### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

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B RUCE C ARNEIL W EBSTER , Petitioner

- Appellant ,

v.
J OHN F. C ARAWAY , Warden, United States Penitentiary, Terre Haute , Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana
, Terre Haute Division. No. 2:12

- cv

- 86

- WTL

- WGH

— William T. Lawrence
, Judge

.

____________________
A RGUED J ULY 24, 2014

— D ECIDED A UGUST 1, 2014

____________________

Before B AUER , E ASTERBROOK , and S YKES , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Bruce Webster was convicted of a federal capital offense and sentenced to death. Details of the crime, which do not matter for current purposes, may be found i n United States v. Web ster , 392 F.3d 787 (5th Cir. 2004) ( direct appeal), and United States v. Webster , 421 F.3d 308 (5th Cir. 2005) (28 U.S.C. §2255) . The Fifth Circuit also denied Webster’s application for permission to pursue a second co l-2 No. 14

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lateral attack. In re Webster , 605 F. 3d 256 (5th Cir. 2010). Ha ving exhausted his opportunities within the Fifth Cir cuit, where the crime and trial occurred, Webster asked for colla teral relief under 28 U.S.C. §2241 in the Southern District of Indiana, wh ere he is confined. Webster’s guilt, a nd the heinousness of his acts, are u ncontested. He sought to persua de a jury , the district judge , and the judges of the Fifth Cir cuit that he is not death

eligible because he is mentally retarded. The Supreme Court held in Atkins v. Virginia , 536 U.S. 304 (2002), that the Const itution forbids the execution of persons who are retarded or unable to understand what capital punishment means and why they have been sentenced to die. See also Hall v. Florida , 134 S. Ct. 19 86 (2014). Webster did not n eed to rely o n the Constitution, however, for he has the protect ion of a federal
statute : “ A sentence of death shall not be carried out upon a person who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person. ” 18 U.S.C. §3596(c). At trial Webster introduced evidence from multiple experts who conc luded that his IQ is less than 7 0 and that he is retarded. The prosecutor responded with evidence from other experts who concluded that Webster is not retarded and was malingering in an effort to evade punishment. The jury sided with the prosecution, the judge sentenced We bster to d eath, and the Fifth Circuit held both on direct appeal and in a collateral attack under §2255 that ample evidence supports this deci sion

. (Webster does not argue that he is unable to understand the concept of capital punishment or why he has received that sentence.)No. 14

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In the current procee ding Webster does not contend that the law

— or his mental condition

— has changed since the Fifth Circuit’s decisions on direct and collateral review

. I nstead he contends that he has new evidence bearing on the question that the jury decided adversely to him. His current legal team has acquired records that the Social Security A dministration created when he applied for disability benefits. The SSA sent him to see a psychologist, who administered an IQ test that produced a score under 60. This psychologist, plu s two consulting physicians, concluded that he is retar ded. The SSA nonetheless classified him as not disabled. He contends that the three medical reports could have changed the outcome of the trial, since the Social Security procee dings predated the crime of which he stands convicted

— and therefore, his lawyers insist, occurred before he had an i ncentive to deceive peo ple about his mental condition.
But the district court dismissed the §2241 petition wit hout a hearing, ru ling that it is blocked by §2255 (e), which reads: “ 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

... unless it also appears that the remedy by motion is inadequate or i neffec tive to test the legality of his detention. ” The district judge saw nothing “inadequate or ineffective” about §2255, which Webster had been able to use to obtain a decision by the Fifth Circuit about his mental condition. Webster v. Loc kett , 2013 U.S. Dist

. L EXIS 161375 (S.D. Ind. Nov. 13, 2013). The judge thought that a prisoner’s own failure to present ev idence does not demonstrate statutory inadequacy or ineffe ctiveness.4 No. 14

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We agree with that conclusion. Taken in the light most favorable to Webster

— which is to say, on the assumption that the evidence is “newly discovered” and might have a ffected the jury’s evaluation

— the arguments now presented tend to impugn the effectiveness of Webster’s former la wyers but not of §2255. The trial, the direct appeal, and th e proceeding under §2255 offered opportunities to use the e vidence that Webster now seeks to present. That Webster’s legal team did not take (full) advantage of those opportu n ities does not demonstrate a flaw in the stat ute. No court of appeals has deemed §2255 “inadequate or i neffective” just because counsel failed to take maximum a dvantage of the opportunity it extends. To get anywhere, Webster must persuade us not only to break new ground but also to hold that the changes to §2255 made in 1996 by the Ant iterrorism and Effective Death Penalty Act

— and partic ularly the addition of §2255(h), which limits second or succe ssive petitions to those that satisfy a short list of conditions

— made §2255 ineffective. In other words, he must persuade us that the AEDPA is self

- negating, that by restricting the nu mber of §2255 petitions Congress indirectly authorized an u nlimited number of §2241 petitions seeking the same relief. At oral argument, Webster’s counsel was explicit: He asked us to apply pre

- 1996 law and to hold that an additional colla teral attack is proper whenever the prisoner does not abuse the writ. That would write §2255(h) and 28 U.S.C. §2244(b) out of the United States Code. Yet courts do not interpret statutes to make revisions se lf

- cancelling

. We have h e ld that §2255(h) does not make §2255 as a whole inadequate or ine ffective. See Unthank v. Jett , 549 F.3d 534, 535

– 36 (7th Cir. 2008); Taylor v. Gilkey , 314 F.3d 832, 835 (7th Cir. 2002) . We bster does not persuade us to change course.No. 14

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Our decisions in In r e Davenport , 147 F.3d 605 (7th Cir. 1998), and Brown v. Ca raway , 719 F.3d 583 (7th Cir. 2013), discuss the circumstances that may justify a federal priso ner’s use of §2241 to test the validity of his conviction or se ntence. When a change of law, retroactively applicable, shows that the prisoner did not commit a crime or has received an illegally high sentence, §2241 is available if it otherwise would be impossible to implement the Supreme Court’s i ntervening decision. Section 2255(h) allows for a new round of collateral review in response to retroactive constitutional decisions, but Congress did not appear to contemplate the possibility of retroactive statutory decisions that show a pri soner’s innocence. That’s the flaw that Davenport and Brown see as justification for invoking §2241. Davenport and its successors conclude that §2241 is avai lable to provide the full retroactive effect contemplated by the Su preme Court . But Webster is not the beneficiary of a retroactive d ecision that cannot be implemented except through §2241. There has been no change of law; §3596(c) predates his crime and trial. Nor does Webster contend that his mental condition has changed. Instead he wants to use §2241 to make a better factual record a nd to place his arg uments before a different circuit, hoping for a better result. These desire s, understandable as they are, do not call into question the adequacy or ef fectiveness of §2255

. For what little it is worth given this legal conclusion, we add t hat the evidence that Webster wants to introduce ca nnot helpfully be called “newly discovered.” Webster has long known of it, or readily could have discovered it. It co ncerns his own application for Social Security disability ben efits. He knew about that ; his lawyer at trial knew about it too6 No. 14

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(his mother mentioned the subject during her testimony); and it would have been possible to retrieve the records in time for use during the trial and §2255 pro ceeding

. Webster’s current legal team asserts that his form er la wyer was stonewalled when trying to obtain these records, but that is not what the former lawyer himself said. He related that he asked the Social Security Administration for We bster’s records but lacks any memory of a response and ther efore assumes that he must have been denied ac cess. Yet that assump tion is unfounded

. Former counsel did not produce his file (he says that he no longer has it) and therefore did not have any records about the request (if any) and response (if any); he has only a lack of recollection to go on. That’ s pretty weak. O ne sensible inference would be that former

coun sel, or an investigator on his behalf, simply did not fo llow through. Current counsel obtained the records less than four months after asking, even though the dis ability case is an old one and many records had been sent to long

- term storage. None of the difficulties (if there were any) that ori ginal counsel encoun tered can be blamed on §2255. Nor would the Social Security records facilitate a new line of defense. W ebster’s trial counsel had, and introduced, other medical records in which physicians diagnosed reta rdation before the murder. These records enabled him to ask the jury to infer that he had not started trying to deceive e xaminers after the prosecu tion bega n . The prosecutor could and did reply that Webster had reasons other than a desire to avoid the death penalty to minimize his mental abilities. Trying to obtain disability benefits would have been one such reason, so the evidence that current counsel now w antsNo. 14

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to use could have been subject to much the same response as the prosecutor made to the records introduced at sentencing

. But we have not set out to decide what effect the SSA records might have had in the hands of a top

- notch lawyer; it is enough to c onclude that the to

- and

- fro between the prosecutor and Webster’s curr ent legal team does not hint at a structural problem in §2255, so §2255(e) disallows the use of §2241 to get a fresh decision. Before we close, we must consider whether the district
court entered the proper judgment. The court dismissed the §2241 petition with prejudice. That’s the right step if the court had subject

- matter jurisdiction. Yet several circuits have held that §2255(e) limits the federal courts’ subject

matter jurisdiction. Se e Williams v. Warden , 713 F.3d 1332, 1337

– 40 (11th Cir. 2013) (collecting cases). The Eleventh Ci rcuit treated us as reaching a contrary conclusion in Brown v. Rios , 696 F.3d 638 (7th Cir. 2012), but discounted that dec ision on the ground that the court ha d “simply accepted the government’s concession” ( id . at 1340 n.1)

— which would be an improper way to address a jurisdictional issue. See also Sperberg v. Marberry , 381 Fed. App’x 602 (7th Cir. 2010) ( nonprecedential) (“ [w]hether the proceeding is allowable under §2255(e) is a question on the merits; it does not affect subject

- matter jurisdiction.”). In light of Williams we have taken a fresh look at the issue and once more conclude that §2255(e) does not curtail subject

- matter jurisdiction.

Here is its language again: “ 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

... unless it also appears that the remedy by motion is inadequate or ineff ective to test the legality of his8 No. 14

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detention. ” It does not employ the word jurisdiction

— nor is §2255 itself a jurisdictional statut e. A motion under §2255 is one in the criminal case, and jurisdicti on thus comes from 18 U.S.C. §32 31, which supplies subject

- matter jurisdiction in all federal criminal prosecutions. Section 2255(e) does not purport to contract that jurisdiction.
Nor d oes §2255(e) restrict the several sources of subject

matter jurisdiction available when a federal prisoner seeks a writ of habea s corpus. One source is 28 U.S.C. §1331, which creates jurisdiction for claims arising under federal law. A nother is 28 U.S.C. §1343(a)(4), which deals with civil

- rights claims, of which petitions for habeas corpus are example s

. Then there is §2241 itself, which appears to authorize federal litigation independent of other statutes (which, when §2241 was enacted, had amount

- in

- controversy limits that could have made them unavailable for claims with in its scope ). Section 2241(e) has two subdivisions that expr essly limit

su b ject

- matter jurisdiction, but neither applies to a claim a rguably blocked by §2255(e). Because §2241 itself tells us when subject

- matter jurisdiction runs out, it is inappropriate
to infer additional limits from non

- jurisdictional language i n a different statute. Arbaugh v. Y&H Corp ., 546 U.S. 500, 516 (2006), says that if “Congress does not rank a statutory lim itation

... as jurisdictional, courts should treat the limi tation as nonjurisdictional ”

. See also, e.g., Gonzalez v. Thaler , 132 S. Ct. 641, 648 (2012) (reiterating this conclusion). Section 2255(e) sets a firm limit, to be sure, but not one that Congress has added to the jurisdictional ranks. The court has “adjud icatory authority” ( Gonzalez , 132 S. Ct. at 648) to determine wh ether §2255 is inadequate or ineffective in a given situ ation; no more is necessary for subject

- matter jurisdiction.No. 14

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Williams concludes that §2255(e) is jurisdictional, neve rtheless, because it uses mandatory language. An application “shall not be entertai ned” unless a condition is met. The Eleventh Circuit wrote that it found the limit jurisdictional “[b]ased on the text alone, which speaks in imperative terms”. 713 F.3d at 1338. Yet the Supreme Court has held that mandatory rules are not automatically j ur isdictional. Gonzalez is one illustration. It holds that 28 U.S.C. §2253(c)(3) is not jurisdictional even though it includes the word “shall”. The Court continued: “calling a rule nonjurisdi ctional does not mean that it is not mandatory or that a timely ob jection can be ignored. ... This Court ... has long ‘rejected the notion that “all mandatory prescriptions, however e mphatic, are ... properly typed jurisdictional.”’” 132 S. Ct. at 651, quoting from Henderson v. Shinseki , 131 S. Ct. 1197, 1205 (2011), and citin g Dolan v. United States , 560 U.S. 605 , 611

– 12 (2010).
The Court in Gonzalez also cited Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154 (2010), which like Henderson and D olan declined to equate mandatory rules with jurisdictional

ones. Reed Elsevier concerne d a portion of the Copyright Act that made registration essential to litigation. A court of a ppeals held that the mandatory nature of that condition on judicial review made it jurisdictional; the Justices unan imously disagreed. We reached a similar conclus ion in Minn

Chem, Inc. v. Agrium
, Inc. , 683 F.3d 845 (7th Cir. 2012) (en banc), about language in the Foreign Trade Antitrust I mprovements Act providing that some parts of the Sherman Antitrust Act “shall not apply” to certain international events. That la nguage stated a question on the merits, we held, and did not contract subject

- matter jurisdiction. See10 No. 14

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also Morrison v. National Australia Bank Ltd ., 561 U.S. 247, 253

– 54 (2010). Two more examples of mandatory but non

- jurisdictional rules. A bankruptcy cou rt can extend the time for objection to discharge if and only if the motion for additional time is filed within 60 days of the creditors’ meeting. A court of a ppeals treated the mandatory nature of this rule as a jurisdi ctional limit; the Supreme Court hel d otherwise. Kontrick v. Ryan , 540 U.S. 443 (2004). Our other example is Eberhart v. United States , 546 U.S. 12 (2005) . Criminal defendants are e ntitled to move for new trials, but the time available to do so is limited

— and at the time that limit could not be extended. Fed. R. Crim. P. 33, 45(b)(2). The Supreme Court twice trea ted the mandatory nature of this rule as a jurisdictional r estriction. United States v. Robinson , 361 U.S. 220, 229 (1960); United States v. Smith , 331 U.S. 469, 474 & n.2 (1947 ). But Eberhart disapproves Robinson and Smith to the extent that they equate “mandatory” rules with “jurisdictional” ones

. Eberhart classified the time limits as among the many claims

processing rules that shape the course of litigation but can be waived or for feited. The United States Code is jam

- packed with imperative language. Rules of law tell litigants, and courts, what must be done. These rules are enforced when their beneficiaries invoke them. If they are also treated as jurisdictional, ho wever, then cour ts must raise the subject on their own, even when litigants choose to waive or forfeit their rights. Decla ring a rule to be “jurisdictional” not only makes extra work for judges but also creates a prospect that the time and ene rgy invested in a case will p rove to be wasted, when an a ppellate court dismisses the suit or directs the litigants to startNo. 14

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over. Curtailing the need for judges to resolve issues on their own initiative, and the risk that both private and judicial e fforts will be squandered , are the principal reasons why the Supreme Court has insisted in recent years that very few rules be treated as jurisdictional. See, e.g., Gonzalez , 132 S. Ct. at 647

– 48. The text of §2255(e) does not suggest to us that Congress
set out to prevent the Attorney Gene ral from consenting to collateral review under §2241, if the Executive Branch thinks that necessary to avert an injustice. We conclude, accordin gly, that §2255(e) does not contract subject

- matter jurisdi ction

— which means that its benefits can be waived or forfei ted. But in this case the Attorney General has invoked his right to say “enough is enough” and to prevent an additio nal round of collateral review. The district court had jurisdi ction and entered the proper kind of judgment.
A FFIRMED