Carter, 218 F.3d at 592. Because we cannot determine from the record before us whether the Ohio Supreme Court applied Strickland unreasonably by not examining the extent of trial counsel's investigation [*42] into mitigating evidence, we remand the case to the district court with the instruction to hold an evidentiary hearing on Mason's claim of ineffective assistance at the sentencing phase of his trial.Moore v. Kinney, 2003 U.S. App. LEXIS 2199 (8th Cir 2/10/2003) (en banc) (dissent) Relief denied on "whether Neb. Rev. Stat. § 29-2523(1)(d) is unconstitutional: (1) on its face because it remains open-ended and vague, and it fails to channel application of the death penalty; and (2) as applied by the Nebraska courts because the resentencing panel's construction of the statute denied Moore due process." Thus, the key inquiry concerning whether the "cold, calculated" formulation is constitutional is not the specific substance of that narrowed definition, but simply whether the sentencing process is infected with bias or caprice.

Since the last edition there have been the following domestic executions: 16 Jamarr Arnold Texas 29 Stephen Anderson California 29 John Romano Oklahoma 30 Windell Broussard Texas 31 Randall Hafdahl Texas 31 David Woodruff Oklahoma Executions slated and considered serious for February 2002: 5 Linroy Bottoson Florida 6 Michael Owsley Missouri 7 Robert Trease Florida 8 Leslie Dale Martin Louisiana 19 John Byrd Jr. Ohio 21 Thomas Miller-El Texas (on the web at http://www.thomasmillerel.com) 28 Monty Delk Texas This week's edition is at http://www.capitaldefenseweekly.com/archives/020128.htmHOT LIST CASESMoore v. Kinney, 2002 U.S. App. LEXIS 971 (10th Cir 01/25/02) (dissents) Nebraska's "exceptional depravity" statute, Nebraska Revised Statutes Sections 29-2523(1)(d), which allows enhanced sentencing in a murder case if the defendant purposefully selects a victim on the basis of age, remains unconstitutionally vague even after its amendment, and the statute may not be used as a basis for defendant's death sentence.This court found the Nebraska courts' attempt at narrowing the definition of exceptional depravity, where age was a part of Nebraska Supreme Court case precedent, unconstitutionally vague in 1990. Moore v. Clarke , 904 F.2d 1226 (1990).