In the

United States Court of Appeals

For the Seventh Circuit

Nos. 01-3066 & 01-3157

Patrick Wright,

Petitioner-Appellee/Cross-Appellant,

v.

Jonathan Walls,

Respondent-Appellant/Cross-Appellee.

Appeals from the United States District Court

for the Central District of Illinois.

No. 93 C 2105--Harold A. Baker, Judge.

On Petition for Rehearing

and Petition for Rehearing En Banc

Submitted May 7, 2002--Decided June 6, 2002

 Before FLAUM, Chief Judge, and EASTERBROOK

and WILLIAMS, Circuit Judges.

 On consideration of the petition for

rehearing and petition for rehearing en

banc filed by respondent-appellant, no

judge in active service has requested a

vote thereon, and the majority of judges

on the original panel have voted to deny

a rehearing. Circuit Judge Easterbrook

voted to grant rehearing. Accordingly,

 IT IS ORDERED that the aforesaid petition

for rehearing be DENIED.

 Easterbrook, Circuit Judge. I would grant

the petition for rehearing to consider

the bearing of Saffle v. Parks, 494 U.S.

484 (1990), which neither the majority

nor my dissenting opinion discussed. (The

fault is not the state’s, for Illinois

cited Parks in its appellate briefs and

again in its petition for rehearing. But

Wright did not respond on either occasion

and has never explained how his position

can be reconciled with that decision.)

 The judge in Parks instructed the jurors

that, when deciding whether to impose (or

refrain from imposing) a capital

sentence, "[y]ou must avoid any influence

of sympathy, sentiment, passion,

prejudice, or other arbitrary factor".

Id. at 487. A reasonable jury could have
understood the reference to "sympathy" to

include sympathy generated by Parks’s

broken home and unhappy childhood. Parks

argued that this instruction violated the

rule Eddings v. Oklahoma, 455 U.S. 104

(1982), but the Supreme Court held that

an anti-sympathy instruction is

compatible with Eddings, provided that

the court allows the defendant to

introduce into evidence all factors the

defendant believes to be mitigating. 494

U.S. at 489-93. Next the Court considered

whether Eddings might be extended to

condemn an anti-sympathy instruction and

held that no such modification would be

proper on collateral review. 494 U.S. at

493-95, relying on Teague v. Lane, 489

U.S. 288 (1989).

 The similarity between Parks and this

case is marked. Just as in Parks, the

judge admitted all evidence that the

defendant offered in mitigation. As in

Parks, the sentencer was legally

permitted to consider all of that

evidence. Finally, the sentencer in this

case remarked:

[A]ny matters dealing with sympathy,

outrage, who the victim was, all the

matters I just mentioned have no

bearing on whether the defendant

shall receive the death penalty. And

again, I note for the record that I

have cited them so the record is

clear that I have rejected them, and

I have disregarded them in making my

decision.

That statement is closer in spirit to the

jury instruction that Parks held valid

than to the legal prohibition that

Eddings held invalid.

 Parks restated the "precise holding" of

Eddings: "that the State cannot bar

relevant mitigating evidence from being

presented and considered during the

penalty phase of a capital trial." 494

U.S. at 490. Illinois did not transgress

this "precise holding" because no rule of

state law prevented Wright’s childhood

from being received in evidence and

playing a role in the aggravatingmitigating calculus. In Wright’s case

this evidence not only was admitted but

also played a major role, for the

sentencing judge concluded that Wright’s

childhood had led to "extreme mental or

emotional disturbance" that the judge
deemed to be mitigating--though not

sufficiently so to outweigh the many

aggravating factors.

 My colleagues believe that Eddings

should be extended so that a capital

sentence is valid only if the sentencer’s

statements demonstrate beyond

peradventure that all admissible

mitigating evidence has been considered--

which as a practical matter means that

the sentencer must announce expressly

that this has been done (see 288 F.3d

937, 943 n.4). For reasons given in my

earlier opinion, and in Mickens v.

Taylor, 122 S. Ct. 1237 (2002), a demand

along these lines is something that a

federal court may make of a federal

administrative law judge but not of the

state’s judiciary. Still, no matter how

we evaluate that possibility on the

merits, Parks holds that any extension of

Eddings may occur only on direct appeal.

Wright therefore is not entitled to

collateral relief.