Argued January 7, 2015
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:12-cv-086-WTL-WGH -- William T. Lawrence, Judge.
For Bruce Carneil Webster, Petitioner - Appellant: Steven J. Wells, Attorney, Timothy J. Droske, Attorney, Kirsten E. Schubert, Attorney, Dorsey & Whitney Llp. Minneapolis, MN.
For CHARLES A. DANIELS, Warden, United States Penitentiary, Terre Haute, Respondent - Appellee: James Wesley Hendrix, Attorney, Office of The United States Attorney, Northern District of Texas, Dallas, TX.
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge, with whom BAUER, KANNE, SYKES, and TINDER, Circuit Judges, join, dissenting.
Wood, Chief Judge.
Since 1948, federal prisoners who contend that they were convicted or sentenced in violation of the Constitution or laws of the United States have been required in most cases to present that claim through a motion under 28 U.S.C. § 2255. The motion must be filed in the district of conviction. As a rule, the remedy afforded by section 2255 functions as an effective substitute for the writ of habeas corpus that it largely replaced. See 28 U.S.C. § 2241; United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). But Congress recognized that there might be occasional cases in which " the remedy by motion is inadequate or ineffective to test the legality of [the applicant's] detention." 28 U.S.C. § 2255(e). The question before us is whether petitioner Bruce Webster has presented such a case. If so, then he may proceed to the merits of his petition; if not, then his case must be dismissed at the threshold.
Webster was convicted in the Northern District of Texas of the federal crimes of kidnapping resulting in death, conspiring to commit kidnapping, and using and carrying a firearm during a crime of violence. United States v. Webster, 162 F.3d 308 (5th Cir. 1998) ( Webster I ). He was sentenced to death on the first count, after the district court rejected his argument
that he was ineligible for the death penalty on account of mental retardation (now termed " intellectual disability" by the Supreme Court, see Hall v. Florida, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014)). The Fifth Circuit later rejected Webster's motion for relief under section 2255, United States v. Webster, 421 F.3d 308 (5th Cir. 2005) ( Webster II ), and his application for an order authorizing a successive 2255 proceeding. In re Webster, 605 F.3d 256 (5th Cir. 2010) ( Webster III ).
Webster is now seeking the opportunity to present newly discovered evidence that would demonstrate that he is categorically and constitutionally ineligible for the death penalty under the Supreme Court's decisions in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Hall. A panel of this court concluded that new evidence can never satisfy the demanding standard of section 2255(e) and thus that Webster cannot be heard. Webster v. Caraway, 761 F.3d 764 (7th Cir. 2014) ( Webster IV ). In light of the importance of the question, the full court decided to rehear the case en banc. We conclude that there is no such absolute bar to the use of the safety valve found in section 2255(e) for new evidence that would demonstrate categorical ineligibility for the death penalty. We therefore reverse the district court's judgment and remand for further proceedings.
I. Background Facts and Proceedings
There is no doubt that Webster and his co-defendants committed a horrible crime. We take our account of the underlying facts from the Fifth Circuit's opinion in Webster I. Those facts are largely undisputed at this stage; the only question is what they show, or do not show, about Webster's intellectual functioning.
Webster, along with Orlando Hall and Marvin Holloway, ran a marijuana business in Pine Bluff, Arkansas, a city of approximately 50,000 that lies about 45 miles south of Little Rock and 330 miles east of Dallas, Texas. The group used suppliers in the Dallas/Fort Worth area with the help of a local contact, Steven Beckley.
On September 21, 1994, Holloway drove Hall from Pine Bluff to the Little Rock airport, and Hall flew to Dallas; Beckley and Hall's brother Demetrius picked Hall up at the other end. Later that day, Hall and Beckley met two local dealers, Stanfield Vitalis and Neil Rene, at a car wash and gave them $4,700 as payment in advance for some marijuana. Beckley and Demetrius then returned to the car wash, but Vitalis and Rene never appeared. Hall phoned them to find out what happened, and they told him that both the car they had been driving and the money had been stolen from them. Hall figured out that the telephone number he had used was associated with the Polo Run apartments in Arlington, Texas (a Dallas suburb). Hall, Demetrius, and Beckley began watching the apartment. When they spotted Vitalis and Rene in the supposedly stolen car, they concluded that the story about the stolen money was also false.
Three days later, Hall contacted Holloway and told him to arrange for Webster to fly to Dallas. Webster complied with Holloway's instructions. That evening, Hall, Demetrius, Beckley, and Webster went to the Polo Run apartments in a Cadillac owned by Hall's sister, Cassandra Ross. Hall and Webster were armed with handguns; Demetrius had a small souvenir baseball bat; and Beckley had duct tape and a jug of gasoline. So equipped, the group approached the apartment they had
seen Vitalis and Rene use, and they knocked on the door. The occupant, Lisa Rene (the 16-year-old sister of Neil Rene), refused to let them in and called her sister and the police emergency number. Webster unsuccessfully tried to kick in the door. When that did not work, he and Demetrius looked through a sliding glass door and saw Lisa on the telephone. Demetrius shattered the door with the bat, and Webster entered the apartment, seized Lisa, and dragged her to the car.
In the meantime, Hall and Beckley had returned to the car. Webster, with Lisa in tow, met them there. He forced Lisa onto the floorboard and the group drove to Ross's apartment nearby. Once there, they left the Cadillac and shoved Lisa into the back seat of Beckley's car. Hall climbed into the back seat with her, and Webster sat in the front passenger seat. Beckley drove around looking for a secluded spot; while he did so, Hall raped Lisa and forced her to perform oral sex on him.
Eventually Beckley drove them back to Ross's apartment. From there, Beckley, Demetrius, and Webster drove Lisa, still a prisoner, the 330 miles to Pine Bluff. En route, Webster and Demetrius took turns raping Lisa. Once they reached Pine Bluff, they rented a motel room, where they tied Lisa to a chair and continued to assault her sexually.
The next morning, September 25, Hall and Holloway showed up at the motel room. They took Lisa into the bathroom for about 20 minutes. When they came out again, Hall told Beckley that " she know too much." Hall, Holloway, and Webster then left the motel. Later that afternoon, Hall and Webster went to a park and dug a grave. That evening, Hall, Beckley, and Webster took Lisa to the park, but they could not find the grave site in the dark and so they returned to the motel room. They shifted Lisa to another room the next morning.
Later that morning, Hall, Beckley, and Webster took Lisa back to the park. They covered her eyes with a mask. Hall and Webster led the way to the grave site, while Beckley guided Lisa along. At the grave site, Hall turned Lisa's back to the grave, placed a sheet over her head, and hit her in the head with a shovel. She tried to run away, but Beckley grabbed her and they both fell down. Beckley hit her twice with the shovel and handed it to Hall. At that point, Webster and Hall took turns hitting her with the shovel. Webster then gagged her, dragged her to the grave, stripped her, poured gasoline on her, pushed her in, and shoveled dirt over her. The record indicates that, although she was unconscious by then, Lisa was probably still breathing when she was buried.
It did not take long for the authorities to find out who was responsible for Lisa's hideous death. Lisa's brothers gave information leading to Demetrius's arrest to the police, and Hall and Beckley surrendered soon thereafter. Beckley confessed to his role in the kidnapping; his confession also implicated Hall and someone he called " B-Love." Beckley also said that he had last seen Lisa at the motel with B-Love, and a security guard at the hotel told the officers that Webster went by that name. When Webster pulled into the motel parking lot early on September 30, he was arrested.
B. Trial and Direct Appeal
In November 1994, Webster (along with Hall, Demetrius, Beckley, and Holloway) was indicted by a federal grand jury on charges of kidnapping in which a death occurred (Count 1, 18 U.S.C. § 1201(a)(1)), conspiracy to commit kidnapping (Count 2, 18 U.S.C. § 1201(c)), traveling in interstate
commerce with intent to promote extortion (Count 5, 18 U.S.C. § 1952), and using and carrying a firearm during a crime of violence (Count 6, 18 U.S.C. § 924(c)). In February 1995, the government filed a notice of intent to seek the death penalty against Webster, pursuant to the Federal Death Penalty Act of 1994, 18 U.S.C. § 3593(a) (which had taken effect just 12 days before the murder). Webster's trial later was severed from that of his co-defendants.
The jury returned guilty verdicts on Counts 1, 2, and 6; Count 5 was dismissed on the government's motion. The court conducted a separate sentencing hearing before the same jury, which returned special findings that Webster satisfied the statute's intent requirement, 18 U.S.C. § 3591(a), and that three statutory and two non-statutory aggravating factors were present. 18 U.S.C. § 3592(c). Varying numbers of jurors found nine mitigating factors, some statutory and some non-statutory. See 18 U.S.C. § 3592(a); Webster I, 162 F.3d at 319 & n.2. The court sentenced Webster to death on Count 1; to life imprisonment on Count 2; and to 60 months' imprisonment on Count 6.
On direct appeal, Webster raised four grounds for reversal that the Fifth Circuit had already rejected in Hall's separate appeal, see United States v. Hall, 152 F.3d 381 (5th Cir. 1998), and 16 additional grounds, some of which related to his conviction and some to his sentence. Only one of them remains relevant at this stage of the game: point 13, which asserted that the district court " plainly erred and violated Webster's constitutional rights by entering a factual finding that he is not mentally retarded." Webster I, 162 F.3d at 321. Before turning to the Fifth Circuit's resolution of that point, it is essential to review the evidence of intellectual disability that was presented at the sentencing phase of the trial; virtually none came in at the guilt phase. Without this background, it is impossible to decide whether the newly discovered evidence would have made a difference.
The defense relied primarily on the testimony of three experts: Dr. Raymond Finn, a clinical psychologist; Dr. Denis Keyes, a professor of special education and a certified school psychologist with expertise in mental retardation; and Dr. Robert Fulbright, a clinical neuropsychologist. At the most general level, those three agreed with the experts for the United States that a finding of mental retardation is appropriate if the person's I.Q. is roughly 70 or below on one of the accepted tests, and if the person has a deficit in at least one of three areas of adaptive functioning (communication, socialization, and daily living skills). (A third criterion--onset before the age of 18--was not contested.) Dr. Finn testified about Webster's I.Q.; Dr. Keyes testified about his adaptive functioning; and Dr. Fulbright testified more specifically about his level of mental functioning.
Before Dr. Finn personally administered an I.Q. test to Webster, he received copies of tests that had been performed in 1992,
approximately two years before the murder, at the Southeast Arkansas Mental Health Clinic (the Clinic). Webster had gone there after his brother-in-law stabbed one of his brothers to death. The Clinic gave him the Wechsler Adult Intelligence Scale (WAIS) test, which is widely used. Webster scored 56 on the verbal part of the test, 48 on the performance part, and received a full-scale I.Q. score of 48. The 1992 results, both defense and prosecution witnesses said, had to be taken with a grain of salt. Dr. Finn reported that the psychologist who conducted the test noted that Webster was confused, preoccupied, and poorly oriented at the time, and so the scores may have been depressed for that reason. The I.Q. tests were also viewed at the time as secondary to the possibility that Webster was suffering from schizophrenia, depression, or some other mental disorder. With that possibility in mind, the Clinic prescribed the antipsychotic drug Haldol for him, although in the end it did not conclude that he was schizophrenic. A full-scale score of 48, however, easily meets the threshold of an I.Q. of 70 for intellectual disability recognized by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), both in the DSM-IV (the 4th edition that was in force at the time of trial) and in the current DSM-V (which took effect in 2013). It also meets the standard recognized by the American Association for Mental Retardation, now called the American Association on Intellectual and Developmental Disabilities.
After collecting background information on Webster, Dr. Finn administered the WAIS test to him in January 1995. That test revealed a verbal I.Q. score of 59, a performance I.Q. score of 60, and a full-scale I.Q. of 59, still well below the 70 mark. Dr. Finn explained that this score put Webster in the 0.3 percentile in the country, meaning that 99.7 percent of test-takers would do better. Taking into account Webster's agitation at the time of the 1992 test, Dr. Finn found the results of his test to be consistent with the earlier one, though likely more reliable.
Dr. Finn administered the WAIS test again to Webster in June 1996, just before the trial started. He noted that there is some learning effect from repeated exposure to the same test, and so one would predict a somewhat better performance. And that is what happened. Webster's verbal I.Q. rose to 72; his performance I.Q. dropped one point to 59; and his full-scale I.Q. was now 65, which (like the earlier findings) put Webster in the " mildly retarded" group.
Other aspects of Webster's behavior confirmed this conclusion, in Dr. Finn's view. Among other things, he noted Webster's marginal school achievement (he dropped out in 9th grade), marginal employment history (almost none, apart from one job he lost after a week), lack of independent living (he lived with his mother), and concrete speech patterns (meaning that he was not able to deal with abstract concepts). Webster did have good knowledge of words, but Dr. Finn thought he was better at speaking than understanding.
On cross-examination, the government urged Dr. Finn to consider whether a person such as Webster, charged with a capital crime, would have a motive to lie or manipulate while being tested. The Assistant U.S. Attorney (AUSA) also suggested that someone might have a motivation to lie if a finding of mental retardation would establish eligibility for various governmental benefits. In addition, the AUSA noted that Dr. Finn had mentioned in a letter he wrote to defense counsel that Webster told him that Webster had been in special education classes through most of his school
career. The AUSA then said " you know that's not true now, don't you," and Dr. Finn agreed that he did " know that now." As for the questions about motivation, Dr. Finn rejected the AUSA's suggestion, insisting instead that Webster had put forth a good effort on all of the tests, that an experienced administrator could readily detect an effort to manipulate, and that he saw no such thing.
Dr. Keyes, who was a specialist in mental retardation, also relied on the DSM-IV. He testified about adaptive functioning, which he explained covered " the main areas of adaptive skills ... communication, socialization, and daily living skills ... ." It is important, he stated, to look at adaptive functioning, because " it is possible for a person to be intellectually retarded but not necessarily adaptively retarded." Both are necessary to meet the definition of mental retardation under the law.
Several important points came up during Dr. Keyes's testimony. The first relates to whether adaptive functioning should be assessed in relation to the world outside institutional walls, or in the prison environment. He argued that the former is what counts, because of the strictures of institutional living. The second point relates to assessment methodology: are accepted psychological tests necessary, or is it acceptable to rely exclusively on anecdotal evidence and perceptions? Dr. Keyes, as well as one of Webster's rebuttal experts (Dr. George Denkowski), took the position that professional testing of this type is critical, because less rigorous measures give one no idea of where a person stands relative to the rest of the population. He accordingly administered the well-known Vineland test, which involved interviews of many people who had known Webster before the age of 18 (the age by which intellectual disability must appear) and in the " real world" as opposed to an institutional setting. He concluded from the results that Webster's verbal skills somewhat exceeded what one might predict from his I.Q., but that overall his adaptive functioning was at the level of a six- to seven-year-old. Dr. Keyes firmly denied that Webster could have manipulated the results of the several tests that he had administered. Finally, Dr. Keyes recalled that Dr. Finn had told him about Webster's special-education classes. On cross-examination, the AUSA asked whether Dr. Finn had ever mentioned that Webster had lied when he said he was in special education classes; Dr. Keyes had no memory of such a comment.
Next, Dr. Fulbright, the clinical neuropsychologist, discussed the tests he had performed to evaluate Webster's attention, memory, problem-solving abilities, and general mental functioning. He too administered standardized tests. Those tests did not include an I.Q. test, because by that time Webster had already undergone multiple I.Q. tests while he was in the detention facility. The tests Dr. Fulbright administered included ones for attention and concentration, memory, information-processing speed, distractibility, visual and verbal memory, abstract reasoning, and logical analysis.
Webster performed poorly on many of these tests. He was unable to learn even the basics of an auditory addition test (thinking speed); he was very distractible; he did very badly on a visual memory test, but better on the verbal test; and his performance was severely impaired on higher-level thinking, problem-solving, and logical analysis tests. Dr. Fulbright found, consistently with a comment Dr. Finn made, that Webster is " extremely concrete" and not able to think abstractly. Yet, as others had also noted, his verbal fluency was surprisingly good. Even there, however, the testing revealed problems.
In a test where he was read sentences of increasing length and complexity and asked to say them back, Webster could manage only fairly short sentences. He was unable to listen to long complex communications and understand fully what was being said. Finally, Webster's lawyer asked Dr. Fulbright whether someone could fake results in the tests that had been described. Dr. Fulbright's response was " not convincingly," because the tests are somewhat redundant, the subject would not know how to fake the results, and inconsistencies would be evident if someone were trying to manipulate them. He concluded that Webster's testing revealed him to be a person who is mildly to moderately retarded. On cross-examination, he reiterated that faking is " quite easy" to detect on the tests he gave.
The government followed two strategies on rebuttal: first, it called a large number of lay witnesses (police officers, school administrators, school teachers, an employer, jailers) who all testified that Webster did not seem mentally retarded to them; second, it offered two experts, Dr. George Parker and Dr. Richard Coons, to rebut Webster's experts. When the topic of special education came up, the government's witnesses all denied that Webster had been in those classes. We will not review all of the lay testimony, other than to note a number of points that some or all of the witnesses made. Webster had managed to pass his Arkansas driving test with an almost perfect score (though other testimony indicated that he had done so by cheating). Several noted that Webster was " street smart." Both teachers said that he did not seem to be mentally retarded, though Pat Drewett, one of them, said, " [He] performed at a slower level. He did read slower. On the days that he did perform, which most of the days he did sleep. He didn't perform a lot. He could read. He could do. He chose not to do on a lot of days. He did sleep a lot." School counselor E.C. Turner reported that in the 7th grade, Webster scored in the 43rd percentile of a national achievement test known as the M.A.T. 6 Survey. On cross-examination, Turner admitted that Webster's grades began to fall off between the 6th and 7th grades. Tom McHan, a general contractor for whom Webster worked about a week, testified that he saw nothing to indicate that Webster was mentally impaired, but that he fired Webster from his job on a clean-up crew after one week for sleeping on the job.
The government also presented, as evidence of Webster's functional capabilities, several facts about his life in prison. An inmate testified that he and Webster would communicate in " pig Latin" and that Webster was capable of quoting large portions of scripture. He described Webster as having a " photographic" memory for the Bible. Other testimony, consistent with Webster's penchant for bragging about his sexual prowess, recounted Webster's successful effort to crawl through " the bean chute" in the jail to get to the women's area. Finally, witnesses reported that Webster visited the law library, obtained books from it, and on one occasion spotted that the commissary had given him the wrong change for a purchase.
Dr. Parker, a psychologist with a general practice, was the government's first expert witness. At the government's request, he evaluated Webster and gave him a truncated version of the WAIS I.Q. test. His results showed a verbal I.Q. estimate of 77, a performance I.Q. of 67, with a full-scale I.Q. of 72. He agreed with the AUSA that motivation plays a significant role in the results, and that this would be a particular problem in a " forensic" setting. Dr. Parker did not attempt formally to assess Webster's adaptive functioning, either through the Vineland test or otherwise.
He challenged the utility of the Vineland test, based on the fact that Webster (then age 23) had been incarcerated for five years since the age of 15. He agreed with the AUSA that Webster was able to communicate effectively, to speak in full sentences, to read simple stories aloud, and to keep his cell clean and tidy.
On cross-examination, defense counsel brought out the fact that the WAIS test has 11 parts, all of which must be administered to obtain a valid result, but that Dr. Parker had deliberately omitted some. He gave Webster four of the sub-tests in the verbal area, and three of the sub-tests in the performance area, omitting two in each. Worse than that, counsel suggested, the tests that he omitted (arithmetic and information) are traditionally the ones in which the intellectually disabled do the worst. Dr. Parker claimed ignorance of that fact (although on surrebuttal a defense expert supported Webster's counsel's assertion). What Dr. Parker did instead was to assign an average score, based on the tests that were administered, to the omitted sub-tests. This created an upward bias, counsel charged. Thus, for instance, when Dr. Finn administered the information sub-test, Webster scored a 2; Dr. Parker's average assigned a score of 6. Dr. Parker also acknowledged that the DSM-IV and the American Association on Mental Retardation recommend using a recognized instrument like the Vineland test for adaptive functioning, but that he had chosen not to do so. Finally, Dr. Parker administered a test called the Schretlen Malingering Scale, and he admitted that the results did not support a finding of malingering.
The government's final expert was Dr. Coons, a forensic psychiatrist whose practice focused on assessments of competency to stand trial, but who occasionally looked at questions of intellectual disability. Upon a personal examination, he found that Webster was well oriented to time, place, and person, and that he could give a detailed chronological account of events. Relying on the accounts of Webster's day-to-day life, Dr. Coons concluded that his adaptive functioning was not consistent with a finding of mental retardation.
After entering the sentence of death on the verdict, the district court filed a separate document entitled " Factual Finding Regarding Mental Retardation." It concluded that " Webster is not mentally retarded and ... he possesses the requisite mental capacity to understand the death penalty and why it will be imposed on him. As a result, the defendant Webster is not exempt under 18 U.S.C. § 3596(c) from implementation of the death penalty."
Webster challenged this finding on direct appeal, but the Fifth Circuit " conclude[d] that the court took proper action, and the finding was supported by the evidence." Webster I, 162 F.3d at 351. It applied plain error review, because Webster had failed to object to the factual finding in a timely way. Given how recent the statute was at the time of Webster's trial, the court found no reversible error in the procedures the district court followed in carrying out its responsibilities. It rejected in particular Webster's argument that the issue of mental retardation should have been decided by the jury, not the court. With respect to the sufficiency of the evidence on intellectual disability, the court had almost nothing to say; we reproduce its discussion in its entirety:
Webster contends that the finding that he is not mentally retarded is against the greater weight and credibility of the evidence. The standard of review for a finding that a defendant is not mentally retarded under § 3596 presents an issue of first impression. Because it is a factual
finding, we adopt the clearly ...