dissenting.
I
At this stage of the proceeding, the prime question before us is whether the district court was correct in ruling that Mr. Lambert’s petition was a successive petition. Having characterized the petition as successive, the district court dismissed the action because the petitioner had not obtained permission from this court to file such a petition. R.12 at 2.
In my view, the district court erred in this determination. It should have permitted the petition to be filed and decided the matter in due course. I would therefore reverse the judgment of the district court and remand this case for proceedings consistent with this opinion.
Section 2244(b)(2) of the judicial code provides:
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
My colleagues take the district court’s view that, because Mr. Lambert’s habeas petition does not fall within the categories defined by (A) or (B), it must be dismissed. However, Mr. Lambert must meet the requirements set forth in (A) or (B) only if his petition is actually a “second or successive” petition. The Supreme Court has instructed that “ ‘second or successive’ is a term of art given substance in our prior habeas corpus cases,” Slack v. McDaniel, *780529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), which incorporates the abuse of the writ doctrine.1 The case law provides little other guidance, and the legislative history of AEDPA does little to illuminate further the meaning of those terms.
There is no question that, in enacting AEDPA, Congress desired to put an end to the constant stream of habeas petitions that were filed successively for no other reason than to prolong the judicial process. See H.R. Conf. Rep. 104-518, at 111 (1996) (“This title incorporates reforms to curb the abuse of the statutory writ of habeas corpus, and to address the acute problem of unnecessary delay and abuse in capital cases.”). However, it also is clear that the petition now before us, when evaluated in *781the context of its procedural history and of the constitutional issue presented, is not the prototypical successive habeas corpus petition. This case is not an attempt to revisit issues or matters that already have been litigated or could have been litigated in the first petition. This present claim is based on a state judicial act, a decision of the Supreme Court of Indiana that occurred after the completion of the first habeas action; the alleged constitutional deprivation is based upon the failure of the state court to treat the petitioner in a manner consistent with its treatment of other similarly situated individuals. It is difficult to imagine that, when Congress enacted AEDPA in an attempt to curb the filing of serial petitions that did nothing more than revisit already-litigated matters, it intended to prevent the redress of the type of grievance we have here — an action that could not have been known or even anticipated at the time the petitioner pursued the initial federal habeas claim.
In not recognizing this important feature of the present petition, the panel majority seemingly expresses its willingness to tolerate even the most egregious forms of discrimination at the hands of a state, whenever the discrimination occurs after the filing of the first petition. If, for example, Mr. Lambert were alleging that the state supreme court did not simply act arbitrarily, but instead made its decision to “review and revise” based on the race or the religion of the petitioner, would the majority adhere to its belief that § 2244 barred review? However, the fact that Mr. Lambert’s claim is more nuanced than such a hypothetical situation is not a reason to deprive Mr. Lambert of a means of redress of which Congress certainly did not wish to deprive him.
II
My colleagues believe that this petition presents no substantial federal claim cognizable on habeas review. In their view,
[t]he claim, quite simply, is that the court [Supreme Court of Indiana] was required to give him [Lambert] the same benefit it bestowed on the defendant in Saylor. The court in Saylor, however, interpreting state law, did not consider the 2002 Indiana statutory amendments to be retroactive. Instead, it used its state-law authority to review and revise sentences to vacate a sentence that could not be imposed today.
Op. at 778 (emphasis added; citations omitted). In my view, it is precisely this ad hoc selection of cases for “review and revision],” as opposed to a principled application of the new rule of state law, that raises federal constitutional concerns that, under the governing statutory scheme embodied in § 2254, ought to be presented to the district court. “[C]apital punishment [must] be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Supreme Court of Indiana appears to have applied an inconsistent approach in invoking its power to “review and revise” capital sentences. This failure raises a significant federal constitutional question cognizable on habeas review.
No one disputes the authority of Indiana to craft a remedy that incorporates the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to individuals currently on death row. The Supreme Court of the United States has not required such retroactive application, see Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), but that determination certainly does not prevent a state court from fashioning a remedial principle of state law that includes such retroactive application. Having made that decision, however, the *782state court must apply that remedial standard in a way that ensures that the state courts will determine who is to live and who is to die in a principled manner. The rudderless application manifested in the cases decided by the Supreme Court of Indiana raises a serious federal question that ought to be explored in depth by the district court and by this court, if an appeal is made to us in due course.
An examination of the decisions of the Supreme Court of Indiana in Saylor v. State, 808 N.E.2d 646 (Ind.2004), and in Holmes v. State, 820 N.E.2d 136 (Ind.2005), followed by a comparison of those cases with the present case, makes clear the unconstitutional path that Indiana appears to have followed. In Saylor, the court articulated a standard that, as a matter of state law, was to govern the fate of those individuals already condemned to death: “[I]t [wa]s 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.” Id. at 647. In reaching this conclusion, the justices relied in part on the fact that Saylor was among a small group of people who would be
executed despite a jury recommendation to the contrary .... Currently two other inmates are on death row after a judge overruled the jury’s recommendation against death .... There is the instance where the jury was unable to agree on a recommendation and the death penalty was carried out, and another defendant sentenced in that circumstance remains on death row today. Holmes v. State, 671 N.E.2d 841 (Ind.1996).
Id. at 650 (additional citations omitted).
Despite the court’s initial inclination to see the same injustice in Saylor and in Holmes, and, presumably, to require the same treatment with respect to the revision of their sentences, the court abandoned that view when Holmes came before it for review. Instead, the court determined that Holmes was not entitled to the relief accorded Saylor because Holmes did not involve the total absence of a jury recommendation of death but simply a hung jury on that all-important issue.2 A dissenting Justice recognized, however, that, in light of the standard established in Saylor, Holmes’ situation was not distinguishable clearly on principled grounds:
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. 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.
*783As 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)....
Holmes, 820 N.E.2d at 140 (Sullivan, J., dissenting).
When Mr. Lambert’s appeal came before the Supreme Court of Indiana, a majority of the Justices took the view that the standard set forth in Saylor did not mandate the same action in Lambert, 825 N.E.2d at 1263; in the majority’s view, “[t]he circumstances for Lambert are different. His is not a situation where the jury unanimously recommended against the death sentence,” id. Two members of the court concluded otherwise. Justice Rucker stated that, “although the reasons differ slightly from those in Saylor, it is apparent to me that, as a matter of Indiana statutory law, if tried today Lambert could not be sentenced to death under the facts presented in this ease.” Id. at 1268 (Rucker, J., dissenting). Another justice also was troubled by the majority’s rejection of Mr. Lambert’s prayer for relief: “We have a flawed jury recommendation, and therefore do not know whether, without the erroneously introduced evidence, the jury would have recommended death, as it did in Lambert’s case, or recommended against death, as it did in Say-lor’s.” Id. at 1264. Justice Boehm also spoke directly to the supreme court’s power to review and revise sentences:
This Court has the authority to review and revise sentences, but only within the parameters of the sentencing statutes. If this were a direct appeal from a trial conducted under the 2002 law, we therefore could not revise the sentence to impose death. We thus are faced with a situation very similar to that in Saylor. We have a defendant sentenced to death through a procedure that would be improper today. Accordingly, Lambert’s case, like Saylor’s, is not appropriate for death under the current death penalty statute. I would let Lambert proceed to test his claim that a proper penalty phase would provide a recommendation against death.
Id. at 1265 (Boehm, J., dissenting). Thus, according to Justice Boehm, because the state supreme court only can impose sentences within the parameters of the sentencing statutes, and because the 2002 statute requires that imposition of the death penalty be decided by an untainted jury recommendation in favor of that penalty, the state supreme court was without authority to impose the death penalty in Mr. Lambert’s case.
The Supreme Court of the United States has recognized that “death is different,” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and that the Eighth Amendment requires safeguards against arbitrariness at both the state trial and appellate levels, Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991).3 There is no prin-*784eiple more settled in the law of capital punishment than the constitutional standard that a person may not be subjected to the arbitrary, capricious or freakish imposition of the death penalty by state courts. Gregg v. Georgia, 428 U.S. 153, 194-95, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). As this case comes to us today, it presents a federal constitutional question that ought to be given a full airing in the district court and, in due course, in this court, if either party invokes our appellate jurisdiction. The decisions of the Supreme Court of Indiana in Saylor, Holmes and Lambert strongly suggest that, far from using its authority to review and revise sentences in order to ensure consistency and fairness in the imposition of the death penalty, the state high court’s decisions have been the means by which such guarantees have been denied.
Because I believe the district court erred in treating this case as a successive habeas petition and because the petition presents the contention that the Supreme Court of Indiana did not adhere to a basic principle of federal constitutional law, I respectfully dissent.
. The Supreme Court's decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct 1595, 146 L.Ed.2d 542 (2000), calls into question the reasoning of this court in In re Page, 179 F.3d 1024 (7th Cir.1999), on which the State of Indiana relies. In Page, we stated:
Before the enactment of the Antiterrorism and Effective Death Penalty Act, which added section 2244(b)(2) to the habeas corpus statute, specifying the criteria for when a second or successive petition is permitted, the only limitation on a prisoner's right to file successive petitions for federal habeas corpus was the judge-made concept of "abuse of the writ." That concept, an application to the habeas corpus setting of general principles of waiver or forfeiture, was replaced by the new criteria and passed out of the law. As we explained in Burris v. Parke, 95 F.3d 465, 469 (7th Cir.1996) (en banc), "The doctrine of abuse of the writ is defunct. The term derives from section 2244(b), now wholly superseded by the new law [i.e., AEDPA], which nowhere uses the term. There is no longer any statutory handle for the doctrine, and in any event its role seems wholly preempted by the detailed provisions of the new statute concerning successive petitions.”
Page, 179 F.3d at 1025. In Slack, however, the Court dismissed the notions that the language employed in AEDPA represented a clean slate or that its pre-AEDPA case law could not inform the term "second or successive” as used in that Act:
The District Court dismissed claims Slack failed to raise in his 1991 petition based on its conclusion that Slack’s 1995 petition was a second or successive habeas petition. This conclusion was wrong. A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.
Slack commenced this habeas proceeding in the District Court in 1995, before AED-PA’s effective date. Because the question whether Slack’s petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs, see Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), though we do not suggest the definition of second or successive would be different under AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (using pre-AEDPA law to interpret AEDPA’s provision governing "second or successive habeas applications”)....
The phrase "second or successive petition” is a term of art given substance in our prior habeas corpus cases....
Slack, 529 U.S. at 485-86, 120 S.Ct. 1595 (parallel citations omitted).
In Page, this court said that the statutory exceptions established in AEDPA were wholly new standards that replaced our former understanding of habeas law. Interpretations of prior law were now irrelevant because Congress meant to establish a wholly new system. However, in Slack, the Court rejected this premise. The Court stated that pre-AEDPA law could, in fact, inform our understanding of AEDPA.
Nevertheless, Page speaks to a very different factual and procedural situation from the one here. In Page, the state court applied retroactively a new rule to the petitioner on collateral review. Here, by contrast, Mr. Lambert’s contention is not simply that he should or should not be the beneficiaiy of a newly established rule. Mr. Lambert’s contention is that the Supreme Court of Indiana has been arbitrary and capricious in determining to whom it will apply this new rule. It is the direct impact of the arbitrary application of the rule on him that raises the Eighth Amendment concerns articulated by Mr. Lambert.
. The distinction, explained the court, was that, with respect to Holmes, ”[t]he jury did not reach a unanimous recommendation on the State's request for a death sentence in the penalty phase of the trial.” Holmes v. State, 820 N.E.2d 136, 137 (Ind.2005).
. Specifically, in Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991),
*784"If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). The Constitution prohibits the arbitrary or irrational imposition of the death penalty. Id., at 466-467, 104 S.Ct. 3154. We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally.
Id. at 321, 104 S.Ct. 3154 (parallel citations omitted).