Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 05 C 389-Allen Sharp, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
SUBMITTED DECEMBER 14, 2009
Before BAUER, WILLIAMS and SYKES, Circuit Judges.
Joseph Corcoran murdered four people, and an Indiana court sentenced him to death. The district court granted habeas relief on Corcoran's Sixth Amendment claim. We reversed on the Sixth Amendment issue, Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), but as the Supreme Court explained, we im- properly omitted discussion of Corcoran's other habeas challenges. Corcoran v. Levenhagen, No. 08-10495, 2009 WL 3347947, at *1 (U.S. Oct. 20, 2009). We include that discussion here, after a full and fresh look at the record. We find that all of Corcoran's remaining habeas challenges are waived, and that three of them are frivolous, but that one of the challenges nevertheless entitles him to a new sentencing hearing.
We assume familiarity with the facts surrounding Joseph Corcoran's murders and the path Corcoran traversed through the state and federal court systems, all of which we recounted in our prior decision. See Corcoran, 551 F.3d at 704-08. That decision found that Corcoran's death sentence did not violate his jury trial rights under the Sixth Amendment, and that Corcoran was competent to waive state post-conviction proceedings. Id. at 712, 714. But the decision omitted discussion of four other challenges that Corcoran raised in the district court, that the district court failed to address, and that Corcoran did not appeal in this court although he was a cross-appellant, having cross-appealed a separate challenge. Those four challenges, which the Supreme Court advises us to either address ourselves or remand for the district court to consider, are that: (1) the Indiana trial court improperly considered non-statutory aggravating circumstances and failed to consider six mitigating circumstances; (2) Indiana's capital sentencing statute was unconstitutional; (3) the prosecution committed misconduct in the closing argument to the sentencing jury; and (4) Corcoran should not be executed because he suffers from a mental illness. Corcoran, 2009 WL 3347947, at *1; see Habeas Pet. at 10-13, 14-15.
A preliminary issue on remand from the Supreme Court, and the only issue that Corcoran addresses under Circuit Rule 54, as his "position as to the action which ought to be taken by this court on remand," is whether we should address his remaining habeas challenges ourselves or remand to the district court.
The Supreme Court explicitly gave us a choice. See Corcoran, 2009 WL 3347947, at *1 ("The Seventh Circuit should have permitted the District Court to consider Corcoran's unresolved challenges to his death sentence on remand, or should have itself explained why such consideration was unnecessary."); cf. Cone v. Bell, 129 S.Ct. 1769, 1786 (2009) (ordering a remand to the district court). Sometimes we have chosen, after reversing a district court's grant of habeas relief, to address remaining habeas challenges not addressed by the district court ourselves, Sprotsy v. Buchler, 79 F.3d 635, 645 (7th Cir. 1996), and sometimes we have remanded. Stewart v. Peters, 958 F.2d 1379, 1388 (7th Cir. 1992); Clark v. Duckworth, 906 F2d 1174, 1179 (7th Cir. 1990). The decision whether to remand in these circumstances is discretionary. See Corcoran, 2009 WL 3347947, at *1; Singleton v. Wulff, 428 U.S. 106, 121 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.").
We exercise our discretion here to decide the merits ourselves, because Corcoran's remaining challenges are rudimentary to the point of requiring no additional briefing, we are equally positioned with the district court to reach a disposition based on a full review of the present state court record, and a review by the district court would at any rate be subject to our review de novo. See Cone, 129 S.Ct. at 1792 (Alito, J., concurring in part and dissenting in part); Lonchar v. Thomas, 517 U.S. 314, 320 (1995) (noting that appellate courts may "expedite proceedings on the merits");Circuit Rule 22(d)(3) ("The merits of an appeal may be decided summarily if the panel decides that an appeal is frivolous."). In short, a remand to the district court is "unnecessary." Corcoran, 2009 WL 3347947, at *1.
Nor do we lack jurisdiction to rule on the merits. We have jurisdiction to take an appeal from the district court's decision-granting habeas relief on less than all the claims in Corcoran's multi-claim petition without adjudicating the remaining claims seeking the same relief-because it was a "final order." 28 U.S.C. § 2253. See, e.g., Sprotsy v. Buchler, 79 F.3d 635, 645 (7th Cir. 1996) (collecting cases). It matters not that a certificate of appealability was granted in this case, Corcoran v. Buss, No. 3:05-CV-389 (N.D. Ind. May 17, 2007), but not with respect to the remaining claims. See Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2001) ("[A] defect in a certificate of appealability is not a jurisdictional flaw.").
So we proceed with the merits of Corcoran's additional habeas challenges. Arguments not raised on appeal or cross-appeal are waived. See Fed. R. App. P. 28.1(c)(2); United States v. Johnson, 335F.3d 589, 592 (7th Cir. 2003); United States v. Berkowitz, 927 F.2d 1376, 1391 (7th Cir. 1991); Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986). Corcoran as cross-appellant failed to appeal the four claims and thus he waived them.
Nevertheless, we may consider Corcoran's challenges for plain error, because "in exceptional circumstances, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160 (1936). For most of Corcoran's challenges we find no plain error, so we need not decide whether they present exceptional circumstances. But for one challenge, which we discuss first, we ...