                            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 Lam-
bert 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 extra-
ordinary.
  Although a court of appeals has the authority to recall
its mandates, we may only exercise that power “in extraor-
dinary circumstances” due to “ ‘the profound interests
in repose’ attaching to the mandate.” Calderon v. Thomp-
son, 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 assur-
     ance 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 dimen-
    sion. 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 for-
    ward 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 require-
ments 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 addi-
tional 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 conclu-
sively 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 unneces-
sary 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 Mo-
tion for Stay of Execution and Motion to Recall the Man-
date in Lambert v. McBride, 365 F.3d 557 (7th Cir. 2004),
and Motion to Recall the Mandate and for Stay of Execu-
tion 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
