                            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.
                         ____________
   ARGUED OCTOBER 22, 2003—DECIDED MARCH 26, 2004
                   ____________



 Before FLAUM, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
  EASTERBROOK, Circuit Judge. Donald Wallace killed an
entire family in cold blood. He broke into a house to commit
a burglary and found the occupants at home. He tied up the
parents and shot each in the head to prevent them from
identifying him. Then he shot both children to stop them
from crying. This crime, the culmination of a long criminal
career, led to a death sentence. The Supreme Court of
Indiana affirmed, 486 N.E.2d 445 (1985), and rejected
Wallace’s bids for collateral relief. 553 N.E.2d 456 (1990);
640 N.E.2d 374 (1994). Wallace filed his federal petition for
a writ of habeas corpus before enactment of the
2                                                No. 02-4262

Antiterrorism and Effective Death Penalty Act of 1996,
which therefore does not apply. See Lindh v. Murphy, 521
U.S. 320 (1997). The district court denied Wallace’s petition.
2002 U.S. Dist. LEXIS 22353 (S.D. Ind. Nov. 14, 2002).
  Capital punishment may be imposed in Indiana only if
one or more aggravating factors exists. Whether such a
factor has been established beyond a reasonable doubt is for
the jury—this is true as a matter of both state law and
constitutional command, see Ring v. Arizona, 536 U.S. 584
(2002)—but once it finds aggravating circumstances and
makes a recommendation about the appropriate punish-
ment the ultimate decision is in the judge’s hands. See
Schiro v. Farley, 510 U.S. 222 (1994) (describing Indiana’s
system and rejecting constitutional challenges to its opera-
tion). The jury found that Wallace had committed murder
with aggravating circumstances and recommended capital
punishment. The judge imposed that sentence after agree-
ing with the jury that two aggravating factors (murder
during the course of another felony, and multiple murders)
and no mitigating factors had been established. In the
course of evaluating the appropriate penalty, the judge
mentioned many additional facts: that Wallace had com-
mitted the murders while on parole, that he displayed a
total disregard of human life, that there was “no provo-
cation whatsoever” for his acts, and that he “had a long
history of serious criminal conduct.” The judge listed 14
offenses for which Wallace had been arrested or convicted.
  After the judge sentenced Wallace to death, two of these
14 were set aside on the ground that, when taking Wallace’s
guilty pleas, the judge had not informed him of all rights
being waived in the process. Wallace had completed his
sentences for those offenses, so there was no occasion to
determine whether valid convictions could have been
obtained. The vacatur sets up Wallace’s principal argument:
that by relying on “invalid non-statutory aggravating
factors” the sentencing judge violated the due process
No. 02-4262                                                 3

clause of the fourteenth amendment. The “invalid” compo-
nent of this phrase reflects the fact that the convictions
were annulled, see Johnson v. Mississippi, 486 U.S. 578
(1988), though whether Wallace committed and could have
been convicted of those crimes remains an open question.
The “non-statutory” component of the phrase reflects the
fact that prior convictions are not statutory aggravating
factors in Indiana. The gist of the argument is that it is bad
(if not always forbidden) for a judge to rely on extra-
statutory factors, and, if this is to be done at all, reliance
must be placed on true rather than false considerations.
  The district court responded that, even if the convictions
are assimilated to aggravating factors and vitiated in con-
formity with Johnson, there remain two uncontested ag-
gravating factors: murder in the course of burglary, and
multiple murders. These support the sentence and make it
unnecessary for the state judiciary either to hold a fresh
sentencing proceeding or to consider expressly whether re-
liance on the vacated prior convictions was harmless. The
district court relied on Zant v. Stephens, 462 U.S. 862
(1983), and Wallace contends that this was a mistake:
although Zant holds that use of an improper aggravating
factor may be harmless, Wallace insists that only the state
judiciary may evaluate the error’s consequences, because
only the state judiciary is empowered to weigh the evidence.
See Sochor v. Florida, 504 U.S. 527 (1992); Clemons v.
Mississippi, 494 U.S 738 (1990). This supposes, however,
that the state court itself initially weighed an invalid
aggravating factor against some proper mitigating factors.
When this occurs, reweighing is a job for the state. It is
not what occurred here. The state judge did not find any
mitigating factor to be weighed against the aggravating
factors; there is no re-weighing to do.
  This is why the district judge deemed the matter one
of harmless error and looked to Zant rather than Sochor
and Clemons. And if the right question is whether any error
4                                                No. 02-4262

was harmless, the answer must be yes. When an improper
aggravating factor is entangled in some way with the oth-
ers—if, for example, improperly excluded evidence would
bear on multiple factors—then it is improper for a federal
judge to evaluate the error because it is impossible to tell
whether, but for the error, the defendant would be eligible.
But if the factors are independent, then one error may be
isolated without affecting the validity of the sentence. “Zant
was . . . predicated on the fact that even after elimination
of the invalid aggravator, the death sentence rested on firm
ground. Two unimpeachable aggravating factors remained
and there was no claim that inadmissible evidence was
before the jury during its sentencing deliberations or that
the defendant had been precluded from adducing relevant
mitigating evidence.” Tuggle v. Netherland, 516 U.S. 10, 13
(1995). One may say the same here. Two unimpeachable
aggravating factors support the sentence, and neither factor
was affected in any way by the judge’s belief that Wallace
had committed a particular number of additional offenses
earlier in his criminal career.
   Wallace’s case is easier to resolve than either Zant or
Tuggle, because his favorite phrase “invalid non-statutory
aggravating factor”—language that the Supreme Court
has never used except when quoting from another court’s
decision, see Jones v. United States, 527 U.S. 373, 402-03
(1999)—glosses over the fact that, in Indiana, prior crim-
inality is not an aggravating factor in the first place.
Indiana distinguishes between aggravating factors, at least
one of which is essential to establish eligibility for capital
punishment, and other considerations that may influence
the exercise of discretion once eligibility has been estab-
lished. Only statutory aggravating factors matter to the
eligibility decision. After Ring, the distinction between facts
that determine eligibility and those that influence the
exercise of discretion is constitutionally based: the former
decision must be made by the trier of fact under the rea-
No. 02-4262                                                5

sonable-doubt standard, while the latter decision may be
entrusted to a judge on the preponderance standard, and
with relaxed rules of evidence.
  The 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. If
several grounds of eligibility are related, it is hard to an-
swer that question and sensible to insist that the state deal
with the matter in the first instance. In this case, by
contrast, Wallace’s prior crimes played no role in the eligi-
bility decision, so there is no puzzle to solve. The jury,
which found two aggravating factors, never learned about
Wallace’s criminal history. And the judge, who did know
about Wallace’s past, distinguished between aggravating
factors and other considerations.
  The judge’s oral explanation of his sentence finds that two
aggravating factors (murder during burglary, and multiple
murders) have been established beyond a reasonable doubt,
and that no mitigating factors are present. The judge did
not mention Wallace’s criminal history. The written
explanation for the sentence does mention criminal history
but clearly separates this from the aggravating factors. The
judge made thirteen numbered findings. Five are pertinent,
and we reproduce them:
    2. The aggravating circumstances alleged were:
    A. That the Defendant committed the murder of
       each victim by intentionally killing the victims
       while committing or attempting to commit
       Burglary. (I.C. 35-50-2-9(b)(1)). [The statutory
       references in the sentencing judge’s findings
       are to the 1979 version of Indiana’s Code, which
       was in effect at the time of his murders.]
    B. That the Defendant committed three other
       murders, regardless of whether or not the
6                                              No. 02-4262

          Defendant had been convicted of the other
          murders, in three instances in each count.
          (I.C. 35-50-2-9(b)(8)).
    ...
    8. The Court finds that the State has proved
       beyond a reasonable doubt that two aggra-
       vating circumstances exist that warrant the
       imposition of the death penalty:
    A. That the Defendant, Donald Ray Wallace,
       Jr., murdered Patrick Gilligan, Theresa
       Gilligan, Lisa Gilligan and Gregory Gilligan
       while committing the crime of Burglary on
       the 14th day of January, 1980, in
       Vanderburgh County, State of Indiana.
       (I.C. 35-50-2-9(b)(1)).
    B. That the Defendant, Donald Ray Wallace,
       Jr., murdered Patrick Gilligan, and then
       murdered Theresa Gilligan, Lisa Gilligan
       and Gregory Gilligan; that the Defendant,
       Donald Ray Wallace, Jr., murdered, in
       order, after the murder of Patrick Gilligan,
       Theresa Gilligan, Lisa Gilligan and Gregory
       Gilligan. (I.C. 35-50-2-9(b)(8)).
    ...
    10. That the aggravating circumstances set
        forth in paragraph eight above outweigh
        any mitigating circumstances offered under
        I.C. 35-50-2-9(c)(7).
    11. The Court has considered the Jury’s rec-
        ommendation to impose the death penalty,
        and bases the sentence here given on the
        same standard as required of the Jury, that
        being that:
No. 02-4262                                                7

    A. The State has presented beyond a reason-
       able doubt that two of the aggravating cir-
       cumstances exist with the murders of Pat-
       rick Gilligan, Theresa Gilligan, Lisa
       Gilligan and Gregory Gilligan within I.C.
       35-50-2-9(b)(1), and I.C. 35-50-2-9(b)(8) all
       as set forth in paragraph eight; and
    B. That any mitigating circumstances that
       exist within I.C. 35-50-2-9(c)(7) are out-
       weighed by the aggravating circumstances;
    12. In addition to the requirements of I.C.
        35-50-2-9, this Court further finds:
    A. That Donald Ray Wallace, Jr. has recently
       violated the conditions of parole [by killing
       the Gilligan family while on parole from a
       prior sentence] . . . .
    B. That Donald Ray Wallace, Jr. had a long
       history of serious criminal conduct [list
       with 26 entries follows].
It is hard to see how the judge could have been clearer. Two
aggravating factors were charged, and both were found.
Neither factor is problematic. There were no “non- statutory
aggravating factors.” Although Wallace’s criminal history is
not a statutory (or any other kind of) “aggravating factor,”
this does not foreclose all mention of it, for what it may be
worth, any more than the judge is forbidden to notice that
Wallace committed the murders while on parole or that
Wallace was an armed career criminal. To anathematize
such considerations would not stop judges from thinking
about them; it would just drive them underground, which
would benefit no one.
  Indeed, because the list of arrests and convictions was
unrelated to any aggravating factor, the state court did not
commit an error, harmless or otherwise. Once a state has
8                                               No. 02-4262

determined in a fault-free manner that a given person
is eligible for capital punishment—a good description of the
eligibility decision for Wallace—the sentencing court is free
to consider all other circumstances. Graham v. Collins, 506
U.S. 461 (1993); Eddins v. Oklahoma, 455 U.S. 104 (1982);
Lockett v. Ohio, 438 U.S. 586 (1978). Here the state judge
lumped Wallace’s arrests with his convictions, not distin-
guishing between the two (or between juvenile and adult
adjudications). The gist was that Wallace is incorrigible.
Moving a given event from the “conviction” column to the
“arrest without definitive adjudication” column—the best
way to understand what happened when Wallace’s guilty
pleas were deemed procedurally defective—does not
undermine the point made in ¶12(B) of the state judge’s
opinion. In non-capital cases there is no need to redo the
sentencing every time a prior conviction that was taken into
account later is challenged or annulled. See Daniels v.
United States, 532 U.S. 374 (2001); Custis v. United States,
511 U.S. 485, 487 (1994). (There is an exception for convic-
tions obtained without the opportunity to have the assis-
tance of counsel; Wallace does not contend that he lacked
counsel when entering the pleas that later were vacated.)
Nothing in Johnson, Sochor, or any other decision of the
Supreme Court suggests that things are otherwise in
capital prosecutions. The eighth amendment requires
special protections, and assurance of regularity, when
making the decision that the accused is eligible for capital
punishment; none of these decisions applies the same
scrutiny to every sentence of a state court’s decision, even
when the subject is something other than eligibility. If
Johnson and Sochor are to be extended beyond the ascer-
tainment of those aggravating factors that establish
eligibility, that must be done by the Supreme Court on
direct appeal; given Teague v. Lane, 489 U.S. 288 (1989), a
federal appellate court cannot elaborate on doctrine in this
fashion in a collateral attack.
No. 02-4262                                                  9

  Thus we arrive at what seems to be the inevitable ar-
gument in capital cases: that counsel at sentencing was
ineffective. The charge is that Wallace’s lawyer did not put
on much mitigating evidence: one uncle and two clerics.
They did not persuade either the jury or the judge, who
wrote that “no evidence whatsoever was presented to show
the existence of any mitigating circumstances which could
be considered under I.C. 35-50-2-9(c) (1 through 6); excel-
lent religio-ethical arguments and philosophical discussions
of both Hebrew and Christian history and philosophy were
heard and considered within I.C. 35-50-2-9(c)(7)”. Subsec-
tion (c)(7) as it stood in 1979 allowed the jury and judge to
consider any mitigating circumstance not otherwise listed.
(Today this is found in I.C. 35-50-2-9(c)(8).) The strategy did
not work; in ¶10 (already reproduced) the judge found that
the aggravating factors outweighed the considerations
allowed by subsection (c)(7). Relying on Wiggins v. Smith,
123 S. Ct. 2527 (2003), and Hall v. Washington, 106 F.3d
742 (7th Cir. 1997), Wallace’s current lawyers contend that,
instead of stopping with theology and a few personal details
offered through the uncle, counsel should have tried to
create some sympathy through evidence about Wallace’s
unhappy upbringing and childhood—including the possibil-
ity that Wallace suffered from some form of mental illness,
though not enough to support an insanity defense or
demonstrate incompetence to stand trial.
  Current counsel’s argument supposes, however, that it
was possible to offer sympathy-creating evidence consistent
with both the facts and the attorney’s ethical duties. As the
district judge found, however, neither was true. The lawyers
who represented Wallace at sentencing testified in state
post-trial proceedings that they investigated many potential
witnesses who might have testified about Wallace’s back-
ground and mental state and could not find any, other than
the uncle, who would do more good than harm. Wallace’s
friends and relations, counsel believed, would not be
10                                              No. 02-4262

helpful. Counsel thought “that the witnesses who could
testify to Wallace’s past, character or family would not be
able to withstand cross-examination without losing ground
for the defense. Trial counsel further testified that Wallace
was not cooperative in the gathering of this information and
did not want certain family members to testify at his trial.
The only family member whom counsel asked to testify at
the sentencing hearing was Wallace’s uncle, because ‘I
think he comes across as objective and would have not
made any absurd statements . . .’ ”. (2002 U.S. Dist. LEXIS
22353 at *95). One drawback, for example, is that Wallace
had bragged in prison about faking psychological problems.
This evidence came out during a hearing held to inquire
whether Wallace was competent to stand trial. The state
judge concluded that Wallace had been faking and was
competent. Any effort to present mental-health evidence at
sentencing would have allowed this into the record in
response, undermining Wallace’s chances. Other lines of
evidence would have brought Wallace’s extensive criminal
record to the jury’s attention. “When counsel focuses on
some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than
through sheer neglect.” Yarborough v. Gentry, 124 S. Ct. 1,
5 (2003). Current counsel now try to overcome that pre-
sumption by contending that yet other potential witnesses
could have been contacted and evaluated, but evidence to
this effect was not presented at the hearing held in the
state post-conviction proceedings, and there is no persua-
sive reason why it was withheld. One evidentiary hearing
is the norm; the state did not hamper Wallace’s ability to
develop his factual position in the collateral litigation.
  The absence of any additional evidence—not only at
sentencing but also during the post-conviction proceed-
ings—must be laid at Wallace’s doorstep, and here is the
source of counsel’s ethical problem. During the state post-
conviction proceedings, Wallace testified that the paucity of
No. 02-4262                                                11

evidence was his own preference. He told the state judge
that counsel “did in fact approach me and try to develop all
these sources that they are prepared to present and uh—
which at that time I forbid him to do that. He repeatedly
asked me to do that, I repeatedly forbidden it. Finally he
acceded to my wishes.” Wallace had been examined and
found to be competent to stand trial, which means that he
also was allowed, if he insisted, to make major decisions
about his defense. See Godinez v. Moran, 509 U.S. 389
(1993). If counsel had presented evidence against the cli-
ent’s instructions, then there would have been a solid
ineffective-assistance argument. By respecting Wallace’s
wishes, counsel not only abided by ethical requirements
(lawyers are agents, after all) but also furnished the quality
of assistance that the Constitution demands. As Faretta v.
California, 422 U.S. 806 (1975), holds, the accused’s will
prevails because the constitutional right is to legal assis-
tance; “assistance” differs from an entitlement (let alone an
obligation) to override a client’s instructions. Many deci-
sions during trial fall to counsel by default or by virtue of
superior knowledge, but the major ones—such as whether
to testify or present a defense—may be exercised person-
ally, if the accused wants to make rather than delegate
these vital choices.
  A good lawyer tries to persuade the accused to make a
wise decision about testifying (or keeping silent) at trial,
and about presenting a defense, even though the ultimate
decision rests with the client, and wretched advice that
leads the accused to make a bad decision is a form of in-
effective assistance. The accused is entitled to the informa-
tion essential to make an educated choice. This is the
holding of Douglas v. Woodford, 316 F.3d 1079 (9th Cir.
2003), which concluded that an accused’s vocal opposition
to presenting a defense cannot by itself vindicate counsel’s
inadequate efforts to find whether there was a defense to be
made. In Douglas the lawyer skimped on investigation, so
12                                                  No. 02-4262

the client lacked information needed to make decisions.
Here, by contrast, counsel testified that they did investigate
and came up only with the uncle (plus the rabbi and
minister who offered judge and jury moral grounds to spare
Wallace’s life) as a believable witness who would provide
net benefits for the defense. Wallace thus could and did
make an informed decision; and if the decision to forbid
counsel to proceed was unwise, he must accept the conse-
quences. Certainly no opinion of the Supreme Court
establishes that counsel is obliged to override the client’s
instructions; once again, given Teague, any such novel rule
must be established on direct appeal rather than collateral
review.
                                                      AFFIRMED




  WILLIAMS, Circuit Judge, concurring. Though I agree
with the ultimate decision in this case, I must disagree with
the majority’s statement that the logic of Johnson v.
Mississippi, 486 U.S. 578 (1988) and Sochor v. Florida, 504
U.S. 527 (1992) are limited to “those aggravating factors
that establish [death] eligibility. . . .” Majority opinion at 8
(emphasis added).1


1
  Weighing states, such as Indiana, conduct a two-part analysis
when determining whether to apply the death penalty. In the first
phase, the jury is asked to determine whether the defendant is
“death eligible.” This inquiry asks whether the jury has found any
statutory aggravating factors to exist beyond a reasonable doubt.
In the second phase, the jury is asked to weigh all mitigating
factors against all aggravating factors and decide whether to
                                                   (continued...)
No. 02-4262                                                    13

  I stand by the majority’s conclusion because Wallace
failed to prove that the sentencer, here the trial judge, ac-
tually considered the invalid nonstatutory aggravators
in his decision to impose death. This court has held that
“Sochor and Clemons [. . .] stand for the proposition that,
when an ‘invalid’ aggravating factor is considered in sen-
tencing in a ‘weighing’ state, a state appellate court must
either reweigh the aggravating circumstances against the
mitigating circumstances, engage in a meaningful harmless
error analysis, or remand for resentencing.” Hough v.
Anderson, 272 F.3d 878, 906 (7th Cir. 2001). This step
allows any potential error to be cured by the state court.
However, we also reasoned that the defendant must first
present sufficient evidence that the invalid aggravating
factor was considered by the sentencer. Id. The trial judge’s
written sentencing memorandum articulates his bifurcated
consideration of the nonstatutory and subsequently invalid
aggravating factors.2 Thus, Wallace has not satisfied his


(...continued)
recommend the imposition of death. The trial judge, however,
decides whether to accept or reject the jury’s recommendation for
death.
2
  The dearth of mitigating evidence also raises several questions
concerning the propriety of Wallace’s attorney’s sentencing trial
strategy. Counsel called Joseph Kline, a rabbi, and Lowell G.
Bishop, a Lutheran pastor, to the stand. Both men testified as to
their theological understanding of the propriety of the death
penalty. Rabbi Kline discussed the Jewish faith’s disapproval of
the death penalty and stated that the real meaning of “an eye for
an eye” was that a victim should be monetarily compensated for
a murder. Pastor Bishop discussed his personal disapproval of the
death penalty based on his interpretation of Scripture. This court
has suggested that mitigation strategies which seek the “equiva-
lent of jury nullification” on the basis of religious beliefs are
unreasonable. See Hall v. Washington, 106 F.3d 742, 750 (7th Cir.
                                                   (continued...)
14                                                   No. 02-4262

burden. See id. (reasoning that an appellate court need not
reweigh aggravating and mitigating factors when the
defendant has failed to prove that the sentencer actually
considered the invalid factors).
  I write separately to discuss the majority’s decision to
limit the applicability of Johnson and Sochor to the death
eligibility determination. The propriety of Wallace’s death
eligibility is not at issue here, nor was eligibility at issue in
Johnson3 or Sochor.4 Rather, the potential constitutional



(...continued)
1997) (“Claims that the Bible or a particular religion opposes the
death penalty ‘have no bearing on the question of whether a
particular defendant who has been found guilty of capital murder
should receive death or some lesser authorized penalty.’ ”) (quot-
ing Stokes v. Armontrout, 851 F.2d 1085, 1096 (8th Cir. 1988)).
   However, the record reveals that Wallace’s attorney did inves-
tigate his background. See Wiggins v. Smith, 123 S. Ct. 2527, 2536
(2003) (“[W]e focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of [the de-
fendant’s] background was itself reasonable.”) (emphasis in origi-
nal). The record is also replete with examples of Wallace impeding
his attorney’s mitigation investigation, which makes counsel’s
decisions seem more reasonable in light of the circumstances.
3
  “At the conclusion of the sentencing hearing, the jury found
three aggravating circumstances, any one of which, as a matter of
Mississippi law, would have been sufficient to support a capital
sentence.” 486 U.S. at 580-81. The jury in Johnson was asked to
weigh “mitigating circumstances and aggravating circumstances
‘one against the other,’ ” and ultimately “found ‘that the aggra-
vating circumstances do outweigh the mitigating circumstances
and that the Defendant should suffer the penalty of death.’ ” Id. at
581. Thus, the issue there was the propriety of the final decision
to impose death, not death “eligibility.”
4
  The Sochor Court stated, “[i]n a weighing State like Florida,
there is Eighth Amendment error when the sentencer weighs an
                                                     (continued...)
No. 02-4262                                                     15

infirmity arises from the fact that Indiana is a “weighing”
state coupled with the possibility that during the second
phase of Wallace’s sentencing, the trial judge may have
considered two aggravating factors later deemed invalid.
  To satisfy the edicts of the Eighth Amendment, the
imposition of the ultimate punishment must be “reliable.”
Reliability is gauged by: (1) the degree to which the state
properly narrows the class of defendants eligible for the
death penalty, see Gregg v. Georgia, 428 U.S. 153, 189
(1976); (2) the proportionality of the sentence imposed
to the crime committed, see Furman v. Georgia, 408 U.S.
257 (1972); and (3) the extent to which the defendant
received an individualized sentencing determination, see
Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982). An
invalid aggravating factor may affect the eligibility deter-
mination; however, in a weighing state, because the sen-
tencer is asked to reweigh all mitigating evidence against
all aggravating evidence, the invalid aggravator may also
have a profound effect on the sentencer’s ultimate decision
of whether to sentence the defendant to life in prison or
sentence him to death.5 See Stringer v. Black, 503 U.S. 222,



(...continued)
‘invalid’ aggravating circumstance in reaching the ultimate deci-
sion to impose a death sentence.” 504 U.S. at 532 (quoting
Clemons v. Mississippi, 494 U.S. 738, 752 (1990)). Therefore, once
again, death eligibility was not at issue.
5
  The Indiana Supreme Court has subsequently disallowed the
consideration of nonstatutory aggravating factors during the
second phase of the death determination, though not required by
the federal constitution. See Zant v. Stephens, 462 U.S. 862, 878
(1983). However, as Wallace’s appeal began before 1995, and the
Indiana Supreme Court has decided not to apply this new ruling
retroactively, it does not apply to his case. See Bivins v. State of
Indiana, 642 N.E.2d 928, 953-56 (Ind. 1995) (“court must hence-
                                                     (continued...)
16                                                   No. 02-4262

230 (1992) (noting that the Eighth Amendment does not
permit a “state appellate court in a weighing State to affirm
a death sentence without a thorough analysis of the role an
invalid aggravating factor played in the sentencing pro-
cess”). The Court’s analysis must extend to the entire
sentencing process. See Tuggle v. Netherland, 516 U.S. 10,
11 (1995) (noting that in weighing states a death sentence
may not be summarily affirmed on the basis of one valid
aggravating factor once another aggravating factor is
deemed invalid). Limiting Johnson and Sochor is therefore
contrary to the Court’s reasoning.

A true Copy:
       Teste:

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




(...continued)
forth limit aggravating circumstances eligible for consideration to
those specified in the death penalty statute, Indiana Code Section
35-50-2-9(b)”) (emphasis added).


                     USCA-02-C-0072—3-26-04
