                             In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 07-2093 and 07-2182

JOSEPH E. C ORCORAN,
                                                Petitioner-Appellee,
                                                   Cross-Appellant,
                                 v.


M ARK L EVENHAGEN , Superintendent,

                                            Respondent-Appellant,
                                                  Cross-Appellee.


            Appeals from the United States District Court
      for the Northern District of Indiana, South Bend Division.
                  No. 05 C 389—Allen Sharp, Judge.


  S UBMITTED D ECEMBER 14, 2009—D ECIDED JANUARY 27, 2010




 Before B AUER, W ILLIAMS and SYKES, Circuit Judges.
  B AUER, Circuit Judge. Joseph Corcoran murdered four
people, and an Indiana court sentenced him to
death. The district court granted habeas relief on
Corcoran’s Sixth Amendment claim. We reversed on the
Sixth Amendment issue, Corcoran v. Buss, 551 F.3d 703 (7th
Cir. 2008), but as the Supreme Court explained, we im-
2                                 Nos. 07-2093 and 07-2182

properly omitted discussion of Corcoran’s other habeas
challenges. Corcoran v. Levenhagen, No. 08-10495, 2009
WL 3347947, at *1 (U.S. Oct. 20, 2009). We include that
discussion here, after a full and fresh look at the record.
We find that all of Corcoran’s remaining habeas chal-
lenges are waived, and that three of them are frivolous,
but that one of the challenges nevertheless entitles him
to a new sentencing hearing.


                   I. BACKGROUND
  We assume familiarity with the facts surrounding
Joseph Corcoran’s murders and the path Corcoran tra-
versed through the state and federal court systems, all of
which we recounted in our prior decision. See Corcoran,
551 F.3d at 704-08. That decision found that Corcoran’s
death sentence did not violate his jury trial rights under
the Sixth Amendment, and that Corcoran was competent
to waive state post-conviction proceedings. Id. at 712, 714.
But the decision omitted discussion of four other chal-
lenges that Corcoran raised in the district court, that the
district court failed to address, and that Corcoran did not
appeal in this court although he was a cross-appellant,
having cross-appealed a separate challenge. Those four
challenges, which the Supreme Court advises us to
either address ourselves or remand for the district court
to consider, are that: (1) the Indiana trial court
improperly considered non-statutory aggravating cir-
cumstances and failed to consider six mitigating circum-
stances; (2) Indiana’s capital sentencing statute was
unconstitutional; (3) the prosecution committed miscon-
Nos. 07-2093 and 07-2182                                      3

duct in the closing argument to the sentencing jury; and
(4) Corcoran should not be executed because he suffers
from a mental illness. Corcoran, 2009 WL 3347947, at *1;
see Habeas Pet. at 10-13, 14-15.


                     II. DISCUSSION
  A preliminary issue on remand from the Supreme
Court, and the only issue that Corcoran addresses under
Circuit Rule 54, as his “position as to the action which
ought to be taken by this court on remand,” is whether
we should address his remaining habeas challenges
ourselves or remand to the district court.
  The Supreme Court explicitly gave us a choice. See
Corcoran, 2009 WL 3347947, at *1 (“The Seventh Circuit
should have permitted the District Court to consider
Corcoran’s unresolved challenges to his death sentence
on remand, or should have itself explained why such
consideration was unnecessary.”); cf. Cone v. Bell, 129 S.Ct.
1769, 1786 (2009) (ordering a remand to the district court).
Sometimes we have chosen, after reversing a district
court’s grant of habeas relief, to address remaining
habeas challenges not addressed by the district court
ourselves, Sprotsy v. Buchler, 79 F.3d 635, 645 (7th Cir. 1996),
and sometimes we have remanded. Stewart v. Peters, 958
F.2d 1379, 1388 (7th Cir. 1992); Clark v. Duckworth, 906
F2d 1174, 1179 (7th Cir. 1990). The decision whether to
remand in these circumstances is discretionary. See
Corcoran, 2009 WL 3347947, at *1; Singleton v. Wulff, 428
U.S. 106, 121 (1976) (“The matter of what questions may
4                                  Nos. 07-2093 and 07-2182

be taken up and resolved for the first time on appeal is
one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.”).
  We exercise our discretion here to decide the merits
ourselves, because Corcoran’s remaining challenges are
rudimentary to the point of requiring no additional
briefing, we are equally positioned with the district court
to reach a disposition based on a full review of the
present state court record, and a review by the district
court would at any rate be subject to our review de novo.
See Cone, 129 S.Ct. at 1792 (Alito, J., concurring in part and
dissenting in part); Lonchar v. Thomas, 517 U.S. 314, 320
(1995) (noting that appellate courts may “expedite pro-
ceedings on the merits”); Circuit Rule 22(d)(3) (“The
merits of an appeal may be decided summarily if the
panel decides that an appeal is frivolous.”). In short, a
remand to the district court is “unnecessary.” Corcoran,
2009 WL 3347947, at *1.
  Nor do we lack jurisdiction to rule on the merits. We
have jurisdiction to take an appeal from the district
court’s decision—granting habeas relief on less than all
the claims in Corcoran’s multi-claim petition without
adjudicating the remaining claims seeking the same
relief—because it was a “final order.” 28 U.S.C. § 2253. See,
e.g., Sprotsy v. Buchler, 79 F.3d 635, 645 (7th Cir. 1996)
(collecting cases). It matters not that a certificate of
appealability was granted in this case, Corcoran v. Buss,
No. 3:05-CV-389 (N.D. Ind. May 17, 2007), but not with
respect to the remaining claims. See Owens v. Boyd, 235
F.3d 356, 358 (7th Cir. 2001) (“[A] defect in a certificate
of appealability is not a jurisdictional flaw.”).
Nos. 07-2093 and 07-2182                                  5

  So we proceed with the merits of Corcoran’s additional
habeas challenges. Arguments not raised on appeal or
cross-appeal are waived. See Fed. R. App. P. 28.1(c)(2);
United States v. Johnson, 335 F.3d 589, 592 (7th Cir. 2003);
United States v. Berkowitz, 927 F.2d 1376, 1391 (7th Cir.
1991); Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986).
Corcoran as cross-appellant failed to appeal the four
claims and thus he waived them.
  Nevertheless, we may consider Corcoran’s challenges
for plain error, because “in exceptional circumstances,
appellate courts, in the public interest, may, of their
own motion, notice errors to which no exception has
been taken, if the errors are obvious, or if they seriously
affect the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Atkinson, 297 U.S.
157, 160 (1936). For most of Corcoran’s challenges we
find no plain error, so we need not decide whether
they present exceptional circumstances. But for one
challenge, which we discuss first, we think that the
state trial court’s decision resulted in two obviously
unreasonable fact determinations entitling Corcoran to
a new sentencing hearing.


  A. Sentencing Process
  Corcoran claimed that the Indiana trial court con-
sidered non-statutory aggravating circumstances,—i.e.,
Corcoran’s future dangerousness, his victims’ innocence,
and the murders’ heinousness—in contravention of state
law. See Bivins v. State, 642 N.E.2d 928, 955-56 (Ind. 1994)
(outlawing the use of non-statutory aggravating circum-
6                                  Nos. 07-2093 and 07-2182

stances under Indiana state law). The trial court
disagreed, stating that “in balancing the proved aggrava-
tors and mitigators, [the trial court] emphasizes . . . that it
only relied upon those proven statutory aggravators.” See
Corcoran v. State, 774 N.E.2d 495, 498 (Ind. 2002) (quoting
the trial court).
  But this finding of fact, that the trial court did not
consider non-statutory aggravators in the balancing
process used to determine Corcoran’s death sentence,
was obviously in error, if we are to believe what the
trial court added next. Specifically, it stated that its
“remarks at the sentencing hearing, and the language
in the original sentencing order,”—both regarding the
use of the three non-statutory aggravators about which
Corcoran complained—“explain why such high weight
was given to the statutory aggravator of multiple murder.”
See id. (emphasis added). In other words, the court added
weight to a statutory aggravator based on the non-statu-
tory aggravators. And factor weighting is part of factor
“balancing,” the very process in which the trial court
disclaimed reliance on non-statutory aggravators. So
unlike the Indiana Supreme Court, we are far from
“satisfied that the trial court has relied only on
aggravators listed in Indiana Code § 35-50-2-9(b).” Corcoran
v. State, 774 N.E.2d 495, 499 (Ind. 2002). Indeed, we
find this an “unreasonable determination of the facts” in
light of the trial court’s proceedings, thus warranting
habeas relief. 28 U.S.C. § 2254.
  Nothing in this opinion prevents Indiana from
adopting a rule, contra Bivins, 642 N.E.2d at 955-56, per-
Nos. 07-2093 and 07-2182                                    7

mitting the use of non-statutory aggravators in the
death sentence selection process. See Zant v. Stephens, 462
U.S. 862, 878 (1983) (permitting their use under federal
law). But the state trial court must reconsider its sen-
tencing determination, and this time may not find,
contrary to logic, that it both did and did not consider non-
statutory aggravating circumstances when it sentenced
Corcoran to death.
   Also, the trial court should address Corcoran’s age
(at the time of the murders, he was twenty-two) as a
mitigating factor in order to cure a different fact-finding
error by the Indiana Supreme Court. Corcoran claimed
that the Indiana trial court failed to consider six of the
ten mitigating circumstances Corcoran proffered: (1) his
age; (2) his substantially impaired ability to appreciate
the criminality of his conduct or to conform that conduct
with the requirements of the law; (3) his inability to
competently assist in his defense; (4) his forethought to
protect his seven-year-old niece during the murders;
(5) his good behavior in jail before sentencing; and (6) his
admission of guilt “at all stages of the legal process”
including the trial. When the trial court first sentenced
Corcoran, it explicitly discussed and rejected the last
five of these mitigators—but not Corcoran’s age—as either
false or non-mitigatory. State of Indiana v. Corcoran,
No. 02D04-9707-CF-465, at 3-6 (Ind. Super. Ct. Aug. 26,
1999). When the Indiana Supreme Court later advised
it to clarify only whether it had used non-statutory ag-
gravators, it is unsurprising that the trial court declined
to reiterate its analysis of the five mitigators it had previ-
ously rejected. But at no time did the trial court
8                                 Nos. 07-2093 and 07-2182

offer an explanation for rejecting Corcoran’s age as
non-mitigatory, as was required by Indiana law. See
Corcoran, 774 N.E.2d at 501 (requiring the trial court to
“list specific facts and reasons that led the court to
finding [mitigating circumstances’] existence”). Thus, the
Indiana Supreme Court’s finding of fact, that the trial
court “analyzed” and “rejected” Corcoran’s age in its
sentencing order, id. at 500, was obviously in error,
because the sentencing order makes no mention of
Corcoran’s age except to note that Corcoran proffered it
as a mitigator.
   Nor did the Indiana Supreme Court cure this oversight
by itself evaluating Corcoran’s age as a mitigator. See
Clemons v. Mississippi, 494 U.S. 738, 748-49 (1990) (finding
that a state appellate court satisfies the constitutional
requirement of an individualized and reliable sen-
tencing determination in capital cases by itself weighing
aggravating and mitigating circumstances). In weighing
and rejecting Corcoran’s age as non-mitigatory, the
Indiana Supreme Court found dispositive that “Corcoran
[was] well past the age of sixteen where the law requires
special treatment” and thus that the trial court had not
“abuse[d] [its] discretion.” Corcoran, 774 N.E.2d at 500;
cf. Roper v. Simmons, 543 U.S. 551 (2005) (raising the mini-
mum death-eligible age to eighteen). But as we dis-
cussed above, the trial court had not exercised any “dis-
cretion.” Rather, it had failed altogether to intimate any
consideration of Corcoran’s age. Thus, in erroneously
finding once again that the trial court had exercised its
discretion, the Indiana Supreme Court weighted
Corcoran’s age under an abuse-of-discretion standard,
Nos. 07-2093 and 07-2182                                   9

rather than the more searching standard required
under Indiana law. See Monegan v. State, 756 N.E.2d 499,
504 (Ind. 2001) (“Focusing on chronological age, while
often a shorthand for measuring culpability, is frequently
not the end of the inquiry for people in their teens
and early twenties. . . . There are both relatively old
offenders who seem clueless and relatively young ones
who appear hard and purposeful.”).
  Again, nothing in this opinion prevents Indiana from
adopting a rule, contra Corcoran, 774 N.E.2d at 501, per-
mitting a court to take account of mitigating factors that
have been properly admitted into evidence, without
explicitly discussing its consideration of those factors
on the record. See, e.g., Penry v. Johnson, 532 U.S. 782, 797
(2001) (requiring only that the sentencer be able to give
adequate mitigating effect to mitigating evidence). And
nothing in this opinion prevents Indiana from finding
Corcoran’s age irrelevant to selecting his death sen-
tence. See Roper, 543 U.S. 551. But as the state trial court
conducts its new sentencing hearing, to rectify the fact-
finding error with respect to non-statutory aggravators
discussed above, it should also discuss whether it finds
Corcoran’s age to be a mitigating circumstance. This will
prevent non-compliance with Indiana law, and—more
pertinent to our inquiry on federal habeas review—cure
the Indiana Supreme Court’s “unreasonable deter-
mination of the facts” in light of the trial court’s pro-
ceedings. 28 U.S.C. § 2254.
10                               Nos. 07-2093 and 07-2182

 B. Indiana’s Capital Sentencing Statute
  At this point, we could remand to the district court with
instructions to grant Corcoran’s habeas petition, and call
it a day. But that would allow Corcoran’s remaining
habeas challenges to continue languishing unadjudicated,
a scenario we have cautioned against. Indeed, we have
advised that “the better practice in habeas corpus death
cases is for the judge to rule on all the grounds
presented in the petition.” Stewart, 958 F.2d at 1388.
  So we proceed with Corcoran’s next claim, that Indiana’s
capital sentencing statute was unconstitutional under
the Eighth Amendment’s prohibition on cruel and
unusual punishment and the Fourteenth Amendment’s
guarantee of due process, because the statute’s factors
for determining whether one is eligible for the death
penalty “subject a defendant to life without parole or
death,” thus providing “no guidance to differentiate
between life or death.” Habeas Pet. at 11-12. The statute
at the time of Corcoran’s sentence provided, and now also
provides, that a defendant “may be sentenced to (1) death;
or (2) life imprisonment without parole,” if the state
“prove[s] beyond a reasonable doubt the existence of
at least one . . . aggravating circumstance[].” Ind. Code.
§§ 35-50-2-3, 9 (1993). Because the eligibility factors
subject a defendant to either death or life imprison-
ment without parole, Corcoran argued, “the Indiana
legislature is equating the penological purposes between
the two penalties,” thus failing to provide “con-
stitutionally required narrowing.” Habeas Pet. at 11.
  It is true that death penalty statutes must adequately
narrow the class of persons eligible for death. Thus, the
Nos. 07-2093 and 07-2182                                11

Supreme Court has invalidated statutes providing juries
with untrammeled discretion to impose the death
penalty, Furman v. Georgia, 408 U.S. 238 (1972), or guiding
juries’ discretion with overly vague aggravating circum-
stances. Godfrey v. Georgia, 446 U.S. 420 (1980). But
Corcoran made no challenge to the existence or nature
of the then thirteen aggravating circumstances used to
narrow the class of persons eligible for death. Rather,
he challenged only that the existence of at least one
of those circumstances made him eligible not only for
death, but also for life without parole. It matters not
whether the statute says that a defendant may be sen-
tenced to “death or life imprisonment without parole,” as
the statute reads, or simply “death,” as Corcoran would
have it. In both cases, the door has been opened so that
a defendant may be sentenced to either. Thus, Corcoran’s
eligibility challenge lacks merit, because the semantic
changes he would make to the statute’s language
on eligibility would have no effect on its meaning.
  Nor does it matter that death and life without parole
are “dueling options” for selection once a defendant is
found eligible. Habeas Pet. at 11-12. The Indiana statute
provides that a jury may impose either death or life
without parole upon finding (1) an aggravating circum-
stance, and (2) that aggravating circumstances out-
weigh any mitigating circumstances. Ind. Code §§ 35-50-2-
9(e), (l). In other words, the statute guides the jury in
imposing death or life without parole, but it affords no
guidance on how to choose between the two. But these
“dueling options” are not the sort of “untrammeled
discretion to impose or withhold the death penalty” that
12                               Nos. 07-2093 and 07-2182

the Constitution prohibits. Gregg v. Georgia, 428 U.S. 153,
195 n.47 (1976) (citing Furman, 408 U.S. 238). Rather, the
Supreme Court upheld in Gregg a scheme where the
jury, as an alternative to death, “may fix the penalty at
life imprisonment, if you see fit to do so, for any reason
satisfactory to you or without any reason.” Ga. Suggested
Pattern Jury Instruction 2.15.50 (2009) (cited as existing
when Gregg was decided in Linda E. Carter, Ellen S.
Kreitzberg, and Scott W. Howe, Understanding Capital
Punishment Law 155 (2d ed. 2008)). In sum, “the
isolated decision of a jury to afford mercy does not
render unconstitutional death sentences imposed on
defendants who were sentenced under a system that
does not create a substantial risk of arbitrariness or ca-
price.” Gregg, 428 U.S. at 203.
  Corcoran also claimed that the statute is unconstitu-
tional because it “informs the jury that a death sentence
acts as an act of mercy in comparison to the life without
parole sentence.” Habeas Pet. at 12. But the statute does
no such thing. Rather, as Corcoran admits, the statute
offers “no guidance to differentiate between life or
death” once a defendant is found eligible, id., which as
discussed above is constitutional under Gregg.
  Finally, Corcoran argues that the statute “penalizes
individuals for presenting mitigation.” Id. Again, the
statute does no such thing. Rather, it encourages defen-
dants to present mitigating circumstances, because
if enough of them outweigh the aggravating circum-
stances then a jury is barred from sentencing a
defendant to death or life without parole. Ind. Code §§ 35-
50-2-9(e), (l).
Nos. 07-2093 and 07-2182                                  13

  C. Prosecution’s Closing Argument at Sentencing
  Corcoran further claimed that he was deprived of due
process when the prosecutor made five statements to the
sentencing jury at closing argument. One statement,
according to Corcoran, improperly “speculat[ed] on
what a victim imagined or said: ‘[W]e imagine that last
victim must gasp for breath, must grasp for mercy.’ ”
Habeas Pet. at 12. Another statement “speculated on
future dangerousness and misdefined life without parole
in stating ‘[Corcoran] is not a man we want back on our
streets in his lifetime.’ ” Id. Two others “speculated
on victim opinion as to the appropriate sentence[:]
    I can hear all four of them, Jim, Scott, Tim, and Doug[;]
    their souls, their very life blood spilled in that home
    cries out for equality, justice. And you know we can
    never fully give those men that equality of justice and
    do you know why? Because this man has only one
    life to give for the four he took. . . .
    I think I can still hear Jim and Tim and Doug and Scott
    and you know what; they don’t ask us for revenge,
    they ask again for the equality of justice and that
    equality of justice comes with retribution.”
Id. at 12-13. And the fifth statement “describe[d]
Petitioner as a dangerous individual who placed all
people in danger including the jury: ‘Innocent lives are
expendable. All of us.” Id. at 13.
  These arguments about the prosecution’s closing argu-
ment are waived for the additional reason that Corcoran
never raised them in state court. See Corcoran v. State, 739
14                                Nos. 07-2093 and 07-2182

N.E.2d 649, 655 (Ind. 2000). By raising the argument for
the first time with the district court, Corcoran pro-
cedurally defaulted his claim. See 28 U.S.C. § 2264.
  Corcoran points to no cause for this procedural default,
so we will not grant habeas relief unless the prosecutor’s
arguments resulted in “a fundamental miscarriage of
justice.” Sawyer v. Whitley, 505 U.S. 333, 339 (1992). We
find no miscarriage of justice here, as the prosecutor’s
statements are not the type of constitutional error
that would render Corcoran ineligible for the death
penalty. Id. at 341, 347.


  D. Incompetence To Be Executed
  Finally, Corcoran claimed he should not be executed
because he suffers from a mental illness. Indeed, the
Constitution prohibits the execution of a prisoner who
is insane. Ford v. Wainwright, 477 U.S. 399, 410 (1986); see
also Panetti v. Quarterman, 551 U.S. 930 (2007). But Corcoran
must raise the argument of his incompetence to be exe-
cuted in Indiana’s state courts before he can do so here.
28 U.S.C. § 2254(b)(1). Indeed, Corcoran made no claim
that Indiana lacks an effective process to comply with
Ford v. Wainwright. To the contrary, Indiana permits
additional post-conviction review on Ford claims “after
the usual channels of appeal have been exhausted.” Baird
v. State, 833 N.E.2d 28, 29 (Ind. 2005); see also Ind. Post-
Conviction Rule 1(12) (allowing a successive habeas
petition “if the petitioner establishes a reasonable prob-
ability that the petitioner is entitled to post-conviction
relief”). Therefore, his Ford claim is unripe.
Nos. 07-2093 and 07-2182                                15

                   III. CONCLUSION
  The habeas claims actually before this court are
meritless, as we previously found in Corcoran, 551 F.3d
703. The claims Corcoran declined to pursue in this
court are waived, and three of them are anyway
meritless or unripe. But Corcoran’s challenge to the state
trial court’s sentencing process has obvious merit, for the
reasons discussed above. Therefore, we A FFIRM the
district court’s conditional grant of Corcoran’s petition
for a writ of habeas corpus, but we modify its order to
grant the writ unless within 120 days the state court
holds a new sentencing hearing in accordance with
this opinion.




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