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

C1 of 5

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, Hon. James E., former Florida Supreme Court

Justice;

Anstead, Hon. Harry Lee, former Florida Supreme Court

Justice;

Barkett, Hon. Rosemary, former Florida Supreme Court

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

Ferguson v. Secretary, Florida Dept. of Corr.,

Case No. 12-15422

C2 of 5

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;

Ferguson v. Secretary, Florida Dept. of Corr.,

Case No. 12-15422

C3 of 5

Harding, Hon. Major B., former Florida Supreme Court

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, Hon. Parker Lee, former Florida Supreme Court

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;

Ferguson v. Secretary, Florida Dept. of Corr.,

Case No. 12-15422

C4 of 5

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, Hon. Alan C., former Florida Supreme Court

Justice;

Toomey, Hon. Joel B., United States District Court

Magistrate Judge, Middle District of Florida;

Tucker, Kenneth S., Secretary, Florida Department of

Corrections;

Wells, Hon. Charles T., former Florida Supreme Court

Justice;

Ferguson v. Secretary, Florida Dept. of Corr.,

Case No. 12-15422

C5 of 5

Williams, Gilbert, deceased victim;

Worley, Belinda, deceased victim.

Worley, Michael, brother of deceased victim,

Yates, Barbara, former counsel for Appellees.

i

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 process will not be significantly aided by oral

argument. Further, since this is a death case, upon which

execution of sentence was recently stayed at, literally, the

eleventh hour, any delay for the sake of oral argument would be

particularly inappropriate.

ii

STATEMENT OF JURISDICTION

This is an appeal from the Order issued October 23, 2012,

denying Ferguson’s petition for writ of habeas corpus by the

United States District Court for the Southern District of

Florida. (Doc. 31). This Court’s jurisdiction rests on 28 U.S.C.

§ 1291.

iii

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 COURT’S 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 PANETTI’S PROCEDURAL

REQUIREMENTS?....................................... 35

III...................................................... 42

WHETHER APPELLANT HAS CARRIED HIS BURDEN OF

SHOWING THAT THE FLORIDA COURT’S 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

iv

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. Sec’y, Dept. of Corr.,

130 S. Ct. 3360 (2010) ....................................... 1

Ferguson v. Sec’y, Dept. of Corr.,

2012 WL 5233540 (11th Cir. 2012) ........................ 22, 58

Ferguson v. Sec’y, 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

v

Lafferty v. Cook,

949 F.2d 1546 (10th Cir. 1991) .............................. 48

Lawrence v. Sec’y, Dept. of Corr.,

2012 WL 5314113 (11th Cir. 2012) ............................ 30

Maharaj v. Sec’y, 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

Miller–El 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. Sec’y, 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

vi

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

1

STATEMENT OF THE CASE AND FACTS

The State does not accept Appellant’s 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. Sec’y,

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. Sec’y, Dept. of Corr., 130 S. Ct. 3360 (2010).1

On September 5, 2012, Florida Governor Rick Scott signed a

death warrant and scheduled Ferguson’s 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 Ferguson’s 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 Ferguson’s

Petition for Writ of Habeas Corpus, but, granted a Certificate of

Appealability on two issues:

1 A more detailed procedural history was provided by Appellee in

the section 1983 appeal denial. Ferguson v. Warden, Florida State

2

A. Whether the decision of the Florida Supreme Court

involved an unreasonable application of the Un[ited]

States Supreme Court’s decision[s] in Ford and Panetti.

B. Whether the Florida Supreme Court’s affirmance of

the state trial court was based on an unreasonable

determination of the facts in light of the evidence

presented in the state court proceeding, viz, that (a)

the petitioner has a documented history of paranoid

schizophrenia; (b) he is not malingering, and (c) he

has a fixed grandiose delusion that he is the “Prince

of God.”

(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 Wooden’s 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 intruder’s mask fell, revealing

Prison, No. 12-15191, 2012 WL 4946112 (11th Cir. 2012).

3

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 co-

defendants 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 he’d 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 Beauford’s 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 Ferguson’s 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

victim’s blood was found throughout many areas of the

4

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 Worley’s 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).

Ferguson’s Mental Health History And Prior Determinations Of

Competency

Appellant, as he has throughout these proceedings,

overstates and selectively parses the record to support his

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

1970’s; 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

5

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 patient’s 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 observable signs of

schizophrenia. Ferguson’s subsequent criminal conduct was

consistent with the antisocial personality disorder diagnosis and

not any other underlying mental impairment.

Nothing in Ferguson’s 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

6

Woods acknowledged during the competency hearing below that he

did not find anything unusual or bizarre in Ferguson’s criminal

offenses. (CT 108).

Another view of Ferguson’s extensive mental health record,

and, in the State’s view, the more accurate one, would be that

Ferguson has a significant history of feigning mental illness to

avoid legal jeopardy. See (A1-A5: State’s Exhibit 5, Plaintiff’s

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 Commission’s evaluation wherein he

acknowledged quite rationally his impending execution and the

reason for it, found Dr. Enrique Suarez credibly testified to

Ferguson’s documented history of malingering.2 (Order at 17).

At the time of the Carol City trial, defense counsel

2 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).

7

challenged Ferguson’s 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 Ferguson’s

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

court’s 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 court’s 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. Sec’y, Dept. of Corr.,

580 F.3d 1183 (11th Cir. 2009) (noting that six experts testified

regarding Ferguson’s competency to assist his counsel in his

federal habeas proceedings and this Court did not err in finding

8

Ferguson competent to proceed). Notably, after an extensive

hearing on Petitioner’s competence to proceed with his federal

habeas corpus petition in 2004, the district court rejected the

opinions of Ferguson’s 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 Court’s Order, And Appellate

Review Under The Instant Warrant

An evidentiary hearing on Appellant’s sanity to be executed

was conducted over the course of two days beginning on October 9,

2012. The recent hearing on Ferguson’s competence to be executed

in which extensive evidence was taken on Ferguson’s 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.

Petitioner’s selective and misleading recitation of facts

relating to the competency hearing in state court warrants

9

clarification. Although the warrant was signed on September 5,

2012, Petitioner’s attorneys did not file their notice to

Florida’s 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 there were any allegations which truly raised any

question regarding Petitioner’s competency or sanity to be

executed, appointed a commission of three psychiatrists to

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 Governor’s Commission of three psychiatrists issued

its report on October 1, 2012, unanimously finding Ferguson

competent; finding that to a “reasonable degree of medical

certainty” Mr. Ferguson: “1) has no genuine current mental

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

10

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 Appellant’s 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

3 Dr. Rogers acknowledged that he had only conducted a limited

review of Petitioner’s 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).

11

present during the Commission’s 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 Governor’s 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

12

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 Institute (UCI), also testified. She has a

bachelor’s degree in psychology and a master’s degree in

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

13

observations or through any referrals from security, nursing

staff, other inmates or anyone else that would require any

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, 405-

420).

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

14

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 State’s experts as to Ferguson’s 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 Ferguson’s “diagnosed” history

of paranoid schizophrenia. However, as to Ferguson’s current

state or mental capacity, the court credited the testimony of Dr.

Myers and Dr. Werner and found their testimony supported by

evidence from the Department of Corrections. 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. 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 court’s

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

15

before this Court are contained in the argument, infra.

16

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 Ferguson’s 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

17

mental illness on the part of Ferguson. Nor, had any such reports

been made to her suggesting any bizarre or unusual behavior by

Ferguson. Ferguson’s 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.

18

ARGUMENT

I-II.

WHETHER THE FLORIDA SUPREME COURT’S 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 Court’s 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 court’s 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

19

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, 1395–96,

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; the ‘contrary to’ and ‘unreasonable

application’ clauses articulate independent considerations a

federal court must consider.” Maharaj v. Sec’y, 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

20

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 v.

Crosby, 385 F.3d 1300, 1306-1307 (11th Cir. 2004) (citing §

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 Court’s

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 Court’s Ruling Was Not Contrary To, Or An

Unreasonable Application Of, Clearly Established Precedent From

The Supreme Court

Of course, this case stands in somewhat of an unusual

21

procedural posture, with this Court already having examined the

merits of Appellant’s 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.

22

Ferguson v. Sec’y, Dept. of Corr., 2012 WL 5233540, 1-2 (11th

Cir. 2012) (unpublished).4 The Supreme Court also declined to

overturn this Court’s decision to vacate the district’s court’s

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 Court’s decision affirming the finding of

competency. Ferguson v. Sec’y, 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 Ferguson’s competency claim, and, upon

further review, habeas relief is clearly unwarranted.

Appellant’s 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.

4 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 Powell’s 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

23

2011) (observing that the Ford/Panetti standards call for a case-

by-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

Court’s decisions in Ford v. Wainwright, 477 U.S. 399, 409–10,

106 S. Ct. 2595, 2602 (1986), and Panetti v. Quarterman, 551 U.S.

930, 960, 127 S. Ct. 2842, 2862 (2007), in rejecting Appellant’s

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.”).

24

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 court’s determination that Ferguson’s 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 “Petitioner’s 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,

Appellant’s 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

25

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 established not only the

substantive Eighth Amendment right not to be executed if

incompetent but also certain minimum procedural due process

guidelines under the Due Process Clause for bringing the

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 Appellant’s argument, the Florida Supreme Court

did not “expressly disclaim[]” any obligation to apply Panetti to

Appellant’s case. (Appellant’s Brief at 37). In accordance with

Panetti, the Florida Supreme Court’s decision did not state that

Appellant’s 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

26

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 Ferguson’s claimed delusion

or mental illness in applying Ford. The Florida Supreme Court

stated:

Ferguson argues that the United States Supreme

Court’s 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 Court’s

jurisprudence, the change does not alter our decision

in Provenzano.

The issue in Panetti was whether “[t]he state

court’s 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 Circuit’s standard

was not sufficient. Panetti, 551 U.S. at 957-60. The

Court stated that “[a] prisoner’s awareness of the

State’s 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 Court’s decision in

Provenzano.

Ferguson v. State, slip op. at 6-7, Case No. SC12-2115 (Fla. Oct.

27

17, 2012).

Based upon the foregoing, the Florida Supreme Court

identified the applicable Supreme Court precedent [Ford and

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

Ferguson’s 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 Ferguson’s expert. This decision was

affirmed by the unanimous Florida Supreme Court. Since this

28

decision is supported by factual findings below which are not

clearly erroneous, this claim must be denied under the AEDPA. See

Miller–El 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, Appellant’s 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 Court’s 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. Ferguson’s responses to the

Commission’s 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.

29

He gave coherent logical responses. His speech was normal. It

wasn’t real fast. It didn’t 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 interview, Ferguson also

acknowledged the recent change in Florida’s 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 buried–when

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 Appellant’s

30

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

Ferguson’s acknowledged rational understanding of the fact of his

execution and the reason for it. C.f. Wright v. Sec’y, 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. Sec’y, 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 Panetti v. Dretke, 401 F.Supp.2d 702, 712 (W.D.

6 The district court stated that a number of experts “testified

Panetti believes the real reason he is to be executed is for

31

Tex. 2004) (emphasis added). In this case, Appellant’s 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 Petitioner’s 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.

32

Woods, or even the Commission members, were genuine or credible.9

The lower court only credited Ferguson’s 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

9 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:

33

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 responding appropriately to the world around him.”).

Indeed, not only do the Corrections’ personnel document the

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 Ferguson’s 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. Whitehead’s duties include making

arrangements for the Appellant’s 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 latter’s

“Absolutely not.” (CT 138).

34

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 411-

413). 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 Petitioner’s 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 Ferguson’s 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.

35

II.

WHETHER THE FLORIDA SUPREME COURT UNREASONABLY APPLIED

PANETTI’S 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

36

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

Florida’s 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

11 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.

37

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 State’s evidence and the full

opportunity to present witnesses, including experts.

Appellant’s complaints regarding the haste and frantic

schedule imposed upon the parties is disingenuous. Ferguson,

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 Ferguson’s 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 Ferguson’s 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).

12 Obviously, if Ferguson’s 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.

38

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 Florida’s lethal

injection protocol. Again, this 1983 action was filed before

Appellant initiated a challenge to his competency to be

executed.13 The fact Ferguson’s attorneys filed these plainly

meritless claims before initiating a challenge to his competency

to be executed claim is telling. Ferguson’s 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, Green’s

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 expert’s

background and credentials.”). Nonetheless, despite concerns

13 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).

39

about the timing of Appellant’s 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.

Ferguson’s 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. We’ve already reached out to

them. Professor Rogers is not going to be available

Monday. He’s willing to free up his time over the

weekend, if that’s 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

don’t have any reason to think that we couldn’t 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 Ferguson’s behalf. While at the beginning of the

hearing Ferguson moved for a ninety-day stay, he failed to

40

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, Appellant’s 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 raised the question of the third doctor

testifying, it was only in conjunction with a demand for

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

41

do so. He’s available. He can come, if they’d like to

do that. That’s up to them. They can make that

determination.

(CT 368). At no point did Ferguson’s attorneys seek to call Dr.

Waldman despite being informed that he was available to testify.

It is disingenuous under these circumstances to assert that

Appellant was in any way deceived or handicapped by these

circumstances. Indeed, the original execution date was in fact

continued from October 16th to October 23rd, largely to

accommodate the hearing and the accompanying state 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. Appellant’s 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.

42

III.

WHETHER APPELLANT HAS CARRIED HIS BURDEN OF SHOWING

THAT THE FLORIDA COURT’S COMPETENCY DETERMINATION WAS

BASED UPON CLEARLY ERRONEOUS FACTUAL FINDINGS?

The question of Appellant’s 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,

Appellant’s 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, Appellant’s argument is plainly

meritless.

Appellant has so parsed the Eighth Judicial Circuit Court’s

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.

43

(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 Appellant’s

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. Ferguson’s responses to the

Commission’s 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

wasn’t real fast. It didn’t 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).

44

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. Ferguson’s 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 discern if someone is an untreated

schizophrenic “within minutes.” (CT 246). To obtain board

45

certification a psychiatrist is expected to conduct a thorough

evaluation and come up with a diagnosis and plan within 30

minutes. (CT 248).

Appellant’s 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 Ferguson’s 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

46

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 Defendant’s 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 “don’t 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

47

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 Commission’s 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. Ferguson’s

48

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 defendant “lacks the requisite rational

understanding if his mental condition precludes him from

perceiving accurately, interpreting, and/or 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 Ferguson’s

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

49

didn’t.” (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 Ferguson’s complete lack of

50

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 Ferguson’s 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 Ferguson’s 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 Appellant’s 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, the late eighties, but Ferguson “wasn’t sure.” Dr.

Rogers discounted those past assertions of 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

51

Appellant’s 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 doctor’s conclusion that

Ferguson’s 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 person’s 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. Suarez’s 2004 examination, Ferguson

readily expressed a wide variety of hallucinations and delusions

with different sensory modalities which “were as extreme as I’ve

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

52

hallucinations on a daily basis. (CT 533). Ferguson’s 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

defendant’s reported symptoms were incompatible with

schizophrenia in 2004 when he examined Petitioner, and that he

has been malingering. Dr. Suarez did not admit that Appellant’s

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 it’s “pretty good data to say it’s a

high probability behavior that he utilizes when he’s in these

situations.” (CT 562-563).

In reviewing Ferguson’s 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

53

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 don’t want to change and be perceived as not very grounded .

. .” (CT 553). “But a lot of them did. And it’s 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 Ferguson’s 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 goal-

directed communication.14 (CT 540-542, State’s Exhibit 4).

14 Dr. Woods acknowledged that he reviewed grievances relating to

Ferguson’s 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).

54

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. Sec’y, 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: “There’s -- unless it’s specifically

55

a mental health person there’s no reason to.” (CT. 47). That is

precisely the point. Ferguson’s 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

Ferguson’s 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

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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 Appellant’s 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 Ferguson’s 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 out-of-state doctor, was

57

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.

Appellant’s 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 that Appellant’s claim lacked a

“substantial likelihood” of success on the merits, 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 Appellant’s

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

15 The circumstances surrounding the district court’s action were

unusual to say the least. Shortly before Ferguson’s scheduled

execution at 6:00 p.m., counsel for Respondent was notified by

Ferguson’s counsel that they had District Court Judge Daniel

Hurley, Southern District of Florida, on the phone for a hearing

on Ferguson’s 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 Ferguson’s petition for writ of habeas corpus,

but issued a certificate of appealability (COA) on two issues

(although this order had not been provided to Respondent’s

counsel as of the time of the hearing.

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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. Sec’y, 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 Ferguson’s sentence to be carried out.

Ferguson’s 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 State’s 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

59

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 Court’s Order denying Appellant’s

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

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the type-

volume 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 CERTIFY that a true and correct copy of the

foregoing has been furnished by electronic transmission to

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