Opposition Brief — Webster v. United States

ae,

—No. 10-150

Jn the Supreme Court of the Cinited States

BRUCE CARNEIL WEBSTER, PETITIONER

.

UNITED STATES OF AMERICA

(CAPITAL CASE)

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPLAL:

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAI

Acting Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney Genera

JOEL M, GERSHOWITZ

Atlorn “4

Department of Justece

Washington, Det 580-000]

SupremeCtBru fs(Mu8do).go

(202) b14-2217

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction to review by

writ of certiorari the court of appeals’ denial of petition

er’s request for authorization to file a second or succe:

sive collateral attack under 28 U.S.C. 2255

2. Whether, under 28 U.S.C. 2255(h)(1) (Supp. 11

2008), a defendant may file a second or successive Sec

tion 2255 motion based on newly discovered evidence

that pertains not to his guilt but to his eligibility for the

death penalty.

3. Whether, if Section 2255(h)(1) bars a defendant

from challenging his death sentence in a second or suc

cessive Section 2255 motion based on newly discovered

evidence that he is mentally retarded, the statute is to

that extent unconstitutional under the Fifth or Eighth

Amendment

TABLE OF CONTENTS

(Opinion below

Jurisdictior

sLatement

Arvument

TABLE OF AUTHOREPE

Rabbill \ Waoodllord Wy | sth 14 (ORT,

Cabana v. Bullock, 474 | 76) (LON

Verruled n part on other pn tificl

C

ases—Continued: Page

Greenaiwalt v. Stewart:

105 F.3d 1268 (9th Cir.), cert. denied, 519 U.S. 1102

(1997), abrogated on other grounds, Rives s

Weber, 544 U.S. 269 (2005) .................. 1s, 2

105 F.3d 1287 (9th Cir.), cert. denied, 519 U.S. 1103

(1997) Peg eg Ae eee ee ee ee ae ae

Harbison v. Bell, 1298. Ct. 1481 (2009)

Hope v. United States, 108 F.3d 119 (7th Cir.)

cert. denied, 515 U.S. 1182 (1997) .. 2.2...

Jones, In ve, 137 F.3d 1271 (11th Cir. 1998)

Lakevers v. Gibson, 238 F.3d 1263 (10th Cir. 2001)

Leonard v. United States, 383 F.3d 1146 (10th Cir

De etre eae Baek shies e

Magwood y. Patterson, 1308. Ct. 2788 (2010)

Medina v. California, 505 U.S. 4387 (1992) 2.2...

Medina, In re, 109 F.3d 1556 (1ith Cir. 1997),

cert. denied, 520 U.S. 1151 (1997) .. 2.02...

Morris v. Dretke, 413 F.3d 484 (5th Cir. 2005

Panett v. Quarterman, 551 U.S. 930 (2007

Pope v. Illnois, 481 U.S. 497 (1987)

Rhines v. Weber. 544 US. 269 (2005)

Roper Vv. Sammons, 543 U.S. 551 (2005)

Sawyer v. Whitley, 505 U.S. 333 (1992

Schlup v. Delo, 513 U.S. 298 (1995)

Slack v. McDan i¢ & 529 U.S. 473 (2000) ......

Sonshine, ln re, 132 F.3d 1133 (6th Cir. 1997)

State v. Grell, 135 P.3d 69 (Ariz. 2006), cert. denied.

550 U.S. 937 (2007)

' , , : Sy re eee ee

Stewart v. LaGrand, 526 U.S. 115 (1999

. . me, - )

{ ases—Continuea: Page

F ’ s , a he - Pes. = } «<*> TY . Te Yard ry :

Stewart v. Martinez-Villareal, 523 US. 687 (1998) LS, 23

—_

—~

Tv

~

Pa

Thompson v. Calderon, 151 F.3d 918 (9tl

denied, 524 U.S. 965 (1998)

Tison v. Arizona, 481 U.S. 137 (1987)

Triestman v. Unrated States, 124 F.3d 361 (2d Cir.

free a Rese, RP nee gta ee rhe Cn Ait eam Pe 13, 16

United States v. Davis, 611 F. Supp. 2d 472 (D. Md.

2009) a Aree

United States v. Hall, 152 F.3d 381 (5th Cir. 1998),

cert. denied, 526 U.S. LLL7 (1999) 2000 ee. 5

United States v. Lorentsen, 106 F.3d 278 (9th Cir

1997)

United States v. Webster

162 F.3d 308 (Sth Cir. 1998), cert. denied, 528 U.S

ot) ee

Soe © 60 164 (oth Cir. FOS) . cc cw ccc ccc ccss eee g

421 F.3d 308 (5th Cir. 2005). cert. denied, 549 U.S.

S28 (2006) oe... DASS

Utah v. Evans, 586 U.S. 452 | 44 CRSP AU SE a? ae bi

Veal, In re, 115 F.3d 1192 (4th Cir. 1997) .... ca ee

Walker v. True, 399 F.3d 315 (4th Cir. 2005) ........... 21

Ward v. Hall, 592 F.3d 1144 (11th Cir. 2010), petition

for cert. pending, No. 10-288 (filed Aug. 25, 2010) .... 18

Webster v. Doe, 486 U.S. 592 (1988)

Webster v. United States, No. 4:00-CV-1646, 2003 WL

23109787 (N.D. Tex. Sept. 30, 2003) . . 2.6, 7, 8, 26,

VI

Constitution and statutes Page

l 4 Const.:

Amend. V (Due Process Clause) .. 28, 29, 30

Among. Vill >... 4... <<. swe wae okey ee ee

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-1382, 110 Stat. 1214:

S 305, £20 Stat: 1220 és ov sw ua es bee re

$ 106(a), 110 Stat. 1220

Federal Death Penalty Act of 1994, IS U.S.C. 359]

GL S60. i... ee a ee ee ee ee PE ee a ee ee

1S Use. Seen 3 oo ee eee 28

iS U7. Se oo cee eae ea 1, 28

18 U.S.C. 3592(e) ....... a Rare |

18 U.S.C. 3592(¢e(6) .. er © ee ae

18 U.S.C. 3592(e)(9) .. re ree ae

IS U.S.C. 3592(e) 11 )

18 U.S.C. 3593“ )

18 U.S.C. 3693(d) . Rak ; pucueeae ane

18 U.S.C. 3593(e) 5

18 U.S.C. 3596(e) ae son se eee we Oy ig thy eh on

IS U.S.C. 3599%(e) os ous ae

IS U.S.C. 924(e) (1994) .. irs iy

18 U.S.C. 1201(a) (1994)... . aT cae

IS U.S.C. 1201(a)(1) (1994 RE ata

Is U.S.C. 1Z01(c) ..... eaters ee

28 U.S.C. 1254(2 17

28 U.S.C. 2241 L7

28 U.S.C. 2244 12, 13, i4

Statutes—Continued:

28 U.S.C. 2244(b)(2) ... x

28 U.S.C. 2244(b)(2)(B)GD . . aes 18, 19,:

28 U.S.C. 2244(b)(3)( A)

28 U.S.C. 2244(b)3)(B) .. | 7 . 12,

ease, Seem ONaKC) ............65. eee |}

28 U.S.C. 2244(bxX3)(D) ..... . eas is te

28 U.S.C. 2244(b\3)(E) ................. 12, 18, 15,

eneen,. SEaeC) .........

28 U.S.C. 2244(d)(1) .....

28 U.S.C. 2254(e)(2)(B)

+

28 U.S.C. 2258 (Supp. IT 2008)

28 U.S.C. 2258(a) (Supp. IT 2008)

28 U.S.C. 2255(b) (Supp. IT 2008) . .

28 U.S.C. 2255(e) (Supp. I] 2008) ....

28 U.S.C. 2258(e)(2)(B) (Supp. 11 2008)

28 U.S.C. 2255(f)(4) (Supp. IT 2008) . .

28 U.S.C. 2254(h) (Supp. TT 2008)... rere .

28 U.S.C. 2255(h)(1) (Supp. IT 2008) .... . 24cm

28 U.S.C. 2253(h)\(2) (Supp. IT 2008)

Miscellaneous:

Federal Habeas Corpus Reform: Eliminating Priso?

er TT ,. 4 4) ~prtar) > a vgre e) .

ers’ Abuse of the Judicial Process: Hearings Be

fore the S. Comm. on the Judiciary, 104th Cong.,

lst Sess. (1995)

Hn the Supreme Court of the Gnited States

No. 10-150

BRUCE CARNEIL WEBSTER, PETITIONER

U.

UNITED STATES OF AMERICA

(CAPITAL CASE)

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. la-

12a) is reported at 605 F.8d 256. The opinion of the

court of appeals affirming petitioner’s conviction and

sentence is reported at 162 F.3d 308. The opinions of

the court of appeals reviewing and affirming the denial

of petitioner's first motion for posteonviction relief are

reported at 392 F.3d 787 and 421 F.3d 308.

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 2010. The petition for a writ of certiorari was

filed on July 27, 2010. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1); as explained below,

however, this Court lacks jurisdiction to review the deci-

sion of the court of appeals. See pp. 12-17, 7nfra.

(1)

w

STATEMENT

Following a jury trial in the Northern District of

Texas, petitioner was convicted of kidnapping resulting

in death, in violation of 18 U.S.C. 1201(a)(1) (1994); con-

spiring to commit kidnapping, in violation of 18 U.S.C.

1201(¢); and using and carrying a firearm during a crime

of violenee, in violation of 18 U.S.C. 924(e) (1994). He

was sentenced to death on the charge of kidnapping re-

sulting in death. The court of appeals affirmed, United

States v. Webster, 162 F.3d 308 (5th Cir. 1998), and this

Court denied a petition for a writ of certiorari, 528 U.S.

829 (1999). Petitioner then filed a motion for postconvic-

tion relief under 28 U.S.C. 2255.’ The district eourt de-

nied the motion, Webster v. United States, No. 4:00-CV-

1646, 2003 WL 23109787 (N.D. Tex. Sept. 30, 2003); the

court of appeals affirmed, United States v. Webster, 421

F.3d 308 (Sth Cir. 2005); and this Court denied a petition

for a writ of certiorari, 549 U.S. 828 (2006). Thereafter,

petitioner sought authorization from the court of appeals

to file a second Section 2255 motion. The court of ap-

peals denied the request. Pet. App la-12a.

1. The evidence at trial showed that in 1994 peti-

tioner, along with Orlando Hall and Marvin Holloway,

was running a marijuana trafficking operation in Pine

Blutf, Arkansas. They bought marijuana in the Dallas-

Fort Worth area with the assistance of Steven Beckley,

who transported the marijuana to Arkansas. Hall and

Beckiey gave two Dallas drug dealers, Neil Rene and

Stanfield Vitalis, $4700 for marijuana to be delivered

later. Rene and Vitalis failed to appear with the mari-

juana and later claimed in a phone conversation that

they had been robbed of the money and their car. When

Orlando Hall subsequently saw the two men enter the

l

All references to Section 2255 are to the 2008 supplement.

3

car that they claimed had been stolen, he concluded that

they had lied about being robbed. 162 F.3d at 317-318.

A few days later, on September 24, 1994, petitioner,

Beckley, Orlando Hall, and his brother Demetrius Hall,

all dressed in camouflage clothing, drove to the apart-

ment in Arlington, Texas, from which Rene and Vitalis

had telephoned. Petitioner and Orlando Hall were

armed with handguns, Demetrius Hall] carried a small

baseball bat, and Beckley had duct tape and a jug of gas-

oline. After Rene’s 16-year-old sister, Lisa, refused

them entry and called the police, petitioner forcibly en-

tered the house, tackled Lisa, and dragged her into the

ear. The group then changed cars; while they drove

around, with petitioner in the front passenger seat and

Beckley at the wheel, Orlando Hall raped Lisa in the

back seat and forced her to perform oral sex on him. 162

F.3d at 318.

After dropping off Orlando Hall, the group drove to

a motel in Pine Bluff. En route, petitioner and Deme-

trius Hall took turns raping Lisa. At the motel, the

group kept Lisa tied to a chair and raped her repeat-

edly. 162 F.3d at 318.

The next day, Orlando Hall and Holloway arrivec at

the motel and took Lisa into the bathroom for 15 to 20

minutes. Orlando Hall told Beckley, “She know too

much.” Petitioner and Orlando Hall went to a park and

dug a grave. They and Beckley took Lisa to the park

that night, but returned when they could not find the

gravesite in the dark. 162 F.3d at 318.

The next morning, petitioner, Orlando Hall, and

Beckley drove Lisa back to the park. Petitioner and

Orlando Hall led the way to the gravesite, while Beckley

guided Lisa, masked and barefoot, by the shoulders. At

the gravesite, Orlando Hall turned Lisa’s back to the

grave and placed a sheet over her head. He then hit her

in the head with a shovel. She screamed and started

running. Beekley grabbed her and hit her twice in the

head with a shovel. Petitioner and Orlando Hall then

took turns with the shovel, beating Lisa into uncon-

sciousness. Petitioner proceeded to gag Lisa and drag

her into the grave. He stripped her, covered her naked

body with gasoline, and shoveled dirt back into the

grave. Although she was unconscious, Lisa likely was

still breathing when petitioner put her in the grave, 2.e.,

she died after she was buried alive. 162 F.3d at 318-319.

When police arrested petitioner, he was carrying a

key to the motel room in which Lisa had been held. He

admitted involvement in the kidnapping and the murder.

He led authorities to the gravesite, to the charred buc

ket that he admitted using to burn Lisa’s clothes, and to

the place where he burned them. He told an FBI agent

that the murder had not been personal but “strictly busi-

ness.” 162 F.3d at 319, 320 n.5, 333, 336 & n.26.

Before trial, the government provided notice of its

intent to seek the death penalty on the kidnapping

count. The jury found petitioner guilty of kidnapping

resulting in death, conspiring to commit kidnapping, and

using and carrying a firearm during a crime of violence.

162 F.3d at 319.

2. The trial then proceeded to the penalty phase.

Under the Federal Death Penalty Act of 1994 (F DPA),

18 U.S.C. 3591 et seq., before a jury may sentence a de-

fendant to death, it must find the existence of at least

one of the “intent” factors enumerated in 18 U.S.C.

3591(a)(2), to ensure that the defendant acted with a

degree of culpability sufficient to justify the death pen-

alty, and at least one of the aggravating factors enumer-

ated in 18 U.S.C. 3592(c). If the jury finds that those

requirements are satisfied, then it may also consider any

non-statutory aggravating factors for which the govern

~

;

o

ment has provided notice and presented proof beyond a

reasonable doubt. The jury then weighs the statutory

and non-statutory aggravating factors that it has found

to exist against any mitigating factors that any individ-

ual juror finds to exist by a preponderance. 18 U.S.C.

3593(c) and (d). The jury is to return a death sentence

if it finds that all the aggravating factors found to exist

“sufficiently outweigh” all the mitigating factors found

to exist that a sentence of death is justified. 18 U.S.C.

3593(e).

In this case, the jury found unanimously that the

government had proved beyond a reasonable doubt the

requisite intent factor. The jury also found beyond a

reasonable doubt three statutory and two non-statutory

aggravating factors: that petitioner committed the of-

fense in an especially heinous, cruel, and depraved man-

ner in that the offense involved torture or serious physi-

cal abuse; that the offense was committed with substan-

tial planning and premeditation; that Lisa was a particu-

larly vulnerable victim due to her age; that petitioner

constituted a future danger to the lives and safety of

others; and that the offense had affected the victim’s

family. 162 F.3d at 319 n.1; 18 U.S.C. 3592(¢)(6), (9) and

(11). The defense submitted numerous mitigating fac-

tors, and nine of them were found to exist by at least one

juror. 162 F.3d at 319 n.2. Four jurors found as one

mitigating factor that petitioner “is or may be mentally

retarded.” bid.

The jury found unanimously that the aggravating

factors sufficiently outweighed the mitigating factors to

justify a death sentence. See 162 F.3d at 320.°

* Orlando Hall was tried separately and also sentenced to death. See

United States v. Hall, 152 F.3d 381 (5th Cur. 1998), cert. denied, 526

US. 1117 (1999).

6

3. In addition, 18 U.S.C. 3596(¢c) exempts from the

death penalty defendants who are mentally retarded or

who, because of a mental disability, lack the mental ¢a-

pacity to understand the death penalty or why it was

imposed. At the penalty phase, petitioner argued that

he is mentally retarded and, in support, presented testi-

mony from four medical experts regarding his mental

capacity and the testimony of a fifth medical expert on

surrebuttal to critique the methodology used by the gov-

ernment’s experts in testing his cognitive abilities. He

also submitted voluminous evidence of the abuse he suf-

fered as achild. See 421 F.3d at 309.

The government presented two medical experts who

concluded that petitioner was not mentally retarded.

Although the government experts agreed that petitioner

has a low I.Q., they concluded that petitioner’s I.Q. was

higher than petitioner’s experts had suggested and,

more importantly, that petitioner had sufficient adaptive

skills to preclude classifying him as mentally retarded.

421 F.3d at 312-313; 2003 WL 23109787, at *14. The gov-

ernment’s experts noted that petitioner had scored

higher on intelligence tests administered before this

case began, and that he had an incentive not to perform

well on the tests administered after his arrest. Further-

more, the government’s experts explained that peti-

tioner’s experts’ testing methodology “was critically

flawed and misleading,” 421 F.3d at 310, because peti-

tioner’s immersion in a criminal subculture and lack of

formal education likely resulted in deceptively low

scores on the I.Q. and adaptive-skills tests used by peti-

tioner’s experts (which, for instance, asked petitioner to

define “inflation” and to recognize a picture of Mark

Twain). See zd. at 310, 313 nn.13 & 15; 2003 WL

23109787, at *12-*13, *14. And petitioner’s experts had

based their conclusions on family members’ statements

7

that petitioner lacked certain skills; the government

experts “effectively [rebutted] some of those findings

with direct evidence that Webster has adapted to his

environment and does possess skills that his family

stated that he did not.” /d. at *14. For instance, peti

tioner had shown adaptability by working as a drug

dealer; by burning his clothes to destroy evidence after

the murder; by concocting cover stories and making ex-

cuses to the police when he was arrested in possession

of a key to the motel room in which Lisa Rene had been

held and repeatedly raped; and by sneaking into the

women’s section of the jail in which he was held (appar

ently for sexual gratification). See 421 F.3d at 313 &

n.15. The government also presented other witnesses

who testified that petitioner performed adequately while

at school and that, while in custody, petitioner wrote

letters to other inmates; received and read aloud from

newspapers; appeared to be reading and taking notes

from books in the law library; prepared written griev

ances and wrote request slips for various services; sub

mitted names and addresses of people for his visitation

list; and complained because he received the incorrect

change from the prison commissary. See 7d. at 310, 318

n.15.

After imposing the death sentence, the district court

entered a finding under Section 3596(c) that petitioner

is not mentally retarded and therefore not exempt on

that basis from the death penalty. See 421 F.3d at 309-

310.

4. On direct appeal, petitioner contended, among

many other claims, that the district court’s finding that

he is not mentally retarded was against the weight of

the evidence. The court of appeals rejected the claim,

observing that “[t]he government presented substantial

evidence to support the finding” on mental retardation.

he

162 F.3d at 3538. The court added that “only four of the

twelve jurors found that | petitioner] is or may be men

tally retarded and that he suffers from low intellectual!

functioning.” J/bid. This Court denied a petition for a

writ of certiorari. 528 U.S, 829 (1999).

5. In 2000, petitioner filed a motion to vacate his

conviction and death sentence under 28 U.S.C. 2255.

While that motion was pending in the district court, this

Court held in Atkins v. Virginia, 536 U.S. 304 (2002),

that the execution of a mentally retarded individual

would violate the Kighth Amendment. In his Section

2255 motion, petitioner contended, among other claims,

that the district court's finding that he was not mentally

retarded was unsupported by the evidence. Petitioner

also presented new evidence that he contended sup

ported his claim of mental retardation.

After reexamining the trial record, the district court

again rejected petitioner’s claim of mental retardation.

‘lhe court stated that it is “undisputed” that petitioner

has a low I.Q. 2008 WL 23109787, at *14. Nevertheless,

the court found that the evidence supported the conclu-

sion that “[petitioner| does not have a deficit in adaptive

skills,” and therefore that he is not mentally retarded

under either Atkins or 18 U.S.C. 3596(c). /bid. The

court granted petitioner a certificate of appealability

(COA) on his claim that there was insufficient evidence

to support the court’s finding on mental retardation.

421 F.3d at 310.

The court of appeals affirmed. The court concluded

that the district court had “proceeded dutifully to re

examine the extensive evidence bearing on | petitioner’s |

mental capacity” and correctly concluded again that pe

titioner had not established retardation. 421 F.3d at

312. The court explained that, despite petitioner’s

concededly low 1.Q., the government had “effectively

countered |[petitioner’s| claimed retardation” by refuting

petitioner’s evidence that he Jacked adaptive skills. /d

at 313.”

This Court again denied a petition for a writ of cer

tiorarl. 549 U.S. 828 (2006).

6. In 2009, petitioner moved the court of appeals for

authorization to file a second or successive Section 2255

motion to vacate his death sentence. A second or succe:

sive Section 2255 motion may be filed only if authorized

by a panel of the court of appeals, and such authoriza

tion may be granted only in very limited circumstance:

See 28 U.S.C, 2255(h)(1) and (2); see also Antiterrorism

and i ffective Death Penalty Act of 1996 (AI DPA), Pub

L.. No. 104-182, § 105, 110 Stat. 1220 (adding this provi

sion). Petitioner sought authorization pursuant to Sec

Lion 2255(h)(1), which authorizes a second or successive

collateral attack based on “newly discovered evidence”

only where “|that evidence] would establish by clear and

convincing evidence that no reasonable factfinder would

have found the prisoner guilty of the offense.’

‘The motion argued that petitioner had discovered

new evidence that he is mentally retarded and so ineligi

ble for the death penalty under Section 38596(¢c) and

Atkins. The evidence included Social Security record

created in connection with petitioner’s application, more

than a year before the crime, for disability benefit:

based on a sinus problem. The records showed (1) that

three medical professionals had separately found that

petitioner was mentally retarded and/or had an e»

Petitioner also contended that his trial counsel were constitution

ally ineffective in failing adequately Lo investiprate and present evidence

of retardation. The district court and the court of appeals denied a

COA on that issue, because counsel were “far from constitutionally in

effective” and presented “a significant amount” of such evidence. 392

F.3d at 790-791, 793

10)

tremely low 1.Q.; and (2) that records of petitioner's past

enrollment in special education classes had been de

stroyed years before. The evidence also included decla

rations from petitioner’s family members, friends, and

acquaintances offered to prove his “adaptive deficits.”

7. The court of appeals denied the request for autho

rization to file a successive motion under Section 2255.

Poet. App. la-l2a.

a. The court held that, under the plain lanpuaye of

Section 2255(h)(1), the newly discovered evidence must

negate puilt of the offense; the provision “does not en

compass Challenges to a sentence.” Pet. App. 4a." The

court rejected petitioner's argument that Section

2255(h)(1) should be read to permit a claim that the

movant is “not guilty of the death penalty.” The court

explained that “|hjad Congress wanted the provision to

cover challenges to a sentence—even if only to a death

sentence it could easily have referenced sentences ex

plicitly in the text, as it did numerous times throughout

§ 2255.” Jd. at Ga-Ta. Or Conyress could have used the

term “actual innocence,” which, before the enactment of

Section 2255(h), had been construed by the courts, in

connection with the “actual innocence” exception to the

cause-and-prejudice requirement for excusing: proce

dural default, as extending to some capital sentencing

challenges. /d. at 5a, 7a. But instead, the court of ap

peals observed, Congress “elected to couch § 2255(h)

* * * inthe markedly different, unmistakable terms of

quill of the offense.” Tbid.

* "The government had argued that petitioner had not met the burden

of showing by clear and convincing evidence that no reasonable fact

finder would find him mentally retarded, the povernment did not ad

dress whether such a sentencing challenge may ever be brought ina

second or successive motion

1]

The court clarified that it “djid] not mean to suggest

that a prisoner is jurisdictionally barred from seeking

successive review where he contests a factual predicate

of his capital murder conviction, without which he would

be guilty only of non-eapital murder.” Pet. App. 6a n.5.

The eourt cited a Ninth Cireuit ease holding that a chal-

lenge to the “special circumstance” of rape, which had

rendered the defendant death-eligible, was a challenge

to the “offense” of capital murder. /brd. (citing Thomp-

son v. Calderon, 151 F.3d 918, 923-924 (9th Cir.) (en

bane), cert. denied, 524 U.S. 965 (1998)).

b. Judge Wiener filed a concurring opinion. Pet.

App. 9a-12a. Aithough Judge Wiener agreed that peti-

tioner’s successive collateral attack was barred under

the plain terms of Seetion 2255(h)(t), he wrote to ex-

press his concern that, if petitioner’s proffered evidence

were presented to a factfinder, it would show that peti-

tioner is mentally retarded. /d. at 9a.

ARGUMENT

Congress has eliminated certiorari review of denials

of authorization to file a second or successive collateral

attack. This Court therefore lacks jurisdiction to take

up the questions presented by the petition for a writ of

certiorari in this ease. Further review would not be

warranted in any event: the decision of the court of ap-

peals is correct and does not conflict with any other deci-

sion of another court of appeals or this Court. More-

over, as the government explained in the court of ap-

peals, even if a court of appeals may authorize a second

or suecessive collateral attack based on newly disecov-

ered facts establishing by clear and convincing evidence

that the defendant is ineligible for a death sentence,

petitioner has not made that showing here. Nothing in

petitioner’s proffered evidence clearly demonstrates any

error in the finding that petitioner is not retarded—a

12

finding that the district court has twice made, after ex-

tensive adversarial presentation, and the court of ap

peals has twice affirmed.

l. a. Congress has determined by statute that deci-

sions of the courts of appeals denying authorization to

file a second or successive collateral attack are not sub-

ject to certiorari review. 28 U.S.C. 2244(b)(3)(E). See-

tion 2244(b)(3)(E) provides that “|t]he grant or denial of

an authorization by a court of appeals to file a second or

successive application shall not be appealable and shall

not be the subject of a petition for rehearing or for a

writ of certiorari.” Petitioner acknowledges (Pet. 15-16)

that Section 2244(b)(8)(E) validly eliminates this Court’s

jurisdiction over the specified class of cases; petitioner

contends, however (Pet. 16-22), that decisions denying

authorization to file a second or successive Section 2255

motion are not within that class. That contention is in-

correct.

Section 2255 provides that the same procedure that

applies to the eae ios of second or successive habeas

corpus petitions by state prisoners—the procedure set

out in Section 2244—applies to the authorizing of second

or sueeessive Seetion 2255 motions. Section 2255(h)

states that a second or successive Section 2255 motion

‘must be certified as provided in section 2244 by a panel

of the appropriate court of appeals” to meet the stan-

dard. 28 U.S.C. 2255(h) (emphasis added). Section

2244, in turn, specifies who shall decide (“a panel of the

court of appeals”), what must be decided (whether the

petitioner has made “a prima facie showing” that he

meets the applicable standard), when the decision must.

be made (promptly after filing), and that the decision is

final and unreviewable (7.e., not “the subject of a petition

for rehearing or for a writ of certiorari”). 28 U.S.C.

2244(b)(3)(B)-(E). And although Section 2255 sets out

13

the substantive requirements that a suecessive motion

must meet to be authorized, those requirements are sub-

stantially identical to the substantive requirements in

Section 2244. Compare 28 U.S.C. 2244(b)(2) with 28

U.S.C. 2255(h).

Petitioner argues (Pet. 15-20) that although Subpara-

graphs (b)(3)(A), (B), (C), and (D) all apply to second

or suecessive Section 2255 motions, Subparagraph

(b)(3)(E) does not. But “[t]he language of § 2255 * * *

makes no effort to specify which provisions of § 2244 it

intends to incorporate. In the absence of such a specifi-

cation, it is logical to assume that Congress intended to

refer to all of the subsections of § 2244 dealing with the

authorization of second and successive motions, inelud-

ing * * * § 2244(b)(8)(E).” Triesteran v. United

States, 124 F.3d 361, 367 (2d Cir. 1997) (Calabresi, J.).

Petitioner contends (Pet. 18) that the use of the term

“certified” in Section 2255(h) indicates that “there is no

adoption or incorporation of the parts of Section 2244

that do not address the procedure for certifieation.” But

the identity of the decisionmaker plainly zs a key part of

the procedure for certification: Congress intended for

certification decisions to be made by a single panel of

three appellate judges, for the decisions to be made

quickly, and for decisions granting or denying certifica-

tion to be final. Put another way, if petitioner obtained

the relief he seeks—an order by this Court that his suc-

cessive collateral attack be certified as permissible—his

Section 2255 motion would rot have been “certified as

provided in Section 2244,” which restricts that certifiea-

tion decision to the court of appeals.

The text and structure of Section 2244 confirm that

Congress did not exclude Section 2255 motions from the

operation of Subparagraph (b)(3)(E). The 1996 amend-

ments to Section 2244 were in the section of AEDPA

14

immediately following the amendments to Section 2255

and demonstrably were written with the latter amend-

ments in mind. See, e.g., AE DPA § 106(a), 110 Stat.

1220 (making “conforming amendment” to Section

2244(a) to add a cross-reference to Section 2255).

Furthermore, throughout Section 2244, when Con

gress intended to refer to a state prisoner's petition for

a writ of habeas corpus, it said so specifically. See 28

U.S.C. 2244(b)(1) (“a second or successive ono cor on

application under section 2254”), (b)(2) (same), (ec) (*

habeas corpus proceeding brought in behalf of a oe

in custody pursuant to the judgment of a State court”),

(d)(1) (similar). When Congress intended to refer only

to a federal prisoner’s petition, it said so. See 28 U.S.C.

1244(a) (“an application for a writ of habeas corpus to

inquire into the detention of a person pursuant to a

judgment of a court. of the United States”). But in the

certification subparagraphs—including not only Sub-

paragraphs (b)(3)(A)-(D), which petitioner concedes ap-

ply to both state and federal prisoners’ certification re-

quests, but also Subparagraph (b)(3)(I), the applicabil-

ity of which is at issue here—Congress used only the

term “a second or successive application,” or “a second

or successive application permitted by this section.” The

absence of any limiting language from these subpara-

graphs, and only these, is significant—especially given

the simultaneous and conforming amendments to See-

tions 2244 and 2255, see pp. 13-14, supra.”

Petitioner's other interpretive arguments fail as well. ‘The canon

of expressio unius est exclusio altervus (Pet. 19-20) has no application

here, because Congress did not omit the relevant language from Section

2255; it included it. by express cross-reference to Section 2244. And

petitioner cannot contradict that plain text with a statement at a Senate

hearing about AEDPA’s purported purpose (Pet 19) by a witness who

opposed several AEDPA reforms and “le[ft] * * * unaddressed” the

15

Castro v. United States, 540 U.S. 375 (2008), is not to

the contrary. In that case, the dispute concerned

whether Castro’s Seetion 2255 motion was his second

such motion (as the lower courts held) or his first. Cas-

tro did not ask the court of appeals for authorization to

file a second or successive Section 2255 motion, because

he viewed his motion as a f27st moticn that does not re-

quire authorization, and the court of appeals did not

deny such a request. This Court thus found Section

2244(b)(3)(E) inapplicable because there was no “statu-

torily relevant ‘denial’” of a successive application for

collateral relief. 540 U.S. at 380. The Court added that

even if the court of appeals was read to have not only

held that Castro’s motion was his second one, but also

denied Castro authorization to file it, the jurisdictional

bar would not apply because “the ‘subject” of Castro’s

[certiorari] petition |was] not the Court of Appeals’ ‘de-

nial of an authorization,’” but “the lower courts’ refusal

to recognize that this [Section] 2255 motion is his first,

not his second.” Jdbrd.

tightened rules for successive petitions. Federal Habeas Corpus

Reform. Eliminating Prisoners’ Abuse of the Judicral Process. Hear-

mgs Before the S. Comm on the Judirary, 104th Cong., Ist Sess 87

(1995) (statement of Nicholas deB. Katzenbach). In any event, Con-

gress plainly was concerned with bringing finality to federal as well as

state postconviction review See AE DPA § 105, 110 Stat. 1220 (adding

time limits and second-or-successive provisions to Section 2255); Cald-

eron Vv. Thompson, 523 U.S. 588, 558 (1998) (explaining that the stricter

limitations AEDPA imposed on the filing of second or successive

collateral attacks are “grounded in respect for the finality of eriminal

judgments”).

Finally, the case petitioner cites (Pet. 20) in support of a “narrow”

construction of Section 2244(b)(3)(E) stands for the proposition that

federal courts narrowly construe enactments that preclude any Judicial

review of executive action—not enactments that only limut appellate re-

view of judicial decisions. See Utah v. Evans, 586 U S. 452, 462-463

(2002) (citing Webster v. Doe, 486 U.S. 592, 603 (1988))

16

Here, by contrast, petitioner specifically asked the

court of appeals for authorization under Section 2255(h)

to file a suecessive motion, and the court specifically

denied the request. Pet. App. 8a. That denial is the

“subject” of petitioner’s petition for certiorari, which

challenges the denial on both statutory and constitu-

tional grounds.*

b. Because Section 2244(b)(3)(E) applies to petitions

for rehearing as well as petitions for certiorari, the

courts of appeals have confronted this question as well.

Every court to have done so has concluded that the fi-

nality rule of Section 2244(b)(3)(E) is fully applicable to

Section 2255 eases. E.g., Triestman, 124 F.3d at 367;

aeceord Leonard v. United States, 383 F.3d 1146, 1148

(10th Cir. 2004); In ve Sonshine, 132 F.8d 1133, 1134

(6th Cir. 1997); United States v. Lorentsen, 106 F.3d

278, 279 (9th Cir. 1997); see also In re Davenport, 147

F.3d 605, 608 (7th Cir. 1998).

Indeed, after the Court in Castro raised sua sponte

the question whether Castro’s petition for a writ of cer-

tiorari was barred by Seetion 2244(b)(3)(I), see 587 U.S.

1170 (2003), an amicus suggested the argument peti-

tioner now makes: that the jurisdictional bar does not

apply to Section 2255 cases at all. National Ass’n of

Criminal Def. Lawyers Br. at 12 n.2, Castro, supra (No.

02-6683). The government then briefed that issue. U.S.

Br. at 13-15, Castro, supra (No. 02-6683). This Court

decided the case on different grounds that apply equally

to state and federal postconviction review, thus leaving

* Similarly, because petitioner’s motion plainly is second or succes-

sive, Adamo Wrecking Co v. United States, 434 U.S. 275 (1978), is inap

posite: as the Court explained in Castro, 540 U.S. at 380, Adamo Wrec-

king held only that a bar on reviewing emission standards does not bar

a “narrow inquiry” into whether a regulation 27s an emission standard.

434 US. at 285.

17

undisturbed the consensus view of the courts of appeals

that the bar on filing rehearing or certiorari petitions

applies to requests for certification of successive Section

2255 motions. As already explained, that consensus view

is correct.

ce. Section 2244(b)(8)(E)’s bar against this Court’s

review of orders denying leave to file a second or succes-

sive Section 2255 motion does not mean that federal

postconviction litigants are altogether without recourse

to this Court. First, as Castro makes clear, this Court

retains the ability to review allegations that a motion

does not fit the specialized meaning of “second or succes-

sive,” see, e.g., Magwood v. Patterson, 130 8. Ct. 2788,

2796-2797 (2010), and may be considered without prior

certification by the court of appeals. Second, in cases

where Section 2255 truly is an “inadequate or ineffec-

tive” remedy, 28 U.S.C. 2255(e), federal defendants

may seek habeas corpus relief under 28 U.S.C. 2241,

with ultimate review in this Court. Third, there may

be avenues of review in this Court other than certio-

‘ari. Courts of appeals in Section 2255 proceedings

might under exceptional circumstances certify questions

to this Court. See Felker v. Turpin, 518 U.S. 651, 666

(1996) (Stevens, J., concurring) (citing 28 U.S.C.

1254(2)); 2d. at 667 (Souter, J., concurring) (Same). And

to the extent permitted by 28 U.S.C. 2255(e), a federal

defendant may be able to seek habeas relief directly in

this Court, as state prisoners may do when they cannot

seek certiorari review of a decision denying certification

of a second or successive habeas petition. Felker, 518

U.S. at 658-662; Jn re Daas, 130 S. Ct. 1 (2009).

2. In any event, the court of appeals correctly re-

jected petitioner’s claim that he should be permitted to

file a successive Section 2255 motion even though he

concededly cannot show “that no reasonable factfinder

18

would have found [him] guilty of the offense.” 28 U.S.C.

2255(h)(1) (emphasis added). That decision is in accord

with every appellate decision considering comparable

circumstances; petitioner alleges a circuit conflict based

on a single Ninth Circuit decision, but that case in fact

involved an allegation that, if true, would have estab-

lished the habeas petitioner’s innocence of the capital

offense.

a. Under Section 2255(h)(1), in order to obtain au-

thorization to file a successive Section 2255 motion

based on newly discovered evidence, an applicant must

show that the new evidence would establish that he is

not “guilty of the offense.” 28 U.S.C. 2255(h)(1); see also

28 U.S.C. 2244(b)(2)(B)(ii) (similar requirement for sec-

ond or successive habeas petition by state prisoner); 28

U.S.C. 2255(e)(2)(B) (similar requirement for eviden-

tiary hearing on claims not factually developed in state

court). Congress’s use of the word “offense” plainly ex-

cludes challenges to sentences, including death sen-

tences. See /n re Jones, 137 F.3d 1271, 1274 (11th Cir.

1998); Burris v. Parke, 130 F.3d 782, 785 (7th Cir.), cert.

denied, 522 U.S. 990 (1997); In re Medina, 109 F.3d

1556, 1565 (11th Cir.), cert. denied, 520 U.S. 1151 (1997),

overruled on other grounds by Stewart v. Martinez-

Villareal, 528 U.S. 637 (1998); Greenawalt v. Stewart,

105 F.3d 1268, 1277 (9th Cir.) (per curiam) (Greenawalt

/), cert. denied, 519 U.S. 1102 (1997), abrogated on other

grounds by Rhines v. Weber, 544 U.S. 269 (2005);

Greenawalt v. Stewart, 105 F.3d 1287, 1288 (9th Cir.)

(per curiam), cert. denied, 519 U.S. 1108 (1997); see also

Ward v. Hall, 592 F.3d 1144, 1161 (11th Cir. 2010) (con-

struing Section 2254(e)(2)(B)), petition for cert. pending,

19

No. 10-288 (filed Aug. 25, 2010); Burris v. Parke, 116

F.3d 256, 258 (7th Cir. 1997) (same).'

To be sure, a chalienge to the conviction for the un-

derlying “offense” may affect the defendant’s eligibility

for the death penalty as well. That was the crucial fact

in the Ninth Circuit case on which petitioner relies,

Thompson v. Calderon, 151 F.8d 918 (en bane), cert.

denied, 524 U.S. 965 (1998), and for that reason Thomp

son does not support petitioner’s argument. In Thomp-

son, the habeas petitioner contended that his new evi-

dence would show that he was not guilty of the offense

of capital murder, but at most guilty of the lesser of-

fense of homicide, because the new evidence would re-

fute the special circumstance that made his crime a capi-

tal one. Jd. at 920, 923, 924. That special circumstance,

the court held, is charged in the indictment as part of

the offense of capital murder; “[t]hus, by claiming the

infirmity of the lone special circumstance that made him

eligible for the death penalty, Thompson is challenging

his conviction of the ‘underlying offense’ of capital mur-

der.” Jd. at 924. The Ninth Circuit has reiterated, in

the subsequent case that petitioner also cites, that inno-

cence of the “offense” of capital murder in this context

means “actual innocence of either the murder * * * or

the special circumstance findings that made [the defen-

dant] eligible for the death penalty.” Babbitt v. Wood-

ford, 177 F.3d 744, 748, cert. denied, 526 U.S. 1107

* Another court has held that the word “offense” in Section

2255(h)(1) does not encompass attacks on sentences of imprisonment,

without deciding whether it encompasses attacks on sentences of death.

In re Vial, 115 F 3d 1192, 1198 n.12 (4th Cir. 1997) (en bane). See also

LaFeversv Gibson, 238 F.3d 1263, 1267 (10th Cir. 2001) (reserving the

question whether Section 2244(b)(2)(B)(ii) extends to capital sentencing

challenges).

20)

(1999). The court of appeals here so understood Thomp-

son and did not disagree. See Pet. App. 6a n.5.

By contrast, the Ninth Circuit has squarely held that

claims purperting to show that no reasonable penalty-

phase jurer would have zmposed a sentence of death on

a death-eligible defendant do not challenge the “of-

fense,” and such claims thus are not cognizable under

Section 2244(b)(2)(B)(ii). See Greenawalt ], 105 F.3d at

1277 (denying leave to file a successive petition “because

the constitutional error alleged by Greenawalt is ineffec-

tive assistance of counsel at [capital] sentencing, and he

cannot demonstrate that ‘no reasonable factfinder would

have found [him] guzlty of the underlying offense’”).

Petitioner’s claim of a circuit conflict thus fails: no

court of appeals has held that Section 2255(h)(1) encom-

passes all newly discovered evidence “relating to a death

sentence.” Pet. 33, 34.

b. Although petitioner claims (Pet. 27 n.9) that he,

too, is contending that he is not “guilty” of capital mur-

der, that contention lacks merit. Petitioner is not, for

instance, challenging proof of the element of the offense

that made it a capital crime, 2.e., that death resulted

from the kidnapping. See 18 U.S.C. 1201(a) (1994). Nor

is he challenging proof of his intent to kill Lisa Rene or

of the three statutory aggravating factors. The court

below made that clear, because it cited Thompson with

approval and stated that it “dlid] not mean to suggest

that a prisoner is jurisdictionally barred from seeking

successive review where he contests a factual predicate

of his capital murder conviction, without which he would

have been guilty only of non-capital murder.” Pet. App.

6a n.d.

Rather, petitioner’s argument is that he may not be

executed; upholding that claim would not alter the of-

fense, or the statutory aggravating circumstances, of

21

which he is guilty. See 18 U.S.C. 3596(c). As the court

of appeals explained in affirming the denial of peti-

tioner’s first Section 2255 motion, nothing in the FDPA

or in this Court’s capital-sentencing jurisprudence re-

quires the government to disprove the defendant’s re-

tardation beyond a reasonable doubt, as if non-retarda-

tion were an element or a statutory aggravating factor.

To the contrary, “a substantive limitation on [capital]

sentencing” imposed by the Eighth Amendment is not

n “element|} of the crime of murder” and “need not be

enforced by the jury.” Cabana v. Bullock, 4'74 U.S. 376,

385, 386 (1986), overruled in part on other grounds by

Pope v. [llinois, 481 &.S. 497, 503 n.7 (1987). Indeed,

the burden of establishing retardation may permissibly

be placed on the defendant, whereas the burden of dis-

proving any element or statutory aggravating factor

cannot. See, e.g., 421 F.3d at 311-312 & n.10; Walker v.

True, 399 F.3d 315, 326 (4th Cir. 2005); State v. Grell,

135 P.3d 696, 706-707 (Ariz. 2006), cert. denied, 550 U.S.

937 (2007); accord United States v. Davis, 611 F. Supp.

2d 472, 474 (D. Md. 2009) (citing cases); ef. Dixon v.

United States, 548 U.S. 1, 6-8 (2006) (burden of proving

duress may permissibly be placed on defendant); Me-

dina v. California, 505 U.S. 437, 449 (1992) (same, for

proof of incompetence to stand trial). Petitioner there-

fore is incorrect in asserting (Pet. 28) that establishing

his “categorical ineligiblity for the death sentence” un-

der the Eighth Amendment would be equivalent to

showing that he is not guilty of the capital “offense” of

kidnapping resulting in death.

c. Relying on case law pre-dating the enactment of

AEDPA, petitioner argues (Pet. 25-29) that the word

“offense” in Section 2255(h)(1) should be construed to

cover a claim that the movant is “not guilty of the death

penalty.” But nothing in the word “offense,” or any-

where else in the text of Section 2255(h)(1), suggests

that Congress codified any pre-AE DPA doctrine that

will help petitioner.®

Before the enactment of AE DPA, this Court had held

that the judge-made doctrines precluding successive,

abusive, or procedurally defaulted habeas applications,

see Schlup v. Delo, 513 U.S. 298, 318-319 & n.34 (1995),

could be overcome by a showing of a “fundamental mis

carriage of justice,” which had come to mean “actual in-

nocence.” /d. at 821. And the Court had also held that

an otherwise abusive habeas petition in a capital case

could proceed if the habeas petitioner could show his

“actual innocence of the death penalty,” Sawyer v. Whit-

ley, 505 U.S. 338, 340-341 (1992), although the situations

were “distinguishable” and proof of innocence of the

death penalty had to be much more “exacting” than

proof of innocence of the crime, Schlup, 513 U.S. at 325-

326.

As the Seventh Circuit has explained, “[t|he ‘actual

innocence’ exception of the prior law was judge-made,

and so its contours were appropriately judge-fashioned

Indeed, in many respects (including in Section 2255(h)(1)), AEDPA

expressly rejected prior law by imposing more restrictive limitations.

Compare, e g., Schlup v. Delo, 513 U.S. 298, 327 (1995) (rejecting clear

and-convincing standard for actual-innocence claims), with 28 U.S.C

2244(b)(2)(B)(ii), 2255(h)(1) (adopting clear-and-convineing standard for

such claims).

” The Ninth Circuit’s decision in Thompson briefly addressed the

notion that AE DPA codified the standard for claiming innocence of the

death penalty. But although the court in Thompson concluded and re-

jected one textual argument purporting to show that Congress rejected

the pre-AEDPA decisional law, it did not point to anything suggesting

that Congress adopted the pre-AEDPA law. 151 F.3d at 923-924. And

in any event, as the Ninth Circuit’s prior decision in Greenawalt J and

subsequent decision in Babbitt make clear, the basis for the holding in

Thompson is that Thompson was challenging an element of his convic-

tion for capital murder. See pp. 19-20, supra.

23

and permissibly judge-expanded.” Hope v. United

States, 108 F.3d 119, 120 (7th Cir.), cert. denied, 515

U.S. 1182 (1997). The exception in Section 2255(h)(1), on

the other hand, “is graven in statutory language that

could not be any clearer.” Jbid.'" Had Congress wished

to continue pre-AEDPA law on successive petitions

rather than to change it, it would have used one of the

phrases that appeared in this Court’s pre-AEDPA

cases—“fundamental miscarriage of justice” or “actual

innocence” —phrases that are not “self-defining” but

take their meaning from this Court’s cases, Pet. 30

(quoting Panett. v. Quarterman, 551 U.S. 930, 948-944

(2007))."’ Instead Congress made the touchstone “guiltf]

of the offense,” 28 U.S.C. 2255(h)(1) (emphasis added),

a term that 2s self-defining and is not “permissibly

judge-expanded.”””

3. In any event, even if clear and convincing evi

dence of mental retardation hypothetically would satisfy

Section 2255(h)(1)’s requirement to make a prima facie

showing of actual innocence, that proposition would be

of no use to petitioner, because he cannot possibly “es

tablish by clear and convincing evidence that no reason-

able factfinder would have found” that he was eligible

for the death penalty “in light of the evidence as a

Petitioner's reliance on a pre-AE DPA “ends of justice” exception

Lo the yudge-made rules (Pet. 31-32) thus ts unavailing post-AK DPA.

"The cases on which petitioner relies give the term “second or suc

cessive” such a specialized meaning, in each case to ensure that a claim

could be heard the first time it mpens or is exhausted—not to permit

repeated relitigation on the merits of the same claim. See Panetta, 551

U.S at 943-946; Slack v. McDanvel, 529 U.S 473, 487 (2000); Stewart v.

Martinez-Villareal, 523 U.S. 637, 643 (1998). Petitioner’s motion, by

contrast, plainly us second or successive. See pp. 15-16, swpra

The import of Section 2255(h)(1)’s reference to “the offense” ts all

the more clear in context, as Section 2255 in several places refers to col

lateral challenges to a sentence. 28 U.S.C, 2255(a) and (b).

whole.” 28 U.S.C. 2255(h)(1). That is an exceptionally

demanding standard: it requires that petitioner’s prima

facie showing be not just persuasive, but beyond reason

able factual dispute. Petitioner has not met that stan-

dard.

As petitioner agreed in the district court, to establish

mental retardation, a defendant must do more than show

that he has a low 1.Q.; he must also show that he has

“significant limitations in adaptive functioning.” Morris

v. Dretke, 413 F.3d 484, 487 (Sth Cir. 2005); see also

Atkins, 536 U.S. at 308 n.8. In considering petitioner's

first postconviction challenge to the district court's find-

ing that petitioner is not mentally retarded, the court of

appeals acknowledged that petitioner’s I.Q. is low. See

421 F.3d at 312-813. Rather, it is with respect to the

clement of adaptive deficits that the government has

thoroughly refuted petitioner’s mental retardation

claim, and on that score, petitioner’s proffered evidence

adds little to his case.

The evidence at trial showed that petitioner demon-

strated adaptability by working as a drug dealer; by

concocting cover stories after he was arrested; by mak-

ing excuses to police when they found on his person the

key to the motel room in which Lisa Rene was held and

raped; and by burning his clothes after her murder. 421

F.3d at 313." The government also presented evidence

that, while incarcerated, petitioner engaged in various

activities inconsistent with mental retardation, such as

writing letters to fellow inmates; complaining when he

received incorrect change from the prison commissary;

receiving letters and newspapers; reading aloud from

newspapers; writing request slips for various services;

'’ Notably, this evidence pertains to petitioner’s documented behavior

outside the prison environment, which petitioner argues is more “rignd

ly controlled” and hence less probative. Pet. C.A. Reply Br. &.

25

preparing written grievances; submitting names and

addresses of people for his visitation list; and sneaking

into the women’s section of the jail. /d. at 313-314 n.15.

The district court, in rejecting petitioner’s mental retar-

dation claim, found that this and other evidence re-

flected that petitioner “has adapted to the criminal life

that he chose,” and that he has “the ability to communi-

ate with others, [to] care for himself, [to] have social

interaction with others, [to] live within the confines of

the ‘home’ he has been in since he was sixteen, [to] use

community resources within this home, [and to] read,

write, and perform some rudimentary math.” /d. at 313.

And the court of appeals found that the evidence sup-

porting the district court’s ruling was “substantial.” 162

F.3d at 353.

Petitioner’s most recent submission does not signifi-

cantly detract from the strength of the above evidence.

It consists primarily of the findings of three medical

professionals in connection with petitioner’s application

to the Social Security Administration for disability bene-

fits based on a sinus condition one year before the mur-

der.’ One of the doctors, C.M. Rittlemeyer, who con-

'* The Social Security records also contain a letter from petitioner's

school district suggesting that he was enrolled in special education

classes while in school, contrary to the recollections of petitioner's

teachers that he had not been in special education. See Pet. C.A. Decl.

of Steven J. Wells Exh G, at G.17 (Wells Decl.) (stating in full: “The

above student’s Special Education records were destroyed in 1988. A

letter was mailed to parents at the last known address, telling them

they could have the records if they wanted them. There was no re-

sponse to the letter.”). Any further proof of petitioner's limited intel-

ligence is cumulative of already-presented evidence and has little bear-

ing on the question whether he suffers from sufficient adaptive deficits

to qualify as mentally retarded Petitioner previously argued that he

was not placed in special education because of racial discrimination tn

the school district; in rejecting petitioner's arguments related to that.

claim, both the court of appeals and the district court observed that “the

26

ducted a general physical examination of petitioner, in-

cluded in his diagnosis: “Mental retardation. Flat feet.

Chronic sinus problems and allergies.” Gov't C.A. Br.

16. The record does not reflect that Dr. Rittlemeyer did

any [.Q. or adaptive skills testing. /b¢d. Given that he

was conducting a physical examination, his diagnosis of

mental retardation may well have rested on petitioner’s

self-reporting.

Dr. Edward Hackett, a psychologist, diagnosed peti-

tioner with mild mental retardation based on an 1.Q. of

59, but noted that petitioner “manifested many inconsis-

tencies regarding his street behavior and curent at-

tempts to seek employment.” Wells Decl. Exh. G, at

G.16. In supplemental information provided to the So-

cial Security Administration, he noted that “[t]here may

have been some malingering” because “[t]he IQ scores

are not normal considering history.” /d. at G.14. Peti-

tioner was “quite verbal” and the [.Q. scores were lower

on the performance test than the verbal test, whereas

“{a] person that displays antisocial personality,” as peti-

tioner does, “usually scores higher on performance.”

Ibid. He coneluded that petitioner “was * * * asome-

what mild|ly] retarded con man, but very street wise.”

[bid.; Gov’t C.A. Br. 17.

Another psychologist, Dr. Charles Spellman, con-

ducted another psychological examination “in order to

better ascertain eligibility for [disability] benefits.”

Wells Deel. Exh. G, at G.11. He diagnosed petitioner as

being mentally retarded based on his I.Q. “estimation”

(“69 or lower”), petitioner’s self-reporting regarding his

level of functioning, and his observations of petitioner,

government’s effort [in the mental-retardation proceedings] did not

depend in any significant respect on [petitioner’s| non-enrollment in

special education courses.” 421 F.3d at 314 n.16 (quoting 392 F.3d at

799); see 2008 WL 23109787, at *8.

27

who had an incentive to exaggerate his mental deficiency

in order to obtain disability benefits. /d. at G.13; Gov't

C.A. Br. 17. Dr. Spellman saw no evidence of malinger-

ing, Wells Deel. Exh. G, at G.13, but unlike Dr. Hackett,

who performed a Wechsler 1.Q. test and suspeeted ma-

lingering, Dr. Spellman did not report performing any

such testing

This evidence, “viewed in light of” the expert and

other evidence that the government presented at the

penalty phase, 28 U.S.C. 2255(h)(1), would not compel

any reasonable faetfinder to conclude by clear and con-

vineing evidence that petitioner is mentally retarded.

Indeed, one of petitioner’s three reports suspected ma-

lingering; one did not reflect any I.Q. test; and one was

merely a physical examination. And the government’s

evidence showed that. petitioner has demonstrated adap-

tive skills in a number of ways—ways particularly tai-

lored to the criminal and correctional environments in

which petitioner has spent his adolescence and adult-

hood, including petitioner’s attempt to cover up his par-

ticipation in the murder at issue here. See 421 F.3d at

313 n.15; 2003 WL 23109787, at *12-*14." For those

reasons, petitioner could not obtain certification of his

' In support of his motion, petitioner also submitted declarations

from 11 family members, friends, and acquaintances, five of whom also

testified at the penalty phase of ms trial and one of whom was inter-

viewed by petitioner’s counsel before trial. Pet. C.A. Br. 29 n.11. Peti-

tioner’s use of the declarations is time-barred because petitioner could

have obtained them by the exercise of due diligence within one year of

his conviction. See 28 U.S.C, 2256(f1)(4). In the court of appeals, peti-

tioner offered no reason why these declarations would be timely, except

to argue that mental retardation or actual innocence should excuse com

pliance with the statute of limitations. Pet. C.A. Reply Br. 14-15. In

any event, given that they come from interested sources, the declara

tions have debatable probative value.

28

successive motion even if his renewed claim of mental

retardation were cognizable under Section 2255(h)(1).

4. Because the Constitution bars the execution of

mentally retarded defendants, petitioner argues briefly

(Pet. 35-37) that, if Section 2955 (h)(1) precludes him

from relitigating the question of his mental retardation

based on the proffered evidence, then the provision is to

that extent unconstitutional. Petitioner does not con-

tend that Section 2255’s limitations on successive post-

conviction filings are an unconstitutional suspension of

the writ of habeas corpus.'° Rather, he contends that he

is entitled to another hearing on his Eighth Amendment.

claim by either the Eighth Amendment itself or the Due

Process Clause. Both contentions lack merit.

Even before Atkins, petitioner had an adequate op-

portunity to present his mental-retardation theory, both

to the jury (which considered the mitigating factor

whether petitioner is or may be retarded) and to the

court. Petitioner appears to contend that he is entitled

to unlimited additional opportunities to persuade the

courts that he is mentally retarded, and that any statute

precluding the possibility of relief on a future meritori-

ous Atkzns claim is unconstitutional. That theory, for

which petitioner offers no support, would prove far

too much: it reads the Eighth Amendment to require

endless opportunities to relitigate any constitutional

fact that, if proved, would exempt the defendant from

the imposition of the death penalty (for instance, a

felony-murder defendant’s lack of culpable intent, see

Tison v. Arizona, 481 U.S. 137, 155-158 (1987); 18 U.S.¢

'’ The amicus makes such an argument, Advocates for Human Rights

Br. 16-18, but it is unavailing. See Felker v. Turpin, 518 U.S. 651, 666

(1996); see also 28 U.S.C 2255(e) (savings clause permitting federal

defendants to file habeas petitions if Section 2255 is an inadequate or

ineffective remedy).

YQ

3991(a)(2), or the defendant’s age at the time of the of-

fense, see Roper v. Simmons, 543 U.S. 551 (2005); 18

U.S.C. 3591(a)). And petitioner’s constitutional theory

would not stop there: because even on petitioner’s read-

ing, Section 2255(h)(1) precludes relief unless petitioner

establishes not only a prima facie case of mental retar-

dation, but a prima facie case that any reasonable

factfinder would find him mentally retarded, petitioner’s

theory apparently would hold the statute uneconstitution-

al in those close eases in which reasonable factfinders

may disagree.

Nothing in the Kighth Amendment or the Due Pro-

cess Clause requires such a result. The constitutionally

valid limits that Congress has placed on posteonviction

relief, see note 16, supra, extend equally to Eighth

Amendment claims. Cf., e.g., Stewart v. LaGrand, 526

U.S. 115, 119-120 (1999) (per curiam) (elaim that method

of execution violated Eighth Amendment was procedur-

ally defaulted). And in this case, petitioner’s claimed

mental retardation has long been a live issue and peti-

tioner has actively litigated it for many years, both on

direct review and on his first motion for postconviction

relief. Cf. Ford v. Wainwright, 477 U.S. 399, 424-425

(1986) (Powell, J., concurring in part and concurring in

the judgment) (determination of competency to be exe-

cuted must involve an “opportunity [for defendant] to be

heard,” but need not be a “full-seale ‘sanity trial’”).""

This Court noted in Atkins that it would “leave to the

State[s] the task of developing appropriate ways to en-

foree the constitutional restriction upon |their] execu-

tion of [capital] sentences” against mentally retarded

defendants. 536 U.S. at 317. Well before Atkins, in the

“ee

’ Even once “judicial process has been exhausted,” petitioner also

may pursue clemency as a further “‘fail safe.” Harbison v. Bell, 129

S. Ct. 1481, 1490 (2009) (citations omitted); see 18 ULS C. 3599(e),

ol)

FDPA and AEDPA, Congress determined both that the

federal government would not execute mentally re-

tarded defendants and that a defendant would ordi-

narily be limited to two opportunities to litigate that

issue—direct review and a first Section 2255 motion—

unless the defendant can meet the standards of Section

2255(h). Because petitioner does not meet those stan-

dards, neither the Eighth Amendment nor the Due Pro-

cess Clause requires that his claim be heard again."

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

LANNY A. BREUER

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

OCTOBER 2010

'* Because petitioner’s constitutional claim lacks merit, so does his

argument (Pet. 24-25) that Section 2255(h)(1) should be construed, des-

pite its unambiguous text, to allow his successive motion in order to

avoid an unconstitutional result.