11th circuit - initial brief on merits (29 october 2012)

CAPITAL CASE—EXECUTION TEMPORARILY STAYED

No. 12-15422

IN THE

United States Court of Appeals for theEleventh Circuit

JOHN FERGUSON,

Petitioner-Appellant,v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

On Appeal from the United States District Courtfor the Southern District of Florida, No. 1:12-cv-23817-DTKH

District Judge Daniel T. K. Hurley

OPENING BRIEF FOR PETITIONER-APPELLANTJOHN FERGUSON

BENJAMIN J.O. LEWIS

HOGAN LOVELLS US LLP875 Third AvenueNew York, NY 10022Telephone: (212) 909-0646

*Counsel of Record

Dated: October 29, 2012

CHRISTOPHER T. HANDMAN*

E. DESMOND HOGAN

CATHERINE E. STETSON

ERICA M. KNIEVEL

LINDSAY D. BREEDLOVE

HOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Telephone: (202) [email protected]

Counsel for Petitioner-AppellantJohn Ferguson

Case: 12-15422 Date Filed: 10/29/2012 Page: 1 of 71

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Rule

26.1-1 of the Rules of the Court of Appeals for the Eleventh Circuit, Appellant

John Ferguson discloses the following interested persons:

Ake, Stephen D. (Assistant Attorney General, State of Florida)

Bondi, Pamela Jo (Attorney General, State of Florida)

Breedlove, Lindsay D. (Associate, Hogan Lovells US LLP)

Browne, Scott A. (Assistant Attorney General, State of Florida)

Cervantes, Daniel (Associate, Hogan Lovells US LLP)

Ferguson, John E. (Appellee)

Handman, Christopher T. (Partner, Hogan Lovells US LLP)

Hogan, E. Desmond (Partner, Hogan Lovells US LLP)

Hurley, Hon. Daniel T.K. (U.S. District Court for the Southern District of Florida)

Knievel, Erica M. (Associate, Hogan Lovells US LLP)

Lewis, Benjamin J.O. (Associate, Hogan Lovells US LLP)

Stetson, Catherine E. (Partner, Hogan Lovells US LLP)

Tucker, Kenneth S. (Appellant, in his official capacity as the Secretary, Florida

Department of Corrections)

/s/ Christopher T. Handman

Christopher T. Handman

C-1 of 1


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STATEMENT REGARDING ORAL ARGUMENT

Appellant John Ferguson respectfully requests oral argument. Eleventh

Circuit Rule 22-4(a)(7) provides that “[n]otwithstanding the authority of the panel

to decide the merits along with the motion to stay, the delay that is avoided by such

expedited procedures will not ordinarily warrant departure from the normal,

untruncated processes of appellate review in the appeal of a first or original writ of

habeas corpus in federal court.” 11th Cir. R. 22-4(a)(7). Ferguson’s petition is “a

first or original writ appeal” within the meaning of Rule 22-4(a)(7)). See Panetti v.

Quarterman, 551 U.S. 930, 947 (2007) (“The statutory bar on ‘second or

successive’ applications does not apply to a Ford claim brought in an application

filed when the claim is first ripe”). Ferguson’s claims raise significant

constitutional issues, and this Court would benefit from having them fully aired at

oral argument.


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TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PARTIES ...................................................C-1

STATEMENT REGARDING ORAL ARGUMENT.............................................. i

TABLE OF AUTHORITIES ................................................................................ iii

JURISDICTIONAL STATEMENT........................................................................1

STATEMENT OF ISSUES.....................................................................................2

STATEMENT OF FACTS .....................................................................................5

STANDARD OF REVIEW ..................................................................................25

SUMMARY OF ARGUMENT ............................................................................26

ARGUMENT .......................................................................................................30

I. THE FLORIDA SUPREME COURT UNREASONABLY APPLIEDCLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUNDJOHN FERGUSON COMPETENT TO BE EXECUTED ................31

A. The Florida Supreme Court Unreasonably Declined To ApplyPanetti To Ferguson’s Identical Claims .......................................33

B. The Florida Supreme Court Unreasonably Applied Panetti’s“Rational Understanding” Inquiry................................................37

C. On De Novo Review, This Court Should Find FergusonIncompetent To Be Executed .......................................................41

II. THE FLORIDA SUPREME COURT UNREASONABLY APPLIEDPANETTI’S PROCEDURAL REQUIREMENTS.............................44

A. Panetti Requires Far More Than What Florida Did......................44


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B. The Court Should Find Ferguson Not Competent To Be ExecutedOr Should Remand To The District Court....................................50

III. THE FLORIDA SUPREME COURT’S COMPETENCYCONCLUSION WAS BASED ON AN UNREASONABLEDETERMINATION OF THE FACTS..............................................51

IV. THE STAY SHOULD BE KEPT IN PLACE ...................................58

CONCLUSION ....................................................................................................61


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TABLE OF AUTHORITIES

Page(s)

CASES

Braley v. Campbell,832 F.2d 1504 (10th Cir. 1987)........................................................................58

Coe v. Bell,209 F.3d 815 (6th Cir. 2000)............................................................................31

Commonwealth v. Jermyn,709 A.2d 849 (Pa. 1998) ..................................................................................32

Ferguson v. Sec’y, Dep’t of Corrs.,No. 1:12-cv-23817 (S.D. Fla.)....................................................................22, 24

Ferguson v. Sec’y, Fla. Dep’t of Corrs.,No. 12-15377 (11th Cir.)..................................................................................23

Ford v. Wainwright,477 U.S. 399 (1986)..................................................................................passim

Garrett v. Collins,951 F.2d 57 (5th Cir. 1992)..............................................................................32

Greene v. Upton,644 F.3d 1145 (11th Cir. 2011)........................................................................33

Herrera v. Collins,506 U.S. 390 (1993).........................................................................................22

Jaeger v. Canadian Bank of Commerce,327 F.2d 743 (9th Cir. 1964)............................................................................58

Madison v. Commissioner, Ala. Dept. of Corrections,677 F.3d 1333 (11th Cir. 2012)........................................................................41

McGahee v. Ala. Dep’t of Corrs.,560 F.3d 1252, 1266 (11th Cir. 2009) ..............................................................41

McNair v. Campbell,416 F.3d 1291 (11th Cir. 2005)........................................................................25


v

Panetti v. Dretke,401 F. Supp. 2d 702 (W.D. Tex. 2004) .......................................... 42, 49, 53, 55

Panetti v. Dretke,448 F.3d 815 (5th Cir. 2006).......................................................... 30, 29, 40, 42

Panetti v. Quarterman,551 U.S. 930 (2007)..................................................................................passim

Provenzano v. State,760 So. 2d 137 (Fla. 2000)........................................................................passim

Putman v. Head,268 F.3 1223 (11th Cir. 2001)..........................................................................33

Reese v. Sec’y, Fla. Dep’t of Corrs.,675 F.3d 1277 (11th Cir. 2011)

Sambrano v. Mabus,663 F.3d 879 (7th Cir. 2011)............................................................................58

Sanders v. State,585 A.2d 117, 138 (Del. 1990).........................................................................32

Shaw v. Armontrout,900 F.2d 123 (8th Cir. 1990)............................................................................32

Stewart v. Martinez-Villareal,523 U.S. 637 (1998).........................................................................................44

Taylor v. Johnson,257 F.3d 470 (5th Cir. 2001)............................................................................58

Ward v. Hall,592 F.3d 1144 (11th Cir. 2010)........................................................................25

Wiggins v. Smith,539 U.S. 510 (2003).........................................................................................33

Williams v. Taylor,529 U.S. 362 (2000).........................................................................................38


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FEDERAL STATUTE

28 U.S.C. § 2254(d). ......................................................................................passim

STATE STATUTE

Fla. Stat. § 922.07 .............................................................................................8, 49

RULES

11th Cir. R. 22-4(a)(7) ..........................................................................................58

Fla. R. Crim. P. 3.811 ...........................................................................................49

Fla. R. Crim. P. 3.812 .....................................................................................33, 49

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII.................................................................................passim

OTHER AUTHORITIES

Richard Rogers et al., Clinical Assessment of Malingering and Deception

(3rd ed. 2008) ..................................................................................................17


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No. 12-15422

IN THE

United States Court of Appeals for theEleventh Circuit

JOHN FERGUSON,

Petitioner-Appellant,v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

On Appeal from the United States District Courtfor the Southern District of Florida, No. 1:12-cv-23817-DTKH

District Judge Daniel T. K. Hurley

OPENING BRIEF FOR PETITIONER-APPELLANTJOHN FERGUSON

JURISDICTIONAL STATEMENT

The District Court had jurisdiction under 28 U.S.C. §§ 2241, 2253, and

2254. On October 23, 2012, the District Court dismissed this nonsuccessive

habeas petition and granted a certificate of appealability. R.E. 110a-111a.1

Ferguson noted a timely appeal that same day. R.E.113a-115a. This Court has

jurisdiction under 28 U.S.C. §§ 1291 and 2254.

1 “R.E.” refers to the Record Excerpts. “R.” refers to the state-court record fromwhich this petition arises. “Tr.” refers to the transcript from the two-day hearingbefore the Circuit Court that heard this case.


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ISSUES PRESENTED

1. Whether the decision of the Florida Supreme Court involved an

unreasonable application of the United States Supreme Court’s decisions in Ford

v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930

(2007).

2. Whether the Florida Supreme Court’s affirmance of the state trial

court was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding, viz., that (a) the petitioner has a

documented history of paranoid schizophrenia; (b) he is not malingering, and

(c) he has a fixed grandiose delusion that he is the “Prince of God.”

3. Whether the temporary stay should be extended under Rule 22-4(a)(i)

and (ii), because Ferguson’s appeal is not frivolous, factually barred, foreclosed by

precedent, or successive.

STATEMENT OF THE CASE AND INTRODUCTION

This capital habeas appeal is unique. It involves not just a settled legal

principle—executing the insane violates the Eighth Amendment, Ford v.

Wainwright, 477 U.S. 399 (1986)—but also, more importantly, State court findings

of fact that the prisoner affirmatively embraces. Those critical factual findings

largely dictate the outcome of this case. For both the Florida Circuit Court and the

state Supreme Court found that John Ferguson has a “documented history of


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paranoid schizophrenia,” labors under a “genuine” “ ‘Prince of God’ delusion,”

and is not “malingering.” R.E.117a-129a.

The Florida Supreme Court nevertheless found Ferguson competent to be

executed. But the only reason it did was because the court unreasonably applied

settled Supreme Court precedent. In Panetti v. Quarterman, 551 U.S. 930, 956

(2007), the Supreme Court struck down as “too restrictive” a rule that merely

asked whether a prisoner is factually “aware that he [is] going to be executed and

why he [is] going to be executed.” Many States, using that “factual awareness”

approach, had found prisoners competent even though they “suffer[ed] from a

severe, documented mental illness that [wa]s the source of gross delusions

preventing [them] from comprehending the meaning and purpose of the

punishment to which [they] ha[d] been sentenced.” Id. at 960. Panetti announced

that the Eighth Amendment required more: courts must ask whether the prisoner

possesses a “rational understanding” of why the State is executing him and what

will happen to him. Id. at 959.

The Florida Supreme Court has now revived the approach the Panetti Court

rejected. Indeed, the rule the Florida court applied is virtually the same word-for-

word test struck down in Panetti. According to the Florida Supreme Court, John

Ferguson’s 40-year history of severe mental illness and longstanding delusions are

irrelevant because all that matters is that “the prisoner lacks the mental capacity to


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understand the fact of the pending execution and the reason for it.” R.E.124a-125a

(emphasis added).

This was no accident. The Florida Supreme Court squarely considered

Panetti but “disagree[d]” that Panetti “constitute[d] a change in the standard to be

applied in [competency-to-be-executed] proceedings.” R.E.126a. As the court

saw it, “[t]he Panetti court explicitly declined to extend its ruling to all

competency proceedings,” id., though the court never cited a page where that

“explicit[]” ruling in Panetti resides. And were there any doubt about the standard

it applied, the Florida Supreme Court emphasized for good measure that it was

applying the old factual-awareness approach: “In this context, the Eighth

Amendment requires only that defendants be aware of the punishment they are

about to receive and the reason they are to receive it.” R.E. 126a (citing Ford, 477

U.S. at 422 (Powell, J., concurring)).

Not only did the Florida Supreme Court unreasonably apply Panetti’s

substantive rule; it misapplied that decision’s procedural rule as well. Panetti

clarifies that State competency procedures violate the Eighth Amendment if they

are “not adequate for reaching reasonably correct results” or are “seriously

inadequate for the ascertainment of the truth.” Panetti, 551 U.S. at 954 (citation

omitted). That describes Florida’s abbreviated procedures to a tee. Because a

competency claim can be raised only after a death warrant is signed, unless the


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State grants a meaningful stay, counsel for an incompetent prisoner must compress

full case development, expert evaluations, medical research, legal research,

briefing, trial preparation, live hearings, and appeals all into the span of a couple of

weeks—if not a handful of days. That is exactly what played out here. And that is

no way to go about determining whether the State should avoid the “miserable

spectacle” of executing the insane. Ford v. Wainwright, 477 U.S. 399, 407 (1986).

This Court should grant the writ and reverse.

STATEMENT OF FACTS

A. Ferguson’s 40-Year History Of Mental Illness.

John Ferguson has suffered for more than 40 years from a well-documented

history of paranoid schizophrenia. R.176-179 (summarizing 40 different diagnoses

of psychosis beginning in 1971). Central to his mental illness are consistent core

delusions and hallucinations that directly shape his understanding of why he is on

death row and what being executed means.

Ferguson spent the better part of the 1970s in Florida mental institutions.

Between 1971 and 1976, seven different psychiatrists—all appointed by the

State—concluded that Ferguson was a paranoid schizophrenic prone to psychotic

hallucinations and delusions. R. 181-214. Their evaluations left no ambiguity

about Ferguson’s ability to think rationally. The earliest records note that

Ferguson experienced psychotic “visual and auditory hallucinations,” R. 182


6

(1971), was “suffering from a major mental disorder,” R. 187 (1971), appeared

“psychotic and incompetent,” R. 193 (1973), “appear[ed] grossly psychotic,” R.

196 (1974), and was “certainly presently insane and incompetent.” R. 205 (1975).

Ferguson’s mental health only deteriorated from there. And the State’s own

doctors grew increasingly concerned—not just for Ferguson’s sketchy hold on

reality but also for his inability to understand how his actions would affect the

community were he released from institutional care. One emphasized that “[t]he

degree of irrationality coupled with a rather impulsive, explosive and aggressive

nature makes him a rather dangerous person both to himself and to others.” R.

205. A different State-appointed psychiatrist months later reached the same

conclusion: Ferguson was “suffering from a major mental disorder and is

extremely dangerous to himself and others.” R. 209. Indeed, in 1975, two

different doctors warned that Ferguson “is dangerous to the point where he is

considered homicidal [and] should not be released under any circumstances.” Id.;

R. 211 (“He has a long-standing, severe illness which will most likely require long-

term, inpatient hospitalization. This man is dangerous and cannot be released

under any circumstances.”).

But the State released him about a year later. And in 1978, Ferguson stood

trial on multiple murder charges. At that point, many of the same State-appointed

psychiatrists reconsidered their earlier diagnoses, concluded that they must have


7

been fooled by a clever malingerer (despite Ferguson’s low-average 81 I.Q.), and

pronounced him fit to stand trial. Ferguson was convicted and sentenced to death.

Ferguson’s history of mental illness, though, did not stop with his

conviction. Reams of prison records—totaling thousands of pages—pick up right

where the mid-1970s diagnoses left off. Although too numerous to recount, they

include State-appointed psychiatrists declaring Ferguson “incompetent” to proceed

with clemency evaluations in 1986 and again in 1987. R. 248-249. In 1987, for

example, the State’s own doctors evaluated Ferguson and concluded that he “does

not know his lawyer’s name and has only a vague idea about what a lawyer’s

function is.” R. 249. As he had more than a decade before, Ferguson continued to

suffer from “[d]elusions of persecutory nature” and “admit[ted] to hearing voices.”

Id.

Ferguson’s severe mental illness persisted. In 1991, Ferguson was

hospitalized due to a psychotic episode related to the sudden suspension of his

antipsychotic medications. Tr. 46:8-13. Again in 1994, Ferguson suffered another

psychotic episode and was again taken to the Department of Corrections (DOC)

Mental Health Institution because his paranoia caused him to lose 20 pounds in 10

days. R. 2469.

Ferguson’s lengthy battle with mental illness continues today. As the

Circuit Court that heard this case would later conclude, see infra 12-20, John


8

Ferguson not only has a “documented history of paranoid schizophrenia,” R.E.

147a, but still to this day “does have a diagnosed mental illness, paranoid

schizophrenia.” R.E. 148a.

B. The Governor’s Inquiry Into Ferguson’s Competency To Be

Executed

On September 5, 2012, Governor Scott signed a death warrant for Ferguson,

setting the date of execution 41 days later on October 16, 2012. Given Ferguson’s

40-year history of severe psychosis, his counsel immediately contacted

psychiatrists and other experts to evaluate Ferguson’s competency. After receiving

reports from the experts confirming that Ferguson was currently incompetent to be

executed, they notified the Governor on September 23, 2012 of their good-faith

belief that Ferguson’s execution would violate the Eighth Amendment and the

Supreme Court’s decision in Ford. Under Florida law, that notice was supposed to

trigger an automatic stay of execution to allow a full and fair process to unfold.

See Fla. Stat. § 922.07. But while purporting to “grant” a stay, the Governor still

left in place the October 16, 2012 execution date.

To evaluate whether Ferguson was competent, the Governor appointed three

psychiatrists to a special Commission on September 26, 2012. But because the

Governor had kept the execution date in place, the Commission was ordered to


9

make quick work of its mandate: They were told to examine Ferguson on October

1 and issue a complete psychiatric report on his competency by October 2. R.35.

The Commission did even better: It managed to send a terse one-and-a-half-

page report to the Governor by 4:00 p.m. the same day it evaluated Ferguson. R.

36-37. Of course, that sort of efficiency was accomplished thanks only to some

short cuts. For instance, even though Ferguson’s mental-health records span

thousands of pages of paper, the Commission evaluated only a subset of them—

hand-picked by the State’s lawyers. Tr. 590. Notably absent from those records

were any of the pre-1978 diagnoses from State psychiatrists consistently

documenting Ferguson’s paralyzing psychosis. That said, the Commission still

had to make their way through two file boxes of medical records—a task it

knocked off with stunning efficiency, taking a mere 90 minutes to complete. Tr.

298. Needless to say, that feat came with its own cut corners. As the

Commission’s Chair later conceded on cross-examination, he did not review all of

the records provided. Tr. 285.

The Commission took the same fleet approach to examining Ferguson,

meeting with him for just under 90 minutes. Tr. 264. During that interview,

Ferguson demonstrated no rational understanding of why the State was seeking to

kill him or what would happen to him. For instance, he told the Commission—

consistent with what he has told psychiatrists for 40 years—that he is the Prince of


10

God. Tr. 56, 93, 497, 504, 598; R.E.140a. He also told them that he would “come

back to life,” Tr. 255, that his body would not remain in his grave, Tr. 599, and that

he was destined to be the “only one” at the right hand of God. Tr. 603; R.E.146a.

Ferguson also reported to the Commission a long history of other delusions

and hallucinations—including current delusions and hallucinations. Among them,

Ferguson explained that he heard God whisper to him (through his set of “inner

ears”) plans for fulfilling his destiny as the Prince of God; that he communicated

with his long-dead father, who has vowed to protect him from death or harm; that

he believes the State lacks the power to kill him; that he sees “shadow people” who

watch him; that he is convinced there are communist plots that he will “drive

away” after he assumes his seat at the right hand of God. See, e.g., R.E. 135a-

136a, 140a-141a; Tr. 56, 57, 58, 604.

The Commission, however, saw nothing amiss. To be sure, it conceded in

the final paragraph of its report that Ferguson had indeed exhibited psychotic

symptoms. But the Commission dismissed them out of hand. In its view,

Ferguson “feign[ed] religious delusion thinking” and “feigned other psychotic

symptoms.” R. 37. The Commission, however, never administered a single test

for feigning—even though some of the Commissioners had brought testing

equipment with them for precisely that purpose. R. 303, 460; R.E. 142a.


11

Having written off all of Ferguson’s psychoses as “feigned,” the

Commission concluded that Ferguson “(1) has no genuine current mental illness;

and (2) understands the nature and effect of the death penalty and why it was

imposed on him.” R. 37. The Commission’s members would later concede that

they reached this conclusion after a “short discussion” immediately following the

interview, which lasted approximately five to ten minutes. Tr. 509. As the Circuit

Court would later find, the Commission “did not complete a thorough and

exhaustive interview of Ferguson.” R.2730.

C. Proceedings Before The Florida Circuit Court

After the Governor adopted the Commission’s findings, Ferguson petitioned

for review in the Bradford County Circuit Court. The petition was filed on

October 3, 2012—the day after the Governor formally declared Ferguson

competent (and the day after Ferguson received a copy of the Commission’s

report). The very next day, the Circuit Court held a conference call to set up a

hearing. Because the October 16 execution date remained in place, the Circuit

Court set aside two days for the parties to present all evidence they had at that

point regarding Ferguson’s competency. The Court scheduled the hearing to begin

five days later on October 9, 2012.


12

One day after the hearing ended, the Circuit Court issued its findings of fact

and conclusions of law. In them, the court rejected the State’s theory that any

psychosis exhibited by Ferguson was feigned. To the contrary, the Circuit Court

made three key factual findings: (a) that Ferguson is currently suffering from

paranoid schizophrenia, (b) that Ferguson currently suffers from a “genuine”

Prince of God delusion, (b) that Ferguson is not malingering his illness or his

delusions. R.2730-31; R.E. 147a-148a. Each factual finding is substantially

supported by a robust record.

The Circuit Court Found Ferguson Is A Paranoid Schizophrenic. In

addition to the voluminous history chronicling Ferguson’s schizophrenia, the

Circuit Court relied on the testimony of Dr. George Woods, M.D., an expert in the

field of psychiatry, who evaluated Ferguson on several occasions. The Circuit

Court credited Dr. Woods and his testimony as both “credible and compelling.”

R.2730 (emphasis added); R.E. 147a.

Dr. Woods submitted an expert report setting forth his “professional belief []

that Mr. Ferguson is not sane to be executed.” R.108; see also Tr. 57-60. He

described Ferguson’s thoughts as “paranoid, persecutory, grandiose, and

significantly psychotic.” R.115; Tr. 93:25-94:1-3. According to Dr. Woods,

Ferguson “experiences the visual hallucination of seeing his father,” who long has

been deceased, R.117; he has had “delusions of angels coming out of his cell walls,


13

as well as snakes and ‘vicious dogs coming out at me, coming out of the walls,’”

R.117; he reports an olfactory hallucination of “a sweet smell” that occurs “several

times per month,” causing him to “clean[] his cell, trying to eliminate the smell,

without success,” R.117; Ferguson suffers from a structural defect in his brain

called Cavum Septum Pellucidum, “a failure for the two hemispheres of the brain

to normally fuse,” which has a “higher incidence on persons with psychosis,

particularly schizophrenia,” R.118.

Dr. Woods also discussed the significance of Ferguson’s long-standing and

current symptoms: visual hallucinations of “shadow people” and attacking dogs

and snakes. Tr. 55:6-15; R.2718, 2723-24. Ferguson has also complained of

auditory hallucinations of his father—long deceased—speaking to him and

providing him direction and protection from those who plot against him. Tr.

56:11-18; R.2718. He claims also that he hears the voice of God with a set of

“inner ears” inside his head. Tr. 604:20-22; R.2723, and that the voice of God told

him he was being anointed. Tr. 6-5:8-10. Ultimately, Ferguson believes that he

has “a more important role than Jesus.” Tr. 604:2-3.

Dr. Woods went on to explain why Ferguson lacks any rational appreciation

for why he is being executed:

Mr. Ferguson also believes that the Florida Correctional Systemknows that he is the Prince of God, and that the conviction that landedhim on Death Row was not based upon the law. Instead, he believesthat it was based upon two factors. The first involves a conspiracy of


14

corrupt policemen and in retaliation for being acquitted in a prior case.The second is the Court’s attempts to prevent him from acquiring histhrone as the Prince of God. He believes that the State of Florida'sattempts to prevent his ascension is the primary reason for his trial andcontinued incarceration on Death Row.

R.121. Dr. Woods concluded, therefore, that Ferguson’s “delusions specifically

impact his understanding of his legal position.” R.121.

The Circuit Court Found Ferguson’s Prince Of God Delusion Is

Genuine. The Circuit Court’s finding that Ferguson’s “Prince of God” delusion is

a “genuine belief” contradicted the State’s basic theory that Ferguson has simply

fabricated this 40-year delusion. Although the State has continued to fight that

finding in all subsequent briefs, it was amply supported by record evidence.

For instance, Dr. Woods testified at length that Ferguson believes that he is

the Prince of God. Dr. Woods not only noted that Ferguson believes that he is the

Prince of God, but that this belief is “certainly” separated out from the “the typical

Judeo-Christian idea of Jesus Christ.” Tr. 56:22-24. As the Prince of God,

Ferguson believes that he is “omnipotent,” a belief that Dr. Woods notes is the

“grandiose component of the Prince of God delusion.” Tr. 93:25 through 94:1-3.

That manifests, among other ways, by Ferguson voicing deep suspicions that there

are nefarious plots by communists to take over our country and that he alone has

been anointed a divine role to save our country. Tr. 59:25-60:1; R.2719. What’s


15

more, Ferguson believes that the prison setting is to “prepare him for this

transition, ascension.” Tr. 56:21-25.

As one witness put it who observed him during the Commission’s

examination, Ferguson sees his role at the right hand of God as a role only he

fulfills: “I’m the only one.” Tr. 603:14-16; R.2729; R.E. 146a. He said another

time, when pressed by the Commission whether his was a special relationship with

God, that yes, this was his role, “just him.” Tr. 603:19-21. He also compared

himself to Jesus throughout the interview. Tr. 603:22-25. These sentiments are

reiterated by Dr. Woods, who noted that Ferguson believes that he has “special

powers.” Tr. 60:1.

Dr. Myers, the Chair of the Commission, even acknowledged on cross-

examination that Ferguson said he would “come back to life.” Tr. 255: 8. Dr.

Werner, the only other Commission member to testify, conceded that Ferguson’s

Prince of God delusion and belief that he is “coming back to earth” are one and the

same. Tr. 504:18-23. She noted a second time that Ferguson believed that he

would “come back to earth.” Tr. 500:23-24. Dr. Werner also recalled Ferguson’s

repeated explanation that he believed that he will be resurrected to “sit at the right

hand of God.” Tr. 498:12-13.

This “genuine” Prince of God delusion directly affects Ferguson’s ability to

rationally understand what will happen to him after the State attempts to execute


16

him. Dr. Woods, for instance, relayed an important point that Ferguson had made

during one of his clinical evaluations. There, Ferguson acknowledged that he

could kill himself because he possessed special powers. But he insisted that he

“can’t be killed” by others, because they lack the powers necessary to do so. Tr.

58:5-11.

Dr. Woods’s “credible and compelling” testimony also undermined another

key component to the State’s malingering theory. At the hearing, the State called

several prison guards, the Warden, and a prison mental-health advisor to describe

their interactions with Ferguson. All but the mental-health advisor lacked any

training at all in mental disorders—and even she conceded she had yet to obtain a

license from the State of Florida. Tr.430. More telling still, each of these lay

witnesses confessed to having spent just seconds or minutes at a time with

Ferguson; all of their “observations” were thus based on fleeting encounters with

him, not meaningful conversations or examinations. Tr. 339, 350, 376, 393-94,

434-35.

The common denominator with all of their armchair observations was that

Ferguson did not appear to be a barking-mad, howl-at-the-moon crazy person. But

Dr. Woods testified why Ferguson’s lack of outward manifestations or “positive”

signs of delusional thinking was consistent with his schizophrenia. According to

Dr. Woods, “a diminution of the power of his positive symptoms, such as


17

hallucinations, is consistent with the clinical literature on late life schizophrenia.”

R.113; Tr. 37-38. In addition to the natural decline of positive symptoms with age,

Ferguson also has a completely understandable motivation to decline to discuss his

symptoms freely. “His positive symptoms, including delusions, continue, although

he no longer finds the need to discuss them. He has found discussing his

hallucinations and delusions has led to ongoing treatment with antipsychotics

medication that has not been effective in the long run.” R.114; see also R.115

(Ferguson was concerned about being put back on medications due to severe

“motor side effects from his antipsychotic medication as early as 1996,” including

“[a] diagnosis of ‘Early Tardive Dyskinesia,’ an irreversible Parkinson-like

syndrome, was entertained by his treating mental health providers,” resulting in his

refusal of pharmacological treatment.”).

The Circuit Court Found Ferguson Is Not Malingering. This finding is

perhaps the most critical made by the Circuit Court. That is because the

Commission acknowledged that Ferguson voiced many psychotic delusions and

hallucinations. But the Commission—like the State—wrote all of this evidence of

irrationality off by concluding that Ferguson was simply faking it.

The Circuit Court disagreed. It did so, in large part, because of the

testimony of Dr. Richard Rogers, Ph.D., the nation’s foremost expert in evaluating

malingering. Dr. Rogers has literally written the book on testing for malingering.


18

See Richard Rogers et al., Clinical Assessment of Malingering and Deception

(Richard Rogers, ed., 3rd ed. 2008). He is also the principal author of the widely

used Structured Interview of Reported Symptoms (SIRS) and the SIRS-2nd edition

(SIRS-2) tests for malingering. Even the State’s own experts acknowledged that

Dr. Rogers is one of the very leading authorities in the field. Tr. 317.

As with Dr. Woods, the Circuit Court found Dr. Rogers to be “credible and

compelling.” R.2730. For good reason: Dr. Rogers administered a battery of

empirical tests on Ferguson over the course of two days, wrote a detailed report

summarizing his scientific method and the results obtained, and ultimately opined,

within a reasonable degree of psychological certainty, that Ferguson is not

“feigning or malingering.” R. 89.

Against all this, the State had little to offer. It pointed first to the

Commission, which had asserted in one sentence in its one-and-a-half-page report

that Ferguson had “feigned” the various psychotic symptoms he expressed. R. 37.

But unlike Dr. Rogers, the Commission administered no tests; its “feigning”

conclusion was simply their guess based on a 90-minute interview. Moreover, Dr.

Rogers submitted a supplemental report that explained why the Commission’s

conclusion lacked scientific rigor and could not provide a meaningful “assessment

of feigning.” R.106.


19

The State’s only other evidence of Ferguson’s malingering was eight years

old. It had pointed to an earlier 2004 hearing during federal habeas proceedings—

also before Judge Hurley—to evaluate Ferguson’s competency to assist counsel.

There, the District Court had found Ferguson competent and deemed him to have

feigned some of his symptoms based, in part, on testimony provided by Dr.

Enrique Suarez. The State called Dr. Suarez at the Circuit Court hearing, but Dr.

Suarez acknowledged that he had not seen Ferguson in more than eight years. Tr.

560:5-14. And he twice conceded that his distant conclusions from 2004 were not

relevant in assessing Ferguson’s present competency to be executed. Tr. 563:22-

25 (“[O]n the question [of whether] Mr. Ferguson [is] competent to be executed

today,” Dr. Suarez testified that his 2004 study “is irrelevant” and that he “ha[s] no

opinion on that.”); Tr. 564:1-6 (Dr. Suarez also testified that his “testimony from

2004 would likewise be irrelevant in assessing whether Mr. Ferguson is competent

to be executed today,” conceding that “[o]n the question of competency, I have no

opinion today.”).

Moreover, according to Dr. Rogers, whose testimony was credited as

“credible and compelling,” R.2730, “[t]he fact that [Mr. Ferguson] had apparently

been found to malinger in 2004” did not “ultimately impact [the] bottom-line

assessment that presently he is not malingering.” Tr. 185:18-22. Dr. Rogers also

testified that he “do[es] not give [the 2004 testing] weight.” Tr. 198:23-199:2; see


20

also Tr. 200:1-2 (Dr. Rogers’s testimony that “something from eight years ago

would not be germane to the current situation.”).

After hearing all the testimony and considering all the reports, the Circuit

Court sided with Dr. Rogers and found Ferguson is not malingering. It concluded

that “Dr. Rogers’ testimony that Ferguson is not malingering is supported by a

battery of tests which he performed on Ferguson.” R.2730. The Circuit Court

credited the Commission’s conclusion and testimony only “as to the limited

question of Ferguson’s competency to be executed.” R.2730. And the court

squarely rejected the Commission’s contrary conclusion that Ferguson was

feigning, finding “a lack of sufficient evidence of malingering during the interview

with the Commission.” R.2730. The Circuit Court thus held as a matter of fact

that Ferguson’s delusions were “a genuine belief.” R.2730. And lest there be any

doubt about whether the court had rejected the State’s principal theory, it went on

to find that Dr. Suarez’s testimony “does not undermine” the conclusion that

Ferguson is not malingering. R. 2730.

D. The State Courts’ Findings Of Competency

Even though the Circuit Court found that Ferguson suffers from paranoid

schizophrenia, is not malingering his psychoses, and harbors “genuine” “Prince of

God” delusions, it found him sane to be executed. But it based that bottom-line


21

conclusion on a curious finding: that his “genuine” delusions that he was “the

Prince of God” were merely “relatively normal belief[s].” R.2731.

On appeal, the Florida Supreme Court notably refused to embrace that

rationale. Nevertheless, it too found Ferguson competent to be executed, even

though it did not disturb any of the Circuit Court’s subsidiary findings about

Ferguson’s schizophrenia, genuine Prince of God delusions, or lack of

malingering.

Its short opinion contained three critical components. First, the Florida

Supreme Court announced that “the Eighth Amendment only requires that

defendants be aware of the punishment they are about to suffer and why they are to

suffer it.” R.E. 126a (citing Provenzano v. State, 760 So. 2d 137, 140 (Fla. 2000)

(citing Ford, 477 U.S. at 422 (Powell, J., concurring))). According to that court,

the U.S. Supreme Court’s holding in Panetti “does not alter our decision in

Provenzano.” Id. The court thus doubled down on its pre-Panetti formulation:

“the Eighth Amendment requires only that defendants be aware of the punishment

they are about to receive and the reason they are to receive it.” R.E. 128a (citing

Ford, 477 U.S. at 422 (Powell, J., concurring)).

Second, the Florida Supreme Court concluded that Ferguson satisfied its

Provenzano test based on only two facts: (1) “that Ferguson is aware that he has

never before had a death warrant signed on his behalf,” and (2) “that he would be


22

the first person to receive Florida’s current protocol of medications for lethal

injection.” R.E. 127a.

And finally, the Florida Supreme Court summarily rejected Ferguson’s due

process claims—a fundamental aspect to the holdings in Ford and Panetti—in one

conclusory sentence: “We have carefully reviewed the parties’ arguments and the

record in this case, and find each of these claims to be without merit.” R.E. 128a.

E. Ferguson Seeks Federal Habeas Review.

Ferguson challenged the Florida Supreme Court’s decision by initiating a

federal habeas action in the U.S. District Court for the Southern District of Florida

on October 19, 2012. The next day, Judge Hurley issued an electronic order

imposing a stay of execution. Ferguson v. Sec’y, Fla. Dep’t of Corrs., No. 1:12-

cv-23817, Dkt. No. 19 (S.D. Fla. Oct. 20, 2012). In the order, Judge Hurley

“concluded that the petition is not successive and is nonfrivolous” and that “[t]he

issues raised merit full, reflective consideration.” Id.

Judge Hurley later released an order memorializing his grant of Ferguson’s

emergency motion for stay of execution. He explained that Ferguson’s petition

was timely “[b]ecause a claim of incompetency to be executed does not become

ripe until execution is imminent.” Ferguson v. Sec’y, Fla. Dep’t of Corrs., No.

1:12-cv-23817, Dkt. No. 27 (S.D. Fla. Oct. 22, 2012) (citing Stewart v. Martinez-

Villareal, 523 U .S. 637, 644-645 (1998), and Herrera v. Collins, 506 U.S. 390,


23

406 (1993)). Moreover, “[t]he statutory bar on ‘second or successive’

application[s] does not apply.” Id. (citing Panetti, 551 U.S. 930 (prisoner’s Ford-

based claim of incompetency to be executed is not barred by the Antiterrorism and

Effective Death Penalty Act (AEDPA)’s prohibition against “second or

successive” habeas applications)).

Judge Hurley set a briefing schedule, including a three-hour oral argument,

to consider “whether a stay of execution is necessary in order to permit a ‘fair

hearing’ on the petitioner’s claim that the Florida Supreme Court's decision is

contrary to or constitutes an unreasonable application of the precedent set by the

United States Supreme Court.” Id. at 3. While the State has an interest in carrying

out its sentence, Judge Hurley concluded, “it may do so only if its action is

consistent with the Constitution of the United States.” Id.

A divided panel of this Court vacated the stay, concluding that the District

Court had applied the wrong standard for assessing whether a stay is warranted.

Ferguson v. Sec’y, Fla. Dep’t of Corrs., No. 12-15377 (11th Cir. Oct. 22, 2012)

(Order Vacating District Court’s Stay of Execution). In a concurring and

dissenting opinion, Judge Wilson indicated that he “ha[s] doubts about whether the

Florida courts correctly applied Panetti.” Id. at 7 (Wilson, J., concurring and

dissenting). Ferguson asked the Supreme Court to reinstate the stay, but the Court

declined to intervene.


24

Because the District Court retained jurisdiction to rule on the merits,

Ferguson asked for an expedited argument on October 23—the day Ferguson was

set to be executed. Though the District Court ultimately denied the petition, it

issued a Certificate of Appealability (COA), certifying two substantial

constitutional issues for this Court’s review:

A. Whether the decision of the Florida Supreme Court involved anunreasonable application of the Un[ited] States Supreme Court’sdecision[s] in Ford and Panetti.

B. Whether the Florida Supreme Court’s affirmance of the state trial courtwas based on an unreasonable determination of the facts in light of theevidence presented in the state court proceeding, viz, that (a) thepetitioner has a documented history of paranoid schizophrenia; (b) he isnot malingering, and (c) he has a fixed grandiose delusion that he is the“Prince of God.”

Ferguson v. Sec’y, Fla. Dep’t of Corrs., No. 1:12-cv-23817, Dkt. No. 31 (S.D. Fla.

Oct. 20, 2012) (Order Denying Petition for Writ of Habeas Corpus and Granting

Certificate of Appealability). Ferguson immediately filed a Notice of Appeal, Dkt.

No. 1, and an Emergency Motion to Vacate Stay of Execution, Dkt. No. 2. This

Court granted the emergency stay, recognizing that “[p]ursuant to Eleventh Circuit

Rule 22-4(a)(7), this panel is required to ‘grant a temporary stay pending

consideration of the merits of the appeal if necessary to prevent mooting the

appeal.’” R.E. 118a. This Court also “direct[ed] the parties to brief the Rule 22-

4(a)(7)(i) and (ii) issues, including whether the temporary stay should be extended,

and the merits of the issues identified in the Certificate of Appealability.” Id.


25

The State asked the Supreme Court to vacate this Court’s stay. The

Supreme Court refused. The State then petitioned this Court to vacate its own stay.

This Court denied the motion. Ferguson v. Sec’y, Fla. Dep’t of Corrs., No. 12-

15422 (11th Cir. Oct. 26, 2012) (Order Denying Appellee’s Motion to Vacate

District Court’s Certificate of Appealability and This Court’s Stay of Execution

and to Dismiss Petitioner’s Appeal).

STANDARD OF REVIEW

This Court “review[s] de novo a district court’s grant or denial of a habeas

corpus petition.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (quoting

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (citations omitted)),

cert. denied, 131 S. Ct. 647 (2010). Under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), habeas corpus relief is appropriate if the Florida

Supreme Court’s adjudication of Ferguson’s claims:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding. [28 U.S.C. § 2254(d).]


26

SUMMARY OF ARGUMENT

The District Court certified to this Court the question whether the Florida state

courts had unreasonably applied Panetti and Ford in finding John Ferguson competent to

be executed. The answer to that question is yes—twice over.

1. The Supreme Court in Panetti held that courts reviewing a condemned

prisoner’s Eighth Amendment Ford claim must ask more than whether the prisoner is

aware that he is going to be executed and why he is going to be executed. After Panetti,

courts reviewing Ford claims must also ensure that the condemned man has a “rational

understanding” of the reason for, and consequences of, the punishment to be inflicted on

him. 551 U.S. at 959.

The Florida Supreme Court had not been presented with a Ford competency appeal

in the years since Panetti until John Ferguson’s appeal arrived before it. And in its

decision, the Florida court expressly maintained, and repeatedly applied, the exact same

standard the Supreme Court rejected in Panetti, asking whether Ferguson was “ ‘aware

of the punishment [he is] about to suffer and why [he is] to suffer it.’ ” Op. 6 (quoting

Provenzano v. State, 760 So. 2d 137, 140 (2000)); see also Op. 5, Op. 7, Op. 8. Because

the Florida Supreme Court expressly, and unreasonably, declined to apply clearly

established Supreme Court law to Ferguson’s appeal, habeas relief is warranted. See

Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011) (habeas appropriate where state


27

court “unreasonably declines” to apply clearly established law to a habeas petitioner’s

claims).

There is one passage early in the Florida Supreme Court’s opinion where the court

struck glancingly closer to the Panetti standard: before it commenced its competency

analysis, the court described the question on appeal as “whether there is competent,

substantial evidence to support the trial court’s determination that Ferguson’s mental

illness does not interfere with his rational understanding of the fact of his pending

execution.” Op. 4. But even assuming that that un-cited reference was enough to invoke

Panetti when the court on every following page disclaimed that intent, the court’s

decision still represented an unreasonable application of that controlling Supreme Court

case. See Williams v. Taylor, 529 U.S. 362, 407 (2000) (habeas warranted where state

court “identifies the correct governing legal rule but unreasonably applies it to the facts of

the particular state prisoner’s case”). The Florida Supreme Court did not analyze—and it

certainly did not conclude—whether John Ferguson possesses a “rational understanding”

of his execution and the reasons for it. That conclusion would be impossible to come by

in this case, given the state court’s factual findings that Ferguson is a paranoid

schizophrenic, that he is not malingering, and that he harbors a genuine delusion that he

is the “Prince of God,” confined, persecuted, and selected to die by police and guards

jealous of his powers, and destined to ascend to the right hand of God and to return to

Earth in corporal form to wage war against communism.


28

Ferguson’s habeas petition should be granted, the state courts’ ultimate

competency finding should be reviewed “without deferring to the state court’s finding of

competency,” Panetti, 551 U.S. at 954, and Ferguson should be found not competent to

be executed.

2. The Supreme Court in Panetti also held, in keeping with Ford before it,

that a state competency proceeding must provide a condemned prisoner “with a

constitutionally adequate opportunity to be heard,” including “the opportunity to

make an adequate response” to the State’s adverse evidence. 551 U.S. at 952.

That opportunity was nowhere evident in Ferguson’s competency proceeding, from

the very first. When Ferguson’s counsel presented a thorough submission to the

Governor that Ferguson was not competent to be executed, the Governor “stayed”

Ferguson’s execution—and imposed the same execution date. When the Governor

appointed a three-person Commission to examine Ferguson, the deadline for the

Commission’s report was set a day after their evaluation—and the Commission

managed to beat even that deadline, delivering a one-and-a-half-page report

finding Ferguson competent after reviewing cherry-picked psychiatric records and

talking with Ferguson for an hour and a half. When the Circuit Court set

Ferguson’s competency hearing, constrained by the looming execution date, it set

the hearing to begin the next business day. When Ferguson’s counsel were not

able to procure witnesses to appear on such short notice, court proceeded anyway.


29

And when the State declared at the last minute that it would not call one of the

three Commissioners who had pronounced Ferguson sane, court proceeded

anyway. This was not a process “adequate for reaching reasonably correct

results,” nor was it adequate “for the ascertainment of truth.” Panetti, 551 U.S. at

954. It was a frenzy, a circus. The Florida Supreme Court’s casual dismissal of

Ferguson’s due-process challenge to his competency proceeding was an

unreasonable application of both Ford and Panetti, and habeas relief is warranted

on this separate basis as well.

3. To the extent the Florida Supreme Court correctly articulated the

Panetti standard, its bottom-line conclusion that Ferguson is sane constitutes an

unreasonable finding of fact. Unlike most challenges to State court findings of

fact, this challenge is unique. That is because Ferguson accepts all of the

subsidiary findings of fact that he is schizophrenic, that he has a “genuine” “Prince

of God” delusion, and that he is not malingering. Under Panetti, it is unreasonable

to find a prisoner competent to be executed when he clearly labors under delusions

that prevent him from rationally understanding why he is being put to death and

the consequences of that execution.

4. While this Court considers the merits of this appeal, it should preserve

the stay. Circuit Rule 22-4(a)(7) expressly requires a stay whenever, as here, the

District Court has granted a certificate of appealability and a prisoner’s imminent


30

execution would otherwise moot the appeal before this Court could reach the

merits. Neither of the two exceptions under that Circuit Rule apply. This case is

not frivolous or factually unfounded; indeed, Judge Wilson has already indicated

that he “ha[s] doubts” about whether the Florida Supreme Court correctly applied

Panetti. Nor is this a successive petition. The Supreme Court in Panetti squarely

held that, because a Ford-based competency claim can only be brought once a

death warrant has been signed, habeas petitions raising such claims are not

successive.

ARGUMENT

When the Supreme Court decided Panetti in 2007, it made two core

constitutional rulings. First, the Panetti Court rejected as unconstitutional a

competency inquiry that asked only whether a prisoner is “aware ‘that he [is] going

to be executed and why he [is] going to be executed.’ ” 551 U.S. at 956 (quoting

Panetti v. Dretke, 448 F.3d 815, 819 (5th Cir. 2006), rev’d). As the Panetti Court

explained, a prisoner’s “awareness of the State’s rationale for an execution is not

the same as a rational understanding of it.” Id. at 959.

Second, Panetti held that a state competency proceeding must provide a

condemned prisoner “with a constitutionally adequate opportunity to be heard,”

including “the opportunity to make an adequate response to evidence solicited by

the state court.” 551 U.S. at 953. The competency process must be “adequate for


31

reaching reasonably correct results”; it will not comport with the Constitution if it

is “seriously inadequate for the ascertainment of truth.” Id. at 954.

The Florida Supreme Court unreasonably applied both of Panetti’s

holdings—substantive, and procedural. And because the state court unreasonably

applied clearly established federal law, this Court should find Ferguson

incompetent to be executed based on the established underlying facts, or remand to

the District Court for it to make that ultimate finding.

I. THE FLORIDA SUPREME COURT UNREASONABLY APPLIEDCLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUNDJOHN FERGUSON COMPETENT TO BE EXECUTED.

The Eighth Amendment forbids executing the insane. Ford v. Wainwright,

477 U.S. 399 (1986). A State therefore must assess and decide a condemned

prisoner’s competency to be executed before carrying out that punishment. The

Ford plurality did not articulate a competency standard, but Justice Powell in

concurrence did: “[T]he Eighth Amendment forbids the execution only of those

who are unaware of the punishment they are about to suffer and why they are to

suffer it.” Id.

In Ford’s wake, the lower state and federal courts regularly applied Justice

Powell’s formulation as the governing standard for determining competency to be

executed. See, e.g., Coe v. Bell, 209 F.3d 815, 821-822, 826-827 (6th Cir. 2000)

(asking whether condemned was “aware of his imminent execution and the reason


32

for it”). Florida courts were among them. In close keeping with Justice Powell’s

formulation, the Florida Supreme Court held that “the Eighth Amendment only

requires that defendants be aware of the punishment they are about to suffer and

why they are to suffer it.” Provenzano v. State, 760 So. 2d 137, 140 (Fla. 2000).2

The Supreme Court found that standard constitutionally deficient in Panetti,

551 U.S. at 962. “Reject[ing] the standard followed by the Court of Appeals,” the

Supreme Court explained that a condemned prisoner’s mere awareness of “the

State’s announced reason for a punishment or the fact of an imminent execution”

does not satisfy the Eighth Amendment. Id. at 960, 959. The prisoner must have a

“rational understanding” of the fact of and reason for his execution. Id. at 959. As

the Panetti Court explained, whether an inmate “suffers from a severe, documented

mental illness that is the source of gross delusions preventing him from

comprehending the meaning and purpose of the punishment to which he has been

sentenced” must be considered when evaluating whether the inmate possesses the

requisite rational understanding of what will imminently befall him. Id. at 960.

After Panetti, then, a state competency rule is unconstitutional if it asks only

whether an inmate understands the fact of his impending execution and the reason

2 See also Shaw v. Armontrout, 900 F.2d 123, 124-25 (8th Cir. 1990) (same);Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992) (same); Commonwealth v.Jermyn, 709 A.2d 849, 853 (Pa. 1998) (same); Sanders v. State, 585 A.2d 117, 138(Del. 1990) (same).


33

for it. The Florida Supreme Court, however, repeatedly applied that old rule to

Ferguson’s competency challenge. And when it did so, the court invited habeas

review and reversal under 28 U.S.C. § 2254(d).

A. The Florida Supreme Court Unreasonably Declined To ApplyPanetti To Ferguson’s Identical Claims.

A state court decision “involves an unreasonable application of clearly

established federal law if the state court * * * unreasonably declines to extend[] a

legal principle from Supreme Court case law to a new context.” Greene v. Upton,

644 F.3d 1145, 1154 (11th Cir. 2011); Putman v. Head, 268 F.3 1223, 1241 (11th

Cir. 2001). That is exactly what the Florida Supreme Court did here—and then

some. For the “context” in which the Florida Supreme Court issued its decision

was not new; the context was on all fours with Panetti. The Florida Supreme

Court’s refusal to alter its unconstitutional competency standard in light of Panetti

was flatly incorrect, and it was objectively unreasonable. See Wiggins v. Smith,

539 U.S. 510, 520-521 (2003).

Throughout its opinion—indeed, on every single page of its analysis of

Ferguson’s competency claim—the Florida Supreme Court invoked and applied

the rule laid down in its year-2000 Provenzano decision and codified in the State’s

rules of criminal procedure. The Florida Supreme Court led off its analysis by

explaining that Florida’s competency standard asks “ ‘whether the prisoner lacks

the mental capacity to understand the fact of the pending execution and the reason


34

for it.’ ” R.E. 124a-125a (quoting Provenzano, which in turn quoted Fla. R. Crim.

P. 3.812(b)). It supplied the historical background for its competency standard,

explaining that “Florida’s method” of determining competency “stems from” Ford.

R.E. 125a. The court took up Provenzano, explaining that the Florida Supreme

Court had adopted Justice Powell’s formulation that “ ‘the Eighth Amendment

only requires that defendants be aware of the punishment they are about to suffer

and why they are to suffer it.’ ” R.E. 126a (quoting Provenzano, 760 So. 2d at

140). The court reaffirmed Provenzano, explaining that the Supreme Court’s

subsequent decision in Panetti “does not overturn this Court’s decision.” R.E.

127a. And then the court applied Provenzano, comparing the two cases and

concluding that “the record indicates that Ferguson understands what is taking

place and why. Specifically, the record indicates that Ferguson is aware that he

has never before had a death warrant signed on his behalf and that he would be the

first person to receive Florida’s current protocol of medications for lethal

injection.” Id.

The Florida Supreme Court’s bottom-line conclusion: “In this context, the

Eighth Amendment requires only that defendants be aware of the punishment they

are about to receive and the reason they are to receive it.” R.E. 128a (citing Ford,

477 U.S. at 422 (Powell, J., concurring)). And after citing Provenzano one more


35

time, id., the Florida Supreme Court affirmed the Circuit Court’s conclusion that

Ferguson was sane to be executed. Id.

The Florida Supreme Court could not have made itself more plain: It would

adhere to the rule laid down in Provenzano that a condemned prisoner was

competent to be executed as long as he is “aware of the punishment [he is] about to

receive and the reason [he is] to receive it.” Id.; R.E. 124a, 125a, 126a, 127a. That

rule is, of course, precisely the one the Supreme Court rejected in Panetti. The

standard applied by the Fifth Circuit there asked whether the condemned prisoner

is aware “ ‘that he [is] going to be executed and why he [is] going to be

executed.’ ” Panetti, 551 U.S. at 956 (internal quotations and citation omitted).

And the Supreme Court “reject[ed]” that standard. Id. at 960.

The fact that the Florida Supreme Court expressly reaffirmed the rule it

adopted in Provenzano only confirms that it unreasonably misapplied (if not

outright refused to apply) Panetti’s rational understanding test. That is because the

Provenzano decisions—the majority and dissenting opinions—presaged the very

same debate the U.S. Supreme Court would later resolve in Panetti. Justice

Anstead explained in his Provenzano dissent that “[i]t is impossible to conclude in

this case that Provenzano has a rational understanding of the reason he is to be

executed when we have a judicial finding based upon clear and convincing

evidence that Provenzano genuinely believes as a matter of fact that he really will


36

be executed because he is Jesus Christ.” Provenzano, 760 So. 2d at 143. But the

majority found Provenzano competent simply because he was “aware of the

punishment [he was] about to suffer and why [he was] about to suffer it.” Id. at

140.

Panetti resolved that debate by embracing a rational-understanding rule. But

the Florida Supreme Court declared below that Panetti did not affect Florida’s

method for assessing competency. R.E. 126a-127a. The court offered two

justifications for standing pat on Provenzano. First, it said, “[t]he Panetti [C]ourt

explicitly declined to extend its ruling to all competency proceedings.” R.E. at

126a. That is simply not so. Panetti held that to satisfy the Eighth Amendment,

any inquiry into a condemned prisoner’s competency to be executed must include

an inquiry into the prisoner’s rational appreciation of the fact and consequences of

his execution, not just his awareness of it. 551 U.S. at 959-960. Panetti is a

Supreme Court decision on a core constitutional issue. It applies to all proceedings

involving a condemned prisoner’s competency to be executed.

Second, the Florida Supreme Court opined that Panetti “does not alter our

decision in Provenzano,” because although the Supreme Court “rejected the

standard pronounced by the Fifth Circuit, [it] specified that it would ‘not attempt to

set down a rule governing all competency determinations.’ ” R.E. 127a (quoting

Panetti, 551 U.S. at 960-961). That is again not so. The Supreme Court did not


37

purport to lay down a rule specifying what an inmate must understand for that

understanding to be “rational,” as Panetti requires. But it expressly “reject[ed]”

the Fifth Circuit’s factual awareness test—and that test happens to be the same test

Florida applies. 551 U.S. at 959-960.

Provenzano relied expressly on the mere “awareness” standard that the

Court found deficient in Panetti. It is no longer good law. But the Florida

Supreme Court invoked and applied it at every relevant page of its decision. And

because the Florida Supreme Court “unreasonably decline[d]” to apply Panetti to

Ferguson’s substantially identical claims, Greene v. Upton, 644 F.3d at 1154, its

decision represents a quintessential “unreasonable application” of controlling

Supreme Court law. 28 U.S.C. § 2254(d).

B. The Florida Supreme Court Unreasonably Applied Panetti’s“Rational Understanding” Inquiry.

The Florida Supreme Court expressly disclaimed any obligation to apply

Panetti to Ferguson’s claims, R.E. 126a-127a, and repeatedly applied its

constitutionally deficient Provenzano standard to the competency question, 124a-

128a. But in a prefatory page of its ruling, the Florida court described the question

before it as “whether there is competent, substantial evidence to support the trial

court’s determination that Ferguson’s mental illness does not interfere with his

rational understanding of the fact of his pending execution.” R.E. 124a (emphases

added). That glancing statement—unaccompanied by citation and never again


38

revisited in the court’s actual competency analysis—does not come close to

salvaging the Florida Supreme Court’s deficient ruling.

To begin with, that statement is not even the Panetti standard. It is the old

Ford “factual awareness” standard, warmed over to include the phrase “rational

understanding.” Panetti does not ask whether an inmate understands “the fact of”

his execution. It requires courts to ask whether an inmate understands “the

meaning and purpose of the punishment to which he has been sentenced.” 551

U.S. at 960.

More important still, in light of the several pages of analysis following this

passing statement, there is no objective way to conclude that the Florida Supreme

Court actually applied Panetti’s “rational understanding” standard while

disclaiming on every single subsequent page its intent to do so. The Florida

Supreme Court said it would not apply Panetti and that it was adhering to

Provenzano; it should be taken at its word. But even the most charitable reading

possible of the Florida Supreme Court’s decision—a reading that assumes the court

applied Panetti even though it expressly declined to do just that—produces the

same result: the decision unreasonably applied Panetti.

A state court’s decision “involves an unreasonable application of clearly

established federal law if the state court identifies the correct governing legal rule

but unreasonably applies it to the facts of the particular state prisoner’s case.”


39

Williams v. Taylor, 529 U.S. 362, 407 (2000); Greene, 644 F.3d at 115 (internal

citations and quotation marks omitted); Reese v. Sec’y, Fla. Dep’t of Corr., 675

F.3d 1277, 1286 (11th Cir. 2011) (same). For the sake of argument, let’s assume

that the Florida Supreme Court struck on the “correct governing legal rule”—the

Panetti standard—early in its opinion even while disclaiming that rule throughout

the rest. The question under Williams and Greene then becomes whether the

Florida Supreme Court “unreasonably applie[d]” the Panetti standard to the facts

of Ferguson’s case. Plainly it did.

The Florida Supreme Court’s competency determination rested on two facts:

“Specifically, the record indicates that Ferguson is aware that he has never before

had a death warrant signed on his behalf and that he would be the first person to

receive Florida’s current protocol of medications for lethal injections.” R.E. 127a.

These two facts establish that Ferguson arguably has some factual awareness of his

impending execution. But that is all they establish. And to find Ferguson sane,

Panetti demands more. The Florida Supreme Court made no attempt to discern, as

Panetti requires, whether the record also supports a conclusion that Ferguson

possesses a rational understanding that he is to be killed because he has been

convicted of murder, rather than, as he believes, because he is more powerful than

Jesus and the guards are jealous. Nor did the court explain, as Panetti requires,

how Ferguson’s ability to relate some factual details about his execution


40

corresponds with whether he actually understands that he will die when the State

attempts to kill him, or, rather, as he believes, that he will return to earth as God’s

right-hand warrior against the communist threat.

Compare the factual findings on which the Florida Supreme Court relied

with those on which the Fifth Circuit relied in Panetti: “First, [Panetti] is aware

that he committed the murders; second, he is aware that he will be executed; and

third, he is aware that the reason the State has given for the execution is his

commission of the crimes in question.” Panetti, 551 U.S. at 956 (citing Panetti v.

Dretke, 448 F.3d at 817). The two facts cited by the Florida Supreme Court fall

even further short of establishing Ferguson’s “rational understanding” of his

impending execution than those on which the Fifth Circuit relied.3

There were other facts that should have been of keen interest to the Florida

Supreme Court, had it properly applied Panetti to the facts at hand. Those were

the facts found by the Florida Circuit Court and affirmed by the Florida Supreme

Court: Ferguson is a paranoid schizophrenic. Ferguson is not malingering. And

Ferguson has a “genuine belief” that he is the “Prince of God,” destined to ascend

to God’s right hand, to assume a role greater even than that of Jesus, and to return

3 The State will point out that Ferguson ostensibly corrected one of hisinterviewing State psychiatrists when the psychiatrist misstated the number ofmurders Ferguson committed. It is disputed whether Ferguson or anotherpsychiatrist actually corrected the misstatement, see Tr. 614-15 (testimony of P.Brannan), but in any event, Panetti, too, understood that he had committed multiplemurders. See 448 F.3d at 817.


41

to earth to rid the world of communists. See Tr. 56, 57, 58, 604 [Woods]; see also

R.E. 147a (finding Woods’ testimony “credible and compelling”); Tr. 504

(testimony of State witness that Ferguson’s “Prince of God” delusion is “all—in

the same” vein as his delusion that he will ascend to God’s right hand and descend

to earth again). All of these facts bear directly on—and refute—Ferguson’s

“rational understanding” of what is to befall him. But the Florida Supreme Court

declined to analyze those facts, ending its inquiry after concluding that “Ferguson

understands what is taking place and why.” R.E. 127a. That conclusion does not

by any objective measure join up with what Panetti requires. Thus, even

assuming, against the Florida Supreme Court’s repeated protests to the contrary,

that the court actually did apply the correct Panetti standard to the competency

inquiry, its application of Panetti to Ferguson’s facts was objectively unreasonable.

C. On De Novo Review, This Court Should Find FergusonIncompetent To Be Executed.

“When a state court’s adjudication of a claim is dependent on an antecedent

unreasonable application of federal law,” federal courts resolve the underlying

merits claim de novo. Panetti, 551 U.S. at 953; see Madison v. Commissioner,

Ala. Dept. of Corrs., 677 F.3d 1333, 1335-36 (11th Cir. 2012) (“If we determine

that a state court decision is contrary to or an unreasonable application of federal

law, we must undertake a de novo review of the record.”) (citing McGahee v. Ala.

Dep’t of Corrs., 560 F.3d 1252, 1266 (11th Cir. 2009)). For this competency


42

challenge, what that necessarily means, as the Court explained in Panetti, is that

Ferguson’s claims are reviewed “without deferring to the state court’s finding of

competency.” 551 U.S. at 954.

Although this Court may not defer to the State courts’ “finding of

competency,” id., it still must accept the subsidiary findings of fact those courts

made. That is important because the State—in an unusual role-reversal—has

ignored those key findings in every brief it has filed. The State presumably will

pursue the same tack here. But this Court may not ignore those underlying

findings of fact, nor may it take this opportunity to independently stake out new

findings of fact. Instead, the Court must accept those findings, refract them

through the correct analytic prism of Panetti, and then reach its own conclusion

about whether those established facts applied to Panetti’s clear legal standard

prove Ferguson is incompetent to be executed. Panetti, 551 U.S. at 954.

They do. Ferguson is not competent to be executed. And the facts and

reasoning from Panetti itself confirm that. The Fifth Circuit, like the Florida

Supreme Court, deemed a condemned man competent to be executed despite

significant evidence of genuine delusions that went directly to his rational

understanding of what was to take place. Panetti thought he was a participant in

“ ‘spiritual warfare’ which has been going on since the 1980s.” Panetti v. Dretke,

401 F. Supp. 2d 702, 708 (W.D. Tex. 2004). He “believe[d] himself to be


43

persecuted for his religious activities and beliefs.” Id. at 707. He believed the

State of Texas was “in league with the forces of evil to prevent him from preaching

the Gospel.” Id. at 709. And while he understood the stated reason for his

execution, he believed that reason to be a front; according to Panetti, “the State’s

real motivation is to punish him for preaching the Gospel.” Panetti, 448 F.3d at

818.

Compare that litany to Ferguson’s. Ferguson is indisputably possessed of

the most extreme delusions. To highlight just a few examples, the Circuit Court

found, and the Florida Supreme Court acknowledged, that Ferguson genuinely

believes he is the “Prince of God.” R.E. 147a. Dr. Woods, whom the Circuit

Court credited as “compelling,” id., explained that Ferguson suffers from a

grandiose delusion “that he had powers from the sun,” that “he was being kept

from the sun so that his powers are limited,” that “the guards [are] soldiers and

communists” who are “going to kill him because they know he is the prince of God

and that he has the power and can control the sun,” and that “he has more power

than Jesus.” R. 110-111 (internal quotation marks omitted). None of these

statements suggests anything close to a rational understanding that he is being

punished for past crimes.

Nor does Ferguson have a rational understanding that he will die, and stay

dead, when he is executed. For Ferguson does not understand his execution to be a


44

permanent end to his physical life. Ferguson believes that he “can’t be killed,” Tr.

58, that the State does not have the special powers that he has and therefore cannot

execute him, Tr. 581, and that “just like Jesus, you’ll come and look and you won’t

find me there [in my grave],” Tr. 599.

John Ferguson may understand that he has committed some terrible crimes.

He may understand that he is to be killed very soon. And he may understand that

the State’s reason for killing him is that he has killed others. But he also is of the

view that he is bigger than Jesus. He believes he is being killed because the prison

guards know he is the prince of God and has special powers from the sun. And he

believes he will come back to the earth after he is injected with a series of drugs

designed to sedate him, paralyze him, and suffocate him.

This Court should find Ferguson incompetent to be executed. Ferguson

lacks a rational understanding of the reason for and nature of his impending

execution. To kill him now would violate the Eighth Amendment.

II. THE FLORIDA SUPREME COURT UNREASONABLY APPLIED

PANETTI’S PROCEDURAL REQUIREMENTS.

A. Panetti Requires Far More Than What Florida Did.

Panetti set the floor of minimum due-process requirements necessary in

order for a competency-to-be-executed determination to be valid. A State drops

beneath those constitutional baselines if it relies on procedures that are “ ‘not

adequate for reaching reasonably correct results’ ” or that “result[] in a process that


45

appear[s] to be ‘seriously inadequate for the ascertainment of the truth.’ ” Panetti,

551 U.S. at 954 (quoting Ford, 477 U.S. at 423-424 (Powell, J., concurring)).

Florida’s competency procedures at every turn constituted an unreasonable

application of Panetti.

First, some context. Two significant legal facts prevent counsel from

preparing for a competency inquiry prior to the signing of a death warrant. “Ford-

based incompetency claims, as a general matter, are not ripe until after” a death

warrant has been signed. Panetti, 551 U.S. at 943. And an inmate’s competency

to be executed is a present-tense inquiry that must be undertaken when the

prisoner’s execution is “imminent;” otherwise a prisoner’s Ford claim would be

“dismissed as premature.” Stewart v. Martinez-Villareal, 523 U.S. 637, 644-645

(1998).

Thus, by the very nature of a Ford claim, counsel’s preparations for a

prisoner’s competency inquiry cannot begin before the triggering event of a death

warrant. Those preparations are monumental. In addition to the due diligence

required before a prisoner even may raise a Ford claim, once counsel has a good-

faith basis to believe the prisoner is incompetent, the essential fact-gathering tasks

that must be completed on this condensed schedule include identifying credible

expert witnesses who are flexible enough to dash off to death row on a moment’s

notice to evaluate a prisoner; reviewing voluminous mental-health histories (which


46

in this case clocked in at thousands of pages spanning more than 40 years);

researching the law; researching the witnesses the other side plans to call at a

hearing; reviewing and mastering complex medical, psychological, and psychiatric

concepts; and preparing for a multi-day hearing with live testimony from

supporting and adverse witnesses. All of these preparations do not even take into

account the time the trial court itself must take to consider a torrent of evidence

and draft an opinion. Then, of course, there are the appeals.

No other federal constitutional claim brought by an inmate under sentence of

death is subjected to such a frenetic schedule; the normal routes of direct and

collateral appeal provide ample opportunity to ventilate those other issues. But

incompetency-to-be-executed claims necessarily must be brought for the first time

at the eleventh hour. And they have systematically been given short shrift by

Florida.

Consider the course of events here. When the Governor issued a warrant for

Ferguson’s execution, Ferguson’s counsel amassed in short order the supporting

documentation necessary to make a substantial threshold showing of insanity to the

Governor, such that that a Ford competency hearing was required. Fla. R. Crim. P.

3.811, 3.812. Upon that showing, the Governor was required to stay the execution

while the Ford process took place. Fla. Stat. § 922.07.


47

Ferguson’s counsel’s initial submissions to the Governor, compiled after

performing the necessary due diligence, satisfied the threshold Ford standard, and

the Governor agreed to appoint a commission of three psychiatrists to examine

Ferguson and issue a report on his competency to be executed. R.33-35. So far, so

good. But the “stay” the Governor issued set the execution date for the same day

set forth in his execution warrant. R.35. And the deadline the Governor set for the

Commission’s report on Ferguson’s competency was the next day after the

evaluation. R.35, 37.

Things fell apart. Less than two hours before evaluating Ferguson, the three

Commission members quickly reviewed, for the first time, and not even completely

at that, a subset of Department of Corrections records cherry-picked by the State.

Tr. 590.4 The psychiatrists’ interview with Ferguson lasted less than 90 minutes.

Tr. 264. The psychiatrists opted not to administer any psychiatric or psychological

tests. Tr. 460. And after a “short discussion” following the interview, which lasted

approximately five to ten minutes, Tr. 509, the Commission decided that Ferguson

was competent to be executed. Tr. 309. Later that same day, comfortably in

4 Missing from the State’s selection were all of the records from Ferguson’searly history with the State prison system, demonstrating what at that time were theconsistent views of State psychiatrists that Ferguson was severely disturbed, thathe was not criminally responsible for prior crimes because of his mental illness,and that he should be kept in State custody because of the threat he posed upon hisrelease. See Tr. 627-28; 483.


48

advance of the Governor’s rushed deadline, the Commission transmitted to the

Governor a one-and-a-half-page report containing that conclusion. Even the

Circuit Court held that the Commission “did not complete a thorough and

exhaustive interview of Ferguson.” R.2730.

The pell-mell process moved to the Circuit Court. Pressed by the

Governor’s refusal to stay the execution beyond the original date, the Circuit Court

announced on a Friday that a two-day hearing would commence the very next

business day. Counsel prepared for a full-blown trial over the weekend. The trial

itself was pockmarked with procedural errors. Ferguson’s counsel were unable to

prepare or call multiple witnesses for the trial because of the schedule the Circuit

Court was constrained to impose. See R. 142. And Ferguson’s counsel also were

unable to cross-examine a critical State witness as well: Despite repeated

representations that the State would be calling Dr. Waldman, the third member of

the Governor’s Commission, the State never did. Ferguson’s counsel were

ultimately deprived of the opportunity to cross-examine—or even interview—him.5

5 Dr. Waldman did not attend either day of the proceedings, so he wasunavailable for cross-examination. There is no testimony as to his process orconclusions. Ferguson’s counsel did not seek to call Dr. Waldman because theState had represented that it would call Dr. Waldman to testify. When the Statesuddenly announced it would not call Dr. Waldman, counsel for Ferguson objectedto this sudden switch: “So the idea that should have * * * anticipated that theywould not call Dr. Waldman, that is a misimpression I don’t want the record toreflect.” Tr. 368. The trial judge said he “underst[oo]d” and would “accept


49

This entire competency circus failed to comport with Panetti and Ford’s

due-process requirements. Panetti instructs that “[a]fter a prisoner has made the

requisite threshold showing, Ford requires, at a minimum, that a court allow a

prisoner’s counsel the opportunity to make an adequate response to evidence

solicited by the state court.” Panetti, 551 U.S. at 952. Zero days’ notice to prepare

for trial does not amount to “the opportunity to make an adequate response.”

Precluding counsel from calling critical witnesses does not amount to “the

opportunity to make an adequate response.” And gaming counsel out of cross-

examining a critical State witness does not amount to “the opportunity to make an

adequate response.”

Even Panetti was afforded far greater process—and the Supreme Court

found even that greater process constitutionally deficient. Id. at 939-942. For one

thing, Panetti had significantly more time to prepare his competency case. When

Panetti sought federal habeas relief after the Texas trial court denied his motion to

stay his execution, the district court granted a sixty-day stay to allow “the state

court a reasonable period of time to consider the evidence of Panetti’s current

mental state.” Panetti, 401 F. Supp. 2d at 703-704. The state court appointed a

psychiatrist and a psychologist to examine Panetti. Id. Over two months later,

[counsel’s] representation” that the State had told Ferguson’s counsel the daybefore the hearing that it would call Dr. Waldman.


50

those doctors issued a report finding Panetti competent. Id. Panetti was given

another month after the report issued to “raise any other matters regarding

competency,” and he subsequently “filed objections to the methods and

conclusions of the experts.” Id. Over three months after the state’s doctors were

appointed, the state court concluded that Panetti had failed to show, by a

preponderance of the evidence, that he was incompetent to be executed. Id. The

federal district court then held a two-day evidentiary hearing in September 2004.

Panetti had months to prepare for that. Id. at 706-707. And after all that, the

Supreme Court still found the process lacking in multiple respects, concluding that

the state court had “failed to provide petitioner with the minimum process required

by Ford” where that court had declined to transcribe its proceedings, failed to

provide Panetti with the opportunity to submit counter-evidence to the State’s

expert reports, and failed to notify Panetti that it would resolve the case without

ruling on Panetti’s pending motions and without a full hearing. 551 U.S. at 950-

952.

The Florida Supreme Court, however, declared itself utterly untroubled by

the process that spooled out before Ferguson’s Ford claim reached it. It held, in

one sentence, without discussion, that Ferguson’s Panetti due-process claims were

“without merit.” R.E. 128a. That was an unreasonable application of clearly

established federal law. Florida’s procedures plainly are “ ‘not adequate for


51

reaching reasonably correct results’ ” and “appear[] to be ‘seriously inadequate for

the ascertainment of the truth.’ ” Panetti, 551 U.S. at 954 (quoting Ford, 477 U.S.

at 423-424 (Powell, J., concurring)). The process that took place here, in fact, was

not designed to “assess” anything. The schedule imposed by the Governor,

condoned by the Circuit Court, and upheld by the Florida Supreme Court applied

only the barest veneer of process in support of a foregone conclusion. That fails

the Panetti test, and warrants habeas relief.

B. The Court Should Find Ferguson Not Competent To Be ExecutedOr Should Remand To The District Court.

John Ferguson’s competency proceeding was constitutionally lacking. That

much is clear from Ford and Panetti. The next question is what relief should be

afforded Ferguson given the state courts’ process failures. In Panetti itself, the

Supreme Court explained that given the Texas state court’s failure to afford Panetti

the due process to which he was clearly entitled under Ford, the Court would

“consider [Panetti’s] claim on the merits and without deferring to the state court’s

finding of competency.” Panetti, 551 U.S. at 954. This Court should do the same.

And as we have explained, applying the underlying facts the Circuit Court found,

and which the Florida Supreme Court affirmed, that John Ferguson is a paranoid

schizophrenic, that he is not malingering, and that he is possessed of the genuine

belief that he is the “Prince of God,” this Court should conclude that Ferguson is

not competent to be executed.


52

In the alternative, this Court could remand to the District Court for it to

render that ultimate competency determination. The District Court initially denied

Ferguson’s habeas petition, meaning that it has not yet been given the opportunity

to address the competency issue. On remand, that court can take up the inquiry in

the first instance, again “without deferring to the state court’s finding.” 551 U.S. at

954.

III. THE FLORIDA SUPREME COURT’S COMPETENCYCONCLUSION WAS BASED ON AN UNREASONABLEDETERMINATION OF THE FACTS.

Habeas relief is warranted when a State court unreasonably applies clearly

established federal law. See 28 U.S.C. § 2254(d)(1). That was the thrust and basis

of the District Court’s first certified question to this Court, and that has been the

question we have addressed until now. Habeas relief also is warranted when a

State court makes an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). That

separate strand of habeas relief forms the basis for the District Court’s second

certified question: “[w]hether the Florida Supreme Court’s affirmance of the state

Circuit Court was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding, viz., that (a) the petitioner has

a documented history of paranoid schizophrenia; (b) he is not malingering; and


53

(c) he has a fixed grandiose delusion that he is the “Prince of God.” R.E. 117a.

Ferguson is independently entitled to habeas relief under this analysis as well.

Normally, “AEDPA sets a high bar before a habeas petitioner who

challenges a state court’s factual determinations.” Gore v. Sec’y, Dep’t of Corrs.,

492 F.3d 1273, 1294 (11th Cir. 2007). Yet even in the typical case, “the standard

is demanding but not insatiable,” since “ ‘[d]eference does not by definition

preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-

El v. Cockrell, 537 U.S. 322, 340 (2003)). This, however, is no typical case. That

is because the only finding Ferguson challenges is the ultimate finding of

competency. Assuming that ultimate finding is one of fact—and not a mixed

question embodying a conclusion of law drawn from subsidiary facts—the Florida

Supreme Court’s decision was an “unreasonable determination.” Id. For what

makes this challenge unique is that it accepts the State courts’ subsidiary findings

of fact—indeed, it embraces them, unlike the State’s arguments, which have

bristled against them. Resolving this question thus ends up essentially replicating

the analytic task this Court performs once it concludes that the Florida Supreme

Court unreasonably applied Panetti. See supra Argument I.C. There, the Court

examines de novo whether the underlying facts as found by the State courts and

accepted by Ferguson satisfy the rational-understanding test of Panetti.


54

Here, the Court does the same thing, just under a different habeas inquiry.

Now, the Court may assume the State courts properly applied Panetti’s rational-

understanding framework. Even so, however, the courts’ bottom-line finding of

competency “was based on an unreasonable determination of the facts in light of

the” subsidiary findings of fact those same courts made. 28 U.S.C. § 2254(d)(2).

We summarize why below.

The three critical subsidiary findings of fact are these: Ferguson is a

paranoid schizophrenic. He is not malingering. And he is delusional. But the

Florida Supreme Court never considered how Ferguson’s mental illness and

delusions interfere with his ability to rationally understand the reason for and

nature of his impending execution. R.E. 148a. And that die was cast long before

the Supreme Court took up Ferguson’s appeal. The Commission’s inquiry as to

Ferguson’s understanding of the crimes ended at Ferguson’s (contested) admission

that he is aware of the number of murders he was convicted of. The Commission

did not ask after Ferguson’s understanding of the connection between those

convictions and the impending execution. In fact, there was no evidence to counter

Dr. Woods’s testimony—testimony the Circuit Court found credible and

compelling—that Ferguson was not able to rationally comprehend the connection

between his crimes and his execution:

Mr. Ferguson also believes that the Florida CorrectionalSystem knows that he is the Prince of God, and that the


55

conviction that landed him on Death Row was not basedupon the law. Instead, he believes that it was based upontwo factors. The first involves a conspiracy of corruptpolicemen and in retaliation for being acquitted in a priorcase. The second is the Court’s attempts to prevent himfrom acquiring his throne as the Prince of God. Hebelieves that the State of Florida’s attempts to prevent hisascension is the primary reason for his trial and continuedincarceration on Death Row. [R. 121-24.]

There are other subsidiary findings of fact, in addition to the critical three,

that have received attention from either the state courts or the State during

Ferguson’s Ford competency challenge. And what is remarkable about all of them

is how closely analogous they are to the key factual findings in Panetti—findings

the Supreme Court found insufficient to justify the Fifth Circuit’s competency

conclusion. The State has observed, for one, that Ferguson understands (although

it is disputed) that he had been convicted of eight murders. Panetti also knew he

had been convicted of multiple murders: there, the district court concluded that

“Panetti is aware that he committed the murders that serve as the basis for his

execution” because he was able to discuss their details. Panetti, 401 F. Supp. 2d at

707. Even though Panetti was quite clearly aware of his crimes and their

circumstances, the Supreme Court found that insufficient to show Panetti was

competent to be executed: What matters, the Supreme Court explained, is not

whether the prisoner can identify the crimes or the circumstances, but whether he


56

rationally appreciates that those are indeed the reasons why the State intends to kill

him. Id. at 956, 959.

The State also has suggested that Ferguson’s mental illness and delusions do

not affect his rational understanding of the death penalty because prison staff

testified that he seemed to act normally. The State similarly has pointed to

Ferguson’s writings and his ostensibly “normal” interactions with lay witnesses as

evidence that he has the capacity to understand the fact of his execution. All of

this speculation that Ferguson is actually “normal” should be thoroughly refuted by

the Circuit Court’s now-conclusive finding that Ferguson “suffers from “mental

illness, paranoid schizophrenia.” R.E. 148a. But the evidence put forth by the

State also (and again) is no different than evidence the Supreme Court rejected in

Panetti. In Panetti, all of the doctors, even those retained by the defense, agreed

that Panetti had the capacity to understand the fact that he was being executed for

the murders he committed. Panetti, 401 F. Supp. 2d at 707-708. The state doctors

pointed to letters that Panetti wrote to friends and family as well as his capacity to

understand the Bible, history and movies, to show his capacity to understand the

facts of why he was being executed. Id. at 708. Lay witnesses also testified that

Panetti was “capable of communicating, and apparently understanding, in a

coherent fashion.” Id.; see also id. at 955 (noting that State witnesses opined that

Panetti was at times “clear and lucid”). Panetti clearly rejected any competency


57

conclusion derived from this type of testimony—testimony that merely suggests

that that factual awareness is possible, but not necessarily even existent. 551 U.S.

at 956-957.

Finally, there is evidence that Ferguson can reiterate when asked that “he’s

going to die” when he is executed. Tr. 255. But the district court in Panetti

similarly found that Panetti’s factual awareness that “he is to be executed” was

indicative of his understanding, and therefore indicative of his competency to be

executed, and again the Supreme Court rejected this evidence as insufficient to

show any type of rational understanding.

And in fact the evidence conclusively shows that Ferguson has no

understanding of what it means to be executed. Dr. Woods, a witness found to be

“credible and compelling,” testified that Ferguson claimed that he “can’t be killed”

because others lack special powers (that he himself has), resulting in their inability

to kill him. Tr. 58. In addition to his special powers, Ferguson also believes that

his father—long deceased—will protect him from harm. R. 121. The Florida

Supreme Court looked past this, finding it sufficient that Ferguson had indicated

that he was aware he would be the first prisoner to be executed under the State’s

new lethal-injection protocol. R.E. 127a. But that finding simply takes a single

comment out of context. Here is what Ferguson actually said about the pending

execution and whether he knows he will die: He will “come back to life,” id., and


58

that if one were to look in his grave he “won’t be there,” Tr. 599, because he will

“return to earth.” Tr. 504. The Circuit Court’s unadorned conclusion that there is

“no evidence that in his current mental state Ferguson believes himself unable to

die or that he is being executed for any reason other than the murders he was

convicted of in 1978,” utterly fails to account for the findings the court itself made,

including that Dr. Woods had “credibl[y] and compelling[ly]” testified as to the

extent and gravity of Ferguson’s florid delusions. The record facts in Ferguson’s

case are simply inconsistent with a rational understanding of what it means to be

executed.

The bottom line: There are facts in the record that support a conclusion that

Ferguson is factually aware of the reason for and nature of his impending

execution. But there is no record evidence that Ferguson has a rational

understanding of those issues. The Florida Supreme Court’s ruling should

therefore be set aside as an unreasonable determination of the facts in light of the

evidence presented at the state court proceeding. 28 U.S.C. 2254(d)(2).

IV. THE STAY SHOULD BE KEPT IN PLACE.

Once the District Court issues a COA, Circuit Rule 22-4(a)(7) requires this

Court to grant a temporary stay pending consideration of the merits of the appeal,

where such a stay is necessary to prevent mooting the appeal. The rule carves out

just two exceptions to this mandate. First, the panel may vacate the stay if,


59

following a “hearing,” it finds that “the appeal is frivolous, lacking factual basis in

the record, or foreclosed by statute, rule, or binding court decision.” 11th Cir. R.

22-4(a)(7)(i). Second, the panel may lift the stay if, following a “hearing,” it

concludes that “the petition is successive.” Id. 22-4(a)(7)(ii). Neither of these

exceptions applies.

An appeal is frivolous when the result is obvious, or the petitioner’s claims

of error are wholly without merit. See Sambrano v. Mabus, 663 F.3d 879, 881 (7th

Cir. 2011); Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001); Braley v.

Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987); Jaeger v. Canadian Bank of

Commerce, 327 F.2d 743 (9th Cir. 1964). Ferguson’s claims of error plainly are

not frivolous. This is nowhere made more evident than by the fact that two federal

judges have found Ferguson’s claims deserving of scrutiny. 11th Cir. Order at 7

(Oct. 22, 2012) (Wilson, J., concurring in part and dissenting in part) (“I have

doubts about whether the Florida courts correctly applied Panetti”); R.E. 110a

(Ferguson “has made a substantial showing of a denial of a constitution[al] right”);

Ferguson v. Sec’y, Fla. Dep’t of Corrs., No. 1:12-cv-23817, Dkt. No. 19 (S.D. Fla.

Oct. 20, 2012) (finding Ferguson’s habeas petition “not successive and

nonfrivolous”).

Ferguson’s claims are also not lacking factual basis in the record. The

Florida Circuit Court found—and the Florida Supreme Court and the District Court


60

below credited—that Ferguson (a) has a documented history of paranoid

schizophrenia; (b) is not malingering; and (c) has a fixed grandiose delusion that he

is the “Prince of God.” R.E. 147a-148a. Ferguson’s claim that the Florida

Supreme Court erred in finding him competent notwithstanding these findings of

fact thus cannot be characterized as lacking factual basis. To the contrary, all of

the facts found by the Florida courts with respect to Ferguson’s mental state tend to

support a finding of incompetence.

Ferguson’s claims on appeal also are not successive. In fact, the Supreme

Court expressly held in Panetti that the “statutory bar on ‘second or successive’

applications does not apply to a Ford claim brought in an application filed when

the claim is first ripe.” Panetti, 551 U.S. at 947. That is exactly the posture of

Ferguson’s appeal now before this Court. The second exception to Rule 22-4(a)(7)

is thus inapposite in this case.


61

CONCLUSION

For the foregoing reasons, the judgment below should be reversed and

remanded with instructions to grant the writ.

Respectfully submitted,

/s/ Christopher T. HandmanBENJAMIN J.O. LEWIS

HOGAN LOVELLS US LLP875 Third AvenueNew York, NY 07054-2891Tel.: (212) 909-0646Fax: (212) 918-3100

October 29, 2012

CHRISTOPHER T. HANDMAN

E. DESMOND HOGAN

CATHERINE E. STETSON

ERICA M. KNIEVEL

LINDSAY D. BREEDLOVE

HOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Tel.: (202) 637-5600Fax: (202) [email protected]

Counsel for Petitioner-AppellantJohn Ferguson


CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that the attached

Brief is proportionally spaced, has a typeface of 14 point, and contains 13,893

words.




CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 29th day of October, 2012, a true and

correct copy of the OPENING BRIEF FOR PETITIONER-APPELLANT JOHN

FERGUSON was served electronically served on:

Penny H. Brill

Assistant State Attorney

[email protected]

1350 NW 12th Ave.

Miami, FL 33136

Telephone: (305) 547-0865

Scott A. Browne Stephen D. Ake

Assistant Attorney General Assistant Attorney General

[email protected] [email protected]

Concourse Center 4 Concourse Center 4

3507 East Frontage Road, Suite 200 3507 East Frontage Road, Suite 200

Tampa, FL 33607-7013 Tampa, FL 33607-7013

Telephone: (813) 287-7910 Telephone: (813) 287-7910

Facsimile: (813) 281-5501 Facsimile: (813) 281-5501




11th circuit - initial brief on merits (29 october 2012)

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