Bruce Carneil Webster v. Charles A. Daniels

discovery Finally, further Nettum out that suggests points Miller not only significant job that Lichtfeld had necessarily would show did involve discretion ary that, influence over Monona officials because decisionmaking but as by shown is not hired them. But this fact included decision, municipal court it was not complaint. the first amended And more attorney City him but an for the who earlier, importantly, to suc- explained as Nettum prosecuted citations issued. claim, on Miller ceed a class-of-one had to Thus, light great deference we allege merely casting more than facts do local discretionary afford decisions re being actions of Monona officials as use, garding CEnergy-Glenmore, land see animus; by she needed to ex- motivated 487; House, F.3d at Discovery possible explanations clude rational F.3d and the conceivable rational , Pawn, actions. 755 F.3d at their Fares reasons for agree Nettum’s actions 845; Thus, 686. Kopp, 725 F.3d at even the district with court that the class-of-one could show that Monona officials Miller against claim Nettum fails. targeted because of property Miller’s Accordingly, judgment of the district complaints, Lichtfeld’s because there were court is AFFIRMED. target rational reasons'to Miller’s potential property, persuaded that derelict we are correctly granted appel- district court motion to

lees’ dismiss class-of-one

claim. emphasizes

Miller also that three of the inspector citations issued Nettum by

four rejected at trial. But is crucial to

were WEBSTER, Bruce Carnell why rejected. were examine those citations Petitioner-Appellant, municipal City court noted producing bore the burden of clear and convincing Miller’s code evidence of viola- Warden, DANIELS, Charles A. United tions, and that for citation related to . Penitentiary, Haute, Terre States filling, failed to grade City meet its Respondent-Appellee. provided only grainy burden because- it photographs proof. The other citations No. 14-1049.

primarily rested on Nettum’s understand- Appeals, United States Court ing appurtenant structures Miller’s Seventh Circuit. hoist, e.g., garage, boat land — driveways purpose no useful' after —had Argued 2015. Jan. existing Al- buildings. Miller razed the 1,May Decided though ultimately the municipal court disa- decision, his actions greed Nettum’s cry entirely a far

seem from the baseless and Geinosky,

citations Swanson

Moreover, cases, unlike either those municipal upheld

here the one of the court

citations, building code violating

beginning proper per- demolition without

mit, confirming legiti- that Nettum had a citing property.

mate basis for Miller’s Wells, Droske, Timothy J. Kir-

Steven J. Schubert, Whitney, Min- Dorsey E. & sten- MN, Petitioner-Appellant. neapolis, Hendrix, Wesley Office of the James Dallas, TX, Attorney, United States Respondenb-Appellee. WOOD, Judge, and

Before Chief FLAUM, BAUER, POSNER, ROVNER, EASTERBROOK, KANNE, WILLIAMS, TINDER, SYKES, HAMILTON, Judges. Circuit WOOD, Judge. Chief prisoners federal who con- Since they convicted or tend were sentenced in or laws violation Constitution required been in the United States have present through claim most cases to motion under 28 mo- U.S.C. filed in district of tion must be convic- rule, remedy by tion. As a afforded section 2255 functions as an effective sub- corpus for the writ habeas that it stitute 2241; largely replaced. See 28 U.S.C. v. Hayman, United States 342 U.S. (1952). But 96 L.Ed. 232 Con- S.Ct. gress recognized might that there be occa- remedy cases which “the sional mo- inadequate tion is or ineffective to test the detention.” legality applicant’s] [the 2255(e). question before U.S.C. us petitioner is whether Bruce Webster has so, If presented may such case. then petition; proceed merits of his not, then his case must be dismissed threshold.

Webster was convicted the Northern Texas District of of the federal crimes of death, kidnapping resulting conspiring kidnapping, using to commit and car rying during a firearm a crime of violence. Webster, United States 162 F.3d 308 Cir.1998) (Webster (5th I).. He was sen count, tenced to death on the first after rejected argument the district court show, ineligible penalty- show, that he was for the death what or do not about (now' account of mental retardation Webster’s intellectual functioning. disability” by termed “intellectual the Su Webster, along with Orlando Hall and — Florida, Court, preme see Hall v. U.S. Holloway, Marvin ran a marijuana busi- —, 1986, 1990, 188 L.Ed.2d Bluff, Arkansas, ness Pine city (2014)). The Fifth re Circuit later 50,000 approximately lies about 45 jected Webster’s motion for relief under miles south of Little Rock and 330 miles Webster, section United States Dallas, east of group Texas. The used (5th Cir.2005) (Webster II), F.3d 308 and in suppliers Worth area Dallas/Fort application for an authorizing order help contact, with the of a local Steven proceeding. successive 2255 In re Web Beckley. ster, (5th Cir.2010) (Webster F.3d September On Holloway drove III). Hall from Pine Bluff to the Little Rock airport, Dallas; and Hall flew to Beckley

Webster is now seeking opportunity and Hall’s brother present newly picked Demetrius Hall discovered evidence that up at the other day, end. Later that Hall categorically demonstrate that he is Beckley dealers, and met two local Stan- constitutionally ineligible and for the death Rene, field Vitalis and Neil at a car wash penalty under the Court’s deci $4,700 gave and them payment in ad- in Virginia, sions Atkins v. 536 U.S. marijuana. Beckley vance for some and 2242, 153 (2002), L.Ed.2d 335 and wash, Demetrius then returned to the car A panel Hall. of this court concluded that but appeared. Vitalis and Rene never satisfy new evidence can never the de Hall phoned them to find out what hap- 2255(e) manding standard of section and pened, they and told him that car both The thus Webster cannot be heard. Web they driving money had been and the had (7th Caraway, ster v. 761 F.3d 764 Cir. figured been stolen from them. Hall out 2014) IV). (Webster In light the'impor telephone number he had used question, tance of the the full court decid apart- was associated with the Polo Run toed rehear the case en banc. con We (a Arlington, ments in Texas Dallas sub- clude that there is no such absolute bar to urb). Hall, Demetrius, Beckley began and safety the use of the valve found section watching apartment. they spot- When 2255(e) for new evidence that would dem supposedly ted Vitalis and Rene in the categorical ineligibility onstrate for the car, they story stolen concluded that the penalty. death We therefore reverse the money about the stolen was also false. judgment district court’s and remand for proceedings. further later, days Three Hall contacted Hollo-

way and told him to arrange Webster Background I. Facts and Proceed- to fly complied to Dallas. Webster

ings Holloway’s evening, instructions. That Hall, Demetrius, Beckley, and Webster A. Facts apartments went to the Run Polo sister, There is no doubt that Webster and his Cadillac owned Hall’s Cassandra co-defendants committed a horrible crime. Ross. Hall and Webster were armed with We take our account of the underlying handguns; Demetrius had small souvenir bat; opinion Beckley facts from the Fifth tape Circuit’s baseball and had duct I. largely jug gasoline. equipped, Webster Those facts are undis- and a So puted stage; only question at this group approached apartment they use, They shifted Lisa to another they and motel room. and Rene

seen Vitalis morning. next room the occupant, the door. The Lisa knocked on (the of Neil 16-year-old sister Rene Hall, Beckley, morning, Later Rene), in and called refused to let them park. They took Lisa back to the Webster emergency num- police her sister and eyes with a mask. Hall and covered her unsuccessfully to kick ber. trie.d site, way grave led the work, that did not in the door. When Beckley along. At the guided while Lisa through sliding Demetrius looked site, Hall turned Lisa’s back to the grave telephone. saw Lisa on the glass door and head, her grave, placed a sheet over bat, the door with the Demetrius shattered a shovel. She hit her the head with apartment, entered the and Webster Beckley grabbed away, tried to run Lisa, dragged her to the car. seized hit Beckley both fell down. her and with the shovel and handed it to her twice meantime, Beckley Hall and In the point, Hall. At that and Hall took Webster Webster, in to the car. with Lisa returned hitting turns her the shovel. Web- with tow, He Lisa onto met them there. forced her, dragged her to the gagged ster then group and the drove to the floorboard her, poured gasoline on grave, stripped there, apartment nearby. Once Ross’s her, in, pushed her and shoveled dirt over and Lisa into they left the Cadillac shoved that, although The indicates her. record Beckley’s car. Hall back seat of then, by she was unconscious Lisa was her, into the back seat with and climbed breathing when she probably still was bur- passenger sat the front seat. Webster ied. for a Beckley looking drove around seclud- long It did not take for the authorities to so, raped while he did Hall Lisa spot; ed responsible find out who was for Lisa’s perform her to oral sex on him. and forced gave hideous death. Lisa’s brothers infor- Eventually Beckley drove them back to leading mation to Demetrius’s arrest there, apartment. Beckley, From Ross’s police, Beckley and Hall and surren- Lisa, Demetrius, and Webster drove still a Beckley dered soon thereafter. confessed Bluff. En prisoner, the 330 miles to Pine kidnapping; his confes- to his role route, and Demetrius took turns Webster implicated sion also Hall and someone he Bluff, raping they Lisa. Once reached Pine Beckley called “B-Love.” also said that room, they a they rented motel where tied at B- he had last seen Lisa the motel with to a chair and continued to assault Lisa Love, security guard and a at the hotel sexually. her by told the officers that Webster went pulled name. When Webster into the mo- 25, morning, September The next Hall 30, early parking September tel lot on Holloway up and showed at the motel was arrested. They room. took Lisa into the bathroom they for about minutes. When came B. Trial Appeal and Direct Beckley Hall again, out told “she Hall, 1994, Holloway, (along much.” In know too and November Webster with Hall, Demetrius, Beckley, Holloway) left the motel. Webster then Later afternoon, by grand jury Hall and Webster went to a was indicted a federal on Hall, park dug grave. evening, charges kidnapping a That which a death (Count 1, 1201(a)(1)), § Beckley, and Webster took Lisa to the occurred 18 U.S.C. (Count 2, they grave conspiracy kidnapping could not find the to commit park, but site 1201(c)), traveling § in interstate in the dark and so returned 18 U.S.C. promote “plainly with intent to extortion district court erred commerce and violat- (Count 1952), using ed Webster’s rights 18 U.S.C. constitutional en- during a tering finding a firearm crime of vio- a factual carrying he is not men- (Count 924(c)). tally I, 18 U.S.C. retarded.” at lence 162 F.3d February a government turning no- Before to the Fifth filed Circuit’s penalty of intent the death resolution point, tice seek of that it is essential Webster, pursuant to the Federal review the against evidence intellectual disabili- ty that Penalty presented Death Act of 18 U.S.C. at sentencing 3593(a) (which just phase trial; effect virtually had taken none came murder). days guilt before the Webster’s trial phase. Without this back- ground, that of impossible later was severed from his co- it is to decide whether newly defendants.1 discovered evidence would have amade difference.2 jury returned verdicts on guilty 1, 2, 6; and Count was dismissed The defense primarily Counts relied tes- government’s timony experts: on the motion. court of three Dr. Raymond Finn, sentencing separate hearing conducted clinical psychologist; Dr. Denis jury, Keyes, the same spe- professor special before which returned education and findings cial satisfied the psychologist certified school exper- retardation; requirement, statute’s intent tise in mental U.S.C. and Dr. Robert 3591(a), statutory Fulbright, and that three and a At neuropsychologist. clinical level, non-statutory aggravating general two factors the most agreed those three 3592(c). present. Vary- experts were 18 U.S.C. for the United States that jurors a ing mitigat- finding numbers of found nine of mental retardation is appropri- factors, ing statutory I.Q. some and some ate if person’s roughly non- is or statutory. 3592(a); tests, See below accepted 18 U.S.C. Web- on one of the and I, n. 2. person ster 162 F.3d at 319 & The court in at has a deficit least one of 1; (com- Webster to three functioning sentenced death Count areas of adaptive 2; imprisonment munication, socialization, living to life on Count and to 60 and daily skills). (A imprisonment months’ on Count 6. third criterion —onset before contested.) age Dr. 18—was appeal, direct On Webster raised four Finn I.Q.; testified about Webster’s Dr. the Fifth grounds reversal that Circuit Keyes his adaptive testified about func- already rejected separate had Hall’s tioning; Fulbright and Dr. testified more Hall, see appeal, United States 152 F.3d specifically his level of about mental func- (5th Cir.1998), and additional tioning. grounds, some of which related to his con- and some Only viction to his sentence. Before Dr. Finn personally administered Webster, I.Q. them at stage one of remains relevant test to copies received game: point performed which asserted that of tests that had been trial, convicted, detailed, Although may went 1. Hall was and our seem it was account sentenced See United also to death. States v. only summary pages more than 600 Hall, (5th Cir.1998). 152 F.3d 381 Like attempted transcript. trial haveWe to hit the Webster, currently he is at the housed U.S. high points, mentioning every without time Hall, Penitentiary in Terre Haute. Demetrius something of someone said interest. Beckley, Holloway Steven and Marvin all trial; guilty pleaded at testified Webster's varying received for terms of sentences years. into ac- Taking mur- takers would do better. years two before approximately agitation Mental at the der, Arkansas count Webster’s at the Southeast time.of Clinic). (the had test, Webster Dr. Finn found the results of Health Clinic the 1992 stabbed his brother-in-law there after earlier gone test to consistent with the his The Clinic to death. one of his brothers one, though likely more reliable. Intelligence Adult him the gave Wechsler Finn test Dr. administered the WAIS (WAIS) test, widely used. which is Scale 1996,just again to June before Webster part the verbal scored 56 on Webster He that there the trial started. noted test, performance part, 48 on expo- repeated from learning some effect I.Q. score of 48. full-scale received test, and so one would sure same results, prosecution defense and both performance. better predict somewhat said, to be taken with witnesses happened. And is what reported Finn of salt. Dr. grain 72; I.Q. performance verbal rose noted conducted the test psychologist who 59; full- I.Q. dropped point one and his confused, preoccupied, (like I.Q. scale was now time, so the poorly oriented in the “mild- findings) put earlier may depressed for have been scores ly group. retarded” were viewed at I.Q. tests also reason. secondary to possibility time as behavior aspects Other suffering from schizo- that Webster was conclusion, in Dr. confirmed this Finn’s depression, or other phrenia, some mental things, Among view. other he noted Web- mind, possibility disorder. With (he marginal ster’s school achievement prescribed anti-psychotic the Clinic grade), em- dropped marginal out in 9th him, in the end drug although Haldol for (almost none, from ployment history apart schizophrenic. not conclude that he was did week), job he after a lack of one lost 48, however, easily A full-scale score (he moth- independent living lived with his I.Q. the threshold of of 70 meets er), patterns speech (meaning and concrete disability recognized by intellectual that he was to deal with not able abstract. Diag- Psychiatric American Association’s concepts). good did have knowl- Webster nostic and Manual of Mental Statistical words, Dr. edge thought of but Finn he (DSM), Disorders both the DSM-IV speaking was better at than understand- (the 4th that was in at the edition force ing. trial) and in the current DSM-V time 2013). (which took It also meets effect cross-examination, government On recognized by the American the standard urged per- Dr. Finn to consider a whether Retardation, Mental now Association for Webster, capi- son such as with a charged the American Association on Intel- called crime, tal have motive to lie or Developmental and lectual Disabilities. Assis- manipulate being while tested. The (AUSA) Attorney suggested tant U.S. also background information collecting After might have a motivation someone Webster, Finn on Dr. administered finding lie of mental retardation would That January test him WAIS eligibility governmen- establish various I.Q. a verbal test revealed score addition, tal benefits. the AUSA noted I.Q. a full- performance score and that Dr. Finn had mentioned in a letter I.Q. he still well below the scale wrote to counsel that Webster told explained Dr. this score defense mark. Finn special in the him that had been in edu- percentile in the 0.3 put Webster through test- of his school country, meaning percent that 99.7 cation classes most “you career. then said institutional setting. The AUSA know He concluded from now, you,” that’s not true don’t and Dr. the results that Webster’s verbal skills agreed Finn that he did “know that now.” somewhat might exceeded what one pre- motivation, questions I.Q., As for the Dr. dict from about his that overall rejected suggestion, adaptive Finn in- functioning AUSA’s at the was level of a sisting had put seven-year-old. Keyes instead forth six- to Dr. firmly tests, a good effort on all of the that an denied that manipulat- Webster could have experienced readily could ed the administrator results of the several tests that he manipulate, detect an effort and that had Finally, he administered. Dr. Keyes re- saw no such thing. called that Dr. Finn had him told about special-education classes. On Keyes, specialist Dr. who men- cross-examination, the AUSA asked retardation, tal on the also relied DSM-IV. whether Dr. Finn had ever mentioned that adaptive He functioning, testified about Webster had lied he when said he was in explained he covered “the main ar- classes; special Keyes education Dr. communication, ... adaptive eas skills no memory of such a comment. socialization, daily living skills....” It stated, Next, important, adaptive to look at Dr. Fulbright, neurop- clinical “it functioning, possible sychologist, because for a tests per- discussed the he had person intellectually attention, to be retarded but not formed to evaluate Webster’s necessarily memory, abilities, adaptively problem-solving retarded.” Both are necessary general functioning. to meet the definition of mental He too ad- mental retardation under the law. ministered standardized tests. Those test, I.Q. tests did include an came important points up Several dur- by that already time Webster had under- ing Keyes’s testimony. Dr. The first re- gone multiple I.Q. while tests he was in the adaptive lates functioning whether facility. detention tests Dr. Fulbright should be in relation to assessed the world administered included ones for attention walls, prison outside institutional or in the concentration, memory, information- environment. argued He the former processing speed, distractibility, visual and counts, is what because of the strictures of memory, verbal reasoning, abstract institutional The second living. point re- logical analysis. methodology: lates assessment are ac- cepted psychological necessary, performed many tests or is Webster poorly acceptable it rely exclusively to on to these tests. He was unable learn even anecdo- tal perceptions? Keyes, auditory evidence and Dr. the basics of an addition test distractible; as (thinking speed); very well as one of rebuttal Webster’s ex- he was (Dr. Denkowski), perts test, George very badly memory took he did visual on a test; position testing that professional of this but better on the and his verbal type critical, rigorous severely is less performance impaired because meas- was on give ures person higher-level one no idea of where a thinking, problem-solving, and stands popula- logical analysis relative to the rest of the Dr. Fulbright tests. found, tion. He accordingly consistently administered the a comment Dr. with test, made, well-known Vineland “extremely involved Finn that Webster many interviews of who to think people abstractly. had known concrete” and not able (the Yet, noted, Webster of age age by before the as others had also his verbal disability which intellectual appear) fluency surprisingly good. must was Even there, however, and in opposed testing the “real world” as prob- to an revealed days. sleep sen- a lot of He did a lot.” School where he was read test leras. a in the complexity reported Turner increasing length and counselor E.C. of tences back, say grade, them Webster scored in the 43rd and asked to 7th fairly short sentences. manage of a national achievement test percentile could long complex to listen to He was unable cross- Survey. known as the M.A.T. 6 On fully what and understand examination, communications that Web- Turner admitted lawyer Finally, being was said. fall grades began to off between ster’s whether someone Fulbright Dr. asked McHan, gen- a and 7th Tom grades. 6th in the tests that had could fake results worked eral contractor for whom Webster response Fulbright’s Dr. been described. week, nothing a about testified he saw convincingly,” tests was “not mentally im- indicate that subject redundant, are somewhat his but that he fired Webster from paired, results, how to fake the would not know for job clean-up on a crew after one week would be evident and inconsistencies sleeping job. on the trying manipulate them. someone were government presented, also as evi- testing re- He that Webster’s concluded of capabilities, dence Webster’s functional mildly to person a who is vealed him to be life An prison. facts about his several moderately On cross-examina- retarded. that he inmate testified and Webster tion, “quite faking he reiterated “pig would communicate Latin” and gave. easy” to tests detect capable quoting lai-ge por- Webster was strategies government followed two He scripture. tions described Webster first, number large on rebuttal: it called a having memory a “photographic” officers, school ad- lay (police witnesses testimony, the Bible. Other consistent ministrators, teachers, employer, school penchant bragging with Webster’s jailers) testified that Webster did who all prowess, his sexual recounted Web- about them; sec- mentally retarded to not seem through effort to crawl ster’s successful ond, George experts, Dr. offered two jail get “the bean chute” in the Coons, Parker Richard to rebut and Dr. Finally, reported women’s area. witnesses topic spe- experts. When the library, that Webster visited the law ob- up, government’s cial came education it, tained books from and on occasion one witnesses all denied that Webster had him spotted commissary given that the had classes. We will not review been those wrong change purchase. for a testimony, all of the other than to note lay Parker, psychologist gener- Dr. with a number or all of points some government’s first ex- practice, al was the managed witnesses made. Webster government’s At the re- pert witness. pass driving test with an Arkansas him quest, gave he evaluated Webster and testi- perfect (though almost score other I.Q. truncated test. version WAIS so mony indicated that he had done I.Q. results a verbal estimate His showed cheating). noted that Webster Several I.Q. performance a full- with Both teachers said was “street smart.” I.Q. agreed of 72. He scale mentally he to be retard- that did not seem plays that them, significant AUSA motivation a ed, Drewett, said, though Pat one of results, in the and that be a role this would He performed at a slower level. did “[He] problem setting. in a particular “forensic” that he days read slower. On did attempt formally Parker not to he Dr. did perform, days most of the did adaptive functioning, ei- He He assess Webster’s sleep. perform didn’t a lot. could through the Vineland or other- read. He do. He not to do on ther test could chose examination, a challenged utility Upon personal He wise. he found test, Web- time, based on the fact that that was well Vineland Webster oriented to 23) (then age place, had been incarcerated person, ster and and that he a give could years age since the of He chronological for five detailed of events. account the AUSA that was agreed with Webster Relying on the of day- accounts Webster’s effectively, speak life, able to communicate to-day Dr. Coons concluded that his sentences, stories simple in full read adaptive functioning was not consistent aloud, keep tidy. his cell and and clean with a finding mental retardation. cross-examination, defense counsel On entering After the sentence of death on out brought the fact that the test WAIS verdict, the district court sepa- filed a all of which must adminis- parts, has rate entitled Finding document “Factual result, obtain a valid that Dr. tered to but Regarding Mental Retardation.” It con- deliberately some. Parker omitted cluded that “Webster is not re- mentally four of in gave He Webster the sub-tests possesses tarded and ... he requisite area, the verbal and three of the sub-tests capacity mental to understand the death area, performance omitting in the two penalty why it will be imposed on him. that, suggested, than each. counsel Worse result, As a the defendant not Webster is (arithmetic that the tests he omitted 3596(c) exempt under U.S.C. from information) traditionally are ones implementation of the penalty.” death intellectually which the do the disabled challenged finding on di- Dr. Parker ignorance worst. claimed appeal, rect but the Fifth Circuit “con- (although on a that fact surrebuttal de- action, that the court took proper clude[d] supported expert fense Webster’s counsel’s finding supported by and the was evi- assertion). What Dr. Parker did instead I, dence.” It F.3d at 351. assign score, an average was to based on review, error applied plain because Web- administered, that were to the tests object ster had failed to the factual This an up- omitted sub-tests. created finding timely way. in a Given how recent bias, Thus, charged. counsel for in- ward at the statute the time of stance, Dr. Finn when administered the trial, the court found no reversible error sub-test, 2; information Webster scored procedures district court followed average assigned Dr. Parker’s of 6. a score responsibilities. its re- carrying out It acknowledged Dr. Parker also jected in particular argument and the DSM-IV American Association on of mental the issue retardation should using Mental Retardation recommend jury, have been decided not the recognized instrument like the Vineland sufficiency respect court. With adaptive functioning, test for disability, the evidence intellectual Finally, not to do had chosen so. Dr. court nothing say; repro- had almost Parker administered a test called the in its entirety: duce its discussion Scale, Malingering Schretlen he ad- support mitted that the results did finding Webster contends that the finding malingering. mentally against he is not retarded is government’s weight final was Dr. expert greater credibility Coons, psychiatrist prac- a forensic whose evidence. The standard of review for competency mentally tice focused on a defendant finding assessments of is not trial, occasionally presents to stand but who looked an issue retarded fac- questions disability. intellectual Because it is a impression. first Atkins, clearly intervening Court’s decision finding, adopt tual the errone- Eighth held that the Amendment— ous standard. a just prohibits not the execution government presented substantial statute — intellectually of the disabled. The Fifth finding. Fur- support the evidence to difference Circuit saw little between the thermore, jurors only four of the twelve governing standards under the Constitu- may be mental- Webster is or found that 3596(c),however, tion and section and so it and that he suffers from low ly retarded persuaded required not that Atkins a was say functioning.3 We cannot intellectual accept result. It was willing different clearly deciding that the court erred I.Q., that had a low but it found Webster mentally retarded. is not Webster government’s that evidence his (footnote omitted). on at 352-53 Based Id. functioning effectively had coun- adaptive Webster, information then available those tered numbers. Vineland test the end Webster’s direct this marked Keyes that Dr. had was all well conducted the issue of intellectual disabili- appeal on good, appeals thought, the court of but ty- it accepted the “direct evidence” of C. First Motion under Section adaptive functioning government that the proffered. at 313. It At filed a motion for had Id. therefore point, that court’s de- judgment affirmed district relief under 28 U.S.C. post-conviction nying Webster’s motion under section ad- sought § 2255. counsel Webster’s 2255. discovery on men- question ditional retardation, days but before Atkins tal two for Application D. Successive Relief it

was and well decided decided before under Section 2255 motion, re- the district court denied the round, discovery losing nothing legal -After quest required for additional significance years. motion to filed within 60 for four happened Webster’s III, conviction, days. years F.3d at n. Some 13 after (Wiener, J., years Webster’s mo- and four after his section 2255 mo- concurring). relief, denied, tion grounds tion raised 16 was new counsel uncovered rejected previously all of them. Sec- undisclosed evidence revealing district court Circuit, granted diagnosed it onded the Fifth that Webster had been as men- appealability tally year certificate of two retarded a before the commis- “first, presented sion claims: the evidence crime. With those records in hand, application at trial to warrant counsel filed an was insufficient finding permission district court’s that Webster is Fifth Circuit for to file suc- second, retarded; 2255; mentally motion cessive under section alleged exclusively him motion ineligible proposed retardation renders was directed II, turning 421 at death sentence.” Webster the death sentence. Before appli- Fifth disposition F.3d Circuit’s cation, new we describe evidence and Although appeals the court had brief- light it had not why come earlier. ly points appeal, considered these on direct did, agreed many things Among with Webster that fresh look other warranted, trial counsel had submitted a light illustrates, separately 3. As took Webster has not attacked this comment court tion. position jury that the did not to be ruling petition. need his section question on the of mental retarda- unanimous Security Administra- man stated request to the Social that Webster lived with his any might mother; it records that have. television, tion that he watched lis- he, There had been hints in record that radio, tened to the went walking; and that mother, sought he and his or some did house; he no chores around benefit, were following kind of and counsel that he was in the idle both house and on (The government on that clue. chal- up the streets. Taking into account both his lenges that Webster’s contention defense I.Q. estimate that Webster’s was 69 or records, locate the actually counsel tried to adaptive lower and his assessment func- trial, when govern- before the either tioning, Spellman Dr. concluded that Web- ment contends must have known mentally ster was retarded and antisocial. existed, they original or for 2255 mo- foupd exaggeration He no evidence or But the these old tion. facts about records malingering. least.) contested, say are The So- earlier, A 1993, few months October Security produced cial Administration Dr. a Hackett conducted full-scale Edward nothing. lawyers Webster’s new contend I.Q. test on WAIS Webster. He came up counsel, having end, trial hit a that dead I.Q. performance a verbal a I.Q. with reasonably dropped inquiry that I.Q. and a full-scale of 59. He They also that when most of point. stress “mildly retarded, evaluated Webster as but produced response records were ... also antisocial.” Pertinent to the cen- request, own was their mistake. question tral of adaptive functioning, Dr. Equally fact that troubling is the the re- Hackett later report noted a that destroyed. were mainder the records as a “[Webster] was viewed somewhat records, newly produced man, mild[ly] very retarded con street lawyers current received on Webster’s wise.... could not be functional in a [H]e February 2009, showed that Webster community He setting.... would also not Security applied for Social benefits based place.” function well in work Dr. a years on sinus condition when he was 20 Hackett did not believe was old, approximately year before the crime. benefits; capable of own managing his He agency’s was evidently attention found Webster’s behavior somewhat bi- quickly redirected to mental ca- Finally, zarre. commented on the Two pacity. psychologists physi- one I.Q. tests, performance was esti- On cian examined him. December score, mated be lower than his verbal 1993, Dr. Spellman, psychologist, Charles function organic might some be him purpose evaluated for the of ascertain- involved. ing eligibility Security for Social bene- He sparse

fits. noted that was “[i]deation .professional The last to examine Web- appeared and this to more of a function be conjunction ster 1993 Social cognitive ability his lower than of any Security Dr. application was C.M. Rittel- Spellman mental illness.” Dr. also ob- meyer, physician. Rittelmeyer Dr. served Webster’s intellectual function- fine, health to physical found Webster’s ing quite regis- he could not limited: say: he also had “Mental retar- 'but this to objects (meaning three that he ter could problems dation. Flat feet.- Chronic sinus objects not remember three short time allergies by history.” him); after were shown he could calculations; simple Security do The Social records included an and he did not strongly common.sayings intriguing suggested know what meant. letter that With respect adaptive functioning, special Dr. Webster in fact had been in Spell- adaptive direct evidence .of provided It November also was dated

education classes. I.Q. 1993, by functioning Lou with the test had been written consistent and Jackson, Supervisor might changed Special Education have the scores—evidence had attend- system Webster a more experts they for the school minds of seen the ed, Jackson’s let- Chapel Schools. complete picture. Watson special edu- that Webster’s explained ter Circuit, however, The Fifth concluded in destroyed had been cation records did that Webster’s new evidence proposed not to a letter family respond the did after imposed stringent not meet the standards the they could have records “telling them 2255(h), which as follows: by section reads they if wanted them.” (h) A must second or successive motion Security provide records also The Social provided be certified as section about abil- evidence some direct by panel appropriate court of of completed, ities. The form Webster to appeals contain— syntax, example, rife with errors grammar, spelling, punctuation, (1) that, newly discovered evidence thought. response question asking light the evi- proven and viewed of symp- pain his or other him to describe whole, dence as a would be sufficient toms, mE wrote “it causEs Webster convincing evi- by establish clear up Easily hEadhurtsdiffiErnt of gEt sEt fact-finder dence that no reasonable the side ef- asked about brEdth.” When guilty would have found movant medication, “Is lEEp he wrote fects his offense; or asked about his usual bEttEr.” When (2) law, a new rule constitutional (consistent- activities, daily wrote to eases collateral made retroactive on from his teacher and ly with the comments Court, by that was review employer) slEEps “I look at. cartoon.” previously unavailable. chang” repoi'ted that he “ain’t no got He his condition since its onset. judges III concluded that records, only challenge his urged, petitioner seeking new

These counsel penalty cannot do questions eligibility about the linch- the death raised serious 2255(h)(1), at trial with under pins government’s of the case so section disability. requires evidence that respect to intellectual Counsel section shows argued they strongly guilty the con- the movant could not be found of the refuted malinger- application not at- that Webster was did sistent theme offense.4 guilt after offense murder but ing I.Q. on tests he took tack committed, only his Sec- challenged crime since showed a instead sentence. 2255(h)(2) con- requires with tests from a tion new rule of level those consistent (a) (b) crime, previously when stitutional law that was unavail- time before able, already was not under the emotional stress that but Atkins had been decided at at time They tainted 1992 tests the Clinic. of Webster’s initial section (AEDPA). They colleagues disagree Penalty acknowledge, dissenting Act Our however, post aspect ruling. See was not the Circuit's the Fifth that this Fifth Circuit's argue panel They that the rule view. Since the Fifth Circuit in Webster 1148 n. 1. Sawyer Whitley, unanimously factual inno- 505 U.S. III found do, (1992), recognizing majority did cence of the crime would 120 L.Ed.2d express any opinion Webster's person that a can be death whether "innocent years findings penalty,” four new evidence undermined the under- survived the enactment pinning his later of Antiterrorism and Effective Death death sentence. who corpus came close to under section someone motion, nothing else required otherwise would be to use the criterion. satisfying that motion 2255 and has failed in that disposi- in that concurred Judge Wiener effort, appears remedy if “it also that the tion, separately empha- “to but he wrote inadequate or by motion ineffective Kafkaesque result: absurdity of its size legality test of his detention.” 28 seeks to demonstrate Because Webster 2255(e). This is often called the U.S.C. constitutionally ineligible only that he is clause”; “savings prac- we will follow that penalty he is for the death —and tice. crime—we must factually innocent of the III, The court found that 605 district sanction his execution.” Webster say advantage was not entitled to take of the “[i]f at 259. He went on to F.3d clause, savings in- because it understood the attempts that Webster the evidence law, only changes in the apply to a clause to presented troduce here were ever propo the mer- not to new facts. It relied for that judge jury or for consideration on its, Lappin, v. 253 virtually guaranteed primarily it that he would sition Garza (7th Cir.2001), ,to and In re Daven mentally Id. F.3d 918 be found retarded.” (7th Cir.1998). 2255(h) Nevertheless, port, 147 F.3d 605 under section to hold that section eye “turn a blind to court read our cases required court was evidence, “inadequate only or ineffective” speaks it to Webster’s 2255 is this as §in fore problem when “a structural 2255 eligibility pen- for the death constitutional round of effective collater guilt factual or innocence closes even one alty and not his in Dav only al review—and then when as the crime.” Id. at 260. He concluded unsettling enport being the claim foreclosed is one by “deep expressing that, Taylor Gilkey, actual 314 the strictures of innocence.” conviction” under (7th 832, Cir.2002); also 2255(h), no F.3d 835 see Un today “we have choice section (7th Jett, 534, 549 F.3d 536 Cir. ... an unconstitutional thank v. but to condone 2008). commented in a The court also punishment.” Id. not clear whether footnote that The 2241 Petition II. up on trial counsel had followed Security to,5 Admin they request Fifth their Social Accepting, as files, that it was too istration for its that a mo- conclusion successive Circuit’s materials. As available, to consider those late now under 2255 was not tion section outset, in Webster TV we noted at the pro- filed the current Webster’s counsel affirmed the district of this court panel in the Southern District ceeding the full court vacat Indiana, judgment, court’s but resides on the where for en and reset the case in Terre Haute. See 28 ed decision federal death row ¶2 (directing §§ banc consideration. 2243 U.S.C. having cus- against person

writ to run Savings and Section III. The Clause detained). argued tody person of the He to do so virtue of that he was entitled re- 2255(e), treatment of the Our most extensive of section the last sentence savings clause and lation 2255’s for a writ of habeas between permits application ruling. post at 1148. See appears agree posi- with the review of such 5. The dissent required lawyers ruling part tion that Webster’s were the law We have treated ruling accept the Fifth Circuit’s that section case, recognition of its unre- both in underly- 2255 addresses innocence respect for our sister viewability and out of crime; ing note section circuit. 2244(b)(3)(E) any right to further cuts off decisions). statutory All of appears Davenport. Supreme Court section There, hold, nevertheless, petitioner had been convicted of these decisions during the use of firearm the commission there must be some kind of structural offense, in violation of drug 18 U.S.C. problem with section 2255 before section 924(c). Davenport, 147 F.3d at 607. Af- words, 2241 becomes available. other his first ter he had filed motion something more than a lack of success Court held that section with a section 2255 motion must exist be firearm, possession mere of a under the (Our savings fore the clause is satisfied. read, as it then did not amount to a statute dissenting colleagues throw the en Bailey v. prohibited “use.” See United began tire line of cases that with Daven States, U.S. window, 1151-54, out port post (1995). Circuit, L.Ed.2d Seventh position essentially their savings reads the circuits, as well as its sister had not con- 2255(e) clause of section out of the statute. restrictively. “use” so strued term willing step.) We are not to take that however, Webster, Davenport Like was Garza, “something we found that un- filing barred from successive motion der 2255 he had new more” in the form of an intervening neither evi- deci- dence of innocence of the offense nor a sion of an international tribunal. Juan new ruling. constitutional .Court Garza had been sentenced to death in fed- It would have been futile for him to have 848(e). eral court under 18 U.S.C. After point raised this in his first section 2255 exhausting appeals both his direct and his motion, the law squarely against as was opportunity for collateral relief under sec- him. We therefore held that section 2255 2255, tion petition Garza filed a with the inadequate within the meaning of sub- Inter-American Commission on Human (e) part and that Davenport could raise his case, Rights. reviewing 'After claim Davenport, under section See Commission concluded that the introduc- 147 doing, F.3d at 610-12. In so we said tion of evidence of murders in Mexico— that whether inadequate section 2255 is or crimes for which Garza had never been depends ineffective on whether it allows charged necessary predi- but which were petitioner “a reasonable opportunity to cates to his death sentence—violated judicial obtain a reliable determination of rights Garza’s under the American Decla- legality the fundamental of his conviction Rights ration of the and Duties of Man. and sentence.” Id. at 609. also recog- We Shortly after the Commission issued its arguments nized that addressing “the fun- report, corpus peti- Garza filed a habeas legality damental could [a] sentence[']” tion under section in the Southern entertained, just not those attacking Indiana, District of place of his incar- conviction. Id. argued ceration. He in that petition that cases have followed Davenport, Later by treaty United States was bound to albeit with emphases. somewhat different abide the Commission’s decision. Con- Garza, Compare 253 F.3d at struing petition Garza’s as an unauthorized (7th Caraway, Brown v. 719 F.3d 583 Cir. effort to file a successive motion under 2013) (both with a broader understanding), section the district court held that it Unthank, at Tay 549 F.3d jurisdiction lacked to decide the case and lor, 314 (inadequacy F.3d or ineffec dismissed the action. only petitioner pres tiveness exists when a

ents a claim of actual might appealed ruling innocence and Garza that unfavorable exist for claims related to retroactive court. We identified two issues first, We therefore think it best to whether statute. to be resolved: that had savings holdings appropriate those as 2255’s understand for section qualified Garza bring a enabling him to of the law to the facts before clause, thereby applications second, 2241; under section the court. petition available, was enti- whether he

2241 was legislative history, the Pointing to some by recognizing began We tled to relief. argues in this case Con government petition fact that Garza’s that “the mere permit savings did not intend to gress petition as a successive be barred would anything used for other than clause to be bring enough ... § 2255 under underly innocence of the claims of actual clause; savings 2255’s petition noting It that this ing offense. is worth Congress otherwise, careful structure the position contention is inconsistent with filings repetitive to avoid has created General took Persaud the Solicitor Garza, nothing.” mean little or See Brief for United v. United States. however, concluded, F.3d at 921. We ,— States, Persaud v. United U.S. States operation “the in rare circumstances -, 188 L.Ed.2d absolutely rules petition [would] successive (2014) (mem.), In Per- 2013 WL 7088877. having from ever petitioner prevent[ ] saud, question was whether certain challenge raise a opportunity an qualified predicates felonies prior Id. at 922. legality of his sentence.” pursuant enhanced sentence U.S'.C. case, presented such conclud-r Garza 851(a)(1). As the Solicitor General’s merits, that the we decided ed. On it, question presented “The here put brief advisory only report was Commission’s entitled to chal- petitioner is whether support the relief Garza and thus did not by way of a lenge sentencing the error sought. corpus under petition for a writ habeas one illustration of a thus offers Garza courts held 2241. The lower 28‘U.S.C. petitioner in which a was entitled situation not available be- that Section was section savings clause to use his sen- petitioner challenging was cause sentence, though a even 2241 to attack That rather than his conviction. tence a claim of actual innocence making was not at *13. The holding is incorrect.” Id. fact, In it would be more of the offense. Supreme noted that the Solicitor General latter making for someone difficult spoken on when the motion has not Court section argument, kind because inef- “inadequate 2255 is or under section 2255(h)(1) in- guilt or expressly addresses presented circumstances fective.” the offense and sets out nocence of Persaud, continued, the sav- in the brief pe- that a successive evidentiary standard though the ings is available even clause enough to ex- tition must meet. That is sentence, not to the challenge is to the Taylor, we held plain why, Unthank and Re- underlying conviction. Id. at *18-19. were not entitled petitioners the' Supreme Court point, to that sponding It is true turn to section and remanded judgment vacated the gener- describing Davenport we used more further appeals “for case to the court read as an abso- language al that could be as- light position of the clause, consideration savings on the but lute restriction in his brief by the Solicitor General serted have those cases did the court in neither of on December States filed for the United particular a argument it an before Persaud, at 1023 2013.” constitutionally forbidden sentence was (mem.). (either action indicates The Court’s law or as a matter of as a matter of narrow a view of not take as fact), just scope it does rather than outside dissenting colleagues custody savings clause as our oner under sentence of court Congress claiming do. established Act of right upon ground to be released government points court the Before this imposed that the sentence was in violation Representatives Report no. to House of the Constitution or laws of the United (part legislative 104-23 of AEDPA’s histo- 2255(a) (emphasis States....” 28 U.S.C. proposal for a ry), provi- which discusses added). language have highlight- stays proposal, execution. The sion on distinguish ed does not between a sentence enacted, that a feder- which was not stated that is unlawful because of a flaw in the stay merely al court could not issue underlying conviction and sentence that prisoner a state files a second is unlawful because of a constitutional or corpus petition, petition unless the habeas statutory pertaining rule to sentences. newly showing facts set forth discovered clause, Moving down to the savings we see guilty petitioner is not of the applies remedy by that it when “the mo- H.R. REP. underlying offense. NO. 104- inadequate tion is or ineffective to test the (1995). 23, at 4-5 It would have barred legality prisoner’s] of [the detention.” Id. go only validity “claims that 2255(e) added). (emphasis again, Once capital go only sentence and claims that the statute-focuses on the detention aas petitioner’s eligibility capital for a sen- whole, not on underlying offense. at tence.” Id. 16-17. 2255(h)(1) Only when one reaches section Putting to one side the fact that Congress does single underlying out the comity respect concerns that exist with so, certainly offense. It was free to do proceedings present are not state-court there would have been no need for the prosecutions, federal we do not find this specification if the rest of section 2255 snippet legislative history to be too (e)) (including subpart already were so lim- 2255(h) helpful. language of section ited. already that Congress makes clear aware of the difference between claims of Second, the fact that the Court underlying innocence of the offense and yet Roper had not decided Atkins relating claims a prob to sentence. The the time AEDPA passed supports us, quite simply, lem before is not one that conclusion that the narrow set of cases Congress contemplated. could have At presenting ineligi- issues of constitutional consideration, the time AEDPA was under bility for execution is another lacuna in the Supreme yet Court had not held statute. In respect it is similar to the unconstitutional to execute either an intel problem we faced in Davenport, where we (Atkins) lectually person disabled or a found the remedy under section 2255 to be Simmons, (Roper v. 543 U.S. minor “inadequate or ineffective” for a case (2005)). 161 L.Ed.2d 1 We which the Supreme definitively Court had thus question open consider this to be an ruled that the per- conduct for which the one, standpoint legislative both from the imprisoned son was convicted and was not history Supreme and that of rulings. Court an offense under the statute. provi- persuade

Several considerations us sions of section permitting successive that in presented the circumstances speak exclusively here motions in terms of con- savings permits clause problems, Webster to re stitutional and so left someone petition sort to a under section 2241. The who wished to show that Supreme a new first is language of the clarifying statute. Sec Court decision aas matter of tion 2255 pris- statutory motions are available to interpretation “[a] that he com- Wiener, speaking of the unavaila- Judge to anywhere without no offense xnitted Webster, spoke bility of section 2255 turn. “Kafkaesque” nature of powerfully of case, is that problem In Webster’s that, to be rule construed procedural has now established Supreme Court clause, savings beyond scope exe- forbids the itself that the Constitution (or could) to an unconstitutional would lead satisfy those who people: cution of certain punishment. disability that for intellectual the criteria view, established, with our disagree and those who If one were to has the Court earlier, ordinary they principles when com- age of 18 stated were below directly all virtually statutory interpretation other lead the crime.6 mitted situations, unlimited savings applies has almost that the clause Congress the result or the penalty, here, step to select the would be to take discretion then the next go along with penalties, purpose fact that a core range into account the selects 20 Congress crime. If a custodian particular corpus prevent habeas is to error that went of some years, but because unconstitutional sen- inflicting from an and an appeals direct through implied, undetected there is Judge tence. As Wiener the defen- under section 2255 initial motion procedural that our no reason to assume there is no doubt years, receives 25 dant act in such a case. system powerless one of constitu- likely 2255(e) it is problem, but read section fairly possible It is have Congress could dimension. tional challenges to both convic- encompassing with, and the years begin chosen 25 that as a structural tions and sentences nothing to com- have had would defendant by use of the cannot be entertained matter about. plain To hold otherwise 2255 motion. Webster’s— perhaps in some lead decided, been Web- If Atkins had never cases— an condoning to the intolerable result argu- left have been ster would Eighth Amend- that violates the execution that he now has new evidence ment a read- to endorse such We decline ment.7 forbid- that the statute would demonstrate statute. ing of the mentally retarded execution of ding the by implemen- violated person would be Application Case to Webster’s IV. U.S.C. of his sentence. See 18 tation no cate that there is Having found 3596(c). that this would can assume We resort to section against bar gorical savings trigger enough not be reveal evidence would in cases where new Atkins, Roper, later were But clause. prohib categorically Court, that the Constitution decided for us to it remains penalty, its a certain understanding of the law. our guide must Suspension the conflict with tion 2255 would position that Atkins takes the 6. The dissent protection nothing the We have never post Hall add at 1152-54. and Clause. See against penalty in 18 U.S.C. the death right to denying Webster the that contended 3596(c). respect, disagree. Col- With Suspen- 2241 would violate section use primarily used for constitu- lateral relief is precisely point: But this is sion Clause. violations, law not violations of federal tional constitutional to reach this we do not have on direct be raised that could and should Congress section included issue picture paints a of the appeal. The dissent framework, 2255(e) al- statutory thus up a of our deci- floodgates opening sion, but, as result question of the avail- lowing us to resolve below, explain in more detail as we statutory ability section 2241 —rather happen. that cannot grounds. than constitutional — savings clause suggests that the 7. dissent application of se'c- available when first, whether Webster presented newly consider has a that discovered evidence use, so, proper case its how we proffered- current counsel existed be- have proceed pur- should from here. For this trial, the time of the and is relevant fore pose, necessary go it is back and com- reason; second, precisely that although (cid:127) pare proffered the evidence he has disputed, the facts are there is evidence enough decide whether has shown to indicating that were not available proceed to the 2241 petition, merits during the initial trial result mis- or at a minimum to have hearing to steps by Security the Social Administra- predicate resolve issues of fact. (We tion, not Webster’s counsel. would We have established thus far that a say too, “not Webster” except person proposes who show he is question whether can be held re- categorically ineligible for penal- the death sponsible for those intimately records is ty, newly evidence, based on discovered general tied to the question of his intellec- may not be barred from doing so sec- dissent, tual post abilities. The at 1150- tion But apply 2255. this rule cannot to all 51, assumes the answer to question evidence, newly discovered or else there it when states that long “Webster has any would never finality capital be cases known” of the missing Security Social evi- involving intellectually either the disabled dence. There is no evidence the record Looking particularly or minors.8 at the any personal Webster had awareness intellectually disabled, it always be evidence, of this much less that he was possible to I.Q. conduct more and adaptive capable of appreciating significance.) its functioning tests in prison. Those new This limitation answers most of the con- bearing scores would have no on the ini- sentence, tial conviction and cerns about though they creating large exception too highly pertinent would be to the ultimate exclusivity of section 2255. It will ability government of the carry out the abe rare where predate case records that sentence. But our concern is with the later, the trial are despite found much former, not the latter. diligence defense, part on the distinguishes

What where those directly Webster’s case from records bear on the just hypothesized the one we are two constitutionality facts: of the death sentence.9 fact, given In Wainwright, majority’s the rule in Ford v. interpretation "open[s] the door to 399, any 477 U.S. proceedings 106 S.Ct. 91 L.Ed.2d 335 that do not abuse the writ— (1986), standard”). Eighth pre-1996 which holds contending, "[t]he so however, prohibits disregards Amendment inflicting array the State from of limita- tions, factual, penalty upon legal prisoner of death both who on which our insane,” ruling' depends. highlighted id. at We there have will least always principal finality why three person finding some lack of reasons our for a savings "prevents whose mental condition clause is available here him from will have a comprehending limited corpus pro- effect on future penalty reasons for the habeas or First, implications.” ceedings. its sought Id. at the evidence 106 S.Ct. 2595. to be assumed, however, parties presented Both have must have existed at the time that the (A higher original proceedings. imposed free-standing Ford standard is than the one claim in Atkins and that an present Hall. We execution would violate Ford v. assume for Wain- evidence, purposes wright might later-acquired that this is correct. involve quite such claim is different from the that, Second, 9. contrary us.) The dissent is concerned to one now before the evidence AEDPA, Congress's enacting intention in our must have been unavailable at the time of interpretation of despite section 2255 diligent returns us to trial efforts to obtain it. Third, pre-AEDPA the standard for successive habe- importantly, and most the evidence (the corpus petitions. post as See at petitioner 1148-49 must show that the is constitution- of intellectual convincing evidence fering for Suppose, Rare, impossible. not, may consis- disability to show that he tries instance, States the United Hall, under a with Atkins and tently capital crime. Texas man in central death. In order to relate sentence of convicted and he is further that Suppose trial, at that evidence cannot findings death, jury’s on based sentenced instead, created; pre- it must be newly oral be acceptance substantial court’s of his intellectual viously existing evidence years he was 19 confirming that testimony uncover de- disability that counsel did not Now crime. he committed old when If in he succeeds spite diligent efforts. he has exhausted that after imagine showing, then he has sat- prima this section motion under post-conviction first facie may proceed clause and savings light isfied comes irrefutable evidence hearing At a petition. a section Germany born that he was revealing merits, to introduce he would need confirms birth certificate and that his government and allow the at the the evidence years old actually only he was here indi- government it. The has (According refute crime. time he committed Association, challenge diligence it cated that would Historical the Texas State counsel; argue it that the that would Mexican-Americans Anglos, “[a]fter actually just cu- allegedly new evidence African-Americans, group with the ethnic mulative; review the earlier that would has been the impact on Texas largest evidence; with the new evi- and that even http://www.texasalmanac. See Germans.” functioning is adaptive dence Webster’s com/topics/culture/german/german-texans.) I.Q. negates that it his low high enough the rela- view of government’s Under (an un- extremely largely rare and our scores 2255 and section tion between scenario, from far as we can tell tested as would be executed defendant hypothetical cases). respond post-Atkins Eighth plain violation despite end, the district points. In the to those Roper. Un- Amendment as described whether, as a matter of would decide defendant is court adopt, der the view fact, constitutionally ineligible under section to be heard entitled penalty. for the death government any hearing, such At challenge the authen- entitled to would be prejudge not want to Although we do certificate; the defen- ticity of the birth mat- of this disposition court’s the district it; and support would be entitled to dant ter, are in order. observations a few the factual court would decide the district question First, we reiterate everything hinges: on which question earlier we described whether the evidence age defendant was below whether the qualifies opinion Part I.D of our . crime and thus at the time of the of 18 Web- contested. Both newly discovered is for the death constitutionally ineligible right to be have government and the ster penalty. presently The record point. on this heard hap- what inconclusive about before-us is At the case is no different. Security Administra- at the Social pened prof- the burden of stage, threshold he has the offense. categories the time of penalty received. these ally ineligible ade- Supreme Court has declared are more than Because the limitations These three (minors persons and the intellec- types two flood of prevent the dissent’s feared quate to disabled) ineligible for a tually categorically way no petitions, and section ruling type punishment, our is as particular the writ the abuse of represent a return to people— that set of of law limited to a matter standard. they fell into one of assert that those who provided performed tion. trial counsel an Webster’s on Webster before the crime'— stating requested affidavit that he records the 1992 test done at the Southeast Arkan- agency from the but that to the best of his sas Mental Health Clinic. Webster’s full- just recollection he never received them. We scale score was then but Webster’s juncture at this whether coun- experts agreed do not know own that he had been un- up, whether there sel never followed was der severe stress at the time test was request, technical with his or if problem administered and so the score was unrelia- deliberately agency accidentally or in- ble. Although other were performed tests (two Finn, by formed counsel records did not Dr. showing I.Q.’s full-scale legal exist. current team re- Webster’s 59 and and an incomplete by one Dr. Parker, quested 72), and received some of the records showing I.Q. a full-scale in 2009. It later realized that the file government argued strongly that Webster incomplete request and sent another for was motivated to underperform on the la- missing A representative records. ter tests because of the risk of the death agency from the told them that it penalty. The tests and estimates from the provide any records, more records and that Security Social Administration however, procedures” “normal had not been fol- were argu- immune from that lowed when partial records had been manipulation. ment about Webster scored year. sent earlier that test; Webster’s attor- 59 on Dr. Hackett’s Dr. Spellman neys interpret that lower; statement as an admis- I.Q. estimated his or sion that produced by the records were Dr. Rittelmeyer commented that Webster accident; other evidence indicates that “mentally the was significant retarded.” It is representative may have been speaking in this respect that Webster trying was not (con- only about supposed pay failure to to obtain Security Social benefits on the again tested lawyers) or a basis of his disability, intellectual and so event, lack of In specificity. any argument Web- manipulation about for purposes ster’s lawyers up current followed with a of benefits would have been weak. He told, request, only

new mysteriously, to be asserted instead that he was disabled from remaining short, records had a sinus condition. I.Q. had the destroyed. been If agency was aware tests opinions Security from the Social underway active efforts were to obtain file been' experts available to the at the them, trial, this is troublesome indeed. But our jury, court, and to the district point main here is that do not know their assessments of may have important details.10 been different.

Another issue that the court will Equally importantly, need to Security the Social explore significance is the of the records. records shed additional light on Webster’s As Part I.B opinion of our reviews in adaptive functioning. New counsel found detail, good there was a deal of evidence evidence that everyone’s contradicted as- about intellectual disability at sumption the -trial: at the trial that Webster had Finn, Drs. Keyes, and Fulbright for the lying been when he said that he was in defense, and Drs. Parker special and Coons for education If it classes. had been government. evidence, however, That truth, clear that telling he was or even I.Q. included one test that objective had been if supported evidence had 10. points, dissent’s discussion of evidentiary hearing these need we contem- 1150-51, post at assumptions rests on factual plate. that are merely highlights contested. It assertion, jury problems government’s district as well with the the and the court poor adaptive evidence of of may functioning. have viewed Webster’s school Some class, government’s straight evidence performance, sleeping drop- in came laypersons, in a from who said grade in the 9th different more or less ping out “he to me.” used light. seemed fine It also experts, of its experts but neither adminis- level, government general At a more any accepted func- adaptive tered kind of this case as the reverse one treated tioning opinion. before his reaching test Court Hall v. Supreme discussed Hall, I.Q. pointed dangers In defendant’s We have often out the Florida. relying but Florida re “common when social score was courts sense” assumptions him to science that fused to allow introduce evidence of reveals common wrong. are we noted in functioning that have As United States adaptive (7th Williams, Cir.2008), intellectually shown him to be disabled. v. 522 F.3d case, virtually I.Q. eyewitness all of the context of a discussion of Webster’s identification, range problem him in with ‘common put “[t]he scores mild to disability, experience but sense’ is that tells us what moderate intellectual (and government argued strongly both the leads to about whether we have confidence a jury persuaded) given person court and the that seen before does were adaptive functioning good enough provide ways his was whether reliable test o not, fact, justified. confuse People demonstrate he was s confidence is (It accuracy certitude are led disabled. is some interest that the with and so adaptive functioning astray. Psychologists evidence of that the have established It in Hall often is Court criticized looks certitude unwarranted. much like the that the takes data rather than intuition to answer very gov evidence ‘can foot- Although questions ernment used here. there was such as non-uniform ” in a gear lineup evidence that Hall had lead misidentification?’ substantial been life, 811; at also United v. Bart- mentally retarded his entire trial Id. see States (7th Cir.2009) (“That lett, suspicious 567 F.3d “[njothing court was fallibility of jurors could about experts explain which the testified have beliefs [the memory] expert not make evidence psychotic, mentally-retarded, how a brain- does irrelevant; may make learning-disabled, speech-im contrary, damaged, Frank, vital.”); paired person plan could formulate such evidence Murillo (7th Cir.2005) (no social a car was and a 402 F.3d whereby stolen conven Hall, proposition was science ience store robbed.” S.Ct. verification 1991.) reliability emotionality enhances statement). principle That here applies at the Looking adaptive trial evidence what thing It well. is one describe functioning solely purpose of as- believe, layperson, and to as a did much sessing how of a difference new I.Q. his tests these acts revealed that make, note that might evidence there functioning; it intellectual understated his at the outset. All was some consensus quite qualified professional for a another agreed that Webster’s verbal abilities exists. discrepancy to test whether such relatively at least terms of strong, were testimony correlat- His There no at trial spoken communications. written questionable, ing day-to-day more skills work was the So- I.Q. suggest- that his tests Security person age cial who intellectual records reveal government, at oral barely literate. were ed. for the And there other Counsel argument, pointed ability to havior skills in the main categories three area, come to the Dallas to lie being about social, of conceptual, and practical life door, agent F.B.I. at Lisa’s to travel skills; Scale, Supports Intensity and the Bluff, dig grave back to Pine in which is used to person determine what a advance, her, kill bury and to as evi- independently. needs to live competence. dence of his But as we have This evidence may may carry or not out, just pointed lay opinion. that is a Dr. day Webster, but we believe that Finn put age Webster’s mental at some- qualify does as the kind of “clear and where between six and seven. Common convincing” evidence that would be re- experience age shows children of that quired to earn a hearing we were evalu- can quite things: they lie; do a few can ating new factual guilt evidence of or in- they event; plan can an immediate 2255(h)(1). nocence under section We carry can out Keyes instructions. Dr. tes- therefore do not need to decide whether tified that the results of the Vineland test standard, that is the correct or if a lesser performed showed that Webster’s showing would suffice. adaptive functioning level was consistent I.Q. with his govern- low scores. The experts conclusions,

ment’s offered lit- Concluding V. Observations tle in way of reasons for their conclu- petition filed his section 2241 sions. incarcerated, the district where he is as 28 government also relied on the fact §§ U.S.C. require. and 2243 complained on one occasion Supreme Court held in v. Padil- Rumsfeld that he received the wrong change from la, 542 U.S. the commissary. But studies indicate that (2004), L.Ed.2d 513 that this is the one and adults with mild retardation can learn the only proper venue: paying essentials of George bills. See S. Gregory Olley, J. Baroff with Mental The federal habeas straightfor- statute 'Manage- Nature, Cause, Retardation: wardly provides that proper respon- (3d ed.1999) ment 308-09 (citing La- John dent to a petition habeas person is “the Campagne & Ennio Cipani, Training who custody has petitioner].” over [the Adults with Mental Retardation Pay 2242; (“The U.S.C. see also Bills, (1987)). 25 Mental Retardation writ, or order to show cause shall be ability squirm through the directed to person having custody of bean chute to reach the women’s section of detained”). person The consistent the detention may center also may or use of the definite article in reference to be consistent with the behavior of a seven- the custodian indicates that there gen- year-old government’s child. The experts erally only one proper respondent to a did not any recognized use methodology to given prisoner’s petition. habeas This connect those dots. And that is not be- custodian, moreover, person” is “the cause there are no measurement tools. ability with the produce prisoner’s Several well-accepted adaptive-functioning body before the habeas court. Ibid. tests are available: the Vineland Adaptive 434-35, Behavior used, Scales that Dr. Id. at Keyes 124 S.Ct. 2711. Webster’s which primary is for caregivers Daniels, and others custodian is Charles A. the war- familiar with person, rather than den of the United States Penitentiary in person; Diagnostic Haute, Adaptive Be- Terre Indiana. Terre Haute lies Scale, havior adaptive measures be- within the Indiana, Southern District of Webster, however, is not under section detainer. chal- petition and so Webster’s lenging by anyone that district. his detention other than filed in properly 2241 was Haute, the warden at Terre and so it obviously requiring are There costs only permissible follows that the respon- question into the court to delve new dent is Warden Daniels. (or disability lack intellectual thereof), years after 21 the com- although This no also means that there is other court in advantage district, district parative judicial from a venue standpoint, has inevita- Northern District Texas “might in which the claim have been remain faded. But whatever costs are bly brought,” that term used gen 1404(a). nothing price statute, than the limita- more eral venue 28 U.S.C. by motion under section power tions relief court thus no district has under passed, statute was Con- 2255. When that that statute to transfer the case either on courts only relieved the district gress upon its own initiative or of motion (Section 1406(a) federal were lo- major prisons where party. inap either is also heavy load for petitions cated from a of plicable, nothing wrong because there is relief; it the effi- also enhanced collateral with the in pro district which Webster is by assigning ciency system these ceeding.) If both Warden to the who familiar with judges cases were Daniels to to a were consent transfer to Nonetheless, district, the Fifth Cir- the records. they might another have an en has that current cuit decided agreement forceable that the court could falls scope action outside section implement, by analogy to choice-of-forum 2255(h), no quarrel and we have with that Atl. agreements. See Marine Constr. Co. means, Texas, That for better or for assessment. v. U.S. Dist. Court Dist.W. for — worse, remaining U.S.-, that the work on Web- 187 L.Ed.2d S.Ct. (2013). by case must be conducted dis- ster’s that only thing seems trict court for the Southern District of any in clear is that the absence such consent, stay Indiana. in the case must Indiana. knotty problems That result also avoids say “must,” because we understand We appeal. that if is another could arise there only proper that the Padilla hold dis- authority We have no over district prisoner’s trict is the one containing Texas, court in the Northern District why, despite immediate custodian. That is the Fifth Circuit. 28 which lies within initially the fact that Padilla was detained That put 41. court would be U.S.C. York, in the Southern District of New once least, say the if it position, an awkward him the President had moved South out a responsible carrying were for Sev Carolina, district in which his any appeals with enth Circuit mandate corpus petition brought habeas could contrast, Fifth In going Circuit. District South Carolina. Bra- (as case stays Indiana believe v. 30th den Judicial Circuit Court Ken- must), appeal, there be a new it will should tucky, U.S. S.Ct. straightforward be a matter this court (1973), contrary. L.Ed.2d 443 is not to the court has to decide whether the district peti- with It dealt a situation in which mandate. properly carried out our (then Alabama) tioner incarcerated therefore, summary, In we hold challenge wanted future detainer is- situation, matter In not barred as a of law Kentucky. sued the Webster is' held, seeking from relief under section Court the effective custodian was necessary, Kentucky, it was Further are how- proceedings the source of the ever, before the court can reach district. that Webster is entitled to relief from the corpus petition. the merits of his habeas penalty. death This is the relief that Web a hearing The district court must hold requested ster petit his section 2241 deciding purpose whether the Social happens ion.11 As with writs issued on Security records were indeed unavailable behalf of prisoners state under 28 U.S.C. to Webster and his counsel at the time of give the writ should prosecutor considering (here, General) the trial. that question, the Attorney a reasonable district court period must also evaluate trial coun- within which appropriate to take concludes, diligence. sel’s If the court light action in Any of the writ. such ac lawyers tion, urge, the records including judgment, correction of the diligence were unavailable and all due was would properly occur in the court exercised, (the and that Webster has them now judgment entered the and sentence fluke, only because of a then it must turn Texas), Northern District of which would petition: merits of the is Webster responsible so be for further sentencing pro intellectually categori- disabled he is ceedings in opinion line both this cally ineligible for the penalty death If, the district court’s order. on the other hand, Atkins and Hall? Webster fails to show that he has met the requirements Atkins and Hall Both government and Webster the Indiana proceedings, then the writ would be entitled at a hearing to offer should be denied. determination; evidence relevant to that Webster is not limited to the record before judgment The of the district court is court, original trial there is no reason Reversed and the case is Remanded for to impose government. such a limit on the further proceedings consistent with this Webster, petitioner, as the bears the bur- opinion.

den proving disability. intellectual If he gets far, EASTERBROOK, this what prac- this will be as a Judge, Circuit BAUER, tical partial KANNE, SYKES, matter is a whom sentencing new TINDER, hearing. stage, At this later proper Judges, join, Circuit dissenting. burden proof preponderance is a Bruce Webster a group led that perpe evidence, not “clear and convincing” evi- trated a horrific kidnapping and murder. (The-'latter dence. standard serves as a opinion affirming his conviction and gateway to hearing; wrong would be death provides sentence details. United twice.) to apply it Finally, our mandate Webster, (5th States v. 162 F.3d 308 Cir. does not any extend to other issue that 1998). Webster, See also United States v. years. Webster has raised over the (5th Cir.2004) 392 F.3d 787 (denying a particular, we have found no reason to expand motion to the issues reviewable on question revive the of the abuse he suf- appeal 2255); § under 28 U.S.C. United fered as a child. Webster, (5th States v. 421 F.3d 308 Cir.

If 2005) the district court concludes Web- (affirming a decision denying relief ster meets the requirements of 2255); Webster, § Atkins and under In re 605 F.3d Hall, (5th Cir.2010) then it should issue the writ stating 256 (denying application Indiana, 11. This does not create a conflict with the any ruling upheld and if such on Fifth Circuit. That court, court ruled that it could appeal in this then the mandate will evidence, not even consider Webster's new give sentencing court clear and uncontra- 2255(h). because of the limitations in section dicted moving instructions for forward. If Webster wins relief the district court in

1147 majority gives opportunity Webster that collateral pursue a second permission cir- attack). in a new district court and a new cuit, setting up among a conflict federal I designed pre- 2255 judges. Section that, prudential vent considerations appro and the guilt, Although Webster’s against circuit’s dis- also militate one capital punishment priateness another case. agreeing with in the same crime, undisputed, sentence “[a] are Op- v. Colt Industries See Christianson per upon carried out shall death 800, erating Corp., 486 108 S.Ct. U.S. A mentally retarded. sentence who is son (1988). 2166, L.Ed.2d 811 upon a not be carried out shall of death who, mental disabili result of person my According colleagues, 28 U.S.C. capacity to understand the mental ty, lacks statute, 2241, general habeas-corpus imposed why it was penalty the death despite to a hearing entitles Webster new 3596(c). person.” U.S.C. mental the fact that his condition has been was in effect when Webster statute That 1948, already. when adjudicated Until tried and sentenced. under Congress litigation enacted es later held the Constitution Court permissible, pro- § 2241 would have been rule, v. Vir the same see Atkins tablishes it was not of the writ. vided abuse 2242, 153 536 U.S. S.Ct. ginia, (That rely new on new lawyers - Florida, (2002); Hall v. L.Ed.2d 335 proceeding evidence means -, L.Ed.2d S.Ct. U.S. an abuse of the not have been classified as' (2014), no decisions are these McCleskey pre-1996 law. See writ than the stat- to Webster more favorable Zant, 1454, 113 499 U.S. ute, controlling unchanged. the law is so (1991).) § 2241 cases 517 But L.Ed.2d n Whether confined, prisoner where the is proceed “retarded” 426, Padilla, 124 sen- v. 542 U.S. at his trial and see principal issue the Rumsfeld (2004), 2711, 159 which short- L.Ed.2d 513 He raised his mental S.Ct. tencing. as factor, a risk of outcomes and four creates inconsistent mitigating as a comings high probability litigation of his cul- well as a they mitigate jurors found (most are prisoners jury multiple unani- courts federal the still voted pability, district). sentencing the The outside capital punishment. confined mously for 2255, § why Congress days, That’s enacted sentencing hearing spanned 29 put post- all function is to principal The district whose abundant evidence. court litigation in the district retard- found that Webster is not conviction judge 3596(c) case, only matches the which not § that tried meaning the of ed within the possessing to the litigation Fifth Cir- the court him to death. The sentenced only one court af- but also ensures that and later record affirmed on merits cuit will be See United denying appeals of involved. a district court’s decision firmed 214-19, Hayman, 342 § to re- U.S. under 2255 addressed States petition (1952); retarded, John J. 96 L.Ed. 232 Webster is tardation. If Parker, Habeas Limiting Abuse Wheth- ineligible penalty. for the death of (1949). Par- (Judge F.R.D. Corpus, determined he is retarded has been er that drafted chaired the committee hearing, review ker collateral after 2255.) § principal A enacted multiple proposal What appeals. § prevent the 1948 enactment was op- goal another of now wants is still today author- majority exactly The what litigate question. portunity (AEDPA), unseemly of federal limits to one spectacle “the the number izes: trying pro regularity courts a prisoner may present, district collateral attacks juris ceedings had in courts of coordinate § unless conditions 2244 and U.S.C. Parker, 172-73. 8 F.R.D. at See 2255(h) diction”. § can be satisfied. Holtzoff, Review also Alexander Collateral The Fifth Circuit concluded that Courts, in Federal 25 B.U. Convictions statutory conditions have not satis- been (1945). L.Rev. law changed, fied. Substantive has not so part approach, Congress As of the new 2255(h)(2) § does not authorize another codified language enacted now and the simi- proceeding, reports three are 2255(e): § “An a writ application for lar in nature to other presented evidence corpus prisoner in behalf of a who habeas hearing, at the means that do by apply is authorized to for relief motion by convincing not clear “establish evi- section, pursuant to this shall not be enter- no dence that reasonable fact-finder appears applicant if it tained has have found” Webster Rea- death-eligible.1 motion, relief, apply by failed to for judges disagree sonable could what about him, court which sentenced or that such reports effect three might have had— relief, has denied him unless it court also Wiener, Judge though even whose concur- appears remedy by motion is inad- reservations, ring opinion expressed equate legality or ineffective to test the thought court’s application his detention.” 2255(h)(1) § correct —but it does mat- not § “inadequate When is or ineffec- ter the Fifth right, whether Circuit is be- to test legality” tive sentence? 2244(b)(3)(E) provides cause “[t]he majority concludes that 2255 is “in- grant of an by or denial authorization adequate or ineffective” because does appeals court of to file a second or succes- allow present particu- Webster to application sive shall appealable not be argument lar he now wants to make. Af- subject shall not petition be of a discovering three

ter mental evaluations in rehearing or for a writ of certiorari.”' Security files, Social Administration’s That asking can’t avoided a different per- Webster asked the Fifth Circuit circuit revisit the issue. to mount another mission' collateral attack. no, 2255(h), majority It said which was circuit concludes in part enacted 1996 as that the of the Antiterror- because Fifth Circuit held that the Penalty ism and Effective statutory Death Act conditions for un- another review 2255(h)(1) reads, Ml, 2255(h)(1) "newly § 1. Section authorizing peti- dis- as a successive that, shows, proven evidence newly covered and viewed tion when discovered evidence whole, light of the evidence clearly convincingly, as a would be that trier no rational by to convincing thought sufficient establish clear and given of fact could have person that death-eligible. disagreed evidence no reasonable factfinder would The Fifth Circuit 256, guilty have found the movant understanding, offense". with that 605 F.3d do Hope applies I not think that "the capital offense” limits au- held litigation that to too. guilt. new Although thorization to evidence the majority opinion about It Web- states cases, non-capital that effect in Hope has v. ster’s evidence meets the "clear and convinc- States, (7th Cir.1997), 1144-45), ing” (op. United 108 F.3d 119 standard if so Sawyer Whitley, permission but 505 U.S. 112 led should have for a second (1992), S.Ct. 120 L.Ed.2d 269 Su- collateral attack § under preme 2244(b)(3)(E) person Court held that a can by § be "inno- forbids that kind of review (And penalty" independently cent of the death another court. for out reasons I set later, Sawyer predates innocence of the crime. not think I do that is Webster's evidence AEDPA, convincing”.) so it is most sensible understand "clear and

1149 attack in a unmet, § will be is “inade the successive collateral § 2255 2255 are der district court and circuit. pro can different and Webster or ineffective” quate so, § this then the If is under ceed Webster, in particular, The reason can’t have the basic amendments undone 1996 2255(h) matter; § not meet should in 1948 and allowed established structure different, petitioner have a case- next will country. all over the litigation successive 2255(h) § reason al- specific why does not post- reducing number Instead petition, majori- under low another set proceedings, Congress conviction prisoner that can ty’s logic too resort do, changes opened have out to My colleagues say § 2241. Consider: not proceedings that do any the door strong case especially Webster’s is pre-1996 standard. abuse the writ—the present wants to ex- the evidence now States, U.S. Sanders v. United See (op. and sentencing isted before trial (1963). 1068, 10 L.Ed.2d 148 S.Ct. 1140-41). But his claim wouldn’t be even at explicit this lawyer was about Webster’s if the about stronger evidence his mental panel, though argument before even post-dated sentencing? condition New amendments principal goal of one a changed jus- condition better evidence list of replace was to Sanders a closed hearing tifies a new than old evidence of further re conditions that allow collateral unchanged an condition—for condition banc, en argument view. At the predated the trial could been have new lawyer proceedings contended § litigated through at trial permissible § 2241 whenever under are year, change filed within a while a petition justice require.” language “law and That been of mental condition could have ¶ § has from 8 and comes 28 U.S.C. argument a new litigated earlier. And nothing to do with the number and location newly on created evidence of an based attacks; instead it of allowable collateral (for a new unchanged example, condition crafting proceed tells courts how to when analysis independent ex- by test and has petitioner prevailed relief after a stronger, also would be defini- pert) merits. presented it could not have been tion good matter the accused’s trial no how going My colleagues deny they are lawyer. far, but what their decision so that’s template, any crea Using majority’s They particulars means. stress situation, unusual, turning judge tive can find a reason which are de way. appeals in its We 2241 whenever a court every unique case is own 2255(h) facts law. cides that blocks successive begin must not with but with statute. And because is that a motion statutory rule successive holding prison prisoners when federal permissible only collateral attack 2255(h) Indiana, By met. under sentence of death the conditions of are say 2255(e) claiming the final effectively § authorize collater- circuit is using to more every propriety federal death are not about the of al review because those conditions met, legisla- 2255 enacted majority the has reversed the sentence. Section to the district court part prevent has made 1948 tive decision of 1996—-indeed reviewing from prisoners are held legislative and reversed the which things worse cir of district court and a suc- the decisions of because until 1996 decision occurred. Par prosecution cuit where the attack would have been cessive collateral circuit, ker, Limiting Abuse Habeas Cor original in the district court and of Today’s decision Sanders, F.R.D. at 172-73. today’s pus, after decision 8 see while 1150 trial; the law of collateral review to the crime and its rules remain in force.

reverts § multi-jurisdictional that 2255 mess was Nor does Webster contend that his mental designed changed. to eliminate. condition has Instead he wants § to use 2241 make a better factual to Treating limits on second the 1996 or. arguments place record and to before § proceedings making as 2255 successive circuit, hoping different for a better result. inadequate, authorizing proceed- and thus desires, are, they These understandable as path § this court ings is a has question adequacy do not call into or pursuing Davenport, In re been since n § 2255:' effectiveness of Cir.1998). (7th also, e.g., See F.3d (7th Lappin, 253 F.3d 918 Cir. Garza majority analy- What the calls a textual 2001); Caraway, 719 Brown v. F.3d 583 1138-39) (op. sis relies not on the text (7th Cir.2013). Today’s decision extends 2255(e) 2255(a), § § the text of but on changes cases of law to newly those from says § that as a whole covers words, other discovered from evidence—in sentences as well as convictions. how Yet 2255(h)(2) 2255(h)(1), § § treating to both 2255(e) § can justify using escape 2255(h) making § § parts as 2255 as a 2255(a) § altogether? from 2255 Section inadequate ineffective. whole or Web- why § is Webster was able to use 2255 to majority ster’s case has attributes (to make court in district Texas 9), emphasizes (op. 1140-41 n. as Circuit) the Fifth an argument that he is Garza, Davenport, extension of and Brown ineligible punishment. for capital That he opinion treated cannot be ticket argument, made such an it re- only. good for Webster’s train merits, solved on cannot show ineffective; § inadequate 2255 is or it Davenport and its successors discuss shows, contrary, is the statute may justify a circumstances that federal comprehensive. majority’s position § use of prisoner’s validity test the 2255(a) §if would be stronger excluded his conviction or sentence. These deci- sentences; attacks on then a prisoner change law, hold that sions when § would indeed to use pursue need retroactively applicable, shows that effective collateral review. But that’s not prisoner did not commit a crime or has § how 2255 works. sentence, illegally high § received an is available would be impos- otherwise majority repeatedly invokes Atkins to implement sible the Supreme Court’s explain they and Hall but not why does intervening Congress ruling. ap- did not justify a successive collateral attack. pear contemplate possibility of ret- Webster they does not contend that en- statutory roactive decisions that show a large persons ineligible capi- the set of (§ 2255(h)(2) prisoner’s being innocence punishment, tal it is why so hard to see law). limited to new rules of constitutional states, majority op. 1138-39 & n. what Davenport justifica- That’s treats as difference make a purpose for invoking

tion 2255(e). True, Court has Davenport 3596(c) and its successors conclude held that the part rule § 2241 provide the full available Constitution as well as the United contemplated by retroactive effect the Su- States Code. But Atkins and Hall do Court. preme But is not alter the substantive standard. Section beneficiary of a retroactive decision that 2255 enforces statutes as well as the Con- States, cannot be implemented except through stitution. v. 417 See Davis United 3596(c) § 2241. predates Section his U.S. 94 41 109 S.Ct. L.Ed.2d could, (1974). any) original counsel encountered can why That’s Webster argu- did, ineligibility § his review of be blamed on 2255. obtain for no basis § 2255. There’s ment under Security would the Social records Nor review when another round collateral line facilitate new of defense. Webster’s unchanged. How rule is the substantive had, introduced, other trial counsel “inadequate or ineffective” § can 2255 be physicians diag- in which medical records that Webster present argument line before the murder. nosed retardation re- and on which he actually presented, jury him enabled to ask the These records on merits? a decision ceived trying not started to infer that he had more, the evidence that Web- What prosecution examiners after the deceive helpfully introduce cannot ster wants to re- began. prosecutor could and did has “newly called discovered.” than a ply that there were reasons other own it. It concerns his long known of why death penalty desire to avoid the disability Security application for Social IQ poorly Webster had done some application; He knew about that benefits. disability benefits Trying tests. obtain his he knew that mental condition reason, have been one such so the his part application; of that been tested as now that current counsel wants to evidence (as lawyer things at these too trial knew subject to use have been much the could mother, subject who did his mentioned response prosecutor as the made to same have testimony); her and would during sentencing. the records introduced records in possible been to retrieve the § 2255 the trial and during time use not But we need decide what effect the proceeding. might have had the hands SSA records legal current team asserts Webster’s lawyer; enough it is top-notch of a lawyer former stonewalled that his the to-and-fro between the conclude that records, but trying to obtain these when legal current government and Webster’s lawyer himself that is not what former hint problem team not at a structural does said. He related that asked the Social problem, any, § in how in 2255. The lies Administration Security rec- searched for legal former team any response memory ords lacks yet no one contends evidence— that he must have therefore assumes of ineffec- inadequate to resolve claim assumption been denied access. Yet that assistance, that matter a claim tive or for is unfounded. Former counsel did has been withheld that material evidence (he longer says that he no produce file Maryland, Brady violation of it) any did has and therefore not have 10 L.Ed.2d U.S. (if request any) records about (1963). con- hear and resolve those Courts (if any); only a lack of response he has daily. tentions under pretty weak. go recollection to on. That’s by recasting §make 2255 ineffective can’t be that for- One sensible inference would Brady or claim as an ineffective-assistance counsel, on his be- investigator mer or sufficiency evidence. one about half, through. Cur- simply did not follow what- had not obtained That trial counsel less than rent counsel obtained records was known the SSA held ever records asking, though after four months even or present an ineffective-assistance time to disability many is an old one and case pro- during claim one Brady long-term stor- records had been sent (if right. as of ceeding allowed age. None the difficulties there were 1152 Sanders), mon law discussed would vio-

II Suspension late the Clause Constitu- extending Davenport, Instead of (Art. 2): §I Privilege tion 9 cl. “The premises. Davenport should reexamine its Corpus Writ Habeas shall not be only § inadequate as treats 2255 suspended, when in unless Cases of Rebel- 2255(h) multiple § rounds of post- blocks Safety lion public may or Invasion the Davenport thought judgment litigation. require prisoner that a should be entitled to one it.” The first time claim under issue, litigation Court, per § round of and if the Supreme 2255 reached the it was time-and-number limits enacted in 1996 from appeals’ on review a court of decision every having prevent issue from its own holding just appeals that. The court of opportunity collateral review after ignore had instructed district court reinterprets a criminal Supreme Court § § proceed 2255 and 2241. But under statute, in- this demonstrates statute’s Hayman reversed and directed all federal adequacy. Then Brown allowed resort to judges § Along way, to use 2255. § 2241 Supreme when the Court an- § pose Court concluded that 2255 did not understanding nounces a new Sen- problem Suspension serious under tencing Davenport Guidelines. has some It also the language Clause. treated now circuits;2 in other support Brown has 2255(e) § safety found in as a valve: none;3 majority does not contend § application some 2255 would conflict today’s extension of those two deci- Clause, Suspension with the a district sions to situations in which there been has proceed § could court 2241 without change any support no of law has else- any § need 2255 hold unconstitutional. where. 223, 342 U.S. at 72 S.Ct. 263. step and ask what func- We should back The Supreme Court has never held that 2255(e) § tion serves. Is it to ensure an “inadequate 2255 is or ineffective” under post-convic- unlimited number of rounds of any review, Hayman circumstances. Since it each has long presents tion as as round (or 2255(e). question only a new light new on an old one occasion to discuss question), Congress enacted, or does it serve a different func- litigation the Dis- Court, According Supreme tion? it courts, trict of local a provision Columbia’s serves a different very function—a differ- 2255(e) similar to blocked not ent function. use of habeas corpus also resort to the (other judiciary federal than the

§When 2255 proposed, people some States). Court of the United A prisoner objected litiga- all collateral moving court, legislation attacked this sentencing tion to the violation of creating (even Suspension some relitigation relegated limits the 1948 Clause because it that, §of version 2255 did as did prisoners the com- judges courts staffed who Jones, 328, Compare banc). 2. In re 226 rehearing Every F.3d 333-34 the denial of en other (4th Cir.2000); Reyes-Requena v. United. circuit that has considered the issue in Brown States, 89.3, (5th Cir.2001); 243 904 F.3d disapproved position. has of this circuit’s Smith, 6, (all (D.C.Cir.2002) In re 285 F.3d 8 Warden, U.S.App. See Garcia v. 2014 LEXIS Anderson, following Davenport); v. Prost 9, (3d 2014); Scism, Selby Cir. Dec. v. (10th Cir.2011) 636 F.3d (disapprov- (3d Cir.2011); Fed.Appx. Brad ing Davenport). Warden, (5th 660 F.3d Cir. ford 2011); States, Gilbert v. United 640 F.3d acknowledged going Brown itself that was (11th Cir.2011) banc). (en 1311-12 against two other circuits. F.3d at 588. (opinion concurring See also id. at 596-600

1153 III, any potential problem a court from the Article and under Sus- lack under tenure pension court re That it has held that a federal Clause. served its appeals of writs of habeas purpose imply entitled to issue as insurance does not that mains in Hayman, § 2241. As the corpus give under it new My should work to do. reversed, sustaining the Court say my reading do colleagues that 2255(e) for collateral attacks. procedure new § and origin scope wrong; the is 372, S.Ct. Pressley, 430 U.S. 97 Swain v. the instead choose hot to discuss sub- (1977). 1224, And, 411 as in L.Ed.2d function, 51 genesis, section’s treatment “inadequate the the Hayman, Justices saw by Supreme Court. the escape designed hatch as to or ineffective” that majority maintains it is con- remedy that the does not violate ensure 2255(e) § to struing according princi- 381, at 97 S.Ct. 430 U.S. Constitution. ple purpose corpus “that a core habeas 1224. inflicting is to custodian from prevent a an face, therefore, to question we need 40). (op. unconstitutional sentence” 1139— § the 1996 to 2255 is whether amendments trial, But at opportunity Webster had Suspension by limiting Clause violate 2255, § and another on review under to the circumstances under successive that his sentence is invalid. Mul- contend are That is not proper. collateral attacks authorized, tiple litigation used to when question, this circuit difficult nqt writ, it but- with the did abuse 20 years ago. resolved almost After 2255(h) §of in 1996 it is no enactment history of the writ of habeas tracing (or any) longer a “core” function of collat- Suspension corpus, we held that opportunities to eral review offer extra protects the “Great Writ”— Clause litigate subjects already that have been is, pretrial the writ used to contest addressed. Col detention the Executive Branch. fundamentally argument is by a following lateral review conviction jury, judge, the trial Fifth jurisdiction not ex-' competent did court got wrong, the facts Circuit Century, and we ist until Twentieth opportunity allowed an to reliti should be e to limit Congress held that is free th “Getting gate with more evidence. provide to which federal courts can extent wrong” not a of collateral ground facts is post-conviction collateral remedies. Lindh See, § § relief either 2241 or 2255. under (7th 856, Cir. Murphy, 96 F.3d 867-68 Collins, 390, e.g., 506 U.S. 113 Herrera v. 1996) (en banc), other reversed (1993). 203 And S.Ct. 122 L.Ed.2d grounds, U.S. that the Consti given holding of Lindh (1997). Although Lindh dealt L.Ed.2d 481 prisoner to multi tution does not entitle a §to with the 1996 amendments review, there ple post-conviction rounds reasoning equally its prisoners, state objection constitutional cannot be serious § changes applicable 2255(h).4 §to colleagues majority say My the. 2255(e) § us to cut loose “essentially Webster wants understanding reads the contexts linguistic from and historical (op. ... out the statute” its savings clause 1136). perpetuate approach it to just Not all. It confines and use at 2255(e) Sanders, collateral § which successive saving its function: Lindh, tention cannot be reconciled 4. Webster contends that 2255 would violate 2255(h) does. Suspension events it is not what Clause to block all if understood 2255(h)(1). discussing § post-conviction con- See footnote all new evidence. That litigation whenever it does permissible writ”, though even Con-

not “abuse the gave concluded Sanders

gress has weight society’s interest

insufficient finality judgments. My colleagues as

treat the 1996 amendments self-defeat- so that 2241 becomes available to

ing, (or evidence)

present new contentions new meet cannot conditions 2255(h) or successive motions second Undoing the decisions of 2255. (to litiga- post-conviction centralize court) sentencing

tion

(to limit the sort contentions that'allow review),

multiple rounds of collateral even

though § as amended does not violate Clause, unwarranted, Suspension places minority this court in of one

among the circuits at same time we say capital

assert final over all federal

cases. HESS, Plaintiff-Appellant,

Lawrence J. BRESNEY,

Kanoski Defendant-

Appellee.

No. 14-1921. of Appeals,

United States Court

Seventh Circuit.

Argued Dec. 2014. 4,May

Decided

Case Details

Case Name: Bruce Carneil Webster v. Charles A. Daniels

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 1, 2015

Citation: 784 F.3d 1123

Docket Number: 14-1049

Court Abbreviation: 7th Cir.