Case: 12-15377

Date Filed: 8) (1 of 10/22/2012

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 John Ley Clerk of Court For rules and forms visit www.ca11.uscourts.gov

October 22, 2012 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 12-15377-P Case Style: John Ferguson v. Secretary, Florida Department District Court Docket No: 1:12-cv-23817-DTKH Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b). The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 . Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later). For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Jenifer L. Tubbs at 404-335-6166. Sincerely, JOHN LEY, Clerk of Court Reply to: Jenifer L. Tubbs Phone #: 404-335-6161

OPIN-1 Ntc of Issuance of Opinion

Case: 12-15377

Date Filed: 8) (2 of 10/22/2012

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-15377 ________________________ JOHN FERGUSON, llllllllllllllllllllllllllllllllllllllllPetitioner - Appellee, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, llllllllllllllllllllllllllllllllllllllllRespondent - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 22, 2012) Before CARNES, WILSON and PRYOR, Circuit Judges. PER CURIAM: Petitioner John Ferguson is a death row inmate scheduled to be executed on October 23, 2012. On October 19, 2012, Ferguson filed an emergency motion for a stay of execution and a petition for writ of habeas corpus in the district court. In both his motion and his petition for habeas relief, Ferguson contends that the

Case: 12-15377

Date Filed: 8) (3 of 10/22/2012

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Florida state courts misapplied United States Supreme Court precedent when they determined that he is competent to be executed. On October 20, 2012, the district court stayed Fergusons execution. The Secretary of the Florida Department of Corrections promptly filed an emergency motion to vacate the order, alleging that the district court applied the incorrect legal standard when it granted the stay. The standard of review of a stay of execution issued by a district court is abuse of discretion. Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1321 (11th Cir. 2000). We agree with the Secretary that the district court abused its discretion. A stay of execution is equitable relief which a court may grant only if the moving 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). The district court did not consider any of these factors when it granted the stay. Instead, after a lengthy and thorough discussion of jurisdiction, the district court summarily concluded that [a] stay of execution [was] necessary to permit a fair hearing on Fergusons claim. Because that statement does not reflect the correct legal standard, the district court abused its discretion when it granted the stay. See Siebert v. Allen, 506 F.3d 1047,
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Case: 12-15377

Date Filed: 8) (4 of 10/22/2012

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1049 n.2 (11th Cir. 2007) ([Abuse of discretion] review will lead to reversal . . . if the district court applies an incorrect legal standard . . . .). 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
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Case: 12-15377

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whether there is competent, substantial evidence to support the trial courts determination that Fergusons mental illness does not interfere with his rational understanding of the fact of his pending execution. 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. We VACATE the stay.

Case: 12-15377

Date Filed: 8) (6 of 10/22/2012

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CARNES, Circuit Judge, Concurring: I fully concur in the Courts per curiam opinion and write separately to answer Judge Wilsons criticism that we should let the district court decide in the first instance whether to stay the execution under the correct legal standard applicable to stays and then allow the losing party to move for us to overturn that decision. There is no point in allowing that circuitous process because we know that under the correct principles of law and the facts established in the state courts any stay of execution on the asserted grounds would be an abuse of discretion. In the past this Court has declined to give a district court another opportunity to decide a matter so it could apply the correct legal principles where all results but one would be an abuse of discretion. See Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1254, 1272-74 (11th Cir. 2005) (holding that the district court abused its discretion in denying a preliminary injunction, and concluding that there was no point in remanding the case because it was altogether clear that the plaintiff would succeed on the merits of its First Amendment claims); Meek v. Metro. Dade Cnty., Fla., 985 F.2d 1471, 1478 (11th Cir. 1993) (concluding that, although the district courts decision was reviewed only for an abuse of discretion, we have no need to remand the case for the district court to further consider it because the record clearly shows that only one result would satisfy the standard of review), abrogated on other grounds by Dillard v. Chilton Cnty. Commn, 495
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Case: 12-15377

Date Filed: 8) (7 of 10/22/2012

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F.3d 1324 (11th Cir. 2007); Pelletier v. Zweifel, 921 F.2d 1465, 1514 n.87 (11th Cir. 1991) (holding that the district court abused its discretion in declining to impose sanctions under Fed. R. Civ. P. 11, and concluding that remand was unnecessary because the record demonstrates beyond any question that Rule 11 sanctions are in order), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131 (2008); Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894, 897-98 (5th Cir. 1979) (finding it apparent that appellee will not succeed on the merits of its action, and thus vacating a grant of a preliminary injunction and remanding with instructions to the district court to enter a judgment consistent with this opinion). 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. Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983); accord McNair v. Allen, 515 F.3d 1168, 1176 (11th Cir. 2008).

Case: 12-15377

Date Filed: 8) (8 of 10/22/2012

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WILSON, Circuit Judge, concurring in part and dissenting in part: I agree that the stay of execution should be vacated because the district applied the wrong legal standard. However, our order puts the cart before the horse: we are premature in determining that Ferguson has no substantial likelihood of success on the merits of his claim that the Florida courts erroneously found him competent to be executed. We should give the district court the initial opportunity to make its decision before we review it. As Justice Kennedy wrote for the majority in Panetti v. Quarterman: It is proper to allow the court charged with overseeing the development of the evidentiary record in this case the initial opportunity to resolve petitioners constitutional claim. These issues may be resolved in the first instance by the District Court. 551 U.S. 930, 962, 127 S. Ct. 2842, 2863 (2007). The cases cited by Judge Carnes for the proposition that we should decline to give the district court the opportunity to apply the correct legal standard are inapposite because they (1) relied on a thorough district court record, which we do not have here; and (2) do not concern habeas corpus death cases. Moreover, I have doubts about whether the Florida courts correctly applied Panetti. Therefore, I would vacate the stay and remand the matter back to the district court to consider Fergusons claim using the correct legal standard.