. 238 (1972)). The dissent discussed both federal due process and Eighth Amendment issues at length. Palmer III, 224 Neb. at 346-410 (J. Krivosha, dissenting). Even if the issue had not been raised, the fact that the Nebraska Supreme Court addressed the issue permits federal habeas review. Tokar v. Bowersox, 198 F.3d 1039, 1047 n. 8 (8th Cir. 1999).
The proportionality holding in Palmer III occurred in the context of the United States Supreme Court's earlier declaration that the death penalty as applied was unconstitutional. See Furman v. Georgia, 408 U.S. at 309. The proportionality review scheme was itself an effort to overcome federal constitutional deficiencies. See Palmer III, 224 Neb. at 345-46 (J. Krivosha, dissenting) (stating that the Nebraska death penalty statutes were enacted in response to Furman). It is absurd to conclude the challenge to proportionality review is anything but a federal constitutional challenge. In briefs submitted in both Palmer III and Palmer IV, Palmer referred to the Eighth and Fourteenth Amendments, used the well-known due process catchphrase, "arbitrary and capricious," and cited federal constitutional cases. See Brief of Appellant at 64-65, Palmer III, No. 84-733; Appellant's Motion for Rehearing and Brief in Support Thereof at 5, 21, Palmer III, No. 84-733; Reply Brief of Appellant at 2-3, Palmer IV, No. S-95-1293. The Nebraska Supreme Court refused to consider the proportionality review challenge in Palmer IV, finding that the issues had been fully addressed in Palmer III. Palmer IV, 257 Neb. at 713-14. The court thus finds that Palmer fairly presented his challenge to the proportionality review to the state courts by presenting a classic federal constitutional argument.
The state next advances an argument that borders on the frivolous. It contends that since proportionality review is not required by the federal Constitution, the "only rational basis available to Palmer for a proportionality claim is the basis afforded him under state law." While proportionality review is not mandated by the Constitution, once it is in place it must be conducted consistently with the Due Process Clause. Tokar v. Bowersox, 198 F.3d 1039, 1052 (8th Cir. 1999). Accordingly, the court finds that Claims III and IV are not procedurally barred.
In light of this finding we need not address Palmer's contention that the mandatory nature of Nebraska's death penalty scheme obviates any procedural bar.
In Claim V and Claim VI, Palmer asserts that the appellate resentencing of Palmer to death under a reformulated proportionality procedure and a reformulated exceptional depravity definition, without recourse to Nebraska's two-tiered sentencing system, deprived him of Fourteenth Amendment due process rights. The State again asserts that these claims were not argued to nor addressed by the Nebraska Supreme Court. The court finds that Palmer presented these claims to the Nebraska Supreme Court. He challenged the court's failure to grant a new sentencing hearing, thus referring to the two-tiered system, referred to the federal Constitution, again using "arbitrary and capricious" language, and expressly used the term "reweighing." See Reply Brief of Appellant at 1-4, Palmer IV, No. S-95-1293. Though Palmer might have been more explicit, the court is confident that the state courts were fairly apprised of the substance of Palmer's claims. See, e.g., State v. Reeves, 604 N.W.2d 151, 168 (2000) (finding appellate court reweighing a violation of due process). Moreover, these claims are inextricably linked to Palmer's arguments regarding the proportionality review (in effect a challenge to the entire Nebraska sentencing scheme as it was applied to him) and the federal constitutional issue was fairly presented in that context. Accordingly, the court finds that Claims V and VI are not procedurally barred.
In Claim IX, Palmer asserts that his sentence is unconstitutional by reason of double jeopardy. The State contends that Palmer is collaterally estopped from asserting this claim because it was addressed in Palmer v. Clarke, 12 F.3d 781 (8th Cir. 1993). The State's assertion is not properly a procedural bar challenge and accordingly, the court will not address the State's contentions at this time.
In Claim XIV, Palmer asserts that the sentence of death for felony murder is cruel and unusual punishment. Again the State asserts that the issue was not fairly presented to the Nebraska courts arguing that Palmer cannot point to any specific assignment of error in Palmer III that addressed the issue. In Palmer III, Palmer argued that "[i]t violates the Eighth Amendment to impose the death penalty without finding that the defendant possessed a purpose to cause the death of the victim." Brief of Appellant at 74, Palmer III, No. 84-733. Palmer specifically referred to Enmund v. Florida, 458 U.S. 782 (1982), for this proposition. The fact that the Supreme Court may not have directly addressed the issue in its opinion in Palmer III would be of no consequence, for a procedural bar applies only if the state courts were deprived of an opportunity to address the issue. Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir. 1987). Moreover, the court finds that the issue was actually addressed in Palmer III. See Palmer III, 399 N.W.2d at 724 (discussing lesser-included offenses). The issue of availability of a lesser-included offense is intertwined with an Edmunds challenge regarding evidence of intent. See, e.g., Hopkins v. Reeves, 102 F.3d 977, 983-84 (8th Cir. 1996), reversed, 534 U.S. 88 (1988). In fact, in Palmer IV, the Nebraska Supreme Court found the precise issue had not been defaulted and summarily disposed of the claim. Palmer IV, 600 N.W.2d at 769. The court finds it clear that the Nebraska state courts were squarely presented with this issue. The court disagrees with the State's assertion that "one paragraph in an 81-page brief utterly unrelated to a specific assignment of error, does not represent fair presentment of [the claim] to the Nebraska Supreme Court," especially in view of the fact that the Nebraska Supreme Court found the claim presented and, in fact, discussed it. Accordingly, the court finds that Claim XIV is not procedurally barred.
In Claim XVII, Palmer raises the issue of ineffective assistance of counsel in the appeal of his first conviction. Again, the court finds the issue was presented to and addressed to the Nebraska Supreme Court in Palmer IV. Palmer IV, 600 N.W.2d at 767, 774-75 (explicitly setting forth the claim and discussing it at length).
In his third amended petition, Palmer mistakenly refers to ineffective assistance of counsel in Palmer II, rather than to ineffective assistance of counsel in Palmer I, and has moved to correct this error. The court will grant that motion. The court is unable to tell whether the State's arguments relate only to the technical error, or to the merits of the corrected claim and thus addresses the merits.
In Claim XVIII, Palmer asserts that death by electrocution is cruel and inhuman punishment in violation of the Eighth Amendment. Palmer concedes that this claim was never raised in state court and is thus defaulted, but he argues that he can show cause and prejudice to excuse the default. Palmer appears to argue two points in this regard. First, he cites emerging law and social trends rejecting this method of execution. Next, he argues that the factual predicate for the claim was unavailable to him because of Nebraska's limited experience with executions between 1972, when the death penalty was declared unconstitutional in Furman v. Georgia, and his evidentiary hearing in Palmer IV. The court finds it need not reach the issue of procedural bar since the issue is not yet ripe for adjudication. A court has a duty to consider sua sponte whether an issue is ripe, in order to ensure that proper subject matter jurisdiction exists to hear the case. Bergstrom v. Bergstrom, 623 F.2d 517, 519 n. 1 (8th Cir. 1980); see also Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997) (involving a constitutional challenge to method of execution). An issue is not ripe for review where the existence of the dispute itself hangs on future contingencies that may or may not occur. Nebraska Public Power Dist v. Mid-American Energy Corp., 234 F.3d 1032, 1037 (8th Cir. 2000). Where there is no danger of imminent and certain injury to a party, an issue has not matured sufficiently to warrant judicial intervention. Id. The ripeness of a claim is determined with reference to the fitness of the issue for judicial consideration and the hardship to the parties of withholding court consideration. Id. A claim cannot be determined until it is ripe. Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998) (noting that dismissal of competency claim as premature was proper and holding that second application for relief was not successive). Certain habeas corpus claims cannot be addressed until execution is imminent, i.e., before a warrant of execution is issued by the state. See Herrera v. Collins, 506 U.S. 390, 406 (1993) (regarding competency). Claims involving the circumstances of a prisoner's execution do not become ripe for adjudication until the state has issued a warrant for the prisoner's execution. See Williams v. Hopkins, 130 F.3d 333, 336 (8th Cir. 1997); Ceja v. Stewart, 134 F.3d 1368, 1371 (9th Cir. 1998) (J. Fletcher, dissenting). In the case of a death row inmate, when the inmate does not currently face any risk of execution, he will face no hardship or immediate or certain danger if the courts do not review his Eighth Amendment claim. Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997).
The court notes that Palmer's action does not involve abandonment of a previously asserted claim like the claim involved in Wililams, 130 F.3d at 337.
The record reveals that Palmer's scheduled execution date of February 15, 2000, was stayed by order of this court. Filing No. 6. The Nebraska Supreme Court, which is authorized both by statute and under its inherent authority to issue death warrants, may not set an execution date anticipating the termination of a federal stay. State v. Joubert, 518 N.W.2d 887, 893-99 (Neb. 1994) (finding Attorney General had no legitimate legal reason for moving to set execution date while federal stay was pending). Moreover, once the date set for execution has passed, the death warrant is expired and has no validity. State v. Otey, 485 N.W.2d 153, 164-65 (Neb. 1992) (adopting the State's argument that death-row petitioner was not under real or imminent threat of execution). Accordingly, Palmer is in no imminent threat of death by electrocution at the hands of the State and his challenge to his method of execution is not ripe for resolution. In view of this determination, we need not reach the procedural bar issue. Accordingly,
IT IS HEREBY ORDERED:
1. The State's procedural bar challenge to Claims III, IV, V, VI, XIV, and XVII of Palmer's third amended petition are denied; those claims are not procedurally barred and will be considered on their merits;
2. The State's procedural bar challenge to Claim XVIII is denied as premature;
3. The State's collateral estoppel challenge to Claim IX is denied without prejudice as not properly within the scope of procedural bar review;
4. Pursuant to this court's earlier progression order, any motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases, and any motion to hold an evidentiary hearing pursuant to Rule 8 of the Rules Governing Section 2254 Cases, shall be filed with this court within 20 days of this order;
5. If expansion of the record or an evidentiary hearing is not requested, or not granted by the court, the petitioner shall submit his brief upon the merits of all remaining claims within 60 days of this court's ruling upon any motions for expansion of the record or for an evidentiary hearing, or the elapsing of the time to request such proceedings, whichever is later;
6. The respondent shall have 60 days in which to respond upon the merits;
7. The petitioner shall have 30 days in which to file a reply brief;
8. With the filing of the petitioner's reply brief the matter will be deemed submitted;
9. If expansion of the record or an evidentiary hearing is granted, an amended scheduling order will be issued.