Petition for Writ of Certiorari — Alfred Bourgeois, Petitioner v. T. J. Watson, Warden, et al.

Supreme Court briefDec 2, 2020

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OCTOBER TERM 2020

No. _____

_______________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________________________

ALFRED BOURGEOIS,

Petitioner,

T.J. WATSON, Warden, USP-Terre Haute, and UNITED STATES OF AMERICA,

Respondents.

______________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

__________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

VOLUME I

______________________________

--- CAPITAL CASE --EXECUTION SCHEDULED FOR DECEMBER 11, 2020

Victor J. Abreu *

Katherine Thompson

Peter Williams

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

victor_abreu@fd.org

*Counsel of record for Petitioner, and

Member of the Bar of the Supreme Court

TABLE OF CONTENTS

Volume I of II

Opinion, Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020) ..........................PA001

Order Granting Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19cv-992-JMS-DLP (S.D. Ind. March 10, 2020) .................................................PA017

Order Granting Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19cv-992-JMS-DLP (S.D. Ind. March 10, 2020) .................................................PA030

Order Denying Respondent’s Motion to Reconsider and Motion For Leave to File

Surreply, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. May 27,

2020) ................................................................................................................ PA032

Memorandum and Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255,

United States v. Bourgeois, 2:02-cr-216 (S.D. Tex. May 19, 2011) ................PA037

Order Denying Petitioner’s Motion for an Order Authorizing a Successive 28

U.S.C. §2255, In re Bourgeois, No. 18-40270 (5th Cir. Aug. 23 2018) ..........PA262

Opinion Denying Petitioner’s Motion for Rehearing En Banc, Bourgeois v.

Watson, 20-1891 (7th Cir. Dec. 1, 2020) ..........................................................PA265

Notice of Issuance of the Mandate, Bourgeois v. Watson, 20-1891 (7th Cir. Dec. 1,

2020) .................................................................................................................PA267

Final Judgment, Bourgeois v. Watson, 20-1891 (7th Cir. Oct. 6, 2020) ..........PA269

Volume II of II

Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241, Bourgeois v.

Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Aug. 15, 2019). ................PA270

Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP

(S.D. Ind. Aug. 15, 2019)..................................................................................PA348

Return to Order to Show Cause by Respondents, Bourgeois v. Superintendent,

2:19-cv-992-JMS-DLP (S.D. Ind. Oct. 18, 2019) ............................................PA362

Reply in Support of Petition for Writ of Habeas Corpus and Motion for Stay

Of Execution Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Nov.

15, 2019) ...........................................................................................................PA470

Excerpt from Diagnostic and Statistical Manual of Mental Disorders,

Fifth Edition, American Psychiatric Association (2013) (“DSM-5”) ..............PA521

Excerpt from Intellectual Disability – Definition, Classification, and Systems of

Supports - 11th Edition, American Association on Intellectual and Developmental

Disabilities (2010) (“AAIDD-2010”) ...............................................................PA531

Excerpt from User’s Guide to Intellectual Disability – Definition, Classification,

and Systems of Supports - 11th Edition, American Association on Intellectual and

Developmental Disabilities (2012) (“AAIDD-2012”)......................................PA544

Score Report, Woodcock-Johnson III NU Tests of Achievement (Aug. 19,

2009) .................................................................................................................PA550

Bourgeois v. Watson, 977 F.3d 620 (2020)

977 F.3d 620

United States Court of Appeals, Seventh Circuit.

Alfred BOURGEOIS, Petitioner-Appellee,

T.J. WATSON, Warden, and United States

of America, Respondents-Appellants.

No. 20-1891

Argued September 9, 2020

Decided October 6, 2020

West Headnotes (19)

[1]

[2]

[3]

Scope of

Sentencing and Punishment

findings

Verdict and

Sentencing and Punishment

lower court

Discretion of

A factual or legal error may alone be sufficient

to establish that the court abused its discretion

in making its final determination to stay an

execution.

[4]

Holdings: The Court of Appeals, St. Eve, Circuit Judge, held

that:

Federal Courts

Proceedings

Supersedeas or Stay of

The factors for a stay pending judicial review

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 substantially injure the

other parties interested in the proceeding; and (4)

where the public interest lies.

[1] government did not waive or forfeit argument that FDPA

claim was not cognizable under statutory savings clause

allowing habeas petition if motion to vacate sentence was

inadequate or ineffective, and

[2] motion to vacate sentence was not inadequate or

ineffective.

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

Sentencing and Punishment

review

On appeal from a district court's decision to stay

an execution, the Court of Appeals reviews the

underlying factual findings for clear error and

reviews the legal conclusions de novo.

Stinson, Chief Judge, 2020 WL 1154575, stayed prisoner's

execution, based on likelihood of success on FDPA claim.

Government appealed.

Reversed and remanded with instructions.

Discretion of

The Court of Appeals reviews for abuse of

discretion a district court's decision to enter a stay

of execution.

Synopsis

423 F.3d 501, of federal

Background: After affirmance,

prisoner's murder conviction and death sentence, denial,

2011 WL 1930684, of prisoner's motion to vacate sentence

alleging intellectual disability as bar to execution under

Eighth Amendment and Federal Death Penalty Act (FDPA),

and denial, 902 F.3d 446, of authorization to file successive

motion to vacate sentence, prisoner petitioned for habeas

relief, alleging intellectual disability as bar to execution, and

filed motion to stay execution. The United States District

Court for the Southern District of Indiana, Jane E. Magnus-

Sentencing and Punishment

lower court

[5]

Federal Courts

Proceedings

Supersedeas or Stay of

Stay applicants must satisfy all four of the

requirements for a stay pending judicial review,

including a showing of a significant possibility

of success on the merits.

PA001

Bourgeois v. Watson, 977 F.3d 620 (2020)

as a civil litigant should be bound by his counsel's

actions.

[6]

Habeas Corpus

proceedings

Supersedeas or stay of

Federal prisoner was not significantly likely to

succeed on merits, as would be required for

stay of execution, of habeas claim asserting

an intellectual disability which precluded his

execution under Federal Death Penalty Act

(FDPA); procedural home for habeas claim was

premised on statutory savings clause allowing

habeas petition if motion to vacate sentence had

been inadequate or ineffective to test legality

of sentence, government had not waived or

forfeited argument that prisoner's FDPA claim

was not cognizable under savings clause, a

forfeiture would have been excusable, and

prisoner's earlier motion to vacate sentence had

allowed him to litigate his intellectual disability

claim under clinical diagnostic standards.

U.S.C.A. § 3596(c);

[10]

Estoppel

[11]

28 U.S.C.A. §§ 2241,

Criminal Law

general

Presentation of questions in

Criminal Law

General

Necessity of Objections in

Federal Courts

Plain error

The determination of what circumstances fit the

criteria for plain error review in civil cases

is solely within the discretion of the Court of

Appeals.

[12]

Plain error

The ability of the Court of Appeals to review for

plain error in civil cases is severely constricted,

Habeas Corpus

Civil or criminal nature

Habeas Corpus

Presentation and

reservation in lower habeas court of grounds of

review

While habeas proceedings arise from criminal

cases, they are civil in nature, and thus, the

standards for plain error review in civil cases are

applicable.

Nature and elements of waiver

In the criminal context, the distinction between

waiver and forfeiture is critical: while waiver

precludes appellate review, forfeiture permits an

appellate court to correct an error under a plain

error standard.

[9]

Federal Courts

In civil cases, “waiver” is the intentional

relinquishment or abandonment of a known

right, while “forfeiture” is the mere failure

to raise a timely argument, due to either

inadvertence, neglect, or oversight.

[8]

Plain error

Plain error review is available in civil cases

only in the rare situation where a party can

demonstrate that: (1) exceptional circumstances

exist; (2) substantial rights are affected; and (3)

a miscarriage of justice will occur if plain error

review is not applied.

2255(e).

[7]

Federal Courts

[13]

Habeas Corpus

Presentation and

reservation in lower habeas court of grounds of

review

Government did not waive or forfeit, for appeal

from stay of federal prisoner's execution, its

argument that statutory savings clause, allowing

habeas petition if motion to vacate sentence

was inadequate or ineffective to test legality of

sentence, did not apply to prisoner's claim that

he had an intellectual disability which precluded

his execution under Federal Death Penalty Act

(FDPA), though government's briefing in district

court, concerning cognizability of prisoner's

claims under savings clause, had not addressed

FDPA claim separately from prisoner's Eighth

Amendment claim, where prisoner's petition and

briefing had not parsed out separate claims

PA002

Bourgeois v. Watson, 977 F.3d 620 (2020)

out separate claims under Eighth Amendment

and FDPA, and forfeiture would implicate

larger interests in finality of postconviction

proceedings and in judicial efficiency. U.S.

under Eighth Amendment and FDPA, and

government and prisoner agreed that Eighth

Amendment and FDPA provided substantively

identical protection and were governed by same

standard. U.S. Const. Amend. 8;

§ 3596(c);

[14]

28 U.S.C.A. §§ 2241,

Federal Courts

18 U.S.C.A.

Const. Amend. 8;

2255(e).

In general; necessity

18 U.S.C.A. § 3596(c);

28 U.S.C.A. §§ 2241,

[17]

When local rules of court do not permit

filing a surreply as of right, a party does

not waive an argument for purposes of appeal

by failing to seek leave from the district

court to raise the argument in a surreply;

otherwise, arguments before the district court

would proceed ad infinitum, making litigation

unruly and cumbersome.

Habeas Corpus

or Proceedings

2255(e).

Post-Conviction Motions

For a motion to vacate sentence to be inadequate

or ineffective to test the legality of a detention,

so that statutory savings clause allows the filing

of a habeas petition, it is not enough to show

that a motion was unsuccessful; there must be a

compelling showing that, as a practical matter, it

would be impossible to use a motion to vacate

sentence to cure a fundamental problem.

[15]

Criminal Law

General

In exceptional circumstances, the Court of

Appeals has discretion to forgive a party's

forfeiture of appellate review, and exceptional

circumstances include when a forfeited ground

is founded on concerns broader than those of the

parties.

[16]

U.S.C.A. §§ 2241,

Necessity of Objections in

[18]

2255(e).

Sentencing and Punishment

Evidence

In determining whether an offender has an

intellectual disability that precludes execution

under the Eighth Amendment and the Federal

Death Penalty Act (FDPA), a court is not

required to accept an IQ score at face value,

especially when a psychological expert credibly

testifies that the offender did not put forth his best

Habeas Corpus

Presentation and

reservation in lower habeas court of grounds of

review

Government's putative forfeiture, for appeal

from stay of federal prisoner's execution, would

be excused as to argument that statutory

savings clause, allowing habeas petition if

motion to vacate sentence was inadequate or

ineffective to test legality of sentence, did

not apply to prisoner's claim that he had

an intellectual disability which precluded his

execution under Federal Death Penalty Act

(FDPA); government's failure, in its briefing

in district court concerning cognizability of

prisoner's claims under savings clause, to address

FDPA claim separately from prisoner's Eighth

Amendment claim was excusable because

prisoner's petition and briefing had not parsed

effort on the test. U.S. Const. Amend. 8;

U.S.C.A. § 3596(c).

[19]

Habeas Corpus

or Proceedings

Post-Conviction Motions

Federal prisoner's earlier motion to vacate

sentence, alleging intellectual disability that

precluded his execution under Federal Death

Penalty Act (FDPA), had not been inadequate

or ineffective to test legality of his sentence,

as would implicate statutory savings clause

allowing habeas petition, where motion to

vacate sentence had allowed prisoner to litigate

his intellectual disability claim under clinical

diagnostic standards, though Supreme Court

later clarified, in two Eighth Amendment

PA003

Bourgeois v. Watson, 977 F.3d 620 (2020)

decisions, that the adaptive functions inquiry

focused on adaptive deficits; prisoner had been

able to hire an expert to testify to what the

Supreme Court eventually clarified. U.S. Const.

Amend. 8;

18 U.S.C.A. § 3596(c);

U.S.C.A. §§ 2241,

2255(e).

*623 Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division. No. 2:19cv-00392-JMS-DLP — Jane Magnus-Stinson, Chief Judge.

Victor J. Abreu, Attorney, Katherine Cleary Thompson, Peter

K. Williams, Attorney, Office of the Federal Community

Defender, Philadelphia, PA, for Petitioner-Appellee.

Paula Offenhauser, Attorney, Brian L. Reitz, Attorney, Office

of the United States Attorney, Houston, TX, Christopher

Jackson Smith, Attorney, Department of Justice, Washington,

DC, for Respondents-Appellants.

Before Kanne, Hamilton, and St. Eve, Circuit Judges.

Opinion

St. Eve, Circuit Judge.

Alfred Bourgeois, a federal prisoner, was sentenced to

death after he brutally abused and murdered his two-yearold daughter. Bourgeois now collaterally attacks his death

sentence on the ground that he is intellectually disabled.

18 U.S.C.

§ 3596(c), and the Supreme Court's decision in

Atkins

v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d

335 (2002), forbid the execution of intellectually disabled

offenders. But that is not the end of the matter. Bourgeois does

not seek relief under

28 U.S.C. § 2255—the main statute

authorizing postconviction relief for *624 federal prisoners.

Indeed, Bourgeois already has fully litigated an intellectualdisability claim under

§ 2255. Instead, Bourgeois brings a

habeas corpus petition under

28 U.S.C. § 2241. To invoke

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).

eligibility. As a result, his

§ 2241 petition is procedurally

barred. We vacate the stay with instructions for the district

court to dismiss the petition.

I. Background

Attorneys and Law Firms

Both the Federal Death Penalty Act (FDPA),

§ 2241

In the district court, Bourgeois accompanied his

petition with a motion to stay his execution—which the

district court granted. In doing so, the court found that the

government had waived its argument that Bourgeois could

not channel 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

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 petitioned 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 Louisiana

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

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

the hearing, the court granted JG's mother's request for child

support from Bourgeois. The court also granted Bourgeois's

request 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 tortured

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 treating

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

PA004

Bourgeois v. Watson, 977 F.3d 620 (2020)

potty. Bourgeois punished JG's “accidents” with beatings.

Remarkably, 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

delivering 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 yelling

at JG and spanking her. He then grabbed her by the shoulders

and slammed the back of her head into the truck's front

windows and dashboard four times. Robin woke up soon

after 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 *625 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, Bourgeois

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 number and

extent of JG's injuries. There were bruises, human bite marks,

scratch marks, loop marks (consistent with an electrical 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 concluded

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 location

of the brain injury was consistent with Bourgeois holding JG

by the shoulders and slamming her head against the windows

and dashboard of the truck cab. Robin and one of Bourgeois's

other daughters later told authorities the truth about JG's death

and the consistent abuse she suffered.

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

challenged the government's use of aggravating factors at

sentencing, the constitutionality of the FDPA, and the district

court's delegation of supervision over his execution to the

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

United States v.

commenting “[t]his is not a close case.”

Bourgeois, 423 F.3d 501, 512 (5th Cir. 2005). The Supreme

Court denied certiorari. Bourgeois v. United States, 547 U.S.

1132, 126 S.Ct. 2020, 164 L.Ed.2d 786 (2006).

Bourgeois then filed a motion for postconviction relief under

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:

Bourgeois argued that he was intellectually disabled 1 and

thus ineligible for the death penalty under the FDPA and

the Supreme Court's constitutional decision in

Atkins.

The district court held a week-long evidentiary hearing that

often extended beyond normal work hours. The court heard

testimony from expert and lay witnesses who testified about

Bourgeois's intellectual and psychological abilities.

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

225-page opinion that devoted 53 pages to analyzing

Bourgeois'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 *626 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 inmate qualifies for

Atkins

protection.” Id. at *24. The “three indispensable criteria”

were: “(1) significantly subaverage intellectual functioning;

(2) related significant limitations in adaptive skill areas;

and (3) manifestation of those limitations before age 18.”

Id. Following

Atkins’s guidance, the court drew this

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

Association on Intellectual and Developmental Disabilities's

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

PA005

Bourgeois v. Watson, 977 F.3d 620 (2020)

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

intellectual 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 psychological evaluations, the court determined

that Bourgeois had not put forth his best efforts in testing.

Id. at *27–29. In addition, “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 detailed letters, communicated without

difficulty, participated actively in his own defense, and

otherwise carried himself without any sign of intellectual

impairment.” Id. at *29 (footnotes 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 functioning: whereas the “psychological” approach

considered only “deficits,” the law “compare[d] the

deficiencies to positive 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 Bourgeois's adaptive abilities. The

experts had reached “diametrically 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 believable.”

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

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

problems to mental retardation rather than a culturally

deprived 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.

*627 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 impairment 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. Because

Atkins

Bourgeois “failed to meet all three prongs of the

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

rejecting 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 certificate of appealability to appeal some aspects of the

district court's ruling, but he did not challenge the denial of his

intellectual-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

U.S.C. § 2255(h). In his new motion, Bourgeois again raised

an intellectual-disability claim. Bourgeois said he deserved

a second chance to present his claim because the Supreme

Court's decision in

Moore v. Texas, ––– U.S. ––––, 137

S. Ct. 1039, 197 L.Ed.2d 416 (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 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

execution 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

PA006

Bourgeois v. Watson, 977 F.3d 620 (2020)

Atkins and the FDPA.

that his death sentence ran afoul of

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 Atkins and the FDPA forbid both

the “imposition” and the “execution” of his death sentence.

Procedurally, Bourgeois tried to channel his petition through

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

prisoner who has already moved for relief under

§ 2255

to file a habeas corpus petition under

§ 2241 if

2255 was “inadequate or ineffective to test the legality of his

detention.”

28 U.S.C. § 2255(e). Bourgeois argued *628

that his

§ 2255 motion was “inadequate or ineffective to

test the legality” of his death sentence because the judge in

the Southern District of Texas who denied his motion relied

on diagnostic standards that the Supreme Court later rejected

Moore I and its follow-on decision in

Moore v.

Texas, ––– U.S. ––––, 139 S. Ct. 666, 203 L.Ed.2d 1 (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 intellectualdisability claim in the Southern District of Texas, and that

the Supreme 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 analysis was consistent with

Moore

I and

Moore II. Throughout its brief, the government

referred to Bourgeois's intellectual-disability claim as his

“ Atkins claim.” It did not mention Bourgeois's FDPA

claim in its analysis. In his reply, Bourgeois argued that the

government “completely fail[ed] to challenge [his] claim that

he is entitled to

§ 2241 review because he challenges 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 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 cannot 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 establishing waiver

(and not merely forfeiture).

Id. Turning to the merits 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 execution.

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. Because Bourgeois had relied on the same arguments

for both claims—which are governed by identical standards

—the government had similarly not “parse[d] out” a separate

FDPA claim in its response to the petition. The court denied

the government's motion, finding that Bourgeois had, in fact,

presented separate statutory and constitutional claims. The

court reiterated that Bourgeois's reply brief had flagged the

government'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.

II. Discussion

[1] [2] [3] 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.; *629 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 final determination.”

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Bourgeois v. Watson, 977 F.3d 620 (2020)

of plain error review. Id. We took the occasion to “clarify

that ‘our ability to review for plain error in civil cases is

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

severely constricted,’ as ‘a civil litigant should be bound by

F.2d 1429, 1437 (7th Cir. 1986)).

his counsel's actions.’ ” Id. (quoting SEC v. Yang, 795 F.3d

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

[4]

[5] The four stay factors are: “(1) whether the stay

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

applicant has made a strong showing that he is likely to

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

succeed on the merits; (2) whether the applicant will be

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

irreparably injured absent a stay; (3) whether issuance of the

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

stay will substantially injure the other parties interested in the

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

proceeding; and (4) where the public interest lies.” Nken v.

(7th Cir. 2018)). “The determination of what circumstances fit

Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550

these criteria is solely within *630 our discretion.” Id. These

(2009). Stay applicants “must satisfy all of the requirements

standards govern here because, although habeas proceedings

for a stay, including a showing of a significant possibility of

arise from criminal cases, they are civil in nature.

Mays, ––– F.3d at ––––, 2020 WL 5361651, at *5 (alteration

success on the merits.”

Hill v. McDonough, 547 U.S. 573,

584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006).

[6] The district court found that Bourgeois had met all four

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

success 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

[13] We start with waiver. After reviewing the record

below, we find that there was no basis to conclude that the

government had waived its argument that Bourgeois's FDPA

claim could not pass through the savings clause. To begin,

Bourgeois himself did not clearly parse out separate Atkins

and FDPA claims. Rather, he presented one intellectualdisability claim arising under two sources of law that—as

both parties agree—provide substantively identical protection

not cognizable under

§ 2255(e)’s savings clause. That is

where we part ways with the district court. We find that the

government did not waive, or even forfeit, this argument.

And even if it had forfeited the argument, we would excuse

that forfeiture on these facts. We proceed to consider whether

provide different procedural pathways to relief);

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

nonexistent. Thus, we vacate the stay.

1150 (Easterbrook, J., dissenting) (“ Atkins and

Hall do

not alter the [FDPA's] substantive standard.”). Bourgeois's

first argument heading was: “Mr. Bourgeois Is Intellectually

Disabled and Is Ineligible for the Death Penalty Under the

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

id. at

Federal Death Penalty Act and

Atkins v. Virginia and Its

Progeny.” Bourgeois did not include separate sub-headings

A. Waiver and Forfeiture 4

or arguments for his

Atkins and FDPA claims. Instead, he

[7] [8] [9] [10] [11] [12] We recently discussed the

made

one

set

arguments

for both claims, and accompanied

distinction between waiver and forfeiture in civil cases in

Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc).

the arguments with citations to both

Atkins and the FDPA.

We observed that, “[w]hereas waiver is the ‘intentional

At times, Bourgeois even referred to both claims collectively

relinquishment or abandonment of a known right,’ forfeiture

as his “ Atkins claim.” Given that Bourgeois himself did

is the mere failure to raise a timely argument, due to either

inadvertence, neglect, or oversight.” Id. at 786 (quoting

not treat his

Atkins and FDPA claims as distinct, we

United States v. Olano, 507 U.S. 725, 733, 113 S.Ct.

1770, 123 L.Ed.2d 508 (1993)). “In the criminal context,”

we noted, “the distinction between waiver and forfeiture is

critical: while waiver precludes review, 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

do not believe that the government intentionally chose to

disaggregate the claims and respond to only one of them.

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

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Bourgeois v. Watson, 977 F.3d 620 (2020)

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

government's failure to respond to be “a deliberate decision

not to present a ground for relief that might be available in the

law.”

2005).

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

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. Bourgeois'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 argue (as he did in his

from the government's failure to seek leave to file a surreply

—with no authorization from the local rules—to respond

to an argument that Bourgeois never distinctly presented.

The district court's factual determination that the government

intentionally waived its argument was clearly erroneous and

amounts to an abuse of discretion. See Mays, ––– F.3d at ––––,

2020 WL 5361651, at *5.

We turn next to forfeiture. On appeal, the government

insists 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

incompatible with forfeiture. After reviewing the issue for

ourselves, we are convinced that the government's failure to

respond separately to Bourgeois's FDPA claim—which was

Atkins claim—did

governed by the same standard as his

not result in forfeiture. Forfeiture results from “inadvertence,

neglect, 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

undifferentiated presentation of the claims, was just as much

to blame for that silence.

opening petition) that both Atkins and the FDPA forbid the

execution of a person who is presently intellectually disabled.

True, he relied on the FDPA's statutory language to make

that argument. But nowhere did he say that the government

failed to respond to—let alone waived its response to—the

cognizability of his FDPA claim. The government's failure to

seek leave to file a surreply to respond to this argument does

not support a finding of waiver.

[15] In the end, though, our conclusion on forfeiture does

not make a difference because, even if the government had

forfeited 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

[14] That is especially true because “surreply briefs are rare

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

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

the Southern District of Indiana's local rules allow a party

opposing *631 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 appeal by failing to seek leave

from the district court to raise the argument in a surreply.

Wood v. Milyard, 566 U.S. 463, 471, 132 S.Ct. 1826,

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 infinitum making

litigation unruly and cumbersome.”

Hardrick, 522 F.3d at

763 n.1. For similar reasons, we will not infer waiver here

on concerns broader than those of the parties.”

United

States v. Ford, 683 F.3d 761, 768 (7th Cir. 2012) (quoting

182 L.Ed.2d 733 (2012)). In

Ford, for instance, we

forgave the government's failure to argue harmless error

because reversing on a harmless 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, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), which held

that a federal appellate court has discretion in “exceptional

cases” to consider a state's forfeited exhaustion argument

because of the significant comity and federalism interests

implicated by the exhaustion requirement.

Id. at 134,

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Bourgeois v. Watson, 977 F.3d 620 (2020)

Wood, 566 U.S. 463,

107 S.Ct. 1671. The second was

132 S.Ct. 1826, which held that federal appellate courts

have discretion to consider forfeited statute-of-limitations

defenses, given “the institutional interests served by AEDPA's

statute of limitations,” such as conserving judicial resources

and protecting the accuracy and finality of state-court

judgments.

Id. at 472–73, 132 S.Ct. 1826.

[16] Similar considerations would compel us to look past

any government forfeiture in this case. We have already

explained why the government's failure to *632 separately

address 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 finality, there is judicial efficiency. “The idea of

an entitlement to one untainted opportunity to make one's

case is deeply embedded 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. Giovannetti, 928 F.2d 225, 226

(7th Cir. 1991) (per curiam) (observing that courts may

excuse forfeiture “for the sake of protecting 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 government 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

Bourgeois'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 reason,

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 Indus. 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 the issue, and we would be right back

where we started. “[T]he district judge's view, while it would

no doubt be interesting, could have no effect on our review,

Id. at 750. Given

which is plenary on matters of law.”

this posture, the extensive briefing on the issue, and the long

pendency of this case, resolving 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

postconviction 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 prisoners 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 discovered evidence” proving innocence,

or if it identifies “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court.”

28 U.S.C. § 2255(h). Bourgeois 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 provides 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

inadequate or ineffective to test the legality of his detention.”

28 U.S.C. § 2255(e) *633 (emphasis added). A prisoner

who qualifies for this “narrow pathway” to relief may file a

petition under 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

assistance 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

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Bourgeois v. Watson, 977 F.3d 620 (2020)

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 assistance of counsel in his one permitted

motion.” Id. at 614.

[17] 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

matter, it would be impossible to use

section 2255 to cure

a fundamental problem. It is not enough that proper use of the

statute 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 counsel.

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

allegations ... through

section 2241.” Id. He was not. We

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

section 2255, 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

section 2255 gave him an opportunity to

complain about ineffective assistance of trial counsel, and

he took advantage of that opportunity. There was nothing

structurally inadequate or ineffective about

section 2255

as a vehicle to make those arguments.” 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

the defect identified in the

§ 2255 to cure

(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 rejected that claim for applying *634 “non-clinical,

unscientific standards” that the Supreme Court later rejected

Moore I 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 collectively as his “intellectual-disability claim.” Our

analysis applies equally to both claims.

Atkins, the Supreme Court held that the Eighth

Amendment's ban on cruel and unusual punishments forbids

the execution of intellectually disabled offenders.

536

U.S. at 321, 122 S.Ct. 2242. Importantly, the Supreme

Court signaled that the law relies on “clinical” definitions

of intellectual disability.

Id. at 318, 122 S.Ct. 2242.

The Supreme Court referenced two “similar” definitions

of intellectual disability (both of which we have already

mentioned). First, it cited an earlier version of AAIDD-11.

Id. at 308, 122 S.Ct. 2242 n.3. Second, it cited DSM-4.

Id. It summarized both definitions as “requir[ing] not

only subaverage intellectual functioning, but also significant

limitations in adaptive skills such as communication, selfcare, and self-direction that became manifest before age 18.”

Id. at 318, 122 S.Ct. 2242.

§ 2241 petition.” Id. at 666

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Hall v. Florida, 572 U.S. 701, 134

Twelve years later, in

S.Ct. 1986, 188 L.Ed.2d 1007 (2014), the Supreme Court

reiterated that courts “are informed by the work of medical

experts in determining intellectual disability.”

Id. at 710,

134 S.Ct. 1986. 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

community defines intellectual disability according to three

criteria: significantly subaverage intellectual functioning,

deficits in adaptive functioning (the inability to learn basic

skills and adjust 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.

1986.

Id. at 723, 134 S.Ct.

Id. In short, by relying

factor for intellectual disability.

on “the wholly nonclinical Briseno factors, the CCA failed

adequately to inform itself of the ‘medical community's

diagnostic framework.’ ” Id. at 1053 (quoting

U.S. at 721, 134 S.Ct. 1986).

Hall, 572

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 curiam 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

variations,” 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.

A few years later, in

Moore I, the Supreme Court

considered whether Texas was adhering to the medical

community's definition of intellectual disability. The Texas

Court of Criminal Appeals (CCA) had reversed a lower

court for applying the medical community's current definition

of intellectual disability 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 decision, 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 required 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 concluding

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 adaptivefunctioning 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 *635 of those

factors was inconsistent with a finding that Moore was

also suffering from an intellectual disability.

Indeed, Moore's traumatic childhood experiences were a risk

Id. at 672.

3. Bourgeois's Eligibility for Savings-Clause Relief

With that context, we consider whether Bourgeois is correct

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 intellectualfunctioning prong, Bourgeois faults the court for not finding

that his IQ scores (70 and 75) automatically established

significantly subaverage intellectual functioning. Instead, he

says the court relied on “unscientific, erroneous stereotypes”

to conclude that his IQ score did not accurately represent

his level of intellectual functioning. On the adaptive-deficits

prong, Bourgeois criticizes the court for dismissing the

“psychological” approach to adaptive 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 relied on

unscientific stereotypes to evaluate his intellectual disability

and improperly blamed his adaptive deficits on certain

“dysfunctional” aspects of his background.

Id. at 1051.

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Initially, we note our disagreement with Bourgeois's

contention that the Texas district court “eschewed medical

standards” in denying his

§ 2255 motion. After a week-

long hearing, 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 applied, the most recent medical

guidance on intellectual disabilities. Id. at *23–24. The

district court's references to its “legal” 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 evidence presented

on Bourgeois's adaptive deficits, merely that Bourgeois “may

have had difficulties when younger”).

[18] Contrary to what Bourgeois suggests, moreover, the

court did not view *636 adaptive impairments as a zerosum game, attributable to either one cause (e.g., childhood

abuse) or another (e.g., intellectual disability), but not both.

Rather, the court found that the record did not “conclusively

link” Bourgeois'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 intellectually 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 intellectualdisability claim, yet he chose not to do so. At this stage of

the proceedings, our only role is to determine whether there

was something “structurally inadequate or ineffective about

section 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

disabled 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, 122 S.Ct. 2242. The 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 standards, however, has

been evident since

court in this case.

Atkins and was evident to the

[19] Critically,

Atkins was on the books when Bourgeois

§ 2255

filed his

§ 2255 motion in 2007. Bourgeois says he never

had the chance to litigate his intellectual-disability claim

under clinical diagnostic standards. But that is precisely what

Bourgeois did in his

§ 2255 motion. The

§ 2255 court

set forth, and applied, the same three-part test for intellectual

disability that now prevails. Bourgeois, 2011 WL 1930684, at

*23–24; see

Webster 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, ––– F.3d

at ––––, 2020 WL 5638691, at *14 (relying on DSM-5 and

AAIDD-11). True, some aspects of the court's analysis would

have looked different 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 motion, or, where intellectual disability

is at issue, every time the medical community updates its

PA013

Bourgeois v. Watson, 977 F.3d 620 (2020)

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

*637 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 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

diagnostic criteria ... explained that the[ ] strengths did not

offset Bourgeois's deficits in any given area.” Far from being

“impossible” 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

Moore I and

Moore II—namely, that the adaptive

functions inquiry focuses on adaptive deficits. Bourgeois

suggests that binding Fifth Circuit 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 something 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 statutoryinterpretation 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

that

Moore I and

Moore II are retroactive. We will not

authorize that end-run around

§ 2255(h).

Bourgeois has two unpersuasive rejoinders. First, Bourgeois

says it does not matter whether

Moore I and

Moore II

are retroactive because the FDPA applies current definitions

of intellectual disability. According to Bourgeois, the FDPA's

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

18 U.S.C. § 3596(c), proscribes executing anyone who

is presently 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?

Intellectual disability is a permanent condition that must

manifest before the age of 18. Atkins, 536 U.S. at 318, 122

S.Ct. 2242. It would be senseless to proscribe the execution

of someone who merely “was” intellectually 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, 106 S.Ct. 2595, 91 L.Ed.2d 335

(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 *638 (or other) support, we are unwilling to accept

Bourgeois's sweeping argument that a fresh intellectualdisability claim arises every time the medical community

updates its literature.

section 2255.” 964 F.3d at 615.

But

Moore I and

Moore II are constitutional 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 to argue

Next, Bourgeois contends that his case fits within the

parameters 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

PA014

Bourgeois v. Watson, 977 F.3d 620 (2020)

Davenport, the successful petitioner (Nichols) had a new,

retroactive Supreme Court statutory decision holding that the

Davenport may best illustrate

relief. Of the three cases,

what Bourgeois is lacking. Nichols, the successful petitioner

conduct for which he was imprisoned was not a crime. 147

F.3d at 611. Garza had a previously unobtainable decision

from an international tribunal finding that his death sentence

Davenport, 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 intellectual-disability claim continued to develop after he

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, ––– F.3d ––––, 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 intellectual-disability claim.

From the evidence presented at the hearing, the district

court determined that Webster's new evidence of intellectual

disability, which predated his capital trial, had been

unavailable to Webster at trial despite his counsel's diligent

efforts to obtain it at the time.

Id. at ––––, 2020 WL

5638691, 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

Webster had no incentive to

malinger.” Id. at ––––, 2020 WL 5638691, 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 ––––, 2020 WL 5638691, at *3. After reviewing the

new evidence and other evidence presented at the hearing, the

district court found that Webster was intellectually disabled.

Id. at –––– – ––––, 2020 WL 5638691, at *9–12. We

upheld the district court's factual findings on appeal because

they contained no clear error.

Id. at –––– – ––––, 2020

WL 5638691, at *12–17. Unlike Webster, Bourgeois has no

newly discovered 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

limited kinds of structural defects that justify savings-clause

lost on that claim in his § 2255 motion. That is not enough.

A federal prisoner 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 savings-clause relief on either his

claim or his FDPA claim.

Atkins

*639 III. Conclusion

The question in this appeal is not whether Alfred Bourgeois

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 prisoners to relitigate their claims every time the

Supreme Court refines the relevant legal standard.

Accordingly, we REVERSE the district court's determination

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

Bourgeois's

§ 2241 petition.

One final matter: At oral argument, the government requested

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 disposition of the petition. If the petition is

denied, the mandate shall issue immediately upon denial.

PA015

Bourgeois v. Watson, 977 F.3d 620 (2020)

All Citations

977 F.3d 620

Footnotes

Following the Supreme Court's practice, we use the term “intellectual disability” instead of “mental

Atkins, used the latter term.

Hall v. Florida, 572 U.S.

retardation,” even though earlier cases, including

701, 704, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).

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. Bureau 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.

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, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020

WL 3492763 (U.S. June 29, 2020). The lower court's stay in the case now before us remains in effect, and

Bourgeois has not received a new execution date.

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

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.”).

End of Document

PA016

Case 2:19-cv-00392-JMS-DLP Document 18 Filed 03/10/20 Page 1 of 13 PageID #: 8251

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ALFRED BOURGEOIS,

Petitioner,

WARDEN, et al.

Respondents.

)

No. 2:19-cv-00392-JMS-DLP

Order Staying Execution of Alfred Bourgeois

Petitioner Alfred Bourgeois is a federal prisoner incarcerated at the United States

Penitentiary in Terre Haute, Indiana. He was convicted and sentenced to death in the United States

District Court for the Southern District of Texas. His conviction and sentence were affirmed on

direct appeal, and his post-conviction motion for relief pursuant to 28 U.S.C. § 2255 was denied

by the Southern District of Texas.

Mr. Bourgeois now seeks a writ of habeas corpus from this Court pursuant to 28 U.S.C.

§ 2241. He argues that he is intellectually disabled 1 and thus the Eighth Amendment and the

Federal Death Penalty Act (“FDPA”) both forbid his execution. In Atkins v. Virginia, the Supreme

Court held that the Eighth Amendment forbids executing an individual who is intellectually

disabled. 536 U.S. 304, 321 (2002). Similarly, the FDPA states that a “sentence of death shall not

be carried out” upon a person who is intellectually disabled. 18 U.S.C. § 3596(c).

The Court uses the term “intellectual disability” rather than the previously used term, “mental

retardation.” See Hall v. Florida, 572 U.S. 701, 704 (2014).

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Presently pending is Mr. Bourgeois’s motion to stay his execution until this habeas action

is resolved. To be entitled to a stay, Mr. Bourgeois must make a strong showing that his claims

have merit and show that the equitable factors weigh in his favor.

Mr. Bourgeois has established that the equitable factors all favor granting a stay. As to the

merits of Mr. Bourgeois’s claims, the Court does not discuss his Atkins claim because

Mr. Bourgeois is entitled to a stay based on his FDPA claim alone. Respondent wholly failed to

address Mr. Bourgeois’s FDPA claim, thereby waiving any argument that Mr. Bourgeois’s FDPA

claim cannot proceed in this § 2241 action. And Mr. Bourgeois has made a strong showing that

he is intellectually disabled and thus the FDPA forbids his execution.

For these reasons, Mr. Bourgeois’s motion to stay his execution pending resolution of this

action is granted.

Background

Procedural History

The factual background regarding Mr. Bourgeois’s crimes can be found in the Fifth

Circuit’s opinion affirming his conviction and sentence on direct appeal. See United States v.

Bourgeois, 423 F.3d 501, 502-06 (5th Cir. 2005) (“Bourgeois I”). The underlying facts are

irrelevant to resolving Mr. Bourgeois’s motion to stay, so they will not be detailed here. Instead,

the Court briefly sets forth the procedural history of Mr. Bourgeois’s conviction, sentence, and

subsequent post-conviction challenges.

On July 25, 2002, a Grand Jury in the Southern District of Texas returned a two-count

indictment against Mr. Bourgeois stemming from the abuse and murder of his two-year-old

daughter. See United States v. Bourgeois, No 2:02-cr-216 (S.D. Tex.), Dkts. 1, 5. The second

superseding indictment charged Mr. Bourgeois with a single count of premeditated murder, and

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the United States then filed a notice of intent to seek the death penalty. See id., Dkt. 78.

Mr. Bourgeois pleaded not guilty.

A jury found Mr. Bourgeois guilty of premeditated murder. A separate penalty phase

followed.

The jury unanimously recommended that Mr. Bourgeois be sentenced to death.

Judgment was entered on March 25, 2004, sentencing Mr. Bourgeois to death. See id., Dkt. 303.

Mr. Bourgeois appealed his conviction and death sentence to the Fifth Circuit. Bourgeois I, 423

F.3d at 502. The Fifth Circuit rejected all of his claims and affirmed his conviction and death

sentence. Id. at 512.

Mr. Bourgeois next filed a motion to vacate pursuant to § 2255 in the Southern District of

Texas. See United States v. Bourgeois, 2011 WL 1930684 (S.D. Tex. May 19, 2011). The

Southern District of Texas held a week-long evidentiary hearing, after which it rejected his claims.

Id. at *19-20. Two of his claims were the same he raises here—that both the FDPA and the Eighth

Amendment under Atkins bar his execution because he is intellectually disabled. Id. at *22. The

Southern District of Texas rejected his claims, concluding that Mr. Bourgeois did not establish by

a preponderance of the evidence that he was intellectually disabled. Id. at *46. It also denied a

certificate of appealability on all of Mr. Bourgeois’s claims. Id. at *111.

Mr. Bourgeois filed a notice of appeal and sought a certificate of appealability from the

Fifth Circuit. 2

United States v. Bourgeois, 537 Fed. Appx. 604, 610 (5th Cir. 2013)

(“Bourgeois II”). On August 5, 2013, the Fifth Circuit denied Mr. Bourgeois’s request for a

certificate of appealability. Id. at 665.

In 2017, the Supreme Court developed the legal standard governing Atkins claims when it

decided Moore v. Texas, 137 S. Ct. 1039 (2017) (“Moore I”). Following Moore I, Mr. Bourgeois

Mr. Bourgeois did not seek a certificate of appealability on the resolution of his Atkins claim. Bourgeois II, 537 Fed.

Appx. at 610 n.17.

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asked the Fifth Circuit to authorize a second or successive § 2255 as required by § 2255(h). See

In re Bourgeois, 902 F.3d 446 (5th Cir. 2018) (“Bourgeois III”). On August 23, 2018, the Fifth

Circuit denied Mr. Bourgeois authorization to re-litigate his Atkins claim in a second or successive

§ 2255 proceeding citing the re-litigation bar found in 28 U.S.C. § 2244(b). Id. at 448.

Mr. Bourgeois’s Execution Was Scheduled and then Stayed

On July 25, 2019, the Department of Justice set Mr. Bourgeois’s execution date for

January 13, 2020. He filed the instant habeas petition pursuant to 28 U.S.C. § 2241 on August 15,

2019, and he filed a motion to stay his execution pending resolution of this action on the same

date. The motion to stay remains pending because Mr. Bourgeois’s execution was stayed by the

United States District Court for the District of Columbia prior to his scheduled execution. See In

re In the Matter of the Federal Bureau of Prisons’ Execution Protocol Cases, No. 1:19-mc-00145TSC (D.D.C.), Dkt. 51 (the “Execution Protocol Litigation”). The United States appealed the stay

entered in the Execution Protocol Litigation, and the appeal is pending before the United States

Court of Appeals for the D.C. Circuit. See In re In the Matter of the Federal Bureau of Prisons’

Execution Protocol Cases, No. 19-5322 (D.C. Cir.).

II.

Discussion

Mr. Bourgeois’s motion to stay his execution pending resolution of this action requires him

to establish certain factors. See Lee v. Watson, 2019 WL 6718924, *1 (7th Cir. Dec. 6, 2019). The

Court must consider: “(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 substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009).

“The first two factors . . . are the most critical.” Id.

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Before entering a stay, the Court must also consider “the extent to which the inmate has

delayed unnecessarily in bringing the claim,” Nelson v. Campbell, 541 U.S. 637, 649-50 (2004),

because “someone who waits years before seeking a writ of habeas corpus cannot, by the very act

of delay, justify postponement of the execution,” Lee, 2019 WL 6718924, at *2.

Mr. Bourgeois Has Made a Strong Showing That He is Likely to Succeed on the

Merits of His FDPA Claim

The Court must address two issues to determine the strength of Mr. Bourgeois’s FDPA

claim. 3 First, the Court must determine the likelihood that Mr. Bourgeois’s FDPA claim is

properly brought in a § 2241 action. If it is, the Court must next determine whether Mr. Bourgeois

has made a strong showing that he is intellectually disabled and thus his execution is prohibited

by the FDPA. The Court will address each issue in turn.

Respondent Has Waived Any Contention That Mr. Bourgeois’s FDPA Claim

Cannot Proceed in this § 2241 Action

As noted above, Mr. Bourgeois raises two legal claims that rely on the same legal theory.

He argues that both the Eighth Amendment, as established in Atkins, and the FDPA preclude his

execution because he is intellectually disabled. Mr. Bourgeois specifically argues both in his

habeas petition and in his motion to stay that his FDPA claim can proceed under § 2241. See

Filing No. 1 at 7, 14, 76; Filing No. 3 at 9.

Respondent’s combined response to Mr. Bourgeois’s petition and motion to stay argues at

length that Mr. Bourgeois’s Atkins claim does not meet the Savings Clause and thus cannot proceed

in a § 2241 action.

See Filing No. 10 at 45-86.

But Respondent fails to even mention

Mr. Bourgeois’s FDPA claim, let alone explain why it cannot be brought in a § 2241. See Filing

As noted above, the Court need not reach Mr. Bourgeois’s Atkins claim because he is entitled to

a stay based on his FDPA claim alone.

PA021

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No. 10. Respondent’s failure to address Mr. Bourgeois’s FDPA claim is both inexplicable and

inexcusable, not only because of the stakes of this litigation, but also because there is no binding

legal authority regarding whether FDPA claims can proceed in a § 2241 action. The Court may

have benefitted from a response from Respondent, but that opportunity has now been lost.

The failure to respond to an argument can result in waiver. See Bonte v. U.S. Bank, N.A.,

624 F.3d 461, 466 (7th Cir. 2010). Although subject-matter jurisdiction cannot be waived, see

Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009), the Seventh Circuit has held that “[s]ections 2241 and

2255 deal with remedies; neither one is a jurisdictional clause,” Harris v. Warden, 425 F.3d 386,

388 (7th Cir. 2005). See Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017) (holding that

dismissals based on the Savings Clause are not jurisdictional and thus are with prejudice). This

has permitted, for example, the Seventh Circuit to conclude that the United States can concede an

underlying legal issue that would allow a claim to proceed in a § 2241 without the Court having

to decide the legal issue. See Chazen v. Marske, 938 F.3d 851, 863 (7th Cir. 2019). It is thus clear

that Respondent can waive the legal issue of whether a claim can be brought in a § 2241 petition.

The Court finds waiver appropriate here for the reasons stated above. Moreover, Mr.

Bourgeois’s reply highlighted Respondent’s failure to address the FDPA claim. See Filing No. 11

at 46-47. Nevertheless, Respondent failed to seek leave to file a surreply addressing the claim.

This leads the Court to infer that Respondent’s failure to address the claim was more intentional

than inadvertent. Accordingly, the Court deems any argument that Mr. Bourgeois’s FDPA claim

cannot proceed under § 2241 waived.

Mr. Bourgeois Has Made a Strong Showing That He is Intellectually Disabled

and Thus the FDPA Forbids His Execution

The FDPA states that a “sentence of death shall not be carried out” upon a person who is

intellectually disabled. 18 U.S.C. § 3596(c). The Supreme Court in Atkins held that the Eighth

PA022

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Amendment also forbids the execution someone who is intellectually disabled. 536 U.S. at 321.

The only apparent difference between an Atkins claim and an FDPA claim is the legal source—the

Constitution and a statute, respectively. See Webster, 784 F.3d at 1139 n.6 (suggesting that the

primary difference between an Atkins and an FDPA claim is the source of the right); id. at 1150

(Easterbrook, J., dissenting) (stating that Atkins did “not alter the substantive standard” of

§ 3596(c), it simply held that “the rule of § 3596(c) is part of the Constitution as well as the United

States Code”). The parties do not argue that the substantive analyses required by the claims are

different, so the Court will apply the standards governing an Atkins claim to Mr. Bourgeois’s

FDPA claim. 4

In Hall, the Supreme Court held that “[t]he legal determination of intellectual disability is

distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic

framework.” 572 U.S. at 722. The medical community’s framework consists of analyzing three

criteria: “(1) intellectual-functioning deficits (indicated by an IQ score ‘approximately two

standard deviations below the mean’—i.e., a score of roughly 70—adjusted for ‘the standard error

of measurement’”); (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to

changing circumstances’); and (3) the onset of these deficits while still a minor.” 5 Moore I, 137

To be clear, this means the Court will apply subsequent Supreme Court cases interpreting Atkins,

including Moore I. Although the parties dispute whether Moore I is retroactive, the Court need

not answer this question. When, as here, a claim can be brought via § 2241, the Court applies

current law. See Webster v. Lockett, 2019 WL 2514833, *3 (S.D. Ind. June 18, 2019) (applying

Moore I to an Atkins claim proceeding in a § 2241 action).

The Supreme Court in Moore I clarified certain aspects of its holding in Hall. Relevant here, the

Supreme Court held that in making the intellectual-disability determination courts were required

to use “[t]he medical community’s current standards,” and then it discussed several ways in which

the Texas Court of Criminal Appeals’ assessment ran contrary to these standards. Moore, 137 S.

Ct. at 1052-53. Mr. Bourgeois maintains that this Court’s analysis of whether he is intellectually

disabled will be different than the Southern District of Texas’s because it considered certain factors

in denying his Atkins claim that the Supreme Court deemed impermissible in Moore I. See Filing

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S. Ct. at 1045. These criteria are drawn from the most recent editions of the Diagnostic and

Statistical Manual of Mental Disorders (“DSM-5”) and the American Association on Intellectual

and Developmental Disabilities publication, AAIDD, Intellectual Disability: Definition,

Classification, and Systems of Supports (11th ed. 2010) (“AAIDD-11”). See Moore I, 137 S. Ct.

at1045 (relying on the DSM-5 and AAIDD-11).

Mr. Bourgeois has made a strong showing that he meets all three criteria. First, he presents

evidence that two IQ tests resulted in appropriately adjusted IQ scores of 68 (a Flynn-corrected

score) and 70 (before Flynn correction). 6 Filing No. 1-4 at 36; Filing No. 1-1 at 45. There is thus

a strong likelihood that Mr. Bourgeois meets the first criteria. See Moore I, 137 S. Ct. at 1045.

Second, Mr. Bourgeois presents strong evidence of adaptive deficits. The DSM-5 states

that this criteria “is met when at least one domain of adaptive functioning—conceptual, social, or

practical—is sufficiently impaired that ongoing support is needed in order for the person to

perform adequately in one or more life settings at school, at work, at home, or in the community.”

Filing No. 1-1 at 84. Importantly, “the medical community focuses the adaptive-functioning

inquiry on adaptive deficits,” not adaptive strengths. Moore I, 137 S. Ct. at 1050; see id. (noting

the AAIDD-11 states that “‘significant limitations in conceptual, social, or practical adaptive skills

[are] not outweighed by the potential strengths in some adaptive skills’” and the DSM-5 states that

this inquiry “should focus on ‘[d]eficits in adaptive functioning’”).

No. 1 at 59-71. While this may be relevant for the Savings Clause analysis of Mr. Bourgeois’s

Atkins claim, the Southern District of Texas’s analysis is irrelevant when assessing the merit of

Mr. Bourgeois’s FDPA claim, as this Court decides the claim anew without any deference to the

Southern District of Texas’s decision. See Webster, 2019 WL 2514833, at *5-11.

The Flynn Effect describes research that “has shown that [IQ] scores will tend to become inflated

as times goes on when you’re using an old test,” so there are “formulas [that] have been developed

to . . . give you an idea of how much the test score will be inflated or over represent . . . the person’s

ability.” Filing No. 1-4 at 36.

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“In determining the significance of adaptive deficits, clinicians look to whether an

individual’s adaptive performance falls two or more standard deviations below the mean in any of

the three adaptive skill sets (conceptual, social, and practical).” Moore, 137 S. Ct. at 1046.

Mr. Bourgeois presents compelling evidence that his adaptive performance falls more than two

standard deviations below the mean—that is, he scores below 70—in all three adaptive skill sets.

See Filing No. 1 at 25-42 (collecting evidence). For example, adaptive-functioning tests produced

scores of 69 in communication, 66 in daily living skills, and 66 in socialization. Filing No. 1-1 at

6. These scores “also corroborate what . . . other psychologists . . . learned through interviews and

affidavits of Mr. Bourgeois’ relatives and neighbors.”

Filing No. 1-1 at 6.

Given that

Mr. Bourgeois must demonstrate “deficits in only one of the three adaptive-skills domains” to

establish that he is intellectually disabled, Moore I, 137 S. Ct. at 1050, he has made a strong

showing that he meets this factor.

Third, Mr. Bourgeois has made a strong showing that the onset of his deficits occurred

when he was a minor. Among other evidence, Dr. Victoria Swanson attested that “it is absolutely

clear that the onset of Mr. Bourgeois’ deficiencies in both his intellectual and adaptive functioning

began before age 18 and continued into adulthood.” Filing No. 1-1 at 11.

In sum, Mr. Bourgeois has made a strong showing that he is intellectually disabled and

thus the FDPA bars his execution. To be clear, the Court has not conclusively determined that

Mr. Bourgeois is intellectually disabled, only that he has made the strong showing necessary to

warrant a stay of his execution pending resolution of this issue. The Court can only determine

whether Mr. Bourgeois is intellectually disabled following a hearing on the question.

PA025

Case 2:19-cv-00392-JMS-DLP Document 18 Filed 03/10/20 Page 10 of 13 PageID #: 8260

Mr. Bourgeois Faces Irreparable Injury Absent a Stay

Mr. Bourgeois maintains that he will suffer irreparable harm absent a stay because he could

be executed without a court ever deciding whether he is intellectually disabled under the standards

set forth in Moore I. Filing No. 3 at 9-10. Respondent does not address irreparable injury, likely

because “irreparable harm is taken as established in a capital case.” Williams v. Chrans, 50 F.3d

1358, 1360 (7th Cir. 1995); see id. (“There can be no doubt that a defendant facing the death

penalty at the hands of the state faces irreparable injury.”). Accordingly, Mr. Bourgeois has

established irreparable injury.

The Issuance of a Stay Will Not Substantially Injure Respondent and the Public

Interest Favors Ensuring Mr. Bourgeois’s Execution is Lawful

Respondent maintains that staying Mr. Bourgeois’s execution will undermine its strong

interest in enforcing the judgment and that it is in the public interest to allow his execution to

proceed. Filing No. 10 at 106-07. Mr. Bourgeois responds that because there is no “‘penological

purpose”’ in executing someone who is intellectually disabled, Respondent will not be injured by

a stay of execution. Filing No. 3 at 11 (quoting Hall, 134 S. Ct. at 1992). Further, Mr. Bourgeois

argues that the United States has delayed setting any executions for fifteen years, thus it cannot

now argue that additional delay will harm its interests. Filing No. 3 at 11.

Respondent is correct that, as a general matter, the United States has a “strong interest” in

“proceeding with its judgment.” Lambert, 498 F.3d at 452; see Hill v. McDonough, 547 U.S. 573,

584 (2006); Gomez v. U.S. Dist. Court for Northern Dist. of California, 503 U.S. 653, 654 (1992).

But measuring the strength of that interest here shows that it is necessarily diminished by the

United States’ own delays in setting Mr. Bourgeois’s execution.

As detailed above, Mr. Bourgeois’s § 2255 proceedings concluded in the Fifth Circuit on

August 5, 2013. See Bourgeois II, 537 Fed. Appx. 604. Yet the United States did not schedule his

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execution for nearly six years, and had not set any executions for fifteen years. Indeed, the United

States did not even have an execution protocol for eight years (from 2011 until 2019). See In re

the Federal Bureau of Prisons’ Execution Protocol Cases, No. 1:19-mc-00145-TSC, Dkt. 50 at 14.

If the United States’ interest in proceeding with its judgment was as strong as Respondent suggests,

it would not have waited several years before setting Mr. Bourgeois’s execution date. Thus, the

United States’ own delay in scheduling Mr. Bourgeois’s execution shows that its interest in

enforcing its judgment is not as strong as it suggests.

Because the United States’ asserted interest in enforcing its judgment is diminished in this

case, this harm does not outweigh Mr. Bourgeois’s strong interest in not facing execution when

the FDPA may forbid it. Moreover, because Mr. Bourgeois has made a strong showing that he

will succeed on the merits of his FDPA claim, the public interest favors ensuring that he is not

unlawfully executed.

Mr. Bourgeois Has Not Unnecessarily Delayed Bringing His Claims

The Court cannot stay an execution before considering “the extent to which the inmate has

delayed unnecessarily in bringing the claim.” Nelson, 541 U.S. at 649-50. Mr. Bourgeois

maintains that he has diligently pursued his claims following the Supreme Court’s decision in

Moore I. Filing No. 3 at 10. Respondent does address this question at all, let alone suggest that

Mr. Bourgeois has not diligently pursued these claims. Filing No. 10 at 104-07.

The Supreme Court decided Moore I on March 28, 2017. Exactly a year later on March

28, 2018, Mr. Bourgeois sought authorization from the Fifth Circuit to file a second or successive

§ 2255 motion raising the claims he raises here. See In re Bourgeois, No. 18-40270 (5th Cir.).

The Fifth Circuit denied Mr. Bourgeois authorization on August 23, 2018, and issued a revised

opinion on September 24, 2018. Bourgeois III, 902 F.3d at 448. The Department of Justice set

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Mr. Bourgeois’s execution date on July 25, 2019, and Mr. Bourgeois filed this action three weeks

later on August 15, 2019.

The foregoing timeline shows that Mr. Bourgeois has not unnecessarily delayed bringing

his claims. After Moore I, he sought to bring his claims via § 2255 within a year. Once that avenue

was foreclosed, Mr. Bourgeois sought to bring his claims here via § 2241 less than a year later.

Thus, this is not a case where an inmate waited several years to bring his claims. See, e.g., Dunn

v. Price, 139 S. Ct. 1312 (2019); Lee, 2019 WL 6718924, at *2.

III.

Conclusion

Mr. Bourgeois has established the factors necessary to obtain a stay of his execution

pending resolution of this habeas action. Accordingly, Mr. Bourgeois’s execution is stayed until

further order of this Court. A separate order staying Mr. Bourgeois’s execution shall also issue.

Respondent and Respondent’s counsel are responsible for ensuring that all actors who would have

any involvement in Mr. Bourgeois’s execution comply with the stay issued on this date, including

the Warden of the United States Penitentiary in Terre Haute, Indiana, and the United States

Marshal for this District.

The Court must hold a hearing on the merits of Mr. Bourgeois’s claims to determine

whether they are ultimately meritorious. The hearing will be set by separate order.

IT IS SO ORDERED.

Date: 3/10/2020

PA028

Case 2:19-cv-00392-JMS-DLP Document 18 Filed 03/10/20 Page 13 of 13 PageID #: 8263

Distribution:

Victor Abreu

Federal Community Defender Office

victor_abreu@fd.org

Paula Camille Offenhauser

OFFICE OF THE UNITED STATES ATTORNEY

paula.offenhauser@usdoj.gov

Brian L. Reitz

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

brian.reitz@usdoj.gov

Katherine Thompson

Federal Community Defender Office

katherine_thompson@fd.org

Peter Konrad Williams

Federal Community Defender Office

pete_williams@fd.org

PA029

Case 2:19-cv-00392-JMS-DLP Document 19 Filed 03/10/20 Page 1 of 2 PageID #: 8264

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ALFRED BOURGEOIS,

Petitioner,

WARDEN, et al.

Respondents.

)

No. 2:19-cv-00392-JMS-DLP

Order Staying Execution of Alfred Bourgeois

The Court concluded in an order issued on this date that Petitioner Alfred Bourgeois has

demonstrated that he is entitled to a stay of his execution. Alfred Bourgeois’s execution is

therefore stayed. The Warden of the United States Penitentiary in Terre Haute, Indiana and the

United States of America are prohibited from executing Alfred Bourgeois unless and until the

Court lifts the stay of execution.

IT IS SO ORDERED.

Date: 3/10/2020

Distribution:

Victor Abreu

Federal Community Defender Office

victor_abreu@fd.org

Paula Camille Offenhauser

OFFICE OF THE UNITED STATES ATTORNEY

paula.offenhauser@usdoj.gov

Brian L. Reitz

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

brian.reitz@usdoj.gov

PA030

Case 2:19-cv-00392-JMS-DLP Document 19 Filed 03/10/20 Page 2 of 2 PageID #: 8265

Katherine Thompson

Federal Community Defender Office

katherine_thompson@fd.org

Peter Konrad Williams

Federal Community Defender Office

pete_williams@fd.org

PA031

Case 2:19-cv-00392-JMS-DLP Document 29 Filed 05/27/20 Page 1 of 5 PageID #: 8335

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ALFRED BOURGEOIS,

)

Petitioner,

WARDEN, et al.

Respondents.

No. 2:19-cv-00392-JMS-DLP

Order Denying Respondent's Motion to Reconsider and

Denying Respondent's Motion for Leave to File Surreply

Petitioner Alfred Bourgeois filed this 28 U.S.C. § 2241 petition for a writ of habeas corpus

alleging that the Eighth Amendment and the Federal Death Penalty Act (“FDPA”) both forbid his

execution because he is intellectually disabled. On March 10, 2020, the Court granted a stay of

Mr. Bourgeois's execution based, in part, on a finding that his FDPA claim has a strong likelihood

of success. One basis for this finding was Respondent's waiver of any argument that 28 U.S.C.

§ 2255(e) bars the FDPA claim.

On March 23, 2020, Respondent filed a motion to reconsider the Court's order granting a

stay of execution and a motion for leave to file a surreply to Mr. Bourgeois's motion to stay. The

Court construes Respondent's motion to reconsider as a Rule 59(e) motion to alter or amend

judgment. See Carter v. City of Alton, 922 F.3d 824, 826 n.1 (7th Cir. 2019) (timely motion to

reconsider a judgment should be construed as Rule 59(e) motion, even if motion does not expressly

rely on Rule 59(e)); Fed. R. Civ. P. 54(a) (defining "judgment" to include "any order from which

an appeal lies").

To obtain relief under Rule 59(e), a movant must show "(1) that the court committed a

manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment."

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Case 2:19-cv-00392-JMS-DLP Document 29 Filed 05/27/20 Page 2 of 5 PageID #: 8336

Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012). The rule does not provide

an opportunity "for a party to undo its own procedural failures . . . or advance arguments that could

and should have been presented to the district court prior to judgment." Barrington Music

Products, Inc. v. Music & Arts Center, 924 F.3d 966, 968 (7th Cir. 2019) (cleaned up).

Respondent raises three primary arguments in support of the motion to reconsider: (1) the

Court cannot enforce a waiver of § 2255(e); (2) Respondent did not waive § 2255(e) as to the

FDPA claim; and (3) Respondent did not waive Teague and "abuse of the writ" arguments as to

the FDPA claim. The Court will address each of Respondent's claims of error in turn.

A. The Court May Enforce a Waiver of § 2255(e).

Respondent argues that "parties cannot waive the correct application of the law" and that

the Court therefore should have addressed whether § 2255(e) bars Mr. Bourgeois's FDPA claim.

Dkt. 20 at 10−12. Respondent cites out-of-circuit cases to support this proposition while ignoring

contrary Seventh Circuit precedent. See, e.g., Chazen v. Marske, 938 F.3d 851, 863 (7th Cir. 2019)

(accepting government's concession of legal issue that allowed petitioner to raise claim in § 2241

petition); Hicks v. Stancil, 642 F. App'x 620, 621 (7th Cir. 2016) ("We need not decide whether

[the petitioner] meets [§ 2255(e)'s] exception because the government waives its defense that he

does not, and its waiver allows us to decide the petition . . . ."); Brown v. Rios, 696 F.3d 638,

640−41 (7th Cir. 2012) (accepting government's concession that § 2255(e) did not bar § 2241

petition); cf. Gonzalez v. Thaler, 565 U.S. 134, 146−48 (2012) (by failing to raise timely objection,

state waived argument that appeal should be dismissed for improper certificate of appealability in

violation of 28 U.S.C. § 2253(c)). Respondent does not distinguish these cases or point to any

contrary controlling precedent. Respondent therefore has failed to show manifest error in the

Court's conclusion that 28 U.S.C. § 2255(e) may be waived in a particular case.

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B. Respondent Waived § 2255(e) As to Mr. Bourgeois's FDPA Claim.

Next, Respondent denies waiving § 2255(e) as to Mr. Bourgeois's FDPA claim, even if it

is possible to do so. There is no dispute that Respondent's pre-March 10 pleadings do not mention,

let alone respond to, Mr. Bourgeois's FDPA claim. Dkt. 20 at 6 ("[T]he Respondent did not parse

out a separate FDPA claim in its Return to Order to Show Cause."). Respondent instead alleges

that Mr. Bourgeois himself conflated his FDPA and Atkins claims, inviting Respondent to treat

them as a single claim, so Respondent's choice to do so was not waiver. Id. ("[T]he Respondent

read [Mr.] Bourgeois’s petition to merge his FDPA and Atkins claims as one claim implicating the

same legal standards.").

To be sure, Mr. Bourgeois's FDPA and Atkins claims both rely on the same definition of

"intellectually disabled." But as the Court noted in its order granting a stay of execution,

Mr. Bourgeois "specifically argues both in his habeas petition and in his motion to stay that his

FDPA claim can proceed under § 2241." Dkt. 17 at 5; see, e.g., dkt. 1, ¶ 157 (making statutory and

legislative history arguments for allowing FDPA claim to proceed under § 2241); dkt. 3 at 9

("The FDPA requires such prospective relief to be available, providing as it does that '[a] sentence

of death shall not be carried out upon a person who is mentally retarded.'" (quoting 18 U.S.C.

§ 3596(c))). These arguments are distinct from those Mr. Bourgeois made for allowing his Atkins

claim to proceed in a § 2241 petition. And Respondent failed to address the FDPA claim even after

Mr. Bourgeois highlighted the lack of response. See dkt. 11 at 9.

In short, Respondent has not shown manifest error in the Court's finding that Respondent

waived § 2255(e) as to the FDPA claim.

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C. Respondent Likewise Waived Any Teague and "Abuse of the Writ" Arguments

as to Mr. Bourgeois's FDPA Claim.

Finally, Respondent argues that the Court erred in finding waiver of Respondent's Teague

and "abuse of the writ" arguments. But as with § 2255(e), Respondent limited these arguments to

Mr. Bourgeois's Atkins claim. See dkt. 10 at 78 ("[Mr.] Bourgeois’ Atkins claim, which failed

under § 2255, cannot merit consideration or relief in this Court. [Mr.] Bourgeois’ attempt to

circumvent § 2255(h) amounts to an invitation to abuse the writ under pre-AEDPA law."); id. at 79

("Teague bars [Mr.] Bourgeois’ reliance on Moore to revitalize his Atkins claim."). Indeed, as

Mr. Bourgeois observes in his reply in support of his motion to stay, "the Teague rule applies to

new rules of constitutional law only," not his statutory FDPA claim. Dkt. 11 at 44−45. Respondent

therefore has not shown that the Court committed manifest error in deeming that Respondent

waived these arguments along with any § 2255(e) argument as to Mr. Bourgeois's FDPA claim.

See dkt. 18 at 6 ("[T]he Court deems any argument that Mr. Bourgeois’s FDPA claim cannot

proceed under § 2241 waived.").

D. Respondent May Not Raise Objections For the First Time in a Surreply after the

Motion to Stay Has Been Decided.

Respondent finally challenges Mr. Bourgeois's FDPA claim—after the Court granted a stay

of execution—in a motion for leave to file a surreply and an accompanying proposed surreply.

Dkts. 20, 21. The proposed surreply does not address the merits of Mr. Bourgeois's FDPA claim;

instead, it argues that § 2255(e) and the "abuse of the writ" doctrine prohibit Mr. Bourgeois from

raising the claim in his § 2241 petition. The Court had already deemed those objections waived

before Respondent raised them, dkt. 18 at 6, and Respondent has not shown that the Court's waiver

conclusion rests on manifest error. Respondent may not file a surreply after the fact to circumvent

the prior waivers.

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E. Conclusion

Respondent's motion for leave to file a surreply, dkt. [20], is denied. Respondent's motion

to reconsider the order staying execution, dkt. [22], is denied. A hearing on the merits of

Mr. Bourgeois's claims will be set by separate order when the restrictions occasioned by the Covid19 pandemic allow.

IT IS SO ORDERED.

Date: 5/27/2020

Distribution:

Victor Abreu

Federal Community Defender Office

victor_abreu@fd.org

Paula Camille Offenhauser

OFFICE OF THE UNITED STATES ATTORNEY

paula.offenhauser@usdoj.gov

Brian L. Reitz

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

brian.reitz@usdoj.gov

Katherine Thompson

Federal Community Defender Office

katherine_thompson@fd.org

Peter Konrad Williams

Federal Community Defender Office

pete_williams@fd.org

PA036

Case 2:02-cr-00216 Document 660

Filed in TXSD on 05/19/11 Page 1 of 40

UNITED ST ATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

UNITED STATES OF AMERICA,

VS.

ALFRED BOURGEOIS,

CRIMINAL ACTION NO. C-02-CR-216

(C.A. No. C-07-223)

MEMORANDUM AND ORDER

In 2004, a jury found Alfred Bourgeois guilty of murdering his two-year-old daughter,

JG 1999. After a separate punishment phase, the same jury decided that he should receive a death

sentence. After he unsuccessfully appealed his conviction and sentence to the Court of Appeals for

the Fifth Circuit, Bourgeois' appointed counsel filed a lengthy Motion for Relief Pursuant to 28

U.S.C. Section 2255 or in the Alternative Pursuant to 28 U.S.C. § 2241. (DE 396). Bourgeois also

filed an extensive memorandum of law supporting his motion. (DE 402). The Court has liberally

allowed Bourgeois to develop the factual basis for his post-conviction claims, including through the

presentation of testimony and evidence in several hearings. The Government has filed a response

arguing that Bourgeois' claims are all procedurally insufficient or substantively without merit. (DE

442).

The Court has fully considered the arguments, evidence, and law supporting Bourgeois'

claims. The Court has given ample consideration to the voluminous pleadings filed by the parties.

After a full review of the record, and with particular emphasis on this Court's own observations from

trial and afterward, the Court finds that Bourgeois has not shown that the Government secured his

conviction and sentence in violation of the Constitution or laws of the United States. See 28 U.S.C.

§ 2255.

PA037

Case 2:02-cr-00216 Document 660

Filed in TXSD on 05/19/11 Page 2 of 40

TABLE OF CONTENTS

BACKGROUND .............................................................. 6

The Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bourgeois Fathers JG1999, Gains Custody, and Begins His Abuse .... 10

JG1999's Last Month ........................................ 12

The Murder ............................................... 13

II.

Defense Counsel's Pre-Trial Preparation ............................... 14

III.

The Trial ........................................................ 20

Guilt/Innocence Phase ....................................... 20

Sentencing Phase ........................................... 25

IV.

Appeal ......................................................... 35

Post-Judgment Proceedings and Evidentiary Hearing ..................... 36

PROCEDURAL ADEQUACY OF BOURGEOIS' CLAIMS .......................... 40

ANALYSIS ................................................................. 42

Bourgeois' Alleged Mental Retardation (claim one) ...................... 42

Background of Bourgeois' Atkins claim ......................... 43

Intellectual Functioning ...................................... 49

Bourgeois' IQ Scores .................................. 50

Legal Evaluation oflntelligence in Atkins Cases ............. 52

Bourgeois' IQ Does Not Persuasively Fall at the Lower End of the

PA038

Case 2:02-cr-00216 Document 660

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Confidence Interval ................................... 55

Significant Limitations in Adaptive Skill Areas ................... 65

II.

Assessment by Testing Instruments ....................... 68

The Woodcock-Johnson .......................... 71

The ABAS-II and the Vineland .................... 72

Lay Accounts of Bourgeois' Functioning .................. 77

Bourgeois' Adaptive Abilities ........................... 81

Manifestation of Limitations Before Age 18 ...................... 91

Trial Counsel's Failure to Develop Evidence of Mental Retardation ... 92

Conclusion of Bourgeois' Atkins Claim ......................... 95

Ineffective Assistance of Counsel for Failing to Present Mitigating Evidence (claim

two) ........................................................... 95

The Strickland Standard ...................................... 97

Trial Counsel's Investigation and Preparation of Mitigating Evidence .100

Counsel's Early Efforts to Prepare a Mitigation Defense ..... 100

Preparations Before the Guilt/Innocence Phase ............. 105

Trial Counsel Made a Constitutionally Sound Investigation ... 113

The Unpresented Evidence .................................. 114

Lay Witnesses ...................................... 115

Expert Testimony .................................... 122

Dr. Cunningham's testimony . . . . . . . . . . . . . . . . . . . . . 123

Borderline personality disorder ................... 129

Neurological impairment ........................ 137

PA039

Case 2:02-cr-00216 Document 660

III.

Filed in TXSD on 05/19/11 Page 4 of 40

Premeditation ................................. 142

Conclusion of Deficient Performance Analysis .................. 144

Cumulative Effect of Prejudice ............................... 145

Jurisdiction (claim three) .......................................... 148

The Autopsy and Trial Testimony ............................. 149

Bourgeois' Post-Judgment Arguments and Post-Conviction Testimony

........................................................ 152

IV.

Evidence of Recent, Extensive, and Fatal Head Trauma ............ 160

Trial Counsel Provided Ineffective Assistance by Failing to Call an Expert Witness

to Rebut Forensic Evidence Indicting Sexual Assault (claim four) .......... 165

The Trial Evidence ......................................... 165

Dr. Benton's Observation of Sexual Trauma ..................... 170

Forensic Evidence of Semen ................................. 172

Prejudice From Trial Counsel's Defense Against Allegations of Sexual

Assault .................................................. 180

Trial Counsel Provided Ineffective Assistance by Not Litigating a Daubert Challenge

to Three of the Government's Expert Witnesses (claims five and six) ....... 182

Dr. Oliver's Reliance on the Digitally Enhanced Autopsy Photographs (claim

six) ..................................................... 182

Testimony from Dr. Senn and Dr. Chrz Concerning Bite-Mark Evidence

(claim five) .............................................. 189

VI.

The Government Violated its Duty under Bradyv. Maryland, 373 U.S. 83 (1963), by

Failing to Disclose That the Government Promised Inmates Some Benefit for

PA040

Case 2:02-cr-00216 Document 660

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Testifying Against Bourgeois (claim seven) ........................... 194

VII.

No Evidence of Concealed Deals with Government Witnesses ...... 196

Materiality ............................................... 201

Trial Counsel Labored under a Conflict oflnterest Because of His Representation of

Clients Associated with this Case (claim eight) ........................ 204

VIII.

The Government Engaged in Misconduct by Making Improper Argumentative

Statements in the Guilt/Innocence and Penalty Phases (claim nine) ......... 207

IX.

Trial Counsel Provided Ineffective by Not Rebutting Evidence of Bourgeois'

Indifferent Demeanor (claim ten) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 214

A Witness Improperly Relied on Bourgeois' Interactions with Counsel as a Basis to

Formulate an Adverse Opinion about Him (claim eleven) ................ 217

XI.

Ineffective Assistance of Appellate Counsel (claim twelve)

XII.

Cumulative Error (claim thirteen) ................................... 223

XIII.

Lethal Injection (claim fourteen) .................................... 223

.............. 219

CERTIFICATE OF APPEALABILITY .......................................... 224

CONCLUSION ............................................................. 225

PA041

Case 2:02-cr-00216 Document 660

Filed in TXSD on 05/19/11 Page 6 of 40

BACKGROUND

Where, as in this case, a jury has found a defendant's crime worthy of the death penalty,

federal law guarantees a full and fair inquiry into his conviction and sentence. Bourgeois has raised

several claims requiring serious judicial consideration.

The events surrounding the murder

Bourgeois committed, the pre-trial preparation by his appointed attorneys, and the circumstances of

his trial provide an important context to the matters he now brings before the Court. The Court will

discuss at length the background for Bourgeois' post-conviction challenge.

In doing so, this Court's role presiding over trial provides a particularly useful vantage point.

Cold transcripts often do not convey the nuances and color of the trial itself. Post-conviction

proceedings frequently fail to depict the tempestuous trial atmosphere. The printed page dulls the

personalities, character, and credibility of the parties and the witnesses. Decisions made in the heat

of trial lose some urgency when subjected to harsh light of hindsight. The slow pace and detachment

of post-conviction review divorces itself from the stress, fear, and anxiety of trial. For example,

passing years have dimmed the powerful effect of some testimony, such as that of Bourgeois'

daughter AB 1994 as she described the murder. In general, this Court's familiarity with the trial

atmosphere, parties, and witnesses provides a colored mosaic that may otherwise be obscured on the

black-and-white page.

This is especially the case with respect to the trial attorneys, Douglas Tinker and John

Gilmore, whose efforts Bourgeois vigorously attacks at this stage of the case. 1 Lamentably, the

record suffers because Mr. Tinker passed away after Bourgeois filed his 2255 motion. With all

sensitivity and respect, the Court allowed the parties to glean what information they could from Mr.

Except as necessary to identify one of his attorneys, the Court will refer to Bourgeois'

lawyers conjunctively as "trial counsel" or "defense counsel."

PA042

Case 2:02-cr-00216 Document 660

Filed in TXSD on 05/19/11 Page 7 of 40

Tinker before he succumbed to cancer. With the omission of his testimony, a hole exists in the

written record about his efforts to defend Bourgeois.

This Court's experience and observation partially fill in the otherwise empty spaces in the

record. For example, this Court's familiarity with Mr. Tinker and Mr. Gilmore as attorneys, both

in this case and in others, informs the consideration of Bourgeois' grounds for relief. The legal

community highly regards both men as competent and zealous attorneys.

Their extensive

experience, trial lawyering, and overall sterling character cannot be gainsaid. 2 The Court appointed

these attorneys because they were among the best in the legal community. As an example of their

character, the Court had to goad Mr. Tinker into filing vouchers for his representation; his concern

was for the client, not for a paycheck.

This is not to say that counsel was mistake-free.

The Court will not manufacture

justifications for mistakes plainly in the record. 3 Nevertheless, this Court's familiarity with defense

counsel's efforts reinforces the "strong presumption that counsel's attention to certain issues to the

exclusion of others reflects trial tactics rather than sheer neglect." Harrington v. Richter,_ U.S.

_ , 131 S. Ct. 770, 790 (2011) (quotations omitted). Thus, this Court must "not simply ... give

the attorneys the benefit of the doubt," but also "affirmatively entertain the range of possible reasons

As the Court observed at the close of the sentencing hearing: "I don't think ... your

client[] could have had a better ... advocate or voice in the courtroom ... throughout what has been

a very difficult process." (DE 342 at 102).

Bourgeois' attorneys have argued that Mr. Tinker's absence now leaves them "kind

of wrestling with a ghost, in quite a literal sense." (DE 646 at 88). While Mr. Tinker's passing

removes the ability to place his strategic decisions on the record, Strickland is an objective standard

which is also "highly deferential" to counsel's actions. Premo v. Moore,_ U.S._, 131 S. Ct.

733, 740 (2011); Strickland v. Washington, 466 U.S. 668, 693 (1984); see also Harrington v.

Richter,_ U.S._, 131 S. Ct. 770, 791 (2011) ("Strickland . .. calls for an inquiry into the

objective reasonableness of counsel's performance, not counsel's subjective state of mind").

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... counsel may have had for proceeding as they did[.]" Cullen v. Pinholster, _U.S. __, _

S. Ct._, 2011 WL 1225705, *16 (2011).

With this understanding, the Court will first provide a general background before addressing

Bourgeois' individual grounds for relief.

The Crime

On June 27, 2002, Bourgeois, a long-haul trucker, arrived to deliver a load on the Naval Air

Station Corpus Christi with his wife (Robin), the two daughters they shared (AB 1994 and AB2001 ),

and his out-of-wedlock daughter (JG 1999). 4 An hour later, Robin frantically begged workers to call

an ambulance for two-year-old JG 1999 who lay motionless on the ground. Robin said that JG 1999

had slipped and fallen from the truck. Concerned bystanders looked on as efforts were made to save

the child's life. Alfred Bourgeois, well aware that his daughter lay dying on the pavement,

indifferently supervised the unloading of his trailer and arranged for his next load.

Emergency personnel arrived and tried to save the dying little girl. As the ambulance sped

away, Bourgeois insistently remained behind to finish unloading his truck in preparation for another

run. He casually mentioned that it was a "shame what happened" to the infant. Only with extensive

prodding, and the fact that he could not continue making deliveries because his truck had become

a crime scene, did Bourgeois follow his daughter to the hospital.

At the hospital, doctors soon saw that the extent of JG1999's injuries far exceeded the

explanation given. Finding blood behind her eyes, the doctors ordered an MRI. Medical personnel

disbelieved the explanation for her injuries; the extent of her head trauma was much worse than that

This Court's review of the facts comes from the entirety of the trial and post-trial

record, with particular emphasis on the highly credible testimony AB 1994 and Robin Bourgeois

provided at trial.

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which would be expected from a four-to-five-foot fall. Numerous other injuries in various stages

of healing also raised suspicions. When doctors informed Bourgeois that they needed to transport

JG 1999 to another facility and that she may not live much longer, Bourgeois seemed unfazed.

Given the injuries to the infant, Child Protection Services (CPS) began an investigation.

Bourgeois told Robin that, if CPS took custody of the other two children, he did not want them to

stay with her parents. Bourgeois' preference was unsurprising; he had physically assaulted his

mother-in-law not long before. Bourgeois told Robin not to panic and to "stick with the story."

Suspicion increased when AB 1994 told CPS workers that the falling-out-of-the-truck fiction was

"the story my dad said to tell."

As the life ebbed from JG 1999' s body, Bourgeois returned to the naval base set on continuing

his deliveries. After unsuccessfully trying to get back on the road, Federal Bureau oflnvestigation

officers took Bourgeois back to the hospital. Bourgeois told agents the story from which he has not

deviated: while driving to the Corpus Christi Naval Exchange, JG 1999 sat on his lap and sang her

ABC's. When they arrived, he unloaded his trailer until someone informed him that JG1999 had

fallen from the truck. He claimed that he rushed to her and began CPR, using a towel to wipe blood

from her head or nose. He would not explain the numerous injuries to JG 1999 other than to say that

he never whipped his children. He seemed singularly unconcerned with JG 1999' s critical injuries.

He said that he "didn't want it to suffer" and saw no problem continuing his truck route because "her

mother's going to be here in town. I'm coming back."

Robin, however, began to change her story. When doctors seemed incredulous, Robin

divulged to FBI agents that Bourgeois had abused JG1999, but kept up the story that she fell from

the truck. Only when JG 1999 died did Robin admit that Bourgeois had actually killed his daughter.

Witness accounts and forensic evidence began to unfold a horrific tale of savage abuse that

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culminated in Bourgeois beating JG 1999 to death.

Bourgeois Fathers JG1999, Gains Custody, and Begins His Abuse

Robin and Bourgeois had a turbulent relationship. Since before their marriage in 1995,

Bourgeois beat Robin, threatened to kill her, periodically refused to provide for his family, and

repeatedly had extramarital affairs. Robin twice sought restraining orders against her husband.

During a separation, Robin also had an affair with a man who owned a limousine service. As part

of their reconciliation, Robin and Bourgeois vandalized her paramour's work vehicles. Bourgeois

threatened to kill Robin on numerous occasions. Violence, disharmony, and selfishness defined

Bourgeois' relationship with his wife.

Bourgeois fathered JG 1999 during an extramarital affair he had with Katrina Harrison, a

woman he met while on a truck route. In April 2002, the State of Texas initiated paternity

proceedings against Bourgeois. In addition to the two daughters he shared with Robin, Bourgeois

was already paying child support for two other children. Without telling Robin where he was going,

Bourgeois left for Livingston, Texas, to reacquaint himself with Ms. Harrison. They shared a

bedroom while he visited his daughter.

When he returned, Bourgeois told Robin about the paternity suit. A confirmatory blood test

debunked his claim that he did not know Ms. Harrison. In May 2002, Bourgeois took Robin, his two

children, and a niece to a child support hearing in Texas. The Texas court ordered Bourgeois to pay

around $160 a month child support. Bourgeois in turn asked for visitation rights. Immediately after

the court hearing, Ms. Harrison prepared a suitcase for JG 1999, who left with Bourgeois.

Bourgeois then entered into a pattern of conduct aimed at controlling or killing his child.

Bourgeois contacted Child Protective Services in Louisiana and falsely claimed that JG 1999' s

mother abused and neglected her. The Louisiana authorities contacted Texas Child Protective

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Services, who found no basis for the claim of neglect. The social worker became concerned that

Bourgeois did not want custody, he wanted power over and possession of JG1999. Fearing that

JG 1999 was in danger, the social worker asked Child Protective Services in Louisiana to monitor

Bourgeois' custody of JG 1999. No government agency became aware of the vicious abuse JG 1999

suffered until she died.

On May 18, 2002, Robin found blood in JG1999's diaper. Dr. Scott Benton, a forensic

pediatrician, examined the little girl and found no evidence of abuse. His examination would be a

baseline against which to measure Bourgeois' inhumane treatment.

Bourgeois' abuse of JG 1999 began soon after they arrived at his home. Robin began noticing

bruises, marks, and injuries on the infant. She noticed sores on JG 1999' s feet which would not heal

because Bourgeois kept pressing his thumbs into the wounds. Bourgeois began calling JG 1999

names like the "trifling little bitch" and "a mother fucker." When Bourgeois bathed the infant,

Robin could hear screaming as he whipped her. A few days after JG 1999 came to live at the

Bourgeois home, Bourgeois proclaimed that he would teach her to swim. As a video recorder

captured his actions, Bourgeois repeatedly tossed her into the air and let her fall into the swimming

pool where she sank until Bourgeois pulled her out, coughing and gasping for breath.

For

approximately 30 minutes, Bourgeois brought the young girl to the brink of drowning until he let her

go.

Bourgeois assumed control over potty training JG 1999. Bourgeois would strike JG 1999 if

the two-year-old wet her pants. He began a systematic pattern of beating JG 1999, often with

electrical cords or other objects. While no conclusive evidence of sexual abuse existed, strange

behavior hinted that Bourgeois engaged in sexual activity with his daughters. For example, by this

point in their relationship Robin no longer shared a bed with Bourgeois, but each night Bourgeois

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would lock himself in the bedroom with AB 1994 and JG 1999. JG 1999 would spend the night tied

to her potty chair under a window.

Bourgeois' brutal abuse of JG 1999 intensified. Some nights Robin could hear pounding in

the bedroom accompanied by crying. A bloodstain confirmed that one loud thump Robin heard was

Bourgeois throwing JG 1999 against a wall. Bourgeois' maltreatment of JG 1999 stood in stark

contrast to that of AB 1994 whom he treated "like an angel."

JG1999's Last Month

For the last month of the little girl's life, Bourgeois' abuse extended beyond harsh discipline;

a particular viciousness attended his continual maltreatment. Bourgeois took his family on the road.

The five people- Bourgeois, Robin, their two children AB 1994 and AB2001, and JG 1999- traveled

across America in the tractor-trailer. JG 1999 stayed on her potty chair as they drove. Bourgeois sent

postcards to JG 1999's mother describing a vacation to amusement parks and full of outdoor activity.

In terse phone calls to her mother, Bourgeois instructed the formerly talkative JG 1999 to tell her

mother that she was all right. The reality, however, was far different from the picture Bourgeois

portrayed.

AB 1994 saw her father repeatedly bite JG 1999 on her hands, feet, and forehead. Once,

Bourgeois beat JG 1999 with a belt so hard that it broke. JG 1999 began to show bruises all over her

body. Her hands and feet were swollen and had open sores. He beat her with electrical cords. He

once beat her until she lost consciousness. He occasionally taped her mouth shut. He hit her with

his shoe. She spent her days and nights on the potty chair. Bourgeois would curse at her. He once

locked Robin out of the truck for hours while he remained in the cab alone with the girls. He hit

JG 1999 in the eyes with all his strength until she had to wear sunglasses to mask the injuries. He

once forced JG 1999 to drink urine from a bottle he used to relieve himself while driving. He beat

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her with a toy baseball bat until her head swelled "like a football." He told JG 1999 that she made

him want to kill her. Robin began to notice injuries such as a hole the same size as a cigarette lighter

in the infant's foot.

He repeatedly held JG 1999 under the waves on a trip to the beach.

Foreshadowing her murder, Bourgeois once knocked JG 1999 unconscious by striking her head

against the truck's steering wheel because she referred to herself by her mother's, not his, surname.

As Bourgeois' violence increased, JG 1999 became sullen. Bourgeois had broken her once

vivacious spirit. It soon became apparent that Bourgeois' abuse would end in the child's death.

Bourgeois told Robin he wanted to kill the child. Once he had killed her, he planned on leaving her

body in the woods or in a swamp and having Robin report her as kidnaped.

The Murder

Bourgeois delivered the killing blows on the naval base on June 27, 2002. The day before,

the Bourgeois family stopped at their home in Louisiana to collect the mail. Bourgeois received a

court order requiring him to pay $519. 99 a month in child support for another daughter. After

delivering a load to the Ingleside Naval Station, Robin went to sleep. Bourgeois' truck entered the

Corpus Christi Naval Air Station at around 10:00 a.m. After asking for directions and having his

truck break down, Bourgeois approached the warehouse where he was to make a delivery. Robin

was still sleeping in the back. After the truck stopped, JG 1999 wiggled on her potty chair and tipped

it over. Bourgeois angrily ordered AB 1994 to hand him the toddler. Bourgeois pulled down the

child's pants and spanked her. He then grabbed her by the shoulders and slammed her head into the

window four times. JG 1999's face became "real sad." Bourgeois handed the child to AB 1994 and

he exited the truck.

Robin woke up and saw the child sitting motionless. She touched the infant, but JG 1999's

arm fell limply. Robin began trying to revive JG 1999. Panicking, she honked the truck's horn. She

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confronted Bourgeois when he returned to the truck, asking: "What did you do to her? She's dying."

Bourgeois bluntly said he had to finish unloading his truck when Robin begged him to take the child

to the emergency room.

Robin began performing CPR, but fluid came out of JG1999's mouth. Robin handed

Bourgeois the child and began crying hysterically. She implored: "You're going to have all of us

going to jail." Bourgeois then crafted their story: AB 1994 forgot to close the cab door as she exited

and JG 1999 fell as she followed. Bourgeois took JG 1999 out of the truck and laid her on the ground.

Moments later, Robin exited, saw JG 1999 laying on the ground, and began administering CPR again.

Paramedics took over the CPR. While Robin was "very upset" and could not "keep her eyes off the

baby," Bourgeois was "on the phone most of the time trying to see about getting ... his next load

. . . [to] Kingsville."

As bystanders questioned what happened, Robin said the "little girl fell from the truck."

With time, it became apparent that no one believed Bourgeois' story. Robin first told authorities

about Bourgeois' cruelty toward the child. Finally, by the morning of the day that JG1999 died,

Robin admitted that the story about her falling from the truck was a lie. Bourgeois was arrested.

II.

Defense Counsel's Pre-Trial Preparation

On July 25, 2002, a grand jury returned a two-count indictment charging Bourgeois with

murder under 18 U.S.C. §§ 7 and 1111, and injury to a child under 18 U.S.C. § 13. The Court

appointed John Gilmore on October 2, 2002, to represent Bourgeois. Mr. Gilmore had extensive

experience handling capital cases. As a prosecutor, he had tried two death penalty cases. As defense

counsel, he represented ten or eleven defendants facing a death sentence. He also tried several

capital cases in which the prosecution did not seek a death sentence. Outside the death-penalty

context, he maintained an active criminal practice, trying an estimated twenty cases each year. In

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2000 and 2008, the local bar named him criminal defense attorney of the year. Mr. Gilmore brought

to the defense a background rich in criminal trial experience.

Soon after his appointment, Mr. Gilmore interviewed his client. Mr. Gilmore did not observe

any indication of mental illness or mental retardation in Bourgeois' presentation. During their initial

conversations, Mr. Gilmore discussed with Bourgeois the possibility of seeking a favorable plea deal

with the Government. Bourgeois refused to talk about a plea, making his position clear and

unmoveable: he blamed the murder on Robin. 5

Mr. Gilmore began preparing a defense. Mr. Gilmore requested, and the Court granted,

appointment of expert and investigative assistance. (DE 32, 33). Initially, the Court appointed

Douglas Tenore as an investigator. Mr. Tenore would assist in the preparations throughout the

course of the trial proceedings. As the defense team continued preparing for trial, the Court

appointed additional investigative and expert assistance.

On April 9, 2003, a grand jury returned a superceding indictment against Bourgeois listing

two counts: unlawful killing with premeditation and malice aforethought under 18 U.S.C. § 7 and

111, and physical assault of a child under 18 U.S.C. § 13 and Texas Penal Code § 22.04(a)(l ). At

rearraignment, Bourgeois again pleaded not guilty. (DE 44). At this stage of the proceedings, Mr.

Douglas Tinker volunteered to help represent Bourgeois. (DE 86). 6 Mr. Tinker brought a wealth

In a hearing, Bourgeois expressed his steadfast decision not to plead guilty: "Your

Honor, my mind is made up[.] I'm not going to plea .... My mind was made up when I got arrested

that I wasn't going to plea. I don't want to plea. I don't want to talk about a plea." (DE 356 at 1617). In fact, Bourgeois wrote the Court asking to dismiss his attorneys when they tried to discuss

reaching a plea agreement with the Government. (DE 356 at 5-17).

The Court issued a written order appointing Mr. Tinker on July 28, 2003. (DE 83).

The Court later amended the appointment of counsel to reflect his work on the case before his

official designation as attorney of record. (DE 86).

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of experience to the table. He had represented over a dozen clients facing a death sentence. In 1995,

the Criminal Justice Section of the State Bar of Texas named him Outstanding Criminal Defense

Lawyer of the Year. He often spoke at conferences for state and national criminal defense attorney

organizations. He was well known as a "defense attorney's defense attorney." Importantly, his

experience with cases involving genetic material gave him the reputation as an expert in DNA. The

Court appointed Mr. Gilmore and Mr. Tinker because the Court's interaction with them showed that

they were among the most zealous, competent attorneys in the local bar.

Defense counsel began a double-pronged effort to avert a death sentence even before the

Government certified this as a capital case. See 18 U.S.C. § 3593(a) (requiring the Government to

serve the defendant with notice of its intent to seek a death sentence "a reasonable time before the

trial or before acceptance by the court of a plea of guilty"). 7 First, defense counsel tried to convince

the Government not to seek a death sentence. Mr. Gilmore met with the United States Attorney for

the Southern District of Texas and had discussions with members of the Attorney General's Office

in Washington, D.C., lobbying against the Government seeking a death sentence.

Second, defense counsel realistically evaluated the case against their client, acknowledging

that a jury would likely convict and then have to decide his sentence. Accordingly, the defense

began preparations for a capital sentencing hearing even before the Government noticed this as a

death-penalty case. Defense counsel requested the appointment of a mitigating investigator and

The attorneys divided the responsibilities for defending Bourgeois. According to Mr.

Tinker's recollection: "Mr. Gilmore was responsible for handling all of the government's lay

witnesses and law enforcement witnesses. Additionally, he was in charge of coordinating the

investigation of the availability of non-expert defense witnesses and presenting their testimony at

trial." Mr. Tinker, however, "was in charge of dealing with the government's expert witnesses and

obtaining and presenting rebuttal expert testimony." The two attorneys, however, "made the

majority of the trial decisions jointly." (PX-82 at 4).

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received authorization to expend significant funds in preparation for a mitigation case. On June 30,

2003, Mr. Gilmore contacted Dr. Marc Cunningham, a well-known psychologist who has routinely

testified in capital trials, to secure his assistance. Dr. Cunningham agreed to participate as an expert

witness on mitigation evidence and on violence in prison society. Dr. Cunningham outlined the

assignment of responsibilities as he saw them: a mitigation investigator would examine Bourgeois'

background and then Dr. Cunningham would "conduct more strategic interviews[.]"

Dr.

Cunningham informed trial counsel that, "assuming an investigator began aggressively working on

a social history," he could be ready for a January trial date. (PX-8).8

On July 9, 2003, trial counsel asked Dr. Cunningham if he could recommend a competent

investigator for the penalty phase preparation. Dr. Cunningham provided trial counsel a list of

experienced mitigation specialists, including Lisa Milstein. After trying to contact others, trial

counsel secured the help of Ms. Milstein. She, in tum, solicited help from her associate Gerald

Bierbaum, an attorney who now works for the Capital Habeas Unit of the Federal Defender's Office

in Las Vegas, Nevada. At Dr. Cunningham's recommendation trial counsel had every reason to trust

that they would perform a competent and probing review of Bourgeois' life history.

In a status conference on July 16, 2003, the Government announced that they received

authorization to seek a death sentence. (DE 74). The Government outlined the aggravating factors

it would rely on as required by 18 U.S.C. § 3593(a). (DE 78, 79). 9 The Court set trial for February

The Court will refer to the exhibits introduced by Bourgeois in the evidentiary hearing

held September 20 through 24, 2010, as "PX" and the Government's exhibits as "GX."

The Government's notice that it would seek a death sentence listed the following

factors that the jury would eventually consider in evaluating whether Bourgeois' crime merited a

death sentence: (1) the heinous, cruel, or depraved manner in which he committed the offense; (2)

the substantial planning and premeditation that went into the crime; (3) the likelihood that Bourgeois

(continued ... )

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16, 2004. (DE 76).

On July 25, 2003, Mr. Gilmore sent Dr. Cunningham an email describing their efforts to

secure the services of a mitigation expert and informing him that: "The case was reset to February

2004, to allow you to gather information for your evaluation. . . . There is one problem, however.

The judge has ordered reciprocal discovery and has set a deadline of mid-December to disclose your

information. Please let me know if you can work within these parameters." (PX-8 at 15). The

Court, however, later changed the required discovery deadline until the end of jury selection. (DE

185). With several months remaining before the trial date, the defense team consisted of two highly

experienced attorneys, an investigator, two mitigation investigators, and an expert witness on

mitigation evidence. 10 In addition, Bourgeois himself took an intensely active part in the defense.

An expert witness attested that Bourgeois seemed more like a member of the defense team than a

defendant. (DE 348 at 286).

Yet defending Bourgeois would be a herculean undertaking for several reasons. The

obviously horrendous facts of the case would trouble any juror. Expert and lay witnesses would

chronicle at trial the unrelenting abuse that JG 1999 suffered at Bourgeois' hands. Bourgeois had

wished for the infant's death and made plans for disposing her body. His brutal beatings assured the

toddler's eventual demise. He indifferently manipulated others into supporting his transparent

attempt to label her death an accident. The crime itself made his conviction a near certainty. The

( ... continued)

would commit future acts of violence; (4) the impact of the victim's loss to the family and her

personal characteristics as a human being; and (5) the vulnerability of the victim. (DE 78, 79); see

also 18 U.S.C. § 3592 (outlining the statutorily defined aggravating and mitigating factors).

In the months before trial, the mitigation investigators interviewed dozens of potential

witnesses, some of them several times. The Court also liberally allowed the defense to retain other

experts, including a jury selection specialist, a forensic pathologist, and two mental-health experts.

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jury would not see Bourgeois as a sympathetic defendant.

Also, Bourgeois often provided misinformation to the defense team, making a mitigation

defense difficult. Additionally, Bourgeois' violent behavior continued while he was incarcerated as

a pre-trial detainee. Bourgeois threatened to have witnesses killed. 11 His threats were not toothless;

witnesses, including JG 1999' s mother, were murdered before trial. (DE 24). Notwithstanding court

orders designed to halt all communication (DE 24, 28), Bourgeois continued to imperil the safety

of those involved in his trial. His threats to harm and attempted assaults onjailors and United States

Marshals assured that custody could not contain his violent behavior.

In a case where the

punishment phase would examine his ability to comport to the rules and regulations of prison life,

Bourgeois hobbled his attorneys' efforts to demonstrate that he could be a model prisoner if the jury

spared his life. 12

Bourgeois also threatened to kill prosecutors, FBI agents, and the trial judge. Even

though Bourgeois made the threats at the same time, the Court decided that only those made against

witnesses could come before the jury. (DE 387 at 8-10).

The Court cautioned Bourgeois:

There's some indication that you've intimidated witnesses, attempted to intimidate

witnesses, get your brother on them or other family members. It's all going to come

out at trial. It's certainly not going to be helpful to you. And you're in a deep

enough hole right now without making it any worse.

So you have two of the greatest lawyers I've ever known representing you. You're

going to have to put your trust in them. You're going to have to let them do the work

that we've got them to do, whether it's mitigation experts or school records or

interviews with people. They have really worked hard. And you're putting your

whole defense at risk by doing this. I cannot emphasize it strongly enough. Not only

are you disobeying this - there's nothing I can do to punish you for the contempt of

court that you've done. You're already there. You're already in jail. And that may

be why you're continuing to do it because you know that there's very little I can do.

(continued ... )

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And critically, Bourgeois' insiste nee that he bore no culpability for JG 1999's death

compounded the challenges trial counsel faced. The Constitution guaranteed that Bourgeois, ifhe

so chose, could have his day in court. His truculent assertions of innocence in light of overwhelming

evidence, however, limited his counsel's strategic choices. Aside from a brief flirtation with

pleading guilty immediately before trial to save AB 1994 from testifying (PX-8 at 31 ), Bourgeois

eschewed any discussion of a favorable plea. Notwithstanding the highly incriminating evidence

against him, Bourgeois took the stand in both phases of trial to blame his wife for JG 1999' s death.

These vocal protestations of innocence posed a dilemma for counsel. Counterpoised between

Bourgeois' persistent attempt to deflect responsibility and the character of the evidence against him,

his attorneys were sometimes required to present inconsistent information to the jury.

III.

The Trial

Guilt/Innocence Phase

The Government called three groups of witnesses in the guilt/innocence phase. First, several

individuals put the murder into context. Witnesses described Bourgeois' first delivery on the day

of the murder, his entry onto the naval base, the breakdown of his truck before reaching the

warehouse, and the events immediately after he killed. The Government called several witnesses

who observed Bourgeois' reaction to his daughter's life-threatening injuries, describing him as

casual, preoccupied with making his deliveries, and indifferent. An FBI agent summed up

Bourgeois' attitude: "He seemed to be more concerned about the delivery of his next load than he

continued)

But, what you are doing is putting the sand over your head, as we speak, with every

one of these letters.

( ...

(DE 351 at 36).

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was about the welfare of his soon to be deceased daughter[.]" (DE 338 at 102). Other law

enforcement witnesses described their interaction afterward with Bourgeois and Robin. They

explained how Robin's story broke down as the victim died.

Second, forensic witnesses described the injuries JG 1999 sustained at her father's hands, both

on the day of the murder and weeks before. Carole McLaughlin, a registered nurse on duty when

JG 1999 arrived, observed injuries on the infant such as bruising around the eyes, swollen

extremities, and hard, calloused hands and feet. Dr. Noorullah Akhtar testified that JG 1999 was

"virtually dead" when she arrived at the hospital. (DE 344 at 95). He opined that falling from a

truck could not cause the extensive blood in and edema of JG 1999' s brain. Instead, her injuries were

equivalent to her falling "four or five stories, head first, on a hard floor." (DE 344 at 93). A CT scan

showed "blood in all areas in and around the brain, and the brain is swollen." (DE 344 at 96). The

injuries were so severe that JG 1999 would not last long. When Dr. Akhtar told Robin that

information she cried; Bourgeois "didn't show much expression or grief." (DE 344 at 97). In

addition to the blood in her eyes, Dr. Ronald R. Kuffel, Jr., an ophthalmologist, observed several

recent head injuries, including a fresh hemorrhage on the right of her head above the hair line.

Dr. Elizabeth A. Rouse performed the autopsy which revealed both the severe head injuries

that caused her death and numerous non-lethal wounds all over her body. Of the ten different head

injuries, Dr. Rouse identified internal injuries corresponding to the external wounds. Other than the

brutal head wounds, Dr. Rouse observed scratch marks near the ears, deep injuries to the hands and

feet, looped injuries as if struck with an electrical cord, burns possibly from a cigarette lighter, and

deep tissue bruising in nearly every part of her body.

Dr. Scott Anthony Benton, a medical doctor who had examined JG 1999 a month before her

murder, reviewed the autopsy photographs. He observed a completely different child; none of the

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injuries had been present before. Aside from intense head injuries, he also saw evidence of abuse

all over her body. Of particular note, he concluded that there was some evidence of vaginal trauma

since his earlier examination. (DE 346 at 45-46). Another witness testified that rectal swabs taken

from the victim after her death suggested the presence of semen.

William Russell Oliver, an expert in forensic pathology and forensic imaging, enhanced the

autopsy photographs to accentuate the external injuries. He estimated that she had suffered the

following external injuries: 25 to 26 whip marks, 78 healed scars, 73 to 105 nonspecific contusions,

8 pattern contusions, 9 to 10 abrasions or excoriations, 7 to 9 healing ulcerations, a possible bite

mark, and three lacerations. (DE 345 at 226). Dr. David Senn, a forensic odontologist, could not

exclude Bourgeois, Robin, or AB1994 as the probable biter for an injury on JG1999's arm. He

could, however, exclude Robin and AB 1994 as the possible biters for wounds on her back, leaving

Bourgeois as the only possible biter with access to JG 1999. Another forensic odontologist, Dr.

Bryan Chrz, agreed that Bourgeois was probably the one who bit JG 1999 on the back.

The final category of testimony came from the witnesses who observed Bourgeois'

unrelenting, escalating, and homicidal abuse, saw the effects of the beatings, or heard his confessions

to those acts. Some witnesses described seeing various injuries on JG1999's body, most of which

Bourgeois attributed to her natural mother. The Government called three inmates - Darick Moore,

Orlando Campos, and Wiley Taylor-who had been housed in county jail facilities with Bourgeois.

These men explained that Bourgeois initially claimed that the victim died in an accident, but later,

"as he ... got comfortable, he started like telling [them] really what happened." (DE 344 at 205).

Bourgeois said he killed his daughter and was going to make it look like an accident. (DE 344 at

219). Bourgeois admitted that he beat JG 1999 with several objects. Bourgeois described his

daughter as a "bad child" who "[u]sed to shake her butt all the time[.]" (DE 344 at 205). Also,

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Bourgeois described "with pride" how he beat his wife. (DE 344 at 219).

Bourgeois' sister Claudia Williams testified that he had made comments foreshadowing the

murder. He told Ms. Williams: "You get your black dress out. . . . I'm just going through a lot. I

don't know what I'm going to do." (DE 223 at 8). Ms Williams became so concerned that she asked

Robin if Bourgeois had any weapons in the truck. (DE 223 at 9).

The most damning testimony of the trial came from those who observed Bourgeois' cruelty

firsthand. Robin Bourgeois was asleep when her husband murdered JG 1999, but she could still

describe his incessant prior abuse and his manufacture of the story afterward. The most chilling

testimony came from AB 1994 as she described how her father killed her little sister. She credibly,

and bravely, chronicled the events leading to the murder and sadly reported on how her father killed

JG 1999. Nothing weakened her testimony or challenged her version of events. 13

After the Government rested, the defense moved for an instructed verdict, arguing that

insufficient evidence proved Bourgeois' guilt and his premeditation for the murder. The Court

denied the motion.

In his Motion to Vacate, Bourgeois brazenly argues that

[t]rial counsel also failed to present readily available evidence through either

crossexamination or through the presentation of live witnesses of the bad character

and reputation in the community of Robin and AB-1994 for being truthful and

honest. The credibility of these witnesses was critical to the Government's case simply put, if the jury believed either of these witnesses Petitioner was going to be

convicted.

(DE 396 at 61). Bourgeois has not supported his accusations with any evidence calling AB1994's

credibility or honesty into question. Any attempt by trial counsel to impugn her credibility would

have seriously backfired. This Court vividly remembers AB 1994' s heart-wrenching account of her

father's abuse and murder. Time cannot obscure her forthright testimony and its effect on the jury.

The only lies AB 1994 told were those she initially conveyed at Bourgeois' direction. The jury

accepted her eyewitness testimony of the murder as a valid report of how Bourgeois killed his

daughter, and Bourgeois has given the Court no reason to supercede its judgment.

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Notwithstanding the overwhelming evidence against Bourgeois, the trial attorneys followed

their client's instructions. The cross-examination of witnesses tried to place reasonable doubt on

whether Robin could have been the killer. Bourgeois himself was the only witness called by the

defense in the guilt/innocence phase. Bourgeois' testimony stuck to the same story he told

investigators: that JG 1999 fell from the truck. Notwithstanding the extensive credible testimony

about the abuse JG 1999 had suffered, Bourgeois testified that he never harmed her, never touched

her inappropriately, and never killed her. (DE 338 at 5-6). A blistering cross-examination left

Bourgeois looking even worse before the jury. Bourgeois admitted that he had disciplined JG 1999

twice by spanking her, but disclaimed any other abuse. As the Government asked about the

numerous injuries found on the infant's body, Bourgeois began supplying implausible excuses for

each wound. With some injuries, such as the whip marks found on her thighs, Bourgeois denied

having any knowledge about them. Instead, he cast blame on Robin Bourgeois. When asked to

explain testimony that inculpated him, such as that given by his sister and others, he accused the

witnesses of lying. Even with all the testimony showing his detached and indifferent demeanor

about the loss of his baby, he unpersuasively claimed: "How can you say I'm not upset. I lost my

baby. Yes, I'm upset. ... I'm highly hurt by this." (DE 338 at 54).

The parties delivered their closing arguments on Tuesday, March 16, 2004. The Government

emotionally and forcefully outlined the evidence showing that Bourgeois abused and killed the

victim, emphasizing that Bourgeois had planned to kill his daughter beforehand. Both Mr. Tinker

and Mr. Gilmore made closing arguments in the guilt/innocence phase. Mr. Tinker begged the jury

not to be swayed by emotion and the horrible circumstances of the victim's death, but to look at the

facts. Like Bourgeois' own testimony, Mr. Tinker tried to pin the murder on Robin Bourgeois. He

hoped that the jury would find that she had a motive to kill the child and had abused the little girl

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herself. He tried to minimize the testimony about Bourgeois' indifferent actions after the murder.

In the event that the jury believed Robin and AB1994's account, Mr. Tinker discounted the

testimony showing intent and premeditation, making the murder an act of momentary anger.

Mr. Gilmore also briefly argued that the Government had ignored Robin Bourgeois' role in

the killing. He characterized Robin Bourgeois as one whose evolving story increasingly blamed

Bourgeois as it exculpated herself.

The jury deliberated for less than two hours before finding Bourgeois guilty of both counts

in the

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