                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 03-1015
MICHAEL ALLEN LAMBERT,
                                             Petitioner-Appellant,
                                 v.

DANIEL McBRIDE, Superintendent,
                                            Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
          No. 01 C 864—Larry J. McKinney, Chief Judge.
                          ____________
    ARGUED OCTOBER 23, 2003—DECIDED APRIL 7, 2004
                   ____________



  Before RIPPLE, KANNE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Michael Lambert appeals from the
denial of his petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254. He does not dispute that his Indiana
conviction for the murder of police officer Gregg Winters is
valid, but he contends that the death sentence he received
was unconstitutionally imposed. The facts are grisly.
  Lambert was drinking heavily one December day in 1990.
That night, he went to a bar on the south side of Muncie,
Indiana, and drank even more. He became drunk; a patron
of the bar said he was “dancing around wild-eyed.” A little
2                                                No. 03-1015

after midnight, Muncie police were dispatched to a
property-damage accident. When they arrived on the scene,
they found a truck without a driver.
  A short time later, Officer Kirk Mace saw a man trying to
crawl under a car. When Mace investigated, the man, who
turned out to be Lambert, said he was going to go to sleep
under the car. Lambert was lightly dressed; the outside
temperature was in the teens and it was snowing. Mace
concluded that Lambert was drunk and arrested him for
public intoxication. Lambert was subjected to a quick “pat-
down search,” handcuffed, and placed in the back of a squad
car. A single officer, Officer Winters, started to drive
Lambert to the jail, which was about 15 minutes away.
What happened during that short trip ended Winters’ life
and altered, with a sentence of death, Lambert’s life as well.
  A few minutes into the trip, a patrol car carrying two
deputy sheriffs approached Officer Winters’ squad car,
which was proceeding from the opposite direction. Sud-
denly, Winters’ patrol car slid off the road and came to rest
in a ditch. Why? Well, as revealed during the trial, what
happened was chilling.
   The “pat-down” search of Lambert had come up dry for
weapons, but it was tragically incomplete. Lambert had
a gun somewhere on his person, one that he stole from his
employer 8 days earlier. During the ride to the jail, Lam-
bert, despite being handcuffed, managed to get the gun and
fire shots into the back of Officer Winters’ neck and head.
When the two deputies got to the scene, Winters was
immobile behind the steering wheel and Lambert’s pistol
was on the floor. An autopsy revealed that Winters was
struck by five bullets. He died in a hospital 11 days later.
  Lambert was subsequently charged with murder. The
charged aggravating circumstance, which made him eligible
for the death penalty, was that the victim was a police
officer killed in the line of duty. Indiana Code § 35-50-2-
No. 03-1015                                                3

9(b)(6). Lambert was convicted by a jury, and the case
proceeded to a sentencing hearing before the same jury.
During this hearing, under Indiana law, a jury considers
“all the evidence introduced at the trial stage of the pro-
ceedings, together with new evidence presented at the sen-
tencing hearing.” § 35-50-2-9(d). When these proceedings
(prior to the 2002 amendments to the statute) occurred, the
judge was not bound by the jury’s recommendation, and
prior to pronouncing sentence she could receive victim-
impact evidence. Indiana Code § 35-50-2-9(e). In this case,
however, it was the jury who heard victim-impact testi-
mony—from the police chief, Officer Winters’ brother, and
from his widow, Molly Winters. The jury recommended a
death sentence, which the judge then imposed.
   Lambert appealed his conviction and sentence to the
Indiana Supreme Court, which remanded the case to the
trial court to reconsider evidence of intoxication as it was
related to the penalty determination. The trial judge once
again sentenced Lambert to death, and this time the
Indiana Supreme Court affirmed both the conviction and
sentence. Lambert v. State, 643 N.E.2d 349 (Ind. 1994).
Lambert sought rehearing, arguing that the court was
wrong to find that he waived his claim that the trial judge
improperly admitted the victim-impact testimony. The
Indiana Supreme Court, on rehearing, held that the victim-
impact evidence was improperly admitted and that its
admission was not harmless error. The court found, how-
ever, after itself weighing the factors in aggravation and
mitigation, that the death sentence was proper. State
v. Lambert, 675 N.E.2d 1060 (Ind. 1996). Next, Lambert
filed a petition for state postconviction relief in the trial
court. After an evidentiary hearing, the court denied relief.
Lambert once again appealed to the Indiana Supreme
Court, which affirmed the denial of postconviction relief,
Lambert v. State, 743 N.E.2d 719 (Ind. 2001). A rehearing
request was also denied. Along the way, petitions for writs
4                                               No. 03-1015

of certiorari were presented to the United States Supreme
Court and denied. Lambert v. Indiana, 520 U.S. 1255
(1997); Lambert v. Indiana, 534 U.S. 1136 (2002). Lambert’s
next stop was the United States district court, where he
filed a petition for a writ of habeas corpus. The district
court denied his petition, and this appeal followed.
  Because Lambert’s petition was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), the provisions of that Act govern our
review. Lindh v. Murphy, 521 U.S. 320 (1997). Under
AEDPA, if a constitutional claim was adjudicated on the
merits by the state court, a federal court may grant habeas
relief on that claim only if the state court decision was
“contrary to” or “involved an unreasonable application of
clearly established federal law as determined by the
Supreme Court,” or if it was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d). A state
court decision is “contrary to” established Supreme Court
precedent when the state applies a rule different from
governing Supreme Court cases or confronts a set of facts
that is materially indistinguishable from those of
a Supreme Court decision and arrives at a different con-
clusion. Williams v. Taylor, 529 U.S. 362 (2000). If the case
involves an “unreasonable application” of Supreme Court
precedent, we defer to reasonable state court decisions. Bell
v. Cone, 535 U.S. 685 (2002). State court factual findings
that are reasonably based on the record are accorded a
presumption of correctness, and the state court’s findings of
facts must be rebutted by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Denny v. Gudmanson, 252 F.3d 896 (7th
Cir. 2001).
  Lambert contends that the Indiana Supreme Court deci-
sion, where it reweighed the statutory factors in aggrava-
tion and mitigation and then permitted his death sentence
to stand, is contrary to or an unreasonable application of
Clemons v. Mississippi, 494 U.S. 738 (1990).
No. 03-1015                                                   5

  Quite obviously, Lambert’s row to hoe on this issue would
be smoother if he could rely on Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428 (2002). As he recognizes, however, that
argument is foreclosed to him, as it was in Trueblood v.
Davis, 301 F.3d 784 (7th Cir. 2002), where we observed,
without an extended discussion, that the Supreme Court
has not held Ring to be retroactive to cases on collateral
review. See also Szabo v. Walls, 313 F.3d 392 (7th Cir.
2002). We will now add a bit to that discussion.
  In Ring, the Supreme Court held that the Sixth
Amendment jury trial guarantee extends to the determi-
nation of any fact, other than a prior conviction, that in-
creases the maximum punishment for first degree murder
from life imprisonment to death. Essentially, this is an
application, perhaps more accurately an extension, of the
rule announced earlier in Apprendi v. New Jersey, 530 U.S.
466 (2000). Because the rule in Apprendi is not retroactive,
Curtis v. United States, 294 F.3d 841 (7th Cir. 2002), it
stands to follow that the rule in Ring, an Apprendi child, is
not retroactive for the same reasons. Two circuits, the
Tenth and Eleventh, have expressly held that Ring is not
retroactive to cases on collateral review. See Cannon v.
Mullin, 297 F.3d 989 (10th Cir. 2002), and Turner v.
Crosby, 339 F.3d 1247 (11th Cir. 2003). These decisions
make the convincing case that first Apprendi, and then
Ring, only established new rules of criminal procedure.
They did not involve substantive changes in the law.
And Teague v. Lane, 489 U.S. 288 (1989), holds that new
constitutional rules of criminal procedure do not apply to
cases that are final before the new rules are announced.
Teague does provide two exceptions to this general rule.
First, a new rule applies retroactively if it places a class
of private conduct beyond the power of the criminal law-
making authority to proscribe or punish. Second, a new rule
applies retroactively if (1) it is a watershed rule that “alters
our understanding of the bedrock procedural elements that
must be found to vitiate the fairness of a particular convic-
6                                                No. 03-1015

tion,” id. at 311, and (2) under the new rule “the likelihood
of an accurate conviction is seriously diminished,” id. at
313. Today we reaffirm what we held in Trueblood and
Szabo and join the Tenth and Eleventh Circuits in ex-
pressly holding that Ring does not fit under either of the
Teague exemptions to non-retroactivity.
  In reaching this conclusion, we are mindful of the con-
trary view recently expressed by the Ninth Circuit in
Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003)
(en banc), cert. granted, No. 03-526 (U.S. Dec. 1, 2003). With
all due respect, however, we cannot agree with that circuit’s
view that Ring is a substantive change in the law exempt
from Teague’s retroactivity bar. And so we return to Lam-
bert’s claim for relief in reliance on Clemons.
  Clemons held that it was constitutionally permissible
for a state appellate court to uphold a jury-imposed death
sentence that is based in part on an invalid aggravat-
ing factor by reweighing the aggravating and mitigat-
ing evidence or by harmless-error review. Lambert argues
that the Indiana Supreme Court could uphold the death
sentence in his case either by finding that the admission of
the victim-impact testimony was harmless (the court
specifically found that it was not) or by reweighing the ag-
gravating and mitigating factors. But, he argues, Clemons
does not allow them to engage in both harmless-error re-
view and a reweighing: Having said the admission of the
testimony could not be considered harmless, the court was
required to remand the case for resentencing, rather than
to perform the weighing itself. In other words, Lambert
says Clemons allows a court to do one or the other, not both.
  Clemons involved a Mississippi scheme where the jury
weighs the mitigating and aggravating factors. The Court
noted that its previous holdings had considered the cir-
cumstance in which an aggravating factor made a defen-
dant eligible for the death penalty. In that circumstance,
invalidation of one factor did not necessarily require an
No. 03-1015                                               7

appellate court to vacate the death sentence. The Court
said, however, that it had not previously determined the
significance of the invalidation of a particular aggravating
circumstance under a statutory scheme in which the judge
or the jury was specifically instructed to weigh statutory
aggravating and mitigating circumstances in deciding
whether to impose the death penalty. What the Court had
to consider was whether, in a circumstance in which the
jury was charged with weighing the factors and a factor was
found to be invalid, an appellate court could nevertheless
uphold the death sentence. It was in that context that the
Court stated that the death sentence could be upheld either
through harmless-error analysis or by reweighing the
factors. Reweighing by the appellate court was allowed even
though, under the state statute, the sentencing decision was
committed to the jury.
  If reweighing can be done by the appellate court when the
jury is charged with the sentencing decision, it seems clear
to us that when the jury’s determination is only advisory,
the appellate court has latitude to reweigh the factors. As
we said, at the relevant time, Indiana had a hybrid death
penalty scheme, in which a jury rendered an advisory
verdict but the judge made the ultimate sentencing deter-
mination. What happened here, according to the Indiana
Supreme Court, is that the admission of the victim-impact
evidence was error and it was not harmless. That would
mean that the jury’s recommendation was flawed. But,
under what was then the Indiana scheme, the jury’s
recommendation was just that: an advisory recommenda-
tion. Under those circumstances, it is not an improper
extension of Clemons to say that the appellate court could
reweigh the appropriate aggravating and mitigating factors
and allow a death sentence to stand.
  Lambert tries to bolster his argument that the reweighing
was inappropriate by pointing out that a dissenting member
of the Indiana Supreme Court found resentencing by the
appellate court to be inappropriate. 675 N.E.2d at 1066. The
8                                               No. 03-1015

dissenting justice, however, based his dissent on provisions
in the Indiana Constitution, not precedent from the United
States Supreme Court. Furthermore, he concurred in the
later decision, upholding the denial of postconviction relief
on this issue. 743 N.E.2d 719.
  As a final word on this point, we note that our decision in
this matter will soon become a fossil. The Indiana statutes
were revised in 2002. Indiana Code 35-50-2-9(e)(2) now
states that if “the jury reaches a sentencing recommenda-
tion, the court shall sentence the defendant accordingly.”
Furthermore, as we noted, the procedure followed in this
case is called into serious question by Ring v. Arizona, 122
S. Ct. 2428 (2002). But based on Lambert’s argument and
the law as it applies to him, we find no error in how his
death sentence was treated by the court.
  That being said, Lambert’s remaining arguments become
somewhat meaningless; they go to matters which allegedly
could have prejudiced the jury at the death penalty hearing.
Because the jury recommendation has already been deter-
mined to be invalid, we will look only briefly at the remain-
ing arguments.
  First, Lambert contends that his counsel was ineffective
by failing to object to the presence of uniformed police
officers as spectators in the courtroom during the trial.
He says that the presence of the officers is a violation of
Holbrook v. Flynn, 475 U.S. 560 (1986). The argument fails.
Holbrook involved officers stationed in the courtroom as
guards, not spectators. And, more importantly, their
presence, which was at least as apparent as the officers
in this case, was not found to be prejudicial. In Lambert’s
case, the number of officers present varied from time to
time, but during trial there were from 6 to 8 present, and at
crucial times that number rose to 15. They were seated in
the spectator section, which in this particular courtroom
was separated from the proceedings by a transparent
barrier, similar to that in a hockey rink. Apparently, as
they entered the courtroom the jurors could see the spec-
No. 03-1015                                                  9

tators, but once they were in their seats, their backs were
to the spectator section. Finally, there was no indication
that the officers were in any way trying to intimidate the
jurors. Furthermore, trials are open to the public, including
to police officers, and the state trial judge concluded that he
would have overruled any objection to the presence of the
officers. 743 N.E.2d at 732. That counsel did not object to
their presence does not render his performance deficient
under the standard set out in Strickland v. Washington, 466
U.S. 668 (1984).
  More importantly, however, the presence of the officers
could not have any effect on the Indiana Supreme Court,
who ultimately allowed the death sentence to be effective.
  Lambert also raises an issue of prosecutorial misconduct
in statements made in closing argument at the penalty
hearing. In the district court, the issue was framed as
an issue of incompetence of counsel for failing to object to
the argument. We will consider the issue in that context.
As a freestanding argument that there was prosecutorial
misconduct, the argument runs into procedural problems
involving waiver and procedural default.
  Lambert contends that his counsel should have objected
to remarks made by the prosecutor. Those remarks included
a statement that Justices Rehnquist and White said they
believed death sentences to be an appropriate protection for
police officers and described police officers as “foot soldiers
of society’s defense of ordered liberty.” The prosecutor read
a poem that was presented at Officer Winters’ funeral and
argued that the death penalty was appropriate because
police officers are soldiers in a war against crime. The
Indiana Supreme Court found that these arguments
“pushed the bounds of zealous advocacy,” 743 N.E.2d at
737, but concluded that the trial court would not have had
to sustain an objection to them. In evaluating a claim of
10                                               No. 03-1015

prosecutorial misconduct, the relevant inquiry is whether
the prosecutor’s conduct “so infected the trial with unfair-
ness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986),
quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
We cannot say that the conclusion of the Indiana court is
contrary to either case.
  Lambert also contends that his attorney should have
objected to comments that mitigation cannot override the
aggravating circumstances of the case. Lambert seems
to contend that this was a statement that, in every case
where a police officer is killed, this aggravating circum-
stance overrides any mitigating evidence. It is not clear that
the prosecutor was attempting to state a principle of law.
The argument was impassioned but not necessarily objec-
tionable.
  Under Strickland, we must note that there may very well
be strategic reasons for counsel not to object during closing
arguments. Counsel may have been trying to avoid calling
attention to the statements and thus giving them more
force. As it was, the comments were brief responses to
arguments made by Lambert’s attorneys.
  The Indiana Supreme Court concluded that counsel’s
performance was not deficient, and we cannot find the
conclusion to be an unreasonable application of Supreme
Court precedent.
    Finally, Lambert contends that the decision of the
Indiana Supreme Court is contrary to Brady v. Maryland,
373 U.S. 83 (1963), which requires the prosecution to dis-
close favorable evidence that is material to a defendant’s
case. That evidence was that, shortly before trial, the State
had agreed to Richard Garske’s request for sentence modi-
fication in exchange for his testimony. Garske was incarcer-
ated in the county jail at the same time as Lambert, and he
testified for the State. He said Lambert told him it “was just
No. 03-1015                                               11

a cop. Well, it was just a pig is what it was. Not a cop.”
During cross-examination, counsel asked Garske about his
criminal record but not about possible deals he had with the
State in exchange for his testimony. Lambert argues that
the cross-examination would have been more effective had
he been given the withheld evidence that he could have
used to impeach Garske’s testimony. That he wasn’t told
constitutes a Brady violation, he argues.
  Lambert also contends that had he been given the infor-
mation, he could have called other prisoners to challenge
the basis for Garske’s testimony. For instance, Bruce
Carpenter, a fellow inmate, testified in the postconviction
proceedings that he told Lambert “to keep his mouth shut
about his case . . . because everybody in here wanted out,
and his case was certainly a way for everybody to get out.”
Carpenter also testified that he never saw Lambert talking
to Garske. Another inmate, William Barnhouse, testified in
the postconviction hearing that he never heard Lambert
discuss his case.
  As a preliminary matter, it is difficult to see how any
of the testimony from other inmates is dependent upon
knowledge that Garske might receive a sentence reduction.
The inmates could have been called regardless of whether
Lambert was given the information. Carpenter’s state-
ment that Lambert should keep his mouth shut would
be relevant whether or not Garske had a deal. Carpenter’s
statement that he never saw Lambert talking to Garske
and Barnhouse’s statement that he never heard Lambert
discussing his case really prove not much of anything,
and, more importantly, they are not dependent on any
deal Garske may have had, even if he had one prior to
testifying. More importantly, that there was no explicit
agreement between the State and Garske at the time he
testified is a factual determination, and factual findings by
the Indiana courts on the point are entitled to a presump-
tion of correctness. 28 U.S.C. § 2254(e)(1). We agree with
12                                              No. 03-1015

the district court that Lambert did not overcome the pre-
sumption by clear and convincing evidence.
  For these reasons, the decision of the district court deny-
ing Lambert’s petition for a writ of habeas corpus is
AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—4-7-04
