United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS
R. SWEENEY II, JUDGE
Chadrick Fulks 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 District of South Carolina. His
convictions and sentence were affirmed on direct appeal, and
his post-conviction motion under 28 U.S.C. § 2255 was
Fulks now seeks a writ of habeas corpus from this Court
pursuant to 28 U.S.C. § 2241. He presents two claims,
both of which argue that he is categorically ineligible for
the death penalty under the Eighth Amendment because he is
intellectually disabled or functionally equivalent thereto.
In support of his claims, Mr. Fulks presents extensive
evidence that he has an intellectual disability,
diminished cognitive functioning, and suffers from fetal
alcohol spectrum disorder.
the Court cannot reach the merits of Mr. Fulks' claims
because they are barred by 28 U.S.C. § 2255(e). Mr.
Fulks cannot show that a structural problem with § 2255
prevented him from having a reasonable opportunity for a
reliable judicial determination of these claims in his §
2255 proceedings. Accordingly, his claims must be dismissed
facts underlying Mr. Fulks' criminal convictions are
irrelevant to the legal issues presented in his habeas
petition. They are set forth in detail in the opinion
affirming Mr. Fulks' convictions and sentence on direct
appeal. See United States v. Fulks, 454 F.3d 410
(4th Cir. 2006) (“Fulks I”). Relevant to
Mr. Fulks' habeas petition is the procedural history of
his other challenges to his convictions and sentence. This
procedural history is set forth below.
Fulks and his co-defendant, Brandon Basham, were indicted in
December 2002 in the United States District Court for the
District of South Carolina. The Grand Jury returned a
Superseding Indictment on April 23, 2003, charging Mr. Fulks
and Mr. Basham with eight counts. In May 2004, Mr. Fulks
pleaded guilty to all eight counts. Two of those
charges-carjacking resulting in death, see 18 U.S.C.
§ 2119(3), and kidnapping resulting in death,
see 18 U.S.C. § 1201-made Mr. Fulks eligible
for the death penalty.
unanimously recommended that Mr. Fulks be sentenced to death
on both death-eligible counts. The sentencing court imposed
the death sentence on both counts and sentenced Mr. Fulks to
744 months' imprisonment on the remaining six counts to
run consecutively to the two death sentences. The United
States Court of Appeals for the Fourth Circuit affirmed Mr.
Fulks' convictions and sentence in Fulks I. The
United States Supreme Court denied Mr. Fulks' petition
for writ of certiorari on June 25, 2007. See Fulks v.
United States, 551 U.S. 1147 (2007).
23, 2008, Mr. Fulks filed a motion to vacate his convictions
and sentence pursuant to 28 U.S.C. § 2255. Notably, Mr.
Fulks did not raise a claim under Atkins v.
Virginia, 536 U.S. 304 (2002), in his § 2255
motion. The District Court denied his motion, and, on June
26, 2012, the Fourth Circuit affirmed. See United States
v. Fulks, 683 F.3d 512 (4th Cir. 2012) (“Fulks
Supreme Court denied Mr. Fulks' petition for writ of
certiorari on October 7, 2013. See Fulks v. United
States, 571 U.S. 941 (2013).
January 29, 2015, Mr. Fulks filed the instant habeas petition
pro se. Approximately a year later, the Federal Community
Defender Office from the Eastern District of Pennsylvania was
appointed to represent Mr. Fulks in this
action. See Dkt. 22. After nearly three
years of extending the deadline to file a reply brief, the
Court granted Mr. Fulks' request to file an amended
habeas petition. See Dkt. 54.
Fulks filed an amended habeas petition on March 8, 2019.
Although it became fully briefed on July 12, 2019, the Court
ordered supplemental briefing on Mr. Fulks' second claim,
since the parties did not agree on the legal basis for the
claim. That supplemental briefing was recently completed, and
Mr. Fulks' habeas petition is now ripe for decision.
primary legal issue the Court must resolve is whether Mr.
Fulks meets the requirements of the “Savings
Clause” found in 28 U.S.C. §
2255(e). Prior to the enactment of 28 U.S.C. §
2255 in 1948, federal prisoners wishing to file a collateral
attack on their convictions or sentences were required to
petition for a writ of habeas corpus-codified in 28 U.S.C.
§ 2241-in the federal district court in which they were
incarcerated. In re Davenport, 147 F.3d 605, 608
(7th Cir. 1998). Congress passed § 2255 “to change
the venue of postconviction proceedings brought by federal
prisoners from the district of incarceration to the district
in which the prisoner had been sentenced.” Id.
(citing United States v. Hayman, 342 U.S. 205,
212-19 (1952)). Unlike a § 2241 petition, § 2255
motions “must be filed in the district of
conviction.” Webster v. Daniels, 784 F.3d
1123, 1124 (7th Cir. 2015) (en banc). “As a rule, the
remedy afforded by section 2255 functions as an effective
substitute for the writ of habeas corpus[, 28 U.S.C. §
2241, ] that it largely replaced.” Id.;
see Chazen v. Marske, __ F.3d __, 2019 WL 4254295,
*3 (7th Cir. Sept. 9, 2019) (“As a general rule, a
federal prisoner wishing to collaterally attack his
conviction or sentence must do so under § 2255 in the
district of conviction.”).
Congress created the Savings Clause to serve as a
“safety hatch.” Davenport, 147 F.3d at
609. It permits use of § 2241 if it “appears that
that the remedy by motion [under § 2255] is inadequate
or ineffective to test the legality of  detention.”
28 U.S.C. § 2255(e).
Savings Clause was mostly inconsequential until Congress
passed the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) in 1996. Among other things, AEDPA
limits federal prisoners to one § 2255 motion attacking
their conviction or sentence. See 28 U.S.C. §
2244(b); Tyler v. Cain, 533 U.S. 656, 661-662
(2001). The appropriate court of appeals must authorize
second or successive § 2255 motions before the district
court has jurisdiction to entertain them. See 28
U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255(h). In
order to obtain authorization from the court of appeals, the
petitioner must have
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). Many prisoners seek to raise claims
that do not meet one of the two avenues for authorization.
Thus, they file habeas petitions under § 2241 in the
district of their incarceration. To proceed under §
2241, however, they must pass through the Savings Clause,
which is the critical legal issue in this case-whether Mr.
Fulks can pass through the Savings Clause and thus use §
2241 to raise his claims.
courts across the country disagree regarding the
circumstances under which the Savings Clause is met. See,
e.g., Shepherd v. Krueger, 911 F.3d 861, 862-63
(7th Cir. 2018) (“[T]he scope of [§ 2255(e)] is
controversial both within this circuit and beyond.”);
Camacho v. English, 872 F.3d 811, 815 (7th Cir.
2017) (Easterbrook, J., concurring) (noting that Seventh
Circuit decisions regarding the scope of § 2255(e)
“have not persuaded other circuits” and urging
the Supreme Court “to decide whether § 2255(e)
permits litigation of th[e] kind” authorized by the
Seventh Circuit). Although Mr. Fulks was convicted and
sentenced to death in the Fourth Circuit, this Court applies
Seventh Circuit law to determine whether Mr. Fulks can
proceed under § 2241. See Webster, 784 F.3d at
1135-39 (applying Seventh Circuit law to determine whether
the Savings Clause is met).
Seventh Circuit has found § 2255 inadequate or
ineffective only in limited circumstances. The most
significant cases in which this occurred, at least for Mr.
Fulks' purposes, are set forth below.
Seventh Circuit first found § 2255 inadequate or
ineffective in Davenport. There, the Seventh Circuit
addressed collateral attacks by two federal inmates-Davenport
and Nichols. The Seventh Circuit framed the inquiry as
follows: “To decide what ‘adequacy' means . .
. [in § 2255(e)] requires determining what the essential
function of habeas corpus is and whether it is impaired in
the circumstances before us by the limitations on the use of
the remedy provided in section 2255.”
Davenport, 147 F.3d at 609. It then explained that
“[t]he essential function is to give a prisoner a
reasonable opportunity to obtain a reliable judicial
determination of the fundamental legality of his conviction
and sentence.” Id.
sought to challenge whether his 1981 burglary conviction
qualified as a predicate crime under the Armed Career
Criminal Act-could have raised that challenge during both his
direct appeal and when he filed his first § 2255 motion
but chose not to raise such a claim. Davenport thus could not
meet the Savings Clause because “[n]othing in 2555 made
the remedy provided by that section inadequate to enable
Davenport to test the legality of his imprisonment. He had an
unobstructed procedural shot at getting his sentence
case, the Seventh Circuit held, was different. Unlike
Davenport, during Nichols direct appeal and § 2255
proceedings, the “law of the circuit was so firmly
against him” for the claim he wished to raise that it
would have been futile to raise it. Id. at 610. The
Supreme Court, however, had since overruled the Seventh
Circuit's interpretation of the relevant statute and made
that ruling retroactive. Thus “Nichols could not [have]
use[d] a first motion under [§ 2255] to obtain relief on
a basis not yet established by law, ” nor could he have
received authorization to file “a second or other
successive motion . . . because the basis on which he
[sought] relief [was] neither newly discovered evidence nor a
new rule of constitutional law.” Id.
that the Supreme Court's decision of statutory
interpretation applied retroactively, the Seventh Circuit
explained: “A procedure for postconviction relief can
fairly be termed inadequate when it is so configured as to
deny a convicted defendant any opportunity for
judicial rectification of so fundamental a defect in his
conviction as having been imprisoned for a nonexistent
offense.” Id. at 611; see Id.
(“A federal prisoner should be permitted to seek habeas
corpus only if he had no reasonable opportunity to obtain
earlier judicial correction of a fundamental defect in his
conviction or sentence because the law changed after his
first 2255 motion.”).
Davenport created a three-part test used to
determine if a petitioner can invoke the Savings Clause and
proceed under § 2241. To do so, a petitioner must
(1) that he relies on not a constitutional case, but a
statutory-interpretation case, so [that he] could not have
invoked it by means of a second or successive section 2255
motion, (2) that the new rule applies retroactively to cases
on collateral review and could not have been invoked in his
earlier proceeding, and (3) that the error is grave enough .
. . to be deemed a miscarriage of justice corrigible
therefore in a habeas corpus proceeding, such as one
resulting in a conviction for a crime of which he was
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016)
(citation and quotation marks omitted); see
Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019).
Davenport, the Seventh Circuit has infrequently
found the Savings Clause satisfied in circumstances beyond
those articulated in Davenport. One such instance
was in Garza v. Lappin, 253 F.3d 918 (7th Cir.
2001). In Garza, after Garza's direct appeal and
§ 2255 proceedings were complete, the Inter-American
Commission on Human Rights (the “Commission”)
determined that Garza's rights were violated during the
penalty phase of his proceedings. Garza, 253 F.3d at
919. Garza sought to use this favorable decision to argue
that he was entitled to habeas relief. Id. Looking
to Davenport, the Seventh Circuit reasoned that
because Garza could not meet either avenue set forth in
§ 2255(h) to file a second or successive § 2255
motion, and because it was “literally impossible”
for Garza to have raised the Commission's favorable
decision in his first § 2255 proceeding because the
Commission had not yet issued its decision, § 2255 did
not then nor had it ever “provided an adequate avenue
for testing Garza's present challenge to the legality of
his sentence.” Id. at 922-23.
instance was in the en banc Seventh Circuit's recent
decision in Webster.Webster was a federal prisoner who
had been sentenced to death. He raised an Atkins
claim in a § 2241 petition. Specifically, Webster wished
to present “newly discovered evidence that would
demonstrate that he [was] categorically and constitutionally
ineligible for the death penalty under . . .
Atkins.” Webster, 784 F.3d at 1125.
The question was whether the Savings Clause permitted him to
proceed via § 2241, and the Seventh Circuit held that it
Seventh Circuit began its analysis by reviewing
Davenport and its progeny. Although noting some
differences in its Savings Clause cases, the Seventh Circuit
synthesized them as follows: “All of these decisions
hold . . . that there must be some kind of structural problem
with section 2255 before section 2241 becomes available. In
other words, something more than a lack of success with a
section 2255 motion must exist before the savings clause is
satisfied.” Webster, 784 F.3d at 1136; Poe
v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016)
(“[Meeting the Savings Clause] generally requires a
structural problem in § 2255 [that] forecloses even one
round of effective collateral review, unrelated to the
petitioner's own mistakes.” (citation and quotation
the Seventh Circuit held that “[s]everal
considerations” showed that “in the circumstances
presented . . . the savings clause permits Webster to resort
to a petition under section 2241.” Id. at
1138. First, the Seventh Circuit reasoned that the language
of subsections (a) and (e) of § 2255 suggests that the
Savings Clause is met when § 2255 prevents a prisoner
from challenging the “‘legality of [the
prisoner's] detention.'” Id.
(quoting 28 U.S.C. § 2255(e)). Second, the Seventh
Circuit noted that the fact that “the Supreme Court had
not yet decided Atkins . . . at the time AEDPA was
passed supports the conclusion that the narrow set of cases
presenting issues of constitutional ineligibility for
execution is another lacuna in the statute.”
Id. In other words, the problem with § 2255 for
Webster was that, after his conviction and sentence,
“the Supreme Court ha[d] now established that the
Constitution itself forbids the execution of certain
people.” Id. at 1139.
the language of the Savings Clause was not enough to show
that it was met, the Seventh Circuit explained that
“the next step would be to take into account the fact
that a core purpose of habeas corpus is to prevent a
custodian from inflicting an unconstitutional
sentence.” Id. “To hold otherwise,
” the Seventh Circuit continued, “would lead in
some cases-perhaps Webster's-to the intolerable result of
condoning an execution that violates the Eighth
Amendment.” Id. Thus, the Seventh Circuit held
that “there is no categorical bar against resort to
section 2241 in cases where new evidence would reveal that
the Constitution categorically prohibits a certain
setting forth this broad holding, the Seventh Circuit applied
the holding to the specific circumstances of Webster's
Atkins claim. In doing so, it explicitly limited the
availability of § 2241 in several important respects.
These limitations, as discussed in detail below, ...