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Successive Federal Habeas Petitions and Section 2241

Guest post by Ian Sonego:

The en banc Seventh Circuit has ruled 6-5 that a federal prisoner under a death sentence may circumvent the prohibition upon successive collateral attacks in 28 U.S.C. § 2255(h), which is similar to 28 U.S.C. § 2244(b)(2)[limiting successive habeas petitions filed by state prisoners in federal courts], by filing a habeas petition under 28 U.S.C. § 2241 in the district where he is incarcerated instead of the district where he was convicted and sentenced. Webster v. Daniels, 784 F.3d 1123 (7th Cir. May 1, 2015)(en banc)(No. 14-1049).

Federal prisoners under death sentences are incarcerated in the federal prison in the State of Indiana, which is within the Seventh Circuit.
This federal prisoner (Webster) claims to be sufficiently mentally retarded or intellectually disabled to be exempt from the death penalty. Webster was convicted in the federal court in Texas of kidnapping resulting in death of 16 year old Lisa Rene and sentenced by a jury to death for that offense. Webster was also convicted of conspiracy to commit kidnapping and using and carrying a firearm during a crime of violence.

According the Seventh Circuit's opinion, Webster was part of a three-man group that ran a marijuana business in Arkansas, but also purchased marijuana in Texas. Webster and his fellow conspirators went to Texas and made a deal with Lisa's brother Neil Rene and his partner to buy marijuana with an advance payment of $4700, but later Rene and his partner reported that the money was stolen along with their car. Apparently as punishment for the failure to deliver the marijuana or return the $4700, Webster and three others abducted Lisa by force and eventually took her to Arkansas. During the kidnapping, Webster and two of the others each raped Lisa. To prevent Lisa from testifying about their crimes, the group decided to kill Lisa. Webster and two of the others participated in trying to beat Lisa to death with a shovel, then gagged her, stripped her, poured gasoline on her, and then buried her alive. 

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court ruled that mental retardation, now called intellectual disability, is a valid constitutional basis to prohibit a death sentence, i.e., a categorical exemption from the death penalty. The federal trial court in Texas held a hearing on that claim and determined that Webster was not exempt from the death penalty. The trial jury also considered the mental retardation evidence and still imposed a death sentence. That ruling was upheld on direct appeal by the Fifth Circuit. United States v. Webster, 162 F.3d 308 (5th Cir. 1998). 

Webster raised the mental retardation claim again in his first collateral attack under 28 U.S.C. § 2255, which was rejected by the federal trial court and the Fifth Circuit. United States v. Webster, 421 F.3d 308 (5th Cir. 2005). After that, the Fifth Circuit denied Webster permission to file a successive collateral attack so that he could re-litigate the mental retardation claim again (for the third time) based upon allegedly newly discovered evidence.  The basis of the denial was that the statute limiting a successive petition, section 2255(h), requires newly discovered evidence to establish innocence of the capital offense rather than merely relate to death penalty sentencing factors. In re Webster, 605 F.3d 256 (5th Cir. 2010), cert. denied, 131 S.Ct. 794 (2010). Webster's current petition filed under section 2241 is essentially a mechanism to raise that last mental retardation exemption claim in another court and under another collateral attack statute.

Section 2241 is the original habeas law and is generally viewed as supplemented, superseded, or limited by section 2254 governing habeas petitions by state prisoners and by section 2255 governing motions to vacate by federal prisoners. A key purpose of section 2255 was to require that federal prisoners file collateral attacks in the federal courts where the prisoners were convicted and sentenced instead of the federal courts where the prisoners merely happen to be imprisoned. The court where the prisoner was convicted and sentenced would have ready access to the court record and trial evidence regarding the conviction and sentence. In most cases the witnesses would be located in that area where the trial or sentencing occurred, and normally the reviewing judge would already be familiar with the case as the judge who imposed the sentence.

In this case, the Seventh Circuit relied upon Section 2255(e) to authorize filing a habeas petition under Section 2241. Section 2255(e) states:

"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." [Emphasis added.]
The Seventh Circuit ruling in this case allows the federal prisoner (Webster) to shift his case from the district where he was convicted and sentenced (N.D. Texas) to another district (S.D. Indiana) and in this case to another circuit, from the Fifth Circuit to the Seventh Circuit. The Seventh Circuit remanded the case back to the U.S. District Court in Indiana for an evidentiary hearing on whether the alleged newly discovered evidence could have been discovered earlier with due diligence and whether it actually proves that the prisoner is exempt from the death penalty based upon mental retardation (also known as intellectual disability), even though the mental retardation claim was previously rejected by the Fifth Circuit three times. The Seventh Circuit noted that the evidence at issue existed at the time of trial and was allegedly not provided to the prisoner's trial counsel by the Social Security Administration in spite of a written request for it. The Seventh Circuit assumed that, even if Webster himself knew about it, Webster's mental impairment prevented Webster himself from informing his counsel about it.
Attempts by prisoners under death sentences to re-litigate previously rejected mental retardation claims are common because mental retardation constitutes a categorical exemption from capital punishment. See, e.g., In Re Hill, 777 F.3d 1214 (11th Cir. 2015)(denying permission to file a successive habeas petition in order to re-litigate a previously rejected mental retardation claim).
The en banc Seventh Circuit's ruling creates an apparent conflict with the Fifth Circuit's ruling in the same case. The Seventh Circuit based its ruling in this case in part upon its prior ruling. In Re Davenport, 147 F.3d 605 (7th Cir. 1998), invoking section 2255(e) to permit filing a successive petition under section 2241 as to a claim of actual innocence of the crime based upon a retroactive Supreme Court ruling that limited the definition of the crime as a matter of statutory interpretation. But arguments to expand that ruling to other subjects have been rejected by other circuits, see Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999); United States v. Barrett, 178 F.3d 34 (1st Cir. 1999); and Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011)(collecting cases). Section 2255(e) allows federal prisoners to file habeas petitions under section 2241 in those cases in which applying section 2255 would be unconstitutional and was included by Congress as a safety mechanism to preempt claims that section 2255 operates unconstitutionally in particular cases.  As explained by Judge Easterbrook in his dissenting opinion in Webster's case, counsel for Webster argued that a federal prisoner should be allowed to file a successive habeas petition under section 2241 any time doing so would serve the "interests of justice," a nearly unlimited criterion that Congress eliminated from the federal habeas statutes when it amended those statutes as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Congress intended for the AEDPA to simplify and expedite federal court review of death sentences and federal habeas petitions.

The U.S. Supreme Court has upheld the authority of Congress to enact limits on successive habeas petitions. Felker v. Turpin, 518 U.S. 651 (1996). However, in that case, the U.S. Supreme Court held that the Antiterrorism and Effective Death Penalty Act of 1996 still permitted prisoners to file habeas petitions directly in the U.S. Supreme Court because the statutory restrictions on filing habeas petitions do not govern petitions directly filed with the U.S. Supreme Court. See, e.g., In re Davis, 557 U.S. 952 (2009), in which the Supreme Court referred a death penalty case with a claim of actual innocence of the capital offense to the U.S. District Court for a hearing.

In Sawyer v.  Whitley, 505 U.S. 333 (1992), the U.S. Supreme Court held "actual innocence" of death penalty eligibility criteria is a sufficient ground to excuse procedural default in failing to present a constitutional claim to invalidate a death sentence which was challenged in a prior habeas petition, but the petitioner's procedural default requires that the petitioner prove his claim by clear and convincing evidence such that no juror would find him eligible for the death penalty.

The Seventh Circuit's ruling is apparently based in part upon the implicit conclusion that a prisoner's claim that any newly discovered evidence which might invalidate his sentence or exempt him from the death penalty or make him actually innocence of the criteria for the death penalty must always justify a successive collateral attack. However, 28 U.S.C. § 2244(b)(1), as added by the AEDPA in 1996, prohibits re-litigation of the same claim decided in a prior habeas proceeding. Whether adding more evidence to an old claim makes it into a new claim is disputed among the federal courts. Thus, the reasoning employed in this case could also be applied to successive petitions filed by state prisoners who seek to circumvent the habeas re-litigation restrictions in section 2244(b) and section 2254 by filing habeas petitions under section 2241.

However, the specific language of section 2244(b)(2)(B)(i), which limits the authority of federal courts to permit successive habeas petitions, by specifying that "the factual predicate" for the claim must be based upon newly discovered evidence in order to justify a successive habeas petition, would seem to rule out merely adding evidence to an old claim as the basis to justify a successive habeas petition. Moreover, adding evidence or facts to an old claim is a standard tactic in habeas cases employed to circumvent procedural limits on habeas review of already decided claims. The U.S. Supreme Court previously ruled that merely because later discovered evidence makes an already known claim stronger is a not a sufficient reason to justify raising the claim in violation of the restrictions of filing successive habeas petitions that repeatedly challenge the same judgment imposing a death sentence. "If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim." McCleskey v. Zant, 499 U.S. 467, 498 (1991). In McCleskey v. Zant, the Supreme Court disapproved the "interest of justice" standard as the criteria governing when a successive petition is justified, but that was the standard argued by Webster's attorney in his case.

[Editor's Note:  Last Monday, after this discussion was written, the Solicitor General requested and received from Justice Kagan an extension of time to file a certiorari petition.  The application is 15A84.]

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