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Fulks v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

September 20, 2019

J. E. KRUEGER, Respondent.



         Petitioner 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 denied.

         Mr. 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, [1] has diminished cognitive functioning, and suffers from fetal alcohol spectrum disorder.

         Ultimately, 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 with prejudice.

         I. Background

         The 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.

         Mr. 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.

         A jury 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).

         On June 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 II”).

         The Supreme Court denied Mr. Fulks' petition for writ of certiorari on October 7, 2013. See Fulks v. United States, 571 U.S. 941 (2013).

         On 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.[2] 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.

         Mr. 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.

         II. Legal Standards

         The 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).[3] 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.”).

         However, 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).

         The 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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.

         Federal 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).

         The 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.

         The 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.

         Davenport-who 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 vacated.” Id.

         Nichols' 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. (emphasis added).

         Given 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.”).

         Ultimately, 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 establish:

(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 innocent.

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).

         After 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.

         Another instance was in the en banc Seventh Circuit's recent decision in Webster.[4]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 did.

         The 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 marks omitted)).

         Ultimately, 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.

         Even if 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 penalty.” Id.

         After 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 ยง 2241 in several important respects. These limitations, as discussed in detail below, ...

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