Full opinion text
MEMORANDUM AND ORDER KOPF, District Judge. This habeas corpus case involving the death penalty is before me upon the decision of the United States Court of Appeals for the Eighth Circuit, Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.1996) [hereinafter Reeves V], reversing in part this court’s opinion in Reeves v. Hopkins, 871 F.Supp. 1182 (D.Neb. 1994) [hereinafter Reeves IV], and remanding for further proceedings. I. BACKGROUND Reeves’s case is unique. It became unusual when the United States Supreme Court vacated the postconviction judgment of the Nebraska Supreme Court. In Reeves’s prior direct appeal, as well as in a prior postconviction appeal, the state appellate court implied that a state appellate court could reimpose the death penalty even if the trial court engaged in harmful error during sentencing. The Supreme Court remanded the Reeves case to the state appellate court to explicitly determine whether state law allowed an appellate court to sentence. As a result of that remand, the Nebraska Supreme Court announced for the first time that it had the power to impose the death penalty on its own even where there was harmful error in the sentencing decision at the trial level. This appellate sentencing mechanism would be used instead of sending the case back to the lower court for resentencing. The court also announced the standard it would use and the record it would review for purposes of imposing the death penalty. At the same time the court announced its landmark ruling, it applied the ruling to Reeves. The court conducted a new examination of the record and sentenced Reeves to death. Based on Rust v. Hopkins, 984 F.2d 1486 (8th Cir.), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), and a review of Nebraska law, I concluded in Reeves TV, 871 F.Supp. at 1192-1202, that the Nebraska Supreme Court violated Reeves’s constitutional right to due process of law when it sentenced him to death, thus entitling Reeves to resentencing. I reached this conclusion for two related reasons. Id. at 1194. First, I found that Reeves was entitled to habeas relief because the Nebraska Supreme Court had misapplied federal law as providing a source of power for a state appellate court to impose the death penalty. Id. at 1194-95 (pt. IIA1), 1202 (pt. D, finding & conclusion 3) (misapplication of federal law). Moreover, I believed Reeves was entitled to relief because when it imposed the death penalty, the Nebraska Supreme Court deprived Reeves of certain state statutory rights (state-created liberty interests) regarding the manner in which death sentences must be imposed under state law. By failing to follow these state statutes, the Nebraska Supreme Court violated federal due process of law standards under the Fourteenth Amendment since the court deprived Reeves of his state-created liberty interests without authority under local law. Id. at 1194-99 (pt. IIAl(a)-(c)), 1202 (pt. D, findings & conclusions 1, 5) (deprivation of state-created liberty interests). In addition, I agreed with the recommendation of United States Magistrate Judge David L. Piester that the court should not reach certain claims. Id. at 1193 n. 11. As a result, I did not reach the question of whether Reeves had been denied notice and an opportunity to be heard before the Nebraska Supreme Court sentenced him to death in Reeves III. The majority in Reeves V found that I erred in granting the writ because “[t]he Nebraska Supreme Court is the final arbiter of Nebraska law” and by “performing an exhaustive review of Nebraska statutory law in an attempt to show the Nebraska Supreme Court the inadequacy of its interpretation of its own authority under its own law, the district court exceeded the bounds of federal court authority.” Reeves V, 76 F.3d at 1427. The Reeves V majority stated that the Nebraska Supreme Court had asserted the power to sentence. In the view of the majority, this assertion of power was a sufficient pronouncement of state law to preclude federal court review. In its opinion reversing and remanding, the Eighth Circuit Court of Appeals stated: “Because of its application of Rust, the district court did not consider all matters raised by Reeves____ [W]e return this case with instructions to consider and decide all issues raised but not addressed by the district court.” Reeves V, 76 F.3d at 1430-31. The issues raised but not addressed by this court are issues 5, 6, 26, 27, 34, 36, and 38. Reeves IV, 871 F.Supp. at 1193 n. 11. Specifically, the following issues remain to be addressed on remand: (5) Aggravating factor “(l)(d)” (Neb.Rev. Stat. § 29-2523(l)(d) “especially heinous, atrocious, cruel, or manifest exceptional depravity by ordinary standards of morality and intelligence”) is unconstitutionally vague. (6) Aggravating factor “(l)(b)” (Neb.Rev. Stat. § 29-2523(l)(b) “apparent effort to conceal the commission of a crime, or the identity of the perpetrator”) is unconstitutionally vague. (26) Presentence investigation report contained uncounseled statements Petitioner gave to a probation officer. (27) Presentence investigation report contained unreliable and inaccurate information, was racially biased, and contained hearsay and speculative statements. (34) On remand the Nebraska Supreme Court denied Petitioner notice and an opportunity to be heard. (36) On remand the Nebraska Supreme Court improperly considered evidence of “inaccurate and unreliable allegations of unadjudicated misconduct.” (38) On remand the Nebraska Supreme Court applied the incorrect standard when it applied aggravating factor “(l)(d)” with regard to the death of Janet Mesner. See Reeves IV, 871 F.Supp. at 1193 n. 11, 1212-13. I will address each of these issues, but I shall not repeat the factual and procedural history of this case except as such facts are relevant to my discussion of each issue. See Reeves IV, 871 F.Supp. at 1186-1192 (factual and procedural history of ease recited). I will also address Reeves’s motion “to keep the record open.” (Filing 144.) Ultimately, I find and conclude that the petition should be granted because claim 34 is meritorious. I also find and conclude that the other claims do not entitle Reeves to relief. With regard to the motion to keep the record open, I find and conclude that I have no jurisdiction to grant the motion because the court of appeals retained jurisdiction in Reeves V Therefore, I will deny the motion. II. DISCUSSION 1 first address issue 34 since it is the most complex of the claims and an understanding of issue 34 provides important context for a complete understanding of the remaining claims. I then turn to the remaining claims. A. Issue 34 — Notice and Hearing Reeves claims the Nebraska Supreme Court violated his federal rights when it sentenced him to death in Reeves III without “notice and an opportunity to be heard.” The sentence was pronounced after the United States Supreme Court vacated the prior Nebraska judgment and remanded the case to the Nebraska Supreme Court “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). Reeves argues that the Nebraska Supreme Court imposed the death penalty after the remand and then told him what the rules were. Reeves believes such a decision violated his federal constitutional right to due process of law. I agree. 1. “Due process” requires adequate notice and a meaningful opportunity to be heard. The Due Process Clause of the Fourteenth Amendment requires that a person subject to the death penalty be given adequate notice and a meaningful opportunity to be heard before he is sentenced to death by a state such as Nebraska. Specifically, a person who receives a death sentence must first be given notice that the death penalty may be imposed and then a fair opportunity to contest the imposition of the penalty before it is pronounced. Lankford v. Idaho, 500 U.S. 110, 126-27 & n. 22, 111 S.Ct. 1723, 1732-33 & n. 22, 114 L.Ed.2d 173 (1991) (sentencing process violated Due Process Clause of the Fourteenth Amendment because at the time of the sentencing hearing, Lankford and his counsel did not have adequate notice that the judge might sentence him to death, given the prosecutor’s failure to request the death penalty). See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (petitioner denied due process of law when death sentence imposed, at least in part, on the basis of information contained in a presentence report that he had no opportunity to deny or explain). In Lankford, the Supreme Court found a long history of precedent to support these elemental precepts. The Court described that history this way: Baldwin v. Hale, 1 Wail. 223, 233 [17 L.Ed. 531] (1864) (“Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make his defense”); In re Oliver, 333 U.S. 257, 273 [68 S.Ct. 499, 507-08, 92 L.Ed. 682] (1948) (due process requires that a person be given “reasonable notice of a charge against him, and an opportunity to be heard in his defense ... to examine the witnesses against him, to offer testimony, and to be represented by counsel”). In a variety of contexts, our cases have repeatedly emphasized the importance of giving the parties sufficient notice to enable them to identify the issues on which a decision may turn. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 [70 S.Ct. 652, 657, 94 L.Ed. 865] (1950) (notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”); Armstrong v. Manzo, 380 U.S. 545, 549-550 [85 S.Ct. 1187, 1190-91, 14 L.Ed.2d 62] (1965) (failure to notify petitioner of pendency of adoption proceedings deprived him of due process of law); Goss v. Lopez, 419 U.S. 565, 579 [95 S.Ct. 729, 738-39, 42 L.Ed.2d 725] (1975) (“students facing suspension ... must be given some kind of notice and afforded some kind of hearing”); Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 546 [105 S.Ct. 1487, 1495, 84 L.Ed.2d 494] (1985) (“The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story”). In the capital context, in which the threatened loss is so severe, the need for -notice is even more pronounced. 500 U.S. at 126 n. 22, 111 S.Ct. at 1732 n. 22 (emphasis added). As the Court cautioned in Lankford, without appropriate notice one lacks a meaningful opportunity to be heard: Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure. Without such notice, the Court is denied the benefit of the adversary process____ If notice is not given, and the adversary process is not permitted to function properly, there is an increased chance of error, and with that, the possibility of an incorrect result. Id. at 126-27, 111 S.Ct. at 1733 (footnote and citations omitted). These concepts compelled the Lank-ford court to conclude that where there was a “lack of adequate notice that the judge was contemplating the imposition of the death sentence,” there was created “an impermissible risk that the adversary process may have malfunctioned.” Id. at 127, 111 S.Ct. at 1733. This ease raises the question of whether such an “impermissible risk” was created by the manner in which the Nebraska appellate court gave (or did not give) Reeves notice and an opportunity to be heard before it pronounced his death sentence. 2. The procedural history and factual background of this case establish that the Nebraska Supreme Court first adopted its rule on appellate sentencing in Reeves III; then, without notice to Reeves, the court applied that rule to him, at the same time sentencing him to death. Until the opinion in Reeves III was released, no one could have predicted the Nebraska Supreme Court would sentence someone to death. Reeves III first articulated the appellate resentencing rule and then applied it to Reeves at the same time it imposed the death penalty and stated the rule. a. Procedural History As described in my prior opinion which is the subject of this remand, Reeves commenced a state posteonvietion action after his conviction and death sentences were affirmed on direct appeal. Reeves I, 216 Neb. 206,344 N.W.2d 433. The state district court denied the motion, and Reeves appealed. On March 16, 1990, the Nebraska Supreme Court again affirmed. Reeves II, 234 Neb. 711, 453 N.W.2d 359. Reeves sought review of the Nebraska Supreme Court’s decision in Reeves II in the United States Supreme Court. On November 13, 1990, the 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). 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 by December 31, 1990, “covering the subject of the remand.” (Filing 94, at 2; Evidentiary Hr’g Issue 34, Ex. 2.) Upon a motion by Reeves’s counsel, (Filing 94, 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; Evidentiary Hr’g Issue 34, Ex. 5); (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,” (Filing 94, at 22; Evidentiary Hr’g Issue 34, Ex. 6); and (3) an order pursuant to Neb.Rev.Stat. § 29-2521 setting forth “a general order of procedure,” (Filing 94, at 23; Evidentiary Hr’g Issue 34, Ex. 4). The Nebraska Supreme Court denied all three of Reeves’s motions without explanation on February 1, 1991. (Filing 94, at 30, 32.) Reeves’s counsel also requested additional time for oral argument, suggesting that counsel needed at least 20 minutes, {id. at 16; Evidentiary Hr’g Issue 34, Ex. 3), and the parties were given 20 minutes for oral argument per side. (Filing 94, at 30, 33.) Oral argument took place on February 5, 1991. (Id. at 32.) No transcript of the oral argument before the Nebraska Supreme Court exists. (Filing 74.) On November 8, 1991, the Nebraska Supreme Court issued its opinion in Reeves III, 239 Neb. 419, 476 N.W.2d 829. Although tedious, a very careful examination of Reeves III is required to understand Reeves’s claim 34: 1. The court first stated 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 direct appeal 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-State v. Victor, 235 Neb. 770, 457 N.W.2d at 431 (1990)). b. In a postconviction 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 (emphasis added). 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 a 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 ease. Id., 239 Neb. at 427, 476 N.W.2d at 836 (emphasis added). c. Although elliptically, the Nebraska Supreme Court admitted this was a new rule. As the Reeves III court recognized, after Clemons the Nebraska court never engaged in a completely “independent” determination of whether the death sentence was appropriate (as opposed to reliance in whole or in part upon the sentencing panel’s conclusions) where harmful error may have occurred before the sentencing panel. Reeves III, 239 Neb. at 424-27, 476 N.W.2d at 835-36 (comparing the direct appeal in Victor, where the appellate court relied on the sentencing panel’s conclusions together with an appellate review of the trial record, with the second postconviction action in Otey, where the appellate court relied exclusively on the conclusions of the sentencing panel while noting that it had reviewed the trial record in a prior direct appeal). 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: [W]hen 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 unth 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 (emphasis added). 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 circumstance 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. e. 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 the death penalty was appropriate for Reeves, stating in its “Conclusion”: 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. Without question, Reeves III explicitly announced a new rule: Id., 239 Neb. at 427, 476 N.W.2d at 836 (emphasis added). 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 a reweighing of all the factors. The new rule meant that for the first time in the history of Nebraska law a Nebraska appellate court had explicitly stated that it would independently decide de novo whether to impose the death penalty, without reliance upon the sentencing panel’s conclusions, based upon a foundation consisting of the trial record, the presentence investigation, and the findings of the sentencing panel. At the same time it announced the new rule, the Reeves III court applied the rule to Reeves, Reeves III, 239 Neb. at 428-37, 476 N.W.2d at 837-41, providing neither advance notice nor an opportunity to argue how the rule should be applied. b. Factual Background At the request of counsel, I held evidentiary hearings on February 22,1996, and March 18,1996, to allow counsel to present evidence relevant to the issue of whether the Nebraska Supreme Court denied Reeves notice and an opportunity to be heard after the remand from the United States Supreme Court described earlier. During the hearings, Petitioner’s counsel elicited testimony from Robert B. Creager, Reeves’s counsel during the proceedings before the Nebraska Supreme Court on remand from the United States Supreme Court, and Respondent’s counsel presented the testimony of Sharon Lindgren, formerly an assistant attorney general for the Nebraska Department of Justice who was Respondent’s attorney during the same proceedings. Although they had somewhat different views concerning how the Nebraska Supreme Court could or would proceed before Reeves III was argued and decided, the testimony of both lawyers confirms that no one expected the Nebraska Supreme Court to engage in de novo sentencing resulting in a new death sentence while at the same time deciding what to do in light of the remand from the United States Supreme Court. i. Testimony of Robert B. Creager Mr. Creager was admitted to the bar in Nebraska in 1977, at which time he joined a predominantly criminal law practice where he performed criminal litigation and appellate work from the outset. Since 1977, Mr. Creager has been involved in at least one “significant” criminal case per year, with an emphasis in state posteonviction law, including 12 homicide cases. Reeves’s was the first death-penalty ease in which Mr. Creager participated, but he has worked on three others since then. By the time Mr. Creager represented Reeves in the Nebraska Supreme Court on remand from the United States Supreme Court, he had argued criminal cases in the Nebraska Supreme Court at least 25 times, had acquired a fair amount of experience in state posteonviction matters, and had participated in one capital sentencing proceeding at the trial level. (Evidentiary Hr’g Issue 34, Vol. I, at 5:9-12; 6:17-24; 52:3-11; 91:8-20; 93:6-24.) Mr. Creager is on the board of directors of the Nebraska Criminal Defense Attorneys Association, has written material on state posteonviction law for the Nebraska Death Penalty Manual and a habeas corpus publication, and has lectured to state district judges on proper procedure in capital cases. (Id. at 92:20-93:5.) Mr. Creager was not Reeves’s trial counsel. He was appointed to represent Reeves as appellate counsel long after Reeves had been tried, convicted, and sentenced and after Reeves had lost his state posteonviction action at the district-court level. Creager began representing Reeves in 1988 when a member of his firm was appointed substitute counsel on Reeves’s appeal of the Lancaster County District Court’s decision denying his motion for posteonviction relief. (Id. at 5:18-6:5; 6:15-16.) After the Nebraska Supreme Court affirmed the denial of posteonviction relief in Reeves II, Mr. Creager moved for rehearing in light of recent substantive changes in the law, among them the decision of the United States Supreme Court in Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The Nebraska Supreme Court denied the motion for rehearing. (Evidentiary Hr’g Issue 34, Vol. I, at 7:9-24.) As described in the procedural history, Mr. Creager then filed a successful petition for writ of certiorari in the United States Supreme Court. The Court vacated the judgment of the Nebraska Supreme 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). In his petition for writ of certiorari, Mr. Creager raised the issue of whether the Nebraska Supreme Court, on appeal after finding sentencing error, could constitutionally affirm a sentence without finding harmless error, without engaging in a reweighing of the aggravating and mitigating circumstances, or without ordering resentencing. (Evidentiary Hr’g Issue 34, Vol. I, at 66:5-20.) At the time of the United States Supreme Court’s remand order, Mr. Creager understood the impact of Clemons on Reeves’s case to be uncertain. (Evidentiary Hr’g Issue 34, Vol. I, at 13:23-25.) My recollection [of Clemons v. Mississippi] was that based upon some of the peculiarities of Mississippi law, they decided that although it was not [constitutionally required [] that all sentencing error resulted in a new sentence ... that the states could fashion some sort of appellate resentencing ... if they were capable of doing so, to resolve the question---- [I]f you were a weighing state, ... [the court] had to say what the weight ... or the individualized sentence would be in that particular case, and ... whether they are authorized to do it[] will have to be decided on a case-by-case basis. (Id. at 13:2-18 (emphasis added).) Mr. Creager understood Nebraska to be a “unique weighing state.” (Id. at 69:19-24.) “I felt Clemons meant that the Nebraska Supreme Court can’t do what it did in Reeves in total.” (Id. at 72:14-15.) The “only thing” clear to Mr. Creager about the Clemons case was that affirming Reeves’s convictions and death sentences in the context of an appellate proceeding was not constitutionally prohibited. (Id. at 73:4-11.) Mr. Creager found the Nebraska Supreme Court’s order directing the parties to file simultaneous briefs by December 31, 1990, “covering the subject of the remand,” (Filing 94, at 2; Evidentiary Hr’g Issue 34, Ex. 2), vague and unusual for two reasons: (1) “in terms of what the Supreme Court thought Clemons meant and what we were supposed to brief ... I had no idea about”; and (2) in Mr. Creager’s relatively substantial state and federal appellate court experience, he had never been asked to submit simultaneous briefs, and in lower courts where simultaneous briefs had been required, simultaneous reply briefs were also allowed. (Evidentiary Hr’g Issue 34, Vol. I, at 15:12-16:3.) It occurred to Mr. Creager that the issue on remand might be whether the Nebraska Supreme Court could engage in harmless-error analysis or resentencing under Clemons. However, because the Nebraska statutes regarding sentencing in death-penalty cases related only to sentencing procedure to be followed in district courts, Mr. Creager filed three motions in an attempt to clarify whether the oral argument would actually be a sentencing proceeding. (Id. at 17:16-19:1.) These motions requested (1) that since sentencing error occurred when Reeves’s death sentence was imposed and the Nebraska Supreme Court was therefore required either to remand the matter to the district court or resentence Reeves itself, the court set a general order of procedure pursuant to Neb.Rev.Stat. § 29-2521 (Reissue 1989), which requires the court to set a general order of procedure at the outset of a sentence-determination proceeding relating to the death penalty, (id., Ex. 4); (2) that the Nebraska Supreme Court issue an order stating whether the court intended to engage in appellate resentencing, and if so, identifying the relevant sentencing issues, without which “Appellant and his counsel [ ] cannot adequately prepare for, brief, argue, or otherwise be heard with respect to resentencing issues,” (id., Ex. 5); and (3) that pursuant to Neb.Rev.Stat. § 29-2521, which allows presentation of evidence relevant to sentencing such as aggravating and mitigating circumstances, as well as argument for or against a death sentence, the Nebraska Supreme Court set an evidentiary hearing because “in the event [the Nebraska Supreme Court] undertakes to resentence Appellant, he should be given an opportunity to present additional evidence of mitigating circumstances together with briefs and arguments relating to the “weight’ of the various aggravating and mitigating circumstances found to exist” because the absence of such notice and hearing would violate Reeves’s due process and equal protection rights. (Id., Ex. 6.) The Nebraska Supreme Court denied all three of these motions without explanation on February 1, 1991. (Filing 94, at 30, 32.) Mr. Creager construed the court’s summary denial of his motions to mean that the court was going to remand the case to the district court and did not need to declare its intent to sentence or set a hearing and order of procedure; or that the court was going to “do nothing”; or that the court was going to act in some fashion that did not require an evidentiary hearing. (Evidentiary Hr’g Issue 34, Vol. I, at 19:17-20:2; 82:23-83:7.) Realizing at this point that the Nebraska Supreme Court was not going to clarify the nature of the upcoming remand proceeding, Mr. Creager, “in an effort to try to provide some sort of effective representation to Mr. Reeves,” contacted Assistant Attorney General Sharon Lindgren, thinking that “[m]aybe the lawyers could agree as to what was happening.” (Id. at 21:10-20.) From his conversation with Ms. Lindgren, Mr. Creager understood the state’s position to be that the Nebraska Supreme Court had previously performed a “Clemons reweighing” analysis in the decision that was eventually vacated by the United States Supreme Court. Therefore, the Nebraska Supreme Court was required only to affirm. “Their position was ... the remand really didn’t say anything other than make sure you did it right when you affirmed it [before]---[M]y state of mind at the time [was] that the Government was not really even arguing about what the appropriate sentence would be.” (Id. at 21:20-23:23.) Indeed, because Mr. Creager’s involvement in Reeves’s case was limited to issues related to evidentiary matters in the state posteonviction proceeding, the notion that he was now Reeves’s sentencing attorney and that he was engaged in some sort of sentencing process “never seriously crossed [Mr. Creager’s] mind.” (Id. at 26:25-27:23.) This conclusion was bolstered by the fact that (1) addressing such a sentencing issue via brief “did not seem appropriate to [him],” (id. at 27:19-28:1); (2) Mr. Creager was not aware of what aggravating and mitigating circumstances the Nebraska Supreme Court would consider so that he could argue their relative weight; (3) the court did not tell Mr. Creager whether it would permit submission of evidence relevant to a new proportionality review; (4) the court had not declared its intention to resentence Reeves; and (5) Reeves was not given an opportunity to be present. (Id. at 29:22-30:16.) Finally, having read Clemons and studied Nebraska’s statutory sentencing scheme relative to death-penalty cases, Mr. Creager believed that if the Nebraska Supreme Court did not find harmless error, it would be required to remand the matter to the district court for resentencing. (Id. at 28:7-23.) However, he was uncertain about what the Nebraska Supreme Court felt was at issue: [W]hen the [Nebraska] Supreme Court asks me now to discuss the issues on remand, what I didn’t know is whether they were asking me to tell them what Clemons said or whether they were asking me to tell them what they should do in light of Clemons. ... [I]t wasn’t just simply a matter of the implication of state law but the application of state law by the state Supreme Court, and I did not know and could not know how the Supreme Court was going to rule on that. If they ruled one way, none of this would have mattered. If they had simply said we remand to the district court, the discussion was over. If they went some other way into uncharted waters, I had no clue as to what Constitutional rights would be implicated____ (Id. at 72:16-25; 74:9-18.) Thus, Mr. Creager believed the purpose of oral argument to be a discussion about “whether we can do this,” i.e., resentence Reeves at the appellate level in light of Clemons and Nebraska law. (Id. at 31:2-32:15.) “I was there to talk about the substance of what to do, not the substance of what the sentence should be.” (Id. at 84:6-7.) Mr. Creager “went to that oral argument as frustrated as I have ever been in any case I have ever had.... I certainly did not like the prospect of arguing a capital case to a Supreme Court in which I had no idea what I was arguing.” (Id. at 33:23-34:6.) Thus, in yet another attempt to define the issues, one of Mr. Creager’s first statements to the Nebraska Supreme Court during oral argument concerned the difficulty of responding by brief to the “subject of the remand,” as requested by the briefing order, (filing 94, at 2; Evidentiary Hr’g Issue 34, Ex. 2), when he was unaware what the issues were. (Evidentiary Hr’g Issue 34, Vol. I, at 34:16-35:19.) This evoked what Mr. Creager perceived to be a “shocking]” response. One of the judges said, “[Y]ou caused us to be here. You know what the issues are. This was your case, you got the Supreme Court to remand it to us.” (Id. at 35:21-36:8.) In an effort to clarify that the record before the court was the postconviction record and not the record for Reeves’s direct appeal, Mr. Creager asked the court which record it was considering, prompting a second judge to ask, “[A]ren’t you being disingenuous?” (Id. at 37:1-23.) After the judge noted that the court’s rules permitted it to take notice of everything in its files related to a case, Mr. Creager asked, “[‘]Are you doing that? Are you telling me that in this case, you are taking notice of the trial record?[’] And there was no answer.” (Id. at 39:9-16.) After that, Mr. Creager’s argument focused on the reasons the Nebraska Supreme Court could not engage in resentencing. (Id. at 39:17-22.) Mr. Creager recalls commenting that “Mr. Reeves isn’t here. Shouldn’t he be here if you are going to sentence him[?]” (Id. at 37:7-8.) He also commented: [Resentencing] does not seem likely to work ... in any meaningful fashion on a case where the death sentence is more than 10 years old, where the initial direct appeal was concluded more than seven years ago, where two members of this court did not hear the direct appeal, where different counsel is involved who had not participated in the original trial ... or direct appeal, and where ... what precisely constitutes the record on this appeal [is not clear], (Id at 38:19-39:14; Ex. 101, at 3.) In addition, Mr. Creager questioned resentencing Reeves when the court had not resolved the factual questions concerning whether Reeves had a prior substantial criminal history and whether the prior convictions appearing on Reeves’s “rap sheet” were counseled. Although the court had ruled in Reeves’s postconviction action that his lawyer’s general objection to the presentence investigation report (PSR) did not constitute ineffective assistance of counsel, Mr. Creager argued that the attorney acted unreasonably in not specifically objecting to the PSR as it related to uncounseled prior convictions. [The court] answered the issue before, as I recall, by saying there was the objection ..., and then said, by the way, the burden of proof was on Mr. Reeves to prove that he didn’t have a prior substantial criminal history, which was exactly the opposite of the case law that was in effect at the time that he went up on appeal, so I ... posed the question, ... how can we resolve that question without some sort of a hearing on that because I didn’t know whether the [PSR] was in the record or not at that time. (Id. at 40:7-41:21.) Mr. Creager’s goal in making these arguments was to “persuade the Court that we need to resolve these issues before we get to the question of sentencing.” (Id. at 42:2-15.) Despite Mr. Creager’s arguments regarding the issue of resentencing, [w]hat I remember [about oral argument] is the lack of any inquiry from the Court, by question or comment or otherwise, that told me what they were doing or what they were thinking at that time. Not even a statement, [“]Mr. Creager, this is it. We have decided to resentence Mr. Reeves. You tell us what you think the sentence ought to be.[”] (Id. at 43:2-8.) To the best of my recollection, I don’t believe that either I or Sharon Lindgren from the Attorney General’s Office or any member of the Nebraska Supreme Court, individually or collectively, ever discussed by question, answer, argument, or otherwise, what an appropriate sentence for Randy Reeves would be, and what aggravating and mitigating circumstances were present in the case, so that you could argue the weight of whatever aggravating and mitigating circumstances there were. (Id. at 44:15-23.) Mr. Creager first learned that this oral argument before the Nebraska Supreme Court was actually Reeves’s sentencing hearing when he received the court’s opinion and read it. (Id. at 43:9-11.) Had Mr. Creager known he was participating in a sentencing hearing and had the Nebraska Supreme Court permitted him to engage in the usual death-penalty sentencing procedure employed at the trial level, he would have (1) moved to continue oral argument; (2) asked the court to require the prosecutor to state which aggravating circumstances were thought to be present so he could narrow the focus of inquiry; (3) raised constitutional challenges or arguments regarding the application of aggravating circumstances to preserve the record for federal review; (4) consulted the trial and sentencing records and made appropriate objections; (5) further developed the issue of Reeves’s prior criminal record and objected to the PSR; (6) offered additional mitigating evidence from Reeves and his institutional record; and (7) offered proportionality evidence. (Id. at 45:17-48:7; 82:5-7.) Mr. Creager considered the possibility that the Nebraska Supreme Court could affirm Reeves’s death sentence without further proceedings if the court took the position advanced by the state, discussed above, or if the court engaged in harmless-error analysis. (Id. at 85:2-25.) However, he “never thought for a minute that anybody would conclude that error in the aggravators and mitigators could be harmless error in [a] weighing state.” (Id. at 86:1-4.) The possibility that I would have come out of this proceeding with a new senteneing[ ] never occurred to me ... it occurred to me only that it was conceivable under Clemons that they could, but under state law, I was convinced they couldn’t____ [In my research,] I couldn’t find anything that indicated that anybody had ever asked [the Nebraska Supreme Court] what authority do you have to resentence on remand from the federal system. We are not talking about direct appeals now. We are talking about a remand from a collateral federal case, and all I could conclude was that this wasn’t a direct appeal anymore. This was not a sentencing case. This was not the appeal of a sentencing case. This was an appeal of a post-conviction case which itself had all sorts of error in it. I couldn’t find any logical way that the court could conclude that it could resentence. (Id. at 86:7-87:3.) The brief submitted by Mr. Creager in Reeves III is consistent with his testimony at the evidentiary hearing. It reflects a sincere frustration with the lack of notice. It also reflects a zealous but "respectful attempt to make clear that the Nebraska Supreme Court would be committing egregious error of constitutional proportions if it decided to sentence Reeves without adequate notice and a meaningful opportunity to be heard. In the introduction to his brief, Mr. Creager stated he was uncertain what the Nebraska Supreme Court intended to do and what issues it wanted discussed. He reminded the court that he had filed three motions in an effort to clarify the situation. He told the court that on “the chance that this Court will deny the aforegoing requests [for clarification], and proceed to a disposition without further notice to Reeves that he is to be resentenced, we will also briefly discuss capital sentencing issues ... so that such issues may be preserved for subsequent appeals, and federal habeas corpus proceedings.” (Appellant’s Br. Remand & Supp. Mots, at 10-11.) Mr. Creager begged that he “not be called upon to speculate as to what issues are presented,” and he pressed the court for advance notice of what it felt the issues were and for a delineation of the procedures the court would follow if it decided to resentence. (Id. at 10-11.) He further advised the court that if it decided to resentence, the “issues certainly cannot be adequately developed and responded to on the basis of the simultaneous exchanges of briefs, followed by a 20 minute argument 5 days later.” (Id. at 11.) Mr. Creager made it clear he was not prepared to argue sentencing issues without notice: Reeves[ ] is doubtless entitled to the effective assistance of counsel in connection with this proceeding. We point out that present counsel for Mr. Reeves[ ] took no part in the initial trial, sentencing, or the direct appeal. Present counsel took no part in the trial of the post-conviction matter. Counsel was appointed, for the first time, on post-conviction appeal, after previous counsel had submitted Appellant’s Brief. How present counsel, on remand from the U.S. Supreme Court, can suddenly be called upon to address sentencing issues is difficult to comprehend. It would be fundamentally unfair and inconsistent with the concepts of effective assistance of counsel, and due process of law, to do so at this late stage of the proceeding, especially after so many years have lapsed, and without notice that such a proceeding is taking place. If proper notice is given, counsel can respond to his ethical duties to his client, or withdraw or file other motions for additional time if he is not prepared to respond. (Id. at 23.) Mr. Creager’s brief presented six arguments: (1) Appellate resentencing was unworkable and not within the jurisdiction of the Nebraska Supreme Court, id. at 11-17; (2) The Nebraska Supreme Court lacked jurisdiction to resentence, id. at 17-18; (3) Sentencing on appeal denied Reeves his rights to meaningful review by appeal, due process of law, and effective assistance of counsel, id. at 19-25; (4) Certain peculiarities of Reeves’s case made appellate sentencing speculative or impossible, id. at 26-34; (5) Even if the court determined to resentenee, certain constitutional issues (such as the fact that the presentence investigation report contained evidence improperly obtained from Reeves) precluded resentencing, id. at 35-44; and (6) If the court determined to resentence, a sentence of death was not appropriate. Id. at 45-50. Less than five pages of Mr. Creager’s brief were devoted to whether Reeves should live or die if the court decided it could and would resentence. ii. Testimony of Sharon Lindgren At Respondent’s request, a supplementary evidentiary hearing was held on March 18, 1996, to hear testimony from Sharon Lindgren, formerly an assistant attorney general for the Nebraska Department of Justice who appeared on behalf of the State of Nebraska in Reeves II and Reeves III. (Evidentiary Hr’g Issue 34, Vol. II, at 3:lL-22; 5:16-25.) Ms. Lindgren was admitted to the bar in Nebraska in 1976, to practice before the United States Supreme Court in 1980 or 1981, and to appeal’ before the United States Court of Appeals for the Eighth Circuit one year later. (Id. at 3:8-13.) During her 12-year career with the Nebraska Department of Justice, Ms. Lindgren served as counsel of record before the Nebraska Supreme Court in approximately 47 criminal cases. (Id. at 4:9-17.) She handled her first capital case in 1979, ultimately handling between eight and ten such cases while at the Nebraska Department of Justice. (Id. at 4:23-5:4.) Ms. Lindgren testified that the notice from the United States Supreme Court that certiorari had been granted, that judgment was vacated and the case remanded to the Nebraska Supreme Court for further consideration in light of Clemons, (id. at Ex. 1), together with the Nebraska Supreme Court’s order setting oral argument and a briefing date, (id. at Ex. 2), and the Clemons decision itself provided her with adequate guidance regarding the issues then pending before the Nebraska Supreme Court on remand. (Id., Vol. II, at 8:1-6.) In her mind, the issue before the Nebraska Supreme Court was whether or not the affirmance of Reeves’s sentences in his direct appeal complied with the requirements of Clemons. (Id. at 8:7-15; Ex. 102.) Ms. Lindgren agreed that she and Mr. Creager had spoken before oral argument, and she stated she understood Mr. Creager’s argument would be that the Nebraska Supreme Court could not reweigh without having a hearing in the Supreme Court or remanding to the district court, while her argument would be that the Nebraska Supreme Court could reweigh and then “either affirm or reverse” the sentence “without further input.” (Id. at 9:18-10:9.) In her brief, Ms. Lindgren argued that the Nebraska Supreme Court had already “reweighed” in Reeves I and could therefore simply affirm; that the Nebraska Supreme Court, in its automatic review of death-penalty eases, had always reweighed aggravating and mitigating circumstances whether or not the sentencing panel erred in its findings; and that this procedure complied with the requirements of Clemons. (Id. at 10:22-11:16; Ex. 102.) Ms. Lindgren stated that in her civil and criminal experience before the Nebraska Supreme Court, she had never known the court to affirmatively frame issues for counsel in a proceeding before the court. (Id. at 10:10-18.) Like Mr. Creager, Ms. Lindgren’s brief was similar to her testimony at the evidentiary hearing. Her brief was very short, just eight pages. (Id. at Ex. 102.) Ms. Lindgren argued that the sole issue “presented to the Court” was “[wjhether or not the affirmance of the defendant’s sentences in his direct appeal [Reeves I] complied with the requirements of Clemons v. Mississippi.” (Id., Ex. 102, at 2 (book and page citation to Clemons omitted).) Ms. Lindgren concluded her brief by arguing that “the appellee respectfully requests that this court find that its affirmance of the appellant’s sentences at the time of the direct appeal [Reeves 7] conformed with the requirements of Clemons v. Mississippi, and deny the appellant’s request for relief.” (Id. at 8 (book and page citation to Clemons omitted).) iii. Affidavit of Chief Justice At the conclusion of the supplementary evidentiary hearing, Respondent attempted to offer as evidence the affidavit of the Chief Justice of the Nebraska Supreme Court, which bore the caption of this federal case. The affidavit set forth the Chief Justice’s opinion about how issues are framed in cases that have been remanded to the Nebraska Supreme Court by the United States Supreme Court. (Id., Vol. II, at 12:16-19; Ex. 103.) No prior notice of the affidavit’s existence was given Petitioner’s counsel, no prior notice was given that Respondent had contacted the Chief Justice (apparently privately) to obtain the affidavit, and no prior notice was given that the affidavit would be offered into evidence. (Id. at 12:25-15:2.) Upon objection by Reeves, the affidavit was not received in evidence because Respondent’s counsel admitted it was hearsay and he knew of no exceptions that applied. (Id. at 15:3-16.) Accordingly, I gave the affidavit no consideration. Even if I had I considered it, however, the result in this case would be no different. iv. Summary of Creager’s and Lindgren’s Perspectives Immediately Before Arguing Reeves III Neither lawyer expected the Nebraska Supreme Court to impose a new death sentence upon Reeves in Reeves III. Mr. Creager was uncertain what issues the Nebraska Supreme Court’s order required him to brief and argue, but when he appeared for argument in Reeves III, he did not believe he was appearing at what amounted to a new, and final, sentencing proceeding. Ms.. Lindgren likewise believed the matter involved only a 20-minute appellate argument about whether the direct appeal of Reeves I should be affirmed or reversed under Clemons. 3. Before Reeves III, Nebraska Law Did Not Appear to Authorize Appellate Sentencing, and Reeves III Was “Cryptic” in Asserting Authority to Resentence. It is helpful to restate what I found previously in Reeves IV regarding the power of the Nebraska Supreme Court to engage in appellate sentencing under state law. It will then be helpful to restate what the court of appeals observed in Reeves V regarding the authority of the Nebraska Supreme Court to resentence. In Reeves IV, I examined in great detail the Nebraska statutes, the opinion in Reeves III, and Nebraska Supreme Court opinions both before and after Reeves III to determine whether Reeves III could plausibly be interpreted to rest upon any known component of state law. Reeves IV, 871 F.Supp. at 1195-99. While I shall not restate the specifics in detail, I found that Reeves III cannot honestly be interpreted as resting upon any known component of Nebraska law. I came to this conclusion for three reasons. First, I found that the Nebraska statutes did not appear to allow appellate resentencing because: (1) the statutes provide a specific procedure for sentencing before state district courts, but no such procedure is provided for appellate courts; (2) the statutes explicitly provide that the Nebraska Supreme Court’s remedial powers in the event of harmful error are limited to reduction of sentence or 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 by statute to impose a death sentence is the state district court, not the Nebraska Supreme Court. Reeves IV, 871 F.Supp. at 1195-97. Second, I carefully examined the Nebraska Supreme Court’s opinion in Reeves III and found it silent on the question of whether the court had the power to impose the death penalty under state law. I specifically found that: (1) nowhere does the Nebraska Supreme Court explicitly confront the question of whether Nebraska law allows appellate resentencing; (2) nowhere does the Nebraska Supreme Court explain under what state grant of authority the court believed itself empowered to engage in appellate resentencing; and (3) nowhere does the Nebraska Supreme Court explain by reference to Nebraska’s death-penalty laws how the court derived the power to sentence Reeves to death. Reeves IV, 871 F.Supp. at 1197-98. Third, I examined the decisions of the Nebraska Supreme Court both before and after Reeves III. This examination established that Nebraska Supreme Court cases both before and after Reeves III failed to articulate any state-law basis for appellate sentencing. Reeves IV, 871 F.Supp. at 1198-99. While disagreeing with me about whether the assertion of authority to sentence in Reeves III was founded upon state or federal law, the court of appeals majority (and the dissent) did agree that Reeves III was premised on a “cryptic assertion of authority to reweigh,” Reeves V, 76 F.3d at 1429 n. 7, which brings me directly to Reeves’s present due process claim. If the Nebraska Supreme Court’s reasoning concerning its authority to sentence appears “cryptic” to learned and fair-minded federal judges like those in the majority in Reeves V, and if a careful examination of Nebraska law reveals no apparent authority for appellate sentencing under state law, as found by Reeves IV (and not disturbed by Reeves V), one has no reason to doubt that the authority to resentence and the procedures related thereto were similarly unclear to Reeves and his lawyer when Reeves’s appellate appointed counsel addressed the Nebraska Supreme Court. Reeves’s point now is that the Nebraska Supreme Court did not inform him of the “cryptic” basis that would be used to take his life until it sentenced him to death. This argument is buttressed by both Reeves IV and Reeves V. 4. The Nebraska Supreme Court Denied Reeves Due Process When It Sentenced Him to Death Because Reeves Had Neither Adequate Notice Nor a Meaningful Opportunity to be Heard and Was Prejudiced Thereby. Reeves lacked any realistic notice that as a result of his lawyer’s brief (20 minutes) argument the Nebraska Supreme Court intended to change the law, apply the changed law to him, and sentence him to death at the same time. Moreover, because Reeves lacked adequate notice, he was not given a meaningful opportunity to plead for his life in his brief or argument. Reeves was prejudiced by the lack of notice and the lack of a meaningful opportunity to be heard. I reached these related findings of fact and conclusions of law for the following reasons. a. No Notice I find and conclude that Reeves was not provided with adequate notice that he would be sentenced to death simultaneously with the Nebraska Supreme Court’s determination of whether it had the power to engage in appellate sentencing. I believe this to be the case for five reasons. First, the Nebraska Supreme Court’s written notice about what would be considered was extremely vague. The court set oral argument on the remand and directed the parties to file simultaneous briefs by December 31, 1990, “covering the subject of the remand.” (Filing 94, at 2; Evidentiary Hr’g Issue 34, Ex. 2.) At best, the notice informed Reeves only that the Nebraska Supreme Court would decide whether or not it had the power to “reweigh.” Nothing about the notice suggested the court would actually engage in the reweighing (sentencing) process at the same time it determined whether or not it had the power to do so. Second, the Nebraska appellate court refused without explanation to give Reeves adequate notice when he carefully and repeatedly asked the court for notice prior to oral argument. In three motions filed before oral argument, Reeves requested: (1) that the court set a general order of procedure pursuant to Neb.Rev.Stat. § 29-2521 (Reissue 1989), which requires the court to set a general order of procedure at the outset of a sentence-determination proceeding relating to the death penalty, (Evidentiaxy Hr’g Issue 34, Ex. 4); (2) that the Nebraska Supreme Court issue an order stating whether the court intended to engage in appellate resentencing, and if so, identifying the relevant sentencing issues, without which “Appellant and his counsel [ ] cannot adequately prepare for, brief, argue, or otherwise be heard with respect to resentencing issues,” (id., Ex. 5); and (3) that pursuant to Neb.Rev.Stat. § 29-2521, which allows presentation of evidence relevant to sentencing such as aggravating and mitigating circumstances, as well as argument for or against a death sentence, the Nebraska Supreme Court set an evidentiary hearing because “in the event [the Nebraska Supreme Court] undertakes to resentence Appellant, he should be given an opportunity to present additional evidence of mitigating circumstances together with briefs and arguments relating to the Veight’ of the various aggravating and mitigating circumstances found to exist”. (Id., Ex. 6.) These motions appropriately called upon the Nebraska Supreme Court to give court-appointed appellate counsel meaningful direction so that he could adequately represent a client who faced the possibility of death. Yet, the Nebraska Supreme Court denied all three of Reeves’s motions on February 1, 1991, without the slightest explanation. (Filing 94, at 30, 32.) In particular, the summary denial of Reeves’s request that “if the Court is to engage in resentencing on appeal,” then “advan