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CAPITAL CASE—EXECUTION TEMPORARILY STAYED No. 12-15422 IN THE

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

*Counsel of Record Dated: November 6, 2012

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION AND SUMMARY OF ARGUMENT ........................................1 ARGUMENT .............................................................................................................3 I. THE FLORIDA SUPREME COURT UNREASONABLY APPLIED CLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUND JOHN FERGUSON COMPETENT TO BE EXECUTED ........................................3 A. The Florida Supreme Court Unreasonably Declined To Apply Panetti To Ferguson’s Identical Claim.........................................................................3 B. Assuming That The Florida Supreme Court Attempted To Apply Panetti, Its Application Was Unreasonable .............................................................6 C. On De Novo Review, This Court Should Find Ferguson Incompetent To Be Executed..............................................................................................12 1. The State Court Unreasonably Applied Federal Law, Triggering De Novo Review ............................................................................12 2. Ferguson Is Incompetent To Be Executed .....................................14 II. THE FLORIDA SUPREME COURT’S COMPETENCY CONCLUSION WAS BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS ...........................................................................................................18 THE FLORIDA SUPREME COURT UNREASONABLY APPLIED PANETTI’S PROCEDURAL REQUIREMENTS ........................................21 A. The Florida Supreme Court Unreasonably Applied Clearly Established Supreme Court Law When It Summarily Approved Florida’s Competency-To-Be-Executed Procedure.................................................21 B. This Court Should Find Ferguson Incompetent To Be Executed ............28 i

III.

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IV.

THE STAY SHOULD BE KEPT IN PLACE...............................................29

CONCLUSION........................................................................................................30

ii

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TABLE OF AUTHORITIES Page(s) CASES Coe v. Bell, 209 F.3d 815 (6th Cir. 2000) ................................................................................5 Ford v. Wainwright, 477 U.S. 399 (1986).....................................................................................passim Greene v. Upton, 644 F.3d 1145 (11th Cir. 2011) ........................................................................4, 6 Madison v. Commissioner, Ala. Dep’t of Corrs., 677 F.3d 1333 (11th Cir. 2012) ..........................................................................13 McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252 (11th Cir. 2009) ......................................................................2, 13 Medina v. State, 690 So. 2d 1241 (Fla. 1997) ...............................................................................25 Miller-El v. Cockrell, 537 U.S. 322 (2003)............................................................................................12 Missouri v. Jenkins, 515 U.S. 70 (1995)..............................................................................................12 Panetti v. Dretke, 401 F. Supp. 2d 702 (W.D. Tex. 2004) ................................................................9 Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006) ................................................................................9 Panetti v. Quarterman, 551 U.S. 930 (2007).....................................................................................passim Provenzano v. State, 760 So. 2d 137 (Fla. 2000) ..........................................................................passim Putman v. Head, 268 F.3 1223 (11th Cir. 2001) ..............................................................................4 iii

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Revette v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 740 F.2d 892 (11th Cir. 1984) ............................................................................11 Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)......................................................................................23, 26 Sweet v. Tennis, 386 F. App’x 342 (3d Cir. 2010) ........................................................................13 United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) ..........................................................................30 University of Texas v. Camenisch, 451 U.S. 390 (1981)..................................................................................2, 10, 11 Waldrop v. Jones, 77 F.3d 1308 (11th Cir. 1996) ............................................................................13 Williams v. Taylor, 529 U.S. 362 (2000)..............................................................................................7

FEDERAL STATUTE 28 U.S.C. § 2254(d)(1)...............................................................................................6 28 U.S.C. § 2254(d)(2).......................................................................................12, 18

STATE STATUTE Fla. Stat. § 922.07 ..............................................................................................22, 27

RULES 11th Cir. R. 22-4(a)(7) .............................................................................................29 Fla. R. Crim. P. 3.811 ........................................................................................25, 27 Fla. R. Crim. P. 3.812 ..............................................................................................22 iv

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CONSTITUTIONAL PROVISIONS U.S. Const. amend. VIII....................................................................................passim

v

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No. 12-15422 IN THE

United States Court of Appeals for the Eleventh Circuit
JOHN FERGUSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. On Appeal from the United States District Court for the Southern District of Florida, No. 1:12-cv-23817-DTKH District Judge Daniel T. K. Hurley REPLY BRIEF FOR PETITIONER-APPELLANT JOHN FERGUSON INTRODUCTION AND SUMMARY OF ARGUMENT The State’s response brief confirms that this is no ordinary habeas challenge. What makes this appeal unique is that the State has little interest in defending on the merits. It certainly has no appetite for defending the State courts’ underlying factual findings; to the contrary, it largely spins a narrative that squarely conflicts with those findings. Nor does the State muster much enthusiasm for defending the Florida Supreme Court’s legal rule. That is why, even though the Florida Supreme Court wrongly relied on its outdated pre-Panetti decision in Provenzao at every 1

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turn, the State never cites—not once—that decision. Nor does the State try to distinguish the standard for assessing competency that the Fifth Circuit applied— and the Supreme Court rejected—in Panetti with the standard that the Florida Supreme Court used here. That is no oversight; the two standards are virtually identical and confirm that the decision below unreasonably applied Panetti. What the State instead does is sow confusion. It does so at the outset by conflating the two distinct prongs under AEDPA, suggesting that deference is due the Florida Supreme Court when analyzing not just factual challenges but also “unreasonable application” challenges as well. But this Court’s decision in

McGahee v. Alabama Department of Corrections, 560 F.3d 1252 (11th Cir. 2005), rejects that view. The State elsewhere insists that this Court has already resolved the appeal by having vacated the preliminary injunction. But that, too,

misapprehends what the law is. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). And the State cynically blames Ferguson’s counsel for what it itself concedes was a “compressed schedule,” Resp.Br.38, even though it never disputes that Ford claims like this can be raised only after a death warrant issues. This Court should reject the State’s cynical gambits. It should instead hold that the Florida Supreme Court unreasonably applied Panetti in finding Ferguson—a man who genuinely thinks he is the Prince of God and faces no mortal fate from the execution—competent to be executed. 2

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I.

THE FLORIDA SUPREME COURT UNREASONABLY APPLIED CLEARLY ESTABLISHED FEDERAL LAW WHEN IT FOUND JOHN FERGUSON COMPETENT TO BE EXECUTED. The Supreme Court in Panetti rejected a competency-to-be-executed

standard that asked only whether Scott Panetti was aware “that he [is] going to be executed and why he [is] going to be executed.” Panetti v. Quarterman, 551 U.S. 930, 956 (2007) (internal quotation omitted). The Florida Supreme Court applied a competency-to-be-executed standard that asked only whether John Ferguson was “aware of the punishment [he is] about to suffer and why [he is] to suffer it.” R.E.126a (internal quotation omitted); see id. at 125a, 128a (same). By applying to Ferguson the standard found unconstitutional in Panetti, the Florida Supreme Court unreasonably declined to apply clearly established Supreme Court law to Ferguson’s competency challenge. This Court should issue a habeas writ. A. The Florida Supreme Court Unreasonably Declined To Apply Panetti To Ferguson’s Identical Claim.

When the Florida Supreme Court assessed Ferguson’s competency to be executed by examining his awareness of “the State’s announced reason for a punishment and the fact of an imminent execution,” 551 U.S. at 959, it reinvigorated the very standard the Panetti Court had struck down. After Panetti, assessing a condemned inmate’s awareness of “the punishment they are about to receive and the reason they are to receive it,” R.E.128a, is not enough; they must also assure that the inmate sufficiently “comprehend[s] the meaning and purpose of 3

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the punishment to which he has been sentenced.” Panetti, 551 U.S. at 960. Where an inmate “suffers from severe, documented mental illness that is the source of gross delusions preventing him from comprehending” the meaning and purpose of his punishment, id., he may not constitutionally be put to death. The Florida Supreme Court waved off Panetti. It applied its outdated, and unconstitutional, standard to Ferguson’s competency claim. And it made no effort to assure that Ferguson—who thinks he is to be executed because the prison guards are jealous of his special role as the Prince of God, and who looks forward to his triumphant bodily return to earth after death—sufficiently “comprehend[ed] the meaning and purpose of the punishment to which he has been sentenced.” When the Florida Supreme Court applied the very standard the U.S. Supreme Court rejected in Panetti, it “unreasonably decline[d] to extend[] [the] legal principle[s]” articulated in Panetti to the facts of this case, making habeas relief appropriate. Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2011). The State is constrained now to defend the Florida Supreme Court’s indefensible lead. It can do so only by answering Ferguson’s argument in halfmeasures. The State argues, for example, that Panetti could not have altered the governing competency standard because Panetti was an AEDPA case in which the Supreme Court set out to evaluate whether the Fifth Circuit had unreasonably 4

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applied clearly established federal law. Resp.Br.24-25. That is correct only as far as it goes—which is not far. The Supreme Court granted certiorari in Panetti to correct a recurring error committed by lower courts applying Ford v. Wainwright, 477 U.S. 399 (1986), to inmates’ competency-to-be-executed claims. Until

Panetti, courts generally had applied Ford narrowly, holding that an inmate could be executed as long as he was aware of his impending execution and the reason that the State gave for inflicting that punishment. See, e.g., Coe v. Bell, 209 F.3d 815, 821-822, 826-827 (6th Cir. 2000). The Florida Supreme Court was among them: In Provenzano v. State, 760 So. 2d 137 (Fla. 2000), it held that “the Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it.” Id. at 140.1 The Fifth Circuit in Panetti applied the same standard. And when the Supreme Court granted certiorari and “reject[ed] the standard followed by the Court of Appeals,” the Supreme Court held that Ford required more. Panetti, 551 U.S. at 960. Following Panetti, precedents applying the factual awareness

standard are no longer good law. That includes Provenzano. But the Florida

1

Justice Anstead in his Provenzano dissent understood what the Florida Supreme Court’s standard lacked: As he pointed out, “[i]t is impossible to conclude in this case that Provenzano has a rational understanding of the reason he is to be executed when we have a judicial finding based on upon clear and convincing evidence that Provenzano genuinely believes as a matter of fact that he really will be executed because he is Jesus Christ.” Provenzano, 760 F.2d at 143. 5

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Supreme Court relied directly and repeatedly on the Provenzano test on each and every page of its analysis of Ferguson’s competency claim. See R.E.124a-128a; Ferguson Br.33-34. The State offers no response to this point. Instead it quotes at length the Florida Supreme Court’s own opinion, in which the court professed that Panetti “explicitly declined to extend its ruling to all competency proceedings” and “does not alter our decision in Provenzano.” Resp.Br.26 (citing R.E.126a, R.E.127a). We have explained (Ferguson Br.36-37) why both of those statements are meritless. The State makes no further attempt to defend the Florida Supreme Court’s conclusion, other than block-quoting it. Panetti requires more than Provenzano. And when the Florida Supreme Court repeatedly invoked and relied on Provenzano to hold Ferguson competent to be executed, it unreasonably declined to apply clearly established Supreme Court precedent to Ferguson’s case. 28 U.S.C. § 2254(d)(1); Greene, 644 F.3d at 1154. B. Assuming That The Florida Supreme Court Attempted To Apply Panetti, Its Application Was Unreasonable.

The Florida Supreme Court cited and applied Provenzano on every single page of its analysis. R.E. 124a, 125a, 126a, 127a, 128a. And the State? The State does not cite Provenzano so much as once (which is why it cannot be found in the State’s Table of Authorities).

6

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Instead, the State maintains that the Florida Supreme Court conducted its competency inquiry “explicitly in conformance” with Panetti, Resp.Br.24, because the Florida Supreme Court defined the issue before it as “whether there is competent, substantial evidence to support the trial court’s determination that Ferguson’s mental illness does not interfere with his rational understanding of the fact of his pending execution.” R.E.124a (emphasis added). We explained in our opening brief the three reasons why that one sentence does not rescue the Florida Supreme Court’s constitutionally deficient ruling. Ferguson Br.37-41. To review: [1] That sentence is not even the Panetti standard. It is the old “factual awareness” standard, decorated with the words “rational understanding.” The Florida Supreme Court did not even cite Panetti for it. Ferguson Br.38. [2] The Florida Supreme Court’s actual analysis (at R.E.125a-128a) applied the old Provenzano standard and disclaimed Panetti’s application. Id. And [3] even taking the most charitable reading possible of the Florida Supreme Court’s opinion—meaning that one would have to ignore the entire final half of the opinion—the decision unreasonably applied Panetti to the facts as the Florida Circuit Court found them. Id. at 38-41. A state court’s decision “involves an unreasonable application of clearly established federal law if the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407 (2000). Even if we assume (against the 7

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Florida Supreme Court’s own protestations) that the Florida Supreme Court identified Panetti’s standard as the “correct governing legal rule,” and even if the court understood (against all available textual evidence) that for its analysis to comport with that standard it must take Ferguson’s delusional thinking into account, the next question becomes whether it reasonably applied this standard to the facts of Ferguson’s case. The answer is no. When it found Ferguson competent to be executed, the Florida Supreme Court relied on precisely two facts: “that Ferguson is aware that he has never before had a death warrant signed on his behalf and that he would be the first person to receive Florida’s current protocol of medications for lethal injections.” R.E.127a.2 These two facts establish only that Ferguson has some factual

awareness that he will soon be executed—the old Provenzano standard. Those two facts do not suggest, let alone establish, anything more. The Florida Supreme Court left off there, however. It did not attempt to take Ferguson’s delusional thinking into account. Under Panetti, it was required to. And under Panetti, Ferguson’s belief that he is the Prince of God, jailed and persecuted because he is special, who cannot be killed, and who will return to earth after death, is relevant

2

Indeed, even Ferguson’s factual awareness of the lethal injection protocol the State intends to use to execute him is colored by his grandiose delusions: Ferguson expressed to the Commission that a new lethal injection protocol was “special for him.” Tr.596-597. 8

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to whether or not Ferguson understands the meaning and purpose of his punishment. Panetti, 551 U.S. at 960. The similarities between the factual findings relied upon by the Florida Supreme Court to find John Ferguson competent and those relied upon by the Fifth Circuit to find Scott Panetti competent further expose the Florida Supreme Court’s unreasonable application of the “rational understanding” standard. Panetti

believed that Texas sought to execute him for preaching the Gospel, a delusion that went directly to his rational understanding of why he was to be executed. Panetti v. Dretke, 401 F. Supp. 2d 702, 712 (W.D. Tex. 2004). The Fifth Circuit found him competent to be executed because “[Panetti] is aware that he committed the murders; second, he is aware that he will be executed; and third, he is aware that the reason the State has given for the execution is his commission of the crimes in question.” Panetti, 551 U.S. at 956 (citing Panetti v. Dretke, 448 F.3d 815, 817 (5th Cir. 2006)). The Supreme Court reversed. Id. Ferguson believes that he is jailed, and will be killed, because the guards “know he is the prince of God and that he has the power and can control the sun.” R.110-111. He further believes that although the State will attempt to execute him, he will not die—or not die for long—because he is the “Prince of God” who cannot be killed. R.E.147a-148a; Tr.504. The Florida Supreme Court found Ferguson competent to be executed because he understands that he had never before had a 9

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death warrant signed for his execution and that he would be the first to be executed under a new protocol. Those facts fall short even of the Fifth Circuit’s

constitutionally deficient benchmark; they establish only that Ferguson is aware that he will be executed. The State does not argue that the two facts undergirding the Florida Supreme Court’s competency determination—neither of which takes Ferguson’s delusions into account—suffice under Panetti. Instead, it contends that the Florida Supreme Court’s decision was “in accordance with Panetti” because the Florida Supreme Court did not expressly “state that the Appellant’s claimed delusional belief or alleged mental illness was irrelevant to its inquiry.” Resp.Br.25. True. The court never expressly declared Ferguson’s delusions irrelevant. It just completely

ignored them in its analysis. And that is what matters under Panetti. * * * With so little to offer against the merits of Ferguson’s arguments, the State is left to argue that this Court already decided them when it vacated the District Court’s earlier stay ruling, and that “the Supreme Court declined to grant certiorari” review. Resp.Br.21. That is a breathtakingly cynical ploy—a standout amid a number of such efforts in the State’s submission. It is also flatly wrong. Emergency relief is of necessity sought, granted, and reviewed in haste. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (noting that a 10

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“preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing.”). At the preliminary-relief stage, “the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy.” Id. at 396. See Revette v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984) (preliminary-injunction ruling is “almost always based on an abbreviated set of facts,” with a “thorough review” to occur later). That is nowhere more true than in this case. The State filed an emergency motion in this Court on a Monday morning to vacate the stay of execution so that it could proceed, on schedule, the very next day. Ferguson filed an opposition that afternoon. The State filed a reply hours after that. The Court’s order vacating the stay issued just before 10 p.m. that night—and just 20 hours away from the scheduled execution. The entire process, from first submission to court decision, lasted just over twelve hours. This Court has the benefit of both parties’ best efforts now. The parties now have briefed the merits of the habeas appeal, and Ferguson has explained at length, as he has not been in a position to before, how the Florida Supreme Court unreasonably applied Panetti when it found Ferguson competent to be executed. 11

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This Court can and should review the parties’ thorough briefing and take the time it needs to conduct a searching review of Ferguson’s claims. It is not tethered to its earlier determination, nor to the Supreme Court’s mere denial of certiorari at a different stage of this case, and the State is wrong to suggest otherwise. See Camenisch, 451 U.S. at 395 (noting that “the findings of fact and conclusions of law made by a court granting [or denying] a preliminary injunction are not binding” on that court’s later determination of the merits); Missouri v. Jenkins, 515 U.S. 70, 85 (1995) (“Of course, the denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.”) (internal quotation omitted). C. On De Novo Review, This Court Should Find Ferguson Incompetent To Be Executed. 1. The State Court Unreasonably Applied Federal Law, Triggering De Novo Review.

The State repeatedly argues that the Florida Supreme Court’s competency finding is a factual conclusion entitled to deference. Resp.Br.22, 23, 27, 28.3 But because the Florida Supreme Court applied the wrong legal standard to its competency determination, no such presumption attaches.
3

The state court’s

The State cites Miller-El v. Cockrell, 537 U.S. 322 (2003), to support this proposition, and attributes to it the following quotation: “A state court’s competency determination is a finding of fact entitled to a presumption of correctness under § 2254(d)(2).” No such quotation appears anywhere in MillerEl. 12

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conclusion is reviewed de novo. McGahee v. Alabama Department of Corrections, 560 F.3d 1252, 1261 (11th Cir. 2005); Madison v. Commissioner, Ala. Dept. of Corrs., 677 F.3d 1333, 1335-1336 (11th Cir. 2012) (applying McGahee and holding that “if we determine that a state court decision is contrary to or an unreasonable application of federal law, we must undertake a de novo review of the record”).4 This Court thus should review the Florida Supreme Court’s

competency ruling “without deferring to the state court’s finding.” Panetti, 551 U.S. at 954. That task is easier here than in the usual habeas case. Ferguson accepts (and the State just as vigorously resists) the state courts’ subsidiary findings of fact, which all have overwhelming record support: Ferguson is a diagnosed paranoid schizophrenic, he is not malingering, and he is delusional. See R.E.147a-148a; Waldrop v. Jones, 77 F.3d 1308, 1316 (11th Cir. 1996) (subsidiary facts found by state trial court are presumed correct if fairly supported by the record); Sweet v. Tennis, 386 F.App’x. 342, 345 (3d Cir. 2010) (although ultimate question of whether soliciting confession violated the Constitution is a matter for independent
4

De novo review applies regardless of whether the ultimate issue is a question of law or a question of fact. McGahee, 560 F.3d at 1266, n.20. Indeed, the ultimate issue in McGahee—whether the prosecution’s explanations for striking black jurors were legitimate—was a “pure issue of fact.” Id. at 1255-56. Nonetheless, this Court held that no deference to state court findings of fact was owed, due to the state court’s unreasonable application of the relevant legal standard. 13

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federal determination, court must defer to state court fact-finding on subsidiary factual questions under § 2254(e)(1)). Thus, the task now before the Court is to determine whether those core factual findings, examined under the proper Panetti inquiry, establish that Ferguson is incompetent to be executed. They do. 2. Ferguson Is Incompetent To Be Executed.

The Florida Circuit Court made the following findings of fact: (1) Ferguson “does have a diagnosed mental illness, paranoid schizophrenia”; (2) Ferguson is “not malingering”; and (3) Ferguson’s delusion that he is the Prince of God is a “genuine belief.” R.E.147a-148a. Each finding is abundantly supported by the record. And together those findings support one conclusion: Ferguson does not rationally understand the reason for or nature of his impending execution. First, the Circuit Court found that Ferguson “does have a diagnosed mental illness, paranoid schizophrenia.” R.E.148a. In so finding, the Circuit Court found the testimony of experts “Dr. Woods and Dr. Rogers both credible and compelling as it relat[ed] to Ferguson’s documented history of paranoid schizophrenia.” R.E.147a.5 The court further concluded that it would be “inconceivable that

[Ferguson] would have been prescribed such medication in a clinical setting were
5

The State’s only retort to Woods’s “credible and compelling” testimony is to attack his record testifying for the defense and repeatedly paint him as being from “California.” Resp.Br.9, 10, 31, 32. Dr. Woods credibly refuted any bias, and the Circuit Court agreed. R.E.147a. We stipulate that Dr. Woods is indeed from California. 14

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he not diagnosed a paranoid schizophrenic.” Id. The record evidence to support this factual finding, and which the Circuit Court said it credited, is supported by over 40 years of medical records documenting Ferguson’s pervasive mental illness. See, e.g., R.2364, 2369-70, 2373, 2394, 2398, 2423, 2425, 2427, 2443, 2447, 245051, 2469-70, 2513-14, 2602 (repeatedly confirming Ferguson’s paranoid schizophrenia and his long-held “Prince of God” delusion). The Circuit Court made a factual finding that Ferguson was “not malingering.” R.E.147a. If the 40-year medical record and over 20 doctors that reached this conclusion were not enough, Ferguson was consistently medicated with antipsychotic drugs until 2001, when the drugs’ cumulative and grave physical side effects caused Ferguson to refuse medication. The Circuit Court also credited Dr. Richard Rogers’ thorough report and testimony that Ferguson is not “feigning or malingering,” R.89; Tr.178-179; R.2730, and rejected the Commission’s one-and-a-half-page report, suggesting, without the benefit of empirical tests, that Ferguson had “feigned” the psychotic symptoms he exhibited throughout his short interview. R.E.147a. The State in response cites selectively to a conclusion a few doctors reached in 1976 “that Ferguson ‘has not demonstrated any psychosis.’ ” Resp.Br.5 (quoting V10, 1773). The State also continues to maintain, in the face of the state courts’ factual findings, that Ferguson has what the State characterizes as a “significant 15

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history” of feigning mental illness. Resp.Br.6; see also id. at 28-29. Enough. The State must, at long last, accept the state courts’ factual findings. Ferguson is not malingering. Third and finally, the Circuit Court found that Ferguson’s “Prince of God” delusion is “a genuine belief.” R.E.147a. This delusion is one Ferguson long has held. See R.2447, 2470, 2513-14. Ferguson believes that because he is the Prince of God, he has “special powers,” Tr.58; 60, he “can’t be killed,” Tr.58, that he is the “only one” that will sit at the right hand of God, Tr.603, that he will not be in his grave6 if you were to look for him there after his execution, Tr.599, that he has more important role than Jesus, Tr.604, and that his time in prison is to prepare him for his role as savior of the United States from communists, Tr.56-57; 60.7 As Dr. Woods also explained:
6

The State claims that Ferguson “rationally” discussed the burial of his remains. Resp.Br.13, 29, 43, 54. No, he did not. Ferguson’s only comments in the record regarding his burial—comments made directly to the Commission—are that after his body is buried, “just like Jesus, you’ll come and look and you won’t find me there” because he will “be on the right hand of God,” after which “he’d be returned to his rightful place in the world” on “earth in a human form.” Tr.599. And at no time when the death warrant was read to Ferguson did he “express in any way * * * to anybody in the room at the time * * * that he understood that he was going to die.” Tr.422.
7

The State attempts to distinguish Ferguson’s “Prince of God” delusion from all of the detail he consistently has supplied around it, contending that the Circuit Court “only” credited Ferguson’s “Prince of God” delusion. Resp.Br.32. But the State’s own witness testified that these delusions “are all – in the same” vein. Tr.504. 16

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Ferguson also believes that the Florida Correctional System knows that he is the Prince of God, and that the conviction that landed him on death row was not based upon the law. Instead, he believes it was based on two factors. The first involves a conspiracy of corrupt policemen and in retaliation for being acquitted in a prior case. The second is the Court’s attempts to prevent him from acquiring his throne as the Prince of God. He believes that the State of Florida’s attempts to prevent his ascension is the primary reason for his trial and continued incarceration on Death Row. [R.2348]. The record evidence amply supports the finding that Ferguson’s delusions are genuine, current, and deny him the ability to rationally understand his situation. The State’s response to all this is to emphasize a Commissioner’s testimony that Ferguson said that he is “going to die.” Tr.255. The State omits the rest of the same sentence. For in that same sentence, the Commissioner acknowledges that Ferguson next said that he will “come back to life.” Id. Ferguson has no rational understanding of why he is in prison, and what it means to die. The Circuit Court’s factual findings were affirmed by the Florida Supreme Court. They are substantially supported by the record. And when the correct legal standard is applied to those unchallenged subsidiary facts, the conclusion is plain: Ferguson is not competent to be executed.

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II.

THE FLORIDA SUPREME COURT’S COMPETENCY CONCLUSION WAS BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. Because the state court applied the wrong legal standard to assess

Ferguson’s competency, its final conclusion—that Ferguson is aware of his upcoming execution and the State’s purported reason for it—does not resolve the Eighth Amendment inquiry. A finding that Ferguson is aware of the fact of, and the State’s professed reason for, his upcoming execution, does not bear on whether Ferguson rationally understands the meaning and purpose of his punishment. Even if the Circuit Court’s ultimate determination was based on the correct legal standard, moreover, it was an unreasonable factual determination. 28 U.S.C. § 2254(d)(2). As we have explained, the critical subsidiary findings of fact are that Ferguson is a paranoid schizophrenic. He is not malingering. And he is delusional. Those findings are amply supported by the record. And they in no way support the conclusion that Ferguson has a rational understanding of his impending execution and the reasons for it. Quite the contrary. Dr. Woods, who met with Ferguson more than any other expert witness, explained that Ferguson “believes the execution stems from a conspiracy against him, rather than any crimes he committed, and he believes that he will not die from lethal injection but will be resurrected to sit at the right hand of God.” R.2349. Dr. Woods also explained that Ferguson believed his incarceration is “a plot by the state of Florida to prevent 18

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him from ascending to his rightful throne as the Prince of God,” R.2343, and that this is the “primary reason for his trial and continued incarceration on death row,” R.2348. Dr. Woods also notes that Ferguson said this plot “won’t work.” R.2343. The State cannot respond to the facts as the Circuit Court found them. The State also cannot explain how those facts can rationally or logically support a conclusion that John Ferguson is competent to be executed. So for the full seven pages it spends in response to this argument, it takes a different tack: It ignores the facts the Circuit Court found. It re-argues its preferred factual conclusions—the conclusions the Circuit Court rejected—with great fervor and high rhetoric. And it repeatedly crosses the line from permissible advocacy into rank misrepresentation. To take one of the most egregious examples: The State argues that its witness, Dr. Suarez, testified that Ferguson’s “reported symptoms were incompatible with schizophrenia in 2004 when he examined [Ferguson], and that [Ferguson] has been malingering.” Resp.Br.52. The State omits that Dr. Suarez himself admitted that his eight-year-old analysis was “irrelevant in assessing whether Mr. Ferguson is competent to be executed today.” Tr.563-564 (“On the question of competency, I have no opinion today.”); see also id. at 554-555 (“I can’t give you an opinion about Mr. Ferguson right now because I haven’t examined him.”), 558-559 (sustaining objection to question seeking Dr. Suarez’s current opinion). The

Circuit Court held that Dr. Suarez’s testimony “does not undermine” the 19

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conclusion that Ferguson is not malingering. R.2730; R.E.147a. The State’s lengthy dredging-up of its theory that Ferguson is malingering does nothing to undermine the Circuit Court’s factual conclusion that Ferguson is not malingering. R.E.147a. The State also repeatedly argues that Ferguson is competent to be executed based on his (disputed) awareness that he was convicted of eight murders. We answered this in the opening brief. Again: that has nothing to do with Ferguson’s rational understanding of the reason for and nature of his impending execution. Panetti, too, was aware that he had been convicted of multiple murders. That did not support the conclusion that he possessed a “rational understanding” of what was to befall him. 551 U.S. at 956, 959. The state also argues that lay witnesses observed “normal” communications by Ferguson. Resp.Br.33. We answered this in the opening brief. Again: The Supreme Court in Panetti rejected competency conclusions drawn from this exact type of evidence. 551 U.S. at 956-957. Once the State’s various excursions into its own factual universe are turned aside, the Court should return to the three key facts found by the Circuit Court: Ferguson is a paranoid schizophrenic, he is not malingering, and he currently suffers from a florid and genuine “Prince of God” delusion. R.E.147a-148a.

Ample record evidence supports those factual findings, and the Court should apply 20

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them to the ultimate competency question. The only finding—if it is indeed a finding and not a legal conclusion—unsupported by the record is that Ferguson rationally understands the reason for and nature of his impending execution. The Florida state courts unreasonably applied the facts in light of the evidence. Ferguson is incompetent to be executed. Habeas should be granted. III. THE FLORIDA SUPREME COURT UNREASONABLY APPLIED PANETTI’S PROCEDURAL REQUIREMENTS. A. The Florida Supreme Court Unreasonably Applied Clearly Established Supreme Court Law When It Summarily Approved Florida’s Competency-To-Be-Executed Procedure.

When it comes to Panetti’s procedural requirements, the State’s response— like the Florida Supreme Court decision it purports to defend—is clipped and largely beside the point. Resp.Br.35-41. Here is the point the State never joins issue with in its brief: A state court violates the clearly established law set forth in Ford and Panetti if it relies on fact-finding procedures that are “ ‘not adequate for reaching reasonably correct results,’ ” or else “appear to be ‘seriously inadequate for the ascertainment of the truth.’ ” Panetti, 551 U.S. at 954 (quoting Ford, 477 U.S. at 423-424) (internal quotation omitted). Because the State never addresses that governing legal standard, it never explains how the whirlwind process below came remotely close to satisfying it. Instead, the State devotes the bulk of its seven-page response to a series of cynical objections. First, it insinuates that perhaps Ferguson failed to present his 21

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procedural argument to the District Court. But this whiff-of-waiver suggestion is undermined by the State’s concession that Ferguson’s procedural “claim is arguably encompassed by the COA granted by the district court below.” Resp.Br.35. That is no accident; the COA encompasses the procedural issue because Ferguson squarely presented it below. In his petition, Ferguson cited Panetti in arguing that he “was entitled to a ‘fundamentally fair’ 922.07 process and Rule 3.812 hearing to determine his condition.” R.E.27a-28a (citing Panetti, 551 U.S. at 949). He explained, though, that “thanks to incalculable due process abuses, Ferguson never received that fair hearing.” Id. And he went on to

emphasize that “[t]he record presented to this Court has been severely limited by the due process violations visited upon Ferguson by persons eager to rush to impose the ‘ultimate penalty without the full measure of the deliberative process.’ ” Id. (quoting Provenzano, 750 So. 2d at 604 (Lewis, J., concurring)). Ferguson thus unmistakably raised the procedural issue below. That is why the State only insinuates waiver; it never argues it. This Court can and should reach the question. With that procedural brush cleared, we get to the State’s principal objection: that Ferguson’s complaints about the abridged and inadequate process are “disingenuous.” Resp.Br.37. But what is notable about the State’s objection is that it does not disagree that Ferguson was forced to litigate his Ford claim at a 22

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breakneck pace. To the contrary, it acknowledges that the parties were forced to litigate on a “compressed schedule.” Id. at 38. The State’s argument instead is

that Ferguson and his counsel are “largely, if not solely, responsible for the compressed schedule.” Id. By its lights, competency-to-be-executed claims are no more than a last-minute gambit designed to delay an execution. But that objection fundamentally misconceives the importance and nature of Ford claims. It misapprehends their importance because a competency-to-beexecuted claim is not some trivial makeweight; it instead lies at the heart of the Eighth Amendment. Indeed, unlike many of the categorical prohibitions on

executions that the Supreme Court has recognized in the last few years, “[t]he bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded ‘savage and inhuman.’ ” Ford, 477 U.S. at 406 (quoting 4 W. Blackstone, Commentaries *24-*25). The State’s cynical view also ignores the peculiar nature of Ford claims. Unlike any other constitutional claim associated with the capital process, they can be raised for the first time only after a death warrant is signed. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). That means that Ford claims, by their nature, will always be last-minute. Counsel who wait to bring a competency-to-beexecuted claim until after a warrant is signed are thus not being dilatory; they are following clearly established law. 23

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The State implicitly concedes as much. That is why its argument about dilatoriness turns not on a delay measured in years or even months, but in mere days. As the State sees things, it is “inexplicabl[e]” that Ferguson’s counsel waited 19 days after the warrant issued to notify the Governor that Ferguson was incompetent. Resp.Br.9. But take a look at counsel’s task list; it is quite

explicable. First there is the due diligence: identifying credible expert witnesses flexible enough to evaluate a prisoner on a moment’s notice; reviewing thousands of pages of decades’ worth of mental-health histories; researching the law; researching the State’s proposed witnesses; reviewing and mastering complex medical, psychological, and psychiatric concepts; and preparing for a multi-day hearing with live testimony from supporting and adverse witnesses.8 The only thing remarkable about all this is that it didn’t take counsel longer. As we explained in the opening brief, the last two Florida prisoners to raise a Ford claim notified the Governor a mere two or three days before the scheduled execution. Ferguson notified the Governor a full 22 days before his scheduled
8

The State makes much ado about Ferguson’s counsel having notified the State post-conviction court a few days earlier that they suspected Ferguson was incompetent. But that only proves our point. Resp.Br.37 n.12. Because counsel had not yet been able to gather any expert affidavits attesting to Ferguson’s incompetency by the time they were required to make that motion, the suggestion of incompetency was supported solely by an affidavit from an attorney who had visited him recently. That unimpressive proof is one reason the post-conviction court denied the motion. In making the Ford claim, counsel took a few additional days to establish some semblance of a record before going to the Governor with their request. 24

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execution—ten times faster than Provenzano managed. See Provenzano, 670 So. 2d at 138 (notice filed two days before scheduled execution); Medina v. State, 690 So. 2d 1241, 1244 (Fla. 1997) (three days). To suggest that counsel dawdled for 19 days is preposterous.9 Had counsel not endeavored to line up any experts before notifying the Governor, then counsel would not have had any reports or affidavits with which to challenge the Commission’s conclusions. That is critical because a prisoner is entitled to a “stay” under Florida law and a hearing on a competency-to-beexecuted claim only if he shows that there are “reasonable grounds” to suspect the prisoner is insane. Fla. R. Crim. P. 3.811(e). The State would thus force counsel into a catch-22: Either notify the Governor immediately of suspected insanity, and thus not have a record to challenge a contrary conclusion; or work quickly to develop at least some rudimentary record, but then be criticized as dilatory for waiting so long. The fact that such a catch-22 even exists underscores the absurdity of Florida’s process for evaluating competency. Contrary to the Supreme Court’s

9

The State elsewhere complains that Ferguson “waited until late in the afternoon on October 3, 2012, to file his * * * motion challenging his competency to be executed.” Resp.Br.9. Has it come to counting the number of hours? The Governor received the Commission’s report on October 1 but did not announce his adoption thereof until October 2. Counsel filed Ferguson’s 3.811 motion the very next day. Surely it cannot be “dilatory” to permit counsel 24 hours to review and draft Ferguson’s 30-page opening brief. 25

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command in Panetti, the State’s principal concern is not “ascertainment of the truth”; it is keeping the execution on schedule. Panetti, 551 U.S. at 954. The State’s timeliness objections are all the more cynical because the State then mocks Ferguson for having “only” managed to present two expert witnesses during this pell-mell process. Resp.Br.27. The State cannot have it both ways. It was a Herculean task for counsel to retain two leading experts, coordinate their separate visits to death row, and allow them time to draft expert reports all in 19 days. The State nevertheless would have counsel do all this and more in even less time. That dyspeptic view only confirms how out of step the State of Florida is with the basic fairness mandated by Panetti. The State goes on to suggest that counsel somehow invited all this. Resp.Br.38-39. Not so. When counsel agreed on October 4 to a two-day fullfledged trial on October 9 and 10, he did so because the Florida Supreme Court had already dictated that the trial court had to reach a decision by 5:00 p.m. on Monday, October 8, 2012. R.142. But counsel promptly moved to stay the execution to allow for a fairer proceeding. Indeed, before the hearing ever started, counsel filed four briefs seeking a stay of execution, including an emergency appeal to the Florida Supreme Court the day before the hearing was set to begin. The success Ferguson achieved through these motions was in name only, however, for though Florida law mandates that that “the Governor shall stay the execution,” 26

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Fla. Stat. § 922.07(1) (emphasis added), and “the judge shall grant a stay of execution,” Fla. R. Crim. P. 3.811(e) (emphasis added), each “stay” Ferguson received expired before the execution was set to occur. See R.35, R.630. The procedural problems only compounded at the hearing itself. In response to Ferguson’s claim that counsel was not able to cross-examine one of the Commission members or call additional witnesses, the State faults counsel (again) for lack of preparation. But that is just revisionist history. The State repeatedly represented that it would call Dr. Waldman, the third member of the Commission, to testify. Ferguson’s counsel did not separately seek to call Dr. Waldman because the State already had represented that it would call Dr. Waldman. It was not until the morning of the last day of the hearing that the State announced that it would not call Dr. Waldman. Unsurprisingly, Ferguson objected to this position du jour and clarified for the record that they were deceived: “So the idea that we should have * * * anticipated that they would not call Dr. Waldman, that is a misimpression I don’t want the record to reflect.” Tr.368. Notably, the trial judge said he “underst[oo]d” and would “accept your representation” that the State had told Ferguson’s counsel the day before the hearing that it would call Dr. Waldman. Id. The State’s counsel did not protest or make any suggestion that counsel was mischaracterizing the record. Id.

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At the end of the day, after all the State’s ad hominem attacks are purged, the case comes down to this question: How can Florida’s frenzied pedal-to-the metal process for ascertaining competency be harmonized with Panetti’s mandate that the competency inquiry must be structured to “ascertain[ ] the truth.” 551 U.S. at 954 (internal quotation omitted). The State never provides an answer. Nor could it. The Florida Supreme Court’s unreasonable application of Ford and Panetti warrants habeas relief. B. This Court Should Find Ferguson Incompetent To Be Executed.

Based on the Circuit Court’s subsidiary factual findings, which were affirmed by the Florida Supreme Court, Ferguson is not competent to be executed. Panetti, 551 U.S. at 954 (permitting habeas court to consider merits without deference to competency finding where Ford due process violations exist). That Ferguson is a paranoid schizophrenic, that he is not malingering, and that he is possessed of the genuine belief that he is the “Prince of God,” leads one necessarily and directly to the conclusion that he fails to rationally understand the nature or reason for his execution. In the alternative, this Court could remand to the District Court for it to render that ultimate competency determination. Because that court has not yet been given the opportunity to address the competency finding, it could take up that

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inquiry in the first instance on remand, “without deferring to the state court’s finding.” 551 U.S. at 954. IV. THE STAY SHOULD BE KEPT IN PLACE. It is well-settled that stays in this procedural posture are governed by Circuit Rule 22-4(a)(7). Yet, in urging this Court to lift the stay, the State never addresses the factors set forth in the Rule. That is particularly surprising, given that this Court’s order granting the stay and issuing a briefing schedule specifically asked the parties to address those factors. As we demonstrated in the opening brief, none of the requirements for vacating the stay under Rule 22-4(a)(7) exist here. Because the State never addresses those factors, the points are conceded. The stay should therefore be maintained. The State instead argues against the stay based on an entirely different rubric. But Rule 22-4(a)(7) was adopted by the en banc court. This panel

therefore must follow that rubric—not the standard the State would prefer. See United States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010) (only an en banc court can overturn its own precedent).

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CONCLUSION For the foregoing reasons, and those in the opening brief, the judgment below should be reversed. Respectfully submitted,

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

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

November 6, 2012

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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that the attached Reply Brief is proportionally spaced, has a typeface of 14 point, and contains 7,000 words.

/s/ Christopher T. Handman Christopher T. Handman

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of November, 2012, a true and correct copy of the REPLY BRIEF FOR PETITIONER-APPELLANT JOHN FERGUSON was served electronically on: Kenneth S. Tucker, Secretary c/o Agency Clerk Office of General Counsel Florida Department of Corrections 501 South Calhoun Street Tallahassee, FL 32399-2500 Scott A. Browne Assistant Attorney General Scott.Browne@myfloridalegal.com Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, FL 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 Attorneys for Respondent Penny H. Brill Assistant State Attorney pennybrill@miamisao.com 1350 NW 12th Ave. Miami, FL 33136 Telephone: (305) 547-0865 Stephen D. Ake Assistant Attorney General Stephen.Ake@myfloridalegal.com Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, FL 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501

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

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