In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2610

MICHAEL ALLEN LAMBERT,

Petitioner-Appellant,

v.

CECIL DAVIS, Superintendent,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:05-CV-708-LJM-VSS—Larry J. McKinney, Chief Judge.

____________

ARGUED OCTOBER 26, 2005—DECIDED MAY 31, 2006

____________

Before RIPPLE, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Michael Lambert was convicted of

murder and sentenced to death for killing a Muncie,

Indiana, police officer in 1990. After a decade of postconviction litigation, and still under a sentence of death,

Lambert exhausted his remedies in the Indiana courts

and moved to federal court with the filing of a habeas

corpus petition in 2001. The district court, Chief Judge

Larry J. McKinney of the United States District Court for

the Southern District of Indiana presiding, denied the

petition in 2002. Lambert appealed that decision and we

affirmed Chief Judge McKinney’s judgment. Lambert v.

McBride, 365 F.3d 557 (7th Cir. 2004), cert. denied, 125

S. Ct. 669 (2004).
2 No. 05-2610

After we rejected his claims in 2004, Lambert returned to

state court with a new postconviction motion. When the

Indiana courts again declined to grant his request for relief,

Lambert v. State, 825 N.E.2d 1261 (Ind. 2005), Lambert

returned once again to Judge McKinney with the filing of

another petition for federal habeas corpus. The judge

dismissed the petition, concluding that it was successive

under 28 U.S.C. § 2244(b)(3)(A) and could not, therefore, be

entertained without our approval. Lambert appealed that

decision to us and we granted a certificate of appealability

on two issues:

(1) Whether Mr. Lambert’s current petition for a writ

of habeas corpus, which rests upon an act of the Supreme Court of Indiana that occurred subsequent to the

filing of his initial habeas petition, constitutes “a second

or successive application” for purposes of 28 U.S.C. [§]

2244, and if so, whether Mr. Lambert’s current petition

falls within a statutory or constitutional exception to

the bar on second or successive petitions contained in

[§] 2244(b)(2); and

(2) Whether the decision of the Supreme Court of

Indiana not to apply to Mr. Lambert’s sentence the rule

of Saylor v. State, 808 N.E.2d 646 (Ind. 2004), which

made retroactive to some death sentences the 2002

amendments to the Indiana death penalty statute,

constituted a violation of Mr. Lambert’s rights to due

process or to equal protection of the laws as guaranteed

by the Fourteenth Amendment.

The facts in this case are outlined in our 2004 opinion

and, in more detail, in the Indiana Supreme Court’s 1994

opinion, Lambert v. State, 643 N.E.2d 349 (Ind. 1994). For

our purposes, we can skip the details and simply note that

in December of 1990, Lambert was arrested for public

intoxication by a Muncie, Indiana, police officer. He was

searched, handcuffed, and placed in the back seat of a
No. 05-2610 3

squad car. Unfortunately, a gun Lambert had hidden on his

person escaped detection during the search. Then, while

being driven to the police station by Officer Gregg Winters

(Winters was not the officer who conducted the search),

Lambert was somehow able to retrieve the gun and shoot

Winters five times in the back of the head and neck.

Winters died 11 days later. Lambert was charged with the

intentional murder of Officer Winters, a jury found him

guilty, and the same jury, after hearing evidence during the

penalty stage of the proceeding, recommended a sentence of

death. The trial judge then imposed the death penalty.

Lambert appealed his conviction and sentence to the

Supreme Court of Indiana, which remanded the case to the

trial judge to reconsider evidence of intoxication as a

possible mitigating factor in the penalty determination. The

trial judge again sentenced Lambert to death, and this time

the court affirmed both Lambert’s conviction and sentence.

Lambert, 643 N.E.2d 349 (Ind. 1994). On rehearing, however, the court held that certain victim-impact evidence was

improperly admitted into evidence before the jury and that

its admission was not harmless error. But the court also

found, after itself weighing the factors in aggravation and

mitigation, that the death sentence was proper. See Lambert v. State, 675 N.E.2d 1060 (Ind. 1996).

Lambert then filed a petition for state postconviction

relief in the trial court, raising claims that are not at

issue here. The court denied relief and the Supreme Court

of Indiana affirmed. Lambert v. State, 743 N.E.2d 719 (Ind.

2001). Along the way, petitions for writs of certiorari were

presented to the United States Supreme Court and denied.

See Lambert v. Indiana, 520 U.S. 1255 (1997); Lambert v.

Indiana, 534 U.S. 1136 (2002).

Lambert filed a petition for a writ of habeas corpus in

federal district court under 28 U.S.C. § 2254 in 2003,

arguing that the Supreme Court of Indiana erred when

it engaged in appellate reweighing of the aggravating
4 No. 05-2610

and mitigating factors and then upheld his death sentence

despite finding that the trial court’s admission of the victimimpact testimony before the jury was not harmless error.

Lambert contended that this practice ran afoul of Clemons

v. Mississippi, 494 U.S. 738 (1990), which held that it is

constitutionally permissible for a state reviewing court to

uphold a jury-imposed death sentence based in part on an

invalid aggravating factor by reweighing the aggravating

and mitigating evidence or through harmless error review.

Lambert contended that Clemons allows either appellate

reweighing or harmless error analysis, but not both.

Therefore, in his view, once the Supreme Court of Indiana

found nonharmless error, it should have vacated his death

sentence and ordered a new sentencing proceeding. The

district court denied his petition.

Lambert appealed and we affirmed the district court

in 2004, noting that “[i]f reweighing can be done by the

appellate court when the jury is charged with the sentencing decision [as in Clemons], . . . when the jury’s determination is only advisory, the appellate court has latitude to

reweigh the factors.” Lambert, 365 F.3d at 563. Accordingly,

we concluded that the Supreme Court of Indiana did not

improperly extend the holding in Clemons.

After we wrapped up our work on the case, Lambert

returned to state court with a request for leave to file a

successive petition for postconviction relief. There, he

argued that his death sentence conflicted with Saylor v.

Indiana, 808 N.E.2d 646 (Ind. 2004), a recent case where

the Supreme Court of Indiana invalidated a death sentence

imposed by a judge despite a jury recommendation against

it. In Saylor, the court noted that this “jury-override” was

improper in light of the 2002 revisions to the Indiana death

penalty statute, which provide that a trial judge cannot

impose a death sentence if a jury unanimously recommends

against it. In 2005, the court denied Lambert’s request,

concluding that because his circumstances were decidedly
No. 05-2610 5

different, Saylor did not apply. See Lambert v. State, 825

N.E.2d 1261, 1263 (Ind. 2005). In doing so, the court noted

that “neither Saylor nor the 2002 amendments to the death

penalty statute affect, in any way relevant to Lambert’s

case, our constitutional authority to review or revise

sentences or the appropriate remedies for erroneous

admission of evidence.” Id. at 1264.

After coming up short again in state court, Lambert filed

his present petition for a writ of habeas corpus, arguing

once again that his sentence must be vacated because the

jury’s recommendation was tainted by the improper admission of certain victim-impact evidence. It was this petition

that Judge McKinney dismissed for lack of jurisdiction. See

Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996). In

doing so, Chief Judge McKinney concluded that:

Lambert cannot evade the treatment of the present

petitions as a second or successive petition based on the

argument that the present claim was not “ripe” until

the Indiana Supreme Court applied the 2002 amendments in Saylor. The essential nature of the argument

here, as in Lambert’s first habeas petition, is that the

appellate reweighing of statutory factors in aggravation

and mitigation and then permitting his death sentence

to stand, all in the face of a flawed jury recommendation, is not constitutionally permissible.

Section 2244(b)(3)(A) “is an allocation of subject-matter

jurisdiction to the court of appeals. A district court must

dismiss a second or successive petition . . . unless the court

of appeals has given approval for the filing.” Nuñez, 96 F.3d

at 991. Here, Lambert’s petition is successive under

§ 2244(b)(3)(A), as it attacks the same judgment based on

the same argument—that his death sentence is invalid

because the jury recommendation was tainted by the

improper victim-impact evidence it heard. Lambert, however, argues that his present challenge is new because it
6 No. 05-2610

was not “ripe” until Saylor was decided. We cannot accept

his argument. Saylor is irrelevant to Lambert’s sentence, as

it concerned a trial court overriding a jury recommendation

against imposing a death sentence. That is of no concern

here because Lambert’s jury recommended a sentence of

death. Moreover, as we noted in our opinion denying his

first collateral attack, the 2002 revisions to the Indiana

death penalty statute were in place when his first petition

was pending. Thus, he could have raised an argument based

on the 2002 amendments in his initial petition.

But our analysis goes on. Under Nuñez, we may construe

Lambert’s appeal as an implied request that we grant leave

to file a successive application for relief. We deny this

request because Lambert’s proposed claim does not meet

the requirements for bringing a successive petition under 28

U.S.C. § 2244(b)(2). That provision requires that a successive application shall be dismissed unless:

(A) the applicant shows that the claim relies on a new

rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and viewed

in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying

offense.

Lambert’s petition does not rely on these factors, and

therefore it must be denied.

Finally, even if it were wrong to characterize Lambert’s

petition as successive, his challenge could not prevail
No. 05-2610 7

1 Our dissenting colleague, in a bit of overheated hyperbole,

accuses us of a “willingness to tolerate even the most egregious

forms of discrimination at the hands of a state.” But the Supreme Court of Indiana didn’t decline to grant relief to Mr.

Lambert (to use the dissent’s examples) because of his race or

religion. It applied—free of discrimination—state law. That

our dissenting colleague is more comfortable with the view

expressed by the dissenters in Indiana is not a reason why we

are free to jettison the view of that court’s majority.

because it rests on a claim that the Indiana Supreme Court

misinterpreted state law. The claim, quite simply, is that

the court was required to give him the same benefit it

bestowed on the defendant in Saylor. The court in Saylor,

however, interpreting state law, did not consider the 2002

Indiana statutory amendments to be retroactive. Instead, it

used its state-law authority to review and revise sentences

to vacate a sentence that could not be imposed today.

Saylor, 808 N.E.2d at 647.1

In resolving Lambert’s case, the court found that his

circumstances were materially different from those in

Saylor. Without question, the aggravating circumstance—the murder of a police officer acting in the course

of duty—was proven beyond a reasonable doubt in Lambert’s case, and the jury did not recommend against a death

sentence. Unlike the defendant in Saylor, Lambert could

still receive a death sentence today if his case was tried

again with the same result as before. What Lambert argues

now is that the state supreme court got it wrong

in construing Indiana law because it was obligated to revise

his sentence as “inappropriate” in light of the statutory

change. But this is an issue of state, not federal, law.

Federal habeas courts lack subject-matter jurisdiction over

such issues. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502

U.S. 62, 67 (1991) (matters of state law are outside the

purview of federal habeas corpus). Moreover, to the extent
8 No. 05-2610

that they were even presented, the state supreme court

reasonably rejected Lambert’s due process and equal

protection claims. Lambert, 825 N.E.2d at 1263-64.

Our understanding of Saylor is further buttressed by

the case of Eric Holmes, who was sentenced to death

despite his jury being unable to reach a unanimous recommendation that the penalty should be applied. Holmes was

also denied relief under Saylor because Indiana law still

permitted (of course, the landscape was changed in Ring v.

Arizona, 536 U.S. 584 (2002), but, as we pointed out when

we last saw this case, that decision is not retroactive, see

Lambert, 365 F.3d at 561-62) a sentence of death where a

jury was hung and made no recommendation as to an

appropriate sentence. See Holmes v. State, 820 N.E.2d 136,

138-39 (Ind. 2005).

As we have observed, “Nothing in the Constitution

entitles state defendants to obtain a federal benefit from

errors of state law.” In re Page, 170 F.3d 659, 662 (on reh’g,

179 F.3d 1024 (1999)). And, at most, that’s what Lambert

points to. Accordingly, we AFFIRM the district court’s

judgment and DENY Lambert’s requests for leave to file

a successive petition for a writ of habeas corpus. We also

vacate the stay of execution entered on June 17, 2005.
No. 05-2610 9

RIPPLE, Circuit Judge, dissenting.

I

At this stage of the proceeding, the prime question before

us is whether the district court was correct in ruling that

Mr. Lambert’s petition was a successive petition. Having

characterized the petition as successive, the district

court dismissed the action because the petitioner had

not obtained permission from this court to file such a

petition. R.12 at 2.

In my view, the district court erred in this determination.

It should have permitted the petition to be filed and decided

the matter in due course. I would therefore reverse the

judgment of the district court and remand this case for

proceedings consistent with this opinion.

Section 2244(b)(2) of the judicial code provides:

A claim presented in a second or successive habeas

corpus application under section 2254 that was not

presented in a prior application shall be dismissed

unless—

(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court,

that was previously unavailable; or

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing

evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).
10 No. 05-2610

1 The Supreme Court’s decision in Slack v. McDaniel, 529 U.S.

473 (2000), calls into question the reasoning of this court in In re

Page, 179 F.3d 1024 (7th Cir. 1999), on which the State of Indiana

relies. In Page, we stated:

Before the enactment of the Antiterrorism and Effective

Death Penalty Act, which added section 2244(b)(2) to the

habeas corpus statute, specifying the criteria for when a

second or successive petition is permitted, the only limitation on a prisoner’s right to file successive petitions for federal habeas corpus was the judge-made concept of “abuse of

the writ.” That concept, an application to the habeas corpus

setting of general principles of waiver or forfeiture, was

replaced by the new criteria and passed out of the law. As we

explained in Burris v. Parke, 95 F.3d 465, 469 (7th Cir. 1996)

(en banc), “The doctrine of abuse of the writ is defunct. The

term derives from section 2244(b), now wholly superseded

by the new law [i.e., AEDPA], which nowhere uses the term.

There is no longer any statutory handle for the doctrine, and

in any event its role seems wholly preempted by the detailed

provisions of the new statute concerning successive petitions.”

Page, 179 F.3d at 1025. In Slack, however, the Court dismissed

the notions that the language employed in AEDPA represented a

clean slate or that its pre-AEDPA case law could not inform the

term “second or successive” as used in that Act:

The District Court dismissed claims Slack failed to raise

(continued...)

My colleagues take the district court’s view that, because Mr. Lambert’s habeas petition does not fall within the

categories defined by (A) or (B), it must be dismissed.

However, Mr. Lambert must meet the requirements set

forth in (A) or (B) only if his petition is actually a “second or

successive” petition. The Supreme Court has instructed that

“‘second or successive’ is a term of art given substance in

our prior habeas corpus cases,” Slack v. McDaniel, 529 U.S.

473, 486 (2000), which incorporates the abuse of the writ

doctrine.1

 The case law provides little other guidance,
No. 05-2610 11

1 (...continued)

in his 1991 petition based on its conclusion that Slack’s 1995

petition was a second or successive habeas petition. This

conclusion was wrong. A habeas petition filed in the district

court after an initial habeas petition was unadjudicated on its

merits and dismissed for failure to exhaust state remedies is

not a second or successive petition.

Slack commenced this habeas proceeding in the District

Court in 1995, before AEDPA’s effective date. Because the

question whether Slack’s petition was second or successive

implicates his right to relief in the trial court, pre-AEDPA

law governs, see Lindh v. Murphy, 521 U.S. 320 (1997),

though we do not suggest the definition of second or successive would be different under AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (using pre-AEDPA law to

interpret AEDPA’s provision governing “second or successive

habeas applications”). . . .

The phrase “second or successive petition” is a term of art

given substance in our prior habeas corpus cases. . . .

Slack, 529 U.S. at 485-86 (parallel citations omitted).

In Page, this court said that the statutory exceptions established in AEDPA were wholly new standards that replaced our

former understanding of habeas law. Interpretations of prior law

were now irrelevant because Congress meant to establish a wholly

new system. However, in Slack, the Court rejected this premise.

The Court stated that pre-AEDPA law could, in fact, inform our

understanding of AEDPA.

Nevertheless, Page speaks to a very different factual and

procedural situation from the one here. In Page, the state court

applied retroactively a new rule to the petitioner on collateral

review. Here, by contrast, Mr. Lambert’s contention is not

simply that he should or should not be the beneficiary of a

newly established rule. Mr. Lambert’s contention is that the

Supreme Court of Indiana has been arbitrary and capricious

in determining to whom it will apply this new rule. It is the direct

impact of the arbitrary application of the rule on him that raises

(continued...)
12 No. 05-2610

1 (...continued)

the Eighth Amendment concerns articulated by Mr. Lambert.

and the legislative history of AEDPA does little to illuminate further the meaning of those terms.

There is no question that, in enacting AEDPA, Congress

desired to put an end to the constant stream of habeas

petitions that were filed successively for no other reason

than to prolong the judicial process. See H.R. Conf. Rep.

104-518, at 111 (1996) (“This title incorporates reforms

to curb the abuse of the statutory writ of habeas corpus, and

to address the acute problem of unnecessary delay

and abuse in capital cases.”). However, it also is clear

that the petition now before us, when evaluated in the

context of its procedural history and of the constitutional

issue presented, is not the prototypical successive habeas

corpus petition. This case is not an attempt to revisit issues

or matters that already have been litigated or could have

been litigated in the first petition. This present claim is

based on a state judicial act, a decision of the Supreme

Court of Indiana that occurred after the completion of the

first habeas action; the alleged constitutional deprivation is

based upon the failure of the state court to treat the petitioner in a manner consistent with its treatment of other

similarly situated individuals. It is difficult to imagine that,

when Congress enacted AEDPA in an attempt to curb the

filing of serial petitions that did nothing more than revisit

already-litigated matters, it intended to prevent the redress

of the type of grievance we have here—an action that could

not have been known or even anticipated at the time the

petitioner pursued the initial federal habeas claim.

In not recognizing this important feature of the present

petition, the panel majority seemingly expresses its willingness to tolerate even the most egregious forms of discrimination at the hands of a state, whenever the discrimination

occurs after the filing of the first petition. If, for example,
No. 05-2610 13

Mr. Lambert were alleging that the state supreme court did

not simply act arbitrarily, but instead made its decision to

“review and revise” based on the race or the religion of the

petitioner, would the majority adhere to its belief that §

2244 barred review? However, the fact that Mr. Lambert’s

claim is more nuanced than such a hypothetical situation is

not a reason to deprive Mr. Lambert of a means of redress

of which Congress certainly did not wish to deprive him.

II

My colleagues believe that this petition presents no

substantial federal claim cognizable on habeas review. In

their view,

[t]he claim, quite simply, is that the court [Supreme

Court of Indiana] was required to give him [Lambert]

the same benefit it bestowed on the defendant in

Saylor. The court in Saylor, however, interpreting state

law, did not consider the 2002 Indiana statutory

amendments to be retroactive. Instead, it used its statelaw authority to review and revise sentences to vacate a

sentence that could not be imposed today.

Slip op. at 7 (emphasis added; citations omitted). In my

view, it is precisely this ad hoc selection of cases for “review

and revis[ion],” as opposed to a principled application of the

new rule of state law, that raises federal constitutional

concerns that, under the governing statutory scheme

embodied in § 2254, ought to be presented to the district

court. “[C]apital punishment [must] be imposed fairly, and

with reasonable consistency, or not at all.” Eddings v.

Oklahoma, 455 U.S. 104, 112 (1982). The Supreme Court of

Indiana appears to have applied an inconsistent approach

in invoking its power to “review and revise” capital sentences. This failure raises a significant federal constitutional question cognizable on habeas review.
14 No. 05-2610

No one disputes the authority of Indiana to craft a remedy

that incorporates the holding of Ring v. Arizona, 536 U.S.

584 (2002), to individuals currently on death row. The

Supreme Court of the United States has not required such

retroactive application, see Schriro v. Summerlin, 542 U.S.

348, 358 (2004), but that determination certainly does not

prevent a state court from fashioning a remedial principle

of state law that includes such retroactive application.

Having made that decision, however, the state court must

apply that remedial standard in a way that ensures that the

state courts will determine who is to live and who is to die

in a principled manner. The rudderless application manifested in the cases decided by the Supreme Court of Indiana

raises a serious federal question that ought to be explored

in depth by the district court and by this court, if an appeal

is made to us in due course.

An examination of the decisions of the Supreme Court

of Indiana in Saylor v. State, 808 N.E.2d 646 (Ind. 2004),

and in Holmes v. State, 820 N.E.2d 136 (Ind. 2005), followed

by a comparison of those cases with the present case, makes

clear the unconstitutional path that Indiana appears to

have followed. In Saylor, the court articulated a standard

that, as a matter of state law, was to govern the fate of

those individuals already condemned to death: “[I]t [wa]s

not appropriate to execute a person who was convicted and

sentenced through a procedure that has now been substantially revised so the same trial today would no longer render

the defendant eligible for the death penalty.” Id. at 647. In

reaching this conclusion, the justices relied in part on the

fact that Saylor was among a small group of people who

would be

executed despite a jury recommendation to the contrary

. . . . Currently two other inmates are on death row

after a judge overruled the jury’s recommendation

against death . . . . There is the instance where the jury
No. 05-2610 15

2 The distinction, explained the court, was that, with respect

to Holmes, “[t]he jury did not reach a unanimous recommendation

on the State’s request for a death sentence in the penalty phase of

the trial.” Holmes v. State, 820 N.E.2d 136, 137 (Ind. 2005).

was unable to agree on a recommendation and the

death penalty was carried out, and another defendant

sentenced in that circumstance remains on death row

today. Holmes v. State, 671 N.E.2d 841 (Ind. 1996).

Id. at 650 (additional citations omitted).

Despite the court’s initial inclination to see the same

injustice in Saylor and in Holmes, and, presumably, to

require the same treatment with respect to the revision

of their sentences, the court abandoned that view when

Holmes came before it for review. Instead, the court determined that Holmes was not entitled to the relief accorded

Saylor because Holmes did not involve the total absence of

a jury recommendation of death but simply a hung jury on

that all-important issue.2

 A dissenting Justice recognized,

however, that, in light of the standard established in

Saylor, Holmes’ situation was not distinguishable clearly on

principled grounds:

There are the differences in Petitioner’s and Saylor’s

situations that the Court’s order identifies, to be sure.

But one of the themes of the Saylor opinion that comes

through loud and clear is the relative uniqueness of

Saylor’s position—that part of the reason that it

would have been improper to execute him was that he

was one of only three people on death row whose jury

had recommended against death. Petitioner’s situation is almost as unique. Indeed, the Saylor opinion

identified Petitioner by name as being only one of four

people on death row (the others being the three just

mentioned) whose juries had not recommended a

sentence of death. Put differently, assuming the other
16 No. 05-2610

two individuals in the same class as Saylor receive

the same relief, Petitioner will be the only person on

Indiana’s death row whose jury has not recommended

a sentence of death.

As to the 2002 amendments to the Indiana death

penalty statute, it is true that the statute still authorizes the sentencing judge to impose a death sentence

if the jury cannot agree on a sentencing recommendation. But I do not think this package is wrapped tightly

enough to say that there is no reasonable possibility

that Petitioner is entitled to post-conviction relief. This

is because, even though the statute still permits a judge

to impose a death sentence in the face of a penalty

phase “hung-jury,” the statute operates differently than

it did prior to the United States Supreme Court’s

decisions in Apprendi v. New Jersey, 530 U.S. 466

(2000), and Ring v. Arizona, 536 U.S. 584 (2002). . . .

Holmes, 820 N.E.2d at 140 (Sullivan, J., dissenting).

When Mr. Lambert’s appeal came before the Supreme

Court of Indiana, a majority of the Justices took the view

that the standard set forth in Saylor did not mandate the

same action in Lambert, 825 N.E.2d at 1263; in the majority’s view, “[t]he circumstances for Lambert are different.

His is not a situation where the jury unanimously recommended against the death sentence,” id. Two members

of the court concluded otherwise. Justice Rucker stated

that, “although the reasons differ slightly from those in

Saylor, it is apparent to me that, as a matter of Indiana

statutory law, if tried today Lambert could not be sentenced

to death under the facts presented in this case.” Id. at 1268

(Rucker, J., dissenting). Another justice also was troubled

by the majority’s rejection of Mr. Lambert’s prayer for relief:

“We have a flawed jury recommendation, and therefore do

not know whether, without the erroneously introduced

evidence, the jury would have recommended death, as it did
No. 05-2610 17

3 Specifically, in Parker v. Dugger, 498 U.S. 308 (1991), the Court

stated:

“If a State has determined that death should be an available

(continued...)

in Lambert’s case, or recommended against death, as it did

in Saylor’s.” Id. at 1264. Justice Boehm also spoke directly

to the supreme court’s power to review and revise sentences:

This Court has the authority to review and revise

sentences, but only within the parameters of the

sentencing statutes. If this were a direct appeal from a

trial conducted under the 2002 law, we therefore could

not revise the sentence to impose death. We thus are

faced with a situation very similar to that in Saylor. We

have a defendant sentenced to death through a procedure that would be improper today. Accordingly, Lambert’s case, like Saylor’s, is not appropriate for death

under the current death penalty statute. I would let

Lambert proceed to test his claim that a proper penalty

phase would provide a recommendation against death.

Id. at 1265 (Boehm, J., dissenting). Thus, according to

Justice Boehm, because the state supreme court only can

impose sentences within the parameters of the sentencing statutes, and because the 2002 statute requires that

imposition of the death penalty be decided by an untainted

jury recommendation in favor of that penalty, the state

supreme court was without authority to impose the death

penalty in Mr. Lambert’s case.

The Supreme Court of the United States has recognized

that “death is different,” Ford v. Wainwright, 477 U.S. 399,

411 (1986), and that the Eighth Amendment requires

safeguards against arbitrariness at both the state trial

and appellate levels, Parker v. Dugger, 498 U.S. 308, 321

(1991).3

 There is no principle more settled in the law of
18 No. 05-2610

3 (...continued)

penalty for certain crimes, then it must administer that

penalty in a way that can rationally distinguish between

those individuals for whom death is an appropriate sanction

and those for whom it is not.” Spaziano v. Florida, 468 U.S.

447, 460 (1984). The Constitution prohibits the arbitrary

or irrational imposition of the death penalty. Id., at 466-467.

We have emphasized repeatedly the crucial role of meaningful

appellate review in ensuring that the death penalty is not

imposed arbitrarily or irrationally.

Id. at 321 (parallel citations omitted).

capital punishment than the constitutional standard that a

person may not be subjected to the arbitrary, capricious or

freakish imposition of the death penalty by state courts.

Gregg v. Georgia, 428 U.S. 153, 194-95 (1976). As this case

comes to us today, it presents a federal constitutional

question that ought to be given a full airing in the district

court and, in due course, in this court, if either party

invokes our appellate jurisdiction. The decisions of the

Supreme Court of Indiana in Saylor, Holmes and Lambert

strongly suggest that, far from using its authority to review

and revise sentences in order to ensure consistency and

fairness in the imposition of the death penalty, the state

high court’s decisions have been the means by which such

guarantees have been denied.

Because I believe the district court erred in treating this

case as a successive habeas petition and because the

petition presents the contention that the Supreme Court of

Indiana did not adhere to a basic principle of federal

constitutional law, I respectfully dissent.
No. 05-2610 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-31-06