Alfred Bourgeois v. T.J. Watson ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1891
ALFRED BOURGEOIS,
Petitioner-Appellee,
v.
T.J. WATSON, Warden, and UNITED STATES OF AMERICA,
Respondents-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00392-JMS-DLP — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED SEPTEMBER 9, 2020 — DECIDED OCTOBER 6, 2020
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Alfred Bourgeois, a federal prisoner,
was sentenced to death after he brutally abused and mur-
dered his two-year-old daughter. Bourgeois now collaterally
attacks his death sentence on the ground that he is intellectu-
ally disabled. Both the Federal Death Penalty Act (FDPA), 18
U.S.C. § 3596(c), and the Supreme Court’s decision in Atkins
v. Virginia, 536 U.S. 304 (2002), forbid the execution of intellec-
tually disabled offenders. But that is not the end of the matter.
2 No. 20-1891
Bourgeois does not seek relief under 28 U.S.C. § 2255—the
main statute authorizing postconviction relief for federal pris-
oners. Indeed, Bourgeois already has fully litigated an intel-
lectual-disability claim under § 2255. Instead, Bourgeois
brings a habeas corpus petition under 28 U.S.C. § 2241. To in-
voke that statute, however, Bourgeois must show that his case
fits within a narrow exception known as the “savings clause.”
See 28 U.S.C. § 2255(e).
In the district court, Bourgeois accompanied his § 2241 pe-
tition with a motion to stay his execution—which the district
court granted. In doing so, the court found that the govern-
ment had waived its argument that Bourgeois could not chan-
nel his FDPA claim through the savings clause. We reverse
that determination and further find that Bourgeois does not
meet the stringent requirements for savings-clause eligibility.
As a result, his § 2241 petition is procedurally barred. We va-
cate the stay with instructions for the district court to dismiss
the petition.
I. Background
A. Factual Background
We review the underlying facts only briefly, to provide
context for the procedural issues that govern this appeal.
Bourgeois’s daughter, “JG,” was born in October 1999. For the
first two and a half years of her life, JG lived with her mother
and grandmother in Texas. In April 2002, JG’s mother peti-
tioned a local court for a paternity test. The test determined
that Bourgeois was JG’s father. JG’s mother then petitioned
the court for child support from Bourgeois.
At the time, Bourgeois was a truck driver living in Louisi-
ana with his wife, Robin, and their two children. In May 2002,
No. 20-1891 3
Bourgeois came to Texas for JG’s child support hearing. At the
hearing, the court granted JG’s mother’s request for child sup-
port from Bourgeois. The court also granted Bourgeois’s re-
quest for visitation rights with JG for the next seven weeks.
Bourgeois took custody of JG after the hearing.
For the next month—the last of JG’s life—Bourgeois tor-
tured and abused JG. He punched her in the face hard enough
to give her black eyes. He whipped her with an electrical cord
and beat her with a belt. He struck her on the head with a
plastic baseball bat so many times that her head swelled in
size. He threw her against walls. He burned the bottom of her
foot with a cigarette lighter and prevented anyone from treat-
ing her injuries. He also emotionally abused JG. Bourgeois, for
example, “taught” JG how to swim by repeatedly tossing her
into a swimming pool, letting her sink, and then pulling her
out as she choked and gasped for air. Even JG’s potty training
became a source of torment for her. Bourgeois made JG spend
her days sitting on her “training potty.” When Bourgeois
brought his family (including JG) along on his trucking
routes, Bourgeois forced JG to sleep on her training potty.
Bourgeois punished JG’s “accidents” with beatings. Remark-
ably, there was more abuse—including evidence of sexual
abuse—but that is enough to lay the groundwork for the
events that followed.
In late June 2002, Bourgeois drove his family in his truck
to Corpus Christi Naval Air Station, where Bourgeois was de-
livering a shipment. JG, as usual, was sitting on her training
potty. When Bourgeois backed up his truck, JG wiggled and
tipped over her potty chair. Enraged, Bourgeois started yell-
ing at JG and spanking her. He then grabbed her by the shoul-
ders and slammed the back of her head into the truck’s front
4 No. 20-1891
windows and dashboard four times. Robin woke up soon af-
ter the attack and noticed that JG was limp and motionless.
After trying unsuccessfully to revive JG through CPR, Robin
told Bourgeois that JG needed emergency medical attention.
Bourgeois replied that he would take her to the emergency
room when he was done unloading the truck. He added that
they should say JG had slipped and fallen out of the truck.
Insistent that JG needed medical attention, Robin handed her
to Bourgeois. Bourgeois took JG outside and put her on the
ground. When Robin found her there, she again tried CPR
while a passerby called 911. At that point, Bourgeois came
running from behind the truck to ask what had happened.
JG died in the hospital the next day. As planned, Bour-
geois and Robin told authorities that JG had fallen out of the
truck. Their story quickly unraveled when the autopsy report
came back. The medical examiner described the autopsy as
one of the most involved of her career, due to the sheer num-
ber and extent of JG’s injuries. There were bruises, human bite
marks, scratch marks, loop marks (consistent with an electri-
cal cord), and a circular hole on the bottom of one of JG’s feet.
The examiner also found deep tissue bruising all over JG’s
body. Based on these extensive injuries, the examiner con-
cluded that JG was a chronically abused or battered child. The
ultimate cause of death, in her determination, was an impact
to the head resulting in a devastating brain injury. The loca-
tion of the brain injury was consistent with Bourgeois holding
JG by the shoulders and slamming her head against the win-
dows and dashboard of the truck cab. Robin and one of Bour-
geois’s other daughters later told authorities the truth about
JG’s death and the consistent abuse she suffered.
No. 20-1891 5
B. Procedural Background
Bourgeois was charged with murder on federal property,
in violation of 18 U.S.C. §§ 7 and 1111. After a two-week trial
in the Southern District of Texas, the jury found Bourgeois
guilty and unanimously recommended a sentence of death,
which the court imposed.
Bourgeois directly appealed to the Fifth Circuit. He chal-
lenged the government’s use of aggravating factors at sen-
tencing, the constitutionality of the FDPA, and the district
court’s delegation of supervision over his execution to the Di-
rector of the Bureau of Prisons. The Fifth Circuit affirmed,
commenting “[t]his is not a close case.” United States v. Bour-
geois, 423 F.3d 501, 512 (5th Cir. 2005). The Supreme Court de-
nied certiorari. Bourgeois v. United States, 547 U.S. 1132 (2006).
Bourgeois then filed a motion for postconviction relief un-
der 28 U.S.C. § 2255. The motion came before the same judge
who oversaw Bourgeois’s trial. Bourgeois raised fourteen
grounds for relief, only one of which concerns us here: Bour-
geois argued that he was intellectually disabled 1 and thus in-
eligible for the death penalty under the FPDA and the Su-
preme Court’s constitutional decision in Atkins. The district
court held a week-long evidentiary hearing that often ex-
tended beyond normal work hours. The court heard testi-
mony from expert and lay witnesses who testified about
Bourgeois’s intellectual and psychological abilities.
1 Following the Supreme Court’s practice, we use the term “intellec-
tual disability” instead of “mental retardation,” even though earlier cases,
including Atkins, used the latter term. Hall v. Florida, 572 U.S. 701, 704
(2014).
6 No. 20-1891
The court denied Bourgeois’s § 2255 motion in a thorough
225-page opinion that devoted 53 pages to analyzing Bour-
geois’s intellectual-disability claim. United States v. Bourgeois,
No. C.A. C–07–223, 2011 WL 1930684 (S.D. Tex. May 19, 2011).
The court began by noting that Bourgeois had not received a
diagnosis of intellectual disability until after the court had
sentenced him to death. Id. at *22. “Up to that point, Bourgeois
had lived a life which, in broad outlines, did not manifest
gross intellectual deficiencies.” Id. The court then analyzed
Bourgeois’s intellectual-disability claim using the “uniformly
accepted … tripartite formulation for deciding whether an in-
mate qualifies for Atkins protection.” Id. at *24. The “three in-
dispensable criteria” were: “(1) significantly subaverage intel-
lectual functioning; (2) related significant limitations in adap-
tive skill areas; and (3) manifestation of those limitations be-
fore age 18.” Id. Following Atkins’s guidance, the court drew
this three-part test from the 11th edition of the American As-
sociation on Intellectual and Developmental Disabilities’s
(AAIDD’s) manual entitled Intellectual Disability: Definition,
Classification, and Systems of Supports (AAIDD-11), and the
4th edition of the American Psychiatric Association’s (APA’s)
Diagnostic and Statistical Manual of Mental Disorders (DSM-
4). Id. at *23–24 & n.27.
On the first prong (significantly subaverage intellectual
functioning), Bourgeois had tested within the range for intel-
lectual disability in IQ tests following his death sentence, but
the court found that his test scores did not accurately measure
his intellectual abilities. Id. at *25–31. Instead, based on
“highly credible” testimony from the government’s expert
and the court’s independent review of Bourgeois’s psycholog-
ical evaluations, the court determined that Bourgeois had not
put forth his best efforts in testing. Id. at *27–29. In addition,
No. 20-1891 7
“a fuller view” of Bourgeois’s life did “not correspond to a
finding of significant intellectual limitations.” Id. at *31. The
court stressed that Bourgeois had “graduated from high
school, worked for years as an over-land trucker, bought a
house, managed his own finances, wrote intricate and de-
tailed letters, communicated without difficulty, participated
actively in his own defense, and otherwise carried himself
without any sign of intellectual impairment.” Id. at *29 (foot-
notes omitted). The court credited the government’s expert’s
testimony that Bourgeois’s competence as a truck driver was
“totally inconsistent with mental retardation.” Id.
On the second prong (significant limitations in adaptive
skill areas), the court began by distinguishing between the
“psychological” and “legal” approaches to adaptive func-
tioning: whereas the “psychological” approach considered
only “deficits,” the law “compare[d] the deficiencies to posi-
tive life skills, presuming that adaptive successes blunt the
global effect of reported insufficiencies.” Id. at *32–33. With
that in mind, the court turned to the evidence. The parties had
presented conflicting expert and lay testimony about Bour-
geois’s adaptive abilities. The experts had reached “diametri-
cally opposed conclusions about Bourgeois’ abilities.” Id. at
*33. The lay testimony also pointed in different directions. For
example, people who knew Bourgeois as a youth testified that
he had difficulty learning new activities and grasping new
concepts. Id. at *37–39. Bourgeois’s trucking colleagues, on the
other hand, testified that he was an above-average truck
driver who ably discharged the various duties of the job. Id.
at *39. One even described him as an “overachiever.” Id. In the
end, the court found that “[a] broad review of the evidence
does not make Bourgeois’ claim of adaptive deficits believa-
ble.” Id. at *44. Although Bourgeois “may have had difficulties
8 No. 20-1891
when younger,” the record did “not conclusively link those
problems to mental retardation rather than a culturally de-
prived upbringing, poverty, or abuse.” Id. And “[n]othing
suggested that deficiencies endured into maturity.” Id. To the
contrary, “Bourgeois operated with remarkable competency
in the free world for one with low IQ scores.” Id.
The court’s conclusion on the third prong (manifestation
of intellectual limitations before 18) followed directly from its
conclusions on the first two prongs: “The evidence before the
Court failed to point to any pronounced intellectual impair-
ment before Bourgeois’ eighteenth birthday. Bourgeois has
not shown that he is now, was at the time of the crime, or was
during the developmental period, mentally retarded.” Id. Be-
cause Bourgeois “failed to meet all three prongs of the Atkins
analysis,” his intellectual-disability claim failed. Id. After re-
jecting Bourgeois’s remaining claims, the court denied his
§ 2255 motion and denied a certificate of appealability. Id. at
*111. Turning to the Fifth Circuit, Bourgeois requested a cer-
tificate of appealability to appeal some aspects of the district
court’s ruling, but he did not challenge the denial of his intel-
lectual-disability claim. See United States v. Bourgeois, 537 F.
App’x 604 (5th Cir. 2013) (per curiam) (denying Bourgeois’s
request for a certificate of appealability).
About four years later, Bourgeois sought leave from the
Fifth Circuit to file a successive § 2255 motion. See 28 U.S.C.
§ 2255(h). In his new motion, Bourgeois again raised an intel-
lectual-disability claim. Bourgeois said he deserved a second
chance to present his claim because the Supreme Court’s de-
cision in Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I) had
breathed new life into his claim. The Fifth Circuit held that
Bourgeois’s successive motion was barred by “§ 2244(b)(1)’s
No. 20-1891 9
strict relitigation bar,” which applied to federal prisoners
through 28 U.S.C. § 2255(h). In re Bourgeois, 902 F.3d 446, 447
(5th Cir. 2018).
This brings us to Bourgeois’s present petition. Bourgeois
currently resides at the federal penitentiary in Terre Haute,
Indiana. In August 2019, a month after he received an execu-
tion date, 2 Bourgeois filed a habeas corpus petition under 28
U.S.C. § 2241 in the Southern District of Indiana. He also
moved to stay his execution. Once again, Bourgeois argued
that he was intellectually disabled, and that his death sentence
ran afoul of Atkins and the FDPA. Relying in part on the
FDPA’s ban on executing a person who “is” (present tense)
intellectually disabled, 18 U.S.C. § 3596(c), he argued that At-
kins and the FDPA forbid both the “imposition” and the “ex-
ecution” of his death sentence.
Procedurally, Bourgeois tried to channel his petition
through § 2255(e)’s “savings clause,” 3 which permits a federal
2 In July 2019, the government set Bourgeois’s execution for January
13, 2020. The execution did not go forward because, on November 20,
2019, the district judge presiding over execution-protocol litigation
brought by Bourgeois and others in the District of Columbia preliminarily
enjoined the government from carrying out the executions. In re Fed. Bu-
reau of Prisons' Execution Protocol Cases, No. 19-mc-145 (TSC), 2019 WL
6691814 (D.D.C. Nov. 20, 2019). On April 2, 2020, the D.C. Circuit vacated
that preliminary injunction. In re Fed. Bureau of Prisons' Execution Protocol
Cases, 955 F.3d 106 (D.C. Cir. 2020). The Supreme Court denied certiorari.
Bourgeois v. Barr, No. 19-1348, 2020 WL 3492763 (U.S. June 29, 2020). The
lower court’s stay in the case now before us remains in effect, and Bour-
geois has not received a new execution date.
3 We have alternated between referring to § 2255(e) as the “safety
valve” and the “savings clause.” Compare Purkey v. United States, 964 F.3d
603, 611 (7th Cir. 2020) (“safety valve”), with Lee v. Watson, 964 F.3d 663,
10 No. 20-1891
prisoner who has already moved for relief under § 2255 to file
a habeas corpus petition under § 2241 if § 2255 was “inade-
quate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). Bourgeois argued that his § 2255 motion was
“inadequate or ineffective to test the legality” of his death sen-
tence because the judge in the Southern District of Texas who
denied his motion relied on diagnostic standards that the Su-
preme Court later rejected in Moore I and its follow-on deci-
sion in Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II).
The district judge ordered the government to respond to
Bourgeois’s petition. In its lengthy response, the government
argued that Bourgeois had fully litigated his intellectual-dis-
ability claim in the Southern District of Texas, and that the Su-
preme Court’s continued development of the law in Moore I
and Moore II did not justify savings-clause relief. In any event,
the government argued, the Southern District of Texas’s anal-
ysis was consistent with Moore I and Moore II. Throughout its
brief, the government referred to Bourgeois’s intellectual-dis-
ability claim as his “Atkins claim.” It did not mention Bour-
geois’s FDPA claim in its analysis. In his reply, Bourgeois ar-
gued that the government “completely fail[ed] to challenge
[his] claim that he is entitled to § 2241 review because he chal-
lenges the execution of his sentence, as well as its imposition.”
The district court granted Bourgeois’s motion for a stay.
Bourgeois v. Warden, No. 2:19-cv-00392-JMS-DLP, 2020 WL
1154575, at *1 (S.D. Ind. Mar. 10, 2020). Without addressing
his Atkins claim, the court found that Bourgeois was likely to
succeed on his FDPA claim. Id. Before reaching the merits, the
666 (7th Cir. 2020) (“savings clause”). We use the term “savings clause” in
this opinion.
No. 20-1891 11
court found that the government had waived any argument
that Bourgeois’s FDPA claim could not proceed under § 2241
by not separately addressing his FDPA claim in its briefing.
Id. at *3. The court faulted the government for “fail[ing] to
even mention” the FDPA claim, “let alone explain why it can-
not be brought in a § 2241.” Id. That failure was “inexplicable
and inexcusable.” Id. The court stressed that Bourgeois’s reply
had “highlighted [the government’s] failure to address the
FDPA claim,” yet the government had “failed to seek leave to
file a surreply addressing that claim.” Id. That, in turn, led the
court to infer that the government’s “failure to address the
claim was more intentional than inadvertent,” thus establish-
ing waiver (and not merely forfeiture). Id. Turning to the mer-
its of Bourgeois’s FDPA claim, the court found that he had
made a strong showing of intellectual disability. Id. at *4–5.
The court granted Bourgeois’s motion and stayed his execu-
tion. Id. at *6.
After the court entered the stay, the government sought
leave to file a surreply. The government emphasized that
Bourgeois himself had referred to his Atkins and FDPA claims
collectively as his “Atkins claim” throughout his petition. Be-
cause Bourgeois had relied on the same arguments for both
claims—which are governed by identical standards—the gov-
ernment had similarly not “parse[d] out” a separate FDPA
claim in its response to the petition. The court denied the gov-
ernment’s motion, finding that Bourgeois had, in fact, pre-
sented separate statutory and constitutional claims. The court
reiterated that Bourgeois’s reply brief had flagged the govern-
ment’s failure to address his FDPA claim, yet the government
had not sought leave to file a surreply until after the court
ruled. The government now appeals the district court’s stay
order.
12 No. 20-1891
II. Discussion
We review the district court’s decision to enter a stay for
abuse of discretion. Venckiene v. United States, 929 F.3d 843, 853
(7th Cir. 2019). We review the underlying factual findings for
clear error and legal conclusions de novo. Id.; Mays v. Dart,
--- F.3d ----, No. 20-1792, 2020 WL 5361651, at *5 (7th Cir. Sept.
8, 2020). “[A] factual or legal error may alone be sufficient to
establish that the court abused its discretion in making its fi-
nal determination.” Mays, 2020 WL 5361651, at *5 (alteration
in original) (quoting Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d
1429, 1437 (7th Cir. 1986)).
The four stay factors are: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substan-
tially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Nken v. Holder, 556 U.S. 418,
434 (2009). Stay applicants “must satisfy all of the require-
ments for a stay, including a showing of a significant possibil-
ity of success on the merits.” Hill v. McDonough, 547 U.S. 573,
584 (2006).
The district court found that Bourgeois had met all four
stay factors, but we only reach the first one: likelihood of suc-
cess on the merits. The district court’s determination that
Bourgeois was likely to succeed on the merits of his FDPA
claim rested on a preliminary finding that the government
had waived any argument that Bourgeois’s FDPA claim was
not cognizable under § 2255(e)’s savings clause. That is where
we part ways with the district court. We find that the govern-
ment did not waive, or even forfeit, this argument. And even
if it had forfeited the argument, we would excuse that
No. 20-1891 13
forfeiture on these facts. We proceed to consider whether
Bourgeois’s Atkins and FDPA claims are cognizable under the
savings clause. They are not. With no procedural home for his
claims, Bourgeois’s likelihood of success on the merits is non-
existent. Thus, we vacate the stay.
A. Waiver and Forfeiture 4
We recently discussed the distinction between waiver and
forfeiture in civil cases in Henry v. Hulett, 969 F.3d 769 (7th Cir.
2020) (en banc). We observed that, “[w]hereas waiver is the
‘intentional relinquishment or abandonment of a known
right,’ forfeiture is the mere failure to raise a timely argument,
due to either inadvertence, neglect, or oversight.” Id. at 786
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). “In
the criminal context,” we noted, “the distinction between
waiver and forfeiture is critical: while waiver precludes re-
view, forfeiture permits a court to correct an error under a
plain error standard.” Id. In the civil context, we had been less
clear about the role of plain error review. Id. We took the oc-
casion to “clarify that ‘our ability to review for plain error in
civil cases is severely constricted,’ as ‘a civil litigant should be
bound by his counsel’s actions.’” Id. (quoting SEC v. Yang, 795
F.3d 674, 679 (7th Cir. 2015)). “Plain error review is available
in civil cases only in the rare situation where a party can
demonstrate that: ‘(1) exceptional circumstances exist; (2)
4 The government has not asked us to reconsider our conclusion that
§ 2255(e) is non-jurisdictional. Harris v. Warden, 425 F.3d 386, 388 (7th Cir.
2005); Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017). Thus, we will
address the question of waiver. See Moore v. Olson, 368 F.3d 757, 759 (7th
Cir. 2004) (“Defects in subject-matter jurisdiction … may not be waived or
forfeited.”).
14 No. 20-1891
substantial rights are affected; and (3) a miscarriage of justice
will occur if plain error review is not applied.’” Id. (quoting
Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636 (7th
Cir. 2018)). “The determination of what circumstances fit
these criteria is solely within our discretion.” Id. These stand-
ards govern here because, although habeas proceedings arise
from criminal cases, they are civil in nature.
We start with waiver. After reviewing the record below,
we find that there was no basis to conclude that the govern-
ment had waived its argument that Bourgeois’s FDPA claim
could not pass through the savings clause. To begin, Bour-
geois himself did not clearly parse out separate Atkins and
FDPA claims. Rather, he presented one intellectual-disability
claim arising under two sources of law that—as both parties
agree—provide substantively identical protection and are
governed by the same standard. See Webster v. Daniels, 784
F.3d 1123, 1139 n.6 (7th Cir. 2015) (en banc) (Webster I) (noting
that Atkins and the FDPA may provide different procedural
pathways to relief); id. at 1150 (Easterbrook, J., dissenting)
(“Atkins and Hall do not alter the [FDPA’s] substantive stand-
ard.”). Bourgeois’s first argument heading was: “Mr. Bour-
geois Is Intellectually Disabled and Is Ineligible for the Death
Penalty Under the Federal Death Penalty Act and Atkins v. Vir-
ginia and Its Progeny.” Bourgeois did not include separate
sub-headings or arguments for his Atkins and FDPA claims.
Instead, he made one set of arguments for both claims, and
accompanied the arguments with citations to both Atkins and
the FDPA. At times, Bourgeois even referred to both claims
collectively as his “Atkins claim.” Given that Bourgeois him-
self did not treat his Atkins and FDPA claims as distinct, we
do not believe that the government intentionally chose to dis-
aggregate the claims and respond to only one of them.
No. 20-1891 15
Nor are we aware of any conceivable strategic reason why
the government would intentionally respond to Bourgeois’s
Atkins claim while forgoing its right to challenge his FDPA
claim. Why respond to the Atkins claim at all, if Bourgeois
could still proceed with his substantively identical FDPA
claim? Neither Bourgeois nor the court below answer this
question. In these circumstances, we do not consider the gov-
ernment’s failure to respond to be “a deliberate decision not
to present a ground for relief that might be available in the
law.” United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).
The sole reason that the court below gave for its finding of
intentional waiver was the government’s failure to seek leave
to file a surreply after Bourgeois’s reply brief “highlighted
[the government’s] failure to address the FDPA claim.” 2020
WL 1154575, at *3. We respectfully disagree with that reading
of Bourgeois’s reply brief. On pages 42–43 of his 45-page reply
brief (the portion cited by the district court), Bourgeois argued
that the government “completely fails to challenge Mr. Bour-
geois’s claim that he is also entitled to review under § 2241
because his challenge goes not only to the imposition of his
sentence, but also to the execution thereof.” He went on to ar-
gue (as he did in his opening petition) that both Atkins and the
FDPA forbid the execution of a person who is presently intel-
lectually disabled. True, he relied on the FDPA’s statutory lan-
guage to make that argument. But nowhere did he say that
the government failed to respond to—let alone waived its re-
sponse to—the cognizability of his FDPA claim. The govern-
ment’s failure to seek leave to file a surreply to respond to this
argument does not support a finding of waiver.
That is especially true because “surreply briefs are rare
and discouraged in most districts.” Ennin v. CNH Indus. Am.,
16 No. 20-1891
LLC, 878 F.3d 590, 595 (7th Cir. 2017). Indeed, while the South-
ern District of Indiana’s local rules allow a party opposing
summary judgment to file a surreply as a matter of right in
certain limited circumstances, they are otherwise silent on
surreplies. S.D. Ind. L.R. 56–1(d). We have previously held
that, when local rules do not permit filing a surreply as of
right, a party does not waive an argument for purposes of ap-
peal by failing to seek leave from the district court to raise the
argument in a surreply. Hardrick v. City of Bolingbrook, 522 F.3d
758, 763 n.1 (7th Cir. 2008); Ennin, 878 F.3d at 596. Otherwise,
“arguments before the district court would proceed ad infini-
tum making litigation unruly and cumbersome.” Hardrick,
522 F.3d at 763 n.1. For similar reasons, we will not infer
waiver here from the government’s failure to seek leave to file
a surreply—with no authorization from the local rules—to re-
spond to an argument that Bourgeois never distinctly pre-
sented. The district court’s factual determination that the gov-
ernment intentionally waived its argument was clearly erro-
neous and amounts to an abuse of discretion. See Mays, 2020
WL 5361651, at *5.
We turn next to forfeiture. On appeal, the government in-
sists that its failure to respond to Bourgeois’s FDPA claim
was, at most, forfeiture. Although the district court did not
address forfeiture, its finding of intentional waiver was in-
compatible with forfeiture. After reviewing the issue for our-
selves, we are convinced that the government’s failure to re-
spond separately to Bourgeois’s FDPA claim—which was
governed by the same standard as his Atkins claim—did not
result in forfeiture. Forfeiture results from “inadvertence, ne-
glect, or oversight.” Henry, 969 F.3d at 786. We do not believe
that the government’s silence on Bourgeois’s FDPA claim was
“oversight” when Bourgeois himself, through his
No. 20-1891 17
undifferentiated presentation of the claims, was just as much
to blame for that silence.
In the end, though, our conclusion on forfeiture does not
make a difference because, even if the government had for-
feited the issue, we would forgive it on these unique facts. As
we have said, we have discretion to forgive a party’s forfeiture
in exceptional circumstances. Id. These circumstances include
when a forfeited ground is “founded on concerns broader
than those of the parties.” United States v. Ford, 683 F.3d 761,
768 (7th Cir. 2012) (quoting Wood v. Milyard, 566 U.S. 463, 471
(2012)). In Ford, for instance, we forgave the government’s
failure to argue harmless error because reversing on a harm-
less error would harm not just the forfeiting party, but also
“innocent third parties, in particular other users of the court
system, whose access to that system is impaired by additional
litigation.” Id. at 769. Although Ford was a criminal case, we
relied there on two Supreme Court decisions that arose in the
civil habeas context. The first was Granberry v. Greer, 481 U.S.
129 (1987), which held that a federal appellate court has dis-
cretion in “exceptional cases” to consider a state’s forfeited
exhaustion argument because of the significant comity and
federalism interests implicated by the exhaustion require-
ment. Id. at 134. The second was Wood, 566 U.S. 463, which
held that federal appellate courts have discretion to consider
forfeited statute-of-limitations defenses, given “the institu-
tional interests served by AEDPA’s statute of limitations,”
such as conserving judicial resources and protecting the accu-
racy and finality of state-court judgments. Id. at 472–73.
Similar considerations would compel us to look past any
government forfeiture in this case. We have already explained
why the government’s failure to separately address
18 No. 20-1891
Bourgeois’s FDPA claim was excusable as a practical matter.
But there are also broader interests at stake. As we recently
observed in Purkey v. United States, 964 F.3d 603 (7th Cir.
2020), “[f]inality” is a “central goal[] of the judicial system.”
Id. at 606. The importance of finality is especially pronounced
where, as here, postconviction proceedings have tied up a
criminal conviction for more than a dozen years. Beyond fi-
nality, there is judicial efficiency. “The idea of an entitlement
to one untainted opportunity to make one’s case is deeply em-
bedded in our law.” Id. The savings clause embodies that
principle by generally prohibiting repeat claims in federal
postconviction proceedings. See id.; see also United States v. Gio-
vannetti, 928 F.2d 225, 226 (7th Cir. 1991) (per curiam) (observ-
ing that courts may excuse forfeiture “for the sake of protect-
ing third-party interests including such systemic interests as
the avoidance of unnecessary court delay”). Taken together,
these significant interests convince us that, even if the govern-
ment had forfeited its FDPA argument, that forfeiture would
not prevent us from considering the savings-clause issue.
B. Cognizability Under the Savings Clause
That brings us to the main issue in this case: whether Bour-
geois’s case “fits within the narrow confines of the safety
valve.” Purkey, 964 F.3d at 611. Given its finding on waiver,
the district court did not address this question. For that rea-
son, Bourgeois, anticipating a loss on the waiver issue, asks us
to remand the issue so that the district court can consider it in
the first instance. That is indeed the normal course. Amcast In-
dus. Corp. v. Detrex Corp., 2 F.3d 746, 749 (7th Cir. 1993). But
that is not the best course here. We are dealing with a pure
issue of law that both sides have fully briefed. Remanding it
to the district court would likely result in a second appeal on
No. 20-1891 19
the issue, and we would be right back where we started.
“[T]he district judge’s view, while it would no doubt be inter-
esting, could have no effect on our review, which is plenary
on matters of law.” Id. at 750. Given this posture, the extensive
briefing on the issue, and the long pendency of this case, re-
solving the issue now is the better use of judicial resources.
1. Savings Clause and § 2241
Section 2255 permits a prisoner serving a federal sentence
to “move the court which imposed the sentence to vacate, set
aside or correct the sentence.” 28 U.S.C. § 2255(a). “In the
great majority of cases,” § 2255 is the “exclusive postconvic-
tion remedy for a federal prisoner.” Purkey, 964 F.3d at 611.
Section 2255 has a strict one-year statute of limitations. 28
U.S.C. § 2255(f). In addition, the statute ordinarily limits pris-
oners to just one shot at relief. As we recognized in Purkey,
though, there are two exceptions to that rule. Id. First,
§ 2255(h) authorizes a federal court of appeals to certify a
“second or successive motion” if it contains “newly discov-
ered evidence” proving innocence, or if it identifies “a new
rule of constitutional law, made retroactive to cases on collat-
eral review by the Supreme Court.” 28 U.S.C. § 2255(h). Bour-
geois pursued that option to no avail in the Fifth Circuit. In re
Bourgeois, 902 F.3d at 447. The second exception is § 2255(e),
better known as “the savings clause.” That subsection pro-
vides that a habeas corpus petition “shall not be entertained”
if the petitioner “has failed to apply for relief, by motion, to
the court which sentenced him, or that such court has denied
him relief, unless it also appears that the remedy by motion is in-
adequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e) (emphasis added). A prisoner who qualifies
for this “narrow pathway” to relief may file a petition under
20 No. 20-1891
28 U.S.C. § 2241, the general habeas corpus statute. Purkey, 964
F.3d at 611.
We recently examined the scope of the savings clause in
two cases that weigh heavily on Bourgeois’s appeal. The first
is Purkey, which we have already referenced. In that case,
Wesley Purkey filed a § 2241 petition claiming ineffective as-
sistance of counsel. Id. at 615. Purkey had previously raised a
claim of ineffective assistance of counsel in his § 2255 motion,
but in his § 2241 petition he identified three new grounds of
ineffective assistance. Id. He blamed his failure to raise those
grounds earlier on the ineffectiveness of his § 2255 counsel. Id.
Invoking the savings clause, Purkey argued “that section 2255
is structurally inadequate to test the legality of a conviction
and sentence any time a defendant receives ineffective assis-
tance of counsel in his one permitted motion.” Id. at 614.
We rejected that broad argument and explained that “the
words ‘inadequate or ineffective,’ taken in context, must
mean something more than unsuccessful.” Id. at 615. Instead,
“there must be a compelling showing that, as a practical mat-
ter, it would be impossible to use section 2255 to cure a fun-
damental problem. It is not enough that proper use of the stat-
ute results in denial of relief.” Id.
We found that Purkey was missing that “something
more.” Id. at 615–17. We did not deny that Purkey had raised
a significant question as to the effectiveness of his trial coun-
sel. Id. at 615. “But that [was] not the proper question before
us.” Id. It was, instead, “whether, having raised in his section
2255 motion 17 specific ways in which his trial counsel were
ineffective, Purkey is now entitled to add additional allega-
tions … through section 2241.” Id. He was not. We stressed
that, “[a]t the time Purkey filed his motion under section 2255,
No. 20-1891 21
nothing formally prevented him from raising each of the three
errors he now seeks to raise in his petition under 2241.” Id.
Even if Purkey’s counsel were not up to par, we were “left
with the fundamental problem” that “the mechanisms of sec-
tion 2255 gave him an opportunity to complain about ineffec-
tive assistance of trial counsel, and he took advantage of that
opportunity. There was nothing structurally inadequate or in-
effective about section 2255 as a vehicle to make those argu-
ments.” Id. at 616–17.
Our second recent decision on the savings clause is Lee v.
Watson, 964 F.3d 663 (7th Cir. 2020). Like Purkey, Daniel Lewis
Lee relied on the savings clause to raise a claim of ineffective
assistance of counsel that his § 2255 counsel had missed. Id. at
667. Applying Purkey, we rejected that use of the savings
clause. Id. We reiterated Purkey’s “unambiguous[]” holding
that “a § 2241 petition may not proceed under the Savings
Clause absent ‘a compelling showing’ that it was ‘impossible’
to use § 2255 to cure the defect identified in the § 2241 peti-
tion.” Id. at 666 (quoting Purkey, 964 F.3d at 615). Because
Lee’s case was “indistinguishable from Purkey,” the savings
clause did not apply. Id. at 667.
2. The Law Governing Intellectual-Disability Claims
With Purkey and Lee in mind, we turn to Bourgeois’s pitch
for savings-clause relief. At a basic level, Bourgeois says his
intellectual-disability claim qualifies for savings-clause relief
because no court has ever reviewed that claim in accordance
with clinical diagnostic standards. He acknowledges that he
raised an intellectual-disability claim in his § 2255 motion, but
he faults the judge in the Southern District of Texas who re-
jected that claim for applying “non-clinical, unscientific
standards” that the Supreme Court later rejected in Moore I
22 No. 20-1891
and Moore II. To better make sense of Bourgeois’s argument,
we briefly review the underlying legal framework.
The FDPA, which Congress passed in 1994, provides: “A
sentence of death shall not be carried out upon a person who
is mentally retarded.” 18 U.S.C. § 3596(c). As we have said, the
parties agree that the FDPA provides the same substantive
protection as Atkins and its progeny. Because Bourgeois’s
claims are substantively identical, we refer to them collec-
tively as his “intellectual-disability claim.” Our analysis ap-
plies equally to both claims.
In Atkins, the Supreme Court held that the Eighth Amend-
ment’s ban on cruel and unusual punishments forbids the ex-
ecution of intellectually disabled offenders. 536 U.S. at 321.
Importantly, the Supreme Court signaled that the law relies
on “clinical” definitions of intellectual disability. Id. at 318.
The Supreme Court referenced two “similar” definitions of
intellectual disability (both of which we have already men-
tioned). First, it cited an earlier version of AAIDD-11. Id. at
308 n.3. Second, it cited DSM-4. Id. It summarized both defi-
nitions as “requir[ing] not only subaverage intellectual func-
tioning, but also significant limitations in adaptive skills such
as communication, self-care, and self-direction that became
manifest before age 18.” Id. at 318.
Twelve years later, in Hall v. Florida, 572 U.S. 701 (2014),
the Supreme Court reiterated that courts “are informed by the
work of medical experts in determining intellectual disabil-
ity.” Id. at 710. The Court cited both Atkins and the newly
available fifth edition of the APA’s Diagnostic and Statistical
Manual of Mental Disorders (DSM-5) for its slightly refined
definition of intellectual disability: “[T]he medical commu-
nity defines intellectual disability according to three criteria:
No. 20-1891 23
significantly subaverage intellectual functioning, deficits in
adaptive functioning (the inability to learn basic skills and ad-
just behavior to changing circumstances), and onset of these
deficits during the developmental period.” Id. The Court held
that Florida’s strict requirement of an IQ score of 70 or less for
a finding of intellectual disability was incompatible with that
definition. Id. at 723.
A few years later, in Moore I, the Supreme Court consid-
ered whether Texas was adhering to the medical community’s
definition of intellectual disability. The Texas Court of Crimi-
nal Appeals (CCA) had reversed a lower court for applying
the medical community’s current definition of intellectual dis-
ability instead of the intellectual-disability factors that the
CCA had adopted in a previous case (the “Briseno factors”).
137 S. Ct. at 1044. The Supreme Court vacated the CCA’s de-
cision, finding that the Briseno factors were “untied to any
acknowledged source” and “[n]ot aligned with the medical
community’s information.” Id. The Court highlighted a few
specific ways in which the CCA had departed from the re-
quired framework. First, the CCA’s conclusion that Moore’s
IQ score of 74 meant that he was not intellectually disabled
was “irreconcilable with Hall.” Id. at 1049. Second, “[i]n con-
cluding that Moore did not suffer significant adaptive deficits,
the CCA overemphasized Moore’s perceived adaptive
strengths.” Id. at 1050. Citing DSM-5 and AAIDD-11, the
Court stressed that “the medical community focuses the
adaptive-functioning inquiry on adaptive deficits.” Id. Third,
the CCA had sought to blame Moore’s adaptive deficits on
other factors, such as his traumatic childhood experiences and
personality disorder, when neither of those factors was incon-
sistent with a finding that Moore was also suffering from an
intellectual disability. Id. at 1051. Indeed, Moore’s traumatic
24 No. 20-1891
childhood experiences were a risk factor for intellectual disa-
bility. Id. In short, by relying on “the wholly nonclinical
Briseno factors, the CCA failed adequately to inform itself of
the ‘medical community’s diagnostic framework.’” Id. at 1053
(quoting Hall, 572 U.S. at 721).
The case came back to the Supreme Court in Moore II. On
remand following Moore I, the CCA had revisited, and again
rejected, Moore’s claim of intellectual disability. In a per cu-
riam opinion, the Supreme Court reversed the CCA’s decision
on remand, finding that the CCA, while purporting to apply
the latest medical diagnostic standards, had, “with small var-
iations,” simply “repeat[ed] the analysis we previously found
wanting.” 139 S. Ct. at 670. After reviewing the trial record on
its own, the Court concluded that Moore was intellectually
disabled. Id. at 672.
3. Bourgeois’s Eligibility for Savings-Clause Relief
With that context, we consider whether Bourgeois is cor-
rect that Moore I and Moore II somehow qualify him for the
“narrow pathway” of review under the savings clause.
Purkey, 964 F.3d at 611. According to Bourgeois, the judge that
denied his § 2255 motion made essentially the same errors
that the CCA made in Moore I and Moore II. Bourgeois says the
§ 2255 court relied on “then-binding Fifth Circuit precedent”
to “reject[] diagnostic standards in evaluating Bourgeois’s
§ 2255 claim.” On the intellectual-functioning prong, Bour-
geois faults the court for not finding that his IQ scores (70 and
75) automatically established significantly subaverage intel-
lectual functioning. Instead, he says the court relied on “un-
scientific, erroneous stereotypes” to conclude that his IQ score
did not accurately represent his level of intellectual function-
ing. On the adaptive-deficits prong, Bourgeois criticizes the
No. 20-1891 25
court for dismissing the “psychological” approach to adap-
tive functioning in favor of a “legal” approach that weighed
adaptive deficits against adaptive strengths. He contends
that, like the CCA in Moore I, the § 2255 court erroneously re-
lied on unscientific stereotypes to evaluate his intellectual dis-
ability and improperly blamed his adaptive deficits on certain
“dysfunctional” aspects of his background.
Initially, we note our disagreement with Bourgeois’s con-
tention that the Texas district court “eschewed medical stand-
ards” in denying his § 2255 motion. After a week-long hear-
ing, the court thoroughly analyzed Bourgeois’s § 2255 motion
in a 225-page written order that dedicated more than 50 pages
to analyzing his intellectual-disability claim alone. Bourgeois,
2011 WL 1930684. Far from rejecting medical standards, as the
CCA had done in Moore I, the district court identified, and ap-
plied, the most recent medical guidance on intellectual disa-
bilities. Id. at *23–24. The district court’s references to its “le-
gal” approach to adaptive functioning do not convince us that
its treatment of adaptive functioning was inconsistent with
Moore I because the court found Bourgeois’s alleged adaptive
deficiencies to be slight and uncorroborated, without regard
to his adaptive strengths. See, e.g., id. at *41 (finding that “[t]he
evidentiary hearing testimony … failed to verify or support
most of” of the academic deficiencies that Bourgeois’s expert
relied on); id. at *44 (concluding, after reviewing all the evi-
dence presented on Bourgeois’s adaptive deficits, merely that
Bourgeois “may have had difficulties when younger”).
Contrary to what Bourgeois suggests, moreover, the court
did not view adaptive impairments as a zero-sum game, at-
tributable to either one cause (e.g., childhood abuse) or an-
other (e.g., intellectual disability), but not both. Rather, the
26 No. 20-1891
court found that the record did not “conclusively link” Bour-
geois’s childhood problems “to mental retardation rather
than a culturally deprived upbringing, poverty, or abuse.” Id.
In other words, there was a lack of evidence about what
caused Bourgeois’s alleged impairments. Unlike the CCA in
the Moore cases, the § 2255 court did not view Bourgeois’s
other childhood problems as evidence that he was not intel-
lectually disabled. Lastly, nowhere in Moore I or Moore II did
the Supreme Court say that a court must accept an IQ score at
face value, especially when a psychological expert credibly
testifies that the subject did not put forth his best effort on the
test. For these reasons, we are not convinced that the district
court’s analysis ran afoul of clinical diagnostic standards.
In the end, though, it is not for us to decide whether the
§ 2255 court got it right or wrong. That point seems lost on
Bourgeois, who goes on at length about why, in his view, the
§ 2255 court was wrong. “[T]hat is not the proper question
before us.” Purkey, 964 F.3d at 615. The savings clause is not
simply another avenue for appeal. Indeed, Bourgeois had the
chance to appeal the court’s denial of his intellectual-disabil-
ity claim, yet he chose not to do so. At this stage of the pro-
ceedings, our only role is to determine whether there was
something “structurally inadequate or ineffective about sec-
tion 2255 as a vehicle” for Bourgeois. Id. at 616–17. There
plainly was not.
Atkins was the watershed case on intellectual disability.
Before Atkins, the Supreme Court had not decided whether
the Constitution prevents the execution of intellectually disa-
bled offenders. Atkins held that it does, and further signaled
that the law borrows its definition of intellectual disability
from the medical community. 536 U.S. at 308 n.3, 318. The
No. 20-1891 27
Supreme Court carried forward that core insight from Atkins
in Hall, Moore I, and Moore II, and further elaborated on the
measurements of intellectual function and the evaluation of
adaptive deficits. The importance of applying medical stand-
ards, however, has been evident since Atkins and was evident
to the § 2255 court in this case.
Critically, Atkins was on the books when Bourgeois filed
his § 2255 motion in 2007. Bourgeois says he never had the
chance to litigate his intellectual-disability claim under clini-
cal diagnostic standards. But that is precisely what Bourgeois
did in his § 2255 motion. The § 2255 court set forth, and ap-
plied, the same three-part test for intellectual disability that
now prevails. Bourgeois, 2011 WL 1930684, at *23–24; see Web-
ster v. Watson, --- F.3d ----, No. 19-2683, 2020 WL 5638691, at *9
(7th Cir. Sept. 22, 2020) (Webster II) (relying on the same three-
part test). It drew that test from Atkins, DSM-4, and AAIDD-
11. Bourgeois, 2011 WL 1930684, at *23–24; see Webster II, 2020
WL 5638691, at *14 (relying on DSM-5 and AAIDD-11). True,
some aspects of the court’s analysis would have looked dif-
ferent if the Supreme Court had decided Moore I by then. But
the savings clause does not apply every time the Supreme
Court clarifies the law that governed a prisoner’s § 2255 mo-
tion, or, where intellectual disability is at issue, every time the
medical community updates its diagnostic standards. Were
that the case, we would truly be facing “a never-ending series
of reviews and re-reviews.” Purkey, 964 F.3d at 615.
As in Purkey, “nothing formally prevented [Bourgeois]
from raising each of the … errors he now seeks to raise in his
petition under 2241.” Id. Indeed, Bourgeois’s § 2255 motion
did raise the errors that he now seeks to correct. Bourgeois
makes that point inadvertently when criticizing the § 2255
28 No. 20-1891
court’s analysis. He argues that the court’s “refusal to follow
diagnostic criteria” led it to credit the government’s expert,
who weighed adaptive deficiencies against adaptive
strengths, over his own expert, who, “consistent with diag-
nostic criteria … explained that the[] strengths did not offset
Bourgeois’s deficits in any given area.” Far from being “im-
possible” to rely on the substantive teachings of Moore I and
Moore II, Bourgeois hired an expert to testify to precisely what
the Supreme Court eventually clarified in Moore I and Moore
II—namely, that the adaptive functions inquiry focuses on
adaptive deficits. Bourgeois suggests that binding Fifth Cir-
cuit precedent prevented the court from properly analyzing
his adaptive deficits. But even if that were true, it does not
demonstrate that it was “impossible” for Bourgeois, armed
with Atkins and the latest clinical diagnostic standards, to
demonstrate that he was intellectually disabled. “[T]he words
‘inadequate or ineffective,’ taken in context, must mean some-
thing more than unsuccessful.” Purkey, 964 F.3d at 615.
Bourgeois’s problems do not stop there. We have held that
the savings clause affords relief in limited circumstances to
federal prisoners who rely on retroactive statutory-interpre-
tation cases that postdate their § 2255 motions. See, e.g., In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998). As we observed in
Purkey, “[s]tatutory problems are simply not covered in sec-
tion 2255.” 964 F.3d at 615. But Moore I and Moore II are con-
stitutional cases, not statutory interpretation cases. That is
why Bourgeois relied on Moore I when he sought permission
from the Fifth Circuit to file a successive § 2255 motion. See 28
U.S.C. § 2255(h). The Fifth Circuit denied his request. In re
Bourgeois, 902 F.3d at 447. Bourgeois now comes to us with
essentially the same argument, asking us in effect to overrule
the Fifth Circuit. This time, Bourgeois does not even attempt
No. 20-1891 29
to argue that Moore I and Moore II are retroactive. We will not
authorize that end-run around § 2255(h).
Bourgeois has two unpersuasive rejoinders. First, Bour-
geois says it does not matter whether Moore I and Moore II are
retroactive because the FDPA applies current definitions of in-
tellectual disability. According to Bourgeois, the FPDA’s ban
on executing a person who “is” intellectually disabled, 18
U.S.C. § 3596(c), proscribes executing anyone who is pres-
ently intellectually disabled, as determined by current legal
and diagnostic standards—including those reflected in Moore
I and Moore II. This is part of Bourgeois’s larger argument that
Atkins and the FDPA forbid both the “imposition” and the
“execution” of death sentences on the intellectually disabled.
Bourgeois makes much of the FDPA’s use of the word “is.”
But what other word would Congress have chosen? Intellec-
tual disability is a permanent condition that must manifest be-
fore the age of 18. Atkins, 536 U.S. at 318. It would be senseless
to proscribe the execution of someone who merely “was” in-
tellectually disabled when they were sentenced, or who “will
be” intellectually disabled when their sentence is carried out.
Bourgeois seems to confuse intellectual disability with the
temporary condition of incompetency, which may come and
go. See Ford v. Wainwright, 477 U.S. 399 (1986); see also Williams
v. Kelley, 858 F.3d 464, 472 (8th Cir. 2017) (per curiam); Busby
v. Davis, 925 F.3d 699, 713 (5th Cir. 2019). For these reasons,
we find no support for Bourgeois’s argument in the word “is.”
And with no textual (or other) support, we are unwilling to
accept Bourgeois’s sweeping argument that a fresh intellec-
tual-disability claim arises every time the medical community
updates its literature.
30 No. 20-1891
Next, Bourgeois contends that his case fits within the pa-
rameters of the three main cases where we have found the
savings clause applicable: Davenport, 147 F.3d 605; Garza v.
Lappin, 253 F.3d 918 (7th Cir. 2001); and Webster I, 784 F.3d
1123. To the contrary, Davenport, Garza, and Webster I merely
illustrate the “something more” that Bourgeois is missing.
Purkey, 964 F.3d at 615. In Davenport, the successful petitioner
(Nichols) had a new, retroactive Supreme Court statutory de-
cision holding that the conduct for which he was imprisoned
was not a crime. 147 F.3d at 611. Garza had a previously un-
obtainable decision from an international tribunal finding
that his death sentence violated international human rights
norms. 253 F.3d at 923. And Webster had clear and convincing
new evidence showing that he was intellectually disabled and
thus ineligible for the death penalty. 784 F.3d at 1140–44.
We recently reviewed Webster’s new evidence again in
Webster II, 2020 WL 5638691, which further illustrates the type
of unusual circumstances that warrant savings-clause relief.
On remand following our decision in Webster I, the district
court held a lengthy evidentiary hearing on Webster’s intel-
lectual-disability claim. From the evidence presented at the
hearing, the district court determined that Webster’s new ev-
idence of intellectual disability, which predated his capital
trial, had been unavailable to Webster at trial despite his coun-
sel’s diligent efforts to obtain it at the time. Id. at *8. The new
evidence was far from cumulative, moreover, because it
showed for the first time that Webster had been diagnosed as
intellectually disabled before he committed the crimes for
which he had been sentenced to death, “at a time when Web-
ster had no incentive to malinger.” Id. at *15. That was critical
because the government’s theory at trial was that Webster’s
low IQ scores were the product of malingering. Id. at *3. After
No. 20-1891 31
reviewing the new evidence and other evidence presented at
the hearing, the district court found that Webster was intellec-
tually disabled. Id. at *9–12. We upheld the district court’s fac-
tual findings on appeal because they contained no clear error.
Id. at *12–17. Unlike Webster, Bourgeois has no newly discov-
ered evidence. Instead, he had a full and fair opportunity to
litigate his intellectual-disability claim before the district
court that decided his § 2255 motion.
To be sure, Davenport, Garza, and the Webster cases do not
“create rigid categories delineating when the safety valve is
available.” Purkey, 964 F.3d at 614. But they illustrate the lim-
ited kinds of structural defects that justify savings-clause re-
lief. Of the three cases, Davenport may best illustrate what
Bourgeois is lacking. Nichols, the successful petitioner in Dav-
enport, had a retroactive, statutory decision that completely
undermined the legal basis for his conviction. Bourgeois’s
only claim, by contrast, is that the law governing his intellec-
tual-disability claim continued to develop after he lost on that
claim in his § 2255 motion. That is not enough. A federal pris-
oner is entitled to one “reasonable opportunity to obtain …
judicial correction of a fundamental defect in his conviction
or sentence.” Davenport, 147 F.3d at 611. Bourgeois had that
opportunity. That being so, Bourgeois is not eligible for sav-
ings-clause relief on either his Atkins claim or his FDPA claim.
III. Conclusion
The question in this appeal is not whether Alfred Bour-
geois is intellectually disabled. It is, instead, whether he was
able to litigate his intellectual-disability claim in his § 2255
motion. He was, and he did. The savings clause is a narrow
route to relief that exists only to prevent fundamental errors
that § 2255 could not have corrected. It does not invite federal
32 No. 20-1891
prisoners to relitigate their claims every time the Supreme
Court refines the relevant legal standard.
Accordingly, we REVERSE the district court’s determina-
tion that Bourgeois is likely to succeed on the merits and
REMAND with instructions for the district court to deny
Bourgeois’s motion for a stay of execution and dismiss Bour-
geois’s § 2241 petition.
One final matter: At oral argument, the government re-
quested that we issue our mandate immediately. We decline
that request. Instead, we exercise our authority to expedite the
issuance of the mandate and adjust the rehearing deadlines.
Fed. R. App. P. 35(c), 40(a), 41(b); see, e.g., Boucher v. Sch. Bd. of
Sch. Dist. of Greenfield, 134 F.3d 821, 829 (7th Cir. 1998). The
mandate shall issue seven days after the date this opinion is
issued. A petition for panel or en banc rehearing must be filed
within seven days after the issuance of this opinion. A petition
for rehearing shall stay issuance of the mandate until disposi-
tion of the petition. If the petition is denied, the mandate shall
issue immediately upon denial.