Michael Allen LAMBERT, Petitioner-Appellant, v. Cecil DAVIS, Superintendent, Respondent-Appellee, 449 F.3d 774

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 postconviction 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, 543 U.S. 1027, 125 S.Ct. 669, 160 L.Ed.2d 507 (2004). 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 appeala-bility on two issues:

(1) Whether Mr. Lambert’s current petition for a writ of habeas corpus, which rests upon

an act of the Supreme 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 Say-lor 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 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, however, 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 Lambert 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, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997); Lambert v. Indiana, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (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 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, 110 S.Ct. 1441, 108 L.Ed.2d 725 (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 sentencing decision [as in Clemons ], ... when the jury’s determination 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 Say-lor, 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 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 admission 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 amendments 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 recommendation, 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, however, argues that his present challenge is new because it was not “ripe” until Saylor was decided.

We cannot accept Ms 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 Núñez, 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 successive 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 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.

In resolving Lambert’s case, the court found that his circumstances were materially different from those in Saylor. Without question, the aggravating circumstance — the murder of a police officer acting in the course of duty — was proven beyond a reasonable doubt in Lambert’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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (matters of state law are outside the purview of federal habeas corpus).

Moreover, to the extent 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 recommendation 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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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. . 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 Supreme 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.