In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐3359, 04‐3549, 06‐2905
ERIC D. HOLMES,
Petitioner‐Appellant,
v.
RON NEAL, Superintendent, Indiana State Prison,
Respondent‐Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:00‐cv‐01477‐SEB‐DML — Sarah Evans Barker, Judge
and 1:05‐cv‐01763‐LJM‐WTL — Larry J. McKinney, Judge.
____________________
ARGUED MARCH 1, 2016 — DECIDED MARCH 22, 2016
____________________
Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
POSNER, Circuit Judge. In 1992 the petitioner, Eric Holmes,
was convicted of a pair of murders committed three years
earlier, and the following year he was sentenced to death.
On the day of the murders he’d gotten into an argument
with a co‐worker at the Shoney’s restaurant where he
worked. He and a man named Michael Vance approached
2 Nos. 14‐3359, 04‐3549, 06‐2905
the co‐worker and two of the restaurant’s managers, one of
whom was carrying the till (containing money) out of the
restaurant. They trapped the three in the foyer of the restau‐
rant, stabbed them multiple times, and took the till. Two of
the victims died.
Holmes’s conviction and sentence were affirmed and
post‐conviction relief was denied. Holmes v. State, 671 N.E.2d
841 (Ind. 1996); State v. Holmes, 728 N.E.2d 164 (Ind. 2000).
After exhausting state remedies he sought federal habeas
corpus, challenging his conviction and sentence on eighteen
different grounds and also claiming that he wasn’t mentally
competent to assist his lawyers in the habeas corpus pro‐
ceeding. The district judge ruled that he was competent and
having done so denied his claims on the merits. He ap‐
pealed, and we held that doubts of his competence remained
of sufficient gravity to warrant further consideration by the
district court, and so we remanded the case. Holmes v. Buss,
506 F.3d 576 (7th Cir. 2007). On remand the district court
again found Holmes competent and reinstated the denial of
his claims, and again we reversed, this time instructing the
district court to suspend the habeas corpus proceeding “un‐
less 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, 600 F.3d 756, 763 (7th Cir.
2010). In so ruling we relied in part on Rohan ex rel. Gates v.
Woodford, 334 F.3d 803, 812–13 (9th Cir. 2003), a decision that
“impl[ied] a right to competence from a right to counsel.”
On remand from our decision in Holmes v. Levenhagen the
district court granted the stay, thereby placing the habeas
corpus proceeding in legal limbo.
Nos. 14‐3359, 04‐3549, 06‐2905 3
So matters stood until 2013, when the respondent (the
current superintendent of the prison in which Holmes is
held) moved the district court to lift the stay and dismiss the
habeas corpus proceeding with prejudice, on the authority of
the Supreme Court’s then‐recent decision in Ryan v. Gonza‐
les, 133 S. Ct. 696, 703 (2013). Contrary to the Ninth Circuit’s
decision in Rohan, Ryan v. Gonzales rejected “the assertion
that the right to counsel implies a right to competence.”
(Gonzales, like Holmes in our case, had been convicted of
murder and sentenced to death and had then sought habeas
corpus in federal court.) The Supreme Court went on to say
that “the District Court correctly found that all of Gonzales’
properly exhausted claims were record based or resolvable
as a matter of law, irrespective of Gonzales’ competence. The
court therefore denied Gonzales’ motion for a stay. The Dis‐
trict Court did not abuse its discretion in so holding, because
a stay is not generally warranted when a petitioner raises
only record‐based claims subject to 28 U.S.C. § 2254(d).” 133
S. Ct. at 708 (citations omitted). Section 2254(d) states that
“an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adju‐
dicated on the merits in State court proceedings unless the
adjudication of the claim (1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su‐
preme Court of the United States; or (2) resulted in a deci‐
sion that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro‐
ceeding.” Because “review of such claims ‘is limited to the
record that was before the state court that adjudicated the
claim on the merits …, any evidence that a petitioner might
4 Nos. 14‐3359, 04‐3549, 06‐2905
have would be inadmissible.” Ryan v. Gonzales, supra, 133
S. Ct. at 708 (emphasis added and citations omitted).
As the district court recognized in its latest decision in
the present litigation, the substantive claims presented in
Holmes’s petition for habeas corpus are “record‐based”
claims. The substantive claims that the state courts had re‐
solved against him could be reconsidered by the federal
courts only on the basis of the state‐court record and thus
only as authorized by section 2254(d). Some of the claims
had not been presented to the state courts, yet those claims
too could be resolved on the basis of the state‐court record.
The Ryan decision approves denying a stay of the habeas
corpus proceeding when sought on the ground of the peti‐
tioner’s incapacity to consult with counsel until the petition‐
er’s recovery from the incapacity (which may never come). If
an incompetent client is giving nonsensical orders to counsel
and otherwise acting contrary to his or her own best inter‐
ests, the sensible judicial response is to appoint a guardian
rather than to stay the case ad infinitum, for “at some point
the State must be allowed to defend its judgment of convic‐
tion.” 133 S. Ct. at 709. In reliance on Ryan the respondent
(the prison superintendent) in our case asked the district
court to lift the stay of the habeas corpus proceeding and re‐
instate the earlier dismissal of Holmes’s petition for habeas
corpus. The court obliged.
Holmes has appealed both rulings—his briefs run to 190
pages. The appeal from the decision to lift the stay and
therefore reinstate the dismissal of Holmes’s claims is dock‐
eted as No. 14‐3359 in our court, and the appeal from the
2004 order dismissing Holmes’s claims (the order that was
reinstated) as No. 04‐3549. Although no guardian has been
Nos. 14‐3359, 04‐3549, 06‐2905 5
appointed to represent Holmes in this appeal, we decline to
reinstitute the stay because all his claims can be decided on
the basis of the state‐court record, as we’ll now show. (The
third appeal, No. 06‐2905, has to be dismissed for lack of
federal jurisdiction, because the case underlying it remains
pending in the district court, and that court hasn’t issued
any appealable order.)
A number of Holmes’s claims have been defaulted—that
is, not preserved in the state court proceedings—and so can’t
be reviewed by us without a convincing excuse for the de‐
fault. An example is the claim that the prosecution tried to
prevent blacks and women from serving on the jury, in part
by questioning prospective black and female jurors inappro‐
priately.
A claim that has not been defaulted (because it had been
raised in the state court proceedings and so was preserved)
concerns the closing argument of defense counsel in the
penalty phase of the trial, when he said he wasn’t afraid to
cry and beg for mercy for his client. On rebuttal the prosecu‐
tor told the jury that the defense counsel wasn’t “ashamed to
cry, because he cries in every case” and that he—the prose‐
cutor—was in court to fight for the defendant’s victims and
that it was a shame he hadn’t been allowed to present evi‐
dence about them. He had pictures of the victims in his
hands as he said this even though he’d been forbidden by
the judge’s grant of a motion in limine to show the jury the
pictures.
In response to the defense counsel’s objection to the
prosecutor’s cry‐baby statements, the judge struck them
from the trial record. When the prosecutor defiantly persist‐
ed, the judge ordered the jury removed from the court room
6 Nos. 14‐3359, 04‐3549, 06‐2905
and entertained but ultimately denied a motion for a mistri‐
al. With the jury out the judge reprimanded the prosecutor,
who when the jury returned apologized to the jury, the
judge, and the opposing counsel. The judge told the jury to
disregard the prosecutor’s previous remarks. The most ob‐
jectionable such remark was that the defense counsel cries in
every case, as it might be taken to imply that he was shed‐
ding crocodile tears in this one. But the judge was entitled to
decide, as she did, that given the length and emotionality of
the trial the prosecutor’s outburst was unlikely to have af‐
fected the jury’s verdict—which moreover under Indiana
law at the time was only advisory; the judge had the ulti‐
mate sentencing authority and the objectionable remarks
had been made in the penalty phase of the trial. See Darden
v. Wainwright, 477 U.S. 168, 179–83 (1986).
Another claim that was not defaulted relates to testimony
by the deputy sheriff who had driven Holmes to jail after his
arrest. He testified that Holmes had said “first degree mur‐
der” repeatedly during the drive. The deputy hadn’t men‐
tioned this to the prosecutor who tried the case until shortly
before the deputy testified, though he says he’d mentioned it
to others previously. The trial judge granted an overnight
recess to allow defense counsel to prepare cross‐examination
of the deputy sheriff. Allowing a recess was preferable to
granting a mistrial, the remedy urged by counsel. Nor is it
apparent that Holmes was significantly harmed by the tes‐
timony; the deputy didn’t say that Holmes had confessed to
committing first‐degree murder. Holmes has contended that
the deputy sheriff’s statements were false, but there is no ev‐
idence of this besides Holmes’s say‐so. He makes similar
claims concerning the testimony of the surviving victim of
Nos. 14‐3359, 04‐3549, 06‐2905 7
the murder spree and the girlfriend of his accomplice’s
brother, but these claims were defaulted.
The defense argues that Holmes’s trial lawyer rendered
ineffective assistance during sentencing by not advancing
certain arguments. Actually the lawyer had argued vigor‐
ously for mercy. He had pointed to Holmes’s disadvantaged
and abused youth, his age at the time of the murders (21),
and his low IQ (79, which however is higher than 70, the
conventional upper bound of serious intellectual disability).
Holmes’s lawyer also presented evidence that Michael
Vance, who the government claimed was Holmes’s accom‐
plice, had been the leader and Holmes his accomplice. The
evidence included testimony from Holmes’s sister, and from
a neuropsychologist, that Holmes was more a follower than
a leader. And during his closing argument the lawyer point‐
ed out that Vance had used violence against a woman previ‐
ously, had once threatened someone with a gun, and had
taken the lead after the murders in this case in arranging to
clean up the traces. The trial judge remained unconvinced
that Vance had been the leader of the murder spree. She re‐
lied on evidence that included Holmes’s statements threat‐
ening the victim, a revenge motive, and his concealing and
destroying evidence of the crime. Her decision was support‐
ed by other evidence, such as that Holmes had claimed re‐
sponsibility for the killings and that he had wounds on his
hands and also a significant amount of blood on him when
arrested.
The defense points to specifics of Vance’s history that
came to light only during the state post‐conviction proceed‐
ings. That history included a previous arrest for armed rob‐
bery and allegations of domestic violence, indicating that
8 Nos. 14‐3359, 04‐3549, 06‐2905
Vance “had a violent nature … [and] a more extensive crim‐
inal history than the defendant, and … these facts were
available and should have been known by counsel but were
not presented at trial.” State v. Holmes, supra, 728 N.E.2d at
173. Yet the Indiana Supreme Court affirmed the postconvic‐
tion court’s conclusion, saying that Vance’s “prior miscon‐
duct was not relevant to the circumstances of the crime and
the character of this defendant” and “that trial counsel pre‐
sented essentially all of the same background evidence as
was presented on post‐conviction review and that counselʹs
assistance cannot be faulted as objectively unreasonable for
failing to add more of the same.” Id. at 173–74.
There is tension between the two statements we just
quoted: that Holmes’s lawyer should have dwelled more on
Vance’s history but that the history was irrelevant to wheth‐
er he had been the instigator of the murders. But the law‐
yer’s omission did not demonstrate ineffective assistance of
counsel. He made the essential points about Vance during
his closing argument at sentencing, pointing out that Vance’s
criminal history included “beating a woman” and “an inci‐
dent with a gun … [where] he got angry over a traffic acci‐
dent and went and got a gun to threaten someone,” and the
trial judge heard further evidence about Vance’s involve‐
ment in this crime, including the surviving victim’s testimo‐
ny that it was Vance who did most of the talking rather than
Holmes. Nevertheless the judge was entitled to conclude
that Holmes was more culpable than Vance, since Holmes
planned the murders, had a revenge motive, and tried to
cover up the crime.
The jury found Holmes guilty of first‐degree murder but
was not asked to determine whether he was an accomplice
Nos. 14‐3359, 04‐3549, 06‐2905 9
as opposed to the actual perpetrator and whether he intend‐
ed to kill the victims. A criminal defendant “who aids and
abets a felony in the course of which a murder is committed
by others but who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be
employed” may not be sentenced to death. Enmund v. Flori‐
da, 458 U.S. 782, 797 (1982). Holmes contends (a contention
that’s been preserved) that the absence of a jury finding on
precisely how he was guilty of first‐degree murder makes it
impossible to know whether he is eligible for the death pen‐
alty. But to convict of first‐degree murder the jury had only
to find, as stated in the judge’s instructions, that Holmes
himself had killed the victims “while committing or attempt‐
ing to commit a robbery.” See Ind. Code § 35‐42‐1‐1 (1992).
The “reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death represents a highly culpable mental state, a mental
state that may be taken into account in making a capital sen‐
tencing judgment when that conduct causes its natural,
though also not inevitable, lethal result.” Tison v. Arizona,
481 U.S. 137, 157–58 (1987); see also Schad v. Arizona, 501 U.S.
624, 644–45 (1991) (plurality opinion). So, the jury necessarily
found Holmes guilty of a crime that involves sufficient dis‐
regard for human life to allow for a death sentence.
Though the jury determined guilt on the basis of section
35‐42‐1‐1, pursuant to Indiana’s death penalty statute at the
time the judge, not the jury, determined whether to impose
the death penalty. Although Ring v. Arizona, 536 U.S. 584
(2002), holds that capital defendants are entitled to a jury de‐
termination of any fact on which the legislature conditions
the death sentence, the holding does not apply retroactively.
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
10 Nos. 14‐3359, 04‐3549, 06‐2905
Holmes presents still other arguments, but we have dis‐
cussed the strongest ones and adopt the district court’s anal‐
ysis of the others. The least of the other arguments is his
lawyers’ claim to be entitled to bigger attorneys’ fees than
have been awarded to them so far. That’s an issue for the
district court to address in the first instance.
The challenge to the denial of a stay of the habeas corpus
proceeding having failed and the petition for habeas corpus
relief having been rejected, Holmes retains a right to a hear‐
ing to determine whether he is sufficiently mentally compe‐
tent to be put to death for the murders he committed. See
Ford v. Wainwright, 477 U.S. 399 (1986). As the Supreme
Court said in Panetti v. Quarterman, 551 U.S. 930, 946–47
(2007), “the statutory bar on ‘second or successive’ applica‐
tions does not apply to a Ford [v. Wainwright] claim brought
in an application filed when the claim is first ripe” (emphasis
added). No such hearing has been held, because the state has
yet to set an execution date, which must precede the hearing.
Id. at 947; Stewart v. Martinez‐Villareal, 523 U.S. 637, 643
(1998). We cannot jump the gun by ordering the district
court to hold such a hearing, as that would violate the re‐
quirement in 28 U.S.C. § 2254(b)(1)(A) that a defendant ex‐
haust all available state remedies before turning to the fed‐
eral courts for relief should he strike out in the state court
system. Those remedies will not be exhausted until the Indi‐
ana state courts decide whether Holmes is mentally compe‐
tent to be executed.
Considering that he was convicted of the murders almost
a quarter of a century ago and that if he fails to obtain relief
in a hearing in the Indiana court system on his mental com‐
petency to be executed and having thus exhausted his state
Nos. 14‐3359, 04‐3549, 06‐2905 11
remedies files a further petition for habeas corpus in the fed‐
eral district court and loses and appeals once again to us it
will be the fourth time that we are called on to render a deci‐
sion in this protracted litigation, we are dismayed at the pro‐
spect that looms before us of further and perhaps endless
protraction of federal judicial review of Holmes’s conviction
and sentence. But we are obliged by section 2254(b)(1)(A) to
proceed as just indicated.
In conclusion, the rulings of the district court appealed
from in appeals No. 14‐3359 and No. 04‐3549 are affirmed,
and the appeal in No. 06‐2905 is dismissed.