ALFRED BOURGEOIS, Petitioner-Appellee, v. T.J. WATSON, Warden, and UNITED STATES OF AMERICA, Respondents-Appellants.
No. 20-1891
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 9, 2020 — DECIDED OCTOBER 6, 2020
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:19-cv-00392-JMS-DLP — Jane Magnus-Stinson, Chief Judge.
ST.
Bourgeois does not seek relief under
In the district court, Bourgeois accompanied his
I. Background
A. Factual Background
We review the underlying facts only briefly, to provide context for the procedural issues that govern this appeal. Bourgeois‘s daughter, “JG,” was born in October 1999. For the first two and a half years of her life, JG lived with her mother and grandmother in Texas. In April 2002, JG‘s mother petitioned a local court for a paternity test. The test determined that Bourgeois was JG‘s father. JG‘s mother then petitioned the court for child support from Bourgeois.
At the time, Bourgeois was a truck driver living in Louisiana with his wife, Robin, and their two children. In May 2002, Bourgeois came to Texas for JG‘s child support hearing. At the hearing, the court granted JG‘s mother‘s request for child support from Bourgeois. The court also granted Bourgeois‘s request for visitation rights with JG for the next seven weeks. Bourgeois took custody of JG after the hearing.
For the next month—the last of JG‘s life—Bourgeois tortured and abused JG. He punched her in the face hard enough to give her black eyes. He whipped her with an electrical cord and beat her with a belt. He struck her on the head with a plastic baseball bat so many times that her head swelled in size. He threw her against walls. He burned the bottom of her foot with a cigarette lighter and prevented anyone from treating her injuries. He also emotionally abused JG. Bourgeois, for example, “taught” JG how to swim by repeatedly tossing her into a swimming pool, letting her sink, and then pulling her out as she choked and gasped for air. Even JG‘s potty training became a source of torment for her. Bourgeois made JG spend her days sitting on her “training potty.” When Bourgeois brought his family (including JG) along on his trucking routes, Bourgeois forced JG to sleep on her training potty. Bourgeois punished JG‘s “accidents” with beatings. Remarkably, there was more abuse—including evidence of sexual abuse—but that is enough to lay the groundwork for the events that followed.
In late June 2002, Bourgeois drove his family in his truck to Corpus Christi Naval Air Station, where Bourgeois was delivering a shipment. JG, as usual, was sitting on her training potty. When Bourgeois backed up his truck, JG wiggled and tipped over her potty chair. Enraged, Bourgeois started yelling at JG and spanking her. He then grabbed her by the shoulders and slammed the back of her head into the truck‘s front windows and dashboard four times. Robin woke up soon after the attack and noticed that JG was limp and motionless. After trying unsuccessfully to revive JG through CPR, Robin told Bourgeois that JG needed emergency
JG died in the hospital the next day. As planned, Bourgeois and Robin told authorities that JG had fallen out of the truck. Their story quickly unraveled when the autopsy report came back. The medical examiner described the autopsy as one of the most involved of her career, due to the sheer number and extent of JG‘s injuries. There were bruises, human bite marks, scratch marks, loop marks (consistent with an electrical cord), and a circular hole on the bottom of one of JG‘s feet. The examiner also found deep tissue bruising all over JG‘s body. Based on these extensive injuries, the examiner concluded that JG was a chronically abused or battered child. The ultimate cause of death, in her determination, was an impact to the head resulting in a devastating brain injury. The location of the brain injury was consistent with Bourgeois holding JG by the shoulders and slamming her head against the windows and dashboard of the truck cab. Robin and one of Bourgeois‘s other daughters later told authorities the truth about JG‘s death and the consistent abuse she suffered.
B. Procedural Background
Bourgeois was charged with murder on federal property, in violation of
Bourgeois directly appealed to the Fifth Circuit. He challenged the government‘s use of aggravating factors at sentencing, the constitutionality of the FDPA, and the district court‘s delegation of supervision over his execution to the Director of the Bureau of Prisons. The Fifth Circuit affirmed, commenting “[t]his is not a close case.” United States v. Bourgeois, 423 F.3d 501, 512 (5th Cir. 2005). The Supreme Court denied certiorari. Bourgeois v. United States, 547 U.S. 1132 (2006).
Bourgeois then filed a motion for postconviction relief under
The court denied Bourgeois‘s
On the first prong (significantly subaverage intellectual functioning), Bourgeois had tested within the range for intellectual disability in IQ tests following his death sentence, but the court found that his test scores did not accurately measure his intellectual abilities. Id. at *25–31. Instead, based on “highly credible” testimony from the government‘s expert and the court‘s independent review of Bourgeois‘s psychological evaluations, the court determined that Bourgeois had not put forth his best efforts in testing. Id. at *27–29. In addition, “a fuller view” of Bourgeois‘s life did “not correspond to a finding of significant intellectual limitations.” Id. at *31. The court stressed that Bourgeois had “graduated from high school, worked for years as an over-land trucker, bought a house, managed his own finances, wrote intricate and detailed letters, communicated without difficulty, participated actively in his own defense, and otherwise carried himself without any sign of intellectual impairment.” Id. at *29 (footnotes omitted). The court credited the government‘s expert‘s testimony that Bourgeois‘s competence as a truck driver was “totally inconsistent with mental retardation.” Id.
On the second prong (significant limitations in adaptive skill areas), the court began by distinguishing between the “psychological” and “legal” approaches to adaptive functioning: whereas the “psychological” approach considered only “deficits,” the law “compare[d] the deficiencies to positive life skills, presuming that adaptive successes blunt the global effect of reported insufficiencies.” Id. at *32–33. With that in mind, the court turned to the evidence. The parties had presented conflicting expert and lay testimony about Bourgeois‘s adaptive abilities. The experts had reached “diametrically opposed conclusions about Bourgeois’ abilities.” Id. at *33. The lay testimony also pointed in different directions. For example, people who knew Bourgeois as a youth testified that he had difficulty learning new activities and grasping new concepts. Id. at *37–39. Bourgeois‘s trucking colleagues, on the other hand, testified that he was an above-average truck driver who ably discharged the various duties of the job. Id. at *39. One even described him as an “overachiever.” Id. In the end, the court found that “[a] broad review of the evidence does not make Bourgeois’ claim of adaptive deficits believable.” Id. at *44. Although Bourgeois “may have had difficulties when younger,” the record did “not conclusively link those problems to mental retardation rather than a culturally deprived upbringing, poverty, or abuse.” Id. And “[n]othing suggested that deficiencies endured into maturity.” Id. To the contrary, “Bourgeois operated with remarkable competency in the free world for one with low IQ scores.” Id.
About four years later, Bourgeois sought leave from the Fifth Circuit to file a successive
This brings us to Bourgeois‘s present petition. Bourgeois currently resides at the federal penitentiary in Terre Haute, Indiana. In August 2019, a month after he received an execution date,2 Bourgeois filed a habeas corpus petition under
Procedurally, Bourgeois tried to channel his petition through
prisoner who has already moved for relief under
The district judge ordered the government to respond to Bourgeois‘s petition. In its lengthy response, the government argued that Bourgeois had fully litigated his intellectual-disability claim in the Southern District of Texas, and that the Supreme Court‘s continued development of the law in Moore I and Moore II did not justify savings-clause relief. In any event, the government argued, the Southern District of Texas‘s analysis was consistent with Moore I and Moore II. Throughout its brief, the government referred to Bourgeois‘s intellectual-disability claim as his “Atkins claim.” It did not mention Bourgeois‘s FDPA claim in its analysis. In his reply, Bourgeois argued that the government “completely fail[ed] to challenge [his] claim that he is entitled to
The district court granted Bourgeois‘s motion for a stay. Bourgeois v. Warden, No. 2:19-cv-00392-JMS-DLP, 2020 WL 1154575, at *1 (S.D. Ind. Mar. 10, 2020). Without addressing his Atkins claim, the court found that Bourgeois was likely to succeed on his FDPA claim. Id. Before reaching the merits, the court found that the government had waived any argument that Bourgeois‘s FDPA claim could not proceed under
After the court entered the stay, the government sought leave to file a surreply. The government emphasized that Bourgeois himself had referred to his Atkins and FDPA claims collectively as his “Atkins claim” throughout his petition. Because Bourgeois had relied on the same arguments for both claims—which are governed by identical standards—the government had similarly not “parse[d] out” a separate FDPA claim in its response to the petition. The court denied the government‘s motion, finding that Bourgeois had, in fact, presented separate statutory and constitutional claims. The court reiterated that Bourgeois‘s reply brief had flagged the government‘s failure to address his FDPA claim, yet the government had not sought leave to file a surreply until after the court ruled. The government now appeals the district court‘s stay order.
II. Discussion
We review the district court‘s decision to enter a stay for abuse of discretion. Venckiene v. United States, 929 F.3d 843, 853 (7th Cir. 2019). We review the underlying factual findings for clear error and legal conclusions de novo. Id.; Mays v. Dart, --- F.3d ----, No. 20-1792, 2020 WL 5361651, at *5 (7th Cir. Sept. 8, 2020). “[A] factual or legal error may alone be sufficient to establish that the court abused its discretion in making its final determination.” Mays, 2020 WL 5361651, at *5 (alteration in original) (quoting Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir. 1986)).
The four stay factors are: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). Stay applicants “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573, 584 (2006).
The district court found that Bourgeois had met all four stay factors, but we only reach the first one: likelihood of success on the merits. The district court‘s determination that Bourgeois was likely to succeed on the merits of his FDPA claim rested on a preliminary finding that the government had waived any argument that Bourgeois‘s FDPA claim was not cognizable under
A. Waiver and Forfeiture4
We recently discussed the distinction between waiver and forfeiture in civil cases in Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc). We observed that, “[w]hereas waiver is the “intentional relinquishment or abandonment of a known right,’ forfeiture is the mere failure to raise a timely argument, due to either inadvertence, neglect, or oversight.” Id. at 786 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). “In the criminal context,” we noted, “the distinction between waiver and forfeiture is critical: while waiver precludes review, forfeiture permits a court to correct an error under a plain error standard.” Id. In the civil context, we had been less clear about the role of plain error review. Id. We took the occasion to “clarify that “our ability to review for plain error in civil cases is severely constricted,’ as “a civil litigant should be bound by his counsel‘s actions.‘” Id. (quoting SEC v. Yang, 795 F.3d 674, 679 (7th Cir. 2015)). “Plain error review is available in civil cases only in the rare situation where a party can demonstrate that: “(1) exceptional circumstances exist; (2)
substantial rights are affected; and (3) a miscarriage of justice will occur if plain error review is not applied.‘” Id. (quoting Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636 (7th Cir. 2018)). “The determination of what circumstances fit these criteria is solely within
We start with waiver. After reviewing the record below, we find that there was no basis to conclude that the government had waived its argument that Bourgeois‘s FDPA claim could not pass through the savings clause. To begin, Bourgeois himself did not clearly parse out separate Atkins and FDPA claims. Rather, he presented one intellectual-disability claim arising under two sources of law that—as both parties agree—provide substantively identical protection and are governed by the same standard. See Webster v. Daniels, 784 F.3d 1123, 1139 n.6 (7th Cir. 2015) (en banc) (Webster I) (noting that Atkins and the FDPA may provide different procedural pathways to relief); id. at 1150 (Easterbrook, J., dissenting) (“Atkins and Hall do not alter the [FDPA‘s] substantive standard.“). Bourgeois‘s first argument heading was: “Mr. Bourgeois Is Intellectually Disabled and Is Ineligible for the Death Penalty Under the Federal Death Penalty Act and Atkins v. Virginia and Its Progeny.” Bourgeois did not include separate sub-headings or arguments for his Atkins and FDPA claims. Instead, he made one set of arguments for both claims, and accompanied the arguments with citations to both Atkins and the FDPA. At times, Bourgeois even referred to both claims collectively as his “Atkins claim.” Given that Bourgeois himself did not treat his Atkins and FDPA claims as distinct, we do not believe that the government intentionally chose to disaggregate the claims and respond to only one of them.
Nor are we aware of any conceivable strategic reason why the government would intentionally respond to Bourgeois‘s Atkins claim while forgoing its right to challenge his FDPA claim. Why respond to the Atkins claim at all, if Bourgeois could still proceed with his substantively identical FDPA claim? Neither Bourgeois nor the court below answer this question. In these circumstances, we do not consider the government‘s failure to respond to be “a deliberate decision not to present a ground for relief that might be available in the law.” United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).
The sole reason that the court below gave for its finding of intentional waiver was the government‘s failure to seek leave to file a surreply after Bourgeois‘s reply brief “highlighted [the government‘s] failure to address the FDPA claim.” 2020 WL 1154575, at *3. We respectfully disagree with that reading of Bourgeois‘s reply brief. On pages 42–43 of his 45-page reply brief (the portion cited by the district court), Bourgeois argued that the government “completely fails to challenge Mr. Bourgeois‘s claim that he is also entitled to review under
That is especially true because “surreply briefs are rare and discouraged in most districts.” Ennin v. CNH Indus. Am., LLC, 878 F.3d 590, 595 (7th Cir. 2017). Indeed, while the South-ern District of Indiana‘s local rules allow a party opposing
We turn next to forfeiture. On appeal, the government insists that its failure to respond to Bourgeois‘s FDPA claim was, at most, forfeiture. Although the district court did not address forfeiture, its finding of intentional waiver was incompatible with forfeiture. After reviewing the issue for ourselves, we are convinced that the government‘s failure to respond separately to Bourgeois‘s FDPA claim—which was governed by the same standard as his Atkins claim—did not result in forfeiture. Forfeiture results from “inadvertence, neglect, or oversight.” Henry, 969 F.3d at 786. We do not believe that the government‘s silence on Bourgeois‘s FDPA claim was “oversight” when Bourgeois himself, through his undifferentiated presentation of the claims, was just as much to blame for that silence.
In the end, though, our conclusion on forfeiture does not make a difference because, even if the government had forfeited the issue, we would forgive it on these unique facts. As we have said, we have discretion to forgive a party‘s forfeiture in exceptional circumstances. Id. These circumstances include when a forfeited ground is “founded on concerns broader than those of the parties.” United States v. Ford, 683 F.3d 761, 768 (7th Cir. 2012) (quoting Wood v. Milyard, 566 U.S. 463, 471 (2012)). In Ford, for instance, we forgave the government‘s failure to argue harmless error because reversing on a harmless error would harm not just the forfeiting party, but also “innocent third parties, in particular other users of the court system, whose access to that system is impaired by additional litigation.” Id. at 769. Although Ford was a criminal case, we relied there on two Supreme Court decisions that arose in the civil habeas context. The first was Granberry v. Greer, 481 U.S. 129 (1987), which held that a federal appellate court has discretion in “exceptional cases” to consider a state‘s forfeited exhaustion argument because of the significant comity and federalism interests implicated by the exhaustion requirement. Id. at 134. The second was Wood, 566 U.S. 463, which held that federal appellate courts have discretion to consider forfeited statute-of-limitations defenses, given “the institutional interests served by AEDPA‘s statute of limitations,” such as conserving judicial resources and protecting the accuracy and finality of state-court judgments. Id. at 472–73.
Similar considerations would compel us to look past any government forfeiture in this case. We have already explained why the government‘s failure to
B. Cognizability Under the Savings Clause
That brings us to the main issue in this case: whether Bourgeois‘s case “fits within the narrow confines of the safety valve.’ Purkey, 964 F.3d at 611. Given its finding on waiver, the district court did not address this question. For that reason, Bourgeois, anticipating a loss on the waiver issue, asks us to remand the issue so that the district court can consider it in the first instance. That is indeed the normal course. Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749 (7th Cir. 1993). But that is not the best course here. We are dealing with a pure issue of law that both sides have fully briefed. Remanding it to the district court would likely result in a second appeal on the issue, and we would be right back where we started. “[T]he district judge‘s view, while it would no doubt be interesting, could have no effect on our review, which is plenary on matters of law.’ Id. at 750. Given this posture, the extensive briefing on the issue, and the long pendency of this case, resolving the issue now is the better use of judicial resources.
1. Savings Clause and § 2241
Section 2255 permits a prisoner serving a federal sentence to “move the court which imposed the sentence to vacate, set aside or correct the sentence.”
We recently examined the scope of the savings clause in two cases that weigh heavily on Bourgeois‘s appeal. The first is Purkey, which we have already referenced. In that case, Wesley Purkey filed a
We rejected that broad argument and explained that “the words “inadequate or ineffective,’ taken in context, must mean something more than unsuccessful.’ Id. at 615. Instead, “there must be a compelling showing that, as a practical matter, it would be impossible to use section 2255 to cure a fundamental problem. It is not enough that proper use of the statute results in denial of relief.’ Id.
We found that Purkey was missing that “something more.’ Id. at 615–17. We did not deny that Purkey had raised a significant question as to the effectiveness of his trial counsel. Id. at 615. “But that [was] not the proper question before us.’ Id. It was, instead, “whether, having raised in his section 2255 motion 17 specific ways in which his trial counsel were ineffective, Purkey is now entitled to add additional allegations … through section 2241.’ Id. He was not. We stressed that, “[a]t the time Purkey filed his motion under section 2255,
nothing formally prevented him from raising each of the three errors he now seeks to raise in his petition under 2241.” Id. Even if Purkey‘s counsel were not up to par, we were “left with the fundamental problem” that “the mechanisms of section 2255 gave him an opportunity to complain about ineffective assistance of trial counsel, and he took advantage of that opportunity. There was nothing structurally inadequate or ineffective about section 2255 as a vehicle to make those arguments.” Id. at 616–17.
Our second recent decision on the savings clause is Lee v. Watson, 964 F.3d 663 (7th Cir. 2020). Like Purkey, Daniel Lewis Lee relied on the savings clause to raise a claim of ineffective assistance of counsel that his
2. The Law Governing Intellectual-Disability Claims
With Purkey and Lee in mind, we turn to Bourgeois‘s pitch for savings-clause relief. At a basic level, Bourgeois says his intellectual-disability claim qualifies for savings-clause relief because no court has ever reviewed that claim in accordance with clinical diagnostic standards. He acknowledges that he raised an intellectual-disability claim in his
The FDPA, which Congress passed in 1994, provides: “A sentence of death shall not be carried out upon a person who is mentally retarded.”
In Atkins, the Supreme Court held that the Eighth Amendment‘s ban on cruel and unusual punishments forbids the execution of intellectually disabled offenders. 536 U.S. at 321. Importantly, the Supreme Court signaled that the law relies on “clinical” definitions of intellectual disability. Id. at 318. The Supreme Court referenced two “similar” definitions of intellectual disability (both of which we have already mentioned). First, it cited an earlier version of AAIDD-11. Id. at 308 n.3. Second, it cited DSM-4. Id. It summarized both definitions as “requir[ing] not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. at 318.
Twelve years later, in Hall v. Florida, 572 U.S. 701 (2014), the Supreme Court reiterated that courts “are informed by the work of medical experts in determining intellectual disability.” Id. at 710. The Court cited both Atkins and the newly available fifth edition of the APA‘s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for its slightly refined definition of intellectual disability: “[T]he medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period.” Id. The Court held that Florida‘s strict requirement of an IQ score of 70 or less for a finding of intellectual disability was incompatible with that definition. Id. at 723.
A few years later, in Moore I, the Supreme Court considered whether Texas was adhering to the medical community‘s definition of intellectual disability. The Texas Court of Criminal Appeals (CCA) had reversed a lower court for applying the medical community‘s current definition of intellectual disability instead of the intellectual-disability factors that the CCA had adopted in a previous case (the “Briseno factors“). 137 S. Ct. at 1044. The Supreme Court vacated the CCA‘s decision, finding that the Briseno factors were “untied to any acknowledged source” and “[n]ot aligned with the medical community‘s information.” Id. The Court highlighted a few specific ways in which the CCA had departed from the required framework. First, the CCA‘s conclusion that Moore‘s IQ score of 74 meant that he was not intellectually disabled was “irreconcilable with Hall.” Id. at 1049. Second, “[i]n concluding that Moore did not suffer significant adaptive deficits, the CCA overemphasized Moore‘s perceived adaptive strengths.” Id. at 1050. Citing DSM-5 and AAIDD-11, the Court stressed that “the medical community focuses the adaptive-functioning inquiry on adaptive deficits.” Id. Third, the CCA had sought to blame Moore‘s adaptive deficits on other factors, such as his traumatic childhood experiences and personality disorder, when neither
The case came back to the Supreme Court in Moore II. On remand following Moore I, the CCA had revisited, and again rejected, Moore‘s claim of intellectual disability. In a per curiam opinion, the Supreme Court reversed the CCA‘s decision on remand, finding that the CCA, while purporting to apply the latest medical diagnostic standards, had, “with small variations,” simply “repeat[ed] the analysis we previously found wanting.” 139 S. Ct. at 670. After reviewing the trial record on its own, the Court concluded that Moore was intellectually disabled. Id. at 672.
3. Bourgeois‘s Eligibility for Savings-Clause Relief
With that context, we consider whether Bourgeois is correct that Moore I and Moore II somehow qualify him for the “narrow pathway” of review under the savings clause. Purkey, 964 F.3d at 611. According to Bourgeois, the judge that denied his
Initially, we note our disagreement with Bourgeois‘s contention that the Texas district court “eschewed medical standards” in denying his
Contrary to what Bourgeois suggests, moreover, the court did not view
In the end, though, it is not for us to decide whether the
Atkins was the watershed case on intellectual disability. Before Atkins, the Supreme Court had not decided whether the Constitution prevents the execution of intellectually disabled offenders. Atkins held that it does, and further signaled that the law borrows its definition of intellectual disability from the medical community. 536 U.S. at 308 n.3, 318. The Supreme Court carried forward that core insight from Atkins in Hall, Moore I, and Moore II, and further elaborated on the measurements of intellectual function and the evaluation of adaptive deficits. The importance of applying medical standards, however, has been evident since Atkins and was evident to the
Critically, Atkins was on the books when Bourgeois filed his
As in Purkey, “nothing formally prevented [Bourgeois] from raising each of the … errors he now seeks to raise in his
Bourgeois‘s problems do not stop there. We have held that the savings clause affords relief in limited circumstances to federal prisoners who rely on retroactive statutory-interpretation cases that postdate their
Bourgeois has two unpersuasive rejoinders. First, Bourgeois says it does not matter whether Moore I and Moore II are retroactive because the FDPA applies current definitions of intellectual disability. According to Bourgeois, the FDPA‘s ban on executing a person who “is” intellectually disabled,
Bourgeois makes much of the FDPA‘s use of the word “is.” But what other word would Congress have chosen? Intellectual disability is a permanent condition that must manifest before the age of 18. Atkins, 536 U.S. at 318. It would be senseless to proscribe the execution of someone who merely “was” intellectually disabled when they were sentenced, or who “will be” intellectually disabled when their sentence is carried out. Bourgeois seems to confuse intellectual disability with the temporary condition of incompetency, which may come and go. See Ford v. Wainwright, 477 U.S. 399 (1986); see also Williams v. Kelley, 858 F.3d 464, 472 (8th Cir. 2017) (per curiam); Busby v. Davis, 925 F.3d 699, 713 (5th Cir. 2019). For these reasons, we find no support for Bourgeois‘s argument in the word “is.” And with no textual
Next, Bourgeois contends that his case fits within the parameters of the three main cases where we have found the savings clause applicable: Davenport, 147 F.3d 605; Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); and Webster I, 784 F.3d 1123. To the contrary, Davenport, Garza, and Webster I merely illustrate the “something more” that Bourgeois is missing. Purkey, 964 F.3d at 615. In Davenport, the successful petitioner (Nichols) had a new, retroactive Supreme Court statutory decision holding that the conduct for which he was imprisoned was not a crime. 147 F.3d at 611. Garza had a previously unobtainable decision from an international tribunal finding that his death sentence violated international human rights norms. 253 F.3d at 923. And Webster had clear and convincing new evidence showing that he was intellectually disabled and thus ineligible for the death penalty. 784 F.3d at 1140–44.
We recently reviewed Webster‘s new evidence again in Webster II, 2020 WL 5638691, which further illustrates the type of unusual circumstances that warrant savings-clause relief. On remand following our decision in Webster I, the district court held a lengthy evidentiary hearing on Webster‘s intellectual-disability claim. From the evidence presented at the hearing, the district court determined that Webster‘s new evidence of intellectual disability, which predated his capital trial, had been unavailable to Webster at trial despite his counsel‘s diligent efforts to obtain it at the time. Id. at *8. The new evidence was far from cumulative, moreover, because it showed for the first time that Webster had been diagnosed as intellectually disabled before he committed the crimes for which he had been sentenced to death, “at a time when Webster had no incentive to malinger.” Id. at *15. That was critical because the government‘s theory at trial was that Webster‘s low IQ scores were the product of malingering. Id. at *3. After reviewing the new evidence and other evidence presented at the hearing, the district court found that Webster was intellectually disabled. Id. at *9–12. We upheld the district court‘s factual findings on appeal because they contained no clear error. Id. at *12–17. Unlike Webster, Bourgeois has no newly discovered evidence. Instead, he had a full and fair opportunity to litigate his intellectual-disability claim before the district court that decided his
To be sure, Davenport, Garza, and the Webster cases do not “create rigid categories delineating when the safety valve is available.” Purkey, 964 F.3d at 614. But they illustrate the limited kinds of structural defects that justify savings-clause relief. Of the three cases, Davenport may best illustrate what Bourgeois is lacking. Nichols, the successful petitioner in Davenport, had a retroactive, statutory decision that completely undermined the legal basis for his conviction. Bourgeois‘s only claim, by contrast, is that the law governing his intellectual-disability claim continued to develop after he lost on that claim in his
The question in this appeal is not whether Alfred Bourgeois is intellectually disabled. It is, instead, whether he was able to litigate his intellectual-disability claim in his
Accordingly, we REVERSE the district court‘s determination that Bourgeois is likely to succeed on the merits and REMAND with instructions for the district court to deny Bourgeois‘s motion for a stay of execution and dismiss Bourgeois‘s
One final matter: At oral argument, the government requested that we issue our mandate immediately. We decline that request. Instead, we exercise our authority to expedite the issuance of the mandate and adjust the rehearing deadlines.