Inmate scheduled for Friday execution loses 7th Circuit appeal

A federal prisoner scheduled to be executed Friday at the United States Penitentiary in Terre Haute has failed to secure habeas relief from the 7th Circuit Court of Appeals.

A unanimous 7th Circuit panel on Monday upheld the dismissal of Dustin John Higgs’ habeas petition. Judge Michael Scudder wrote for the panel also including Judges Diane Wood and Michael Brennan in Dustin John Higgs v. T.J. Watson, Warden, 20-2129.

Higgs was convicted in the 1996 kidnapping and murder of three young women in Maryland and received nine death sentences. He was also convicted and sentenced on firearms charges and is now housed on federal death row at the federal prison in Terre Haute.

Following unsuccessful attempts at securing post-conviction relief, Higgs filed a habeas petition in the Indiana Southern District Court, asking that his convictions under 18 U.S.C. § 924(c) be invalidated under Johnson v. United State, 576 U.S. 591 (2015). Johnson held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague.

His case was stayed pending the U.S. Supreme Court’s decision in United States v. Davis, which likewise held in 2019 that the residual clause definition of “crime of violence” was unconstitutionally vague.

“Higgs was not just seeking relief from his § 924(c) convictions,” Scudder wrote in the Monday opinion. “His strategy was broader and focused ultimately on vacating his death sentences. Higgs contended that relief in the first instance from his allegedly invalid § 924(c) convictions would call the entirety of his sentence into question, leading to an altogether new sentencing proceeding, at which he could seek to avoid capital punishment.”

After lifting the stay, Chief Judge Jane Magnus-Stinson of the Indiana Southern District Court denied the habeas petition, finding that Higgs did not satisfy the Savings Clause of 28 U.S.C. § 2255(e). Magnus-Stinson’s ruling thus did not reach the merits of Higgs’ argument.

The 7th Circuit panel likewise did not reach the merits, finding that, “Unfortunately for Higgs … his Davis challenge to his firearm convictions is not cognizable under (28 U.S.C.) § 2241.”

“Because Davis is a constitutional case, we cannot say there is anything structurally ‘inadequate’ or ‘ineffective’ about § 2255 as a remedy for petitioners like Higgs challenging their § 924(c) convictions under Davis,” Scudder wrote. “Put another way, nothing about § 2255, including the limitations it imposes on second or successive motions, prevented Higgs from pursuing relief based on Davis’s constitutional holding.”

But the panel stopped short of accepting the government’s theory that “Supreme Court cases in the savings-clause context can never be ‘bilateral’ — meaning both constitutionally and statutorily based. … Here, though, we agree that Davis is best and most fairly read as only a constitutional case for purposes of interpreting the limitations of a second or successive § 2255 motion.”

“One final point warrants underscoring,” the panel noted. “What Higgs understandably emphasized on appeal, aided as he was by a team of very able counsel, was the disparity between his circumstances (facing death sentences and an impending execution date) and those of his co-defendant, Willie Haynes (the triggerman who received life sentences and permission to file a successive § 2255 motion to challenge his § 924(c) convictions).

“The reasons for Higgs being prevented but Haynes being allowed to file a new § 2255 motion are not plain to us. Regardless, in the circumstances before us, the disparity alone does not establish the inadequacy or ineffectiveness of § 2255 as a remedy.”

Though the 7th Circuit declined to revive Higgs’ habeas petition, it is not certain that his execution will be carried out as scheduled on Friday.

In addition to the availability of an appeal to the U.S. Supreme Court, Higgs has petitioned President Donald Trump for clemency, according to The Guardian.

Lisa Montgomery, who is scheduled to die Tuesday, has likewise petitioned for clemency and on Friday filed a habeas petition that had not been ruled on at IL deadline. Cory Johnson, who is scheduled to die Friday, has also petitioned for clemency, according to the Richmond Times-Dispatch.

In separate litigation, Magnus-Stinson entered an injunction last week prohibiting all executions from moving forward unless the Bureau of Prison takes additional steps to mitigate the spread of COVID-19 during the execution process. The BOP declined to comment on whether it could comply with the terms of the injunction in time for Tuesday’s scheduled execution, but the plaintiffs in that litigation — two non-death row inmates at the Terre Haute facility — filed a subsequent motion noting that the bureau appeared to intend to proceed with the executions as scheduled.

The plaintiffs moved for an order requiring the BOP to file pre- and post-execution compliance reports. Magnus-Stinson partially granted that motion Monday.

“In furtherance of the Court’s interest in enforcing its preliminary injunction, and due to previously expressed concerns about the defendants’ forthrightness … the plaintiffs’ motion is granted in part and denied in part,” the chief judge wrote. “Within 15 days of each execution carried out at FCC Terre Haute, the defendants shall each file with the Court a sworn affidavit or declaration under penalty of perjury attesting that they have complied with the Court’s preliminary injunction. Any other requested relief is denied. Nothing in this entry prevents the Court from taking additional enforcement action, should it learn its injunction is not being followed.”

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