Wesley Purkey v. United States ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3318
WESLEY IRA PURKEY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Respondents-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00414-JPH-DLP — James P. Hanlon, Judge.
____________________
ARGUED JUNE 16, 2020 — DECIDED JULY 2, 2020
____________________
Before WOOD, Chief Judge, and BRENNAN and ST. EVE,
Circuit Judges.
WOOD, Chief Judge. Accuracy and finality are both central
goals of the judicial system, but there is an inherent conflict
between them. Suppose later information comes to light in a
criminal case, and that information reveals potential factual
or constitutional errors in the original proceeding. Do we
privilege accuracy and re-open the case, or do we privilege
finality and leave the errors unexamined? And if we do
2 No. 19-3318
permit a second look, is a third or fourth also proper? The case
before us presents just such a question, and the stakes could
not be higher. We must decide whether Wesley Purkey, who
sits on federal death row at the U.S. Penitentiary in Terre
Haute, Indiana, has run out of opportunities to challenge his
conviction and death sentence for kidnapping and murder.
Purkey urges that his proceedings up to now have been un-
dermined by ineffective assistance of counsel, first at the trial
level, and then on collateral review. The United States argues
that Purkey already has had an opportunity to challenge the
effectiveness of trial counsel and, under the governing stat-
utes, he has come to the end of the line. The district court
ruled for the government. We conclude that this is not one of
those rare cases in which the defendant is entitled to another
day in court, and so we affirm the district court’s judgment.
I
We can be brief about the underlying facts, since we are
concerned almost exclusively about procedure in this appeal.
On January 22, 1998, Purkey (then 46 years old) saw Jennifer
Long at a grocery store in Kansas City, Missouri. He asked her
if she wanted to party with him. She accepted the invitation
and got into Purkey’s pickup truck. At the time, Long was 16
years old; she commented to Purkey that she had been at her
high school but had left after an argument with some friends.
Matters almost immediately took a bad turn: Purkey told
Long that he needed to stop off briefly at his house in nearby
Lansing, Kansas, but Long objected. Purkey then threatened
her by removing a boning knife from the glove box and plac-
ing it under his thigh, while telling her that he would not let
her out of the truck. He drove her across the state line to his
No. 19-3318 3
home, where he raped her, stabbed her repeatedly with the
boning knife, and ultimately killed her.
In order to conceal the murder, Purkey stored Long’s body
in a toolbox for a few days; he later dismembered it and
burned the pieces in his fireplace. What he could not destroy,
he dumped into a septic lagoon.
That was not Purkey’s only murder during 1998. In Octo-
ber, he killed 80-year-old Mary Ruth Bales using only the claw
end of a hammer. This took place in Kansas, where he was
quickly caught and placed in custody. In December 1998,
while awaiting trial in the Bales case, Purkey sent a letter to
Detective Bill Howard of the Kansas City, Kansas, police de-
partment, stating that he wanted to talk about a kidnapping
and homicide that had occurred earlier that year. Purkey also
insisted that an FBI agent come along. His reason was this: he
realized that he faced a life sentence in Kansas for the Bales
murder, but he thought that if he were convicted on federal
charges, he would also receive a life sentence, but he could
serve it in a federal facility. It apparently did not occur to him
that the death penalty is possible for certain federal crimes.
Purkey had several conversations with Detective Howard
and FBI Special Agent Dick Tarpley. In each of them, he said
that he planned to plead guilty in the Bales case. He also ex-
pressed a willingness to confess to another murder in ex-
change for a life sentence in federal prison. Howard and
Tarpley promised to inform the U.S. Attorney in Kansas of
Purkey’s offer, but they made no other commitment. Purkey
then confessed that nine months earlier, he had kidnapped a
young woman named Jennifer in Kansas City, Missouri,
transported her to his home, and had raped, killed, dismem-
bered, and disposed of her. Howard and Tarpley passed this
4 No. 19-3318
information along to the U.S. Attorney, who indicated that if
Purkey cooperated further, he might be willing to prosecute
the case.
Purkey did cooperate, by taking Howard and Tarpley to
the crime scene, showing them the septic pond where he had
deposited the remains, giving handwritten and oral confes-
sions, and identifying Long’s photograph from a lineup.
Purkey was under the impression that he was negotiating for
a life sentence, but Howard and Tarpley denied that any such
deal was on the table. And indeed, on October 10, 2001, after
Purkey pleaded guilty in Kansas court to the Bales murder, a
grand jury in the Western District of Missouri indicted him
for the kidnapping, rape, and murder of Long, in violation of
18 U.S.C. §§ 1201(a), 1201(g), and 3559(d). The U.S. Attorney
filed a notice that the government planned to seek the death
penalty. See 18 U.S.C. § 3593(a).
II
A
At the trial, Purkey was represented by Attorneys Freder-
ick Duchardt, Jr. (principal counsel) and Laura O’Sullivan. Be-
cause Purkey had repeatedly confessed that he kidnapped
Long (four times, by the government’s count), his defense de-
pended on the jury’s accepting his contention that he had lied
when he said that he took her by force, and that the truth was
instead that he thought she was a prostitute who willingly ac-
companied him from Missouri to Kansas. He testified that he
had fabricated the claim of force because he wanted to be
prosecuted in federal court. The government responded with
certain statements from Purkey’s suppression hearing, at
which he admitted that he took Long across state lines against
No. 19-3318 5
her will, to impeach his trial testimony. Purkey’s lawyers
made no effort to exclude this evidence, which he now says
was ultimately used not just for impeachment, but (impermis-
sibly) to prove the truth about coercion. The jury was not per-
suaded by Purkey’s account; on November 5, 2003, it returned
a verdict of guilty.
The penalty phase of the trial began shortly thereafter, on
November 10, 2003. Purkey’s lawyers submitted evidence on
27 mitigating factors, though as we will see, current counsel
believe that their work fell short of the constitutional mini-
mum. Experts testified that Purkey both had organic brain
damage, principally stemming from severe injuries suffered
in car accidents, and that his mental capacity was diminished.
The government offered evidence in opposition to the alleged
mitigating factors, and it also introduced evidence of six stat-
utory and four non-statutory aggravating factors. See 18
U.S.C. § 3592(c) (listing 16 statutory aggravating factors and
permitting consideration of any other aggravating factor for
which the defendant received notice). The jury found that the
government had proven the existence of all six statutory fac-
tors. See 18 U.S.C. §§ 3592(c)(1), (2), (3), (4), (6), and (11). It also
found three of the four non-statutory factors: loss because of
personal characteristics and impact on the family; previous
vicious killing of Bales; and substantial criminal history.
The penalty question was submitted to the jury on Novem-
ber 19, 2003; it returned a death sentence on the same day.
Although the verdict form included space for findings on mit-
igating factors, the jury left that section blank. When the jury
announced its verdict, defense counsel initially objected to
this omission and the court offered to send the jury back for
further deliberations. But the government objected, and
6 No. 19-3318
defense counsel dropped the point without further comment.
The court thus never resolved the question whether the blank
form meant that the jury neglected to address the question of
mitigation, or if it meant that it thought about the subject and
concluded that there was nothing to report. The court for-
mally imposed a sentence of death and entered its judgment
on January 23, 2004.
Purkey appealed to the Eighth Circuit, which affirmed the
conviction and sentence. United States v. Purkey, 428 F.3d 738
(8th Cir. 2005) (Purkey I). The Supreme Court denied Purkey’s
petition for a writ of certiorari. Purkey v. United States, 549 U.S.
975 (2006). Purkey then filed a motion for postconviction relief
under 28 U.S.C. § 2255.
B
Purkey raised two primary claims in his section 2255 pro-
ceedings: (1) ineffective assistance of trial counsel in 17 differ-
ent particulars, in violation of his Sixth Amendment rights;
and (2) several alleged violations of his due process rights
during the trial (namely, government misconduct during the
trial, insufficient evidence to find kidnapping beyond a rea-
sonable doubt, and error in the jury’s failure to address the
question of mitigating evidence). He urged the district court
to give him an evidentiary hearing on the ineffectiveness-of-
counsel claim. In order to respond to that charge, the govern-
ment submitted a 117-page affidavit from attorney Duchardt,
in which Duchardt defended his work.1 Purkey asserted that
1 The district court ordered the preparation of that affidavit in re-
sponse to a motion from the government. See Purkey v. United States, No.
06-8001-CV-W-FJG, 2008 WL 11429383 at *2 (W.D. Mo. Feb. 1, 2008). In the
same order, the court denied Purkey’s counsel’s motion to compel the Fed-
eral Bureau of Prisons (BOP) to provide Purkey with necessary psychiatric
No. 19-3318 7
the court could not take Duchardt’s word on these points, and
worse, that Duchardt had misrepresented certain things and
had violated his duty of confidentiality to Purkey. The district
court decided, however, that Purkey had failed to overcome
the presumption that Duchardt’s actions reflected trial strat-
egy. It therefore denied relief under section 2255. Purkey v.
United States, No. 06-8001-CV-W-FJG, 2009 WL 3160774 (W.D.
Mo. Sept. 29, 2009) (Purkey II).
Through counsel, Purkey moved to alter or amend the
court’s rejection of his section 2255 motion; at the same time,
he filed a pro se motion “to Withdraw Habeas Proceedings
and Set an Expeditious Execution Date.” Purkey v. United
States, No. 06-8001-CV-W-FJG, 2009 WL 5176598 (W.D. Mo.
Dec. 22, 2009) (Purkey III). The district court denied the motion
insofar as it sought reconsideration of the denial of relief un-
der section 2255, and it permitted Purkey to withdraw the pro
se motion seeking the abandonment of his section 2255 re-
quest and an early execution date. Nearly a year later, the
court issued a lengthy opinion in which it denied Purkey’s re-
quest for a certificate of appealability. Purkey v. United States,
No. 06-8001-CV-W-FJG, 2010 WL 4386532 (W.D. Mo. Oct. 28,
2010) (Purkey IV).
Turning to the Eighth Circuit, Purkey was successful in ob-
taining a certificate of appealability “to review whether
Purkey received effective assistance of counsel during the
penalty phase of the trial and whether the district court
abused its discretion by denying relief without conducting an
treatment, it denied Purkey’s pro se motion seeking leave to dismiss coun-
sel and proceed pro se, and it gave the government an extension of time
in which to respond to the motion under section 2255.
8 No. 19-3318
evidentiary hearing.” Purkey v. United States, 729 F.3d 860, 861
(8th Cir. 2013) (Purkey V). The certificate permitted “Purkey to
challenge three aspects of Duchardt’s performance in this pro-
ceeding: (1) his alleged failure to adequately prepare and pre-
sent the testimony of three expert witnesses, (2) his alleged
failure to adequately investigate and prepare two mitigating
witnesses, which resulted in their testimony being more prej-
udicial than beneficial, and (3) his alleged failure to ade-
quately investigate and present other mitigating evidence.”
Id. at 862.
The Eighth Circuit found that Duchardt had presented “a
lengthy and detailed mitigation case” during the penalty
phase. Id. at 863. Over two days, he offered testimony from 18
witnesses—family members, inmates, and religious
counselors—all of whom stated that Purkey’s parents had
inflicted significant physical and emotional abuse on him.
Both were alcoholics, his mother (and many others)
humiliated him because he was a stutterer, and his mother
sexually abused both him and his brother in the most graphic
ways imaginable. Purkey’s medical and mental health records
were introduced; they showed that Purkey had a serious
personality disorder and a below-average IQ. Although
section 2255 counsel had more to offer, the Eighth Circuit
found that the new material was “entirely cumulative.” Id. at
865. Moreover, the court added, to the extent the proffered
information did not cover the same ground as the penalty-
phase evidence, it could not conclude that there was a
reasonable probability that the new evidence would have
changed the result, given the particularly gruesome nature of
the crime. Id. at 866. Finally, it saw no abuse of discretion in
the district court’s decision not to hold an evidentiary
No. 19-3318 9
hearing. Purkey sought certiorari from this decision, but the
Supreme Court denied review. 574 U.S. 933 (2014).
C
That set the stage for the current proceedings—and we
mean to use the plural, because there are three moving pieces,
although we are involved in only one of them. As are all fed-
eral prisoners under a sentence of death, Purkey is housed in
the U.S. Penitentiary in Terre Haute, Indiana. For many
years—to be exact, since March 18, 2003, when Louis Jones, Jr.
was executed—the federal government has not carried out
any executions. But policy changed in the current Administra-
tion, which is moving quickly to resume executions. On July
25, 2019, the government issued a notice scheduling Purkey’s
execution for December 13, 2019. Losing no time, on August
27, 2019, Purkey filed a detailed petition under 28 U.S.C.
§ 2241 in the Southern District of Indiana challenging the con-
stitutionality of his conviction and death sentence. We refer to
this as the “Habeas Corpus” case; it is the one presently before
us. Second, on October 21, 2019, Purkey filed a complaint in
the District of Columbia challenging the execution protocol
that the Bureau of Prisons (BOP) proposes to use. We refer to
this as the “Execution Protocol” case. Finally, on November
11, 2019, Purkey filed another complaint in the District of Co-
lumbia, asserting that he was entitled to relief from the death
penalty under the Supreme Court’s ruling in Ford v. Wain-
wright, 477 U.S. 399 (1985). We refer to this as the Ford claim.
1
Before turning to the Habeas Corpus case, we say a word
about the Execution Protocol litigation and the Ford claim.
The impetus for the Execution Protocol litigation came from
10 No. 19-3318
the fact that the Federal Death Penalty Act of 1994 (FDPA)
calls for federal executions to be done “in the manner pre-
scribed by the law of the State in which the sentence is im-
posed.” 18 U.S.C. § 3596(a). At the time the Department of Jus-
tice announced that it had scheduled Purkey’s execution for
December 13, 2019, there was a consolidated action pending
in the district court for the District of Columbia. In that case
numerous death-row inmates (some of whom also had fixed
execution dates) challenged the execution protocol that BOP
planned to use for them. The Protocol, adopted in 2019, calls
for BOP to use a single drug, pentobarbital, to carry out exe-
cutions. See Matter of Federal Bureau of Prisons’ Execution Pro-
tocol Cases, Nos. 19-mc-145 (TSC) et al., 2019 WL 6691814
(D.D.C. Nov. 20, 2019).
The details of this litigation need not detain us. What is
important is that the D.C. district court preliminarily enjoined
the Department of Justice from moving ahead under the 2019
Protocol, noting among other things that it had taken DOJ
eight years to come up with the Protocol, that the defendants
had a strong interest in litigating the legality of their execu-
tions, and that a minor additional delay would not irrepara-
bly injure the government. The initial dates thus came and
went with no executions. The government promptly ap-
pealed, however, and a divided panel of the Court of Appeals
for the District of Columbia Circuit vacated the injunction and
remanded the case to the district court. See In re Federal Bureau
of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir.
2020). The majority held that the FDPA does not compel the
DOJ to follow every last detail of the relevant state’s execution
procedures, and that the Department did not violate the Ad-
ministrative Procedure Act, because this matter is exempt
from notice-and-comment rulemaking. The inmates
No. 19-3318 11
immediately filed a petition for a writ of certiorari, which was
docketed as No. 19-1348 under the name Bourgeois v. Barr. On
June 29, the Supreme Court denied the petition along with an
application for a stay. We have no role in the Execution Pro-
tocol litigation.
2
Purkey’s Ford claim is, by definition, an individual one. In
it, he asserts that he is now afflicted with dementia (Alz-
heimer’s type) and schizophrenia, and that these conditions
have worsened over the time he has been in prison, to the
point that he no longer appreciates why he faces execution.
The government contests these assertions. Ford holds that the
Eighth Amendment bars the execution of a person who, as of
the planned time for death, is “insane.” See 477 U.S. at 410
(plurality opinion of Marshall, J.), 421–22 (Powell, J., concur-
ring in the judgment). See also Panetti v. Quarterman, 551 U.S.
930 (2007) (confirming Ford holding and holding that a Ford
claim is not ripe until execution is imminent). On February 24,
2020, the government filed a motion to dismiss the Ford claim,
or in the alternative to transfer it from the District of Columbia
(where Purkey filed it) to the Southern District of Indiana.
Purkey filed his motion in opposition on March 16, and the
government responded on March 20. To date, the district
court has not yet ruled on the motion.
In the midst of all this, the Department of Justice issued a
statement on June 15 resetting Purkey’s execution date for
July 15, 2020. Purkey responded with a motion filed on June
22 for a preliminary injunction barring the execution. The
government’s response to that motion was due on June 29,
and Purkey’s reply is due on July 2. We have no current role
in the Ford litigation.
12 No. 19-3318
3
That brings us to the case before us, which Purkey brought
under the basic habeas corpus statute, 28 U.S.C. § 2241. We
held oral argument in this case on June 16, a date that had
long been scheduled as of the time the government issued the
new execution schedule on June 15. The most important ques-
tion we must answer is whether Purkey is entitled to use sec-
tion 2241. Only if the answer is yes may we reach the merits
of the claims he wishes to bring.
In the great majority of cases, the exclusive post-
conviction remedy for a federal prisoner is the one Purkey
already has invoked: a motion under 28 U.S.C. § 2255. Strict
procedures govern the way such a motion must be presented.
First, there is a one-year statute of limitations, which runs
from one of four dates specified in the statute. See 28 U.S.C. §
2255(f). The only relevant date in Purkey’s case is the first:
“the date on which the judgment of conviction becomes
final.” Purkey met that deadline; his section 2255 motion was
the subject of the district court’s decisions in Purkey II through
IV and the Eighth Circuit’s ruling in Purkey V. Second, a
federal prisoner is limited to one motion under section 2255
unless he receives permission to file a second or successive
motion from the appropriate court of appeals. See 28 U.S.C. §
2255(h). The criteria for authorization are draconian: they are
met only if there is compelling newly discovered evidence of
innocence or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court.” Id. Purkey concedes that he cannot satisfy either of
these criteria.
Finally, the statute recognizes a narrow pathway to the
general habeas corpus statute, section 2241, in the provision
No. 19-3318 13
that has come to be called the “safety valve.” Here is what it
says:
An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to apply for relief by mo-
tion pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief,
by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to test
the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added). We thus turn to the
question whether Purkey’s case fits within the narrow con-
fines of the safety valve.
III
This court has had a number of opportunities to consider
the safety valve, but three cases are central: In re Davenport,
147 F.3d 605 (7th Cir. 1998); Garza v. Lappin, 253 F.3d 918 (7th
Cir. 2001); and Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015)
(en banc). The district court, regarding these three as defining
the limits of the safety valve, examined each of them and con-
cluded that Purkey’s situation was distinguishable. We do not
agree with the idea that those cases rigidly describe the outer
limits of what might prove that section 2255 is “inadequate or
ineffective to test the legality” of a person’s detention, but as
we will see, Purkey’s case does not require us to move beyond
what we already have done.
Our first occasion to find the safety valve applicable oc-
curred in Davenport, a case that actually involved two defend-
ants, Davenport and Nichols. The part of the opinion perti-
nent here involved Nichols. He had been convicted of using a
14 No. 19-3318
firearm in the commission of a drug offense, in violation of
the version of 18 U.S.C. § 924(c) that existed in 1990. After his
conviction and a failed motion under section 2255, the Su-
preme Court decided Bailey v. United States, 516 U.S. 137
(1995), which held that “use” for purposes of section 924(c)
did not include mere possession. Because Nichols’s case had
involved only possession, Nichols sought relief under the All
Writs Act, 28 U.S.C. § 1651. The district court rejected that mo-
tion as an attempt to evade the need to obtain permission from
the court of appeals to file a successive section 2255 motion.
147 F.3d at 607.
We noted that Nichols’s situation fell outside the narrow
rules under which a second or successive motion may be au-
thorized: he did not claim to have any new evidence, nor was
there a new rule of constitutional law that applied to his case.
Instead, the Supreme Court had cut the legs out from under
the interpretation of his statute of conviction, leaving him in
prison for actions that (as clarified by the Court) did not con-
stitute a crime. Under those circumstances, we held that
A procedure for postconviction relief can fairly be
termed inadequate when it is so configured as to deny
a convicted defendant any opportunity for judicial rec-
tification of so fundamental a defect in his conviction
as having been imprisoned for a nonexistent offense.
Id. at 611. We went on to add three qualifications to that hold-
ing. First, “the change of law has to have been made retroac-
tive by the Supreme Court.” Id. Second, “it must be a change
that eludes the permission in section 2255 for successive mo-
tions.” Id. And third, “’change in law’ is not to be equated to
a difference between the law in the circuit in which the pris-
oner was sentenced and the law in the circuit in which he is
No. 19-3318 15
incarcerated.” Id. at 612. None of these qualifications applied
to Nichols’s case, and so we held that he was entitled to pro-
ceed under section 2241.
The circumstances in Garza were even more unusual than
those in Davenport. Like Purkey, petitioner Garza was on fed-
eral death row awaiting execution. He had been convicted on
a number of charges, including three counts of killing in fur-
therance of a continuing criminal enterprise, in violation of 18
U.S.C. § 848(e). The wrinkle was this: the murders in question
had occurred in Mexico, and he had never been charged or
convicted there for them. Instead, the jury in his U.S. prosecu-
tion had found beyond a reasonable doubt at the capital sen-
tencing phase of his trial that he had committed the murders.
See 18 U.S.C. § 3593(c) (requiring the government to prove ag-
gravating factors beyond a reasonable doubt). After Garza ex-
hausted his direct appeals and his motion under section 2255,
he turned to the Inter-American Commission on Human
Rights for relief. This Commission, established pursuant to
the Organization of American States (to which the United
States is a party), exists to hear this type of claim. This was the
earliest point at which Garza could seek relief, because the
Commission requires applicants to exhaust national reme-
dies. The Commission concluded that “Garza’s death sen-
tence was a violation of international human rights norms to
which the United States had committed itself.” 253 F.3d at 920.
Garza followed up in the district court with a petition un-
der section 2241; he conceded that he did not satisfy the crite-
ria for a successive motion under section 2255. We concluded
that he was entitled to use section 2241, because it would have
been impossible under the Inter-American Commission’s ex-
haustion rule to have sought relief there in time to include its
16 No. 19-3318
findings in either his direct appeal or his original section 2255
motion. The treaty on which he relied does not give rise to
private rights of action, and so he could not invoke it in his
original case. But, he contended, the Commission’s process
did create private rights. We found that this was not such an
outlandish claim that our jurisdiction was defeated, although
when we reached the merits in his case, we concluded that the
Commission had only the power to make recommendations
to the U.S. government, which remained free to take them or
leave them. That was not enough to justify a stay of his execu-
tion, and so we denied his petition.
The last case in this line is Webster, which was decided by
the en banc court. Once again, the result hinged on the availa-
bility of section 2241 (via the safety valve) for a federal pris-
oner who had completed his direct appeals and had unsuc-
cessfully pursued a motion under section 2255. Webster
found himself on death row after being convicted of the fed-
eral crime of kidnapping resulting in death and related of-
fenses. 784 F.3d at 1124. Turning to section 2241, he sought to
present “newly discovered evidence that would demonstrate
that he is categorically and constitutionally ineligible for the
death penalty under the Supreme Court’s decisions in Atkins
v. Virginia, 536 U.S. 304 (2002), and Hall [v. Florida, 572 U.S. 701
(2014)].” Id. at 1125. At the trial, a central question was
whether Webster was so intellectually impaired that he
should not be subject to the death penalty. The defense intro-
duced evidence of Webster’s school records, intelligence test-
ing, and inability to fake test results. The government re-
sponded with lay witnesses who all said that Webster “did
not seem mentally retarded to them,” id. at 1130, and experts
who said that Webster was able to perform adequately in
school and beyond. Throughout, the government urged that
No. 19-3318 17
Webster was faking his mental limitations in an effort to avoid
the death penalty.
Years after his conviction and the denial of his section 2255
motion, new counsel discovered evidence that gravely under-
mined the government’s theory. It turned out that Webster’s
trial counsel had asked the Social Security Administration for
records on Webster and had been told that there were none.
That was wrong. In fact, the Administration had records da-
ting from a year before his crime in which Webster had been
described as someone whose “[i]deation was sparse and this
appeared to be more of a function of his lower cognitive abil-
ity than of any mental illness.” Id. at 1133. The same doctor
concluded that Webster was both “mentally retarded and an-
tisocial,” and that there was no evidence of malingering. Id.
There were other records to the same effect.
This was a game-changer for Webster. As we pointed out
in the opinion, there was no question of late fabrication of the
new evidence, and (taking the facts favorably to Webster), his
lawyer had diligently sought evidence from that very
source—the Social Security Administration. Counsel had no
duty to continue pestering the Administration after he had
been informed that it had nothing; he was entitled to take the
government at its word. Moreover, these records were far
from cumulative. They directly contradicted the
government’s assertion at trial that Webster had concocted a
story of mental disability solely to avoid the death penalty. A
jury aware of those records could conclude that Webster is
categorically ineligible for capital punishment under the
Supreme Court’s decision in Atkins. Much more, therefore,
than garden-variety newly discovered evidence was at play.
18 No. 19-3318
See 784 F.3d at 1140. Only by using the safety valve could
Webster test the constitutionality of his capital sentence.
Purkey recognizes that his case does not fit the profile of
any of the three we have just discussed, but he argues that at
a broader level, he has presented the same type of problem
and we should thus extend our earlier cases to his situation.
In essence, he argues that section 2255 is structurally inade-
quate to test the legality of a conviction and sentence any time
a defendant receives ineffective assistance of counsel in his
one permitted motion. He recognizes that he faces a problem
in the line of Supreme Court decisions holding that there is no
right to counsel in collateral proceedings, and thus no right to
effective assistance of counsel. See Coleman v. Thompson, 501
U.S. 722 (1991). But, he points out, Coleman is not the last word
on this subject. In Martinez v. Ryan, 566 U.S. 1 (2012), and Tre-
vino v. Thaler, 569 U.S. 413 (2013), the Supreme Court recog-
nized that a state prisoner whose first opportunity (either de
jure or de facto) to raise an ineffectiveness-of-counsel argument
is in state post-conviction proceedings can avoid procedural
default in a later action under 28 U.S.C. § 2254 if he can show
ineffectiveness of post-conviction counsel. And, he adds, this
court held in Ramirez v. United States, 799 F.3d 845 (7th Cir.
2015), that a federal prisoner could seek to reopen an action
under section 2255 using Federal Rule of Civil Procedure
60(b) on reasoning that is analogous to Martinez and Trevino.
With that much established, Purkey jumps from the ability
to use Rule 60(b) to reopen a section 2255 case to the assump-
tion that any federal prisoner whose counsel is ineffective dur-
ing his initial section 2255 proceeding can show that a motion
under section 2255 is inadequate or ineffective and thus that
he is entitled to avail himself of section 2241. At oral
No. 19-3318 19
argument, Purkey also offered a narrower version of this the-
ory, applicable only to capital cases. Because defendants fac-
ing the federal death penalty have a statutory right to counsel
in a section 2255 proceeding, see 18 U.S.C. § 3599(a)(2),
Purkey reasons that ineffectiveness of that counsel deprives a
defendant of effective collateral review and thus permits the
defendant to resort to section 2241.
The government strenuously opposes this line of reason-
ing, which it sees as unraveling all of the restrictions Congress
has imposed on collateral relief for federal prisoners. It also
points out that there is a difference between lacking an oppor-
tunity to raise a claim, and having that opportunity but not
using it effectively. At best, it concludes, Purkey is in the latter
situation. He had and used the opportunity to raise his com-
plaints about ineffective assistance of trial counsel during his
section 2255 proceeding. The fact that new counsel have now
uncovered even more instances of ineffective assistance is not
surprising, but, it says, the same will be true in countless other
cases. Vincit omnia finis.
IV
Although we do not believe that Davenport, Garza, and
Webster create rigid categories delineating when the safety
valve is available—and such a finding would be inconsistent
with the standard-based language of section 2255(e)—we do
think that the words “inadequate or ineffective,” taken in con-
text, must mean something more than unsuccessful. We said
as much in Webster. 784 F.3d at 1136. In Davenport, that some-
thing more came from the structure of the statute. Statutory
problems are simply not covered in section 2255, whether
through oversight or through confidence that the safety valve
would solve the rare problem that arises when, because of an
20 No. 19-3318
intervening Supreme Court decision, a person discovers that
he is in prison for something that the law does not criminalize.
In Garza, that something more arose because of an interna-
tional treaty whose machinery could not be invoked until af-
ter the person had exhausted national remedies. And in Web-
ster, the combined facts of the Social Security Administra-
tion’s alleged mis-information to counsel, counsel’s diligence,
the timing of the discovery of the critical evidence, and the
constitutional ban on executing the mentally disabled had the
effect of making section 2255 structurally unavailable and
opening the door to the section 2241 proceeding. We need not
speculate on what other scenarios might satisfy the safety
valve, other than to say that there must be a compelling show-
ing that, as a practical matter, it would be impossible to use
section 2255 to cure a fundamental problem. It is not enough
that proper use of the statute results in denial of relief.
At the time Purkey filed his motion under section 2255,
nothing formally prevented him from raising each of the three
errors he now seeks to raise in his petition under 2241. The
first of those relates to the failure of trial counsel not to spot
the fact that Juror 13 (whose first name was also Jennifer) had
disclosed on her jury questionnaire that she too had been the
victim of an attempted rape when she was 16 years old. Be-
cause trial counsel never noticed that glaring fact, he did not
object to Juror 13’s being seated, and she in fact served on the
jury that convicted Purkey and voted for the death penalty.
We can accept as true the fact that Purkey’s trial counsel
missed this disturbing coincidence, and it may be likely that
if counsel had noticed it and moved to strike Juror 13 for
cause, such a motion would have been granted. But that is not
the proper question before us now. It is instead whether,
No. 19-3318 21
having raised in his section 2255 motion 17 specific ways in
which his trial counsel were ineffective, Purkey is now enti-
tled to add additional allegations not by obtaining permission
to file a successive section 2255 motion, but through section
2241. Purkey says yes and points to the fact that section 2255
counsel also missed the problem with Juror 13. But how far
are we supposed to take that? What if we were now to permit
a section 2241 proceeding, Purkey were to lose, and new
counsel were to come in and discover that trial counsel also
failed to make a meritorious Batson objection? Would the in-
effectiveness of the first lawyers who litigated the section 2241
proceeding entitle him to a new section 2241 proceeding? If
not, why not? And if so, what would stop a never-ending se-
ries of reviews and re-reviews (particularly since there is no
numerical limit for section 2241)? Purkey has offered no satis-
factory answers to these questions, and we can think of none.
Instead, as the law now stands, once a Sixth Amendment
claim of ineffective assistance of counsel has been raised, as
happened in Purkey’s case, that is the end of the line. In eval-
uating applications for permission to file a second or succes-
sive petition under 28 U.S.C. § 2254 (the habeas corpus statute
for state prisoners), we are required to dismiss a claim “that
was presented in a prior application.” 28 U.S.C. § 2244(b)(1).
We apply the same rule to second or successive motions un-
der section 2255. Pertinent here, if an applicant has already
raised a Sixth Amendment ineffectiveness claim in an earlier
application—even if the specific details of the ineffective per-
formance are different—we must dismiss a new claim of inef-
fective assistance of the same lawyer. This rule flows from the
Supreme Court’s instruction to “consider the totality of the
evidence before the judge or jury” in evaluating a claim of in-
effectiveness, not each particular instance of ineffective
22 No. 19-3318
performance in isolation. Strickland v. Washington, 466 U.S.
668, 695 (1984).
No system is perfect, and we find it troubling that these
rules will leave some people under even a sentence of death
(the ultimate irrevocable action) in the position of never hav-
ing received effective assistance of counsel in the critical re-
spect. It is thus worth nothing that nothing prevents Congress
from changing the rules, especially for capital cases, to ensure
that the ultimate penalty is not carried out on someone who
fell through the cracks and did not get the quality of legal as-
sistance to which the Constitution entitles him. But, as we
noted at the outset, in a human institution there is always
some risk of error. All we can do is to strive to minimize it and
to follow the law to the best of our ability.
Our analysis of Purkey’s second proposed argument for
his section 2241 petition is similar. Current counsel have un-
dertaken a much more comprehensive search for, and analy-
sis of, the extensive mitigating evidence than trial counsel or
section 2255 counsel had performed. The section 2241 petition
sets out this evidence over nearly 100 pages. Most of this evi-
dence goes well beyond the evidence that post-conviction
counsel presented in Purkey II and that the Eighth Circuit dis-
cussed in Purkey V. We agree with Purkey that the efforts of
trial counsel to build a case for mitigation fell short of what
current counsel have now found. But the critical question, as
the Eighth Circuit noted in Purkey V, is whether there is a rea-
sonable probability that this evidence would have changed
the jury’s sentencing recommendation, or if, on the other
hand, it was essentially cumulative.
At this point, we must comment that we are disturbed that
the jury left blank the spaces on the verdict form for its
No. 19-3318 23
consideration of Purkey’s many trial arguments in mitigation,
and that trial counsel did not insist that the case be returned
to the jury for completion of those blanks when he had the
chance. If the jury really meant that it thought that Purkey had
failed to carry his burden on each and every point, it should
have been required to say so. Once it was focusing on mitiga-
tion, however, it may have found some points in Purkey’s fa-
vor. There is no doubt, even based on only the trial evidence,
that Purkey has had a hideous life. It was for the jury to bal-
ance aggravating and mitigating factors, but it is hard to know
whether it did that.
Once again, however, this fault was apparent to everyone
from the minute the jury returned its verdict. Trial counsel
commented on it; original appellate counsel knew about it;
and section 2255 counsel knew about it. We have no idea at
this remove why counsel did not preserve this point through-
out these proceedings. What we do know is that lawyers must
pick and choose among issues, and it is not out of the question
that Purkey’s lawyers thought it better to focus on more
promising arguments. Even if they did not analyze this point,
we are left with the fundamental problem for Purkey: the
mechanisms of section 2255 gave him an opportunity to com-
plain about ineffective assistance of trial counsel, and he took
advantage of that opportunity. There was nothing structur-
ally inadequate or ineffective about section 2255 as a vehicle
to make those arguments.
Finally, Purkey would like to argue that section 2255 coun-
sel fell below the standards established by the Sixth Amend-
ment (and perhaps section 3599(a)(2)) when counsel omitted
any challenge to the use of Purkey’s testimony at his suppres-
sion hearing. Recall that Purkey had confessed several times
24 No. 19-3318
to both local police and the FBI that he had “kidnapped”
Long, meaning that he had taken her across state lines with-
out her consent. At the suppression hearing (according to
Purkey), trial counsel advised him to stick with that story,
even though trial counsel knew that it was untrue and that
Purkey believed that Long had gone with him willingly. This
is somewhat convoluted, in our view, but as best we under-
stand it, Purkey complied with counsel’s advice at the sup-
pression hearing and continued to maintain that he had co-
erced Long into driving to Kansas with him. At the suppres-
sion hearing, Purkey also wanted to show that this confession
was involuntary, because he gave it only in the erroneous be-
lief that the government was prepared to seek a lighter sen-
tence in federal court if he confessed.
At the trial Purkey gave the jury a new version of events:
he thought Long was a prostitute, she went willingly with
him not only into the truck but from Missouri to Kansas, and
only then did the murder occur. Obviously that would have
invited prosecution from Kansas, but the link necessary for
federal jurisdiction would have disappeared (or so Purkey
thought). When Purkey presented his account, however, the
government impeached his testimony with his statements at
the suppression hearing. Trial counsel did not object, nor did
he object when the government used the same statements to
prove the truth of the matter in its closing argument.
These too are arguments about effectiveness of counsel
that were apparent from the start. The question of Long’s will-
ingness to travel with Purkey was relevant, but it was up to
the jury to decide whether to believe his confessions or his re-
cantation. The record shows that both stories were on the rec-
ord, and so the government was entitled to use his earlier
No. 19-3318 25
version as impeachment. If it strayed over the line, that is a
problem, but it is too late to correct it (and it is not clear to us
that this would have been prejudicial, in light of all the evi-
dence against Purkey at the trial).
V
Purkey has raised serious arguments in this appeal—
particularly his points about Juror 13 and the failure to
conduct an adequate mitigation investigation—and we do not
mean to minimize them even though we have ruled against
him. He is correct that the Supreme Court’s decisions in
Martinez and Trevino can be read to say that a person can
overcome a procedural bar to bringing a claim of ineffective
assistance of trial counsel in a federal court, if counsel in post-
conviction proceedings was him- or herself ineffective. The
idea of an entitlement to one untainted opportunity to make
one’s case is deeply embedded in our law. Purkey argues that
he has yet to have that one opportunity. He also asks why it
should matter if, in Martinez and Trevino, the ineffective
lawyer was engaged in a state-court proceeding, whereas
here, the ineffective lawyer was engaged in a federal-court
proceeding, particularly after our ruling in Ramirez.
But the problem is that the availability of further relief for
someone in Purkey’s position is not a simple matter of federal
common law. It is governed by statutes. In this case, the per-
tinent statute is 28 U.S.C. § 2255(e), a statute that played no
part in Ramirez. For the reasons we have discussed, we con-
clude that Purkey is not entitled to raise his new arguments
in a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
We thus AFFIRM the judgment of the district court.
26 No. 19-3318
Before concluding this opinion, however, we have one
more piece of unfinished business to be resolved. As we noted
earlier, 24 hours before the oral argument in this appeal, the
government set Purkey’s execution date for July 15, 2020.
Purkey promptly moved for a stay of execution during the
pendency of these proceedings. The government has opposed
his motion.
The Supreme Court set forth the requirements for a stay in
Nken v. Holder, 556 U.S. 418 (2009):
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured ab-
sent a stay; (3) whether issuance of the stay will sub-
stantially injure the other parties interested in the pro-
ceeding; and (4) where the public interest lies.
Id. at 434. Importantly, although the Nken Court held that
something more than a “better than negligible” chance of suc-
cess is necessary, it also stressed that the injury the applicant
faced in its own case was not “categorically irreparable.” Id.
at 434–35. Although we have ruled against Purkey on the mer-
its, we have emphasized that at least two of the points he has
raised are worthy of further exploration—the seating of Juror
13, and the failure of trial counsel to conduct a proper mitiga-
tion analysis. We have rejected those points not on the merits,
but because of our understanding of the safety valve lan-
guage, 28 U.S.C. § 2255(e). If our reading of the safety valve is
too restrictive, there would be significant issues to litigate.
And, unlike the alien in Nken, Purkey faces categorically ir-
reparable injury—death. A brief stay to permit the orderly
conclusion of the proceedings in this court will not substan-
tially harm the government, which has waited at least seven
No. 19-3318 27
years to move forward on Purkey’s case. Finally, the public
interest is surely served by treating this case with the same
time for consideration and deliberation that we would give
any case. Just because the death penalty is involved is no rea-
son to take short-cuts—indeed, it is a reason not to do so.
For these reasons, we grant Purkey’s motion on the follow-
ing terms. His July 15, 2020, date of execution is temporarily
stayed pending the completion of proceedings in the Seventh
Circuit. This stay will expire upon the issuance of this court’s
mandate or as specified in any subsequent order that is is-
sued.