Bruce Carneil Webster v. Charles A. Daniels

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1049
BRUCE CARNEIL WEBSTER,
Petitioner-Appellant,
v.
CHARLES A. DANIELS, Warden,
United States Penitentiary, Terre Haute,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:12-cv-086-WTL-WGH — William T. Lawrence, Judge.
____________________
ARGUED JANUARY 7, 2015 — DECIDED MAY 1, 2015
____________________
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER,
and HAMILTON, Circuit Judges.
WOOD, Chief Judge. Since 1948, federal prisoners who
contend that they were convicted or sentenced in violation of
the Constitution or laws of the United States have been re-
quired in most cases to present that claim through a motion
under 28 U.S.C. § 2255. The motion must be filed in the dis-
2 No. 14-1049
trict of conviction. As a rule, the remedy afforded by section
2255 functions as an effective substitute for the writ of habe-
as corpus that it largely replaced. See 28 U.S.C. § 2241; United
States v. Hayman, 342 U.S. 205 (1952). But Congress recog-
nized that there might be occasional cases in which “the
remedy by motion is inadequate or ineffective to test the le-
gality of [the applicant’s] detention.” 28 U.S.C. § 2255(e). The
question before us is whether petitioner Bruce Webster has
presented such a case. If so, then he may proceed to the mer-
its of his petition; if not, then his case must be dismissed at
the threshold.
Webster was convicted in the Northern District of Texas
of the federal crimes of kidnapping resulting in death, con-
spiring to commit kidnapping, and using and carrying a
firearm during a crime of violence. United States v. Webster,
162 F.3d 308 (5th Cir. 1998) (Webster I). He was sentenced to
death on the first count, after the district court rejected his
argument that he was ineligible for the death penalty on ac-
count of mental retardation (now termed “intellectual disa-
bility” by the Supreme Court, see Hall v. Florida, 134 S. Ct.
1986, 1990 (2014)). The Fifth Circuit later rejected Webster’s
motion for relief under section 2255, United States v. Webster,
421 F.3d 308 (5th Cir. 2005) (Webster II), and his application
for an order authorizing a successive 2255 proceeding. In re
Webster, 605 F.3d 256 (5th Cir. 2010) (Webster III).
Webster is now seeking the opportunity to present newly
discovered evidence that would demonstrate that he is cate-
gorically and constitutionally ineligible for the death penalty
under the Supreme Court’s decisions in Atkins v. Virginia, 536
U.S. 304 (2002), and Hall. A panel of this court concluded that
new evidence can never satisfy the demanding standard of
No. 14-1049 3
section 2255(e) and thus that Webster cannot be heard. Web-
ster v. Caraway, 761 F.3d 764 (7th Cir. 2014) (Webster IV). In
light of the importance of the question, the full court decided
to rehear the case en banc. We conclude that there is no such
absolute bar to the use of the safety valve found in section
2255(e) for new evidence that would demonstrate categorical
ineligibility for the death penalty. We therefore reverse the
district court’s judgment and remand for further proceed-
ings.
I. Background Facts and Proceedings
A. Facts
There is no doubt that Webster and his co-defendants
committed a horrible crime. We take our account of the un-
derlying facts from the Fifth Circuit’s opinion in Webster I.
Those facts are largely undisputed at this stage; the only
question is what they show, or do not show, about Webster’s
intellectual functioning.
Webster, along with Orlando Hall and Marvin Holloway,
ran a marijuana business in Pine Bluff, Arkansas, a city of
approximately 50,000 that lies about 45 miles south of Little
Rock and 330 miles east of Dallas, Texas. The group used
suppliers in the Dallas/Fort Worth area with the help of a lo-
cal contact, Steven Beckley.
On September 21, 1994, Holloway drove Hall from Pine
Bluff to the Little Rock airport, and Hall flew to Dallas; Beck-
ley and Hall’s brother Demetrius picked Hall up at the other
end. Later that day, Hall and Beckley met two local dealers,
Stanfield Vitalis and Neil Rene, at a car wash and gave them
$4,700 as payment in advance for some marijuana. Beckley
and Demetrius then returned to the car wash, but Vitalis and
4 No. 14-1049
Rene never appeared. Hall phoned them to find out what
happened, and they told him that both the car they had been
driving and the money had been stolen from them. Hall fig-
ured out that the telephone number he had used was associ-
ated with the Polo Run apartments in Arlington, Texas (a
Dallas suburb). Hall, Demetrius, and Beckley began watch-
ing the apartment. When they spotted Vitalis and Rene in
the supposedly stolen car, they concluded that the story
about the stolen money was also false.
Three days later, Hall contacted Holloway and told him
to arrange for Webster to fly to Dallas. Webster complied
with Holloway’s instructions. That evening, Hall, Demetrius,
Beckley, and Webster went to the Polo Run apartments in a
Cadillac owned by Hall’s sister, Cassandra Ross. Hall and
Webster were armed with handguns; Demetrius had a small
souvenir baseball bat; and Beckley had duct tape and a jug of
gasoline. So equipped, the group approached the apartment
they had seen Vitalis and Rene use, and they knocked on the
door. The occupant, Lisa Rene (the 16-year-old sister of Neil
Rene), refused to let them in and called her sister and the
police emergency number. Webster unsuccessfully tried to
kick in the door. When that did not work, he and Demetrius
looked through a sliding glass door and saw Lisa on the
telephone. Demetrius shattered the door with the bat, and
Webster entered the apartment, seized Lisa, and dragged her
to the car.
In the meantime, Hall and Beckley had returned to the
car. Webster, with Lisa in tow, met them there. He forced Li-
sa onto the floorboard and the group drove to Ross’s apart-
ment nearby. Once there, they left the Cadillac and shoved
Lisa into the back seat of Beckley’s car. Hall climbed into the
No. 14-1049 5
back seat with her, and Webster sat in the front passenger
seat. Beckley drove around looking for a secluded spot;
while he did so, Hall raped Lisa and forced her to perform
oral sex on him.
Eventually Beckley drove them back to Ross’s apartment.
From there, Beckley, Demetrius, and Webster drove Lisa, still
a prisoner, the 330 miles to Pine Bluff. En route, Webster and
Demetrius took turns raping Lisa. Once they reached Pine
Bluff, they rented a motel room, where they tied Lisa to a
chair and continued to assault her sexually.
The next morning, September 25, Hall and Holloway
showed up at the motel room. They took Lisa into the bath-
room for about 20 minutes. When they came out again, Hall
told Beckley that “she know too much.” Hall, Holloway, and
Webster then left the motel. Later that afternoon, Hall and
Webster went to a park and dug a grave. That evening, Hall,
Beckley, and Webster took Lisa to the park, but they could
not find the grave site in the dark and so they returned to the
motel room. They shifted Lisa to another room the next
morning.
Later that morning, Hall, Beckley, and Webster took Lisa
back to the park. They covered her eyes with a mask. Hall
and Webster led the way to the grave site, while Beckley
guided Lisa along. At the grave site, Hall turned Lisa’s back
to the grave, placed a sheet over her head, and hit her in the
head with a shovel. She tried to run away, but Beckley
grabbed her and they both fell down. Beckley hit her twice
with the shovel and handed it to Hall. At that point, Webster
and Hall took turns hitting her with the shovel. Webster then
gagged her, dragged her to the grave, stripped her, poured
gasoline on her, pushed her in, and shoveled dirt over her.
6 No. 14-1049
The record indicates that, although she was unconscious by
then, Lisa was probably still breathing when she was buried.
It did not take long for the authorities to find out who
was responsible for Lisa’s hideous death. Lisa’s brothers gave
information leading to Demetrius’s arrest to the police, and
Hall and Beckley surrendered soon thereafter. Beckley con-
fessed to his role in the kidnapping; his confession also im-
plicated Hall and someone he called “B-Love.” Beckley also
said that he had last seen Lisa at the motel with B-Love, and
a security guard at the hotel told the officers that Webster
went by that name. When Webster pulled into the motel
parking lot early on September 30, he was arrested.
B. Trial and Direct Appeal
In November 1994, Webster (along with Hall, Demetrius,
Beckley, and Holloway) was indicted by a federal grand jury
on charges of kidnapping in which a death occurred (Count
1, 18 U.S.C. § 1201(a)(1)), conspiracy to commit kidnapping
(Count 2, 18 U.S.C. § 1201(c)), traveling in interstate com-
merce with intent to promote extortion (Count 5, 18 U.S.C.
§ 1952), and using and carrying a firearm during a crime of
violence (Count 6, 18 U.S.C. § 924(c)). In February 1995, the
government filed a notice of intent to seek the death penalty
against Webster, pursuant to the Federal Death Penalty Act
of 1994, 18 U.S.C. § 3593(a) (which had taken effect just 12
days before the murder). Webster’s trial later was severed
from that of his co-defendants. 1
1 Hall went to trial, was convicted, and was also sentenced to death.
See United States v. Hall, 152 F.3d 381 (5th Cir. 1998). Like Webster, he is
currently housed at the U.S. Penitentiary in Terre Haute. Demetrius Hall,
No. 14-1049 7
The jury returned guilty verdicts on Counts 1, 2, and 6;
Count 5 was dismissed on the government’s motion. The
court conducted a separate sentencing hearing before the
same jury, which returned special findings that Webster sat-
isfied the statute’s intent requirement, 18 U.S.C. § 3591(a),
and that three statutory and two non-statutory aggravating
factors were present. 18 U.S.C. § 3592(c). Varying numbers of
jurors found nine mitigating factors, some statutory and
some non-statutory. See 18 U.S.C. § 3592(a); Webster I, 162
F.3d at 319 & n.2. The court sentenced Webster to death on
Count 1; to life imprisonment on Count 2; and to 60 months’
imprisonment on Count 6.
On direct appeal, Webster raised four grounds for rever-
sal that the Fifth Circuit had already rejected in Hall’s sepa-
rate appeal, see United States v. Hall, 152 F.3d 381 (5th Cir.
1998), and 16 additional grounds, some of which related to
his conviction and some to his sentence. Only one of them
remains relevant at this stage of the game: point 13, which
asserted that the district court “plainly erred and violated
Webster’s constitutional rights by entering a factual finding
that he is not mentally retarded.” Webster I, 162 F.3d at 321.
Before turning to the Fifth Circuit’s resolution of that point, it
is essential to review the evidence of intellectual disability
that was presented at the sentencing phase of the trial; virtu-
ally none came in at the guilt phase. Without this back-
Steven Beckley, and Marvin Holloway all pleaded guilty and testified at
Webster’s trial; they received varying sentences for terms of years.
8 No. 14-1049
ground, it is impossible to decide whether the newly discov-
ered evidence would have made a difference. 2
The defense relied primarily on the testimony of three
experts: Dr. Raymond Finn, a clinical psychologist; Dr. Denis
Keyes, a professor of special education and a certified school
psychologist with expertise in mental retardation; and Dr.
Robert Fulbright, a clinical neuropsychologist. At the most
general level, those three agreed with the experts for the
United States that a finding of mental retardation is appro-
priate if the person’s I.Q. is roughly 70 or below on one of the
accepted tests, and if the person has a deficit in at least one
of three areas of adaptive functioning (communication, so-
cialization, and daily living skills). (A third criterion—onset
before the age of 18—was not contested.) Dr. Finn testified
about Webster’s I.Q.; Dr. Keyes testified about his adaptive
functioning; and Dr. Fulbright testified more specifically
about his level of mental functioning.
Before Dr. Finn personally administered an I.Q. test to
Webster, he received copies of tests that had been performed
in 1992, approximately two years before the murder, at the
Southeast Arkansas Mental Health Clinic (the Clinic). Web-
ster had gone there after his brother-in-law stabbed one of
his brothers to death. The Clinic gave him the Wechsler
Adult Intelligence Scale (WAIS) test, which is widely used.
Webster scored 56 on the verbal part of the test, 48 on the
performance part, and received a full-scale I.Q. score of 48.
2 Although our account may seem detailed, it is only a summary of
more than 600 pages of trial transcript. We have attempted to hit the
high points, without mentioning every time someone said something of
interest.
No. 14-1049 9
The 1992 results, both defense and prosecution witnesses
said, had to be taken with a grain of salt. Dr. Finn reported
that the psychologist who conducted the test noted that
Webster was confused, preoccupied, and poorly oriented at
the time, and so the scores may have been depressed for that
reason. The I.Q. tests were also viewed at the time as sec-
ondary to the possibility that Webster was suffering from
schizophrenia, depression, or some other mental disorder.
With that possibility in mind, the Clinic prescribed the anti-
psychotic drug Haldol for him, although in the end it did not
conclude that he was schizophrenic. A full-scale score of 48,
however, easily meets the threshold of an I.Q. of 70 for intel-
lectual disability recognized by the American Psychiatric As-
sociation’s Diagnostic and Statistical Manual of Mental Dis-
orders (DSM), both in the DSM-IV (the 4th edition that was
in force at the time of trial) and in the current DSM-V (which
took effect in 2013). It also meets the standard recognized by
the American Association for Mental Retardation, now
called the American Association on Intellectual and Devel-
opmental Disabilities.
After collecting background information on Webster, Dr.
Finn administered the WAIS test to him in January 1995.
That test revealed a verbal I.Q. score of 59, a performance
I.Q. score of 60, and a full-scale I.Q. of 59, still well below the
70 mark. Dr. Finn explained that this score put Webster in
the 0.3 percentile in the country, meaning that 99.7 percent of
test-takers would do better. Taking into account Webster’s
agitation at the time of the 1992 test, Dr. Finn found the re-
sults of his test to be consistent with the earlier one, though
likely more reliable.
10 No. 14-1049
Dr. Finn administered the WAIS test again to Webster in
June 1996, just before the trial started. He noted that there is
some learning effect from repeated exposure to the same
test, and so one would predict a somewhat better perfor-
mance. And that is what happened. Webster’s verbal I.Q.
rose to 72; his performance I.Q. dropped one point to 59; and
his full-scale I.Q. was now 65, which (like the earlier find-
ings) put Webster in the “mildly retarded” group.
Other aspects of Webster’s behavior confirmed this con-
clusion, in Dr. Finn’s view. Among other things, he noted
Webster’s marginal school achievement (he dropped out in
9th grade), marginal employment history (almost none,
apart from one job he lost after a week), lack of independent
living (he lived with his mother), and concrete speech pat-
terns (meaning that he was not able to deal with abstract
concepts). Webster did have good knowledge of words, but
Dr. Finn thought he was better at speaking than understand-
ing.
On cross-examination, the government urged Dr. Finn to
consider whether a person such as Webster, charged with a
capital crime, would have a motive to lie or manipulate
while being tested. The Assistant U.S. Attorney (AUSA) also
suggested that someone might have a motivation to lie if a
finding of mental retardation would establish eligibility for
various governmental benefits. In addition, the AUSA noted
that Dr. Finn had mentioned in a letter he wrote to defense
counsel that Webster told him that Webster had been in spe-
cial education classes through most of his school career. The
AUSA then said “you know that’s not true now, don’t you,”
and Dr. Finn agreed that he did “know that now.” As for the
questions about motivation, Dr. Finn rejected the AUSA’s
No. 14-1049 11
suggestion, insisting instead that Webster had put forth a
good effort on all of the tests, that an experienced adminis-
trator could readily detect an effort to manipulate, and that
he saw no such thing.
Dr. Keyes, who was a specialist in mental retardation, al-
so relied on the DSM-IV. He testified about adaptive func-
tioning, which he explained covered “the main areas of
adaptive skills … communication, socialization, and daily
living skills … .” It is important, he stated, to look at adap-
tive functioning, because “it is possible for a person to be in-
tellectually retarded but not necessarily adaptively retard-
ed.” Both are necessary to meet the definition of mental re-
tardation under the law.
Several important points came up during Dr. Keyes’s tes-
timony. The first relates to whether adaptive functioning
should be assessed in relation to the world outside institu-
tional walls, or in the prison environment. He argued that
the former is what counts, because of the strictures of institu-
tional living. The second point relates to assessment meth-
odology: are accepted psychological tests necessary, or is it
acceptable to rely exclusively on anecdotal evidence and
perceptions? Dr. Keyes, as well as one of Webster’s rebuttal
experts (Dr. George Denkowski), took the position that pro-
fessional testing of this type is critical, because less rigorous
measures give one no idea of where a person stands relative
to the rest of the population. He accordingly administered
the well-known Vineland test, which involved interviews of
many people who had known Webster before the age of 18
(the age by which intellectual disability must appear) and in
the “real world” as opposed to an institutional setting. He
concluded from the results that Webster’s verbal skills
12 No. 14-1049
somewhat exceeded what one might predict from his I.Q.,
but that overall his adaptive functioning was at the level of a
six- to seven-year-old. Dr. Keyes firmly denied that Webster
could have manipulated the results of the several tests that
he had administered. Finally, Dr. Keyes recalled that Dr. Finn
had told him about Webster’s special-education classes. On
cross-examination, the AUSA asked whether Dr. Finn had
ever mentioned that Webster had lied when he said he was
in special education classes; Dr. Keyes had no memory of
such a comment.
Next, Dr. Fulbright, the clinical neuropsychologist, dis-
cussed the tests he had performed to evaluate Webster’s at-
tention, memory, problem-solving abilities, and general
mental functioning. He too administered standardized tests.
Those tests did not include an I.Q. test, because by that time
Webster had already undergone multiple I.Q. tests while he
was in the detention facility. The tests Dr. Fulbright adminis-
tered included ones for attention and concentration,
memory, information-processing speed, distractibility, visual
and verbal memory, abstract reasoning, and logical analysis.
Webster performed poorly on many of these tests. He
was unable to learn even the basics of an auditory addition
test (thinking speed); he was very distractible; he did very
badly on a visual memory test, but better on the verbal test;
and his performance was severely impaired on higher-level
thinking, problem-solving, and logical analysis tests. Dr.
Fulbright found, consistently with a comment Dr. Finn
made, that Webster is “extremely concrete” and not able to
think abstractly. Yet, as others had also noted, his verbal flu-
ency was surprisingly good. Even there, however, the testing
revealed problems. In a test where he was read sentences of
No. 14-1049 13
increasing length and complexity and asked to say them
back, Webster could manage only fairly short sentences. He
was unable to listen to long complex communications and
understand fully what was being said. Finally, Webster’s
lawyer asked Dr. Fulbright whether someone could fake re-
sults in the tests that had been described. Dr. Fulbright’s re-
sponse was “not convincingly,” because the tests are some-
what redundant, the subject would not know how to fake
the results, and inconsistencies would be evident if someone
were trying to manipulate them. He concluded that Web-
ster’s testing revealed him to be a person who is mildly to
moderately retarded. On cross-examination, he reiterated
that faking is “quite easy” to detect on the tests he gave.
The government followed two strategies on rebuttal: first,
it called a large number of lay witnesses (police officers,
school administrators, school teachers, an employer, jailers)
who all testified that Webster did not seem mentally retard-
ed to them; second, it offered two experts, Dr. George Parker
and Dr. Richard Coons, to rebut Webster’s experts. When the
topic of special education came up, the government’s wit-
nesses all denied that Webster had been in those classes. We
will not review all of the lay testimony, other than to note a
number of points that some or all of the witnesses made.
Webster had managed to pass his Arkansas driving test with
an almost perfect score (though other testimony indicated
that he had done so by cheating). Several noted that Webster
was “street smart.” Both teachers said that he did not seem
to be mentally retarded, though Pat Drewett, one of them,
said, “[He] performed at a slower level. He did read slower.
On the days that he did perform, which most of the days he
did sleep. He didn’t perform a lot. He could read. He could
do. He chose not to do on a lot of days. He did sleep a lot.”
14 No. 14-1049
School counselor E.C. Turner reported that in the 7th grade,
Webster scored in the 43rd percentile of a national achieve-
ment test known as the M.A.T. 6 Survey. On cross-
examination, Turner admitted that Webster’s grades began
to fall off between the 6th and 7th grades. Tom McHan, a
general contractor for whom Webster worked about a week,
testified that he saw nothing to indicate that Webster was
mentally impaired, but that he fired Webster from his job on
a clean-up crew after one week for sleeping on the job.
The government also presented, as evidence of Webster’s
functional capabilities, several facts about his life in prison.
An inmate testified that he and Webster would communicate
in “pig Latin” and that Webster was capable of quoting large
portions of scripture. He described Webster as having a
“photographic” memory for the Bible. Other testimony, con-
sistent with Webster’s penchant for bragging about his sexu-
al prowess, recounted Webster’s successful effort to crawl
through “the bean chute” in the jail to get to the women’s ar-
ea. Finally, witnesses reported that Webster visited the law
library, obtained books from it, and on one occasion spotted
that the commissary had given him the wrong change for a
purchase.
Dr. Parker, a psychologist with a general practice, was the
government’s first expert witness. At the government’s re-
quest, he evaluated Webster and gave him a truncated ver-
sion of the WAIS I.Q. test. His results showed a verbal I.Q.
estimate of 77, a performance I.Q. of 67, with a full-scale I.Q.
of 72. He agreed with the AUSA that motivation plays a sig-
nificant role in the results, and that this would be a particu-
lar problem in a “forensic” setting. Dr. Parker did not at-
tempt formally to assess Webster’s adaptive functioning, ei-
No. 14-1049 15
ther through the Vineland test or otherwise. He challenged
the utility of the Vineland test, based on the fact that Webster
(then age 23) had been incarcerated for five years since the
age of 15. He agreed with the AUSA that Webster was able to
communicate effectively, to speak in full sentences, to read
simple stories aloud, and to keep his cell clean and tidy.
On cross-examination, defense counsel brought out the
fact that the WAIS test has 11 parts, all of which must be
administered to obtain a valid result, but that Dr. Parker had
deliberately omitted some. He gave Webster four of the sub-
tests in the verbal area, and three of the sub-tests in the per-
formance area, omitting two in each. Worse than that, coun-
sel suggested, the tests that he omitted (arithmetic and in-
formation) are traditionally the ones in which the intellectu-
ally disabled do the worst. Dr. Parker claimed ignorance of
that fact (although on surrebuttal a defense expert supported
Webster’s counsel’s assertion). What Dr. Parker did instead
was to assign an average score, based on the tests that were
administered, to the omitted sub-tests. This created an up-
ward bias, counsel charged. Thus, for instance, when Dr.
Finn administered the information sub-test, Webster scored
a 2; Dr. Parker’s average assigned a score of 6. Dr. Parker also
acknowledged that the DSM-IV and the American Associa-
tion on Mental Retardation recommend using a recognized
instrument like the Vineland test for adaptive functioning,
but that he had chosen not to do so. Finally, Dr. Parker ad-
ministered a test called the Schretlen Malingering Scale, and
he admitted that the results did not support a finding of ma-
lingering.
The government’s final expert was Dr. Coons, a forensic
psychiatrist whose practice focused on assessments of com-
16 No. 14-1049
petency to stand trial, but who occasionally looked at ques-
tions of intellectual disability. Upon a personal examination,
he found that Webster was well oriented to time, place, and
person, and that he could give a detailed chronological ac-
count of events. Relying on the accounts of Webster’s day-to-
day life, Dr. Coons concluded that his adaptive functioning
was not consistent with a finding of mental retardation.
After entering the sentence of death on the verdict, the
district court filed a separate document entitled “Factual
Finding Regarding Mental Retardation.” It concluded that
“Webster is not mentally retarded and … he possesses the
requisite mental capacity to understand the death penalty
and why it will be imposed on him. As a result, the defend-
ant Webster is not exempt under 18 U.S.C. § 3596(c) from
implementation of the death penalty.”
Webster challenged this finding on direct appeal, but the
Fifth Circuit “conclude[d] that the court took proper action,
and the finding was supported by the evidence.” Webster I,
162 F.3d at 351. It applied plain error review, because Web-
ster had failed to object to the factual finding in a timely way.
Given how recent the statute was at the time of Webster’s
trial, the court found no reversible error in the procedures
the district court followed in carrying out its responsibilities.
It rejected in particular Webster’s argument that the issue of
mental retardation should have been decided by the jury, not
the court. With respect to the sufficiency of the evidence on
intellectual disability, the court had almost nothing to say;
we reproduce its discussion in its entirety:
Webster contends that the finding that he is not
mentally retarded is against the greater weight
and credibility of the evidence. The standard of
No. 14-1049 17
review for a finding that a defendant is not
mentally retarded under § 3596 presents an is-
sue of first impression. Because it is a factual
finding, we adopt the clearly erroneous stand-
ard.
The government presented substantial evi-
dence to support the finding. Furthermore, on-
ly four of the twelve jurors found that Webster
is or may be mentally retarded and that he suf-
fers from low intellectual functioning. 3 We
cannot say the court clearly erred in deciding
that Webster is not mentally retarded.
Id. at 352–53 (footnote omitted). Based on the information
then available to Webster, this marked the end of Webster’s
direct appeal on the issue of intellectual disability.
C. First Motion under Section 2255
At that point, Webster filed a motion for post-conviction
relief under 28 U.S.C. § 2255. Webster’s counsel had sought
additional discovery on the question of mental retardation,
but two days before Atkins was decided and well before it
decided the motion, the district court denied the request for
additional discovery and required Webster’s motion to be
filed within 60 days. Webster III, 605 F.3d at 259 n.1 (Wiener,
J., concurring). Webster’s motion raised 16 grounds for relief,
but the district court rejected all of them. Seconded by the
Fifth Circuit, it granted a certificate of appealability on only
3 As this comment illustrates, the court took the position that the ju-
ry did not need to be unanimous on the question of mental retardation.
Webster has not separately attacked this ruling in his section 2241 peti-
tion.
18 No. 14-1049
two claims: “first, that the evidence presented at trial was
insufficient to warrant the district court’s finding that Web-
ster is not mentally retarded; and second, that his alleged
retardation renders him ineligible for a death sentence.”
Webster II, 421 F.3d at 310.
Although the court of appeals had briefly considered
these points on direct appeal, it agreed with Webster that a
fresh look was warranted, in light of the Supreme Court’s
intervening decision in Atkins, which held that the Eighth
Amendment—not just a statute—prohibits the execution of
the intellectually disabled. The Fifth Circuit saw little differ-
ence between the governing standards under the Constitu-
tion and section 3596(c), however, and so it was not per-
suaded that Atkins required a different result. It was willing
to accept that Webster had a low I.Q., but it found that the
government’s evidence of his adaptive functioning had effec-
tively countered those numbers. The Vineland test that Dr.
Keyes had conducted was all well and good, the court of ap-
peals thought, but it accepted the “direct evidence” of adap-
tive functioning that the government had proffered. Id. at
313. It therefore affirmed the district court’s judgment deny-
ing Webster’s motion under section 2255.
D. Application for Successive Relief under Section 2255
After losing that round, nothing of legal significance
happened for four years. Some 13 years after Webster’s con-
viction, and four years after his section 2255 motion was de-
nied, new counsel uncovered previously undisclosed evi-
dence revealing that Webster had been diagnosed as mental-
ly retarded a year before the commission of the crime. With
those records in hand, counsel filed an application with the
Fifth Circuit for permission to file a successive motion under
No. 14-1049 19
section 2255; the proposed motion was directed exclusively
at the death sentence. Before turning to the Fifth Circuit’s
disposition of that application, we describe the new evidence
and why it had not come to light earlier.
Among many other things that they did, Webster’s trial
counsel had submitted a request to the Social Security Ad-
ministration for any records that it might have. There had
been hints in the record that he, or he and his mother, had
sought some kind of benefit, and counsel were following up
on that clue. (The government challenges Webster’s conten-
tion that defense counsel actually tried to locate the records,
either before the trial, when the government contends Web-
ster must have known they existed, or for the original 2255
motion. But the facts about these old records are contested,
to say the least.) The Social Security Administration pro-
duced nothing. Webster’s new lawyers contend that trial
counsel, having hit a dead end, reasonably dropped the in-
quiry at that point. They also stress that when most of the
records were produced in response to their own request, it
was by mistake. Equally troubling is the fact that the re-
mainder of the records were destroyed.
The newly produced records, which Webster’s current
lawyers received on February 9, 2009, showed that Webster
applied for Social Security benefits based on a sinus condi-
tion when he was 20 years old, approximately a year before
the crime. The agency’s attention was evidently quickly re-
directed to Webster’s mental capacity. Two psychologists and
one physician examined him. On December 22, 1993, Dr.
Charles Spellman, a psychologist, evaluated him for the
purpose of ascertaining his eligibility for Social Security ben-
efits. He noted that “[i]deation was sparse and this appeared
20 No. 14-1049
to be more of a function of his lower cognitive ability than of
any mental illness.” Dr. Spellman also observed that Web-
ster’s intellectual functioning was quite limited: he could not
register three objects (meaning that he could not remember
three objects a short time after they were shown to him); he
could not do simple calculations; and he did not know what
common sayings meant. With respect to adaptive function-
ing, Dr. Spellman stated that Webster lived with his mother;
that he watched television, listened to the radio, and went
walking; that he did no chores around the house; and that he
was idle both in the house and on the streets. Taking into ac-
count both his estimate that Webster’s I.Q. was 69 or lower
and his assessment of adaptive functioning, Dr. Spellman
concluded that Webster was mentally retarded and antiso-
cial. He found no evidence of exaggeration or malingering.
A few months earlier, in October 1993, Dr. Edward Hack-
ett conducted a full-scale WAIS I.Q. test on Webster. He
came up with a verbal I.Q. of 71, a performance I.Q. of 49,
and a full-scale I.Q. of 59. He evaluated Webster as “mildly
retarded, but … also antisocial.” Pertinent to the central
question of adaptive functioning, Dr. Hackett noted in a later
report that “[Webster] was viewed as a somewhat mild[ly]
retarded con man, but very street wise. … [H]e could not be
functional in a community setting. … He would also not
function well in the work place.” Dr. Hackett did not believe
that Webster was capable of managing his own benefits. He
found Webster’s behavior somewhat bizarre. Finally, he
commented that on the I.Q. tests, Webster’s performance was
estimated to be lower than his verbal score, and that some
organic function might be involved.
No. 14-1049 21
The last professional to examine Webster in conjunction
with the 1993 Social Security application was Dr. C. M. Rit-
telmeyer, a physician. Dr. Rittelmeyer found Webster’s phys-
ical health to be fine, but he also had this to say: “Mental re-
tardation. Flat feet. Chronic sinus problems and allergies by
history.”
The Social Security records included an intriguing letter
that strongly suggested that Webster in fact had been in spe-
cial education classes. It was dated November 8, 1993, and
had been written by Lou Jackson, the Special Education Su-
pervisor for the school system Webster had attended, Wat-
son Chapel Schools. Jackson’s letter explained that Webster’s
special education records had been destroyed in 1988, after
the family did not respond to a letter “telling them they
could have the records if they wanted them.”
The Social Security records also provide some direct evi-
dence about Webster’s abilities. The form Webster complet-
ed, for example, is rife with errors in syntax, spelling, punc-
tuation, grammar, and thought. In response to a question
asking him to describe his pain or other symptoms, Webster
wrote “it causEs mE to gEt up sEt Easily hEadhurtsdiffiErnt
of brEdth.” When asked about the side effects of his medica-
tion, he wrote “Is lEEp bEttEr.” When asked about his usual
daily activities, Webster wrote (consistently with the com-
ments from his teacher and employer) “I slEEps look at. car-
toon.” He reported that he “ain’t got no chang” in his condi-
tion since its onset.
These records, new counsel urged, raised serious ques-
tions about the linchpins of the government’s case at trial
with respect to intellectual disability. Counsel argued that
they strongly refuted the consistent theme that Webster was
22 No. 14-1049
malingering on the I.Q. tests he took after the crime was
committed, since they showed a level consistent with those
tests from a time (a) before the crime, and (b) when he was
not under the emotional stress that tainted the 1992 tests at
the Clinic. They also provided direct evidence of adaptive
functioning consistent with the I.Q. test scores—evidence
that might have changed the minds of experts had they seen
a more complete picture.
The Fifth Circuit, however, concluded that Webster’s
proposed new evidence did not meet the stringent standards
imposed by section 2255(h), which reads as follows:
(h) A second or successive motion must be cer-
tified as provided in section 2244 by a panel of
the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that no reasonable fact-
finder would have found the movant guilty of
the offense; or
(2) a new rule of constitutional law, made ret-
roactive to cases on collateral review by the
Supreme Court, that was previously unavaila-
ble.
The Webster III judges concluded that a petitioner seeking
only to challenge his eligibility for the death penalty cannot
do so under section 2255(h)(1), because that section requires
evidence that shows that the movant could not be found
No. 14-1049 23
guilty of the offense. 4 Webster’s application did not attack his
guilt of the offense of murder but instead challenged only
his sentence. Section 2255(h)(2) requires a new rule of consti-
tutional law that previously was unavailable, but Atkins had
already been decided at the time of Webster’s initial section
2255 motion, and nothing else came close to satisfying that
criterion.
Judge Wiener concurred in that disposition, but he wrote
separately “to emphasize the absurdity of its Kafkaesque re-
sult: 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.” Webster III, 605 F.3d at 259. He went on to say
that “[i]f 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.” Id. Nevertheless, under sec-
tion 2255(h) the court was required to “turn a blind eye to
this evidence, as it speaks to Webster’s constitutional eligibil-
ity for the death penalty and not his factual guilt or inno-
cence of the crime.” Id. at 260. He concluded by expressing
his “deep and unsettling conviction” that, under the stric-
4 Our dissenting colleagues disagree with this aspect of the Fifth
Circuit’s ruling. See post at 51 n.1. They argue that the rule of Sawyer v.
Whitley, 505 U.S. 333 (1992), recognizing that a person can be “innocent
of the death penalty,” survived the enactment four years later of the An-
titerrorism and Effective Death Penalty Act (AEDPA). They
acknowledge, however, that this was not the Fifth Circuit’s view. Since
the Fifth Circuit panel in Webster III unanimously found that only factual
innocence of the crime would do, the majority did not express any opin-
ion on whether Webster’s new evidence undermined the findings un-
derpinning his death sentence.
24 No. 14-1049
tures of section 2255(h), “we today have no choice but to
condone … an unconstitutional punishment.” Id.
II. The 2241 Petition
Accepting, as they had to, 5 the Fifth Circuit’s conclusion
that a successive motion under section 2255 was not availa-
ble, Webster’s counsel filed the current proceeding in the
Southern District of Indiana, where Webster resides on the
federal death row in Terre Haute. See 28 U.S.C. §§ 2242, 2243
¶ 2 (directing the writ to run against the person having cus-
tody of the person detained). He argued that he was entitled
to do so by virtue of the last sentence of section 2255(e),
which permits an application for a writ of habeas corpus
under section 2241 by someone who otherwise would be re-
quired to use the motion under 2255 and has failed in that
effort, if “it also appears that the remedy by motion is inade-
quate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). This is often called the “savings clause”; we
will follow that practice.
The district court found that Webster was not entitled to
take advantage of the savings clause, because it understood
the clause to apply only to changes in the law, not to new
facts. It relied for that proposition primarily on Garza v. Lap-
pin, 253 F.3d 918 (7th Cir. 2001), and In re Davenport, 147 F.3d
605 (7th Cir. 1998). The court read our cases to hold that sec-
5 The dissent appears to agree with the position that Webster’s law-
yers were required to accept the Fifth Circuit’s ruling that section 2255
addresses only innocence of the underlying crime; they note that section
2244(b)(3)(E) cuts off any right to further review of such a ruling. See post
at 51. We have treated this ruling as part of the law of the case, both in
recognition of its unreviewability and out of respect for our sister circuit.
No. 14-1049 25
tion 2255 is “inadequate or ineffective” only when “a struc-
tural problem in § 2255 forecloses even one round of effec-
tive collateral review—and then only when as in Davenport
the claim being foreclosed is one of actual innocence.” Taylor
v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); see also Unthank v.
Jett, 549 F.3d 534, 536 (7th Cir. 2008). The court also com-
mented in a footnote that it was not clear whether Webster’s
trial counsel had followed up on their request to the Social
Security Administration for its files, and that it was too late
now to consider those materials. As we noted at the outset,
in Webster IV a panel of this court affirmed the district court’s
judgment, but the full court vacated that decision and reset
the case for en banc consideration.
III. The Savings Clause and Section 2241
Our most extensive treatment of the relation between
2255’s savings clause and section 2241 appears in Davenport.
There, the petitioner had been convicted of the use of a fire-
arm during the commission of a drug offense, in violation of
18 U.S.C. § 924(c). Davenport, 147 F.3d at 607. After he had
filed his first motion under section 2255, the Supreme Court
held that mere possession of a firearm, under the statute as it
then read, did not amount to a prohibited “use.” See Bailey v.
United States, 516 U.S. 137 (1995). The Seventh Circuit, as
well as its sister circuits, had not construed the term “use” so
restrictively. Like Webster, however, Davenport was barred
from filing a successive motion under 2255 because he had
neither new evidence of innocence of the offense nor a new
Supreme Court constitutional ruling. It would have been fu-
tile for him to have raised this point in his first section 2255
motion, as the law was squarely against him. We therefore
held that section 2255 was inadequate within the meaning of
26 No. 14-1049
subpart (e) and that Davenport could raise his claim under
section 2241. See Davenport, 147 F.3d at 610–12. In so doing,
we said that whether section 2255 is inadequate or ineffec-
tive depends on whether it allows the petitioner “a reasona-
ble opportunity to obtain a reliable judicial determination of
the fundamental legality of his conviction and sentence.” Id.
at 609. We also recognized that arguments addressing “the
fundamental legality of [a] sentence[]” could be entertained,
not just those attacking a conviction. Id.
Later cases have followed Davenport, albeit with some-
what different emphases. Compare Garza, 253 F.3d at 918,
and Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) (both with
a broader understanding), with Unthank, 549 F.3d at 534, and
Taylor, 314 F.3d at 832 (inadequacy or ineffectiveness exists
only when a petitioner presents a claim of actual innocence
and might exist only for claims related to retroactive Su-
preme Court statutory decisions). All of these decisions hold,
nevertheless, that there must be some kind of structural
problem with section 2255 before section 2241 becomes
available. In other words, something more than a lack of
success with a section 2255 motion must exist before the sav-
ings clause is satisfied. (Our dissenting colleagues would
throw the entire line of cases that began with Davenport out
the window, post at 58–62, but their position essentially reads
the savings clause of section 2255(e) out of the statute. We
are not willing to take that step.)
In Garza, we found that “something more” in the form of
an intervening decision of an international tribunal. Juan
Garza had been sentenced to death in federal court under 18
U.S.C. § 848(e). After exhausting both his direct appeals and
his opportunity for collateral relief under section 2255, Garza
No. 14-1049 27
filed a petition with the Inter-American Commission on
Human Rights. After reviewing the case, the Commission
concluded that the introduction of evidence of murders in
Mexico—crimes for which Garza had never been charged
but which were necessary predicates to his death sentence—
violated Garza’s rights under the American Declaration of
the Rights and Duties of Man. Shortly after the Commission
issued its report, Garza filed a habeas corpus petition under
section 2241 in the Southern District of Indiana, the place of
his incarceration. He argued in that petition that the United
States was bound by treaty to abide by the Commission’s de-
cision. Construing Garza’s petition as an unauthorized effort
to file a successive motion under section 2255, the district
court held that it lacked jurisdiction to decide the case and
dismissed the action.
Garza appealed that unfavorable ruling to this court. We
identified two issues that had to be resolved: first, whether
Garza qualified for section 2255’s savings clause, thereby en-
abling him to bring a petition under section 2241; and sec-
ond, if 2241 was available, whether he was entitled to relief.
We began by recognizing that “the mere fact that Garza’s pe-
tition would be barred as a successive petition under § 2255
… is not enough to bring the petition under § 2255’s savings
clause; otherwise, the careful structure Congress has created
to avoid repetitive filings would mean little or nothing.”
Garza, 253 F.3d at 921. We concluded, however, that in rare
circumstances “the operation of the successive petition rules
[would] absolutely prevent[] the petitioner from ever having
an opportunity to raise a challenge to the legality of his sen-
tence.” Id. at 922. Garza presented such a case, we conclud-
ed. On the merits, we decided that the Commission’s report
28 No. 14-1049
was advisory only and thus did not support the relief Garza
sought.
Garza thus offers one illustration of a situation in which a
petitioner was entitled under the savings clause to use sec-
tion 2241 to attack a sentence, even though he was not mak-
ing a claim of actual innocence of the offense. In fact, it
would be more difficult for someone making the latter kind
of argument, because section 2255(h)(1) expressly addresses
guilt or innocence of the offense and sets out the evidentiary
standard that a successive petition must meet. That is
enough to explain why, in Unthank and Taylor, we held that
the petitioners were not entitled to turn to section 2241. It is
true that in describing Davenport we used more general lan-
guage that could be read as an absolute restriction on the
savings clause, but in neither of those cases did the court
have before it an argument that a particular sentence was
constitutionally forbidden (either as a matter of law or as a
matter of fact), rather than just outside the scope of a statute.
We therefore think it best to understand those holdings as
appropriate applications of the law to the facts before the
court.
Pointing to some legislative history, the government in
this case argues that Congress did not intend to permit the
savings clause to be used for anything other than claims of
actual innocence of the underlying offense. It is worth noting
that this contention is inconsistent with the position that the
Solicitor General took in Persaud v. United States. See Brief for
the United States, Persaud v. United States, 134 S. Ct. 1023
(2014) (mem.), 2013 WL 7088877. In Persaud, the question
was whether certain prior felonies qualified as predicates for
an enhanced sentence pursuant to 21 U.S.C. § 851(a)(1). As
No. 14-1049 29
the Solicitor General’s brief put it, “The question presented
here is whether petitioner is entitled to challenge the sen-
tencing error by way of a petition for a writ of habeas corpus
under 28 U.S.C. 2241. The lower courts held that Section
2241 was not available because petitioner was challenging
his sentence rather than his conviction. That holding is in-
correct.” Id. at *13. The Solicitor General noted that the Su-
preme Court has not spoken on when the motion under sec-
tion 2255 is “inadequate or ineffective.” In the circumstances
presented in Persaud, the brief continued, the savings clause
is available even though the challenge is to the sentence, not
to the underlying conviction. Id. at *18–19. Responding to
that point, the Supreme Court vacated the judgment and
remanded the case to the court of appeals “for further con-
sideration in light of the position asserted by the Solicitor
General in his brief for the United States filed on December
20, 2013.” Persaud, 134 S. Ct. at 1023 (mem.). The Court’s ac-
tion indicates that it does not take as narrow a view of the
savings clause as our dissenting colleagues do.
Before this court the government points to House of Rep-
resentatives Report no. 104-23 (part of AEDPA’s legislative
history), which discusses a proposal for a provision on stays
of execution. The proposal, which was not enacted, stated
that a federal court could not issue a stay merely because a
state prisoner files a second habeas corpus petition, unless
the petition set forth newly discovered facts showing that
the petitioner is not guilty of the underlying offense. H.R.
REP. NO. 104-23, at 4–5 (1995). It would have barred “claims
that go only to the validity of the capital sentence and claims
that go only to the petitioner’s eligibility for a capital sen-
tence.” Id. at 16–17.
30 No. 14-1049
Putting to one side the fact that the comity concerns that
exist with respect to state-court proceedings are not present
for federal prosecutions, we do not find this snippet of legis-
lative history to be too helpful. The language of section
2255(h) already makes it clear that Congress was aware of
the difference between claims of innocence of the underlying
offense and claims relating to a sentence. The problem before
us, quite simply, is not one that Congress could have con-
templated. At the time AEDPA was under consideration, the
Supreme Court had not yet held it unconstitutional to exe-
cute either an intellectually disabled person (Atkins) or a mi-
nor (Roper v. Simmons, 543 U.S. 551 (2005)). We thus consider
this question to be an open one, both from the standpoint of
legislative history and that of Supreme Court rulings.
Several considerations persuade us that in the circum-
stances presented here the savings clause permits Webster to
resort to a petition under section 2241. The first is the lan-
guage of the statute. Section 2255 motions are available to
“[a] prisoner in custody under sentence of a court estab-
lished by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States … .” 28 U.S.C.
§ 2255(a) (emphasis added). The language we have high-
lighted does not distinguish between a sentence that is un-
lawful because of a flaw in the underlying conviction and a
sentence that is unlawful because of a constitutional or statu-
tory rule pertaining to sentences. Moving down to the sav-
ings clause, we see that it applies when “the remedy by mo-
tion is inadequate or ineffective to test the legality of [the
prisoner’s] detention.” Id. § 2255(e) (emphasis added). Once
again, the statute focuses on the detention as a whole, not on
the underlying offense. Only when one reaches section
No. 14-1049 31
2255(h)(1) does Congress single out the underlying offense.
It was certainly free to do so, but there would have been no
need for the specification if the rest of section 2255 (includ-
ing subpart (e)) were already so limited.
Second, the fact that the Supreme Court had not yet de-
cided Atkins and Roper at the time AEDPA was passed sup-
ports the conclusion that the narrow set of cases presenting
issues of constitutional ineligibility for execution is another
lacuna in the statute. In that respect it is similar to the prob-
lem we faced in Davenport, where we found the remedy un-
der section 2255 to be “inadequate or ineffective” for a case
in which the Supreme Court had definitively ruled that the
conduct for which the person was convicted and imprisoned
was not an offense under the statute. The provisions of sec-
tion 2255 permitting successive motions speak exclusively in
terms of constitutional problems, and so left someone who
wished to show that a new Supreme Court decision clarify-
ing as a matter of statutory interpretation that he had com-
mitted no offense without anywhere to turn.
In Webster’s case, the problem is that the Supreme Court
has now established that the Constitution itself forbids the
execution of certain people: those who satisfy the criteria for
intellectual disability that the Court has established, and
those who were below the age of 18 when they committed
the crime. 6 In virtually all other situations, Congress has al-
6 The dissent takes the position that Atkins and Hall add nothing to
the protection against the death penalty in 18 U.S.C. § 3596(c). With re-
spect, we disagree. Collateral relief is primarily used for constitutional
violations, not violations of federal law that could and should be raised
on direct appeal. The dissent paints a picture of the floodgates opening
32 No. 14-1049
most unlimited discretion to select the penalty, or the range
of penalties, that go along with a particular crime. If Con-
gress selects 20 years, but because of some error that went
undetected through direct appeals and an initial motion un-
der section 2255 the defendant receives 25 years, there is no
doubt a problem, but it is likely not one of constitutional di-
mension. Congress could have chosen 25 years to begin
with, and the defendant would have had nothing to com-
plain about.
If Atkins had never been decided, Webster would have
been left with an argument that he now has new evidence
that would demonstrate that the statute forbidding the exe-
cution of a mentally retarded person would be violated by
the implementation of his sentence. See 18 U.S.C. § 3596(c).
We can assume that this would not be enough to trigger the
savings clause. But Atkins, and later Roper, were decided by
the Supreme Court, and they must guide our understanding
of the law. Judge Wiener, in speaking of the unavailability of
section 2255 for Webster, spoke powerfully of the “Kafka-
esque” nature of a procedural rule that, if construed to be
beyond the scope of the savings clause, would (or could)
lead to an unconstitutional punishment.
If one were to disagree with our view, stated earlier, that
ordinary principles of statutory interpretation lead directly
to the result that the savings clause applies here, then the
next step would be to take into account the fact that a core
purpose of habeas corpus is to prevent a custodian from in-
flicting an unconstitutional sentence. As Judge Wiener im-
up as a result of our decision, but, as we explain in more detail below,
that cannot happen.
No. 14-1049 33
plied, there is no reason to assume that our procedural sys-
tem is powerless to act in such a case. It is fairly possible to
read section 2255(e) as encompassing challenges to both
convictions and sentences that as a structural matter cannot
be entertained by use of the 2255 motion. To hold otherwise
would lead in some cases—perhaps Webster’s—to the intol-
erable result of condoning an execution that violates the
Eighth Amendment. 7 We decline to endorse such a reading
of the statute.
IV. Application to Webster’s Case
Having found that there is no categorical bar against re-
sort to section 2241 in cases where new evidence would re-
veal that the Constitution categorically prohibits a certain
penalty, it remains for us to consider whether Webster has
presented a proper case for its use, and if so, how we should
proceed from here. For this purpose, it is necessary to go
back and compare the evidence he has proffered and decide
whether he has shown enough to proceed to the merits of his
2241 petition, or at a minimum to have a hearing to resolve
predicate issues of fact.
We have established thus far that a person who proposes
to show that he is categorically ineligible for the death penal-
ty, based on newly discovered evidence, may not be barred
7 The dissent suggests that the savings clause is available only when
the application of section 2255 would conflict with the Suspension
Clause. See post at 59–62. We have never contended that denying Web-
ster the right to use section 2241 would violate the Suspension Clause.
But this is precisely the point: we do not have to reach this constitutional
issue because Congress included section 2255(e) in the statutory frame-
work, thus allowing us to resolve the question of the availability of sec-
tion 2241 on statutory—rather than constitutional—grounds.
34 No. 14-1049
from doing so by section 2255. But this rule cannot apply to
all newly discovered evidence, or else there would never be
any finality to capital cases involving either the intellectually
disabled or minors. 8 Looking particularly at the intellectual-
ly disabled, it would always be possible to conduct more I.Q.
and adaptive functioning tests in the prison. Those new
scores would have no bearing on the initial conviction and
sentence, though they would be highly pertinent to the ulti-
mate ability of the government to carry out the sentence. But
our concern is with the former, not the latter.
What distinguishes Webster’s case from the one we just
hypothesized are two facts: first, the newly discovered evi-
dence that current counsel have proffered existed before the
time of the trial, and is relevant for precisely that reason;
second, although the facts are disputed, there is evidence in-
dicating that they were not available during the initial trial
as a result of missteps by the Social Security Administration,
not Webster’s counsel. (We would say “not Webster” too, ex-
cept that the question whether Webster can be held respon-
sible for those records is intimately tied to the general ques-
tion of his intellectual abilities. The dissent, post at 56, as-
sumes the answer to this question when it states that “Web-
ster has long known” of the missing Social Security evi-
dence. There is no evidence in the record that Webster had
8 In fact, given the rule in Ford v. Wainwright, 477 U.S. 399 (1986),
which holds that “[t]he Eighth Amendment prohibits the State from in-
flicting the penalty of death upon a prisoner who is insane,” id. at 410,
there will always be some lack of finality for a person whose mental
condition “prevents him from comprehending the reasons for the penal-
ty or its implications.” Id. at 417. Both parties have assumed, however,
that the Ford standard is higher than the one imposed in Atkins and Hall.
We assume for present purposes that this is correct.
No. 14-1049 35
any personal awareness of this evidence, much less that he
was capable of appreciating its significance.) This limitation
answers most of the concerns about creating too large an ex-
ception to the exclusivity of section 2255. It will be a rare
case where records that predate the trial are found much lat-
er, despite diligence on the part of the defense, and where
those records bear directly on the constitutionality of the
death sentence. 9
Rare, but not impossible. Suppose, for instance, that the
United States tries a man in central Texas for a capital crime.
Suppose further that he is convicted and sentenced to death,
9 The dissent is concerned that, contrary to Congress’s intention in
enacting AEDPA, our interpretation of section 2255 returns us to the pre-
AEDPA standard for successive habeas corpus petitions. See post at 52
(the majority’s interpretation “open[s] the door to any proceedings that
do not abuse the writ—the pre-1996 standard”). In so contending, how-
ever, it disregards the array of limitations, both legal and factual, on
which our ruling depends. We have highlighted at least three principal
reasons why our finding that the savings clause is available here will
have a limited effect on future habeas corpus proceedings. First, the evi-
dence sought to be presented must have existed at the time of the origi-
nal proceedings. (A free-standing claim that an execution would violate
Ford v. Wainwright might involve later-acquired evidence, but such a
claim is quite different from the one now before us.) Second, the evi-
dence must have been unavailable at the time of trial despite diligent
efforts to obtain it. Third, and most importantly, the evidence must show
that the petitioner is constitutionally ineligible for the penalty he re-
ceived. Because the Supreme Court has declared only two types of per-
sons (minors and the intellectually disabled) categorically ineligible for a
particular type of punishment, our ruling is as a matter of law limited to
that set of people—those who assert that they fell into one of these cate-
gories at the time of the offense. These three limitations are more than
adequate to prevent the dissent’s feared flood of section 2241 petitions,
and they in no way represent a return to the abuse of the writ standard.
36 No. 14-1049
based on the jury’s and court’s acceptance of substantial oral
testimony confirming that he was 19 years old when he
committed the crime. Now imagine that after he has ex-
hausted his first post-conviction motion under section 2255,
irrefutable evidence comes to light revealing that he was
born in Germany and that his birth certificate confirms that
he was actually only 17 years old at the time he committed
the crime. (According to the Texas State Historical Associa-
tion, “[a]fter Anglos, Mexican-Americans and African-
Americans, the ethnic group with the largest impact on Tex-
as has been the Germans.” See http://www.texasalmanac.
com/topics/culture/german/german-texans.) Under the gov-
ernment’s view of the relation between section 2255 and
2241, our hypothetical defendant would be executed despite
the plain violation of the Eighth Amendment as described in
Roper. Under the view we adopt, this defendant is entitled to
be heard under section 2241. At any such hearing, the gov-
ernment would be entitled to challenge the authenticity of
the birth certificate; the defendant would be entitled to sup-
port it; and the district court would decide the factual ques-
tion on which everything hinges: whether the defendant was
below the age of 18 at the time of the crime and thus consti-
tutionally ineligible for the death penalty.
Webster’s case is no different. At the threshold stage, he
has the burden of proffering convincing evidence of intellec-
tual disability to show that he may not, consistently with At-
kins and Hall, be under a sentence of death. In order to relate
to the findings at trial, that evidence cannot be newly creat-
ed; instead, it must be previously existing evidence of his
intellectual disability that counsel did not uncover despite
diligent efforts. If he succeeds in this prima facie showing,
No. 14-1049 37
then he has satisfied the savings clause and may proceed
with a section 2241 petition. At a hearing on the merits, he
would need to introduce the evidence and allow the gov-
ernment to refute it. The government here has indicated that
it would challenge the diligence of counsel; that it would ar-
gue that the allegedly new evidence is actually just cumula-
tive; that it would review the earlier evidence; and that even
with the new evidence Webster’s adaptive functioning is
high enough that it negates his low I.Q. scores (an extremely
rare and largely untested scenario, as far as we can tell from
post-Atkins cases). Webster would respond to those points.
In the end, the district court would decide whether, as a mat-
ter of fact, Webster is constitutionally ineligible for the death
penalty.
Although we do not want to prejudge the district court’s
disposition of this matter, a few observations are in order.
First, we reiterate that the question whether the evidence we
described earlier in Part I.D of our opinion qualifies as newly
discovered is contested. Both Webster and the government
have a right to be heard on this point. The record presently
before us is inconclusive about what happened at the Social
Security Administration. Webster’s trial counsel provided an
affidavit stating that he requested records from the agency
but that to the best of his recollection he never received
them. We do not know at this juncture whether counsel nev-
er followed up, whether there was a technical problem with
his request, or if the agency deliberately or accidentally in-
formed counsel that the records did not exist. Webster’s cur-
rent legal team requested and received some of the records
in 2009. It later realized that the file was incomplete and sent
another request for the missing records. A representative
from the agency told them that it would not provide any
38 No. 14-1049
more records and that “normal procedures” had not been
followed when the partial records had been sent earlier that
year. Webster’s attorneys interpret that statement as an ad-
mission that the records were produced by accident; other
evidence indicates that the representative may have been
speaking only about a supposed failure to pay (contested
again by Webster’s lawyers) or a lack of specificity. In any
event, Webster’s current lawyers followed up with a new re-
quest, only to be told, mysteriously, that Webster’s remain-
ing records had been destroyed. If the agency was aware that
active efforts were underway to obtain them, this is trouble-
some indeed. But our main point here is that we do not
know important details. 10
Another issue that the court will need to explore is the
significance of the records. As Part I.B of our opinion re-
views in detail, there was a good deal of evidence about in-
tellectual disability at the trial: Drs. Finn, Keyes, and Ful-
bright for the defense, and Drs. Parker and Coons for the
government. That evidence, however, included only one I.Q.
test that had been performed on Webster before the crime—
the 1992 test done at the Southeast Arkansas Mental Health
Clinic. Webster’s full-scale score was then just 48, but Web-
ster’s own experts agreed that he had been under severe
stress at the time that test was administered and so the score
was unreliable. Although other tests were performed (two
by Dr. Finn, showing full-scale I.Q.’s of 59 and 65, and an in-
complete one by Dr. Parker, showing a full-scale I.Q. of 72),
the government argued strongly that Webster was motivated
10The dissent’s discussion of these points, post at 56–57, rests on fac-
tual assumptions that are contested. It merely highlights the need for the
evidentiary hearing we contemplate.
No. 14-1049 39
to underperform on the later tests because of the risk of the
death penalty. The tests and estimates from the Social Securi-
ty Administration records, however, were immune from that
argument about manipulation. Webster scored 59 on Dr.
Hackett’s test; Dr. Spellman estimated his I.Q. to be 69 or
lower; and Dr. Rittelmeyer commented that Webster was
“mentally retarded.” It is significant in this respect that Web-
ster was not trying to obtain Social Security benefits on the
basis of his intellectual disability, and so an argument about
manipulation for purposes of benefits would have been
weak. He asserted instead that he was disabled from a sinus
condition. In short, had the I.Q. tests and opinions from the
Social Security file been available to the experts at the trial,
to the jury, and to the district court, their assessments of
Webster may have been different.
Equally importantly, the Social Security records shed ad-
ditional light on Webster’s adaptive functioning. New coun-
sel found evidence that contradicted everyone’s assumption
at the trial that Webster had been lying when he said that he
was in special education classes. If it had been clear that he
was telling the truth, or even if objective evidence had sup-
ported his assertion, the jury and the district court may have
viewed Webster’s poor school performance, sleeping in class,
and dropping out in the 9th grade in a different light.
At a more general level, the government treated this case
as the reverse of the one the Supreme Court discussed in
Hall v. Florida. In Hall, the defendant’s I.Q. score was 71, but
the Florida courts refused to allow him to introduce evi-
dence of adaptive functioning that would have shown him
to be intellectually disabled. In Webster’s case, virtually all of
the I.Q. scores put him in the range of mild to moderate in-
40 No. 14-1049
tellectual disability, but the government argued strongly
(and both the court and the jury were persuaded) that his
adaptive functioning was good enough to demonstrate that
he was not, in fact, so disabled. (It is of some interest that the
evidence of adaptive functioning that the Supreme Court
criticized in Hall looks very much like the evidence that the
government used here. Although there was substantial evi-
dence that Hall had been mentally retarded his entire life,
the trial court was suspicious because “[n]othing of which
the experts testified could explain how a psychotic, mental-
ly-retarded, brain-damaged, learning-disabled, speech-
impaired person could formulate a plan whereby a car was
stolen and a convenience store was robbed.” Hall, 134 S. Ct.
at 1991.)
Looking at the trial evidence of adaptive functioning
solely for the purpose of assessing how much of a difference
the new evidence might make, we note that there was some
consensus at the outset. All agreed that Webster’s verbal abil-
ities were relatively strong, at least in terms of his spoken
communications. His written work was more questionable,
and the Social Security records reveal a person who is barely
literate. And there were other problems as well with the
government’s evidence of adaptive functioning. Some of the
government’s evidence came straight from laypersons, who
more or less said “he seemed fine to me.” It also used ex-
perts, but neither of its experts administered any kind of ac-
cepted adaptive functioning test before reaching his opinion.
We have often pointed out the dangers of relying on
“common sense” when social science reveals that common
assumptions are wrong. As we noted in United States v. Wil-
liams, 522 F.3d 809 (7th Cir. 2008), in the context of a discus-
No. 14-1049 41
sion of eyewitness identification, “[t]he problem with ‘com-
mon sense’ is that experience tells us what leads to confidence
about whether we have seen a given person before but does
not provide reliable ways to test whether that confidence is
justified. People confuse certitude with accuracy and so are
led astray. Psychologists have established that certitude of-
ten is unwarranted. It takes data rather than intuition to an-
swer questions such as ‘can non-uniform footgear in a lineup
lead to misidentification?’” Id. at 811; see also United States v.
Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“That jurors have
beliefs about [the fallibility of memory] does not make ex-
pert evidence irrelevant; to the contrary, it may make such
evidence vital.”); Murillo v. Frank, 402 F.3d 786, 792 (7th Cir.
2005) (no social science verification of the proposition that
emotionality enhances the reliability of a statement). That
principle applies here as well. It is one thing to describe
what Webster did and to believe, as a layperson, that these
acts revealed that his I.Q. tests understated his intellectual
functioning; it is quite another for a qualified professional to
test whether such a discrepancy exists.
There was no testimony at trial correlating Webster’s
day-to-day skills with the intellectual age that his I.Q. tests
suggested. Counsel for the government, at oral argument,
pointed to Webster’s ability to come to the Dallas area, to lie
about being an F.B.I. agent at Lisa’s door, to travel back to
Pine Bluff, to dig the grave in advance, and to kill and bury
her, as evidence of his competence. But as we have just
pointed out, that is a lay opinion. Dr. Finn put Webster’s
mental age at somewhere between six and seven. Common
experience shows that children of that age can do quite a few
things: they can lie; they can plan an immediate event; they
can carry out instructions. Dr. Keyes testified that the results
42 No. 14-1049
of the Vineland test he performed showed that Webster’s
adaptive functioning level was consistent with his low I.Q.
scores. The government’s experts offered conclusions, but
little in the way of reasons for their conclusions.
The government also relied on the fact that Webster
complained on one occasion that he received the wrong
change from the commissary. But studies indicate that adults
with mild retardation can learn the essentials of paying bills.
See GEORGE S. BAROFF WITH J. GREGORY OLLEY, MENTAL
RETARDATION: NATURE, CAUSE, AND MANAGEMENT 308–09 (3d
ed. 1999) (citing John LaCampagne & Ennio Cipani, Training
Adults with Mental Retardation to Pay Bills, 25 MENTAL
RETARDATION 293 (1987)). Webster’s ability to squirm
through the bean chute to reach the women’s section of the
detention center also may or may not be consistent with the
behavior of a seven-year-old child. The government’s experts
did not use any recognized methodology to connect those
dots. And that is not because there are no measurement
tools. Several well-accepted adaptive-functioning tests are
available: the Vineland Adaptive Behavior Scales that Dr.
Keyes used, which is for primary caregivers and others fa-
miliar with the person, rather than for the person; the Diag-
nostic Adaptive Behavior Scale, which measures adaptive
behavior skills in the three main categories of conceptual,
social, and practical life skills; and the Supports Intensity
Scale, which is used to determine what a person needs to
live independently.
This evidence may or may not carry the day for Webster,
but we believe that it does qualify as the kind of “clear and
convincing” evidence that would be required to earn a hear-
ing if we were evaluating new factual evidence of guilt or
No. 14-1049 43
innocence under section 2255(h)(1). We therefore do not
need to decide whether that is the correct standard, or if a
lesser showing would suffice.
V. Concluding Observations
Webster filed his section 2241 petition in the district
where he is incarcerated, as 28 U.S.C. §§ 2242 and 2243 re-
quire. The Supreme Court held in Rumsfeld v. Padilla, 542
U.S. 426 (2004), that this is the one and only proper venue:
The federal habeas statute straightforwardly
provides that the proper respondent to a habe-
as petition is “the person who has custody over
[the petitioner].” 28 U.S.C. § 2242; see also §
2243 (“The writ, or order to show cause shall
be directed to the person having custody of the
person detained”). The consistent use of the
definite article in reference to the custodian in-
dicates that there is generally only one proper
respondent to a given prisoner’s habeas peti-
tion. This custodian, moreover, is “the person”
with the ability to produce the prisoner's body
before the habeas court. Ibid.
Id. at 434–35. Webster’s custodian is Charles A. Daniels, the
warden of the United States Penitentiary in Terre Haute, In-
diana. Terre Haute lies within the Southern District of Indi-
ana, and so Webster’s petition under section 2241 was
properly filed in that district.
There are obviously costs in requiring a new court to
delve into the question of Webster’s intellectual disability (or
lack thereof), although after 21 years the comparative ad-
vantage of the district court in the Northern District of Texas
44 No. 14-1049
has inevitably faded. But whatever costs remain are nothing
more than the price of the limitations on relief by motion
under section 2255. When that statute was passed, Congress
not only relieved the district courts where the major federal
prisons were located from a heavy load of petitions for col-
lateral relief; it also enhanced the efficiency of the system by
assigning these cases to the judges who were familiar with
the records. Nonetheless, the Fifth Circuit has decided that
Webster’s current action falls outside the scope of section
2255(h), and we have no quarrel with that assessment. That
means, for better or for worse, that the remaining work on
Webster’s case must be conducted by the district court for
the Southern District of Indiana.
We say “must,” because we understand Padilla to hold
that the only proper district is the one containing the prison-
er’s immediate custodian. That is why, despite the fact that
Padilla was initially detained in the Southern District of New
York, once the President had him moved to South Carolina,
the only district in which his habeas corpus petition could be
brought was the District of South Carolina. Braden v. 30th Ju-
dicial Circuit Court of Kentucky, 410 U.S. 484 (1973), is not to
the contrary. It dealt with a situation in which the petitioner
(then incarcerated in Alabama) wanted to challenge a future
detainer issued by Kentucky. In that situation, the Court
held, the effective custodian was Kentucky, because it was
the source of the detainer. Webster, however, is not challeng-
ing his detention by anyone other than the warden at Terre
Haute, and so it follows that the only permissible respond-
ent is Warden Daniels.
This also means that there is no other judicial district,
from a venue standpoint, in which the claim “might have
No. 14-1049 45
been brought,” as that term is used in the general venue
statute, 28 U.S.C. § 1404(a). The district court thus has no
power under that statute to transfer the case either on its
own initiative or upon the motion of either party. (Section
1406(a) is also inapplicable, because there is nothing wrong
with the district in which Webster is proceeding.) If both
Webster and Warden Daniels were to consent to a transfer to
another district, they might have an enforceable agreement
that the court could implement, by analogy to choice-of-
forum agreements. See Atl. Marine Constr. Co. v. U.S. Dist.
Court for W. Dist. of Texas, 134 S. Ct. 568 (2013). The only
thing that seems clear is that in the absence of any such con-
sent, the case must stay in Indiana. That result also avoids
knotty problems that could arise if there is another appeal.
We have no authority over the district court in the Northern
District of Texas, which lies within the Fifth Circuit. 28
U.S.C. § 41. That court would be put in an awkward posi-
tion, to say the least, if it were responsible for carrying out a
Seventh Circuit mandate with any appeals going to the Fifth
Circuit. In contrast, if the case stays in Indiana (as we believe
it must), should there be a new appeal, it will be a straight-
forward matter for this court to decide whether the district
court has properly carried out our mandate.
In summary, therefore, we hold that Webster is not
barred as a matter of law from seeking relief under section
2241. Further proceedings are necessary, however, before the
district court can reach the merits of his habeas corpus peti-
tion. The district court must hold a hearing for the purpose
of deciding whether the Social Security records were indeed
unavailable to Webster and his counsel at the time of the tri-
al. In considering that question, the district court must also
evaluate trial counsel’s diligence. If the court concludes, as
46 No. 14-1049
Webster’s lawyers urge, that the records were unavailable
and all due diligence was exercised, and that Webster has
them now only because of a fluke, then it must turn to the
merits of the petition: is Webster so intellectually disabled
that he is categorically ineligible for the death penalty under
Atkins and Hall?
Both the government and Webster would be entitled at a
hearing to offer evidence relevant to that determination; if
Webster is not limited to the record before the original trial
court, there is no reason to impose such a limit on the gov-
ernment. Webster, as the petitioner, bears the burden of
proving intellectual disability. If he gets this far, what this
will be as a practical matter is a partial new sentencing hear-
ing. At this later stage, the proper burden of proof is a pre-
ponderance of the evidence, not “clear and convincing” evi-
dence. (The latter standard serves as a gateway to the hear-
ing; it would be wrong to apply it twice.) Finally, our man-
date does not extend to any other issue that Webster has
raised over the years. In particular, we have found no reason
to revive the question of the abuse he suffered as a child.
If the district court concludes that Webster meets the re-
quirements of Atkins and Hall, then it should issue the writ
stating that Webster is entitled to relief from the death penal-
ty. This is the relief that Webster requested in his section 2241
petition. 11 As happens with writs issued on behalf of state
11This does not create a conflict with the Fifth Circuit. That court
ruled that it could not even consider Webster’s new evidence, because of
the limitations in section 2255(h). If Webster wins relief in the district
court in Indiana, and if any such ruling is upheld on appeal in this court,
then the mandate will give the sentencing court clear and uncontradicted
instructions for moving forward.
No. 14-1049 47
prisoners under 28 U.S.C. § 2254, the writ should give the
prosecutor (here, the Attorney General) a reasonable period
within which to take appropriate action in light of the writ.
Any such action, including correction of the judgment,
would properly occur in the court that entered the judgment
and sentence (the Northern District of Texas), which would
be responsible for further sentencing proceedings in line
with both this opinion and the district court’s order. If, on
the other hand, Webster fails to show that he has met the At-
kins and Hall requirements in the Indiana proceedings, then
the writ should be denied.
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.
48 No. 14-1049
EASTERBROOK, Circuit Judge, with whom BAUER, KANNE,
SYKES, and TINDER, Circuit Judges, join, dissenting. Bruce
Webster led a group that perpetrated a horrific kidnapping
and murder. The opinion affirming his conviction and death
sentence provides details. United States v. Webster, 162 F.3d
308 (5th Cir. 1998). See also United States v. Webster, 392 F.3d
787 (5th Cir. 2004) (denying a motion to expand the issues
reviewable on appeal under 28 U.S.C. §2255); United States v.
Webster, 421 F.3d 308 (5th Cir. 2005) (affirming a decision
denying relief under §2255); In re Webster, 605 F.3d 256 (5th
Cir. 2010) (denying application for permission to pursue a
second collateral attack).
I
Although Webster’s guilt, and the appropriateness of
capital punishment for his crime, are undisputed, “[a] sen-
tence of death shall not be carried out upon a person who is
mentally retarded. A sentence of death shall not be carried
out upon a person who, as a result of mental disability, lacks
the mental capacity to understand the death penalty and
why it was imposed on that person.” 18 U.S.C. §3596(c). That
statute was in effect when Webster was tried and sentenced.
The Supreme Court later held that the Constitution estab-
lishes the same rule, see Atkins v. Virginia, 536 U.S. 304 (2002);
Hall v. Florida, 134 S. Ct. 1986 (2014), but these decisions are
no more favorable to Webster than the statute, so the control-
ling law is unchanged.
Whether Webster is “retarded” was the principal issue at
his trial and sentencing. He raised his mental shortcomings
as a mitigating factor, and four jurors found that they miti-
gate his culpability, but the jury still voted unanimously for
capital punishment. The sentencing hearing spanned 29
No. 14-1049 49
days, with abundant evidence. The district judge found that
Webster is not retarded within the meaning of §3596(c) and
sentenced him to death. The Fifth Circuit affirmed on the
merits and later affirmed a district court’s decision denying a
petition under §2255 addressed to retardation. If Webster is
retarded, he is ineligible for the death penalty. Whether he is
retarded has been determined after a hearing, collateral re-
view under §2255, and multiple appeals. What Webster now
wants is still another opportunity to litigate that question.
The majority gives Webster that opportunity in a new dis-
trict court and a new circuit, setting up a conflict among fed-
eral judges. Section 2255 is designed to prevent that, and
prudential considerations also militate against one circuit’s
disagreeing with another in the same case. See Christianson v.
Colt Industries Operating Corp., 486 U.S. 800 (1988).
According to my colleagues, 28 U.S.C. §2241, the general
habeas-corpus statute, entitles Webster to a new hearing de-
spite the fact that his mental condition has been adjudicated
already. Until 1948, when Congress enacted §2255, litigation
under §2241 would have been permissible, provided it was
not an abuse of the writ. (That Webster’s new lawyers rely
on new evidence means that this proceeding would not have
been classified as an abuse of the writ under pre-1996 law.
See McCleskey v. Zant, 499 U.S. 467 (1991).) But §2241 cases
proceed where the prisoner is confined, see Rumsfeld v. Pa-
dilla, 542 U.S. 426 (2004), which creates a risk of inconsistent
outcomes as well as a high probability of litigation in multi-
ple courts (most federal prisoners are confined outside the
sentencing district). That’s why Congress enacted §2255,
whose principal function is to put all post-conviction litiga-
tion in the district court that tried the case, which not only
matches the litigation to the court possessing the record but
50 No. 14-1049
also ensures that only one court of appeals will be involved.
See United States v. Hayman, 342 U.S. 205, 214–19 (1952); John
J. Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171
(1949). (Judge Parker chaired the committee that drafted the
proposal enacted as §2255.) A principal goal of the 1948 en-
actment was to prevent exactly what the majority today au-
thorizes: “the unseemly spectacle of federal district courts
trying the regularity of proceedings had in courts of coordi-
nate jurisdiction”. Parker, 8 F.R.D. at 172–73. See also Alex-
ander Holtzoff, Collateral Review of Convictions in Federal
Courts, 25 B.U. L. Rev. 26, 55 (1945).
As part of the new approach, Congress enacted language
now codified at §2255(e): “An application for a writ of habe-
as corpus in behalf of a prisoner who is authorized to apply
for relief by motion pursuant to this section, shall not be en-
tertained if it appears that the applicant 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 inadequate or ineffective to test
the legality of his detention.”
When is §2255 “inadequate or ineffective to test the legal-
ity” of a sentence? The majority concludes that §2255 is “in-
adequate or ineffective” because it does not allow Webster to
present the particular argument he now wants to make. Af-
ter discovering three mental evaluations in the Social Securi-
ty Administration’s files, Webster asked the Fifth Circuit for
permission to mount another collateral attack. It said no, be-
cause §2255(h), which was enacted in 1996 as part of the An-
titerrorism and Effective Death Penalty Act (AEDPA), limits
to one the number of collateral attacks a prisoner may pre-
No. 14-1049 51
sent, unless conditions in 28 U.S.C. §2244 and §2255(h) can
be satisfied.
The Fifth Circuit concluded that the statutory conditions
have not been satisfied. Substantive law has not changed, so
§2255(h)(2) does not authorize another proceeding, and the
three reports are similar in nature to other evidence present-
ed at the hearing, which means that they do not “establish
by clear and convincing evidence that no reasonable fact-
finder would have found” Webster death-eligible. 1 Reasona-
ble judges could disagree about what effect the three reports
might have had—though even Judge Wiener, whose concur-
ring opinion expressed reservations, thought the court’s ap-
plication of §2255(h)(1) correct—but it does not matter
whether the Fifth Circuit is right, because §2244(b)(3)(E)
1 Section 2255(h)(1) reads, in full, “newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be suffi-
cient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense”. I do not
think that “the offense” limits authorization to new evidence about guilt.
It has that effect in non-capital cases, Hope v. United States, 108 F.3d 119
(7th Cir. 1997), but in Sawyer v. Whitley, 505 U.S. 333 (1992), the Supreme
Court held that a person can be “innocent of the death penalty” inde-
pendently of innocence of the crime. Sawyer predates the AEDPA, so it is
most sensible to understand §2255(h)(1) as authorizing a successive peti-
tion when newly discovered evidence shows, clearly and convincingly,
that no rational trier of fact could have thought a given person death-
eligible. The Fifth Circuit disagreed with that understanding, 605 F.3d
256, and held that Hope applies to capital litigation too. Although the ma-
jority opinion states Webster’s evidence meets the “clear and convinc-
ing” standard (slip op. 42–43), which if so should have led to permission
for a second collateral attack under §2255, §2244(b)(3)(E) forbids that
kind of review by another court. (And for reasons I set out later, I do not
think that Webster’s evidence is “clear and convincing”.)
52 No. 14-1049
provides that “[t]he grant or denial of an authorization by a
court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a peti-
tion for rehearing or for a writ of certiorari.” That can’t be
avoided by asking a different circuit to revisit the issue.
The majority in this circuit concludes that because the
Fifth Circuit held that the statutory conditions for another
review under §2255 are unmet, §2255 is “inadequate or inef-
fective” and Webster can proceed under §2241. If this is so,
then the 1996 amendments have undone the basic structure
established in 1948 and allowed successive litigation all over
the country. Instead of reducing the number of post-
conviction proceedings, as Congress set out to do, the 1996
changes have opened the door to any proceedings that do
not abuse the writ—the pre-1996 standard. See Sanders v.
United States, 373 U.S. 1 (1963). Webster’s lawyer was explicit
about this at argument before the panel, even though one
principal goal of the 1996 amendments was to replace Sand-
ers with a closed list of conditions that allow further collat-
eral review. At the argument en banc, Webster’s lawyer con-
tended that new proceedings under §2241 are permissible
whenever “law and justice require.” That language comes
from 28 U.S.C. §2243 ¶8 and has nothing to do with the
number and location of allowable collateral attacks; instead
it tells courts how to proceed when crafting relief after a pe-
titioner has prevailed on the merits.
My colleagues deny that they are going so far, but that’s
what their decision means. They stress the particulars of
Webster’s situation, which are unusual, but every case is
unique in its own way. We must begin not with facts but
with law. The statutory rule is that a successive collateral at-
No. 14-1049 53
tack is permissible only when the conditions of §2255(h) are
met. By using §2255(e) to authorize more collateral review
because those conditions are not met, the majority has reversed
the legislative decision of 1996—indeed has made things
worse and reversed the legislative decision of 1948, because
until 1996 a successive collateral attack would have been in
the original district court and circuit, see Sanders, while after
today’s decision the successive collateral attack will be in a
different district court and circuit.
The reason Webster, in particular, can’t meet §2255(h)
should not matter; the next petitioner will have a different,
case-specific reason why §2255(h) does not allow another
petition, and under the majority’s logic that prisoner too can
resort to §2241. Consider: My colleagues say that Webster’s
case is especially strong because the evidence he now wants
to present existed before his trial and sentencing (slip op. 34–
35). But wouldn’t his claim be even stronger if the evidence
about his mental condition post-dated the sentencing? New
evidence of a changed condition better justifies a new hearing
than old evidence of an unchanged condition—for a condi-
tion that predated the trial could have been litigated at trial
and through a §2255 petition filed within a year, while a
change of mental condition could not have been litigated
earlier. And a new argument based on newly created evi-
dence of an unchanged condition (for example, a new test
and analysis by an independent expert) also would be
stronger, for by definition it could not have been presented
at trial no matter how good the accused’s lawyer.
Using the majority’s template, any creative judge can find
a reason for turning to §2241 whenever a court of appeals
decides that §2255(h) blocks a successive motion under that
54 No. 14-1049
statute. And because the only federal prison holding prison-
ers under sentence of death is in Indiana, this circuit is effec-
tively claiming the final say about the propriety of every
federal death sentence. Section 2255 was enacted in 1948 in
part to prevent the district court in which prisoners are held
from reviewing the decisions of the district court and circuit
where the prosecution occurred. Parker, Limiting the Abuse of
Habeas Corpus, 8 F.R.D. at 172–73. Today’s decision reverts
the law of collateral review to the multi-jurisdictional mess
that §2255 was designed to eliminate.
Treating the 1996 limits on second or successive proceed-
ings as making §2255 inadequate, and thus authorizing pro-
ceedings under §2241, is a path this court has been pursuing
since In re Davenport, 147 F.3d 605 (7th Cir. 1998). See also,
e.g., Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); Brown v.
Caraway, 719 F.3d 583 (7th Cir. 2013). Today’s decision ex-
tends those cases from changes of law to newly discovered
evidence—in other words, from §2255(h)(2) to §2255(h)(1),
treating both parts of §2255(h) as making §2255 as a whole
inadequate or ineffective. Webster’s case has attributes that
the majority emphasizes (slip op. 35 n.9), but as an extension
of Davenport, Garza, and Brown the opinion cannot be treated
as a ticket good for Webster’s train only.
Davenport and its successors discuss circumstances that
may justify a federal prisoner’s use of §2241 to test the validi-
ty of his conviction or sentence. These decisions hold that
when a change of law, retroactively applicable, shows that
the prisoner did not commit a crime or has received an ille-
gally high sentence, §2241 is available if it otherwise would
be impossible to implement the Supreme Court’s intervening
ruling. Congress did not appear to contemplate the possibil-
No. 14-1049 55
ity of retroactive statutory decisions that show a prisoner’s
innocence (§2255(h)(2) being limited to new rules of consti-
tutional law). That’s what Davenport treats as justification for
invoking §2241.
Davenport and its successors conclude that §2241 is avail-
able to provide the full retroactive effect contemplated by
the Supreme Court. But Webster is not the beneficiary of a
retroactive decision that cannot be implemented except
through §2241. Section 3596(c) predates his crime and trial;
its rules remain in force. Nor does Webster contend that his
mental condition has changed. Instead he wants to use §2241
to make a better factual record and to place his arguments
before a different circuit, hoping for a better result. These
desires, understandable as they are, do not call into question
the adequacy or effectiveness of §2255.
What the majority calls a textual analysis (slip op. 30–31)
relies not on the text of §2255(e) but on the text of §2255(a),
which says that §2255 as a whole covers sentences as well as
convictions. Yet how can this justify using §2255(e) to escape
from §2255 altogether? Section 2255(a) is why Webster was
able to use §2255 to make (to the district court in Texas and
the Fifth Circuit) an argument that he is ineligible for capital
punishment. That he made such an argument, and had it re-
solved on the merits, cannot show that §2255 is inadequate
or ineffective; it shows, to the contrary, that the statute is
comprehensive. The majority’s position would be stronger if
§2255(a) excluded attacks on sentences; then a prisoner would
indeed need to use §2241 to pursue effective collateral re-
view. But that’s not how §2255 works.
The majority repeatedly invokes Atkins and Hall but does
not explain why they justify a successive collateral attack.
56 No. 14-1049
Webster does not contend that they enlarge the set of per-
sons ineligible for capital punishment, so it is hard to see
why the majority states, slip op. 31–32 & n.6, that they make
a difference for the purpose of §2255(e). True, the Supreme
Court has held that the rule of §3596(c) is part of the Consti-
tution as well as the United States Code. But Atkins and Hall
do not alter the substantive standard. Section 2255 enforces
statutes as well as the Constitution. See Davis v. United States,
417 U.S. 333 (1974). That’s why Webster could, and did, ob-
tain review of his ineligibility argument under §2255. There’s
no basis for another round of collateral review when the sub-
stantive rule is unchanged. How can §2255 be “inadequate or
ineffective” to present a line of argument that Webster actu-
ally presented, and on which he received a decision on the
merits?
What is more, the evidence that Webster wants to intro-
duce cannot helpfully be called “newly discovered.” Webster
has long known of it. It concerns his own application for So-
cial Security disability benefits. He knew about that applica-
tion; he knew that his mental condition had been tested as
part of that application; his lawyer at trial knew these things
too (as did his mother, who mentioned the subject during
her testimony); and it would have been possible to retrieve
the records in time for use during the trial and §2255 pro-
ceeding.
Webster’s current legal team asserts that his former law-
yer was stonewalled when trying to obtain these records, but
that is not what the former lawyer himself said. He related
that he asked the Social Security Administration for Web-
ster’s records but lacks any memory of a response and there-
fore assumes that he must have been denied access. Yet that
No. 14-1049 57
assumption is unfounded. Former counsel did not produce
his file (he says that he no longer has it) and therefore did
not have any records about the request (if any) and response
(if any); he has only a lack of recollection to go on. That’s
pretty weak. One sensible inference would be that former
counsel, or an investigator on his behalf, simply did not fol-
low through. Current counsel obtained the records less than
four months after asking, even though the disability case is
an old one and many records had been sent to long-term
storage. None of the difficulties (if there were any) that orig-
inal counsel encountered can be blamed on §2255.
Nor would the Social Security records facilitate a new
line of defense. Webster’s trial counsel had, and introduced,
other medical records in which physicians diagnosed retar-
dation before the murder. These records enabled him to ask
the jury to infer that he had not started trying to deceive ex-
aminers after the prosecution began. The prosecutor could
and did reply that there were reasons other than a desire to
avoid the death penalty why Webster had done poorly on
some IQ tests. Trying to obtain disability benefits would
have been one such reason, so the evidence that current
counsel now wants to use could have been subject to much
the same response as the prosecutor made to the records in-
troduced at sentencing.
But we need not decide what effect the SSA records
might have had in the hands of a top-notch lawyer; it is
enough to conclude that the to-and-fro between the govern-
ment and Webster’s current legal team does not hint at a
structural problem in §2255. The problem, if any, lies in how
Webster’s former legal team searched for evidence—yet no
one contends that §2255 is inadequate to resolve a claim of
58 No. 14-1049
ineffective assistance, or for that matter a claim that material
evidence has been withheld in violation of Brady v. Maryland,
373 U.S. 83 (1963). Courts hear and resolve those contentions
under §2255 daily. Webster can’t make §2255 ineffective by
recasting an ineffective-assistance or Brady claim as one
about the sufficiency of the evidence. That trial counsel had
not obtained whatever records the SSA held was known in
time to present an ineffective-assistance or Brady claim dur-
ing the one §2255 proceeding allowed as of right.
II
Instead of extending Davenport, we should reexamine its
premises. Davenport treats §2255 as inadequate only because
§2255(h) blocks multiple rounds of post-judgment litigation.
Davenport thought that a prisoner should be entitled to one
round of litigation per issue, and if the time-and-number
limits enacted in 1996 prevent every issue from having its
own opportunity for collateral review after the Supreme
Court reinterprets a criminal statute, this demonstrates the
statute’s inadequacy. Then Brown allowed resort to §2241
when the Supreme Court announces a new understanding of
the Sentencing Guidelines. Davenport has some support in
other circuits; 2 Brown has none; 3 and the majority does not
2Compare In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000); Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001); and In re Smith,
285 F.3d 6, 8 (D.C. Cir. 2002) (all following Davenport); with Prost v. An-
derson, 636 F.3d 578, 588 (10th Cir. 2011) (disapproving Davenport).
3 Brown itself acknowledged that it was going against two other cir-
cuits. 719 F.3d at 588. See also id. at 596–600 (opinion concurring in the
denial of rehearing en banc). Every other circuit that has considered the
issue in Brown has disapproved of this circuit’s position. See Garcia v.
Warden, 2014 U.S. App. LEXIS 23114 (3d Cir. Dec. 9, 2014); Selby v. Scism,
No. 14-1049 59
contend that today’s extension of those two decisions to situ-
ations in which there has been no change of law has any
support elsewhere.
We should step back and ask what function §2255(e)
serves. Is it to ensure an unlimited number of rounds of
post-conviction review, as long as each round presents a new
question (or new light on an old question), or does it serve a
different function? According to the Supreme Court, it
serves a different function—a very different function.
When §2255 was proposed, some people objected that
moving all collateral litigation to the sentencing court, and
creating some limits on relitigation (even the 1948 version of
§2255 did that, as did the common law discussed in Sanders),
would violate the Suspension Clause of the Constitution
(Art. I §9 cl. 2): “The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” The first time a
claim under §2255 reached the Supreme Court, it was on re-
view from a court of appeals’ decision holding just that. The
court of appeals had instructed the district court to ignore
§2255 and proceed under §2241. But Hayman reversed and
directed all federal judges to use §2255. Along the way, the
Court concluded that §2255 did not pose a serious problem
under the Suspension Clause. It also treated the language
now found in §2255(e) as a safety valve: if some application
of §2255 would conflict with the Suspension Clause, a dis-
453 Fed. App’x 266, 268 (3d Cir. 2011); Bradford v. Warden, 660 F.3d 226,
230 (5th Cir. 2011); Gilbert v. United States, 640 F.3d 1293, 1311–12 (11th
Cir. 2011) (en banc).
60 No. 14-1049
trict court could proceed under §2241 without any need to
hold §2255 unconstitutional. 342 U.S. at 223.
The Supreme Court has never held that §2255 is “inade-
quate or ineffective” under any circumstances. Since Hayman
it has had only one occasion to discuss §2255(e). Congress
enacted, for litigation in the District of Columbia’s local
courts, a provision similar to §2255(e) that blocked not only
use of habeas corpus but also resort to the federal judiciary
(other than the Supreme Court of the United States). A pris-
oner attacked this legislation as a violation of the Suspension
Clause because it relegated prisoners to courts staffed by
judges who lack tenure under Article III, and a court of ap-
peals held that a federal court remains entitled to issue writs
of habeas corpus under §2241. As in Hayman, the Supreme
Court reversed, sustaining the new procedure for collateral
attacks. Swain v. Pressley, 430 U.S. 372 (1977). And, as in
Hayman, the Justices saw the “inadequate or ineffective” es-
cape hatch as designed to ensure that the remedy does not
violate the Constitution. 430 U.S. at 381.
The question we need to face, therefore, is whether the
1996 amendments to §2255 violate the Suspension Clause by
limiting the circumstances under which successive collateral
attacks are proper. That is not a difficult question, because
this circuit resolved it almost 20 years ago. After tracing the
history of the writ of habeas corpus, we held that the Sus-
pension Clause protects only the “Great Writ”—that is, the
writ used to contest pretrial detention by the Executive
Branch. Collateral review following conviction by a court of
competent jurisdiction did not exist until the Twentieth Cen-
tury, and we held that Congress is free to limit the extent to
which federal courts can provide post-conviction collateral
No. 14-1049 61
remedies. Lindh v. Murphy, 96 F.3d 856, 867–68 (7th Cir. 1996)
(en banc), reversed on other grounds, 521 U.S. 320 (1997).
Although Lindh dealt with the 1996 amendments to §2254 for
state prisoners, its reasoning is equally applicable to the 1996
changes to §2255.
My colleagues in the majority say that this understanding
“essentially reads the savings clause … out of the statute”
(slip op. 26). Not at all. It just confines §2255(e) to its func-
tion: saving §2255 from any potential problem under the
Suspension Clause. That it has served its purpose as insur-
ance does not imply that we should give it new work to do.
My colleagues do not say that my reading of the origin and
scope of §2255(e) is wrong; instead they choose not to dis-
cuss the subsection’s genesis, function, and treatment by the
Supreme Court.
The majority maintains that it is construing §2255(e) ac-
cording to the principle “that a core purpose of habeas cor-
pus is to prevent a custodian from inflicting an unconstitu-
tional sentence” (slip op. 32–33). But Webster had an oppor-
tunity at trial, and another on review under §2255, to con-
tend that his sentence is invalid. Multiple litigation used to
be authorized, when it did not abuse the writ, but with the
enactment of §2255(h) in 1996 it is no longer a “core” (or
any) function of collateral review to offer extra opportunities
to litigate subjects that have already been addressed.
Webster’s argument is fundamentally that the jury, the
trial judge, and the Fifth Circuit got the facts wrong, and that
he should be allowed an opportunity to relitigate with more
evidence. “Getting the facts wrong” is not a ground of col-
lateral relief under either §2241 or §2255. See, e.g., Herrera v.
Collins, 506 U.S. 390 (1993). And given the holding of Lindh
62 No. 14-1049
that the Constitution does not entitle a prisoner to multiple
rounds of post-conviction review, there cannot be a serious
constitutional objection to §2255(h). 4
Webster wants us to cut §2255(e) loose from its linguistic
and historical contexts and use it to perpetuate the approach
of Sanders, under which successive collateral litigation is
permissible whenever it does not “abuse the writ”, even
though Congress has concluded that Sanders gave insuffi-
cient weight to society’s interest in the finality of judgments.
My colleagues treat the 1996 amendments as self-defeating,
so that §2241 becomes available to present new contentions
(or new evidence) that cannot meet the conditions in
§2255(h) for second or successive motions under §2255. Un-
doing the decisions of 1948 (to centralize post-conviction lit-
igation in the sentencing court) and of 1996 (to limit the sort
of contentions that allow multiple rounds of collateral re-
view), even though §2255 as amended does not violate the
Suspension Clause, is unwarranted, and it places this court
in a minority of one among the circuits at the same time as
we assert final say over all federal capital cases.
4Webster contends that §2255 would violate the Suspension Clause
if understood to block all new post-conviction evidence. That contention
cannot be reconciled with Lindh, and at all events it is not what §2255(h)
does. See footnote 1, discussing §2255(h)(1).