Fulks v. Watson

• Decision Date: 19 July 2021
• Docket Number: No. 20-1900,20-1900
• Parties: Chadrick FULKS, Petitioner-Appellant, v. T.J. WATSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

4 F.4th 586

Chadrick FULKS, Petitioner-Appellant,

v.T.J. WATSON, Warden, Respondent-Appellee.

No. 20-1900

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2021

Decided July 19, 2021

Claudia Van Wyk, Attorney, Peter K. Williams, Attorney, Office of the Federal Community Defender, Eastern District of Pennsylvania - Capital Habeas Unit, Philadelphia, PA, for Petitioner-Appellant.

William A. Glaser, Attorney, Department of Justice, Criminal Division, Washington, DC, for Respondent-Appellee.

Before Rovner, Hamilton, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Chadrick Fulks sits on federal death row for his role in the 2002 carjacking, kidnapping, and killing of Alice Donovan. He committed these crimes with Brandon Basham after they escaped together from a Kentucky jail. On two prior occasions—first, in his direct appeal and then, in a postconviction petition under 28 U.S.C. § 2255 —Fulks challenged his capital sentence without success. Many years later, he returned to the district court with a new request for relief, this time invoking 28 U.S.C. § 2241 and the Supreme Court's decision in Atkins v. Virginia , and arguing that recent changes in clinical diagnostic standards show that he is (and since at least age 18 has been) intellectually disabled and ineligible for the death penalty. The district court concluded that Fulks cannot now pursue his Atkins claim under § 2241 and dismissed the petition. Guided in large measure by our recent decision in Bourgeois v. Watson , we agree and affirm.

I

A

In 2004 Chadrick Fulks pleaded guilty in the District of South Carolina to eight federal charges—including two death-eligible offenses—arising from the carjacking, kidnapping, and death of Alice Donovan. The district court then empaneled a jury to consider whether to impose the death penalty. See 18 U.S.C. § 3593(b)(2)(A).

Fulks advanced a mitigation defense grounded in his mental deficiencies and troubled childhood. His legal team, the district court later observed, "painted a compelling and empathetic picture of a young Chad Fulks growing up in poor, crowded, filthy, and deplorable living conditions, raised by violently abusive, sexually deviant, emotionally neglectful, and alcoholic parents who did not appear to care at all about their children's well being." Fulks v. United States , 875 F. Supp. 2d 535, 568 (D.S.C. 2010). His defense counsel hired or consulted at least 11 experts, six of whom testified and explained, among other things, that Fulks suffered from borderline intelligence with IQ scores ranging from 75 to 79, along with moderate brain and cognitive impairments. See id. at 555–56, 558. But Fulks stopped short of arguing that he was intellectually disabled and thereby ineligible for the death penalty under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

The jury unanimously recommended, and the district court in turn imposed, two death sentences—one each for Fulks's convictions of carjacking and kidnapping that resulted in Donovan's death. The Fourth Circuit affirmed the death sentences on direct appeal and the Supreme Court declined review. See United States v. Fulks , 454 F.3d 410 (4th Cir. 2006), cert. denied, 551 U.S. 1147, 127 S.Ct. 3002, 168 L.Ed.2d 731 (2007) (mem.).

In 2008 Fulks returned to the district court in South Carolina and filed a motion to vacate his death sentences under 28 U.S.C. § 2255. He raised 33 claims, including allegations that trial counsel rendered ineffective assistance by failing to call additional mental health experts as part of his mitigation defense. But once again, Fulks did not raise an intellectual disability claim under Atkins , nor did he assert that his attorneys provided ineffective assistance by failing to raise such a claim. The district court held an evidentiary hearing and denied Fulks's petition but issued a certificate of appealability. The Fourth Circuit affirmed the denial of § 2255 relief, and the Supreme Court again denied a writ of certiorari. See United States v. Fulks , 683 F.3d 512 (4th Cir. 2012), cert. denied, 571 U.S. 941, 134 S.Ct. 52, 187 L.Ed.2d 257 (2013) (mem.).

B

This procedural history brings us to Fulks's most recent request for relief. In 2015 he filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Southern District of Indiana, where he remains incarcerated at the U.S. Penitentiary in Terre Haute. After the district court appointed counsel to represent him, Fulks amended his habeas petition in 2019 advancing two claims. He claimed for the first time that he is intellectually disabled under current medical diagnostic and legal standards. He also contended that, even if he cannot meet the precise criteria for intellectual disability, he is functionally intellectually disabled and therefore ineligible for execution under the Supreme Court's decision and reasoning in Madison v. Alabama , ––– U.S. ––––, 139 S. Ct. 718, 203 L.Ed.2d 103 (2019). Fulks supported his petition with a report from a neuropsychologist, Barry Crown, who evaluated him in April 2018 and diagnosed him as intellectually disabled under current clinical standards.

Fulks asserted that the law allowed him to raise his intellectual disability claims in a § 2241 petition because § 2255 was "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). In Fulks's view, because his claims rested on new legal and factual bases unavailable to him at the time of his sentencing and § 2255 petition, he could seek relief under § 2241. More specifically, Fulks relied on the Supreme Court's decisions in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), Moore v. Texas (Moore I ), ––– U.S. ––––, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), and Madison , ––– U.S. ––––, 139 S. Ct. 718 (2019) —all decided after the denial of his first § 2255 petition. Fulks also emphasized that his Atkins claim roots itself in the 2012 and 2013 updates to the User's Guide to Intellectual Disability: Definition, Classification, and Systems of Supports, 11th Edition (AAIDD–2012), a manual from the American Association on Intellectual and Developmental Disabilities, and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM–5).

C

The district court denied Fulks's § 2241 petition as procedurally barred by 28 U.S.C. § 2255(e) —a provision prohibiting petitioners from seeking habeas relief under § 2241 unless it appears that § 2255 "is inadequate or ineffective to test the legality of [the] detention." The district court concluded that because Fulks failed to show a structural problem with § 2255, he could not use § 2241 to raise his Atkins claim. Relying on our decision in Webster v. Daniels , 784 F.3d 1123, 1136 (7th Cir. 2015) (en banc), the district court explained that something more than an anticipated lack of success with a § 2255 motion is required to satisfy the savings clause. And as the district court emphasized, Fulks had a fair opportunity to raise an Atkins claim in his initial § 2255 proceeding but did not do so.

Fulks now appeals.

II

A

In most cases, 28 U.S.C. § 2255 supplies the exclusive postconviction means for federal prisoners to challenge their sentences. "Strict procedures govern" these motions. Purkey v. United States , 964 F.3d 603, 611 (7th Cir. 2020), cert. denied, ––– U.S. ––––, 141 S. Ct. 196, 207 L.Ed.2d 1128 (2020). Most relevant to this appeal, the statute limits a federal prisoner to a single attempt at filing a § 2255 motion unless the appropriate court of appeals grants permission to file a "second or successive motion." 28 U.S.C. § 2255(h). But that permission can come only if the motion contains "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reason-able factfinder would have found the movant guilty of the offense," or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. § 2255(h)(1)–(2).

Fulks concedes that his Atkins claim does not satisfy either of these exceptions. This acknowledgement explains why he filed his petition under 28 U.S.C. § 2241 and invoked the so-called savings clause in § 2255(e) —a narrow pathway of last resort for prisoners to seek postconviction relief through the general federal habeas corpus statute codified in § 2241.

The savings clause provides:

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 if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The crucial point, clear from the text of the savings clause, is that Congress hinged access to § 2241 upon a showing that § 2255 is "inadequate" or "ineffective."

To date, we have identified three situations in which the remedy provided by § 2255 proved inadequate or ineffective. See In re Davenport , 147 F.3d 605 (7th Cir. 1998) (involving a claim alleging a miscarriage of justice and based upon a new rule of statutory interpretation made retroactive by the Supreme Court); Garza v. Lappin , 253 F.3d 918 (7th Cir. 2001) (involving a claim based on the ruling of an international tribunal issued after the prisoner's first round of § 2255 relief); Webster , 784 F.3d 1123 (involving a claim that relied on new evidence that existed but was allegedly unavailable at trial despite counsel's diligent efforts, and where that new evidence could show that the petitioner had long been intellectually disabled); see also Purkey , 964 F.3d at 611–14 (providing a fulsome explanation of these central cases).

We...