The 7th Circuit Court of Appeals on Tuesday reversed a stay of execution for a Louisiana man scheduled to die by lethal injection in an Indiana federal prison, finding he does not meet the stringent requirements for savings-clause eligibility.
Alfred Bourgeois, an inmate on death row at the high-security U.S. Penitentiary in Terre Haute, was convicted and sentenced to death in 2004 after he brutally abused and murdered his then-2-year-old daughter. An appeal of his conviction and sentence were denied, as was his motion to vacate pursuant to 28 U.S.C. § 2255 in the Southern District of Texas.
In July 2019, the Department of Justice set Bourgeois’ execution date for January 2020, one of five federal executions the Department initially scheduled after a 17-year moratorium on lethal injections.
By August 2019, Bourgeois had filed the instant habeas petition in the Southern District of Indiana pursuant to 28 U.S.C. § 2241. He also moved to stay his execution, again arguing that he was intellectually disabled and that his death sentence ran afoul of Atkins v. Virginia, 536 U.S. 304 (2002) and the FDPA.
Chief Judge Jane Magnus Stinson for the Southern District Court concluded that Bourgeois made a strong showing that he is likely to succeed on the merits of his FDPA claim, finding that the respondents waived any contention that Bourgeois’ FDPA claim cannot proceed in the § 2241 action.
But the 7th Circuit reversed the district court’s stay of Bourgeois’ execution, finding that he does not meet the stringent requirements for 28 U.S.C. § 2255(e)’s “savings-clause” eligibility.
“The district court found that Bourgeois had met all four stay factors, but we only reach the first one: likelihood of success on the merits. The district court’s determination that Bourgeois was likely to succeed on the merits of his FDPA claim rested on a preliminary finding that the government had waived any argument that Bourgeois’s FDPA claim was not cognizable under § 2255(e)’s savings clause. That is where we part ways with the district court. We find that the government did not waive, or even forfeit, this argument. And even if it had forfeited the argument, we would excuse that forfeiture on these facts,” Circuit Court Judge Amy St. Eve wrote for the 7th Circuit.
“We proceed to consider whether Bourgeois’s Atkins and FDPA claims are cognizable under the savings clause. They are not. With no procedural home for his claims, Bourgeois’s likelihood of success on the merits is nonexistent. Thus, we vacate the stay,” it concluded.
First, the 7th Circuit concluded that the district court’s factual determination that the government intentionally waived its argument was clearly erroneous and amounts to an abuse of discretion. It found similarly on the issue of forfeiture, concluding that even if the government had forfeited its FDPA argument, forfeiture would not prevent the 7th Circuit from considering the savings-clause issue.
Moving to the main issue of the case — whether Bourgeois’s case “fits within the narrow confines of the safety valve” — the 7th Circuit concluded that “the savings clause is not simply another avenue for appeal.”
“Indeed, Bourgeois had the chance to appeal the court’s denial of his intellectual-disability claim, yet he chose not to do so. At this stage of the proceedings, our only role is to determine whether there was something ‘structurally inadequate or ineffective about section 2255 as a vehicle’ for Bourgeois. There plainly was not,” it wrote.
The 7th Circuit further found no support for Bourgeois’ argument over the word “is,” therefore making it “unwilling to accept Bourgeois’ sweeping argument that a fresh intellectual-disability claim arises every time the medical community updates its literature.”
Additionally, the 7th Circuit noted that the three main cases where it has found the savings clause applicable — Davenport, 147 F.3d 605; Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); and Webster I, 784 F.3d 1123 — “merely illustrate the ‘something more’ that Bourgeois is missing.” It ultimately concluded that Bourgeois is not eligible for savings-clause relief on either his Atkins claim or his FDPA claim.
“The question in this appeal is not whether Alfred Bourgeois is intellectually disabled. It is, instead, whether he was able to litigate his intellectual-disability claim in his § 2255 motion. He was, and he did. The savings clause is a narrow route to relief that exists only to prevent fundamental errors that § 2255 could not have corrected. It does not invite federal prisoners to relitigate their claims every time the Supreme Court refines the relevant legal standard.”
In reversing the district court, the 7th Circuit also remanded with instructions for the district court to deny Bourgeois’ motion for a stay of execution and dismiss his § 2241 petition in the case of Alfred Bourgeois v. T.J. Watson, 20-1891.
On a final note, the 7th Circuit declined the government’s request that it issue its mandate immediately. Instead, it stated that “the mandate shall issue seven days after the date this opinion is issued.”