### 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 constit utionally 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 present ed in a prior application shall United States Court of Appeals Fifth Circuit 

### FILED A ugust 2 3 , 2018

Lyle W. Cayce Clerk Case: 18-40270 Document: 00514653689 Page: 1 Date Filed: 09/24/2018No. 18

- 40270

2 be dismissed. ” 1 B y 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 224 4 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 We have held, in a pair of unpublished decisions, that this cross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 § 22 44(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.3 d 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 22 5 4” shows that Congress intended for that section to apply only to claims brought by state prisoners. He invokes the ca non of expressio unius est

exc lusio alterius (“the expression of one thing implies the exclusion of ano ther”)

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). Case: 18-40270 Document: 00514653689 Page: 2 Date Filed: 09/24/2018No. 18

- 40270

3 as support. See Tex. Office of Pub. Util. Counsel v. FCC , 183 F.3d 393, 443 &
n.96 (5th Cir. 1999); s ee also POM Wonderful LLC v. Coca

- Cola Co. , 134 S. Ct. 2228, 2238 (2014) (a pplying 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 a n 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 ot her 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 apply ing § 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 cross
reference s the procedures set forth in § 2244

. What is more, “t he legislative
hi story 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,
89 8 (5th Cir. 2001)

. A nd “ 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 curi am) ; 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 t hat

was already presented in his original motion , his request for authorization is
DENI ED. Case: 18-40270 Document: 00514653689 Page: 3 Date Filed: 09/24/2018