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

No. 02-4262
DONALD RAY WALLACE, JR.,
                                           Petitioner-Appellant,
                               v.

CECIL DAVIS,
                                          Respondent-Appellee.

                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
       No. 95-0215-C-B/S—Sarah Evans Barker, Judge.
                         ____________
               PETITION FOR REHEARING AND
                   REHEARING EN BANC
                      ____________
                   DECIDED JUNE 28, 2004
                       ____________



 Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P.
WOOD, EVANS, and WILLIAMS, Circuit Judges.
  Petitioner-appellant filed a petition for rehearing and
rehearing en banc on April 9, 2004. A majority of the judges
on the panel voted to deny rehearing. A judge called for a
vote on the petition for rehearing en banc, but a majority of
the active judges did not favor rehearing en banc. Accord-
ingly, the petition is denied.
2                                                No. 02-4262

  RIPPLE, Circuit Judge, with whom ROVNER, DIANE P.
WOOD and WILLIAMS, Circuit Judges, join, dissenting from
the denial of rehearing en banc. Federal Rule of Appellate
Procedure 35 explains that rehearing should be granted
when “(1) en banc consideration is necessary to secure or
maintain uniformity of the court’s decisions” or “(2) the
proceeding involves a question of exceptional importance.”
Both of these disjunctively-stated criteria in Rule 35—uni-
formity and exceptional importance—justify the court’s
rehearing this case en banc.
  As to the first criterion, uniformity, the panel majority’s
holding that the line of cases including Johnson v.
Mississippi, 486 U.S. 578 (1988); Clemons v. Mississippi,
494 U.S. 738 (1990); and Sochor v. Florida, 504 U.S. 527
(1992), applies only to the eligibility stage of the death de-
termination, and not the weighing process itself, is at odds
with those decisions and this court’s decision in Hough v.
Anderson, 272 F.3d 878, 906 (7th Cir. 2001) (a decision that
the panel majority does not cite). Judge Williams’ separate
opinion succinctly makes this point; I simply add that the
question is not even a close one. Johnson, Clemons and
Sochor were all explicitly about the necessity of curing an
infection in the weighing process when an erroneous
aggravating factor has played a part in determining
whether the defendant ought to be sentenced to death. In
addition to the authority and specific passages provided by
Judge Williams, the Supreme Court’s summary of the
relevant principle in Sochor is worth recalling:
    In a weighing State like Florida, there is Eighth
    Amendment error when the sentencer weighs an “in-
    valid” aggravating circumstance in reaching the ulti-
    mate decision to impose a death sentence. See Clemons
    v. Mississippi, 494 U.S. 738, 752 (1990). Employing an
    invalid aggravating factor in the weighing process
    “creates the possibility . . . of randomness,” Stringer v.
    Black, 503 U.S. 222, 236 (1992), by placing a “thumb
No. 02-4262                                                 3

    [on] death’s side of the scale,” id. at 232, thus “cre-
    at[ing] the risk [of] treat[ing] the defendant as more
    deserving of the death penalty,” id. at 235. Even when
    other valid aggravating factors exist, merely affirming
    a sentence reached by weighing an invalid aggravating
    factor deprives a defendant of “the individualized
    treatment that would result from actual reweighing of
    the mix of mitigating factors and aggravating circum-
    stances.” Clemons, [494 U.S.] at 752 (citing Lockett v.
    Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma,
    455 U.S. 104 (1982)); see Parker v. Dugger, 498 U.S.
    308, 321 (1991). While federal law does not require the
    state appellate court to remand for resentencing, it
    must, short of remand, either itself reweigh without the
    invalid aggravating factor or determine that weighing
    the invalid factor was harmless error. Id. at 320.
504 U.S. at 532.
  As to the second criterion for rehearing, exceptional im-
portance, we need only recall that the Supreme Court has
calibrated carefully its jurisprudence in the capital pun-
ishment arena to ensure reliability in the State’s decision
to deprive a human being of life. See Johnson, 486 U.S. at
584 (“The fundamental respect for humanity underlying the
Eighth Amendment’s prohibition against cruel and unusual
punishment gives rise to a special need for reliability in the
determination that death is the appropriate punishment in
any capital case.” (internal quotation marks and citations
omitted)). The majority opinion in this case rides roughshod
over a cornerstone in that jurisprudence—that invalid
factors infecting the weighing process must be cured by the
State. The panel majority’s deviation from the course set by
the Supreme Court is precisely the sort of exceptional error
Rule 35 was intended to address.
  It should not escape notice that, when the State filed its
Answer to Mr. Wallace’s Petition for Rehearing, it did not
even attempt to defend the panel majority’s restriction of
4                                                     No. 02-4262

the Johnson line of cases to the eligibility stage. See Answer
at 6. Rather, the State advanced, inter alia, that the state
court trial judge did not take into account the invalid
factors in the weighing process, and, thus, the Johnson line
was not triggered. See id. Judge Williams’ separate decision
is in agreement with that proposition. Even assuming that
is the case (and from my vantage point, the issue is close),
rehearing is still necessary. First, the panel majority’s error
that Johnson and progeny only apply to eligibility perme-
ates the majority’s discussion and is not easily isolated.1



1
  For example, the opinion states that “[t]he problem in cases
such as Johnson, Zant, and Tuggle arose because an accused was
declared eligible for capital punishment on grounds that may have
been erroneous, and it became essential to know whether, with
the invalid ground sheared off, the accused still would be eligible.”
Slip Op. at 5. As discussed by Judge Williams’ opinion, see Slip
Op. at 14-15 & n.3, and in the text above, Johnson v. Mississippi,
486 U.S. 578 (1988), was about nothing of the sort. See id. at 586
(“The prosecutor repeatedly urged the jury to give it weight in
connection with its assigned task of balancing aggravating and
mitigating circumstances ‘one against the other.’ [record citations
omitted]. Even without that express argument, there would be a
possibility that the jury’s belief that petitioner had been convicted
of a prior felony would be ‘decisive’ in the ‘choice between a life
sentence and a death sentence.’ ” Gardner v. Florida, [430 U.S.
349, 359 (1977) (plurality opinion)].”).
  To the extent the panel majority’s assertion is an attempt to run
together Johnson—a case explicitly about a weighing state
(Mississippi)—with Zant and Tuggle—cases about non-weighing
states (Georgia and Virginia, respectively)—this too presents
grave problems. Indiana is a weighing state, and in weighing
states, aggravating factors play a significantly different role than
in non-weighing states. In Stringer v. Black, 503 U.S. 222 (1992),
the Supreme Court explained in language particularly appropriate
for this case:
                                                      (continued...)
No. 02-4262                                                          5




1
    (...continued)
       With respect to the function of a state reviewing court in
       determining whether the sentence can be upheld despite the
       use of an improper aggravating factor, the difference between
       a weighing State and a nonweighing State is not one of
       “semantics,” as the Court of Appeals thought, but of critical
       importance. In a nonweighing State, so long as the sentencing
       body finds at least one valid aggravating factor, the fact that
       it also finds an invalid aggravating factor does not infect the
       formal process of deciding whether death is an appropriate
       penalty. Assuming a determination by the state appellate
       court that the invalid factor would not have made a difference
       to the jury’s determination, there is no constitutional viola-
       tion resulting from the introduction of the invalid factor in an
       earlier stage of the proceedings. But when the sentencing
       body is told to weigh an invalid factor in its decision, a
       reviewing court may not assume it would have made no
       difference if the thumb had been removed from death’s side
       of the scale. When the weighing process itself has been
       skewed, only constitutional harmless-error analysis or
       reweighing at the trial or appellate level suffices to guarantee
       that the defendant received an individualized sentence. This
       clear principle emerges not from any single case, as the
       dissent would require, but from our long line of authority
       setting forth the dual constitutional criteria of precise and
       individualized sentencing. Thus, the principal difference
       between the sentencing systems of Mississippi and Georgia,
       the different role played by aggravating factors in the two
       States, underscores the applicability of Godfrey and Maynard
       to the Mississippi system.
Id. at 231-32 (citations omitted). The Supreme Court has been
careful to separate its case law on weighing and non-weighing
states. See Tuggle v. Netherland, 516 U.S. 10, 11 (1995) (per
curiam) (“In Zant v. Stephens, 462 U.S. 862 (1983), we held that
a death sentence supported by multiple aggravating circum-
stances need not always be set aside if one aggravator is found to
                                                    (continued...)
6                                                   No. 02-4262

Also, whatever the correct outcome in this case, we remain
under a fundamental obligation to ensure that the capital
punishment jurisprudence of this court conforms to that of
the Supreme Court. This obligation takes on special
meaning when a panel majority speaks on an issue of
immense importance in other death cases and does so in a
manner that is fundamentally at odds with the Supreme
Court’s carefully crafted jurisprudence.
  I respectfully dissent from the denial of rehearing en
banc.

A true Copy:
       Teste:

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




1
   (...continued)
be invalid. Id. at 886-88. We noted that our holding did not apply
in States in which the jury is instructed to weigh aggravating
circumstances against mitigating circumstances in determining
whether to impose the death penalty. Id. at 874 n.12, 890.”). So
should we.



                     USCA-02-C-0072—6-28-04
