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APPEAL NUMBER 12-15422 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________________________________ JOHN FERGUSON,

Appellant/Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Appellee/Respondent. _________________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA District Court Number 1:12-cv-23817-DTKH _________________________________________________ ANSWER BRIEF OF THE APPELLEE _________________________________________________ PAMELA JO BONDI ATTORNEY GENERAL OF FLORIDA SCOTT A. BROWNE ASSISTANT ATTORNEY GENERAL Florida Bar No. 0802743 scott.browne@myfloridalegal.com STEPHEN D. AKE ASSISTANT ATTORNEY GENERAL Florida Bar No. 014087 stephen.ake@myfloridalegal.com 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 capapp@myfloridalegal.com COUNSEL FOR APPELLEE

Ferguson v. Secretary, Florida Dept. of Corr., Case No. 12-15422 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and 11th Circuit Rule 26.1-1, counsel for the Appellee states that the following trial judges, attorneys, persons, associations of persons, firms, partnerships, or corporations have an interest in the outcome of this case: Adkins, Hon. James C., former Florida Supreme Court Justice; Ake, Stephen D., counsel for Appellees; Alderman, Justice; Anstead, Justice; Barkett, Justice; Bondi, Hon. Pamela Jo, Florida Attorney General; Boyd, Hon. Joseph A., Jr., former Florida Supreme Court Justice; Bradley, Kathryn Webb, former counsel for Appellant; Brill, Penny Hershoff, Assistant State Attorney, Miami-Dade County, Florida; Browne, Scott A., counsel for Appellees; Burr, Richard H., III, former counsel for Appellant; Buss, Edwin G., former Secretary, Florida Department of Hon. Rosemary, former Florida Supreme Court Hon. Harry Lee, former Florida Supreme Court Hon. James E., former Florida Supreme Court

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Ferguson v. Secretary, Florida Dept. of Corr., Case No. 12-15422 Corrections; Butterworth, Robert A., former Florida Attorney General; Clayton, Henry, deceased victim; Crosby, James V. Jr., former Secretary, Florida Department of Corrections; Determan, Sara-Ann, former counsel for Appellant; Dolgin, Cassandra K., former counsel for Appellees; Donoghue, Kristen, former counsel for Appellant; Dugger, Richard L., former Secretary, Florida Department of Corrections; Esquiroz, Margarita, former counsel for Appellees; Ferguson, Dorothy, as Next Friend on behalf of Appellant; Ferguson, John Errol, Appellant; Ferrer, Hon. Alex, Circuit Judge, Eleventh Judicial Circuit of Florida; Fox, Calvin L., former counsel for Appellees; Fuller, Hon. Richard S., Circuit Judge, Eleventh Judicial Circuit of Florida (deceased); Glenfeldt, Christopher, brother of deceased victim; Glenfeldt, Brian, deceased victim; Glenfeldt, Deron, mother of deceased victim; Grimes, Hon. Phillip, former Florida Supreme Court Justice; Hacker, Michael S., former counsel for Appellant; C2 of 5

Ferguson v. Secretary, Florida Dept. of Corr., Case No. 12-15422 Harding, Justice; Holmes, Randolph, deceased victim; Howard, Hon. Marcia Morales, United States District Court Judge, Middle District of Florida; Hurley, Hon. Daniel T. K., United States District Court Judge, Southern District of Florida; Klein, Hon. Herbert M., Circuit Judge, 11th Judicial Circuit of Florida; Kogan, Hon. Gerald, former Florida Supreme Court Justice; Komeily, Fariba Nora, Assistant State Attorney, Miami-Dade County, Florida; Lewis, Hon. R. Fred, Florida Supreme Court Justice; Lumer, Joel, former counsel for Appellant; McDonald, Justice; McNeil, Walter A., former Secretary, Florida Department of Corrections; Miller, Michael, deceased victim; Moore, Michael W., former Secretary, Florida Department of Corrections; Overton, Hon. Ben S., former Florida Supreme Court Justice; Pariente, Hon. Barbara J., Florida Supreme Court Justice; C3 of 5 Hon. Parker Lee, former Florida Supreme Court Hon. Major B., former Florida Supreme Court

Ferguson v. Secretary, Florida Dept. of Corr., Case No. 12-15422 Parrish, Steven Robert, former counsel for Appellees; Phillips, Kathleen, former counsel for Appellant; Prettyman, E. Barrett Jr., counsel for Appellant; Quince, Hon. Peggy A., Florida Supreme Court Justice; Rodriguez, Lisa, former counsel for Appellees; Rogers, Paul G., former counsel for Appellant; Routh, Steven J., former counsel for Appellant; Shaw, Hon. Leander J. Jr., former Florida Supreme Court Justice; Singletary, Harry K., former Secretary, Florida Department of Corrections (deceased); Smith, Jim, former Florida Attorney General; Smith, Walter A., former counsel for Appellant; Stinson, Charles, deceased victim; Stocker, Livingston, deceased victim; Sundberg, Justice; Toomey, Hon. Joel B., United States District Court Hon. Alan C., former Florida Supreme Court

Magistrate Judge, Middle District of Florida; Tucker, Corrections; Wells, Justice; C4 of 5 Hon. Charles T., former Florida Supreme Court Kenneth S., Secretary, Florida Department of

Ferguson v. Secretary, Florida Dept. of Corr., Case No. 12-15422 Williams, Gilbert, deceased victim; Worley, Belinda, deceased victim. Worley, Michael, brother of deceased victim, Yates, Barbara, former counsel for Appellees.

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PRELIMINARY STATEMENT References to the District Court record follow the procedure authorized by this Court when the volume numbers are not

available, i.e., Doc. (Doc. #) (Page #). The transcript from the instant record on appeal will be designated as CT __ followed by the appropriate page number. The record below on the instant appeal, will be cited as V, __ followed by the appropriate volume and page reference. STATEMENT ON ORAL ARGUMENT Appellees submit that oral argument is not necessary for appellate review of the instant cause. The issues presented may be resolved on the face of the record and the case law cited herein. See Fed. R. App. P. 34(a); 11th Cir. R. 34-3(b). The decisional argument. process Further, will since not be significantly is a death aided by oral which

this

case,

upon

execution of sentence was recently stayed at, literally, the eleventh hour, any delay for the sake of oral argument would be particularly inappropriate.

STATEMENT OF JURISDICTION This is an appeal from the Order issued October 23, 2012, denying Fergusons petition for writ of habeas corpus by the United States District Court for the Southern District of

Florida. (Doc. 31). This Courts jurisdiction rests on 28 U.S.C. 1291.

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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.............................. 1 PRELIMINARY STATEMENT.......................................... i STATEMENT ON ORAL ARGUMENT..................................... i STATEMENT OF JURISDICTION..................................... ii TABLE OF CONTENTS............................................ iii TABLE OF AUTHORITIES.......................................... iv STATEMENT OF THE CASE AND FACTS................................ 1 SUMMARY OF THE ARGUMENT....................................... 16 ARGUMENT...................................................... 18 I-II..................................................... 18 WHETHER THE FLORIDA SUPREME COURTS DECISION FINDING FERGUSON COMPETENT CONSTITUTED, WAS CONTRARY TO, OR AN UNREASONABLE APPLICATION OF, THE CLEARLY ESTABLISHED SUPREME COURT PRECEDENT OF FORD AND PANETTI?...................... 18 II....................................................... 35 WHETHER THE FLORIDA SUPREME COURT UNREASONABLY APPLIED PANETTIS PROCEDURAL REQUIREMENTS?....................................... 35 III...................................................... 42 WHETHER APPELLANT HAS CARRIED HIS BURDEN OF SHOWING THAT THE FLORIDA COURTS COMPETENCY DETERMINATION WAS BASED UPON CLEARLY ERRONEOUS FACTUAL FINDINGS?......................... 42 IV....................................................... 56 THE STAY SHOULD BE LIFTED........................... 56 CONCLUSION.................................................... 59 CERTIFICATE OF COMPLIANCE..................................... 60 CERTIFICATE OF SERVICE........................................ 60

iii

TABLE OF AUTHORITIES Federal Cases Bedford v. Bobby, 645 F.3d 372 (6th Cir. 2011) ................................ 23 Childers v. Floyd, 642 F.3d 953 (11th Cir. 2011) ............................... 20 Demosthenes v. Baal, 495 U.S. 731, 110 S. Ct. 2223 (1990) ........................ 23 DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011) .............................. 58 Ferguson v. Secy, Dept. of Corr., 130 S. Ct. 3360 (2010) ....................................... 1 Ferguson v. Secy, Dept. of Corr., 2012 WL 5233540 (11th Cir. 2012) ........................ 22, 58 Ferguson v. Secy, Dept. of Corr., 580 F.3d 1183 (11th Cir. 2009) ............................ 1, 7 Ferguson v. Warden, Florida State Prison, 2012 WL 4946112 (11th Cir. 2012) ............................. 2 Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986) .................... 18, 23 Gomez v. United States Dist. Court, 503 U.S. 653 (1992) ......................................... 58 Green v. Thaler, 2012 WL 4800431 (5th Cir.), cert. denied, 2012 WL 4813527 (2012) .................................................. 22, 38 Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) .............................. 25 Hill v. Jones, 81 F.3d 1015 (11th Cir. 1996) ............................... 35 Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006) .............................. 58 Johnson v. United States, 2012 WL 1836282 (N.D. Iowa 2012) ............................ 32 iv

Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991) .............................. 48 Lawrence v. Secy, Dept. of Corr., 2012 WL 5314113 (11th Cir. 2012) ............................ 30 Maharaj v. Secy, Dept. of Corr., 432 F.3d 1292 (11th Cir. 2005) .............................. 19 Mansfield v. Sec'y, Dept. of Corr., 679 F.3d 1301 (11th Cir. 2012) .......................... 20, 42 MillerEl v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003) ........................ 28 Panetti v. Dretke, 401 F.Supp.2d 702 (W.D. Tex. 2004) .......................... 31 Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007) .................... passim Parker v. Head, 244 F.3d 831 (11th Cir. 2001) ........................... 19, 20 Renico v. Lett, 559 U.S. , 130 S. Ct. 1855 (2010) ................... 18, 19 Rutherford v. Crosby, 385 F.3d 1300 (11th Cir. 2004) ...................... 20, 23, 42 Wellons v. Warden, Georgia Diagnostic and Classification Prison, 2012 WL 4094980 (11th Cir. 2012) ............................ 20 Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000) ........................ 19 Wright v. Secy, Dept. of Corr., 278 F.3d 1245 (11th Cir. 2002) .......................... 30, 54 State Cases Ferguson v. State, 417 So. 2d 631 (Fla. 1982) ................................ 4, 7 Ferguson v. State, 417 So. 2d 639 (Fla. 1982) ................................... 3

Ferguson v. State, 474 So. 2d 208 (Fla. 1985) ................................... 1 Ferguson v. State, 593 So. 2d 508 (Fla. 1992) ................................... 7 Ferguson v. State, 789 So. 2d 306 (Fla. 2001) ................................... 7 Ferguson v. State, Case No. SC12-2115 (Fla. Oct. 17, 2012) ................. 24, 26 Ferguson v. Warden, Fl. State Prison, Case No. 12-15191 (Oct. 18, 2012) ........................... 38 Other Authorities 11th Cir. R. 22-4(a)(1), (7)............................... 2, 57 11th Cir. R. 26.1-1............................................ 1 11th Cir. R. 34-3(b)........................................... i 28 U.S.C. 1291.............................................. ii Fed. R. App. P. 26.1........................................... 1 Fed. R. App. P. 34(a).......................................... i Fla. R. Crim. P. 3.811........................................ 14 Fla. R. Crim. P. 3.812........................................ 36 Fla. R. Crim. P. 3.812(b)..................................... 24 Section 922.07, Fla. Stat. (2009).......................... 9, 37

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STATEMENT OF THE CASE AND FACTS The State does not accept Appellants statement of facts as it is largely argumentative, misleading, and inaccurate. Ferguson is a death-sentenced inmate whose sentences became final on October 15, 1985 with the issuance of the mandate

following affirmance on resentencing. Ferguson v. State, 474 So. 2d 208 (Fla. 1985). After years of litigation in state and

federal courts, this Court affirmed the denial of habeas relief. and issued its mandate on January 8, 2010. Ferguson v. Secy, Dept. of Corr., 580 F.3d 1183 (11th Cir. 2009). On March 31, 2010, Ferguson filed his petition for writ of certiorari in the United States Supreme Court and certiorari was denied on June 1, 2010. Ferguson v. Secy, Dept. of Corr., 130 S. Ct. 3360 (2010).1 On September 5, 2012, Florida Governor Rick Scott signed a death warrant and scheduled Fergusons execution for October 16, 2012. Subsequently, the execution was briefly stayed in order to allow the parties, the circuit court, and the Florida Supreme Court to consider Fergusons claim that he was incompetent to be executed. The execution was rescheduled for October 23, 2012. On October 23, just minutes before the scheduled execution, the federal district court, Daniel T.K. Hurley, denied Fergusons Petition for Writ of Habeas Corpus, but, granted a Certificate of Appealability on two issues:

A more detailed procedural history was provided by Appellee in the section 1983 appeal denial. Ferguson v. Warden, Florida State
1

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. (Doc. 31) This Court, citing Eleventh Circuit Rule 22-4(a)(1), (7) granted a stay and set a briefing schedule. The Murder Convictions Ferguson was convicted in two cases of eight counts of first degree murder and other felonies. The facts underlying the Carol City homicides are as follows: On July 27, 1977, at approximately 8:15 p. m. the defendant, posing as an employee of the power company, requested permission from Margaret Wooden to enter her Carol City home and check the electrical outlets. After gaining entry and checking several rooms, the defendant drew a gun and tied and blindfolded Miss Wooden. He then let two men into the house who joined the defendant in searching for drugs and money. Some two hours later, the owner of the house, Livingston Stocker, and five friends returned home. The defendant, who identified himself to Miss Wooden as Lucky, and his cohorts tied, blindfolded and searched the six men. All seven victims were then moved from the living room to the northeast bedroom. Shortly thereafter, Miss Woodens boyfriend, Miller, entered the house. He too was bound and searched. Then he and Miss Wooden were moved to her bedroom and the other six victims returned to the living room. At some point one intruders mask fell, revealing Prison, No. 12-15191, 2012 WL 4946112 (11th Cir. 2012). 2

his face to the others. Miller and Wooden were kneeling on the floor with their upper bodies lying across the bed. Wooden heard shots from the living room then saw a pillow coming toward her head. She was shot. She saw Miller get shot then heard the defendant run out of the room. She managed to get out and run to a neighbor's house to call the police. When the police arrived they found six dead bodies. All had been shot in the back of the head, their hands tied behind their backs. One of the victims, Johnnie Hall, had survived a shotgun blast to the back of his head. He testified to the methodical execution of the other men. On September 15, 1977, the defendant and three codefendants were indicted for the offense. Adolphus Archie, the wheelman, was allowed to plead guilty to second degree murder and a twenty-year concurrent sentence on all counts in exchange for testimony at trial. He testified hed dropped the defendant, Marvin Francois, and Beauford White in the Carol City area to rip off a drug house. He didn't see the actual shooting but later saw unfamiliar weapons and jewelry in Beaufords and Francois possession. The defendant was tried alone and convicted on all counts. After an advisory sentencing hearing the jury recommended death. The judge followed that recommendation. . . . The defendant was a principal participant in the planning and execution of the robbery plans and all actions following the leaving of the scene of the crime which were designed to aid in avoiding detection. His participation constituted a major part of the total criminal activity involved. He was personally responsible for shooting two of the victims, killing one of them. Ferguson v. State, 417 So. 2d 639, 640-41, 644-45 (Fla. 1982). The facts relating to Fergusons separate murder case, the Hialeah murders, are as follows: The facts reveal that on January 8, 1978, the two victims were seated in an automobile and while seated therein a gunshot was fired through the window striking Brian Glenfeldt in the arm and chest area. A significant amount of bleeding followed and this victims blood was found throughout many areas of the 3

front of the automobile as well as on the clothing of Belinda Worley. Following the shooting, the female victim ran many hundreds of feet from the car in an attempt to allude the defendant and was finally overtaken in some rather dense overgrowth and trees. She was subjected to many physical abuses by defendant, including but not limited to, sexual penetration of her vagina and anus. The discovery of embedded dirt in her fingers, on her torso both front and back and in many areas within her mouth and the findings of hemorrhaging around her vagina and anal cavity would indicate that she put up a significant struggle and suffered substantially during the perpetration of these indignities upon her body. Expert testimony indicates that she was a virgin at the time of the occurrence of this crime. The position of Belinda Worleys body and the location of the wounds on her head would indicate that she was in a kneeling position at the time she was shot through the top of the head. She was left in a partially nude condition in the area where the crime was committed, to be thereafter fed upon by insects and other predators. Physical evidence would substantiate that following the attack upon Belinda Worley, the defendant went back to the car and shot Brian Glenfeldt through the head. Ferguson v. State, 417 So. 2d 631, 636 (Fla. 1982). Fergusons Competency Mental Health he History has And Prior Determinations Of

Appellant, overstates and

as

throughout the

these to

proceedings, support his

selectively

parses

record

present incompetency claim to support his assertion that he is chronically and severely mentally ill. Appellant does have a mental health history of varying diagnoses going back to the 1970s; notably, only in connection with criminal charges.

Indeed, Appellant has even blamed the State for letting him out of a state mental health hospital in 1976 despite being advised 4

that he was mentally ill and dangerous. To the contrary, three doctors from the State (criminal) Mental Hospital in Florida in 1976 concluded that Ferguson has not demonstrated any psychosis. (V10, 1773). This patient

describes symptoms in the past which could have been interpreted as a schizophrenic process. However, no symptoms or signs of schizophrenia disorder are present now. It is noted that the psychological testing was consistent with the clinical impression that this patients primary problem is a personality disorder. He was given a final diagnosis of a personality disorder, antisocial type, with a secondary diagnosis of drug abuse, multiple. (V10, 1773-74). Thus, Ferguson was not deemed mentally ill by the State doctors, nor had he demonstrated subsequent observable criminal signs conduct of was

schizophrenia.

Fergusons

consistent with the antisocial personality disorder diagnosis and not any other underlying mental impairment. Nothing in Fergusons lengthy and violent criminal history suggests paranoia or a type of disorganized schizophrenic-related offense. Dr. Enrique Suarez explained during the competency

hearing below: Every one of his crimes relate directly to his antisocial need and his self-gratification, without wanting to postpone gratification, and impulsively doing these things. His crimes involved other people, it involved coordinating, planning, wearing a disguise. (CT 558). Even defense expert Dr. George

Woods acknowledged during the competency hearing below that he did not find anything unusual or bizarre in Fergusons criminal offenses. (CT 108). Another view of Fergusons extensive mental health record, and, in the States view, the more accurate one, would be that Ferguson has a significant history of feigning mental illness to avoid legal jeopardy. See (A1-A5: States Exhibit 5, Plaintiffs Mental Health History Chart, and index to record citations for expert testimony) (CT 647-648). Ferguson ignores the fact that since 1978 the evidence is very much conflicting as to whether or not he suffers from any mental disorder aside from antisocial personality disorder and that a consensus has emerged among the reviewing courts, both state and federal, that Ferguson has

exaggerated or consciously malingered symptoms of mental illness. Indeed, the circuit court below, while indicating that Appellant did not malinger during the Commissions evaluation wherein he acknowledged quite rationally his impending execution and the reason for it, found Dr. Enrique Suarez credibly testified to Fergusons documented history of malingering.2 (Order at 17). At the time of the Carol City trial, defense counsel

Appellant is a man of average intelligence as testified to by a defense-retained expert after scoring a 95 on the WAIS III in 2004. Three experts testified during the recent competency hearing that Petitioner appeared to be a man of at least average intelligence, including, Dr. Richard Rogers, who was retained by the defense. Further, Petitioner, having been repeatedly tested and scanned has never had any notable signs or indications of neurological impairment. (PCR2 V7, 1237-38, 1242-44).
2

challenged

Fergusons

competency

and

planned

to

pursue

an

insanity defense. Ferguson was examined by four court-appointed doctors, and after reviewing the reports and taking depositions, trial counsel decided that the evidence of his mental illness was weak and would open up serious rebuttal in the form of evidence that Ferguson was a highly dangerous psychopath who was

consciously feigning or malingering symptoms of mental illness. Ferguson v. State, 593 So. 2d 508, 510-11 (Fla. 1992). Each and every court to review the question of Fergusons mental status in relation to his competency to proceed, at trial, in state post-conviction, and his federal habeas corpus on his murder convictions, has determined that Ferguson is competent. See Ferguson v. State, 417 So. 2d 631, 634-35 (Fla. 1982)

(holding that the evidence was sufficient to support the trial courts finding that Ferguson was competent to stand trial for the murders of Brian Glenfeldt and Belinda Worley); Ferguson v. State, 789 So. 2d 306 (Fla. 2001) (upholding the state

postconviction courts finding that Ferguson was competent to proceed in postconviction proceedings as the credible testimony at the three-day evidentiary hearing indicated that Ferguson was malingering and exaggerating); Ferguson v. Secy, Dept. of Corr., 580 F.3d 1183 (11th Cir. 2009) (noting that six experts testified regarding Fergusons competency to assist his counsel in his federal habeas proceedings and this Court did not err in finding

Ferguson

competent

to

proceed).

Notably,

after

an

extensive

hearing on Petitioners competence to proceed with his federal habeas corpus petition in 2004, the district court rejected the opinions of Fergusons experts as neither credible nor worthy of belief and found that Ferguson was consciously exaggerating or malingering symptoms of mental illness. (PCR2 V2, 231). Finally, on October 12, 2012, the state circuit court for the Eighth Judicial Circuit found Ferguson competent to be executed. The Florida Supreme affirmed this decision on October 17, 2012.

Ferguson v. State, SC12-2115 (Fla. Oct. 17, 2012). The Competency Hearing, The Circuit Courts Order, And Appellate Review Under The Instant Warrant An evidentiary hearing on Appellants sanity to be executed was conducted over the course of two days beginning on October 9, 2012. The recent hearing on Fergusons competence to be executed in which extensive evidence was taken on Fergusons mental state, conclusively established that Ferguson understands the nature and effect of the death penalty and why it was imposed upon him. Indeed, the evidence establishes that Appellant has not even exhibited any signs or observable symptoms of schizophrenia for nearly twenty years in the closely supervised environment of death row. Petitioners selective and misleading recitation of facts relating to the competency hearing 8 in state court warrants

clarification. Although the warrant was signed on September 5, 2012, Petitioners attorneys did not file their notice to

Floridas Governor under Section 922.07 until September 24, 2012, nearly three weeks later. The State notes that Ferguson, having retained the California-based Dr. George Woods nearly a year ago in anticipation of litigating a competency-to-be-executed claim, inexplicably waited nearly three weeks after his warrant was signed to even raise this issue. The Governor, while questioning whether question executed, there were any allegations which truly or raised to any be to

regarding appointed

Petitioners a commission

competency of three

sanity

psychiatrists

examine the Petitioner and issue a report. See 922.07, Fla. Stat. (2009) (outlining procedures for Governor to follow when he or she is informed that a person under sentence of death may be insane). The Governors Commission of three psychiatrists issued its report on October that 1, to 2012, a unanimously finding of Ferguson medical mental

competent; certainty

finding Mr.

reasonable has no

degree

Ferguson:

1)

genuine

current

illness, and 2) understands the nature and effect of the death penalty and why it was imposed upon him. (Commission Report at 2). Appellant waited until late in the afternoon on October 3, 2012, to file his Florida Rule of Criminal Procedure 3.811 motion challenging his competency to be executed. After agreeing to a hearing date of October 9-10, 2012, Petitioner then sought a

ninety-day stay from the court in order to allow counsel time to perfect and prepare for its presentation in support of their contention that Ferguson is insane and cannot be executed. The circuit court denied the motion for a ninety-day stay and the hearing proceeded over the course of two days on October 9th and 10th. At the evidentiary hearing, the court was confronted with conflicting expert opinions as to whether the defendant was

competent to be executed. The defendant presented only one expert who testified that Appellant was not competent to be executed, Dr. George Woods, from California. Dr. Woods testified that

Appellant is a paranoid schizophrenic and has repeatedly been diagnosed as a schizophrenic and experiences a wide range of hallucinations and delusions. (CT 54-55). The other expert

presented by Appellant, Dr. Richard Rogers, did not render an opinion on Appellants competency to be executed and did not even offer a diagnosis of Appellant. (CT 125-127). Rather, Dr. Rogers testified that he administered a number of tests to Ferguson on September 20 and 21, 2012, and concluded that they showed he was not presently malingering.3 (CT 179). The only other witness presented by Appellant was one of his defense attorneys who was

Dr. Rogers acknowledged that he had only conducted a limited review of Petitioners background but that it did appear from testing conducted in 2004 that Petitioner was malingering at that time. However, Dr. Rogers thought the fact that Petitioner had malingered in the past was not relevant to whether or not he was malingering now. (CT 179, 197).
3

10

present during the Commissions evaluation of Ferguson and she testified to her recollection of the evaluation process. In rebuttal, the State presented two of the board certified psychiatrists who were on the Governors Commission who examined Ferguson: Dr. Wade Myers and Dr. Werner. Dr. Wade Myers has had

a license to practice in Florida since 1994 and in Rhode Island. He is currently a faculty member at Brown University, teaching psychiatry, with a specialty in forensic psychiatry. (CT 237-243, 266). He has conducted research in the area of malingering, which included participating in a study of 35 homicide defendants who raised issues with respect to insanity and competency. (CT 239). Dr. Myers has seen, evaluated and diagnosed thousands of

schizophrenic individuals since medical school in the 1980s to present. (CT 246). Dr. Werner is the Chief of the Forensic Psychiatry Division and Director of the Forensic Institute of the University of Florida. (CT 444-445, 454). In the course of her career, Dr. Werner had occasion to encounter hundreds, if not over a

thousand, people with paranoid schizophrenia. (CT 471). Dr. Myers and Dr. Werner testified that Ferguson was

competent to be executed, that Appellant expressed a rational and factual understanding of the punishment and the reasons for it, and that he did not exhibit signs of paranoid schizophrenia. (CT 263, 308, 328-329, 470). The State also presented the testimony

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of Dr. Enrique Suarez, a neuropsychologist, who had previously examined Ferguson prior to the 2004 federal competency hearing, and who found that he was malingering at that time and that Ferguson did not suffer from, or exhibit signs of, ever having been schizophrenic. (CT 536-542). Ms. Jennifer Sagle, a mental health specialist at Union Correctional bachelors Institute degree in (UCI), also and testified. a masters She has a in

psychology

degree

counseling, both from Ohio University. (CT 426). She worked on death row from December, 2005 until July, 2012. (CT 425). She stated that her job was to provide mental health therapy,

individual or group, and crisis intervention when needed. Ms. Sagle testified that the defendant was classified during the time she was there as an S-1 psychiatric grade, meaning that he had no observable signs of mental illness within the correctional

setting. The psychological grades go all the way up to S-5, which would require in-patient care. As the mental health counselor on death row, problems come to her attention in a number of ways; from staff referrals, other mental health staff, or nursing

staff. Ms. Sagle would have a certain time-frame to respond to such referrals. She also receives referrals from other inmates or family members. She had weekly, although brief, contact with the defendant. She would ask the defendant how he was doing. She noted that there was nothing presented to her, either from her

12

observations staff, other

or

through or

any

referrals else

from that

security, would

nursing any

inmates

anyone

require

inquiry of Mr. Ferguson. She noted that although the defendant has continually refused the 90-day confinement evaluations, the defendant did not appear to have any mental health symptoms that require treatment. Ms. Sagle testified that patients who have paranoid

schizophrenia may not necessarily show the positive symptoms of the disease, that is, the hallucinations, but they should show the negative symptoms, such as having a flat affect and not being able to function to meet their goals. While a sex offender

screening report she filled out reflected a past DOC diagnosis for paranoid schizophrenia, she has not observed any symptoms of this mental disease in Ferguson and it simply reflected his past history as reflected in the Corrections record. (CT 424-428). Additional Corrections personnel were called to testify to corroborate the fact that Ferguson has not exhibited any signs or symptoms of mental illness and that Ferguson had rationally

discussed his impending execution and the burial of his remains after the instant death warrant was signed. (CT 336-337, 405420). On October 12, 2012, the circuit court of the Eighth

Judicial Circuit issued an order finding Petitioner competent to be executed, noting that Petitioner failed to establish his

13

incompetency by clear and convincing evidence as required by Florida law, or, even under the lesser preponderance of the evidence standard. The circuit court credited the testimony of the States experts as to Fergusons competence to be executed over that of the defense experts. The court did not credit their testimony as to any present symptoms of mental illness and only credited the defense experts as to Fergusons diagnosed history of paranoid schizophrenia. However, as to Fergusons current

state or mental capacity, the court credited the testimony of Dr. Myers and Dr. Werner evidence from the and found their testimony supported by of Corrections. The unanimous

Department

Commission report by Dr. Wade Myers, Dr. An Werner and Dr. Alan Waldman concluded that Ferguson was competent and understood the nature of the punishment imposed and the reason for its

imposition. After considering the evidence presented during the hearing, the lower court found their conclusion that he is sane to be conclusively supported by the record. (V16, 2738-2757 at 2755). The Florida Supreme Court unanimously affirmed, finding competent, substantial evidence supported the circuit courts ruling. The court discussed both Ford and Panetti, and, found the standard articulated in Florida Rule of Criminal Procedure 3.811 to remain valid in light of Panetti. Ferguson v. State, SC12-2115 (Fla. Oct. 17, 2012). Any additional facts necessary for resolution of the issues

14

before this Court are contained in the argument, infra.

15

SUMMARY OF THE ARGUMENT After a full and fair hearing in state court below,

Appellant was found competent to be executed. A unanimous Florida Supreme Court affirmed, identifying and applying controlling

precedent from the Supreme Court. Appellant has not come close to carrying his burden of establishing that the state court decision was contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. The state court decision under review is afforded considerable deference under the AEDPA. Appellant only presented one expert, Dr. George Woods, who testified that Ferguson was incompetent to be executed. The other expert retained by Ferguson, Richard Rogers, did not render any opinion on Fergusons competency to be executed, or, notably, even provide a diagnosis of Ferguson. In contrast, the unanimous Commission report from three psychiatrists concluded that

Ferguson is competent to be executed. The State offered the testimony of two of the psychiatrists from the Commission, Dr. Wade Myers and Dr. An Werner, who testified to their conclusions finding Ferguson competent to be executed. The lower court

credited their opinions over the defense experts. Moreover, each doctor offered their opinion that Ferguson does not appear to suffer from any major mental disorder. In addition, a mental health counselor assigned to death row who observed Ferguson for some seven years, observed no signs of any

16

mental illness on the part of Ferguson. Nor, had any such reports been made to her suggesting any bizarre or unusual behavior by Ferguson. Fergusons institutional life, both in writing and in conduct, completely contradicts the notion that he is seriously mentally ill. In sum, Ferguson does not come close to meeting his burden of establishing the state courts decision finding of competence is erroneous by clear and convincing evidence. The denial of habeas relief should be affirmed and the stay of execution

immediately lifted.

17

ARGUMENT I-II. WHETHER THE FLORIDA SUPREME COURTS DECISION FINDING FERGUSON COMPETENT CONSTITUTED, WAS CONTRARY TO, OR AN UNREASONABLE APPLICATION OF, THE CLEARLY ESTABLISHED SUPREME COURT PRECEDENT OF FORD AND PANETTI? The Florida Supreme Courts unanimous ruling reasonably applied the facts and proper precedent, Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986) and Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007), to determine that relief was not warranted in this case. This decision does not conflict with any clearly established precedent from the Supreme Court or constitute an unreasonable application of any such precedent under the facts of this case. Accordingly, Petitioner has failed to meet his burden under the AEDPA. Preliminary Statement On Applicable Legal Standards Under The AEDPA The AEDPA establishes a highly deferential standard for evaluating state-court rulings. Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). As this Court explained recently in Hill v.

Humphrey, 662 F.3d 1335 (11th Cir. 2011) (en banc): In 2254 cases, federal courts do not review state courts decisions de novo. Rather, Congress restricted federal review to whether the state courts decision is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States as of the date 18

of the state court decision. 28 U.S.C. 2254(d)(1) (emphasis added). Discussing 2254(d)(1) specifically, and reversing federal circuit courts for granting habeas relief, the Supreme Court has admonished: A legal principle is clearly established within the meaning of this provision only when it is embodied in a holding of this [Supreme] Court. Thaler v. Haynes, 130 S.Ct. 1171, 1173, 175 L.Ed.2d 1003 (2010); see Berghuis v. Smith, 559 U.S. , 130 S.Ct. 1382, 1392, 139596, 176 L.Ed.2d 249 (2010). The unreasonable application standard is a difficult one for a habeas petitioner to meet and is more than merely an incorrect application of federal law. Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). The phrase clearly established Federal law, only encompasses the holdings of the United States Supreme Court as of the time of the relevant state-court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495 (2000). [S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; clauses the contrary to and unreasonable a

application

articulate

independent

considerations

federal court must consider. Maharaj v. Secy, Dept. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by this Court in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001): Under the contrary to clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct 19

governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case. Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was objectively unreasonable. Id. Further, under the AEDPA, the determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. Rutherford (citing v.

Crosby, 385 F.3d

1300, 1306-1307 (11th Cir. 2004)

2254(e)); Mansfield v. Sec'y, Dept. of Corr., 679 F.3d 1301, 1309 (11th Cir. 2012). The statutory presumption of correctness

applies to the factual determinations of both state trial and appellate courts. Wellons v. Warden, Georgia Diagnostic and

Classification Prison, --- F.3d ----, 2012 WL 4094980, 3 (11th Cir. 2012), citing Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003). Because of the presumption under 28 U.S.C. 2254(e)(1) that state court findings of fact are correct, where factual findings underlie the state court's legal ruling, the Courts already deferential review [under 2254(d)] becomes doubly so. Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011) (en banc). The Florida Supreme Courts Ruling Was Not Contrary To, Or An Unreasonable Application Of, Clearly Established Precedent From The Supreme Court Of course, this case stands 20 in somewhat of an unusual

procedural posture, with this Court already having examined the merits of Appellants claims and finding that Ferguson did not have a substantial likelihood of success. In vacating an

earlier stay granted by the district court, this Court stated: It would also have been an abuse of discretion to hold that Ferguson has a substantial likelihood of success on the merits of his claim. DeYoung, 646 F.3d at 1324. The Governor of Florida appointed a commission of three psychiatrists to determine whether Ferguson is competent to be executed, and the commission unanimously found that he is. A state trial court then conducted a full and fair evidentiary hearing and found Ferguson competent to be executed. The Florida Supreme Court unanimously affirmed the finding of the trial court. Ferguson has failed to identify clear and convincing evidence upon which the district court could decide that the state court unreasonably determined that Ferguson is competent to be executed. See Rutherford v. Crosby, 385 F.3d 1300, 1306 (11th Cir. 2004)([A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.(quoting 28 U.S.C. 2254(d))). Ferguson also argues that the decision of the Florida Supreme Court was based on an unreasonable application of clearly established federal law, 28 U.S.C. 2254(d)(1), established in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986) and refined in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842 (2007), but we disagree. The Florida Supreme Court explained that the standard is whether there is competent, substantial evidence to support the trial court's determination that Ferguson's mental illness does not interfere with his rational understanding of the fact of his pending execution. And the court affirmed the finding that Ferguson has this rational understanding. Ferguson fails to explain how the Florida Supreme Court unreasonably applied clearly established federal law when it found that Ferguson is competent to be executed.

21

Ferguson v. Secy, Dept. of Corr., 2012 WL 5233540, 1-2 (11th Cir. 2012) (unpublished).4 The Supreme Court also declined to overturn this Courts decision to vacate the districts courts stay, with Appellant raising the same claims and allegations he presents here with his execution imminent. The Supreme Court declined to grant certiorari review on direct review of the Florida Supreme Courts decision affirming the finding of

competency. Ferguson v. Secy, Dept. of Corr., No. 12A402, 2012 WL 5229801 (Oct. 23, 2012); Ferguson v. State, No. 12-6812, 2012 WL 5198962 (Oct. 23, 2012). This Court was correct in its

preliminary evaluation of Fergusons competency claim, and, upon further review, habeas relief is clearly unwarranted. Appellants competency-to-be-executed claim has been subject to fair and complete review on the merits in state court. Under the deferential standards of the AEDPA, Ferguson carries a heavy burden as the Florida Supreme Court applied the correct standard as set forth in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti and reasonably applied the facts of this case to that standard.5 See Bedford v. Bobby, 645 F.3d 372, 378 (6th Cir.

Judge Wilson, concurring in part and dissenting in part, stated he would vacate the stay and remand the matter back to the district court to consider Ferguson's claim using the correct legal standard. 5 See Green v. Thaler, 2012 WL 4800431, *5 (5th Cir.), cert. denied, 2012 WL 4813527 (2012) (noting Justice Powells opinion [in Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986)] constitutes clearly established law for purposes of 2254 and sets the minimum procedures a State must provide to a prisoner raising a Ford-based competency claim. Panetti, 551
4

22

2011) (observing that the Ford/Panetti standards call for a caseby-case application and that [t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L.Ed.2d 938 (2004)). To prevail,

Ferguson must overcome the state courts factual findings by clear and convincing evidence. Ferguson has not come close to meeting that high burden. Rutherford v. Crosby, 385 F.3d 1300, 1306-07 (11th Cir. 2004) (The determination of a factual issue made by a State court shall be presumed to be correct . . . and the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.) (citing 2254(e)). See also Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225 (1990) (observing in a pre-AEDPA case that Aunder ' 2254's presumption of correctness, the state court=s factual finding as to Baal=s competence is binding on a federal habeas court@). The state courts below cited the United States Supreme

Courts decisions in Ford v. Wainwright, 477 U.S. 399, 40910, 106 S. Ct. 2595, 2602 (1986), and Panetti v. Quarterman, 551 U.S. 930, 960, 127 S. Ct. 2842, 2862 (2007), in rejecting Appellants competency claim. While Appellant asserts that the Florida

Supreme Court unreasonably failed to apply Panetti, the decision below neither conflicts with, nor constitutes, an unreasonable U.S. at 949, 127 S. Ct. 2842.). 23

application of Panetti. The Florida Supreme Court applied the Ford standard in a manner which is explicitly in conformance with the subsequent Panetti decision. The court framed 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. (emphasis added). Ferguson v. State, slip op. at 4, Case No. SC12-2115 (Fla. Oct. 17, 2012). Panetti did not alter the Ford standard for determining competency to be executed which Florida adopted in Rules of Criminal Procedure 3.811 and 3.812. See Rule 3.812(b) (whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason for it). In Panetti, 551 U.S. at 960, the Court notably did not state that it was

reversing or even altering the Ford competency standard. Rather, the Court simply stated that Petitioners submission is that he 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 .

. . should have been considered.

Sub

judice,

Appellants beliefs and allegations of mental illness were fully explored during a two-day adversarial hearing in accordance with the process and procedures outlined in Ford and Panetti. Panetti was a fact-specific application of Ford under the AEDPA. It did

24

not alter or change the law on competency to be executed, as it was decided under the AEDPA, and, therefore the Court could not issue a new rule retroactively applicable to that case. In Hill v. Humphrey, 662 F.3d 1335, 1360 (11th Cir. 2011) this Court stated that Panetti is a straightforward application of the AEDPA. The Court in Panetti concluded that: (1) Supreme Court precedent in Ford clearly right minimum established not to be not only the if

substantive incompetent guidelines

Eighth but under

Amendment certain Due

executed due

also the

procedural for

process the

Process

Clause

bringing

substantive claim, and (2) the state court procedures afforded Panetti did not satisfy Ford's procedural requirement of an

opportunity to present expert evidence. Id. Contrary to Appellants argument, the Florida Supreme Court did not expressly disclaim[] any obligation to apply Panetti to Appellants case. (Appellants Brief at 37). In accordance with Panetti, the Florida Supreme Courts decision did not state that Appellants claimed delusional belief or alleged mental illness was irrelevant to its inquiry. Nor did the court not apply a bare factual awareness test as argued by Appellant. The court

appropriately considered the very limited Prince of God belief expressed to the Commission [the only such belief specifically found credible by the circuit court below], but, noted that Ferguson nonetheless expressed a clear and unambiguous knowledge

25

of his impending execution and the reason why this punishment had been imposed upon him. The Florida Supreme Court correctly found that Panetti did not alter the standard, but in accordance with the decision, did not deem irrelevant Fergusons claimed delusion or mental illness in applying Ford. The Florida Supreme Court stated: Ferguson argues that the United States Supreme Courts decision in Panetti clarified the holding in Ford and constitutes a change in the standard to be applied in rule 3.812 proceedings to represent a stricter standard than that adopted by this Court in its decision in Provenzano. We disagree. The Panetti court explicitly declined to extend its ruling to all competency proceedings. Furthermore, to the extent that Panetti represents any change in the Courts jurisprudence, the change does not alter our decision in Provenzano. The issue in Panetti was whether [t]he state courts failure to provide the procedures mandated by Ford constituted an unreasonable application of clearly established law as determined by [the Supreme] Court. Panetti, 551 U.S. at 948. The Fifth Circuit Court of Appeals required only that Panetti knew the fact of his impending execution and the factual predicate for the execution. Panetti, 551 U.S. at 942. Acknowledging that [t]he opinions in Ford . . . did not set forth a precise standard for competency, the Court nevertheless found that the Fifth Circuits standard was not sufficient. Panetti, 551 U.S. at 957-60. The Court stated that [a] prisoners awareness of the States rationale for an execution is not the same as a rational understanding of it [and] Ford does not foreclose inquiry into the latter. Panetti, 551 U.S. at 959. The Court, accordingly, rejected the standard pronounced by the Fifth Circuit, but specified that it would not attempt to set down a rule governing all competency determinations. Panetti at 960-61. Consequently, Panetti is a narrowly tailored decision that does not overturn this Courts decision in Provenzano. Ferguson v. State, slip op. at 6-7, Case No. SC12-2115 (Fla. Oct. 26

17, 2012). Based identified upon the the foregoing, Supreme the Florida Supreme Court and

applicable

Court

precedent

[Ford

Panetti] and reasonably applied that precedent to a specific set of facts in an objectively reasonable manner. Accordingly, the denial of habeas relief must be affirmed. The Florida Supreme Court Reasonably Applied Panetti And Ford To A Specific Set Of Facts To Determine That Ferguson Is Competent To Be Executed It is clear that the overwhelming weight of the evidence supports the ruling of the state courts below. The defense only presented one expert, Dr. Woods, who testified that Ferguson was incompetent to be executed. The other expert retained by

Ferguson, Dr. Richard Rogers, did not render any opinion on Fergusons competency to be executed, and, notably, failed to even offer a diagnosis of Ferguson. Dr. Rogers testimony was limited to his opinion that Ferguson was not presently

malingering. In contrast, the unanimous Commission report from three psychiatrists concluded that Ferguson is competent. The State offered the testimony of two of the psychiatrists from the Commission, Dr. Wade Myers and Dr. An Werner, who testified to their conclusions. The lower court credited their conclusions over the contrary opinion of Fergusons expert. This decision was affirmed by the unanimous Florida Supreme Court. Since this

27

decision is supported by factual findings below which are not clearly erroneous, this claim must be denied under the AEDPA. See MillerEl v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003) (A state court's competency determination is a finding of fact

entitled to a presumption of correctness under 2254(d)(2)). Indeed, even assuming arguendo, this Court employed de novo

review of this claim, Appellants claim would be denied as the overwhelming weight of the evidence below established his

competence to be executed. The unanimous Commission report by Dr. Wade Myers, Dr. An Werner and Dr. Alan Waldman concluded that Ferguson was competent and understood the nature of the punishment imposed and the reason for its imposition. While Appellant is fond of selectively parsing the Eighth Circuit Courts order to support his claim, he ignores the ultimate conclusion made by the court. The lower court found their conclusion that he is sane to be conclusively supported by the record. (V16, 2738-2757 at 2755) (emphasis added). And, it was. The Commission members reviewed a large amount of Department of Corrections records going back to 1978. The Commission also spent 90 minutes evaluating Ferguson. Fergusons responses to the Commissions inquiry were logical, coherent, and goal directed. Dr. Myers testified: For 90 minutes he engaged in regular

conversation with us. He understood every question we asked him.

28

He gave coherent logical responses. His speech was normal. It wasnt real fast. It didnt get disconnected. He had no sign of a thought disorder, which is a common symptom in schizophrenia. But we saw no signs of that. (CT 256). When questioning began, Dr. Waldman noted that Ferguson had been convicted of six murders, but Ferguson corrected him and said eight. (CT 255). In the in interview, Floridas Ferguson also

acknowledged

the

recent

change

lethal

injection

protocol and the fact he would be the first to be executed using a new drug. (CT 462). Dr. Waldman asked When you are buriedwhen your body is buried in the ground, will you be dead? The

defendant replied yes, he would. (CT 463). Dr. Werner testified: He understood the execution process and that he was going to die and why. (CT 506). Thus, in the evaluation itself, Ferguson clearly

demonstrated to the Commission that he knew he was set to be executed and why he was to be executed, having been convicted of eight murders. Ferguson discussed his death and, notably, did not assert that he could not die or that he would act with God to foil a Communist conspiracy as Ferguson had apparently reported to defense expert Dr. Woods. Corrections personnel also testified that Appellant spontaneously volunteered that this was his first warrant in 35 years and rationally discussed the burial of his remains. This fact, and, the discussion surrounding Appellants

29

awareness that he would be the first to be executed using a new drug in the protocol, demonstrated a rational and factual understanding of his execution and the reasons for it. The

limited and self-reported

delusions or hallucination Ferguson

expressed to the Commission concerning shadow people and the Prince of God---even if true--did not in any way interfere with Fergusons acknowledged rational understanding of the fact of his execution and the reason for it. C.f. Wright v. Secy, Dept. of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002) (The fact that he suffers from chronic schizophrenia the effects of which have come and gone over the years is not enough to create a real,

substantial, and legitimate doubt as to whether he was competent to stand trial in January of 1987.); Lawrence v. Secy, Dept. of Corr., 2012 WL 5314113, 17 (11th Cir. 2012) (noting that even diagnosed mental illnesses such as schizophrenia do not equate with incompetency to stand trial). Petitioner did not express, nor did the circuit court credit as credible any delusion of the sort expressed by the defendant in Panetti. In Panetti, a number of doctors testified that

Panetti did not understand that Texas is a lawfully constituted authority and a number of doctors testified that Panetti

believes the real reason he is to be executed is for preaching the Gospel.


6 6

Panetti v. Dretke, 401 F.Supp.2d 702, 712 (W.D.

The district court stated that a number of experts testified Panetti believes the real reason he is to be executed is for 30

Tex. 2004) (emphasis added). In this case, Appellants ability to connect his conviction and sentence is objectively rational in that it is the same reasonable connection as would be made by the average person. Notably, Petitioner did not assert that he could not die or that he would act with God to foil a Communist conspiracy as Ferguson had apparently reported to defense expert, Dr. Woods.7 Contrary to Petitioners argument, which is supported only by Dr. Woods defense-friendly testimony, Ferguson expressed no delusion or hallucination to the Commission which would interfere with his ability to understand the nature of the punishment or why it was imposed upon him.8 The lower court did not, as Ferguson suggests, find that all of his delusions or hallucinations expressed to Dr.

preaching the Gospel. However, in accordance with Fifth Circuit precedent, the district court held that a petitioner's delusional beliefs-even those which may result in a fundamental failure to appreciate the connection between the petitioner's crime and his execution-do not bear on the question of whether the petitioner knows the reason for his execution for the purposes of the Eighth Amendment. Panetti v. Dretke, 401 F.Supp.2d 702, 712 (W.D.Tex. 2004) (citation omitted). 7 Ferguson did not relay to the Commission the number or breadth of delusions and hallucinations he has presented to mental health professionals in the past. But, as the circuit court noted, Dr. Suarez credibly testified that Petitioner has malingered in the past. 8 Dr. Woods was the only expert who testified that Ferguson was borderline retarded, which on cross-examination, he acknowledged was an imprecise or not recognized intelligence diagnosis. Further, all of the other experts who testified agreed that Ferguson was of average intelligence. Even the other defense expert, Dr. Rogers, acknowledged that Ferguson appeared to be of average intelligence. 31

Woods, or even the Commission members, were genuine or credible.9 The lower court only credited Fergusons claim to be the Prince of God, but noted that he appeared to be presently expressing a Christian belief in the afterlife. (V16, 2738-2757 at 2754). The court did not credit the expansive, Communist-associated, and grandiose version he apparently provided to only Dr. Woods. Dr. Werner testified that when the defendant spoke of resurrection, he was stating a Christian belief which is not uncommon.10 (CT 461-501). Even if Ferguson had expressed an unusual religious belief to the Commission, it clearly did not prevent him from having a rational understanding of the punishment that was

imposed and why it had been imposed upon him. Unlike Panetti, Appellant did not express any belief that he was going to be executed for his religious beliefs, he plainly acknowledged his convictions and, specifically, the exact number of the murders he was convicted of. Nor, did Appellant assert that he could not or would not die as a result of his execution. In addition, the circuit court noted that the records and testimony from Department of Corrections personnel supported the conclusions of Dr. Myers and Dr. Werner. Ferguson demonstrated

The California-based Dr. Woods routinely testifies across the country in criminal cases exclusively on behalf of the defense. It appears that Dr. Woods opinions are frequently provided, but also frequently rejected, by reviewing courts. See e.g., Johnson v. United States, 2012 WL 1836282, 102 & 108-110, fn. 46 (N.D. Iowa 2012) and cases cited therein. 10 Ferguson discussed Jeremiah and Matthew but did not relate that these individuals talked to him or that he heard voices:
9

32

ability to communicate, meet his daily needs and otherwise lead a normal life within the Department of Corrections. This indicates he has the capacity to perceive and respond appropriately to his environment. See, e.g Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir. 1991) (on competency to stand trial, court noted a defendant lacks the requisite rational understanding if his mental

condition precludes him from perceiving accurately, interpreting, and/or Indeed, responding not only appropriately do the to the world around him.). the

Corrections

personnel

document

complete absence of unusual or bizarre behavior for more than a decade, but one witness from the Department of Corrections

testified directly to the question of Fergusons understanding of the nature of the sentence about to be imposed. Assistant Warden Brad Whitehead was present when the warrant was read to Ferguson. Mr. Whiteheads duties include making

arrangements for the Appellants last meal, his remains and who he desires to see and speak with, including any spiritual

advisors. Ferguson was asked for and provided the name of his attorneys law firm, and spoke with them the night the warrant was signed. The Appellant was also asked and provided the name of his spiritual advisor, a nun by the name of Sister Marina from New Orleans, with whom he has had significant contact in the past. The Appellant also expressed concerns about having any visit with his mother as he was concerned about the latters Absolutely not. (CT 138).

33

well-being because of her medical condition. He did wish to telephone his sister in Miami, which was arranged. (CT 405-410). With respect to the burial of his remains, Ferguson stated that he needed to consult with his attorneys about that. Notably, the Appellant at no time expressed any indication that he was the Prince of God, or that there were no concerns about burial plans and remains because he would return or be resurrected. (CT 411413). No unusual behavior or requests by the Appellant have been observed by Assistant Warden Whitehead, who also has been

maintaining contact with the Appellant three times a week for the past month. (CT 420). The complete and utter lack of observable symptoms of mental illness in the closely supervised setting of death row for more than a decade, establishes that Petitioners assertions of

continuing and extreme mental illness, supported only by Dr. Woods during the hearing below, is not credible. Indeed, the circuit court only found that Fergusons very limited, and modest statements to the Commission did not appear to be malingered. The evidence rather convincingly establishes that any claim of severe mental impairment is not credible and that the state courts properly credited the contrary opinions of the experts called by the State below. Appellant has not established an unreasonable application of Ford and Panetti.

34

II. WHETHER THE FLORIDA SUPREME COURT UNREASONABLY APPLIED PANETTIS PROCEDURAL REQUIREMENTS? Appellant next contends that the procedures below failed to comply with the procedural due process required by Ford and

Panetti. This claim is arguably encompassed by the COA granted by the district court below. However, while Appellant did generally complain about the incalculable due process abuses below,

Appellant did not even bother to raise a distinct claim in his underlying habeas petition that the state court proceeding failed to afford him the due process required by Ford and Panetti. (Def Ex. 1, Habeas Petition at 14-22). See Hill v. Jones, 81 F.3d 1015, 1020 (11th Cir. 1996) (As a general rule, we will not entertain issues or arguments on appeal that were not fairly presented to the district court.). Nonetheless, even if this claim is properly before this Court, it lacks any merit. The Florida Supreme Court considered and rejected each of the claims raised by Appellant concerning the process employed in state court in resolving his insanity to be executed claim. The court stated: In his second argument on appeal, Ferguson alleges that he failed to receive a full and fair hearing because: (1) the State did not give him forewarning of its theory that his delusions constituted mainstream Christian beliefs; (2) he was not permitted to cross examine an expert witness; and (3) he was forced to proceed without a key witness. We have carefully reviewed the parties arguments and the record in this case, and find each of these claims to be without 35

merit. While Appellant complains about the manner or brevity of the opinion which disposed of his claims, it is clear that the claims raised warranted little discussion. They were clearly meritless. Ferguson received the adversarial testing to which he was entitled under Ford, Panetti, and Fla. R. Crim. P. 3.812

(discussing procedures employed for a hearing on competency to be executed). While the State did not concede a substantial showing of incompetency had been made by Ferguson, it did not object to a hearing in this case. Over a lengthy two-day hearing, Ferguson presented experts, evidence, and was able to cross-examine two members of the unanimous Commission and other witnesses presented by the State. He was not precluded from calling any witness. As one of his lately-retained witnesses was not available, an

affidavit was introduced in lieu of live testimony.11 Floridas procedure on its face and as applied in this case fully complied with the federal constitution. First, the

Appellant must make a substantial threshold showing of insanity. Panetti, 551 U.S. at 949, 127 S. Ct. at 2856. After that showing the Appellant is entitled to an opportunity to be heard. Id. A procedure far less formal than a trial may be constitutionally acceptable. Id. Appellant received more than Panetti required in

Dr. James did not examine Ferguson on the issue of competency but did administer an intelligence test. Ferguson scored an 81, which is in the low average range of intelligence. This testimony had little, if any, relevance to the competency question.
11

36

this case. See Panetti, 551 U.S. at 952; 127 S. Ct. at 2858 (In light of this error we need not address whether other procedures, such as the opportunity for discovery or for the cross-

examination of witnesses, would in some cases be required under the Due Process Clause.). Appellant received a full and fair adversarial testing of the States evidence and the full

opportunity to present witnesses, including experts. Appellants schedule imposed complaints upon the regarding parties is the haste and frantic Ferguson,

disingenuous.

having retained the defense-friendly Dr. Woods nearly a year ago in anticipation of litigating a competency to be executed claim, waited nearly three weeks after his warrant was signed to even invoke the provisions of Section 922.07. Notably, prior to

challenging Fergusons competency to be executed, Ferguson filed on September 12, 2012, a successive motion for postconviction relief in state court raising time-barred claims and a motion to determine competency to proceed in his state court postconviction proceedings.12 Fergusons state postconviction claims were

summarily denied. See Ferguson v. State, 2012 WL 4760710 (Fla. Oct. 8, 2012), cert. denied, 2012 WL 4812559 (Oct. 18, 2012).

Obviously, if Fergusons counsel alleged that they had a good faith basis to believe that Ferguson was not competent to assist in his state postconviction proceedings (a higher burden than competency to be executed), counsel was aware and could have raised their claim that Ferguson was not competent to be executed at the same time. Instead of timely raising his competency to be executed claim, counsel intentionally delayed filing his request in order to delay his scheduled execution.
12

37

After

filing

his

time-barred

and

meritless

successive

state

postconviction claims, Ferguson proceeded to file a section 1983 and motion to stay in federal court challenging Floridas lethal injection protocol. Again, this 1983 action was filed before Appellant initiated a challenge to his competency to be

executed.13 The fact Fergusons attorneys filed these plainly meritless claims before initiating a challenge to his competency to be executed claim is telling. Fergusons attorneys clearly made a tactical decision to delay filing this competency

challenge in the hope it would engender confusion and delay his execution. In fact, this tactic ultimately worked in delaying his scheduled execution. Appellant was largely, if not solely, responsible for the compressed schedule imposed upon the parties in preparing for the hearing in the circuit court. See Green v. Thaler, 2012 WL

4800431, 6 (5th Cir.), cert. denied, --- S. Ct. ----, 2012 WL 4813527, 1 (2012) (rejecting similar allegations that the hearing violated Ford, noting that [p]roperly understood, Greens

argument is essentially that he should have been allowed more to call more witnesses, take more time preparing his expert, and conduct a more thorough investigation into the State experts background and credentials.). Nonetheless, despite concerns

The federal district court denied his motion to stay and this Court affirmed that ruling and denied his motion to stay. Ferguson v. Warden, Fl. State Prison, Case No. 12-15191 (Oct. 18, 2012).
13

38

about the timing of Appellants challenge to competency, he was afforded full and fair state review of his claim. After the Commission report was issued on October 1st, the case was set for a status conference on Thursday, October 4th. Fergusons attorneys believed they could be prepared for the evidentiary hearing on the following Tuesday. In fact,

originally, the case was set for Monday, but Mr. Handman stated: Monday is going to be extremely difficult for us because of our experts. Weve already reached out to them. Professor Rogers is not going to be available Monday. Hes willing to free up his time over the weekend, if thats possible, or Tuesday, but he has a prior commitment that is going to make it impossible for him to do this on Monday. So we would respectfully request that -- we agree with the State that a modest extension is warranted, but we would think that that makes sense to put it until Tuesday in order -- to let this Court hear and all of the witnesses. (V8, 1393-1394). The court specifically asked the defense: Is there any reason why that cramps your style to do a Tuesday-Wednesday hearing? Mr. Handman replied, As far as I know right now, we dont have any reason to think that we couldnt do that. (V8, 1396). The hearing was continued with the agreement of the

Florida Supreme Court and all of the parties. During the hearing itself, the circuit court was very

flexible and repeatedly asked Ferguson what else he wished to present on Fergusons hearing Ferguson moved behalf. for a While at the beginning of the ninety-day 39 stay, he failed to

request a continuance to secure the presence of so much as one witness during the hearing below. When counsel mentioned that he did not have another witness and that one of his witnesses could not be present because the hearing went forward over our

objection, the court stated in response: Over what objection? I thought we were on the telephone on Thursday and everybody agreed Tuesday and Wednesday was the date for the hearing. (CT 232). The only witness defense counsel mentioned the hearing was Dr. James and asked to keep their case open until they could obtain an affidavit from her. (CT 234). Her affidavit was read into the record but she had not examined Ferguson for competency and only tested his intelligence. Appellant asserts that he was prevented from cross-examining a member of the Commission, Dr. Alan Waldman, because the State declined to call him as a witness. However, Appellants counsel was informed of this fact during the hearing and also that Dr. Waldman was on stand-by and ready to testify on short notice. When Mr. Handman it raised only the in question of the with third a doctor for

testifying,

was

conjunction

demand

discovery of the Commission members notes, after Dr. Myers had already testified. (CT 362-363). In doing so, Appellant mentioned being deprived of the right to cross-examine Dr. Waldman to determine whether or not there was a consensus. (CT 366). In response, the assistant state attorney stated: If they want to call Dr. Waldman, they are free to 40

do so. Hes available. He can come, if theyd like to do that. Thats up to them. They can make that determination. (CT 368). At no point did Fergusons attorneys seek to call Dr. Waldman despite being informed that he was available to testify. It is disingenuous was in under any way these circumstances or to assert by that these

Appellant

deceived

handicapped

circumstances. Indeed, the original execution date was in fact continued accommodate from the October hearing 16th and to the October 23rd, largely state to

accompanying

court

deliberative process. Critically, Ferguson was not prevented from presenting any evidence in support of his claim in the court below. He was provided the full and fair adversarial testing to which he was entitled pursuant to Ford and Panetti. Appellants curious

alternative request, that this Court remand for a hearing in the federal district court, would be inappropriate. As noted, he was given a full and fair hearing on his claim in state court. Moreover, the district court judge denied his habeas petition on the merits and granted a certificate of appealability. Appellant promptly filed a notice of appeal. Jurisdiction is properly

vested in this Court to decide this claim.

41

III. WHETHER APPELLANT HAS CARRIED HIS BURDEN OF SHOWING THAT THE FLORIDA COURTS COMPETENCY DETERMINATION WAS BASED UPON CLEARLY ERRONEOUS FACTUAL FINDINGS? The question of Appellants competency to be executed is not a close question in this case. It was not a close question for the Commission psychiatrists, the Eighth Judicial Circuit Court, or, the Florida Supreme Court, which unanimously affirmed the finding of competency on appeal. Given the substantial deference due to the state courts factual finding under the AEDPA,

Appellants claim need not long detain this Court. See Rutherford v. Crosby, 385 F.3d 1300, 1306-1307 (11th Cir. 2004)( The

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.) (citing

2254(e)); Mansfield v. Sec'y, Dept. of Corr., 679 F.3d 1301, 1309 (11th Cir. 2012) (same). Indeed, Appellants argument is plainly meritless. Appellant has so parsed the Eighth Judicial Circuit Courts order he makes it appear that it was a close question for the state court below. It was not. The court held that Appellant failed to meet either the clear and convincing standard or even the lesser preponderance standard in establishing his

incompetence. In fact, the court not only found that Appellant had failed to meet his burden, but that the record conclusively supported the conclusion that Appellant was sane to be executed.

42

(V16,

2738-2757

at

2755).

Ample

evidence

supports

this

conclusion. While the court did find that Appellant had been diagnosed a paranoid schizophrenic, the court clearly and unambiguously credited the state experts on the question of Appellants

competency. During the Commission evaluation itself, Appellant exhibited a clear, unambiguous, and rational understanding of the nature of the penalty imposed, and why it had been imposed upon him. Ferguson discussed his execution, acknowledged he would die, and recognized that he would be the first individual to be

executed with the substitution of a new drug in the protocol. Corrections personnel also testified that Ferguson spontaneously volunteered that this was his first warrant in 35 years and rationally discussed the burial of his remains. The Commission reviewed a large amount of Department of Corrections records going back to 1978. The Commission also spent 90 minutes evaluating Ferguson. Fergusons responses to the Commissions inquiries were logical, coherent, and goal directed. Dr. Myers testified: For 90 minutes he engaged in regular

conversation with us. He understood every question we asked him. He gave coherent logical responses. His speech was normal. It wasnt real fast. It didnt get disconnected. He had no sign of a thought disorder, which is a common symptom in schizophrenia. But we saw no signs of that. (CT 256).

43

Thus,

in

the

evaluation

itself,

Ferguson

clearly

demonstrated to the Commission that he knew he was set to be executed and why he was to be executed, having been convicted of eight murders. Ferguson discussed his death and, notably, did not assert that he could not die or that he would act with God to foil a Communist conspiracy as Ferguson had apparently reported to Dr. Woods. Fergusons argument that the Commission members spent inadequate time evaluating Ferguson or reviewing records is without merit. Dr. Werner testified that the Commission members interviewed Ferguson for 90 minutes, which is about three times the amount of time a doctor would ordinarily take to evaluate an individual for a psychiatric diagnosis. (CT 453). Dr. Werner testified that if the Commission members thought they needed more time to reach a conclusion, they would have asked for more time. If they could not have reached a conclusion within a reasonable degree of medical certainty, we would not have done it. (CT 481-482). Similarly, Dr. Myers testified that he has seen, evaluated and diagnosed thousands of schizophrenic individuals since

medical school in the 1980s to present. (CT 246). Dr. Myers testified that a clinical interview to assess someone with

schizophrenia can take thirty or forty-five minutes, but, that generally you can within discern if someone (CT 246). is To an untreated board

schizophrenic

minutes.

obtain

44

certification a psychiatrist is expected to conduct a thorough evaluation and come up with a diagnosis and plan within 30

minutes. (CT 248). Appellants complaints regarding the failure to administer any tests to Ferguson are not persuasive. Dr. Myers stated that he had brought testing material for malingering and measuring other cognitive criteria with him prior to the interview. There were, however, no clinical indications for administering any of those tests. (CT 261-262). Dr. Werner also agreed that none of the Commission members thought that additional testing was

necessary. (CT 468-469). Indeed, the question of Fergusons competence or sanity to be executed was clearly not a close question for the Commission members in this case. As Dr. Myers explained, the Commission members conferred and there were no differences of opinion

amongst them. Everyone felt the same way. Dr. Myers explained: It was clear to me that there was no evidence of any significant mental illness. He was -- his thoughts and thinking were clear. He was of -- at least average intelligence. He was not having any indication of any psychotic symptoms. He was functioning well in his day-to-day life. The officers we talked to described him as doing well, not showing any bizarre behavior. So there was just simply no credible evidence that this -- that he had any major mental illness of any kind going on. (CT 262). The Department of

45

Corrections revealed that he was on S-1 [no noted or observable mental health issues] status since 2001 and the last indication of any mental health symptoms had been in 1995. Ferguson has had regular reviews for years on end and they are coming back normal year after year. (CT 293, 315). Dr. Werner also testified that Defendants Exhibit number 4 (the Commission report) reflected the unanimous opinion of the Commission; that Mr. Ferguson has the mental capacity to

understand the fact of his execution and the reason for it. Ferguson had a rational understanding of his impending

execution and the reasons for it. (CT 515). In the course of her career, Dr. Werner had occasion to encounter hundreds, if not over a thousand, people with paranoid schizophrenia. (CT 471). Dr. Werner was also aware that some experts had diagnosed Mr. Ferguson as schizophrenic in the past. (CT 471). Dr. Werner

testified that she did not believe that the Ferguson suffered from a major mental illness because his reported hallucinations were not consistent with symptoms of schizophrenia, and his

reported daily living routines and functioning were inconsistent with the disorganized component of schizophrenia. Dr. Werner

explained that schizophrenics dont function well. (CT 497). Dr. Werner observed no signs of schizophrenia in Ferguson when she and the other Commission members examined him. (CT 514-515). Dr. Werner acknowledged that Ferguson had expressed to

46

mental health personnel that he was the Prince of God over the decades. However, Ferguson did not tell the Commission members of any special powers he allegedly possesses as the Prince of God. (CT 501). Dr. Werner and Dr. Myers noted an inconsistency in that he told one of the defense experts he was anointed at the age of twelve, but, told members of the Commission he was anointed at the age of 22. Dr. Werner thought that being anointed the Prince of God would be a significant event the defendant would remember. (CT 497-498, 500). Regardless, Ferguson clearly realized that his execution will result in his death. Dr. Waldman, the third member of the Commission, specifically asked if the defendant knew that when he would be executed, he would die. The defendant confirmed that he did. (CT 463). There is no evidence to suggest that the Department of Corrections members intentionally selected or limited information for the Commissions review. When they arrived at the prison, the Commission members told DOC personnel they wanted records going pretty far back, and, they brought records dating back to 1978 which the doctors thought was sufficient. The doctors did not note any gap in the Corrections history they were provided. (CT 298). In addition, the state circuit court noted that the records and testimony from Department of Corrections personnel supported the conclusions of Dr. Myers and Dr. Werner. Fergusons

47

demonstrated ability to communicate, meet his daily needs and otherwise lead a normal life within the Department of Corrections clearly indicates he has the capacity to perceive and respond appropriately to his environment. See, e.g Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir. 1991) (on competency to stand trial, court noted a if defendant his mental lacks the requisite precludes and/or rational him from

understanding perceiving

condition

accurately,

interpreting,

responding

appropriately to the world around him.). In fact, not only do the Corrections personnel document the complete absence of

unusual or bizarre behavior for more than a decade, but two witnesses testified directly to the question of Fergusons

understanding of the nature of the sentence about to be imposed. (CT 405-410). Notably, the defendant at no time expressed any indication that he was the Prince of God, or that there were no concerns about his burial plans and remains because he could not die. (CT 411-413). Dr. Myers did not discount earlier diagnoses of

schizophrenia, but noted that Ferguson does not meet the criteria for schizophrenia now. (CT 300). Ferguson is either a very lucky man who had a remission of his schizophrenic illness, which is unusual, -- in fact, I wish that was something that happened more often -- or he successfully malingered mental illness back then, and people were led to believe he did have schizophrenia when he

48

didnt. (CT 300). Dr. Myers explained a mental illness, especially

schizophrenia, requires impairment or disruption in his daily life and results in very disorganized behavior. The defendant, however, stated that the alleged hallucinations do not bother him, and he functions well in his daily life. The hallucinations or delusions he reports now, even if true, do not impair his daily life. (CT 315). Now, Dr. Myers did not think Ferguson was genuinely reporting, but even if true, it does not denote a schizophrenic illness because schizophrenia is a very

disorganized and disruptive illness. We have none of that in this case. (CT 315). And, even if the beliefs or symptoms

Ferguson was expressing now were real, they are not affecting his mental capacity. (CT 309-310). Dr. Werner was also aware that some experts had diagnosed Mr. Ferguson as schizophrenic in the past. (CT 471). Dr. Werner testified that she did not believe that the defendant suffered from a major mental illness because his reported hallucinations were not consistent with symptoms of schizophrenia, and his

reported daily living routines and functioning were inconsistent with the disorganized component of schizophrenia. (CT 497). Dr. Werner observed no signs of schizophrenia in Ferguson on the day that she examined him. (CT 514-515). Dr. Woods attempted to explain Fergusons complete lack of

49

observable

symptoms

as

some

type

of

geriatric

schizophrenic

response. However, Dr. Woods acknowledged the last observable signs of mental impairment from the DOC were from 1995 when he was treated for mental illness. (CT 634). This was seventeen (17) years ago when Ferguson was 47. Thus, being elderly cannot in anyway explain Fergusons complete lack of schizophrenic symptoms for the past 17 years, the past twelve of which he has not taken any antipsychotic medication. As Dr. Myers explained, a serious illness like schizophrenia does not disappear and then just

reappear. (CT 298). Defense expert, Dr. Rogers, who conspicuously rendered no opinion on Fergusons competency to be executed, appeared to contradict in some respects the testimony of Dr. Woods. Dr.

Rogers had some question about the legitimacy of those -- those reported experiences in referring to Appellants past reports of hallucinations involving dogs coming out of his cell wall and snakes. (CT 214). Ferguson told Dr. Rogers he had a vague

recollection of those hallucinations in the past, maybe, for example, Rogers the late eighties, those but Ferguson wasnt of sure. Dr.

discounted

past

assertions

hallucinations,

stating: So that had, in my mind, no bearing on his current clinical presentation. (CT 223). Dr. Woods, who has exclusively only been called to testify on behalf of defendants in criminal cases (CT. 68, 76), expressed no such reservations about any of

50

Appellants past or current claims of a veritable cornucopia of hallucinations and delusions. Appellant cites Dr. Woods and his testimony that Ferguson has a cavum septum pellucidum (CSP) in support of his conclusion that Ferguson is schizophrenic. (CT 80). However, Dr. Woods

admitted that the radiology report from Shands Hospital upon which he relied was accompanied by a doctors conclusion that Fergusons brain was intact. The only exception was that the imaging showed a very small cavum septum pellucidum. (CT 81). On cross-examination, Dr. Woods acknowledged that a 2001 American Journal of Psychiatry article reported a study which concluded that a small CSP is a normal variant and does not suggest any correlation to schizophrenia. (CT 84-85). Dr. Enrique Suarez explained that schizophrenia is a very disarming illness: It disorders a persons life in their family, education and work. (CT 531-532) While Dr. Suarez did not have the ability to examine Ferguson recently on the question of his sanity to be executed, in Dr. Suarezs 2004 examination, Ferguson readily expressed a wide variety of hallucinations and delusions with different sensory modalities which were as extreme as Ive ever experienced [in] some of those people who feign. (CT 532). If Ferguson believed what he was telling Dr. Suarez, he would be extremely psychotic and you would expect behavioral

manifestations. Ferguson told Dr. Suarez he experienced these

51

hallucinations on a daily basis. (CT 533). Fergusons reports to the experts during this hearing were different, some have the same delusion, Prince of God, but some of the hallucinations are completely different, as well as the frequency of those

hallucinations. Dr. Suarez explained that these inconsistencies are important: It is more difficult to keep fabrications

consistent over time. (CT 534). Dr. Suarez reviewed additional collateral data and records since 2004 to the present date. Dr. Suarez testified that the defendants reported symptoms were incompatible with

schizophrenia in 2004 when he examined Petitioner, and that he has been malingering. Dr. Suarez did not admit that Appellants prior malingering was irrelevant to the current question before the court as Appellant claims in his brief. While it is certainly not dispositive, Suarez explained: If Ferguson has in the past malingered a number of times its pretty good data to say its a high probability behavior that he utilizes when hes in these situations. (CT 562-563). In reviewing Fergusons records, Dr. Suarez acknowledged that a number of doctors have found Ferguson incompetent but little by little, I guess by around 1978, quite a significant number began to find him competent. Not only competent, but exaggerating or malingering. (CT 553). Dr. Suarez found it significant that some of the doctors who initially found him

52

competent changed their opinions. Dr. Suarez testified: Well, people in the forensic area tend not to like to change their opinions, because everyone marries themselves to the opinions and they dont want to change and be perceived as not very grounded . . . (CT 553). But a lot of them did. And its because, I think, of the volume of contradictions and inconsistencies and

hallucinations that are just over the top. And inconsistencies -early on, his presentation was completely different from what he was reporting later on. (CT 554). Ferguson has not been prescribed any antipsychotic

medication since 2001, and, has had no signs or symptoms of a relapse. (CT 536). Dr. Suarez noted that according to Department of Corrections records, there is no bleed-through into his daily life of his delusions or hallucinations. (CT 536-537). Ferguson is described as cordial and compliant. (CT 538). There is a wide range of Fergusons institutional life in writing and there is no mention of Prince of God or supernatural powers. (CT 539).

Notably, on July 25, 2011, Ferguson requested legal material relating to appeals and appellate procedures. Dr. Suarez observed that, again, this is reflective of logical, coherent, and goaldirected communication.14 (CT 540-542, States Exhibit 4).

Dr. Woods acknowledged that he reviewed grievances relating to Fergusons daily life in the correctional setting. He acknowledged that they were goal-directed and that Ferguson could certainly get his point across. There were no grievances or complaints or correspondence he viewed in which Ferguson references he is the Prince of God. (CT 98).
14

53

The experts called by the State were supported by Department of Corrections personnel who testified to the complete absence of any symptoms or signs of mental illness on the closely monitored and supervised death row environment. The mental health counselor from death row testified that Petitioner has been classified as the highest functioning mental status, S-1, since 2001 and that in her seven years on death row she has neither observed any signs or symptoms of mental problems from Ferguson nor have no such signs or symptoms have been reported to her from any source. (CT 424-28). See Wright v. Secy, Dept. of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002) (In rejecting a competency to stand trial claim, this Court noted that [t]he unrebutted evidence at trial is that in the days and weeks leading up to the trial Wright behaved in a perfectly normal fashion, related well to others, and had no problem at all communicating with them.). Additional Corrections personnel were called to testify to corroborate the fact that Appellant has not exhibited any signs or symptoms of mental illness in more than a decade and that Appellant had rationally discussed his impending execution and the burial of his remains. (CT 336-337, 405-420). Dr. Woods thought that because Ferguson was a paranoid

schizophrenic he would be unlikely to share his hallucinations with Corrections personnel. However, perhaps in an unguarded

moment, Dr. Woods admitted: Theres -- unless its specifically

54

a mental health person theres no reason to. (CT. 47). That is precisely the point. Fergusons behavior and communications are completely normal when operating in his everyday life, and, only appear abnormal or aberrant when talking with a mental health professional. The Prince of God delusion which Dr. Woods

testified that Ferguson so profoundly believes, never makes an appearance in his everyday life or communications on death row. Dr. Myers and Dr. Suarez noted this rather glaring inconsistency and its obvious implication during the hearing below. (CT 311, 539). While the circuit court charitably found that Appellant had a diagnosed mental illness, the court clearly credited the Commission psychiatrists and their conclusions regarding

Fergusons ability to function and understand the nature and effect of the punishment imposed upon him. In sum, it is very telling that having retained the defense-friendly Dr. Woods more than a year ago, Ferguson has presented little evidence that he currently suffers from any mental disorder. Counsel failed to present a single witness who could document any unusual or

bizarre behavior on the part of Ferguson. The fact that neither the attorneys nor Dr. Woods sought out, or presented, any

collateral information from people who have contact with Ferguson speaks volumes about the merit of the instant claim. In sum, Appellant has not come close to meeting his burden

55

under

the

AEDPA

of

showing

that

the

state

courts

factual

findings are incorrect by clear and convincing evidence. Indeed, even if review were de novo, the evidence clearly and

conclusively establishes Appellants competence to be executed. As Dr. Myers and Dr. Suarez noted, the records from DOC reflect a very long period, nearly twenty years, without any signs or symptoms of a mental disease, which would be extremely unusual for a paranoid schizophrenic. The greater weight of the evidence, both expert and lay witness, suggests that Ferguson is not

currently a paranoid schizophrenic, and, suggests his earlier diagnosis may well have been erroneous. Nonetheless, as

recognized by the lower court, even if Ferguson was correctly diagnosed as a paranoid schizophrenic, nothing in his present condition or presentation indicates that he is not competent to be executed. Accordingly, this claim must be denied. IV. THE STAY SHOULD BE LIFTED. Appellant deliberately delayed raising his sanity-to-be-

executed claim in state court in an obvious attempt to delay execution of his sentence. As every reviewing court to address the question of Fergusons competency to proceed since 1977 has rejected the claim, it was a claim with little chance of success on the merits. And, predictably, this latest challenge, supported only by the testimony by a single 56 out-of-state doctor, was

soundly rejected by the state courts below. Notably, certiorari review has been denied by the Supreme Court on his competency to be executed claims under the impending warrant. Appellants last-minute machinations resulted in a hasty denial of habeas relief and the grant of a certificate of

appealability from Judge Hurley in the Southern District -- when the execution was only moments away.15 This Court, after earlier vacating a stay and noting of that Appellants on the claim merits, lacked a

substantial

likelihood

success

applied

Eleventh Circuit Rule 22-4 to grant a stay once the district court granted a certificate of appealability. The stay was

entered at literally the eleventh hour on October 23rd, with the State having marshaled its resources to carry out Appellants sentence and the victims family members present, awaiting the culmination of some thirty years of litigation. No further delay is warranted. This Court has explained that a a stay of execution is equitable relief which a court may grant only if the moving

The circumstances surrounding the district courts action were unusual to say the least. Shortly before Fergusons scheduled execution at 6:00 p.m., counsel for Respondent was notified by Fergusons counsel that they had District Court Judge Daniel Hurley, Southern District of Florida, on the phone for a hearing on Fergusons emergency motion for a stay of execution. Opposing counsel provided no advance notice of this hearing to Appellee and no court reporter was present. Judge Hurley had, apparently, recently denied Fergusons petition for writ of habeas corpus, but issued a certificate of appealability (COA) on two issues (although this order had not been provided to Respondents counsel as of the time of the hearing.
15

57

party shows that: (1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011) (internal quotation marks omitted). United States Circuit Judge Carnes, in his concurring opinion, noted in vacating the earlier stay granted by the district court: We are also mindful, as Judge Godbold noted nearly thirty years ago, [e]ach delay, for its span, is a commutation of a death sentence to one of imprisonment. Ferguson v. Secy, Dept. of Corr., 2012 WL 5233540, 2-3 (11th Cir. 2012) (quoting Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983) (additional citation

omitted)). It is time for Fergusons sentence to be carried out. Fergusons claim that he is incompetent to be executed was fully and fairly disposed of in state court below. The equities in this case tilt decidedly against Ferguson in favor of the State and the victims family members. Accordingly, the State respectfully requests that this Court immediately lift the stay of execution it entered on October 23, 2012. See Gomez v. United States Dist. Court, 503 U.S. 653, 654 (1992) (Equity must take into

consideration the States strong interest in proceeding with its judgment and Harris obvious attempt at manipulation.); Hill v. McDonough, 464 F.3d 1256, 1259 (11th Cir. 2006) (refusing to

58

grant a stay and discussing strong equitable principles against a stay). CONCLUSION Based on the foregoing, Appellees respectfully request that this Court AFFIRM the District Courts Order denying Appellants petition for writ of habeas corpus and immediately lift the Stay of Execution. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL OF FLORIDA s/ Scott A. Browne SCOTT A. BROWNE Assistant Attorney General Florida Bar No. 0802743 scott.browne@myfloridalegal.com capapp@myfloridalegal.com s/ Stephen D. Ake STEPHEN D. AKE Assistant Attorney General Florida Bar No. 014087 Stephen.ake@myfloridalegal.com capapp@myfloridalegal.com 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 COUNSEL FOR APPELLEE

59

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the typevolume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13,234 words, excluding the corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, and certificates of counsel. CERTIFICATE OF SERVICE I HEREBY has CERTIFY been that a true by and correct copy of the to

foregoing

furnished

electronic

transmission

Christopher T. Handman [chris.handman@hoganlovells.com]; Benjamin J.O. Lewis [ben.lewis@hoganlovells.com] and E. Desmond Hogan

[desmond.hogan@hoganlovells.com], on this 5th day of November, 2012.

s/ Scott A. Browne COUNSEL FOR APPELLEE

60