7th Circuit denies third attempt of death penalty relief, notes questions raised about federal ‘savings clause’

An incarcerated man waiting on federal death row has for the third time unsuccessfully sought relief from his capital punishment, the 7th Circuit Court of Appeals ruled. This time, it rejected his argument under the “savings clause” that recent changes in clinical diagnostic standards show that he is intellectually disabled and ineligible for the death penalty.

In 2004, Chadrick Fulks pleaded guilty to several federal charges, including two death-eligible offenses arising from the carjacking, kidnapping, and death of Alice Donovan in 2002. Fulks, now located at the U.S. Penitentiary in Terre Haute, had escaped from a Kentucky jail with a fellow inmate before killing Donovan.

Prior to his third attempt at seeking relief, Fulks had also unsuccessfully sought to be taken off death row in his direct appeal and subsequent post-conviction petition brought under 28 U.S.C. § 2255.

Although numerous experts explained that Fulks suffered from borderline intelligence with IQ scores ranging from 75 to 79, along with moderate brain and cognitive impairments, he stopped short of arguing that he was intellectually disabled. But in the case at hand, Fulks invoked 28 U.S.C. § 2241, the last resort “savings clause” in § 2255(e), and the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), arguing that recent changes in clinical diagnostic standards show that he is – and since at least age 18 has been – intellectually disabled and therefore ineligible for the death penalty.

The Indiana Southern District Court denied Fulks’s § 2241 petition as procedurally barred by 28 U.S.C. § 2255(e) and concluded that because Fulks failed to show a structural problem with § 2255, he could not use § 2241 to raise his Atkins claim. Affirming the district court, a panel of the 7th Circuit agreed in Chadrick Fulks v. T. Watson, 20-1900, that Fulks cannot now pursue his Atkins claim under § 2241.

It rejected Fulks argument that he can pursue his Atkins claim through § 2241 because the recent adjustments to present day legal and clinical diagnostic standards came after his sentencing and § 2255 petition. That means he could not have pursued or prevailed on his intellectual disability claim until now, Fulks contended.

“But Fulks cannot satisfy the saving clause’s requirements either, and this deficiency stops his § 2241 petition in its tracks. We reached the same conclusion on similar facts less than a year ago in the capital case of Alfred Bourgeois,” Circuit Judge Michael Scudder wrote for the 7th Circuit.

Guided in large measure by its decision in Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020), the 7th Circuit concluded that any updates to the clinical diagnostic standards for intellectual disability do not convince it that the remedy available to Fulks in his original § 2255 motion was inadequate or ineffective.

“Fulks sought at sentencing to avoid the death penalty by relying on his cognitive impairments and fetal alcohol spectrum disorder—owing in no small part to his horrific upbringing—and he had every opportunity to take the next step and argue, whether measured more functionally or under a strict application of clinical standards (or both), that he was intellectually disabled,” the 7th Circuit wrote.

It therefore concluded that it is not aware of any “Supreme Court or Fourth Circuit case on the books at the time of Fulks’s § 2255 petition that would have foreclosed him from raising an arguable Atkins claim.”

“In the end, then, we are unable to identify any structural defect in § 2255 that rendered it an inadequate or ineffective device to challenge his capital sentence. The consequence is that Fulks cannot use § 2241 to claim for the first time that he is ineligible for the death penalty under Atkins,” Scudder wrote.

It similarly rejected Fulks’ second ground for habeas relief invoked by relying Madison v. Alabama, 139 S. Ct. 718 (2019), finding it had no import to Fulks’s intellectual disability claim.

“Although Fulks has not prevailed today and cannot access § 2241 through the savings clause, he has identified—through the assistance of very able counsel—a potential structural limitation that may require additional assessment in a future case,” the 7th Circuit concluded.

“The difficult question on the horizon is whether a capital prisoner can access § 2241 to vacate a death sentence in the face of a monumental change to the clinical definition of intellectual disability that occurs after the prisoner completed one round of § 2255 proceedings,” Scudder wrote. “Assuming a substantial change in the clinical standards allows a newfound diagnosis of intellectual disability, his execution would offend the Eighth Amendment. But the prisoner would have no way to raise his Atkins claim as a second or successive motion under § 2255(h)’s two express exceptions.”


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