Full opinion text
MEMORANDUM AND ORDER KOPF, District Judge. This matter is before the court on the Magistrate Judge’s Report and Recommendation (filing 49) and the objections to the Report and Recommendation filed by Respondent (filing 50) and Petitioner (filing 51), as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. After a de novo review of the portions of the Recommendation to which objections have been made, I find that the Magistrate Judge’s Recommendation that the Petition for Writ of Habeas Corpus (filing 1) be granted with respect to claims (1) and (2) should be rejected for the reasons stated below. I also find, without extended discussion, that I should adopt the Magistrate Judge’s Recommendation that claims (3) through (12) be denied for essentially the same reasons stated by the Magistrate Judge. While I might employ a slightly different analysis than that performed by the Magistrate Judge on some of the issues presented in claims (3) through (12), I have no material disagreement with the Magistrate Judge’s ultimate disposition of those claims. In his objections to the Magistrate Judge’s Report and Recommendation, Petitioner also asserts what is in reality an appeal from the Magistrate’s order denying Petitioner’s request for an evidentiary hearing and the Magistrate’s unstated, but implicit, denial of Petitioner’s request for expansion of the record. (Filing 51, at 2.) I shall deny Petitioner’s appeal because the Magistrate Judge’s orders were not “clearly erroneous or contrary to law.” NELR 72.3. I. FACTUAL AND PROCEDURAL BACKGROUND During a four-day span in August 1979, Petitioner Carey Dean Moore robbed and murdered two Omaha taxi drivers. The relevant events surrounding the murders have been described by the Nebraska Supreme Court: About August 20, 1979, [Moore] purchased the handgun with which the murders were committed. He acquired the gun by purchasing it from a cabdriver who had pawned the gun. [Moore] and the seller went together to the pawnshop where the gun was redeemed, [Moore] furnishing the money for the redemption and paying the seller an additional $50. The gun was then test-fired. We now quote from the findings made by the sentencing panel in its order, which findings are fully supported by uncontroverted evidence: “[Moore’s] own statements, in his confession to Officers O’Donnell and Thompson while in custody at Charles City, Iowa, indicate that these crimes had been in the planning stage for at least a day or two before the [Reuel Eugene] Van Ness[, Jr.,] homicide. Apparently on the evening prior to the Van Ness murder, [Moore] had called a number of cabs from a telephone booth somewhere on Farnam Street in the downtown Omaha area to see how quickly each would respond to his call. [Moore] then hid somewhere in the vicinity to await each cab’s arrival, at which time he checked the cab to determine whether the driver would be a suitable victim, i.e., not too young, since [Moore] stated that it was easier for him to shoot an older man rather than a younger man nearer his own age. On the evening of the Van Ness homicide, [Moore’s] plan was to call one cab at a time from the Smoke Pit restaurant, and, if the driver who responded “wasn’t too old,’ [Moore] would just not identify himself as the fare for which the cab had been summoned. When ... Van Ness arrived at the Smoke Pit on August 22, 1979, [Moore] determined that this was the driver who would be robbed and shot because ‘he wasn’t too young’. “A similar pattern of events unfolded on August 26, 1979. [Moore] went to the Greyhound Bus depot at 18th and Farnam Streets in Omaha that evening, and, when he saw a lone cab with an older driver [Maynard D. Helgeland] parked at the taxi stand outside the depot, he got into the cab and directed the driver to take him to the Benson area. According to [Moore], this particular cab and driver were selected both because there were no other cabs at the taxi stand at the time, thus decreasing the chances of [Moore’s] being identified, and because the driver was an older man. [Moore] then stated that, as previously discussed, he had planned ahead of time to rob and shoot the driver of whichever cab he selected.” In his confessions [Moore] stated that he killed each of the victims in order that the victim would not be able to identify him as the robber. State v. Moore, 250 Neb. 805, 806-08, 553 N.W.2d 120, 125-26 (1996) (quoting Nebraska Supreme Court’s opinion of Jan. 29, 1982, affirming on direct appeal original sentences of death imposed upon Moore by sentencing panel of the district court on June 20, 1980, State v. Moore, 210 Neb. 457, 461-62, 316 N.W.2d 33, 36-37, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982)), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997). Moore was convicted of two counts of first-degree murder, based on a felony murder theory, and was sentenced to death by a three-judge panel in 1980. The Nebraska Supreme Court affirmed the convictions and sentence 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 district court in 1983, and which 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), holding unconstitutionally vague the “exceptional depravity” component of the aggravating circumstance provided in Neb. Rev.Stat. § 29-2523(1)(d) — that is, that the “murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence ” (emphasis added) — and ordering the reduction of Moore’s sentence to life imprisonment unless the State initiated capital resentencing proceedings within 60 days after the judgment became final. The State of Nebraska then appealed to the Eighth Circuit Court of Appeals, which affirmed the grant of habeas corpus relief and order of resentencing, holding unconstitutionally vague, both on its face and as interpreted by the Nebraska Supreme Court, the “exceptional depravity” component of the aggravating circumstances provided in Neb.Rev.Stat. § 29-2623(l)(d). Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990). The Eighth Circuit’s affirmance of the grant of habeas corpus relief and order of resentencing was reaffirmed by the Eighth Circuit on denial of rehearing. Moore v. Clarke, 951 F.2d 895 (8th Cir.1991), cert. denied, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). On remand, the Nebraska Supreme Court determined that it would decline to resentence Moore itself, but instead would remand the matter to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993). The three-judge sentencing panel of the state district court again sentenced Moore to death, a decision affirmed by the Nebraska Supreme Court in State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), cert. denied, 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997). After the Nebraska Supreme Court set an execution date for May 9, 1997, Moore filed a state action for postconviction relief on April 30, 1997. On May 5, 1997, the Nebraska Supreme Court stayed Moore’s execution and the district court denied Moore’s motion for postconviction relief without an evidentiary hearing. The Nebraska Supreme Court affirmed the judgment of the district court in State v. Moore, 256 Neb. 553, 591 N.W.2d 86, cert. denied, 528 U.S. 990, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999). On October 5, 1999, Moore filed in this court the petition for writ of habeas corpus now under consideration. II. ANALYSIS The Magistrate Judge concludes that Moore’s Petition for Writ of Habeas Corpus should be granted because: (1) the narrowing construction of “exceptional depravity” used by the sentencing panel and adopted by the Nebraska Supreme Court is insufficient; and (2) even if the narrowing construction was appropriate, Moore was denied procedural due process because the sentencing panel announced the construction at the same time it pronounced sentence and, therefore, the panel failed to give Moore proper notice. A. Narrowing “Exceptional Depravity” Over Time . In order to understand what follows, a timeline regarding the narrowing of “exceptional depravity” is helpful. I provide that chronology next. 1982 In 1982, the Nebraska Supreme Court first dealt with and affirmed the death sentence for the petitioner. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). In that case, the court made it clear that the facts of the case, including the fact that the murders were “coldly planned” and the defendant selected victims because of their age, warranted the conclusion that the murders were “exceptionally depraved.” Id. at 471, 316 N.W.2d at 41. 1986 Four years later, the Nebraska Supreme Court adopted a five-part narrowing test for “exceptional depravity,” and that test was derived from the Arizona case of State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See State v. Palmer, 224 Neb. 282, 318-20, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). The factors which tended to narrow “exceptional depravity” included: (1) the apparent relishing of the murder by the killer; (2) the infliction of gratuitous violence on the victim; (3) the needless mutilation of the victim; (4) the senselessness of the crime; and (5) the helplessness of the victim. The court did not state that its five-part test was the only limiting construction of “exceptional depravity.” On the same day that the Palmer opinion was announced, the Nebraska Supreme Court announced State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). There, the court recognized that it adopted the Palmer factors and it applied them. Id. at 431-32, 399 N.W.2d at 251. But the Joubert court was not finished. After discussing and applying the Palmer factors, and citing its 1982 decision in Moore, the court also suggested another factor: “Additionally, the murders 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. See State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).” Joubert, 224 Neb. at 432, 399 N.W.2d at 251. 1988 Judge Urbom, adopting the Report and Recommendation of Magistrate Judge Piester, found that Moore’s death sentence must be set aside because “exceptional depravity” was vague and unlimited. See Moore v. Grammer, CV84-L-754 (May 23, 1988) (Filing 41, Report & Recommendation, at 40-43; Filing 44, Memorandum of Decision). Neither Judge Piester nor Judge Urbom referred to the Joubert decision in the context of their discussions regarding the “exceptional depravity” aggravating circumstance. Judge Urbom seemed to discredit two Palmer factors; that is, the “senselessness of the crime” and “helplessness” of the victim. (Memorandum of Decision, at unnumbered p. 4.) The Judge also stated: “If the 1986 definition intended to abandon its pre-1986 efforts at guidance, it did not say so distinctly. If it did not so intend, a sentencer now has a series of suggestions, some objective and some not, from which to choose, without assurance that the series is complete.” Id. May 25, 1990 On May 25, 1990, the Eighth Circuit Court of Appeals affirmed Judge Urbom’s decision that “exceptional depravity” as stated in the statute was too vague. Moore v. Clarke, 904 F.2d 1226, 1233 (8th Cir.1990). In so doing, the court found that the “sentencing panel did not have the benefit of Palmer’s ‘clarification’; therefore, the State should not be permitted to rely on it now.” Id. at 1231. Nevertheless, the court went on to find that: “Assuming arguendo that Palmer had been available to guide the panel sentencing Moore, we still are not convinced that the Palmer decision, when considered with earlier cited cases, fulfills the constitutional obligation of the Nebraska Supreme Court.” Id. June 27, 1990 On the same day, in the summer of 1990, the Supreme Court decided Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and Lewis v. Jeffers, 497 U.S. 764, 777, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). These cases approved the Gretzler limiting construction. In fact, the Eighth Circuit later said that the “Walton decision established [the] validity of [the] entire 5-factor Gretzler test.” Joubert v. Hopkins, 75 F.3d 1232, 1244 n. 8 (8th Cir.), cert. denied, 518 U.S. 1029, 116 S.Ct. 2574, 135 L.Ed.2d 1090 (1996). 1991 As a result of the Walton and Jeffers cases, the State of Nebraska filed a petition for rehearing with the Eighth Circuit. After considering the petition for nearly 16 months, the Eighth Circuit denied it. Moore v. Clarke, 951 F.2d 895 (8th Cir. 1991). In that decision, the Court of Appeals appeared to shrink from its earlier criticism of the Gretzler and Palmer factors. In fact, the court stated, “the changes found desirable by the Nebraska Supreme Court in Palmer then demonstrate that the standards applied to Moore were vague.” Id. at 897. Therefore, “since the Nebraska Supreme Court did not adopt Gretzler-like language until six years after Moore’s sentencing!,]” the Walton and Jeffers opinions did not require a rehearing in the Moore matter. Without attempting to reweigh or more narrowly define “exceptional depravity,” the Nebraska Supreme Court remanded Moore’s case to the sentencing panel. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993). The Nebraska Supreme Court did so because “absent a U.S. Supreme Court decision as to the propriety of appellate court reweighing, it would be a waste of judicial resources for this court to render an opinion which will subsequently be overturned on a writ of habeas corpus by the federal courts.” Id. at 683, 502 N.W.2d 227. 1994 On October 11, 1994, in an unpublished opinion, Judge William G. Cambridge of this court granted the writ in Joubert v. Hopkins, No. 8:CV91-00350 (D.Neb. Oct. 11, 1994) (Filings 52 & 53). “The district court granted relief on the claim that ‘exceptional depravity’ is an unconstitutionally vague aggravating circumstance, and denied relief on Joubert’s other claims.” Joubert v. Hopkins, 75 F.3d at 1240. The district court determined that the term was vague as that term was used at Jou-bert’s sentencing. Id. at 1244. 1995 Believing that it had “no effective appellate definition,” the Moore resentencing panel stated that it had “a duty and obligation in the first instance to redefine appropriate constitutional limiting conditions for this aggravating circumstance.” State v. Moore, Order of Sentence, Docket 106, Page 55, at 12 (Apr. 21, 1995) (hereinafter “Moore, Sentencing Panel Opinion”). The sentencing panel then proceeded to narrow “exceptional depravity.” According to the panel, those words mean the killer engaged in “cold, calculated planning of the victim’s death, as exemplified by ... the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.” Moore, Sentencing Panel Opinion, at 14. The panel also made clear that those words “require more than merely the premeditation necessary to support a conviction of first-degree murder.” Id. at 15. January 25, 1996 In January of 1996, the Eighth Circuit Court of Appeals observed that the Nebraska Supreme Court had narrowed “exceptional depravity” in Joubert and Palmer. Joubert v. Hopkins, 75 F.3d at 1244 & n. 8 (“[W]e note that the Nebraska Supreme Court did apply a narrower definition of ‘exceptional depravity’.... See Joubert, 399 N.W.2d at 251.”; “The Nebraska Supreme Court adopted the Glitzier test as its own when narrowing ‘exceptional depravity’ in State v. Palmer .... ”). In addition, the Court of Appeals stated: “That narrowed definition is clearly constitutional. Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).” Id. In support of this proposition, the Joubert court also cited its 1991 decision denying the petition for rehearing in Moore v. Clarke, where the court appeared to .shrink from its prior criticism of the Palmer factors. Id. Nevertheless, the court decided not to reach the merits of the issue because it was interwoven with the question of whether the Nebraska Supreme Court could reweigh by using the limiting construction and those issues had not been properly briefed. Id. at 1245. Rather, the Eighth Circuit reversed because “any error as to the application of the ‘exceptionally depraved’ prong was harmless beyond a reasonable doubt.” Id. It, therefore, did not decide the question of whether the “clearly constitutional” limiting construction imposed on appeal cured the application of the unlimited and vague statutory language used by the Joubert sentencing body. November 22, 1996 On appeal from the second death sentence in Moore’s case, the Nebraska Supreme Court, in an very thorough opinion, observed that the Walton, Jeffers, 1991 Moore, and 1996 Joubert decisions clearly established that the Palmer factors were constitutional and the sentencing panel could have applied them. State v. Moore, 250 Neb. 805, 817-18, 553 N.W.2d 120, 131 (1996). However, the court recognized that because the 1996 Joubert decision had not been handed down at the time resen-tencing took place in 1995, the “confusing state of precedent” justified the sentencing panel in applying a narrowing construction crafted by that body. Id. at 818-819, 553 N.W.2d at 131-32. The Nebraska Supreme Court found that the narrowing construction used by the sentencing panel was correct. Id. at 819-21, 553 N.W.2d at 132-33. In particular, the court found the sentencing panel’s definition to be “sound and [we] hereby adopt it.” Id. at 821, 553 N.W.2d at 133. The court added that one or more of the Palmer factors or the sentencing panel’s narrowing construction, if proved, would support a finding of “exceptional depravity.” Id. The court went on to hold that Moore was not denied due process because the sentencing panel announced the limiting construction when it sentenced Moore. It specifically found that “a person of ordinary intelligence in Moore’s situation” would have been able to foresee the narrowing construction because of (1) the language of the statute itself; (2) the pre-Palmer case law; (3) the Palmer decision; (4) the 1986 Joubert decision that exceptional depravity was shown by planning and age selection; (5) the 1982 holding in Moore that the victims were selected because of age; and (6) the Supreme Court’s decisions in Walton and Jeffers. Id. at 824-25, 553 N.W.2d at 134-35. 1999 After an unsuccessful postconviction attack in the state district court, Moore appealed to the Nebraska Supreme Court. State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999). An important issue on appeal was whether Moore’s counsel was ineffective at resentencing for failing to anticipate the sentencing panel’s narrowing construction of “exceptional depravity.” In an another exhaustive opinion, this time authored by Justice Gerrard, the Nebraska Supreme Court rejected Moore’s ineffective assistance of counsel claim regarding his lawyer’s alleged malpractice in failing to anticipate and deflect application of the limiting construction. Id. at 559-63, 591 N.W.2d at 91-93. The court observed that since 1982, “every sentencing panel and reviewing court has cited Moore’s cold, calculated planning of the victims’ deaths and, in particular, selection of the victims based on particular characteristics as the integral part of the exceptional depravity prong.” Id. at 560, 591 N.W.2d at 92 (emphasis in original). The court stressed that it was Moore’s own confessions that showed that the murder had been planned for days and that Moore intentionally selected older men. Id. at 560-61, 591 N.W.2d at 92. The court emphasized that Moore failed to present any evidence or argument explaining how he would “rebut his own confession or the narrowed definition of exceptional depravity utilized by the sentencing panel.” Id. at 561-62, 591 N.W.2d at 92. B. This Case Does Not Involve Application of the Palmer Factors The Magistrate Judge discusses in detail why the Palmer (Gretzler) factors, and particularly the “senselessness” of the crime or the “helplessness” of the victim parts of that analysis, are vague. (Filing 49, Report & Recommendation, at 15-17.) However, the sentencing panel did not rely upon those factors except to observe that the Nebraska Supreme Court had promulgated them after Moore’s first sentencing and the Eighth Circuit in Moore v. Clarke could not ascertain whether the Palmer factors were intended to replace or merely clarify the past construction of “exceptionally depraved.” Moore, Sentencing Panel Opinion, at 11-12. In contrast, the panel, deriving a definition from prior cases, said “exceptional depravity” exists where the proof demonstrates “the killer’s cold, calculated planning of the victim’s death, as exemplified 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. at 14. The sentencing panel stressed that this definition required “more than merely the premeditation necessary to support a conviction of first-degree murder.” Id. at 15. The Nebraska Supreme Court said that the panel’s construction was a correct reading of their prior cases. State v. Moore, 250 Neb. 805, 821 & 824-26, 553 N.W.2d 120, 133-35 (1996). The Nebraska Supreme Court also found that the evidence supported the finding that “exceptional depravity” thus defined in fact existed. Id. at 838, 553 N.W.2d at 141. Consequently, the focus should be on whether “exceptional depravity,” as defined by the sentencing panel and later affirmed and adopted by the Nebraska Supreme Court, is constitutionally sufficient. Since they were not applied to Moore, the proper concern is not whether the Palmer factors are correct in the abstract. C. The Sentencing Panel Did Not Pick The Construction to Fit the Facts Citing Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (even though the facts of the case might fall within a proper understanding of an otherwise vague aggravating circumstance, a jury instruction expressed in the words of the statute, without a limiting construction, failed to give the jury as a sentencing body sufficient direction), the Magistrate Judge states that the sentencing panel “created this ‘selection of the victim’ sup-prong [sic] based strictly on the facts of this case” and the writ must be granted as a result. (Filing 49, Report & Recommendation, at 22.) Respectfully, the Magistrate Judge is wrong. Initially, the Supreme Court has explicitly stated that “the logic of ... cases [such as Maynard ] has no place in the context of sentencing by a trial judge.” Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). This is because “[t]rial judges are presumed to know the law and to apply it in making their decisions.” Id. Therefore, the sentencing panel did not violate Moore’s federal rights when it discerned a proper limiting construction from the precedents and then proceeded to decide whether the facts fit that limiting construction. On the contrary, the sentencing panel, comprised of three experienced trial judges, did exactly what one would expect of judges who sit both as fact finders and judges of the law. That is, they stated the law, and applied the law thus stated to the facts. Simply put, because it involved a jury sentencing issue and not a judge sentencing issue, the “logic of’ Maynard “has no place” here. Id. Furthermore, despite the Magistrate Judge’s contrary finding, the sentencing panel did not select a limiting construction to fit the facts of the case. In fact, the sentencing panel stated that it intended to ascertain the proper “limiting construction of ‘exceptional depravity’ and then apply that construction to the facts of the case[ ] now pending before us.” Moore, Sentencing Panel Opinion, at 12 (emphasis added). The record establishes that the panel first extensively reviewed in writing the federal and state case law on “exceptional depravity.” Moore, Sentencing Panel Opinion, at 11-15. In the course of doing so, the panel set forth its understanding of a proper limiting construction. Id. After that, it decided whether Moore’s conduct came within that narrowed definition. Id. at 15-16. Consequently, I respectfully reject, as factually unsupported, the Report and Recommendation’s statement that the panel selected a limiting construction “strictly on the facts of this case.” D. The Definition Actually Used by the Sentencing Panel and the Nebraska Supreme Court Passes Federal Constitutional Scrutiny The narrowed definition discerned by the sentencing panel, applied to the facts of this case by that panel, and approved by the Nebraska Supreme Court is not unconstitutional whether viewed facially or as applied to Moore. To be specific, the following narrowed definition of the words “manifested exceptional depravity by ordinary standards of morality and intelligence” is sufficiently precise to withstand federal constitutional scrutiny, to wit: 1. Those words mean the killer engaged in “cold, calculated planning of the victim’s death, as exemplified by ... the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.” Moore, Sentencing Panel Opinion, at 14. 2. Those words “require more than merely the premeditation necessary to support a conviction of first-degree murder.” Id. at 15. As the Supreme Court has explained, “the aggravating circumstance must meet two requirements.” Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (holding, among other things, that California’s special circumstance statute, requiring the sentencing body to consider the defendant’s age at the time of the crime, was not unconstitutionally vague). “First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder.” Id. (citing Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993)). I turn then to that first factor. Giving a fair reading to the definition used by the sentencing panel and approved by the Nebraska Supreme Court, the words exclude most defendants convicted of capital murder. Essentially, the words require two elements, both of which are constricted. The initial qualification requires planning the victim’s death beyond normal premeditation. The planning must be “cold,” that is to say, “calculated.” Next, the planning must involve a purposeful sorting process to select victims. The planning must focus upon individuals who have historically been subjected to discrimination or who otherwise possess some immutable characteristic that the victim cannot change. For example, the murderer must plan to select victims because of their age. Taken together, these elements plainly limit the number of Nebraska murderers who may be sentenced to death. “Second, the aggravating circumstance may not be unconstitutionally vague.” Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (citing Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) & Arave, 507 U.S. at 471, 113 S.Ct. 1534 (quoting Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990))). For the following reasons, I decide that the narrowing definition of “exceptionally depraved” at issue in this case is not vague. The narrowing of the words “exceptional depravity” does not require “mathematical precision.” Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (“[T]he proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision .... [We cannot] fault the state court’s statement that a crime is committed in an especially ‘depraved’ manner when the perpetrator ‘relishes the murder, evidencing debasement or perversion,’ or ‘shows an indifference to the suffering of the victim and evidences a sense of pleasure’ in the killing.” (citation omitted)); Lewis v. Jeffers, 497 U.S. 764, 777, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (stating that “[o]ur holding in Walton ... bears repeating here” and reciting the above-quoted language in Walton). See also Arave v. Creech, 507 U.S. 463, 473-74, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (a limiting construction of “utter disregard for human life,” meaning a “cold-blooded, pitiless slayer,” passed constitutional muster “even though ‘the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision’ ”) (quoting Walton); Proffitt v. Flor ida, 428 U.S. 242, 255 & 260, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (White, J., concurring in judgment) (approving Florida statutory aggravating circumstance that, “although ... not susceptible of mechanical application ...” was “by no means so vague and overbroad as to leave the discretion of the sentencing authority unfettered”; “especially heinous, atrocious, or cruel” meant a “conscienceless or pitiless crime which is unnecessarily torturous to the victim”). Moreover, this “vagueness review is quite deferential.” Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630. An aggravating “factor is not unconstitutional if it has some ‘common-sense core of meaning....’” Id. (quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (White, J., concurring in the judgment)). In the end, the “States may adopt capital sentencing processes that rely upon” the sentencing bodies “to exercise wide discretion” and this deference “is evident from the numerous factors [the Supreme Court has] upheld against vagueness challenges.” Id. at 974, 114 S.Ct. 2630. As a result, a proper vagueness analysis must recognize that limiting words like “relishes the murder” or “cold-blooded, pitiless slayer” or which reference “age” have been approved by the Supreme Court and are proper analogies against which we can judge the definition in this case. Additionally, I must use a method of review that: (1) does not require the limiting words to posses “mathematical precision”; (2) appreciates that limiting words are “not susceptible of mechanical application”; (3) is “quite deferential”; (4) looks to whether the limiting words have a “common-sense core of meaning”; and (5) permits the sentencing body “to exercise wide discretion.” When I take the definition of “exceptional depravity” used in this case and apply it against other definitions, that have been approved by the Supreme Court and when I apply the standard of review used by the Supreme Court to review the limiting descriptions, the Nebraska words are far more precise than other constructions that have been approved. They require (1) cold, calculated planning and (2) the selection of victims based upon (a) characteristics that have been used as a basis for discrimination or (b) a physical characteristic that the victim cannot change. The words are not “vague” as that term is understood by the Supreme Court. The Magistrate Judge thought the definition was improper because “selecting the victim, however, need have nothing to do with the grizzly deeds of the murder itself.” (Filing 49, Report & Recommendation, at 20.) But I fail to understand why, if this is so, that failing is a federal constitutional problem. The United States Supreme Court has never limited aggravating circumstances generally, or “exceptional depravity” in particular, to “grizzly deeds.” See, e.g., Walton, 497 U.S. at 654-55, 110 S.Ct. 3047 (approving limiting construction of “especially depraved” which turned on, among other things, whether the perpetrator “relishes the murder”). See also Tuilaepa, 512 U.S. at 974, 114 S.Ct. 2630 (describing “the numerous factors [the Supreme Court has] upheld against vagueness challenges”; denying vagueness challenge to statute requiring sentencer to consider defendant’s age at time of crime). So long as the definition channels the discretion of the sentencing body and it is not vague, the state courts are free to limit “exceptional depravity” in any way they choose without violating the Eighth Amendment. The Magistrate Judge also thought the phrase “such as” followed by descriptive words like “race” or “age” was improperly “open ended.” (Filing 49, Report & Recommendation, at 21.) To illustrate his point, the Judge asked questions like the following: “[W]hat about a killer targeting prostitutes?”; “Or persons with tattoos (or other visible, permanent, non-disabling characteristics, such as moles, color of eyes, hair, etc.)?”; or “What if the killer targeted for ‘mercy killing’ only persons who have some terminal, degenerative disease that has not yet ‘disabled’ them?” (Filing 49, Report & Recommendation, at 21-22 n. 10.) Those questions, and the analysis that underlie them, seek to impose a requirement of impossible precision. The Supreme Court has never used such a standard. On the contrary, the Supreme Court has stressed that an aggravating circumstance is valid and not vague if the definition has a “common-sense core of meaning.” Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630. The limiting construction used by the sentencing panel, and approved by the Nebraska Supreme Court, meets that test. E. The Method Used to Arrive at the Limiting Construction Did Not Deprive the Defendant of Due Process Despite the fact that “neither the Supreme Court nor the lower courts have addressed a similar type of challenge,” the Magistrate Judge concluded that the method by which the sentencing panel arrived at the limiting construction denied the defendant procedural due process. (Filing 49, Report & Recommendation, at 23 & 25.) Essentially, the alleged fault is this: the panel announced the limiting construction when it pronounced the sentence and not before. I reject this claim because the limiting construction was both legally and factually foreseeable to the defendant and his counsel. That is, neither the defendant nor his counsel should have been, nor were they, surprised. I agree with the Nebraska Supreme Court’s extensive analysis of the due process issue in its 1999 and 1996 opinions. Moore, 256 Neb. at 559-63, 591 N.W.2d at 91-93; Moore, 250 Neb. at 821-26, 553 N.W.2d at 133-36. I highlight only a few of the more salient reasons why Moore was -not denied due process when the sentencing panel carefully limited the meaning of “exceptional depravity.” To begin with, the Supreme Court has held that a statute, as construed, “ ‘may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendanft].’ ” Osborne v. Ohio, 495 U.S. 103, 115, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n. 7, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (citations omitted)). Moore clearly had ample warning. Since at least 1986, it had been the law in Nebraska that a limited definition of “exceptional depravity” included a killer planning to kill someone in a calculated manner and selecting the victims based upon their age. In State v. Joubert, 224 Neb. 411, 430, 399 N.W.2d 237, 250 (1986), the Nebraska Supreme Court was confronted with a murderer who killed two boys, one a 12-year old and the other a 13-year old, after having “planned these abductions and murders far in advance.” There the court held that, in addition to the Palmer factors, the murders were “exceptionally depraved” where “the murders were coldly planned ... involving immature victims selected” and an “intellectual approach.” Id. at 432, 399 N.W.2d at 251. In support of that proposition, the Nebraska Supreme Court cited State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982) — a case which involved the very defendant who filed the habeas petition now before this court. Id. I, therefore, conclude that no reasonable person could have been surprised by the sentencing panel’s 1995 announcement of a limiting construction that had been apparent since at least 1986. I am aware that at the time the sentencing panel issued its opinion in this case, Judge Cambridge of this court had concluded that Joubert would escape the death penalty because “ ‘exceptional depravity’ is an unconstitutionally vague aggravating circumstance.” Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir.1996) (reversing the decision of the district court). Noting in dicta that the Nebraska Supreme Court in Joubert had limited “exceptional depravity” on appeal and “[t]hat narrowed definition is clearly constitutional,” the Eighth Circuit reversed because “any error as to the application of the ‘exceptionally depraved’ prong was harmless beyond a reasonable doubt.” Id. at 1245. Because the Circuit’s opinion in Joubert was not released until after Moore was resentenced, the sentencing panel did not have the benefit of that opinion. Judge Cambridge’s opinion in Joubert gave Moore no reason to believe that a limiting construction based upon planning and age was unlikely or inappropriate. On the contrary, his opinion made it virtually certain that a limiting construction similar to the one adopted by the Nebraska Supreme Court in the Joubert appeal would be applied by later sentencing panels precisely because Judge Cambridge had ruled that the statutory language itself, without a limiting construction, was vague. Therefore, Judge Cambridge’s opinion in Jou-bert does not present a valid basis for Moore to claim that he was surprised. On the contrary, it provided him with a strong reason to believe that a Joubert-like limiting construction would be forthcoming. Still further, the record in this case establishes that defense counsel was not in fact surprised. It is obvious that Moore and his counsel knew that the resentencing hearing would involve “exceptional depravity” and what the term meant. After all, that is explicitly why the Eighth Circuit Court of Appeals reversed and remanded for resentencing. In April of 1994, after the remand, and in advance of the evidentiary hearing, the sentencing panel ordered the State of Nebraska to disclose its witnesses. (Filing 18 , Transcript, Vol. 1 (hereinafter “Tr. 1”) at 41-42 & 62; R-I, 00141). There is no claim that the State of Nebraska failed to do so. The evidentiary hearing began on June 29, 1994. It concluded on June 30, 1994. The State called only two witnesses at the evidentiary hearing. The State of Nebraska called the police officer who had taken Moore’s confessions and a pathologist. (Filing 18, Tr. 1 at 100 & 134.) In June of 1994, during opening statements, it was clear that both parties knew that a proper limiting construction would be the central focus of the “exceptional depravity” debate. The prosecutor stated: We are all aware of why we’re here.... And the reason for the reversal, as we’re all aware, was aggravating circumstance (d), that the murder was especially heinous, atrocious, cruel or manifested exceptional depravity by ordinary standards of morality and intelligence, was found to be unconstitutionally vague by the Eighth Circuit. That circumstance has since been redefined in State v. Joubert ... and State v. Palmer .... And it’s the State’s position that in this case, both prongs of ... that aggravating circumstance exist and that’s primarily what the evidence will be; what the witnesses will be testifying to today. (Filing 18, Tr. 1 at 78-79.) Counsel for the defendant responded to the narrowing construction issue in his opening statement. He argued that the “second prong [exceptional depravity] which was applied to Mr. Moore in the original sentencing hearing was found to be unconstitutionally vague and it has not been remedied since by any cases.” (Filing 18, Tr. 1 at 80.) Thus, at the start of the evidentiary hearing, the limiting construction debate had been joined. The prosecutor argued that “exceptionally depraved” had been limited by Joubert and Palmer and defense counsel disagreed. At the evidentiary hearing on resentenc-ing, the police officer who took Moore’s confessions testified and was vigorously cross-examined. (Filing 18, Tr. 1 at 100-134). Received into evidence were various tape-recorded statements that Moore had given to the officer. (Filing 18, Tr. 2 at 207-208 (regarding Ex. 130); Filing 18 (envelope labeled “PSR”), Ex. 130.) Included in those statements were Moore’s admissions that he planned the first robbery a number of days in advance by calling various cab companies to see how long it would take the cabs to arrive (e.g., filing 18, (envelope labeled “PSR”), ex. 130 at 265-68 (victim named Van Ness)) and had selected the victims because of their older ages (id. at 186 & 199 (victim named Helgeland); id. at 269 (victim named Van Ness)). None of this evidence of planning or age selection could have been a surprise to Moore or his counsel since it had been presented in the first sentencing hearing and was extensively discussed by the Nebraska Supreme Court during the 1982 appeal as convincing proof of the “exceptional depravity” of Moore’s crime. Moreover, in 1986, the first Moore opinion was cited as support for the Joubert decision and the Joubert decision emphasized the importance of planning and selection due to age as establishing “exceptional depravity.” After the evidentiary hearing concluded on June 30, 1994, both sides were given an opportunity to brief the case. (Filing 18, Tr. 2 at 218.) In a brief filed on July 26, 1994, Moore, through his counsel, argued that the “aggravating circumstances ... have not changed in any pertinent part by the legislature since the initial sentencing,” the “issues to be considered in the present hearing are exactly the same,” and the State of Nebraska had failed to present “any new evidence relevant to these aggra-vators.” (Filing 41, “Pre-Sentencing Brief’ at Bates Stamp P-00344.) Moore went on to argue that “the second prong of aggravating circumstance 1(d), clearly cannot be considered in that in its present form it has been ruled to be unconstitutionally vague and therefore null and void.” (Id. Bates Stamp P-00346.) Two things are apparent from this brief, and both of them establish that Moore was not surprised. To start with, according to Moore, the factual “issues ... [were] exactly the same” as they had been 14 years earlier and he had been confronted with no “new evidence” at the evidentiary hearing. Even more importantly, and despite the fact that Moore knew from the opening statement of the prosecutor that the State was proposing a limiting construction following both Palmer and Joubert, Moore’s counsel argued that the “exceptional depravity” aggravating circumstance should not be applied because it had previously been held unconstitutional. He thus elected not to propose a limiting construction or respond to the prosecutor’s statement that Palmer and Joubert provided the appropriate limiting construction. The parties were given oral argument, and that argument was held on October 14, 1994. (Filing 18, Tr. 2 at 219.) The record is replete with arguments about whether and how the “exceptionally depraved” language should be narrowed. During oral argument the parties argued about the meaning of significant cases such as Palmer, the 1986 Nebraska Supreme Court opinion in Joubert, Judge Cambridge’s decision in Joubert, Gretzler, and Walton. (Compare Filing 18, Tr. 2 at 229-36 (prosecutor’s arguments) with Filing 18, Tr. 2 at 268-269 (defense counsel’s arguments).) As had been the case in opening statements some three months earlier, the State of Nebraska and Moore clearly framed the debate on limiting the meaning of “exceptional depravity,” with each side using the appropriate legal precedents then available to them. During oral argument Judge Rist questioned Moore’s counsel about the age factor. The judge asked: “What about the testimony that he selected older men because he didn’t want to kill younger ones?” (Filing 18, Tr. 2 at 263.) Moore’s able counsel responded that there was no context within which to judge the statement and “that’s what I was grilling [the police officer] on.” (Id.) Once again, there is not the slightest indication that Moore’s counsel was surprised by the focus of the judge’s questioning. Finally, in a starkly revealing exchange regarding the issue of surprise, Moore’s counsel argued that “my position is you [the sentencing panel] can’t on your own come up with a definition [of exceptional depravity] because in doing so, I can’t rebut it.” (Id. at 275.) Moore’s counsel stated: “I suppose you could say I’m [the sentencing panel] going to come up with a definition now and you [the defendant] can go back and we’ll give you another month to bring in evidence and see if this aggra-vator applies or not.” (Id.) Moore’s counsel, however, did not ask the court to use that procedure. (Id.) Judge Rist responded: “You would be in the same position if the Supreme Court did it, though, wouldn’t you?” (Id.) Counsel was then forced to admit: “Yes. I think so.” (Id.) The defense lawyer then confessed his strategy: “[T]hen I am going to say but I never had a chance to argue with you about it because I didn’t know what it was.” (Id.) And, once again, the advocate did not ask the sentencing panel to alter the procedure. About six months after the October, 1994, oral argument, and on April 21, 1995, the panel announced its sentence. In short, the record proves that counsel for Moore had a complete grasp of the “exceptional depravity” limiting construction issue and related procedural questions. The petitioner elected not to propose any particular limiting construction or ask for an advance limiting construction definition, hoping instead to preserve a procedural due process argument as “insurance.” While this is proof of the sophistication and competence of Moore’s experienced lawyer, it also establishes beyond any question that the petitioner was not surprised by the limiting construction used by the sentencing panel. III. CONCLUSION Since his first appeal in 1982, the petitioner has demanded that the courts more clearly define the words “exceptional depravity.” Over the intervening years, the refined definition that Mr. Moore sought was carefully, albeit incrementally, provided to him. Relying upon a cold, calculated plan, Moore committed two separate murders, purposefully selecting each victim because of older age. According to the more precise definition that Moore so vigorously solicited, this behavior was found to be “exceptionally depraved” by three experienced trial judges and seven thoughtful members of the Nebraska Supreme Court. Mr. Moore has no legitimate reason to be surprised. IT IS ORDERED: 1. The Magistrate Judge’s Recommendation (filing 49) that the Petition for Writ of Habeas Corpus (filing 1) be granted with respect to claims (1) and (2) is not adopted, and Respondent’s objections to the Magistrate Judge’s Recommendation (filing 50) are sustained; 2. The Magistrate Judge’s Recommendation (filing 49) that claims (3) through (12) of the Petition for Writ of Habeas Corpus (filing 1) be denied is adopted, and Petitioner’s objections to the Magistrate Judge’s Recommendation (filing 51) are denied; 3. Petitioner’s appeal (filing 51) from the Magistrate Judge’s order (filing 49, at 32) denying Petitioner’s request for an evi-dentiary hearing and the Magistrate Judge’s unstated, but implicit, denial of Petitioner’s request for expansion of the record, is denied; 4. The Petition for Writ of Habeas Corpus (filing 1) filed pursuant to 28 U.S.C. § 2254 is denied in its entirety and is dismissed with prejudice; 5. Respondent’s motion for partial summary judgment (filing 25) upon Petitioner’s claim (10) is denied as moot because claim (10) has been considered and denied, as directed above, in the context of my adoption of the portion of the Magistrate Judge’s Report and Recommendation dealing with claim (10); 6. Judgment shall be entered by separate document; and 7. My chambers staff shall give counsel for the parties immediate telephone and fax notice of this decision. ORDER, REPORT AND RECOMMENDATION PIESTER, United States Magistrate Judge. Before the court for consideration is the petition for writ of habeas corpus of Carey Dean Moore, filing 1. For reasons discussed more fully below, I conclude that petitioner has fairly presented claims (1) through (5), and (7) through (10). However, petitioner is in procedural default with respect to claims (6), (11), and (12). After reviewing petitioner’s claims, I conclude that habeas relief should be granted with respect to claims (1) and (2) and denied in all other respects. I further conclude that an evidentiary hearing is not necessary to resolve petitioner’s claims. BACKGROUND Having waived a trial by jury, petitioner was tried by the District Court of Douglas County, Nebraska, of two counts of first degree murder in the perpetration of or attempt to perpetrate a robbery. On June 20, 1980, a panel of three judges sentenced him to death, by electrocution on each count. Petitioner appealed his convictions and sentence to the Nebraska Supreme Court, which affirmed both. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). Subsequently, petitioner filed a motion for postconviction relief in the district court, which was denied without a hearing. The Nebraska Supreme Court affirmed. State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984). Petitioner then filed a petition for federal habeas relief in this court. CV 84-L-754, filing 1.1 recommended to the district court that that petition be granted with respect to his claim that the “exceptional depravity” language in Neb.Rev.Stat. Ann. § 29 — 2523(l)(d) was unconstitutionally vague, and denied with respect to the remaining claims. I recommended that Moore be resentenced to life imprisonment unless the State initiated capital resentenc-ing proceedings within a reasonable time after judgment became final. CV 84-L-754, filing 41. The district judge, the Honorable Warren K. Urbom, adopted my recommendations and granted the writ of ha-beas corpus holding that the “exceptional depravity” language'was unconstitutionally vague, denied all the other claims, and ordered the reduction of petitioner’s sentence to life imprisonment unless the state initiated resentencing within sixty days after the judgment became final. Id., filing 45. The Eighth Circuit affirmed, Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), and subsequently denied a motion for rehearing filed by respondent, Moore v. Clarke, 951 F.2d 895 (8th Cir.1991). The respondent moved for resentencing in the Nebraska Supreme Court. Although the supreme court granted the motion, it did not reach either the issue of the constitutionality of Neb.Rev.Stat. Ann. § 29 — 2523(l)(d) or the propriety of the death sentence in this case. See State v. Moore, 243 Neb. 679, 680, 502 N.W.2d 227 (1993). The court instead remanded the case to the District Court of Douglas County for resentencing. Id. The district court resentenced petitioner to death by electrocution. Petitioner appealed and the Nebraska Supreme Court affirmed the re-sentence. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996). He then filed a petition for post-conviction relief in the state district court, which was denied without a hearing and affirmed by the Nebraska Supreme Court. State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999). Petitioner has now filed the present petition for writ of habeas corpus with this court raising the following grounds for relief: (1) The Nebraska court’s application of aggravating factor (l)(d) in Neb.Rev. Stat. Ann. § 29-2523 violated Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights; (2) The aggravating factor in Neb.Rev. Stat. ANN. § 29-2523(l)(d) as redefined in this case, violates the Eighth and Fourteenth Amendments because it remains open-ended and vague and fails to “channel” application of the death penalty; (3) The State violated the federal court’s order giving it 60 days to initiate capital resentencing and petitioner is thus entitled to have his sentence reduced to life imprisonment; (4) The death penalty in Nebraska is applied in an uneven, arbitrary and capricious manner, in violation of the Fourteenth Amendment due process clause and the Eighth Amendment prohibition against cruel and unusual punishment; (5) The Nebraska death penalty scheme violates the Eighth Amendment prohibition against cruel and unusual punishment because it fails to channel the sentencer’s discretion by objective standards and it sets forth two inconsistent standards of proof as a predicate to the imposition of the death penalty; (6) The resentencing panel erroneously considered the defendant’s custodial statements obtained by police authorities in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments and erroneously refused to grant the appellant an evidentiary hearing to test the constitutional validity of such statements in violation of the due process clause of the Fourteenth Amendment; (7) The proportionality review provided for in Neb.Rev.Stat. Ann. § 29-2522 violates Petitioner’s rights under the Fourteenth Amendment due process clause and the Eighth Amendment cruel and unusual punishment clause; (8) The aggravating factor in Neb.Rev. Stat. Ann. § 29-2523(l)(b) violates the Fifth, Eighth, and Fourteenth Amendments; (9) Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel during sentencing when counsel did not determine how to effectively rebut the presence or relative weight of the aggravating factor in Neb.Rev.Stat. Ann. § 29-2523(l)(d) under the definition ultimately chosen by the sentencing panel; (10) The sentence of death is being inflicted in a cruel and unusual manner, in violation of the Eighth Amendment, because Petitioner has already served more than nineteen years of prison time in isolated, segregated confinement, while under several explicit threats of death, due to protracted delays in the court proceedings caused by ineffective assistance of his counsel and by the State; (11) Nebraska’s death penalty system violates the Sixth, Eighth and Fourteenth Amendments in failing to provide a jury determination of factual aggrava-tors and mitigators; and (12) Nebraska’s death penalty by electrocution violates the Eighth and Fourteenth Amendments. See Petitioner’s Brief & Filing 1. DISCUSSION EXHAUSTION AND PROCEDURAL DEFAULT The exhaustion doctrine, first enunciated in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886) and currently codified at 28 U.S.C. § 2254(b), is grounded in principles of comity and reflects a desire to “protect the state courts’ role in the enforcement of federal law.” Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). It is also justified by the pragmatic recognition that “federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review.” Id. (quoting Rose, 455 U.S. at 519, 102 S.Ct. 1198). Although not jurisdictional, it “creates a ‘strong presumption in favor of requiring the prisoner to pursue his available state remedies.’ ” Id. (quoting Rose, 455 U.S. at 515, 102 S.Ct. 1198). The exhaustion requirement may be satisfied in either of two ways: by “fair presentment” of the claim; or by procedural default. A claim is properly exhausted by presentment when the state courts are given a “‘fair opportunity’ to apply controlling legal principles to the facts bearing upon [the claim].” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). “It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Id. (citing Picard, 404 U.S. at 277, 92 S.Ct. 509). The Harless-Picard “fair opportunity” standard is satisfied where the petitioner presents “the same facts and legal theories to the state court that he later presents to the federal courts.” Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir.1994). Specifically, “[t]he federal legal theory or theories must plainly appear on the face of the petitioner’s state-court briefs.” Id. A “federal legal theory” is one containing a reference to “a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.” Martin v. Solem, 801 F.2d 324, 330-31 (8th Cir.1986) (citing Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980)); see Jones, 20 F.3d at 854 (requiring “[e]xplicit citation to the Constitution or to a federal case”); Luton v. Grandison, 44 F.3d 626 (8th Cir.1994) (same); McDougald v. Lockhart, 942 F.2d 508, 510 (8th Cir.1991) (same). It is not necessary that the petitioner obtain a precise ruling on the federal claim from the state court, so long as it has been properly presented. See Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir. 1987). In this case the petitioner has “fairly presented” claims (1) through (10) in the state court proceedings in connection with his resentencing. In his direct appeal from resentencing, petitioner presented arguments that were substantially similar, both factually and legally, to claims (1) through (8) in the present petition. See Brief of Appellant, R-I 00060-00099. Petitioner’s motion for postconviction relief and his appeal from the denial of that motion also included factually and legally similar arguments to claims (1), (2), (9), and (10). See Motion for Post Conviction Relief, R-I 00246-00251; Brief of Appellant, R-I 00025-00042. Claims (11) and (12), however, were not fairly presented. Petitioner included neither the facts nor the legal theories relevant to these claims in any of his briefs to the Nebraska Supreme Court. These two claims were available to petitioner and could have been raised during either the state direct appeal or postconviction proceedings. Consequently, petitioner has no available means by which to present these claims to the Nebraska courts at this time, see State v. Luna, 230 Neb. 966, 967, 434 N.W.2d 526 (1989), and they are subject to procedural default. Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir.1994). Also, because petitioner does not even attempt to demonstrate either cause or prejudice sufficient to excuse this default, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or evidence of actual innocence, Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), claims (11) and (12) are barred and may not be considered by this court. Respondent argues that petitioner is in procedural default with respect to claims (4), (5), (6), and (8). Specifically, respondent contends that even if petitioner properly presented these claims in the state proceedings related to his resentencing, these claims were available in the proceedings related to his original sentence and should have been raised in his first federal habeas petition. Under section 2244(b)(2) “[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed.... ” 28 U.S.C. § 2244(b)(2). However, a second habeas petition attacking for the first time the cons