Case: 09-11039 Document: 00511093965 Page: 1 Date Filed: 04/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2010
No. 09-11039
Lyle W. Cayce
Clerk
In re: BRUCE CARNEIL WEBSTER,
Movant.
On Motion for Authorization to File
Successive 28 U.S.C. § 2255 Motion
in the United States District Court
for the Northern District of Texas
Before SMITH, WIENER, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Webster moves for an order authorizing the district court to consider
a successive motion to vacate his federal death sentence under 28 U.S.C. § 2255,
as amended by section 105 of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Because he does not meet the procedural requirements of
§ 2255(h), we deny the motion.
I.
In June 1996, Webster was sentenced to death for his role in the kidnaping
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No. 09-11039
and brutal murder of a sixteen-year-old girl. He filed a direct appeal of his con-
viction, including among his nineteen assignments of error a challenge to the
district court’s finding that he was not mentally retarded. We affirmed in all re-
spects. United States v. Webster, 162 F.3d 308, 358 (5th Cir. 1998), cert. denied
528 U.S. 829 (1999). He then filed for relief under § 2255, which motion the dis-
trict court denied, concluding that, even in the wake of Atkins v. Virginia, 536
U.S. 304 (2002), the evidence supported a finding that Webster was not mentally
retarded. Webster v. United States, No. 4:00-CV-1646-Y, 2003 WL 23109787, at
*14 (N.D. Tex. Sept. 30, 2003). And, after the district court granted a certificate
of appealability on two of the issues concerning mental retardation, we again af-
firmed the sentence. United States v. Webster, 421 F.3d 308, 310 (5th Cir. 2005),
cert. denied, 549 U.S. 828 (2006).
Now Webster asks for another chance to argue that he is mentally retard-
ed and therefore ineligible for the death penalty.1 Specifically, he contends that
in light of newly discovered evidenceSSin the form of government and school rec-
ords and additional testimonySSno reasonable factfinder could conclude that he
is not mentally retarded.
II.
Section 2255(h) governs the filing of second or successive motions:
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to con-
tainSS
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be suf-
ficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or
1
Webster’s execution is stayed for reasons not related to the instant motion.
2
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No. 09-11039
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable.
28 U.S.C. § 2255(h).
This court has not had occasion to consider whether a petitioner seeking
only to challenge his eligibility for the death penalty can do so under § 2255-
(h)(1).2 We now conclude that a petitioner cannot bring a successive claim under
§ 2255(h)(1) where he does not assert that the newly discovered evidence would
negate his guilt of the offense of which he was convicted, i.e., capital murder.
That result is compelled by the plain language of § 2255(h)(1), which does
not encompass challenges to a sentence. Instead, it states that a petitioner wish-
ing to rely on newly discovered evidence (as distinguished from being able to
point to a qualifying new rule of constitutional law)3 to support a second § 2255
motion must “establish by clear and convincing evidence that no reasonable fact-
finder would have found the movant guilty of the offense.” § 2255(h)(1) (empha-
sis added).
Webster nevertheless urges us to read “offense” broadly so that § 2255-
(h)(1) would cover not only a claim that a prisoner is not guilty of the offense of
conviction but also a claim that he is merely “not guilty of the death penalty.”
Such an interpretation accords with prior habeas corpus law interpreting “actual
innocence” to include “innocence of the death penalty.” Cf. Sawyer v. Whitley,
505 U.S. 333, 340-41 (1992). But, as Judge Posner cogently explained,
2
Nor have we had occasion to consider that question with regard to 28 U.S.C. § 2244(b)-
(2)(B)(ii), which includes the same language. Section 2255 governs collateral attacks on feder-
al convictions; § 2244, attacks on state court convictions. Nevertheless, “[b]ecause of the simi-
larity of the actions under [these sections], they have traditionally been read in pari materia
where the context does not indicate that would be improper.” United States v. Flores, 135 F.3d
1000, 1002 n.7 (5th Cir. 1998).
3
See § 2255(h)(2).
3
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No. 09-11039
Courts that before the amendment had to decide whether an appli-
cation for postconviction relief came within the “actual innocence”
exception to the requirement of proving cause and prejudice in order
to be permitted to revive a waived ground for relief extended the ex-
ception to sentencing issues . . . . But we do not think the exception
survives the amendment. The “actual innocence” exception of the
prior law was judge-made, and so its contours were appropriately
judge-fashioned and permissibly judge-expanded. The exception in
the new law is graven in statutory language that could not be any
clearer. When we consider . . . the absence of any indication in the
legislative history that ‘offense’ was being used in some special
sense different from its ordinary meaning, we think it highly unlike-
ly that Congress intended the word to bear a special meaning.
Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997) (Posner, J.).4
That is to say, there is no reason to believe that Congress intended the
language “guilty of the offense” to mean “eligible for a death sentence.” 5 Had
Congress wanted the provision to cover challenges to a sentenceSSeven if only
to a death sentenceSSit easily could have referenced sentences explicitly in the
text, as it did numerous times throughout § 2255.6 Or if Congress had intended
4
See also In re Dean, 341 F.3d 1247, 1248-49 (11th Cir. 2003); In re Jones, 137 F.3d
1271, 1274 (11th Cir. 1998); Burris v. Parke, 130 F.3d 782, 785 (7th Cir. 1997); Burris v. Parke,
116 F.3d 256, 258 (7th Cir. 1997); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir. 1997), over-
ruled on other grounds by Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Two other cir-
cuits addressed the issue but avoided deciding it. See LaFevers v. Gibson, 238 F.3d 1263, 1267
(10th Cir. 2001) (“[T]here is a split among the three circuits that have addressed the question
. . . . This court need not resolve that difficult question . . . .”); In re Vial, 115 F.3d 1192, 1198
n.12 (4th Cir. 1997) (en banc) (“We need not address the question of whether, under the
AEDPA, an individual subject to a sentence of death may assert the existence of new evidence
establishing that the sentence was imposed improperly, i.e., that he is “innocent” of the death
penalty.”).
5
By this we do not mean to suggest that a prisoner is jurisdictionally barred from seek-
ing successive review where he contests a factual predicate of his capital murder conviction,
without which he would have been guilty only of non-capital murder. Cf. Thompson v. Calder-
on, 151 F.3d 918, 923-24 (9th Cir. 1998) (en banc).
6
Cf., e.g., 28 U.S.C. § 2255(b) (“If the court finds that the judgment was rendered with-
out jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to
(continued...)
4
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to signal courts to incorporate the old, broad interpretation of actual innocence,
it well could have used the words, “actual innocence.”7 Instead, it elected to
couch § 2255(h)(1), as well as § 2244(b)(2)(B)(ii), in the markedly different, un-
mistakable terms of guilt of the offense. Absent some indication that Congress
meant for the language in § 2255(h)(1) not to be taken literally, we decline to in-
terpret it any other way.
In summary, Webster’s application does not satisfy § 2255(h)(1), and
§ 2255(h)(2) is inapplicable. The motion for authorization to file a successive
§ 2255 motion is DENIED.8
6
(...continued)
collateral attack, or that there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant
a new trial or correct the sentence as may appear appropriate. (Emphasis added.)).
7
Or, indeed, “eligible for the death penalty,” per Sawyer, 505 U.S. at 336. See Thomp-
son, 151 F.3d at 923 (noting that the difference between the language in Sawyer and the lan-
guage in § 2244(b)(2)(B)(ii) could suggest that Congress chose to deviate from it).
8
Our decision that the instant motion is beyond the reach of § 2255 is jurisdictional in
nature, going to the ability of the district court and this court to entertain the § 2255 motion
in the first instance. The result makes it unnecessary for this court to address whether, as the
government claims, the evidence that Webster seeks to introduce is neither newly discovered
nor substantive.
5
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WIENER, Circuit Judge, concurring:
I concur in the majority opinion, as I believe that it is a correct interpreta-
tion of 28 U.S.C. § 2255(h), but I write separately to emphasize the absurdity of
its Kafkaesque result: Because Webster seeks to demonstrate only that he is
constitutionally ineligible for the death penalty — and not that he is factually
innocent of the crime — we must sanction his execution.
If the evidence that Webster attempts to introduce here were ever
presented to a judge or jury for consideration on the merits, it is virtually
guaranteed that he would be found to be mentally retarded. In 1993 — more
than a year before his indictment for the offense of conviction — Webster applied
for Social Security benefits.1 To determine his eligibility for those benefits, three
separate government physicians performed medical and psychological examina-
tions on him. Notably, all three physicians independently concluded that
Webster is mentally retarded. First, Dr. Rittelmeyer diagnosed Webster as
suffering from “[m]ental retardation.” Then, Dr. Spellman described Webster as
“a slow fellow who did not know much and did not know how to communicate
well.” Explaining that he had found no evidence of exaggeration or malingering
during his examination, Dr. Spellman concluded that Webster’s IQ was 69 or
lower and that his significant cognitive difficulties were attributable not to
mental illness but to “mental retardation.” Finally, Dr. Hackett performed an IQ
test and concluded that Webster’s IQ was 59. Dr. Hackett described Webster as
“mildly retarded,” “antisocial,” and unable to “function well in the work place.”
These reports, the merits of which have never been considered by any
1
Although Webster’s counsel requested these Social Security records long before his
trial, they were only recently produced. And, when Webster sought additional discovery in
connection with his first habeas petition, the district court denied his motion — just two days
before the Supreme Court’s landmark decision in Atkins v. Virginia, 536 U.S. 304 (2002) —
and required that he file his petition within sixty days, i.e., less than two months after Atkins
was decided and without the benefit of additional discovery.
6
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judge or jury, refute much of the evidence introduced by the government at the
penalty phase of Webster’s trial. For example, the government’s physicians —
all of whom examined Webster while he was incarcerated for the offense of
conviction — suggested that he was malingering and exaggerating his symptoms
in the hopes of being found ineligible for the death penalty. In contrast, none of
the Social Security physicians who diagnosed Webster’s mental retardation
many years earlier noted any such evidence. Moreover, at trial, the government
introduced testimony that Webster had never been placed in special education
classes, which weighed further still against a finding of mental retardation.
Again, though, the Social Security records tell a different story. Specifically, a
letter to the Social Security Administration from Lou Jackson, the Special
Education Supervisor for the Watson Chapel Schools, indicates that Webster
was indeed enrolled in special education classes but that the records of his
enrollment there were destroyed in 1988 after his family did not respond to a
letter “telling them they could have the records if they wanted them.” 2 Under
§ 2255(h), however, we must turn a blind eye to this evidence, as it speaks to
Webster’s constitutional eligibility for the death penalty and not his factual guilt
or innocence of the crime.
The Supreme Court explained in Atkins v. Virginia that because mentally
retarded persons suffer from “disabilities in areas of reasoning, judgment, and
control of their impulses, they do not act with the level of moral culpability that
2
Of course, this is all in addition to the already substantial evidence of mental
retardation that Webster introduced before the trial court, including, inter alia, testimony
from Doctor Finn that Webster’s IQ was 59; testimony from Dr. Keyes that Webster had an
IQ of 51 with the adaptive functioning of a seven-year-old; testimony from Dr. Cunning that
Webster suffered from mild mental retardation; and testimony from several witnesses familiar
with Webster’s adaptive deficits in communication, conceptual skills, home living, functional
academics, and day-to-day life.
7
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characterizes the most serious adult criminal conduct.” 3 Thus, “in the light of
our evolving standards of decency,” the Court held that the Eighth Amendment
prohibits as excessive the execution of mentally retarded defendants.4 Although
I concur in the majority’s opinion as a correct statement of the law, I continue
to harbor a deep and unsettling conviction that, albeit under Congress’s
instruction which ties our judicial hands so illogically, we today have no choice
but to condone just such an unconstitutional punishment.
3
536 U.S. at 320 (emphasis added).
4
Id.
8