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 CIRCUITS NEW BRAND OF AEDPA SUPERDEFERENCE .................................................................................................... 3 THE SPLIT OVER PANETTIS SCOPE IS WIDELY ACKNOWLEDGED AND THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING IT ................. 7

II.

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 Courts 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 Courts 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 States 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 Circuits 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 Powells concurring opinion in Ford. BIO 25. But the State overlooksamong many othersthe decision of the Indiana Supreme Court that expressly recognized that Panetti departed from the Justice Powell

3 formulation and expanded upon the Eighth Amendments 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 CIRCUITS NEW BRAND OF AEDPA SUPER-DEFERENCE. The Florida Supreme Court reviewed John Fergusons 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 courts 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 Courts 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. There was, as the Eleventh Circuit acknowledged (Pet. App. 53a-54a (emphasis in

4 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 Fergusons

The Florida Supreme Courts

mental illness and crediting his delusions).

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 Courts 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 Circuits 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 Circuits 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 courts flawed analysis and holdings. That is not the way AEDPA deference operates, and it is far short of what the Great Writ requires of a reviewing federal court. Indeed,

5 as we explained in the petition (at 21-24), if the Eleventh Circuits 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 States response to Fergusons 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 courts 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 Circuits decision conflicts with any of this Courts precedent, or, that of any other courts of appeal.

Id. That brief salvo of conclusory assurances is the whole of the States defense of
the Eleventh Circuits new brand of AEDPA deference. The State appears to have overlooked pages 14 through 28 of Fergusons petition in its haste to file. There, Ferguson sets forth at length exactly how the Eleventh Circuits decision conflicts with decisions of this Court (Pet. 14, 16, 19, 20) and those of its sister circuits (id. at 21-25). And Ferguson also chronicles the

The State suggests that the Eleventh Circuit could not have abdicate[d] its responsibility to undertake a studied review of the state courts 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 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 circuitincluding the Second, Fifth, Eighth, and Ninthhas 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 States 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 Circuits uniquely strong AEDPA deference, if applied in each, would have produced an affirmance in

every single one of them. The Eleventh Circuits decision thus carries implications
far beyond the interests of these parties. It sets a new standard, and its new

standard is one that precious fewif anyhabeas 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 doesnt 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 courts habeas opinionwhether that federal revision is in service of overturning or upholding the state courts decision. In either circumstance, the state courts 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 courts 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 PANETTIS SCOPE IS WIDELY ACKNOWLEDGED AND THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING IT. 1. The State insistsin an argument headingthat the Eleventh Circuits ruling does not conflict with the decisions of Any Other Courts Of Appeal Applying

8 This Courts Precedent. BIO 22. But the State never follows through with any text backing up that thesis. Missing entirely from its response are citations tolet

alone discussion ofthe 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 StateGreen 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 Powells 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 Powells concurring opinion in Ford. BIO 25. The problem is that the State ignores all the other courts of appealsfederal and statethat have taken just the opposite view. In contrast to Green and the States own say-so that Panetti did not change the standard set forth by Justice Powells concurring opinion in Ford, id., the Indiana Supreme Court has held that

Panetti in fact departed from the Justice Powell formulation and expanded upon
the Eighth Amendments 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 Courts latest pronouncement on the standard of competence for

execution * * * Any portions of [the Tennessee Supreme Courts 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 Powells formulation are in good company. Justice

Scalia himself recognized in Panetti that the Courts decision there had impose[d] a new standard for determining incompetency and imposed an additional constitutional requirement above and beyond Justice Powells 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 panels 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 Panettis 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 Statewhile having no problem padding its response with one long block quote after another from the panels 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 Circuits decision below practically begs for guidance going forward. Pet. App. 2a-3a, 42a50a. And the long line of cases cited in the petitionincluding 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 443confirms why this Courts intervention is needed now. Were there any doubt that this petition transcends the narrow interests of John Ferguson, the American Bar Associations amicus brief dispels them. This Court often has lent credence to the ABAs 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 Fords mandate that incompetent prisoners may not be unconstitutionally executed. ABA Br. 4. And the ABAs

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 belowas well as Green and the nearly dozen or so cases cited in the petitionthe 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 therein delineating how a court is to measure whether a prisoner in fact has a rational understanding of his execution and the reasons for itthat the Eleventh Circuits 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] prisoners awareness of the States 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 Circuits opinion. BIO 23-24, 26-28, 30, 31. But those passages just confirm the problem, not minimize it. The Eleventh Circuits 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, Provenzanos 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 Courts decision squarely conflicts with Panetti, the State devotes the bulk of its response to relitigating the facts unique to Fergusons competency. Although that gambit says much about the confidence the State has in the legal accuracy of the Florida Supreme Courts decision, it also illustrates one of the principal problems with the

14 whole approach the State tookand the Eleventh Circuit acceptedbelow: The State re-argues the facts even in the face of the state habeas courts own factfindings (which, unlike the ultimate competency conclusion, Ferguson readily accepts). Floridas continued headlong resistance to the state courts actual findings of factincluding its reject[ion] of the state courts finding that Ferguson suffers from schizophrenia and is not malingering, BIO 6-7is unbecoming of that sovereign. And at least a few of the States 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 Fergusons case made an explicit finding that Fergusons 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 Hrg 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 states plot to deny him ascension will be

miraculously foiled, because he cant 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, youll come and look and you wont 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 States 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 States 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 States

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 Fergusons execution.