United States v. Webster

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 11, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 03-11194
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BRUCE CARNEIL WEBSTER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________

Before SMITH, WIENER, and BARKSDALE, I.
Circuit Judges. A.
In 1996, a federal jury convicted Webster
JERRY E. SMITH, Circuit Judge: of three offenses—kidnaping resulting in
death, conspiring to kidnap, and using and
Bruce Webster, a federal prisoner under a carrying a firearm during a crime of vio-
sentence of death, appeals the denial of his pe- lence—for his role in the shocking and ex-
tition for post-conviction relief under 28 ceedingly brutal kidnaping, rape, and murder
U.S.C. § 2255 on two related claims that the of sixteen-year-old Lisa Rene.1 The
district court rejected on the merits but on
which it granted a certificate of appealability
(“COA”). Concluding that Webster is not en- 1
The facts are set forth in chilling detail in
titled to relief, we affirm. United States v. Webster, 162 F.3d 308, 317-19
(continued...)
government sought a death sentence pursuant understand the death penalty or why it was
to the Federal Death Penalty Act of 1994, 18 imposed.
U.S.C. §§ 3591-3598, and after a separate
sentencing hearing the jury returned special Webster maintained during the penalty
findings that Webster satisfied the requisite phase that he is mentally retarded and, in sup-
elements of intent, see § 3591(a), and that port, presented testimony from four medical
three statutory and two non-statutory experts regarding his mental capacity and the
aggravating factors existed, see § 3592.2 testimony of a fifth medical expert on surre-
Varying numbers of jurors found nine buttal to critique the methodology used by one
mitigating factors.3 By unanimous vote as re- of the government’s experts in testing his cog-
quired, the jury recommended that Webster be nitive abilities.5 Webster presented volumi-
sentenced to death. nous evidence of the abuse he suffered as a
child, including testimony from his mother,
After imposing a death sentence on the ver- two of his brothers, two of his sisters, an aunt,
dict, the district court entered a finding that a niece, and an ex-girlfriend. All these wit-
Webster is not mentally retarded and is there- nesses testified about the severe physical and
fore not exempt from the death penalty under sexual abuse Webster’s father inflicted on his
18 U.S.C. § 3596(c),4 which prohibits the children and his wife (Webster’s mother).
imposition of a death sentence on a person
who is mentally retarded or, because of a men- The government vigorously disputed Web-
tal disability, lacks the mental capacity to ster’s claim of mental retardation. Beyond
cross-examining defense experts, the govern-
ment produced two medical experts who
1
(...continued) testified that they did not believe Webster was
(5th Cir. 1998). retarded and, moreover, that the methodology
2 used by defense experts to gauge his mental
See id. at 319 n.1 (identifying aggravating
factors unanimously found by the jury). capacity was critically flawed and misleading.
The government presented numerous other
3
See id. at 319-20 n.2 (identifying statutory witnesses, including correctional and probation
and non-statutory mitigating factors presented by officers, former teachers, and fellow inmates,
Webster and the number of jurors, if any, that whose testimony contradicted Webster’s claim
found each factor). of retardation.
4
The finding provides:

After consideration of all the evidence and
information presented in the guilt and punish-
ment phases of trial, the Court hereby issues its
5
factual finding that the defendant Webster is not See Webster, 392 F.3d 787, 793-94 & n.10
mentally retarded and that he possesses the (5th Cir. 2004) (summarizing Webster’s expert
requisite mental capacity to understand the testimony and denying a COA, as discussed infra);
death penalty and why it will be imposed on Webster v. United States, No. 4:00-CV-1646-Y,
him. As a result, the defendant Webster is not 2003 WL 23109787, at *6-7, 12-14 (N.D. Tex.
exempt under 18 U.S.C. § 3596(c) from imple- Sept. 30, 2003) (reviewing defense expert testi-
mentation of the death penalty. mony on mental retardation).

2
 B. COA on the fourteen issues deemed unworthy
We affirmed the conviction and sentence on of collateral appellate review by the district
direct appeal, see United States v. Webster, court; we denied a COA on each of the addi-
162 F.3d 308 (5th Cir. 1998), cert. denied, tional claims, see United States v. Webster,
528 U.S. 829 (1999). Among the more than 392 F.3d 787 (5th Cir. 2004). We now ad-
twenty claims Webster raised on direct appeal, dress, on the merits, Webster’s appeal on the
we rejected his claim that the district court’s two issues rejected on the merits but on which
finding that he is not mentally retarded, to the district court granted a COA.
which no objection was made at trial, was
against the greater weight and credibility of the II.
evidence. See id. at 352-53. Reviewing for A.
clear error, we determined that “[t]he gov- Webster contends that the evidence pre-
ernment presented substantial evidence to sented at trial was insufficient to warrant the
support the finding,” id. at 353, and accord- district court’s finding that he is not mentally
ingly we rejected the claim. retarded. The government argued to the dis-
trict court that this claim is procedurally barred
Webster thereafter filed, in 2000, a motion because it was raised and rejected on direct
to vacate his conviction and sentence pursuant appeal,7 but the district court appears to have
to 28 U.S.C. § 2255, and an amended § 2255 concluded that, though on direct appeal we
motion challenging his conviction and sentence rejected Webster’s claim that the finding was
on sixteen grounds in 2002. The district court against the greater weight and credibility of the
rejected Webster’s claims and dismissed his evidence, the intervening decision in Atkins v.
motion, see Webster v. United States, No. Virginia, 536 U.S. 304 (2002) (holding that
4:00-CV-1646-Y, 2003 WL 23109787 (N.D. the Eighth Amendment prohibits execution of
Tex. Sept. 30, 2003). the mentally retarded) saves this claim from a
procedural bar. See Webster, 2003 WL
Webster applied for a COA on each of the 23109787, at *5.
sixteen grounds raised in his amended § 2255
motion.6 The district court granted a COA Yet, even before Atkins, at the time of
limited to two of the sixteen claims: first, that Webster’s trial, 18 U.S.C. § 3596(c) prohib-
the evidence presented at trial was insufficient ited the execution of mentally retarded offend-
to warrant the district court’s finding that ers in federal prosecutions. The only substan-
Webster is not mentally retarded; and second, tive change (as explained further infra) ush-
that his alleged retardation renders him ineligi- ered in by Atkins with respect to federal capital
ble for a death sentence. defendants, then, is the recognition of a new
source of federal law (i.e., constitutional) that
Webster then applied to this court for a

7
See United States v. Kalish, 780 F.2d 506,
6
See 28 U.S.C. § 2253(C)(1)(B) (“Unless a 508 (5th Cir. 1986) (“It is settled in this Circuit
circuit justice or judge issues a certificate of ap- that issues raised and disposed of in a previous
pealability, an appeal may not be taken to the court appeal from an original judgment of conviction are
of appeals from . . . the final order in a proceeding not considered in § 2255 motions.”); United States
under section 2255.”). v. Rochas, 109 F.3d 225, 229-30 (5th Cir. 1997).

3
bars their execution. In any event, we assume Moreover, nothing in the Federal Death
for present purposes that Atkins permits, Penalty Act requires the government to
whether by way of clarification of the meaning prove—by any standard, much less beyond a
of mental retardation or some other reason, reasonable doubt—that a capital defendant is
Webster to restate his sufficiency challenge, so not mentally retarded. Nor does anything in
we proceed to address the merits, but we do Atkins require, as a constitutional matter, the
so without deciding that we must. government to prove—again, by any standard,
much less beyond a reasonable doubt—that a
B. capital defendant is not mentally retarded. In-
In advancing his collateral challenge to the stead, the Court in Atkins decided to “leave to
sufficiency of the evidence, Webster invokes the State[s] the task of developing appropriate
Jackson v. Virginia, 443 U.S. 307 (1979), ways to enforce the constitutional restriction
which held that a state defendant is entitled to upon [their] execution of sentences.” Atkins,
federal habeas corpus relief if the state’s evi- 536 U.S. at 317 (quoting Ford v. Wainwright,
dence was such that no rational trier of fact 477 U.S. 399, 416-17 (1986) (alterations in
could have found the essential elements of the original)). And several states have since
crime beyond a reasonable doubt. Webster ar- placed the burden on capital defendants to
gues that Jackson provides the standard prove by a preponderance of the evidence that
against which the evidence supporting the they are mentally retarded.10
finding that he is not mentally retarded should
be measured—the necessary implication being In fact, even before the district court
that the government had the burden of proving looked askance at Webster’s suggestion on
beyond a reasonable doubt that Webster is not
mentally retarded.
9
(...continued)
But the Jackson standard is inapposite here,
court’s finding of an aggravating factor is so erron-
where the challenged finding is the absence of
eous as to constitute an Eighth Amendment or due
mental retardation, and not a substantive ele- process violation, a federal court considering a
ment of the offense to which Jackson applies habeas corpus petition should apply the “rational
by its own terms,8 or an aggravating circum- factfinder” test established in Jackson); Martinez
stance, sentencing factor, or special issue in v. Johnson, 255 F.3d 229, 244-45 (5th Cir. 2001)
the context of capital proceedings, to which (applying Jackson to sufficiency challenge to fu-
Jackson has since been applied.9 ture dangerousness finding); Fierro v. Lynaugh,
879 F.2d 1276, 1280 (5th Cir. 1989) (same);
Green v. Johnson, 160 F.3d 1029, 1046-47 (5th
8
See Jackson, 443 U.S. at 319 (“[T]he relevant Cir. 1998) (applying Jackson to a challenge to the
question is whether, after viewing the evidence in sufficiency of a finding of deliberateness); Callins
the light most favorable to the prosecution, any v. Collins, 998 F.2d 269, 276 (5th Cir. 1993)
rational trier of fact could have found the essential (same).
elements of the crime beyond a reasonable doubt.”)
10
(second emphasis added). See, e.g., Ex Parte Briseno, 135 S.W. 3d 1,
12 (Tex. Crim. App. 2004); Russell v. State, 849
9
See, e.g., Lewis v. Jeffers, 497 U.S. 764, 781 So. 2d 95, 148 (Miss. 2003); State v. Williams,
(1990) (holding that in reviewing whether a state 831 So. 2d 835, 860-61 (La. 2002); Murphy v.
(continued...) State, 54 P.3d 556, 568 (Okla. Crim. App. 2002).

4
collateral review that the government had to Accordingly, we reject Webster’s claim to the
prove his non-retardation beyond a reasonable extent it is based on an alleged constitutional
doubt, we had already rejected the claim, albeit error in the allocation of the burden of persua-
in the context of a state prisoner on federal sion and standard of proof.
habeas review, that Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring v. Arizona, C.
536 U.S. 584 (2002), when read together with In any event, the district court proceeded
Atkins, require the government to prove be- dutifully to re-examine the extensive record
yond a reasonable doubt that a capital defen- evidence bearing on Webster’s mental capacity
dant is not mentally retarded. In In re John- and concluded, once again, that a “rational
son, 334 F.3d 403, 405 (5th Cir. 2003), we fact-finder could have found that Webster is
squarely held that “neither Apprendi and Ring not mentally retarded based o n the evidence
nor Atkins renders the absence of mental presented at trial.” Webster, 2003 WL
retardation the functional equivalent of an 23109787, at *11. Once again, we cannot say
element of capital murder which the state must the district court erred in reaching this conclu-
prove beyond a reasonable doubt.”11 sion and rejecting Webster’s renewed suffi-
ciency challenge. See Webster, 192 F.3d at
Indeed, it was on this basis that we denied 352-53.
Webster a COA on his claim that Apprendi
and Ring alone require the government to To be sure, as the district court noted, “all
prove his non-retardation beyond a reasonable of the experts who testified at Webster’s trial,
doubt. See Webster, 392 F.3d at 791-92.12 including those who testified for the govern-
ment, acknowledged that Webster has a low
I.Q.” Id. at *14.13 But, under the definition of
11
See also Ring, 536 U.S. at 609 (noting that
jury finding beyond a reasonable doubt is constitu-
12
tionally required for aggravating factors that oper- (...continued)
ate as “the functional equivalent of an element of a Ring were applicable to the absence of mental re-
greater offense”); Walker v. True, 399 F.3d 315, tardation, the bar of non-retroactivity would pre-
326 (4th Cir. 2005) (rejecting claim that Ring clude their application to cases already final on di-
requires a jury determination of mental retardation, rect review. See Webster, 392 F.3d at 792; see al-
and reasoning that “an increase in a defendant’s so Schriro v. Summerlin, 542 U.S. 348, ___, 124
sentence is not predicated on the outcome of the S. Ct. 2519, 2526 (2004) (holding that the pro-
mental retardation determination; only a decrease”) cedural rule announced in Ring is not retroactive to
(internal marks omitted); Johnson, 334 F. 3d at cases already final on direct review); United States
405 (“[T]he absence of mental retardation is not an v. Brown, 305 F.3d 304, 310 (5th Cir. 2002)
element of the sentence any more than sanity is an (holding that the procedural rule announced in Ap-
element of an offense.”); cf. Medina v. California, prendi is not retroactively applicable to initial post-
505 U.S. 437, 449 (1992) (holding that a state may conviction petitions under § 2255).
presume a defendant to be competent and require
13
him to carry the burden of proving his incompe- There was a dispute as to how low, and both
tence by a preponderance of the evidence). government experts, Dr. George Parker and Dr.
Richard Coons, testified that, in their opinion,
12
Even if the rules announced in Apprendi and Webster had an incentive not to perform well on
(continued...) (continued...)

5
mental retardation cited in Atkins, see 536 environment and does possess skills that his
U.S. at 308 n.3, a showing of borderline or family stated he did not. Looking at all the
below average intelligence does not alone evidence presented by both sides at trial,
constitute an adequate showing of retardation. while it is undisputed that Webster has had
Rather, an adequate showing of mental retar- low I.Q. scores on almost every I.Q. test
dation also requires significant deficits in that has been administered to him, these
adapt ive skills,14 and it is here, as the district scores are, according to even defense wit-
court concluded, that the government effec- ness Dr. Keyes, attributable to “nonorgan-
tively countered Webster’s claimed retarda- ic” factors, which this Court understands to
tion: mean his lack of quality formal education
and any positive or productive home life.
[T]he issue of adaptive skills or the lack Nevertheless, the evidence presented at trial
thereof is where the parties converged at does reflect that Webster has adapted to the
Webster’s trial. While the defense did criminal life that he chose and has illus-
place into evidence the results of the Vine- trated the ability to communicate with
land test, government witnesses effectively others, care for himself, have social interac-
reputed some of those findings with direct tion with others, live within the confines of
evidence that Webster has adapted to his the “home” he has been in since he was
sixteen, use community resources within
this home, read, write, and perform some
13
rudimentary math. This evidence therefore
(...continued)
supports a finding that Webster does not
cognitive tests administered after he was charged in
have a deficit in adaptive skills.
this case; they pointed to earlier tests taken by
Webster on which he scored higher. Parker also
testified that lifestyle choices and cultural factors Webster, 2003 WL 23109787, at *14 .15
can account for low I.Q. scores (a point defense
experts Dr. Keyes and Dr. Finn acknowledged),
15
thus casting doubt on the reliability of the I.Q. tests In fact, not only were government experts
administered by Keyes, which required Webster to able to refute many of the specific findings ob-
define words (he was unable to define “inflation”) tained from the “Vineland test” administered by
and recognize faces (he could not identify Shake- Keyes, see Webster, 2003 WL 23109787, at *13,
speare, Mark Twain, or Albert Einstein from but they testified that the test was an inappropriate
pictures) to which he was unlikely to have been and deceptive measure of Webster’s adaptive
previously exposed. skills, given his lifestyle as a drug dealer. More-
over, government experts noted that Webster had
14
Mental retardation has as its essential feature shown cleverness and adaptability when he sneaked
significantly subaverage general intellectual func- into the women’s portion of the jail in which he
tioning accompanied by significant limitations in was held, concocted cover stories and made ex-
adaptive functioning, with onset before the age of cuses to police when he was arrested with a key in
eighteen. Morris v. Dretke, 413 F.3d 484, ___, his pocket to the motel room in which Lisa Rene
2005 U.S. App. LEXIS 11430, at *4 (5th Cir. was held and raped repeatedly, and burned his
June 16, 2005) (quoting AMERICAN PSYCHIATRIC clothes to destroy evidence after her murder.
ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 41 (text rev. 4th The government also presented the testimony of
ed. 2000)). (continued...)

6
 III. Webster cannot, however, continue to liti-
Webster claims he is mentally retarded and gate this claim hoping that some court eventu-
thus ineligible for his death sentence, but given ally will agree with him. The question wheth-
our rejection of his claim regarding the stan- er he is mentally retarded was, as the district
dard of proof and sufficiency of the evidence court observed, “a highly contested one at
supporting the contrary finding at trial, this trial,” Webster, 2003 WL 23109787, at *12,
claim is reduced, in essence, to nothing more and Webster failed to convince either the
than an attempt to re-litigate the question. district court that he is retarded or, moreover,
Indeed, Webster’s brief does not point to any a majority of the jurors that he is or even may
new evidence bearing directly on his mental be retarded. And the record supports those
capacity; instead, it summarizes the evidence findings.
presented at trial concerning his cognitive
abilities and childhood experiences.16 The judgment denying Webster’s petition
for post-conviction relief is AFFIRMED.

15
(...continued)
numerous other witnesses, including correctional
officers and fellow inmates that, while incarcer-
ated, Webster engaged in various activities poten-
tially inconsistent with a finding of retardation.
For example, he wrote letters to fellow inmates;
received letters and newspapers; read aloud from
newspapers; wrote request slips for various ser-
vices; prepared written grievances; submitted
names and addresses of people for his visitation
list; and on one occasion complained because the
change he received from the prison commissary
was incorrect.
16
Webster’s brief does refer to evidence mar-
shaled in the district court on collateral review con-
cerning racial discrimination in the district where
Webster attended school, which Webster continues
16
to assert would have, if presented at trial, demon- (...continued)
strated why he was not enrolled in special educa- Our analysis of those claims obtains equally
tion courses and therefore would have effectively here: “In the main, the prosecution presented sub-
countered the government’s assertion that he is not stantial evidence countering Webster’s claim of
mentally retarded. But we previously denied mental retardation, and the government’s effort did
Webster a COA on an ineffective assistance of not depend in any significant respect on Webster’s
counsel claim premised on the failure of defense non-enrollment in special education courses.” Id.
counsel to investigate and present such evidence at 798-99. Thus, we held that even if Webster
and on a a vague yet related claim under Brady v. could otherwise sustain his claims, “the incremen-
Maryland, 373 U.S. 83 (1963), see Webster, 392 tal impeachment value, if any, of such evidence
F.3d at 795, 797-99. does not raise a possibility that, had the evidence
been presented, the outcome would have been
(continued...) different.” Id. at 795; see also id. at 799.

7