Argued July 24, 2014
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:12-cv-86-WTL-WGH -- William T. Lawrence, Judge.
For Bruce Webster, Petitioner - Appellant: Steven J. Wells, Attorney, Timothy J. Droske, Attorney, Kirsten E. Schubert, Attorney, Dorsey & Whitney, Minneapolis, MN.
For JOHN F. CARAWAY, Warden, Respondent - Appellee: James Wesley Hendrix, Attorney, Office of The United States Attorney, Northern District of Texas, Dallas, TX.
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
Easterbrook, Circuit Judge.
Bruce Webster was convicted of a federal capital offense and sentenced to death. Details of the crime, which do not matter for current purposes, may be found in United States v. Webster, 392 F.3d 787 (5th Cir. 2004) (direct appeal), and United States v. Webster, 421 F.3d 308 (5th Cir. 2005) (28 U.S.C. § 2255). The Fifth Circuit also denied Webster's application for permission to pursue a second collateral attack. In re Webster, 605 F.3d 256 (5th Cir. 2010). Having exhausted his opportunities within the Fifth Circuit, where the crime and trial occurred, Webster asked for collateral relief under 28 U.S.C. § 2241
in the Southern District of Indiana, where he is confined.
Webster's guilt, and the heinousness of his acts, are uncontested. He sought to persuade a jury, the district judge, and the judges of the Fifth Circuit that he is not death-eligible because he is mentally retarded. The Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that the Constitution forbids the execution of persons who are retarded or unable to understand what capital punishment means and why they have been sentenced to die. See also Hall v. Florida, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). Webster did not need to rely on the Constitution, however, for he has the protection of a federal statute: " A sentence of death shall not be carried out upon a person who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person." 18 U.S.C. § 3596(c). At trial Webster introduced evidence from multiple experts who concluded that his IQ is less than 70 and that he is retarded. The prosecutor responded with evidence from other experts who concluded that Webster is not retarded and was malingering in an effort to evade punishment. The jury sided with the prosecution, the judge sentenced Webster to death, and the Fifth Circuit held both on direct appeal and in a collateral attack under § 2255 that ample evidence supports this decision. (Webster does not argue that he is unable to understand the concept of capital punishment or why he has received that sentence.)
In the current proceeding Webster does not contend that the law--or his mental condition--has changed since the Fifth Circuit's decisions on direct and collateral review. Instead he contends that he has new evidence bearing on the question that the jury decided adversely to him. His current legal team has acquired records that the Social Security Administration created when he applied for disability benefits. The SSA sent him to see a psychologist, who administered an IQ test that produced a score under 60. This psychologist, plus two consulting physicians, concluded that he is retarded. The SSA nonetheless classified him as not disabled. He contends that the three medical reports could have changed the outcome of the trial, since the Social Security proceedings predated the crime of which he stands convicted--and therefore, his lawyers insist, occurred before he had an incentive to deceive people about his mental condition.
But the district court dismissed the § 2241 petition without a hearing, ruling that it is blocked by § 2255(e), which reads: " 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 ... unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." The district judge saw nothing " inadequate or ineffective" about § 2255, which Webster had been able to use to obtain a decision by the Fifth Circuit about his mental condition. Webster v. Lockett, (S.D. Ind. Nov. 13, 2013). The judge thought that a prisoner's own failure to present evidence does not demonstrate statutory inadequacy or ineffectiveness.
We agree with that conclusion. Taken in the light most favorable to Webster--which is to say, on the assumption that the evidence is " newly discovered" and might have affected the jury's evaluation--the arguments now presented tend to impugn the ...