Wallace, Donald R. v. Davis, Cecil ( 2004 )


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  •                             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