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11th Cir Order

11th Cir Order

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Published by: JSmithWSJ on Oct 23, 2012
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ELBERT PARR TUTTLE COURT OF APPEALS BUILDING56 Forsyth Street, N.W.Atlanta, Georgia 30303John LeyClerk of Court
October 22, 2012
MEMORANDUM TO COUNSEL OR PARTIESAppeal Number: 12-15377-PCase Style: John Ferguson v. Secretary, Florida DepartmentDistrict Court Docket No: 1:12-cv-23817-DTKHEnclosed is a copy of the court's decision filed today in this appeal. Judgment has this day beenentered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance withFRAP 41(b).The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc istimely only if received in the clerk's office within the time specified in the rules. Costs aregoverned by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.Please note that a petition for rehearing en banc must include in the Certificate of InterestedPersons a complete list of all persons and entities listed on all certificates previously filed byany party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to bereheard must be included in any petition for rehearing or petition for rehearing en banc. See11th Cir. R. 35-5(k) and 40-1 .Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claimingcompensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Jenifer L. Tubbs at404-335-6166.Sincerely,JOHN LEY, Clerk of CourtReply to: Jenifer L. TubbsPhone #: 404-335-6161OPIN-1 Ntc of Issuance of Opinion
Case: 12-15377 Date Filed: 10/22/2012 Page: 1 of 1
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[DO NOT PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT________________________No. 12-15377________________________JOHN FERGUSON,llllllllllllllllllllllllllllllllllllllllPetitioner - Appellee,versusSECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,llllllllllllllllllllllllllllllllllllllllRespondent - Appellant.________________________Appeal from the United States District Courtfor the Southern District of Florida________________________(October 22, 2012)Before CARNES, WILSON and PRYOR, Circuit Judges.PER CURIAM:Petitioner John Ferguson is a death row inmate scheduled to be executed onOctober 23, 2012. On October 19, 2012, Ferguson filed an emergency motion fora stay of execution and a petition for writ of habeas corpus in the district court. Inboth his motion and his petition for habeas relief, Ferguson contends that the
Case: 12-15377 Date Filed: 10/22/2012 Page: 1 of 7
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Florida state courts misapplied United States Supreme Court precedent when theydetermined that he is competent to be executed.
On October 20, 2012, the district court stayed Ferguson’s execution. The
Secretary of the Florida Department of Corrections promptly filed an emergencymotion to vacate the order, alleging that the district court applied the incorrectlegal standard when it granted the stay.
“The standard of review of a stay of execution issued by a district court is abuse of discretion.”
Hauser ex rel.Crawford v. Moore, 223 F.3d 1316, 1321 (11th Cir. 2000).We agree with the Secretary that the district court abused its discretion.
“Astay of execution is equitable relief” which a court may grant “only if the moving
party shows that: (1) he has a substantial likelihood of success on the merits; (2) hewill suffer irreparable injury unless the injunction issues; (3) the stay would notsubstantially harm the other litigant; and (4) if issued, the injunction would not be
adverse to the public interest.”
DeYoung v. Owens, 646 F.3d 1319, 1324 (11thCir. 2011) (internal quotation marks omitted). The district court did not considerany of these factors when it granted the stay. Instead, after a lengthy and thorough
discussion of jurisdiction, the district court summarily concluded that “[a] stay of execution [was] necessary to permit a ‘fair hearing’” on Ferguson’
s claim.Because that statement does not reflect the correct legal standard, the district courtabused its discretion when it granted the stay. See Siebert v. Allen, 506 F.3d 1047,
Case: 12-15377 Date Filed: 10/22/2012 Page: 2 of 7
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