Judges: Easterbrook
Filed: Aug. 01, 2014
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14---1049 BRUCE CARNEIL WEBSTER, Petitioner---Appellant, v. JOHN F. CARAWAY, Warden, United States Penitentiary, Terre Haute, Respondent---Appellee. _ 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. _ ARGUED JULY 24, 2014 — DECIDED AUGUST 1, 2014 _ Before BAUER, EASTERBROOK, and SYKES, Circuit Judges. EAST
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14---1049 BRUCE CARNEIL WEBSTER, Petitioner---Appellant, v. JOHN F. CARAWAY, Warden, United States Penitentiary, Terre Haute, Respondent---Appellee. _ 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. _ ARGUED JULY 24, 2014 — DECIDED AUGUST 1, 2014 _ Before BAUER, EASTERBROOK, and SYKES, Circuit Judges. EASTE..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑1049
BRUCE CARNEIL WEBSTER,
Petitioner-‐‑Appellant,
v.
JOHN F. CARAWAY, Warden, United States Penitentiary, Terre
Haute,
Respondent-‐‑Appellee.
____________________
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.
____________________
ARGUED JULY 24, 2014 — DECIDED AUGUST 1, 2014
____________________
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 col-‐‑
2 No. 14-‐‑1049
lateral attack. In re Webster, 605 F.3d 256 (5th Cir. 2010). Hav-‐‑
ing exhausted his opportunities within the Fifth Circuit,
where the crime and trial occurred, Webster asked for collat-‐‑
eral 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 un-‐‑
contested. 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 (2002), that the Consti-‐‑
tution 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 (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 Web-‐‑
ster 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.)
No. 14-‐‑1049 3
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. In-‐‑
stead 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 Ad-‐‑
ministration 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 retard-‐‑
ed. 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 proceed-‐‑
ings predated the crime of which he stands convicted—and
therefore, his lawyers insist, occurred before he had an in-‐‑
centive to deceive people about his mental condition.
But the district court dismissed the §2241 petition with-‐‑
out 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 in-‐‑
effective 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. Lock-‐‑
ett, 2013 U.S. Dist. LEXIS 161375 (S.D. Ind. Nov. 13, 2013). The
judge thought that a prisoner’s own failure to present evi-‐‑
dence does not demonstrate statutory inadequacy or ineffec-‐‑
tiveness.
4 No. 14-‐‑1049
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 af-‐‑
fected the jury’s evaluation—the arguments now presented
tend to impugn the effectiveness of Webster’s former law-‐‑
yers but not of §2255. The trial, the direct appeal, and the
proceeding under §2255 offered opportunities to use the ev-‐‑
idence that Webster now seeks to present. That Webster’s
legal team did not take (full) advantage of those opportuni-‐‑
ties does not demonstrate a flaw in the statute.
No court of appeals has deemed §2255 “inadequate or in-‐‑
effective” just because counsel failed to take maximum ad-‐‑
vantage of the opportunity it extends. To get anywhere,
Webster must persuade us not only to break new ground but
also to hold that the changes to §2255 made in 1996 by the
Antiterrorism and Effective Death Penalty Act—and particu-‐‑
larly the addition of §2255(h), which limits second or succes-‐‑
sive petitions to those that satisfy a short list of conditions—
made §2255 ineffective. In other words, he must persuade us
that the AEDPA is self-‐‑negating, that by restricting the num-‐‑
ber of §2255 petitions Congress indirectly authorized an un-‐‑
limited number of §2241 petitions seeking the same relief. At
oral argument, Webster’s counsel was explicit: He asked us
to apply pre-‐‑1996 law and to hold that an additional collat-‐‑
eral attack is proper whenever the prisoner does not abuse
the writ. That would write §2255(h) and 28 U.S.C. §2244(b)
out of the United States Code. Yet courts do not interpret
statutes to make revisions self-‐‑cancelling. We have held that
§2255(h) does not make §2255 as a whole inadequate or inef-‐‑
fective. See Unthank v. Jett, 549 F.3d 534, 535–36 (7th Cir.
2008); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). Web-‐‑
ster does not persuade us to change course.
No. 14-‐‑1049 5
Our decisions in In re Davenport, 147 F.3d 605 (7th Cir.
1998), and Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013),
discuss the circumstances that may justify a federal prison-‐‑
er’s use of §2241 to test the validity of his conviction or sen-‐‑
tence. When a change of law, retroactively applicable, shows
that the prisoner did not commit a crime or has received an
illegally high sentence, §2241 is available if it otherwise
would be impossible to implement the Supreme Court’s in-‐‑
tervening decision. Section 2255(h) allows for a new round
of collateral review in response to retroactive constitutional
decisions, but Congress did not appear to contemplate the
possibility of retroactive statutory decisions that show a pris-‐‑
oner’s innocence. That’s the flaw that Davenport and Brown
see as justification for invoking §2241.
Davenport and its successors conclude that §2241 is avail-‐‑
able to provide the full retroactive effect contemplated by
the Supreme Court. But Webster is not the beneficiary of a
retroactive decision that cannot be implemented except
through §2241. There has been no change of law; §3596(c)
predates his crime and trial. Nor does Webster contend that
his mental condition has changed. Instead he wants to use
§2241 to make a better factual record and to place his argu-‐‑
ments before a different circuit, hoping for a better result.
These desires, understandable as they are, do not call into
question the adequacy or effectiveness of §2255.
For what little it is worth given this legal conclusion, we
add that the evidence that Webster wants to introduce can-‐‑
not helpfully be called “newly discovered.” Webster has
long known of it, or readily could have discovered it. It con-‐‑
cerns his own application for Social Security disability bene-‐‑
fits. He knew about that; his lawyer at trial knew about it too
6 No. 14-‐‑1049
(his mother mentioned the subject during her testimony);
and it would have been possible to retrieve the records in
time for use during the trial and §2255 proceeding.
Webster’s current legal team asserts that his former law-‐‑
yer was stonewalled when trying to obtain these records, but
that is not what the former lawyer himself said. He related
that he asked the Social Security Administration for Web-‐‑
ster’s records but lacks any memory of a response and there-‐‑
fore assumes that he must have been denied access. Yet that
assumption is unfounded. Former counsel did not produce
his file (he says that he no longer has it) and therefore did
not have any records about the request (if any) and response
(if any); he has only a lack of recollection to go on. That’s
pretty weak. One sensible inference would be that former
counsel, or an investigator on his behalf, simply did not fol-‐‑
low through. Current counsel obtained the records less than
four months after asking, even though the disability case is
an old one and many records had been sent to long-‐‑term
storage. None of the difficulties (if there were any) that orig-‐‑
inal counsel encountered can be blamed on §2255.
Nor would the Social Security records facilitate a new
line of defense. Webster’s trial counsel had, and introduced,
other medical records in which physicians diagnosed retar-‐‑
dation before the murder. These records enabled him to ask
the jury to infer that he had not started trying to deceive ex-‐‑
aminers after the prosecution began. The prosecutor could
and did reply that Webster had reasons other than a desire
to avoid the death penalty to minimize his mental abilities.
Trying to obtain disability benefits would have been one
such reason, so the evidence that current counsel now wants
No. 14-‐‑1049 7
to use could have been subject to much the same response as
the prosecutor made to the records introduced at sentencing.
But we have not set out to decide what effect the SSA
records might have had in the hands of a top-‐‑notch lawyer;
it is enough to conclude that the to-‐‑and-‐‑fro between the
prosecutor and Webster’s current legal team does not hint at
a structural problem in §2255, so §2255(e) disallows the use
of §2241 to get a fresh decision.
Before we close, we must consider whether the district
court entered the proper judgment. The court dismissed the
§2241 petition with prejudice. That’s the right step if the
court had subject-‐‑matter jurisdiction. Yet several circuits
have held that §2255(e) limits the federal courts’ subject-‐‑
matter jurisdiction. See Williams v. Warden, 713 F.3d 1332,
1337–40 (11th Cir. 2013) (collecting cases). The Eleventh Cir-‐‑
cuit treated us as reaching a contrary conclusion in Brown v.
Rios, 696 F.3d 638 (7th Cir. 2012), but discounted that deci-‐‑
sion on the ground that the court had “simply accepted the
government’s concession” (id. at 1340 n.1)—which would be
an improper way to address a jurisdictional issue. See also
Sperberg v. Marberry, 381 Fed. App’x 602 (7th Cir. 2010)
(nonprecedential) (“[w]hether the proceeding is allowable
under §2255(e) is a question on the merits; it does not affect
subject-‐‑matter jurisdiction.”). In light of Williams we have
taken a fresh look at the issue and once more conclude that
§2255(e) does not curtail subject-‐‑matter jurisdiction.
Here is its language again: “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
8 No. 14-‐‑1049
detention.” It does not employ the word jurisdiction—nor is
§2255 itself a jurisdictional statute. A motion under §2255 is
one in the criminal case, and jurisdiction thus comes from 18
U.S.C. §3231, which supplies subject-‐‑matter jurisdiction in
all federal criminal prosecutions. Section 2255(e) does not
purport to contract that jurisdiction.
Nor does §2255(e) restrict the several sources of subject-‐‑
matter jurisdiction available when a federal prisoner seeks a
writ of habeas corpus. One source is 28 U.S.C. §1331, which
creates jurisdiction for claims arising under federal law. An-‐‑
other is 28 U.S.C. §1343(a)(4), which deals with civil-‐‑rights
claims, of which petitions for habeas corpus are examples.
Then there is §2241 itself, which appears to authorize federal
litigation independent of other statutes (which, when §2241
was enacted, had amount-‐‑in-‐‑controversy limits that could
have made them unavailable for claims within its scope).
Section 2241(e) has two subdivisions that expressly limit
subject-‐‑matter jurisdiction, but neither applies to a claim ar-‐‑
guably blocked by §2255(e). Because §2241 itself tells us
when subject-‐‑matter jurisdiction runs out, it is inappropriate
to infer additional limits from non-‐‑jurisdictional language in
a different statute. Arbaugh v. Y&H Corp., 546 U.S. 500, 516
(2006), says that if “Congress does not rank a statutory limi-‐‑
tation … as jurisdictional, courts should treat the limitation
as nonjurisdictional”. See also, e.g., Gonzalez v. Thaler, 132 S.
Ct. 641, 648 (2012) (reiterating this conclusion). Section
2255(e) sets a firm limit, to be sure, but not one that Congress
has added to the jurisdictional ranks. The court has “adjudi-‐‑
catory authority” (Gonzalez, 132 S. Ct. at 648) to determine
whether §2255 is inadequate or ineffective in a given situa-‐‑
tion; no more is necessary for subject-‐‑matter jurisdiction.
No. 14-‐‑1049 9
Williams concludes that §2255(e) is jurisdictional, never-‐‑
theless, because it uses mandatory language. An application
“shall not be entertained” unless a condition is met. The
Eleventh Circuit wrote that it found the limit jurisdictional
“[b]ased on the text alone, which speaks in imperative
terms”. 713 F.3d at 1338. Yet the Supreme Court has held
that mandatory rules are not automatically jurisdictional.
Gonzalez is one illustration. It holds that 28 U.S.C. §2253(c)(3)
is not jurisdictional even though it includes the word
“shall”. The Court continued: “calling a rule nonjurisdic-‐‑
tional does not mean that it is not mandatory or that a timely
objection can be ignored. … This Court … has long ‘rejected
the notion that “all mandatory prescriptions, however em-‐‑
phatic, are … properly typed jurisdictional.”’” 132 S. Ct. at
651, quoting from Henderson v. Shinseki, 131 S. Ct. 1197, 1205
(2011), and citing Dolan v. United States, 560 U.S. 605, 611–12
(2010).
The Court in Gonzalez also cited Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154 (2010), which like Henderson and Do-‐‑
lan declined to equate mandatory rules with jurisdictional
ones. Reed Elsevier concerned a portion of the Copyright Act
that made registration essential to litigation. A court of ap-‐‑
peals held that the mandatory nature of that condition on
judicial review made it jurisdictional; the Justices unani-‐‑
mously disagreed. We reached a similar conclusion in Minn-‐‑
Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en
banc), about language in the Foreign Trade Antitrust Im-‐‑
provements Act providing that some parts of the Sherman
Antitrust Act “shall not apply” to certain international
events. That language stated a question on the merits, we
held, and did not contract subject-‐‑matter jurisdiction. See
10 No. 14-‐‑1049
also Morrison v. National Australia Bank Ltd., 561 U.S. 247,
253–54 (2010).
Two more examples of mandatory but non-‐‑jurisdictional
rules. A bankruptcy court can extend the time for objection
to discharge if and only if the motion for additional time is
filed within 60 days of the creditors’ meeting. A court of ap-‐‑
peals treated the mandatory nature of this rule as a jurisdic-‐‑
tional limit; the Supreme Court held otherwise. Kontrick v.
Ryan, 540 U.S. 443 (2004). Our other example is Eberhart v.
United States, 546 U.S. 12 (2005). Criminal defendants are en-‐‑
titled to move for new trials, but the time available to do so
is limited—and at the time that limit could not be extended.
Fed. R. Crim. P. 33, 45(b)(2). The Supreme Court twice treat-‐‑
ed the mandatory nature of this rule as a jurisdictional re-‐‑
striction. United States v. Robinson, 361 U.S. 220, 229 (1960);
United States v. Smith, 331 U.S. 469, 474 & n.2 (1947). But
Eberhart disapproves Robinson and Smith to the extent that
they equate “mandatory” rules with “jurisdictional” ones.
Eberhart classified the time limits as among the many claims-‐‑
processing rules that shape the course of litigation but can be
waived or forfeited.
The United States Code is jam-‐‑packed with imperative
language. Rules of law tell litigants, and courts, what must
be done. These rules are enforced when their beneficiaries
invoke them. If they are also treated as jurisdictional, how-‐‑
ever, then courts must raise the subject on their own, even
when litigants choose to waive or forfeit their rights. Declar-‐‑
ing a rule to be “jurisdictional” not only makes extra work
for judges but also creates a prospect that the time and ener-‐‑
gy invested in a case will prove to be wasted, when an ap-‐‑
pellate court dismisses the suit or directs the litigants to start
No. 14-‐‑1049 11
over. Curtailing the need for judges to resolve issues on their
own initiative, and the risk that both private and judicial ef-‐‑
forts will be squandered, are the principal reasons why the
Supreme Court has insisted in recent years that very few
rules be treated as jurisdictional. See, e.g., Gonzalez, 132 S. Ct.
at 647–48.
The text of §2255(e) does not suggest to us that Congress
set out to prevent the Attorney General from consenting to
collateral review under §2241, if the Executive Branch thinks
that necessary to avert an injustice. We conclude, according-‐‑
ly, that §2255(e) does not contract subject-‐‑matter jurisdic-‐‑
tion—which means that its benefits can be waived or forfeit-‐‑
ed. But in this case the Attorney General has invoked his
right to say “enough is enough” and to prevent an addition-‐‑
al round of collateral review. The district court had jurisdic-‐‑
tion and entered the proper kind of judgment.
AFFIRMED
