Lambert v. McBride, 03-1015.

• Decision Date: 07 April 2004
• Docket Number: No. 03-1015.,03-1015.
• Citation: 365 F.3d 557
• Parties: Michael Allen LAMBERT, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.3d 557

Michael Allen LAMBERT, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Respondent-Appellee.

No. 03-1015.

United States Court of Appeals, Seventh Circuit.

Argued October 23, 2003.

Decided April 7, 2004.

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Alan M. Freedman (argued), Midwest Center for Justice, Evanston, IL, Laurence E. Komp, Ballwin, MO, for Petitioner-Appellant.

Stephen R. Creason (argued), Steve Carter, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before RIPPLE, KANNE, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Michael Lambert appeals from the denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He does not dispute that his Indiana conviction for the murder of police officer Gregg Winters is valid, but he contends that the death sentence he received was unconstitutionally imposed. The facts are grisly.

Lambert was drinking heavily one December day in 1990. That night, he went to a bar on the south side of Muncie, Indiana, and drank even more. He became drunk; a patron of the bar said he was "dancing around wild-eyed." A little after midnight, Muncie police were dispatched to a property-damage accident. When they arrived on the scene, they found a truck without a driver.

A short time later, Officer Kirk Mace saw a man trying to crawl under a car. When Mace investigated, the man, who turned out to be Lambert, said he was going to go to sleep under the car. Lambert was lightly dressed; the outside temperature was in the teens and it was snowing. Mace concluded that Lambert was drunk and arrested him for public intoxication. Lambert was subjected to a quick "pat-down search," handcuffed, and placed in the back of a squad car. A single officer, Officer Winters, started to drive Lambert to the jail, which was about 15 minutes away. What happened during that short trip ended Winters' life and altered, with a sentence of death, Lambert's life as well.

A few minutes into the trip, a patrol car carrying two deputy sheriffs approached Officer Winters' squad car, which was proceeding from the opposite direction. Suddenly, Winters' patrol car slid off the road and came to rest in a ditch. Why? Well, as revealed during the trial, what happened was chilling.

The "pat-down" search of Lambert had come up dry for weapons, but it was tragically incomplete. Lambert had a gun somewhere on his person, one that he stole from his employer 8 days earlier. During the ride to the jail, Lambert, despite being handcuffed, managed to get the gun and fire shots into the back of Officer Winters' neck and head. When the two deputies got to the scene, Winters was immobile behind the steering wheel and Lambert's pistol was on the floor. An autopsy revealed that Winters was struck by five bullets. He died in a hospital 11 days later.

Lambert was subsequently charged with murder. The charged aggravating circumstance, which made him eligible for the death penalty, was that the victim was a police officer killed in the line of duty. Indiana Code § 35-50-2-9(b)(6). Lambert was convicted by a jury, and the case proceeded to a sentencing hearing before the same jury. During this hearing, under Indiana law, a jury considers "all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing." § 35-50-2-9(d). When these proceedings (prior to the 2002 amendments to the statute) occurred, the judge was not bound by the jury's recommendation, and prior to pronouncing sentence she could receive victim-impact evidence. Indiana Code § 35-50-2-9(e). In this case, however, it was the jury who heard victim-impact testimony — from the police chief, Officer Winters' brother, and from his widow, Molly Winters. The jury recommended a death sentence, which the judge then imposed.

Lambert appealed his conviction and sentence to the Indiana Supreme Court, which remanded the case to the trial court to reconsider evidence of intoxication as it was related to the penalty determination. The trial judge once again sentenced Lambert to death, and this time the Indiana Supreme Court affirmed both the conviction and sentence. Lambert v. State, 643 N.E.2d 349 (Ind.1994). Lambert sought rehearing, arguing that the court was wrong to find that he waived his claim that the trial judge improperly admitted the victim-impact testimony. The Indiana Supreme Court, on rehearing, held that the victim-impact evidence was improperly admitted and that its admission was not harmless error. The court found, however, after itself weighing the factors in aggravation and mitigation, that the death sentence was proper. Lambert v. State, 675 N.E.2d 1060 (Ind.1996). Next, Lambert filed a petition for state postconviction relief in the trial court. After an evidentiary hearing, the court denied relief. Lambert once again appealed to the Indiana Supreme Court, which affirmed the denial of postconviction relief, Lambert v. State, 743 N.E.2d 719 (Ind.2001). A rehearing request was also denied. Along the way, petitions for writs of certiorari were presented to the United States Supreme Court and denied. 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's next stop was the United States district court, where he filed a petition for a writ of habeas corpus. The district court denied his petition, and this appeal followed.

Because Lambert's petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the provisions of that Act govern our review. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, if a constitutional claim was adjudicated on the merits by the state court, a federal court may grant habeas relief on that claim only if the state court decision was "contrary to" or "involved an unreasonable application of clearly established federal law as determined by the Supreme Court," or if it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). A state court decision is "contrary to" established Supreme Court precedent when the state applies a rule different from governing Supreme Court cases or confronts a set of facts that is materially indistinguishable from those of a Supreme Court decision and arrives at a different conclusion. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). If the case involves an "unreasonable application" of Supreme Court precedent, we defer to reasonable state court decisions. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). State court factual findings that are reasonably based on the record are accorded a presumption of correctness, and the state court's findings of facts must be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Denny v. Gudmanson, 252 F.3d 896 (7th Cir.2001).

Lambert contends that the Indiana Supreme Court decision, where it reweighed the statutory factors in aggravation and mitigation and then permitted his death sentence to stand, is contrary to or an unreasonable application of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

Quite obviously, Lambert's row to hoe on this issue would be smoother if he could rely on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). As he recognizes, however, that argument is foreclosed to him, as it was in Trueblood v. Davis, 301 F.3d 784 (7th Cir.2002), where we observed, without an extended discussion, that the Supreme Court has not held Ring to be retroactive to cases on collateral review. See also Szabo v. Walls, 313 F.3d 392 (7th Cir.2002). We will now add a bit to that discussion.

In Ring, the Supreme Court held that the Sixth Amendment jury trial guarantee extends to the determination of any fact, other than a prior conviction, that increases the maximum punishment for first degree murder from life imprisonment to death. Essentially, this is an application, perhaps more accurately an extension of the rule announced earlier in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because the rule in Apprendi is not retroactive, Curtis v. United States, 294 F.3d 841 (7th Cir.2002), it stands to follow that the rule in Ring, an Apprendi child, is not retroactive for the same reasons. Two circuits, the Tenth and Eleventh, have expressly held that Ring is not retroactive to cases on collateral review. See Cannon v. Mullin, 297 F.3d 989 (10th Cir.2002), and Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003). These decisions make the convincing case that first Apprendi, and then Ring, only established new rules of criminal procedure. They did not involve substantive changes in the law. And Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), holds that new constitutional rules of criminal procedure do not apply to cases that are final before the new rules are announced. Teague does provide two exceptions to this general rule. First, a new rule applies retroactively if it places a class of private conduct beyond the power of the criminal law-making authority to proscribe or punish. Second, a new rule applies retroactively if (1) it is a watershed rule that "alters our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction," id. at 311, 109 S.Ct. 1060, and (2) under the new rule "the likelihood of an accurate conviction is seriously diminished," id. at 313, 109 S.Ct. 1060. Today we reaffirm what we held in Trueblood and Szabo and join the Tenth and Eleventh Circuits in expressly holding that Ring does not fit under either of the Teague exemptions to non-retroactivity.

In reaching this conclusion, we are mindful of the contrary view recently expressed by the Ninth...