Full opinion text
MEMORANDUM AND ORDER KOPF, District Judge. This is a habeas corpus case, brought pursuant to 28 U.S.C. § 2254, challenging Petitioner’s conviction for two murders and the death sentences which resulted. Pending before me is the thoughtful and comprehensive report, recommendation, and order (Filing 111) of the Honorable David L. Piester, United States Magistrate Judge, regarding Petitioner’s amended petition for habeas corpus. In his report and recommendation, Judge Piester addressed forty-four claims asserted in Petitioner’s amended petition and found that: 1. Petitioner abandoned certain claims (claims 3, 7, 15, 16, 33, 35, 37, 41, 43 and part of 44 (that portion not related to ineffective assistance of trial counsel)). (Filing 111, at 10-15.) 2. Certain of Petitioner’s claims were procedurally defaulted (claim 20(c) (that part claiming that all types of first-degree murder except felony murder have lesser included offenses and, thus, Nebraska’s felony murder rule is unconstitutional), claim 39, claim 40 (to the extent that it raises the failure to make factual findings regarding nonstatutory mitigating factors), and claim 44 (relating to ineffective assistance of trial counsel)), and such default had not been excused. (Id. at 20-31.) 3. All the claims properly before the court regarding the guilt-and-innoeence phase of trial (claims 17, 18, 20, 21, 22 and 23) were without merit. (Id. at 31-52.) 4. Whether or not procedurally defaulted, claims 19 and 42 regarding Nebraska’s definition of reasonable doubt should be resolved against Petitioner pursuant to Victor v. Nebraska, - U.S. -, 114 5. Ct. 1239, 127 L.Ed.2d 583 (1994). (Id. at 18-20.) 5. Prior errors in sentencing (if any) which took place before the “reweighing” that occurred in the Nebraska Supreme Court on remand from the United States Supreme Court were irrelevant because it was the Nebraska Supreme Court’s action on remand that resentenced Petitioner (claims 1, 2, 4, 8, 9,10,11,12,13,14,24, 25, 28, 29, and 30). (Id. at 10.) 6. The Nebraska Supreme Court violated Petitioner’s constitutional right to due process of law, entitling Petitioner to resentencing, because (a) on remand from the United States Supreme Court, the state’s highest court sentenced Petitioner in a manner not prescribed by state statute (claim 31); and (b) on remand from the United States Supreme Court, the state’s highest court acted as an unreviewable sentencing panel when sentencing Petitioner (claim 32). (Id. at 52-61.) 7. The court should not reach certain claims (claims 5, 6, 26,27, 34, 36, and 38) in light of the recommendation regarding re-sentencing because those claims are not likely to recur at resentencing. (Id. at 61-62.) Accordingly, Judge Piester recommended that the amended petition be granted in part and denied in part, and that Petitioner’s sentences be reduced to life in prison unless, within a reasonable time after judgment, capital resentencing proceedings were initiated in state district court. In a related order, Judge Piester also denied Petitioner’s request for an evidentiary hearing, for discovery, and to expand the record. Both Petitioner (Filing 116) and Respondent (Filing 114) have objected to Judge Piester’s report and recommendation. However, Petitioner has not appealed from Judge Piester’s order denying an evidentiary hearing, denying discovery, and denying the request to expand the record. After de novo review of the report and recommendation and the objections filed thereto, I agree with each and every one of Judge Piester’s ultimate findings of fact, conclusions of law, and recommendations. I adopt the report and recommendation as supplemented by the following discussion of the objections of Petitioner and Respondent. I. In order to provide an appropriate context for my discussion of the objections to the report and recommendation, I shall first review the general factual and procedural history of this ease. I shall then examine in more depth the proceedings before the Nebraska Supreme Court which give rise to the challenged death sentences. A. 1. There is no doubt that Randolph .K. Reeves (Reeves), who had a criminal history but no significant history of violence prior to the murders, killed two women with a kitchen knife in Lincoln, Nebraska, in the early morning hours of March 29, 1980. There is also no doubt that Reeves’ capacity to appreciate what he was doing was grossly impaired by drug and alcohol use on the evening of the murders. Reeves killed the women while in the process of attempting to sexually assault Janet Mesner, to whom he was distantly related. Mesner had also been Reeves’ friend, although the two were never emotionally or sexually intimate. Reeves had visited Mesner’s home on a number of previous occasions. Reeves apparently broke into the building where Mesner lived, and as he was trying to rape her (stabbing Mesner seven times in the process), Victoria Lamm, who shared the apartment with Mesner, walked in on the struggle and was in turn stabbed by Reeves. Lamm passed out almost immediately as knife wounds penetrated the main pulmonary artery of her heart and another thrust penetrated her liver. Reeves had been drinking heavily on the day of the killings, and he had also taken a hallucinogenic drug (peyote). At trial, a friend of Reeves, who had been with him earlier that morning, described Reeves as being in a “stupor” two hours and fifteen minutes before the stabbings were reported to police. The friend further testified that Reeves had told him earlier that morning that he intended to visit a girl. Laboratory tests later confirmed the presence of mescaline in Reeves’ system. It was also determined that Reeves’ blood-alcohol level was .149 percent approximately three hours after the assaults occurred. There was testimony at trial that Reeves’ blood-alcohol level at the time of the assaults may have been as high as .230 percent at 2:00 a.m. After the assaults, Reeves exited the building where the stabbings had taken place, leaving behind, among other things, his wallet containing identifying information. When Reeves left, Mesner, who was still conscious, called 911. Because Reeves had ripped out the phone cord in the upstairs bedroom where the struggle had taken place, Mesner was forced to use the phone on the first floor. Police responded to Mesner’s call. They found Lamm’s two-year-old daughter, unharmed, walking out of the north upstairs bedroom of the house. They also found Mesner on the first' floor. Lamm’s body was found in the south upstairs bedroom. The condition of this bedroom indicated that a violent struggle had taken place. The floor was covered with blood. At the scene of the crime, and later at the hospital, Mesner, although in shock and suffering great pain, reported the crimes to police, identifying Reeves as the man who had stabbed her, raped her, and killed her roommate. She identified Reeves twice by name and gave a physical description of him once. About 4:46 a.m., approximately an hour after Mesner’s call to police, Reeves was arrested as he tried to walk across a main street in Lincoln, Nebraska. At the time of his arrest, Reeves had blood on his hands and clothing, the fly of his trousers was unzipped, and his penis was exposed. Tests later determined that the blood on • Reeves’ clothing and on his penis was the same blood type as that of Mesner. Tests also confirmed that the acid phosphate level of a vaginal sample taken from Mesner was consistent with sexual intercourse having occurred. However, experts were unable to find semen on Reeves or in vaginal swabs taken from the two women. Semen was found on men’s underwear located in Mesner’s bedroom, and the secretion matched Reeves’ blood type. Both women died of stab wounds. Mesner lived slightly more than two hours after she first called the police. After twice being given his Miranda rights, Reeves, who has above-average intelligence, told police that while he could not remember much about the murders, he could remember stabbing and raping Mesner. Charged with two counts of felony murder (murder in the course of committing a sexual assault or attempted sexual assault), Reeves was found guilty by a jury on both counts. At trial, Reeves contended that he lacked the intent needed for first-degree sexual assault or first-degree attempted sexual assault and, therefore, he was not guilty of felony murder. Alternatively, he argued that if the jury believed he had the requisite intent, he was not guilty by reason of insanity. 2. On September 11, 1981, Reeves was sentenced to death by three state district judges. State law authorized one of two procedures for initial imposition of the death sentence in cases where.the trial judge was not disabled or disqualified: (1) the judge who presided at trial could impose the death sentence, or (2) upon the request of the trial judge, the judge who presided at trial plus two other judges designated by the chief judge of the Nebraska Supreme Court could impose the death penalty. Neb.Rev.Stat. § 29-2520 (Reissue 1989). Among other things, Nebraska law required the sentencing panel to “set forth the general order of procedure at the outset of the sentence determination proceeding,” Neb.Rev.Stat. § 29-2521 (Reissue 1989), and after such proceeding to issue a written determination, including findings of fact “based upon the records of the trial and the sentencing proceeding____” Neb.Rev.Stat. § 29-2522 (Reissue 1989). Specifically, the sentencing panel, “[ajfter hearing all the evidence and arguments in the sentencing proceeding,” was required to consider (1) whether sufficient aggravating circumstances existed to justify imposition of the death penalty; (2) whether sufficient mitigating circumstances existed which approached or exceeded the weight given to the aggravating circumstances; and (3) whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant. Id. State law also required the Nebraska Supreme Court to automatically review any death sentence imposed by a district judge or judges. Neb.Rev.Stat. § 29-2525 (Reissue 1989). Indeed, the Nebraska Legislature specifically found that it was necessary for the state’s highest court to “review” all criminal homicide cases: In order to compensate for the lack of uniformity in charges which are filed as a result of similar circumstances it is necessary for the Supreme Court to review and analyze all criminal homicides committed under the existing law in order to insure that each ease produces a result similar to that arrived at in other cases with the same or similar circumstances. Neb.Rev.Stat. § 29-2521.01 (Reissue 1989). Eight aggravating and seven mitigating circumstances are set forth in the state statutes, and the sentencing panel is directed to consider whether these factors warrant the death penalty. Neb.Rev.Stat. § 25-2522 (Reissue 1989). On appeal, the Nebraska Supreme Court is directed to “review and analyze,” among other things, “the facts including mitigating and aggravating circumstances .... ” Neb.Rev.Stat. § 29-2521.02 (Reissue 1989). If the Nebraska Supreme Court disagrees with the sentencing panel regarding aggravating and mitigating circumstances, “[t]he Supreme Court may reduce any sentence which it finds not to be consistent with section[] ... 29-2522 [which requires the sentencing panel to, among other things, weigh the statutory aggravating and mitigating circumstances],... ” Neb.Rev.Stat. 29-2521.03 (Reissue 1989) (emphasis added). However, nowhere in the state statutes is the Nebraska Supreme Court authorized to “reweigh” the aggravating and mitigating circumstances for purposes of resentencing when the Nebraska Supreme Court first finds that the death sentence imposed by the district court sentencing panel is “not ... consistent with section[] ... 29-2522____” Id. Indeed, aside from the ability to “reduce” a death penalty sentence because it does not comply with the Nebraska statute that requires the district court sentencing panel to weigh aggravating and mitigating circumstances, Neb.Rev.Stat. § 29-2521.03, the Nebraska Supreme Court is limited to three orders, none of which allow resentencing through reweighing by the court: Death penalty cases; Supreme Court; orders. In all cases when the death penalty has been imposed by the district court, the Supreme Court shall, after consideration of the appeal, order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence. Neb.Rev.Stat. § 29-2528 (Reissue 1989) (emphasis added). On April 24, 1981, the district court sentencing panel issued an order on sentencing procedure. (Filing 71, at 374 (Journal Entry of 4/24/81).) On May 28,1981, the panel held a hearing, received evidence, considered a presentence report, and heard argument. (Id. (Journal Entry of 5/28/81).) The panel issued a written opinion on September 11, 1981. (Id. (Order of Sentence & Commitment at 309-29).) With regard to the killing of Lamm, the district court sentencing panel found that no statutory mitigating circumstances existed as to her death, and three of the eight statutory aggravating circumstances existed: (1) the murder was committed in an apparent effort to conceal the commission of a crime or to conceal the identity of the perpetrator, Neb. Rev.Stat. § 29-2523(l)(b) (Reissue 1989); (2) the murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence, Neb.Rev.Stat. § 29 — 2523(l)(d); and (3) at the time the murder was committed, the offender also committed another murder, Neb.Rev.Stat. § 29 — 2523(l)(e) (Reissue 1989). After considering nonstatutory mitigating evidence, the sentencing panel sentenced Reeves to death for killing Lamm. The sentencing panel reached similar, but not identical, conclusions with regard to the death of Mesner. The only difference between the two findings was that the panel did not find that Reeves killed Mesner in an effort to conceal the commission of a crime or to conceal his identity. Neb.Rev.Stat. § 29-2523(1)(b) (Reissue 1989). The panel found that the murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence, Neb.Rev.Stat. § 29-2523(1)(d), and at the time the murder was committed, the offender also committed another murder, Neb.Rev.Stat. § 29-2523(1)(e) (Reissue 1989). Despite the fact that Nebraska law clearly provided a mitigating circumstance when the perpetrator suffered diminished capacity due to intoxication, Neb.Rev.Stat. § 29-2523(2)(g) (Reissue 1989), and despite the fact that the evidence overwhelmingly supported the existence of that mitigating factor, the sentencing panel denied Reeves the benefit of this mitigating circumstance. 3. On January 20, 1984, the Nebraska Supreme Court affirmed Reeves’ conviction and death sentences on direct appeal. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984) [hereinafter Reeves I], cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 372 (1984). However, the Reeves I court found that the sentencing panel had erred in two ways: (1) With regard to the Lamm murder, since there was no sign of defensive cuts on Lamm’s body, death resulted swiftly and since there was no indication of sexual assault, the court did not believe Lamm’s murder was especially heinous, atrocious, cruel, or manifested exceptional depravity. Id., 216 Neb. at 227-28, 344 N.W.2d at 447 (applying Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989)). (2) Evidence of Reeves’ drug and alcohol use in the hours preceding both murders established a mitigating circumstance — i.e., his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the law was impaired. Id., 216 Neb. at 229, 344 N.W.2d at 448 (analyzing Neb. Rev.Stat. § 29-2523(2)(g) (Reissue 1989)). The Reeves I court concluded there were two aggravating circumstances and one mitigating circumstance in each death. Id., 216 Neb. at 229-30, 344 N.W.2d at 448. The court held: (1) In the Mesner'killing, the aggravating circumstances found in sections 29-2523(l)(d) & (e) existed (crime was especially heinous, etc., and offender committed another murder), and the mitigating circumstance found in section 29-2523(2)(g) (diminished capacity) existed. Id. (2) In the Lamm killing, the aggravating circumstances found in sections 29-2523(l)(b) & (e) existed (murder committed to conceal a crime and offender committed another murder), and the mitigating circumstance found in section 29-2523(2)(g) (diminished capacity) existed. Id. Without explaining whether the errors committed by the sentencing panel were harmless beyond a reasonable doubt or whether the court was conducting some other type of analysis such as appellate resentencing, the Nebraska Supreme Court affirmed Reeves’ death sentences. Id., 216 Neb. at 229-31, 344 N.W.2d at 448-49. As noted above, the United States Supreme Court denied certiorari as to Reeves I. Reeves then commenced a state postconviction action. The state district court denied the motion, and Reeves appealed. On March 16, 1990, the Nebraska Supreme Court again affirmed. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990) [hereinafter Reeves II ], cert. granted, judgment vacated, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990). Reeves sought review of the Nebraska Supreme Court’s decision in Reeves II in the United States Supreme Court. On November 13, 1990, the United States Supreme Court granted the petition for writ of certiorari, vacated the judgment of the Nebraska court, and “remanded to the Supreme Court of Nebraska for further consideration in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).” Reeves v. Nebraska, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990). B. On December 4, 1990, the Nebraska Supreme Court set oral argument on the remand for January 10, 1991, and directed the parties to file simultaneous briefs on December 31, 1990. (Filing 94, at 2.) Upon a motion by Reeves’ counsel, (id. at 3), the brief date was later extended to January 31, 1991. (Id. at 28-29.) Oral argument was continued until February 5, 1991. (Id. at 30, 32.) Reeves filed three motions on January 31, 1991, requesting: (1) advance notice if the Nebraska Supreme Court intended to engage in resentencing on appeal, together with a statement of the issues the court deemed relevant to reconsideration of sentencing matters, (id. at 19); (2) an evidentiary hearing “at which time the Appellant can offer such evidence as he may have relevant and material to his resentencing, and upon such proper and adequate notice as would permit the Appellant and his counsel to adequately prepare for said hearing,” (id. at 22); and (3) an order pursuant to Neb.Rev.Stat. § 29-2521 setting forth “a general order of procedure,” (id. at 24). The Nebraska Supreme’ Court denied all three of Reeves’ motions without explanation on February 1, 1991. (Id. at 30, 32.) Reeves’ counsel also requested additional time for oral argument, suggesting that counsel needed at least 20 minutes of oral argument, (id. at 16), and the parties were given 20 minutes for oral argument per side. (Id. at 30, 33.) Oral argument was conducted on February 5,1991. (Id. at 32.) No transcript of the oral argument before the Nebraska Supreme Court exists. (Fifing 74.) On November 8, 1991, the Nebraska Supreme Court issued its opinion in State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991) [hereinafter Reeves III], cert. denied, - U.S. -, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992). The opinion of the Nebraska Supreme Court may be fairly summarized as follows: 1. The court first stated that it had three options under Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), given the fact that “there has been an error concerning the trial court’s finding of aggravating and/or mitigating circumstances”: (a) re-examine and reweigh the evidence itself, (b) conduct harmless-error analysis, or (c) remand for a new sentencing hearing. Reeves III, 239 Neb. at 423, 476 N.W.2d at 834. 2. The court next stated its understanding of Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), which was that appellate resentencing was only appropriate when such resentencing was “done independently” by the appellate court. Reeves III, 239 Neb. at 423-24, 476 N.W.2d at 834-35. 3. The court then examined what it had done in other death penalty cases subsequent to Clemons: a. Without citing Clemons, the court affirmed the sentencing panel in a previous case, but also reweighed after giving a limiting construction to an aggravating circumstance, which decision was based upon “our own review of the record, as well as the conclusions of the three-judge panel,” Reeves III, 239 Neb. at 425, 476 N.W.2d at 835 (discussing Statv. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990) ). b. In another case, the court “summarily adopted the reweighing rule” mentioned in Clemons, remarking that in the process the court “relied on the findings of the sentencing panel in reweighing the aggravating and mitigating circumstances when affirming” the conviction. Reeves III, 239 Neb. at 425-26, 476 N.W.2d at 835 (discussing State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991) ). 4. The court next proceeded to explicitly adopt for the first time what it understood the “rule in Clemons” to be, and then applied that rule to Reeves: a. The rule was that when, as in the case of Reeves, an aggravating circumstance relied upon by the sentencing panel is invalidated by the appellate court and a mitigating circumstance found not to exist by the sentencing panel is found to exist by the appellate court, resentencing by the district court sentencing panel is unnecessary, provided the Nebraska Supreme Court found that the error was harmless beyond a reasonable doubt, or if the error was not harmless beyond a reasonable doubt, that the Nebraska Supreme Court, after engaging in de novo examination of the sentencing record and analysis of the mitigating and aggravating circumstances, independently concluded that the death penalty was nevertheless justified. Reeves III, 239 Neb. at 426-27, 476 N.W.2d at 836. b. The court stated: We apply the rule in Clemons and independently consider the circumstances of Reeves’ case, rather than remand for a new sentencing hearing. We henceforth require our review under Clemons to include an independent examination of the trial record, the presentence investigation, and the findings of the sentencing panel in order to determine the existence or nonexistence of aggravating and mitigating circumstances, as well as reweighing of all the factors. See Parker, supra. We find this to be the most effective way in which to ensure individualized and fair determination of the propriety of the death sentence in each defendant’s case. Id., 239 Neb. at 427, 476 N.W.2d at 836 (emphasis added). 5. Citing only Clemons v. Mississippi and Parker v. Dugger, the court relied exclusively upon federal law, not state law, for the authority to adopt and implement what it understood to be the “Clemons rule,” stating that: when an appellate court invalidates one or more of the aggravating circumstances, or finds as a matter of law that any mitigating circumstance exists not considered by the sentencing panel in its balancing, the appellate court may, cow sistent 'with the U.S. Constitution, reweigh the remaining circumstances or conduct a harmless error analysis. Reeves III, 239 Neb. at 426-27, 476 N.W.2d at 836 (emphasis added). 6. The court then proceeded to conduct “harmless error” analysis and concluded that the sentencing panel’s failure “to consider Reeves’ intoxication as a mitigating factor,” which the court had found to exist in Reeves I, was not harmless beyond a reasonable doubt. Reeves III, 239 Neb. at 427-28, 476 N.W.2d at 836-37. 7. The court next proceeded “to independently reweigh all the aggravating and mitigating circumstances to determine if the death penalty was an appropriate sentence in this case.” Reeves III, 239 Neb. at 428, 476 N.W.2d at 837. 8. The court found: a. The record established two statutory aggravating circumstances and one statutory mitigating circumstance in Mesner’s death (the murder was “especially heinous,” etc., Neb.Rev.Stat. § 29-2523(l)(d) (first prong), because of the great pain the victim suffered and because the murder was committed during the process of a sexual assault; because the murder was committed during the course of another killing (Lamm’s), id. § 29-2523(l)(e); and because at the time of the offense, the defendant’s capacity to appreciate the wrongfulness of his conduct or conform his conduct to the law was impaired by drug and alcohol use, id. § 29-2523(2) (g)). Reeves III, 239 Neb. at 429-34, 476 N.W.2d at 838-40. b. The record established two statutory aggravating circumstances and one statutory mitigating circumstánce in Lamm’s death (the murder was committed to conceal the identity of the perpetrator, Neb.Rev.Stat. § 29-2523(l)(b); the murder was committed during the course of another murder (Mesner’s), id. § 29-2523(l)(e); and at the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his conduct or conform his conduct to the law was impaired by drug and alcohol use, id § 29-2523(2)(g)). Reeves III, 239 Neb. at 435-36, 476 N.W.2d at 840-41. c. Evidence in the record of nonstatutory mitigating factors included: (1) the defendant was a passive, nonviolent person by character and history; (2) Reeves was remorseful for the killings; and (3) according to “several” psychiatrists and psychologists, Reeves had amnesia concerning most of the events of March 29, 1980. Reeves III, 239 Neb. at 436, 476 N.W.2d at 841. 9. The court ruled that Reeves’ death sentences remained appropriate, stating in its “Conclusion” the following: We have balanced the aggravating and mitigating factors anew and have determined that the aggravating circumstances outweigh any statutory or non-statutory mitigating circumstances in this case. Reeves’ murders of Mesner and Lamm were senseless and brutal, made more so by the fact that he was a relative and friend of Mesner’s. The fact that he stabbed to death two women and sexually assaulted or attempted to sexually assault one of them for no apparent reason is not mitigated by his intoxication on the night of the murders. Reeves was found to be sane at the time of the murders. His impairment by drug and alcohol use did not diminish his capacity to intentionally locate and break into Mesner’s house, sexually assault or attempt to sexually assault her, stab her, and then stab her houseguest to death. We do not consider Reeves’ remorse, amnesia, usual nonviolent nature, or intoxication sufficient to excuse him from the death penalty. Sentences of death remain the appropriate penalties for Reeves. Reeves III, 239 Neb. at 436-37, 476 N.W.2d at 841. II. I turn now to the first objections filed, those of Respondent (Filing 114). Respondent objects to Judge Piester’s finding and recommendation regarding claims 31 and 32. Essentially, Judge Piester found that the Nebraska Supreme Court violated Petitioner’s constitutional right to due process of law, entitling Petitioner to resentencing, because (a) on remand from the United States Supreme Court, the state’s highest court sentenced Petitioner in a manner not prescribed by state statute (claim 31); and (b) on remand from the United States Supreme Court, the state’s highest court acted as an unreviewable sentencing panel when sentencing Petitioner (claim 32). (Filing 111, at 52-61.) I agree. Judge Piester’s opinion was predicated primarily upon Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir.), cert. denied, - U.S. -, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). Affirming the district court, the court of appeals held in Rust that where the state district court sentencing panel was not aware of the correct burden of proof regarding aggravating and mitigating factors in a death penalty case, the Nebraska Supreme Court could not reweigh the evidence and impose the death sentence consistent with the Due Process Clause. The court specifically found that the petitioner had a state “statutory right to: (1) have his trial judge or a three-judge panel including his trial judge ... sentence him ...; and (2) have the determination of that sentencing panel reviewed in the Nebraska Supreme Court.” Id. Accordingly, when “Nebraska, without due process, deprived Rust of these [state-created] rights, it violated rights guaranteed him under the United States Constitution.” Id. The Rust v. Hopkins opinion was based upon Hicks v. Oklahoma, 447 U.S. 343, 345-47, 100 S.Ct. 2227, 2229-30, 65 L.Ed.2d 175 (1980). Rust v. Hopkins, 984 F.2d at 1493. In Hicks, the Supreme Court held that despite the fact that the Oklahoma Court of Criminal Appeals had the statutory power to revise judgments on appeal, the criminal appeals court deprived the petitioner of his state-created liberty interest in being sentenced by a jury, thereby violating the petitioner’s federal constitutional rights under the Fourteenth Amendment’s Due Process Clause. This violation took place when the state appellate court affirmed the petitioner’s jury-imposed sentence although the sentence was based upon invalid provisions of the habitual offender law. In that case, the state appellate court believed the sentence was within the range of punishment that could have been imposed in any event and, thus, there was no reason to remand for sentencing. But the Supreme Court concluded that the state-created liberty interest in jury sentencing “is one that the' Fourteenth Amendment preserves against arbitrary deprivation by the State.” Id. at 346, 100 S.Ct. at 2229. Accordingly, the Court believed that the jury-sentencing entitlement could not be taken from the petitioner on the conjecture that the jury might have imposed an equally harsh sentence even absent the invalid statute. Id. I turn next to Respondent’s objection to Judge Piester’s ruling on these claims. In essence, Respondent makes three arguments: (1) Rust v. Hopkins was improperly decided; (2) the portion of Rust v. Hopkins that Judge Piester relied upon was dicta; and (3) Rust v. Hopkins is distinguishable. I shall consider each of these three arguments separately. A. Respondent first argues that Clemons, when read with Parker v. Dugger, was properly construed by the Nebraska Supreme Court in Reeves III; Rust v. Hopkins was therefore wrongly decided; and, accordingly, I should not follow it. I disagree with this argument for two reasons: (1) the Nebraska Supreme Court wrongly read Clemons (and its progeny) to mean that if federal law allowed appellate resentencing, state law also allowed appellate resentencing; and (2) even if Rust v. Hopkins was wrongly decided, a proposition with which I vigorously disagree, I am nevertheless bound by that decision. 1. The Nebraska Supreme Court assumed that if federal law allowed appellate reweighing (resentencing), state law also allowed appellate resentencing. When the Nebraska Supreme court made this assumption, it created a state procedure that had not been authorized by the Nebraska Legislature. Even more disturbing, the Reeves III court created and implemented for the first time a sentencing procedure that directly conflicted with the provisions of Nebraska law and arbitrarily deprived Reeves of two important state-created rights: (a) the right to have a sentencing panel including his trial judge make the initial determination of the appropriateness of the death penalty by properly applying aggravating and mitigating factors and thereafter impose the death sentence, and (b) the right to have the decision of the sentencing panel “reviewed” but not supplanted by appellate resentencing. Rust v. Hopkins, 984 F.2d at 1493 (“While created by state law, these are not ‘procedural right[s] of exclusively state concern,’ they are liberty interests protected by the Fourteenth Amendment.” See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980).”). As Judge Piester pointed out, (Filing 111, at 57); as the Supreme Court made clear in Clemons, 494 U.S. at 747, 110 S.Ct. at 1447-48; and as the United States Court of Appeals for the Eighth Circuit specifically stated in Rust v. Hopkins, 984 F.2d at 1494, while Clemons does allow appellate resentencing under federal law in various circumstances, such a procedure may take place only if state law allows this novel undertaking as well. If, on the other hand, state law does not allow appellate reweighing, and instead provides a distinct two-tier sentencing procedure, the appellate court cannot, consistent with the Due Process Clause of the Fourteenth Amendment, deny the petitioner his state rights to a two-tier sentencing proceeding if the error is not harmless. Rust v. Hopkins, 984 F.2d at 1493. Since the error in this case was obviously not harmless beyond a reasonable doubt, it is clear that the Nebraska Supreme Court denied Reeves his due process rights when it resenteneed him on appeal, thereby depriving him of at least two very significant state-created liberty interests. That state law did not contemplate, and in fact prohibited, what the Nebraska Supreme Court did in Reeves III is made clear in three ways: (1) by a plain reading of the Nebraska statutes; (2) by a recognition that the opinion in Reeves III made no mention of the court’s authority under state law to re-sentence; and (3) by an examination of the Nebraska Supreme Court’s prior and subsequent decisions in somewhat similar cases where the court also failed to articulate a state law basis for appellate resentencing. I turn to those points next. a. Nebraska statutes clearly create a two-tier sentencing process. Moreover, the Nebraska statutes differentiate the roles to be performed by the state district court sentencing panel and the Nebraska Supreme Court. And, most importantly, the Nebraska statutes simply do not give the Nebraska Supreme Court the authority to resentence once it has found that the sentencing panel engaged in harmful error in its weighing of aggravating and mitigating circumstances. Rather, state law makes clear that it is the sentencing panel that must “sentence,” not the appellate court, and when Petitioner was deprived of this state-created right in Reeves III, his federal due process rights were violated. First, the Nebraska statutes go to great lengths to set out how the sentencing hearing will be conducted by the district court sentencing panel, even requiring the sentencing panel to “set forth the general order of procedure at the outset of the sentence determination proceeding.” Neb.Rev.Stat. § 29-2521 (Reissue 1989). After such proceedings have been completed, the sentencing panel is required to issue a written determination, including findings of fact, “based upon the records of the trial and the sentencing proceeding....” Neb.Rev.Stat. § 29-2522 (Reissue 1989). There is no similar provision in the Nebraska statutes pertaining to the Nebraska Supreme Court and, hence, abso-. lutely no reason to think that the Nebraska Legislature authorized or intended to authorize the Nebraska Supreme Court to perform the same function as the sentencing panel. Second, Nebraska statutes provide only two remedies where the Nebraska Supreme Court disagrees with the sentencing panel on aggravating and mitigating circumstances: (a) the Nebraska Supreme Court may “reduce” the sentence, Neb.Rev.Stat. § 29-2521.03 (Reissue 1989); or (b) it may remand for a “new trial” (sentencing proceeding). Neb.Rev.Stat. § 29-2528 (Reissue 1989). If the Nebraska Supreme Court disagrees with the sentencing panel regarding aggravating and mitigating circumstances, “[t]he Supreme Court may reduce any sentence which it finds not to be consistent with sections ... 29-2522 [which requires the sentencing panel to, among other things, weigh the statutory aggravating and mitigating circumstances]____” Neb.Rev.Stat. § 29-2521.03 (emphasis added). If the Nebraska Supreme Court chooses not to reduce the' sentence pursuant to Neb. Rev.Stat. § 29-2521.03 under such circumstances, there is no authorization in the Nebraska statutes for the court to “reweigh” the aggravating and mitigating circumstances for purposes of resentencing. Indeed, aside from the ability to “reduce” a death penalty sentence because it does not comply with the Nebraska statute that requires the district court sentencing panel to weigh aggravating and mitigating circumstances, Neb.Rev.Stat. § 29-2521.03, the Nebraska Supreme Court is limited to three orders, none of which allow resentencing through reweighing by the Nebraska Supreme Court: Death penalty cases; Supreme Court; orders. In all cases when the death penalty has been imposed by the district court, the Supreme Court shall, after consideration of the appeal, order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence. Neb.Rev.Stat. § 29-2528 (emphasis added). Since the Nebraska Legislature went to the trouble to be quite explicit about the remedies given the Nebraska Supreme Court in the event of nonharmless error regarding aggravating/mitigating circumstances (reduction of sentence or remand for a new hearing), the Nebraska statutes cannot properly be construed to provide a remedy that is not explicitly mentioned in those statutes. Third, the Nebraska statutes give the “weighing” function only to the district court sentencing panel. Neb.Rev.Stat. § 29-2522. In contrast, the statutes direct the Nebraska Supreme Court to “review and analyze” the actions of the sentencing panel. Neb .Rev. Stat. §§ 29-2521.01(5) & 29-2521.02 (Reissue 1989). The only place in the Nebraska statutes where any court is directed by the Nebraska Legislature to “weigh” aggravating and mitigating circumstances is Neb.Rev.Stat. § 29-2522, where “the judge or judges ” are directed to “fix the sentence at either death or life imprisonment” after determining, among other things, “[wjhether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances____” Id. (emphasis added). In this regard, I observe that the phrase “judge or judges” as used in the foregoing statute can only mean the state district court sentencing panel which must, pursuant to Neb.Rev.Stat. § 29-2520 (Reissue 1989), consist of the trial judge or the trial judge plus two other judges (or in the case of disability or disqualification of the trial judge, three other state district judges). The Nebraska statutes consistently use the words “Supreme Court” when referring to the Nebraska Supreme Court. See, e.g., Neb.Rev.Stat. §§ 29-2521.01(5), 29-2521.02, 29-2521.03, 29-2521.04 (Reissue 1989). Thus, the difference in the statutory language, i.e., “judge or judges” versus “Supreme Court,” makes it clear that the words “judge or judges” in section 29-2522 refer to the sentencing panel and not the Nebraska Supreme Court. On the other hand, when the Nebraska Legislature defined the task of the Nebraska Supreme Court regarding aggravating and mitigating circumstances, the legislature limited the function of that court. The Nebraska Legislature did not direct the Nebraska Supreme Court to “weigh” or “reweigh” aggravating and mitigating circumstances; rather, the legislature directed the court to “review and analyze,” among other things, “the facts including mitigating and aggravating circumstances----” Neb.Rev.Stat. § 29-2521.02. See also Neb.Rev.Stat. § 29-2521.01(5). Therefore, the allocation of the “weighing” function to the “judge or judges” and the “review-and-analysis” function to the Nebraska Supreme Court is plainly inconsistent with the concept of appellate resentencing announced in Reeves III. Finally, the only place where the Nebraska Legislature has authorized any court to impose a death sentence is in Neb.Rev.Stat. § 29-2520. That statute makes it clear that only a district court may impose the death penalty: “Whenever any person is found guilty of [first-degree murder], the district court shall within seven days fix a date for hearing on determination of the sentence to be imposed. Such determination shall be made by [the trial judge or a panel of judges, one of whom must be the trial judge (except in the case of disability or disqualification) ].” Id. (emphasis added). In summary, the Nebraska statutes plainly do not permit appellate resentencing when there is nonharmless error regarding aggravating/mitigating circumstances because (1) the Nebraska statutes provide a very specific procedure for sentencing before the sentencing panel, but no such procedure is provided for the appellate court; (2) the Nebraska statues explicitly provide that the Nebraska Supreme Court’s remedial powers in the event of nonharmless error regarding aggravating/mitigating circumstances are limited to “reduction” of sentence or to ordering a new sentencing hearing; (3) the “weighing” function is explicitly given to the state district court sentencing panel, and the “review-and-analysis” function is allocated to the Nebraska Supreme Court; and (4) the only court authorized to impose a death sentence is the district court, not the Nebraska Supreme Court. b. The second reason I am persuaded that Nebraska law does not allow appellate resentencing is that Reeves III is silent on the matter. Nowhere in Reeves III does the Nebraska Supreme Court explicitly confront the question of whether Nebraska law allows appellate resentencing. Nowhere does the Nebraska Supreme Court explain under what state grant of authority the court believed itself empowered to engage in appellate resentencing. Nowhere does the Nebraska Supreme Court explain by reference to the Nebraska death penalty laws how the court derived the power to engage in appellate resentencing, thereby depriving Reeves of his statutory entitlement to sentencing by the district court sentencing panel. The Nebraska Supreme Court simply assumed it had the power to engage in appellate resentencing when confronted with non-harmless error regarding aggravating/mitigating circumstances. Indeed, the Reeves III opinion cited federal law alone for its assumption that the Nebraska Supreme Court has the authority to resentenee when it confronts nonharmless error regarding aggravating/mitigating circumstances. The court, citing only Clemons v. Mississippi and Parker v. Dugger, relied exclusively upon federal law, and not state law, for the authority to adopt and implement what it understood to be the “Clemons rule,” stating: when an appellate court invalidates one or more of the aggravating circumstances, or finds as a matter of law that any mitigating circumstance exists not considered by the sentencing panel in its balancing, the appellate court may, consistent with the U.S. Constitution, reweigh the remaining circumstances or conduct harmless error analysis. Reeves III, 239 Neb. at 426-27, 476 N.W.2d at 836 (emphasis added). It is true that the Reeves III opinion contains a discussion regarding prior decisions of the Nebraska Supreme Court issued subsequent to Clemons. Reeves III, 239 Neb. at 425-26, 476 N.W.2d at 835. But nowhere in that discussion does the Nebraska Supreme Court explain the source of its power under state law to engage in appellate resentencing. The opinion merely recites what the Nebraska Supreme Court did in the past, without any attempt to articulate the state law basis for such action. And, as will be seen later, the Nebraska Supreme Court decisions both before and after Reeves III fail to explain the source of this supposed power as well. c. The Nebraska Supreme Court decisions both before and after Reeves III also fail to establish the state law authority of the court to engage in appellate resentencing and thereby deprive a petitioner, such as Reeves, of the benefit of the statutory two-tier process — district court sentencing followed by independent appellate review. Reeves III cites two prior cases where the court engaged in some type of reweighing. Reeves III, 239 Neb. at 425-26, 476 N.W.2d at 835 (discussing State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990), and State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991)). However, upon examining those cases, one finds that the Nebraska Supreme Court failed to articulate the state law basis for appellate resentencing in those cases just as it failed to articulate the state law basis for appellate resentencing in Reeves III. See State v. Victor, 235 Neb. at 794-95, 457 N.W.2d at 447; State v. Otey, 236 Neb. at 926-28, 464 N.W.2d at 360-61. Indeed, aside from a citation to Victor, the only authority claimed by the Nebraska Supreme Court for appellate resentencing in State v. Otey was a citation to Clemons. Id. Subsequent to Reeves III, the Nebraska Supreme Court announced it would no longer engage in appellate resentencing as a result of the Eighth Circuit decision in Rust v. Hopkins. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993). While asserting that “we have the authority to resentence by analyzing and reweighing the aggravating and mitigating factors of the ease,” id., 243 Neb. at 681, 502 N.W.2d at 229, the Nebraska Supreme Court stated in Moore that it would no longer do so in light of Rust v. Hopkins. The court made it clear that it disagreed with Rust v. Hopkins, but also recognized that it would be a waste of judicial resources to proceed with appellate resentencing in light of the holding in Rust because “the federal court would likely reverse.” Id., 243 Neb. at 683, 502 N.W.2d at 230. The only basis for the opinion expressed in Moore that the Nebraska Supreme Court had the authority under state law to engage in appellate resentencing was a citation to Reeves III. Id., 243 Neb. at 681, 502 N.W.2d at 228-29. And, as noted earlier, the only basis for appellate resentencing in Reeves III was the Supreme Court’s opinion in Clemons. Accordingly, Moore is no more illuminating than the earlier opinions of the Nebraska Supreme Court on the state law basis for appellate resentencing. I am thus convinced that none of the opinions of the Nebraska Supreme Court have articulated a state law basis for appellate resentencing. 2. To the extent that Respondent argues I should not follow Rust v. Hopkins because it was wrongly decided, I emphatically reject that argument. Even if I assume that Rust was wrongly decided, I am nevertheless bound by the Rust decision. See, e.g., United States ex rel. Shore v. O’Leary, 833 F.2d 663, 667 (7th Cir.1987) (“One foundation block of our judicial system is the principle of stare decisis, which demands adherence to precedents---- A lower court owes deference to those above it; ordinarily it has no authority to reject a doctrine developed by a higher court.”) (citations omitted); Dronenburg v. Zech, 741 F.2d 1388, 1396 n. 5 (D.C.Cir.1984) (Bork, J.); Hillhouse v. Harris, 547 F.Supp. 88, 92-93 (W.D.Ark.1982) (R. Arnold, J., then United States Circuit Judge, now Chief United States Circuit Judge, sitting by designation) (administrative agencies, just like federal district courts, must follow the decisions of higher courts), aff'd, 715 F.2d 428 (8th Cir.1983). Simply put, except in the most extraordinary circumstances (none of which exist here), as a judge of a lower federal court, I must fairly apply precedent even if I believe it wrong. B. Respondent next argues that the language relied upon by Judge Piester in Rust v. Hopkins was dicta. I disagree. Respondent argues that because the sentencing panel in Rust was unaware of the appropriate standard of proof, and the Nebraska Supreme Court “attempted to re-evaluate the entire penalty phase record under a standard of proof different than that anticipated by all parties before the state trial court,” Rust did not present the “appellate remedy at issue here.” (Br. Supp. Objection Magistrate Judge’s Report & Recommendation at 9.) Accordingly, Respondent now argues that the language in Rust relied upon by Judge Piester was dicta since the Eighth Circuit could have decided the issue in Rust only on the question of the adequacy of the burden-of-proof issue. I am not persuaded by this argument because (1) Respondent raised the issue on appeal as a reason to reverse the district court and, therefore, the issue was necessarily resolved by the court of appeals; and (2) the issue of appellate sentencing was separately decided by the district court and, therefore, the issue was necessarily resolved by the court of appeals. First, it was Respondent, on appeal in Rust, who argued the applicability of Clemons, asserting that the decision of the sentencing panel would have been the same, thus obviating the need for remand to the panel, and that the Nebraska Supreme Court had the right to “cure” the problem by reweighing or harmless-error analysis: The warden argues that the Nebraska Supreme Court simply cured any uncertainty over the standard of proof applied in Rust’s case by means of a reweighing or a harmless error analysis as permitted under Clemons v. Mississippi.... Clemons is inapplicable and we affirm the district court. The second facet of the constitutional violation here is the deprivation of any meaningful appellate review____ The Nebraska Supreme Court did not merely “review” the determinations of the sentencing panel, it effectively resentenced Rust under a standard it had created that very same day____ Thus, the deprivation of meaningful appellate review is an independent violation of Rust’s constitutional rights____ Contrary to the warden’s arguments, we believe that Clemons does not apply here. Therefore, the Clemons petitioner had no state law created entitlement, and furthermore, state law specifically authorized the procedure employed by the appellate court. In contrast, Rust has such an entitlement. ... Rust v. Hopkins, 984 F.2d at 1492-94. As a consequence, the court of appeals in Rust was compelled to reach the “appellate sentencing” issue because of the position taken by Respondent that the sentencing panel error did not matter and was cured in the Nebraska Supreme Court by, among other things, appellate resentencing. Second, apart from the position taken by Respondent on appeal, it was necessary to reach the appellate sentencing issue because of the decision of the federal district court below. As the court of appeals recognized, this issue was squarely and separately decided by the district court: The second issue is whether the proceedings in the Nebraska Supreme Court were essentially an unreviewable resentencing in violation of Rust’s constitutional rights____ The district court concluded that ... Rust was deprived of his state statutory right ... to have the Nebraska Supreme Court review that sentence. In . effect, the Nebraska Supreme Court acted as an unreviewable sentencing panel when it made its findings that the aggravating factors had been proven beyond a reasonable doubt. Id. at 1492. The court of appeals could not simply ignore the appellate sentencing issue. The issue was separately decided by the district court and constituted independent grounds for issuance of the writ; therefore, the issue was necessarily resolved by the court of appeals. C. Finally, Respondent argues that Rust v. Hopkins may be distinguished from this ease. In so arguing, Respondent makes two subsidiary arguments. First, Respondent argues that language in one part of Rust actually supports the opinion of the Nebraska Supreme Court in Reeves III. Second, Respondent argues that what the Rust court was really concerned about was the standard-of-proof issue at the sentencing panel level, and this distinguishes Rust. Although I am not persuaded, I shall turn to those arguments now. 1. It is true, as Respondent points out, that in Rust v. Hopkins the Eighth Circuit Court of Appeals recognized that: an appellate court is fully competent to “cure” some sentencing deficiencies in capital cases. However, we think such appellate remedies are appropriate when the initial sentencing was tainted by relatively minor errors (such as the improper consideration of an invalid aggravating circumstance). We do not believe that Clemons or any other decision on this issue supports the proposition that an appellate court can provide an adequate “cure” when the entire first tier of the sentencing process was invalid. Id. at 1493. However, I fail to understand how the above-quoted passage either helps Respondent or distinguishes this case from Rust v. Hopkins. While this ease does not involve the burden-of-proof issue present in Rust, it is nevertheless true that the error committed by the sentencing panel in this case in not properly considering the overwhelming evidence of diminished capacity was harmful error, as explicitly found by the Nebraska Supreme Court in Reeves III. Thus, just as in Rust, the “entire first tier of the sentencing process was invalid” in this case. Id. Moreover, the quoted passage from Rust simply states what I observed earlier, i.e., that appellate resentencing may be authorized consistent with the Constitution so long as such appellate resentencing does not deprive a petitioner of a state-created liberty interest. In this ease, however, Reeves was denied two state-created liberty interests without due process of law in violation of the Fourteenth Amendment: (1) the state-created entitlement to be sentenced by a sentencing panel that does not commit harmful error; and (2) the state-created right to have that sentenced reviewed, not supplanted, by the Nebraska Supreme Court. 2. Respondent also argues that the Rust court was concerned that the “improper standard of proof infected all of the sentencing panel’s findings.” Id. at 1495. This argument, while true, presents a distinction without a meaningful difference. As I observed earlier, the entire first tier of the sentencing process in this case was tainted, just as it was in Rust. The sentencing panel decision in this case was infected not by the burden-of-proof error, but by the panel’s crucial error, found presumptively harmful by the Supreme Court of Nebraska, in failing to properly grant Reeves a mitigating circumstance by reason of reduced capacity and then failing to weigh that mitigating circumstance against aggravating factors. Such error goes to the very heart of the “weighing” process that is integral to constitutional sentencing and is designed to provide the individualized sentencing required by numerous decisions of the Supreme Court. Moreover, in the Lamm killing, the sentencing panel wrongfully applied an aggravating circumstance. Even granting Respondent the point of his argument — that the burden-of-proof issue was not present in this case — such a distinction hardly differentiates this case from Rust in a meaningful manner. Significant error (no matter how characterized) occurred before the sentencing panel, and the Nebraska Supreme Court acted as an unreviewable sentencing panel by resentencing Reeves after finding that such sentencing panel error was not harmless beyond a reasonable doubt. This resentencing clearly violated state law that granted Reeves a proper sentencing proceeding before the district court and review, not resentencing, before the Nebraska Supreme Court. Thus, precisely the same situation is presented in this case as was presented in Rust, even though it is true that the burden-of-proof issue is not involved in this case. D. In summary, I find and conclude the following: 1. That the Nebraska Supreme Court violated Petitioner’s constitutional right to due process of law, entitling Petitioner to resentencing, because (a) on remand from the United States Supreme Court, the state’s highest court sentenced Petitioner in a manner not prescribed by state statute (claim 31); and (b) on remand from the United States Supreme Court, the state’s highest court acted as an unreviewable sentencing panel in violation of state law when sentencing Petitioner (claim 32). (Filing 111, at 52-61). 2. That Nebraska law did not contemplate, and in fact prohibited, what the Nebraska Supreme Court did in Reeves III is evident (a) by a plain reading of the Nebraska statutes; (b) by a recognition that the opinion in Reeves III made no mention of the court’s authority under state law to resentence; and (c) by an examination of the Nebraska Supreme Court’s prior and subsequent decisions in somewhat similar cases where the court also failed to articulate a state-law basis for appellate resentencing. 3. That as Judge Piester pointed out, (Filing 111, at 57); as the Supreme Court made clear in Clemons, 494 U.S. at 747, 110 S.Ct. at 1447-48; and as the United States Court of Appeals for the Eighth Circuit specifically stated in Rust v. Hopkins, 984 F.2d at 1494, while Clemons does allow appellate resentencing under federal law in various circumstances, such a procedure may take place only if state law allows this novel undertaking as well. 4. That if, on the other hand, state law does not allow appellate reweighing and instead provides a distinct two-tier sentencing procedure, the appellate court cannot, consistent with the Due Process Clause of the Fourteenth Amendment, arbitrarily deny the petitioner his state rights to a two-tier sentencing proceeding if the error is not harmless. Rust v. Hopkins, 984 F.2d at 1493. 5. That since the error in this case was obviously not harmless beyond a reasonable doubt, it is clear that the Nebraska Supreme Court arbitrarily denied Reeves his due process rights when it resentenced him on appeal in violation of state law, thereby depriving him of at least two very significant state-created liberty interests. 6. That (a) the decision in Rust v. Hopkins was not wrongly decided; (b) even if it was wrongly decided, this court is bound to follow it; (c) the pertinent language of the decision is not dicta; and (d) the case is not fairly distinguishable from this one. III. I turn next to the objections to Judge Piester’s report and recommendation raised by Petitioner (Filing 116). After de novo review, I find none of Petitioner’s objections persuasive. I shall briefly address the primary objections asserted in Petitioner’s brief, although I have reviewed, and found wanting, the remainder of Petitioner’s arguments. A. Petitioner argues that Judge Piester erred when he found that claim 20(a) and claim 21 were without merit. (Filing 111, at 37-39.) These claims related to an alleged “burden-shifting” instruction. The jury in this case was instructed as follows regarding the intent necessary to find that a person had committed the crime of sexual assault or attempted sexual assault: INSTRUCTION NO. _9 The intent with which an act is done is a necessary element of the crimes of: (a) Sexual assault in the first degree; (b) Attempted sexual assault in the first degree; and must be established by the evidence the same as any other material element beyond a reasonable doubt. Intent is a mental process, and it therefore generally remains hidden within the mind where it is conceived. It is rarely if ever susceptible of proof by direct evidence. It may, however, be inferred from the words and acts of the defendant and circumstances surrounding his conduct. But before that intent can be inferred from such circumstantial evidence alone, it must be of such character as to exclude every reasonable conclusion except that defendant had the required intent. It is for you to determine from all the facts and circumstances in evidence whether or not the defendant committed the acts complained of and whether at such time he had the criminal intent required by Instructions Numbers 2, 5, 8, 12, 14. If you have any reason