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CAPITAL CASEEXECUTION TEMPORARILY STAYED No. 12-15422 IN THE

United States Court of Appeals for the Eleventh Circuit


JOHN FERGUSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. On Appeal from the United States District Court for the Southern District of Florida, No. 1:12-cv-23817-DTKH District Judge Daniel T. K. Hurley OPENING BRIEF FOR PETITIONER-APPELLANT JOHN FERGUSON BENJAMIN J.O. LEWIS HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: (212) 909-0646 CHRISTOPHER T. HANDMAN* E. DESMOND HOGAN CATHERINE E. STETSON ERICA M. KNIEVEL LINDSAY D. BREEDLOVE HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-5600 chris.handman@hoganlovells.com Counsel for Petitioner-Appellant John Ferguson

*Counsel of Record Dated: October 29, 2012

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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). Fergusons 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). Fergusons 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 APPLIED CLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUND JOHN FERGUSON COMPETENT TO BE EXECUTED ................31 A. The Florida Supreme Court Unreasonably Declined To Apply Panetti To Fergusons Identical Claims .......................................33 B. The Florida Supreme Court Unreasonably Applied Panettis Rational Understanding Inquiry................................................37 C. On De Novo Review, This Court Should Find Ferguson Incompetent To Be Executed .......................................................41 II. THE FLORIDA SUPREME COURT UNREASONABLY APPLIED PANETTIS PROCEDURAL REQUIREMENTS.............................44 A. Panetti Requires Far More Than What Florida Did......................44 ii

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B. The Court Should Find Ferguson Not Competent To Be Executed Or Should Remand To The District Court....................................50 III. THE FLORIDA SUPREME COURTS COMPETENCY CONCLUSION WAS BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS..............................................51 THE STAY SHOULD BE KEPT IN PLACE ...................................58

IV.

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. Secy, Dept of Corrs., No. 1:12-cv-23817 (S.D. Fla.)....................................................................22, 24 Ferguson v. Secy, Fla. Dept 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. Dept of Corrs., 560 F.3d 1252, 1266 (11th Cir. 2009) ..............................................................41 McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005)........................................................................25 iv

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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. Secy, Fla. Dept 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 the Eleventh Circuit


JOHN FERGUSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. On Appeal from the United States District Court for the Southern District of Florida, No. 1:12-cv-23817-DTKH District Judge Daniel T. K. Hurley OPENING BRIEF FOR PETITIONER-APPELLANT JOHN 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 R.E. 110a-111a.1

habeas petition and granted a certificate of appealability.

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 from which this petition arises. Tr. refers to the transcript from the two-day hearing before the Circuit Court that heard this case. 1

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

unreasonable application of the United States Supreme Courts decisions in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007). 2. Whether the Florida Supreme Courts 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 Fergusons 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 principleexecuting 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 2

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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-forword test struck down in Panetti. According to the Florida Supreme Court, John Fergusons 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 3

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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 Panettis substantive rule; it misapplied that decisions 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 Floridas abbreviated procedures to a tee. Because a competency claim can be raised only after a death warrant is signed, unless the 4

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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 weeksif 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. Fergusons 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 psychiatristsall appointed by the Stateconcluded that Ferguson was a paranoid schizophrenic prone to psychotic hallucinations and delusions. R. 181-214. Their evaluations left no ambiguity about Fergusons ability to think rationally. The earliest records note that

Ferguson experienced psychotic visual and auditory hallucinations, R. 182 5

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(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). Fergusons mental health only deteriorated from there. And the States own doctors grew increasingly concernednot just for Fergusons 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 Ferguson was suffering from a major mental disorder and is R. 209. Indeed, in 1975, two

conclusion:

extremely dangerous to himself and others.

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 longterm, 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 6

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been fooled by a clever malingerer (despite Fergusons low-average 81 I.Q.), and pronounced him fit to stand trial. Ferguson was convicted and sentenced to death. Fergusons history of mental illness, though, did not stop with his conviction. Reams of prison recordstotaling thousands of pagespick 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 States own doctors evaluated Ferguson and concluded that he does not know his lawyers name and has only a vague idea about what a lawyers 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. Fergusons 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. Fergusons lengthy battle with mental illness continues today. As the

Circuit Court that heard this case would later conclude, see infra 12-20, John 7

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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 Governors Inquiry Into Fergusons 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 Fergusons 40-year history of severe psychosis, his counsel immediately contacted psychiatrists and other experts to evaluate Fergusons 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 Fergusons execution would violate the Eighth Amendment and the Supreme Courts 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

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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-halfpage 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 Fergusons mental-health records span

thousands of pages of paper, the Commission evaluated only a subset of them hand-picked by the States lawyers. Tr. 590. Notably absent from those records were any of the pre-1978 diagnoses from State psychiatrists consistently documenting Fergusons paralyzing psychosis. That said, the Commission still had to make their way through two file boxes of medical recordsa 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

Commissions 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 yearsthat he is the Prince of 9

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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 hallucinationsincluding 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. 135a136a, 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 feigningeven though some of the Commissioners had brought testing equipment with them for precisely that purpose. R. 303, 460; R.E. 142a.

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Having written off all of Fergusons 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 Commissions 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 Commissions findings, Ferguson petitioned for review in the Bradford County Circuit Court. The petition was filed on

October 3, 2012the day after the Governor formally declared Ferguson competent (and the day after Ferguson received a copy of the Commissions 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 Fergusons competency. The Court scheduled the hearing to begin five days later on October 9, 2012.

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One day after the hearing ended, the Circuit Court issued its findings of fact and conclusions of law. In them, the court rejected the States 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 Fergusons 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 Fergusons 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, 12

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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 Fergusons 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 fatherlong deceasedspeaking 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 System knows that he is the Prince of God, and that the conviction that landed him on Death Row was not based upon the law. Instead, he believes that it was based upon two factors. The first involves a conspiracy of 13

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corrupt policemen and in retaliation for being acquitted in a prior case. The second is the Courts attempts to prevent him from acquiring his throne as the Prince of God. He believes that the State of Florida's attempts to prevent his ascension is the primary reason for his trial and continued incarceration on Death Row. R.121. Dr. Woods concluded, therefore, that Fergusons delusions specifically impact his understanding of his legal position. R.121. The Circuit Court Found Fergusons Prince Of God Delusion Is Genuine. The Circuit Courts finding that Fergusons Prince of God delusion is a genuine belief contradicted the States 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. Whats

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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 Commissions examination, Ferguson sees his role at the right hand of God as a role only he fulfills: Im 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 crossexamination that Ferguson said he would come back to life. Tr. 255: 8. Dr. Werner, the only other Commission member to testify, conceded that Fergusons 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 Fergusons 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 Fergusons ability to rationally understand what will happen to him after the State attempts to execute 15

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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 cant be killed by others, because they lack the powers necessary to do so. Tr. 58:5-11. Dr. Woodss credible and compelling testimony also undermined another key component to the States 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 disordersand 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 Fergusons 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 16

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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 Commissionlike the Statewrote 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 nations foremost expert in evaluating malingering. Dr. Rogers has literally written the book on testing for malingering. 17

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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 States 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 Commissions conclusion lacked scientific rigor and could not provide a meaningful assessment of feigning. R.106.

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The States only other evidence of Fergusons malingering was eight years old. It had pointed to an earlier 2004 hearing during federal habeas proceedings also before Judge Hurleyto evaluate Fergusons 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 Fergusons present competency to be executed. Tr. 563:2225 ([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 19

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also Tr. 200:1-2 (Dr. Rogerss 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 Commissions conclusion and testimony only as to the limited question of Fergusons competency to be executed. R.2730. And the court

squarely rejected the Commissions 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 Fergusons delusions were a genuine belief. R.2730. And lest there be any doubt about whether the court had rejected the States principal theory, it went on to find that Dr. Suarezs 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

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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 Courts subsidiary findings about Fergusons 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 Courts 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 21

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the first person to receive Floridas current protocol of medications for lethal injection. R.E. 127a. And finally, the Florida Supreme Court summarily rejected Fergusons due process claimsa fundamental aspect to the holdings in Ford and Panettiin 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 Courts 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. Secy, Fla. Dept of Corrs., No. 1:12cv-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 Fergusons emergency motion for stay of execution. He explained that Fergusons petition was timely [b]ecause a claim of incompetency to be executed does not become ripe until execution is imminent. Ferguson v. Secy, Fla. Dept of Corrs., No.

1:12-cv-23817, Dkt. No. 27 (S.D. Fla. Oct. 22, 2012) (citing Stewart v. MartinezVillareal, 523 U .S. 637, 644-645 (1998), and Herrera v. Collins, 506 U.S. 390, 22

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406 (1993)).

Moreover, [t]he statutory bar on second or successive

application[s] does not apply. Id. (citing Panetti, 551 U.S. 930 (prisoners Fordbased 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 petitioners 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. Secy, Fla. Dept of Corrs., No. 12-15377 (11th Cir. Oct. 22, 2012) (Order Vacating District Courts 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. 23

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Because the District Court retained jurisdiction to rule on the merits, Ferguson asked for an expedited argument on October 23the 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 Courts review: A. Whether the decision of the Florida Supreme Court involved an unreasonable application of the Un[ited] States Supreme Courts decision[s] in Ford and Panetti. B. Whether the Florida Supreme Courts 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. Ferguson v. Secy, Fla. Dept 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 224(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. 24

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The State asked the Supreme Court to vacate this Courts stay.

The

Supreme Court refused. The State then petitioned this Court to vacate its own stay. This Court denied the motion. Ferguson v. Secy, Fla. Dept of Corrs., No. 1215422 (11th Cir. Oct. 26, 2012) (Order Denying Appellees Motion to Vacate District Courts Certificate of Appealability and This Courts Stay of Execution and to Dismiss Petitioners Appeal). STANDARD OF REVIEW This Court review[s] de novo a district courts 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 Courts adjudication of Fergusons 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).]

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

prisoners 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 Fergusons 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 Fergusons appeal, habeas relief is warranted. See Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011) (habeas appropriate where state

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court unreasonably declines to apply clearly established law to a habeas petitioners claims). There is one passage early in the Florida Supreme Courts 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 courts determination that Fergusons 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 courts 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 prisoners case). The Florida Supreme Court did not analyzeand it certainly did not concludewhether 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 courts 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. 27

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Fergusons habeas petition should be granted, the state courts ultimate competency finding should be reviewed without deferring to the state courts 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 States adverse evidence. 551 U.S. at 952. That opportunity was nowhere evident in Fergusons competency proceeding, from the very first. When Fergusons counsel presented a thorough submission to the Governor that Ferguson was not competent to be executed, the Governor stayed Fergusons executionand imposed the same execution date. When the Governor appointed a three-person Commission to examine Ferguson, the deadline for the Commissions report was set a day after their evaluationand 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

Fergusons competency hearing, constrained by the looming execution date, it set the hearing to begin the next business day. When Fergusons counsel were not able to procure witnesses to appear on such short notice, court proceeded anyway. 28

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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 Courts casual dismissal of Fergusons 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 prisoners imminent 29

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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), revd). As the Panetti Court explained, a prisoners awareness of the States 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 30

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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 Panettis holdingssubstantive, 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 APPLIED CLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUND JOHN 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 prisoners 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 Fords wake, the lower state and federal courts regularly applied Justice Powells 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 31

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for it). Florida courts were among them. In close keeping with Justice Powells 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 prisoners mere awareness of the States 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

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). 32

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for it. The Florida Supreme Court, however, repeatedly applied that old rule to Fergusons 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 Apply Panetti To Fergusons 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 hereand 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 Courts 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 opinionindeed, on every single page of its analysis of Fergusons competency claimthe Florida Supreme Court invoked and applied the rule laid down in its year-2000 Provenzano decision and codified in the States rules of criminal procedure. The Florida Supreme Court led off its analysis by explaining that Floridas competency standard asks whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason 33

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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 Floridas method of determining competency stems from Ford. R.E. 125a. The court took up Provenzano, explaining that the Florida Supreme Court had adopted Justice Powells 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 Courts subsequent decision in Panetti does not overturn this Courts 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 Floridas current protocol of medications for lethal injection. Id. The Florida Supreme Courts 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

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time, id., the Florida Supreme Court affirmed the Circuit Courts 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) Panettis rational understanding test. That is because the Provenzano decisionsthe majority and dissenting opinionspresaged 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 35

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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 Floridas 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 prisoners competency to be executed must include an inquiry into the prisoners 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 prisoners 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 36

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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 Circuits factual awareness testand 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 Fergusons 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 Panettis Rational Understanding Inquiry.

The Florida Supreme Court expressly disclaimed any obligation to apply Panetti to Fergusons claims, R.E. 126a-127a, and repeatedly applied its constitutionally deficient Provenzano standard to the competency question, 124a128a. 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 courts determination that Fergusons mental illness does not interfere with his rational understanding of the fact of his pending execution. R.E. 124a (emphases added). That glancing statementunaccompanied by citation and never again 37

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revisited in the courts actual competency analysisdoes not come close to salvaging the Florida Supreme Courts 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 Panettis 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 Courts decisiona reading that assumes the court applied Panetti even though it expressly declined to do just thatproduces the same result: the decision unreasonably applied Panetti. A state courts 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 prisoners case. 38

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Williams v. Taylor, 529 U.S. 362, 407 (2000); Greene, 644 F.3d at 115 (internal citations and quotation marks omitted); Reese v. Secy, Fla. Dept of Corr., 675 F.3d 1277, 1286 (11th Cir. 2011) (same). For the sake of argument, lets assume that the Florida Supreme Court struck on the correct governing legal rulethe Panetti standardearly 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 Fergusons case. Plainly it did. The Florida Supreme Courts 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 Floridas 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 Fergusons ability to relate some factual details about his execution 39

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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 Gods 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 Fergusons 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 Gods 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 his interviewing State psychiatrists when the psychiatrist misstated the number of murders Ferguson committed. It is disputed whether Ferguson or another psychiatrist actually corrected the misstatement, see Tr. 614-15 (testimony of P. Brannan), but in any event, Panetti, too, understood that he had committed multiple murders. See 448 F.3d at 817. 40

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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 Fergusons Prince of God delusion is allin the same vein as his delusion that he will ascend to Gods right hand and descend to earth again). All of these facts bear directly onand refuteFergusons

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 Courts repeated protests to the contrary, that the court actually did apply the correct Panetti standard to the competency inquiry, its application of Panetti to Fergusons facts was objectively unreasonable. C. On De Novo Review, This Court Should Find Ferguson Incompetent To Be Executed.

When a state courts 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. Dept of Corrs., 560 F.3d 1252, 1266 (11th Cir. 2009)). For this competency 41

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challenge, what that necessarily means, as the Court explained in Panetti, is that Fergusons claims are reviewed without deferring to the state courts 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 Statein an unusual role-reversalhas 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 Panettis 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). 42 He believe[d] himself to be

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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 States real motivation is to punish him for preaching the Gospel. Panetti, 448 F.3d at 818. Compare that litany to Fergusons. 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 43

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permanent end to his physical life. Ferguson believes that he cant 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, youll come and look and you wont 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 States 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 PANETTIS 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 44

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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)). Floridas 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. Fordbased 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 inmates competency to be executed is a present-tense inquiry that must be undertaken when the prisoners execution is imminent; otherwise a prisoners 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, counsels preparations for a prisoners 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 goodfaith 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 moments notice to evaluate a prisoner; reviewing voluminous mental-health histories (which 45

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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 Fergusons execution, Fergusons 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.

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Fergusons counsels 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 Commissions report on Fergusons 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

Missing from the States selection were all of the records from Fergusons early history with the State prison system, demonstrating what at that time were the consistent views of State psychiatrists that Ferguson was severely disturbed, that he 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 his release. See Tr. 627-28; 483. 47

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advance of the Governors 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

Governors 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. Fergusons 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 Fergusons 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 Governors Commission, the State never did. Fergusons counsel were

ultimately deprived of the opportunity to cross-examineor even interviewhim.5

Dr. Waldman did not attend either day of the proceedings, so he was unavailable for cross-examination. There is no testimony as to his process or conclusions. Fergusons counsel did not seek to call Dr. Waldman because the State had represented that it would call Dr. Waldman to testify. When the State suddenly announced it would not call Dr. Waldman, counsel for Ferguson objected to this sudden switch: So the idea that should have * * * anticipated that they would not call Dr. Waldman, that is a misimpression I dont want the record to reflect. Tr. 368. The trial judge said he underst[oo]d and would accept 48

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This entire competency circus failed to comport with Panetti and Fords 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 prisoners 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 crossexamining a critical State witness does not amount to the opportunity to make an adequate response. Even Panetti was afforded far greater processand 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 Panettis 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,

[counsels] representation that the State had told Fergusons counsel the day before the hearing that it would call Dr. Waldman. 49

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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 states 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 States expert reports, and failed to notify Panetti that it would resolve the case without ruling on Panettis pending motions and without a full hearing. 551 U.S. at 950952. The Florida Supreme Court, however, declared itself utterly untroubled by the process that spooled out before Fergusons Ford claim reached it. It held, in one sentence, without discussion, that Fergusons Panetti due-process claims were without merit. R.E. 128a. That was an unreasonable application of clearly established federal law. Floridas procedures plainly are not adequate for 50

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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 Executed Or Should Remand To The District Court.

John Fergusons 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 courts failure to afford Panetti the due process to which he was clearly entitled under Ford, the Court would consider [Panettis] claim on the merits and without deferring to the state courts 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. 51

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In the alternative, this Court could remand to the District Court for it to render that ultimate competency determination. The District Court initially denied Fergusons 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 courts finding. 551 U.S. at 954. III. THE FLORIDA SUPREME COURTS COMPETENCY CONCLUSION WAS BASED ON AN UNREASONABLE DETERMINATION 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 Courts 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 Courts second certified question: [w]hether the Florida Supreme Courts 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

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(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 courts factual determinations. Gore v. Secy, Dept 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 MillerEl 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 factand not a mixed question embodying a conclusion of law drawn from subsidiary factsthe Florida Supreme Courts decision was an unreasonable determination. Id. For what makes this challenge unique is that it accepts the State courts subsidiary findings of factindeed, it embraces them, unlike the States 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.

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Here, the Court does the same thing, just under a different habeas inquiry. Now, the Court may assume the State courts properly applied Panettis rationalunderstanding 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 Fergusons 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 Fergusons appeal. The Commissions inquiry as to Fergusons understanding of the crimes ended at Fergusons (contested) admission that he is aware of the number of murders he was convicted of. The Commission did not ask after Fergusons understanding of the connection between those convictions and the impending execution. In fact, there was no evidence to counter Dr. Woodss testimonytestimony the Circuit Court found credible and compellingthat Ferguson was not able to rationally comprehend the connection between his crimes and his execution: Mr. Ferguson also believes that the Florida Correctional System knows that he is the Prince of God, and that the 54

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conviction that landed him on Death Row was not based upon the law. Instead, he believes that it was based upon two factors. The first involves a conspiracy of corrupt policemen and in retaliation for being acquitted in a prior case. The second is the Courts attempts to prevent him from acquiring his throne as the Prince of God. He believes that the State of Floridas attempts to prevent his ascension is the primary reason for his trial and continued incarceration 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 Fergusons Ford competency challenge. And what is remarkable about all of them is how closely analogous they are to the key factual findings in Panettifindings the Supreme Court found insufficient to justify the Fifth Circuits 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

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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 Fergusons 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

Fergusons 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 Courts 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 56

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conclusion derived from this type of testimonytestimony 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 hes going to die when he is executed. Tr. 255. But the district court in Panetti similarly found that Panettis 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 cant 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 fatherlong deceasedwill 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 States 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 57

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that if one were to look in his grave he wont be there, Tr. 599, because he will return to earth. Tr. 504. The Circuit Courts 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 Fergusons florid delusions. The record facts in Fergusons 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 The Florida Supreme Courts ruling should

understanding of those issues.

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, 58

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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 petitioners 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). Fergusons claims of error plainly are not frivolous. This is nowhere made more evident than by the fact that two federal judges have found Fergusons 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. Secy, Fla. Dept of Corrs., No. 1:12-cv-23817, Dkt. No. 19 (S.D. Fla. Oct. 20, 2012) (finding Fergusons habeas petition not successive and nonfrivolous). Fergusons claims are also not lacking factual basis in the record. The Florida Circuit Court foundand the Florida Supreme Court and the District Court 59

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below creditedthat 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. Fergusons 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 Fergusons mental state tend to support a finding of incompetence. Fergusons 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 Fergusons appeal now before this Court. The second exception to Rule 22-4(a)(7) is thus inapposite in this case.

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CONCLUSION For the foregoing reasons, the judgment below should be reversed and remanded with instructions to grant the writ. Respectfully submitted,

BENJAMIN J.O. LEWIS HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 07054-2891 Tel.: (212) 909-0646 Fax: (212) 918-3100

/s/ Christopher T. Handman CHRISTOPHER T. HANDMAN E. DESMOND HOGAN CATHERINE E. STETSON ERICA M. KNIEVEL LINDSAY D. BREEDLOVE HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Tel.: (202) 637-5600 Fax: (202) 637-5910 chris.handman@hoganlovells.com Counsel for Petitioner-Appellant John Ferguson

October 29, 2012

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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.

/s/ Christopher T. Handman Christopher T. Handman

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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 pennybrill@miamisao.com 1350 NW 12th Ave. Miami, FL 33136 Telephone: (305) 547-0865 Scott A. Browne Assistant Attorney General Scott.Browne@myfloridalegal.com Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, FL 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 Stephen D. Ake Assistant Attorney General Stephen.Ake@myfloridalegal.com Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, FL 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 /s/ Christopher T. Handman Christopher T. Handman