IN THE INDIANA SUPREME COURT
HOLMES, Eric D., n/k/a/ Koor An Nur of Mary Katie Brown,
petitioner,
v.
STATE OF INDIANA,
respondent.
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Supreme Court case no.
49S00-0409-SD-423
Marion Superior Court case no.
49G05-8911-CF-131401
ORDER CONCERNING SUCCESSIVE PETITION
FOR POST-CONVICTION RELIEF IN CAPITAL CASE
This matter is before us on a request by petitioner, Eric D. Holmes,
to file a successive petition for post-conviction relief from his death
sentence pursuant to Indiana Post Conviction Rule 1, Section 12, and the
“State’s Verified Response to Holmes’ Successive Petition for Post-
Conviction Relief.” As explained below, permission to file a successive
petition is denied.
A jury unanimously found Holmes guilty of two intentional murders, an
attempted murder and a robbery committed in 1989. The jury did not reach a
unanimous recommendation on the State’s request for a death sentence in the
penalty phase of the trial. The trial court imposed the death sentence on
the basis of two aggravating circumstances that rendered Holmes eligible
for the death penalty. See Ind. Code. § 35-50-2-9(b)(1) & (b)(8)
(intentional killing during a robbery and the commission of multiple
murders). The four convictions and the death sentence were affirmed on
direct appeal in Holmes v. State, 671 N.E.2d 841 (Ind. 1996), cert. denied,
522 U.S. 849 (1997). Collateral post-conviction relief was ultimately
denied in State v. Holmes, 728 N.E.2d 164 (Ind. 2000), cert. denied, 532
U.S. 1067 (2001). The federal district court denied a petition for a writ
of habeas corpus in Holmes v. Anderson, No. IP00-1477-C-M/L (S. D. Ind.
Sept. 2, 2004), appeal docketed Holmes v. McBride, No. 04-3549 (7th Cir.
2004).
Holmes 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. Holmes is now requesting permission to initiate a
second, or “successive” post-conviction proceeding. We will authorize the
filing of a successive petition “if the petitioner establishes a reasonable
possibility that the petitioner is entitled to post-conviction relief.” P-
C.R. 1, § 12.
Holmes claims he is entitled to relief from his death sentence
because of changes made in 2002 to Indiana’s death penalty statute.
He cites Saylor v. State, 808 N.E.2d 646 (Ind. 2004), as support for
his claim. 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 statute was amended and no longer allows a person to be
sentenced to death if the jury unanimously recommends against it. See I.C.
§ 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 circumstances for Holmes are different. The jury at his trial
did not return a unanimous recommendation on the death sentence. Indiana
law still authorizes the sentencing judge to impose a death sentence if the
jury cannot agree on a sentencing recommendation. See I.C. § 35-50-2-9(f)
& (g) (2004) (the current version) and I.C. § 35-50-2-9(f) & (g) (Supp.
1989) (the version in effect when Holmes committed the murders). We have
previously determined that such a scheme is not inconsistent with the
requirements for unanimous jury decisions announced by the United States
Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New
Jersey, 530 U.S. 466 (2000). See State v. Barker, 809 N.E.2d 312, 316
(Ind. 2004); Ritchie v. State, 809 N.E.2d 258, 266 (Ind. 2004) (“[T]he
federal constitution requires that eligibility for the death penalty be
determined by the jury beyond a reasonable doubt, but it does not require
that the decision whether to impose death be made by the jury, and it does
not require the weighing, whether by judge or jury, to be under a
reasonable doubt standard.”). Thus, Saylor does not establish a reasonable
possibility that Holmes is entitled to relief.
Holmes cites another change in the statute as a basis for relief.
This change requires the trial court to “provide a special verdict form for
each aggravating circumstance alleged” on which the jury will indicate
whether it found an aggravating circumstance beyond a reasonable doubt.
See I.C. § 35-50-2-9(d); Barker, 809 N.E.2d at 316. Holmes argues the new
verdict-form requirement should be applied to him; otherwise, he asserts,
there is no “documentation” of the jury’s findings regarding aggravating
circumstances that made Holmes eligible for a death sentence.
There is documentation in this case, however. The jury returned a
verdict in the guilt phase of the trial finding Holmes guilty of two
intentional murders and robbery. See Holmes, 671 N.E.2d at 845. This
unanimous verdict in the guilt phase necessarily establishes that the jury
found, beyond a reasonable doubt, aggravating circumstances rendering
Holmes eligible for the death penalty. See I.C. § 35-50-2-9(b)(1) & (8);
accord Wrinkles v. State, 776 N.E.2d 905, 907 (Ind. 2002) (holding that a
jury’s verdict in the guilt phase, finding petitioner guilty of the three
murders, necessarily means the jury found beyond a reasonable doubt that
petitioner had committed more than one murder).
Similarly, the facts established by the unanimous guilt-phase verdict
distinguish this case from one cited in the dissent, Bostick v. State, 773
N.E.2d 266 (Ind. 2002). Bostick’s jury unanimously found her guilty of
killing three people. In requesting a sentence pursuant to Indiana Code §
35-50-2-9, the State alleged the aggravating circumstance that the victims
were under the age of twelve. See I.C. § 35-50-2-9(b)(12). The jury was
unable to reach a unanimous recommendation on the sentence, but the trial
court nonetheless found the State had proved the aggravating circumstance
beyond a reasonable doubt and sentenced Bostick to life without parole. In
her direct appeal, Bostick argued the enhanced sentence was invalid because
there was no jury finding on the children’s ages as required by Apprendi.
Under the circumstances in Bostick’s case, we agreed. See Bostick, 773
N.E.2d at 273 (holding "[b]ecause of the absence of a jury determination
that qualifying aggravating circumstances were proven beyond a reasonable
doubt, we must therefore vacate the trial court's sentence of life without
parole.").
For Holmes, however, the situation is different. The aggravating
circumstances charged in his case were intentional murders during a robbery
and multiple murders. By finding him guilty of intentional multiple
murders and robbery, the jury necessarily found the aggravating
circumstances beyond a reasonable doubt. Thus, to the extent Apprendi’s
requirement—“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt”—applies to Holmes, the requirement was met.
We conclude Holmes has not established a reasonable possibility that
he is entitled to post-conviction relief on the claim submitted with
respect to changes to Indiana’s death penalty statute, and decline to
authorize the filing of a successive petition for post-conviction relief.
As indicated, Holmes is currently seeking additional review of his
convictions and sentence in the federal courts.
The Clerk is directed to send a copy of this order to Eric D. Holmes,
n/k/a Koor An Nur of Mary Katie Brown; to the Clerk for the U.S. Seventh
Circuit Court of Appeals; to counsel of record; and to West Publishing for
publication in the bound volumes of this Court’s decisions.
Done at Indianapolis, Indiana this 7th day of January, 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with opinion in which Rucker, J., concurs.
Sullivan, Justice, dissenting.
I respectfully dissent from the Court’s order denying Petitioner Koor
An Nur of Mary Katie Brown (formerly known as Eric D. Holmes) permission to
file a successive petition for post-conviction relief.
This Court will authorize the filing of a successive petition for post-
conviction relief if the petitioner establishes a reasonable possibility
that the petitioner is entitled to post-conviction relief. Ind. Post-
Conviction Rule 1(12)(b). I believe Petitioner’s situation is sufficiently
similar to that of Saylor v. State, 808 N.E.2d 646 (Ind. 2004), that there
is a reasonable possibility that he would receive post-conviction relief.
There are the differences in Petitioner’s and Saylor’s situations that
the Court’s order identifies, to be sure. But one of the themes of the
Saylor opinion that comes through loud and clear is the relative uniqueness
of Saylor’s position – that part of the reason that it would have been
improper to execute him was that he was one of only three people on death
row whose jury had recommended against death. Petitioner’s situation is
almost as unique. Indeed, the Saylor opinion identified Petitioner by name
as being only one of four people on death row (the others being the three
just mentioned) whose juries had not recommended a sentence of death. Id.
at 650. Put differently, assuming the other two individuals in the same
class as Saylor receive the same relief, Petitioner will be the only person
on Indiana’s death row whose jury has not recommended a sentence of death.
As to the 2002 amendments to the Indiana death penalty statute, it is
true that the statute still authorizes the sentencing judge to impose a
death sentence if the jury cannot agree on a sentencing recommendation.
But I do not think this package is wrapped tightly enough to say that there
is no reasonable possibility that Petitioner is entitled to post-conviction
relief. This is because, even though the statute still permits a judge to
impose a death sentence in the face of a penalty phase “hung-jury,” the
statute operates differently than it did prior to the United States Supreme
Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring
v. Arizona, 536 U.S. 584 (2002). In Apprendi, the Court held that the
Sixth Amendment to the U.S. Constitution requires that “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. at 490. Ring made it clear that Apprendi applies to capital
sentencing schemes. 536 U.S. at 609.
As we pointed out in State v. Barker, Apprendi and Ring require “a
penalty phase jury [to] return a verdict finding one or more aggravators
proven beyond a reasonable doubt” before a sentencing judge can impose a
sentence of death in the face of a penalty phase “hung-jury.” Barker, 809
N.E.2d at 316. No such finding was made in Petitioner’s case.
Indeed, in Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002), this
Court’s only post-Ring penalty phase hung-jury case, we held that because
the “jury during the sentencing phase was unable to reach a unanimous
recommendation, and thus there was no jury determination finding the
qualifying aggravating circumstances beyond a reasonable doubt,” the judge-
imposed sentence of life-without-parole violated Apprendi and Ring.
The Court’s order is correct when it says that we have held that a
jury’s guilt phase verdict can serve to establish the jury finding of the
existence of the requisite aggravating circumstances to meet the
requirements of Apprendi and Ring. But every time we have affirmed a
sentence on that basis, it has been in a case where the jury unanimously
recommended a sentence of death or life without parole. See Clark v.
State, 808 N.E.2d 1183, 1196 (Ind. 2004); Williams v. State, 793 N.E.2d
1019, 1028 (Ind. 2003); Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003);
Wrinkles v. State, 776 N.E.2d 905, 907-08 (Ind. 2002); Obadyah Ben-Yisrayl
v. State, no. 45S00-0112-SD-636, unpublished "Order Concerning Successive
Post-Conviction Relief" (Ind. Feb. 15, 2002). The Court’s order in this
case is the first time this Court has explicitly concluded that the
requirements of Apprendi and Ring have been met by a jury’s guilt phase
verdict where there was a hung-jury at the penalty phase.
While Apprendi and Ring do not apply to Petitioner’s case because his
direct appeal was final before they were decided, see Schriro v. Summerlin,
124 S. Ct. 2519, 2526 (U.S. 2004), the fact that Petitioner would not be
sentenced to death today, combined with his unique position as described
above, is sufficient for me to conclude that there is at least a reasonable
possibility that he is entitled to post-conviction relief.
I would grant Petitioner’s request to file a successive petition for
post-conviction relief.
Rucker, J., concurs.