United States v. Webster

United States Court of Appeals
Fifth Circuit
F I L E D
August 11, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11194
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRUCE CARNEIL WEBSTER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before SMITH, WIENER, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Webster, a federal prisoner under a
sentence of death, appeals the denial of his pe-
tition for post-conviction relief under 28
U.S.C. § 2255 on two related claims that the
district court rejected on the merits but on
which it granted a certificate of appealability
(“COA”). Concluding that Webster is not en-
titled to relief, we affirm.
I.
A.
In 1996, a federal jury convicted Webster
of three offenses—kidnaping resulting in
death, conspiring to kidnap, and using and
carrying a firearm during a crime of vio-
lence—for his role in the shocking and ex-
ceedingly brutal kidnaping, rape, and murder
of sixteen-year-old Lisa Rene.1 The
1 The facts are set forth in chilling detail in
United States v. Webster, 162 F.3d 308, 317-19
(continued...)

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2
government sought a death sentence pursuant
to the Federal Death Penalty Act of 1994, 18
U.S.C. §§ 3591-3598, and after a separate
sentencing hearing the jury returned special
findings that Webster satisfied the requisite
elements of intent, see § 3591(a), and that
three statutory and two non-statutory
aggravating factors existed, see § 3592.2
Varying numbers of jurors found nine
mitigating factors.3 By unanimous vote as re-
quired, the jury recommended that Webster be
sentenced to death.
After imposing a death sentence on the ver-
dict, the district court entered a finding that
Webster is not mentally retarded and is there-
fore not exempt from the death penalty under
18 U.S.C. § 3596(c),4 which prohibits the
imposition of a death sentence on a person
who is mentally retarded or, because of a men-
tal disability, lacks the mental capacity to
understand the death penalty or why it was
imposed.
Webster maintained during the penalty
phase that he is mentally retarded and, in sup-
port, presented testimony from four medical
experts regarding his mental capacity and the
testimony of a fifth medical expert on surre-
buttal to critique the methodology used by one
of the government’s experts in testing his cog-
nitive abilities.5 Webster presented volumi-
nous evidence of the abuse he suffered as a
child, including testimony from his mother,
two of his brothers, two of his sisters, an aunt,
a niece, and an ex-girlfriend. All these wit-
nesses testified about the severe physical and
sexual abuse Webster’s father inflicted on his
children and his wife (Webster’s mother).
The government vigorously disputed Web-
ster’s claim of mental retardation. Beyond
cross-examining defense experts, the govern-
ment produced two medical experts who
testified that they did not believe Webster was
retarded and, moreover, that the methodology
used by defense experts to gauge his mental
capacity was critically flawed and misleading.
The government presented numerous other
witnesses, including correctional and probation
officers, former teachers, and fellow inmates,
whose testimony contradicted Webster’s claim
of retardation.
1(...continued)
(5th Cir. 1998).
2 See id. at 319 n.1 (identifying aggravating
factors unanimously found by the jury).
3 See id. at 319-20 n.2 (identifying statutory
and non-statutory mitigating factors presented by
Webster and the number of jurors, if any, that
found each factor).
4 The finding provides:
After consideration of all the evidence and
information presented in the guilt and punish-
ment phases of trial, the Court hereby issues its
factual finding that the defendant Webster is not
mentally retarded and that he possesses the
requisite mental capacity to understand the
death penalty and why it will be imposed on
him. As a result, the defendant Webster is not
exempt under 18 U.S.C. § 3596(c) from imple-
mentation of the death penalty.
5 See Webster, 392 F.3d 787, 793-94 & n.10
(5th Cir. 2004) (summarizing Webster’s expert
testimony and denying a COA, as discussed infra);
Webster v. United States, No. 4:00-CV-1646-Y,
2003 WL 23109787, at *6-7, 12-14 (N.D. Tex.
Sept. 30, 2003) (reviewing defense expert testi-
mony on mental retardation).

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3
B.
We affirmed the conviction and sentence on
direct appeal, see United States v. Webster,
162 F.3d 308 (5th Cir. 1998), cert. denied,
528 U.S. 829 (1999). Among the more than
twenty claims Webster raised on direct appeal,
we rejected his claim that the district court’s
finding that he is not mentally retarded, to
which no objection was made at trial, was
against the greater weight and credibility of the
evidence. See id. at 352-53. Reviewing for
clear error, we determined that “[t]he gov-
ernment presented substantial evidence to
support the finding,” id. at 353, and accord-
ingly we rejected the claim.
Webster thereafter filed, in 2000, a motion
to vacate his conviction and sentence pursuant
to 28 U.S.C. § 2255, and an amended § 2255
motion challenging his conviction and sentence
on sixteen grounds in 2002. The district court
rejected Webster’s claims and dismissed his
motion, see Webster v. United States, No.
4:00-CV-1646-Y, 2003 WL 23109787 (N.D.
Tex. Sept. 30, 2003).
Webster applied for a COA on each of the
sixteen grounds raised in his amended § 2255
motion.6 The district court granted a COA
limited to two of the sixteen claims: first, that
the evidence presented at trial was insufficient
to warrant the district court’s finding that
Webster is not mentally retarded; and second,
that his alleged retardation renders him ineligi-
ble for a death sentence.
Webster then applied to this court for a
COA on the fourteen issues deemed unworthy
of collateral appellate review by the district
court; we denied a COA on each of the addi-
tional claims, see United States v. Webster,
392 F.3d 787 (5th Cir. 2004). We now ad-
dress, on the merits, Webster’s appeal on the
two issues rejected on the merits but on which
the district court granted a COA.
II.
A.
Webster contends that the evidence pre-
sented at trial was insufficient to warrant the
district court’s finding that he is not mentally
retarded. The government argued to the dis-
trict court that this claim is procedurally barred
because it was raised and rejected on direct
appeal,7 but the district court appears to have
concluded that, though on direct appeal we
rejected Webster’s claim that the finding was
against the greater weight and credibility of the
evidence, the intervening decision in Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that
the Eighth Amendment prohibits execution of
the mentally retarded) saves this claim from a
procedural bar. See Webster, 2003 WL
23109787, at *5.
Yet, even before Atkins, at the time of
Webster’s trial, 18 U.S.C. § 3596(c) prohib-
ited the execution of mentally retarded offend-
ers in federal prosecutions. The only substan-
tive change (as explained further infra) ush-
ered in by Atkins with respect to federal capital
defendants, then, is the recognition of a new
source of federal law (i.e., constitutional) that
6 See 28 U.S.C. § 2253(C)(1)(B) (“Unless a
circuit justice or judge issues a certificate of ap-
pealability, an appeal may not be taken to the court
of appeals from . . . the final order in a proceeding
under section 2255.”).
7 See United States v. Kalish, 780 F.2d 506,
508 (5th Cir. 1986) (“It is settled in this Circuit
that issues raised and disposed of in a previous
appeal from an original judgment of conviction are
not considered in § 2255 motions.”); United States
v. Rochas, 109 F.3d 225, 229-30 (5th Cir. 1997).

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4
bars their execution. In any event, we assume
for present purposes that Atkins permits,
whether by way of clarification of the meaning
of mental retardation or some other reason,
Webster to restate his sufficiency challenge, so
we proceed to address the merits, but we do
so without deciding that we must.
B.
In advancing his collateral challenge to the
sufficiency of the evidence, Webster invokes
Jackson v. Virginia, 443 U.S. 307 (1979),
which held that a state defendant is entitled to
federal habeas corpus relief if the state’s evi-
dence was such that no rational trier of fact
could have found the essential elements of the
crime beyond a reasonable doubt. Webster ar-
gues that Jackson provides the standard
against which the evidence supporting the
finding that he is not mentally retarded should
be measured—the necessary implication being
that the government had the burden of proving
beyond a reasonable doubt that Webster is not
mentally retarded.
But the Jackson standard is inapposite here,
where the challenged finding is the absence of
mental retardation, and not a substantive ele-
ment of the offense to which Jackson applies
by its own terms,8 or an aggravating circum-
stance, sentencing factor, or special issue in
the context of capital proceedings, to which
Jackson has since been applied.9
Moreover, nothing in the Federal Death
Penalty Act requires the government to
prove—by any standard, much less beyond a
reasonable doubt—that a capital defendant is
not mentally retarded. Nor does anything in
Atkins require, as a constitutional matter, the
government to prove—again, by any standard,
much less beyond a reasonable doubt—that a
capital defendant is not mentally retarded. In-
stead, the Court in Atkins decided to “leave to
the State[s] the task of developing appropriate
ways to enforce the constitutional restriction
upon [their] execution of sentences.” Atkins,
536 U.S. at 317 (quoting Ford v. Wainwright,
477 U.S. 399, 416-17 (1986) (alterations in
original)). And several states have since
placed the burden on capital defendants to
prove by a preponderance of the evidence that
they are mentally retarded.10
In fact, even before the district court
looked askance at Webster’s suggestion on
8 See Jackson, 443 U.S. at 319 (“[T]he relevant
question is whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”)
(second emphasis added).
9 See, e.g., Lewis v. Jeffers, 497 U.S. 764, 781
(1990) (holding that in reviewing whether a state
(continued...)
9(...continued)
court’s finding of an aggravating factor is so erron-
eous as to constitute an Eighth Amendment or due
process violation, a federal court considering a
habeas corpus petition should apply the “rational
factfinder” test established in Jackson); Martinez
v. Johnson, 255 F.3d 229, 244-45 (5th Cir. 2001)
(applying Jackson to sufficiency challenge to fu-
ture dangerousness finding); Fierro v. Lynaugh,
879 F.2d 1276, 1280 (5th Cir. 1989) (same);
Green v. Johnson, 160 F.3d 1029, 1046-47 (5th
Cir. 1998) (applying Jackson to a challenge to the
sufficiency of a finding of deliberateness); Callins
v. Collins, 998 F.2d 269, 276 (5th Cir. 1993)
(same).
10 See, e.g., Ex Parte Briseno, 135 S.W. 3d 1,
12 (Tex. Crim. App. 2004); Russell v. State, 849
So. 2d 95, 148 (Miss. 2003); State v. Williams,
831 So. 2d 835, 860-61 (La. 2002); Murphy v.
State, 54 P.3d 556, 568 (Okla. Crim. App. 2002).

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5
collateral review that the government had to
prove his non-retardation beyond a reasonable
doubt, we had already rejected the claim, albeit
in the context of a state prisoner on federal
habeas review, that Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring v. Arizona,
536 U.S. 584 (2002), when read together with
Atkins, require the government to prove be-
yond a reasonable doubt that a capital defen-
dant is not mentally retarded. In In re John-
son, 334 F.3d 403, 405 (5th Cir. 2003), we
squarely held that “neither Apprendi and Ring
nor Atkins renders the absence of mental
retardation the functional equivalent of an
element of capital murder which the state must
prove beyond a reasonable doubt.”11
Indeed, it was on this basis that we denied
Webster a COA on his claim that Apprendi
and Ring alone require the government to
prove his non-retardation beyond a reasonable
doubt. See Webster, 392 F.3d at 791-92.12
Accordingly, we reject Webster’s claim to the
extent it is based on an alleged constitutional
error in the allocation of the burden of persua-
sion and standard of proof.
C.
In any event, the district court proceeded
dutifully to re-examine the extensive record
evidence bearing on Webster’s mental capacity
and concluded, once again, that a “rational
fact-finder could have found that Webster is
not mentally retarded based o n the evidence
presented at trial.” Webster, 2003 WL
23109787, at *11. Once again, we cannot say
the district court erred in reaching this conclu-
sion and rejecting Webster’s renewed suffi-
ciency challenge. See Webster, 192 F.3d at
352-53.
To be sure, as the district court noted, “all
of the experts who testified at Webster’s trial,
including those who testified for the govern-
ment, acknowledged that Webster has a low
I.Q.” Id. at *14.13 But, under the definition of
11 See also Ring, 536 U.S. at 609 (noting that
jury finding beyond a reasonable doubt is constitu-
tionally required for aggravating factors that oper-
ate as “the functional equivalent of an element of a
greater offense”); Walker v. True, 399 F.3d 315,
326 (4th Cir. 2005) (rejecting claim that Ring
requires a jury determination of mental retardation,
and reasoning that “an increase in a defendant’s
sentence is not predicated on the outcome of the
mental retardation determination; only a decrease”)
(internal marks omitted); Johnson, 334 F. 3d at
405 (“[T]he absence of mental retardation is not an
element of the sentence any more than sanity is an
element of an offense.”); cf. Medina v. California,
505 U.S. 437, 449 (1992) (holding that a state may
presume a defendant to be competent and require
him to carry the burden of proving his incompe-
tence by a preponderance of the evidence).
12 Even if the rules announced in Apprendi and
(continued...)
12(...continued)
Ring were applicable to the absence of mental re-
tardation, the bar of non-retroactivity would pre-
clude their application to cases already final on di-
rect review. See Webster, 392 F.3d at 792; see al-
so Schriro v. Summerlin, 542 U.S. 348, ___, 124
S. Ct. 2519, 2526 (2004) (holding that the pro-
cedural rule announced in Ring is not retroactive to
cases already final on direct review); United States
v. Brown, 305 F.3d 304, 310 (5th Cir. 2002)
(holding that the procedural rule announced in Ap-
prendi is not retroactively applicable to initial post-
conviction petitions under § 2255).
13 There was a dispute as to how low, and both
government experts, Dr. George Parker and Dr.
Richard Coons, testified that, in their opinion,
Webster had an incentive not to perform well on
(continued...)

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6
mental retardation cited in Atkins, see 536
U.S. at 308 n.3, a showing of borderline or
below average intelligence does not alone
constitute an adequate showing of retardation.
Rather, an adequate showing of mental retar-
dation also requires significant deficits in
adapt ive skills,14 and it is here, as the district
court concluded, that the government effec-
tively countered Webster’s claimed retarda-
tion:
[T]he issue of adaptive skills or the lack
thereof is where the parties converged at
Webster’s trial. While the defense did
place into evidence the results of the Vine-
land test, government witnesses effectively
reputed some of those findings with direct
evidence that Webster has adapted to his
environment and does possess skills that his
family stated he did not. Looking at all the
evidence presented by both sides at trial,
while it is undisputed that Webster has had
low I.Q. scores on almost every I.Q. test
that has been administered to him, these
scores are, according to even defense wit-
ness Dr. Keyes, attributable to “nonorgan-
ic” factors, which this Court understands to
mean his lack of quality formal education
and any positive or productive home life.
Nevertheless, the evidence presented at trial
does reflect that Webster has adapted to the
criminal life that he chose and has illus-
trated the ability to communicate with
others, care for himself, have social interac-
tion with others, live within the confines of
the “home” he has been in since he was
sixteen, use community resources within
this home, read, write, and perform some
rudimentary math. This evidence therefore
supports a finding that Webster does not
have a deficit in adaptive skills.
Webster, 2003 WL 23109787, at *14 .15
13(...continued)
cognitive tests administered after he was charged in
this case; they pointed to earlier tests taken by
Webster on which he scored higher. Parker also
testified that lifestyle choices and cultural factors
can account for low I.Q. scores (a point defense
experts Dr. Keyes and Dr. Finn acknowledged),
thus casting doubt on the reliability of the I.Q. tests
administered by Keyes, which required Webster to
define words (he was unable to define “inflation”)
and recognize faces (he could not identify Shake-
speare, Mark Twain, or Albert Einstein from
pictures) to which he was unlikely to have been
previously exposed.
14 Mental retardation has as its essential feature
significantly subaverage general intellectual func-
tioning accompanied by significant limitations in
adaptive functioning, with onset before the age of
eighteen. Morris v. Dretke, 413 F.3d 484, ___,
2005 U.S. App. LEXIS 11430, at *4 (5th Cir.
June 16, 2005) (quoting AMERICAN PSYCHIATRIC
ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 41 (text rev. 4th
ed. 2000)).
15 In fact, not only were government experts
able to refute many of the specific findings ob-
tained from the “Vineland test” administered by
Keyes, see Webster, 2003 WL 23109787, at *13,
but they testified that the test was an inappropriate
and deceptive measure of Webster’s adaptive
skills, given his lifestyle as a drug dealer. More-
over, government experts noted that Webster had
shown cleverness and adaptability when he sneaked
into the women’s portion of the jail in which he
was held, concocted cover stories and made ex-
cuses to police when he was arrested with a key in
his pocket to the motel room in which Lisa Rene
was held and raped repeatedly, and burned his
clothes to destroy evidence after her murder.
The government also presented the testimony of
(continued...)

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7
III.
Webster claims he is mentally retarded and
thus ineligible for his death sentence, but given
our rejection of his claim regarding the stan-
dard of proof and sufficiency of the evidence
supporting the contrary finding at trial, this
claim is reduced, in essence, to nothing more
than an attempt to re-litigate the question.
Indeed, Webster’s brief does not point to any
new evidence bearing directly on his mental
capacity; instead, it summarizes the evidence
presented at trial concerning his cognitive
abilities and childhood experiences.16
Webster cannot, however, continue to liti-
gate this claim hoping that some court eventu-
ally will agree with him. The question wheth-
er he is mentally retarded was, as the district
court observed, “a highly contested one at
trial,” Webster, 2003 WL 23109787, at *12,
and Webster failed to convince either the
district court that he is retarded or, moreover,
a majority of the jurors that he is or even may
be retarded. And the record supports those
findings.
The judgment denying Webster’s petition
for post-conviction relief is AFFIRMED.
15(...continued)
numerous other witnesses, including correctional
officers and fellow inmates that, while incarcer-
ated, Webster engaged in various activities poten-
tially inconsistent with a finding of retardation.
For example, he wrote letters to fellow inmates;
received letters and newspapers; read aloud from
newspapers; wrote request slips for various ser-
vices; prepared written grievances; submitted
names and addresses of people for his visitation
list; and on one occasion complained because the
change he received from the prison commissary
was incorrect.
16 Webster’s brief does refer to evidence mar-
shaled in the district court on collateral review con-
cerning racial discrimination in the district where
Webster attended school, which Webster continues
to assert would have, if presented at trial, demon-
strated why he was not enrolled in special educa-
tion courses and therefore would have effectively
countered the government’s assertion that he is not
mentally retarded. But we previously denied
Webster a COA on an ineffective assistance of
counsel claim premised on the failure of defense
counsel to investigate and present such evidence
and on a a vague yet related claim under Brady v.
Maryland, 373 U.S. 83 (1963), see Webster, 392
F.3d at 795, 797-99.
(continued...)
16(...continued)
Our analysis of those claims obtains equally
here: “In the main, the prosecution presented sub-
stantial evidence countering Webster’s claim of
mental retardation, and the government’s effort did
not depend in any significant respect on Webster’s
non-enrollment in special education courses.” Id.
at 798-99. Thus, we held that even if Webster
could otherwise sustain his claims, “the incremen-
tal impeachment value, if any, of such evidence
does not raise a possibility that, had the evidence
been presented, the outcome would have been
different.” Id. at 795; see also id. at 799.

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