No. 13-5507
IN THE
Supreme Court of the United States
_________
JOHN ERROL FERGUSON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_________
EMERGENCY CAPITAL CASE
EXECUTION SCHEDULED FOR
AUGUST 5, 2013 AT 6:00 P.M.
_________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
_________
REPLY BRIEF IN SUPPORT OF CERTIORARI
_________
BENJAMIN J.O. LEWIS
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
(212) 909-0646
E. BARRETT PRETTYMAN, JR.
CHRISTOPHER T. HANDMAN*
CATHERINE E. STETSON
ERICA KNIEVEL SONGER
MARISA F.L. CRUZ
SARAH M. CUMMINGS
KATHRYN L. MARSHALL
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5719
chris.handman@hoganlovells.com
Counsel for Petitioner
*Counsel of Record
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
SUMMARY OF ARGUMENT ....................................................................................... 1
ARGUMENT .................................................................................................................. 3
I.
REVIEW OR SUMMARY REVERSAL IS WARRANTED TO ADDRESS
THE ELEVENTH CIRCUIT’S NEW BRAND OF AEDPA “SUPERDEFERENCE” .................................................................................................... 3
II.
THE SPLIT OVER PANETTI’S SCOPE IS WIDELY ACKNOWLEDGED
AND THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING IT ................. 7
CONCLUSION............................................................................................................. 15
(i)
ii
TABLE OF AUTHORITIES
PAGE(S):
CASES:
Billiot v. Epps, 671 F.Supp.2d 840 (S.D. Miss. 2009)................................................... 9
Doody v. Ryan, 649 F.3d 986 (9th Cir.) (en banc), cert. denied, 132 S. Ct. 414
(2011) .................................................................................................................... 6, 7
Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................passim
Green v. State, 374 S. W. 3d 434 (Tex. Ct. Crim. App. 2012) ............................. 2, 8, 10
Harrington v. Richter, 131 S. Ct. 770 (2011) ........................................................ 1, 4, 7
Harrison v. McBride, 428 F.3d 652 (7th Cir. 2005) ...................................................... 6
Magana v. Hofbauer, 263 F.3d 542 (6th Cir. 2001) ...................................................... 6
Maples v. Thomas, 132 S. Ct. 912 (2012) .................................................................... 10
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ........................................................ 1, 4
Miller-El v. Dretke, 545 U.S. 231 (2005) ....................................................................... 4
Panetti v. Dretke, 401 F. Supp. 2d 702 (W.D. Tex. 2004) ........................................... 15
Panetti v. Quarterman, 551 U.S. 930 (2007)........................................................passim
Provenzano v. State, 760 So. 2d 137 (Fla. 2000) ..................................................passim
Rothgery v. Gillespie County, Tex., 554 U.S. 191 (2008) ............................................ 10
Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005) .......................................................... 6
State v. Haugen, 351 Or. 325 (2011) ............................................................................. 8
State v. Irick, 320 S.W. 3d 284 (Tenn. 2010) ................................................................ 9
State v. Motts, 391 S.C. 635 (2011) ............................................................................... 8
Tassin v. Cain, 517 F.3d 770 (5th Cir. 2008) ................................................................ 6
iii
Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009) ........................................................... 9
FEDERAL STATUTES:
28 U.S.C. § 2254(d)(1) .................................................................................................... 3
28 U.S.C. § 2254(d)(2) .................................................................................................... 4
CONSTITUTIONAL PROVISION:
U.S. Const. amend. VIII .......................................................................................passim
SUMMARY OF ARGUMENT
Florida seeks to send John Ferguson to his death based on an antiquated
competency standard that, as one member of the panel below recognized, is
“patently incorrect in the wake of Panetti.” Pet. App. 64a (Wilson, J., concurring).
And Florida seeks to send John Ferguson to his death based on a state-court finding
of fact that there was “no evidence” he lacked a rational understanding, even
though the panel below agreed that “[t]here was of course some evidence” that he
did.
Pet. App. 53a-54a (emphasis in original).
These sorts of errors would
ordinarily stop an execution in its tracks. For even under AEDPA, the Great Writ
still retains its vital function: to “guard against extreme malfunctions in the state
criminal justice system.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
Not so any more in the Eleventh Circuit. Deference there has been reduced
to what this Court has warned against: “abandonment or abdication of judicial
review.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). That is what happens
when “patently incorrect” applications of this Court’s precedents can be shrugged off
as “imprecise” word choice and categorical findings of “no evidence” can be rewritten
as carefully nuanced findings of “no credible evidence.”
This strain of super-
deference transforms federal habeas review into a results-oriented reverseengineering exercise. And it is an approach that conflicts not only with this Court’s
AEDPA holdings, but also the decisions of other courts of appeals that have likewise
struggled to map out the metes and bounds of AEDPA deference.
(1)
2
The State’s response is to offer virtually no response. Instead, it serves up
assertions backed by no citation, no analysis, and certainly no effort to join issue
with the petition. The State thus assures this Court that the lower courts “are not”
in conflict, BIO 21, that the panel “did not” abdicate, id. at 22, and that the Court of
Appeals “did not misapply the AEDPA,” id. But the State apparently overlooked
pages 14 through 28 of the petition, which lay out exactly how the Eleventh
Circuit’s decision conflicts with decisions of this Court and those of its sister circuits
and how the lower courts have been producing increasingly fragmented opinions on
the scope of AEDPA deference.
The State takes a similar tack when it comes to Panetti. It gainsays the
existence of any split in the lower courts, but neglects to cite any of the nearly dozen
cases cited in the petition proving the existence and breadth of that division. More
puzzling still, one of the few cases the State does cite confirms that this split is real
and deep: “In following Panetti, courts have disagreed as to whether it imposed an
additional requirement on courts in determining competency, or whether it merely
reiterated the established requirements of Ford.” Green v. State, 374 S.W.3d 434,
443 (Tex. Crim. App. 2012). In the same vein, the State soothingly assures this
Court that no conflict exists because “Panetti did not fundamentally alter or change
the standard set forth by Justice Powell’s concurring opinion in Ford.” BIO 25. But
the State overlooks—among many others—the decision of the Indiana Supreme
Court that expressly recognized that Panetti “departed from the Justice Powell
3
formulation and expanded upon the Eighth Amendment’s reach for persons with
mental illness.” Overstreet v. State, 877 N.E.2d 144, 172 (Ind. 2007).
That leaves the State to insist that this is a case of “interest to no one other
than the parties to this litigation.” BIO 20. But the Eleventh Circuit itself all but
beseeched this Court for guidance, Pet. App. 2a-31, and the amicus brief filed by the
American Bar Association confirms that this split is pervasive and threatens to
compromise the essential retributive purpose of capital punishment in this country.
ABA Br. 6-16.
ARGUMENT
I.
REVIEW OR SUMMARY REVERSAL IS WARRANTED TO ADDRESS
THE ELEVENTH CIRCUIT’S NEW BRAND OF AEDPA “SUPERDEFERENCE.”
The Florida Supreme Court reviewed John Ferguson’s competency appeal
using a standard this Court found unconstitutional in Panetti v. Quarterman, 551
U.S. 930 (2007). See Pet. App. 75a, 76a, 77a, 78a, 79a. Under AEDPA, the state
court’s decision thus was “contrary to * * * clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
But applying the deference the Eleventh Circuit concluded was owed under AEDPA,
the federal court rehabilitated the Florida Supreme Court’s decision by writing off
its repeated invocations of a demonstrably unconstitutional competency standard as
merely “imprecise” language. Pet. App. 47a.
The Florida Supreme Court also found “no evidence” in the record that John
Ferguson is incompetent to be executed. Pet. App. 98a; see also id. at 75a, 79a.
4
There was, as the Eleventh Circuit acknowledged (Pet. App. 53a-54a (emphasis in
original)),
“some
evidence”
that
Ferguson
lacks
the
requisite
“rational
understanding” of his execution, the reasons for it, and the consequences of it.
Panetti, 551 U.S. at 958. See, e.g., Pet. App. 97a-98a (chronicling Ferguson’s mental
illness and crediting his delusions).
The Florida Supreme Court’s competency
finding thus reflected an “unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). But
applying the deference the Eleventh Circuit panel concluded was owed under
AEDPA, the court of appeals rehabilitated the Florida Supreme Court’s conclusion
by editing it, explaining that where the Florida Supreme Court four times had
spoken of “no evidence” of competency, what its sister state court must have meant
was “no credible evidence” of competency.
The Eleventh Circuit’s decision expanded AEDPA deference well beyond its
banks. AEDPA deference is “muscular,” to borrow a term both we (at Pet. 20) and
the State (at BIO 22) employ.
But as this Court has explained, AEDPA still
requires “vigilant and independent review,” Harrington, 131 S. Ct. at 780, and
AEDPA deference also has limits. It is “demanding but not insatiable.” Miller-El v.
Dretke, 545 U.S. 231, 240 (2005).
And it does not require “abandonment or
abdication of judicial review.” Cockrell, 537 U.S. at 340. The Eleventh Circuit’s
decision exceeded those limits. It paid such deference to the result the Florida
Supreme Court reached that it overlooked, forgave, and re-wrote the state court’s
flawed analysis and holdings. That is not the way AEDPA deference operates, and
5
it is far short of what the Great Writ requires of a reviewing federal court. Indeed,
as we explained in the petition (at 21-24), if the Eleventh Circuit’s new brand of
super-deference comes to roost in other circuits, even the most constitutionally
flawed state-court decisions can be rehabilitated with a pen-stroke:
an illegal
standard is merely “imprecise”; and unreasonable factual conclusions are made
reasonable with just a few well-placed line-edits.
The State’s response to Ferguson’s argument on AEDPA deference appears
on two pages sandwiched between canned factual background and pages-long block
quotes.
BIO 21-22.
According to Florida, the lower federal courts “are not” in
conflict about the scope and limits of AEDPA deference. BIO 21. The Eleventh
Circuit “did not” abdicate its responsibility to review the state court’s decision. Id.
at 22.1 The Eleventh Circuit panel “did not misapply the AEDPA.” Id. Finally,
Florida concludes, “Petitioner has not shown that the Eleventh Circuit’s decision
conflicts with any of this Court’s precedent, or, that of any other courts of appeal.”
Id. That brief salvo of conclusory assurances is the whole of the State’s defense of
the Eleventh Circuit’s new brand of AEDPA deference.
The State appears to have overlooked pages 14 through 28 of Ferguson’s
petition in its haste to file. There, Ferguson sets forth at length exactly how the
Eleventh Circuit’s decision conflicts with decisions of this Court (Pet. 14, 16, 19, 20)
The State suggests that the Eleventh Circuit could not have “abdicate[d]” its responsibility to
undertake a studied review of the state court’s decision because it wrote a “sixty page opinion.” BIO
22. The opinion doubtless would have been much shorter if the Eleventh Circuit had applied the
correct AEDPA standard; the bulk of those 60 pages is a labored effort to explain how a “patently
incorrect” legal standard is just linguistic “imprecision” and a how a finding of “no evidence” can be
airbrushed to mean “no credible evidence.”
1
6
and those of its sister circuits (id. at 21-25). And Ferguson also chronicles the
extent to which the lower federal courts of late are at sharp odds with each other
over the scope and limits of AEDPA deference: Circuit after circuit—including the
Second, Fifth, Eighth, and Ninth—has produced sharply split disagreements over
the potency of AEDPA deference. See Pet. 25-28. But because the State offers no
substantive response to these arguments, Ferguson need not repeat them here.
Nor are these “fact-bound” questions, to use the State’s favorite trope.
Indeed, unlike perhaps many habeas petitioners, given the favorable facts found
and credited by the state court, which Florida still indecorously contests (see BIO 718), Ferguson is the rare habeas petitioner who embraces the facts found by the
state habeas court. The question Ferguson presents is a legal one centering on the
AEDPA standard itself, prompted by the federal courts’ differing invocations of it.
The results in Doody v. Ryan, 649 F.3d 986, 1021 (9th Cir.) (en banc), cert. denied,
132 S. Ct. 414 (2011); Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001);
Tassin v. Cain, 517 F.3d 770, 776 (5th Cir. 2008); Harrison v. McBride, 428 F.3d
652, 667 (7th Cir. 2005); and Sanders v. Cotton, 398 F.3d 572, 584 (7th Cir. 2005),
would have been different applying Ferguson super-deference not because the facts
of those cases were (of course) different, but because the Eleventh Circuit’s uniquely
strong AEDPA deference, if applied in each, would have produced an affirmance in
every single one of them. The Eleventh Circuit’s decision thus carries implications
far beyond the interests of these parties.
It sets a new standard, and its new
standard is one that precious few—if any—habeas petitioners could ever satisfy.
7
In urging the Court to refrain from review, the State speaks of “comity” and
“federalism.” BIO 22 (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000)). But
like deference itself, comity and federalism have limits, too.
As Chief Judge
Kozinski has emphasized in rejecting the same sort of super-deference the Eleventh
Circuit adopted below, “[c]omity doesn’t mean being comatose.” Doody, 649 F.3d at
1027 (Kozinski, C.J., concurring). Nor does it foster comity, or promote federalism,
to rewrite a state court’s habeas opinion—whether that federal revision is in service
of overturning or upholding the state court’s decision. In either circumstance, the
state court’s legal and factual analysis is being impermissibly overborne by federal
judges. True, the more typical error, as past cases from this Court have shown, is
when a federal court errs on the side of showing too little AEDPA deference to a
sister state court. See Pet. 27-28 (citing McDaniel v. Brown, 558 U.S. 120, 132-133
(2010); Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1862 (2010); and Uttecht v.
Brown, 551 U.S. 1, 10 (2007)). But the opposite mistake is not (and cannot logically
be) a null set: On occasion, a federal court will extend too much deference to a state
court, neglecting its obligation to conduct a “vigilant and independent” review of the
state court’s decision to ensure its constitutionality. Harrington, 131 S. Ct. at 780.
That is what the Eleventh Circuit did here, and just as in McDaniel, Renico, and
Uttecht, it requires review.
II.
THE SPLIT OVER PANETTI’S SCOPE IS WIDELY ACKNOWLEDGED
AND THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING IT.
1. The State insists—in an argument heading—that the Eleventh Circuit’s
ruling does not conflict with the decisions of “Any Other Courts Of Appeal Applying
8
This Court’s Precedent.” BIO 22. But the State never follows through with any text
backing up that thesis.
Missing entirely from its response are citations to—let
alone discussion of—the multiple cases cited in the petition that lay bare this
fractured body of law. Pet. 30-34.
Make no mistake: The conflict over the scope of Panetti in the lower courts is
sharp and it is real. This Court need not take our word for it. The one and only
state-court decision from outside Florida cited by the State—Green v. State, 374
S.W.3d 434 (Tex. Crim. App. 2012)—expressly confirms this division: “In following
Panetti, courts have disagreed as to whether it imposed an additional requirement
on courts in determining competency, or whether it merely reiterated the
established requirements of Ford.”
Id. at 443.
In Green, the Texas Court of
Criminal Appeals adopted the latter view, concluding that Panetti did nothing to
alter the competency standard first articulated in Justice Powell’s concurrence in
Ford. See id. Other courts have done the same. State v. Haugen, 351 Or. 325, 342
(2011) (Panetti merely “summariz[ed]” Ford); State v. Motts, 391 S.C. 635, 651
(2011) (same). And the State itself takes the same view in its response, insisting
that “Panetti did not fundamentally alter or change the standard set forth by
Justice Powell’s concurring opinion in Ford.” BIO 25.
The problem is that the State ignores all the other courts of appeals—federal
and state—that have taken just the opposite view. In contrast to Green and the
State’s own say-so that Panetti did not “change the standard set forth by Justice
Powell’s concurring opinion in Ford,” id., the Indiana Supreme Court has held that
9
Panetti in fact “departed from the Justice Powell formulation and expanded upon
the Eighth Amendment’s reach for persons with mental illness.” Overstreet, 877
N.E.2d at 172 (emphasis added). Likewise, the Pennsylvania Supreme Court has
held that, “following Panetti, it is clear that the Eighth Amendment requires a
petitioner not only to have a factual understanding of the penalty and the reasons
for it, but also a rational understanding of it * * *.” Commonwealth v. Banks, 29
A.3d 1129, 1144 (Pa. 2011). And the list goes on. See, e.g., Thompson v. Bell, 580
F.3d 423, 436 (6th Cir. 2009) (although prisoner could say that his execution related
to his having killed his victim, his actual rational understanding was “cursory at
best”); State v. Irick, 320 S.W. 3d 284, 294-95 (Tenn. 2010) (“[W]e are bound by
Panetti, the Court’s latest pronouncement on the standard of competence for
execution * * * Any portions of [the Tennessee Supreme Court’s pre-Panetti
jurisprudence] that can be read as inconsistent with Panetti are hereby renounced
as obsolete”); Billiot v. Epps, 671 F. Supp. 2d 840, 852 (S.D. Miss. 2009). See Pet.
29-33; ABA Br. 10-16.
Of course, those courts that have read Panetti to have imposed an additional
requirement beyond Justice Powell’s formulation are in good company.
Justice
Scalia himself recognized in Panetti that the Court’s decision there had “impose[d] a
new standard for determining incompetency” and imposed an “additional
constitutional requirement” above and beyond Justice Powell’s mandate. Panetti,
551 U.S. at 963, 978 (Scalia, J., dissenting). Obviously, Green and other courts
disagree. The important point, though, is that this disagreement exists.
10
Even the Eleventh Circuit below acknowledged the root cause of this growing
division among the lower courts. In the panel’s view, Panetti did not provide the
lower courts with a “well-defined bottom line” to assess competency under the
Eighth Amendment. Pet. App. 2a. Underscoring the pressing need for guidance
from this Court, the panel below lamented that Panetti’s “decision not to decide
more is, unfortunately, the last word from the Supreme Court on the ‘question of
this complexity.’ ” Id. at 2a-3a. Yet the State—while having no problem padding its
response with one long block quote after another from the panel’s decision—
manages to overlook these key passages, even though they took pride of place in our
petition. Pet. 29a.
2. It is thus rather rich for the State to suggest that this case is of “interest
to no one other than the parties to this litigation.” BIO 20. The Eleventh Circuit’s
decision below practically begs for guidance going forward. Pet. App. 2a-3a, 42a50a. And the long line of cases cited in the petition—including the Green case that
expressly acknowledged that “courts have disagreed as to whether [Panetti]
imposed an additional requirement on courts in determining competency, 374
S.W.3d at 443—confirms why this Court’s intervention is needed now.
Were there any doubt that this petition transcends the narrow interests of
John Ferguson, the American Bar Association’s amicus brief dispels them. This
Court often has lent credence to the ABA’s position on issues of national
importance, especially where the ABA has particular expertise in the relevant
subject matter. See, e.g., Maples v. Thomas, 132 S. Ct. 912, 917 (2012); Rothgery v.
11
Gillespie County, Tex., 554 U.S. 191, 205 (2008). That is the case here; the ABA is
not just another amicus supporting another petition. To the contrary, having a 50state constituency, and having convened a special Task Force on Mental Disability
and the Death Penalty comprising leading lawyers and mental-health professionals,
the ABA is uniquely positioned to recognize the extent to which the lower courts in
this nation are struggling to comply with Ford’s mandate that incompetent
prisoners may not be unconstitutionally executed.
ABA Br. 4.
And the ABA’s
conclusion is unqualified: “[T]he opinions of the Florida Supreme Court and the
United States Court of Appeals for the Eleventh Circuit, as well as those of other
courts, demonstrate that clarification is needed as to the standard that must be
applied pursuant to Panetti * * * to determine whether a prisoner is competent to be
executed.” ABA Br. 1; see also id. at 6, 7, 10. Echoing the Eleventh Circuit below—
as well as Green and the nearly dozen or so cases cited in the petition—the ABA
confirms that “[s]ince Panetti, lower courts have reached varying results, reflecting
the difficulty some of these courts have had in determining the proper standard to
be applied.” ABA Br. 10. And the ABA underscores why this dispute matters: Only
a sufficiently rigorous standard that tests whether a “capital prisoner is mentally
capable of understanding his sentence” can ensure that “the retributive goal of
punishment is to be served.”
ABA Br. 9-10.
These recurring and important
questions of national significance should not be left to percolate any longer. This
Court should grant the petition.
12
3. Despite what Green said, despite what the Eleventh Circuit said below,
and despite what the ABA has now said here, the State still insists that “reviewing
courts are not confused in their application of the competency to be executed
standard.” BIO 29. Without bothering to examine any of the cases cited in the
petition, the State simply asserts that any inequality in outcome can be chalked up
to “varying factual presentations” in those cases. BIO 29. To be sure, whether any
particular prisoner has a “rational understanding” must be resolved on a case-bycase basis. But the legal principles guiding those determinations remain constant
from case to case. It is there—in delineating how a court is to measure whether a
prisoner in fact has a “rational understanding” of his execution and the reasons for
it—that the Eleventh Circuit’s decision squarely conflicts with Panetti and the
decisions of other state and federal courts of appeals.
4. And that gets to the merits. The decisions by the Florida Supreme Court
and the Eleventh Circuit squarely conflict with the rule this Court articulated in
Panetti. As Judge Wilson explained below, “the Florida Supreme Court in Ferguson
declared that ‘the Eighth Amendment requires only that defendants be aware of the
punishment they are about to receive and the reason they are to receive it.” Pet.
App. 64a (Wilson, J., concurring) (citation omitted).
unassailable:
The conclusion he drew is
“That statement of the law is patently incorrect in the wake of
Panetti, which explicitly held that ‘[a] prisoner’s awareness of the State’s rationale
for an execution is not the same as a rational understanding of it.’ ” Id. (citing
Panetti, 551 U.S. at 959) (alteration and emphasis supplied by Wilson, J.).
13
The State offers no real response, other than to cut and paste page-long
single-spaced block quotes from the Eleventh Circuit’s opinion. BIO 23-24, 26-28,
30, 31. But those passages just confirm the problem, not minimize it.
The Eleventh Circuit’s decision confirms that the Florida Supreme Court
stuck to its guns and continued to apply its pre-Panetti decision in Provenzano v.
State, 760 So. 2d 137 (Fla. 2000) (Provenzano II). That is significant because the
majority and dissenting opinions in Provenzano II presaged the same debate that
this Court would later resolve in Panetti.
On behalf of the dissenters, Justice
Anstead pointed out that, as the case came to the court, there was a binding
“judicial finding based upon clear and convincing evidence that Provenzano
genuinely believes as a matter of fact that he ‘really will be executed because he is
Jesus Christ.’ ” Provenzano II, 760 So. 2d at 143 (Anstead, J., dissenting). As the
dissent recognized, that would make it “impossible to conclude in this case that
Provenzano has a rational understanding of the reason he is to be executed.” Id.
(first emphasis added). But, as with Ferguson here, Provenzano’s delusions were
irrelevant to the majority because he was simply “aware of the punishment [he was]
about to suffer and why [he was] to suffer it.” Id. at 140.
5. Rather than join issue with us on whether the Florida Supreme Court’s
decision squarely conflicts with Panetti, the State devotes the bulk of its response to
relitigating the facts unique to Ferguson’s competency. Although that gambit says
much about the confidence the State has in the legal accuracy of the Florida
Supreme Court’s decision, it also illustrates one of the principal problems with the
14
whole approach the State took—and the Eleventh Circuit accepted—below: The
State re-argues the facts even in the face of the state habeas court’s own factfindings (which, unlike the ultimate competency conclusion, Ferguson readily
accepts). Florida’s continued headlong resistance to the state court’s actual findings
of fact—including its “reject[ion]” of the state court’s finding that Ferguson suffers
from schizophrenia and is not malingering, BIO 6-7—is unbecoming of that
sovereign. And at least a few of the State’s self-serving factual conclusions require
correction. The State contends, for one, that John Ferguson “did not express, nor
did the circuit court credit as credible[,] any delusion of the sort expressed by the
defendant in Panetti.”
That is false. The circuit court in John Ferguson’s case made an explicit
finding that Ferguson’s “Prince of God” delusion is a “genuine belief.” Pet. App.
85a-97a.
The circuit court based that express finding on the “credible and
compelling” expert testimony of Dr. George Woods, who clinically evaluated
Ferguson several times. Pet. App. 97a. Dr. Woods also explained that Ferguson
believes “that he had powers from the sun,” that “he was being kept from the sun so
that his powers are limited,” that “the guards [are] soldiers and communists” who
are “going to kill him because they know he is the prince of God and that he has the
power and can control the sun,” and that “he has more power than
Jesus.” Ferguson 3.812 Hr’g Ex. 5, ¶ 11. Ferguson also believes that his impending
“execution stems from a conspiracy against him, rather than any crimes he
committed,” R.2349; that “the conviction that landed him on death row was not
15
based upon the law,” but rather is due to “a conspiracy of corrupt policemen and in
retaliation for being acquitted in a prior case,” R.2348; and that his execution is “a
plot by the state of Florida to prevent him from ascending to his rightful throne.”
R.2348.
Ferguson also believes the state’s plot to deny him ascension will be
miraculously foiled, because he “can’t be killed.” Tr. 58:6. As Ferguson sees things,
the State does not have the special powers that he has and therefore cannot execute
him, Tr. 58:6-11; so “just like Jesus, you’ll come and look and you won’t find me
there [in my grave],” Tr. 599:4-6. Compare Panetti v. Dretke, 401 F. Supp. 2d 702,
712 (W.D. Tex. 2004) (noting that Panetti “believes the real reason he is to be
executed is for preaching the Gospel”).
The State’s lawyers believe that John Ferguson is a wily (and remarkably
consistent) malingerer.
But the state trial court credited testimony that John
Ferguson is mentally ill. The State’s lawyers believe that John Ferguson rationally
understands the reason for and consequences of his execution. But the state trial
court credited testimony that Ferguson does not.
Those facts, not the State’s
preferred narrative, control. And because Ferguson accepts those facts, this case is
all the more worthy a vehicle to review the legal issues Ferguson presents here.
CONCLUSION
For the foregoing reasons, and those stated in the petition, the petition for a
writ of certiorari should be granted. And in the meantime, the Court should stay
John Ferguson’s execution.
16
Respectfully submitted,
BENJAMIN J.O. LEWIS
HOGAN LOVELLS US LLP
875 THIRD AVENUE
NEW YORK, NY 10022
(212) 909-0646
________________________________
E. BARRETT PRETTYMAN, JR.
CHRISTOPHER T. HANDMAN*
CATHERINE E. STETSON
ERICA KNIEVEL SONGER
MARISA F.L. CRUZ
SARAH M. CUMMINGS
KATHRYN L. MARSHALL
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5719
chris.handman@hoganlovells.com
Counsel for Petitioner-Appellant
*Counsel of Record