United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 14, 2010

Before

WILLIAM J. BAUER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

Nos. 07‐2093 and 07‐2182

JOSEPH E. CORCORAN,

Petitioner‐Appellee/

Cross‐Appellant,

v.

MARK LEVENHAGEN,

Superintendent,

Respondent‐Appellant/

Cross‐Appellee.

Appeals from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 05 C 389

Allen Sharp,

     Judge.

O R D E R

Upon consideration of the petition for rehearing and rehearing en banc, filed by

respondent‐appellant/cross‐appellee on February 24, 2010, and the answer filed by

petitioner‐appellee/cross‐appellant on March 25, 2010, no judge in active service has

requested a vote on the petition for rehearing en banc and all of the judges on the original

panel have voted to deny the petition for rehearing.   It is, therefore, ORDERED that the

petition for rehearing and rehearing en banc is DENIED.  

IT IS FURTHER ORDERED that the courtʹs opinion dated January 27, 2010, is amended

as follows:
Nos. 07‐2093 and 07‐2182 Page 2

On page 5 of the slip opinion, second full paragraph, line 12, the phrase “two

obviously unreasonable fact determinations” shall be replaced with “an

obviously unreasonable fact determination”.

On page 7 of the slip opinion, the sentence at the end of the paragraph at the

top – “But the state trial court must reconsider its sentencing determination, . . .”

– shall be appended with:  

This will cure the state trial court’s “unreasonable determination of the

facts.”  28 U.S.C. § 2254(d)(1).  (It will also prevent noncompliance with

Indiana law.   Petitioner contended that, under the circumstances of this

case, noncompliance with state law also violates the federal Constitution

and thus warrants him relief under 28 U.S.C. § 2254(d)(2).   Respondent

has not advanced any contrary argument based on Wainwright v. Goode,

464 U.S. 78 (1983), or any similar decision.)

On page 7 of the slip opinion, the first full paragraph, through all of page 9,

shall be deleted and replaced with:

For completeness, we note that there were no other prejudicial errors

in the sentencing process.    Corcoran also claimed that the Indiana trial

court failed to consider six of the ten mitigating circumstances Corcoran

proffered:  (1) his age; (2) his substantially impaired ability to appreciate

the criminality of his conduct or to conform that conduct with the

requirements of the law; (3) his inability to competently assist in his

defense; (4) his forethought to protect his seven‐year‐old niece during the

murders; (5) his good behavior in jail before sentencing; and (6) his

admission of guilt “at all stages of the legal process” including the trial.

But when the trial court first sentenced Corcoran, it explicitly discussed

and rejected these mitigators as either false or nonmitigatory. Trial Tr. at

2915; State of Indiana v. Corcoran, No. 02D04‐9707‐CF‐465, at 3‐6 (Ind.

Super. Ct. Aug. 26, 1999). When the Indiana Supreme Court later advised

it to clarify only whether it had used non‐statutory aggravators, it is

unsurprising that the trial court declined to reiterate its analysis of these

mitigators it had previously rejected.

The Indiana Supreme Court made an erroneous finding of fact, that

the trial court “analyzed” and “rejected” Corcoran’s age in its sentencing

order, Corcoran, 744 N.E.2d at 500, because the sentencing order makes no

mention of Corcoran’s age except to note that Corcoran proffered it as a

mitigator.    But that error was harmless, as the trial court considered

Corcoran’s age when it orally pronounced sentence upon him.  Trial Tr.

at 2915.