Alfred Bourgeois v. T.J. Watson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1891

ALFRED BOURGEOIS,

Petitioner-Appellee,

v.

T.J. WATSON, Warden, and UNITED STATES OF AMERICA,

Respondents-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:19-cv-00392-JMS-DLP — Jane Magnus-Stinson, Chief Judge.

____________________

ARGUED SEPTEMBER 9, 2020 — DECIDED OCTOBER 6, 2020

____________________

Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Alfred Bourgeois, a federal prisoner,

was sentenced to death after he brutally abused and mur-

dered his two-year-old daughter. Bourgeois now collaterally

attacks his death sentence on the ground that he is intellectu-

ally disabled. Both the Federal Death Penalty Act (FDPA), 18

U.S.C. § 3596(c), and the Supreme Court’s decision in Atkins

v. Virginia, 536 U.S. 304 (2002), forbid the execution of intellec-

tually disabled offenders. But that is not the end of the matter.

2 No. 20-1891

Bourgeois does not seek relief under 28 U.S.C. § 2255—the

main statute authorizing postconviction relief for federal pris-

oners. Indeed, Bourgeois already has fully litigated an intel-

lectual-disability claim under § 2255. Instead, Bourgeois

brings a habeas corpus petition under 28 U.S.C. § 2241. To in-

voke that statute, however, Bourgeois must show that his case

fits within a narrow exception known as the “savings clause.”

See 28 U.S.C. § 2255(e).

In the district court, Bourgeois accompanied his § 2241 pe-

tition with a motion to stay his execution—which the district

court granted. In doing so, the court found that the govern-

ment had waived its argument that Bourgeois could not chan-

nel his FDPA claim through the savings clause. We reverse

that determination and further find that Bourgeois does not

meet the stringent requirements for savings-clause eligibility.

As a result, his § 2241 petition is procedurally barred. We va-

cate the stay with instructions for the district court to dismiss

the petition.

I. Background

A. Factual Background

We review the underlying facts only briefly, to provide

context for the procedural issues that govern this appeal.

Bourgeois’s daughter, “JG,” was born in October 1999. For the

first two and a half years of her life, JG lived with her mother

and grandmother in Texas. In April 2002, JG’s mother peti-

tioned a local court for a paternity test. The test determined

that Bourgeois was JG’s father. JG’s mother then petitioned

the court for child support from Bourgeois.

At the time, Bourgeois was a truck driver living in Louisi-

ana with his wife, Robin, and their two children. In May 2002,

No. 20-1891 3

Bourgeois came to Texas for JG’s child support hearing. At the

hearing, the court granted JG’s mother’s request for child sup-

port from Bourgeois. The court also granted Bourgeois’s re-

quest for visitation rights with JG for the next seven weeks.

Bourgeois took custody of JG after the hearing.

For the next month—the last of JG’s life—Bourgeois tor-

tured and abused JG. He punched her in the face hard enough

to give her black eyes. He whipped her with an electrical cord

and beat her with a belt. He struck her on the head with a

plastic baseball bat so many times that her head swelled in

size. He threw her against walls. He burned the bottom of her

foot with a cigarette lighter and prevented anyone from treat-

ing her injuries. He also emotionally abused JG. Bourgeois, for

example, “taught” JG how to swim by repeatedly tossing her

into a swimming pool, letting her sink, and then pulling her

out as she choked and gasped for air. Even JG’s potty training

became a source of torment for her. Bourgeois made JG spend

her days sitting on her “training potty.” When Bourgeois

brought his family (including JG) along on his trucking

routes, Bourgeois forced JG to sleep on her training potty.

Bourgeois punished JG’s “accidents” with beatings. Remark-

ably, there was more abuse—including evidence of sexual

abuse—but that is enough to lay the groundwork for the

events that followed.

In late June 2002, Bourgeois drove his family in his truck

to Corpus Christi Naval Air Station, where Bourgeois was de-

livering a shipment. JG, as usual, was sitting on her training

potty. When Bourgeois backed up his truck, JG wiggled and

tipped over her potty chair. Enraged, Bourgeois started yell-

ing at JG and spanking her. He then grabbed her by the shoul-

ders and slammed the back of her head into the truck’s front

4 No. 20-1891

windows and dashboard four times. Robin woke up soon af-

ter the attack and noticed that JG was limp and motionless.

After trying unsuccessfully to revive JG through CPR, Robin

told Bourgeois that JG needed emergency medical attention.

Bourgeois replied that he would take her to the emergency

room when he was done unloading the truck. He added that

they should say JG had slipped and fallen out of the truck.

Insistent that JG needed medical attention, Robin handed her

to Bourgeois. Bourgeois took JG outside and put her on the

ground. When Robin found her there, she again tried CPR

while a passerby called 911. At that point, Bourgeois came

running from behind the truck to ask what had happened.

JG died in the hospital the next day. As planned, Bour-

geois and Robin told authorities that JG had fallen out of the

truck. Their story quickly unraveled when the autopsy report

came back. The medical examiner described the autopsy as

one of the most involved of her career, due to the sheer num-

ber and extent of JG’s injuries. There were bruises, human bite

marks, scratch marks, loop marks (consistent with an electri-

cal cord), and a circular hole on the bottom of one of JG’s feet.

The examiner also found deep tissue bruising all over JG’s

body. Based on these extensive injuries, the examiner con-

cluded that JG was a chronically abused or battered child. The

ultimate cause of death, in her determination, was an impact

to the head resulting in a devastating brain injury. The loca-

tion of the brain injury was consistent with Bourgeois holding

JG by the shoulders and slamming her head against the win-

dows and dashboard of the truck cab. Robin and one of Bour-

geois’s other daughters later told authorities the truth about

JG’s death and the consistent abuse she suffered.

No. 20-1891 5

B. Procedural Background

Bourgeois was charged with murder on federal property,

in violation of 18 U.S.C. §§ 7 and 1111. After a two-week trial

in the Southern District of Texas, the jury found Bourgeois

guilty and unanimously recommended a sentence of death,

which the court imposed.

Bourgeois directly appealed to the Fifth Circuit. He chal-

lenged the government’s use of aggravating factors at sen-

tencing, the constitutionality of the FDPA, and the district

court’s delegation of supervision over his execution to the Di-

rector of the Bureau of Prisons. The Fifth Circuit affirmed,

commenting “[t]his is not a close case.” United States v. Bour-

geois, 423 F.3d 501, 512 (5th Cir. 2005). The Supreme Court de-

nied certiorari. Bourgeois v. United States, 547 U.S. 1132 (2006).

Bourgeois then filed a motion for postconviction relief un-

der 28 U.S.C. § 2255. The motion came before the same judge

who oversaw Bourgeois’s trial. Bourgeois raised fourteen

grounds for relief, only one of which concerns us here: Bour-

geois argued that he was intellectually disabled 1 and thus in-

eligible for the death penalty under the FPDA and the Su-

preme Court’s constitutional decision in Atkins. The district

court held a week-long evidentiary hearing that often ex-

tended beyond normal work hours. The court heard testi-

mony from expert and lay witnesses who testified about

Bourgeois’s intellectual and psychological abilities.

1 Following the Supreme Court’s practice, we use the term “intellec-

tual disability” instead of “mental retardation,” even though earlier cases,

including Atkins, used the latter term. Hall v. Florida, 572 U.S. 701, 704

(2014).

6 No. 20-1891

The court denied Bourgeois’s § 2255 motion in a thorough

225-page opinion that devoted 53 pages to analyzing Bour-

geois’s intellectual-disability claim. United States v. Bourgeois,

No. C.A. C–07–223, 2011 WL 1930684 (S.D. Tex. May 19, 2011).

The court began by noting that Bourgeois had not received a

diagnosis of intellectual disability until after the court had

sentenced him to death. Id. at *22. “Up to that point, Bourgeois

had lived a life which, in broad outlines, did not manifest

gross intellectual deficiencies.” Id. The court then analyzed

Bourgeois’s intellectual-disability claim using the “uniformly

accepted … tripartite formulation for deciding whether an in-

mate qualifies for Atkins protection.” Id. at *24. The “three in-

dispensable criteria” were: “(1) significantly subaverage intel-

lectual functioning; (2) related significant limitations in adap-

tive skill areas; and (3) manifestation of those limitations be-

fore age 18.” Id. Following Atkins’s guidance, the court drew

this three-part test from the 11th edition of the American As-

sociation on Intellectual and Developmental Disabilities’s

(AAIDD’s) manual entitled Intellectual Disability: Definition,

Classification, and Systems of Supports (AAIDD-11), and the

4th edition of the American Psychiatric Association’s (APA’s)

Diagnostic and Statistical Manual of Mental Disorders (DSM-

4). Id. at *23–24 & n.27.

On the first prong (significantly subaverage intellectual

functioning), Bourgeois had tested within the range for intel-

lectual disability in IQ tests following his death sentence, but

the court found that his test scores did not accurately measure

his intellectual abilities. Id. at *25–31. Instead, based on

“highly credible” testimony from the government’s expert

and the court’s independent review of Bourgeois’s psycholog-

ical evaluations, the court determined that Bourgeois had not

put forth his best efforts in testing. Id. at *27–29. In addition,

No. 20-1891 7

“a fuller view” of Bourgeois’s life did “not correspond to a

finding of significant intellectual limitations.” Id. at *31. The

court stressed that Bourgeois had “graduated from high

school, worked for years as an over-land trucker, bought a

house, managed his own finances, wrote intricate and de-

tailed letters, communicated without difficulty, participated

actively in his own defense, and otherwise carried himself

without any sign of intellectual impairment.” Id. at *29 (foot-

notes omitted). The court credited the government’s expert’s

testimony that Bourgeois’s competence as a truck driver was

“totally inconsistent with mental retardation.” Id.

On the second prong (significant limitations in adaptive

skill areas), the court began by distinguishing between the

“psychological” and “legal” approaches to adaptive func-

tioning: whereas the “psychological” approach considered

only “deficits,” the law “compare[d] the deficiencies to posi-

tive life skills, presuming that adaptive successes blunt the

global effect of reported insufficiencies.” Id. at *32–33. With

that in mind, the court turned to the evidence. The parties had

presented conflicting expert and lay testimony about Bour-

geois’s adaptive abilities. The experts had reached “diametri-

cally opposed conclusions about Bourgeois’ abilities.” Id. at

*33. The lay testimony also pointed in different directions. For

example, people who knew Bourgeois as a youth testified that

he had difficulty learning new activities and grasping new

concepts. Id. at *37–39. Bourgeois’s trucking colleagues, on the

other hand, testified that he was an above-average truck

driver who ably discharged the various duties of the job. Id.

at *39. One even described him as an “overachiever.” Id. In the

end, the court found that “[a] broad review of the evidence

does not make Bourgeois’ claim of adaptive deficits believa-

ble.” Id. at *44. Although Bourgeois “may have had difficulties

8 No. 20-1891

when younger,” the record did “not conclusively link those

problems to mental retardation rather than a culturally de-

prived upbringing, poverty, or abuse.” Id. And “[n]othing

suggested that deficiencies endured into maturity.” Id. To the

contrary, “Bourgeois operated with remarkable competency

in the free world for one with low IQ scores.” Id.

The court’s conclusion on the third prong (manifestation

of intellectual limitations before 18) followed directly from its

conclusions on the first two prongs: “The evidence before the

Court failed to point to any pronounced intellectual impair-

ment before Bourgeois’ eighteenth birthday. Bourgeois has

not shown that he is now, was at the time of the crime, or was

during the developmental period, mentally retarded.” Id. Be-

cause Bourgeois “failed to meet all three prongs of the Atkins

analysis,” his intellectual-disability claim failed. Id. After re-

jecting Bourgeois’s remaining claims, the court denied his

§ 2255 motion and denied a certificate of appealability. Id. at

*111. Turning to the Fifth Circuit, Bourgeois requested a cer-

tificate of appealability to appeal some aspects of the district

court’s ruling, but he did not challenge the denial of his intel-

lectual-disability claim. See United States v. Bourgeois, 537 F.

App’x 604 (5th Cir. 2013) (per curiam) (denying Bourgeois’s

request for a certificate of appealability).

About four years later, Bourgeois sought leave from the

Fifth Circuit to file a successive § 2255 motion. See 28 U.S.C.

§ 2255(h). In his new motion, Bourgeois again raised an intel-

lectual-disability claim. Bourgeois said he deserved a second

chance to present his claim because the Supreme Court’s de-

cision in Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I) had

breathed new life into his claim. The Fifth Circuit held that

Bourgeois’s successive motion was barred by “§ 2244(b)(1)’s

No. 20-1891 9

strict relitigation bar,” which applied to federal prisoners

through 28 U.S.C. § 2255(h). In re Bourgeois, 902 F.3d 446, 447

(5th Cir. 2018).

This brings us to Bourgeois’s present petition. Bourgeois

currently resides at the federal penitentiary in Terre Haute,

Indiana. In August 2019, a month after he received an execu-

tion date, 2 Bourgeois filed a habeas corpus petition under 28

U.S.C. § 2241 in the Southern District of Indiana. He also

moved to stay his execution. Once again, Bourgeois argued

that he was intellectually disabled, and that his death sentence

ran afoul of Atkins and the FDPA. Relying in part on the

FDPA’s ban on executing a person who “is” (present tense)

intellectually disabled, 18 U.S.C. § 3596(c), he argued that At-

kins and the FDPA forbid both the “imposition” and the “ex-

ecution” of his death sentence.

Procedurally, Bourgeois tried to channel his petition

through § 2255(e)’s “savings clause,” 3 which permits a federal

2 In July 2019, the government set Bourgeois’s execution for January

13, 2020. The execution did not go forward because, on November 20,

2019, the district judge presiding over execution-protocol litigation

brought by Bourgeois and others in the District of Columbia preliminarily

enjoined the government from carrying out the executions. In re Fed. Bu-

reau of Prisons' Execution Protocol Cases, No. 19-mc-145 (TSC), 2019 WL

6691814 (D.D.C. Nov. 20, 2019). On April 2, 2020, the D.C. Circuit vacated

that preliminary injunction. In re Fed. Bureau of Prisons' Execution Protocol

Cases, 955 F.3d 106 (D.C. Cir. 2020). The Supreme Court denied certiorari.

Bourgeois v. Barr, No. 19-1348, 2020 WL 3492763 (U.S. June 29, 2020). The

lower court’s stay in the case now before us remains in effect, and Bour-

geois has not received a new execution date.

3 We have alternated between referring to § 2255(e) as the “safety

valve” and the “savings clause.” Compare Purkey v. United States, 964 F.3d

603, 611 (7th Cir. 2020) (“safety valve”), with Lee v. Watson, 964 F.3d 663,

10 No. 20-1891

prisoner who has already moved for relief under § 2255 to file

a habeas corpus petition under § 2241 if § 2255 was “inade-

quate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e). Bourgeois argued that his § 2255 motion was

“inadequate or ineffective to test the legality” of his death sen-

tence because the judge in the Southern District of Texas who

denied his motion relied on diagnostic standards that the Su-

preme Court later rejected in Moore I and its follow-on deci-

sion in Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II).

The district judge ordered the government to respond to

Bourgeois’s petition. In its lengthy response, the government

argued that Bourgeois had fully litigated his intellectual-dis-

ability claim in the Southern District of Texas, and that the Su-

preme Court’s continued development of the law in Moore I

and Moore II did not justify savings-clause relief. In any event,

the government argued, the Southern District of Texas’s anal-

ysis was consistent with Moore I and Moore II. Throughout its

brief, the government referred to Bourgeois’s intellectual-dis-

ability claim as his “Atkins claim.” It did not mention Bour-

geois’s FDPA claim in its analysis. In his reply, Bourgeois ar-

gued that the government “completely fail[ed] to challenge

[his] claim that he is entitled to § 2241 review because he chal-

lenges the execution of his sentence, as well as its imposition.”

The district court granted Bourgeois’s motion for a stay.

Bourgeois v. Warden, No. 2:19-cv-00392-JMS-DLP, 2020 WL

1154575, at *1 (S.D. Ind. Mar. 10, 2020). Without addressing

his Atkins claim, the court found that Bourgeois was likely to

succeed on his FDPA claim. Id. Before reaching the merits, the

666 (7th Cir. 2020) (“savings clause”). We use the term “savings clause” in

this opinion.

No. 20-1891 11

court found that the government had waived any argument

that Bourgeois’s FDPA claim could not proceed under § 2241

by not separately addressing his FDPA claim in its briefing.

Id. at *3. The court faulted the government for “fail[ing] to

even mention” the FDPA claim, “let alone explain why it can-

not be brought in a § 2241.” Id. That failure was “inexplicable

and inexcusable.” Id. The court stressed that Bourgeois’s reply

had “highlighted [the government’s] failure to address the

FDPA claim,” yet the government had “failed to seek leave to

file a surreply addressing that claim.” Id. That, in turn, led the

court to infer that the government’s “failure to address the

claim was more intentional than inadvertent,” thus establish-

ing waiver (and not merely forfeiture). Id. Turning to the mer-

its of Bourgeois’s FDPA claim, the court found that he had

made a strong showing of intellectual disability. Id. at *4–5.

The court granted Bourgeois’s motion and stayed his execu-

tion. Id. at *6.

After the court entered the stay, the government sought

leave to file a surreply. The government emphasized that

Bourgeois himself had referred to his Atkins and FDPA claims

collectively as his “Atkins claim” throughout his petition. Be-

cause Bourgeois had relied on the same arguments for both

claims—which are governed by identical standards—the gov-

ernment had similarly not “parse[d] out” a separate FDPA

claim in its response to the petition. The court denied the gov-

ernment’s motion, finding that Bourgeois had, in fact, pre-

sented separate statutory and constitutional claims. The court

reiterated that Bourgeois’s reply brief had flagged the govern-

ment’s failure to address his FDPA claim, yet the government

had not sought leave to file a surreply until after the court

ruled. The government now appeals the district court’s stay

order.

12 No. 20-1891

II. Discussion

We review the district court’s decision to enter a stay for

abuse of discretion. Venckiene v. United States, 929 F.3d 843, 853

(7th Cir. 2019). We review the underlying factual findings for

clear error and legal conclusions de novo. Id.; Mays v. Dart,

--- F.3d ----, No. 20-1792, 2020 WL 5361651, at *5 (7th Cir. Sept.

8, 2020). “[A] factual or legal error may alone be sufficient to

establish that the court abused its discretion in making its fi-

nal determination.” Mays, 2020 WL 5361651, at *5 (alteration

in original) (quoting Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d

1429, 1437 (7th Cir. 1986)).

The four stay factors are: “(1) whether the stay applicant

has made a strong showing that he is likely to succeed on the

merits; (2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substan-

tially injure the other parties interested in the proceeding; and

(4) where the public interest lies.” Nken v. Holder, 556 U.S. 418,

434 (2009). Stay applicants “must satisfy all of the require-

ments for a stay, including a showing of a significant possibil-

ity of success on the merits.” Hill v. McDonough, 547 U.S. 573,

584 (2006).

The district court found that Bourgeois had met all four

stay factors, but we only reach the first one: likelihood of suc-

cess on the merits. The district court’s determination that

Bourgeois was likely to succeed on the merits of his FDPA

claim rested on a preliminary finding that the government

had waived any argument that Bourgeois’s FDPA claim was

not cognizable under § 2255(e)’s savings clause. That is where

we part ways with the district court. We find that the govern-

ment did not waive, or even forfeit, this argument. And even

if it had forfeited the argument, we would excuse that

No. 20-1891 13

forfeiture on these facts. We proceed to consider whether

Bourgeois’s Atkins and FDPA claims are cognizable under the

savings clause. They are not. With no procedural home for his

claims, Bourgeois’s likelihood of success on the merits is non-

existent. Thus, we vacate the stay.

A. Waiver and Forfeiture 4

We recently discussed the distinction between waiver and

forfeiture in civil cases in Henry v. Hulett, 969 F.3d 769 (7th Cir.

2020) (en banc). We observed that, “[w]hereas waiver is the

‘intentional relinquishment or abandonment of a known

right,’ forfeiture is the mere failure to raise a timely argument,

due to either inadvertence, neglect, or oversight.” Id. at 786

(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). “In

the criminal context,” we noted, “the distinction between

waiver and forfeiture is critical: while waiver precludes re-

view, forfeiture permits a court to correct an error under a

plain error standard.” Id. In the civil context, we had been less

clear about the role of plain error review. Id. We took the oc-

casion to “clarify that ‘our ability to review for plain error in

civil cases is severely constricted,’ as ‘a civil litigant should be

bound by his counsel’s actions.’” Id. (quoting SEC v. Yang, 795

F.3d 674, 679 (7th Cir. 2015)). “Plain error review is available

in civil cases only in the rare situation where a party can

demonstrate that: ‘(1) exceptional circumstances exist; (2)

4 The government has not asked us to reconsider our conclusion that

§ 2255(e) is non-jurisdictional. Harris v. Warden, 425 F.3d 386, 388 (7th Cir.

2005); Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017). Thus, we will

address the question of waiver. See Moore v. Olson, 368 F.3d 757, 759 (7th

Cir. 2004) (“Defects in subject-matter jurisdiction … may not be waived or

forfeited.”).

14 No. 20-1891

substantial rights are affected; and (3) a miscarriage of justice

will occur if plain error review is not applied.’” Id. (quoting

Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636 (7th

Cir. 2018)). “The determination of what circumstances fit

these criteria is solely within our discretion.” Id. These stand-

ards govern here because, although habeas proceedings arise

from criminal cases, they are civil in nature.

We start with waiver. After reviewing the record below,

we find that there was no basis to conclude that the govern-

ment had waived its argument that Bourgeois’s FDPA claim

could not pass through the savings clause. To begin, Bour-

geois himself did not clearly parse out separate Atkins and

FDPA claims. Rather, he presented one intellectual-disability

claim arising under two sources of law that—as both parties

agree—provide substantively identical protection and are

governed by the same standard. See Webster v. Daniels, 784

F.3d 1123, 1139 n.6 (7th Cir. 2015) (en banc) (Webster I) (noting

that Atkins and the FDPA may provide different procedural

pathways to relief); id. at 1150 (Easterbrook, J., dissenting)

(“Atkins and Hall do not alter the [FDPA’s] substantive stand-

ard.”). Bourgeois’s first argument heading was: “Mr. Bour-

geois Is Intellectually Disabled and Is Ineligible for the Death

Penalty Under the Federal Death Penalty Act and Atkins v. Vir-

ginia and Its Progeny.” Bourgeois did not include separate

sub-headings or arguments for his Atkins and FDPA claims.

Instead, he made one set of arguments for both claims, and

accompanied the arguments with citations to both Atkins and

the FDPA. At times, Bourgeois even referred to both claims

collectively as his “Atkins claim.” Given that Bourgeois him-

self did not treat his Atkins and FDPA claims as distinct, we

do not believe that the government intentionally chose to dis-

aggregate the claims and respond to only one of them.

No. 20-1891 15

Nor are we aware of any conceivable strategic reason why

the government would intentionally respond to Bourgeois’s

Atkins claim while forgoing its right to challenge his FDPA

claim. Why respond to the Atkins claim at all, if Bourgeois

could still proceed with his substantively identical FDPA

claim? Neither Bourgeois nor the court below answer this

question. In these circumstances, we do not consider the gov-

ernment’s failure to respond to be “a deliberate decision not

to present a ground for relief that might be available in the

law.” United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).

The sole reason that the court below gave for its finding of

intentional waiver was the government’s failure to seek leave

to file a surreply after Bourgeois’s reply brief “highlighted

[the government’s] failure to address the FDPA claim.” 2020

WL 1154575, at *3. We respectfully disagree with that reading

of Bourgeois’s reply brief. On pages 42–43 of his 45-page reply

brief (the portion cited by the district court), Bourgeois argued

that the government “completely fails to challenge Mr. Bour-

geois’s claim that he is also entitled to review under § 2241

because his challenge goes not only to the imposition of his

sentence, but also to the execution thereof.” He went on to ar-

gue (as he did in his opening petition) that both Atkins and the

FDPA forbid the execution of a person who is presently intel-

lectually disabled. True, he relied on the FDPA’s statutory lan-

guage to make that argument. But nowhere did he say that

the government failed to respond to—let alone waived its re-

sponse to—the cognizability of his FDPA claim. The govern-

ment’s failure to seek leave to file a surreply to respond to this

argument does not support a finding of waiver.

That is especially true because “surreply briefs are rare

and discouraged in most districts.” Ennin v. CNH Indus. Am.,

16 No. 20-1891

LLC, 878 F.3d 590, 595 (7th Cir. 2017). Indeed, while the South-

ern District of Indiana’s local rules allow a party opposing

summary judgment to file a surreply as a matter of right in

certain limited circumstances, they are otherwise silent on

surreplies. S.D. Ind. L.R. 56–1(d). We have previously held

that, when local rules do not permit filing a surreply as of

right, a party does not waive an argument for purposes of ap-

peal by failing to seek leave from the district court to raise the

argument in a surreply. Hardrick v. City of Bolingbrook, 522 F.3d

758, 763 n.1 (7th Cir. 2008); Ennin, 878 F.3d at 596. Otherwise,

“arguments before the district court would proceed ad infini-

tum making litigation unruly and cumbersome.” Hardrick,

522 F.3d at 763 n.1. For similar reasons, we will not infer

waiver here from the government’s failure to seek leave to file

a surreply—with no authorization from the local rules—to re-

spond to an argument that Bourgeois never distinctly pre-

sented. The district court’s factual determination that the gov-

ernment intentionally waived its argument was clearly erro-

neous and amounts to an abuse of discretion. See Mays, 2020

WL 5361651, at *5.

We turn next to forfeiture. On appeal, the government in-

sists that its failure to respond to Bourgeois’s FDPA claim

was, at most, forfeiture. Although the district court did not

address forfeiture, its finding of intentional waiver was in-

compatible with forfeiture. After reviewing the issue for our-

selves, we are convinced that the government’s failure to re-

spond separately to Bourgeois’s FDPA claim—which was

governed by the same standard as his Atkins claim—did not

result in forfeiture. Forfeiture results from “inadvertence, ne-

glect, or oversight.” Henry, 969 F.3d at 786. We do not believe

that the government’s silence on Bourgeois’s FDPA claim was

“oversight” when Bourgeois himself, through his

No. 20-1891 17

undifferentiated presentation of the claims, was just as much

to blame for that silence.

In the end, though, our conclusion on forfeiture does not

make a difference because, even if the government had for-

feited the issue, we would forgive it on these unique facts. As

we have said, we have discretion to forgive a party’s forfeiture

in exceptional circumstances. Id. These circumstances include

when a forfeited ground is “founded on concerns broader

than those of the parties.” United States v. Ford, 683 F.3d 761,

768 (7th Cir. 2012) (quoting Wood v. Milyard, 566 U.S. 463, 471

(2012)). In Ford, for instance, we forgave the government’s

failure to argue harmless error because reversing on a harm-

less error would harm not just the forfeiting party, but also

“innocent third parties, in particular other users of the court

system, whose access to that system is impaired by additional

litigation.” Id. at 769. Although Ford was a criminal case, we

relied there on two Supreme Court decisions that arose in the

civil habeas context. The first was Granberry v. Greer, 481 U.S.

129 (1987), which held that a federal appellate court has dis-

cretion in “exceptional cases” to consider a state’s forfeited

exhaustion argument because of the significant comity and

federalism interests implicated by the exhaustion require-

ment. Id. at 134. The second was Wood, 566 U.S. 463, which

held that federal appellate courts have discretion to consider

forfeited statute-of-limitations defenses, given “the institu-

tional interests served by AEDPA’s statute of limitations,”

such as conserving judicial resources and protecting the accu-

racy and finality of state-court judgments. Id. at 472–73.

Similar considerations would compel us to look past any

government forfeiture in this case. We have already explained

why the government’s failure to separately address

18 No. 20-1891

Bourgeois’s FDPA claim was excusable as a practical matter.

But there are also broader interests at stake. As we recently

observed in Purkey v. United States, 964 F.3d 603 (7th Cir.

2020), “[f]inality” is a “central goal[] of the judicial system.”

Id. at 606. The importance of finality is especially pronounced

where, as here, postconviction proceedings have tied up a

criminal conviction for more than a dozen years. Beyond fi-

nality, there is judicial efficiency. “The idea of an entitlement

to one untainted opportunity to make one’s case is deeply em-

bedded in our law.” Id. The savings clause embodies that

principle by generally prohibiting repeat claims in federal

postconviction proceedings. See id.; see also United States v. Gio-

vannetti, 928 F.2d 225, 226 (7th Cir. 1991) (per curiam) (observ-

ing that courts may excuse forfeiture “for the sake of protect-

ing third-party interests including such systemic interests as

the avoidance of unnecessary court delay”). Taken together,

these significant interests convince us that, even if the govern-

ment had forfeited its FDPA argument, that forfeiture would

not prevent us from considering the savings-clause issue.

B. Cognizability Under the Savings Clause

That brings us to the main issue in this case: whether Bour-

geois’s case “fits within the narrow confines of the safety

valve.” Purkey, 964 F.3d at 611. Given its finding on waiver,

the district court did not address this question. For that rea-

son, Bourgeois, anticipating a loss on the waiver issue, asks us

to remand the issue so that the district court can consider it in

the first instance. That is indeed the normal course. Amcast In-

dus. Corp. v. Detrex Corp., 2 F.3d 746, 749 (7th Cir. 1993). But

that is not the best course here. We are dealing with a pure

issue of law that both sides have fully briefed. Remanding it

to the district court would likely result in a second appeal on

No. 20-1891 19

the issue, and we would be right back where we started.

“[T]he district judge’s view, while it would no doubt be inter-

esting, could have no effect on our review, which is plenary

on matters of law.” Id. at 750. Given this posture, the extensive

briefing on the issue, and the long pendency of this case, re-

solving the issue now is the better use of judicial resources.

1. Savings Clause and § 2241

Section 2255 permits a prisoner serving a federal sentence

to “move the court which imposed the sentence to vacate, set

aside or correct the sentence.” 28 U.S.C. § 2255(a). “In the

great majority of cases,” § 2255 is the “exclusive postconvic-

tion remedy for a federal prisoner.” Purkey, 964 F.3d at 611.

Section 2255 has a strict one-year statute of limitations. 28

U.S.C. § 2255(f). In addition, the statute ordinarily limits pris-

oners to just one shot at relief. As we recognized in Purkey,

though, there are two exceptions to that rule. Id. First,

§ 2255(h) authorizes a federal court of appeals to certify a

“second or successive motion” if it contains “newly discov-

ered evidence” proving innocence, or if it identifies “a new

rule of constitutional law, made retroactive to cases on collat-

eral review by the Supreme Court.” 28 U.S.C. § 2255(h). Bour-

geois pursued that option to no avail in the Fifth Circuit. In re

Bourgeois, 902 F.3d at 447. The second exception is § 2255(e),

better known as “the savings clause.” That subsection pro-

vides that a habeas corpus petition “shall not be entertained”

if the petitioner “has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion is in-

adequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e) (emphasis added). A prisoner who qualifies

for this “narrow pathway” to relief may file a petition under

20 No. 20-1891

28 U.S.C. § 2241, the general habeas corpus statute. Purkey, 964

F.3d at 611.

We recently examined the scope of the savings clause in

two cases that weigh heavily on Bourgeois’s appeal. The first

is Purkey, which we have already referenced. In that case,

Wesley Purkey filed a § 2241 petition claiming ineffective as-

sistance of counsel. Id. at 615. Purkey had previously raised a

claim of ineffective assistance of counsel in his § 2255 motion,

but in his § 2241 petition he identified three new grounds of

ineffective assistance. Id. He blamed his failure to raise those

grounds earlier on the ineffectiveness of his § 2255 counsel. Id.

Invoking the savings clause, Purkey argued “that section 2255

is structurally inadequate to test the legality of a conviction

and sentence any time a defendant receives ineffective assis-

tance of counsel in his one permitted motion.” Id. at 614.

We rejected that broad argument and explained that “the

words ‘inadequate or ineffective,’ taken in context, must

mean something more than unsuccessful.” Id. at 615. Instead,

“there must be a compelling showing that, as a practical mat-

ter, it would be impossible to use section 2255 to cure a fun-

damental problem. It is not enough that proper use of the stat-

ute results in denial of relief.” Id.

We found that Purkey was missing that “something

more.” Id. at 615–17. We did not deny that Purkey had raised

a significant question as to the effectiveness of his trial coun-

sel. Id. at 615. “But that [was] not the proper question before

us.” Id. It was, instead, “whether, having raised in his section

2255 motion 17 specific ways in which his trial counsel were

ineffective, Purkey is now entitled to add additional allega-

tions … through section 2241.” Id. He was not. We stressed

that, “[a]t the time Purkey filed his motion under section 2255,

No. 20-1891 21

nothing formally prevented him from raising each of the three

errors he now seeks to raise in his petition under 2241.” Id.

Even if Purkey’s counsel were not up to par, we were “left

with the fundamental problem” that “the mechanisms of sec-

tion 2255 gave him an opportunity to complain about ineffec-

tive assistance of trial counsel, and he took advantage of that

opportunity. There was nothing structurally inadequate or in-

effective about section 2255 as a vehicle to make those argu-

ments.” Id. at 616–17.

Our second recent decision on the savings clause is Lee v.

Watson, 964 F.3d 663 (7th Cir. 2020). Like Purkey, Daniel Lewis

Lee relied on the savings clause to raise a claim of ineffective

assistance of counsel that his § 2255 counsel had missed. Id. at

667. Applying Purkey, we rejected that use of the savings

clause. Id. We reiterated Purkey’s “unambiguous[]” holding

that “a § 2241 petition may not proceed under the Savings

Clause absent ‘a compelling showing’ that it was ‘impossible’

to use § 2255 to cure the defect identified in the § 2241 peti-

tion.” Id. at 666 (quoting Purkey, 964 F.3d at 615). Because

Lee’s case was “indistinguishable from Purkey,” the savings

clause did not apply. Id. at 667.

2. The Law Governing Intellectual-Disability Claims

With Purkey and Lee in mind, we turn to Bourgeois’s pitch

for savings-clause relief. At a basic level, Bourgeois says his

intellectual-disability claim qualifies for savings-clause relief

because no court has ever reviewed that claim in accordance

with clinical diagnostic standards. He acknowledges that he

raised an intellectual-disability claim in his § 2255 motion, but

he faults the judge in the Southern District of Texas who re-

jected that claim for applying “non-clinical, unscientific

standards” that the Supreme Court later rejected in Moore I

22 No. 20-1891

and Moore II. To better make sense of Bourgeois’s argument,

we briefly review the underlying legal framework.

The FDPA, which Congress passed in 1994, provides: “A

sentence of death shall not be carried out upon a person who

is mentally retarded.” 18 U.S.C. § 3596(c). As we have said, the

parties agree that the FDPA provides the same substantive

protection as Atkins and its progeny. Because Bourgeois’s

claims are substantively identical, we refer to them collec-

tively as his “intellectual-disability claim.” Our analysis ap-

plies equally to both claims.

In Atkins, the Supreme Court held that the Eighth Amend-

ment’s ban on cruel and unusual punishments forbids the ex-

ecution of intellectually disabled offenders. 536 U.S. at 321.

Importantly, the Supreme Court signaled that the law relies

on “clinical” definitions of intellectual disability. Id. at 318.

The Supreme Court referenced two “similar” definitions of

intellectual disability (both of which we have already men-

tioned). First, it cited an earlier version of AAIDD-11. Id. at

308 n.3. Second, it cited DSM-4. Id. It summarized both defi-

nitions as “requir[ing] not only subaverage intellectual func-

tioning, but also significant limitations in adaptive skills such

as communication, self-care, and self-direction that became

manifest before age 18.” Id. at 318.

Twelve years later, in Hall v. Florida, 572 U.S. 701 (2014),

the Supreme Court reiterated that courts “are informed by the

work of medical experts in determining intellectual disabil-

ity.” Id. at 710. The Court cited both Atkins and the newly

available fifth edition of the APA’s Diagnostic and Statistical

Manual of Mental Disorders (DSM-5) for its slightly refined

definition of intellectual disability: “[T]he medical commu-

nity defines intellectual disability according to three criteria:

No. 20-1891 23

significantly subaverage intellectual functioning, deficits in

adaptive functioning (the inability to learn basic skills and ad-

just behavior to changing circumstances), and onset of these

deficits during the developmental period.” Id. The Court held

that Florida’s strict requirement of an IQ score of 70 or less for

a finding of intellectual disability was incompatible with that

definition. Id. at 723.

A few years later, in Moore I, the Supreme Court consid-

ered whether Texas was adhering to the medical community’s

definition of intellectual disability. The Texas Court of Crimi-

nal Appeals (CCA) had reversed a lower court for applying

the medical community’s current definition of intellectual dis-

ability instead of the intellectual-disability factors that the

CCA had adopted in a previous case (the “Briseno factors”).

137 S. Ct. at 1044. The Supreme Court vacated the CCA’s de-

cision, finding that the Briseno factors were “untied to any

acknowledged source” and “[n]ot aligned with the medical

community’s information.” Id. The Court highlighted a few

specific ways in which the CCA had departed from the re-

quired framework. First, the CCA’s conclusion that Moore’s

IQ score of 74 meant that he was not intellectually disabled

was “irreconcilable with Hall.” Id. at 1049. Second, “[i]n con-

cluding that Moore did not suffer significant adaptive deficits,

the CCA overemphasized Moore’s perceived adaptive

strengths.” Id. at 1050. Citing DSM-5 and AAIDD-11, the

Court stressed that “the medical community focuses the

adaptive-functioning inquiry on adaptive deficits.” Id. Third,

the CCA had sought to blame Moore’s adaptive deficits on

other factors, such as his traumatic childhood experiences and

personality disorder, when neither of those factors was incon-

sistent with a finding that Moore was also suffering from an

intellectual disability. Id. at 1051. Indeed, Moore’s traumatic

24 No. 20-1891

childhood experiences were a risk factor for intellectual disa-

bility. Id. In short, by relying on “the wholly nonclinical

Briseno factors, the CCA failed adequately to inform itself of

the ‘medical community’s diagnostic framework.’” Id. at 1053

(quoting Hall, 572 U.S. at 721).

The case came back to the Supreme Court in Moore II. On

remand following Moore I, the CCA had revisited, and again

rejected, Moore’s claim of intellectual disability. In a per cu-

riam opinion, the Supreme Court reversed the CCA’s decision

on remand, finding that the CCA, while purporting to apply

the latest medical diagnostic standards, had, “with small var-

iations,” simply “repeat[ed] the analysis we previously found

wanting.” 139 S. Ct. at 670. After reviewing the trial record on

its own, the Court concluded that Moore was intellectually

disabled. Id. at 672.

3. Bourgeois’s Eligibility for Savings-Clause Relief

With that context, we consider whether Bourgeois is cor-

rect that Moore I and Moore II somehow qualify him for the

“narrow pathway” of review under the savings clause.

Purkey, 964 F.3d at 611. According to Bourgeois, the judge that

denied his § 2255 motion made essentially the same errors

that the CCA made in Moore I and Moore II. Bourgeois says the

§ 2255 court relied on “then-binding Fifth Circuit precedent”

to “reject[] diagnostic standards in evaluating Bourgeois’s

§ 2255 claim.” On the intellectual-functioning prong, Bour-

geois faults the court for not finding that his IQ scores (70 and

75) automatically established significantly subaverage intel-

lectual functioning. Instead, he says the court relied on “un-

scientific, erroneous stereotypes” to conclude that his IQ score

did not accurately represent his level of intellectual function-

ing. On the adaptive-deficits prong, Bourgeois criticizes the

No. 20-1891 25

court for dismissing the “psychological” approach to adap-

tive functioning in favor of a “legal” approach that weighed

adaptive deficits against adaptive strengths. He contends

that, like the CCA in Moore I, the § 2255 court erroneously re-

lied on unscientific stereotypes to evaluate his intellectual dis-

ability and improperly blamed his adaptive deficits on certain

“dysfunctional” aspects of his background.

Initially, we note our disagreement with Bourgeois’s con-

tention that the Texas district court “eschewed medical stand-

ards” in denying his § 2255 motion. After a week-long hear-

ing, the court thoroughly analyzed Bourgeois’s § 2255 motion

in a 225-page written order that dedicated more than 50 pages

to analyzing his intellectual-disability claim alone. Bourgeois,

2011 WL 1930684. Far from rejecting medical standards, as the

CCA had done in Moore I, the district court identified, and ap-

plied, the most recent medical guidance on intellectual disa-

bilities. Id. at *23–24. The district court’s references to its “le-

gal” approach to adaptive functioning do not convince us that

its treatment of adaptive functioning was inconsistent with

Moore I because the court found Bourgeois’s alleged adaptive

deficiencies to be slight and uncorroborated, without regard

to his adaptive strengths. See, e.g., id. at *41 (finding that “[t]he

evidentiary hearing testimony … failed to verify or support

most of” of the academic deficiencies that Bourgeois’s expert

relied on); id. at *44 (concluding, after reviewing all the evi-

dence presented on Bourgeois’s adaptive deficits, merely that

Bourgeois “may have had difficulties when younger”).

Contrary to what Bourgeois suggests, moreover, the court

did not view adaptive impairments as a zero-sum game, at-

tributable to either one cause (e.g., childhood abuse) or an-

other (e.g., intellectual disability), but not both. Rather, the

26 No. 20-1891

court found that the record did not “conclusively link” Bour-

geois’s childhood problems “to mental retardation rather

than a culturally deprived upbringing, poverty, or abuse.” Id.

In other words, there was a lack of evidence about what

caused Bourgeois’s alleged impairments. Unlike the CCA in

the Moore cases, the § 2255 court did not view Bourgeois’s

other childhood problems as evidence that he was not intel-

lectually disabled. Lastly, nowhere in Moore I or Moore II did

the Supreme Court say that a court must accept an IQ score at

face value, especially when a psychological expert credibly

testifies that the subject did not put forth his best effort on the

test. For these reasons, we are not convinced that the district

court’s analysis ran afoul of clinical diagnostic standards.

In the end, though, it is not for us to decide whether the

§ 2255 court got it right or wrong. That point seems lost on

Bourgeois, who goes on at length about why, in his view, the

§ 2255 court was wrong. “[T]hat is not the proper question

before us.” Purkey, 964 F.3d at 615. The savings clause is not

simply another avenue for appeal. Indeed, Bourgeois had the

chance to appeal the court’s denial of his intellectual-disabil-

ity claim, yet he chose not to do so. At this stage of the pro-

ceedings, our only role is to determine whether there was

something “structurally inadequate or ineffective about sec-

tion 2255 as a vehicle” for Bourgeois. Id. at 616–17. There

plainly was not.

Atkins was the watershed case on intellectual disability.

Before Atkins, the Supreme Court had not decided whether

the Constitution prevents the execution of intellectually disa-

bled offenders. Atkins held that it does, and further signaled

that the law borrows its definition of intellectual disability

from the medical community. 536 U.S. at 308 n.3, 318. The

No. 20-1891 27

Supreme Court carried forward that core insight from Atkins

in Hall, Moore I, and Moore II, and further elaborated on the

measurements of intellectual function and the evaluation of

adaptive deficits. The importance of applying medical stand-

ards, however, has been evident since Atkins and was evident

to the § 2255 court in this case.

Critically, Atkins was on the books when Bourgeois filed

his § 2255 motion in 2007. Bourgeois says he never had the

chance to litigate his intellectual-disability claim under clini-

cal diagnostic standards. But that is precisely what Bourgeois

did in his § 2255 motion. The § 2255 court set forth, and ap-

plied, the same three-part test for intellectual disability that

now prevails. Bourgeois, 2011 WL 1930684, at *23–24; see Web-

ster v. Watson, --- F.3d ----, No. 19-2683, 2020 WL 5638691, at *9

(7th Cir. Sept. 22, 2020) (Webster II) (relying on the same three-

part test). It drew that test from Atkins, DSM-4, and AAIDD-

11. Bourgeois, 2011 WL 1930684, at *23–24; see Webster II, 2020

WL 5638691, at *14 (relying on DSM-5 and AAIDD-11). True,

some aspects of the court’s analysis would have looked dif-

ferent if the Supreme Court had decided Moore I by then. But

the savings clause does not apply every time the Supreme

Court clarifies the law that governed a prisoner’s § 2255 mo-

tion, or, where intellectual disability is at issue, every time the

medical community updates its diagnostic standards. Were

that the case, we would truly be facing “a never-ending series

of reviews and re-reviews.” Purkey, 964 F.3d at 615.

As in Purkey, “nothing formally prevented [Bourgeois]

from raising each of the … errors he now seeks to raise in his

petition under 2241.” Id. Indeed, Bourgeois’s § 2255 motion

did raise the errors that he now seeks to correct. Bourgeois

makes that point inadvertently when criticizing the § 2255

28 No. 20-1891

court’s analysis. He argues that the court’s “refusal to follow

diagnostic criteria” led it to credit the government’s expert,

who weighed adaptive deficiencies against adaptive

strengths, over his own expert, who, “consistent with diag-

nostic criteria … explained that the[] strengths did not offset

Bourgeois’s deficits in any given area.” Far from being “im-

possible” to rely on the substantive teachings of Moore I and

Moore II, Bourgeois hired an expert to testify to precisely what

the Supreme Court eventually clarified in Moore I and Moore

II—namely, that the adaptive functions inquiry focuses on

adaptive deficits. Bourgeois suggests that binding Fifth Cir-

cuit precedent prevented the court from properly analyzing

his adaptive deficits. But even if that were true, it does not

demonstrate that it was “impossible” for Bourgeois, armed

with Atkins and the latest clinical diagnostic standards, to

demonstrate that he was intellectually disabled. “[T]he words

‘inadequate or ineffective,’ taken in context, must mean some-

thing more than unsuccessful.” Purkey, 964 F.3d at 615.

Bourgeois’s problems do not stop there. We have held that

the savings clause affords relief in limited circumstances to

federal prisoners who rely on retroactive statutory-interpre-

tation cases that postdate their § 2255 motions. See, e.g., In re

Davenport, 147 F.3d 605, 611 (7th Cir. 1998). As we observed in

Purkey, “[s]tatutory problems are simply not covered in sec-

tion 2255.” 964 F.3d at 615. But Moore I and Moore II are con-

stitutional cases, not statutory interpretation cases. That is

why Bourgeois relied on Moore I when he sought permission

from the Fifth Circuit to file a successive § 2255 motion. See 28

U.S.C. § 2255(h). The Fifth Circuit denied his request. In re

Bourgeois, 902 F.3d at 447. Bourgeois now comes to us with

essentially the same argument, asking us in effect to overrule

the Fifth Circuit. This time, Bourgeois does not even attempt

No. 20-1891 29

to argue that Moore I and Moore II are retroactive. We will not

authorize that end-run around § 2255(h).

Bourgeois has two unpersuasive rejoinders. First, Bour-

geois says it does not matter whether Moore I and Moore II are

retroactive because the FDPA applies current definitions of in-

tellectual disability. According to Bourgeois, the FPDA’s ban

on executing a person who “is” intellectually disabled, 18

U.S.C. § 3596(c), proscribes executing anyone who is pres-

ently intellectually disabled, as determined by current legal

and diagnostic standards—including those reflected in Moore

I and Moore II. This is part of Bourgeois’s larger argument that

Atkins and the FDPA forbid both the “imposition” and the

“execution” of death sentences on the intellectually disabled.

Bourgeois makes much of the FDPA’s use of the word “is.”

But what other word would Congress have chosen? Intellec-

tual disability is a permanent condition that must manifest be-

fore the age of 18. Atkins, 536 U.S. at 318. It would be senseless

to proscribe the execution of someone who merely “was” in-

tellectually disabled when they were sentenced, or who “will

be” intellectually disabled when their sentence is carried out.

Bourgeois seems to confuse intellectual disability with the

temporary condition of incompetency, which may come and

go. See Ford v. Wainwright, 477 U.S. 399 (1986); see also Williams

v. Kelley, 858 F.3d 464, 472 (8th Cir. 2017) (per curiam); Busby

v. Davis, 925 F.3d 699, 713 (5th Cir. 2019). For these reasons,

we find no support for Bourgeois’s argument in the word “is.”

And with no textual (or other) support, we are unwilling to

accept Bourgeois’s sweeping argument that a fresh intellec-

tual-disability claim arises every time the medical community

updates its literature.

30 No. 20-1891

Next, Bourgeois contends that his case fits within the pa-

rameters of the three main cases where we have found the

savings clause applicable: Davenport, 147 F.3d 605; Garza v.

Lappin, 253 F.3d 918 (7th Cir. 2001); and Webster I, 784 F.3d

1123. To the contrary, Davenport, Garza, and Webster I merely

illustrate the “something more” that Bourgeois is missing.

Purkey, 964 F.3d at 615. In Davenport, the successful petitioner

(Nichols) had a new, retroactive Supreme Court statutory de-

cision holding that the conduct for which he was imprisoned

was not a crime. 147 F.3d at 611. Garza had a previously un-

obtainable decision from an international tribunal finding

that his death sentence violated international human rights

norms. 253 F.3d at 923. And Webster had clear and convincing

new evidence showing that he was intellectually disabled and

thus ineligible for the death penalty. 784 F.3d at 1140–44.

We recently reviewed Webster’s new evidence again in

Webster II, 2020 WL 5638691, which further illustrates the type

of unusual circumstances that warrant savings-clause relief.

On remand following our decision in Webster I, the district

court held a lengthy evidentiary hearing on Webster’s intel-

lectual-disability claim. From the evidence presented at the

hearing, the district court determined that Webster’s new ev-

idence of intellectual disability, which predated his capital

trial, had been unavailable to Webster at trial despite his coun-

sel’s diligent efforts to obtain it at the time. Id. at *8. The new

evidence was far from cumulative, moreover, because it

showed for the first time that Webster had been diagnosed as

intellectually disabled before he committed the crimes for

which he had been sentenced to death, “at a time when Web-

ster had no incentive to malinger.” Id. at *15. That was critical

because the government’s theory at trial was that Webster’s

low IQ scores were the product of malingering. Id. at *3. After

No. 20-1891 31

reviewing the new evidence and other evidence presented at

the hearing, the district court found that Webster was intellec-

tually disabled. Id. at *9–12. We upheld the district court’s fac-

tual findings on appeal because they contained no clear error.

Id. at *12–17. Unlike Webster, Bourgeois has no newly discov-

ered evidence. Instead, he had a full and fair opportunity to

litigate his intellectual-disability claim before the district

court that decided his § 2255 motion.

To be sure, Davenport, Garza, and the Webster cases do not

“create rigid categories delineating when the safety valve is

available.” Purkey, 964 F.3d at 614. But they illustrate the lim-

ited kinds of structural defects that justify savings-clause re-

lief. Of the three cases, Davenport may best illustrate what

Bourgeois is lacking. Nichols, the successful petitioner in Dav-

enport, had a retroactive, statutory decision that completely

undermined the legal basis for his conviction. Bourgeois’s

only claim, by contrast, is that the law governing his intellec-

tual-disability claim continued to develop after he lost on that

claim in his § 2255 motion. That is not enough. A federal pris-

oner is entitled to one “reasonable opportunity to obtain …

judicial correction of a fundamental defect in his conviction

or sentence.” Davenport, 147 F.3d at 611. Bourgeois had that

opportunity. That being so, Bourgeois is not eligible for sav-

ings-clause relief on either his Atkins claim or his FDPA claim.

III. Conclusion

The question in this appeal is not whether Alfred Bour-

geois is intellectually disabled. It is, instead, whether he was

able to litigate his intellectual-disability claim in his § 2255

motion. He was, and he did. The savings clause is a narrow

route to relief that exists only to prevent fundamental errors

that § 2255 could not have corrected. It does not invite federal

32 No. 20-1891

prisoners to relitigate their claims every time the Supreme

Court refines the relevant legal standard.

Accordingly, we REVERSE the district court’s determina-

tion that Bourgeois is likely to succeed on the merits and

REMAND with instructions for the district court to deny

Bourgeois’s motion for a stay of execution and dismiss Bour-

geois’s § 2241 petition.

One final matter: At oral argument, the government re-

quested that we issue our mandate immediately. We decline

that request. Instead, we exercise our authority to expedite the

issuance of the mandate and adjust the rehearing deadlines.

Fed. R. App. P. 35(c), 40(a), 41(b); see, e.g., Boucher v. Sch. Bd. of

Sch. Dist. of Greenfield, 134 F.3d 821, 829 (7th Cir. 1998). The

mandate shall issue seven days after the date this opinion is

issued. A petition for panel or en banc rehearing must be filed

within seven days after the issuance of this opinion. A petition

for rehearing shall stay issuance of the mandate until disposi-

tion of the petition. If the petition is denied, the mandate shall

issue immediately upon denial.