Eric D. Holmes v. Ron Neal

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2890 ERIC D. HOLMES, Petitioner-Appellant, v. RON NEAL, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:05-cv-01763 — Sarah Evans Barker, Judge. ____________________ ARGUED DECEMBER 15, 2025 — DECIDED OCTOBER 15, 2026 ____________________ Before SYKES, JACKSON-AKIWUMI, and LEE, Circuit Judges. LEE, Circuit Judge. In 1992, Eric Holmes was found guilty by an Indiana jury of two counts of murder, one count of at- tempted murder, one count of robbery, and one count of con- spiracy to commit robbery. During the sentencing phase, the jury was tasked with providing a recommendation as to whether the court should impose the death penalty based on certain aggravating circumstances. But when the jury was un- able to reach a unanimous decision, the trial court found the 2 No. 23-2890 presence of aggravating circumstances and imposed the death sentence anyway. Over the next eight years, Holmes unsuccessfully pursued state court relief and eventually filed a federal petition for habeas corpus. While that petition was pending, the Indiana Legislature amended its death penalty statute in 2002 to comply with Ap- prendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). Thereafter, the Indiana Supreme Court in Saylor v. Indiana reversed the death sentence of an inmate who had been sentenced to death in a manner that was now pro- hibited under the new amendments. 808 N.E.2d 646, 648 (Ind. 2004). In light of this development, Holmes requested leave to file a second state post-conviction petition for relief. The Indi- ana Supreme Court, however, denied the request, distin- guishing Holmes’s situation from that of the prisoner in Say- lor. Believing this decision violated his Fourteenth Amend- ment right to equal protection under the law, Holmes filed a second federal habeas petition. The district court dismissed that petition as being second or successive under 28 U.S.C. § 2244(b), and Holmes now appeals. We disagree with the district court that Holmes’s petition is second or successive within the meaning of § 2244(b); nev- ertheless, we affirm because the Indiana Supreme Court’s rul- ing distinguishing Holmes’s case from Saylor did not offend the Equal Protection Clause. I. Background The long, circuitous history of this case is complex but nec- essary for our analysis. We highlight the salient points below. No. 23-2890 3 A. State Criminal Proceedings Eric Holmes was arrested on November 16, 1989, in the wake of crimes committed at a northside Indianapolis restau- rant. 1 Holmes v. State (Holmes I), 671 N.E.2d 841, 845–46 (Ind. 1996). Holmes was charged with, and subsequently convicted by a jury of, two counts of murder, and one count each of at- tempted murder, robbery, and conspiracy to commit robbery. Id. at 845. At the sentencing phase, the State moved to impose the death penalty pursuant to Ind. Code § 35-50-2-9 (1992). Id. at 852–52. That statute enumerated certain “aggravating circum- stances” and relevant “mitigating factors” and also required the State to prove at least one aggravating circumstance to qualify the defendant for the death penalty. Id. Because Holmes was convicted in a jury trial, the jury was reconvened for the sentencing hearing and tasked with making a recom- mendation to the court as to the applicability of the death pen- alty. To aid the jury in its deliberations, Holmes asked the judge to provide the jury with a special verdict form. Id. at 855–56. The court rejected the request, however, and provided a gen- eral verdict form to the jury. Id. After some time, the jury an- nounced that it was unable to provide a unanimous recom- mendation to the court. Id. at 851. In such circumstance, under § 35-50-2-9(f), “the jury’s par- ticipation is at an end and sentencing by the court proceeds to 1 Holmes has since changed his name to Koor An Nur of Katie Mary Brown. Following the lead of the parties and our Court in previous ap- peals, we continue to refer to him as Holmes. 4 No. 23-2890 a conclusion without the benefit of a recommendation.” Id. at 851. Thus, the judge conducted Holmes’s sentencing hearing without the jury and found that the prosecution had proven two of the aggravating circumstances beyond a reasonable doubt. Id. at 853. After balancing the aggravating circum- stances with the mitigating factors, the court sentenced Holmes to death for the murder counts and imposed concur- rent terms of imprisonment for the remaining counts. Id. at 845. Holmes filed a direct appeal on numerous grounds. The Indiana Supreme Court largely affirmed his conviction, alt- hough it vacated the conspiracy to commit robbery conviction and modified the robbery sentence. Id. at 860. The United States Supreme Court denied certiorari. See Holmes v. Indiana, 522 U.S. 849 (1997). Holmes then sought post-conviction relief in state court, which was ultimately denied by the Indiana Supreme Court on August 31, 2000. See Holmes v. State (Holmes II), 728 N.E.2d 164 (Ind. 2000). The next month, Holmes filed his first federal petition for a writ of habeas corpus (“the 2000 federal peti- tion”) in the United States District Court for the Southern Dis- trict of Indiana to challenge his convictions and sentences pursuant to 28 U.S.C. § 2254. B. 2002 Statutory Amendments In 2002, while Holmes’s 2000 federal petition was pend- ing, the Indiana Legislature amended § 35-50-2-9 in response to the United States Supreme Court’s rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. No. 23-2890 5 584 (2002). See Ind. Code § 35-50-2-9 (2002) (amended 2016). 2 The amendment “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.” Holmes v. State (Holmes III), 820 N.E.2d 136, 139 (Ind. 2005) (quoting Ind. Code § 35-50-2-9(d) (2002)). More significantly, the 2002 amendment mandated that, for defendants sentenced after its enactment, “[i]f a the jury reaches a sentencing recommenda- tion, the court shall sentence the defendant accordingly.” Ind. Code § 35-50-2-9(e) (2002). Otherwise, much of § 35-50-2-9 remained unchanged. Rel- evant here, the statute still provided that, “if jury is unable to agree on a sentence recommendation after reasonable delib- erations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.” Ind. Code § 35-50-2- 9(f) (2002). The court then could impose the death penalty if it finds that: the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and (2) any mitigating circum- stances that exist are outweighed by the aggravating circumstance or circumstances. Ind. Code § 35-50-2-9(g), (k) (2002). C. Saylor v. Indiana Following the 2002 amendments, the Indiana Supreme Court decided Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004). In 2 The statute was further amended in 2016, but those revisions are not relevant here. 6 No. 23-2890 that case, the defendant Saylor had been convicted of murder, murder in the commission of a robbery, robbery, and confine- ment for his actions in 1992. Id. at 651. The State sought the death penalty, but the jury unanimously recommended against it. Despite this, the trial court found that the State had proved two death penalty aggravating circumstances beyond a reasonable doubt and sentenced him to death. After the 2002 amendments to the death penalty statute, Saylor filed for post-conviction relief, and the Indiana Su- preme Court granted his petition, vacating his death sentence and revising his sentence to an imprisonment term of one hundred years (forty for the murder, twenty for robbery, and twenty for confinement). In so doing, the Indiana Supreme Court stated: We conclude that it is not appropriate to execute a per- son who was convicted and sentenced through a pro- cedure that has now been substantially revised so the same trial today would no longer render the defendant eligible for the death penalty. Id. Citing Saylor, Holmes filed a petition to review his sen- tence with the Indiana Supreme Court. Holmes then moved on July 16, 2004, to stay his 2000 federal petition before the district court until the state court could rule on his petition. But while that motion was pending, the Indiana Supreme Court dismissed Holmes’s petition without prejudice on Au- gust 6, 2004, because he had not used the correct procedure to file what was his second state post-conviction petition. Citing the Indiana Supreme Court’s dismissal of his peti- tion, the district court entered an order on August 17, 2004, No. 23-2890 7 denying as moot Holmes’s motion to stay his 2000 federal pe- tition. The district court then denied Holmes’s 2000 federal petition itself on September 2, 2004. D. Holmes’s Second State Petition On September 14, 2004, Holmes filed his second post- conviction state court petition with the Indiana Supreme Court, this time using the proper procedures. In it, he argued that the trial court’s imposition of the death penalty without regard to the jury’s failure to arrive at a unanimous recommendation was contrary to Saylor. Moreover, he noted that the trial court’s refusal to provide the jury with a special verdict form contravened the 2002 amendments. Around the same time, Holmes also filed a notice of ap- peal challenging the district court’s denial of his 2000 federal petition. On August 10, 2005, after defense counsel filed sev- eral motions related to Holmes’s competency, we “remanded to the district court for the limited purpose of determining [Holmes]’s current competence to proceed,” but otherwise re- tained jurisdiction in the matter and stayed the appeal pend- ing the limited remand. Holmes v. McBride (No. 04-3549), App. Dkt. 18 at 2. 3 While his federal appeal was pending, the Indiana Su- preme Court in January 2005 denied Holmes’s request to file a successive petition over the dissent of two Justices. Holmes III, 820 N.E.2d 136. As for Holmes’s reliance on Saylor, the Court found the case inapplicable. The jury in Saylor, the 3 “Dkt.” refers to the docket number in the district court. “App. Dkt.” refers to an appellate docket. In this case, it refers to the docket entry in appeal 04-3549. 8 No. 23-2890 Indiana Supreme Court observed, had unanimously recom- mended against the death penalty and the judge had imposed it anyway, something the 2002 amendments later expressly proscribed. Id. at 138. By contrast, the Court continued, Holmes’s jury had been unable to reach a recommendation at all, and even the amended version of § 35-50-2-9 allowed the judge to conduct the sentencing hearing and impose the death penalty in such circumstances. Id. As for the special verdict form, Holmes argued that, with- out one, there was no “documentation” of the jury’s findings as to the presence of aggravating circumstances, thereby vio- lating Apprendi. Id. The Indiana Supreme Court disagreed, de- termining that the jury had necessarily found two aggravat- ing circumstances—that Holmes had intentionally committed murder during a robbery and had committed more than one murder—beyond a reasonable doubt when it convicted him of the two murder counts and the robbery count. Id. at 140. E. Holmes’s Second Federal Habeas Petition While his dismissed 2000 federal petition was pending but stayed in the Seventh Circuit, Holmes filed a second federal petition for a writ of habeas corpus (“the 2005 federal peti- tion”) on November 23, 2005. In his view, by treating him dif- ferently than Saylor, the Indiana Supreme Court violated his rights to equal protection and due process as guaranteed by the Fourteenth Amendment of the United States Constitution. The federal district court, however, found the petition to be second or successive, and because Holmes had not obtained leave to file it from the Seventh Circuit as required by 28 U.S.C. § 2244(b), the court dismissed it. Holmes appealed the dismissal on July 9, 2006. No. 23-2890 9 Meanwhile, following the Seventh Circuit’s instructions as to Holmes’s 2000 federal petition, the district court in June 2006 concluded on remand that Holmes was competent to as- sist his attorneys with the habeas litigation. The Seventh Cir- cuit then consolidated Holmes’s appeals of the dismissals of his 2000 and 2005 federal petitions and remanded with in- structions to reevaluate Holmes’s competence to prosecute his habeas petitions. Holmes v. Buss (Holmes IV), 506 F.3d 576 (7th Cir. 2007). As for Holmes’s 2000 federal petition, on July 28, 2009, the district court found that Holmes was competent to proceed. Holmes appealed, and we again reversed and remanded “with instructions to suspend the habeas corpus proceeding unless 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 (Holmes V), 600 F.3d 756, 763 (7th Cir. 2010). The district court eventually “suspended and administratively closed” both the 2000 and 2005 cases on July 7, 2010. Then came Ryan v. Gonzales, 568 U.S. 57, 64–73 (2013). There, the Supreme Court held that a habeas petitioner, even one who has been sentenced to death, has no statutory right to competence during habeas corpus proceedings. In the wake of this holding, the district court in 2014 lifted the stay in the 2000 federal petition action and reinstated the order dis- missing it with prejudice. We affirmed. Holmes v. Neal (Holmes VI), 816 F.3d 949 (7th Cir. 2016). As to 2005 federal petition, the district court reopened pro- ceedings in June 2021 and ordered Holmes to show cause as to why the action should not be dismissed for lack of 10 No. 23-2890 jurisdiction as an unauthorized second or successive petition or, in the alternative, why the action should remain stayed. In 2022, Holmes filed a motion in the district court to again stay the 2005 federal proceeding pending a competency evaluation and investigation into a possible claim under Atkins v. Vir- ginia, 536 U.S. 304 (2002). The district court denied the motion and dismissed his petition for lack of jurisdiction as an unau- thorized second or successive petition. The district court also denied the certificate of appealability because it found that no reasonable jurist would disagree that the petition is an unau- thorized second or successive petition. We, on the other hand, granted the certificate of appealability with respect to two questions: (1) whether Holmes’s second-in-time § 2254 petition (the 2005 federal petition) is a “second or successive” petition within the meaning of 28 U.S.C. § 2244(b); and (2) whether the Indiana Supreme Court’s decision denying Holmes’s request for relief based on the 2002 amendments to Indiana’s death-penalty statute violated his constitutional rights. II. Discussion A. Second or Successive Petition We review the district court’s denial of Holmes’s § 2254 petition de novo. Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (citation omitted). We first consider whether Holmes’s 2005 federal habeas petition is “second or successive” as that phrase appears in § 2254. When an individual files a federal habeas petition to chal- lenge a state court conviction, our review is governed—and limited—by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Thurston v. Vanihel, 39 F.4th 921, 928 (7th No. 23-2890 11 Cir. 2022) (citing Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir. 2017)). State prisoners are entitled to “one fair opportunity to seek federal habeas relief from” their convictions. Banister v. Davis, 590 U.S. 504, 507 (2020); see also Rivers v. Guerrero, 605 U.S. 443, 446 (2025). But, in the words of the AEDPA, “[a] claim presented in a second or successive habeas corpus ap- plication under section 2254 that was not presented in a prior application shall be dismissed” except under narrow circum- stances. 28 U.S.C. § 2244(b)(2); see also Panetti v. Quarterman, 551 U.S. 930, 942 (2007). To bring a “second or successive” pe- tition, the petitioner must make a prima facie case to the court of appeals that the petition satisfies one of § 2244(b)(2)’s ex- ceptions. 28 U.S.C. § 2244(b)(2). 4 “[S]econd or successive” in § 2244 is a “term of art” that is “not self-defining.” Banister, 590 U.S. at 511 (internal 4 That provision provides: A claim presented in a second or successive habeas corpus application un- der section 2254 that was not presented in a prior application shall be dis- missed 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 ev- idence 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. Id. 12 No. 23-2890 quotations omitted). In the Supreme Court’s words, “[u]nder AEDPA, a state prisoner always gets one chance to bring a federal habeas challenge to his conviction. But after that, the road gets rockier.” Id. at 509 (internal citation omitted). What is more, a petition may be second-in-time to a previous one, but this alone does not make it “second or successive.” Id. at 511. Chronology alone is not determinative. Instead, to ascer- tain whether a second-in-time petition is “second or succes- sive,” we must look to “historical habeas doctrine and prac- tice” and “AEDPA’s own purposes.” Id. at 512. Our caselaw on the meaning of “second or successive” has evolved over the years in keeping with Supreme Court precedent. We start in 2006 with a case quite like this one, Lambert v. Davis, 449 F.3d 774, 777–78 (7th Cir. 2006). Like Holmes, Michael Lambert had been convicted of murder in Indiana state court and sentenced to death. He filed a federal habeas petition challenging his conviction on various grounds to no avail. After the Indiana Supreme Court decided Saylor, Lambert asked that court for leave to file a successive post-conviction petition based on Saylor, which the Indiana Supreme Court denied. He then filed a second federal habeas petition challenging that ruling, and a divided panel of our court rejected the view that Lambert’s second petition “is new because it was not ‘ripe’ until Saylor was decided.” Id. Judge Ripple dissented. In his view, the petition was not second or successive because it was “not an attempt to revisit issues or matters that may have been litigated or could have been litigated in the first petition.” Id. at 781 (Ripple, J. dis- senting). Instead, it presented a claim based on “a decision of the Supreme Court of Indiana that occurred after the comple- tion of the first habeas action.” Id. (emphasis in original). “It is No. 23-2890 13 difficult to imagine,” Judge Ripple continued, “that when Congress enacted AEDEPA … it intended to prevent the re- dress of … an action that could not have been known or even anticipated at the time the petitioner pursued the initial fed- eral habeas claim.” Id. A year after Lambert, the Supreme Court decided Panetti v. Quarterman, 551 U.S. 930 (2007). In that case, the petitioner Scott Panetti had been convicted and sentenced to death in state court after waiving his right to counsel and proceeding pro se. After exhausting his state remedies, he filed a petition for a writ of habeas corpus in federal court challenging the state court’s finding that he was competent to stand trial and waive counsel, but the petition was denied. The state court then set a date for execution, and Panetti filed another federal habeas petition, this time arguing that he lacked the compe- tence to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). Id. at 937–38. Rejecting the state’s argument that this was a second or successive petition, the Supreme Court ”con- clude[d] … that Congress did not intend the provisions of [AEDPA] addressing ‘second or successive’ petitions to gov- ern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id. at 945. Since that time, we have read the Supreme Court’s conclu- sion in Panetti to have “hinged on the fact that the Ford claim was not yet available when Panetti brought his first federal petition.” United States v. Obeid, 707 F.3d 898, 902 (7th Cir. 2013). And, indeed, “[a] number of our sister circuits,” we ob- served, “have generalized this logic to apply to other types of second-in-time petitions that were not ripe at the time of the initial petition.” Id. “Seeing no reason to part ways with our 14 No. 23-2890 sister circuits,” we declared, “we join them in concluding that a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not ‘second or successive’ within the meaning of Sections 2244 and 2255(h).” Accord Brown v. Atch- ley, 76 F.4th 862, 872–73 (9th Cir. 2023) (finding that a peti- tioner’s third and fourth habeas petitions were not second or successive because the petitioner’s due process and equal pro- tection claims were not ripe until his application for resen- tencing was denied, which occurred after his first and second habeas petitions were decided or dismissed); In re Jones, 652 F.3d 603, 605 (6th Cir. 2010) (holding that a petition raising ex post facto claim based on amendments to state law that oc- curred after the first petition was not second or successive); Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009) (“[L]ater habeas petitions attacking distinct judgments, ad- ministration of an inmate’s sentence, a defective habeas pro- ceeding itself, or some other species of legal error—when the error arises after the underlying conviction—tend to be deemed non-successive.”) (citations omitted). 5 Building on this precedent, we decided Flores-Ramirez v. Foster, 811 F.3d 861 (7th Cir. 2016) (per curiam). There, the pe- titioner Cesar Flores-Ramierz was convicted by a Wisconsin jury of first-degree intentional homicide. He filed a petition for a writ of habeas corpus, which the district court denied. Later, Flores-Ramirez discovered that his trial interpreter was not qualified and filed a motion for state post-conviction 5 In Obeid, we expressed no view on claims that become ripe between the filing and adjudication of a first petition. 707 F.3d at 902. We likewise need not address the issue here. No. 23-2890 15 relief. That too was denied, but Flores-Ramirez was con- cerned that the state post-conviction court did not subpoena his appellate counsel or interpreter. And so, he filed a second federal habeas petition raising this with several other argu- ments. Id. at 863–64. Citing Obeid, we determined that the pe- tition (as least, with respect to that particular claim) was not “second or successive” for the purposes of § 2244, because it was “unripe at the time of his first petition.” Id. at 866 (citing Obeid, 707 F.3d at 902). Here, Holmes argues that his 2005 federal petition is not “second or successive” within the meaning of § 2244 because it challenges the judgment of the Indiana Supreme Court denying him permission to file a second state post-conviction petition, while his 2000 federal petition contested the state court rulings as to his original state post-conviction petition. 6 We agree. Holmes’s present claims did not ripen until the In- diana Supreme Court denied him relief in 2005. Before then, there was no judicial act that purportedly treated him differ- ently from similarly situated prisoners in violation of the Equal Protection Clause. Therefore, consistent with Panetti, 6 Respondent argues that Holmes failed to raise his jurisdictional ar- guments to the district court and thus waived them. “Waiver occurs when a defendant intentionally relinquishes a known right.” United States v. Haddad, 462 F.3d 783, 793 (7th Cir. 2006). Waiver “is construed liberally in favor of the defendant,” and as such, “we are cautious about interpreting a defendant’s behavior as intentional relinquishment.” United States v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018). We hesitate to apply the waiver doctrine here, where competency has been a hotly contested issue. 16 No. 23-2890 Obeid, and Flores-Ramirez, we conclude that the claims before us are not barred by 28 U.S.C. § 2244. 7 B. Other Procedural Arguments The Respondent advances other procedural arguments. But, because Holmes’s equal protection claim lacks merit (for the reasons we will discuss below), none impedes our review. First, a federal court generally cannot grant habeas relief unless the petitioner has “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This require- ment “is designed to avoid the ‘unseemly’ result of a federal court ‘upsetting a state court conviction without’ first accord- ing the state courts an ‘opportunity to correct a constitutional violation.’” Davila v. Davis, 582 U.S. 521, 527 (2017) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)) (citation modified). We question whether Holmes adequately presented his Fourteenth Amendment claim to the state court or whether exhaustion may be excused. But we need not address this is- sue here. Under 28 U.S.C. § 2254(b)(2), we may deny a petition on the merits “notwithstanding the failure of the applicant to 7 We granted the certificate of appealability in this case as to “whether the Indiana Supreme Court’s decision denying Holmes’s request for relief based on the 2002 amendments to the state death-penalty statute violated his rights under the federal Constitution.” App. Dkt. 7. Holmes’s due pro- cess claim, however, appears to be based on the trial court’s ability to im- pose the death penalty regardless of the jury’s recommendation or the changes brought about by the 2002 amendments. Because Holmes was not granted a certificate of appealability on those issues, the merits of his due process claim are not properly before us. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001) (“‘[W]e are not required to and will not’ address arguments outside of those issues certified for appeal.”) (quoting Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000)). No. 23-2890 17 exhaust the remedies in the courts of the State.” See Washing- ton v. Boughton, 884 F.3d 692, 698 (7th Cir. 2018) (AEDPA “ex- pressly authorizes a federal court to deny an unexhausted claim on the merits.”). Furthermore, as the Respondent points out, “the Constitu- tion does not guarantee … specific rights during a postconvic- tion hearing.” Flores-Ramirez, 811 F.3d at 866. A majority of our sister circuits have interpreted this to mean “that errors in state post-conviction proceedings do not provide a basis for redress under § 2254.” Id. (quoting Word v. Lord, 648 F.3d 129, 131 (2d Cir. 2011)). We, however, have articulated this princi- ple differently; we have held that “unless state collateral re- view violates some independent constitutional right, such as the Equal Protection Clause, errors in state collateral review cannot form the basis for federal habeas corpus review.” Id. (quoting Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996)); see also Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997). Here, Holmes argues that the Indiana Supreme Court violated his constitutional right to equal protection, so the na- ture of his claim is cognizable under our caselaw. C. The Merits We now turn to the merits of Holmes’s claim that the In- diana Supreme Court’s decision to deny his request for leave to file a successive post-conviction petition violated his right to equal protection under the Fourteenth Amendment. Ordinarily, a state court’s decision as to a state prisoner’s federal claim is entitled to substantial deference on federal ha- beas review. See Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). This deferential review, however, “applies only to claims that were 18 No. 23-2890 actually ‘adjudicated on the merits in State court proceed- ings.’” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (quoting § 2254(d)). Here, “no state court has squarely ad- dressed the merits” of Holmes’s Equal Protection claim. Id. Nor did Holmes raise the federal claim before the Indiana Su- preme Court (because, after all, the claim arose from the Court’s decision itself). Cf. Adorno v. Melvin, 876 F.3d 917, 921 (7th Cir. 2017). Therefore, we apply the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “dispose of the matter as law and justice require.” Harris, 698 F.3d at 623 (citation mod- ified). The Fourteenth Amendment to the Constitution prohibits States from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This includes discrimination by means of state judicial ac- tion. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179 (1972) (citations omitted). Although the Equal Protection Clause “does not deny to States the power to treat different classes of persons in differ- ent ways,” Reed v. Reed, 404 U.S. 71, 75 (1971) (internal cita- tions omitted), classifications must be “reasonable, not arbi- trary, and must rest upon some ground of difference … so that all persons similarly circumstanced shall be treated alike,” id. at 76 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Holmes argues that the Indiana Supreme Court violated the Equal Protection Clause by treating him differently from those other inmates who were sentenced to death without a unanimous jury supporting it: Saylor, Christopher Peterson (now Obadyah Ben-Yisrayl), and William Minnick. In so do- ing, he asserts what essentially is a “class of one” claim where, No. 23-2890 19 he posits, the government “arbitrarily and irrationally singles out one person for poor treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016). 8 Furthermore, because he compares himself to others, Holmes must show that he was “intentionally treated differ- ently from others similarly situated and that there is no ra- tional basis for the difference in treatment.” FKFJ, Inc. v. Vill. of Worth, 11 F.4th 574, 588 (7th Cir. 2021) (citation omitted); see Love v. Vanihel, 73 F.4th 439, 454 (7th Cir. 2023) (“A plaintiff alleging arbitrary treatment must typically present a similarly situated comparator who[m] the State dealt with differently— someone who is identical or directly comparable to him in all material respects.”) (quoting Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015)) (citation modified); D.B. ex rel. Kur- tis v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (rational basis re- view “sets the legal bar low and simply requires a rational re- lationship between the disparity of treatment and some legit- imate governmental purpose”) (citation modified). Here, Holmes cannot show that he is similarly situated to Saylor, Ben-Yisrayl, and Minnick in all material respects. 8 Though the Supreme Court has recognized a “class-of-one equal protection challenge to state legislative and regulatory action,” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 596 (2008), it has not expressly extended it to judicial actions. To be sure, “[s]tate action, for purposes of the Equal Protection Clause, may emanate from … judicial action.” Moose Lodge No. 107, 407 U.S. at 179. But we have observed that the “class-of-one theory is better suited to those contexts involving ‘a clear standard against which departures, even for a single [individual], could be readily assessed.” United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (quoting Engquist, 553 U.S. at 602). Here, we will assume without deciding that Holmes can bring a class-of-one claim challenging the court decision. 20 No. 23-2890 Those three individuals were sentenced to death even though their respective juries unanimously recommended against the imposition of the death penalty. The 2002 amendments to § 35-50-2-9 expressly prohibit this. See Ind. Code § 35-50-2- 9(e) (2002) (“If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly.”). But, as the Indiana Supreme Court correctly observed, “[t]he circumstances for Holmes are different.” Holmes III, 820 N.E.2d at 138. In his case, the jury did not return a unanimous recommendation against the death penalty; it could not agree on a recommendation at all. Id. And, under such circum- stances, the statute (even after 2002) permits the trial judge to impose the death penalty after making the necessary findings. See § 35-50-2-9(f) (2002) (“If a jury is unable to agree on a sen- tence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.”). Thus, there was a rational basis for the Indiana Supreme Court’s decision to distinguish Holmes’s case from the others. Shifting gears, Holmes points out that, when the death penalty statute was amended in 2002, the Indiana legislature also required the trial court to “provide a special verdict form for each aggravating circumstance alleged” by the State. See § 35-50-2-9(d) (2002). In his view, because the Indiana Su- preme Court applied the 2002 amendments retroactively to Saylor (albeit, the amendment to § 35-50-2-9(e)), it should have given Holmes the benefit of the revised § 35-50-2-9(d). Retroactively applying the 2002 version of the statute to Say- lor but not to him, Holmes argues, also violates his equal pro- tection rights. No. 23-2890 21 This argument has some superficial appeal. See Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (“[S]elective application of new rules violates the principle of treating similarly situated defendants the same.”). And, at least one circuit has expressed the view that a state supreme court cannot apply a rule retro- actively only in some cases. See Johnson v. Arizona, 462 F.2d 1352, 1354 (9th Cir. 1972). In this case, however, the Indiana Supreme Court had a rational basis to not apply the new § 35-50-2-9(d) retroactively to Holmes. In Saylor, the Indiana Supreme Court explained, “Even in dealing with the death penalty not every change in the law affects earlier trials.” Saylor, 808 N.E.2d at 650. Only when an amendment has been “revised in an important as- pect that renders the defendant ineligible for the death pen- alty” is it inappropriate to carry out a death sentence. Id. at 651. Thus, while we agree with Holmes that the jury was never given a special verdict form, which would now contra- vene the 2002 amendments, the Indiana Supreme Court’s ul- timate disposition of the case was not unreasonable. Recall that the special verdict form amendment was in re- sponse to the United States Supreme Court’s ruling in Ap- prendi. According to Holmes, without the special verdict form, we cannot be sure that the jury in his case would have found an aggravating circumstance beyond a reasonable doubt. But, as the Indiana Supreme Court observed, the general verdict form indicated that the jury had found Holmes guilty beyond a reasonable doubt of two intentional murders and robbery. Furthermore, the aggravating circumstances upon which the prosecution relied were the commitment of more than one murder and murder during a robbery. Therefore, “[b]y find- ing him guilty of intentional multiple murders and robbery, 22 No. 23-2890 the jury necessarily found the aggravating circumstances be- yond a reasonable doubt.” Holmes III, 820 N.E. 2d at 139. This is consistent with the way the Indiana Supreme Court has historically viewed the State’s burden to prove aggravat- ing circumstances when seeking the death penalty. For exam- ple, the court has recognized that “statutory aggravators in Indiana’s Death Penalty law are the functional equivalent of elements of a crime, and must be found by a jury beyond a reasonable doubt.” Ritchie v. State, 809 N.E.2d 258, 265 (Ind. 2004) (citing Ring, 536 U.S. at 605, 609). “Once a statutory ag- gravator is found by a jury beyond a reasonable doubt,” the court continued, “the Sixth Amendment as interpreted in Ring and Apprendi is satisfied.” Id. at 268. This is true whether the jury documents its findings in a general verdict or special ver- dict form. See Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003) (holding that the aggravating circumstances increasing the defendant’s sentence were justified because of “the jury’s ver- dict in the guilt phase, finding Defendant guilty of the two murders, necessarily mean[t] that the jury found, beyond a reasonable doubt, that Defendant had committed more than one murder.”) (citation omitted). 9 9 Bostick v. State, 773 N.E.2d 266, 273–74 (Ind. 2002), is inapplicable. In Bostick, the State attempted to apply the statutory aggravator based upon the victims’ young ages. Ind. Code § 35-50-2-9(b)(12) (2002). The jury’s verdicts at the guilt phase found Bostick “guilty of the Murder of” Jason Michael Robinson, Ashley Joy Robinson, and Jessica Nicole Robinson. Dkt. for 33D01-9807-CF-020 (Ind.), Count I Verdict Form, Count II Verdict Form, Count III Verdict Form. Nowhere on the verdict forms were the vic- tims’ ages, and at no point during trial or sentencing did the jury deter- mine the age of the victims. It was the trial court alone that found “the No. 23-2890 23 At the guilt phase, the jury found that the State had proved beyond a reasonable doubt that “Eric D. Holmes intentionally killed Charles W. Ervin” and that “Eric D. Holmes intention- ally killed Theresa Blosl.” The jury also found Holmes guilty of