OCTOBER TERM 2020 No. _____ _______________________________ IN THE SUPREME COURT OF THE UNITED STATES _______________________________ ALFRED BOURGEOIS, Petitioner, v. T.J. WATSON, Warden, USP-Terre Haute, and UNITED STATES OF AMERICA, Respondents. ______________________________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit __________________ APPENDIX TO PETITION FOR A WRIT OF CERTIORARI VOLUME I ______________________________ --- CAPITAL CASE --- EXECUTION SCHEDULED FOR DECEMBER 11, 2020 Victor J. Abreu * Katherine Thompson Peter Williams Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street, Suite 545 West Philadelphia, PA 19106 (215) 928-0520 [email protected] *Counsel of record for Petitioner, and Member of the Bar of the Supreme Court TABLE OF CONTENTS Volume I of II Opinion, Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020) ..........................PA001 Order Granting Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19- cv-992-JMS-DLP (S.D. Ind. March 10, 2020) .................................................PA017 Order Granting Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19- cv-992-JMS-DLP (S.D. Ind. March 10, 2020) .................................................PA030 Order Denying Respondent’s Motion to Reconsider and Motion For Leave to File Surreply, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. May 27, 2020) ................................................................................................................ PA032 Memorandum and Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255, United States v. Bourgeois, 2:02-cr-216 (S.D. Tex. May 19, 2011) ................PA037 Order Denying Petitioner’s Motion for an Order Authorizing a Successive 28 U.S.C. §2255, In re Bourgeois, No. 18-40270 (5th Cir. Aug. 23 2018) ..........PA262 Opinion Denying Petitioner’s Motion for Rehearing En Banc, Bourgeois v. Watson, 20-1891 (7th Cir. Dec. 1, 2020) ..........................................................PA265 Notice of Issuance of the Mandate, Bourgeois v. Watson, 20-1891 (7th Cir. Dec. 1, 2020) .................................................................................................................PA267 Final Judgment, Bourgeois v. Watson, 20-1891 (7th Cir. Oct. 6, 2020) ..........PA269 Volume II of II Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Aug. 15, 2019). ................PA270 Motion for Stay of Execution, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Aug. 15, 2019). .................................................................................PA348 Return to Order to Show Cause by Respondents, Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Oct. 18, 2019) ............................................PA362 i Reply in Support of Petition for Writ of Habeas Corpus and Motion for Stay Of Execution Bourgeois v. Superintendent, 2:19-cv-992-JMS-DLP (S.D. Ind. Nov. 15, 2019) ...........................................................................................................PA470 Excerpt from Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (2013) (“DSM-5”) ..............PA521 Excerpt from Intellectual Disability – Definition, Classification, and Systems of Supports - 11th Edition, American Association on Intellectual and Developmental Disabilities (2010) (“AAIDD-2010”) ...............................................................PA531 Excerpt from User’s Guide to Intellectual Disability – Definition, Classification, and Systems of Supports - 11th Edition, American Association on Intellectual and Developmental Disabilities (2012) (“AAIDD-2012”) ......................................PA544 Score Report, Woodcock-Johnson III NU Tests of Achievement (Aug. 19, 2009) .................................................................................................................PA550 ii Bourgeois v. Watson, 977 F.3d 620 (2020) 977 F.3d 620 West Headnotes (19) United States Court of Appeals, Seventh Circuit. Alfred BOURGEOIS, Petitioner-Appellee, [1] Sentencing and Punishment Discretion of v. lower court T.J. WATSON, Warden, and United States The Court of Appeals reviews for abuse of of America, Respondents-Appellants. discretion a district court's decision to enter a stay of execution. No. 20-1891 | Argued September 9, 2020 [2] Sentencing and Punishment Scope of | review Decided October 6, 2020 Sentencing and Punishment Verdict and Synopsis findings On appeal from a district court's decision to stay Background: After affirmance, 423 F.3d 501, of federal prisoner's murder conviction and death sentence, denial, an execution, the Court of Appeals reviews the 2011 WL 1930684, of prisoner's motion to vacate sentence underlying factual findings for clear error and alleging intellectual disability as bar to execution under reviews the legal conclusions de novo. Eighth Amendment and Federal Death Penalty Act (FDPA), and denial, 902 F.3d 446, of authorization to file successive motion to vacate sentence, prisoner petitioned for habeas [3] Sentencing and Punishment Discretion of relief, alleging intellectual disability as bar to execution, and lower court filed motion to stay execution. The United States District A factual or legal error may alone be sufficient Court for the Southern District of Indiana, Jane E. Magnus- to establish that the court abused its discretion in making its final determination to stay an Stinson, Chief Judge, 2020 WL 1154575, stayed prisoner's execution. execution, based on likelihood of success on FDPA claim. Government appealed. [4] Federal Courts Supersedeas or Stay of Proceedings Holdings: The Court of Appeals, St. Eve, Circuit Judge, held The factors for a stay pending judicial review that: are: (1) whether the stay applicant has made a strong showing that he is likely to succeed [1] government did not waive or forfeit argument that FDPA on the merits; (2) whether the applicant will be claim was not cognizable under statutory savings clause irreparably injured absent a stay; (3) whether allowing habeas petition if motion to vacate sentence was issuance of the stay will substantially injure the inadequate or ineffective, and other parties interested in the proceeding; and (4) where the public interest lies. [2] motion to vacate sentence was not inadequate or ineffective. [5] Federal Courts Supersedeas or Stay of Reversed and remanded with instructions. Proceedings Stay applicants must satisfy all four of the Procedural Posture(s): Appellate Review; Post-Conviction requirements for a stay pending judicial review, Review. including a showing of a significant possibility of success on the merits. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 PA001 Bourgeois v. Watson, 977 F.3d 620 (2020) as a civil litigant should be bound by his counsel's actions. [6] Habeas Corpus Supersedeas or stay of proceedings Federal prisoner was not significantly likely to [10] Federal Courts Plain error succeed on merits, as would be required for Plain error review is available in civil cases stay of execution, of habeas claim asserting only in the rare situation where a party can an intellectual disability which precluded his demonstrate that: (1) exceptional circumstances execution under Federal Death Penalty Act exist; (2) substantial rights are affected; and (3) (FDPA); procedural home for habeas claim was a miscarriage of justice will occur if plain error premised on statutory savings clause allowing review is not applied. habeas petition if motion to vacate sentence had been inadequate or ineffective to test legality of sentence, government had not waived or [11] Federal Courts Plain error forfeited argument that prisoner's FDPA claim The determination of what circumstances fit the was not cognizable under savings clause, a criteria for plain error review in civil cases forfeiture would have been excusable, and is solely within the discretion of the Court of prisoner's earlier motion to vacate sentence had Appeals. allowed him to litigate his intellectual disability claim under clinical diagnostic standards. 18 U.S.C.A. § 3596(c); 28 U.S.C.A. §§ 2241, [12] Habeas Corpus Civil or criminal nature Habeas Corpus Presentation and 2255(e). reservation in lower habeas court of grounds of review While habeas proceedings arise from criminal [7] Estoppel Nature and elements of waiver cases, they are civil in nature, and thus, the In civil cases, “waiver” is the intentional standards for plain error review in civil cases are relinquishment or abandonment of a known applicable. right, while “forfeiture” is the mere failure to raise a timely argument, due to either inadvertence, neglect, or oversight. [13] Habeas Corpus Presentation and reservation in lower habeas court of grounds of review [8] Criminal Law Presentation of questions in Government did not waive or forfeit, for appeal general from stay of federal prisoner's execution, its Criminal Law Necessity of Objections in argument that statutory savings clause, allowing General habeas petition if motion to vacate sentence In the criminal context, the distinction between was inadequate or ineffective to test legality of waiver and forfeiture is critical: while waiver sentence, did not apply to prisoner's claim that precludes appellate review, forfeiture permits an he had an intellectual disability which precluded appellate court to correct