In re: Brace Carneil WEBSTER, Movant, 605 F.3d 256

JERRY E. SMITH, Circuit Judge: Bruce Webster moves for an order authorizing the district court to consider a successive motion to vacate his federal death sentence under 28 U.S.C. § 2255, as amended by

section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Because he does not meet the procedural requirements of § 2255(h), we deny the motion. I. In June 1996, Webster was sentenced to death for his role in the kidnaping and brutal murder of a sixteen-year-old girl. He filed a direct appeal of his conviction, including among his nineteen assignments of error a challenge to the district court’s finding that he was not mentally retarded. We affirmed in all respects. United States v. Webster, 162 F.3d 308, 358 (5th Cir.1998), cert. denied 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999).

He then filed for relief under § 2255, which motion the district court denied, concluding that, even in the wake of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the evidence supported a finding that Webster was not mentally retarded. Webster v. United States, No. 4:00-CV-1646-Y, 2003 WL 23109787, at *14 (N.D.Tex. Sept. 30, 2003). And, after the district court granted a certificate of appealability on two of the issues concerning mental retardation, we again affirmed the sentence. United States v.

Webster, 421 F.3d 308, 310 (5th Cir.2005), cert. denied, 549 U.S. 828, 127 S.Ct. 45, 166 L.Ed.2d 47 (2006). Now Webster asks for another chance to argue that he is mentally retarded and therefore ineligible for the death penalty. Specifically, he contends that in light of newly discovered evidence — in the form of government and school records and additional testimony — no reasonable factfinder could conclude that he is not mentally retarded. II.

Section 2255(

h) governs the filing of second or successive motions: A second or successive motion must be certified as provided in

section 2244 by a panel of the appropriate court of appeals to contain— (1) 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 reasonable fact-finder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h).

This court has not had occasion to consider whether a petitioner seeking only to challenge his eligibility for the death penalty can do so under § 2255(h)(1). We now conclude that a petitioner cannot bring a successive claim under § 2255(h)(1) where he does not assert that the newly discovered evidence would negate his guilt of the offense of which he was convicted, i.e., capital murder. That result is compelled by the plain language of § 2255(h)(1), which does not encompass challenges to a sentence.

Instead, it states that a petitioner wishing to rely on newly discovered evidence (as distinguished from being able to point to a qualifying new rule of constitutional law) to support a second § 2255 motion must “establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” § 2255(h)(1) (emphasis added). Webster nevertheless urges us to read “offense” broadly so that § 2255(h)(1) would cover not only a claim that a prisoner is not guilty of the offense of conviction but also a claim that he is merely “not guilty of the death penalty.” Such an

interpretation accords with prior habeas corpus law interpreting “actual innocence” to include “innocence of the death penalty.” Cf. Sawyer v. Whitley, 505 U.S. 333, 340-41, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). But, as Judge Posner cogently explained, Courts that before the amendment had to decide whether an application for postconviction relief came within the “actual innocence” exception to the requirement of proving cause and prejudice in order to be permitted to revive a waived ground for relief extended the exception to sentencing issues .... But we do not think the exception survives the amendment.

The “actual innocence” exception of the prior law was judge-made, and so its contours were appropriately judge-fashioned and permissibly judge-expanded. The exception in the new law is graven in statutory language that could not be any clearer. When we consider ... the absence of any indication in the legislative history that “offense” was being used in some special sense different from its ordinary meaning, we think it highly unlikely that Congress intended the word to bear a special meaning. Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997) (Posner, J.).

That is to say, there is no reason to believe that Congress intended the language “guilty of the offense” to mean “eligible for a death sentence.” Had Congress wanted the provision to cover challenges to a sentence — even if only to a death sentence — it easily could have referenced sentences explicitly in the text, as it did numerous times throughout § 2255. Or if Congress had intended to signal courts to incorporate the old, broad

interpretation of actual innocence, it well could have used the words, “actual innocence.” Instead, it elected to couch § 2255(h)(1), as well as § 2244(b)(2) (B) (ii), in the markedly different, unmistakable terms of guilt of the offense. Absent some indication that Congress meant for the language in § 2255(h)(1) not to be taken literally, we decline to interpret it any other way. In

summary, Webster’s application does not satisfy § 2255(h)(1), and § 2255(h)(2) is inapplicable. The motion for authorization to file a successive § 2255 motion is DENIED. . Webster's execution is stayed for reasons not related to the instant motion. . Nor have we had occasion to consider that question with regard to 28 U.S.C. § 2244(b)(2)(B)(ii), which includes the same ■language.

Section 2255 governs collateral attacks on federal convictions; § 2244, attacks on state court convictions. Nevertheless, "[b]ecause of the similarity of the actions under [these sections], they have traditionally been read in pari materia where the context does not indicate that would be improper.” United States v. Flores, 135 F.3d 1000, 1002 n. 7 (5th Cir.1998). . See § 2255(h)(2). . See also In re Dean, 341 F.3d 1247, 1248-49 (11th Cir.2003); In re Jones, 137 F.3d 1271, 1274 (11th Cir.1998); Burris v. Parke, 130 F.3d 782, 785 (7th Cir.1997); Burris v.

Parke, 116 F.3d 256, 258 (7th Cir.1997); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir.1997), ovemtled on other grounds by Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). Two other circuits addressed the issue but avoided deciding it. See LaFevers v. Gibson, 238 F.3d 1263, 1267 (10th Cir.2001) ("[Tjhere is a split among the three circuits that have addressed the question ....

This court need not resolve that difficult question ....”); In re Vial, 115 F.3d 1192, 1198 n. 12 (4th Cir.1997) (en banc) ("We need not address the question of whether, under the AEDPA, an individual subject to a sentence of death may assert the existence of new evidence establishing that the sentence was imposed improperly, i.e., that he is 'innocent' of the death penalty."). .

By this we do not mean to suggest that a prisoner is jurisdictionally barred from seeking successive review where he contests a factual predicate of his capital murder conviction, without which he would have been guilty only of non-capital murder. Cf. Thompson v. Calderon, 151 F.3d 918, 923-24 (9th Cir.1998) (en banc). .

Cf, e.g., 28 U.S.C. § 2255(b) ("If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” (Emphasis added.)). .

Or, indeed, "eligible for the death penalty,” per Sawyer, 505 U.S. at 336, 112 S.Ct. 2514. See Thompson, 151 F.3d at 923 (noting that the difference between the language in Sawyer and the language in § 2244(b)(2)(B)(ii) could suggest that Congress chose to deviate from it). . Our decision that the instant motion is beyond the reach of § 2255 is jurisdictional in nature, going to the ability of the district court and this court to entertain the § 2255 motion in the first instance.

The result makes it unnecessary for this court to address whether, as the government claims, the evidence that Webster seeks to introduce is neither newly discovered nor substantive.