PUBLISHED ORDER CONCERNING sUCCESSIVE PETIIMION FOR POST-CONVICTION RELIEF IN CAPITAL CASE
~ Introduction
Petitioner Michael Allen Lambert was convicted of murder and sentenced to death for killing a law enforcement officer acting in the course of duty. Lambert now asks leave to litigate in state court another collateral claim relating to the death sentence. Because we conclude that Lambert has not shown a reasonable possibility that he is entitled to relief, we deny his request.
Procedural Background
Having been arrested for public intoxication on December 28, 1990, Lambert was handcuffed and placed in the back seat of a squad car driven by Muncie Police Officer Gregg Winters. With a gun stolen from his employer, Lambert shot Officer Winters five times., Officer Winters died several days later. A jury found Lambert guilty of intentional murder. See Ind. Code § $5-42-1-1. '
The State sought the death penalty, alleging one aggravating cireumstance that would render Lambert eligible for the sentence: Officer Winters had been acting in the course of duty when Lambert shot him. . See IC. § 85-50-2-9(b)(6). The jury unanimously recommended the death penalty.. The trial court followed the [1262]*1262jury's recommendation and sentenced Lambert to death.
Lambert's conviction was affirmed on direct appeal in Lambert v. State, 643 N.E.2d 349 (Ind.1994). On rehearing, we agreed with Lambert that the jury should, not have heard certain evidence about the impact Officer Winters's death had had on his family and co-workers, but we exercised our authority to review and revise sentences and affirmed the death sentence for Lambert. Lambert v. State, 675 N.E.2d 1060, 1066 (Ind.1996), cert. denied, 520 U.S. 1255, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997). The trial court's judgment denying collateral relief was affirmed on appeal in Lambert v. State, 743 N.E.2d 719 Ind.2001), reh'g denied (2001), cert. denied, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002). Lambert then sought relief in the federal courts. The district court denied his petition for writ of habeas corpus in Lambert v. Davis, No. IP 01-864-C-M/S, unpublished order (S.D.Ind. Dec. 4, 2002). The Seventh Circuit Court of Appeals affirmed in Lambert v. McBride, 365 F.3d 557 (Tth Cir.2004), reh'g and reh'g en bane denied, cert. denied, 548 U.S. -, 125 S.Ct. 669, 160 L.Ed.2d 507 (2004).
Lambert has thus completed the review of the conviction and sentence to which he is entitled as a matter of right.
By counsel, Lambert has now filed a "Tender of Successive Petition For Post-Conviction Relief (Capital Case)" and has submitted a proposed "Petition For Post-Conviction Relief" The State filed its "Verified Response in Opposition to Tender of Successive Petition for Post-Convietion Relief" and Lambert was allowed to file "Petitioner's Reply to the State's Verified Response in Opposition to Tender of Successive Petition For Post-Conviection Relief" In these papers, Lambert requests permission to litigate the question whether his death sentence should be vacated.
We have jurisdiction because Lambert is sentenced to death. See Ind. Appellate Rule 4(4)(1)(a).
Our Post-Conviction Rules
Lambert has already availed himself of our rule that permits a person convicted of a crime in an Indiana state court one collateral review of the conviction and sentence in a post-conviction proceeding. See Ind. Post-Conviction Rule 1. As indicated above, Lambert did not prevail on his collateral claims; the trial court entered judgment against him and we affirmed that judgment on appeal.
To litigate another or "successive" post-conviction claim, Lambert needs our authorization. We will authorize the proceeding to go forward "if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief." P-C.R. 1 § 12(b). In deciding whether a petitioner has made the required showing, we consider the applicable law, the petition and materials from the petitioner's prior appeals and post-conviction proceedings including the record, briefs and court decisions, and any other material we deem relevant. Id.
Lambert's Claim
Lambert's sole claim relates to the appropriate remedy when evidence is erronce-ously admitted in the penalty phase of a capital trial. This is an issue he has raised in one form or another, and lost, in each of his prior proceedings.
On rehearing in the direct appeal, we agreed with Lambert that the jury should not have heard the victim impact evidence during the penalty phase of the trial, and we agreed with him that the error was not harmless. See Lambert v. State, 675 N.E.2d at 1064-65 ("Because the majority of the victim impact testimony given was [1263]*1263irrelevant to the charged aggravator, it was improper and should not have been admitted."). We reached a conclusion different than Lambert advocated, however, on the proper remedy for the error.
As we explained, where we find an irregularity in a death sentence, we may (1) remand to the trial court for a new sentencing determination, (2) affirm the death sentence if the error is harmless beyond a reasonable doubt, or (3) use our appellate authority to independently reweigh the proper aggravating and mitigating cireumstances. Id. at 1065 (citing Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996).
In Lambert's case, we selected the third option. We reviewed the properly admitted evidence concerning the aggravating and mitigating cireumstances, concluded the aggravating cireumstance outweighed the mitigating ones, and affirmed the trial court's death sentence. See Lambert, 675 N.E.2d at 1065-66.
Lambert claims that our appellate reweighing either did not cure the error or is not a valid remedy, see Tender at 15, but he cites no authority for either proposition and his claim has been rejected throughout the review process. In the post-conviction appeal, we specifically addressed and rejected Lambert's arguments with respect to our state's constitution, and noted the procedure had been employed in other capital cases. Lambert v. State, 743 N.E.2d at 727 (citing Matheney v. State, 688 N.E.2d 883, 909-10 (Ind.1997); cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999); Bivins, 642 N.E.2d at 957)). We also considered and rejected Lambert's arguments with respect to the federal - Constitution. - Lambert, 743 N.E.2d at 727. Similarly, the federal courts found no error under the U.S. Constitution. See, e.g., Lambert v. McBride, 365 F.3d at 561-63.
Lambert now argues that our resentenc-ing ' conflicts with Saylor v. State, 808 N.E.2d 646 (Ind.2004), a case we decided after his. The circumstances in the two cases are different, however, and we are not persuaded Saylor establishes any reasonable possibility that Lambert is entitled to relief.
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PUBLISHED ORDER CONCERNING sUCCESSIVE PETIIMION FOR POST-CONVICTION RELIEF IN CAPITAL CASE
~ Introduction
Petitioner Michael Allen Lambert was convicted of murder and sentenced to death for killing a law enforcement officer acting in the course of duty. Lambert now asks leave to litigate in state court another collateral claim relating to the death sentence. Because we conclude that Lambert has not shown a reasonable possibility that he is entitled to relief, we deny his request.
Procedural Background
Having been arrested for public intoxication on December 28, 1990, Lambert was handcuffed and placed in the back seat of a squad car driven by Muncie Police Officer Gregg Winters. With a gun stolen from his employer, Lambert shot Officer Winters five times., Officer Winters died several days later. A jury found Lambert guilty of intentional murder. See Ind. Code § $5-42-1-1. '
The State sought the death penalty, alleging one aggravating cireumstance that would render Lambert eligible for the sentence: Officer Winters had been acting in the course of duty when Lambert shot him. . See IC. § 85-50-2-9(b)(6). The jury unanimously recommended the death penalty.. The trial court followed the [1262]*1262jury's recommendation and sentenced Lambert to death.
Lambert's conviction was affirmed on direct appeal in Lambert v. State, 643 N.E.2d 349 (Ind.1994). On rehearing, we agreed with Lambert that the jury should, not have heard certain evidence about the impact Officer Winters's death had had on his family and co-workers, but we exercised our authority to review and revise sentences and affirmed the death sentence for Lambert. Lambert v. State, 675 N.E.2d 1060, 1066 (Ind.1996), cert. denied, 520 U.S. 1255, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997). The trial court's judgment denying collateral relief was affirmed on appeal in Lambert v. State, 743 N.E.2d 719 Ind.2001), reh'g denied (2001), cert. denied, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002). Lambert then sought relief in the federal courts. The district court denied his petition for writ of habeas corpus in Lambert v. Davis, No. IP 01-864-C-M/S, unpublished order (S.D.Ind. Dec. 4, 2002). The Seventh Circuit Court of Appeals affirmed in Lambert v. McBride, 365 F.3d 557 (Tth Cir.2004), reh'g and reh'g en bane denied, cert. denied, 548 U.S. -, 125 S.Ct. 669, 160 L.Ed.2d 507 (2004).
Lambert has thus completed the review of the conviction and sentence to which he is entitled as a matter of right.
By counsel, Lambert has now filed a "Tender of Successive Petition For Post-Conviction Relief (Capital Case)" and has submitted a proposed "Petition For Post-Conviction Relief" The State filed its "Verified Response in Opposition to Tender of Successive Petition for Post-Convietion Relief" and Lambert was allowed to file "Petitioner's Reply to the State's Verified Response in Opposition to Tender of Successive Petition For Post-Conviection Relief" In these papers, Lambert requests permission to litigate the question whether his death sentence should be vacated.
We have jurisdiction because Lambert is sentenced to death. See Ind. Appellate Rule 4(4)(1)(a).
Our Post-Conviction Rules
Lambert has already availed himself of our rule that permits a person convicted of a crime in an Indiana state court one collateral review of the conviction and sentence in a post-conviction proceeding. See Ind. Post-Conviction Rule 1. As indicated above, Lambert did not prevail on his collateral claims; the trial court entered judgment against him and we affirmed that judgment on appeal.
To litigate another or "successive" post-conviction claim, Lambert needs our authorization. We will authorize the proceeding to go forward "if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief." P-C.R. 1 § 12(b). In deciding whether a petitioner has made the required showing, we consider the applicable law, the petition and materials from the petitioner's prior appeals and post-conviction proceedings including the record, briefs and court decisions, and any other material we deem relevant. Id.
Lambert's Claim
Lambert's sole claim relates to the appropriate remedy when evidence is erronce-ously admitted in the penalty phase of a capital trial. This is an issue he has raised in one form or another, and lost, in each of his prior proceedings.
On rehearing in the direct appeal, we agreed with Lambert that the jury should not have heard the victim impact evidence during the penalty phase of the trial, and we agreed with him that the error was not harmless. See Lambert v. State, 675 N.E.2d at 1064-65 ("Because the majority of the victim impact testimony given was [1263]*1263irrelevant to the charged aggravator, it was improper and should not have been admitted."). We reached a conclusion different than Lambert advocated, however, on the proper remedy for the error.
As we explained, where we find an irregularity in a death sentence, we may (1) remand to the trial court for a new sentencing determination, (2) affirm the death sentence if the error is harmless beyond a reasonable doubt, or (3) use our appellate authority to independently reweigh the proper aggravating and mitigating cireumstances. Id. at 1065 (citing Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996).
In Lambert's case, we selected the third option. We reviewed the properly admitted evidence concerning the aggravating and mitigating cireumstances, concluded the aggravating cireumstance outweighed the mitigating ones, and affirmed the trial court's death sentence. See Lambert, 675 N.E.2d at 1065-66.
Lambert claims that our appellate reweighing either did not cure the error or is not a valid remedy, see Tender at 15, but he cites no authority for either proposition and his claim has been rejected throughout the review process. In the post-conviction appeal, we specifically addressed and rejected Lambert's arguments with respect to our state's constitution, and noted the procedure had been employed in other capital cases. Lambert v. State, 743 N.E.2d at 727 (citing Matheney v. State, 688 N.E.2d 883, 909-10 (Ind.1997); cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999); Bivins, 642 N.E.2d at 957)). We also considered and rejected Lambert's arguments with respect to the federal - Constitution. - Lambert, 743 N.E.2d at 727. Similarly, the federal courts found no error under the U.S. Constitution. See, e.g., Lambert v. McBride, 365 F.3d at 561-63.
Lambert now argues that our resentenc-ing ' conflicts with Saylor v. State, 808 N.E.2d 646 (Ind.2004), a case we decided after his. The circumstances in the two cases are different, however, and we are not persuaded Saylor establishes any reasonable possibility that Lambert is entitled to relief. Saylor had been sentenced to death for a 1992 murder despite his jury's unanimous recommendation - against +a death sentence. Then in 2002, Indiana's death penalty statute was amended and no longer allows a person to be sentenced to death if the jury unanimously recommended against it. See 1.0. § 35-50-2-9(e) (2004). We revised Saylor's death sentence to a term of years after concluding it was. "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." 808 N.E.2d at 647.
The cireumstances for Lambert are different. - His is not a situation where the jury unanimously recommended against the death sentence. There is no suggestion the aggravating cireumstance-Officer Winters was acting in the course of duty when Lambert shot him-was not proved beyond a reasonable doubt, which, in any event, we infer from the jury's unanimous recommendation. State v. Barker, 809 N.E.2d 312, 316 n. 2 (Ind.2004) (citing Saylor v. State, 765 N.E.2d 535, 574 (Ind.2002) (Sullivan, J., concurring and dissenting) ("[When a jury recommends a sentence of death or life without parole, it has by definition made the predicate determination of death eligibility required by Ap-prendi.")). As such, Lambert would be eligible for the death penalty today. Id. Finally, neither Saylor nor the 2002 [1264]*1264amendments to the death penalty statute affect, in any way relevant to Lambert's case, our constitutional authority to review or revise sentences or the appropriate remedies for erroneous admission of evidence.,
Conclusion
Lambert has not met his burden of establishing a reasonable possibility that he is entitled to post-conviction relief. Accordingly, we decline to authorize the filing of a successive petition for post-conviction relief,
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., dissents with opinion.
RUCKER, J., dissents with opinion.