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

No. 05-2610
MICHAEL ALLEN LAMBERT,
                                          Petitioner-Appellant,
                               v.

CECIL DAVIS, Superintendent,
                                          Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
  No. 1:05-CV-708-LJM-VSS—Larry J. McKinney, Chief Judge.
                         ____________
    ARGUED OCTOBER 26, 2005—DECIDED MAY 31, 2006
                   ____________


 Before RIPPLE, KANNE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Michael Lambert was convicted of
murder and sentenced to death for killing a Muncie,
Indiana, police officer in 1990. After a decade of post-
conviction litigation, and still under a sentence of death,
Lambert exhausted his remedies in the Indiana courts
and moved to federal court with the filing of a habeas
corpus petition in 2001. The district court, Chief Judge
Larry J. McKinney of the United States District Court for
the Southern District of Indiana presiding, denied the
petition in 2002. Lambert appealed that decision and we
affirmed Chief Judge McKinney’s judgment. Lambert v.
McBride, 365 F.3d 557 (7th Cir. 2004), cert. denied, 125
S. Ct. 669 (2004).
2                                                 No. 05-2610

  After we rejected his claims in 2004, Lambert returned to
state court with a new postconviction motion. When the
Indiana courts again declined to grant his request for relief,
Lambert v. State, 825 N.E.2d 1261 (Ind. 2005), Lambert
returned once again to Judge McKinney with the filing of
another petition for federal habeas corpus. The judge
dismissed the petition, concluding that it was successive
under 28 U.S.C. § 2244(b)(3)(A) and could not, therefore, be
entertained without our approval. Lambert appealed that
decision to us and we granted a certificate of appealability
on two issues:
    (1) Whether Mr. Lambert’s current petition for a writ
    of habeas corpus, which rests upon an act of the Su-
    preme Court of Indiana that occurred subsequent to the
    filing of his initial habeas petition, constitutes “a second
    or successive application” for purposes of 28 U.S.C. [§]
    2244, and if so, whether Mr. Lambert’s current petition
    falls within a statutory or constitutional exception to
    the bar on second or successive petitions contained in
    [§] 2244(b)(2); and
    (2) Whether the decision of the Supreme Court of
    Indiana not to apply to Mr. Lambert’s sentence the rule
    of Saylor v. State, 808 N.E.2d 646 (Ind. 2004), which
    made retroactive to some death sentences the 2002
    amendments to the Indiana death penalty statute,
    constituted a violation of Mr. Lambert’s rights to due
    process or to equal protection of the laws as guaranteed
    by the Fourteenth Amendment.
  The facts in this case are outlined in our 2004 opinion
and, in more detail, in the Indiana Supreme Court’s 1994
opinion, Lambert v. State, 643 N.E.2d 349 (Ind. 1994). For
our purposes, we can skip the details and simply note that
in December of 1990, Lambert was arrested for public
intoxication by a Muncie, Indiana, police officer. He was
searched, handcuffed, and placed in the back seat of a
No. 05-2610                                               3

squad car. Unfortunately, a gun Lambert had hidden on his
person escaped detection during the search. Then, while
being driven to the police station by Officer Gregg Winters
(Winters was not the officer who conducted the search),
Lambert was somehow able to retrieve the gun and shoot
Winters five times in the back of the head and neck.
Winters died 11 days later. Lambert was charged with the
intentional murder of Officer Winters, a jury found him
guilty, and the same jury, after hearing evidence during the
penalty stage of the proceeding, recommended a sentence of
death. The trial judge then imposed the death penalty.
  Lambert appealed his conviction and sentence to the
Supreme Court of Indiana, which remanded the case to the
trial judge to reconsider evidence of intoxication as a
possible mitigating factor in the penalty determination. The
trial judge again sentenced Lambert to death, and this time
the court affirmed both Lambert’s conviction and sentence.
Lambert, 643 N.E.2d 349 (Ind. 1994). On rehearing, how-
ever, the court held that certain victim-impact evidence was
improperly admitted into evidence before the jury and that
its admission was not harmless error. But the court also
found, after itself weighing the factors in aggravation and
mitigation, that the death sentence was proper. See Lam-
bert v. State, 675 N.E.2d 1060 (Ind. 1996).
  Lambert then filed a petition for state postconviction
relief in the trial court, raising claims that are not at
issue here. The court denied relief and the Supreme Court
of Indiana affirmed. Lambert v. State, 743 N.E.2d 719 (Ind.
2001). Along the way, petitions for writs of certiorari were
presented to the United States Supreme Court and denied.
See Lambert v. Indiana, 520 U.S. 1255 (1997); Lambert v.
Indiana, 534 U.S. 1136 (2002).
  Lambert filed a petition for a writ of habeas corpus in
federal district court under 28 U.S.C. § 2254 in 2003,
arguing that the Supreme Court of Indiana erred when
it engaged in appellate reweighing of the aggravating
4                                                No. 05-2610

and mitigating factors and then upheld his death sentence
despite finding that the trial court’s admission of the victim-
impact testimony before the jury was not harmless error.
Lambert contended that this practice ran afoul of Clemons
v. Mississippi, 494 U.S. 738 (1990), which held that it is
constitutionally permissible for a state reviewing court to
uphold a jury-imposed death sentence based in part on an
invalid aggravating factor by reweighing the aggravating
and mitigating evidence or through harmless error review.
Lambert contended that Clemons allows either appellate
reweighing or harmless error analysis, but not both.
Therefore, in his view, once the Supreme Court of Indiana
found nonharmless error, it should have vacated his death
sentence and ordered a new sentencing proceeding. The
district court denied his petition.
  Lambert appealed and we affirmed the district court
in 2004, noting that “[i]f reweighing can be done by the
appellate court when the jury is charged with the sentenc-
ing decision [as in Clemons], . . . when the jury’s determina-
tion is only advisory, the appellate court has latitude to
reweigh the factors.” Lambert, 365 F.3d at 563. Accordingly,
we concluded that the Supreme Court of Indiana did not
improperly extend the holding in Clemons.
   After we wrapped up our work on the case, Lambert
returned to state court with a request for leave to file a
successive petition for postconviction relief. There, he
argued that his death sentence conflicted with Saylor v.
Indiana, 808 N.E.2d 646 (Ind. 2004), a recent case where
the Supreme Court of Indiana invalidated a death sentence
imposed by a judge despite a jury recommendation against
it. In Saylor, the court noted that this “jury-override” was
improper in light of the 2002 revisions to the Indiana death
penalty statute, which provide that a trial judge cannot
impose a death sentence if a jury unanimously recommends
against it. In 2005, the court denied Lambert’s request,
concluding that because his circumstances were decidedly
No. 05-2610                                                 5

different, Saylor did not apply. See Lambert v. State, 825
N.E.2d 1261, 1263 (Ind. 2005). In doing so, the court noted
that “neither Saylor nor the 2002 amendments to the death
penalty statute affect, in any way relevant to Lambert’s
case, our constitutional authority to review or revise
sentences or the appropriate remedies for erroneous
admission of evidence.” Id. at 1264.
  After coming up short again in state court, Lambert filed
his present petition for a writ of habeas corpus, arguing
once again that his sentence must be vacated because the
jury’s recommendation was tainted by the improper admis-
sion of certain victim-impact evidence. It was this petition
that Judge McKinney dismissed for lack of jurisdiction. See
Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996). In
doing so, Chief Judge McKinney concluded that:
      Lambert cannot evade the treatment of the present
    petitions as a second or successive petition based on the
    argument that the present claim was not “ripe” until
    the Indiana Supreme Court applied the 2002 amend-
    ments in Saylor. The essential nature of the argument
    here, as in Lambert’s first habeas petition, is that the
    appellate reweighing of statutory factors in aggravation
    and mitigation and then permitting his death sentence
    to stand, all in the face of a flawed jury recommenda-
    tion, is not constitutionally permissible.
  Section 2244(b)(3)(A) “is an allocation of subject-matter
jurisdiction to the court of appeals. A district court must
dismiss a second or successive petition . . . unless the court
of appeals has given approval for the filing.” Nuñez, 96 F.3d
at 991. Here, Lambert’s petition is successive under
§ 2244(b)(3)(A), as it attacks the same judgment based on
the same argument—that his death sentence is invalid
because the jury recommendation was tainted by the
improper victim-impact evidence it heard. Lambert, how-
ever, argues that his present challenge is new because it
6                                               No. 05-2610

was not “ripe” until Saylor was decided. We cannot accept
his argument. Saylor is irrelevant to Lambert’s sentence, as
it concerned a trial court overriding a jury recommendation
against imposing a death sentence. That is of no concern
here because Lambert’s jury recommended a sentence of
death. Moreover, as we noted in our opinion denying his
first collateral attack, the 2002 revisions to the Indiana
death penalty statute were in place when his first petition
was pending. Thus, he could have raised an argument based
on the 2002 amendments in his initial petition.
  But our analysis goes on. Under Nuñez, we may construe
Lambert’s appeal as an implied request that we grant leave
to file a successive application for relief. We deny this
request because Lambert’s proposed claim does not meet
the requirements for bringing a successive petition under 28
U.S.C. § 2244(b)(2). That provision requires that a succes-
sive application shall be dismissed unless:
    (A) the applicant shows that the claim relies on a new
    rule of constitutional law, made retroactive to cases
    on collateral review by the Supreme Court, that was
    previously unavailable; or
    (B)(i) the factual predicate for the claim could not have
    been discovered previously through the exercise of due
    diligence; and
    (ii) the facts underlying the claim, if proven and viewed
    in light of the evidence as a whole, would be sufficient
    to establish by clear and convincing evidence that, but
    for constitutional error, no reasonable factfinder would
    have found the applicant guilty of the underlying
    offense.
Lambert’s petition does not rely on these factors, and
therefore it must be denied.
  Finally, even if it were wrong to characterize Lambert’s
petition as successive, his challenge could not prevail
No. 05-2610                                                   7

because it rests on a claim that the Indiana Supreme Court
misinterpreted state law. The claim, quite simply, is that
the court was required to give him the same benefit it
bestowed on the defendant in Saylor. The court in Saylor,
however, interpreting state law, did not consider the 2002
Indiana statutory amendments to be retroactive. Instead, it
used its state-law authority to review and revise sentences
to vacate a sentence that could not be imposed today.
Saylor, 808 N.E.2d at 647.1
  In resolving Lambert’s case, the court found that his
circumstances were materially different from those in
Saylor. Without question, the aggravating circum-
stance—the murder of a police officer acting in the course
of duty—was proven beyond a reasonable doubt in Lam-
bert’s case, and the jury did not recommend against a death
sentence. Unlike the defendant in Saylor, Lambert could
still receive a death sentence today if his case was tried
again with the same result as before. What Lambert argues
now is that the state supreme court got it wrong
in construing Indiana law because it was obligated to revise
his sentence as “inappropriate” in light of the statutory
change. But this is an issue of state, not federal, law.
Federal habeas courts lack subject-matter jurisdiction over
such issues. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502
U.S. 62, 67 (1991) (matters of state law are outside the
purview of federal habeas corpus). Moreover, to the extent


1
  Our dissenting colleague, in a bit of overheated hyperbole,
accuses us of a “willingness to tolerate even the most egregious
forms of discrimination at the hands of a state.” But the Su-
preme Court of Indiana didn’t decline to grant relief to Mr.
Lambert (to use the dissent’s examples) because of his race or
religion. It applied—free of discrimination—state law. That
our dissenting colleague is more comfortable with the view
expressed by the dissenters in Indiana is not a reason why we
are free to jettison the view of that court’s majority.
8                                                No. 05-2610

that they were even presented, the state supreme court
reasonably rejected Lambert’s due process and equal
protection claims. Lambert, 825 N.E.2d at 1263-64.
  Our understanding of Saylor is further buttressed by
the case of Eric Holmes, who was sentenced to death
despite his jury being unable to reach a unanimous recom-
mendation that the penalty should be applied. Holmes was
also denied relief under Saylor because Indiana law still
permitted (of course, the landscape was changed in Ring v.
Arizona, 536 U.S. 584 (2002), but, as we pointed out when
we last saw this case, that decision is not retroactive, see
Lambert, 365 F.3d at 561-62) a sentence of death where a
jury was hung and made no recommendation as to an
appropriate sentence. See Holmes v. State, 820 N.E.2d 136,
138-39 (Ind. 2005).
  As we have observed, “Nothing in the Constitution
entitles state defendants to obtain a federal benefit from
errors of state law.” In re Page, 170 F.3d 659, 662 (on reh’g,
179 F.3d 1024 (1999)). And, at most, that’s what Lambert
points to. Accordingly, we AFFIRM the district court’s
judgment and DENY Lambert’s requests for leave to file
a successive petition for a writ of habeas corpus. We also
vacate the stay of execution entered on June 17, 2005.
No. 05-2610                                                 9

  RIPPLE, Circuit Judge, dissenting.

                              I
  At this stage of the proceeding, the prime question before
us is whether the district court was correct in ruling that
Mr. Lambert’s petition was a successive petition. Having
characterized the petition as successive, the district
court dismissed the action because the petitioner had
not obtained permission from this court to file such a
petition. R.12 at 2.
   In my view, the district court erred in this determination.
It should have permitted the petition to be filed and decided
the matter in due course. I would therefore reverse the
judgment of the district court and remand this case for
proceedings consistent with this opinion.
  Section 2244(b)(2) of the judicial code provides:
    A claim presented in a second or successive habeas
    corpus application under section 2254 that was not
    presented in a prior application shall be dismissed
    unless—
        (A) the applicant shows that the claim relies on a
        new rule of constitutional law, made retroactive to
        cases on collateral review by the Supreme Court,
        that was previously unavailable; or
        (B)(i) the factual predicate for the claim could not
        have been discovered previously through the exer-
        cise of due diligence; and
        (ii) the facts underlying the claim, if proven and
        viewed in light of the evidence as a whole, would be
        sufficient to establish by clear and convincing
        evidence that, but for constitutional error, no
        reasonable factfinder would have found the appli-
        cant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
10                                                    No. 05-2610

   My colleagues take the district court’s view that, be-
cause Mr. Lambert’s habeas petition does not fall within the
categories defined by (A) or (B), it must be dismissed.
However, Mr. Lambert must meet the requirements set
forth in (A) or (B) only if his petition is actually a “second or
successive” petition. The Supreme Court has instructed that
“‘second or successive’ is a term of art given substance in
our prior habeas corpus cases,” Slack v. McDaniel, 529 U.S.
473, 486 (2000), which incorporates the abuse of the writ
doctrine.1 The case law provides little other guidance,



1
  The Supreme Court’s decision in Slack v. McDaniel, 529 U.S.
473 (2000), calls into question the reasoning of this court in In re
Page, 179 F.3d 1024 (7th Cir. 1999), on which the State of Indiana
relies. In Page, we stated:
     Before the enactment of the Antiterrorism and Effective
     Death Penalty Act, which added section 2244(b)(2) to the
     habeas corpus statute, specifying the criteria for when a
     second or successive petition is permitted, the only limita-
     tion on a prisoner’s right to file successive petitions for fed-
     eral habeas corpus was the judge-made concept of “abuse of
     the writ.” That concept, an application to the habeas corpus
     setting of general principles of waiver or forfeiture, was
     replaced by the new criteria and passed out of the law. As we
     explained in Burris v. Parke, 95 F.3d 465, 469 (7th Cir. 1996)
     (en banc), “The doctrine of abuse of the writ is defunct. The
     term derives from section 2244(b), now wholly superseded
     by the new law [i.e., AEDPA], which nowhere uses the term.
     There is no longer any statutory handle for the doctrine, and
     in any event its role seems wholly preempted by the detailed
     provisions of the new statute concerning successive petitions.”
Page, 179 F.3d at 1025. In Slack, however, the Court dismissed
the notions that the language employed in AEDPA represented a
clean slate or that its pre-AEDPA case law could not inform the
term “second or successive” as used in that Act:
       The District Court dismissed claims Slack failed to raise
                                                  (continued...)
No. 05-2610                                                        11



1
    (...continued)
       in his 1991 petition based on its conclusion that Slack’s 1995
       petition was a second or successive habeas petition. This
       conclusion was wrong. A habeas petition filed in the district
       court after an initial habeas petition was unadjudicated on its
       merits and dismissed for failure to exhaust state remedies is
       not a second or successive petition.
        Slack commenced this habeas proceeding in the District
      Court in 1995, before AEDPA’s effective date. Because the
      question whether Slack’s petition was second or successive
      implicates his right to relief in the trial court, pre-AEDPA
      law governs, see Lindh v. Murphy, 521 U.S. 320 (1997),
      though we do not suggest the definition of second or succes-
      sive would be different under AEDPA. See Stewart v. Marti-
      nez-Villareal, 523 U.S. 637 (1998) (using pre-AEDPA law to
      interpret AEDPA’s provision governing “second or successive
      habeas applications”). . . .
        The phrase “second or successive petition” is a term of art
      given substance in our prior habeas corpus cases. . . .
Slack, 529 U.S. at 485-86 (parallel citations omitted).
   In Page, this court said that the statutory exceptions estab-
lished in AEDPA were wholly new standards that replaced our
former understanding of habeas law. Interpretations of prior law
were now irrelevant because Congress meant to establish a wholly
new system. However, in Slack, the Court rejected this premise.
The Court stated that pre-AEDPA law could, in fact, inform our
understanding of AEDPA.
  Nevertheless, Page speaks to a very different factual and
procedural situation from the one here. In Page, the state court
applied retroactively a new rule to the petitioner on collateral
review. Here, by contrast, Mr. Lambert’s contention is not
simply that he should or should not be the beneficiary of a
newly established rule. Mr. Lambert’s contention is that the
Supreme Court of Indiana has been arbitrary and capricious
in determining to whom it will apply this new rule. It is the direct
impact of the arbitrary application of the rule on him that raises
                                                     (continued...)
12                                                No. 05-2610

and the legislative history of AEDPA does little to illumi-
nate further the meaning of those terms.
   There is no question that, in enacting AEDPA, Congress
desired to put an end to the constant stream of habeas
petitions that were filed successively for no other reason
than to prolong the judicial process. See H.R. Conf. Rep.
104-518, at 111 (1996) (“This title incorporates reforms
to curb the abuse of the statutory writ of habeas corpus, and
to address the acute problem of unnecessary delay
and abuse in capital cases.”). However, it also is clear
that the petition now before us, when evaluated in the
context of its procedural history and of the constitutional
issue presented, is not the prototypical successive habeas
corpus petition. This case is not an attempt to revisit issues
or matters that already have been litigated or could have
been litigated in the first petition. This present claim is
based on a state judicial act, a decision of the Supreme
Court of Indiana that occurred after the completion of the
first habeas action; the alleged constitutional deprivation is
based upon the failure of the state court to treat the peti-
tioner in a manner consistent with its treatment of other
similarly situated individuals. It is difficult to imagine that,
when Congress enacted AEDPA in an attempt to curb the
filing of serial petitions that did nothing more than revisit
already-litigated matters, it intended to prevent the redress
of the type of grievance we have here—an action that could
not have been known or even anticipated at the time the
petitioner pursued the initial federal habeas claim.
  In not recognizing this important feature of the present
petition, the panel majority seemingly expresses its willing-
ness to tolerate even the most egregious forms of discrimi-
nation at the hands of a state, whenever the discrimination
occurs after the filing of the first petition. If, for example,


1
  (...continued)
the Eighth Amendment concerns articulated by Mr. Lambert.
No. 05-2610                                                  13

Mr. Lambert were alleging that the state supreme court did
not simply act arbitrarily, but instead made its decision to
“review and revise” based on the race or the religion of the
petitioner, would the majority adhere to its belief that §
2244 barred review? However, the fact that Mr. Lambert’s
claim is more nuanced than such a hypothetical situation is
not a reason to deprive Mr. Lambert of a means of redress
of which Congress certainly did not wish to deprive him.


                              II
  My colleagues believe that this petition presents no
substantial federal claim cognizable on habeas review. In
their view,
    [t]he claim, quite simply, is that the court [Supreme
    Court of Indiana] was required to give him [Lambert]
    the same benefit it bestowed on the defendant in
    Saylor. The court in Saylor, however, interpreting state
    law, did not consider the 2002 Indiana statutory
    amendments to be retroactive. Instead, it used its state-
    law authority to review and revise sentences to vacate a
    sentence that could not be imposed today.
Slip op. at 7 (emphasis added; citations omitted). In my
view, it is precisely this ad hoc selection of cases for “review
and revis[ion],” as opposed to a principled application of the
new rule of state law, that raises federal constitutional
concerns that, under the governing statutory scheme
embodied in § 2254, ought to be presented to the district
court. “[C]apital punishment [must] be imposed fairly, and
with reasonable consistency, or not at all.” Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982). The Supreme Court of
Indiana appears to have applied an inconsistent approach
in invoking its power to “review and revise” capital sen-
tences. This failure raises a significant federal constitu-
tional question cognizable on habeas review.
14                                                No. 05-2610

  No one disputes the authority of Indiana to craft a remedy
that incorporates the holding of Ring v. Arizona, 536 U.S.
584 (2002), to individuals currently on death row. The
Supreme Court of the United States has not required such
retroactive application, see Schriro v. Summerlin, 542 U.S.
348, 358 (2004), but that determination certainly does not
prevent a state court from fashioning a remedial principle
of state law that includes such retroactive application.
Having made that decision, however, the state court must
apply that remedial standard in a way that ensures that the
state courts will determine who is to live and who is to die
in a principled manner. The rudderless application mani-
fested in the cases decided by the Supreme Court of Indiana
raises a serious federal question that ought to be explored
in depth by the district court and by this court, if an appeal
is made to us in due course.
  An examination of the decisions of the Supreme Court
of Indiana in Saylor v. State, 808 N.E.2d 646 (Ind. 2004),
and in Holmes v. State, 820 N.E.2d 136 (Ind. 2005), followed
by a comparison of those cases with the present case, makes
clear the unconstitutional path that Indiana appears to
have followed. In Saylor, the court articulated a standard
that, as a matter of state law, was to govern the fate of
those individuals already condemned to death: “[I]t [wa]s
not appropriate to execute a person who was convicted and
sentenced through a procedure that has now been substan-
tially revised so the same trial today would no longer render
the defendant eligible for the death penalty.” Id. at 647. In
reaching this conclusion, the justices relied in part on the
fact that Saylor was among a small group of people who
would be
     executed despite a jury recommendation to the contrary
     . . . . Currently two other inmates are on death row
     after a judge overruled the jury’s recommendation
     against death . . . . There is the instance where the jury
No. 05-2610                                                    15

    was unable to agree on a recommendation and the
    death penalty was carried out, and another defendant
    sentenced in that circumstance remains on death row
    today. Holmes v. State, 671 N.E.2d 841 (Ind. 1996).
Id. at 650 (additional citations omitted).
  Despite the court’s initial inclination to see the same
injustice in Saylor and in Holmes, and, presumably, to
require the same treatment with respect to the revision
of their sentences, the court abandoned that view when
Holmes came before it for review. Instead, the court deter-
mined that Holmes was not entitled to the relief accorded
Saylor because Holmes did not involve the total absence of
a jury recommendation of death but simply a hung jury on
that all-important issue.2 A dissenting Justice recognized,
however, that, in light of the standard established in
Saylor, Holmes’ situation was not distinguishable clearly on
principled grounds:
      There are the differences in Petitioner’s and Saylor’s
    situations that the Court’s order identifies, to be sure.
    But one of the themes of the Saylor opinion that comes
    through loud and clear is the relative uniqueness of
    Saylor’s position—that part of the reason that it
    would have been improper to execute him was that he
    was one of only three people on death row whose jury
    had recommended against death. Petitioner’s situa-
    tion is almost as unique. Indeed, the Saylor opinion
    identified Petitioner by name as being only one of four
    people on death row (the others being the three just
    mentioned) whose juries had not recommended a
    sentence of death. Put differently, assuming the other


2
   The distinction, explained the court, was that, with respect
to Holmes, “[t]he jury did not reach a unanimous recommendation
on the State’s request for a death sentence in the penalty phase of
the trial.” Holmes v. State, 820 N.E.2d 136, 137 (Ind. 2005).
16                                                No. 05-2610

     two individuals in the same class as Saylor receive
     the same relief, Petitioner will be the only person on
     Indiana’s death row whose jury has not recommended
     a sentence of death.
        As to the 2002 amendments to the Indiana death
     penalty statute, it is true that the statute still autho-
     rizes the sentencing judge to impose a death sentence
     if the jury cannot agree on a sentencing recommenda-
     tion. But I do not think this package is wrapped tightly
     enough to say that there is no reasonable possibility
     that Petitioner is entitled to post-conviction relief. This
     is because, even though the statute still permits a judge
     to impose a death sentence in the face of a penalty
     phase “hung-jury,” the statute operates differently than
     it did prior to the United States Supreme Court’s
     decisions in Apprendi v. New Jersey, 530 U.S. 466
     (2000), and Ring v. Arizona, 536 U.S. 584 (2002). . . .
Holmes, 820 N.E.2d at 140 (Sullivan, J., dissenting).
  When Mr. Lambert’s appeal came before the Supreme
Court of Indiana, a majority of the Justices took the view
that the standard set forth in Saylor did not mandate the
same action in Lambert, 825 N.E.2d at 1263; in the major-
ity’s view, “[t]he circumstances for Lambert are different.
His is not a situation where the jury unanimously recom-
mended against the death sentence,” id. Two members
of the court concluded otherwise. Justice Rucker stated
that, “although the reasons differ slightly from those in
Saylor, it is apparent to me that, as a matter of Indiana
statutory law, if tried today Lambert could not be sentenced
to death under the facts presented in this case.” Id. at 1268
(Rucker, J., dissenting). Another justice also was troubled
by the majority’s rejection of Mr. Lambert’s prayer for relief:
“We have a flawed jury recommendation, and therefore do
not know whether, without the erroneously introduced
evidence, the jury would have recommended death, as it did
No. 05-2610                                                     17

in Lambert’s case, or recommended against death, as it did
in Saylor’s.” Id. at 1264. Justice Boehm also spoke directly
to the supreme court’s power to review and revise sen-
tences:
    This Court has the authority to review and revise
    sentences, but only within the parameters of the
    sentencing statutes. If this were a direct appeal from a
    trial conducted under the 2002 law, we therefore could
    not revise the sentence to impose death. We thus are
    faced with a situation very similar to that in Saylor. We
    have a defendant sentenced to death through a proce-
    dure that would be improper today. Accordingly, Lam-
    bert’s case, like Saylor’s, is not appropriate for death
    under the current death penalty statute. I would let
    Lambert proceed to test his claim that a proper penalty
    phase would provide a recommendation against death.
Id. at 1265 (Boehm, J., dissenting). Thus, according to
Justice Boehm, because the state supreme court only can
impose sentences within the parameters of the sentenc-
ing statutes, and because the 2002 statute requires that
imposition of the death penalty be decided by an untainted
jury recommendation in favor of that penalty, the state
supreme court was without authority to impose the death
penalty in Mr. Lambert’s case.
  The Supreme Court of the United States has recognized
that “death is different,” Ford v. Wainwright, 477 U.S. 399,
411 (1986), and that the Eighth Amendment requires
safeguards against arbitrariness at both the state trial
and appellate levels, Parker v. Dugger, 498 U.S. 308, 321
(1991).3 There is no principle more settled in the law of


3
  Specifically, in Parker v. Dugger, 498 U.S. 308 (1991), the Court
stated:
    “If a State has determined that death should be an available
                                                   (continued...)
18                                                     No. 05-2610

capital punishment than the constitutional standard that a
person may not be subjected to the arbitrary, capricious or
freakish imposition of the death penalty by state courts.
Gregg v. Georgia, 428 U.S. 153, 194-95 (1976). As this case
comes to us today, it presents a federal constitutional
question that ought to be given a full airing in the district
court and, in due course, in this court, if either party
invokes our appellate jurisdiction. The decisions of the
Supreme Court of Indiana in Saylor, Holmes and Lambert
strongly suggest that, far from using its authority to review
and revise sentences in order to ensure consistency and
fairness in the imposition of the death penalty, the state
high court’s decisions have been the means by which such
guarantees have been denied.
  Because I believe the district court erred in treating this
case as a successive habeas petition and because the
petition presents the contention that the Supreme Court of
Indiana did not adhere to a basic principle of federal
constitutional law, I respectfully dissent.




3
    (...continued)
       penalty for certain crimes, then it must administer that
       penalty in a way that can rationally distinguish between
       those individuals for whom death is an appropriate sanction
       and those for whom it is not.” Spaziano v. Florida, 468 U.S.
       447, 460 (1984). The Constitution prohibits the arbitrary
       or irrational imposition of the death penalty. Id., at 466-467.
       We have emphasized repeatedly the crucial role of meaningful
       appellate review in ensuring that the death penalty is not
       imposed arbitrarily or irrationally.
Id. at 321 (parallel citations omitted).
No. 05-2610                                         19

A true Copy:
      Teste:

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




               USCA-02-C-0072—5-31-06
