United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 14, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 07‐2093 and 07‐2182
JOSEPH E. CORCORAN, Appeals from the United States District
Petitioner‐Appellee/ Court for the Northern District of
Cross‐Appellant, Indiana, South Bend Division.
v. No. 05 C 389
MARK LEVENHAGEN, Allen Sharp,
Superintendent, Judge.
Respondent‐Appellant/
Cross‐Appellee.
O R D E R
Upon consideration of the petition for rehearing and rehearing en banc, filed by
respondent‐appellant/cross‐appellee on February 24, 2010, and the answer filed by
petitioner‐appellee/cross‐appellant on March 25, 2010, no judge in active service has
requested a vote on the petition for rehearing en banc and all of the judges on the original
panel have voted to deny the petition for rehearing. It is, therefore, ORDERED that the
petition for rehearing and rehearing en banc is DENIED.
IT IS FURTHER ORDERED that the courtʹs opinion dated January 27, 2010, is amended
as follows:
Nos. 07‐2093 and 07‐2182 Page 2
On page 5 of the slip opinion, second full paragraph, line 12, the phrase “two
obviously unreasonable fact determinations” shall be replaced with “an
obviously unreasonable fact determination”.
On page 7 of the slip opinion, the sentence at the end of the paragraph at the
top – “But the state trial court must reconsider its sentencing determination, . . .”
– shall be appended with:
This will cure the state trial court’s “unreasonable determination of the
facts.” 28 U.S.C. § 2254(d)(1). (It will also prevent noncompliance with
Indiana law. Petitioner contended that, under the circumstances of this
case, noncompliance with state law also violates the federal Constitution
and thus warrants him relief under 28 U.S.C. § 2254(d)(2). Respondent
has not advanced any contrary argument based on Wainwright v. Goode,
464 U.S. 78 (1983), or any similar decision.)
On page 7 of the slip opinion, the first full paragraph, through all of page 9,
shall be deleted and replaced with:
For completeness, we note that there were no other prejudicial errors
in the sentencing process. Corcoran also claimed that the Indiana trial
court failed to consider six of the ten mitigating circumstances Corcoran
proffered: (1) his age; (2) his substantially impaired ability to appreciate
the criminality of his conduct or to conform that conduct with the
requirements of the law; (3) his inability to competently assist in his
defense; (4) his forethought to protect his seven‐year‐old niece during the
murders; (5) his good behavior in jail before sentencing; and (6) his
admission of guilt “at all stages of the legal process” including the trial.
But when the trial court first sentenced Corcoran, it explicitly discussed
and rejected these mitigators as either false or nonmitigatory. Trial Tr. at
2915; State of Indiana v. Corcoran, No. 02D04‐9707‐CF‐465, at 3‐6 (Ind.
Super. Ct. Aug. 26, 1999). When the Indiana Supreme Court later advised
it to clarify only whether it had used non‐statutory aggravators, it is
unsurprising that the trial court declined to reiterate its analysis of these
mitigators it had previously rejected.
The Indiana Supreme Court made an erroneous finding of fact, that
the trial court “analyzed” and “rejected” Corcoran’s age in its sentencing
order, Corcoran, 744 N.E.2d at 500, because the sentencing order makes no
mention of Corcoran’s age except to note that Corcoran proffered it as a
mitigator. But that error was harmless, as the trial court considered
Corcoran’s age when it orally pronounced sentence upon him. Trial Tr.
at 2915.