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Click here for the full text of this decision FACTS:Bruce Webster, a federal prisoner under a sentence of death, appeals the denial of his petition for post-conviction relief under 28 U.S.C. 2255 on two related claims that the district court rejected on the merits but on which it granted a certificate of appealability (COA). The district court granted a COA limited to two of the 16 claims: first, that the evidence presented at trial was insufficient to warrant the district court’s finding that Webster is not mentally retarded; and second, that his alleged retardation renders him ineligible for a death sentence. Webster then applied to this court for a COA on the 14 issues deemed unworthy of collateral appellate review by the district court; the court denied a COA on each of the additional claims. The court now addresses Webster’s appeal on the two issues rejected on the merits but on which the district court granted a COA. HOLDING:Affirmed. Even before Atkins v. Virginia, 536 U.S. 304 (2002), at the time of Webster’s trial, 18 U.S.C. 3596(c) prohibited the execution of mentally retarded offenders in federal prosecutions. The only substantive change ushered in by Atkins with respect to federal capital defendants is the recognition of a new source of federal law (constitutional) that bars their execution. “In any event, we assume for present purposes that Atkins permits, whether by way of clarification of the meaning of mental retardation or some other reason, Webster to restate his sufficiency challenge, so we proceed to address the merits, but we do so without deciding that we must.” Webster invokes Jackson v. Virginia, 443 U.S. 307 (1979), which held that a state defendant is entitled to federal habeas corpus relief if the state’s evidence was such that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. But the Jackson standard is inapposite here, the court finds, where the challenged finding is the absence of mental retardation, and not a substantive element of the offense to which Jackson applies by its own terms, or an aggravating circumstance, sentencing factor or special issue in the context of capital proceedings, to which Jackson has since been applied. The court rejects Webster’s claim to the extent it is based on an alleged constitutional error in the allocation of the burden of persuasion and standard of proof. Webster’s brief does not point to any new evidence bearing directly on his mental capacity; instead, it summarizes the evidence presented at trial concerning his cognitive abilities and childhood experiences. Webster failed to convince either the district court that he is retarded or a majority of the jurors that he is or even may be retarded. The record supports those findings, the court concludes. OPINION:Smith, J.; Smith, Wiener and Barksdale, JJ.

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