In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 03-1015 & 05-2610

MICHAEL ALLEN LAMBERT,

Petitioner-Appellant,

v.

EDWIN G. BUSS, Superintendent,

Respondent-Appellee.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

Nos. 01 C 864 & 05 C 708—Larry J. McKinney, Chief Judge.

____________

SUBMITTED JUNE 6, 2007—DECIDED JUNE 12, 2007

____________

Before RIPPLE, KANNE, and EVANS, Circuit Judges.

PER CURIAM. Michael Lambert, who is scheduled to

be executed by the State of Indiana on June 15, 2007, is

here for the third time. His two prior visits, as does this

one, involved challenges to the death sentence he received

growing out of the murder of a Muncie, Indiana, police

officer in 1990.

We need not repeat the history, facts, or arguments

which have previously earned the attention of a bevy of

state and federal judges since Lambert was convicted

some 16 years ago. For a sampling of decisions, we point

to our two efforts, Lambert v. McBride, 365 F.3d 557 (7th

Cir. 2004), and Lambert v. Davis, 449 F.3d 774 (7th Cir.
2 Nos. 03-1015 & 05-2610

2006), and a trio of decisions by the Indiana Supreme

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

Lambert v. State, 675 N.E.2d 1060 (Ind. 1996), and Lambert v. State, 825 N.E.2d 1261 (Ind. 2005).

Lambert has filed a motion to recall the mandate in

each of the two cases we previously decided. The first case

was closed in 2004; the second was resolved last year.

Mr. Lambert also seeks a stay of execution.

What we really have here are requests to file successive

petitions for habeas relief under AEDPA, 28 U.S.C.

§ 2244(b). But the requests are masquerading as motions

to recall mandates. While we certainly do not fault Mr.

Lambert for leaving no stone unturned in his effort to

stave off his execution, the relief he seeks is quite extraordinary.

Although a court of appeals has the authority to recall

its mandates, we may only exercise that power “in extraordinary circumstances” due to “ ‘the profound interests

in repose’ attaching to the mandate.” Calderon v. Thompson, 523 U.S. 538, 550 (1998) (quoting 16 C. Wright, A.

Miller, E. Cooper, Federal Practice and Procedure § 3938

p. 712 (2d ed. 1996)). “The sparing use of the power

demonstrates it is one of last resort, to be held in reserve

against grave, unforeseen contingencies.” Calderon, 523

U.S. at 550.

As explained in Calderon:

A State’s interests in finality are compelling when a

federal court of appeals issues a mandate denying

federal habeas relief. At that point, having in all

likelihood borne for years “the significant costs of

federal habeas review,” [McClesky v. Zant, 499 U.S.

467, 490-91 (1991)], the State is entitled to the assurance of finality. When lengthy federal proceedings

have run their course and a mandate denying relief
Nos. 03-1015 & 05-2610 3

has issued, finality acquires an added moral dimension. Only with an assurance of real finality can the

State execute its moral judgment in a case. Only

with real finality can the victims of crime move forward knowing the moral judgment will be carried out.

See generally Payne v. Tennessee, 501 U.S. 808 (1991).

To unsettle these expectations is to inflict a profound

injury to the “powerful and legitimate interest in

punishing the guilty,” Herrera v. Collins, 506 U.S. 390,

421 (1993) (O’Connor, J., concurring), an interest

shared by the State and the victims of crime alike.

Id. at 556. Motions to recall the mandate in a § 2254

habeas case are subject to the restrictions on successive

petitions found in § 2244(b). Id. at 553-54; Benefiel v.

Davis, 403 F.3d 825, 827 (7th Cir. 2005); Burris v. Parke,

130 F.3d 782, 784-85 (1997). Calderon recognized three

exceptions that might be available to allow a recall of the

mandate in a habeas case where the requirements of

§ 2244(b) are not met: (1) when necessary to correct a

clerical error; (2) when the prior habeas judgment was

obtained by fraud on the part of the state; and (3) when

a mandate is stayed under Fed. R. App. P. 41. Calderon,

523 U.S. at 557. None of these exceptions are at issue here.

The only way Mr. Lambert can avoid the requirements of § 2244(b) is to prove that he is actually innocent.

But he does not suggest that.

What Mr. Lambert seeks to do is revisit the merits of

the second habeas judgment in order to add some additional authority in the future once two pending cases are

decided. The first case, Holmes v. Buss, No. 06-2905, is

pending here. It raises the same claim as Lambert brought

in his second habeas petition. Our 2006 decision conclusively answers that question, and Lambert provides no

persuasive reason why we will scuttle that decision.
4 Nos. 03-1015 & 05-2610

The second case, Panetti v. Quarterman, No. 06-6407, is

pending before the Supreme Court and involves, in part, a

question of whether the habeas petition in that case is

successive. Lambert already asked the Supreme Court to

withhold the disposition of his petition for a writ of

certiorari in our second case until it decided Panetti, but

the Court declined. If the Supreme Court felt it unnecessary to wait for Panetti, then Lambert has no basis upon

which to ask us to do the same. Also, although these cases

involve the procedural question of whether Lambert’s

second habeas petition is barred under § 2244(b), we also

rejected Lambert’s underlying claim on the merits. See

Lambert, 449 F.3d at 778-79. Aside from the fact that

the potential additional authority will not be helpful to

Lambert, he cannot avoid the restrictions on second or

successive petitions by styling his request as a motion to

recall the mandate. Benefiel, 403 F.3d at 827.

So the present motions to recall our mandates must be

denied. And with this action, the motions for a stay of

execution must be denied as well.

RIPPLE, Circuit Judge, concurring. I join the opinion

of the court. I concur in the denial of Mr. Lambert’s Motion for Stay of Execution and Motion to Recall the Mandate in Lambert v. McBride, 365 F.3d 557 (7th Cir. 2004),

and Motion to Recall the Mandate and for Stay of Execution in Lambert v. Davis, 449 F.3d 774 (7th Cir. 2006).

Although I respectfully adhere to the view set forth in

my dissenting opinion in Lambert v. Davis, 449 F.3d at

779-84, I recognize that the restrictions placed on this

court by AEDPA prevent us from revisiting our judgment
Nos. 03-1015 & 05-2610 5

despite the pendency of Holmes v. Buss, No. 06-2905,

before this court and Panetti v. Quarterman, No. 06-6407,

before the Supreme Court of the United States. Any

further relief must come from the Supreme Court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-12-07