REVISED September 24, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40270

In re: ALFRED BOURGEOIS, 

 Movant

Motion for an order authorizing

the United States District Court for the

Southern District of Texas, Corpus Christi, to consider

a successive 28 U.S.C. § 2255 motion

Before KING, DENNIS, and HIGGINSON, Circuit Judges.

KING, Circuit Judge:

Alfred Bourgeois, a federal death-row inmate, asks us to authorize 

consideration of a successive motion to vacate his death sentence. See 28 U.S.C. 

§ 2255(h). In his successive motion, Bourgeois claims that he is constitutionally 

ineligible for the death penalty because he is intellectually disabled. See Atkins 

v. Virginia, 536 U.S. 304 (2002). While Bourgeois’s original motion 

unsuccessfully raised an Atkins claim, he contends that the Supreme Court’s 

decision in Moore v. Texas, 137 S. Ct. 1039 (2017), now makes his claim viable. 

Bourgeois is barred from relitigating his Atkins claim. Under 28 U.S.C. 

§ 2244(b)(1), “[a] claim presented in a second or successive habeas corpus 

application under section 2254 that was presented in a prior application shall 

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2018

Lyle W. Cayce

Clerk

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No. 18-40270

2

be dismissed.”1 By its terms, the provision applies to “second or successive 

habeas corpus application[s] under section 2254”—the section governing state 

prisoner habeas applications. But § 2244(b)(1)’s strict relitigation bar is 

incorporated by 28 U.S.C. § 2255(h), the provision governing a federal 

prisoner’s successive § 2255 motions. Section 2255(h) states: “A second or 

successive motion must be certified as provided in section 2244 by a panel of 

the appropriate court of appeals to contain” either newly discovered evidence 

or a new rule of constitutional law. Id. § 2255(h) (emphasis added). We have 

held, in a pair of unpublished decisions, that this cross-reference incorporates 

§ 2244(b)(1)’s strict relitigation bar into § 2255(h)’s scheme. See In re Hartzog, 

444 F. App’x 63, 64 (5th Cir. 2011) (per curiam); Montalvo v. Casterline, 48 

F. App’x 480, 2002 WL 31049451, at *1 (5th Cir. Aug. 29, 2002) (per curiam).2

Every other circuit to take up the question agrees. See In re Bradford, 830 F.3d 

1273, 1275 (11th Cir. 2016) (per curiam); Dawkins v. United States, 829 F.3d 

549, 550 (7th Cir. 2016) (per curiam); United States v. Lee, 792 F.3d 1021, 1023 

(8th Cir. 2015); In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (per curiam); 

United States v. Card, 220 F. App’x 847, 851 (10th Cir. 2007); Green v. United 

States, 397 F.3d 101, 102 n.1 (2d Cir. 2005) (per curiam). 

Bourgeois’s only rejoinder is unpersuasive. He argues that Congress’s 

express limitation of § 2244(b)(1)’s scope to habeas applications brought “under 

section 2254” shows that Congress intended for that section to apply only to 

claims brought by state prisoners. He invokes the canon of expressio unius est 

exclusio alterius (“the expression of one thing implies the exclusion of another”) 

 

1 Bourgeois does not contest that his § 2255 motion is second or successive. Nor does 

he contest that the Atkins claim he currently raises was “presented in a prior application.” 

See 28 U.S.C. § 2244(b)(1).

2 As Hartzog and Montalvo are unpublished, they are non-precedential but “may be 

considered persuasive authority.” See United States v. Torres-Jaime, 821 F.3d 577, 582 (5th 

Cir. 2016).

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as support. See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443 & 

n.96 (5th Cir. 1999); see also POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 

2228, 2238 (2014) (applying the doctrine). 

But the expressio unius canon is not meant to be mechanically applied. 

Express provision of one thing only “implies” the exclusion of another. See Tex. 

Office of Public Util., 183 F.3d at 443 & n.96 (emphasis added). Context may 

indicate that Congress did not wish for an express provision of one thing to 

work towards the exclusion of another. See Christensen v. Harris Cty., 529 U.S. 

576, 583 (2000); Springer v. Gov’t of Phil. Islands, 277 U.S. 189, 206 (1928)

(“Like other canons of statutory construction,” expressio unius “is only an aid 

in the ascertainment of the meaning of the law, and must yield whenever a 

contrary intention on the part of the lawmaker is apparent.”). 

Here, the larger statutory context favors applying § 2244(b)(1)’s strict 

relitigation bar to federal prisoners. Section 2255(h) does not supply its own 

procedures for processing successive § 2255 motions. Instead, it crossreferences the procedures set forth in § 2244. What is more, “the legislative 

history does not distinguish between second or successive motions by federal 

and by state prisoners.” Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 

1997), cited with approval in Reyes-Requena v. United States, 243 F.3d 893, 

898 (5th Cir. 2001). And “it would be odd indeed if Congress had intended to 

allow federal prisoners to refile precisely the same non-meritorious motions 

over and over again while denying that right to state prisoners.” In re Baptiste, 

828 F.3d 1337, 1339 (11th Cir. 2016) (per curiam); see White v. United States, 

371 F.3d 900, 901 (7th Cir. 2004) (invoking a similar sentiment).

As Bourgeois’s successive § 2255 motion presents only a single claim that 

was already presented in his original motion, his request for authorization is

DENIED.

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