In the
United States Court of Appeals
For the Seventh Circuit
No. 23-2890
ERIC D. HOLMES,
Petitioner-Appellant,
v.
RON NEAL,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:05-cv-01763 — Sarah Evans Barker, Judge.
ARGUED DECEMBER 15, 2025 — DECIDED OCTOBER 15, 2026
Before SYKES, JACKSON-AKIWUMI, and LEE, Circuit Judges.
LEE, Circuit Judge. In 1992, Eric Holmes was found guilty by an Indiana jury of two counts of murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery. During the sentencing phase, the jury was tasked with providing a recommendation as to
whether the court should impose the death penalty based on certain aggravating circumstances. But when the jury was unable to reach a unanimous decision, the trial court found the 2 No. 23-2890
presence of aggravating circumstances and imposed the
death sentence anyway. Over the next eight years, Holmes
unsuccessfully pursued state court relief and eventually filed a federal petition for habeas corpus.
While that petition was pending, the Indiana Legislature
amended its death penalty statute in 2002 to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). Thereafter, the Indiana Supreme Court in Saylor v. Indiana reversed the death sentence of an inmate who had been sentenced to death in a manner that was now prohibited under the new amendments. 808 N.E.2d 646, 648 (Ind. 2004).
In light of this development, Holmes requested leave to
file a second state post-conviction petition for relief. The Indiana Supreme Court, however, denied the request, distinguishing Holmes’s situation from that of the prisoner in Saylor. Believing this decision violated his Fourteenth Amendment right to equal protection under the law, Holmes filed a second federal habeas petition. The district court dismissed that petition as being second or successive under 28 U.S.C. § 2244(b), and Holmes now appeals.
We disagree with the district court that Holmes’s petition is second or successive within the meaning of § 2244(b); nevertheless, we affirm because the Indiana Supreme Court’s ruling distinguishing Holmes’s case from Saylor did not offend the Equal Protection Clause.
I. Background
The long, circuitous history of this case is complex but necessary for our analysis. We highlight the salient points below. No. 23-2890 3
A. State Criminal Proceedings
Eric Holmes was arrested on November 16, 1989, in the
wake of crimes committed at a northside Indianapolis restaurant. 1 Holmes v. State (Holmes I), 671 N.E.2d 841, 845–46 (Ind. 1996). Holmes was charged with, and subsequently convicted by a jury of, two counts of murder, and one count each of attempted murder, robbery, and conspiracy to commit robbery. Id. at 845.
At the sentencing phase, the State moved to impose the
death penalty pursuant to Ind. Code § 35-50-2-9 (1992). Id. at 852–52. That statute enumerated certain “aggravating circumstances” and relevant “mitigating factors” and also required the State to prove at least one aggravating circumstance to qualify the defendant for the death penalty. Id. Because
Holmes was convicted in a jury trial, the jury was reconvened for the sentencing hearing and tasked with making a recommendation to the court as to the applicability of the death penalty.
To aid the jury in its deliberations, Holmes asked the judge to provide the jury with a special verdict form. Id. at 855–56. The court rejected the request, however, and provided a general verdict form to the jury. Id. After some time, the jury announced that it was unable to provide a unanimous recommendation to the court. Id. at 851.
In such circumstance, under § 35-50-2-9(f), “the jury’s participation is at an end and sentencing by the court proceeds to
1 Holmes has since changed his name to Koor An Nur of Katie Mary Brown. Following the lead of the parties and our Court in previous appeals, we continue to refer to him as Holmes.
4 No. 23-2890
a conclusion without the benefit of a recommendation.” Id. at 851. Thus, the judge conducted Holmes’s sentencing hearing without the jury and found that the prosecution had proven two of the aggravating circumstances beyond a reasonable
doubt. Id. at 853. After balancing the aggravating circumstances with the mitigating factors, the court sentenced
Holmes to death for the murder counts and imposed concurrent terms of imprisonment for the remaining counts. Id. at 845.
Holmes filed a direct appeal on numerous grounds. The
Indiana Supreme Court largely affirmed his conviction, although it vacated the conspiracy to commit robbery conviction and modified the robbery sentence. Id. at 860. The United
States Supreme Court denied certiorari. See Holmes v. Indiana, 522 U.S. 849 (1997).
Holmes then sought post-conviction relief in state court, which was ultimately denied by the Indiana Supreme Court
on August 31, 2000. See Holmes v. State (Holmes II), 728 N.E.2d 164 (Ind. 2000). The next month, Holmes filed his first federal petition for a writ of habeas corpus (“the 2000 federal petition”) in the United States District Court for the Southern District of Indiana to challenge his convictions and sentences pursuant to 28 U.S.C. § 2254.
B. 2002 Statutory Amendments
In 2002, while Holmes’s 2000 federal petition was pending, the Indiana Legislature amended § 35-50-2-9 in response to the United States Supreme Court’s rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. No. 23-2890 5
584 (2002). See Ind. Code § 35-50-2-9 (2002) (amended 2016). 2 The amendment “requires the trial court to ‘provide a special verdict form for each aggravating circumstance alleged’ on which the jury will indicate whether it found an aggravating circumstance beyond a reasonable doubt.” Holmes v. State
(Holmes III), 820 N.E.2d 136, 139 (Ind. 2005) (quoting Ind. Code § 35-50-2-9(d) (2002)). More significantly, the 2002
amendment mandated that, for defendants sentenced after its enactment, “[i]f a the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly.” Ind. Code § 35-50-2-9(e) (2002).
Otherwise, much of § 35-50-2-9 remained unchanged. Relevant here, the statute still provided that, “if jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.” Ind. Code § 35-50-2-9(f) (2002). The court then could impose the death penalty if it finds that:
the state has proved beyond a reasonable doubt that at
least one (1) of the aggravating circumstances listed in
subsection (b) exists; and (2) any mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances.
Ind. Code § 35-50-2-9(g), (k) (2002).
C. Saylor v. Indiana
Following the 2002 amendments, the Indiana Supreme
Court decided Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004). In
2 The statute was further amended in 2016, but those revisions are not relevant here.
6 No. 23-2890
that case, the defendant Saylor had been convicted of murder, murder in the commission of a robbery, robbery, and confinement for his actions in 1992. Id. at 651. The State sought the death penalty, but the jury unanimously recommended
against it. Despite this, the trial court found that the State had proved two death penalty aggravating circumstances beyond a reasonable doubt and sentenced him to death.
After the 2002 amendments to the death penalty statute,
Saylor filed for post-conviction relief, and the Indiana Supreme Court granted his petition, vacating his death sentence and revising his sentence to an imprisonment term of one
hundred years (forty for the murder, twenty for robbery, and twenty for confinement). In so doing, the Indiana Supreme
Court stated:
We conclude that it is not appropriate to execute a person who was convicted and sentenced through a procedure that has now been substantially revised so the
same trial today would no longer render the defendant
eligible for the death penalty.
Id.
Citing Saylor, Holmes filed a petition to review his sentence with the Indiana Supreme Court. Holmes then moved
on July 16, 2004, to stay his 2000 federal petition before the district court until the state court could rule on his petition. But while that motion was pending, the Indiana Supreme
Court dismissed Holmes’s petition without prejudice on August 6, 2004, because he had not used the correct procedure to file what was his second state post-conviction petition.
Citing the Indiana Supreme Court’s dismissal of his petition, the district court entered an order on August 17, 2004, No. 23-2890 7
denying as moot Holmes’s motion to stay his 2000 federal petition. The district court then denied Holmes’s 2000 federal petition itself on September 2, 2004.
D. Holmes’s Second State Petition
On September 14, 2004, Holmes filed his second postconviction state court petition with the Indiana Supreme
Court, this time using the proper procedures. In it, he argued that the trial court’s imposition of the death penalty without regard to the jury’s failure to arrive at a unanimous
recommendation was contrary to Saylor. Moreover, he noted that the trial court’s refusal to provide the jury with a special verdict form contravened the 2002 amendments.
Around the same time, Holmes also filed a notice of appeal challenging the district court’s denial of his 2000 federal petition. On August 10, 2005, after defense counsel filed several motions related to Holmes’s competency, we “remanded to the district court for the limited purpose of determining [Holmes]’s current competence to proceed,” but otherwise retained jurisdiction in the matter and stayed the appeal pending the limited remand. Holmes v. McBride (No. 04-3549), App. Dkt. 18 at 2. 3
While his federal appeal was pending, the Indiana Supreme Court in January 2005 denied Holmes’s request to file a successive petition over the dissent of two Justices. Holmes III, 820 N.E.2d 136. As for Holmes’s reliance on Saylor, the Court found the case inapplicable. The jury in Saylor, the
3 “Dkt.” refers to the docket number in the district court. “App. Dkt.” refers to an appellate docket. In this case, it refers to the docket entry in appeal 04-3549.
8 No. 23-2890
Indiana Supreme Court observed, had unanimously recommended against the death penalty and the judge had imposed it anyway, something the 2002 amendments later expressly
proscribed. Id. at 138. By contrast, the Court continued, Holmes’s jury had been unable to reach a recommendation at all, and even the amended version of § 35-50-2-9 allowed the judge to conduct the sentencing hearing and impose the death penalty in such circumstances. Id.
As for the special verdict form, Holmes argued that, without one, there was no “documentation” of the jury’s findings as to the presence of aggravating circumstances, thereby violating Apprendi. Id. The Indiana Supreme Court disagreed, determining that the jury had necessarily found two aggravating circumstances—that Holmes had intentionally committed murder during a robbery and had committed more than one
murder—beyond a reasonable doubt when it convicted him
of the two murder counts and the robbery count. Id. at 140. E. Holmes’s Second Federal Habeas Petition
While his dismissed 2000 federal petition was pending but stayed in the Seventh Circuit, Holmes filed a second federal petition for a writ of habeas corpus (“the 2005 federal petition”) on November 23, 2005. In his view, by treating him differently than Saylor, the Indiana Supreme Court violated his rights to equal protection and due process as guaranteed by the Fourteenth Amendment of the United States Constitution. The federal district court, however, found the petition to be second or successive, and because Holmes had not obtained leave to file it from the Seventh Circuit as required by 28 U.S.C. § 2244(b), the court dismissed it. Holmes appealed the dismissal on July 9, 2006.
No. 23-2890 9
Meanwhile, following the Seventh Circuit’s instructions as to Holmes’s 2000 federal petition, the district court in June 2006 concluded on remand that Holmes was competent to assist his attorneys with the habeas litigation. The Seventh Circuit then consolidated Holmes’s appeals of the dismissals of his 2000 and 2005 federal petitions and remanded with instructions to reevaluate Holmes’s competence to prosecute his habeas petitions. Holmes v. Buss (Holmes IV), 506 F.3d 576 (7th Cir. 2007).
As for Holmes’s 2000 federal petition, on July 28, 2009, the district court found that Holmes was competent to proceed. Holmes appealed, and we again reversed and remanded
“with instructions to suspend the habeas corpus proceeding unless and until the state provides substantial new evidence that Holmes’s psychiatric illness has abated, or its symptoms are sufficiently controlled, to justify the resumption of the proceeding.” Holmes v. Levenhagen (Holmes V), 600 F.3d 756, 763 (7th Cir. 2010). The district court eventually “suspended and administratively closed” both the 2000 and 2005 cases on July 7, 2010.
Then came Ryan v. Gonzales, 568 U.S. 57, 64–73 (2013).
There, the Supreme Court held that a habeas petitioner, even one who has been sentenced to death, has no statutory right to competence during habeas corpus proceedings. In the
wake of this holding, the district court in 2014 lifted the stay in the 2000 federal petition action and reinstated the order dismissing it with prejudice. We affirmed. Holmes v. Neal (Holmes VI), 816 F.3d 949 (7th Cir. 2016).
As to 2005 federal petition, the district court reopened proceedings in June 2021 and ordered Holmes to show cause as to why the action should not be dismissed for lack of
10 No. 23-2890
jurisdiction as an unauthorized second or successive petition or, in the alternative, why the action should remain stayed. In 2022, Holmes filed a motion in the district court to again stay the 2005 federal proceeding pending a competency evaluation and investigation into a possible claim under Atkins v. Virginia, 536 U.S. 304 (2002). The district court denied the motion and dismissed his petition for lack of jurisdiction as an unauthorized second or successive petition. The district court also denied the certificate of appealability because it found that no reasonable jurist would disagree that the petition is an unauthorized second or successive petition.
We, on the other hand, granted the certificate of
appealability with respect to two questions: (1) whether
Holmes’s second-in-time § 2254 petition (the 2005 federal petition) is a “second or successive” petition within the meaning of 28 U.S.C. § 2244(b); and (2) whether the Indiana Supreme Court’s decision denying Holmes’s request for relief based on the 2002 amendments to Indiana’s death-penalty
statute violated his constitutional rights.
II. Discussion
A. Second or Successive Petition
We review the district court’s denial of Holmes’s § 2254
petition de novo. Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (citation omitted). We first consider whether Holmes’s 2005 federal habeas petition is “second or successive” as that phrase appears in § 2254.
When an individual files a federal habeas petition to challenge a state court conviction, our review is governed—and limited—by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Thurston v. Vanihel, 39 F.4th 921, 928 (7th No. 23-2890 11
Cir. 2022) (citing Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir. 2017)). State prisoners are entitled to “one fair opportunity to seek federal habeas relief from” their convictions. Banister v. Davis, 590 U.S. 504, 507 (2020); see also Rivers v. Guerrero, 605 U.S. 443, 446 (2025). But, in the words of the AEDPA, “[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” except under narrow circumstances. 28 U.S.C. § 2244(b)(2); see also Panetti v. Quarterman, 551 U.S. 930, 942 (2007). To bring a “second or successive” petition, the petitioner must make a prima facie case to the court of appeals that the petition satisfies one of § 2244(b)(2)’s exceptions. 28 U.S.C. § 2244(b)(2). 4
“[S]econd or successive” in § 2244 is a “term of art” that is “not self-defining.” Banister, 590 U.S. at 511 (internal
4 That provision 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 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. Id.
12 No. 23-2890
quotations omitted). In the Supreme Court’s words, “[u]nder AEDPA, a state prisoner always gets one chance to bring a federal habeas challenge to his conviction. But after that, the road gets rockier.” Id. at 509 (internal citation omitted). What is more, a petition may be second-in-time to a previous one, but this alone does not make it “second or successive.” Id. at 511. Chronology alone is not determinative. Instead, to ascertain whether a second-in-time petition is “second or successive,” we must look to “historical habeas doctrine and practice” and “AEDPA’s own purposes.” Id. at 512.
Our caselaw on the meaning of “second or successive” has
evolved over the years in keeping with Supreme Court
precedent. We start in 2006 with a case quite like this one, Lambert v. Davis, 449 F.3d 774, 777–78 (7th Cir. 2006). Like Holmes, Michael Lambert had been convicted of murder in
Indiana state court and sentenced to death. He filed a federal habeas petition challenging his conviction on various
grounds to no avail. After the Indiana Supreme Court decided Saylor, Lambert asked that court for leave to file a successive post-conviction petition based on Saylor, which the Indiana Supreme Court denied. He then filed a second federal habeas petition challenging that ruling, and a divided panel of our court rejected the view that Lambert’s second petition “is new because it was not ‘ripe’ until Saylor was decided.” Id.
Judge Ripple dissented. In his view, the petition was not second or successive because it was “not an attempt to revisit issues or matters that may have been litigated or could have been litigated in the first petition.” Id. at 781 (Ripple, J. dissenting). Instead, it presented a claim based on “a decision of the Supreme Court of Indiana that occurred after the completion of the first habeas action.” Id. (emphasis in original). “It is No. 23-2890 13
difficult to imagine,” Judge Ripple continued, “that when
Congress enacted AEDEPA … it intended to prevent the redress of … an action that could not have been known or even anticipated at the time the petitioner pursued the initial federal habeas claim.” Id.
A year after Lambert, the Supreme Court decided Panetti v. Quarterman, 551 U.S. 930 (2007). In that case, the petitioner Scott Panetti had been convicted and sentenced to death in state court after waiving his right to counsel and proceeding pro se. After exhausting his state remedies, he filed a petition for a writ of habeas corpus in federal court challenging the state court’s finding that he was competent to stand trial and waive counsel, but the petition was denied. The state court then set a date for execution, and Panetti filed another federal habeas petition, this time arguing that he lacked the competence to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). Id. at 937–38. Rejecting the state’s argument that this was a second or successive petition, the Supreme Court ”conclude[d] … that Congress did not intend the provisions of [AEDPA] addressing ‘second or successive’ petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id. at 945.
Since that time, we have read the Supreme Court’s conclusion in Panetti to have “hinged on the fact that the Ford claim was not yet available when Panetti brought his first federal petition.” United States v. Obeid, 707 F.3d 898, 902 (7th Cir. 2013). And, indeed, “[a] number of our sister circuits,” we observed, “have generalized this logic to apply to other types of second-in-time petitions that were not ripe at the time of the initial petition.” Id. “Seeing no reason to part ways with our 14 No. 23-2890
sister circuits,” we declared, “we join them in concluding that a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not ‘second or successive’ within the meaning of Sections 2244 and 2255(h).” Accord Brown v. Atchley, 76 F.4th 862, 872–73 (9th Cir. 2023) (finding that a petitioner’s third and fourth habeas petitions were not second or successive because the petitioner’s due process and equal protection claims were not ripe until his application for resentencing was denied, which occurred after his first and second habeas petitions were decided or dismissed); In re Jones, 652 F.3d 603, 605 (6th Cir. 2010) (holding that a petition raising ex post facto claim based on amendments to state law that occurred after the first petition was not second or successive); Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009) (“[L]ater habeas petitions attacking distinct judgments, administration of an inmate’s sentence, a defective habeas proceeding itself, or some other species of legal error—when the error arises after the underlying conviction—tend to be
deemed non-successive.”) (citations omitted). 5
Building on this precedent, we decided Flores-Ramirez v.
Foster, 811 F.3d 861 (7th Cir. 2016) (per curiam). There, the petitioner Cesar Flores-Ramierz was convicted by a Wisconsin jury of first-degree intentional homicide. He filed a petition for a writ of habeas corpus, which the district court denied. Later, Flores-Ramirez discovered that his trial interpreter was not qualified and filed a motion for state post-conviction
5 In Obeid, we expressed no view on claims that become ripe between the filing and adjudication of a first petition. 707 F.3d at 902. We likewise need not address the issue here.
No. 23-2890 15
relief. That too was denied, but Flores-Ramirez was concerned that the state post-conviction court did not subpoena his appellate counsel or interpreter. And so, he filed a second federal habeas petition raising this with several other arguments. Id. at 863–64. Citing Obeid, we determined that the petition (as least, with respect to that particular claim) was not “second or successive” for the purposes of § 2244, because it was “unripe at the time of his first petition.” Id. at 866 (citing Obeid, 707 F.3d at 902).
Here, Holmes argues that his 2005 federal petition is not “second or successive” within the meaning of § 2244 because it challenges the judgment of the Indiana Supreme Court
denying him permission to file a second state post-conviction petition, while his 2000 federal petition contested the state court rulings as to his original state post-conviction petition. 6 We agree. Holmes’s present claims did not ripen until the Indiana Supreme Court denied him relief in 2005. Before then, there was no judicial act that purportedly treated him differently from similarly situated prisoners in violation of the Equal Protection Clause. Therefore, consistent with Panetti,
6 Respondent argues that Holmes failed to raise his jurisdictional arguments to the district court and thus waived them. “Waiver occurs when a defendant intentionally relinquishes a known right.” United States v. Haddad, 462 F.3d 783, 793 (7th Cir. 2006). Waiver “is construed liberally in favor of the defendant,” and as such, “we are cautious about interpreting a defendant’s behavior as intentional relinquishment.” United States v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018). We hesitate to apply the waiver doctrine here, where competency has been a hotly contested issue. 16 No. 23-2890
Obeid, and Flores-Ramirez, we conclude that the claims before us are not barred by 28 U.S.C. § 2244. 7
B. Other Procedural Arguments
The Respondent advances other procedural arguments.
But, because Holmes’s equal protection claim lacks merit (for the reasons we will discuss below), none impedes our review.
First, a federal court generally cannot grant habeas relief unless the petitioner has “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This requirement “is designed to avoid the ‘unseemly’ result of a federal court ‘upsetting a state court conviction without’ first according the state courts an ‘opportunity to correct a constitutional violation.’” Davila v. Davis, 582 U.S. 521, 527 (2017) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)) (citation modified).
We question whether Holmes adequately presented his
Fourteenth Amendment claim to the state court or whether
exhaustion may be excused. But we need not address this issue here. Under 28 U.S.C. § 2254(b)(2), we may deny a petition on the merits “notwithstanding the failure of the applicant to
7 We granted the certificate of appealability in this case as to “whether the Indiana Supreme Court’s decision denying Holmes’s request for relief based on the 2002 amendments to the state death-penalty statute violated his rights under the federal Constitution.” App. Dkt. 7. Holmes’s due process claim, however, appears to be based on the trial court’s ability to impose the death penalty regardless of the jury’s recommendation or the changes brought about by the 2002 amendments. Because Holmes was not granted a certificate of appealability on those issues, the merits of his due process claim are not properly before us. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001) (“‘[W]e are not required to and will not’ address arguments outside of those issues certified for appeal.”) (quoting Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000)). No. 23-2890 17
exhaust the remedies in the courts of the State.” See Washington v. Boughton, 884 F.3d 692, 698 (7th Cir. 2018) (AEDPA “expressly authorizes a federal court to deny an unexhausted claim on the merits.”).
Furthermore, as the Respondent points out, “the Constitution does not guarantee … specific rights during a postconviction hearing.” Flores-Ramirez, 811 F.3d at 866. A majority of our sister circuits have interpreted this to mean “that errors in state post-conviction proceedings do not provide a basis for redress under § 2254.” Id. (quoting Word v. Lord, 648 F.3d 129, 131 (2d Cir. 2011)). We, however, have articulated this principle differently; we have held that “unless state collateral review violates some independent constitutional right, such as the Equal Protection Clause, errors in state collateral review cannot form the basis for federal habeas corpus review.” Id. (quoting Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996)); see also Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997). Here, Holmes argues that the Indiana Supreme Court violated his constitutional right to equal protection, so the nature of his claim is cognizable under our caselaw.
C. The Merits
We now turn to the merits of Holmes’s claim that the Indiana Supreme Court’s decision to deny his request for leave to file a successive post-conviction petition violated his right to equal protection under the Fourteenth Amendment.
Ordinarily, a state court’s decision as to a state prisoner’s federal claim is entitled to substantial deference on federal habeas review. See Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). This deferential review, however, “applies only to claims that were 18 No. 23-2890
actually ‘adjudicated on the merits in State court proceedings.’” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (quoting § 2254(d)). Here, “no state court has squarely addressed the merits” of Holmes’s Equal Protection claim. Id. Nor did Holmes raise the federal claim before the Indiana Supreme Court (because, after all, the claim arose from the Court’s decision itself). Cf. Adorno v. Melvin, 876 F.3d 917, 921 (7th Cir. 2017). Therefore, we apply the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “dispose of the matter as law and justice require.” Harris, 698 F.3d at 623 (citation modified).
The Fourteenth Amendment to the Constitution prohibits
States from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This includes discrimination by means of state judicial action. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179 (1972) (citations omitted).
Although the Equal Protection Clause “does not deny to
States the power to treat different classes of persons in different ways,” Reed v. Reed, 404 U.S. 71, 75 (1971) (internal citations omitted), classifications must be “reasonable, not arbitrary, and must rest upon some ground of difference … so that all persons similarly circumstanced shall be treated alike,” id. at 76 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
Holmes argues that the Indiana Supreme Court violated
the Equal Protection Clause by treating him differently from those other inmates who were sentenced to death without a unanimous jury supporting it: Saylor, Christopher Peterson (now Obadyah Ben-Yisrayl), and William Minnick. In so doing, he asserts what essentially is a “class of one” claim where, No. 23-2890 19
he posits, the government “arbitrarily and irrationally singles out one person for poor treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016). 8
Furthermore, because he compares himself to others,
Holmes must show that he was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” FKFJ, Inc. v. Vill. of Worth, 11 F.4th 574, 588 (7th Cir. 2021) (citation omitted); see Love v. Vanihel, 73 F.4th 439, 454 (7th Cir. 2023) (“A plaintiff alleging arbitrary treatment must typically present a similarly situated comparator who[m] the State dealt with differently— someone who is identical or directly comparable to him in all material respects.”) (quoting Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015)) (citation modified); D.B. ex rel. Kurtis v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (rational basis review “sets the legal bar low and simply requires a rational relationship between the disparity of treatment and some legitimate governmental purpose”) (citation modified).
Here, Holmes cannot show that he is similarly situated to Saylor, Ben-Yisrayl, and Minnick in all material respects.
8 Though the Supreme Court has recognized a “class-of-one equal protection challenge to state legislative and regulatory action,” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 596 (2008), it has not expressly extended it to judicial actions. To be sure, “[s]tate action, for purposes of the Equal Protection Clause, may emanate from … judicial action.” Moose Lodge No. 107, 407 U.S. at 179. But we have observed that the “class-of-one theory is better suited to those contexts involving ‘a clear standard against which departures, even for a single [individual], could be readily assessed.” United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (quoting Engquist, 553 U.S. at 602). Here, we will assume without deciding that Holmes can bring a class-of-one claim challenging the court decision. 20 No. 23-2890
Those three individuals were sentenced to death even though their respective juries unanimously recommended against the imposition of the death penalty. The 2002 amendments to
§ 35-50-2-9 expressly prohibit this. See Ind. Code § 35-50-2-9(e) (2002) (“If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly.”).
But, as the Indiana Supreme Court correctly observed,
“[t]he circumstances for Holmes are different.” Holmes III, 820 N.E.2d at 138. In his case, the jury did not return a unanimous recommendation against the death penalty; it could not agree on a recommendation at all. Id. And, under such circumstances, the statute (even after 2002) permits the trial judge to impose the death penalty after making the necessary findings. See § 35-50-2-9(f) (2002) (“If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the
court shall discharge the jury and proceed as if the hearing had been to the court alone.”). Thus, there was a rational basis for the Indiana Supreme Court’s decision to distinguish
Holmes’s case from the others.
Shifting gears, Holmes points out that, when the death
penalty statute was amended in 2002, the Indiana legislature also required the trial court to “provide a special verdict form for each aggravating circumstance alleged” by the State. See § 35-50-2-9(d) (2002). In his view, because the Indiana Supreme Court applied the 2002 amendments retroactively to
Saylor (albeit, the amendment to § 35-50-2-9(e)), it should have given Holmes the benefit of the revised § 35-50-2-9(d). Retroactively applying the 2002 version of the statute to Saylor but not to him, Holmes argues, also violates his equal protection rights.
No. 23-2890 21
This argument has some superficial appeal. See Griffith v.
Kentucky, 479 U.S. 314, 323 (1987) (“[S]elective application of new rules violates the principle of treating similarly situated defendants the same.”). And, at least one circuit has expressed the view that a state supreme court cannot apply a rule retroactively only in some cases. See Johnson v. Arizona, 462 F.2d 1352, 1354 (9th Cir. 1972).
In this case, however, the Indiana Supreme Court had a
rational basis to not apply the new § 35-50-2-9(d) retroactively to Holmes. In Saylor, the Indiana Supreme Court explained, “Even in dealing with the death penalty not every change in the law affects earlier trials.” Saylor, 808 N.E.2d at 650. Only when an amendment has been “revised in an important aspect that renders the defendant ineligible for the death penalty” is it inappropriate to carry out a death sentence. Id. at 651. Thus, while we agree with Holmes that the jury was
never given a special verdict form, which would now contravene the 2002 amendments, the Indiana Supreme Court’s ultimate disposition of the case was not unreasonable.
Recall that the special verdict form amendment was in response to the United States Supreme Court’s ruling in Apprendi. According to Holmes, without the special verdict form, we cannot be sure that the jury in his case would have found an aggravating circumstance beyond a reasonable doubt. But, as the Indiana Supreme Court observed, the general verdict form indicated that the jury had found Holmes guilty beyond a reasonable doubt of two intentional murders and robbery. Furthermore, the aggravating circumstances upon which the prosecution relied were the commitment of more than one
murder and murder during a robbery. Therefore, “[b]y finding him guilty of intentional multiple murders and robbery, 22 No. 23-2890
the jury necessarily found the aggravating circumstances beyond a reasonable doubt.” Holmes III, 820 N.E. 2d at 139.
This is consistent with the way the Indiana Supreme Court has historically viewed the State’s burden to prove aggravating circumstances when seeking the death penalty. For example, the court has recognized that “statutory aggravators in Indiana’s Death Penalty law are the functional equivalent of elements of a crime, and must be found by a jury beyond a reasonable doubt.” Ritchie v. State, 809 N.E.2d 258, 265 (Ind. 2004) (citing Ring, 536 U.S. at 605, 609). “Once a statutory aggravator is found by a jury beyond a reasonable doubt,” the court continued, “the Sixth Amendment as interpreted in Ring and Apprendi is satisfied.” Id. at 268. This is true whether the jury documents its findings in a general verdict or special verdict form. See Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003) (holding that the aggravating circumstances increasing the defendant’s sentence were justified because of “the jury’s verdict in the guilt phase, finding Defendant guilty of the two murders, necessarily mean[t] that the jury found, beyond a reasonable doubt, that Defendant had committed more than
one murder.”) (citation omitted). 9
9 Bostick v. State, 773 N.E.2d 266, 273–74 (Ind. 2002), is inapplicable. In Bostick, the State attempted to apply the statutory aggravator based upon the victims’ young ages. Ind. Code § 35-50-2-9(b)(12) (2002). The jury’s verdicts at the guilt phase found Bostick “guilty of the Murder of” Jason Michael Robinson, Ashley Joy Robinson, and Jessica Nicole Robinson. Dkt. for 33D01-9807-CF-020 (Ind.), Count I Verdict Form, Count II Verdict Form, Count III Verdict Form. Nowhere on the verdict forms were the victims’ ages, and at no point during trial or sentencing did the jury determine the age of the victims. It was the trial court alone that found “the No. 23-2890 23
At the guilt phase, the jury found that the State had proved beyond a reasonable doubt that “Eric D. Holmes intentionally killed Charles W. Ervin” and that “Eric D. Holmes intentionally killed Theresa Blosl.” The jury also found Holmes guilty of robbery beyond a reasonable doubt. Given this, we agree that the jury in Holmes’s criminal case found beyond a reasonable doubt the facts necessary to prove the aggravating circumstances described in § 35-50-2-9(b)(1)(G) (“intentionally killing the victim while committing … Robbery”) and § 35-50-2-9(b)(8) (“committing another murder, at any time, regardless of whether the defendant has been convicted of that other murder”).
Resisting this conclusion, Holmes insists that, if his trial were to happen today, the use of a special verdict form would have led to a different result (presumably because the jury would have unanimously recommended against the death
penalty). But there is no reason to believe that the jury, having convicted him of two murders and robbery beyond a reasonable doubt, would have reached the conclusion that Holmes postulates.
To sum up, the Indiana Supreme Court had a rational basis to treat Holmes differently from Saylor, Ben-Yisrayl, and Minnick, whose juries unanimously recommended against
the death penalty. Furthermore, the court reasonably believed
State has established beyond a reasonable doubt, through the testimony of the children’s father, … that Jason Michael Robinson, Ashley Joy Robinson and Jessica Nicole Robinson were each under the age of 12 years” at the time of the murder. Dkt. for 33D01-9807-CF-020 (Ind.), Sentencing Statement at 3.
24 No. 23-2890
that the failure to provide the special verdict form did “not affect the essential fairness” of Holmes’s trial because it would not have changed the result of the case. United States v. Harbin, 250 F.3d 532, 546 (7th Cir. 2001) (citation omitted).
* * *
For the foregoing reasons, the judgment is AFFIRMED.
No. 23-2890 25
JACKSON-AKIWUMI, Circuit Judge, concurring in the judgment. With trepidation, I concur. I have no reservations about the procedural question before us; Eric Holmes’s habeas corpus petition is not second or successive, so I agree with my
colleagues that we may entertain it. Instead, I write separately to highlight the constitutional problems in Indiana’s death penalty statute and in Holmes’s case. Holmes’s petition
invites us to address these issues. But our caselaw says we cannot.
The issues are this: Indiana’s death penalty statute
allowed a trial judge to impose Holmes’s capital sentence in a manner that now violates the Sixth Amendment. Then, when
Holmes sought permission to file a second petition for postconviction relief, the Indiana Supreme Court construed the record to avoid the Sixth Amendment issue in his sentencing. But the Indiana Supreme Court’s reasoning, in addition to not addressing the underlying constitutional problem in the
state’s death penalty statute, yields two new problems. It appears to be incompatible with the Eighth Amendment, and it conflicts with that court’s prior decisions in capital appeals. That the Indiana Supreme Court resolved Holmes’s appeal
differently than it resolved other capital appeals bolsters Holmes’s Fourteenth Amendment Equal Protection Clause
claim. Nevertheless, as I explain below, our caselaw compels us to deny Holmes the relief he seeks.
I. The Constitutional Problems in Indiana’s Death Penalty
Statute
Begin with Indiana’s procedure for imposing Holmes’s
death sentence. The death penalty statute under which
Holmes was sentenced provided that “[i]f the defendant was convicted of murder in a jury trial, the jury shall reconvene 26 No. 23-2890
for the sentencing hearing.” Ind. Code Ann. § 35-50-2-9(d) (West 1989). At sentencing, “the jury shall recommend to the court whether the death penalty should be imposed.” Id. § 35-50-2-9(e).
However, “[i]f the jury is unable to agree on a sentence
recommendation after reasonable deliberations,” the statute contemplates an alternate way to impose a sentence: Under Section 9(f), the trial judge must “discharge the jury and proceed as if the hearing had been to the court alone.” Id. § 35-50-2-9(f). That is, the judge follows a three-step sentencing procedure typically entrusted to the jury. See id. § 35-50-2-9(g). At step one, the judge must find “that the state has proved beyond a reasonable doubt” that at least one aggravating
circumstance exists. Id. § 35-50-2-9(g)(1). If so, at step two, the judge must find that “any mitigating circumstances that exist are outweighed by the aggravating circumstance or
circumstances.” Id. § 35-50-2-9(g)(2). If that condition is also met, the judge proceeds to the third and final step of deciding whether the defendant should be sentenced to death. See id. § 35-50-2-9(f)–(g).
This procedure runs headlong into two later-decided
Supreme Court cases interpreting the Sixth Amendment,
Apprendi v. New Jersey and Ring v. Arizona. In Apprendi, the Court held that under the Sixth Amendment, “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Ring extended Apprendi’s holding to capital sentencings. See 536 U.S. 584, 609 (2002). Specifically, the Ring Court overruled precedent that “allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for No. 23-2890 27
imposition of the death penalty.” Id. “The right to trial by jury guaranteed by the Sixth Amendment,” the Court held,
encompasses the right for a jury to do “the factfinding
necessary to put [a criminal defendant] to death.” Id.
Applying Ring to Indiana’s death penalty statute reveals
the conflict. Under Section 9(f), if the penalty phase jury cannot agree on a sentence recommendation, the judge shall proceed “as if the hearing had been to the court alone.” Ind. Code Ann. § 35-50-2-9(f) (West 1989). The judge is therefore obliged to find “that the state has proved beyond a reasonable doubt that at least one of the aggravating circumstances
exists” before imposing a sentence of life without parole or death. Id. § 35-50-2-9(g)(1). But Ring makes clear that
“[c]apital defendants … are entitled to a jury determination” of the aggravating circumstances justifying their death
sentences. Ring, 530 U.S. at 589 (emphasis added).
Holmes was sentenced to death under Section 9(f), which
is incompatible with Apprendi and Ring. His penalty phase jury could not agree on a sentence; the vote was ten-to-two in favor of life imprisonment. So the trial judge dismissed the jury, and the state presented its aggravating circumstance evidence directly to her. The judge alone decided Holmes
should be sentenced to death.
Indiana has revised its death penalty statute several times since Holmes was sentenced. But Section 9(f) has survived each revision, even those implemented after the Supreme
Court decided Apprendi and Ring. To be sure, because
Apprendi and Ring do not apply retroactively, see Schiro v. Summerlin, 542 U.S. 348, 358 (2004), they do not provide
Holmes an independent basis to challenge his sentencing
procedure. Nevertheless, it ought to disturb us all that
28 No. 23-2890
Indiana’s death penalty statute still vests authority in judges to find the aggravating circumstances necessary to impose a death sentence—even though Apprendi and Ring say that
responsibility lies with juries.
II. The Indiana Supreme Court’s Denial of Holmes’s
Petition
The Indiana Supreme Court affirmed Holmes’s conviction
on direct review and denied him collateral post-conviction relief. But after that, and in response to the Supreme Court’s decision in Apprendi, the Indiana legislature amended the state’s death penalty statute in 2002. While Section 9(f) still exists, now, Indiana judges may no longer impose a death
sentence over a sentencing jury’s recommendation that the defendant be sentenced to life imprisonment. See Saylor v. State, 808 N.E.2d 646, 648 (Ind. 2004) (explaining change in law post-Apprendi). And the statute now requires judges to provide sentencing juries with “a special verdict form for each aggravating circumstance alleged.” Ind. Code § 35-50-2-9(d) (2016). The sentencing jury uses the special verdict form to record the aggravating circumstance or circumstances that the state has proved beyond a reasonable doubt and that
justify condemning a person to death.
After the amended statute went into effect and the Indiana Supreme Court began to apply it retroactively to individuals on death row, Holmes petitioned that court for relief. See Holmes v. State, 820 N.E.2d 136, 138 (Ind. 2005). He argued he was similarly situated to Benny Saylor, who had been
sentenced to death despite a jury’s contrary sentencing
recommendation. Id. (citing Saylor, 808 N.E.2d 646). The
Indiana Supreme Court had revised Saylor’s sentence to a
term of years because his sentence did not comport with the No. 23-2890 29
amended death penalty statute. Id. Holmes asked the court to do the same for him. Id. He also argued that the amended
statute’s special verdict form requirement should be applied retroactively to him. Id. Without the special verdict forms, Holmes insisted, there was “no ‘documentation’ of the jury’s findings regarding aggravating circumstances that made
[him] eligible for a death sentence.” Id.
The Indiana Supreme Court rejected both arguments. It
distinguished Holmes from Saylor, whose sentence had been changed because “it was ‘not appropriate to execute a person who was convicted and sentenced through a procedure that
[was] substantially revised so that the same trial today would no longer render the defendant eligible for the death
penalty.’” Id. (quoting Saylor, 808 N.E.2d at 647). Unlike Saylor, the court reasoned, Holmes’s sentencing procedure was still statutorily permissible. Id. (“Indiana law still authorizes the sentencing judge to impose a death sentence if the jury cannot agree on a sentencing recommendation.”).
The Indiana Supreme Court also found Holmes’s special
verdict form argument unpersuasive. It deemed the guilty
verdict at Holmes’s trial sufficient to prove the aggravating circumstances at sentencing. Id. at 139. “The aggravating circumstances charged in [Holmes’s] case,” the court
explained, “were intentional murder during a robbery and
multiple murders.” Id. “By finding him guilty of intentional multiple murders and robbery, the jury necessarily found the aggravating circumstances beyond a reasonable doubt.” Id. The court thus concluded, if implicitly, that Holmes’s
sentencing comported with Apprendi and Ring.
30 No. 23-2890
III. The Indiana Supreme Court’s Decision Creates Three
New Problems
I see three issues with the Indiana Supreme Court’s
reasoning in Holmes’s case. First, the court’s decision does not address the Sixth Amendment problem inherent in the state’s death penalty statute. Second, the court’s resolution of
Holmes’s case is out of step with the Supreme Court’s Eighth Amendment jurisprudence. Third, the court’s decision has
troubling equal protection implications. Each issue warrants discussion, even if our caselaw says we cannot afford Holmes relief.
A. Sixth Amendment
The Indiana Supreme Court is aware that the state’s death penalty statute establishes a sentencing procedure that
violates the Sixth Amendment. A year before deciding
Holmes’s petition, Charles Barker, a capital defendant,
argued that the 2002 amended statute violates Ring. See State v. Barker, 809 N.E.2d 312, 315 (Ind. 2004). The state conceded “that the procedure set forth in [Indiana Code] 35-50-2-9(f), if it were followed by a trial court in sentencing a defendant to death (or to life without parole), would be in violation of Ring.” Id. at 315–16 (quoting the record). So the Indiana Supreme Court was tasked with determining whether Section 9(f) was unconstitutional.
The court rejected Barker’s argument (and the state’s
concession), holding that Section 9(f) was constitutional. It reached this conclusion specifically by relying on the
amended statute’s special verdict form requirement. Id. at 316. The court assumed that a sentencing jury could find “one or more aggravators proven beyond a reasonable doubt” even No. 23-2890 31
if it was unable to agree that the mitigating circumstances were outweighed by the aggravating circumstances or to
agree on a sentencing recommendation. Id. In such a case, the court reasoned, the sentencing judge could impose a capital sentence based on the jury’s aggravating circumstance
finding as reflected in the special verdict form. See id. Construing the statute in this way allowed the court to avoid the Sixth Amendment issue. The court did acknowledge,
however, that “[i]n the event a penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances, … Ring and Apprendi would prohibit the trial judge from proceeding under Subsection 9(f) and a new
penalty phase trial would be required.” Id. (emphasis added).
Barker thus lays out the Indiana Supreme Court’s view on
how to impose a death sentence under Section 9(f) without violating the Sixth Amendment. Either the “penalty phase
jury … return[s] a verdict finding one or more aggravators proven beyond a reasonable doubt,” and the judge uses that finding—recorded on the special verdict forms—to impose a sentence. Id. (emphasis added). Or, if the “penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances,” then “a mistrial should be
declared and the case submitted to a new [penalty phase]
jury.” Id. (emphasis added). In any case, according to the Indiana Supreme Court, what saves Section 9(f) from being unconstitutional is that the trial judge imposes a sentence based on the penalty phase jury’s findings reflected in the special verdict form.
That did not happen in Holmes’s case. There are no
penalty phase jury findings in Holmes’s case at all, let alone any special verdict forms—the judge refused Holmes’s
32 No. 23-2890
request that his sentencing jury be provided those forms. Necessarily, then, Holmes’s penalty phase jury did not make the requisite aggravating circumstance findings to justify the trial judge imposing a death sentence. So according to Barker, Holmes’s sentence is constitutionally infirm.
Yet the Indiana Supreme Court affirmed Holmes’s
conviction. Its decision in Holmes cannot be reconciled with Barker. Nowhere in Barker did the Indiana Supreme Court so much as suggest that a jury’s findings of guilt at trial can be exported to the penalty phase as an aggravating circumstance finding. And nowhere in Holmes does the Indiana Supreme
Court acknowledge or explain why it departed from the
reasoning it had articulated just a year before in Barker. Cf. Holmes, 820 N.E2d at 140 (Sullivan, J., dissenting) (noting departure from Barker). Essentially, the Indiana Supreme
Court silently carved out an exception to Barker specifically for Holmes. But “whatever might be thought of the justice or wisdom” of this decision, the Supreme Court has long held that it’s not unconstitutional for a state court to depart from its own precedent. Patterson v. Colorado, 205 U.S. 454, 461 (1907); Garner v. Louisiana, 368 U.S. 157, 188 (1961) (Harlan, J. concurring) (explaining that state’s “departure from
precedent may have been wrong, unwise, or even unjust, but it was not unconstitutional”); cf. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”).
B. Eighth Amendment
Next, the conflict with the Supreme Court’s Eighth
Amendment jurisprudence. In Furman v. Georgia, the Court
prompted a nearly four-year moratorium on capital
No. 23-2890 33
punishment in the United States. See 408 U.S. 238 (1972). The procedures used to impose capital sentences, Justice Brennan explained, were “not constructed to guard against the totally capricious selection of criminals for the punishment of
death.” Id. at 295 (Brennan, J., concurring). And as Justice Stewart concluded, “the Eighth and Fourteenth Amendments
cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Id. at 310 (Stewart, J., concurring).
It’s been fifty years since the Supreme Court restored
states’ ability to impose death sentences. See Gregg v. Georgia, 428 U.S. 153 (1976). In this time, the Court’s Eighth
Amendment jurisprudence has focused on ensuring states’
sentencing schemes do not violate the Constitution. See
California v. Ramos, 463 U.S. 992, 999 (1983) (“In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been … the procedure by which the State imposes the death sentence … .”). In short, states must “apply special procedural safeguards when they seek the death penalty.” Ring, 536 U.S. at 614 (Breyer, J., concurring in the judgment). One such safeguard is
bifurcating the guilt and penalty phases of a defendant’s proceedings—that is, separating the trial from the sentencing hearing. See Walton v. Arizona, 497 U.S. 639, 657 (1990) (Scalia, J., concurring in part and concurring in the judgment)
(describing Court’s Eighth Amendment jurisprudence as
“effectively requiring capital sentencing proceedings separate from the adjudication of guilt”). A separate sentencing
hearing ensures that the factfinder grapples with the
aggravating and mitigating circumstances in a defendant’s case and makes an individualized determination that the
34 No. 23-2890
defendant is worthy of death. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).
The problem in this case is that the Indiana Supreme Court collapsed the guilt and penalty phases of Holmes’s
proceedings. To deem Holmes’s conviction constitutional, the court exported the jury’s trial verdict to the sentencing hearing. In so doing, the court absolved the jury (or, in the case of a sentence imposed under Section 9(f), the judge) of its statutory responsibility at sentencing. There, the factfinder must find that the state proved the existence of one or more aggravating factors beyond a reasonable doubt before
imposing a death sentence.
In fairness, what the Indiana Supreme Court did in
Holmes’s case is not per se unconstitutional. See Hurst v. Florida, 577 U.S. 92, 100 (2016) (“[U]nder Apprendi, a judge may impose any sentence authorized ‘on the basis of the facts reflected in the jury verdict … .’” (quoting Blakely v.
Washington, 542 U.S. 296, 303 (2004))). Still, the court’s reasoning in Holmes effectively renders the sentencing jury’s obligation to find aggravating circumstances at the penalty phase “a mere technical requirement.” Lowenfield v. Phelps, 484 U.S. 231, 257 (1988) (Marshall, J., dissenting). This is odd considering the Indiana legislature thought this obligation important enough to mandate it by statute, and the Indiana Supreme Court thought it important enough to deem it
mandatory in Barker. Because “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing
determination,” Ramos, 463 U.S. at 998–99, I believe Indiana’s blurring the line between the guilt and penalty phases of trial No. 23-2890 35
is out of step with the Supreme Court’s Eighth Amendment
jurisprudence.
C. Fourteenth Amendment Equal Protection Clause
Now, the equal protection problem. As explained earlier,
Holmes was sentenced to death using a procedure that
violates Indiana’s death penalty statute (because his
sentencing did not comport with the amended statute’s plain text or with the state’s articulation of what Apprendi and Ring require for imposing death). In other cases, the Indiana
Supreme Court has held that when a defendant’s death
sentence is imposed in a way that deviates from the procedure set forth by statute, that defendant is “ineligible” for the death penalty. How then is Holmes not “ineligible” for the death penalty too?
Look again at the text of the death penalty statute to see how Holmes’s sentencing is procedurally defective. In its first paragraph, the statute requires that “[i]n the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one … of the aggravating circumstances alleged.” Ind. Code § 35-50-2-9(a) (2016) (emphasis added). The statute goes on to lay out the subsequent sentencing procedures: “If the defendant is convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing” where, before recommending a death sentence, it “must find at least one aggravating circumstance beyond a reasonable doubt … .” Id. § 35-50-2-9(d). If the penalty phase jury cannot reach a unanimous sentencing
recommendation, the judge “discharge[s] the jury” and
“proceed[s] as if the [sentencing] hearing had been to the court alone.” Id. § 35-50-2-9(f). The statute requires the judge to make the requisite findings of an aggravating circumstance— 36 No. 23-2890
again at the sentencing hearing—before imposing death on
the defendant. See id. § 35-50-2-9(g).
Nothing in the statute’s text suggests that a guilt phase jury’s verdict can be exported to the penalty phase to allow either the sentencing jury or judge to bypass making an
aggravating circumstance finding. The statute expressly
requires that finding be made at the sentencing hearing. In resolving Holmes’s petition, the Indiana Supreme Court
effectively rewrote the statute to make that requirement a nullity.
It matters that in affirming Holmes’s death sentence, the Indiana Supreme Court deviated from the text of the state’s death penalty statute. A misalignment of this type—that is, a difference between the statutory procedure and what actually happened at the defendant’s sentencing—is the reason Benny Saylor, Christopher Peterson (now known as Obadyah BenYisrayl), and William Minnick had their death sentences
converted to life in prison without parole.
Recall the problem with Saylor, Ben-Yisrayl, and
Minnick’s sentences. The pre-2002 version of Indiana’s death penalty statute gave judges the ability to override a jury’s unanimous sentencing recommendation. The trial judges in
Saylor, Ben-Yisrayl, and Minnick’s cases sentenced each man to death despite a jury unanimously recommending life
imprisonment. The 2002 amendments to the statute removed
the judicial override provision. Now, the statute provides that “[i]f the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly.” Ind. Code § 35-50-2-9(e). Saylor, Ben-Yisrayl, and Minnick had their sentences changed because, in the Indiana Supreme Court’s words, “it is not appropriate to carry out a death sentence that was the No. 23-2890 37
product of a procedure that has since been revised in an
important aspect that renders the defendant ineligible for the death penalty.” Saylor v. Indiana, 808 N.E.2d 646, 650–51 (Ind. 2004) (emphasis added).
What’s striking about this reasoning is the way the
Indiana Supreme Court uses the phrase “ineligible for the death penalty” in Saylor. Indiana changed the procedure by which a death sentence could be imposed, and because
Saylor, Ben-Yisrayl, and Minnick were not sentenced to death in accordance with that procedure, they were “ineligible for the death penalty,” and their sentences were overturned. In other words, the procedural error alone changed the outcome for Saylor, Ben-Yisrayl, and Minnick.
This is different from the ordinary meaning of the phrase “ineligible for the death penalty,” and the difference is meaningful. Typically, a person is deemed “ineligible” for the death penalty because the Constitution prohibits him from being put to death. States cannot execute a person with certain characteristics, and there are a limited number of offenses for which capital punishment is allowed. See, e.g., Miller v. Alabama, 567 U.S. 460, 470 (2012) (“[W]e have held that
imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment.” (citations omitted)). But these constitutional limitations on imposing the death penalty were not implicated in Saylor, Ben-Yisrayl, and Minnick’s— or Holmes’s—cases. Nothing in the state or federal
constitutions rendered Saylor, Ben-Yisrayl, and Minnick
“ineligible” for death. Again, Indiana simply changed the procedure by which a death sentence could be imposed, and because Saylor, Ben-Yisrayl, and Minnick were not sentenced 38 No. 23-2890
to death in accordance with that procedure, they were
deemed “ineligible” for death and their sentences were
overturned.
I see little daylight between, on one hand, Saylor, BenYisrayl, and Minnick, and, on the other hand, Holmes. Like the others, Holmes’s sentencing also does not comport with the procedure required by Indiana law. By exporting
Holmes’s guilt phase verdict to the penalty phase, the Indiana Supreme Court relieved the state of its statutory burden to prove at the sentencing hearing that the aggravating
circumstances were established. And it relieved the
sentencing judge of her statutory obligation to find the
existence of any aggravating circumstances beyond a
reasonable doubt. Moreover, though the amended statute
requires the sentencing jury be given special verdict forms to record its findings for each aggravating circumstance,
Holmes’s jury was never given any such forms. Holmes’s
sentencing, like Saylor, Ben-Yisrayl, and Minnick’s, is
procedurally untethered from Indiana’s death penalty
statute. It seems, then, that equal protection requires his sentence to be converted to life in prison without parole—like Saylor, Ben-Yisrayl, and Minnick’s sentences were. See, e.g., Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602 (2008) (“[W]hen it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a ‘rational basis for the difference in treatment.’” (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000))).
IV. Why Holmes’s Equal Protection Claim Must Still Fail
Holmes’s death sentence should give us all pause. It was
not imposed according to the procedure laid out by the
No. 23-2890 39
amended statute. It does not comport with the procedure set forth in Barker, the Indiana Supreme Court’s decision
interpreting that statute. And the difference between Holmes and Saylor, Ben-Yisrayl, and Minnick is artificial. Holmes’s death sentence may be constitutional, but I am not convinced it is proper.
That said, the sole question before our court is whether
there’s a rational basis for Indiana to treat Holmes differently than Saylor, Ben-Yisrayl, and Minnick. Unsatisfying as it is, and as the majority opinion correctly identifies, the “rational” basis is this: The amended statute explicitly prohibits Saylor, Ben-Yisrayl, and Minnick from being put to death, because their juries unanimously recommended life imprisonment.
But the amended statute does not explicitly prohibit Holmes from being put to death. Section 9(f)—which permits the trial judge to impose a death sentence when the sentencing jury has been dismissed after deadlocking—“has long been a part of the Indiana statute governing sentences of death and life imprisonment without parole,” Barker, 809 N.E.2d at 317, and this part of the statute remained the same before and after 2002.
The one change to the statute that does apply to Holmes’s case, the special verdict form requirement, does not
undermine the conclusion that the state had a rational basis to treat Holmes differently. The amended statute does not explicitly prohibit a judge from imposing a death sentence when the jury did not make an aggravating circumstance
finding on a special verdict form. Barker does, but the Indiana Supreme Court appears to have decided that Barker’s
interpretation of the statute was inapplicable in Holmes’s case. On these facts, we may not second guess that choice. Cf. 40 No. 23-2890
Laborers’ Pension Fund v. Miscevic, 880 F.3d 927, 934 (7th Cir. 2018) (“We must defer to a state court’s interpretation of the state’s statute.” (citation modified)); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions.”). But see Mullaney v. Wilbur, 421 U.S. 684, 691 n.11 (1975) (“On rare occasions the Court has re-examined a state-court interpretation of state law when it appears to be an obvious subterfuge to evade consideration of a federal issue.” (citation modified)).
All told, based on how Indiana has construed its law,
Holmes is differently situated from the people whose death sentences are explicitly prohibited under the amended
statute—people sentenced to death when a jury unanimously recommended against it. As the majority opinion explains, our caselaw says this is a rational reason to treat him
differently. See Ante, at 19–20, 23–24. Because this egregious result is constitutionally permissible, I am compelled to concur in the judgment.