Donald Bennett, a federal prisoner, asks us for permission to file a third motion under 28 U.S.C. § 2255 for postconviction relief. As recently amended, the statute, so far as relevant here, forbids a
Bennett claims in his application that he is a schizophrenic and would have been found not guilty by reason of insanity had not the prison doctors, unbeknownst to him, administered a powerful psychotropic drug to him (Mellaril) during his trial. He claims that had he not been drugged, he would have convinced the jury to acquit him. Although he was tried eight years ago, he claims that he was unable until recently to procure the portion of the transcript of the sentencing proceeding in which, in his absence, it was disclosed that the drug had been prescribed and he was taking it. He had known, of course, that he was taking a drug, but not that it was a drug that would impair his ability to testify. He did testify at the trial in support of his insanity defense,
United States v. Bennett,
We do not think that the claim has sufficient plausibility to satisfy the statutory standard. The defendant testified that he was schizophrenic and that God told him to rob the banks (he was convicted of five bank robberies). The newly discovered evidence (even if true) that he was drugged during his testimony could not be thought to establish his innocence by “clear and convincing” evidence — especially since to prevail on an insanity defense in a federal trial the defendant must prove his insanity by clear and convincing evidence. 18 U.S.C. § 17. So Bennett has to show, albeit only prima facie, that the newly discovered evidence would have established by clear and convincing evidence that no reasonable factfinder could have failed to find that Bennett had established his insanity by clear and convincing evidence. This is a very heavy burden, and the fact that he was given a drug without which he might not have been able to testify at all cannot carry it.
All this is plain enough but we have thought it helpful to make clear that we will use the “prima facie showing” standard of section 2244 to evaluate applications for permission to file second or successive motions under section 2255 as well, despite the different wording of that section. By “prima facie showing” we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case. We do not usually have a response from the government, though such a response is authorized. 7th Cir.R. 22.2(c). If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the strin
Denied.
