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 aggravating-
mitigating 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.
