Carey D. Moore v. Michael L. Kinney, Warden of the Nebraska Penal and Correctional Complex

320 F.3d 767, 2003 U.S. App. LEXIS 2199, 2003 WL 261799

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 10, 2003
• Docket: 00-4079
• Status: Published

Opinions

BEAM, Circuit Judge,

with whom HANSEN, Chief Judge, BOWMAN, WOLLMAN, LOKEN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges, join.

In this death penalty matter, Carey D. Moore appeals the district court’s¹ denial of his 28 U.S.C. § 2254 petition for habeas corpus. We affirm.

I. BACKGROUND

The facts underlying Moore’s initial conviction and sentencing in Nebraska state court in 1980 are undisputed and have been repeated, in some form, in no less than eight federal or state appellate court decisions. Briefly, in August 1979, Moore purchased a handgun and set out to rob and kill Omaha cab drivers. Moore carefully planned to select older targets because he thought it would be easier for him to shoot an older man rather than a man nearer his own age. In carrying out this scheme, Moore called several cabs over a period of time and hid while watching them arrive, and depart, if the driver was young. Moore confessed to the police that he felt an older victim would be an easier mark. Using this approach, Moore selectively abducted and murdered cab driver Reuel Eugene Van Ness, Jr. on August 22, 1979, and Maynard Helgeland on August 27, 1979.

Moore was convicted of two counts of first-degree murder and was sentenced to death by a three-judge panel in 1980. The Nebraska Supreme Court affirmed the convictions and sentences in State v. Moore, 210 Neb. 457, 316 N.W.2d 33, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). Moore filed a motion for postconviction relief in 1982, which was denied by the state district court in 1983, and this denial was affirmed by the Nebraska Supreme Court in State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).

Moore then filed a petition for writ of habeas corpus in the United States District Court for the District of Nebraska, which granted the writ in Moore v. Clarke, No. CV84-L-754 (D.Neb. Sept. 20, 1988). This court affirmed, holding that the “exceptional depravity” component of the aggravating circumstance set forth in Neb. Rev.Stat. § 29-2523(l)(d)² was unconstitutionally vague, both on its face and as interpreted by the Nebraska Supreme Court. Moore v. Clarke, 904 F.2d 1226, 1233 (8th Cir.1990) (Moore I). The same panel published an opinion denying rehearing. 951 F.2d 895 (8th Cir.1991) (Moore II).

On remand, the Nebraska Supreme Court declined to resentence Moore, and, instead, sent the matter to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227, 230 (1993). A new three-judge sentencing panel of the state district court convened in 1994 and in April of 1995 again sentenced Moore to death. This decision was affirmed by the Nebraska Supreme Court in State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996) (per curiam), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997).

In early March 1997, the Nebraska Supreme Court established May 9, 1997, as Moore’s execution date, and on April 30, 1997, Moore filed another state action for postconviction relief. On May 5, 1997, the Nebraska Supreme Court stayed Moore’s execution and the state district court subsequently denied Moore’s motion for relief without an evidentiary hearing. The Nebraska Supreme Court affirmed the denial of postconviction relief in State v. Moore, 256 Neb. 553, 591 N.W.2d 86, cert. denied, sub rum., 528 U.S. 990, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999). On October 5, 1999, Moore filed the current petition for writ of habeas corpus. See Moore v. Kinney, 119 F.Supp.2d 1022 (D.Neb.2000).

II. DISCUSSION

In 1990, as indicated, this court invalidated Moore’s 1980 sentences stating that the “exceptional depravity” aggravator was unconstitutionally vague as written and construed. Moore I, 904 F.2d at 1233. In so holding, the court simply failed to correctly predict the direction the United States Supreme Court’s death penalty jurisprudence would take. Indeed, the impression given by the Moore I court was that any narrowing construction of the “exceptional depravity” factor would fail to pass constitutional muster. Id. at 1235 (Floyd Gibson, J., dissenting) (“It seems to me that the majority’s approach in this case could defeat virtually any aggravating circumstance statute, and by the use of semantics make a dead letter of any death statute.”). However, one month after Moore I was issued, the United States Supreme Court upheld the validity and constitutionality of the State of Arizona’s narrowing scheme in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)³, and in Lewis v. Jeffers, 497 U.S. 764, 777-78, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (stating that Arizona Supreme Court construed the “especially heinous, cruel or depraved” aggravating circumstance in a constitutionally permissible manner) (emphasis added). The specific Arizona aggravating factor considered in these two cases was almost identical to Nebraska’s “exceptional depravity” formulation. As a result of our 1990 misstep in Moore I, taken over the vigorous objection of Judge Floyd Gibson, Moore’s case has been adrift in the state and federal courts for the past twelve-plus years. The court, sitting en banc, is obviously not bound by the 1990 Moore I decision. Therefore we begin with a clean slate as we examine Moore’s 1995 resentencing. As we do so, we note that Moore’s current habeas corpus petition, filed in 1999, is governed by the standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996.

The two issues certified for appeal in this case center around whether Neb.Rev.Stat. § 29 — 2523(l)(d) is unconstitutional: (1) on its face because it remains open-ended and vague, and it fails to channel application of the death penalty; and (2) as applied by the Nebraska courts because the resentencing panel’s construction of the statute denied Moore due process. We cannot grant Moore habeas corpus relief on any claim that was “adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that 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). The first step in this analysis is to compare the state court decision with applicable Supreme Court precedent on the subject in question. The state court decision is only “contrary to” established Supreme Court precedent if the state court applied a rule that directly contradicts Supreme Court precedent containing “materially indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., for the Court). And, a state court’s application of the law is not “unreasonable” if it is merely incorrect or erroneous in this court’s independent judgment; rather, it must be objectively unreasonable. Id. at 410, 120 S.Ct. 1495 (O’Con-nor, J., for the Court). Nor is citation, to any particular Supreme Court case necessary, “so long as neither the reasoning nor the result of the state-court decision contradicts” Supreme Court precedent. Early v. Packer, — U.S. -, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (per curiam). Factual findings by the state court “shall be presumed to be correct,” and this presumption will be rebutted only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The district court’s legal conclusions are reviewed de novo, McDowell v. Leapley, 984 F.2d 232, 233 (8th Cir.1993), and its factual findings are reviewed for clear error, Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989).

With these standards in mind, we turn to Moore’s 1995 resentencing, and the subsequent Nebraska Supreme Court adjudication of his current claims. Upon remand to the Nebraska Supreme Court for resen-tencing following our 1990 decision, the state asked the court to define “exceptional depravity” in a way that would satisfy the federal court’s objections to the statute’s constitutionality, to apply the newly constructed definition to the facts of the case, to reweigh the aggravating and mitigating factors, and to resentence Moore. State v. Moore, 502 N.W.2d at 228. As earlier indicated, the supreme court declined these requests and remanded the case to the state district court for resen-tencing. Id.

A.

At resentencing, the state district court applied its own narrowed construction of “exceptional depravity” to the facts of Moore’s case. State v. Moore, 553 N.W.2d at 132. The resentencing panel determined that the definition of “exceptional depravity” should include the following:

(1) the killer’s infliction of prolonged or significant physical violence, such as sexual abuse, on the victim after the victim’s death or loss of consciousness; (2) the killer’s mutilation or dismemberment of the victim’s body after death; ... (3) the apparent relishing of the murder by the killer .... [and (4) ] the killer’s cold, calculated planning of the victim’s death, as exemplified by experimentation with the method of causing the victim’s death or by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.

Id. (emphasis omitted). The resentencing panel concluded that the fourth factor was present due to Moore’s selection of his victims on the basis of age. Id. Based on the presence of this and other aggravating factors which outweighed the mitigating factors, the panel resentenced Moore to death.

The Nebraska Supreme Court affirmed the death sentence on direct appeal, id., and it later affirmed the denial of postcon-viction relief, 256 Neb. 553, 591 N.W.2d 86. On direct appeal, the court considered and rejected Moore’s claim that, at the time of resentencing, there was no constitutionally viable definition of “exceptional depravity” available to the resentencing panel. The court first cited a litany of its own cases that have approved the “cold, calculated” formulation. 553 N.W.2d at 130. The court then pointed out that “exceptional depravity” was further narrowed with the advent of the five-factor test first enunciated in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). Citing Walton v. Arizona, Lewis v. Jeffers, and this court’s decision in Joubert v. Hopkins, 75 F.3d 1232 (8th Cir.1996), cert. denied, 518 U.S. 1029, 116 S.Ct. 2574, 135 L.Ed.2d 1090 (1996), the court concluded that the Palmer factors had been constitutionally validated and the re-sentencing panel could have applied either the “cold, calculated” test or the Palmer factors to define “exceptional depravity.” 553 N.W.2d at 131.

The court noted that, despite the existence of a constitutionally viable definition of “exceptional depravity,” the resentenc-ing panel, apparently out of an abundance of caution due to the confusing state of the law arising from our 1990 opinion, undertook to further narrow this aggravating factor as outlined above. Id. at 131-32. The resentencing panel was within its authority to do so, the court noted, because under Nebraska law, in the absence of clear precedent, a trial court must construe a statute according to its own understanding of it. Id. at 132.

The court next turned to the merits of Moore’s claim that the formulation actually applied by the resentencing panel was unconstitutionally vague and overbroad. The court found that the “cold, calculated” formulation, restricted to a situation where the defendant chose his victims on the basis of age, was sufficiently narrow to avoid a vagueness challenge. This formulation “provide[d] sufficient guidance to the sentencing authority ‘so as to minimize the risk of wholly arbitrary and capricious action.’ ” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Citing Gregg and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the Nebraska Supreme Court found that the resentencing panel’s definition provided a meaningful distinction between the cases which impose the death penalty and those that do not. 553 N.W.2d at 132-33. Nor was the formulation overbroad, as it applied only to a subclass of defendants convicted of first-degree murder. Id. at 133.

The Nebraska Supreme Court’s consideration of the merits of Moore’s claim is, at the very least, a reasonable application of Supreme Court precedent. The court identified the relevant Supreme Court precedent — Gregg and Furman — and reasonably applied it to Moore’s case. We agree with the Nebraska Supreme Court’s reasoning. The principal objective of a vagueness challenge is to ensure that the state provides a process that is “neutral and principled so as to guard against bias or caprice in the sentencing decision.” Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). So long as the sentencer is capable of understanding the core meaning of the challenged factors, the vagueness challenge will fail. Id.

Thus, the key inquiry concerning whether the “cold, calculated” formulation is constitutional is not the specific substance of that narrowed definition, but simply whether the sentencing process is infected with bias or caprice. This is the “controlling objective when we examine eligibility and selection factors for vagueness.” Id. The vagueness review is deferential, however, and “[a]s long as an aggravating factor has a core meaning ... capable of understanding, it will pass constitutional muster.” Jones v. United States, 527 U.S. 373, 400, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (Thomas, J., plurality). Furthermore, an aggravating factor must be sufficiently narrow so that it does not apply to everyone convicted of first-degree murder. Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630. Under this deferential standard, the resentencing panel adequately and constitutionally narrowed the “exceptional depravity” aggravator.

The resentencing panel defined “exceptional depravity” to include “the killer’s cold, calculated planning of the victim’s death, as exemplified by experimentation with the method of causing the victim’s death or by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.” State v. Moore, 553 N.W.2d at 132 (emphasis omitted). This is a definition which has a core meaning that is capable of being understood and that will not lead to bias or caprice. Furthermore, the definition is not overbroad. Moore’s decision to choose his victims on the basis of a specific characteristic-their advanced ages-separates his case from murderers who made no such decision. Thus, the Nebraska Supreme Court’s resolution of this issue was clearly not an unreasonable application of United States Supreme Court precedent and will not be disturbed on habeas review by this court.

Moore, to the contrary, argues that the resentencing panel’s definition of “exceptional depravity” was unconstitutionally vague, and he argues that his claim is governed by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. In Furman, the Supreme Court, in a one paragraph per curiam opinion (followed by nine separate concurring and dissenting opinions), held that the application of the death penalty by the states of Texas and Georgia was unconstitutionally cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Id. at 239-40, 92 S.Ct. 2726. Supreme Court opinions following Furman have clarified that a capital sentencing scheme must not be “arbitrary and capricious,” Gregg, 428 U.S. at 189, 96 S.Ct. 2909 (Stewart, J., concurring), nor leave the sentencer with “standardless and unchanneled” discretion, Godfrey v. Georgia,, 446 U.S. 420, 429, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (Stewart, J., plurality). See Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). At the time of Fur-man, in 1972, the Georgia and Texas sentencing schemes had no statutory aggrava-tors whatsoever. The statutes merely provided a capital jury the choice among death, life imprisonment, or five to twenty years of imprisonment. 408 U.S. at 308 nn. 8-9, 92 S.Ct. 2726 (Stewart, J., concurring). The various concurring opinions in Furman came to the general conclusion that imposition of the death penalty in these (and similarly situated) jurisdictions was random, and akin to “being struck by lightning,” with race being the only discernible factor playing a role in the selection for the death penalty. Id. at 309-10, 92 S.Ct. 2726 (Stewart, J., concurring).

In response to Furman, the legislatures in death penalty states which had previously allowed absolute discretion to the sentencer were “compelled ... to specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed.” Ring, 122 S.Ct. at 2444 (Scalia, J., concurring). Whether “erroneously coerced” to do so or not, id. at 2445 (Scalia, J., concurring), the fact remains that death penalty states, including Nebraska,⁴ did specify these aggravating factors. Thus, Moore’s claim may be a “Fur-man ” claim in the loose sense that he is asserting that Nebraska’s application of its death penalty to him is arbitrary, but the specifics of his constitutional argument are not controlled by Furman.

Moore also vigorously argues that Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, controls the outcome here. The contention being, apparently, that the “exceptional depravity” component of section 29 — 2523(l)(d) is not reasonably susceptible of a constitutionally sufficient narrowing under any circumstance. This argument seriously misreads Cartwright. In Cartwright, the Supreme Court found the “especially heinous, atrocious, or cruel” portion of a statutory aggravator to be impermissibly vague. 486 U.S. at 362-64, 108 S.Ct. 1853. However, the Court also held that this same aggravating factor could be constitutionally narrowed by requiring a finding of torture or serious physical abuse, for example, or some other formulation. Id. at 364-65,108 S.Ct. 1853. The Cartwright aggravator, “especially heinous, atrocious, or cruel,” if anything, paints with a broader brush than Nebraska’s “exceptional depravity” component. So, the validity of the resentencing panel’s narrowing construction, achieved through the requirement of a selection of the victims on the basis of age, is actually supported by Cartwright. The Cartwright decision contemplated such a narrowing. Id. Thus, Cartwright, given its best gloss for Moore, does no more for his claim than Tuilaepa, or even Godfrey and Gregg. Each of these Supreme Court decisions reiterate that the sentencer cannot have unfettered discretion, but instead must be guided by an aggravator with a core meaning presented through a definition capable of comprehension, and considered via a process not infected with bias or caprice. All of these conditions were met in the 1995 resentencing. Thus, Moore’s first ground for habeas corpus relief is without merit.

B.

Moore’s second contention is that his due process rights were violated because he lacked adequate notice of the resentencing panel’s “exceptional depravity” formulation. The Nebraska Supreme Court noted that in the context of notice to a criminal defendant at or prior to sentencing, the Fourteenth Amendment requires

(1) that the language of the statute and previous constructions of it in existence at the time of the crime provided reasonable notice to a person of ordinary intelligence of the scope of criminal behavior reached by the statute and (2) that any new construction of the statute which occurs after the crime does not increase the scope of behavior considered under the particular aggravating circumstance.

553 N.W.2d at 134 (citing Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)).

The Nebraska court found that both prongs of the notice requirement were met, and it described Moore’s knowledge regarding the “exceptional depravity” ag-gravator at the time of the 1995 resentenc-ing as follows:

Prior to Moore’s hearing, a person of ordinary intelligence in Moore’s situation would have been aware of the following information regarding the exceptional depravity prong of aggravating circumstance § 29 — 2523(1) (d): (1) the language of the statute; (2) our pre-Palmer constructions of exceptional depravity; (3) the factors stated in Palmer; (4) our statement in State v. Joubert, 224 Neb. 411, 432, 399 N.W.2d 237, 251 (1986), that exceptional depravity was also demonstrated by the fact that the murders in that case were “coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability at a time when the likelihood of detection was slight”; (5) the previous holding in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (the victims were selected on the basis of certain characteristics, including age); and (6) U.S. Supreme Court holdings affirming the factors annunciated in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), cert. denied 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327, and followed in Palmer, which were held to be constitutional; Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993).

553 N.W.2d at 134-35.

The Nebraska Supreme Court found that, as a consequence of the above-described knowledge, Moore was not deprived of notice in violation of the Due Process Clause. Id. at 135. The Nebraska Supreme Court’s adjudication of this issue was clearly not an unreasonable application of federal law as established by the Supreme Court. The court correctly identified the Supreme Court’s rule regarding notice of a statute’s subsequent construction as it may affect sentencing and it reasonably applied this precedent to the factual history in Moore’s case.

As the Nebraska Supreme Court implicitly observed, Moore’s due process notice claim could potentially involve two different time frames. First, Moore must have had adequate notice that his criminal conduct in 1979 would subject him to the death penalty. The second inquiry involves the notice Moore had regarding the resentencing panel’s narrowing formulation of the “exceptional depravity” factor. In both instances, Moore had fair warning that his conduct would result in the death sentence that he received.

While the 1979 time frame is not an issue in this appeal, when Moore committed these murders, the “cold, calculated” formulation of “exceptional depravity” had been in use for two years. Nebraska first used the “cold, calculated” formulation in two cases issued on the same day in 1977, State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977), and State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977). In Holtan, the court stated that because the defendant killed and attempted to kill unresisting victims of robbery, the “act was totally and senselessly bereft of any regard for human life.” 250 N.W.2d at 880. Although the court did not use the terms “cold” and “calculated” in Holtan, in Rust the court stated, “[tjoday in Holtan, we have also said that [exceptional depravity] exists where the murder is so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.” 250 N.W.2d at 874 (affirming death sentence where defendant shot several times and killed civilian bystander who had come to aid of wounded police officers during “shoot out”).

The 1993-1995 resentencing time frame is at issue. Moore briefly contended at the resentencing hearing in October of 1994 and now contends in briefing in this appeal that Bouie, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973), and, apparently, the Nebraska Supreme Court’s recognition “that any new construction of the statute which occurs after the crime [must] not increase the scope of behavior considered under a particular aggravating circumstance,” State v. Moore, 553 N.W.2d at 134, entitled him to know beforehand the precise definition of “exceptional depravity” that would ultimately be applied to him by the resentenc-ing panel. Moore describes this claim as a due process right analogous to the protections advanced by the Ex Post Facto Clause of the Constitution. We disagree with this characterization for reasons more completely discussed later, but, we find that he did, in any event, have more than adequate notice.

We digress briefly, however, to note that the holdings in Bouie and Douglas and the contents of the referenced Nebraska Supreme Court ruling are factually inappo-site in the circumstances of this ease. The resentencing panel’s “new construction” of the statute was designed to and actually did narrow and diminish, rather than “increase” the scope of actionable behavior considered by the sentencers. Moore offers no Supreme Court precedent involving either due process or ex post facto jurisprudence that supports his contention under the facts of this case.

As a peripheral matter, Moore also claims that any panel formulation could never serve as adequate notice without it having been previously approved by the Nebraska Supreme Court. He, of course, offers no supporting precedent or policy justification for this notion, and we believe there is -none. At the very least, the Nebraska Supreme Court’s ruling to the contrary is not an unreasonable application of established Supreme Court law. Further, we earlier disposed of this contention when we validated the Nebraska Supreme Court’s ruling that “[t]he resen-tencing panel was within its authority” to narrow and apply the aggravating factor as it did. Ante at 773-774.

We now return more directly to Moore’s notice argument. The district court carefully outlined the prior notice Moore received concerning the narrowed aggravator. The district court noted and discussed the Nebraska Supreme Court’s holding in Joubert, 224 Neb. 411, 399 N.W.2d 237, wherein the court found that the murders manifested “exceptional depravity,” in part because the murders “were coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability.” Id. at 251-52 (emphasis added). And, on habeas review, this court held that the narrowed definition of “exceptional depravity” applied by the Nebraska courts in Joubert was “clearly constitutional.” Joubert v. Hopkins, 75 F.3d at 1244. Cf. Tuilaepa, 512 U.S. at 977, 114 S.Ct. 2630 (“there is no suggestion that the term ‘age’ is vague”).

Also as noted by the district court, after evidence was presented to the rehearing panel, a member judge asked: “What about the testimony that [Moore] selected older men because he didn’t want to kill younger ones?” This inquiry occurred several months before sentence was actually imposed and the record is devoid of any request by Moore to offer further evidence⁵ or to make additional argument to rebut the thrust of this question. Moore did argue at that time that the panel could not “on [its] own come up with a definition [of exceptional depravity].” Moore v. Kinney, No. 4:99CV 3263, Sentencing Transcript at 275 (Neb.D.Ct. Oct. 14, 1994). However, as earlier noted, the panel had the authority to do so and did do so, with full affirmance by the Nebraska Supreme Court and, now, this court. Accordingly, Moore had ample notice in 1994 and 1995 that the state planned to pursue a narrowed definition of “exceptional depravity” which would include the notion that Moore selected his victims on the basis of their ages. Indeed, this is the formulation that the state had advanced in the prior fifteen years of litigation, and it was unreasonable for Moore not to assume that the state would persist with this theory of the case. The district court’s citations to the examples in the record showing the defense’s knowledge in this regard bear this out. 119 F.Supp.2d at 1033-36. In sum, the Nebraska Supreme Court’s adjudication of Moore’s due process claim was not an unreasonable application of federal law as established by the Supreme Court, and we cannot grant habeas corpus relief on Moore’s notice claim.

We also reject Moore’s due process claim for two additional reasons. First, even if Moore was totally without notice of the resentencing panel’s legal conclusions, Northern Nat. Gas Co. v. O’Malley, 277 F.2d 128, 137 (8th Cir.1960) (holding that a determination of the meaning of words in a statute or regulation presents a legal question), arising from the panel’s narrowing construction of the “exceptional depravity” component of section 29-2523(l)(d), he was accorded more than adequate due process. He could have asked the resentencing panel for the opportunity to further argue this question of law, but he apparently did not. He received, as required by Nebraska law, an automatic direct appeal to the Nebraska Supreme Court, 250 Neb. 805, 553 N.W.2d 120, and the Supreme Court long ago held that “proceedings in [an] appellate tribunal are to be regarded as a part of the process of law ... to be considered in determining any question of alleged deprivation of [a defendant’s] life or liberty contrary to the Fourteenth Amendment.” Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 59 L.Ed. 969 (1915). Beyond this, Moore has been able to assert his legal challenge at a state trial level postconviction proceeding which was fully reviewed by the Nebraska Supreme Court, 256 Neb. 553, 591 N.W.2d 86, and, of course, by way of habeas review in the district court and in this court. At each proceeding he has been able to attack the validity of the resentencing panel’s formulation.

Finally, and perhaps most importantly, even if Moore suffered a constitutional due process violation, which he clearly did not, we see no reasonable basis for affording him habeas corpus relief. As outlined in Part II.A. above, we today determine that the resentencing panel’s legal conclusions were well within the contours established by Supreme Court precedent. It is difficult to discern harm to Moore, other than the prejudice that may follow from any correct application of the law. Prior notice of a lawful interpretation of the law is not required by the Constitution, even in a death penalty case. Lastly, we repeat that even an incorrect or erroneous application of the law by the Nebraska courts in defining the “exceptional depravity” aggravator provides Moore no relief. Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. 1495 (O’Connor, J., for the Court).

III. CONCLUSION

Moore’s 1995 resentencing passes constitutional muster. We therefore affirm.

1 . The Honorable Richard G. Kopf, Chief Judge, United States District Court for the District of Nebraska.

2 . Section 29-2523(l)(d) provides: "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.'1

3 . 'Walton was partially overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Decided in June 2002, Ring, and its holding that a jury, not a judge, must make any factual findings which increase a sentence from imprisonment to death, is not implicated in this case. The Supreme Court did not, and has not, expressly made the ruling in Ring retroactive. See, e.g., Ring, 122 S.Ct. at 2449-50 (O’Connor, J., dissenting) (noting that current state death row inmates will not be able to invoke the principles of Ring and citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Absent an express pronouncement on retroactivity from the Supreme Court, the rule from Ring is not retroactive. See Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (holding that "a new rule is not 'made retroactive to cases on collateral review’ unless the Supreme Court holds it to be retroactive”) (quoting 28 U.S.C. § 2244(b)(2)(A)).

4 . The aggravating factors can be determined at either the guilt phase as part of the definition of the crime, or at the penalty phase as a separate sentencing factor, or both. Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630. Nebraska’s aggravating factors are determined at sentencing. See Neb.Rev.Stat. §§ 28-303, 29-2523.

5 . During or since the evidentiary hearing and argument before the resentencing panel in October of 1994, including during briefing and argument to the district court and this court, Moore has never posited, advanced or suggested the nature or particulars of any evidence that he could or would adduce that might bear on the question of law surrounding the narrowing of the aggravator by the panel.