Ryan v. Clarke

Full title: MICHAEL RYAN, Petitioner, vs. HAROLD W. CLARKE, Director of the Nebraska…

Court: United States District Court, D. Nebraska

Date published: Sep 11, 2003

4:99CV3318 (D. Neb. Sep. 11, 2003)

Opinion

4:99CV3318

September 11, 2003

Michael A. Nelsen, Hillman, Forman Law Firm, Omaha, NE for Petitioner's Counsel

Steven A. Achelpohl Omaha, NE for Petitioner's Counsel

J. Kirk Brown, Attorney General's Office State of Nebraska,

Lincoln, NE for Respondent's Counsel

MEMORANDUM AND ORDER

RICHARD KOPF, Chief Judge, District

This is a death penalty habeas corpus case. It involves the most horrendous torture and sickening murder imaginable. There is not the slightest doubt about the petitioner's guilt. If any man deserves to be put to death, that man is Michael Ryan.

Michael Ryan (Ryan or the petitioner) was sentenced to death for torturing and then killing James Thimm. Ostensibly in the name of his God, and over a period of two days, Ryan and others at his direction tied and chained Thimm in a hog confinement shed; on several occasions sodomized Thimm with a shovel handle or a pick handle to the point that the man's guts ruptured; whipped and beat Thimm; shot off some of the victim's finger tips; partially skinned Thimm alive; and caused the man's bones to be broken, once using a piece of lumber and a block of wood to complete the fracture of a leg with one blow. After that, Ryan stomped Thimm to death. Although a five-year-old child, Luke Stice, was also killed a month or so earlier as the events culminating in Thimm's death boiled up, Ryan did not receive the death penalty for that crime.¹ Pending before me is the 93-page final report and recommendation of Magistrate Judge Piester (Filing 202).² Following a thorough and extensive review, including an independent mental evaluation of the petitioner at a Federal Medical Center and an evidentiary hearing on the petitioner's competency, Judge Piester recommends that I deny the petition for a writ of habeas corpus.

1 After his conviction for the Thimm murder, he entered a plea of "no contest" to the Stice murder and was sentenced to life in prison.

2 Filed in 1999, this case was originally styled Ryan v. Hopkins, but Warden Hopkins was removed from the case in 2000 and Warden Kenney was substituted. Warden Kenney was removed from the case in 2002 and Director Clarke was substituted. At this time (but see below), there are ten boxes of exhibits and records pertinent to this case. Boxes 1-8 contain the state court records. Box 9 contains the documents regarding Ryan's competency evaluations and related hearing in this court. Box 10 contains the court file in Ryan's voluntarily dismissed 1995 habeas proceeding in this court, styled Ryan v. Hopkins, 4:95CV3391. For ease of location, and changing the citing convention of Judge Piester, when a specific reference to one of these documents is necessary, the box number will first be identified. In addition, references to filing numbers (as in "Filing-") refer to documents contained in the court file in this case. In the event of an appeal, the Clerk shall place the remaining portions of the court file and exhibits in a box and number it 11.

After de novo review, I agree with Judge Piester. Given the excellent quality of his work, I fully adopt the report and recommendation. In the interests of judicial economy, I will not discuss Judge Piester's careful exposition of most of the facts and the law. I only add the following to clarify and amplify my views.

I. BACKGROUND

A. The Crime for Which the Death Penalty was Imposed With only a few exceptions, the facts of how Ryan killed James Thimm and Luke Stice are not disputed even by Ryan. Although excruciating, a careful reading of the details of Ryan's crime is fundamental to the proper resolution of this case.

Before doing so, however, it is important to understand the defense at trial. The evidence against Ryan was overwhelming. With Thimm's mutilated body located and the subject of a thorough autopsy, testimony from cooperating eye witnesses, and physical evidence derived from a raid conducted by federal and state law enforcement agents, the prosecution's case was very strong.

While always personally contending that he was sane, Ryan's defense at trial included a claim of insanity. His two lawyers, one of whom had a lot of experience in defending first-degree murder cases ³ decided, with Ryan's agreement, that the best, and perhaps only, way for Ryan to avoid the death penalty was to minimize Ryan's involvement in the final act that killed Thimm and, at the same time, present the defense of insanity. Ryan and the lawyers agreed that the best way to do that was to have him testify. Essentially, the defense was this: Buttressed by the testimony of the petitioner and mental health experts, Ryan did not do the specific act that killed Thimm, and, besides, no sane man could have done what Ryan was alleged to have done; even though he claimed to be sane, Ryan's own testimony and bizarre beliefs would prove him otherwise.

3 With another lawyer, Richard Goos was appointed to defend Ryan. Goos was "loaned" from the Lancaster County Public Defender's office in Lincoln, Nebraska. Goos had been a defender since 1971. By the time of the Ryan case, he had defended nine first-degree murder cases, including two for which the State sought the death penalty. State v. Ryan, 534 N.W.2d 766, 774 (Neb. 1995) (Ryan II).

I next quote from the full, fair, and accurate summary of the facts presented at Ryan's jury trial for the Thimm murder as set forth by the Nebraska Supreme Court.

While the quotation is very long, every word is important to the discussion which will follow:

The record shows the following. Defendant was described as the leader of a group, characterized at trial as both a religious cult and a band of criminals, living on a farm outside of Rulo, in Richardson County, Nebraska. The cult largely developed out of the teachings of Rev. James Wickstrom, the self-proclaimed leader of a group which called itself the "Posse Comitatus." See Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973). Defendant met Wickstrom at a Bible lecture in Hiawatha, Kansas.

Wickstrom's teachings centered around Anglo-Saxon supremacy, the unconstitutionality of income taxes, and the coming Battle of Armageddon. Although Ryan did not agree with all of Wickstrom's teachings, particularly with regard to tax matters, Wickstrom's ideology was the catalyst that formed the Rulo cult's belief system. As a result of his involvement with the Posse Comitatus, defendant met James Haverkamp, John David Andreas, Ora Richard (Rick) Stice, and James Thimm during 1982 and 1983. In June of 1983, Ryan and some of the other members of the group met with Wickstrom at a large meeting of the Posse Comitatus in Wisconsin.

During the Hiawatha meeting, Wickstrom showed Ryan what was known as the arm test. That test was described as follows. Defendant would face a group member, who would extend his right arm out at approximately a 90-degree angle from his or her body. Defendant would then place his left hand on the member's right shoulder and place his right hand on the member's right wrist. After asking Yahweh (the name used by defendant and his group for God) a question, defendant would apply pressure to the person's right arm. If the arm dropped, the answer to the question being asked of Yahweh was "no"; if the person's arm stayed up, the answer was "yes." As time went on, others in the group used this arm test, and after awhile every aspect of the lives of the Rulo group was controlled by the use of the arm test. Sometime in 1983, defendant began telephoning the individuals who later constituted the Rulo group with "orders from headquarters." Defendant would tell the person he called that he (defendant) had "talked to Yahweh and [the men were] supposed to go out and do some stealing. . . ." If any of the men refused to go on these stealing raids, defendant would remind them that their families would not be safe if they angered Yahweh.

The men, in keeping with the group's plans to build a "base camp," converted the spoils of these thefts into weapons, ammunition, and clothing and began to stockpile those items in preparation for the Battle of Armageddon. These stealing raids were conducted in the states of Kansas, Missouri, and Nebraska. The thefts involved the stealing of cattle, hogs, and various large items of farm machinery and construction equipment. Many of those items, including all the stolen livestock, were sold, and the proceeds financed the stockpiling mentioned above. At the time of defendant's arrest, officers recovered stolen property with a value in excess of $120,000 at the Rulo farm.

By the summer of 1983, it was determined, through the arm test, that defendant had the spirit of the Archangel Michael. Defendant also told the group that he could communicate directly with Yahweh through his mind.

The group began to meet each Saturday to study the Bible. These meetings were conducted by defendant and were usually attended by James Haverkamp; his sisters Cheryl Gibson and Lisa Haverkamp; his mother, Maxine Haverkamp; defendant's wife, Ruth; and defendant's three children. James Haverkamp's younger brother and father would also attend, as did Thimm, Andreas, Rick Stice, Slice's children, and Slice's girlfriend.

During these meetings, defendant would read and interpret various verses of the Bible. He told the group that "the Jews added" any passages that disagreed with his teachings. During these meetings, verses of the Bible were rewritten to conform to the group's beliefs. At the conclusion of these meetings, the group would smoke marijuana At one of these meetings, held in Kansas, where defendant and his family then lived, defendant took Cheryl Gibson aside and told her that Yahweh wanted her to leave her husband. Defendant used the arm test to determine that in Yahweh's eyes Gibson was not married to her husband, who was "on Satan's side." Defendant also told her that if she did not stay with defendant and Ruth Ryan, her husband and children would be killed in an automobile accident.

Gibson eventually left her husband, and for a time she and her children lived with Michael and Ruth Ryan. In May of 1984, a cult service was held, with Rick Stice officiating, where defendant and Gibson were married in Yahweh's eyes.

In June of 1984, defendant told his wife, Ruth, and Gibson that Yahweh wanted them to get better acquainted by going to the Rick Stice farm outside of Rulo. During the summer of 1984, defendant, Ruth Ryan, the three Ryan children (including Dennis), Rick Stice and his three children, Cheryl Gibson and her five children, James Haverkamp, Lisa Haverkamp, and James Thimm moved to the Rulo farm. In August 1984, John David Andreas and, in October, Timothy Haverkamp, a cousin of the Haverkamps, moved to the farm. This group of 7 adult men (including Dennis Ryan), 3 adult women (Ruth Ryan, Gibson, and 15-year-old Lisa Haverkamp), and 10 young children constituted the basic Rulo group. Maxine Haverkamp was a regular visitor.

In the meantime, in June of 1984, defendant officiated at the cult wedding of Rick Stice and Lisa Haverkamp, and, in August of 1984, defendant took his second cult wife by marrying Cheryl Gibson's mother, Maxine Haverkamp.

The Rulo farmstead included two trailer houses. Rick Stice was determined to be the high priest of the group, and he and Lisa Haverkamp shared a bed in the south trailer. During this period, the remainder of the group lived in the north trailer. The men slept in a large room known as the barracks, and the women and children slept in various other rooms of the north trailer. By August of 1984, daily life on the farm was established. The women would consult Yahweh through the arm test in order to determine meal plans, including how long to boil water, and Ryan would use the arm test to find out if any members of the group needed to fast or do penance that day.

Defendant acted as the leader of the group. He would assign tasks for the day and then spend most of his time watching television. During the evenings, defendant would direct the men on stealing raids. Apparently, defendant himself did not participate in the raids.

The group believed that the Battle of Armageddon would take place in the Rulo area, since the Battle of Armageddon was also known as the "Battle of the Wheat Fields." Defendant had observed that there were several wheat fields in the area, and concluded from this that the final battle would be waged near Rulo.

Defendant gave each of the men a military title, and within a few months all of the men were generals, some having attained five star general status, with the exception of Rick Stice, the owner of the farm, who was a six star general and the high priest.

By the fall of 1984, the group had acquired over 75,000 rounds of ammunition and dozens of weapons, including several that were fully automatic. The group also stockpiled seed, charcoal, and enough food to fill a room 20 feet wide by 35 feet long.

During the later part of 1984, Stice lost the Rulo farm due to financial difficulties. The farm was purchased by James Haverkamp and Lynn Thiele, partially with money stolen from James Haverkamp's father. During this same period, defendant determined that Yahweh was angry with Rick Stice; that Stice had raped Slice's cult wife, Lisa Haverkamp; and that Stice was having "bad thoughts." It would appear that one of Slice's more serious transgressions was losing the farm. Defendant demoted Stice and moved Lisa to the north trailer, where she shared a bed with Ruth Ryan and Cheryl Gibson.

In December of 1984, defendant took Lisa Haverkamp as his third cult wife, and on June 25, 1985, Ryan took his fourth cult wife by marrying Debra Thiele, the sister of Cheryl and Lisa. By this time, defendant was considered married to Cheryl, Lisa, and Debra and to their mother, Maxine Haverkamp, and Ruth Ryan, whom he married in a conventional ceremony in about November of 1967. Maxine did not live on the farm, but would come to the farm twice a month, apparently to perform her conjugal activities.

In December of 1984, defendant announced that Lisa Haverkamp was the queen of Israel. On New Year's Eve, defendant told the group that he and Lisa had spoken to Yahweh, and Yahweh had said that there were going to be changes on the farm. After the group smoked marijuana, defendant informed them that unless the jealousy stopped the law would come and that the children would be taken away. Defendant told the group that each individual had to make a decision on whether to remain or leave the farm; that Yahweh had indicated that anyone who elected to leave would "burn in hell"; and that if an individual elected to stay, he or she would have to stay with the group forever. Defendant said that if anyone decided to stay and then left, he would "hunt [them] down and kill [them]."

During a Saturday Bible meeting, James Thimm stated that he was not sure there was a Yahweh and expressed doubts in the arm test. Rick Slice's 5-year-old son, Luke Stice, also apparently had expressed doubts about Yahweh. After these incidents, in January or February of 1985, Thimm, Rick Stice, and Luke Stice were moved to the south trailer. Both Thimm and Rick Stice were demoted to "slaves," and Luke was called "dog," "mongrel," "gook," or "dogshit." During January and February, apparently as part of the changes Ryan had foretold, Rick Stice and Thimm were made responsible for most of the guard duty, washing of dishes, and care of the chickens and goats.

Evidence showed that about this time, defendant began to abuse Thimm, Rick Stice, and Luke Stice. Defendant threatened to amputate Rick Slice's penis and threatened to skin and then burn Luke Stice alive, and both Thimm and Rick Stice were forced to do calisthenics. In March, defendant instructed Thimm to have anal sex with Rick Stice, and told Thimm "to make him hurt." Defendant also forced Rick Stice to perform oral sex on his son Luke and forced Luke to perform oral sex on his father while the other men watched. Ryan told the others that Yahweh wanted these acts performed in order to humiliate Thimm and Rick and Luke Stice as punishment for their having "bad thoughts."

Luke Stice died around March 25, 1985, after defendant repeatedly shoved him, causing Luke's head to strike a cabinet. Luke was knocked unconscious the third time defendant shoved him and died sometime during the night. Luke was buried the following morning in an unmarked grave that defendant forced Rick Stice and Thimm to dig

After Luke's death, defendant forced Rick Stice to copulate with a goat on three different occasions.

During March, defendant and Lisa Haverkamp went to Kansas City for a honeymoon. Defendant left his son Dennis and Timothy Haverkamp in charge at Rulo. While defendant was gone, Rick Stice escaped. After defendant returned, James Thimm was kept chained to the south trailer porch.

After leaving the farm, Stice began to worry about "eternal damnation" and returned to the farm after 7 days. Upon his return, defendant had both Rick Stice and Thimm kept chained to the porch of the south trailer.

On April 4, 1985, Rick Stice escaped a second time after Timothy Haverkamp had taken Stice into town on defendant's orders, so that Stice could cash his Social Security check. Stice did not return to the farm and did not contact authorities until June 26, 1985.

After Slice's escape in April, the treatment Thimm received from defendant continued to deteriorate. Thimm was forced to sleep chained to the porch, was fed small birds the men shot, and was also forced to copulate with a goat. On April 27, 1985, after being accused of poisoning a turkey, Thimm was beaten by the men and taken to the hog confinement building, where he was kept chained for the night. At this time, the adult men present on the Rulo farm were: defendant; Dennis Ryan; Timothy Haverkamp; James Haverkamp; John David Andreas; and the victim, James Thimm. Ruth Ryan, Cheryl Gibson, and Lisa Haverkamp were the adult women there, and there were nine young children.

On April 28, 1985, defendant sent Andreas out to Thimm with a bowl of granola cereal. Defendant informed the men during breakfast that "Yahweh would be pleased if [Thimm] lasted four or five days." At about mid-morning, defendant and the rest of the adult men went to the hog confinement building. Defendant instructed Thimm to disrobe and to bend over a farrowing crate.

Defendant then told Thimm that he was going to be sexually assaulted with a shovel handle. Defendant then inserted a shovel handle into a grease cartridge and told the men that Thimm had not done a good enough job with the goat and that Yahweh wanted Thimm "probed." Defendant then inserted the shovel handle about 5 or 6 inches into Thimm's rectum and "probed" Thimm for about 30 seconds. When Thimm would not stop fidgeting, defendant tied Thimm's arms to the farrowing crate with baling wire.

Defendant then informed the men that Yahweh had said that he wanted the handle inserted between 8 and 10 inches and had given defendant the order in which each man was to probe Thimm. A tape measure was then used, and the shovel handle was marked. While defendant had the handle inserted in Thimm's rectum, he told Thimm, "I ought to shove this thing up to your heart." (One of the examining pathologists testified that, in fact, the shovel handle was inserted some 2 feet into Thimm.) Each of the remaining four men then took their turns probing Thimm's rectum with the shovel handle. After Thimm screamed a couple of times, defendant kicked Thimm in the head and had furnace tape put over Thimm's mouth so that the men would not have to hear Thimm's cries.

After the probing, defendant instructed Thimm to sign his car title over to Timothy Haverkamp. Thimm did so, and apparently defendant told Timothy Haverkamp that Thimm's car was his birthday present.

Each man, beginning with defendant, probed Thimm again. During this second round of probing Thimm's rectal wall was ruptured. Defendant decided that the handle was being inserted too far and that they needed an object that was bigger around. Defendant then greased the fat end of a pick handle and inserted it into Thimm's rectum about 3 inches. After this second round of probing, the men left to do some chores and left Thimm chained in the hog confinement shed.

That afternoon defendant told the men that Thimm had not been punished enough. The men returned to the hog confinement building, and Thimm was removed from the farrowing crate and bound to an overhead auger. Each of the five men then gave Thimm 15 lashes with a leather whip. Defendant began the whipping, and with each lash one of the cult members' names was called out. During this whipping Thimm said, "I'm sorry, Yahweh, please forgive me what I've done. Please stop this." Whereupon defendant said, "Well, you don't need to worry about that, because Yahweh's given up on you. You don't have any hope any more."

After this whipping Thimm was untied, given his sleeping bag, and chained up for the night.

During breakfast of the following morning (April 29, 1985), defendant told the men that Thimm had still not been punished enough. The men returned to the hog confinement building, and Thimm was again tied to an overhead auger. Beginning with defendant, each man gave Thimm 15 lashes with the leather whip.

After Thimm had received 75 lashes, defendant said that Thimm had still not received enough punishment. Thimm was forced to lie with his freshly whipped back on the floor. Thimm was then bound to a pipe, and each of the five men lashed Thimm's chest and stomach 15 times.

Defendant then had Thimm's left hand placed and bound palm up on a block of wood. Thimm began to moan, and defendant told him things would only get worse if he did not shut up. Defendant then shot one of Thimm's fingertips off with a pistol. Michael Ryan then instructed each man to shoot off one of Thimm's remaining left hand fingers and his thumb.

After the men had shot off Thimm's fingers, they returned to the north trailer for lunch. At lunch defendant told the men that Yahweh wanted Thimm dead by that afternoon. The men returned to the hog shed; defendant told Andreas to disk over the field to prepare an area to bury Thimm and told Andreas that he should go say goodbye to his friend James Thimm. When Andreas said goodbye, Thimm was still alive and able to say that he was "sorry."

Defendant then kicked and broke Thimm's arm and told Thimm that he was going to skin a part of him. Defendant put on a pair of yellow kitchen gloves and used a razor blade to make incisions in Thimm's leg, and then used a pliers to pull off strips of Thimm's skin. Thimm was still alive at the time. Defendant then told Dennis Ryan that he could break one of Thimm's legs. Dennis took a rough-cut 2 by 4 board about 7 feet long and proceeded to strike Thimm's leg in the knee area until Thimm's leg broke. Defendant told Dennis Ryan and Timothy Haverkamp that there was an easier way to break a leg. Defendant then placed a block of wood under Thimm's leg and told Timothy Haverkamp to hit Thimm's leg with the 2 by 4. Timothy Haverkamp hit the leg once and it broke.

Defendant then bent down and asked Thimm if he thought Yahweh meant business. Thimm was alive at this time. Defendant then said, "I'll cave his chest in. . . . That's sure to kill him." Defendant then proceeded to stomp on Thimm's chest with his cowboy boots.

Defendant then had James Haverkamp get Thimm's sleeping bag. Timothy Haverkamp testified that Thimm was dead before James Haverkamp returned with the sleeping bag. Defendant placed Thimm's body and clothing into the sleeping bag. Three or four hours later, defendant told the men that Yahweh wanted the grave to be "six foot long by three foot wide and six foot deep." The men dug the grave. Thimm's body was placed in the unmarked grave, and defendant told Timothy Haverkamp to shoot Thimm's body in the head so it would look like an execution. After Thimm's body had been shot in the head, it was covered with dirt.

An autopsy of the body was conducted for the State by George Gamel, M.D., on August 19, 1985, and by William Eckert, M.D., on behalf of the defendant, on September 3, 1985. Both autopsies revealed the following injuries: The anus was markedly dilated; the left hand's fingertips had gunshot-type injuries; the left arm was broken; both legs were fractured at the thigh level; the head had a gunshot wound, which shot had shattered the left side of the skull; there were multiple rib fractures on both the left and right sides of the chest and back; a blunt object had been inserted far up into the body cavity through the anus, causing damage to the liver; the colon was torn; linear bruises were on the body; and skin had been stripped from one of the legs. The victim's wrists and ankles were still bound with baling wire. The only disagreement between Drs. Gamel and Eckert was whether the victim's penis and scrotum had been cut away or had decomposed. Both pathologists reported that the cause of death was multiple traumatic injuries. Dr. Gamel testified the tear in the colon, the "whipping-like injuries," the gunshot wound to the head, the shock from the broken legs, and the crushed chest were all capable of causing the victim's death independently.

On June 25, 1985, James Haverkamp and Andreas were apprehended while attempting to return to the Rulo farm with a sprayer rig stolen in Kansas. While incarcerated, these men gave law enforcement officials information that was used to secure a search warrant. A team of law enforcement officers composed of FBI agents, Bureau of Alcohol, Tobacco, and Firearms agents, Nebraska State Patrol officers and investigators, and Richardson County sheriff's personnel, assisted by James Haverkamp and Andreas, searched the Rulo farm on August 17 and 18, 1985. On August 18, 1985, James Thimm's nude, partially decomposed body was found, and on September 25, 1985, the defendant was charged with Thimm's murder.

The foregoing facts were testified to by each of the five men involved in the murder. James Haverkamp, Timothy Haverkamp, John David Andreas, Dennis Ryan, and defendant himself each testified, in detail, as to the specific instances of probing, whipping, shooting, kicking, and beating. There is surprising agreement in the detailed facts related by each man.

Defendant's testimony is reflected in 291 pages of the record herein.⁴ He sets out his participation in the horrifying acts committed on Thimm and does not deny that the testimony of the other four criminals is generally true. In his testimony, defendant made the following points as to the testimony of the others, setting out his disagreements with the testimony of the other four. Defendant testified that James Haverkamp was the instigator of most of the thefts, that defendant did not force Andreas to go to the Rulo farm, that the victim and Andreas were not best friends, that defendant did not always lead the Bible studies, that Cheryl Gibson testified against defendant only because she was threatened by the FBI, that defendant did not want to steal, that defendant was tired of the people on the farm and wanted to leave, that Lisa Haverkamp had more power than defendant, that Rick Stice was responsible for the abuse of his son Luke, that it was not defendant's idea for Stice and Thimm to have homosexual relations, and that defendant tried to stop the homosexual activities.

The denials, of course, were as to essentially peripheral activities at the farm. As to the murder incident itself, defendant did not deny and, indeed, specifically testified to the torture itself and to Thimm's death. Defendant did testify, in contradiction to the testimony of others, as to some specific instances. Defendant testified that Yahweh, not defendant, had Thimm chained in the hog shed; that Thimm agreed to his torture; that defendant did not kick Thimm in the head; that Yahweh would not allow the group to drive Thimm off the farm; that Timothy Haverkamp "tore" Thimm open while probing him; that defendant did not stomp on Thimm's chest with his boots; that Andreas and James Haverkamp stomped on Thimm's chest, and Thimm was not breathing after this; that defendant told the group to leave Thimm alone; and that James Haverkamp had the idea of shooting Thimm's fingers off.

Defendant further testified that everyone came to the Rulo farm of their own free will and that he, the defendant, did not intend to kill Thimm.

State v. Ryan, 444 N.W.2d 610, 617-23 (Neb. 1989) (Ryan I).

4 Ryan's trial testimony is found in Box 2, Vol. XXII, Tr. 3839-3951, and Vol. XXIII, Tr. 3952-4130 (page references are to the stamped page numbers on the top right).

B. Procedural History 1. Conviction, Sentencing, and Direct Appeal

• April 10, 1986. Ryan is convicted of first-degree murder for killing James Thimm.

• October 16, 1986. Ryan is sentenced to death by District Judge Robert T. Finn, who presided over Ryan's trial in the District Court of Richardson County, Nebraska.

• August 11, 1989. The Nebraska Supreme Court, after considering 60 assignments of error, affirms Ryan's conviction and sentence. See State v. Ryan. 444 N.W.2d 610 (Neb. 1989) (Ryan I).⁵ • February 15, 1990. The Nebraska Supreme Court denies Ryan's motion for rehearing.

5 In his direct appeal, Ryan assigned as error (1) the termination of one of his court-appointed attorneys; (2) the trial court's interference with counsel; (3-5) the failure to sever his trial from the trial of his son, Dennis Ryan; (6) the admission of evidence of uncharged crimes; (7) the failure to instruct on the consequences of an insanity verdict; (8) the failure to give a diminished capacity instruction; (9-10) the failure to require the state to prove Ryan's sanity beyond a reasonable doubt; (11) non-compliance with a witness sequestration order; (12) the failure to sequester the jury during the trial; (13) instructing the jury on aiding and abetting; (14) the admission of the testimony of accomplices; (15) insufficient evidence of an intent to kill; (16-17) misconduct by the trial judge (ex parte communications with victims' families and turning his back during Ryan's testimony), and his failure to disqualify himself from sentencing; (18-20) the failure to convene a three-judge sentencing panel; (21) the unconstitutionality of the sentencing statute, Neb. Rev. Stat. § 29-2522 (Reissue 1985), for its failure to have the jury make fact findings; (22-23) the failure to give Miranda-type warnings prior to Ryan's examination by the state's psychiatrist; (24-29) the use of the trial record during the sentencing phase; (30-32) the admission of deposition testimony at the sentencing hearing; (33) lack of advance notice regarding the state's claim of aggravating circumstances; (34-35) the sentencing judge's failure to make all fact findings beyond a reasonable doubt; (36) "double counting" of some factors in determining aggravating circumstances; (37-38) aggravating circumstance 1(a) of Neb. Rev. Stat. § 29-2523 ("The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity.") is vague and overbroad; (39-40) aggravating circumstance 1(d) of Neb. Rev. Stat. § 29-2523 ("The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.") is vague and overbroad; (41) the failure to require the state to prove the absence of any mitigating circumstances; (42-46) the sentencing judge's failure to deal with non-statutory mitigating circumstances; (47-48) the non-uniform treatment of "equally culpable" participants in the crime; (49-52) the excessiveness of Ryan's sentence; (53-58) the denial of various motions relating to the death penalty; (59) the "cumulative effect" of the assigned errors; and (60) the page limitation imposed by the Nebraska Supreme Court on Ryan's brief.

• October 1, 1990. The United States Supreme Court denies Ryan's petition for writ of certiorari. Ryan v. Nebraska., 498 U.S. 881 (1990).

2. First Post-Conviction Relief Proceeding

• October 19, 1990. Ryan files a motion for post-conviction relief in the District Court of Richardson County, Nebraska, which subsequently is referred to retired District Judge Dewayne Wolf.⁶

• July 21, 1995. The Nebraska Supreme Court affirms Judge Wolf's denial of post-conviction relief. State v. Ryan, 534 N.W.2d 766 (Neb. 1995) (Ryan II).⁷

7 Ryan argued on appeal that "the postconviction trial court erred in (1) prohibiting the use of expert testimony to establish claims of ineffective assistance of counsel; (2) striking several of Ryan's claims; (3) failing to find that Ryan had been denied effective assistance of counsel at his trial with respect to advisement of all available defenses, the assertion of the insanity defense, the assertion of the insanity defense over Ryan's objection, the failure to object to a joint trial with Dennis Ryan, and Michael Ryan's decision to testify at trial; (4) failing to find that Ryan had been denied effective assistance of counsel at sentencing because counsel failed to respond to false testimony and permitted Ryan to testify at trial; (5) failing to find that Ryan had been denied effective assistance of counsel in connection with the preparation and presentation of issues at sentencing, including development of all statutory and nonstatutory mitigating circumstances, meeting statutory aggravating circumstances, making all available constitutional challenges to the death penalty, and formulating a reasonable trial strategy with respect to sentencing issues; (6) failing to find that aggravating circumstance (1)(d) of Neb. Rev. Stat. § 29-2523 (Reissue 1989) was unconstitutional on its face and as applied to Ryan; (7) failing to find that aggravating circumstance (1)(a) of § 29-2523 was unconstitutional on its face and as applied to Ryan; (8) failing to find that Ryan's constitutional rights were violated at sentencing by the lack of standards for the impaneling of a three-judge panel, the trial judge's refusal to recuse himself, and the trial judge's refusal to convene a three-judge panel; (9) failing to find that the evidence was insufficient to support the application of statutory aggravating circumstances (1)(d) and (1)(a); (10) failing to find that Ryan was denied his right to a statutory proportionality review on appeal; (11) failing to find that deposition misconduct by the prosecution deprived Ryan of his rights to due process of law; (12) failing to find that Ryan had been deprived of his right to counsel by the firing of one of his trial attorneys; (13) failing to find that the cumulative effect of all the errors in this case deprived Ryan of a fair trial; and (14) failing to grant Ryan postconviction relief." Ryan II at 775.

• September 27, 1995. The Nebraska Supreme Court denies Ryan's motion for rehearing.

3. First Habeas Corpus Proceeding

• November 17, 1995. Ryan files a pro se petition for writ of habeas corpus in this court. (Ryan v. Hopkins, Case No. 4:CV95-3391; Box 10, Filing 1.)

• April 1, 1996. Ryan, through his court-appointed counsel, files an amended petition for writ of habeas corpus. The amended petition contains 14 counts or claims.⁸ (Box 10, Filing 24.)

8 These claims directly correspond to Claims I and II, and V through XVI of Ryan's habeas petition in the present case.

• May 21, 1996. Ryan, through counsel, files a motion for leave to file a second amended petition to assert a new claim that Judge Finn participated in an ex parte communication with members of James Thimm's family, thereby violating Ryan's rights under the Due Process Clause of the Fourteenth Amendment.⁹ (Box 10, Filing 32.)

9 The claim is included in the present habeas petition as Claim III.

• July 31, 1996. Judge Piester, in considering Ryan's motion for leave to amend, finds (1) that the restrictions imposed by 28 U.S.C. § 2266(b)(3)(B) ¹⁰ do not apply because Nebraska is not in compliance with the requirements of § 2261 for appointment of counsel, (2) that the amendment is not precluded by "undue delay," (3) that although the legal basis for the proposed new claim was fairly presented to the Nebraska Supreme Court, the factual bases for the claim were not, (4) that the "arguable factual commonality" exception to the fair presentment requirement should not be applied, (5) that it is unclear whether there are any non-futile state court remedies available by which to pursue the claim, and (6) that, absent a waiver of any exhaustion requirement by the respondent, Ryan will be given the option of either withdrawing the motion for leave to amend or else dismissing the action without prejudice, so as to permit the proposed new claim to be presented to the state courts.¹¹ (Box 10, Filing 48.)

10 This statutory provision, which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (AEDPA), states that "[n]o amendment to an application for a writ of habeas corpus under this chapter shall be permitted after the filing of the answer to the application, except on the grounds specified in section 2244(b)."

11 Reported as Ryan v. Hopkins, No. 4:CV95-3391, 1996 WL 539220 (D. Neb. July 31, 1996).

• August 15, 1996. The respondent states that he is not prepared to waive exhaustion of any of Ryan's claims, and suggests that the question of whether Ryan has any state court remedies available should be certified to the Nebraska Supreme Court. (Box 10, Filing 50.)

• September 4, 1996. The respondent states that if the court does not certify the question of availability of state court remedies, he is prepared to waive exhaustion with respect to five claims, including three claims that concern Ryan's competence, an Eighth Amendment claim concerning the length of time Ryan's death sentence has been pending, and the proposed new claim concerning the ex parte communication with James Thimm's family. It is further stated, however, that the respondent does not waive any objection regarding the propriety of a Rule 8 evidentiary hearing on such claims. (Box 10, Filing 66.)

• October 18, 1996. Judge Piester denies the respondent's request to certify to the Nebraska Supreme Court the question of availability of state court remedies, denies Ryan's motion for leave to file a second amended complaint, and directs Ryan to make an election under Rose v. Lundy, 455 U.S. 509 (1982), of whether to proceed on the first amended petition or to dismiss the action. (Box 10, Filing 80.)

• October 29, 1996. Ryan moves to dismiss his petition without prejudice. (Box 10, Filing 83.)

• October 31, 1996. I grant Ryan's motion to dismiss. (Box 10, Filing 85.)

4. Second Post-Conviction Relief Proceeding

• November 7, 1996. Ryan files a second motion for post-conviction relief in the District Court of Richardson County, Nebraska, which subsequently is referred to District Judge Gerald R. Moran.

• September 10, 1999. The Nebraska Supreme Court affirms Judge Moran's denial of post-conviction relief. State v. Ryan, 601 N.W.2d 473 (Neb. 1999) (Ryan III.¹²

12 Ryan's assignments of error were summarized by the Nebraska Supreme Court, as follows: "First, Ryan contends, regarding the ex parte communication between Judge Finn and members of the Thimm family, that the district court erred in (1) its legal conclusion that the May 9, 1986, meeting between Judge Finn and members of the Thimm family did not violate State v. Barker, [ 420 N.W.2d 695 (Neb. 1988)], or Ryan's due process rights regarding sentencing; (2) its legal conclusion that any claim arising out of the May 9 meeting was procedurally barred and that the May 9 meeting did not require that Ryan be resentenced; (3) its factual finding that Ryan and his lawyers knew about the May 9 meeting during trial and during subsequent appeals; (4) not finding that Judge Finn attempted to conceal the May 9 meeting; (5) finding that trial evidence was not discussed at the May 9 meeting and that the Thimm family did not discuss their feelings about the possible sentences to be imposed on Ryan; (6) finding that statements made by Judge Finn at the May 9 meeting did not reflect prejudice and bias on Judge Finn's part; and (7) finding that the presumption of prejudice raised by the May 9 meeting was rebutted beyond a reasonable doubt by the State. Regarding the cumulative effect of the ex parte conversation, Ryan contends that the trial court also erred in (8) its conclusion that the cumulative effect of Judge should have ordered a competency hearing was procedurally defaulted; (23) its conclusion that failure of the judge to order sua sponte a competency hearing was not plain error; (24) its conclusion that the facts as presented to Judge Finn did not establish sufficient doubt as to Ryan's competency, requiring him to order a competency hearing; (25) its conclusion that the trial of Ryan did not violate substantive due process because Ryan was not incompetent at the time of trial; (26) its conclusion that it was not plain error to allow Ryan to stand trial while incompetent; (27) its conclusion that the substantive due process claim regarding competency was procedurally defaulted; and (28) its factual finding that Ryan was in fact competent at the time of trial." Ryan III, 601 N.W.2d at 482-83.

• May 1, 2000. The United States Supreme Court denies Ryan's petition for writ of certiorari. Ryan v. Nebraska, 529 U.S. 1100 (2000).

5. Second Habeas Corpus Proceeding

• December 10, 1999. Ryan files his petition for writ of habeas corpus. Seventeen counts are alleged. (See discussion infra, at 26-33.) (Filing 1.)

• February 17, 2000. The respondent answers. It is alleged that all claims except Claim III (regarding Judge Finn's ex parte meeting with members of James Thimm's family) are barred by the applicable statute of limitations, and that procedural default bars consideration of Claims VII, VIII, and IX (regarding Ryan's competence), Claim XIV (regarding the existence of mitigating circumstance 2(g)), Claim XV (regarding proportionality review), Claim XVI (an Eighth Amendment claim regarding the lapse of time since Ryan's death sentence was imposed), and Claim XVII (an Eighth Amendment claim regarding death by electrocution). (Filing 13.) • February 23, 2000. The respondent files the state court records. (Filing 15.)

• March 22, 2000. Ryan moves to expand the record to include all federal court records in his previous habeas corpus case, No. 4:CV95-3391, and to conduct an evidentiary hearing regarding his competence claims and his claim that death by electrocution is cruel and unusual punishment. (Filing 20.)

• March 30, 2000. Ryan moves for certain discovery regarding the issue of death by electrocution. (Filing 22.)

• May 5, 2000. Judge Piester orders, pursuant to the parties' joint stipulation, that all documents in Case No. 4:CV95-3391 shall be part of the record in this case. (Filings 28 29.)

• May 18, 2000. Ryan moves for a stay of proceedings pending completion of a study by the Nebraska Legislature concerning the death penalty. (Filing 32.)

• June 2, 2000. Judge Piester denies Ryan's motion for stay of proceedings. (Filings 32 39.)

• July 18, 2000. On appeal by Ryan, I sustain Judge Piester's order denying a stay of proceedings. (Filings 39, 42 45.)

• August 22, 2000. Judge Piester enters a memorandum and order that (1) finds this case to be a continuation of the 1995 habeas corpus proceeding, such that the AEDPA's one-year statute of limitations, 28 U.S.C. § 2244(d)(1), does not apply; (2) finds six claims to be procedurally defaulted, including the competence claims for which an evidentiary hearing was requested; and (3) denies Ryan's motions for an evidentiary hearing and for discovery on the issue of death by electrocution. (Filings 20, 22 49.)

• September 6, 2000. Ryan moves for leave to amend his petition, following the issuance of Apprendi v. New Jersey, 530 U.S. 466 (2000), to include a claim that Nebraska's sentencing scheme for the death penalty is unconstitutional. (Filing 51.)

• September 11, 2000. Ryan appeals Judge Piester's findings of procedural default and denial of the evidentiary hearing and discovery. (Filings 49 54.)

• September 14, 2000. Judge Piester denies Ryan leave to amend, finding that the proposed amendment would be futile. (Filings 51 55.) • September 25, 2000. Ryan appeals Judge Piester's denial of leave to amend. (Filings 55 57.)

• November 22, 2000. I deny Ryan's most recent appeal and sustain Judge Piester's order denying him leave to amend by observing that the majority opinion in Apprendi "does not overrule or indicate disapproval of the holding in Walton v. Arizona, 497 U.S. 639 (1990), that the Constitution does not require a jury to determine the existence of aggravating and mitigating circumstances in capital cases." (parallel citations omitted).¹³ (Filings 55, 57 68.)

13 The United States Supreme Court, of course, has since overruledWalton. See Ring v. Arizona, 536 U.S. 584 (2002).

• December 29, 2000. I sustain Ryan's objections with respect to Judge Piester's finding that his competence claims are barred by the procedural default doctrine, and I direct Judge Piester to prepare a report and recommendation regarding these three claims; in all other respects, I deny Ryan's appeal and affirm Judge Piester's order, including his finding that three other claims are barred by procedural default and his refusal to permit discovery or an evidentiary hearing on the issue of death by electrocution.¹⁴ (Filings 49, 54 74.)

14 Reported as Ryan v. Kenney, 125 F. Supp.2d 1149 (D. Neb. 2000).

• February 13, 2001. Judge Piester informs the parties that he will defer consideration of the procedural default issues on the competence claims until he has fully considered those claims on the merits, and he directs the respondent to brief those claims and also the request for an evidentiary hearing. (Filings 20 81.)

• May 4, 2001. Judge Piester grants Ryan's request for an evidentiary hearing and states that, in addition to addressing whether Ryan can show "prejudice" to excuse the procedural default, he will consider whether Ryan's alleged incompetence was a "cause" of the default. (Filings 20 89.)

• May 17, 2001. Judge Piester clarifies that he intends to take evidence on both the "cause" and "prejudice" procedural default issues. (Filing 96.) • August 16, 2001. Judge Piester opens the evidentiary hearing. (Filing 120.)

• November 21, 2001. Judge Piester, on his own motion, directs that Ryan shall be transported to the Federal Medical Center in Springfield, Missouri, to undergo a comprehensive psychiatric examination to determine his competency to proceed on his own behalf or to waive any claims he may have in this habeas corpus proceeding, and, to the extent possible, his competency during the acts of which he stands convicted, during the trial, and during the post-conviction proceedings. (Filing 134.)

• December 10, 2001. On an appeal by Ryan, I sustain Judge Piester's order. The appeal did not seek to prevent the court-ordered psychiatric examination, but, rather, objected to certain statements that Judge Piester made in an accompanying memorandum. (Filings 134 136.)

• January 18, 2002. Judge Piester clarifies his memorandum and order regarding the psychiatric examination. (Filings 134 146.)

• July 31-August 1, 2002. Judge Piester concludes the evidentiary hearing. (Filings 183 186.)

• December 13, 2002. Following briefing, Judge Piester issues his report and recommendation. (Filing 202.)

• December 20, 2002. Ryan files objections to the report and recommendation. (Filing 203.)

• February 14, 2003. Ryan files his supporting brief. (Filing 211.)

• June 27, 2003. The respondent files his opposing brief. (Filing 243.)

• August 27, 2003. Ryan files his reply brief, and the matter is deemed submitted. (Filing 247.)

C. Ryan's Claims and Judge Piester's Recommendations Regarding Those Claims

As a preliminary matter, Judge Piester finds that Ryan is and has been competent during these federal habeas corpus proceedings. (Filing 202, at 8-31.) He also finds that Ryan was competent at the time of trial, and thus cannot demonstrate prejudice to excuse his procedural default regarding the competence claims. (Filing 202, at 34-49.) Finally, he finds that Ryan was competent during his direct appeal and during the two state court proceedings for post-conviction relief, such that it cannot be claimed that any procedural default was caused by incompetency. (Filing 202, at 49-50.) Each of Ryan's 17 claims, and Judge Piester's recommended disposition thereof, is summarized below.

1. Claim I (Trial Court Misconduct)

It is alleged that during much of Ryan's trial testimony Judge Finn turned his back to Ryan. Ryan claims that such conduct violated his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments.

Judge Piester recommends that Claim I be denied because the Nebraska Supreme Court determined in Ryan I, and reiterated in Ryan II and Ryan III, that Judge Finn's conduct was not prejudicial, and such determination is entitled to deference under 28 U.S.C. § 2254(d). (Filing 202, at 52-67.)

2. Claim II (Trial Court Misconduct)

It is alleged that Judge Finn, who was also the sole sentencing judge, had an ex parte communication with members of the Luke Stice family prior to sentencing Ryan to death. Ryan claims that such ex parte communication violated his right to due process under the Fourteenth Amendment.

Judge Piester recommends that Claim II be denied because Judge Moran found, and the Nebraska Supreme Court affirmed his finding in Ryan III, that there was no judicial bias or prejudice to Ryan. (Filing 202, at 67-78.)

3. Claim III (Trial Court Misconduct)

It is alleged that Judge Finn also participated in an ex parte communication with members of the James Thimm family prior to sentencing. It is again claimed that Ryan's due process rights were violated.

Judge Piester recommends that Claim III be denied, essentially for the same reasons as Claim II. (Filing 202, at 67-78.)

4. Claim IV (Ineffective Assistance of Counsel)

It is alleged that Ryan's trial counsel failed to investigate and to develop the record regarding Judge Finn's ex parte communications with members of the Luke Stice and James Thimm families. Ryan claims that he was thus denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments, and due process of law as guaranteed by the Fourteenth Amendment and by Article I, section 2, of the Nebraska Constitution.¹⁵

15 This claim was not alleged in Ryan's first habeas petition.

Judge Piester treats Claim IV as abandoned under NELR 39.2,¹⁶ due to Ryan's failure to discuss the claim in his brief on the merits. (Filing 202, at 78.)

16 This local rule provides, in relevant part, that "[w]hen a judge has set a time for submitting a brief, the failure to submit a brief or to discuss an issue in the brief submitted may be treated as an abandonment of that party's position on any issue not discussed." NELR 39.2(c).

5. Claim V (Trial Court Misconduct)

It is alleged that Judge Finn abused his discretion in failing to convene a three-judge sentencing panel. Ryan claims a denial of due process under the Fourteenth Amendment.

As with Claim IV, Judge Piester treats Claim V as abandoned under NELR 39.2. (Filing 202, at 78.)

6. Claim VI (Cumulative Trial Court Misconduct)

It is claimed that the cumulative effect of Judge Finn's alleged misconduct was to deny Ryan due process of law under the Fourteenth Amendment.

Judge Piester recommends that Claim VI be denied because the "cumulative effect" of trial errors or attorney errors is not a recognized ground for habeas relief, and because there is no merit to Ryan's further argument that he was denied a fair trial as a result of Judge Finn repeatedly disparaging his trial counsel and his defense before the jury. (Filing 202, at 79-81.)

7. Claim VII (Ineffective Assistance of Counsel)

It is alleged that Ryan's trial counsel failed to request an evidentiary hearing or to move for a judicial determination of his competency to stand trial. A Sixth Amendment violation is claimed.

Judge Piester recommends that Claim VII be denied because of procedural default. (Filing 202, at 49-50.)

8. Claim VIII (Fair Trial and Due Process)

It is alleged that Judge Finn should have ordered a competency hearing sua sponte. Ryan claims that without such a hearing he was denied a fair trial and due process under the Sixth and Fourteenth Amendments.

Judge Piester recommends that Claim VIII be denied because of procedural default. (Filing 202, at 49-50.)

9. Claim IX (Competency to Stand Trial)

It is alleged that Ryan was not competent to stand trial. This claim is made under the Sixth and Fourteenth Amendments.

Judge Piester recommends that Claim IX be denied because of procedural default. (Filing 202, at 49-50.)

10. Claim X (Ineffective Assistance of Counsel)

It is alleged that Ryan's trial counsel failed to advise him adequately of the adverse consequences of a joint trial with his son, Dennis Ryan, or to object to the joint trial. A Sixth Amendment claim is presented.

Judge Piester recommends that Claim X be denied because the state courts found in Ryan II and Ryan III that the performance of Ryan's trial counsel was not deficient, and because Ryan cannot claim prejudice based on the alleged failings of counsel. (Filing 202, at 81-86.)

11. Claim XI (Errors in Sentencing)

It is alleged that aggravating circumstance 1(d) under Neb. Rev. Stat. § 29-2523 is unconstitutionally vague and overbroad, either on its face or as applied. This claim is made under the Eighth and Fourteenth Amendments.

Judge Piester recommends that Claim XI be denied as a matter of law. (Filing 202, at 86-88.)

12. Claim XII (Errors in Sentencing)

It is alleged that Judge Finn's consideration of the "unconstitutional portion" of aggravating circumstance 1(d) was not harmless error.¹⁷ This claim also is made under the Eighth and Fourteenth Amendments.

17 The alleged "unconstitutional portion" of aggravating circumstance 1(d) is the "exceptional depravity" prong. See Ryan II, 534 N.W.2d at 794 (citing Moore v. Clarke, 904 F.2d 1226 (8th Cir. 1990)).

Judge Piester recommends that Claim XIII be denied as a matter of law. (Filing 202, at 86-88.)

13. Claim XIII (Errors in Sentencing)

It is alleged that aggravating circumstance 1(a) under Neb. Rev. Stat. § 29-2523 is unconstitutionally vague and overbroad as applied to Ryan because the Nebraska Supreme Court interpreted it so as to include serious assaultive or terrorizing acts committed by others and "vicariously" imputed to Ryan. The claim is made under the Eighth and Fourteenth Amendments.

Judge Piester finds that the record supports the facts that were relied upon by the sentencing judge, and he recommends that Claim XIII be denied as a matter of law. (Filing 202, at 89-92.)

14. Claim XIV (Errors in Sentencing)

It is alleged that Judge Finn erred in failing to find the existence of mitigating circumstance 2(g) under Neb. Rev. Stat. § 29-2523, involving diminished capacity. Such failure is claimed to have violated Ryan's rights under the Eighth and Fourteenth Amendments.

Judge Piester recommends that Claim XIV be denied because of procedural default. (Filing 202, at 50.) Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 74.)

15. Claim XV (Lack of Proportionality Review)

It is alleged that Ryan was deprived of his right to a statutorily mandated proportionality review of sentences imposed in criminal homicide cases. This claim once again is made under the Eighth and Fourteenth Amendments.

Judge Piester recommends that Claim XV be denied because of procedural default. (Filing 202, at 50.) Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 74.)

16. Claim XVI (Cruel and Unusual Punishment)

It is alleged that Ryan has been forced to await death by electrocution since his sentencing in 1986. This circumstance is claimed to violate Ryan's rights under the Eighth Amendment.

Judge Piester recommends that Claim XVI be denied because of procedural default. (Filing 202, at 49-50.)¹⁸ Once again, Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 74.)

18 I note that the report and recommendation contains typographical errors at page 50, where Claim XVI is twice erroneously identified as Claim XIV.

17. Claim XVII (Cruel and Unusual Punishment)

Finally, it is claimed that death by means of electrocution is cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments.¹⁹ Judge Piester treats Claim XVII as abandoned under NELR 39.2, due to Ryan's failure to discuss the claim in his brief on the merits. (Filing 202, at 93.)

19 This claim was not alleged in Ryan's first habeas petition.

II. ANALYSIS

As noted before, I need not discuss most of Judge Piester's careful findings of fact and conclusions of law. They are correct and well stated, and except for several additional comments, it is enough that I now adopt them and the recommended decision as my own.

A. Applying the AEDPA Standards of Review

Ryan loses many of his claims in this court because Judge Piester correctly found that we must give deference to the findings of fact and conclusions of law of the Nebraska courts, as required by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (AEDPA). AEDPA, effective April 24, 1996, increased the traditional deference federal courts give when reviewing the decisions of state courts in habeas corpus cases. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir. 2001) (discussing and applying the AEDPA deference standards). Ryan contends that it is both legally wrong and unfair to apply the increased AEDPA deference standards to him. On both counts, I disagree.

Under AEDPA, and for many cases, the factual findings and legal conclusions of state courts are nearly "bullet proof." For factual decisions, and subject to rebuttal by the petitioner, I must presume the factual decision is correct, see 28 U.S.C. § 2254(e)(1), and overturn such a factual decision only if it was unreasonable based upon the evidence presented in the state court proceedings, see 28 U.S.C. § 2254(d)(2). For legal decisions, the decision of the state court must stand unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . ." 28 U.S.C. § 2254(d)(1).

A state law decision is "contrary to" the law as determined by the Supreme Court if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of the Court's cases despite confronting indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state law decision involves an "unreasonable application" of the law as determined by the Supreme Court if the state court identifies the correct governing legal principle from the Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 407-08.

The AEDPA standards of deference have overarching significance to Ryan. As Judge Piester fully explains in his report and recommendation, the Nebraska courts approached Ryan's claims very carefully and not unreasonably as to both questions of fact and questions of federal law. See, for example, Judge Piester's thorough discussion of this topic regarding Ryan's claim that Judge Finn, by turning his back to Ryan during some of his trial testimony, violated the Due Process Clause of the Fourteenth Amendment because that conduct allegedly denied Ryan a fair trial by a fair judge. (Filing 202, at 56 63.) So, even if I would otherwise find or conclude that the Nebraska courts were conceivably wrong either factually or legally (and I do not), I would still be required to deny Ryan relief since he is unable to overcome the AEDPA deference standards as to any claims reviewed by the Nebraska courts.

I now turn to Ryan's argument that he should be relieved of the AEDPA standards of deference. Initially, he argues that the law does not require application of AEDPA to his case because, despite the fact that he started this case after AEDPA, he initiated the federal habeas process in an earlier suit before AEDPA was enacted. Further, he points out that he only dismissed the earlier action for the purpose of exhausting his state court remedies. Then, he argues, much like an equitable tolling defense to a statute of limitations assertion, that Nebraska should not be able to take advantage of his efforts to exhaust all his claims and then apply AEDPA to him because he would not have needed to exhaust his claims if Judge Finn had been honest. That is, Ryan claims that application of the AEDPA standards of review to his case is unfair.

Regarding Ryan's legal argument, the law is squarely against him. He clearly filed this action after AEDPA even though it is true that before AEDPA he had filed a habeas petition that he dismissed without prejudice so that he could exhaust his state court remedies. The Eighth Circuit has held that the AEDPA deference standards apply in this precise situation.Weaver, 241 F.3d at 1029 (AEDPA standards of deference applied to habeas petition filed after its effective date even though the petitioner, before the effective date, filed a habeas petition which was dismissed without prejudice for failure to exhaust state remedies, and despite contention that the second filing constituted a mere continuation of the first filing). Despite Ryan's suggestion that a better rule has been articulated in the Ninth Circuit, I am not free to disregard my Court of Appeals' decision in Weaver.²⁰ I turn next to Ryan's fairness argument. Ryan argues that he would never have had to dismiss his earlier federal suit if Judge Finn had not signed an untrue affidavit in 1993 denying that the judge had an ex parte meeting with the Thimm family. Ryan argues, and it is undisputed (as discussed more fully later), that Judge Finn gave Ryan's former lawyer an affidavit that turned out to be in error. When Ryan's counsel in this case learned of that error, they sought and were given leave to dismiss the pending federal habeas action to pursue a claim related to Judge Finn's meeting with the Thimm family. It is also true that the State of Nebraska, while agreeing to waive exhaustion of that issue in this court, would not stipulate to a federal court evidentiary hearing to make a record on Finn's conduct. Thus, Ryan argues that "[b]ut for Judge Finn's concealment and the State's litigation tactics, no claim could be made now that AEDPA governs the standard of review here." (Petr's Initial Br. (Filing 211, at 10).)

20 I would not even if I could. The AEDPA deference standards are consistent with, and a logical extension of, principles of federalism that have long been applied in the federal courts. Therefore, these standards of deference are unlike time deadlines or other arbitrary rules for which equitable leniency might reasonably be given. On the contrary, these rules of deference relate directly to the basic structural relationship between the central government and the state governments. Thus, had there been any doubt (and there was none) in this case, I would have applied the AEDPA's standard of review without Weaver, Still further, because of the subsequent decision in Weaver, Judge Piester's August 22, 2000, comments (Filing 49) about this case being a "continuation" of earlier proceedings are wrong to the extent that the "continuation" language is now applied to the deference question by Ryan. Similarly, Judge Piester's previous comments about the AEDPA statute of limitations are irrelevant to the extent.

This "fairness" argument fails for at least three reasons. First, as I later independently find and conclude, while Judge Finn was mistaken in his affidavit, his mistake was not intentional. (See infra note 41.) Thus, Ryan's "fairness" argument is substantially weakened as there was no intentional concealment. Second, there is no "unfairness" in applying AEDPA deference standards to Ryan no matter the reason for Ryan's decision to dismiss his earlier case. Deference standards, of one sort or the other, have long been a principle of federal habeas corpus jurisprudence. See, e.g., Brown v. Allen, 344 U.S. 443, 465 (1953) ("As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction. . . . "partially abrogated on other grounds by 28 U.S.C. § 2254(d) and Williams v. Taylor, 529 U.S. 362 (2000)). Clearly, Ryan cannot suffer any legally cognizable prejudice by expansion of the venerable and salutary principle of deference. Thirdly, and most importantly, there is no precedent to support Ryan's argument that equitable tolling or equitable estoppel notions should be applied to AEDPA standards-of-review questions.

In summary, Judge Piester was correct in applying the AEDPA standards of review to this case. It was not unfair to do so. Judge Piester was also correct in each and every particular application of those deference standards to Ryan's claims.

B. Independent Review of the Competency and Ex Parte Meeting Claims

Notwithstanding my agreement with Judge Piester regarding questions of procedural default and AEDPA standards of deference, I have also independently reviewed the merits of two categories of claims asserted by Ryan as if the procedural default and AEDPA rules did not apply. I have done so out of an abundance of caution because these two categories of claims are the essence of whether Ryan received the fundamental fairness that is required by the Due Process Clause of the Fourteenth Amendment.

1. The Competency Claims

Most basically, Ryan's counsel argues that the petitioner sincerely held and now holds fanatical religious beliefs, and those strange notions (like God speaking directly to him) controlled Ryan's every legal decision up to and including the legal strategy being pursued in this case. Thus, for example, "[i]t is incomprehensible how he could have made a `rational' decision whether to testify or not, or rationally [make] other trial decisions if he thought, as his own counsel and everybody else believed he thought (except Dr. Kenney), that Yahweh [God] was dictating everything he did." (Petr's Initial Br. (Filing 211, at 48).) To start with, the jury rejected Ryan's insanity plea and the views of his mental health experts in that regard, and Ryan has always personally claimed that he is and was competent and never insane. But assuming for the moment that Ryan truly held and now holds each and every one of the extreme beliefs attributed to him by his able counsel,²¹ and further assuming that those beliefs truly controlled his legal decision-making process, Ryan was not and is not now incompetent. As repeated objective psychological testing of Ryan continually proved,²² and world events like "9/11" starkly corroborate, the pursuit of fanatical religious beliefs — quite often at the explicit command of the true believer's God — is not the same as incompetence. See, e.g., Ford v. Bowersox, 256 F.3d 783, 787 (8th Cir.) (despite the fact that the evidence revealed that (1) petitioner's mother and another fellow parishioner told him they had visions of his acquittal, (2) the petitioner also received a vision directing him to fast for 35 days and he would be delivered, (3) from these visions, the petitioner developed the theory that God's angels would assure his acquittal, and (4) in a symbolic act of devotion, the petitioner stood on his Bible in the holding area outside the courtroom, following the Bible's directive to "stand on [God's] word," the Court of Appeals declined to label petitioner's deeply held religious beliefs "preposterous," "irrational," or "bizarre," and instead held that he was competent to reject a plea agreement in a murder case), cert. denied, 534 U.S. 1068 (2001). One can be both odd and evil but not crazy or incompetent.

21 There was certainly no agreement on this by the experts. At least two of the them thought that Ryan was faking all or part of his rigid reliance upon religion.

22 Those tests included at least three administrations of the Minnesota Multiphasic Personality Inventory (MMPI), the "gold standard" for objective psychological testing. While some of them showed an odd personality, none of them showed a mental illness. In 1985, one such test was conducted shortly prior to Ryan's original trial. (Box 9, Ex. 109, at 3 (quoting the 1985 classification study describing the 1985 MMPI).) During these proceedings, two others were conducted. (Box 9, Ex. 109, at 5-7 (describing Dr. Martell's 2001 administration of the MMPI); Box 9, Ex. 113, at 13 (describing Dr. Pietz's administration of the MMPI in 2002).) Over a period of about 17 years, no objective psychology testing showed that Ryan suffered from mental illness.

In particular, I fully agree with Dr. Christina A. Pietz, a highly trained and very experienced clinical psychologist at the Federal Medical Center, who is board certified in forensic psychology and truly independent of Ryan or the State of Nebraska. After having the opportunity to see Ryan in a locked ward setting for two months, she wrote: "[I]t is my opinion that there is absolutely no evidence Mr. Ryan ever suffered from any form of psychosis or any other mental illness, or that he currently suffers from one." (Box 9, Ex. 113, at 15.)

Still further, the evidence reveals that Ryan had no trouble effectively dealing with his lawyers. As one of Ryan's former lawyers said, "what delusions [Ryan] had about Yahweh . . . never seemed to interfere with our conversations or his understanding of the case or what was at stake." Ryan III, 601 N.W.2d at 481-82 (quoting from the testimony of defense lawyer Richard Goos) (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 542.)

Most importantly, there is every reason to believe Ryan quite rationally, but deceitfully, attempted to shift the blame to others for the act that ultimately killed Thimm. According to his son, who testified at one of the post-conviction proceedings, Ryan told the boy to lie at trial by blaming others for Ryan's conduct in stomping James Thimm to death in order that Ryan could avoid the death penalty:

Counsel for the State: Q. As to Michael Ryan's involvement in the death of James Thimm, what did Michael Ryan tell you to do in your testimony?

Dennis Ryan: Q. What did he say to lie about?

Counsel: Q. Yes.

Dennis Ryan: A. He said not to tell about that he was the one that was stomping, you know, doing the chest and stuff and that Jimmy and Dave did that. Just different things like that.

Counsel: Q. Correct me if I am wrong, basically what it is[,] is Michael Ryan told you not to testify about certain things he had done; is that correct?

Dennis Ryan: A. To blame it on somebody else.

Counsel: Q. Did he ever explain to you why he wanted you to do this?

Dennis Ryan: A. Because he didn't — because he didn't want to get the electric chair.

(Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 380-81.)

Beyond any reasonable doubt, and regardless of the factual findings or legal conclusions of other judges, Ryan was (and is) a fanatic, but he has always been a completely competent (and deadly dangerous) one. Ryan was at all times fully able to consult with his lawyers and he had a rational understanding of both the legal process and the facts. See,e.g., Ford, 256 F.3d at 786 (a person is incompetent if he lacks a `"sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.'") (quoting Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (in turn quoting Dusky v. United States, 362 U.S. 402 (I960))).

2. The Ex Parte Meeting Claims

It is undisputed that Judge Finn, the trial and lone sentencing judge, held conferences in his chambers at the courthouse with family members of Ryan's victims prior to imposing the death sentence on Ryan. This conduct, although motivated by a humanitarian instinct,²³ was improper under Nebraska law. Ryan III, 601 N.W.2d at 486 (describing a recusal rule, premised upon Nebraska Rule of Evidence 605 (concerning the testimony of a judge as a witness), that prohibits a judge from initiating or receiving an "ex parte communication"²⁴ concerning a "pending" or "impending" proceeding). While Judge Finn's conduct was improper under Nebraska law, it did not come close to the gravity of judicial misbehavior that is required to trigger the Due Process Clause of the Fourteenth Amendment. See, e.g., Bracy v. Gramley, 520 U.S. 899 (1997) (in a death penalty case, the habeas petitioner stated a claim entitling him to discovery when the judge who sentenced him to death, and who was later convicted of taking bribes in other murder cases, was alleged to have had an interest in the petitioner's conviction-that is, deflecting suspicion from the judge's illegal activities.)

"[M]ost questions concerning a judge's qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard." Id. at 904. Therefore, the pertinent question under the Due Process Clause is not whether Judge Finn should have met with the victims' families, but, despite these meetings, whether Ryan received `"a fair trial in a fair tribunal, . . . before a judge with no actual bias against the defendant or interest in the outcome of his particular case.'" Id. (internal citation omitted). In that regard, the evidence falls far short of establishing that Finn had a "bias" against Ryan, or an "interest" in Ryan's case.

After Ryan had been found guilty by the jury of Thimm's murder, but prior to sentencing Ryan to death, Judge Finn had two meetings with family members of Ryan's two victims.²⁵ Condensed, the following is the core chronology of what happened:

25 The lawyers and the other judges have referred to the two groups of people who met with Judge Finn as the Thimm and Stice families. I, too, follow that practice, but I note that two of the Thimm family members were not actually related by blood, marriage, or adoption to the victim.

• In 1986, Ryan was convicted in two separate proceedings of the murder of James Thimm and Luke Stice. A jury found him guilty of the first-degree murder of Thimm, and shortly after that, Ryan entered a "no contest" plea to the second-degree murder of Stice. His son, Dennis Ryan, was also convicted with the petitioner in a joint jury trial for the murder of Thimm.²⁶

26 Ryan III. 601 N.W.2d at 638-39.

• To be specific, in April of 1986, after a jury trial, Ryan was found guilty of the first-degree murder of Thimm. As a part of the trial regarding the death of Thimm, the evidence revealed in detail how Stice died. A sentencing hearing for Ryan on the Thimm murder was set for September 15, 1986.²⁷

27 Id.

• On May 9, 1986, a sentencing hearing was held for Dennis Ryan, Ryan's son.²⁸ Although a juvenile, and although he was convicted by the jury of second-degree murder, Dennis Ryan was originally sentenced to life in prison for the murder of Thimm.²⁹ On that same day, and in the courthouse, Judge Finn met with at least two members of the Thimm family (Daneda Heppner³⁰ and Karen Schmidt³¹) after he sentenced Dennis Ryan. Also accompanying them to the meeting was Garnetta Butrick, Luke Slice's grandmother.³² These family members, and Dennis Ryan's mother, Ruth Ryan, were asked by Judge Finn's bailiff if they would like to meet with the judge to talk about any questions they might have regarding the Dennis Ryan proceedings. While Dennis Ryan's mother declined, the others took the judge up on his offer. The evidence indicates that Judge Finn and these family members discussed: (1) the high costs and lawyer fees associated with the various trials and Judge Finn's view that they were excessive; (2) Michael Ryan's power over other cult members; (3) that Thimm had not been raised to believe in the kind of things practiced by the cult; (4) why more cult members were not charged; (5) why more had not been done to protect the Stice child; (6) that Judge Finn thought that none of the defendants seemed truly sorry for their actions; (7) Judge Finn's view that a life sentence usually meant that a defendant served about 14 to 15 years before becoming eligible for parole; and (8) that someone should write a book about the case, and Judge Finn offered to make the public record available to one of the family members if she decided to write about it.

28 Id at 640.

29 State v. [Dennis] Ryan, 409 N.W.2d 579 (Neb. 1987). Dennis Ryan later received post-conviction relief because of a change in the state law regarding the requirement that a jury must be instructed to determine "malice" before it may convict someone of second-degree murder. State v. [Dennis] Ryan, 543 N.W.2d 128 (Neb. 1996).

30 For the testimony of Daneda Heppner, see Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 239-326.

31 For the testimony of Karen Schmidt, see Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 327-351.

32 She also attended the second meeting with Finn and other members of the Stice family on August 28, 1986. For the testimony of Garnetta Butrick, see Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 460-472.

• On July 28, 1986, Ryan pled "no contest" to a charge of second-degree murder for the death of Luke Stice. About a month later, he was sentenced to life in prison for this crime.³³

33 Ryan III. 601 N.W.2d at 639.

• On August 28, 1986, Ryan's sentencing hearing for Slice's murder was held. On that same date, but probably after sentencing, Judge Finn met with members of the Stice family in the courthouse. Part of the time, the prosecuting attorney was present. Essentially, the Stice family wanted to know why the Thimm murder trial preceded the resolution of the Stice murder charge since young Stice died before Thimm, and one of the participants also had a question in regard to the "no contest" plea bargain that Ryan had entered into with the State of Nebraska regarding the death of Stice.³⁴

34 The question about the plea bargain dealt with the meaning of a "no contest" plea. Judge Finn responded to the question by stating that as a judge, he did not make the plea bargains. (Box 7 (Proceedings before Judge Moran), Test, of Judge Finn, Vol. III, Tr. 463.) He then called the prosecutor into his chambers and asked the prosecutor to explain. The prosecutor then explained that a no contest or nolo contendere plea had the same effect as a guilty plea, except it cannot be used as an admission in a civil proceeding. (Box 7 (Proceedings before Judge Moran), Test, of Douglas Merz, Vol. IV, Tr. 658.)

• Sentencing hearings were conducted over two days on September 15 and September 16, 1986, on the question of whether to impose the death penalty on Ryan for the Thimm murder.³⁵

35 Ryan III. 601 N.W.2d at 639.

• Judge Finn imposed the death sentence on October 16, 1986, for the murder of Thimm.³⁶ Among other things, Finn found that (1) the Luke Stice murder could not be used as a statutory aggravator because it occurred prior to Thimm's death, but Ryan's assaultive behavior toward Luke could be considered as a statutory aggravator along with evidence of other assaults on Richard Stice, James Thimm, a teacher, a principal, and six military police officers³⁷; and (2) Ryan's torture and related abusive and humiliating treatment of Thimm before Thimm's death could be used as a statutory aggravator.³⁸ In mitigation, the judge found Ryan, while not insane, suffered from a mental or emotional disturbance within the meaning of Neb. Rev. Stat. § 29-2523(2)(c) ("The crime was committed while the offender was under the influence of extreme mental or emotional disturbance.")³⁹

36 Finn had another meeting with Thimm family members, but it wasafter he sentenced Ryan. (Box 7 (Proceedings before Judge Moran), Test, of Karen Schmidt, Vol. II, Tr. 341.) Petitioner and Respondent spend little time on this meeting, and I will follow their lead. Suffice it to say that there was no discussion of Michael Ryan or his case, but only the procedures that had occurred in court. (Box 7 (Proceedings before Judge Moran), Test, of Hilda Schmidt, Vol. II, Tr. 231.)

37 Box 8 (in "red rope" folder), "Order on Sentence," at pages 409-11.

38 Box 8 (in "red rope" folder), "Order on Sentence," at pages 413-14.

39 Box 8 (in "red rope" folder), "Order on Sentence," at pages 416-17 421.

• On April 27, 1993, Finn signed an affidavit prepared by one of Ryan's lawyers stating in effect that he "did not have any contacts with members of the Thimm family during the course of the proceedings involving Michael Ryan."⁴⁰ However, in 1997, Finn admitted, in testimony before Judge Moran, that such a meeting must have taken place. He explained that he continued to have no memory of the meeting, but he believed it took place because he had been shown a letter from one of the participants to the May, 1986, meeting, written contemporaneously with the meeting, in which a participant described the meeting and who was there, and part of the information contained in the letter must have come from Finn.⁴¹

40 Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 65.

41 Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 67 73. Since Finn had openly admitted meeting with the Stice family members when questioned by defense counsel immediately prior to Ryan's death sentence in 1986, Judge Moran and the Nebraska Supreme Court concluded that Finn had not intentionally lied about meeting the Thimm family when he signed the erroneous affidavit in 1993. Independently, I come to the same finding and conclusion. I, too, agree that Finn did not intentionally mislead anyone when he signed the incorrect affidavit some six years after the fact. That Finn's memory was faulty about the specific meeting, participants, and their familial relationships probably resulted from the fact that he made a common practice of meeting with interested lay people to explain the process (not the substance) of legal proceedings. (Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 96-97.) Because of this practice, and recognizing that one member of the Stice family also attended a meeting with members of the Thimm family in May of 1986, its likely that the familial relationships blurred in Finn's memory. Therefore, there is no reason to infer bias from Finn's erroneous 1993 affidavit, which was given more than six years after the fact, particularly when he openly acknowledged in 1986 meeting with the Stice family. Bluntly put, there was no reason for Finn to lie about one meeting when he openly admitted the other.

With this background in mind, I turn to the petitioner's claims. In particular, I make three independent findings of fact or conclusions of law.

First, and independent of any of the factual findings of other judges, I find as a matter of fact, and beyond a reasonable doubt, that Judge Finn was not presented with any material information about issues pertinent to Ryan's death sentence during the Thimm or Stice family meetings that had not already been presented to Judge Finn in earlier court proceedings. Those legal proceedings were: (1) Ryan's jury trial for the Thimm murder, which trial also fully disclosed the details of the Stice murder; (2) the sentencing proceedings of the petitioner's co-defendant and son, Dennis Ryan, for the murder of Thimm; and (3) the court proceedings related to Ryan's "no contest" plea to, and life sentence for, the Stice murder.

In particular, during the meeting in May, there was no discussion about the facts surrounding Ryan's murder of Thimm. (E.g., Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 301 (Daneda Heppner: "Q. At any time during the meeting, do you remember a discussion regarding what Michael Ryan did that caused the death of James Thimm? A. No, we didn't discuss that at all. Q. Do you remember any discussion during the meeting regarding the evidence that came out during the trial? A. No, we weren't concerned with that."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 346 (Karen Schmidt: "Q. During the May 9^th, 1986 meeting were there any discussions, to the best of your current memory, regarding the nature of the crime that had been committed by Michael Ryan? A. No.").) The same was true for the August meeting. (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 467 (Garnetta Butrick: "Q. Do you remember any discussion at all in regard to Michael Ryan and the facts surrounding the death of James Thimm? A. No.").)

In other words, what very little Finn heard at the May and August meetings with the Thimm and Stice family members that was in any way conceivably material to the question of whether Finn should impose the death penalty was no different than what Finn already knew as a result of the proper exercise of his judicial duties either as a trial or sentencing judge for Ryan or his son. Any information relayed to Finn during these meetings was, to use the vernacular, "old news."

Second, and independent of any of the factual findings of other judges, I find as a matter of fact and beyond a reasonable doubt, that nothing was said at the meetings, either by Judge Finn or the family members, which evidences any bias on Finn's part, or attempt to bias Finn on the part of the family members, relating to the critical question of whether to impose the death penalty on Ryan.

In particular, Judge Finn was never asked to express, and never expressed, any opinion about the propriety of the death penalty for Ryan during any of these meetings with the family members. Indeed, I find beyond a reasonable doubt that Judge Finn made it very plain on at least one occasion (at the beginning of the May meeting) that he could not and would not discuss the question of Ryan's sentencing for the Thimm murder. (Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 300 (Ms. Heppner: "At the very beginning of the meeting he said that he would not be able to answer any questions about Michael Ryan so he did not want us to ask any.").)

Still further, I find beyond a reasonable doubt that the Thimm and Stice family members were not asked to offer, and did not offer, an opinion on what Ryan's sentence should be for the Thimm murder. (E.g., Box 7 (Proceedings before Judge Moran), Vol. n, Tr. 302 (Ms. Heppner: "Q. During this meeting on May 9th of 1986, did you or any of the other people in attendance ever state your opinions or beliefs as to what would be an appropriate sentence for Michael Ryan? A. No, we did not."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 301-302 (Ms. Heppner: "[N]o one" discussed the potential sentences for Michael Ryan; "[t]hat did not come up."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 346 (Ms. Schmidt: "Q. During the May 9th, 1986 meeting do you have any memory of any discussions occurring regarding what, if any, sentence should be imposed on Michael Ryan? A. No."); (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 468 (Garnetta Butrick regarding the August meeting: "Q. Do you remember any discussion at that meeting regarding the sentence that Michael Ryan should receive as a result of his participation in the death of James Thimm? A. No. Q. Do you remember anyone at that meeting expressing an opinion in regard to what they believed would be an appropriate sentence of Michael Ryan as a result of his participation in the death of James Thimm? A. No.").) Ryan's zealous lawyers focus upon stray statements made by Judge Finn, such as the judge not believing that any of the defendants felt sorrow for their crimes. While that statement and others like it indicate Judge Finn's strong views about the culpability of all those who participated in, and who had then been found guilty of, the murders, such a "bias" did not come from an extra-judicial source (the meetings), but was derived from his judicial duties while listening to the testimony of Ryan and others as they described their ruthless behavior during the jury trial. More to the point, this statement, and others like it relied upon by Ryan, prove absolutely nothing about bias on the critical question of whether Finn thought the death sentence should be imposed on Ryan under the specific statutory limitations of Nebraska's death penalty scheme. Finn made it absolutely clear that he would not discuss that question of sentencing, and no one lobbied him to impose the death penalty.

Regarding the actual sentencing, Judge Finn's written sentencing opinion, excluding five pages of appendices, is 16 pages in length.⁴² It reveals a thoughtful analysis of the elements and a full appreciation of the limitations of Nebraska's death penalty scheme and the two days of evidence that the judge had taken regarding that matter. That careful decision evidences not the slightest hint of an improper bias.

42 Box 8 (in "red rope" folder), "Order on Sentence," at pages 407-22.

Third, I independently conclude that because of the foregoing facts, there was no federal constitutional error. To be specific, the meetings between Judge Finn and the family members of the victims established no "structural error" where bias must be presumed, and they evidenced no actual bias either. See, e.g., United States v. Walker, 920 F.2d 513, 516-17 (8th Cir. 1990) (no actual bias shown even though unreported assets were shown to the sentencing judge by the prosecutor prior to the sentencing in an ex parte proceeding without the knowledge or presence of the defendant or his counsel, particularly because of the "duplication" of the evidence "between the open court and ex parte viewing" and because of the "absence of any inference of prejudicial ex parte conversation"); United States v. Barley, 746 F.2d 412, 415-19 (8th Cir. 1984) (in a prosecution for aggravated bank robbery resulting in the death of two people, ex parte submission by the government to the judge of a 55-page brief, containing the outline of the expected testimony of 120 prospective witnesses that was not revealed to defense counsel prior to trial despite a request, was an improper ex parte communication, but it was not prejudicial, particularly because the information revealed to the judge in the brief was similar to that presented to the judge during trial), cert. denied, 472 U.S. 1010 (1985). Cf,Dyas v. Lockhart, 705 F.2d 993, 995-97 (8th Cir. 1983) (in a capital felony murder case, there was no structural error upon which bias would be presumed even though the trial and sentencing judge was the uncle of the head prosecutor and the brother and father of the two assistant prosecutors who participated in the trial).

To reiterate and summarize, Finn learned nothing material to the death sentence at these meetings that he did not already know through the proper exercise of his judicial duties; he expressed no opinion on whether to impose a death sentence; and he was not lobbied to impose the death sentence. While the niceties of Nebraska's rules on judicial conduct were unintentionally and technically breached, there was manifestly no violation of the Due Process Clause of the Fourteenth Amendment.

C. Other Objections to, and Further Supplementation of, the Report and Recommendation

In over 150 pages of briefing, Ryan's counsel raise numerous objections to Judge Piester's final report and recommendation that have not been previously discussed in this opinion. While I have fully considered and rejected all of the objections, I will only comment further upon their contention that Claims IV (ineffective assistance of counsel), V (trial court misconduct), and XVII (cruel and unusual punishment) should not be treated as abandoned, and that they should still be permitted to brief these claims.

The reason "[w]e did not brief these issues," counsel state, is "simply because other more pressing issues needed to be briefed at length." (Petr's Initial Br. (Filing 211, at 139).) My gentle response is that counsel have had several years to research and refine these claims (regarding the alleged ineffectiveness of Ryan's trial counsel in failing to pursue the ex parte communication issues, Judge Finn's failure to convene a three-judge sentencing panel, and the constitutionality of death by electrocution), and, whether or not they intended to abandon these claims, they effectively did so by failing to brief them. I am confident, in any event, that none of these abandoned claims has merit.

I conclude my review of Judge Piester's report and recommendation with two additional observations. Both concern recent case law developments.

First, Judge Piester references the fact that a decision by a panel of the Eighth Circuit in Moore v. Kinney, 278 F.3d 774 (8th Cir. 2002), was vacated for rehearing on March 28, 2002. On February 10, 2003, the Court of Appeals ruled en bane that the "exceptional depravity" aggravating circumstance, as narrowed, is constitutional. See Moore v. Kinney, 320 F.3d 767, 772-75 (8th Cir.), cert. denied, 123 S.Ct. 2580 (2003). Thus, I supplement Judge Piester's report with the following: Whether narrowed by Moore and other earlier cases or applied as written, the "exceptional depravity" portion of the aggravating circumstance found in Neb. Rev. Stat. § 29-2523(1 )(d) clearly fits Ryan even if it is treated separate and apart from the other portion of the statute dealing with murders which are "especially . . . cruel." I so find and conclude. Also, to the extent that there was no narrowing construction of "exceptional depravity" at the time Ryan was sentenced, and to the extent one assumes that "exceptional depravity" was considered, whether separately or together, at sentencing, I independently find and conclude that any such alleged error was harmless beyond any reasonable doubt. See, e.g., Joubert v. Hopkins, 75 F.3d 1232, 1245-47 (8th Cir. 1996) (evidence established beyond a reasonable doubt that the constitutionally narrowed "especially heinous, atrocious, and cruel" part of the aggravator would have been applied to defendant even had the allegedly unconstitutional vague portion regarding "exceptional depravity" not been considered). To be specific, I arrive at these decisions without giving deference to the Nebraska Supreme Court on this issue.

Second, and finally, on June 24, 2002, the United States Supreme Court ruled in Ring v. Arizona, 536 U.S. 584 (2002), that the Sixth Amendment requires a jury to make findings of fact regarding the applicability of aggravating circumstances in death penalty cases. Although this decision was rendered prior to submission of the claims to Judge Piester for his final report and recommendation, Ryan did not renew his request for leave to amend his petition to assert such a claim. Had such a renewed request been made, though, it would have been unavailing. Absent an express declaration by the Supreme Court that Ring is retroactive (and there has been none), the Eighth Circuit has held that it is not. Moore v. Kinney, 320 F.3d at 771 n. 3. But see Summerlin v. Stewart, No. 98-99002, 2003 WL 22038399 (9th Cir. Sept. 2, 2003) (applying Ring retroactively, despite lack of express pronouncement by the Supreme Court).

III. THE COURT THANKS RYAN'S LAWYERS

At the beginning of the federal habeas process, and given the awful nature of the case, Judge Piester and I conferred regarding the appointment of counsel. Knowing full well the terrific burden that would be imposed on any lawyer appointed by the court, we selected Steven E. Achelpohl and Michael A. Nelsen to represent Ryan. We made the particular selection of these two men because Ryan's case demanded the absolute best the legal profession had to offer. As we expected, their service to the interests of justice, and their representation of Ryan, have been both exemplary and extraordinary. In short, Mr. Achelpohl and Mr. Nelsen have made the rest of our honorable profession proud. On behalf of the court, I thank them.

IV. CONCLUSION

Remembering that Ryan humiliated, tortured, and stomped Thimm to death in the name of Yahweh (Jehovah), the God of the Old Testament, I conclude by pondering the following passage from that ancient text:

And the judges shall make diligent inquisition . . .

Then shall ye do unto him, as he had thought to have done unto his brother: so shall thou put the evil away from among you.

And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you.

And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

Deuteronomy 19:18-21 (King James version).

Accordingly,

IT IS ORDERED that:

1. The report and recommendation (Filing 202) is adopted. The petitioner's objection to the report and recommendation and appeal (Filing 203) are denied.

2. By separate document, judgement will be entered for the respondent and against the petitioner providing that the petitioner shall take nothing from the respondent, this case is dismissed with prejudice, and the stay of execution is dissolved.