WEBSTER v. LOCKETT

Filing 117

ENTRY FOLLOWING HEARING OF JUNE 18, 2018 - The Court finds that Webster has met his burden and shown by a preponderance of the evidence that the Social Security records were unavailable to him at the time of trial despite trial counsel's d ue diligence. As such, they constitute newly discovered evidence. Accordingly, Webster has satisfied the savings clause, and the Court next must turn to the merits of the petition and determine whether Webster is so intellectually disabled that he is categorically ineligible for the death penalty. A telephonic status conference will be set by separate order (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge William T. Lawrence on 8/31/2018. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BRUCE CARNEIL WEBSTER,
Petitioner,
vs.
CHARLES LOCKETT,
Respondent.

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Cause No. 2:12-cv-86-WTL-MJD

ENTRY FOLLOWING HEARING OF JUNE 18, 2018
This cause is before the Court to determine whether Bruce Webster has satisfied the
savings clause of 28 U.S.C. § 2255, entitling him to bring a petition under 28 U.S.C. § 2241. For
the Court to so find, Webster must show that certain evidence was unavailable to him at trial.
The parties have fully briefed the relevant issues and presented evidence at a hearing. The Court,
being duly advised, finds that Webster has satisfied the savings clause.
I.

BACKGROUND

A. Procedural Background
On November 4, 1994, Bruce Webster was indicted in the United States District Court for
the Northern District of Texas on six counts, including kidnapping in which a death occurred in
violation of 18 U.S.C. §§ 1201(a)(1) and (2), and other various noncapital offenses. Webster was
convicted and was sentenced to death on June 20, 1996. United States v. Webster, 162 F.3d 308
(5th Cir. 1998).
Webster filed his initial Motion to Vacate Conviction and Sentence under
28 U.S.C. § 2255 on September 29, 2000. This motion was subsequently amended and was
denied in full on September 20, 2003. Webster v. United States, No. 4:00-CV-1646, 2003 WL

23109787 (N.D. Tex. Sept. 30, 2003). The Fifth Circuit rejected Webster’s motion for relief
under section 2255, United States v. Webster, 421 F.3d 308 (5th Cir. 2005), and his application
for an order authorizing a successive 2255 proceeding, In re Webster, 605 F.3d 256 (5th Cir.
2010).
On April 6, 2012, Webster filed a Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 in this Court, challenging his death sentence based on what he argued was
previously unavailable evidence that establishes he is mentally retarded and therefore ineligible
for the death penalty. On November 13, 2013, this Court issued an order denying that petition.
The Seventh Circuit affirmed this Court’s ruling on August 1, 2014. Webster v. Caraway, 761
F.3d 764 (7th Cir. 2014). However, en banc review was granted, and the en banc court reversed
this Court’s decision and remanded for further proceedings. Webster v. Daniels, 784 F.3d 1123
(7th Cir. 2015) (en banc). Pursuant to the Seventh Circuit’s directive, this Court held a hearing
on June 18, 2018.
The purpose of the hearing was to allow Webster to present evidence as to whether
certain Social Security records were unavailable to him and his counsel at the time of trial. The
Seventh Circuit instructed this Court to evaluate trial counsel’s diligence when considering that
question. Webster, 784 F.3d at 1146. The parties agree that Webster must prove the
unavailability of the Social Security records by a preponderance of the evidence.
The Seventh Circuit described the relevant Social Security records:
The newly produced records, which Webster’s current lawyers received on
February 9, 2009, showed that Webster applied for Social Security benefits based
on a sinus condition when he was 20 years old, approximately a year before the
crime. The agency’s attention was evidently quickly redirected to Webster’s
mental capacity. Two psychologists and one physician examined him. On
December 22, 1993, Dr. Charles Spellman, a psychologist, evaluated him for the
purpose of ascertaining his eligibility for Social Security benefits. He noted that
“[i]deation was sparse and this appeared to be more of a function of his lower
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cognitive ability than of any mental illness.” Dr. Spellman also observed that
Webster’s intellectual functioning was quite limited: he could not register three
objects (meaning that he could not remember three objects a short time after they
were shown to him); he could not do simple calculations; and he did not know
what common sayings meant. With respect to adaptive functioning, Dr. Spellman
stated that Webster lived with his mother; that he watched television, listened to
the radio, and went walking; that he did no chores around the house; and that he
was idle both in the house and on the streets. Taking into account both his
estimate that Webster’s I.Q. was 69 or lower and his assessment of adaptive
functioning, Dr. Spellman concluded that Webster was mentally retarded and
antisocial. He found no evidence of exaggeration or malingering.
A few months earlier, in October 1993, Dr. Edward Hackett conducted a
full-scale WAIS I.Q. test on Webster. He came up with a verbal I.Q. of 71, a
performance I.Q. of 49, and a full-scale I.Q. of 59. He evaluated Webster as
“mildly retarded, but . . . also antisocial.” Pertinent to the central question of
adaptive functioning, Dr. Hackett noted in a later report that “[Webster] was
viewed as a somewhat mild[ly] retarded con man, but very street wise. . . . [H]e
could not be functional in a community setting. . . . He would also not function
well in the work place.” Dr. Hackett did not believe that Webster was capable of
managing his own benefits. He found Webster’s behavior somewhat bizarre.
Finally, he commented that on the I.Q. tests, Webster’s performance was
estimated to be lower than his verbal score, and that some organic function might
be involved.
The last professional to examine Webster in conjunction with the 1993
Social Security application was Dr. C.M. Rittelmeyer, a physician. Dr.
Rittelmeyer found Webster’s physical health to be fine, but he also had this to
say: “Mental retardation. Flat feet. Chronic sinus problems and allergies by
history.”
The Social Security records included an intriguing letter that strongly
suggested that Webster in fact had been in special education classes. It was dated
November 8, 1993, and had been written by Lou Jackson, the Special Education
Supervisor for the school system Webster had attended, Watson Chapel Schools.
Jackson's letter explained that Webster’s special education records had been
destroyed in 1988, after the family did not respond to a letter “telling them they
could have the records if they wanted them.”
The Social Security records also provide some direct evidence about
Webster’s abilities. The form Webster completed, for example, is rife with errors
in syntax, spelling, punctuation, grammar, and thought. In response to a question
asking him to describe his pain or other symptoms, Webster wrote “it causEs mE
to gEt up sEt Easily hEadhurtsdiffiErnt of brEdth.” When asked about the side
effects of his medication, he wrote “Is lEEp bEttEr.” When asked about his usual
daily activities, Webster wrote (consistently with the comments from his teacher
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and employer) “I slEEps look at. cartoon.” He reported that he “ain’t got no
chang” in his condition since its onset.
Webster, 784 F.3d at 1133-34.
B. The Hearing
Two witnesses testified at the hearing: Larry Moore, Webster’s lead trial attorney; and
Kristin LeRoux, who lead the paralegal team for Dorsey & Whitney LLP (“Dorsey”), the law
firm that has represented Webster since 2008.
First, the Court heard testimony from Moore. Currently, Moore is the chief of the
criminal division of the Tarrant County Criminal District Attorney’s office in Fort Worth, Texas.
Moore has been practicing law for over forty-one years and has been board certified in criminal
law since 1982. Moore was in private practice, doing primarily criminal defense, from 1986 to
2015. Otherwise he has been a prosecutor.
In 1994, when Moore was appointed to represent Webster, his practice consisted entirely
of criminal defense. Moore had experience trying capital cases both as a prosecutor and as a
defense attorney. As a prosecutor, he had tried three capital cases. One defendant was sentenced
to death and eventually executed. He also had tried three death penalty cases as a defense lawyer.
Additionally, he was involved in numerous other capital cases that were resolved prior to trial. In
all, he probably represented sixty or more capital defendants and prosecuted a number of murder
cases in which the death penalty was not sought.
Early on in Moore’s representation of Webster, it became apparent to Moore that Webster
suffered from some kind of mental disability. Based on these observations, the defense team
hired and/or had appointed a total of five mental health experts. Moore and his co-counsel, Allan
Butcher, split the expense for the experts who were not court appointed. In Moore’s experience,
having five experts in a Texas capital case in 1996 was exceptional; that number of experts never
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would have been appointed by a judge, and not many lawyers would pay for the experts out of
their own pockets. None of the experts opined that Webster did not suffer from mental
retardation. 1
As Moore became more familiar with Webster’s case, he came to the opinion that the
Government’s guilt phase case was overwhelming. Moore thought that Webster’s intellectual
functioning was the key to the penalty phase. Moore knew that the federal death penalty statute
that was enacted in 1994 and became effective just weeks before the crime with which Webster
was charged barred the execution of mentally retarded people.
The federal death penalty statute did not set out a procedure as to who would make the
determination of mental retardation, the standard under which it would be made, or how it would
be made. For that reason, Moore consulted as many legal experts around the country as he could
concerning the role of mental retardation, which he felt was the primary issue in Webster’s case.
He also consulted with experts in mental retardation and special education, including a professor
who had assisted in drafting the mental retardation carve-out in the federal death penalty statute.
Additionally, Moore read as many articles as he could find about mental retardation. Although
Moore previously had handled cases with mentally retarded defendants, Webster’s case was the
first in which there was a statutory bar to the execution of a mentally retarded person.
Moore also sought out every medical record and school record he could find and also
talked to every person he could find who had known Webster growing up to try to get
information relevant to the issue of Webster’s mental retardation. Moore knew that historical
medical records were important in any death penalty case, and he felt that in Webster’s case any

1

The Court will use the term that was used at the time of Webster’s trial—“mental
retardation”—rather than the term “intellectual disability,” which is the term now used by the
Supreme Court. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
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type of issue regarding Webster’s medical or mental background needed to be developed through
as complete a background investigation as could be performed. In 1994, it was Moore’s custom
to have a capital client sign blank release forms early in the representation of that client so that
he could complete and send the release without having to go back to the jail each time. Moore
followed this practice in Webster’s case and had Webster execute a blank medical release form.
At some point prior to trial, Moore learned that Webster may have been evaluated by the
Social Security Administration (“SSA”) for disability benefits. He believed that he learned this
information from Webster’s mother, Beatrice Webster, during a trip in late February 1996 to
Little Rock, Arkansas, to interview Webster’s family members and other potential witnesses.
Mrs. Webster told Moore that, sometime prior to Webster’s arrest, she had made an application
for Social Security benefits for Webster for a physical ailment. She also told Moore that she had
taken Webster to the state agency and the state mental health agency.
Mrs. Webster told Moore that Webster’s application was based on a physical ailment, not
intellectual disability. However, based on what Mrs. Webster told him, Moore understood that
during the course of the proceedings Webster may have had testing for possible mental issues,
which Moore suspected may have included testing to determine whether Webster met the criteria
for mental retardation. Moore also knew that Webster had been tested by the Southeast Arkansas
Mental Health agency and been found to be mentally retarded. By the time that Mrs. Webster
told Moore about the testing, Moore already had diagnoses of mental retardation from his own
experts.
Moore considered the information from Mrs. Webster to be critically important, as he
believed that Webster’s mental retardation would be the single biggest issue at trial. He knew
that the Government would argue that Webster was not mentally retarded, as it previously had

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contacted the examiner from the Southeast Arkansas Mental Health Clinic who had diagnosed
Webster as mentally retarded. After the Government’s contact, the examiner changed his opinion
as to whether Webster was mentally retarded. Further, Moore knew that, because the application
for disability had been made years prior to the crime with which Webster was charged, any
finding that Webster was mentally retarded would have been made prior to Webster’s arrest and
prosecution. He believed that any such finding made prior to the arrest would be critically
important to convince the jury of the accuracy of the diagnosis.
Based on what Mrs. Webster told him, Moore told his legal assistant, Kimberly
Whitehead, to contact the SSA office in Little Rock, Arkansas, to determine how he could get
records for Webster’s Social Security benefits application. At the hearing, Moore identified an
undated handwritten note that he had written to Whitehead telling her to call the Pine Bluff SSA
office to find out what information was needed to get copies of the records of Webster’s
application for disability. In part, the note explained,

Pet. Ex. 20. Moore thought it was critical to have the test results, and the exclamation point at the
end was to emphasize this fact. The note also included the address and phone number of the Pine
Bluff office, also in Moore’s handwriting.
Moore wanted Whitehead to find out exactly what type of release the Social Security
office would require; he knew that some entities required their own release forms. Moore also
identified another note in his trial file as a directive to Whitehead to secure Webster’s Social
Security records:

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Pet. Ex. 23. Again, Moore was instructing Whitehead to get the results of any testing that had
been done. Moore also identified a note in Whitehead’s handwriting that had a fax number for
Hal West, the head of the SSA office in Pine Bluff. The note was dated February 29, 1996, and
had the time 11:30 written on it.
A fax transmittal sheet with a handwritten date of March 5, 1996, to recipient Mr. Hal
West, SS Admin. Office, at fax number of 501-535-5381, all in Whitehead’s handwriting, was
also in the file. The fax header at the top showed the document was faxed on March 4, 1996, at
23:50 and was page 1. Another document with the same fax header but numbered as page 2 was
a letter dated February 29, 1996, from Kimberly Whitehead to Hal West. The letter, on Moore’s
letterhead, reads:

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Pet. Ex. 16.
Moore’s trial file also included a Business Records Authorization & Release addressed to
Hal West at the U.S. Social Security Administration, Pine Bluff District Office. This document,
page 3 of the March 4, 1996, 23:50 fax, was signed by Webster and witnessed by Moore and his
co-counsel. Jury selection in Webster’s case had begun by March 3, 1996, the date of the release,
and Moore recalled that Webster had executed the authorization at the courthouse. Moore drafted
the business records authorization and release according to the instructions that had been
received from the Arkansas SSA office and included the information that the office had
requested. A business records affidavit had the same fax header other than being numbered
page 4.
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A transmission verification report showed that on March 4 at 23:50, a fax transmission
was sent from Moore’s fax machine to Hal West’s number. It was four pages and took two
minutes to transmit, and the transmission was successful. Moore’s file also contained a Federal
Express bill for a Federal Express letter sent to Hal West at the SSA in Pine Bluff. The bill notes
that the shipment was in connection with the Webster case. The package, which was delivered on
March 7, 1996, at 9:38 a.m., contained the same pages that previously had been faxed. It was
Moore’s practice to always follow up a fax transmission with the hard documents themselves.
J.W. Strickland, one of Moore’s investigators, went to Pine Bluff in early March 1996 to
interview witnesses and gather facts. Strickland reported to Moore that he had gone to the Pine
Bluff Social Security Office but had been told that it had no records on Webster. Moore had
Whitehead contact the SSA, and then Moore called West himself.
Even though Strickland had reported to Moore that the SSA had indicated that it had no
records, Moore felt that it was his primary responsibility to obtain the records. He had had
experiences where a lawyer was able to get results when an investigator had not been able to.
Moore wanted to be personally told by someone at the SSA that it did not have any records
regarding Webster. Thus, during the first week of March, during voir dire in Webster’s case,
Moore contacted the Pine Bluff Social Security Office himself. Moore did not recall with whom
he spoke at the SSA, but he thought it was Hal West. The person with whom Moore spoke told
him that there were no records in existence.
Moore testified that he had no doubt that he personally made contact with the Pine Bluff
SSA office to request Webster’s records and was told that it did not have any records pertaining

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to Webster. Having been told this, Moore did not think there was anything else he could do. 2 He
did not research the SSA’s retention policies. Nor did he seek a subpoena, as he had no good
faith belief that the records existed.
Moore’s trial file contained no records responsive to his request for the records from the
SSA in Pine Bluff. 3 He did not receive any records, nor did he receive any correspondence
rejecting his request or asking for additional information. If the SSA had asked for additional
information, he absolutely would have provided it. If the SSA had indicated that it had records
but denied Moore’s request to get them, he would have attempted to get the records by any
means. He thought such records were critical to Webster’s defense.
Moore first learned of the existence of the records shortly before October 20, 2009. The
records would have been very useful in Webster’s defense: they indicated that Webster had been
tested by the SSA and had been found to be mentally retarded. The diagnosis would have been
critically important because it had been made prior to the commission of the crime.
Further, the records contained an indication that Webster’s special education records
were destroyed in 1988; at trial, there had been an issue as to whether Webster actually had been
in special education. Webster’s counsel had not been able to obtain records from the school

2

The Government argues that the Court should find Moore’s hearing testimony was not
credible because it was far more specific and detailed than a declaration he made in 2009.
However, the Court credits Moore’s explanation that reviewing his trial file, portions of the
transcript of Webster’s trial, and some of the trial exhibits—which he had not done before
making the 2009 declaration—refreshed his recollection about the attempts to obtain any records
pertaining to Webster that were in the possession of the SSA. Moore’s additional review of the
file, which he did after making the 2018 declaration and before the hearing, further helped
Moore recall the events, as he remembered that his direct contact with the SSA took place during
voir dire.
3
Moore also testified that the trial file did not contain any documentation that he had
made regarding what he had learned from the SSA. While he did not recall whether he had, in
fact, made any such document, he testified that many notes from the investigation and trial were
no longer in the file.
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district showing that Webster had been in special education, and at trial the Government had
seized on the lack of records and argued that Webster’s family members who testified that he had
been in special education classes were lying.
The Court next heard from LeRoux. Attorneys from Dorsey began representing Webster
in 2008 with plans to prepare a clemency petition. On October 27, 2008, Dorsey sent a request
for Webster’s records to the SSA office in Pine Bluff. On February 9, 2009, after requests and
phone calls, Dorsey received records regarding Webster from the SSA. 4 These records were not
part of the trial file that Dorsey had received and indexed. 5
II.

DISCUSSION

The Court must determine whether the Social Security records were unavailable to
Webster and his counsel at the time of the trial. In considering that question, the Court must
evaluate trial counsel’s diligence. Having observed the demeanor of Moore during the hearing,
the Court finds his testimony to be credible. As such, the Court must determine whether Moore
was duly diligent when, after Moore’s investigator reported that the SSA had told him that no
records existed and Moore himself was told by someone from the SSA that no records existed,
Moore relied on these representations and did not take further action. The Court finds that Moore
was duly diligent and that the records were unavailable to Moore and thus Webster at the time of
the trial.

4

After reviewing the records, Dorsey realized that they were incomplete; an index in the
file referred to documents that were not in the file the SSA produced to Dorsey. Dorsey sought to
obtain these records, but the SSA eventually indicated that it had destroyed Webster’s entire file.
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Because in the Court’s view Dorsey’s ability to obtain some of Webster’s Social
Security records—after what LeRoux characterized as the most difficult records process she had
experienced in her twenty-two-year career as a paralegal—is irrelevant to whether Moore
exercised due diligence in 1996, the Court need not recite the entire process through which
Dorsey obtained the records and attempted to obtain additional records.
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The Seventh Circuit has explained, in the context of 28 U.S.C. § 2244, that due diligence
is reasonable diligence, not “the maximum feasible diligence.” Moore v. Knight, 368 F.3d 936,
940 (7th Cir. 2004) (quotation and citation omitted). The Supreme Court has recognized that “the
duty to investigate does not force defense lawyers to scour the globe on the off chance something
will turn up; reasonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005).
Here, Moore’s only source of information that SSA records might exist was Webster’s
mother, who herself was intellectually disabled. Moore, recognizing the importance of any
records, directed his assistant to contact the SSA to find out how to obtain any records. Pursuant
to the instructions from the SSA, Moore drafted a release specifically to meet the SSA’s
requirements and had Webster sign that release. At Moore’s request, Whitehead both faxed and
sent via FedEx a packet of material with a letter and the release form that complied with SSA’s
requirements.
Strickland then went to Pine Bluff to attempt to pick up any records. He reported to
Moore that the SSA office had told him that no records existed. Moore then personally called the
SSA to follow up because he wanted to confirm that no records existed. Moore also was told that
no records existed; he was not told that records existed but would not be provided. He was
simply told that no records existed.
Given this response from the SSA, Moore’s failure to take further action was reasonable.
As such, the Court finds that Moore made diligent efforts to obtain any evidence based on the
information he had been provided at the time. Accordingly, the SSA records were unavailable for
trial, see Webster v. Daniels, 784 F.3d at 1140 n.9, and Webster has satisfied the savings clause
and may proceed with his section 2241 petition.

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III.

CONCLUSION

The Court finds that Webster has met his burden and shown by a preponderance of the
evidence 6 that the Social Security records were unavailable to him at the time of trial despite trial
counsel’s due diligence. As such, they constitute newly discovered evidence. Accordingly,
Webster has satisfied the savings clause, and the Court next must turn to the merits of the
petition and determine whether Webster is so intellectually disabled that he is categorically
ineligible for the death penalty. 7 A telephonic status conference will be set by separate order.
Date: 8/31/18

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution to all registered counsel by electronic notification via CM/ECF

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As noted above, the parties agree that the proper standard is preponderance of the
evidence. Even if the applicable standard were clear and convincing, the Court finds that the
evidence of record would satisfy that standard as well.
7
In light of this Entry, Webster’s motion for spoliation sanctions (Dkt. No. 95) is
DENIED AS MOOT.
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