    Case: 18-40270     Document: 00514653689     Page: 1   Date Filed: 09/24/2018




                     REVISED September 24, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                  No. 18-40270                          FILED
                                                                  August 23, 2018
                                                                   Lyle W. Cayce
In re: ALFRED BOURGEOIS,                                                Clerk

             Movant




                       Motion for an order authorizing
                   the United States District Court for the
            Southern District of Texas, Corpus Christi, to consider
                    a successive 28 U.S.C. § 2255 motion


Before KING, DENNIS, and HIGGINSON, Circuit Judges.
KING, Circuit Judge:
      Alfred Bourgeois, a federal death-row inmate, asks us to authorize
consideration of a successive motion to vacate his death sentence. See 28 U.S.C.
§ 2255(h). In his successive motion, Bourgeois claims that he is constitutionally
ineligible for the death penalty because he is intellectually disabled. See Atkins
v. Virginia, 536 U.S. 304 (2002). While Bourgeois’s original motion
unsuccessfully raised an Atkins claim, he contends that the Supreme Court’s
decision in Moore v. Texas, 137 S. Ct. 1039 (2017), now makes his claim viable.
      Bourgeois is barred from relitigating his Atkins claim. Under 28 U.S.C.
§ 2244(b)(1), “[a] claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall
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                                      No. 18-40270
be dismissed.” 1 By its terms, the provision applies to “second or successive
habeas corpus application[s] under section 2254”—the section governing state
prisoner habeas applications. But § 2244(b)(1)’s strict relitigation bar is
incorporated by 28 U.S.C. § 2255(h), the provision governing a federal
prisoner’s successive § 2255 motions. Section 2255(h) states: “A second or
successive motion must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain” either newly discovered evidence
or a new rule of constitutional law. Id. § 2255(h) (emphasis added). We have
held, in a pair of unpublished decisions, that this cross-reference incorporates
§ 2244(b)(1)’s strict relitigation bar into § 2255(h)’s scheme. See In re Hartzog,
444 F. App’x 63, 64 (5th Cir. 2011) (per curiam); Montalvo v. Casterline, 48
F. App’x 480, 2002 WL 31049451, at *1 (5th Cir. Aug. 29, 2002) (per curiam). 2
Every other circuit to take up the question agrees. See In re Bradford, 830 F.3d
1273, 1275 (11th Cir. 2016) (per curiam); Dawkins v. United States, 829 F.3d
549, 550 (7th Cir. 2016) (per curiam); United States v. Lee, 792 F.3d 1021, 1023
(8th Cir. 2015); In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (per curiam);
United States v. Card, 220 F. App’x 847, 851 (10th Cir. 2007); Green v. United
States, 397 F.3d 101, 102 n.1 (2d Cir. 2005) (per curiam).
       Bourgeois’s only rejoinder is unpersuasive. He argues that Congress’s
express limitation of § 2244(b)(1)’s scope to habeas applications brought “under
section 2254” shows that Congress intended for that section to apply only to
claims brought by state prisoners. He invokes the canon of expressio unius est
exclusio alterius (“the expression of one thing implies the exclusion of another”)



       1 Bourgeois does not contest that his § 2255 motion is second or successive. Nor does
he contest that the Atkins claim he currently raises was “presented in a prior application.”
See 28 U.S.C. § 2244(b)(1).
       2 As Hartzog and Montalvo are unpublished, they are non-precedential but “may be

considered persuasive authority.” See United States v. Torres-Jaime, 821 F.3d 577, 582 (5th
Cir. 2016).
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                                 No. 18-40270
as support. See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443 &
n.96 (5th Cir. 1999); see also POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct.
2228, 2238 (2014) (applying the doctrine).
      But the expressio unius canon is not meant to be mechanically applied.
Express provision of one thing only “implies” the exclusion of another. See Tex.
Office of Public Util., 183 F.3d at 443 & n.96 (emphasis added). Context may
indicate that Congress did not wish for an express provision of one thing to
work towards the exclusion of another. See Christensen v. Harris Cty., 529 U.S.
576, 583 (2000); Springer v. Gov’t of Phil. Islands, 277 U.S. 189, 206 (1928)
(“Like other canons of statutory construction,” expressio unius “is only an aid
in the ascertainment of the meaning of the law, and must yield whenever a
contrary intention on the part of the lawmaker is apparent.”).
      Here, the larger statutory context favors applying § 2244(b)(1)’s strict
relitigation bar to federal prisoners. Section 2255(h) does not supply its own
procedures for processing successive § 2255 motions. Instead, it cross-
references the procedures set forth in § 2244. What is more, “the legislative
history does not distinguish between second or successive motions by federal
and by state prisoners.” Bennett v. United States, 119 F.3d 468, 469 (7th Cir.
1997), cited with approval in Reyes-Requena v. United States, 243 F.3d 893,
898 (5th Cir. 2001). And “it would be odd indeed if Congress had intended to
allow federal prisoners to refile precisely the same non-meritorious motions
over and over again while denying that right to state prisoners.” In re Baptiste,
828 F.3d 1337, 1339 (11th Cir. 2016) (per curiam); see White v. United States,
371 F.3d 900, 901 (7th Cir. 2004) (invoking a similar sentiment).
      As Bourgeois’s successive § 2255 motion presents only a single claim that
was already presented in his original motion, his request for authorization is
DENIED.


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