Ferguson v. Allen
Filing
16
MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 7/21/2014. (AHI)
FILED
2014 Jul-21 PM 01:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
THOMAS DALE FERGUSON,
Petitioner,
vs.
RICHARD F. ALLEN, Commissioner,
Alabama Department of Corrections,
Respondent.
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)
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) Case No. 3:09-cv-0138-CLS-JEO
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MEMORANDUM OPINION
Petitioner, Thomas Dale Ferguson (“Ferguson”), seeks habeas corpus relief
from his state court capital murder conviction and death sentence. See 28 U.S.C. §
2254.
I.
Table of Contents
PROCEDURAL HISTORY .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II.
THE OFFENSE OF CONVICTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III.
THE SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IV.
INTRODUCTION OF DISCUSSION OF FERGUSON’S SUBSTANTIVE CLAIMS:
The Scope Of Federal Habeas Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A.
Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B.
The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1
1.
General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.
Overcoming procedural default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
a.
The “cause and prejudice” standard . . . . . . . . . . . . . . . . . . . . . . 27
i.
ii.
b.
C.
“Cause” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
“Prejudice” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The “fundamental miscarriage of justice” standard . . . . . . . . . . 30
The Statutory Overlay: The Effect of “the Antiterrorism and Effective
Death Penalty Act of 1996” on Habeas Review . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1.
28 U.S.C § 2254(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.
28 U.S.C § 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
a.
The meaning of § 2254(d)(1)’s “contrary to” clause . . . . . . . . . . 36
b.
The meaning of § 2254(d)(1)’s “unreasonable application”
clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
c.
The meaning of § 2254(d)(2)’s clause addressing an
“unreasonable determination of the facts in light of
the evidence presented in the state court proceeding” . . . . . . . . . 40
d.
Evaluating state court factual determinations under
28 U.S.C. §§ 2254(d)(2) and (e)(1) . . . . . . . . . . . . . . . . . . . . . . . . 41
D.
The Burden of Proof and Heightened Pleading Requirements For
Habeas Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
E.
Introduction To Ineffective Assistance of Counsel Claims . . . . . . . . . . 45
1.
The performance prong .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.
The prejudice prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.
Deference accorded state court findings of historical fact,
and decisions on the merits, when evaluating ineffective assistance
of counsel claims .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2
V.
FERGUSON’S CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
A.
The Trial Judge Violated Ferguson’s Constitutional Rights to Due Process
and Equal Protection When He Disregarded the Jury’s Nearly Unanimous
11-1 Verdict Recommending a Sentence of Life Without Parole . . . . . . . . . . 55
1.
Brief summary of the twofold claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.
The proper constitutional standard and habeas standard of review .. . . . 59
3.
Analysis of Ferguson’s twofold habeas claim .. . . . . . . . . . . . . . . . . . . . . 59
a.
The trial judge unreasonably discounted
Mrs. Ferguson’s penalty phase testimony as
an “emotional appeal,” and overrode the jury’s
life recommendation on the basis of that finding,
resulting in an arbitrary and discriminatory death sentence . . . . 59
i.
ii.
b.
The decision of the Alabama Court of Criminal
Appeals on direct appeal . . . . . . . . . . . . . . . . . . . . . . . . . 63
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
The sentencing judge did not afford the jury’s
recommendation the weight it was due under
Ex parte Carroll and Ex parte Tomlin; and, as
a result, Ferguson’s death sentence was arbitrary
and capricious .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
i.
ii.
B.
The decision of the Alabama Court of Criminal
Appeals on collateral review . . . . . . . . . . . . . . . . . . . . . . 70
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Ferguson’s Constitutional Rights Were Violated When He Was Involuntarily
Medicated by the State and, Thereby, Rendered Incompetent to
Stand Trial .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
1.
The procedural posture of Ferguson’s contention that he
was incompetent at trial due to the involuntary administration
of Haldol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
3
2.
The law applicable to the claim of drug-induced incompetency
to stand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3.
Analysis of Ferguson’s behavior and mental state at the time of
trial as it bears upon his claim under the substantive component
of the Due Process Clause that the administration of
antipsychotic medications by state officials prior to trial
rendered him incompetent at trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
a.
b.
C.
The report of Ferguson’s retained psychologist,
Dr. James F. Chudy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
c.
4.
The report of the court-appointed psychologist,
Dr. C. Van Rosen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Analysis of evidence bearing upon Ferguson’s behavior
and mental state at the time of trial. . . . . . . . . . . . . . . . . . . . . . . 103
Analysis of Ferguson’s claim that the administration of
medications by state officials without his consent violated
his “substantive due process” rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Ferguson’s Trial Counsel Denied Him Effective Assistance During the
Sentencing Phase of Trial, Before the Trial Judge . . . . . . . . . . . . . . . . . . . . 107
1.
The trial evidence of physical abuse by Ferguson’s
stepfather .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
2.
Additional allegations of physical abuse by Ferguson’s
stepfather included in the Rule 32 petition . . . . . . . . . . . . . . . . . . . . . . . 108
3.
The adjudication of Ferguson’s physical abuse allegations by the
Alabama Court of Criminal Appeals on collateral review. . . . . . . . . . . 110
4.
Analysis of the claim that counsel was ineffective during the
sentencing phase of trial, for failing to investigate and present
additional evidence of physical abuse of Ferguson by
his stepfather .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
5.
The claim that counsel was ineffective during the sentencing
phase of trial for failing to investigate and present additional
evidence of childhood sexual abuse of Ferguson . . . . . . . . . . . . . . . . . . 123
4
a.
The trial evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
b.
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
D.
Ferguson’s Trial Counsel Denied Him Effective Assistance During the
Guilt Phase .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
E.
Ferguson’s Pre-Trial Counsel Denied Him Effective Assistance . . . . . . . . . 132
1.
2.
Ferguson’s claim that counsel provided ineffective
representation during the time period surrounding
Ferguson’s statements to law enforcement .. . . . . . . . . . . . . . . . . . . . . . 137
3.
F.
Was the opinion of the Alabama Court of Criminal Appeals
an adjudication on the merits? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Ferguson’s claim that Tony Glenn breached a
duty of loyalty to Ferguson, and “arguably”
harbored an actual conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Ferguson Was Improperly Denied a Hearing on His Mental Capacity Under
Atkins v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
1.
Historical development and presentation of this claim in
state court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
a.
Direct review pre-Atkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
i.
Ferguson’s mental health expert . . . . . . . . . . . . . . . . . . 148
ii.
The State’s mental health expert .. . . . . . . . . . . . . . . . . . 157
b.
c.
2.
The Rule 32 proceedings conducted after
Atkins v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Collateral Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
The habeas claim .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
a.
Intellectual functioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
i.
The Flynn Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
5
ii.
Standardized malingering test . . . . . . . . . . . . . . . . . . . . 179
b.
c.
3.
Adaptive Functioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Onset before age eighteen .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
G.
H.
VI.
The Trial Judge Violated Ferguson’s Constitutional Rights by Refusing
to Consider Undisputed Mitigating Evidence . . . . . . . . . . . . . . . . . . . . . . . . 189
Execution by Lethal Injection Constitutes Cruel and Unusual
Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
I. PROCEDURAL HISTORY
Thomas Dale Ferguson was indicted for four counts of capital murder on
September 24, 1997.1 Attorneys Kenneth Millican and J. Tony Glenn were appointed
as defense counsel on December 12, 1997, and March 2, 1998, respectively.2 Glenn
1
Rule 32 C.R. Vol. 1, Tab. 1, at 1, 8-9. NOTE: The court will utilize the following method
of citation to the record. References to specific pages of the court record on direct appeal are
designated “C.R.___”, and references to the transcript on direct appeal are designated “R.___.”
References to the record of the Rule 32 proceedings in state court will be designated “Rule 32 C.R.
___.” The court will strive to list any page number associated with the court records by reference
to the numbers at the bottom of each page of a particular document (i.e., the original pagination),
if those numbers are the most readily discoverable for purposes of an expedient examination of that
part of the record. Otherwise, the page numbers will those stamped at the top of each page by the
court’s Electronic Case Filing system (“ECF”), which allows parties to file and serve documents
electronically. See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal.
Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF
header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook:
A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)).
Even so, the Bluebook recommends “against citation to ECF pagination in lieu of original
pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite
the original pagination in the parties’ pleadings. When the court cites to pagination generated by the
ECF header, the citation will precede the page number with the letters “ECF.”
2
Id. at 1-2. Although Tony Glenn was not formally appointed as one of Ferguson’s defense
6
subsequently became ill, however, and both attorneys were allowed to withdraw.
Attorneys Greg Hughes and Arthur Madden were appointed as successor defense
attorneys on March 18, 1998.3 Trial commenced on June 22, 1998,4 and Ferguson
was found guilty of four counts of capital murder three days later.5 A penalty hearing
followed, and the jury, by a vote of 11 to 1, recommended that he be sentenced to life
in prison without the possibility of parole.6 The formal sentencing hearing required
by Alabama Code § 13A-5-47 (1975) was conducted on September 8, 1998, and the
trial court judge sentenced Ferguson to death. Attorneys Greg Hughes and Arthur
Madden continued to represent Ferguson following the sentencing, and throughout
the remainder of the direct appeal process.
Ferguson appealed his conviction and sentence to the Alabama Court of
Criminal Appeals, and that court entered a published opinion, affirming Ferguson’s
conviction and death sentence, on June 30, 2000. See Ferguson v. State, 814 So. 2d
925 (Ala. Crim. App. 2000).
The Supreme Court of Alabama found no reversible error, plain or otherwise,
and affirmed the conviction and sentence on July 6, 2001. See Ex parte Ferguson,
attorneys until March 2, 1998, he began acting as such during August of 1997. Doc no. 9, at 41.
3
Id. at 2.
4
Id. at 2 & 4.
5
Id. at 10.
6
Id. at 11.
7
814 So. 2d 970 (Ala. 2001).
The United States Supreme Court denied Ferguson’s petition for writ of
certiorari on March 4, 2002. See Ferguson v. Alabama, 535 U.S. 907 (2002).
Ferguson filed a pro se petition for relief from judgment pursuant to Rule 32
of the Alabama Rules of Criminal Procedure on February 24, 2003.7 Soon thereafter,
attorneys T. Thomas Cottingham and Vance Salter entered notices of appearance and
were appointed to represent Ferguson.8 The State filed an Answer on May 19, 2005.9
Ferguson’s petition was summarily denied by the trial court on October 18, 2006.10
Thomas Cottingham and Vance Salter continued to represent Ferguson after the trial
court’s judgment was entered and throughout the remainder of the state postconviction review process.
Ferguson filed a notice of appeal on November 15, 2006.11 The Alabama
Court of Criminal Appeals affirmed the trial court’s decision on April 4, 2008. See
Ferguson v. State, 13 So. 3d 418 (Ala. Crim. App. 2008).
The Supreme Court of Alabama denied certiorari review on January 16, 2009.
See Ex parte Ferguson, No. CR-06-0327 (Ala. Jan. 16, 2009). Ferguson filed the
7
See Rule 32 C.R. Vol. 12, Tab. 40.
8
Id. at 163-82.
9
Id., Vol. 12, Tab. 41, at 185-200; Vol. 13, at 201-73.
10
Id., Vol. 16, Tab. 51, at 1-65.
11
Id., Vol. 14, at 507-15.
8
present habeas petition pursuant to 28 U.S.C. § 2254 on January 22, 2009. T.
Thomas Cottingham represents Ferguson in these proceedings.
II. THE OFFENSE OF CONVICTION
The following summary of the offense of conviction is copied from the opinion
of the Alabama Court of Criminal Appeals on direct appeal. See Ferguson v. State,
514 So. 2d 925 (Ala. Crim. App. 2000).
The appellant, Thomas Dale Ferguson, was indicted for four
counts of capital murder in connection with the shooting deaths of
Harold Pugh and his 11-year-old son Joey Pugh. The jury found
Ferguson guilty of all counts charged in the indictment: two counts of
murder made capital because the killings were committed during the
course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala. Code
1975; one count of murder made capital because it involved the murder
of two or more persons by one act or pursuant to one scheme or course
of conduct, see § 13A-5-40(a)(10), Ala. Code 1975; and one count of
murder made capital because the victim was less than 14 years old, see
§ 13A-5-40(a)(15), Ala. Code 1975. The jury recommended, by a vote
of 11-1, that Ferguson be sentenced to life imprisonment without the
possibility of parole.
The trial court overrode the jury’s
recommendation and sentenced Ferguson to death by electrocution.
....
The State’s evidence tended to show the following. On July 21,
1997, Harold Pugh and his 11-year old son Joey Pugh were reported
missing to the Colbert County Sheriff’s Department. Mike Sennett, a
friend of the Pughs, testified that in the early evening hours of July 21,
after hearing that the Pughs were missing, he and several friends went
looking for the Pughs at Cane Creek in Colbert County. The local
authorities and a rescue squad were also searching for the Pughs in this
same area. Sennett testified that Harold and his son were avid
9
fishermen. Making one more pass up Cane Creek in his boat before
going home, Sennett found the bodies of Harold and Joey Pugh floating
in the creek. Autopsies conducted the following day revealed that each
victim had been shot twice in the head.
Several days later, on July 26, 1997, a boat was found in a
clearing in a remote wooded area in neighboring Franklin County. In
the boat were rods and reels, a tacklebox, life jackets, a baseball-style
cap with a wristwatch inside it (on the boat’s front seat), and another
baseball-style cap on the backseat. At Ferguson’s trial, the individual
who found the boat testified that because he had heard television and
radio reports that the sheriff’s department was looking for a boat, a
description of which matched that of the boat he found in the wooded
area, he telephoned the sheriff’s department.
Oscar Hood of the Colbert County Sheriff’s Department testified
that he received the call concerning the boat and that when he arrived at
the location, the boat appeared to be the boat that the authorities were
looking for in connection with the Pughs’ murders. Hood ran a
registration check on the boat and determined that it was in fact Harold
Pugh’s boat. Other testimony at trial showed that a pedestal-type seat
had been removed from the boat and that two spent 9mm shell casings
were found inside the boat.
Further testimony revealed that on the day the victims’ bodies
were found, two armed men wearing dark-colored army fatigues, hooded
shirts, sunglasses, and gloves had robbed the Deposit Guaranty National
Bank in Belmont, Mississippi. An employee at the bank testified that
she could not identify the men, but that she could identify the truck the
men had fled in after the robbery. She described the truck as a black
Chevrolet Z-71 pickup truck with a chrome toolbox in the rear bed.
Shortly after the robbery, a truck matching that description was found
by an officer of the Belmont Police Department five miles from the
bank, in a heavily wooded area. The truck, which had been set on fire,
was discovered after the police saw the smoke from the fire. On the
front passenger-side floorboard of the truck, the police found a
pedestal-type seat, which, according to testimony, was typical of the
10
seats found in the front of bass-fishing boats.
Following his arrest, Ferguson gave police a statement concerning
his involvement in the robbery and murders of Harold and Joey Pugh
and in the robbery of the bank in Mississippi. Ferguson told police that
he and his four codefendants — Mark Moore,FN1 Michael Craig
Maxwell,FN2 Donald Risley, and Kino Graham — had conspired to rob
banks to get money. According to Ferguson, they bought clothing
matching that described by the employee of the bank robbed in Belmont,
Mississippi, to wear during the robberies, and Moore also bought guns,
handheld radios, and other items to use in the robberies. Ferguson told
police that Moore was the “leader” of the group.
FN1. Moore was Ferguson’s wife’s stepfather.
FN2. Maxwell was also convicted and sentenced to death for the
capital murders of Harold and Joey Pugh. We affirmed his conviction
and death sentence in Maxwell v. State, [Ms. CR-97-2150, May 26,
2000] __So. 2d __ (Ala. Cr. App. 2000).
In addition, Ferguson told police that on the day of the murders,
he and the others were looking for two cars to steal to use in the
Belmont bank robbery. According to Ferguson, while he, Moore,
Maxwell, Graham, and Risley were looking for a car to steal, they saw
the Pughs’ truck parked near the boat landing at Cane Creek. When the
Pughs arrived at the landing in their boat, Ferguson said, Harold Pugh
got out of the boat and into his truck. According to Ferguson, before he
knew it, Maxwell was holding a gun to the Pughs and was ordering the
Pughs to get back into the boat. Ferguson said that Maxwell jumped
into the boat, along with Moore, and that Moore then ordered Ferguson
to get into the boat. According to Ferguson, Maxwell was armed with
a 9mm pistol and Moore was armed with a .357 pistol. Ferguson
maintained that he did not have a weapon. Ferguson stated that they
then left in the boat with the victims, heading downstream, while Risley
and Graham waited with the truck. According to Ferguson, he heard a
shot and saw that Maxwell had shot Harold Pugh. Ferguson claimed
that he did not know who shot Joey Pugh, but he did say that Maxwell
and Moore threw the victims’ bodies into the creek.
11
Ferguson stated that after the shooting he became physically ill
and that he was throwing up and very upset. Ferguson further stated that
after the murders, Moore threatened him, telling Ferguson that if he told
anyone about what had happened, he would kill Ferguson and
Ferguson’s family.
Ferguson stated that after returning the boat to the landing where
Graham and Risley were waiting, he and the others then loaded the boat
onto the trailer and drove the Pughs’ truck and the boat to a clearing in
the woods in Franklin County. Ferguson said that he removed a
pedestal-type seat from the boat and threw it inside the victims’ truck.
The following morning, according to Ferguson, Moore came to
his house and the two left together to pick up Risley. Then, Ferguson
said, they went to Maxwell’s apartment where everyone, except Graham,
who did not come to Maxwell’s apartment, discussed plans to rob the
bank in Belmont, Mississippi. Ferguson stated that Maxwell and Risley,
who, according to Ferguson, were going to be the ones to go inside the
bank, left Maxwell’s apartment in Maxwell’s car, followed by him and
Moore in Moore’s truck, and drove to where they had left the victims’
truck and boat. From that location, Ferguson said, Risley drove the
victims’ truck to Belmont, and Maxwell drove his own car, while he and
Moore followed in Moore’s truck. Maxwell stated that he and the other
men then drove to a location in Belmont, near the bank, where they left
Maxwell’s car. From there, Ferguson said, Maxwell and Risley drove
the victims’ truck to the bank as he and Moore, who were to act as
“covers” while the bank was being robbed, followed in Moore’s truck.
Ferguson stated that after Maxwell and Risley had committed the
robbery, Maxwell drove the victims’ truck back to the location where
they left Maxwell’s car, and he and Moore met them at that location.
Ferguson said that they put their guns in Moore’s truck, and put the
clothes they had worn in the robbery in the victims’ truck. According
to Ferguson, Risley then poured gasoline on the victims’ truck and set
it on fire. Ferguson stated that he and the others then returned to
Maxwell’s apartment, where they divided the proceeds of the bank
robbery — approximately $40,000.
12
Shortly after the questioning ended and Ferguson had completed
his statement, Ferguson told Investigator Frank Brians that he had
something else he wanted to say. Ferguson then stated that he had lied
in his earlier statement when he said that Moore was at Cane Creek and
on the boat when the Pughs were murdered. Ferguson now said that
Moore was not at Cane Creek and that Moore was not on the boat when
the victims were shot, but that only Ferguson and Maxwell were on the
boat with the victims. Ferguson, who still maintained that he was not
armed while on the boat, now claimed that Maxwell shot both victims.
Donald Risley, one of Ferguson’s codefendants, testified at
Ferguson’s trial and corroborated most of Ferguson’s statement to
police. Risley’s wife and Ferguson’s wife were first cousins, and Risley
had been friends with Ferguson for approximately eight years. Risley
testified that Ferguson had approached him and asked him if he wanted
to get involved in the plan to rob banks to get some “easy money.” (R.
510.) Risley stated that Moore and Maxwell were the “leaders of the
group.” (R. 514.) Risley, like Ferguson, testified concerning the
circumstances surrounding the murders at Cane Creek and the bank
robbery in Belmont. Risley testified that on the afternoon of the
murders, Ferguson picked him up at a friend’s, Daryl May’s, house and
that he and Ferguson then went to Maxwell’s apartment. From there,
Risley said, they went to Cane Creek where they saw the victims’ truck
parked at the boat landing. Risley stated that he was armed with a .357
pistol, that Maxwell had a 9mm pistol, that Graham had a Colt .45
pistol, and that Ferguson was carrying a .357 pistol. Testifying to
essentially the same facts as Ferguson did concerning how they
approached the Pughs and ordered them into the boat, Risley further
testified that Maxwell and Ferguson got into the boat with the victims
and Maxwell drove the boat downstream. Risley said that the victims
were sitting in the back of the boat, while Ferguson was standing near
the front and was pointing a gun at the Pughs. Risley testified that
neither he nor Ferguson were threatened into robbing the Pughs and that
no one threatened Ferguson to get him to get into the boat. According
to Risley, when Ferguson and Maxwell returned in the boat,
approximately 10 minutes after they had left, neither victim was in the
13
boat and Ferguson was sitting on a pedestal-type seat in the front of the
boat.
Risley continued to testify to the events that occurred after the
murders up until the time of the robbery of the bank in Mississippi.
Risley testified to essentially the same facts as did Ferguson in his
statement to police. Risley stated that Ferguson took the pedestal-type
seat out of the boat and put it in the truck because, Risley said, Ferguson
was afraid that he might have touched it and left his fingerprints on it.
Risley also stated that while he was at Cane Creek, Ferguson never
appeared to be sick or upset, and he never saw Ferguson throw up.
Risley further told police that several days after the murders, Ferguson,
in response to Risley’s question whether he had shot the Pughs, said that
he had and further told Risley that he and Maxwell had shot them
because they did not want any witnesses. Ferguson also told Risley that
he shot Harold Pugh and that Maxwell shot Joey Pugh. Maxwell, who
was also present during Risley’s and Ferguson’s conversation about the
shooting, told Risley that Harold was not dead after the first shot, so he
shot him again and he made Ferguson shoot Joey again.
Other evidence at trial showed that the 9mm pistol police took
from Moore’s house was the weapon that fired at least one of the bullets
recovered from Harold Pugh’s body. The two spent shell casings found
in the boat were also fired by the 9mm pistol recovered from Moore’s
house. The evidence further showed that one of the bullets recovered
from Harold’s body and one of the bullets recovered from Joey’s body
were lead semi-wad cutter bullets that could be loaded in either a .38 or
.357 pistol. Although the State’s firearms expert could not conclusively
state that a .357 pistol taken from Moore’s house was the weapon that
fired two of the bullets recovered from the victims’ bodies, he was able
to say that the pistol was the type of pistol that could fire that particular
type of bullet. The State’s firearms expert also testified that a bag of
ammunition, which had been taken from Ferguson’s house and
submitted to him for evaluation, contained ammunition that was capable
of being fired through the .357 pistol recovered from Moore’s house.
There was also testimony that Ferguson, Maxwell, Graham, and
14
Moore had all worked together at a furniture distribution center in
Russellville, in Franklin County, Alabama. All of the men, except
Graham, quit their jobs, or failed to return to work, in the early to middle
part of July 1997, just several weeks before the Pughs’ murders and the
bank robbery in Belmont. Graham last reported to work on August 20,
1997. Also, Daryl May, a friend and coworker of Ferguson’s, testified
that on the afternoon of the murders, Maxwell came to his house to pick
up Ferguson, who was watching television there. May also testified that
because Risley did not have a car, he drove him to work every morning,
except the morning of July 21, the day after the murders. May said that
Risley did not show up for work that morning. Testimony also showed
that in late July 1997, shortly after the bank robbery in Belmont,
Ferguson paid $1,750 in cash for a used car, using “new” $20 bills.
Ferguson v. State, 814 So. 2d at 933-37 (bracketed alteration in original).
III. THE SENTENCE
The following portion of the opinion of the Alabama Court of Criminal
Appeals on direct appeal is an affirmation of the trial judge’s sentence of death,12 and
an independent examination of the propriety of the death sentence, as required by
Alabama law.
We have also reviewed Ferguson’s sentence in accordance with
§ 13A-5-51, Ala. Code 1975, which requires that, in addition to
reviewing the case for any error involving Ferguson’s capital murder
convictions, we shall also review the propriety of the death sentence.
This review shall include our determination of the following: (1)
whether any error adversely affecting the rights of the defendant
occurred in the sentence proceedings; (2) whether the trial court’s
findings concerning the aggravating circumstances and the mitigating
circumstances were supported by the evidence; and (3) whether death is
12
The trial judge’s comprehensive, 47-page sentencing order is found at C.R. Vol. 16, Tab.
47, at 1-47.
15
the appropriate sentence in the case. Section 13A-5-53(b) requires that,
in determining whether death is a proper sentence, we determine: (1)
whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor; (2) whether an
independent weighing by this court of the aggravating and mitigating
circumstances indicates that death is the proper sentence; and (3)
whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant.
After the jury convicted Ferguson of the capital offenses charged
in the indictment, a separate sentence hearing was held before the jury
in accordance with §§ 13A-5-45 and -46, Ala. Code 1975. After hearing
evidence concerning aggravating and mitigating circumstances, after
being properly instructed by the trial court as to the applicable law, and
after being correctly advised as to its function in finding any aggravating
and mitigating circumstances, the weighing of those circumstances, if
appropriate, and its responsibility in reference to the return of an
advisory verdict, the jury recommended, by a vote of 11-1, that
Ferguson be sentenced to life imprisonment without the possibility of
parole.
Thereafter, the trial court held another hearing, in accordance with
§ 13A-5-47, Ala. Code 1975, to aid it in determining whether it would
sentence Ferguson to death or to life imprisonment without parole as the
jury recommended. The trial court ordered and received a written
presentence investigation report, as required by § 13A-5-47(b). After
the hearing, the trial court entered specific written findings concerning
each aggravating circumstance enumerated in § 13A-5-49, Ala. Code
1975, each mitigating circumstance enumerated in § 13A-5-51, Ala.
Code 1975, and any mitigating circumstance found to exist under §
13A-5-52, Ala. Code 1975, as well as written findings of fact
summarizing the offense and Ferguson’s participation in the offense.
In its findings of fact, the trial court found the existence of one
statutory aggravating circumstance: that the murders were committed
while Ferguson was engaged in the commission of a robbery, see §
16
13A-5-49(4), Ala. Code 1975. The trial court found the existence of one
statutory mitigating circumstance: that Ferguson had no significant
history of prior criminal activity, see § 13A-5-51(1), Ala. Code 1975.
The trial court also heard testimony regarding Ferguson’s character or
record and any of the circumstances of the offense that Ferguson offered
as a basis for sentencing him to life imprisonment without parole instead
of death, see § 13A-5-52, Ala. Code 1975. In this regard, the trial court
found the following evidence to be mitigating: (1) that Ferguson
surrendered to the authorities and that he confessed to his involvement
in the murders (although, as the trial court noted in its sentencing order,
he did not do so immediately after the murders but instead waited until
one month after the murders); and (2) that the jury recommended life
imprisonment without the possibility of parole.
The trial court’s sentencing order reflects that after considering all
the evidence presented, the presentence report, and the advisory verdict
of the jury and after weighing the aggravating circumstance against the
statutory and nonstatutory mitigating circumstances in the case, the trial
court found that the aggravating circumstance outweighed the statutory
and nonstatutory mitigating circumstances. Accordingly, the trial court
sentenced Ferguson to death. The trial court’s findings concerning the
aggravating circumstances and the mitigating circumstances are
supported by the evidence.
Ferguson was convicted of the offenses of murder committed
during a robbery, murder of two or more persons by one act or pursuant
to one scheme or course of conduct, and the murder of a child less than
14 years of age. These offenses are defined by statute as capital
offenses. See § 13A-5-40(2), (10), and (15), Ala. Code 1975. We take
judicial notice that similar crimes have been punished capitally
throughout the state. See, e.g., cases dealing with murders committed
during a robbery: Sneed v. State, 783 So. 2d 841 (Ala. Crim. App.
1999); Hardy v. State, 804 So.2d 247 (Ala. Crim. App. 1999); [seven
additional citations omitted]; see also, e.g., cases dealing with the
murder of two or more persons pursuant to one course of conduct:
Wilson v. State, 777 So. 2d 856 (Ala. Crim. App. 1999); Freeman v.
State, 776 So. 2d 160 (Ala. Crim. App. 1999) [six additional citations
17
omitted]; cases dealing with the murder of a child under 14 years of age:
Ward v. State, 814 So. 2d 899 (Ala. Crim. App. 2000); Dunaway v.
State, 746 So. 2d 1021 (Ala. Crim. App. 1998).
After carefully reviewing the record of the guilt phase and the
sentencing phase of Ferguson’s trial, we find no evidence that the
sentence was imposed under the influence of passion, prejudice, or any
other arbitrary factor. We conclude that the findings and the
conclusions of the trial court are amply supported by the evidence. We
have independently weighed the aggravating circumstance against the
statutory and nonstatutory mitigating circumstances, and we concur in
the trial court’s judgment that the aggravating circumstance outweighs
the mitigating circumstances, and that death is the appropriate sentence
in this case. Considering Ferguson and the crime he committed, we find
that the sentence of death is neither excessive nor disproportionate to the
penalty imposed in similar cases.
Ferguson v. State, 814 So. 2d at 968-70 (alterations supplied).
IV. INTRODUCTION TO A DISCUSSION OF
FERGUSON’S SUBSTANTIVE CLAIMS:
The Scope of Federal Habeas Review
“The habeas statute unambiguously provides that a federal court may issue the
writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.’” Wilson v. Corcoran, — U.S.
—, 131 S. Ct. 13, 16 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s
review of claims seeking habeas relief is limited to questions of federal constitutional
and statutory law. Claims that turn solely upon state law principles fall outside the
ambit of this court’s authority to provide relief under § 2254. See Alston v.
18
Department of Corrections, 610 F. 3d 1318, 1326 (11th Cir. 2010) (holding that a
claim addressing either “an alleged defect in a collateral proceeding,” or a state
court’s “interpretation of its own law or rules,” does not provide a basis for federal
habeas relief) (citations omitted).
A.
Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review
A habeas petitioner is required to present his federal claims to the state court,
and to exhaust all of the procedures available in the state court system, before seeking
relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666
(2005) (holding that a petitioner “can seek federal habeas relief only on claims that
have been exhausted in state court”). That requirement serves the purpose of
ensuring that state courts are afforded the first opportunity to address federal
questions affecting the validity of state court convictions and, if necessary, correct
violations of a state prisoner’s federal constitutional rights. As explained by the
Eleventh Circuit:
In general, a federal court may not grant habeas corpus relief to
a state prisoner who has not exhausted his available state remedies. 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State. . . .”).
“When the process of direct review . . . comes to an end, a presumption
of finality and legality attaches to the conviction. . . . The role of federal
19
habeas proceedings, while important in assuring that constitutional
rights are observed, is secondary and limited. Federal courts are not
forums in which to relitigate state trials.” Smith v. Newsome, 876 F.2d
1461, 1463 (11th Cir. 1989) (quoting Barefoot v. Estelle, 463 U.S. 880,
887 (1983)).
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t][13] federal claims to the state courts in order to give the
State the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)
(citing Picard v. Connor, 404 U.S. 270, 275-76 (1971) (internal
quotation marks omitted). The Supreme Court has written these words:
[T]hat the federal claim must be fairly presented to the state
courts . . . . it is not sufficient merely that the federal
habeas applicant has been through the state courts. . . .
Only if the state courts have had the first opportunity to
hear the claim sought to be vindicated in a federal habeas
proceeding does it make sense to speak of the exhaustion
of state remedies.
Picard, 404 U.S. at 275, 92 S. Ct. at 512. See also Duncan, 513 U.S. at
365, 115 S. Ct. at 888 (“Respondent did not apprise the state court of his
claim that the evidentiary ruling of which he complained was not only
a violation of state law, but denied him the due process of law
guaranteed by the Fourteenth Amendment.”).
Thus, to exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal constitutional
issues. “It is not enough that all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar
state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6, 103
13
The phrases “fairly presented” and “properly exhausted” are synonymous. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999) (observing that the question is “not only whether a prisoner has
exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state courts”) (“properly” emphasized in original,
all other emphasis supplied).
20
S. Ct. 276, 277, 74 L. Ed. 2d 3 (1982) (citations omitted).
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (first and third alterations
and redactions in original) (footnote supplied).
B.
The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review
1.
General principles
It is well established that, if a habeas petitioner fails to raise his federal claim
in the state court system at the time and in the manner dictated by the state’s
procedural rules, the state court can decide the claim is not entitled to a review on the
merits. Stated differently, “the petitioner will have procedurally defaulted on that
claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2009) (emphasis supplied).
This so-called “procedural default” doctrine was explained by the Supreme Court in
Woodford v. Ngo, 548 U.S. 81 (2006), as follows:
In habeas, the sanction for failing to exhaust properly (preclusion of
review in federal court) is given the separate name of procedural default,
although the habeas doctrines of exhaustion and procedural default “are
similar in purpose and design and implicate similar concerns,” Keeney
v. Tamayo–Reyes, 504 U.S. 1, 7 (1992). See also Coleman v. Thompson,
501 U.S. 722, 731–732, 111 S. Ct. 2546 (1991). In habeas, state-court
remedies are described as having been “exhausted” when they are no
longer available, regardless of the reason for their unavailability. See
Gray v. Netherland, 518 U.S. 152, 161, 116 S. Ct. 2074, 135 L. Ed. 2d
457 (1996). Thus, if state-court remedies are no longer available
because the prisoner failed to comply with the deadline for seeking
state-court review or for taking an appeal, those remedies are technically
21
exhausted, ibid., but exhaustion in this sense does not automatically
entitle the habeas petitioner to litigate his or her claims in federal court.
Instead, if the petitioner procedurally defaulted those claims, the
prisoner generally is barred from asserting those claims in a federal
habeas proceeding. Id., at 162, 116 S. Ct. 2074; Coleman, supra, at
744–751, 111 S. Ct. 2546.
Woodford, 548 U.S. at 92-93.
Generally, if the last state court to examine a claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
and, and that procedural bar provides an adequate and independent state ground for
denying relief, then federal review of the claim also is precluded by federal
procedural default principles. See Cone v. Bell, 556 U.S. 449, 465 (2009); Coleman
v. Thompson, 501 U.S. 722, 731 (1991) (“When a petitioner fails to raise his federal
claims in compliance with relevant state procedural rules, the state court’s refusal to
adjudicate the claim ordinarily qualifies as an independent and adequate state ground
for denying federal review.”) (alteration supplied).
The federal courts’ authority to review state court criminal
convictions pursuant to writs of habeas corpus is severely restricted
when a petitioner has failed to follow applicable state procedural rules
in raising a claim, that is, where the claim is procedurally defaulted.
Federal review of a petitioner’s claim is barred by the procedural
default doctrine if the last state court to review the claim states clearly
and expressly that its judgment rests on a procedural bar, Harris v.
Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308
(1989), and that bar provides an adequate and independent state
ground for denying relief. See id. at 262, 109 S. Ct. at 1042-43;
22
Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100
L. Ed. 2d 575 (1988). The doctrine serves to ensure petitioners will first
seek relief in accordance with state procedures, see Presnell v. Kemp,
835 F.2d 1567, 1578-79 (11th Cir. 1988), cert. denied, 488 U.S. 1050,
109 S. Ct. 882, 102 L. Ed. 2d 1004 (1989), and to “lessen the injury to
a State that results through reexamination of a state conviction on a
ground that a State did not have the opportunity to address at a prior,
appropriate time.” McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454,
1470, 113 L. Ed. 2d 517 (1991).
Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (emphasis supplied).14
Federal deference to a state court’s clear finding of procedural default under
its own rules is so strong that:
“[A] state court need not fear reaching the merits of a federal claim in an
alternative holding. Through its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
14
“When the last state court rendering judgment affirms without explanation, [the federal
court will] presume that it rests on the reasons given in the last reasoned decision.” Mason v. Allen,
605 F.3d 1114, 1118 n.2 (11th Cir. 2009) (alteration supplied). As the Supreme Court observed in
Ylst v. Nunnemaker, 501 U.S. 797 (1991):
The problem we face arises, of course, because many formulary orders are not
meant to convey anything as to the reason for the decision. Attributing a reason is
therefore both difficult and artificial. We think that the attribution necessary for
federal habeas purposes can be facilitated, and sound results more often assured, by
applying the following presumption: Where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same ground. If an earlier
opinion “fairly appear[s] to rest primarily upon federal law,” we will presume that no
procedural default has been invoked by a subsequent unexplained order that leaves
the judgment or its consequences in place. Similarly where, as here, the last reasoned
opinion on the claim explicitly imposes a procedural default, we will presume that
a later decision rejecting the claim did not silently disregard that bar and consider the
merits.
Id. at 803 (first emphasis and alteration in original, second emphasis supplied) (citation omitted).
23
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law.” Harris, 489 U.S.
at 264 n.10, 109 S. Ct. 1038 (emphasis in original). See also Alderman
v. Zant, 22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia
habeas corpus court found that the petitioner’s claims were procedurally
barred as successive, but also noted that the claims lack merit based on
the evidence, “this ruling in the alternative did not have an effect . . . of
blurring the clear determination by the [Georgia habeas corpus] court
that the allegations was procedurally barred”), cert. denied, 513 U.S.
1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (alterations and emphasis in
original).
The Supreme Court defines an “adequate and independent” state court decision
as one that “‘rests on a state law ground that is independent of the federal question
and adequate to support the judgment.’” Lee v. Kemna, 534 U.S. 362, 375 (2002)
(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)) (emphasis in Lee)). The
questions of whether a state procedural rule is “independent” of the federal question
and “adequate” to support the state court’s judgment, so as to have a preclusive effect
on federal review of the claim, “‘is itself a federal question.’” Id. (quoting Douglas
v. Alabama, 380 U.S. 415, 422 (1965)).
To be considered “independent” of the federal question, “the state court’s
decision must rest solidly on state law grounds, and may not be ‘intertwined with an
interpretation of federal law.’” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
24
(quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). An example of
intertwining would be when “the State has made application of the procedural bar
depend on an antecedent ruling on federal law, that is, on the determination of
whether federal constitutional error has been committed.” Ake v. Oklahoma, 470 U.S.
68, 75 (1985). Stated differently, if “the state court must rule, either explicitly or
implicitly, on the merits of the constitutional question” before applying the state’s
procedural rule to a federal constitutional question, then the rule is not independent
of federal law. Id.
To be considered “adequate” to support the state court’s judgment, the state
procedural rule must be both “‘firmly established and regularly followed.’” Lee v.
Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In
other words, the rule must be “clear [and] closely hewn to” by the state for a federal
court to consider it as “adequate.” James, 466 U.S. at 346 (alteration supplied). That
does not mean that the state’s procedural rule must be rigidly applied in every
instance, or that occasional failure to do so will render the rule “inadequate.” “To
the contrary, a [state’s] discretionary [procedural] rule can be ‘firmly established’ and
‘regularly followed’ — even if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not others.” Beard v. Kindler, 558
U.S. 52, 60-61 (2009) (alterations supplied). Rather, the “adequacy” requirement
25
means only that the procedural rule “must not be applied in an arbitrary or
unprecedented fashion.” Judd, 250 F.3d at 1313 (emphasis supplied).
In summary, if the procedural rule is not firmly established, or if it is applied
in an arbitrary, unprecedented, or manifestly unfair fashion, it will not be considered
“adequate,” and the state court decision based upon such a rule can be reviewed by
a federal court. Card, 911 F.2d at 1517. Conversely, if the rule is deemed
“adequate,” the decision will not be reviewed by this court.
2.
Overcoming procedural default
There are basically three circumstances in which an otherwise valid state-law
ground will not bar a federal habeas court from considering a constitutional claim
that was procedurally defaulted in state court:
i.e., (i) where the petitioner
demonstrates that he had good “cause” for not following the state procedural rule,
and, that he was actually “prejudiced” by the alleged constitutional violation; or (ii)
where the state procedural rule was not “firmly established and regularly followed”;
or (iii) where failure to consider the petitioner’s claims will result in a “fundamental
miscarriage of justice.” See Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer,
J., concurring); see also, e.g., Coleman, 501 U.S. at 749-50 (holding that a state
procedural default “will bar federal habeas review of the federal claim, unless the
habeas petitioner can show cause for the default and prejudice attributable thereto, or
26
demonstrate that failure to consider the federal claim will result in a fundamental
miscarriage of justice”) (citations and internal quotation marks omitted); Murray v.
Carrier, 477 U.S. 478, 496 (1986) (“[W]here a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may
grant the writ even in the absence of a showing of cause for the procedural default.”)
(alteration supplied); Smith v. Murray, 477 U.S. 527, 537 (1986) (same); Davis v.
Terry, 465 F.3d 1249, 1252 n.4 (11th Cir. 2006) (“It would be considered a
fundamental miscarriage of justice if ‘a constitutional violation has probably resulted
in the conviction of one who is actually innocent.’”) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995) (in turn quoting Murray, 477 U.S. at 496)).
a.
The “cause and prejudice” standard
“A federal court may still address the merits of a procedurally defaulted claim
if the petitioner can show cause for the default and actual prejudice resulting from the
alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)
(citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis supplied). This
so-called “cause and prejudice” standard is clearly framed in the conjunctive;
therefore, a petitioner must prove both parts.
i.
“Cause”
To show “cause,” a petitioner must prove that “some objective factor external
27
to the defense impeded counsel’s efforts” to raise the claim in the state courts.
Carrier, 477 U.S. at 488; see also Amadeo v. Zant, 486 U.S. 214, 221-22 (1988).
Objective factors that constitute cause include “‘interference by
officials’” that makes compliance with the State’s procedural rule
impracticable, and “a showing that the factual or legal basis for a claim
was not reasonably available to counsel.” In addition, constitutionally
“[i]neffective assistance of counsel . . . [on direct review] is cause.”
Attorney error short of ineffective assistance of counsel [on direct
review], however, does not constitute cause and will not excuse a
procedural default.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (citations omitted) (first alteration
in original, all other alterations supplied).
While “[a]ttorney error [on direct review] that constitutes ineffective assistance
of counsel” has long been accepted as “cause” to overcome a procedural default, the
constitutional ineffectiveness of post-conviction counsel on collateral review
generally will not support a finding of cause and prejudice to overcome a procedural
default. Coleman, 501 U.S. at 754 (alterations supplied). That is because “[t]here is
no right to counsel in state post-conviction proceedings.” Id. at 752 (alteration
supplied) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano,
492 U.S. 1 (1989)).
Even so, in two recent landmark cases, the Supreme Court extended its prior
decision in Coleman when it decided that, as a matter of equity, and, under specific,
28
limited circumstances, errors by counsel on post-conviction, collateral review could
establish the necessary “cause” to overcome a procedurally defaulted claim. In the
first such case, Maples v. Thomas, — U.S. —, 132 S. Ct. 912 (2012), the Supreme
Court found that post-conviction counsel’s gross professional misconduct (e.g.
abandonment of the petitioner) severed the agency relationship between counsel and
the petitioner and, thus, established the necessary “cause” to overcome a procedural
default. Id. at 922.
In the second case, Martinez v. Ryan, 569 U.S. —, 132 S. Ct. 1309 (2012), the
Supreme Court held that post-conviction counsel’s failure to raise an ineffective
assistance of trial counsel claim at an initial review collateral proceeding could serve
as the necessary “cause” to overcome the procedural default of that type of claim
when the state prohibits it from being raised during the direct review process.15 Id.
at 1317.
ii.
“Prejudice”
In addition to proving the existence of “cause” for a procedural default, a
15
The court finds that, in this case, an ineffective assistance of trial counsel claim must have
been procedurally defaulted in the state Rule 32 court before the Martinez cause and prejudice
standard can even be applied. Moreover, the court is aware that T. Thomas Cottingham, one of
Ferguson’s post-conviction attorneys, also represents Ferguson in the present habeas action. If there
is a claim of ineffective assistance of trial counsel that was procedurally defaulted before the Rule
32 court, and further examination shows that resolution of the claim will necessarily create a conflict
of interest as to Cottingham’s further representation, the court will separately address that matter.
29
habeas petitioner must show that he was actually “prejudiced” by the alleged
constitutional violation. He must show “not merely that the errors at his trial created
a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis supplied); see also
McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam). If the
“cause” is of the type described in the Supreme Court’s 2012 decision in Martinez v.
Ryan, supra, then the reviewing court should consider whether the petitioner can
demonstrate “that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has
some merit.” Martinez, 132 S. Ct. at 1318-19 (citing for comparison Miller-El v.
Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability
to issue)).
b.
The “fundamental miscarriage of justice” standard
In a “rare,” “extraordinary,” and “narrow class of cases,” a federal court may
consider a procedurally defaulted claim in the absence of a showing of “cause” for
the default if either: (a) a fundamental miscarriage of justice “has probably resulted
in the conviction of one who is actually innocent,” Smith, 477 U.S. at 537-38 (quoting
Carrier, 477 U.S. at 496); or (b) the petitioner shows “by clear and convincing
30
evidence that[,] but for a constitutional error, no reasonable juror would have found
the petitioner eligible for the death penalty.” Schlup, 513 U.S. at 323-27 & n.44
(quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (emphasis in Schlup, alteration
supplied); see also, e.g., Smith, 477 U.S. at 537-38.
C.
The Statutory Overlay: The Effect of “the Antiterrorism and Effective Death
Penalty Act of 1996” on Habeas Review
The writ of habeas corpus “has historically been regarded as an extraordinary
remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true
when federal courts are asked to engage in habeas review of a state court conviction
pursuant to 28 U.S.C. § 2254.
Direct review is the principal avenue for challenging a conviction.
“When the process of direct review . . . comes to an end, a presumption
of finality and legality attaches to the conviction and sentence. The role
of federal habeas proceedings, while important in assuring that
constitutional rights are observed, is secondary and limited. Federal
courts are not forums in which to relitigate state trials.”
Id. (emphasis and redaction supplied) (quoting Barefoot v. Estelle, 463 U.S. 880, 887
(1983)). “Those few who are ultimately successful [in obtaining federal habeas
relief] are persons whom society has grievously wronged and for whom belated
liberation is little enough compensation.” Fay v. Noia, 372 U.S. 391, 440-41 (1963)
(alteration supplied).
“Accordingly, . . . an error that may justify reversal on direct appeal will not
31
necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634
(citations, quotation marks, and footnote omitted). That is due to the fact that, under
the federal system of governments created by the United States Constitution,
[t]he States possess primary authority for defining and enforcing the
criminal law. In criminal trials they also hold the initial responsibility
for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitutional rights.
Engle v. Isaac, 456 U.S. 107, 128 (1982) (alteration supplied).16
These principles were reinforced by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which amended preexisting habeas law.17 Among
other things, several provisions of the AEDPA require federal courts to give greater
deference to state court determinations of federal constitutional claims than before.
1.
28 U.S.C. § 2254(e)(1)
16
“The reason most frequently advanced in our cases for distinguishing between direct and
collateral review is the State’s interest in the finality of convictions that have survived direct review
within the state court system.” Brecht, 507 U.S. at 635 (citing Wright v. West, 505 U.S. 277, 293
(1992); McCleskey, 499 U.S. at 491; and Wainwright, 433 U.S. at 90).
17
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) was signed into law by
President Clinton on April 24, 1996. See Pub. L. No. 104-132, 110 Stat. 1214 (1996). The present
petition was filed after that date. Accordingly, the habeas statutes as amended by AEDPA apply to
the claims asserted in this case. See id. § 107(c), 110 Stat. at 1226; McNair v. Campbell, 416 F.3d
1291, 1297 (11th Cir. 2005) (applying AEDPA to habeas petitions filed after Act’s effective date);
Hightower v. Schofield, 365 F.3d 1008, 1013 (11th Cir. 2004) (same). See also Martin v. Hadix, 527
U.S. 343, 356 (1999) (discussing retroactivity of AEDPA amendments to § 2254). Cf. Lindh v.
Murphy, 521 U.S. 320, 327 (1997) (holding that AEDPA’s amendments do not apply to habeas
petitions filed prior to the Act’s effective date); Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir.
2001) (same); Thompson v. Haley, 255 F.3d 1292, 1295 (11th Cir. 2001) (same).
32
Section 2254(e)(1) requires district courts to presume that a state court’s factual
determinations are correct, unless the habeas petitioner rebuts the presumption of
correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also,
e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that §
2254(e)(1) provides “a highly deferential standard of review for factual
determinations made by a state court”). Section 2254(e)(1) “modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams
v. Taylor, 529 U.S. 362, 403-04 (2000)).
The deference that attends state court findings of fact pursuant to Section
2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus,
a presumption of correctness must be afforded to a state court’s factual findings, even
when the habeas claim is being examined de novo. See Mansfield v. Secretary,
Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012) (acknowledging
the federal court’s obligation to accept a state court’s factual findings as correct, if
unrebutted by clear and convincing evidence, and proceeding to conduct a de novo
review of the habeas claim)
The presumption of correctness also applies to habeas claims that were
33
adjudicated on the merits by the state court and, therefore, are claims subject to the
standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2) discussed in the
following section.
2.
28 U.S.C. § 2254(d)
“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the
merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington v. Richter, — U.S.—, 131 S. Ct. 770, 784 (2011). It does not matter
whether the state court decision contains a lengthy analysis of the claim, or is a
summary ruling “unaccompanied by explanation.” Id.
Further, the “backward-looking language” of the statute requires an
examination of the state-court decision on the date it was made. Cullen v. Pinholster,
— U.S. —, 131 S. Ct. 1388, 1398 (2011). That is, “[s]tate court decisions are
measured against [the Supreme] Court’s precedents as of ‘the time the state court
renders its decision.’” Id. at 1399 (alterations supplied) (quoting Lockyer v. Andrade,
588 U.S. 63, 71-72 (2003)).
Finally, “review under §[§] 2254(d)(1) [and (d)(2)] is limited to the record that
was before the state court that adjudicated the claim on the merits.” Id. at 1398, 1400
n.7 (alterations and emphasis supplied). Therefore, a federal habeas court conducting
2254(d) review should not consider new evidence “in the first instance effectively de
34
novo.” Id. at 1399.
A closer look at the separate provisions of 28 U.S.C. § 2254(d)(1) and (d)(2)
reveals that, when a state court has made a decision on a petitioner’s constitutional
claim, habeas relief cannot be granted, unless it is determined that the state court’s
adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d) (emphasis supplied).18
The “contrary to” and “unreasonable application” clauses of § 2254(d) have
been interpreted as “independent statutory modes of analysis.” Alderman v. Terry,
468 F.3d 775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07).19 When
18
Section 2254(d)(1)’s reference to “clearly established federal law, as determined by the
Supreme Court of the United States” has been interpreted by the Supreme Court as referencing only
“the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams, 529 U.S. at 412 (O’Connor, J., majority opinion) (emphasis
and alteration supplied); see also, e.g., Carey v. Musladin, 549 U.S. 70, 74 (2006) (same); Osborne
v. Terry, 466 F.3d 1298, 1305 (11th Cir. 2006) (same); Warren v. Kyler, 422 F.3d 132, 138 (3rd Cir.
2005) (“[W]e do not consider those holdings as they exist today, but rather as they existed as of the
time of the relevant state-court decision.”) (internal quotation marks and citation omitted) (alteration
supplied).
19
See also Williams, 529 U.S. at 404 (O’Connor, J., majority opinion) (“Section 2254(d)(1)
defines two categories of cases in which a state prisoner may obtain federal habeas relief with
respect to a claim adjudicated on the merits in state court. Under the statute, a federal court may
grant a writ of habeas corpus if the relevant state-court decision was either (1) ‘contrary to . . .
35
considering a state court’s adjudication of a petitioner’s claim, therefore, the habeas
court must not conflate the two modes of analysis.
a.
The meaning of § 2254(d)(1)’s “contrary to” clause
A state-court determination can be “contrary to” clearly established Supreme
Court precedent in at least two ways:
First, a state-court decision is contrary to this Court’s precedent if the
state court arrives at a conclusion opposite to that reached by this Court
on a question of law. Second, a state-court decision is also contrary to
this Court’s precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to ours.
Williams, 529 U.S. at 405 (emphasis supplied). See also, e.g., Brown v. Payton, 544
U.S. 133, 141 (2005) (same); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)
(same); Putman v. Head, 268 F.3d 1223, 1240-41 (11th Cir. 2001) (same).
The Eleventh Circuit has observed that the majority opinion in Williams does
not limit the construction of § 2254(d)(1)’s “contrary to” clause to the two examples
set forth above.20 Instead, the statutory language “simply implies that ‘the state
clearly established Federal law, as determined by the Supreme Court of the United States,’ or (2)
‘involved an unreasonable application of . . . clearly established Federal law, as determined by the
Supreme Court of the United States.’”) (emphasis supplied).
20
Indeed, as one commentator has observed, the possible permutations are not just two, but
at least four in number:
The word “contrary” denotes incompatibility or logical inconsistency. Two
propositions are incompatible with one another if both cannot be true or correct.
Thus, a state court decision is contrary to federal law if that decision and the
36
court’s decision must be substantially different from the relevant precedent of [the
Supreme] Court.’” Alderman, 468 F.3d at 791 (quoting Williams, 529 U.S. at 405)
(alteration supplied).
b.
The meaning of § 2254(d)(1)’s “unreasonable application”
clause
A state court’s determination of a federal constitutional claim can result in an
“unreasonable application” of clearly established Supreme Court precedent in either
of two ways:
First, a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing legal
rule from this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court decision also
involves an unreasonable application of this Court’s precedent if the
state court either unreasonably extends a legal principle from our
applicable federal law cannot both be true or correct. Given this premise, there
appears to be four possible combinations of state court adjudications and resulting
decisions that are pertinent to this textual inquiry:
•
the state court applies the correct federal standard and arrives at a correct
outcome;
•
the state court applies an incorrect federal standard and arrives at an incorrect
outcome;
•
the state court applies an incorrect federal standard and arrives at a correct
outcome; and,
•
the state court applies the correct federal standard and arrives at an incorrect
outcome.
Allan Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary on Statutory
Text and Supreme Court Precedent, 60 WASH. & LEE L. REV. 677, 685 (2003) (footnotes omitted).
37
precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.
Williams, 529 U.S. at 407 (emphasis supplied). See also, e.g., Putman, 268 F.3d at
1240-41 (same).
It is important to notice that “an unreasonable application of federal law is
different from an incorrect application.” Williams, 529 U.S. at 410 (emphasis in
original). A federal habeas court “may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411 (emphasis supplied).
In other words, the question that should be asked is not whether the state court
“correctly” applied Supreme Court precedent when deciding the federal constitutional
issue, but whether the state court’s determination was “unreasonable.”
Id. at 409
(“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”) (alteration supplied). See also, e.g., Bell, 535 U.S. at 694 (observing
that the “focus” of the inquiry into the reasonableness of a state court’s determination
of a federal constitutional issue “is on whether the state court’s application of clearly
established federal law is objectively unreasonable,” and stating that “an
38
unreasonable application is different from an incorrect one”); Harrington v. Richter,
— U.S. —, 131 S. Ct. 770, 785-87 (2011) (same).21
In order to demonstrate that a state court’s application of clearly established
federal law was “objectively unreasonable,” the habeas petitioner “must show that
the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 786-87 (emphasis
supplied). Stated another way, if the state-court’s resolution of a claim is debatable
among fairminded jurists, it is not “objectively unreasonable.”
“By its very language, [the phrase] ‘unreasonable application’ refers to mixed
questions of law and fact, when a state court has ‘unreasonably’ applied clear
Supreme Court precedent to the facts of a given case.” Neelley v. Nagle, 138 F.3d
917, 924 (11th Cir. 1998) (citation and footnote omitted) (alteration supplied). Mixed
21
The Eleventh Circuit has observed that § 2254(d)(1)’s “unreasonable application”
provision is the proper statutory lens for viewing the “run-of-the-mill state-court decision applying
the correct legal rule.” Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006).
In other words, if the state court identified the correct legal principle but
unreasonably applied it to the facts of a petitioner’s case, then the federal court
should look to § 2254(d)(1)’s “unreasonable application” clause for guidance. “A
federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”
Id. (quoting Williams, 529 U.S. at 409) (emphasis in original).
39
questions of constitutional law and fact are those decisions “which require the
application of a legal standard to the historical-fact determinations.” Townsend v.
Sain, 372 U.S. 293, 309 n.6 (1963).
c.
The meaning of § 2254(d)(2)’s clause addressing an
“unreasonable determination of the facts in light of the evidence
presented in the state court proceeding”
“28 U.S.C. § 2254(d)(2) imposes a ‘daunting standard — one that will be
satisfied in relatively few cases.’” Cash v. Maxwell, — U.S. —, 132 S. Ct. 611, 612
(2012) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010) (internal quotation
marks omitted in original)).
As we have observed in related contexts, “[t]he term ‘unreasonable’ is
no doubt difficult to define.” Williams v. Taylor, 529 U.S. 362, 410, 120
S. Ct. 1495, 146 L. Ed. 2d 389 (2000). It suffices to say, however, that
a state-court factual determination is not unreasonable merely because
the federal habeas court would have reached a different conclusion in
the first instance. Cf. id., at 411, 120 S. Ct. 1495.
Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore, “even if ‘[r]easonable minds
reviewing the record might disagree’ about the finding in question, ‘on habeas review
that does not suffice to supersede the trial court’s . . . determination.” Id. (quoting
Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (alteration in original). Conversely,
when a state court’s adjudication of a habeas claim result[s] in a
decision that [i]s based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding, this Court
is not bound to defer to unreasonably-found facts or to the legal
40
conclusions that flow from them.
Adkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249 -1250 (11th
Cir. 2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en
banc) (alteration in original) (quotation marks and citations omitted in original)).
d.
Evaluating state court factual determinations under 28 U.S.C. §§
2254(d)(2) and (e)(1)
As set out in the previous parts of this opinion, 28 U.S.C. § 2254(d)(2)
regulates federal court review of state court findings of fact. That provision limits the
availability of federal habeas relief on any claims by a state prisoner that are
grounded in a state court’s factual findings, unless the state court’s findings were
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Moreover, it must be remembered that 28 U.S.C. § 2254(e)(1) provides that
factual determinations made by a state court are “presumed to be correct,” and that
the habeas petitioner bears “the burden of rebutting the presumption of correctness
by clear and convincing evidence.” See 28 U.S.C. § 2254(e)(1) (emphasis supplied);
Ward, 592 F.3d at 1155 (holding that the presumption of correctness attending a state
court’s findings of fact can be overcome only by clear and convincing evidence).
Nevertheless, there is Eleventh Circuit case authority observing that the manner
41
in which subsections 2254(d)(2) and(e)(1) relate to one another remains an open
question. See Cave v. Secretary for Department of Corrections, 638 F.3d 739, 74445 (11th Cir. 2011) (“‘[N]o court has fully explored the interaction of § 2254(d)(2)’s
‘unreasonableness’ standard and § 2254(e)(1)’s ‘clear and convincing evidence’
standard.”) (quoting Gore v. Secretary for Department of Corrections, 492 F.3d 1273,
1294 n.51 (11th Cir. 2007)).
Even so, the Eleventh Circuit’s earlier opinion in Ward v. Hall, 592 F.3d 1144
(2010), clearly held that federal habeas courts “must presume the state court’s factual
findings to be correct unless the petitioner rebuts that presumption by clear and
convincing evidence.” Id. at 1177 (citing § 2254(e)(1); Parker v. Head, 244 F.3d 831,
835-36 (11th Cir. 2001)) (emphasis supplied). That same opinion also observed that
“28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the state court
made an ‘unreasonable determination of the facts,’ the petitioner must rebut ‘the
presumption of correctness [of a state court’s factual findings] by clear and
convincing evidence.’” Ward, 592 F.3d at 1155 (alteration in original).
D.
The Burden of Proof and Heightened Pleading Requirements for Habeas
Petitions
Habeas review “exists only to review errors of constitutional dimension.”
42
McFarland v. Scott, 512 U.S. 849, 856 (1994); see also 28 U.S.C. § 2254(a).22
Further, “[w]hen the process of direct review . . . comes to an end, a presumption of
finality and legality attaches to the conviction and sentence.” Barefoot v. Estill, 463
U.S. 880, 887 (1983) (alteration and redactions supplied). Two consequences flow
from those fundamental propositions.
First, the habeas petitioner bears the burden of overcoming the presumption
of “legality” that attaches to the state court conviction and sentence, and of
establishing a factual basis demonstrating that federal post-conviction relief should
be granted. See, e.g., 28 U.S.C. §§ 2254(d) and (e)(1);23 Hill v. Linahan, 697 F.2d
1032, 1036 (11th Cir. 1983) (“The burden of proof in a habeas proceeding is always
22
The statute cited in text provides that: “The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(emphasis supplied). It follows that claims pertaining solely to questions of state law fall outside the
parameters of this court’s authority to provide relief under § 2254.
23
As discussed in Part IV.C supra, Section 2254(d) provides that the state courts’
adjudication of a habeas petitioner’s claims can be overturned only if the petitioner carries the
burden of demonstrating that a particular determination either (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) that
the ruling “resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” Further, § 2254(e)(1) provides that:
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, 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.
43
on the petitioner.”) (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).
Second, the habeas petitioner must meet “heightened pleading requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994) (citations omitted); Borden v Allen,
646 F.3d 785, 810 (11th Cir. 2011) (Section 2254 requires “fact pleading,” and not
merely “notice pleading”). The mere assertion of a ground for relief, without
concomitant allegation of sufficient factual detail, does not satisfy either the
petitioner’s burden of proof under 28 U.S.C. § 2254(e)(1), or the requirements of
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District
Courts, which requires a state prisoner to “specify all the grounds for relief available
to the petitioner,” and to then “state the facts supporting each ground.” 28 U.S.C. §
2254 app. Rule 2(c), Rules Governing Section 2254 Cases in the United States
District Courts (emphasis supplied).24 See also 28 U.S.C. § 2242 (stating that an
application for writ of habeas corpus “shall allege the facts concerning the
applicant’s commitment or detention”) (emphasis supplied).
In short, a habeas petitioner must include in his statement of each claim
sufficient supporting facts to justify a decision for the petitioner if the alleged facts
are proven true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)
24
Accord Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts.
44
(observing that a habeas petition must “state facts that point to a ‘real possibility of
constitutional error’”) (quoting Advisory Committee Notes to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts). Cf. Diaz v.
United States, 930 F.2d 832, 835 (11th Cir. 1991) (holding in a case premised upon
28 U.S.C. § 2255 that, despite the liberal construction due a pro se petitioner’s
allegations, dismissal was appropriate because the movant did not allege “facts that,
if proven, would entitle him to relief”).25
In addition, “[c]itation of the controlling constitutional, statutory, or other bases
for relief for each claim also should be stated.” 1 Randy Hertz & James S. Liebman,
Federal Habeas Corpus Practice and Procedure § 11.6, at 654 (5th ed. 2005)
(alteration supplied). As another district judge has stated:
It is not the duty of federal courts to try to second guess the meanings of
statements and intentions of petitioners. Rather the duty is upon the
individual who asserts a denial of his constitutional rights to come forth
with a statement of sufficient clarity and sufficient supporting facts to
enable a court to understand his argument and to render a decision on
the matter.
Nail v. Slayton, 353 F. Supp. 1013, 1019 (W.D. Va. 1972).
E.
An Introduction to Ineffective Assistance of Counsel Claims
25
Cf. Hill v. Lockart, 474 U.S. 52, 60 (1986) (“Petitioner did not allege in his habeas petition
that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not
guilty and insisted on going to trial. He alleged no special circumstances that might support the
conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not
to plead guilty.”) (emphasis supplied).
45
An introduction to ineffective assistance of counsel claims is included here
because of the relationship between such claims — which are governed by a highly
deferential standard of constitutional law — and 28 U.S.C. § 2254(d), which is itself
an extremely deferential standard of habeas review. A general discussion also
provides a central reference point, because Ferguson has divided his allegations that
trial counsel provided ineffective assistance into three separate habeas claims.
Ineffective assistance of counsel claims are specifically limited to the
performance of attorneys who represented a state prisoner at trial, or on direct appeal
from the conviction. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence
of counsel during Federal or State collateral post-conviction proceedings shall not be
a ground for relief in a proceeding arising under section 2254.”). See also Coleman
v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an
attorney in state post-conviction proceedings. Consequently, a petitioner cannot
claim constitutionally ineffective assistance of counsel in such proceedings.”)
(citations omitted).
The Supreme Court’s “benchmark” standard for judging any claim that a trial
or appellate attorney provided representational assistance to a state prisoner that was
so professionally incompetent as to create issues of federal constitutional proportions
is the question of “whether counsel’s conduct so undermined the proper functioning
46
of the adversarial process that the trial cannot be relied upon as having produced a
just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). If an objective
answer to that question is “yes,” then counsel was constitutionally ineffective. Even
so, Strickland requires that the issue be approached in two steps: i.e.,
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687 (emphasis supplied); see also, e.g., Williams, 529 U.S. at 390 (same);
Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001) (same).
Both parts of the Strickland standard must be satisfied: that is, a habeas
petitioner bears the burden of proving, by “a preponderance of competent evidence,”
that the performance of his trial or appellate attorney was deficient; and, that such
deficient performance prejudiced his defense. Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000) (en banc). Thus, a federal court is not required to
address both parts of the Strickland standard when the habeas petitioner makes an
47
insufficient showing on one of the prongs. See, e.g., Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied in order
to show a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, or vice versa.”)
(citation to Strickland omitted).
1.
The performance prong
“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler,
218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a
defendant must prove that counsel made errors so serious that he or she was not
functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S.
at 687. The standard for gauging attorney performance is “reasonableness under
prevailing professional norms.” Id. at 688; see also, e.g., Williams, 529 U.S. at 39091 (same); Darden v. Wainwright, 477 U.S. 168, 184 (1986) (same); Chandler, 218
F.3d at 1313 (same). “The test of reasonableness is not whether counsel could have
done something more or different,” but whether counsel’s performance “fell within
the broad range of reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing
Chandler, 218 F.3d at 1313). Furthermore, courts must “recognize that ‘omissions
48
are inevitable, but, the issue is not what is possible or ‘what is prudent or appropriate,
but only what is constitutionally compelled.’” Id. (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)). The Sixth Amendment does not guarantee a defendant the very
best counsel or the most skilled attorney, but only an attorney who performed
reasonably well within the broad range of professional norms. “The test has nothing
to do with what the best lawyers would have done. Nor is the test even what most
good lawyers would have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel acted at trial.” White
v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective
of the attorney at the time of the alleged error, and in light of all the circumstances.
See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (giving lawyers
“the benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v.
Singletary, 161 F.3d 1273, 1285-86 (11th Cir. 1998) (noting that Strickland
performance review is a “deferential review of all of the circumstances from the
perspective of counsel at the time of the alleged errors”).
Under this standard, there are no “absolute rules” dictating what
reasonable performance is or what line of defense must be asserted.
[Chandler, 218 F.3d] at 1317. Indeed, as we have recognized,
“[a]bsolute rules would interfere with counsel’s independence — which
is also constitutionally protected — and would restrict the wide latitude
49
counsel have in making tactical decisions.” Putman v. Head, 268 F.3d
1223, 1244 (11th Cir. 2001).
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (first alteration supplied,
second alteration in original). Judicial scrutiny of counsel’s performance must be
“highly deferential,” because representation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another. See Strickland,
466 U.S. at 697. Indeed, reviewing courts are instructed that they “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. There are countless
ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the
same way.
Strickland, 466 U.S. at 689 (emphasis supplied) (citations and internal quotation
marks omitted); see also, e.g., Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)
50
(“When reviewing whether an attorney is ineffective, courts should always presume
strongly that counsel’s performance was reasonable and adequate.”) (internal
quotation marks omitted).
“Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d
at 1209 (quoting Chandler, 218 F.3d at 1315) (emphasis supplied). “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can
be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer,
in the circumstances, would have done so.” Rogers, 13 F.3d at 386 (emphasis
supplied).
2.
The prejudice prong
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). See also, e.g., Gilreath v. Head, 234 F.3d 547,
551 (11th Cir. 2000) (holding that a habeas petitioner “must affirmatively prove
prejudice, because ‘[a]ttorney errors come in an infinite variety and are as likely to
be utterly harmless in a particular case as they are to be prejudicial.’”) (quoting
Strickland, 466 U.S. at 693)) (alteration in original). “It is not enough for the [habeas
51
petitioner] to show that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693 (alteration supplied); see also Harrington,
131 S. Ct. at 791-92 (citing Strickland, 466 at 693) (“The likelihood of a different
result must be substantial, not just conceivable.”)) (emphasis supplied).
Instead, to prove prejudice, the habeas petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see
also Williams, 529 U.S. at 391 (same). When that standard is applied in the context
of the death sentence itself, “‘the question is whether there is a reasonable probability
that, absent the errors, the sentencer [i.e., in Alabama, the trial court judge] . . . would
have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695)
(alteration supplied).
That is a high standard, and in order to satisfy it a petitioner must present
competent evidence proving “that trial counsel’s deficient performance deprived him
of ‘a trial whose result is reliable.’” Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir.
2001) (quoting Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice
requires proof of unprofessional errors so egregious that the trial was rendered unfair
52
and the verdict rendered suspect.” Johnson, 256 F.3d at 1177 (quoting Eddmonds v.
Peters, 93 F.3d 1307, 1313 (7th Cir. 1996) (in turn quoting Kimmelman v. Morrison,
477 U.S. 365, 374 (1986))) (internal quotation marks omitted) (alteration supplied).
3.
Deference accorded state court findings of historical fact, and decisions
on the merits, when evaluating ineffective assistance of counsel claims
State court findings of historical fact made in the course of evaluating a claim
of ineffective assistance of counsel are subject to a presumption of correctness under
28 U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292,
1297 (11th Cir. 2001). To overcome a state-court finding of fact, the petitioner bears
a burden of proving contrary facts by “clear and convincing evidence.”
Additionally, under the AEDPA, a federal habeas court may grant relief a
claim of ineffective assistance of counsel only if the state-court determination
involved an “unreasonable application” of the Strickland standards to the facts of the
case. Strickland itself, of course, also requires an assessment of whether counsel’s
conduct was professionally unreasonable.
Those two assessments cannot be
conflated into one. See Harrington, 131 S. Ct. at 786. Thus, habeas relief on a claim
of ineffective assistance of counsel can be granted with respect to a claim actually
decided by the state courts only if the habeas court determines that it was “objectively
unreasonable” for the state courts to find that counsel’s conduct was not
53
“professionally unreasonable.” The Harrington Court explained:
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. [356], [371-372], 130 S. Ct. 1473, 1485,
176 L. Ed. 2d 284 (2010). An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity
of the very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo
review, the standard for judging counsel’s representation is a most
deferential one. Unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge. It
is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also
Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L.
Ed. 2d 180 (1993). The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom.
Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id., at
689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.
Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in tandem,
review is “doubly” so, Knowles [v. Mirzayance], 556 U.S., at [125], 129
S. Ct. at 1420 [(2009)]. The Strickland standard is a general one, so the
range of reasonable applications is substantial. 556 U.S., at [123], 129
S. Ct. at 1420. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not whether
54
counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential
standard.
Harrington, 131 S. Ct. at 787-88 (alterations supplied); see also Premo v. Moore, —
U.S. —, 131 S. Ct. 733, 739-40 (2011).
V. FERGUSON’S CLAIMS
A.
The Trial Judge Violated Ferguson’s Constitutional Rights to Due Process
and Equal Protection When He Disregarded the Jury’s Nearly Unanimous
11-1 Verdict Recommending a Sentence of Life Without Parole.26
When examining this claim, this court identified matters appearing to be
remnants of previous state court claims that focused on the constitutionality of
Alabama’s sentencing statute (i.e., per se, standing alone), and not the statute’s
particular application to Ferguson’s case.27 However, a constitutional attack on
Alabama’s statutory sentencing scheme is not, and cannot be, the decisive issue in
Ferguson’s habeas claim. Indeed, Ferguson concedes that the Supreme Court’s
opinion in Harris v. Alabama, 513 U.S. 504 (1995), already had decided that
Alabama’s sentencing scheme “‘adequately channels the sentencer’s discretion so as
to prevent arbitrary results.’”28 Id. at 511. The Harris Court also decided that “[t]he
Constitution permits the trial judge, acting alone, to impose a capital sentence. It is
26
See doc. no. 9, ¶¶ 17-33, at 6-13 (petition); doc. no. 15, ¶¶ 1-7, at 3-6 (reply brief).
27
See doc. no. 9, at 10-11.
28
Id. at 10.
55
thus not offended when a State further requires the sentencing judge to consider a
jury’s recommendation and trusts the judge to give it proper weight.” Id. at 515
(alteration supplied).
Therefore, to the extent that Ferguson’s pleadings complain about the type of
standards that should be part of, or the purported lack of standards associated with,
Alabama’s statutory sentencing scheme, which permits a trial court judge in capital
cases to override a jury’s sentencing recommendation, such contentions are due to be
dismissed for not stating a claim upon which relief can be granted.
Placing that issue to the side, the aspect of the present habeas claim that must
be addressed is the contention that the trial judge applied Alabama’s sentencing
statute to Ferguson’s case in an arbitrary manner, thereby violating his rights to due
process and equal protection.29 Specifically, Ferguson alleges that, “[w]ithin the
context of his case, the trial court’s judicial override of an impartial jury’s sentencing
recommendation was not ‘adequately channeled’ and therefore resulted in an arbitrary
decision which is contrary to clearly established Federal law.”30
1.
Brief summary of the twofold claim
The allegations underlying this claim are twofold. First, Ferguson contends
29
Id. at 6-13; doc. no. 15, at 3-6.
30
Doc. no. 15, at 4 (emphasis and alteration supplied).
56
that the trial court’s characterization of his wife’s penalty phase testimony as an
“emotional appeal” is factually flawed, and that her testimony was unreasonably
discounted by the trial judge, in view of the fact that similar testimony by the State’s
witnesses was neither denigrated nor discounted as an “emotional appeal.”31 From
that platform, Ferguson then argues that the trial judge’s decision to override the
jury’s nearly-unanimous, 11-1 recommendation for a sentence of life without parole
was arbitrary, and “contrary to clearly established Federal law.”32
The first aspect of Ferguson’s claim appeared in the most rudimentary of forms
on direct appeal.33 Ferguson received an automatic, independent appellate review of
the propriety of his death sentence from the Alabama Court of Criminal Appeals on
the first round of appeals following conviction and sentencing in the trial court. See
Ferguson v. State, 814 So. 2d 925, 968-70 (Ala. Crim. App. 2000). The intermediate
appellate court found “no evidence” that Ferguson’s death sentence “was imposed
under the influence of passion, prejudice, or any other arbitrary factor,” and held “that
the findings and conclusions of the trial court are amply supported by the evidence.”
Id. at 970. The intermediate appellate court also agreed with the trial judge’s
imposition of a death sentence, despite the jury’s nearly unanimous recommendation
31
Doc. no. 9, at 7-10.
32
Id. at 9.
33
See C.R. Vol. 9, Tab. 29, at 45 (direct appeal brief).
57
to the contrary, but only after engaging in an independent reweighing of the
aggravating and mitigating circumstances of the case. Id.
The second aspect of Ferguson’s present claim is his contention that the trial
judge violated his “right to equal protection” by failing to accord the jury’s 11-1
recommendation the weight it was due as a mitigating circumstance under Alabama
law: an error that also resulted in an arbitrary and discriminatory imposition of the
death penalty.34 This aspect of the claim arose for the first time during Rule 32, postconviction proceedings, in response to what was then a recent clarification of
Alabama’s jury override standard by the Alabama Supreme Court in two cases: i.e.,
Ex parte Tomlin, 909 So. 2d 283, 286-87 (Ala. 2003), and Ex parte Carroll, 852 So.
2d 833, 836 (Ala. 2002).35 Although the Rule 32 court found this claim to be
procedurally defaulted,36 Ferguson raised the issue again on collateral appeal,37 and
received a second merits review of his sentence from the Alabama Court of Criminal
Appeals. See Ferguson v. State, 13 So. 3d 418, 431-32 (Ala. Crim. App. 2008). The
intermediate appellate court found that the trial judge’s sentencing order — even
though written before either Carroll and Tomlin were decided — nevertheless
34
Doc. no. 9, at 12-13.
35
See Rule 32 C.R. Vol. 13 at 274-91; 331-36 (motion to modify sentence in conformance
with the Tomlin and Carroll decisions).
36
Id., Vol. 16, Tab. 51, at 62-64.
37
Id., Vol. 15, Tab. 42, at 11-15.
58
complied with the clarified override standard enunciated in those cases. Id. at 432.
2.
The proper constitutional standard and habeas standard of review
The combination of Ferguson’s “as applied” constitutional claim, and two state
court adjudications affirming the propriety of his death sentence, means that the
“federal constitutional question [presented to this court] is only whether
the [Alabama] state courts’ application of [the State’s sentencing
scheme] was arbitrary or discriminatory or, stated another way, whether
it produced an arbitrary or discriminatory result.” Harris, 513 U.S. at
511, 115 S. Ct. at 1035; Spaziano [v. Florida, 468 U.S. 447, 465,
(1984)]. Moreover, AEDPA adds an additional layer of deference to
[this court’s] review because [that statute requires this court to] examine
only whether the [Alabama Court of Criminal Appeals’] decision[s] —
that the state trial judge did not arbitrarily apply [Alabama’s sentencing
scheme] — was contrary to, or an unreasonable application of, clearly
established federal law evidenced in a holding of the United States
Supreme Court. See 28 U.S.C. § 2254(d)(1); see also [Berghuis v.
Smith, 559 U.S. 314, 326 (2010); Thaler v. Haynes, 559 U.S. 43, 47
(2010)].
Marshall v. Secretary, Florida Department of Corrections, 610 F.3d 576, 588 (11th
Cir. 2010) (alterations supplied).
3.
Analysis of Ferguson’s twofold habeas claim
a.
The trial judge unreasonably discounted Mrs. Ferguson’s penalty
phase testimony as an “emotional appeal,” and overrode the
jury’s life recommendation on the basis of that finding, resulting
in an arbitrary and discriminatory death sentence.
At the time of Ferguson’s trial, Alabama’s sentencing statute instructed trial
59
court judges that they must (i.e., “shall”38)
determine whether the aggravating circumstances it finds to exist
outweigh the mitigating circumstances it finds to exist, and in doing so
the trial court shall consider the recommendation of the jury contained
in its advisory verdict. . . . While the jury’s recommendation concerning
sentence shall be given consideration, it is not binding upon the court.
Ala. Code § 13A-5-47(e) (1975) (emphasis supplied).
Ferguson alleges that his trial judge, when applying the foregoing statute, made
unreasonable factual determinations with regard to one part of his sentencing order,
which resulted in an arbitrary and discriminatory imposition of the death penalty.39
That part of Ferguson’s sentencing order at issue reads as follows: “‘The Court does
find that the Jury’s recommendation of life imprisonment without parole is a
mitigating factor and the Court has considered said mitigating factor at the sentence
hearing. However, the Jury was allowed to hear an emotional appeal from the
defendant’s wife.’”40 Ferguson insists that the trial court’s characterization of his
wife’s testimony as “an emotional appeal” was unreasonable as a matter of fact
because “the court reporter did not note a single sob or cry from Mr. Ferguson’s wife
38
In law, the word “shall” means “must.” Hicks v. Miranda, 422 U.S. 332, 352 (1975)
(Burger, C.J., concurring) (“It is well settled that ‘shall’ means ‘must.’”). See also, e.g., United
States v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007) (Carnes, J.) (“The word ‘shall’ does not
convey discretion. It is not a leeway word.”).
39
Doc. no. 9, at 7-11; Doc. no. 15, at 3-4.
40
Doc. no. 9, at 7 (quoting C.R. Vol. 16, Tab. 47, at 140).
60
in the fifteen lines of transcript reflecting her testimony.”41 The relevant portion of
the trial transcript reads as follows:
Yes. I would like to ask the jury please don’t kill my husband.
I don’t know how this happened or why this happened, but Dale is a
good man and Dale does have a lot of goodness in him. He really does.
He has always been a good husband to me and he has always been really
good to me, took care of me. Dale has expressed to me on several
occasions that he is really sorry this whole situation ever happened. I
will never get to be with my husband again as a husband and wife
should be, but please don’t take him away from me by killing him. I
love Dale very much. Please don’t — He does not deserve to die.
Thank you.42
Ferguson presents two other reasons for his contention that the trial judge
unreasonably exaggerated the effect of Mrs. Ferguson’s testimony on the jurors in
order to justify his decision to override the jury’s 11-1 recommendation. First, he
argues that there was “much lengthier victim impact testimony” from a close friend
of Mr. Pugh, and an elementary school teacher of Joey Pugh, that “focused on
personal remembrances of the Pughs.”43 Ferguson describes the State’s victim-impact
testimony as ranging “from a Sunday school class taught by Mr. Pugh, to his efforts
to mentor children he coached on a baseball team, to Joseph’s favorite pencil and his
girlfriend,”44 and asserts that those portions of such testimony that were
41
Id.
42
Id. at 7 (quoting R. Vol. 5, Tab. 19, at 821-22).
43
Id. at 8-9.
44
Id. at 8.
61
most similar to Mrs. Ferguson’s statement requesting a sentence of life
[came from] Mr. Pugh’s lifelong friend[, who] spoke about “loss,” (R.
776-87), and Joseph Pugh’s teacher[, who] spoke of the event’s
“impact,” (R. 784-85), combined for more than three times as many lines
as Mrs. Ferguson spent requesting a life sentence for her husband.45
Second, Ferguson points out that, even though his trial counsel challenged the
State’s “planned aggravating testimony” at sentencing, “[n]either the State nor the
trial court complained about Mrs. Ferguson’s testimony during the penalty phase
hearing . . . .”46
In essence, therefore, Ferguson argues that the State also presented an
“emotional appeal” to the jury in the form of victim impact testimony; and that,
despite defense counsel’s objection, that testimony was not rejected by the trial court;
whereas, Mrs. Ferguson’s testimony was unfairly denigrated as “an emotional
appeal,” even though it was not objected to by the State or interfered with by the trial
court during the penalty phase hearing.47
45
Id. (alterations supplied).
46
Doc. no. 9, at 8-9 (alteration supplied).
47
Ferguson comments that the victim impact testimony was unrelated to the single statutory
aggravating circumstance presented at the penalty phase: i.e., that the capital offense was committed
while Ferguson was engaged in a robbery. Id. at 8. Then, in a footnote attached to this comment he
writes: “Although the sentencing order often refers to ‘aggravating circumstances’ when
determining Ferguson’s fate, the State only argued the existence of one aggravating circumstance,
and the trial court only found one aggravating circumstance to exist.” Id. at 8 n.3 (record citations
omitted); see also C.R. Vol. 16, Tab. 47, at 136-37, 140-41. The foregoing sentences are cryptic
assertions that do not forthrightly state a habeas claim. This court finds that, if the two-sentence
embedded comment is intended to state a habeas claim, it fails to satisfy the heightened pleading
requirements for federal habeas pleadings, and it is due to be dismissed with prejudice.
Alternatively, the historic record shows that the two-sentence combination never was raised
62
i.
The decision of the Alabama Court of Criminal Appeals on
direct appeal
As briefly addressed in Part V.A.1, supra, the Alabama Court of Criminal
Appeals conducted an independent review of the propriety of Ferguson’s death
sentence on direct appeal, as required by Alabama Code §§ 13A-5-51 and 13A-553(b) (1975). See Ferguson v. State, 814 So. 2d 925, 968-70 (Ala. Crim. App. 2000).
as a claim in state court. As such, it is obvious that, even if Ferguson’s comment satisfied the
heightened pleading requirements for federal habeas claims, it is precluded (procedurally defaulted)
from federal review because Ferguson failed to first present it fairly to the state court, and it now
would be defaulted pursuant to state procedural rules.
As a second alternative, the claim is due to be denied because it is without merit. Victim
impact testimony is constitutionally permissible at capital sentencing proceedings, and there is no
requirement that such testimony be “related” to a proffered aggravating factor. Payne v. Tennessee,
501 U.S. 808, 827 (1991) (holding that there is no per se bar to the introduction of victim impact
evidence and argument). Additionally, even though the trial judge did state the substance of the
victim-impact testimony in his sentencing order, he did so only as part of an effort to summarize all
of the testimony and evidence at each stage of the trial. See C.R. Vol. 16, Tab. 47, at 134.
Importantly, there is no evidence that the trial judge gave significant consideration to the victimimpact testimony in that portion of the sentencing order in which he made specific findings regarding
the existence or non-existence of any statutory aggravating circumstances. Id. at 136-37. The trial
judge ultimately found one statutory aggravating circumstance, which was the only one argued by
the State: i.e., the capital offense was committed during the course of a robbery. Id. There also is
no evidence that the trial judge considered the victim-impact testimony as some form of nonstatutory aggravating circumstance, because — after addressing each of the statutory aggravating
circumstances, and finding the existence of only one — he wrote in a separate paragraph: “The
Court finds no other aggravating circumstances to exist.” Id. at 137. In fact, the victim impact
testimony is not mentioned at all in that portion of the trial judge’s order where he determined the
existence and weight of any aggravating or mitigating circumstances and thereafter decided to
sentence Ferguson to death. Finally, while it is true that the trial judge often employed the plural
phrase “aggravating circumstances” in his sentencing order, the order clearly reflects that he found
only one aggravating circumstance as having been established by the evidence. The Alabama
appellate courts reviewed the sentencing order on both direct appeal and again on collateral review,
and found that only one aggravating circumstance had been proven. Thus, this court finds that the
trial judge’s use of the plural “circumstances” reflects only either careless writing or consideration
of aggravating circumstances as a genre, and not the existence of more than one aggravating
circumstance in Ferguson’s case.
63
Such an independent appellate review is designed to minimize “any risk” of an
“arbitrary or capricious” imposition of the death penalty, to “the extent that any risk
. . . exists” under a sentencing scheme already found to adequately channel a
sentencer’s discretion. Proffitt v. Florida, 428 U.S. 242, 252-53 (1976). See also
Harris v. Alabama, 513 U.S. 504, 509 (1995); Gregg v. Georgia, 428 U.S.153, 204206 (1976). The Alabama Court of Criminal Appeals found that:
The trial court’s sentencing order reflects that[,] after considering
all the evidence presented, the presentence report, and the advisory
verdict of the jury[,] and after weighing the aggravating circumstance
against the statutory and nonstatutory mitigating circumstances in the
case, the trial court found that the aggravating circumstance outweighed
the statutory and nonstatutory mitigating circumstances. Accordingly,
the trial court sentenced Ferguson to death. The trial court’s findings
concerning the aggravating circumstances and the mitigating
circumstances are supported by the evidence.
Ferguson was convicted of the offenses of murder committed
during a robbery, murder of two or more persons by one act or pursuant
to one scheme or course of conduct, and the murder of a child less than
14 years of age. These offenses are defined by statute as capital
offenses. See § 13A–5–40(2), (10), and (15), Ala. Code 1975. We take
judicial notice that similar crimes have been punished capitally
throughout the state. See, e.g., cases dealing with murders committed
during a robbery: Sneed v. State, 783 So. 2d 841 (Ala. Crim. App.
1999); Hardy v. State, 804 So. 2d 247 (Ala. Crim. App. 1999); [seven
additional citations omitted]; see also, e.g., cases dealing with the
murder of two or more persons pursuant to one course of conduct:
Wilson v. State, 777 So. 2d 856 (Ala. Crim. App. 1999); Freeman v.
State, 776 So. 2d 160 (Ala. Crim. App. 1999) [six additional citations
omitted]; cases dealing with the murder of a child under 14 years of age:
Ward v. State, 814 So. 2d 899 (Ala. Crim. App. 2000); Dunaway v.
64
State, 746 So. 2d 1021 (Ala. Crim. App. 1998).
After carefully reviewing the record of the guilt phase and the
sentencing phase of Ferguson’s trial, we find no evidence that the
sentence was imposed under the influence of passion, prejudice, or any
other arbitrary factor. We conclude that the findings and the
conclusions of the trial court are amply supported by the evidence. We
have independently weighed the aggravating circumstance against the
statutory and nonstatutory mitigating circumstances, and we concur in
the trial court’s judgment that the aggravating circumstance outweighs
the mitigating circumstances, and that death is the appropriate sentence
in this case. Considering Ferguson and the crime he committed, we find
that the sentence of death is neither excessive nor disproportionate to the
penalty imposed in similar cases.
Ferguson v. State, 814 So. 2d at 969-70 (alterations supplied).
ii.
Analysis
Habeas review begins with Ferguson’s initial argument: his contention that the
historic record does not support the trial judge’s characterization of his wife’s
testimony as an “emotional appeal.” The only evidence presented in support of that
contention is the absence of any notation in the official court reporter’s transcript that
Mrs. Ferguson was sobbing during her testimony. Nevertheless, even a cold reading
of that portion of the transcript record of Mrs. Ferguson’s statement provides support
for the trial judge’s determination that she made an emotional appeal for her
husband’s life.
Moreover, the trial judge was in a position to observe Mrs. Ferguson’s
65
demeanor as she testified, and the ore tenus rule requires that deference be accorded
to his opinion. Indeed, live witnesses, testifying orally, may make a very different
impression from that generated by a reading of their words on the cold pages of a
transcript record. Accordingly, the trial judge’s finding is not an unreasonable
determination of the facts in light of the evidence before the trial court.
Additionally, the reasonableness of the trial judge’s assessment of the tenor of
Mrs. Ferguson’s testimony is not shaken, as Ferguson argues, by comparing her
statements, delivered without objection by the State, to that of the “lengthier” victim
impact testimony objected to by defense counsel. The trial transcript shows that Mrs.
Ferguson’s testimony on her husband’s behalf was more than the appeal quoted
earlier, and at least as lengthy as the testimony of the two prosecution witnesses
combined.48 Those witnesses — Dana Hester, a family friend, and Linda Freeman,
a teacher — gave testimony that humanized the victims. Unlike Mrs. Ferguson,
however, neither Hester nor Freeman made any appeal on behalf of the victims or the
community regarding the sentence to be imposed. Instead, the nature and content of
their constitutionally permissible testimony49 was in response to the prosecutor’s
48
Mrs. Ferguson’s testimony spreads across 22 pages opf the transcript. See R. Vol. 5, Tab.
19, at 810-32. In contrast, Dana Hester’s testimony was about 13 pages in length, and Linda
Freeman’s testimony about 7 pages. Id., Tab. 18, pp. 765-85.
49
See Payne v. Tennessee, 501 U.S. 808, 827 (1991) (holding that there is no per se bar to
the introduction of victim impact evidence and argument).
66
questions about the effect on, and loss to, the community as a result of the victims’
deaths,50 and it contains none of the emotionally intense pleas of Mrs. Ferguson’s
testimony.
Further, the trial judge did not arbitrarily denigrate Mrs. Ferguson’s testimony
as an “emotional appeal,” while crediting allegedly lengthier victim impact testimony
of the same type.51 In fact, the trial judge’s statement of his reasons for overriding the
jury’s sentencing recommendation did not mention the victim impact testimony at all.
The Court does find that there is a reasonable basis for enhancing the
jury’s recommendation of life imprisonment without parole for the
reasons stated herein, and this was a murder of [an] adult man and his
young son during a robbery, and the defendant had the opportunity to
reflect and withdraw from his actions and chose not [to] do so; that the
defendant’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was not substantially
impaired.52
The affirmation of the trial judge’s sentencing decision by the Alabama Court
50
See R. Vol. 5, Tab. 18, at 776, 784.
51
The trial judge’s sentencing order did contain a synopsis of all evidence presented at each
phase of the trial. His summary of the State’s evidence at the penalty phase is cursory: i.e.,
The State and the Defendant both made opening statements. The State called
two witnesses, Dana Hester, who testified that he was a close friend of Harold Pugh
and had known him since the eighth grade. He further stated Harold Pugh was active
in the church and active in little league baseball with his son, Joey.
Glenda Freeman testified that she was Joey Pugh’s fifth grade teacher and
knew he and Harold Pugh.
C.R. Vol. 16, Tab 47, at 134.
52
Id. at 140 (alteration supplied).
67
of Criminal Appeals did not result in a death sentence that was arbitrary or capricious.
As a result, Ferguson cannot show that his sentence was imposed in a manner that is
either contrary to, or based upon an unreasonable application of, clearly established
federal law. He also cannot demonstrate that it was based upon an unreasonable
determination of the facts in light of the evidence before the trial court judge.
b.
The sentencing judge did not afford the jury’s recommendation
the weight it was due under Ex parte Carroll and Ex parte Tomlin;
and, as a result, Ferguson’s death sentence was arbitrary and
capricious
As previously noted, while Ferguson’s case was on direct appeal, the language
of Alabama’s sentencing statute instructed the trial judge to consider the jury’s
sentencing recommendation, but explicitly stated that the recommendation was “not
binding upon the court.” Ala. Code § 13A-5-47(e) (1975). After Ferguson’s case
became final on direct review, however, the Alabama Supreme Court added a gloss
to the statutory language, addressing the weight to be accorded a jury’s
recommendation of life imprisonment without the possibility of parole.
Such a recommendation is to be treated as a mitigating circumstance.
The weight to be given that mitigating circumstance should depend upon
the number of jurors recommending a sentence of life imprisonment
without parole, and also upon the strength of the factual basis for such
recommendation in the form of information known to the jury, such as
conflicting evidence concerning the identity of the ‘triggerman’ or a
recommendation of leniency by the victim’s family; the jury’s
recommendation may be overridden based upon information known only
68
to the trial court and not to the jury, when such information can
properly be used to undermine a mitigating circumstance.”
Ex parte Tomlin, 909 So. 2d 283, 285 (Ala. 2003) (quoting Ex parte Carroll, 852 So.
2d 833, 836 (Ala. 2002)) (emphasis supplied, footnote omitted).
Ferguson argues that the foregoing judicial gloss means “that a sentencing
judge may justify overriding the jury’s sentencing recommendation of life without
parole only if the judge [and not the jury] had knowledge of circumstances (such as
a bad criminal record) that would undermine the factual basis for the jury’s
recommendation.”53 He asserts that, in his case,
the court acted without any additional information that would undermine
the factual basis for the jury’s sentencing recommendation and failed to
give adequate weight to the number of jurors voting in favor of life
without parole (11 to 1). In fact, the only information that was not
provided to the jury was Mr. Ferguson’s criminal record.54
Accordingly, Ferguson argues that the trial judge’s determination that he did not have
a significant history of prior criminal activity actually bolstered the jury’s
recommendation of a sentence of life without parole,55 and demonstrated that the trial
judge’s override was not “based on reason,” but upon “emotion or caprice.”56 In sum,
Ferguson contends that the trial judge’s failure to follow the standards established by
53
Doc. no. 15, at 5 (citations omitted) (alteration supplied).
54
Id.
55
Id. at 5-6.
56
Id. at 6.
69
the Alabama Supreme Court’s opinions in Tomlin and Carroll, violated his
constitutional right to equal protection.57
Ferguson’s interpretation of Tomlin and Carroll is incomplete. While those
cases do state that a jury’s sentencing recommendation “may be” overridden by a trial
judge based upon information known only to him, and not to the jury, the Tomlin
court also held that the weight of the jury’s recommendation could be affected by
“information known to the jury, such as . . . ,” and then proceeded to offer two
examples. It is that latter type of information — the type Ferguson ignores — that is
applicable to his case.
i.
The decision of the Alabama Court of Criminal Appeals on
collateral review
Ferguson received an appellate review of the propriety of the trial judge’s death
sentence under the Tomlin and Carroll override standards from the Alabama Court
of Criminal Appeals during the collateral review process. That court held that, even
though the trial judge’s sentencing decision was handed down prior to the Supreme
Court’s decisions in Tomlin and Carroll, the trial judge, nevertheless, had complied
with the rationale of those cases. That portion of the appellate court’s opinion reads
as follows:
57
See doc. no. 9, at 12.
70
[T]he circuit court complied with [Tomlin and Carroll] when it chose to
override the jury’s recommendation and sentence Ferguson to death.
When sentencing Ferguson to death, the circuit court [judge] stated:
“The Court does find that the jury’s recommendation
of life imprisonment without parole is a mitigating factor
and the Court has considered said mitigating factor at the
sentence hearing. However, the jury was allowed to hear
an emotional appeal from the defendant’s wife. The Court
further finds that the defendant’s problems during his
childhood are not a mitigating factor.
“There was also evidence presented to the jury that
Mark Moore was the instigator of the killings of Harold
and Joey Pugh, but that fact alone does not make the
defendant any less culpable and is not a mitigating factor.
The defendant was able and capable to make choices.
“The Court has also considered the Pre-Sentence
Investigation Report as set out in Section 13A-5-47, Code
of Alabama, as amended, in determining a sentence in this
case.
“The Court having considered the aggravating
circumstances and the mitigating circumstances, finds that
the aggravating circumstances due to the nature of the
crime and the defendant’s involvement in it outweighs the
mitigating circumstances presented, and the mitigating
factor that the jury recommended a sentence of life
imprisonment without parole and the vote was 11 for life
and 1 for death.
“The Court does find that there is a reasonable basis
for enhancing the jury’s recommendation of life
imprisonment without parole for the reasons stated herein,
and this was a murder of [an] adult man and his young son
during a robbery, and the defendant had the opportunity to
71
reflect and withdraw from his actions and chose not [to] do
so; that the defendant’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was not substantially impaired.”
The circuit court’s sentencing order, although issued before the
decisions in Carroll and Tomlin, fully complies with those decisions by
stating the specific reasons the circuit court gave the jury’s
recommendation[,] the weight it gave it[,] and by treating the jury’s
recommendation as a mitigating circumstance. Carroll and Tomlin do
not state that a court must give “considerable” or “great” weight to the
jury’s recommendation of life imprisonment without parole whenever
the vote in favor of life without parole is 10 or greater. Nor do we agree
with Ferguson that we should expand the Supreme Court’s holdings in
Carroll and Tomlin. The holdings in those cases were fact specific and
should not be applied broadly in this case to “tip [ ] the scales in favor
of following the jury’s recommendation.” Carroll, 852 So. 2d at 837.
As we stated in Sneed v. State, 1 So. 3d 104, 116 (Ala. Crim. App.
2007):
“In Ex parte Carroll, the Supreme Court held that a
jury’s recommendation of imprisonment for life without
the possibility of parole must be considered as a mitigating
circumstance. Although the Supreme Court also stated that
a jury recommendation could be overridden based on
information that was not known to the jury, it did not state
that that was the only circumstance in which a jury
recommendation could be overridden.
“In this case, the trial court considered the jury’s
recommendation as a nonstatutory mitigating circumstance
and gave it moderate weight. It then stated specific reasons
for giving the jury’s recommendation the consideration it
gave it, including the appellant’s participation in the
robbery-murder and the jury’s vote. Therefore, we
conclude that the circuit court complied with both Ex parte
72
Taylor[58] and Ex parte Carroll in overriding the jury’s
recommendation.”
See also McGowan v. State, 990 So. 2d 931, 1006 (Ala. Crim. App.
2003) (opinion on return to remand) (“Here, there was no conflicting
evidence about who committed the murders, nor did the victims’ family
ask that McGowan be sentenced to life imprisonment without parole.
The circuit court’s findings as set out above are sufficient to comply
with the dictates of Taylor and Carroll. See Hodges v. State, 856 So. 2d
875 (Ala. Crim. App. 2001).”).
Under the particular circumstances presented in this case, the
circuit court complied with Taylor, Carroll, and Tomlin in overriding
the jury’s recommendation and sentencing Ferguson to death, and
Ferguson’s claim in his Rule 32 petition that application of those cases
to his case requires that he be resentenced to life imprisonment without
parole is without merit.
Ferguson v. State, 13 So. 3d 418, 431-32 (Ala. Crim. App. 2008) (first four
alterations and footnote supplied).59
58
The Alabama Supreme Court held in Ex parte Taylor, 852 So. 2d 1215, 1219 (Ala. 2001),
that Alabama’s sentencing statute required the trial judge to “state specific reasons for giving the
jury’s recommendation the consideration he gave it.”
59
Judge Baschab, one of the five judges deciding Ferguson’s collateral appeal, filed a dissent
from this portion of the intermediate appellate court’s opinion. She wrote:
The trial judge entered his sentencing order before the Alabama Supreme
Court released its decisions in Ex parte Taylor, Ex parte Carroll, and Ex parte
Tomlin. Nevertheless, he did state specific reasons for giving the jury’s
recommendation the consideration he gave it, as required by Ex parte Taylor, and did
treat the jury’s recommendation as a mitigating circumstance, as required by Ex parte
Carroll. The trial judge did not specifically state what weight he gave the jury’s
recommendation. However, it does not appear to have been considerable, as was
required with regard to a 10-2 recommendation in Ex parte Carroll, or great, as was
required with regard to a 12-0 recommendation in Ex parte Tomlin. Because the jury
recommended a sentence of imprisonment for life without the possibility of parole
by a margin of 11-1, it is reasonable to conclude that it was entitled, at a minimum,
to considerable weight. Moreover, as the trial judge recognized in his sentencing
73
ii.
Analysis
Ferguson insists that the trial judge violated his “equal protection rights by not
giving proper weight to the jury’s vote” in accordance with Ex parte Tomlin and Ex
parte Carroll.60 He ignores, however, and does not challenge the intermediate
appellate court’s interpretation of the gloss layered on the State’s statutory sentencing
scheme by the Alabama Supreme Court’s opinions in Tomlin and Carroll.61 The
Alabama Court of Criminal Appeals held that, even though the Alabama Supreme
Court stated that a jury’s sentencing recommendation “‘could be overridden based on
information that was not known to the jury, it did not state that that was the only
circumstance in which a jury recommendation could be overridden.’” Ferguson, 13
order, there was information before the jury that established that the jury’s
recommendation rested upon an adequate factual basis. Specifically, the trial judge
made reference to an emotional appeal by the appellant’s wife and to evidence
regarding problems during the appellant’s childhood. Finally, the trial judge did not
cite to any information that was not known to the jury when it overrode the jury’s
recommendation.
Under these specific circumstances, giving considerable weight to the jury’s
sentence recommendation when weighing the above-referenced mitigating
circumstances against the one aggravating circumstance, I would conclude that the
trial court erred in overriding the jury’s recommended sentence of imprisonment for
life without the possibility of parole. Therefore, this court should remand this case
to the circuit court for that court to resentence the appellant, following the jury’s
recommendation, to imprisonment for life without the possibility of parole.
Ferguson v. State, 13 So. 3d 418, 453 (Ala. Crim. App. 2008) (Baschab, J., dissenting in part).
60
Doc. no. 9, at 12.
61
Id. at 12-13.
74
So. 3d at 432 (quoting Sneed v. State, 1 So. 3d 104, 116 (Ala. Crim. App. 2007))
(emphasis supplied).
Moreover, Ferguson does not contest the intermediate state appellate court’s
conclusion that the defendants in Tomlin and Carroll were granted relief on the basis
of facts specific to those cases — facts that do not exist in his case. Indeed, a review
of both cases definitively shows that the circumstances underlying Ferguson’s case
are not comparable to those of the defendants in either Tomlin or Carroll.
The pertinent facts underlying the capital offense in the Carroll case may be
found in Carroll v. State, 852 So. 2d 801, 806 (Ala. Crim. App. 1999). Briefly,
however, Carroll, who was then seventeen years of age, along with another defendant,
participated in the robbery of a dry-cleaning business. Although Carroll pointed a
gun at one victim and demanded that she give him her necklace, Carroll did not say
much else during the course of the robbery, and appeared nervous throughout.
Carroll later informed law enforcement that he did not intend to kill anyone, but that
his gun went off and accidentally killed a victim, whereupon he and his co-defendant
ran away. Id. at 807. The trial court overrode the jury’s 10-2 recommendation for a
sentence of life without parole and sentenced Carroll to death. Id. at 804-05.
After lengthy appellate litigation, the Alabama Supreme Court reversed the
death sentence on the basis of sentencing errors. See Ex parte Carroll, 852 So. 2d
75
833, 835 (Ala. 2002). As one of two reasons stated for reversal of the death sentence,
the Alabama Supreme Court found that the trial court had impermissibly utilized a
youthful offender conviction and incarceration to negate the statutory mitigating
factors of Carroll’s age and lack of significant criminal history. Id. at 836 (holding
that such a conviction can be used to diminish the mitigating factors under Alabama
law, but not to negate them). The Court also found that the trial court had referred
to the pain the victim’s family expressed at the sentencing hearing as a reason for the
override, but failed to reference the fact that members of the family had stated that
they did not desire Carroll to be sentenced to death. Id. at 835-36.
In summary, the Alabama Supreme Court overturned the death sentence in
Carroll because it found that the trial court had improperly used the defendant’s
“juvenile record as the basis for giving little or no weight” to the mitigating
circumstances of his age at the time of the offense, and his lack of a significant
criminal record. The Court also could not “reconcile” the override based on the
family’s pain, when the family did not ask for imposition of the death penalty. The
Court held that, because of Carroll’s
age at the time of the offense, his lack of a significant criminal history,
and the recommendation of the victim’s family that he be sentenced to
life imprisonment without parole, the jury’s 10-2 recommendation that
he not be sentenced to death tips the scales in favor of following the
jury’s recommendation.”
76
Ex parte Carroll, 852 So. 2d at 837. No similar facts are present in Ferguson’s case.
The Alabama Supreme Court’s opinion in Ex parte Tomlin, 909 So. 2d 283
(Ala. 2003), addressed a case that had been tried and reversed three times. Tomlin
and his co-defendant (a purported “hitman”) were accused of capital murder for the
1997 double murder of Ricky Brune and Cheryl Moore, who had been killed with a
shotgun and a .38 calibur pistol. See Tomlin v. State, 909 So. 2d 213, 224 (Ala. Crim.
App. 2002). There were no eyewitnesses to the murders. The victims were found
dead in an automobile on the side of Interstate 65 near Mobile. Id. at 224-25. The
evidence showed that Tomlin had subsequently stated to witnesses, one of whom was
an undercover narcotics officer in Houston, Texas, that he intended to kill Ricky
Brune, because Brune had murdered his (Tomlin’s) brother during an altercation.
Moreoever, Tomlin and his co-defendant had shown a pistol and sawed-off shotgun
to witnesses. Tomlin also had been seen by some witnesses in the Mobile area around
the time of the murders, although Tomlin testified that he had been in Houston, Texas
(his home-town), and that the witnesses who said he was in Mobile were lying
because they did not like him. Id.
Tomlin was convicted of the capital offense, and the offense itself was the only
aggravating factor. The State and defense counsel agreed to stipulate to the third trial
jury’s unanimous (12-0) recommendation of life without parole.
77
Id. at 223.
Moreover, the trial court expressly found that Tomlin had been a model prisoner and
spiritual role model during his incarceration (approximately twenty years at that
time), that he had no significant history of (or reputation for) violence, and that he
had “been a source of parental support for his children.” Ex parte Tomlin, 909 So.
2d at 285-86. In spite of those mitigating factors, the trial court judge overrode the
jury’s unanimous recommendation of a life sentence solely because he did not believe
it was “fair” to sentence Tomlin to life without parole when Tomlin’s co-defendant
had been sentenced to death for the same offense. Id. at 286. The Alabama Supreme
Court held that a co-defendant’s sentence “cannot properly be used to undermine a
mitigating circumstance,” and directed that Tomlin be re-sentenced to life without
parole. Id. at 287.
Unlike either Carroll or Tomlin, Ferguson’s sentencing judge did not rely on
impermissible factors (or factors unknown to the jury) to negate the jury’s
recommendation, or factors constitutionally irrelevant to legitimate, individualized
sentencing concerns, or factors that were in direct contradiction to witness testimony.
The trial judge’s sentencing order in this case was not a summary disposition, but 47
pages in length.62 Before making his findings concerning the existence and weight
of aggravating and mitigating factors, the trial judge set out the evidence presented
62
C.R. Vol. 16, Tab. 47, at 1-47.
78
at each stage of the trial and incorporated the transcript of Ferguson’s statement into
it.63
Thus, Ferguson’s complaints that the trial judge did not “actually consider”
the jury’s recommendation, and that he summarily dismissed it are without merit.64
The sentencing order, as independently examined and affirmed by the Alabama Court
of Criminal Appeals on two occasions — first on direct appeal, and again on
collateral review — reflects that neither allegation is true. The state courts’ decisions
not only reflect serious consideration of the jury’s 11-1 life recommendation, but
express acceptance of it as a mitigating circumstance.
Moreover, it was not unreasonable for the Alabama Court of Criminal Appeals
to acknowledge, by virtue of its incorporation of a portion of the trial court’s
sentencing opinion, that the weight given to the jury’s recommendation as a
mitigating factor was affected by the trial court’s belief that the recommendation was
based on Mrs. Ferguson’s “emotional” testimony and, perhaps, Ferguson’s childhood
— factors that the trial court could (and did) independently determine had little or no
mitigating effect. That portion of the trial judge’s opinion incorporated by the
appellate court also included the trial judge’s finding that the override was justified
63
Id.
64
Doc. no. 9, at 13 (emphasis by Ferguson).
79
by the nature of the offense, and Ferguson’s willing, continued participation in the
complex criminal scheme that began in Alabama and ended in Mississippi.
Since the trial judge expressly believed that the jury’s recommendation
depended on Mrs. Ferguson’s emotional appeal and, perhaps, on evidence about
Ferguson’s childhood, his independent determinations regarding the lack of
mitigating weight or effect as to both matters obviously affected his assessment of the
strength of the facts underlying the jury’s 11-1 determination that the aggravating
circumstances were outweighed by mitigating factors. After reviewing the entire
record, the trial judge’s sentencing order, and Alabama case law, it was not
unreasonable for the Alabama Court of Criminal Appeals to conclude that the weight
the trial judge gave to the jury’s 11-1 recommendation was diminished for
permissible reasons.
Equally important to the override is the strength the trial judge afforded to the
aggravating factors in the case: i.e., the complex nature of the criminal scheme that
began in Alabama and extended into Mississippi, and Ferguson’s knowing and
continued participation in it.
The strength of the aggravating circumstances of the case must be weighed
against the weight of the other mitigating factors found by the court. The sentencing
order shows that the trial judge found the penalty case against Ferguson to be strong,
80
in that Ferguson participated in lengthy plans to (and did personally) rob and kill an
adult and small child — all of which were precursors to yet another crime in another
state: the Mississippi bank robbery. After weighing these matters, including the
jury’s sentencing recommendation and other mitigating circumstances, the trial judge
determined that the balance tipped in favor of the death penalty.
Ultimately, it is not the duty of this court to weigh and reweigh the mitigating
and aggravating circumstances, or to question Alabama’s interpretation of its own
sentencing scheme. This court’s only concern is that the state courts’ assessments did
not produce an arbitrary or discriminatory result. The Alabama Court of Criminal
Appeals’ determination that Ferguson’s death sentence was not the result of any
arbitrary or discriminatory decisions by the sentencing judge is due to be upheld. The
distinctions between Ferguson’s case and that of the defendants in Tomlin and
Carroll affirm that the state court’s decision did not produce such a result.
For all of the foregoing reasons, this court finds that the Alabama Court of
Criminal Appeals’ adjudications of this twofold claim did not produce an arbitrary
or discriminatory result. Thus, Ferguson has not shown that his sentence is contrary
to, or an unreasonable application of, clearly established federal law, or the product
of decisions based on unreasonable determinations of the facts in light of the evidence
before the state court. This claim is due to be denied.
81
B.
Ferguson’s Constitutional Rights Were Violated When He Was
Involuntarily Medicated by the State and, Thereby, Rendered
Incompetent to Stand Trial.65
Ferguson claims that “Haldol”® — i.e., an antipsychotic medication used in the
treatment of such mental disorders as schizophrenia, acute psychosis, mania, Tourette
syndrome, and severe anxiety66 — was administered without his consent, and that the
drug rendered him incompetent during trial.67
The manner in which Ferguson frames this claim implicates the “substantive”
dimension of the Fourteenth Amendment’s Due Process Clause in two ways.68 On
65
See doc. no. 9, ¶¶ 34-40, at 13-18 (petition); doc. no. 15, ¶¶ 8-11, at 6-8 (reply brief).
66
See PHYSICIANS’ DESK REFERENCE 2334, 2593, 2757 (64th ed. 2010).
67
See, e.g., doc. no. 9, at 13-15.
68
Cf., e.g., Erwin Chemerinsky, Constitutional Law Principles and Policies § 7.1 (2006)
(discussing the distinction between the “procedural due process” and“substantive due process”
doctrines under the Fourteenth Amendment’s Due Process Clause).
Procedural due process . . . refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due
process issues concern what kind of notice and what form of hearing the government
must provide when it takes a particular action.
Substantive due process . . . asks whether the government has an adequate
reason for taking away a person’s life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government’s action. . . .
....
The concept of procedural due process never has been controversial, although
there certainly have been major disputes over what constitutes liberty and property
interests and what procedures should be required. In contrast, the very idea of
substantive due process has been contested. The argument is that due process
connotes procedures and that it is incorrect to use the due process clause as the place
82
one hand, a criminal defendant possesses a right under the so-called “substantive due
process” doctrine to not be prosecuted, tried, and convicted while incompetent. See,
e.g., Watts v. Singletary, 87 F.3d 1282, 1286 (11th Cir. 1996) (majority opinion)
(citing Pate v. Robinson, 383 U.S. 375, 377 (1966)). A defendant is not competent
if he lacks “sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding,” and he also does not possess “a rational as well as
a factual understanding of the proceedings against him.” Dusky v. United States, 362
U.S. 402, 402 (1960) (per curiam) (internal quotation marks omitted).
Competence to stand trial is rudimentary, for upon it depends the main
part of those rights deemed essential to a fair trial, including the right of
effective assistance of counsel, the rights to summon, to confront, and
to cross-examine witnesses, and the right to testify on one’s own behalf
or to remain silent without penalty for doing so.
Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Riggins v. Nevada, 504 U.S.
127, 139-40 (1992) (Kennedy, J., concurring)).
On the other hand, the Supreme Court also has recognized that a convict
“possesses a significant liberty interest [under the substantive dimension of the Due
for protecting substantive rights.
Id. at 545-46, 547 (italics in original, footnote omitted). Despite the fact that the phrase “substantive
due process” appears to be an oxymoron (i.e., a figure of speech combining antithetical, incongruous
terms), both the Supreme Court and Eleventh Circuit have applied that doctrine to facts similar to
those addressed in the present claim, as demonstrated by the textual discussion following this
footnote.
83
Process Clause] in avoiding the unwanted administration of antipsychotic drugs.”
Washington v. Harper, 494 U.S. 210, 221 (1990) (alteration supplied) (citing, e.g.,
Vitek v. Jones, 445 U.S. 480, 491-94 (1980) (holding that the involuntary transfer of
a state prisoner to a mental hospital implicates a liberty interest protected by the
substantive dimension of the Fourteenth Amendment’s Due Process Clause)).
Respondent does not draw any distinction between Ferguson’s claim of
involuntary medication and his attached claim of drug-induced incompetency at trial.
Instead, Respondent simply asserts that the claim as a whole is procedurally
defaulted, because Ferguson failed to raise it either at trial or on direct appeal.69
Alternatively, Respondent argues that Ferguson is not entitled to a hearing in this
court, because he failed to present a factual basis for the claim in the state court.70
Finally, Respondent denies the claim.
Ferguson’s claim that an anti-psychotic medication was administered against
his will is, in large part, subsumed within his contention that the drug rendered him
incompetent during trial. Accordingly, discussion will begin with the procedural
posture of the latter contention.
1.
The procedural posture of Ferguson’s contention that he was
incompetent at trial due to the involuntary administration of Haldol.
69
Doc. no. 12, at 17-18.
70
Id.
84
Ferguson does not deny that he failed to allege, either in the trial court or on
direct appeal, that he was incompetent during trial. Even so, he correctly observes
that claims of incompetency to stand trial cannot be procedurally defaulted in this
Circuit.71
Indeed, the Eleventh Circuit addressed the procedural default rule
applicable to a trial competency claim under the substantive dimension of the Due
Process Clause, and the proper constitutional standard applicable to such a claim, in
Wright v. Secretary, Department of Corrections, 278 F.3d 1245 (11th Cir. 2002),
where the Court said:
The district court’s ruling that Wright had procedurally defaulted
his substantive due process mental competency claim is contrary to the
law of this circuit that such claims generally cannot be defaulted. See
Johnston v. Singletary, 162 F.3d 630, 637 (11th Cir. 1998); Medina v.
Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995); Adams v. Wainwright,
764 F.2d 1356, 1359 (11th Cir. 1985). Bound as we are to follow prior
panel precedent, we conclude that Wright’s substantive due process
claim relating to mental competency is not procedurally barred, and we
will address its merits. We review it without any § 2254(d)(1)
deference, because there is no state court decision on the merits of this
claim.
Wright, 278 F.3d at 1259.
Other than simply stating that substantive due process trial competency claims
can never be procedurally defaulted, Ferguson makes no effort to explain the
71
Doc. no. 15, at 6-7 (“The Sykes procedural default rule does not, however, preclude review
on the merits of a postconviction incompetency claim, even if that claim was not raised on direct
appeal.”) (quoting Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)) (other citation
omitted).
85
distinction between the drug-induced incompetency aspect of his claim, and the
forcible medication aspect of the claim. Regardless, this court will assume, without
deciding, that there is no distinction when the substantive due process trial
competency claim also forms the hinge upon which a petitioner relies to establish that
he was denied a full and fair trial in the context of a substantive forcible medication
claim. As such, the claim as a whole is not procedurally defaulted, and is subject to
de novo review.
2.
The law applicable to the claim of drug-induced incompetency to stand
trial
Ferguson relies solely upon Washington v. Harper, 494 U.S. 210 (1990), for
the proposition that “[t]he forcible injection of medication into a non-consenting
person’s body represents a substantial interference with that person’s liberty.” Id. at
229 (alteration supplied). The Harper holding was not rendered in a habeas
proceeding, however, but in the context of a civil rights action that had been
commenced by a mentally-ill state prisoner who challenged a prison policy that
authorized his involuntary treatment with antipsychotic drugs in the absence of a
judicial hearing. Even so, as the following extract from the Supreme Court’s
subsequent opinion in Riggins v. Nevada, 504 U.S. 127 (1992), demonstrates, the
Court extended Harper’s rationale to the habeas appeal of a Nevada prisoner
86
convicted of capital murder, and who had argued that the involuntary administration
of an antipsychotic drug had denied him “a full and fair trial”:
Taking account of the unique circumstances of penal confinement,
. . . we determined [in Washington v. Harper, 494 U.S. 210 (1990),] that
due process allows a mentally ill inmate to be treated involuntarily with
antipsychotic drugs where there is a determination that “the inmate is
dangerous to himself or others and the treatment is in the inmate’s
medical interest.” Id. at 227, 110 S.Ct., at 1040.
Under Harper, forcing antipsychotic drugs on a convicted
prisoner is impermissible absent a finding of overriding justification and
a determination of medical appropriateness.
The Fourteenth
Amendment affords at least as much protection to persons the State
detains for trial. See Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861,
1877, 60 L. Ed. 2d 447 (1979) (“[P]retrial detainees, who have not been
convicted of any crimes, retain at least those constitutional rights that we
have held are enjoyed by convicted prisoners”); O’Lone v. Estate of
Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282
(1987) (“[P]rison regulations . . . are judged under a ‘reasonableness’
test less restrictive than that ordinarily applied to alleged infringements
of fundamental constitutional rights”). Thus, once (Riggins) moved to
terminate administration of antipsychotic medication, the State became
obligated to establish the need for Mellaril and the medical
appropriateness of the drug.
Although we have not had occasion to develop substantive
standards for judging forced administration of such drugs in the trial or
pretrial settings, Nevada certainly would have satisfied due process if
the prosecution had demonstrated, and the District Court had found, that
treatment with antipsychotic medication was medically appropriate and,
considering less intrusive alternatives, essential for the sake of Riggins’
own safety or the safety of others. See Harper, supra, 494 U.S., at
225–226, 110 S. Ct., at 1039; cf. Addington v. Texas, 441 U.S. 418, 99
S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (Due Process Clause allows civil
commitment of individuals shown by clear and convincing evidence to
87
be mentally ill and dangerous). Similarly, the State might have been
able to justify medically appropriate, involuntary treatment with the drug
by establishing that it could not obtain an adjudication of Riggins’ guilt
or innocence by using less intrusive means. See Illinois v. Allen, 397
U.S. 337, 347, 90 S. Ct. 1057, 1063, 25 L. Ed. 2d 353 (1970) (Brennan,
J., concurring) (“Constitutional power to bring an accused to trial is
fundamental to a scheme of ‘ordered liberty’ and prerequisite to social
justice and peace”). We note that during the July 14 hearing Riggins did
not contend that he had the right to be tried without Mellaril if its
discontinuation rendered him incompetent. See Record 424–425, 496,
500. The question whether a competent criminal defendant may refuse
antipsychotic medication if cessation of medication would render him
incompetent at trial is not before us.
Riggins, 504 U.S. at 134-36 (first alteration supplied, remainder in original).
The Eleventh Circuit explicated the relevant legal principles in Medina v.
Singletary, 59 F.3d 1095 (11th Cir. 1995), saying that:
The Due Process Clause of the Fourteenth Amendment prohibits
states from trying and convicting mentally incompetent defendants.
James v. Singletary, 957 F.2d 1562, 1569-70 (11th Cir. 1992) (citing
Pate v. Robinson, 383 U.S. 375, 384-86, 86 S.Ct. 836, 841-42, 15 L. Ed.
2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L.
Ed. 2d 824 (1960)). The test for determining competence to stand trial
is “whether [a defendant] has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding — and
whether he has a rational as well as factual understanding of the
proceedings against him.” Dusky, 362 U.S. at 402, 80 S. Ct. at 789.
....
A petitioner may make a substantive competency claim by
alleging that he was, in fact, tried and convicted while mentally
incompetent. [James v. Singletary, 957 F.2d] at 1571. In contrast to a
procedural competency claim, however, “a petitioner raising a
88
substantive claim of incompetency is entitled to no presumption of
incompetency and must demonstrate his or her incompetency by a
preponderance of the evidence.” Id. A petitioner who presents “clear
and convincing evidence” creating a “real, substantial and legitimate
doubt” as to his competence to stand trial is entitled to a hearing on his
substantive incompetency claim. Id. at 1573 (quoting Felidae [v.
Dugger], 819 F.2d [1564], 1568 n.1 (11th Cir. 1987)[)]. To show
entitlement to a postconviction evidentiary hearing on a substantive
competency claim, “the standard of proof is high [and] the facts must
positively, unequivocally, and clearly generate the legitimate doubt.”
Card v. Singletary, 981 F.2d 481, 484 (11th Cir. 1992) (quotations
omitted), cert. denied, 510 U.S. 839, 114 S. Ct. 121, 126 L. Ed. 2d 86
(1993). A presumption of correctness attaches to a state court’s finding
of competence and a federal habeas court must determine that the
finding is not “fairly supported by the record” before it may overturn the
state court’s decision. Maggie v. Mulford, 462 U.S. 111, 117, 103 S. Ct.
2261, 2264, 76 L. Ed. 2d 794 (1983); Card, 981 F.2d at 484 n. 5 (citing
Demosthenes v. Baal, 495 U.S. 731, 110 S. Ct. 2223, 109 L. Ed. 2d 762
(1990)). A district court’s determination that there is insufficient
evidence to generate a substantial and legitimate doubt as to a
petitioner’s competence to stand trial is reviewed for clear error. Card,
981 F.2d at 483–84.
“[N]ot every manifestation of mental illness demonstrates
incompetence to stand trial; rather, the evidence must indicate a present
inability to assist counsel or understand the charges.” Id. at 487–88
(quoting United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012
(7th Cir.), cert. denied, 469 U.S. 1193, 105 S. Ct. 972, 83 L. Ed. 2d 975
(1985)). Similarly, neither low intelligence, mental deficiency, nor
bizarre, volatile, and irrational behavior can be equated with mental
incompetence to stand trial. McCune v. Estelle, 534 F.2d 611, 612 (5th
Cir. 1976). The fact that a defendant has been treated with
anti-psychotic drugs does not per se render him incompetent to stand
trial. Felidae, 819 F.2d at 1569.
Medina, 59 F.3d at 1106-07 (emphasis supplied, final alteration in original, all others
89
supplied).
The principles outlined in Medina were applied to the facts of Wright v.
Secretary, Department of Corrections, 278 F.3d 1245 (11th Cir. 2002), in which the
Court held that the petitioner had not carried his burden of proof.
The fact that [the petitioner] 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. His incompetency to stand
trial seven and eight months later, like his incompetency to stand trial
seventeen years earlier, is relevant, but it is not enough to counter the
best evidence of what his mental condition was at the only time that
counts, which is the time of the trial. The best evidence of Wright’s
mental state at the time of trial is the evidence of his behavior around
that time, especially the evidence of how he related to and
communicated with others then. The 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. There is no evidence that he behaved
abnormally at trial, nor is there any evidence that he had any problem
understanding the charges against him or communicating with his
counsel. This claim fails on the merits.
Id. at 1259 (alterations and emphasis supplied).
3.
Analysis of Ferguson’s behavior and mental state at the time of trial as
it bears upon his claim under the substantive component of the Due
Process Clause that the administration of antipsychotic medications by
state officials prior to trial rendered him incompetent at trial.
Ferguson begins his argument with the statement that he “was . . . medicated
with Haldol prior to and during his trial,” and the allegation (attributed to Dr. James
90
F. Chudy) that the drug was prescribed by “‘a resident from the University of South
Alabama.’”72 Ferguson explained the effects of Haldol as follows:
Haldol is an anti-psychotic (Butyrophene) tranquilizer available
by prescription only. (R. 797). Haldol is used to treat people with
thought disorders, who may experience delusional thoughts,
hallucinations, confusion, or erratic thinking. Id. Haldol produces
calmness and sedation without sleep and does away with hallucinations
and delusions. Generally, patients who are properly prescribed the drug
become more responsive. On the other hand, the side effects of Haldol
can be severe and include symptoms such as “confusion, drowsiness and
lethargy.” Cabanilla v. Bates, No. 99-16074, 2000 WL 1693675, at *2
(9th Cir. Nov. 13, 2000). Other side effects include
Parkinsonian effects (e.g., rigidity, tremors, muscle
stiffness, shuffling gate, stooped posture), akathisia
(described . . . as a kind of restlessness), dystonic reactions
(slow, sustained, muscular contraction or spasm that can
result in an involuntary movement involving the neck, jaw,
tongue, or entire body), tardive dyskinesia (repetitive tics,
or movements that typically involve the face, mouth or
upper extremities) and in some cases neuroleptic malignant
syndrome, a relatively rare condition that can lead to death
from cardiac dysfunction.
United States. v. McCray, 474 F. Supp. 2d 671, 675-76 (D. N.J. 2007).73
Ferguson alleges that unnamed “family members” remarked that he was
“unusually quiet, withdrawn and non-responsive” during the trial.74
Other
unidentified “witnesses” allegedly could testify, if this court were to conduct an
72
Doc. no. 9, at 15-16 (quoting testimony of Dr. James F. Chudy, found at R. 796).
73
Id.
74
Id. (alteration supplied).
91
evidentiary hearing, that Ferguson “stared vacantly throughout the trial[,] and had no
visible responses to most of the proceedings.”75 One unidentified juror, a nurse,
allegedly said that “Ferguson seemed to be medicated throughout his trial, as he
seemed to be removed from everything.”76 “Another [unidentified] juror recognized
that Mr. Ferguson looked pasty-faced and ill.”77
It is important to note that Ferguson’s original statement of this claim did not
allege that Haldol impaired his ability to rationally understand trial proceedings, or
the factual underpinnings of the charges against him, or deprive him of the ability to
consult with his lawyer during the course of trial with a reasonable degree of rational
understanding.
Nevertheless, Ferguson’s reply brief “proposes to offer” evidence that “he was
unable to consult with his lawyer and to have a rational understanding of the
proceedings against him.”78 Even so, Ferguson’s proposed evidence does not include
testimony from his trial attorneys, or any other person who engaged in direct
communication with him during the course of trial. In other words, the evidence he
proposes to elicit would not demonstrate that he was unable to understand the nature
75
Id.
76
Id. at 16.
77
Id. at 16-17 (alterations supplied).
78
Doc. no. 15, at 7.
92
of the trial proceedings, or unable to communicate with and assist his attorneys during
the course of trial due to the ingestion of Haldol. In fact, his proposed evidence
depends solely upon the visual observations of his alleged demeanor by unidentified
family members, witnesses, and jurors.79 The observations of unidentified family
members, witnesses, or others would not clearly and convincingly give rise to doubt
that Ferguson was competent during trial.
Moreover, there is no indication in the record presented to this court that any
mental health expert, courtroom deputy, court reporter, probation officer, or the trial
judge expressed any concern about Ferguson’s competency, based upon his behavior,
communication ability, or apparent comprehension skills.
It also is important to note that Ferguson alleged in state post-conviction
proceedings that he ceased taking Haldol one to two weeks prior to the beginning of
trial.80
a.
The report of the court-appointed psychologist, Dr. C. Van Rosen
Admittedly, Ferguson’s trial attorney filed a motion for a psychiatric evaluation
on October 8, 1997, requesting a determination of whether Ferguson was competent,
both at the time of the offense, as well as for trial.81 The trial judge granted the
79
Id.
80
Rule 32 C.R. Vol. 12, Tab. 40, at 24.
81
C.R. Vol. 1, Tab. 1, at 21-22 (alteration supplied).
93
motion on November 10, 1997, and ordered an outpatient evaluation of Ferguson by
Dr. C. Van Rosen, a forensic psychologist. The mental health examination occurred
on December 18, 1997.82 Dr. Rosen spent six hours with Ferguson, three of which
were dedicated to the administration of psychological tests: e.g., a mental status
examination; a competency to stand trial assessment instrument; a wide range
achievement reading subtest; and a Weschler Adult Intelligence Scale – Revised
(“WAIS-R”).83 Ferguson received a full scale IQ score of 69, but Dr. Rosen declared
that it was “quite apparent” that Ferguson was not attempting to make a good effort.84
Ferguson reported that he began taking Haldol in November of 1997.85
Therefore, Dr. Rosen spoke with members of the
Metro Jail nursing staff, who reported that Mr. Ferguson was being seen
by the jail psychiatric consultant. He was receiving antidepressant
medication as well as a low dose of an antipsychotic medication,
although [Ferguson was] not seen as psychotic and in fact [received] a
diagnosis of Post-Traumatic Stress Disorder.86
Dr. Rosen reported that the information concerning Ferguson’s mental status
was “uncorroborated and therefore unsubstantiated,” and that “much of this
82
Id., at 23-25.
83
R. Vol. 7, at 115 (“State’s Ex. 94”).
84
Id. at 121.
85
Id. at 115-124.
86
Id. at 117 (emphasis and alterations supplied).
94
information may be self-serving and partially inaccurate.”87 He noted that Ferguson
had “some vaguely articulated thoughts of suicide but appeared to be trying to gain
attention for his mental disturbance and consequently exaggerating this
considerably.”88
Dr. Rosen declared that there was no evidence that Ferguson was then, or had
ever been, psychotic, or that he suffered from Post-Traumatic Stress Disorder.89
Instead, he diagnosed Ferguson as suffering from cannabis and alcohol abuse, a
personality disorder with antisocial and borderline traits, and borderline intellectual
functioning.90
Dr. Rosen’s based his diagnoses on the following information obtained from
Ferguson during his interview. Ferguson reported that he began “‘sniffing gas’ and
‘spray paint’” at age nine or ten, and that he did so until he was fifteen, when he
switched to marijuana, which he continued to use until the date of his arrest for
capital murder.91 He also began drinking alcohol at age fifteen, and his consumption
intensified until he reached the point of passing out most days of the week —
87
Id. (alteration and redaction supplied).
88
R. Vol. 7, at 123 (“State’s Ex. 94”).
89
Id.
90
Id.
91
Id. at 118. Dr. Rosen also believed that Ferguson possibly had engaged in long-term abuse
of other drugs, such as cocaine. Id. at 123.
95
although Ferguson added that he had stopped drinking to that extent within the year
preceding the crime for which he was to stand trial, except for the occasional
ingestion of a six-pack of beer.92
Ferguson reported that he “consistently” heard “unusual sounds” — sounds
heard by no one else, and sounds that he described as “voices.” He said that “the
voices” were sometimes associated with “little green men” who could be seen only
out of the corners of his eyes, and that the “little green men” would tell him to steal
things or hurt people. He added that he sometimes saw walls moving.93 Dr. Rosen
opined that Ferguson’s hallucinatory descriptions were not “reflective of [a] psychotic
process,” but were, instead, embellished stories that became increasingly bizarre
during the course of his interview.94 In Dr. Rosen’s opinion, Ferguson was neither
“out of touch with reality” nor “psychotic,” but was, instead, attempting to portray
himself as “emotionally disturbed.”95
Dr. Rosen pronounced Ferguson as competent to stand trial, saying that he:
understood the nature of the charges against him, and the potential range of penalties
that could be imposed upon a conviction; possessed “a relatively good understanding
92
R. Vol. 7, at 118 (“State’s Ex. 94”).
93
Id. at 120.
94
Id (alteration supplied).
95
Id.
96
of the roles of various participants in the courtroom setting”; and, enjoyed a good
relationship with his attorney.96 Dr. Rosen’s report of his evaluation included the
following observations:
The defendant was dressed in a standard metro jail jumpsuit and
showed acceptable personal hygiene and adequate grooming. He did not
appear to have any visual, auditory or speech difficulties. He moved
with normal gross and fine coordination. His physical health appeared
to be without significant difficulties and he made no complaints of any
physical ailments during the examination.
The defendant was aware of the ebb and flow of court procedures.
He was able to understand and articulate, after some explanation, his
understanding as to why his attorney was the only one who could call on
him to testify. He was aware that he needed to cooperate with his
attorney and to behave with propriety in the courtroom. The defendant
additionally voiced an understanding of the process of plea-bargaining.
As noted elsewhere, he was able also to provide an extremely detailed
account of the overall story as to the sequence of events before his
alleged criminal actions, a version of what had happened[,] and also a
detailed account as to what transpired afterwards.
Based on this interview, it appears that Mr. Ferguson is quite
capable of assisting his attorney in the preparation for his defense and
behaving in an essentially normal manner during the trial. The
defendant’s memory regarding the situation is relatively good, his trust
in his attorney[97] appears to be well above average and he is motivated
to defend himself to the best of his ability.98
Dr. Rosen’s written report was admitted into evidence during the penalty phase
96
R. Vol. 7, at 123-24 (“State’s Ex. 94”).
97
Attorneys Kenneth Millican and Tony Glenn were representing Ferguson at this time.
98
R. Vol. 7, at 121-22 (“State’s Ex. 94”) (alteration and footnote supplied).
97
of trial before the jury.99 His testimony during that phase echoed those portions of the
report quoted above.100 While Dr. Rosen perceived Ferguson as “depressed” during
his interview, he did not believe that Ferguson’s demeanor was consistent with a full
blown depression.101 He expressed his belief that Ferguson’s personality disorder had
borderline traits, because of mood swings, and added that “there is some unusual
thinking . . . and occasionally he can do some things that are perhaps somewhat out
of touch with reality at least in a transient or temporary state.”102
b.
The report of Ferguson’s retained psychologist, Dr. James F.
Chudy
Ferguson’s defense attorneys retained a clinical psychologist, Dr. James F.
Chudy, who conducted psychological evaluations on June 9 and 13, 1998.103
Ferguson’s trial began nine days after the last evaluation.104 Ferguson was found
guilty of capital murder three days later, on June 25, 2008, and the penalty phase of
his trial began immediately thereafter.105 Dr. Chudy’s report of his evaluation was
99
Id. at 115-24.
100
R. Vol. 5, Tab. 20, at 833-46; id., Vol. 6, at 847-61.
101
R. Vol. 5 at 847.
102
Id.
103
R. Vol. 8, at 327-34 (“Defendant’s Ex. 1”). Dr. Chudy testified that psychological testing
was conducted on the first day of evaluation, and his interview of Ferguson was conducted the
second day of evaluation. R. Vol. 5, Tab. 19, at 801. He interviewed Ferguson for four hours. Id.
104
Id., Vol. 1, Tab. 1, at 4.
105
Id.
98
admitted into evidence during the penalty phase. He wrote that Ferguson had
provided “coherent” responses to questions, and that he had provided
answers that were logical and goal directed. It was apparent from the
questioning that he was coherent when it came to understanding the
legal proceedings and the charges against him. He understood the
judicial process and he understood what would happen if found guilty.
Mr. Ferguson’s overall functioning showed that he was a
somewhat dull, listless person who lacked spontaneity during the
interview process. His affect was flat and unchanging and his mood was
sad. There were no signs of disturbance in his thinking, although he
noted that he had been hearing voices for some time, most intensely
right after he was placed in jail. He claims that in the past these voices
have directed him to do things against other people. Since being in
Metro jail he has been placed on medication including Haldol, Artane
and Anafranil. He claims that he is calmer and hearing voices less
regularly.
Mr. Ferguson also related his long history of emotional instability
which included periods of depression with suicidal acts. He claimed
that after finding out about his biological father he seriously
contemplated suicide.[106] Also, when his wife was threatening to leave
him, he put a gun to his head which his wife took away from him. This
was confirmed by his wife. Mr. Ferguson claims additionally that he has
a lot of problems in social relationships. He often feels suspicious and
threatened around others. He claims that at times he has even
confronted people when he thought they were making reference to him.
...
During administration of the tests, Mr Ferguson seemed to put
forth his best effort. His concentration was somewhat variable but
generally he was able to focus well enough to complete the tasks
106
Karen Ferguson testified at the penalty phase before the jury that her husband was not told
until he was seventeen years of age that his stepfather was not his biological father.
99
presented. At times he would stare off as he contemplated an answer but
on most of the questions and tasks, he seemed to respond in a fairly
efficient manner.
....
Emotional Functioning
The testing showed fairly high levels of anxiety and depression.
Mr. Ferguson feels anxious and worried about his present circumstances,
however, he seems to show more chronic signs of anxiety as well. He
feels vulnerable and easily threatened by others, often over-evaluating
situations for potential rejection or humiliation. Being so defensive he
is capable of reacting with anger when threatened or feeling unfairly
treated. However, he is not likely to be impulsive or volatile with his
anger. Mr. Ferguson also reports a rather significant level of depression.
Currently he is taking medicine that is managing both his anxiety and
depression but he admits to a history of suicidal thoughts and acts which
preceded his current situation. In both cases he refrained from acting
out the suicidal intentions. His testing showed a pattern typical of
someone with unstable moods that would include some rather severe
depressive swings related to situational factors. These swings might
also be due in part to drug abuse.
A pattern similar to individuals with psychotic symptoms was
present on the testing. Likewise, Mr. Ferguson shared experiences
where he heard voices directing him to do things and had visual
hallucinations of seeing people and objects move. The accuracy and
extent of these reported experiences remains in question. However, in
discussions with his wife she claimed that he told her on various
occasions of hearing voices which worsened with the stress of his
present situation. He reports that these symptoms had improved with
medication provided through a prison psychiatrist. Mr. Ferguson does
not display florid psychotic thoughts but his thinking shows evidence of
being illogical. His thinking also shows elements of indecisiveness and
ambivalence where problem solving and judgement may be adversely
100
affected.107
Dr. Chudy’s pre-trial diagnosis was “Major depression moderate.”108 Chudy
stated that, “[a]t one point [Ferguson’s depression] was severe[,] because he was more
suicidal and [was] being treated with medication in jail[,] which seems to be helping
him.”109 In forming his opinion, Chudy had looked at the “evaluation [made by the
medical] resident who was treating [Ferguson] at the jail facility.”110 When asked
what medication was being administered to Ferguson, Chudy testified: “They are
giving him two — . . . one what they call neuroleptic or antipsychotic medication
named Haldol, then they gave Anafranil which is for anxiety.”111 He stated that
Haldol is considered a major tranquilizer. It is used typically for people
who are having thought disorders where they might be experiencing
delusional thoughts or hallucinations, they are really confused and
erratic thinking, so it is intended mostly for maintaining control and
thought disorder.112
Chudy observed that Ferguson was a “polysubstance drug abuser which
included marijuana, cocaine and inhalents.”113 As part of his Axis I diagnosis, Chudy
107
R. Vol. 8, at 330, 332 (“Defendant’s Exhibit 1”) (footnote supplied).
108
R. Vol. 5, Tab. 19, at 796 (alteration supplied).
109
Id. (alterations supplied).
110
Id. at 806 (alterations supplied).
111
Id. at 796.
112
Id. at 797.
113
Dr. Chudy’s written report recorded that Ferguson admitted that he had
a long history of substance abuse. He started sniffing gas and paint when he was
101
determined that Ferguson had “major depression moderate,” and “generalized anxiety
disorder.”114
His Axis II diagnosis was “personality disorder that borderlines
schizotypal features and secondly borderline[] intellectual functioning.”115
Ferguson’s anxiety disorder was “long-term,” and involved “a lot of tension
and uneasiness.”116 Ferguson’s personality disorder with borderline and schizotypal
features indicated “problems of instability in moods with irritability, ups and downs
in mood leading to possible problems in relationships. And then some odd behavior,
maybe some transient or brief periods where he might be out of touch with reality.”117
Chudy testified that Ferguson’s claims of “hallucinations or hearing voices” did
not affect his evaluation, because Ferguson reported that he “was doing generally a
approximately 10 years old and continued the abuse until his imprisonment. He
would sniff whenever he did not have access to other drugs. Other drugs he abused
included marijuana, LSD, crack cocaine and powder cocaine. He denies any history
of IV use. He also drank alcohol heavily and regularly for a while until he
accumulated three DUI’s. When his wife threatened to leave him because of his
drinking he quit, which was approximately two years ago. However, his drug use has
continued unabated. He admits that his drug use has caused financial problems
which has led him to pawn things and to ask for loans from other people. He also
sold marijuana as a means of generating income. However, he denies any other
illegal activities such as burglarizing homes. He does admit that he forged checks
belonging to his grandmother to secure drugs. He was criminally charged with the
offense and was put on probation which he served successfully.
R. Vol. 8, at 330.
114
R. Vol. 5, Tab. 19, at 795.
115
Id. (alteration supplied).
116
Id. at 797.
117
Id. at 798.
102
lot better” as a result of the medications that had been prescribed for him.118
c.
Analysis of evidence bearing upon Ferguson’s behavior and
mental state at the time of trial.
The penalty phase of Ferguson’s trial ended on June 25, 1998. Ferguson did
not testify at any stage of the trial, and there is no record that he spoke with court
officials at any time. Ferguson was still taking Haldol in August of 1998, when the
probation officer examined him for the purpose of preparing a presentence
investigation report.119 There are no notations in the eight-page report indicating that
Ferguson had any difficulty understanding the officer’s questions, or communicating
with her.120 The trial judge’s sentencing order acknowledged the presentence
report,121 and there is no indication in the transcript of the September 1998 sentencing
hearing that Ferguson had any trouble understanding the proceedings, or
communicating with the trial judge.122
Ferguson does not specifically allege, and the trial record does not contain any
evidence indicating, that the administration of Haldol prior to trial rendered him
incompetent.
There is no record that any of those persons having direct
118
Id. at 805 (alterations supplied).
119
C.R. Vol. 1, Tab. 2, at 94.
120
Id. at 87-94.
121
See C.R. Vol. 16, Tab. 47, at 136.
122
See R. Vol. 6, Tab. 26, at 16.
103
communication and interaction with Ferguson immediately before, during, or after the
trial — namely, mental health experts, defense counsel, court officers, or the trial
judge — expressed any concern that that Ferguson was not competent at any point
leading up to and through the trial process.
Moreover, as previously noted, the Rule 32 petition filed in state court alleged
that the administration of Haldol ceased “one to two weeks before the trial” began.123
Ferguson’s unnamed family members and witnesses may well have observed
a quiet, withdrawn defendant. However, such behavior is commensurate with one
mental health expert’s report stating that Ferguson understood he was to behave with
propriety at trial.124 It also is commensurate with another expert’s observation that
Ferguson was a depressed, dull, listless person whose affect was flat and unchanging,
and whose mood was sad.125
Ferguson’s behavior as allegedly described by unidentified family members
and witnesses may even be commensurate with lethargy and drowsiness. But neither
those witnesses, nor the testimony of the experts, or the observations by other
witnesses having close communication with Ferguson during the trial, show that
Haldol caused him any confusion or dulled sensibilities — much less produced a
123
Rule 32 C.R. Vol. 12, Tab. 40, at 24 (emphasis supplied).
124
R. Vol. 7, at 122 (“State’s Ex. 94”).
125
R. Vol. 8, at 330 (“Defendant’s Ex. 1”).
104
mental state that rose to the level of incompetency. In fact, both experts who
examined Ferguson clearly found him to be competent while he was actively taking
the medication, and Ferguson himself reported that he actually felt better when he
was taking Haldol.126
In summary, this claim is without factual support and merit. There is no
credible evidence, must less “clear and convincing evidence” giving rise to “a real,
substantial, and legitimate doubt” as to Ferguson’s competence during the period
leading up to and through trial. Medina v. Singletary, 59 F.3d 1095, 1106-07 (11th
Cir. 1995) (quoting Felidae v. Dugger, 819 F.2d 1564, 1568 n.1 (11th Cir. 1987)).
Accordingly, Ferguson is not entitled to a hearing in this court on his claim under the
substantive dimension of the Due Process Clause that the ingestion or administration
of Haldol and other medications rendered him incompetent to stand trial.
4.
Analysis of Ferguson’s claim that the administration of medications by
state officials without his consent violated his “substantive due process”
rights.
When considering a substantive due process claim that medications were
administered by state officials without the petitioner’s consent, the threshold question
is: “‘What factual circumstances must exist before the State may administer
antipsychotic drugs to the prisoner against his will.’” United States v. Loughner, 672
126
R. Vol. 8, at 330, 333 (“Defendant’s Ex. 1”); R. Vol. 5, Tab. 19 at 805 (Dr. Chudy); R.
Vol. 7, at 121-22 (“State’s Ex. 94”) (Dr. Rosen).
105
F.3d 731, 744 (9th Cir. 2012) (citing Washington v. Harper, 494 U.S. 210, 220
(1990)). The answer provided by Harper is: “[T]he Due Process Clause permits the
State to treat a prison inmate who has a serious mental illness with antipsychotic
drugs against his will, if the inmate is dangerous to himself or others and the
treatment is in the inmate’s medical interest.” Harper, 494 U.S. at 227 (alteration
supplied); see also Riggins v. Nevada, 504 U.S. 127, 135 (1992) (applying the Harper
standard in the context of a habeas proceeding).
Ferguson describes the administration of Haldol during the period leading up
to his trial as either “involuntary,” or “State-induced.”127 That is the extent of his
factual allegations in support of this aspect of his claim. He offers no specific factual
allegations to support those conclusory assertions, and he makes no effort to satisfy
any other element of the Harper/Riggins standard. On the other hand, the record
shows that the administration of Haldol actually made Ferguson feel better.128
Due to the conclusory and factually unsupported allegations regarding every
element of this claim, it is not sufficiently specific for federal pleading purposes, and
127
Doc. no. 9, at 17-18.
128
As previously noted, both experts who examined Ferguson clearly found him to be
competent while he was actively ingesting medications, and Ferguson himself reported that he
actually felt better when taking Haldol. See R. Vol. 8, at 330, 333 (“Defendant’s Ex. 1”); R. Vol.
5, Tab. 19 at 805 (Dr. Chudy); R. Vol. 7, at 121-22 (“State’s Ex. 94”) (Dr. Rosen).
106
it is due to be dismissed on the merits.129
C.
Ferguson’s Trial Counsel Denied Him Effective Assistance During the
Sentencing Phase of Trial, Before the Trial Judge130
Ferguson alleges that his defense attorneys provided ineffective assistance
during the sentencing phase of trial, because counsel “failed to investigate and proffer
evidence of either the sexual abuse Mr. Ferguson suffered as a child[,] or the physical
abuse both [he] and his mother endured at the hands of [his] stepfather.”131 He
contends that, if that evidence had been presented to the trial judge, a “reasonable
sentencer” would have been persuaded to follow the jury’s 11-1 recommendation and
sentence him to life without parole.132 Ferguson asserts that the state court’s rejection
of this claim is an unreasonable application of clearly established Federal law.133 He
129
Although not a part of the court’s decision to dismiss this claim for lack of specificity,
the trial record shows that Ferguson reported when he first entered the jail that he was having
hallucinations and was suicidal. Harper allows prisons officials to involuntarily medicate an inmate
if he is a danger to himself or others, and the medication is in his interest. Haldol is a tranquilizer
that controls hallucinations and erratic thinking. Therefore, the medication was appropriate.
Additionally, Ferguson does not dispute that he was given a low dose of the medication, and
does not deny that he felt better while he was on the medication. Ferguson’s behavior and abilities
while on this prescription were documented by Dr. Rosen and Dr. Chudy. Both reports show
Ferguson was capable of understanding and communicating with his lawyers, and assisting in his
defense, even while ingesting medications. Finally, Ferguson has previously alleged that the
administration of Haldol ceased before trial began.
130
See doc. no. 9, ¶¶ 41-60, at 18-29 (petition); doc. no. 15, ¶¶ 12-16, at 8-10 (reply brief).
131
Doc. no. 9, at 20 (alterations supplied).
132
Id.
133
Id. at 19, 25, 29 (citing Strickland, 466 U.S. at 686, 694; and Wiggins v. Smith, 539 U.S.
510, 533 (2003)).
107
requests a hearing to present evidence in support of his claim.
The trial evidence of physical abuse by Ferguson’s stepfather
1.
Ferguson’s attorneys presented the psychological evaluation of Dr. James
Chudy as evidence that Ferguson had been physically abused as a child by his
stepfather. Dr. Chudy documented Ferguson’s report that “the stepfather . . . has a
history of drinking and has been moody and volatile at times. Mr. Dale Ferguson
recalls at least one episode where he was physically abused by his stepfather.”134
Defense counsel corroborated that Ferguson’s stepfather had been a violent, abusive
person through the testimony of Ferguson’s wife, Karen, who testified that Ferguson
did not get along with his stepfather.135 She also testified that, when Ferguson was
about 18 years of age, she and Ferguson had to rescue Ferguson’s mother from his
stepfather.136 Ferguson’s mother had called them, said that the stepfather had beaten
her, and she was hiding in the bushes.137 When they retrieved Ferguson’s mother
from her hiding place, the stepfather chased the automobile in which they made their
escape for forty-five minutes, and attempted to run them off the road.138
Additional allegations of physical abuse by Ferguson’s stepfather
2.
134
R. Vol. 8, at 327-28.
135
R. Vol. 5, Tab. 19, at 818.
136
Id. at 819.
137
Id.
138
Id.
108
included in the Rule 32 petition
Ferguson alleged in the Rule 32 petition filed in state court that the stepfather
physically abused all three step-children, but especially him.139 His mother would
whisk the children away for several days at a time, to stay with her mother, but she
always returned to the home.140 He added that, during the incident in which he and
his wife had rescued his mother, the stepfather not only chased their automobile for
a considerable distance, but also threatened Ferguson with a gun.141 Moreover, due
to the stepfather’s mistreatment, Ferguson’s mother “ultimately attempted suicide,
which resulted in her hospitalization in a mental institution.”142
Ferguson also asserted that his childhood friend, Ricky Vinzant, could testify
that the stepfather punched Ferguson with closed fists.143 Ferguson added that
“[t]hese beatings were a routine aspect of [his] childhood and teenage years. The
only time he had any respite was when [his stepfather], a trucker, was on the road.”144
The stepfather’s “unpredictable temper” caused Ferguson to have few friends,
because he was afraid to ask anyone to his home.145 He claimed that unidentified
139
Rule 32 C.R., Vol. 12, Tab. 40, at 67.
140
Id.
141
Id.
142
Id.
143
Id. at 68.
144
Id. (alterations supplied).
145
Rule 32 C.R., Vol. 12, Tab 40, at 70.
109
“family members” could have testified to this treatment.146
3.
The adjudication of Ferguson’s physical abuse allegations by the
Alabama Court of Criminal Appeals on collateral review
The relevant findings of fact and conclusions of law of the Alabama Court of
Criminal Appeals on collateral review were as follows:147
Ferguson argues that the court hearing his Rule 32 petition erred
in not granting him relief on his claims that his counsel was ineffective
at the penalty phase for failing to present additional mitigation
witnesses.
The circuit court made the following findings on this claim:
“The instant case is similarly distinguishable from
Wiggins [v. Smith, 539 U.S. 510, 534 (2003)], because trial
counsel presented the vast majority of mitigation evidence
that Ferguson alleges should have been presented. For
instance, Ferguson alleges that trial counsel should have
presented evidence of physical abuse and other difficulties
during his childhood. (Pet. at 62-68.) Specifically,
Ferguson alleges that numerous witnesses could have
testified that his stepfather was physically and verbally
abusive towards him as a child. (Pet. at 64.) A review of
the record, however, reveals that trial counsel did present
evidence during the penalty phase that Ferguson was
146
Id. at 68.
147
The Alabama Court of Criminal Appeals’ rejection of the post-conviction version of this
claim on collateral review covers a broader expanse of ineffective assistance of counsel allegations
than the physical abuse discussed by Ferguson in his habeas petition. Even so, the opinion is quoted
in toto so that the appellate court’s entire analysis on collateral review, especially its reweighing of
aggravating and mitigating circumstances, can be examined in order to determine whether Ferguson
is entitled to habeas relief from the state court’s determination that he did not suffer constitutional
prejudice. Those portions of the following opinion by the intermediate state appellate court that
address the physical abuse allegedly suffered by Ferguson are highlighted by italics.
110
physically and verbally abused by his stepfather. During
Dr. Chudy’s testimony, the defense offered into evidence
his psychological evaluation of Ferguson. (R. 790.) The
psychological evaluation contained a detailed history of
Ferguson’s childhood. (C.R. 327-330.) That history
included Ferguson’s recollection that his stepfather
physically abused him and would ridicule his physical
appearance. (C.R. 328.) Ferguson’s wife, Karen, also
testified that Ferguson’s struggles with his stepfather made
Ferguson cry. (R. 818.)
“Other alleged instances of failures by trial counsel
to present mitigating evidence are equally refuted by the
record. In his petition, Ferguson recounts how at one point
he had to pick up his mother from her home after she was
beaten by his stepfather. Ferguson said that after he
picked her up, his stepfather attempted to run him off the
road. (Pet. at 64.) This incident was brought out by trial
counsel during the testimony of Ferguson’s wife, Karen.
(R. 819.)
“Ferguson also recounts how he did not learn that his
stepfather was not his biological father until he was
seventeen years old. Ferguson claims that he tried to
establish a relationship with his biological father but
abandoned his efforts under pressure from his stepfather.
(Pet. at 65-66.) Ferguson contends that had trial counsel
adequately investigated, they would have uncovered this
information and could have presented it to the jury. The
record, however, demonstrates that this information was, in
fact, presented. Karen Ferguson testified at the penalty
phase before the jury, that her husband was not told until
he was seventeen years old that his stepfather was not his
biological father. (R. 820.) Ms. Ferguson also stated that
Ferguson stopped talking to his biological father because
his mother and stepfather disapproved. (R. 820.)
111
“Ferguson also faults counsel for failing to explain
that, as a result of his own childhood, he viewed his wife’s
stepfather as a surrogate father. Ferguson contends that
counsel should have presented evidence that he respected
and admired his stepfather-in-law. (Pet. at 67.) Once
again, the record demonstrates that counsel did present
evidence of Ferguson’s close relationship with his
stepfather-in-law. Karen Ferguson testified extensively
about her husband’s father-son type relationship with her
stepfather. (R. 815-816.)
“Ferguson also faults trial counsel for failing to
uncover his history of alleged mental health problems.
(Pet. at 68.) Incredibly, Ferguson contends that ‘trial
counsel made absolutely no effort to investigate such
issues for the penalty phase.’ (Pet. at 70.) Ferguson’s
claim, however, is refuted by the trial record.
“Trial counsel for Ferguson presented the testimony
of clinical psychologist, Dr. James F. Chudy. Dr. Chudy
testified that he was contacted by Ferguson’s counsel and
asked to conduct a complete psychological evaluation of
Ferguson. (R. 788.) Dr. Chudy stated that he interviewed
Ferguson’s family, reviewed school records, administered
numerous psychological tests, and conducted a clinical
interview of Ferguson. (R. 788-91.) Dr. Chudy also
administered tests to determine whether Ferguson suffered
from any organic brain damage. (R. 791.) Dr. Chudy
testified extensively about Ferguson’s slow development
as a child, his borderline intelligence, and his drug and
alcohol abuse. (R. 792-95.) Dr. Chudy testified that
Ferguson also suffered from depression, anxiety, and a
personality disorder with borderline and psycho type
features. (R. 795-798.) As such, any claim by Ferguson
that trial counsel failed to investigate and present evidence
of his mental health records is directly refuted by the
record. See Gibby v. State, 753 So. 2d 1206, 1207-08 (Ala.
112
Crim. App. 1999) (holding that a postconviction claim that
is refuted by the record on direct appeal is without merit).
“Ferguson also alleges that counsel was ineffective
for failing to investigate and present evidence of his
non-violent nature, love of children, and history of
depression. (Pet. at 73.) Karen Ferguson, however,
testified at trial that her husband was never violent and
always treated her well. (R. 811, 821.) Karen also
testified that Ferguson would often cry because of his
difficulties with his family. (R. 819.) Dr. Chudy testified
regarding Ferguson’s history of depression and his
attempted suicide. (R. 795, 808.)
“Ferguson is correct that counsel did not present any
evidence regarding his love of children. However, such
evidence would have been of no value in this case.
Ferguson was convicted of murdering an eleven-year-old
boy and his father after they spent the day fishing.
Ferguson’s own action in murdering an eleven-year-old
boy to steal a truck destroys any contention that he loves
children. The facts and circumstances of this case serve to
diminish any mitigating value that evidence of a love of
children may have carried. Even assuming that such
evidence had minimal value, it would not have affected the
outcome of the trial.
“Ferguson also contends that trial counsel failed to
introduce evidence of his good character. (Pet. at 75.)
Specifically, Ferguson argues that trial counsel should have
presented evidence of his work history and of his
dedication to his family. (Pet. at 76.) This claim is directly
refuted by the record. Dr. Chudy’s report, which was
introduced into evidence, detailed Ferguson’s extensive
work history. (CR. 329.) Karen Ferguson also testified
that her husband always provided for her and supported her
while she attended nursing school. (R. 811-12.) Karen
113
Ferguson pleaded for her husband’s life and explained that
he was a good man and a good husband. (R. 821-22.)
“The record in this case demonstrates that both the
trial court and the jury were presented with evidence that
Ferguson suffered physical and psychological abuse as a
child. Trial counsel also presented evidence of Ferguson’s
limited intellect and his other mental health problems.
Counsel also presented evidence concerning Ferguson’s
history of non-violence and his good character. Even if the
Court assumed that the allegations in the petition are true
and that counsel could have presented additional witnesses
to testify regarding Ferguson’s abuse as a child, his mental
health problems, his drug abuse, and his good character,
the evidence would be nothing more than cumulative to
that already presented. Cumulative witnesses and
evidence, even if true, would not have altered the trial
court’s opinion that death was the appropriate sentence in
this case. As the Court stated in Atkins v. Singletary, 965
F.2d 952, 958-60 (11th Cir. 1992), ‘[t]rial counsel did
enough. A lawyer can almost always do something more
in every case. But the Constitution requires a good deal
less than maximum performance.’
“Although Ferguson now asserts that more should
have been done, he cannot show that what was done was
unreasonable. Perhaps the best reason for summarily
denying the sort of claim presented in Ferguson’s petition,
is found in Chandler v. United States, 218 F.3d 1305,
1316-1317 n.20 (11th Cir. 2000).
“‘For example, “[i]t is common practice
for petitioners attacking their death sentences
to submit affidavits from witnesses who say
they could have supplied additional
mitigating [ ] evidence, had they been called
or . . . had they been asked the right
114
questions.” Waters [v. Thomas], 46 F.3d
[1506] at 1514 [(11th Cir. 1995) ] (en banc).
But “[t]he mere fact that other witnesses
might have been available or that other
testimony might have been elicited from those
who testified is not a sufficient ground to
prove ineffectiveness of counsel.” Id. (noting
that such witnesses show nothing more than
that, “with the luxury of time and the
opportunity to focus resources on specific
parts of a made record, post-conviction
counsel will inevitably identify
shortcomings”). And, basing the inquiry on
whether an investigation (if one had been
undertaken) would have uncovered mitigating
evidence (or witnesses) is an example of
judging counsel’s acts from the benefit of
hindsight. The proper inquiry was articulated
in Rogers v. Zant[, 13 F.3d 384 (11th Cir.
1994)]: “Once we conclude that declining to
investigate further was a reasonable act, we
do not look to see what a further investigation
would have produced.” (Citation omitted.)’
“The record in this case supports a finding that trial
counsel did enough. Counsel presented the vast majority
of mitigating evidence that Ferguson alleges he did not
present. Trial counsel cannot be deemed ineffective for
simply failing to present cumulative mitigation testimony.
See Pierce v. State, 851 So. 2d 558, 582 (Ala. Crim. App.
1999), rev’d on other grounds, 851 So. 2d 618 (Ala. 2002)
(‘“Trial counsel’s performance was not ‘outside the wide
range of professionally competent assistance’ simply
because they failed to present evidence that would have
been cumulative of other evidence presented at trial.”’).
Moreover, ‘counsel does not necessarily render ineffective
assistance simply because he does not present all possible
115
mitigating evidence.’ Williams v. State, 783 So. 2d 108,
117 (Ala. Crim. App. 2000). ‘“There ha[s] never been a
case where additional witnesses could not have been
called.”’ Fortenberry v. State, 659 So. 2d 194, 199 (Ala.
Crim. App. 1994), quoting State v. Tarver, 629 So. 2d 14,
21 (Ala. Crim. App. 1993). ‘The mere fact that other
witnesses might have been available or that other testimony
might have been elicited from those who testified is not a
sufficient ground to prove ineffectiveness of counsel.’
Chandler, 218 F.3d at 1317 (11th Cir. 2000) (quoting
Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995)).
“Finally, in light of the nature and circumstances of
this crime — the robbery and murder of a father and his
young son — and the specific findings made by the
sentencing authority, there is no reasonable probability that
the mitigating circumstances alleged in the petition, even
if true, would have altered the balance of aggravating and
mitigating factors in this case. See Grayson v. Thompson,
257 F.3d 1194, 1225 (11th Cir. 2001). The sentencing
authority was well aware of the mitigation evidence
presented at trial.
“The sentencing authority determined that
Ferguson’s difficult childhood was not a mitigating factor.
(C.R. 140.) This Court agrees. Ferguson was 24 years old
at the time of the crime. He had been married for five
years and was able to support himself and his wife while
she attended nursing school. Under the circumstances of
this case, the petition’s (sic) allegations of childhood abuse
and borderline intellect, even if true, would not mitigate his
actions as an adult.
“Additionally, Ferguson’s mental health problems
were thoroughly investigated and presented by trial
counsel. The sentencing authority determined that
Ferguson’s mental health problems did not diminish his
116
ability to distinguish right from wrong or to control his
actions. (CR. 138.) This Court agrees. Ferguson’s mental
health problems were not of such a severe degree that
Ferguson was less culpable for his actions.
“Additionally, evidence of Ferguson’s non-violent
nature and his good character were introduced through his
wife, Karen Ferguson. This mitigating evidence, along
with the other mitigating evidence presented at trial and
that alleged in the petition is outweighed by the
aggravating circumstance in this case.
“Finally, the jury recommended by an 11 to 1 vote
that Ferguson be sentenced to life without the possibility of
parole. Clearly, trial counsel was effective in convincing
the jury to reject the death penalty. See, e.g., White v.
State, 587 So. 2d 1218, 1235 (Ala. Crim. App. 1990) (‘A
strong indication of trial counsel’s proficiency is the fact
that the jury, despite the defendant’s two damning and
incontrovertible confessions, recommended a sentence of
life without parole. We find no merit to the defendant’s
contention that he was denied the effective assistance of
counsel.’). As such, Ferguson has failed to state a claim
that would entitle him to relief. This claim is therefore
summarily dismissed. Ala. R. Crim. P. 32.7(d).”
(C.R. 487-93) (footnotes omitted). The circuit court’s findings are
supported by the record, and we adopt them as part of this opinion.
Ferguson v. State, 13 So. 3d 418, 439-43 (Ala. Crim. App. 2008) (alterations in
original) (emphasis supplied).
4.
Analysis of the claim that counsel was ineffective during the sentencing
phase of trial, for failing to investigate and present additional evidence
of physical abuse of Ferguson by his stepfather
117
In order to obtain habeas relief on this claim, Ferguson “must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, —
U. S. —, 131 S. Ct.770, 786-87 (2011).
Ferguson does not dispute the accuracy of the preceding factual findings made
by the trial court and adopted by the Alabama Court of Criminal Appeals. Instead,
he argues, contrary to the opinions of those courts, that reasonable defense attorneys
would have investigated the issue of physical abuse more thoroughly after being
placed on notice of the issue by Dr. Chudy’s report, and that a more thorough
investigation would have revealed witnesses who were both able and willing to testify
about the severity of the abuse during the sentencing phase of trial. Specifically,
Ferguson contends that
Frances Hill Cummings (Mr. Ferguson’s maternal grandmother),[148]
Ricky Vinzant (a childhood friend), and Billy Joe Haithcock (Mr.
Ferguson’s biological father — in addition to possibly James Ray and
148
In his procedurally defaulted claim of ineffective assistance of counsel at the guilt phase
of trial, based upon the contention that defense counsel failed to investigate Ferguson’s intoxication
and intellectual problems, Ferguson alleged that counsel failed to interview “family and friends
adequately (spending only 0.7 hours with Mr. Ferguson’s mother and brother).” Doc. no. 9, at 35.
In a footnote attached to that statement, Ferguson declared that “[t]here is no evidence in counsel’s
own time log that they ever communicated with any other member of the family. Frances
Cummings, Mr. Ferguson’s grandmother, made repeated attempts to contact her grandson’s lawyers
through both phone calls and letters, and was consistently rebuffed.” Id. at n.6 (citing Rule 32 C.R.
Vol. 12, Tab. 40, at 35).
118
Chris Ferguson (Mr. Ferguson’s two half-brothers) — were willing to
testify to the abuse [that] both Mr. Ferguson and his mother experienced
from Mr. Ferguson’s stepfather.149
Ferguson asserts that a reasonable attorney would have gathered additional
information from his family and friends “‘to verify, corroborate, explain and expand
upon [the] information obtained’” by the clinical psychologist retained by his defense
counsel, Dr. James F. Chudy.150 Ferguson contends that the state court unreasonably
“‘assumed, based on the fact that [Ferguson’s] sentencing phase presentation included
some evidence of abuse, that counsel’s investigation was sufficient to permit a
reasonable decision as to what evidence should be offered.’”151
In the opinion of this court, the state courts’ determination that declining to
investigate further was a reasonable and constitutionally sufficient act by trial counsel
is an unreasonable application of the Strickland standard’s performance prong, which
then was “clearly established federal law, as determined by the Supreme Court of the
United States.”152
At the time of Ferguson’s trial, no reasonable defense attorney would have
149
Doc. no. 9, at 24 (footnote and alteration supplied).
150
Id. at 22 (quoting Williams v. Allen, 542 F.3d 1326, 1339 (11th Cir. 2008) (in turn quoting
ABA Guidelines, 11.4.1(D) (1989))) (alteration in petition).
151
Id. at 25 (quoting Williams v. Allen, 542 F.3d at 1339) (alteration and emphasis in
petition).
152
28 U.S.C. § 2254(d)(1).
119
limited an investigation into the extent and severity of the physical abuse of Ferguson
by his stepfather after being placed on notice of that mitigation issue by the
information contained in Dr. Chudy’s report. That is particularly true in this case,
because Ferguson’s piteous childhood was a significant aspect of the defense’s
mitigation case. In the opinion of this court, fairminded jurists would agree that the
state courts’ rejection of this claim was not a reasonable application of Strickland’s
performance prong.
Ferguson also asserts that it was unreasonable for the state courts to determine
that he was not prejudiced by his counsel’s deficient performance. He contends that
there was a reasonable probability that the trial judge’s decision regarding Ferguson’s
childhood abuse as a mitigating factor, and the weight he afforded the jury’s
sentencing recommendation, would have changed the balance of aggravating and
mitigating circumstances, and resulted in a sentence of life without parole.153
153
This claim is dedicated to counsel’s ineffectiveness in investigating and presenting sexual
and physical abuse allegations at the sentencing phase of trial, before the trial judge. Even if
Ferguson had attempted to expand the claim to also encompass the penalty phase of trial, “[a]
petitioner cannot show sentencing phase prejudice when the jury recommends a sentence of life
instead of death.” Parker v. Allen, 565 F.3d 1258, 1275 (11th Cir. 2009) (alteration supplied) (citing
Routly v. Singletary, 33 F.3d 1279, 1297 (11th Cir. 1994)).
Moreover, when arguing the prejudice prong of this ineffective assistance of counsel claim,
Ferguson adds two additional and separate issues of trial error that should not be a part of the mix.
Those “errors” are either a refusal of the trial judge to find, or a dispute as to the weight the trial
judge afforded, two items of mitigating evidence. Ferguson desires to include those alleged trial
errors in an effort to convince the court that the state appellate court’s reweighing of the aggravating
and mitigating factors pertinent to the prejudice portion of the ineffective assistance of counsel claim
offend 2254(d).
120
When conducting its prejudice inquiry on collateral appeal, the Alabama Court
of Criminal Appeals held that, even assuming that Ferguson’s additional, cumulative
evidence was true, the evidence would not have resulted in a determination that his
childhood abuse was a mitigating circumstance, because Ferguson was 24 years of
age on the date of the crimes, and had developed a life and family separate from his
stepfather. Consequently, the balance of the totality of aggravating and mitigating
circumstances would not have been altered.
The initial question before this court is whether the state court unreasonably
applied Strickland’s prejudice prong when it found that the post-conviction
allegations of physical abuse were cumulative to the abuse evidence presented at trial.
See Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1259 (11th Cir.
The first issue is Ferguson’s assertion that the state courts refused to consider his borderline
intellectual functioning as a mitigating circumstance, and that this factor should have been part of
the reweigh process to determine the reasonable probability of prejudice with regard to the
ineffective assistant of counsel claim. Doc. no. 9, at 26-27. Next, Ferguson complains that the trial
judge unreasonably overrode (i.e. did not give proper weight to) the jury’s sentencing
recommendation, and again asks that this be included in determining whether he is entitled to habeas
relief from the state court’s reweigh in the context of the state court’s prejudice analysis of his
ineffective assistance of counsel claim. Id. at 27-28. However, the constitutionality of the state
courts’ refusal to find Ferguson’s borderline intelligence to be a mitigating factor under the
circumstances of his case, and its determination as to the amount of weight to be afforded the jury’s
recommendation, are separately addressed in this Memorandum Opinion. In both instances, this
court finds that Ferguson is not entitled to habeas relief from the state court’s refusal to find
borderline intelligence to be a mitigating circumstance, nor is he entitled to relief from the amount
of weight afforded the jury’s sentencing recommendation. Since those determinations are
constitutionally sound, it follows that the information the Alabama Court of Criminal Appeals
considered in the reweigh of aggravating and mitigating circumstances (at trial and on collateral
review) during its ineffective assistance of counsel prejudice analysis was proper as to the question
of borderline intelligence and weight afforded the jury’s recommendation.
121
2012) (holding that a “‘largely cumulative’” finding by the state court was a legal
finding to be examined under 28 U.S.C. 2254(d)(1)). In doing so, this court must
consider whether Ferguson’s post-conviction allegations merely amplified the
evidence of abuse presented at trial and, therefore, were reasonably deemed
cumulative on collateral review, or whether the post-conviction allegations
constituted “new” evidence, because the nature and scope of the allegations was so
dissimilar to the story told at trial that the state court’s determination that the evidence
was cumulative amounted to an unreasonable application of clearly established
federal law. See Holsey v. Warden, 694 F.3d at 1267 (comparing the evidence
presented during the sentencing phase to post-conviction allegations in order to
determine whether the latter “largely told the same story as [Holsey’s] sentencing
phase evidence, although it did add details and bolster that evidence,” or whether it
told “a different story”) (alteration supplied).
This court finds that it was not reasonable for the Alabama Court of Criminal
Appeals to conclude that Ferguson’s post-conviction evidence of physical abuse was
cumulative to that presented during the sentencing phase of trial. In other words, the
post-conviction evidence did more than amplify the abuse evidence presented at trial.
Indeed, the post-conviction evidence of physical abuse painted a different picture of
the physical abuse than that presented at trial, which was limited to a mental health
122
expert’s notation that Ferguson reported that his stepfather physically abused him at
least once.
Regardless, it was not unreasonable for the Alabama Court of Criminal
Appeals to determine that the post-conviction evidence would not change the balance
of aggravating and mitigating circumstances, because the state court expressly found
that Ferguson was 24 on the date of the murders, and was living an adult life
independent of his stepfather. In other words, any mitigating effect of Ferguson’s
childhood abuse was removed by his chronological distance from those experiences.
Additionally, it is obvious that the trial court judge found that Ferguson’s
involvement in the murders (particularly the murder of a child), the reasons for his
involvement, Ferguson’s ability to extricate himself from the long-planned crimes,
and his continual support for the criminal activity that occurred thereafter by
participating in the bank robbery, were heavily aggravating when those circumstances
were considered in combination. Even with the additional evidence of physical
abuse, fairminded jurists could disagree with the conclusion of the Alabama court of
Criminal Appeals that there was no reasonable probability that the balance of
aggravating and mitigating factors would have shifted sufficiently for the trial court
judge to be persuaded to follow the jury’s sentencing recommendation.
5.
The claim that counsel was ineffective during the sentencing phase of
123
trial for failing to investigate and present additional evidence of
childhood sexual abuse of Ferguson
Ferguson did not allege during Rule 32 proceedings in the trial court or on
collateral appeal that his attorneys were ineffective for failing to investigate and
present evidence that he had been sexually abused as a child. Ferguson’s failure to
present the underlying sexual abuse allegation as part of his ineffective assistance of
counsel claim during state court collateral proceedings renders it procedurally
defaulted in this court.
Alternatively, even if the sexual abuse allegation falls within the Martinez
procedural default exception — that is, Ferguson’s post-conviction counsel was
ineffective for failing to allege in his Rule 32 petition that trial counsel did not
investigate and present either his wife’s, or Dr. Chudy’s, testimony as part of the
mitigating sexual abuse background evidence — the argument would not be
successful, unless Ferguson can establish that his underlying ineffective assistance
of trial counsel claim has “some merit.” Martinez v. Ryan, — U.S. —,132 S. Ct.
1309, 1319 (2012).
a.
The trial evidence
The trial record shows that Ferguson’s trial attorneys investigated and
presented to the jury and trial judge evidence of the sexual abuse of Ferguson during
124
childhood in the form of Ferguson’s statements to Dr. Rosen and Dr. Chudy, both of
whom recorded the subject matter in professional reports that were admitted into
evidence as exhibits during the penalty phase of trial.154 Dr. Rosen wrote that
Ferguson
discussed being allegedly molested as a child, with several years of
being “sexually abused” by an older sister. The defendant also reports
as to having been the victim of a homosexual “rape” by an older cousin,
these items also generally being included in his letter noted above to his
defense attorney.155
Dr. Chudy recorded that “[t]here is no evidence of sexual maladjustment[,] but Mr.
Ferguson reports an early history [age 6 to 10] of rather extended sexual abuse by an
older male and female relative.”156 Ferguson also reported to Chudy that, “[o]ut of
fear[,] he did not tell anyone about the abuse.”157
Accordingly, there is no merit to Ferguson’s contention that trial counsel failed
to investigate and present evidence of his sexual abuse. Ferguson’s current habeas
allegation — that he “told his wife about being sexually abused, but such testimony
never surfaced at the sentencing hearing,”158 and that “Dr. Chudy’s psychological
154
C.R. Vol. 7, at 120 (“State’s Ex. 94”); id., Vol. 8, at 327-34 (“Defendant’s Ex. 1.”).
155
Id., Vol. 7, at 120.
156
Id., Vol. 8, at 333-34 (alterations supplied).
157
Id. at 333 (alterations supplied).
158
Id. at 22.
125
evaluation . . . twice mentioned abuse”159 — boils down to an argument that counsel
should have emphasized and elaborated on the sexual abuse evidence through the
testimony of Mrs. Ferguson and Dr. Chudy at the sentencing hearing before the trial
judge. Moreover, while Ferguson faults trial counsel for not interviewing Ferguson’s
cousins, parents, or “perhaps brothers” to corroborate the sexual abuse claim, he does
not allege that any of those individuals were aware of the abuse, nor does he reveal
what those individuals would have stated if called to testify. In short, evidence of
sexual abuse is in the trial record, and the proposed testimony by Mrs. Ferguson and
Dr. Chudy would have been cumulative to that which was presented and considered
by the trial judge.
Moreover, the sentencing court’s order makes clear that the trial judge read the
psychological reports of Drs. Rosen and Chudy, even if the specific sexual abuse
allegations were not mentioned in the order.160 The court found “that the defendant’s
problems during his childhood [are] not a mitigating factor.”161
b.
Analysis
Counsel cannot be deemed to have been ineffective for failing to investigate
159
Id. at 21.
160
See C.R. Vol. 16, Tab. 47, at 40-41 (citing Dr. Chudy’s report as Defense Exhibit 1, and
Dr. Rosen’s report as State’s Exhibit 94).
161
Id. at 46 (alteration supplied).
126
and present evidence that counsel, in fact, investigated and presented. Moreover, the
trial court found that Ferguson was long removed from his childhood abuse.
Fairminded jurists could disagree as to whether trial counsel was objectively
deficient, and whether Ferguson suffered Strickland prejudice from that deficiency.
Because Ferguson cannot establish that his underlying ineffective assistance
of counsel claim has some merit, he has failed to show that post-conviction counsel
was ineffective in failing to raise the claim on post-conviction review. Therefore, this
claim is procedurally defaulted.
D.
Ferguson’s Trial Counsel Denied Him Effective Assistance During the
Guilt Phase.162
Respondent asserts that this entire claim is procedurally defaulted because the
Alabama Court of Criminal Appeals expressly found that Ferguson had abandoned
the claim in his brief on collateral appeal.163
The pertinent portion of the
intermediate appellate court’s opinion reads as follows:
Ferguson also contends that “[t]rial counsel’s performance was
also objectively deficient, for many reasons and including the
unavailability of sufficient funds for a thorough defense.” (Ferguson’s
brief at p. 23.) In a footnote, he then purports not to waive any claim
presented in his petition or apparent from the record. However, he does
not set forth any facts or argument in support of his bare contention.
Rather, he simply moves to his next ineffective-assistance allegation.
162
See doc. no. 9, ¶¶ 61-82, at 30-41 (petition); doc. no. 15, ¶¶ 17-20, at 10-12 (reply brief).
163
Doc. no. 12, at 27 n.1.
127
Therefore, he has not complied with the requirements set forth in Rule
28(a)(10), Ala. R. App. P., as to this allegation.
Ferguson v. State, 13 So. 3d 418, 439 (Ala. Crim. App. 2008) (alteration in original).
Ferguson does not deny that the Alabama Court of Criminal Appeals accurately
described the footnote. He also does not deny that Alabama Rule of Appellate
Procedure 28(a)(10) is an adequate and independent state procedural ground for
federal procedural default purposes. That rule reads as follows:
(a) Brief of the Appellant/Petitioner. The brief of the
appellant or the petitioner, if a petition for a writ of certiorari is granted
and the writ issues, shall comply with the form requirements of Rule 32.
In addition, the brief of the appellant or the petitioner shall contain
under appropriate headings and in the order here indicated:
....
(10) Argument. An argument containing the contentions
of the appellant with respect to the issues presented, and the
reasons therefor, with citations to cases, statutes, other authorities,
and parts of the record relied on. Citations of authority shall
comply with the rules of citation in the latest edition of either The
Bluebook: A Uniform System of Citation or ALWD [Association
of Legal Writing Directors] Citation Manual: A Professional
System of Citation or shall otherwise comply with the style and
form used in the opinions of the Supreme Court of Alabama.
Citations shall reference the specific page number(s) that relate to
the proposition for which the case is cited[.]
Rule 28(a)(10), Ala. R. App. P. (alterations supplied).
Nevertheless, he argues that the allegations in his brief provided notice
128
sufficient to comply with Rule 28(a)(10), and he points to the State Supreme Court’s
opinion in Ex parte Borden, 60 So. 3d 940 (Ala. 2007), to support of that
contention.164 For the reasons that follow, however, this court concludes that neither
the rule nor the case supports Ferguson’s argument.
Analysis must begin with the brief Ferguson presented to the Alabama Court
of Criminal Appeals. The relevant part reads as follows:
Trial counsel’s performance was also objectively deficient, for
many reasons10 and including the unavailability of sufficient funds for
a thorough defense.
________________________
10
Mr. Ferguson does not waive any claim presented in his Rule 32 petition or
apparent from the record. The selection of certain primary or “illustrative” examples
of valid Rule 32 claims meriting an evidentiary hearing is not intended to diminish
the validity of others. Rather, the limitations of an appellate brief, the sheer number
of allegations set forth in the 141-page petition and supporting investigative
materials, and the need to address the controlling case law as well, have precluded
extensive argument on every allegations and fact to be proven on remand.165
Although Ferguson asserts that page limitations on appellate briefing precluded
his arguments, that contention does not bear close scrutiny. His initial appellate brief
was only 34 pages in length, and his reply brief was only 16 pages. In contrast,
Alabama Rule of Appellate Procedure 28(j)(2) allows a petitioner in capital cases to
present an 80-page initial brief, and a 40-page reply brief. In other words, Ferguson’s
164
Doc. no. 15, at 10-11.
165
Rule 32 C.R. Vol. 15, Tab. 42, at 23 & n.10.
129
initial and reply briefs could have been more than twice the length of those he
presented (i.e., 46 and 24 pages longer, respectively), and still have complied with the
Rule.
Moreover, Alabama Rule of Appellate Procedure 28(j)(3) allows a party to
request permission to exceed the page limitations for good cause shown. Ferguson
did not do that. Indeed, Ferguson’s initial brief gave no indication that he desired to
pursue any identifiable aspect of his amorphorous “claim” that trial counsel denied
him effective assistance during the guilt phase of trial. His reply brief denied the
State’s contention that his initial brief had failed to comply with Rule 28(a)(10), but
stated only that: “because each of the claims denied by the Rule 32 court was
summarily denied and the contentions, reasoning, and citations relied upon by Mr.
Ferguson are in the initial brief or in the Rule 32 petition referenced as part of the
record here.”166 When that portion of Ferguson’s reply brief in the Alabama Court of
Criminal Appeals is compared to the language of Rule 28(a)(10), it is obvious that
neither Ferguson’s initial nor his reply brief satisfied the requirements of that rule.
Rule 28(a)(10) was explicated by the Alabama Supreme Court in Ex parte
Borden, 60 So. 3d 940 (Ala. 2007), where the Court said that:
The purpose of Rule 28, Ala. R. App. P., outlining the
166
Id., Tab. 44, at 14-15.
130
requirements for appellate briefs, is to conserve the time and energy of
the appellate court and to advise the opposing party of the points he or
she is obligated to make. United States v. Levy, 391 F.3d 1327 (11th
Cir. 2004) (discussing the rule that issues not briefed are waived and
Rule 28, Fed. R. App. P., which sets out the requirements for appellate
briefs in the federal courts). Rule 28(a)(10), Ala. R. App. P., provides
that the argument section of the appellant’s brief shall set out “the
contentions of the appellant/petitioner with respect to the issues
presented, and the reasons therefor, with citations to the cases, statutes,
other authorities, and parts of the record relied on.” Additionally, “‘[i]t
is not the function of this Court to do a party’s legal research or to make
and address legal arguments for a party based on undelineated general
propositions not supported by sufficient authority or argument.’ ” Butler
v. Town of Argo, 871 So. 2d 1, 20 (Ala. 2003) (quoting Dykes v. Lane
Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994)).
Borden argues that the Court of Criminal Appeals erred in holding
that his brief failed to comply with Rule 28(a)(10), Ala. R. App. P.
Borden’s brief to the Court of Criminal Appeals regarding his
ineffective-assistance-of-counsel claims included 22 pages of facts
addressing why the trial court erred in summarily dismissing the
ineffective-assistance-of-counsel claims in his Rule 32 petition.
Borden’s brief included 11 pages of argument regarding ineffective
assistance of counsel, including some 25 citations to caselaw, along with
explanations and quotations from the cited cases. Although another
attorney may have treated the ineffective-assistance-of-counsel
argument differently, Borden’s brief is sufficient to apprise the Court of
Criminal Appeals of Borden’s contentions with regard to his
ineffective-assistance-of-counsel claims. Accordingly, Borden did not
fail to comply with the Rule 28(a)(10) [sic] and therefore did not waive
his claims of ineffective assistance of counsel.
Ex parte Borden, 60 So. 3d at 943-44 (alterations in original). The briefs filed by
Ferguson in the Alabama Court of Criminal Appeals bear no resemblance to the
description of the brief addressed in Ex parte Borden. In fact, Ferguson’s use of a
131
footnote to assert that he was not waiving any guilt-phase ineffective assistance of
counsel claims presented in his Rule 32 petition constitutes a prototypical waiver
under Rule 28(a)(10).
Thus, the Alabama Court of Criminal Appeals did not arbitrarily apply Rule
28(a)(10) to Ferguson’s footnote reference to all 141 pages of his Rule 32 petition.
Instead, Ferguson categorically failed to comply with the letter and spirit of that
procedural rule, and the state court explicitly found that he had failed to do so.
Therefore, the claim is procedurally defaulted and is due to be dismissed.
E.
Ferguson’s Pre-Trial Counsel Denied Him Effective Assistance.167
Ferguson claims that defense attorney Tony Glenn “failed to counsel
adequately and represent vigorously his client’s interests immediately prior to and
during Mr. Ferguson’s alleged ‘confession’ on August 27, 1997[,] at the Colbert
County Jail.”168 He asserts that Glenn “effectively coaxed” his confession, along with
the law enforcement officer who recorded his statements.169 Ferguson also claims that
“Glenn harbored a conflict of interest — created by the location and nature of his
practice, combined with outrage in Colbert County sparked by the alleged crime —
[which] arguably prompt[ed] Mr. Glenn to breach his duty of loyalty to Mr.
167
See doc. no. 9, ¶¶ 83-92, at 41-47 (petition); doc. no. 15, ¶¶ 21-24, at 12-13 (reply brief).
168
Doc. no. 9, at 41 (alteration supplied).
169
Id.
132
Ferguson.”170
Finally, Ferguson claims that he was prejudiced by Glenn’s
performance, because his confession was admitted into evidence.171
When these issues were raised on collateral review, the Alabama Court of
Criminal Appeals entered the following findings of fact and conclusions of law:
First, Ferguson contends that the attorney who represented him
when he made his statement to police rendered ineffective assistance
because, he says, counsel failed to advise him of his rights, encouraged
him to make a statement, told him it would [be] better for him if he made
a statement, and failed to consider Ferguson’s drug use and mental
facilities at the time he made the statement.
In its order dismissing relief on this claim, the court hearing
Ferguson’s Rule 32 petition stated:
“On pages 1[6]-20 of his petition, Ferguson claims
that during his interviews with police, his attorney . . . was
ineffective. Ferguson claims his attorney was ineffective
for allowing him to make inculpatory statements before a
plea deal had been reached. . . . Ferguson contends that
‘[n]o reasonable defense attorney would have suggested
such a course of action.’ (Pet. at 20.) This claim is denied
without an evidentiary hearing as it can be resolved by the
record without the need for additional evidence.
“Contrary to Ferguson’s insinuation, it was not his
attorney who suggested that he make an inculpatory
statement to police. Rather, it was Ferguson who initiated
contact with the police and stated that he wanted to ‘help
himself’ by making a statement. It is clear from Ferguson’s
tape-recorded statement that Attorney Glenn advised
170
Id. at 41-42 (alterations supplied).
171
Id. at 45.
133
Ferguson of his right not to speak to the authorities and
warned him of the possible consequences. At the
beginning of the statement, Glenn reminds Ferguson about
his rights and the situation:
“ ‘[Ferguson’s counsel]: Dale, you called me
earlier today and you told me that you wanted
to try to help yourself with the Colbert
County Sheriff’s Department and the FBI on
these charges that are here pending today.
You had information you thought that would
help them. You realize that I have gone over
with you your rights and told you that you
don’t have to talk, but it is your — but you
have informed me that you choose to help at
this point to try to help yourself; is that
correct?
“ ‘Ferguson: Yes, sir.
“ ‘[Ferguson’s counsel]: Do you realize that
there are no deals at this point?
“ ‘Ferguson: Yes, sir.
“ ‘[Ferguson’s counsel]: That what you are
doing is voluntary and you are doing it to try
to help yourself in furtherance —
“ ‘Ferguson: Yes, sir.
“ ‘[Ferguson’s counsel]: — of this; is that
correct?
“ ‘Ferguson: Yes, sir.
“ ‘[Ferguson’s counsel]: And this is what you
134
want to do?
“ ‘Ferguson: Yes, sir.
“ ‘Ferguson: Yes, sir.
“ ‘[Ferguson’s counsel]: Okay. With that, do
you want to go forward?
“ ‘Ferguson: Yes, sir.’
“(CR. 98, 262-263) The taped statement clearly reveals
that it was Ferguson who wished to make the statement to
police and not his attorney who suggested that he do so. In
Gibby v. State, 753 So. 2d 1206 (Ala. Crim. App. 1999),
the Alabama Court of Criminal Appeals reviewed Gibby’s
post-conviction allegation that he was denied his right to
testify at his trial. The Alabama Court of Criminal Appeals
held that Gibby’s allegation was without merit because the
record on direct appeal indicated that ‘[Gibby] knowingly
and voluntarily waived his constitutional right to testify at
his trial.’ Id. at 1208. It is equally apparent that Glenn
advised Ferguson about his rights and warned him that his
statement would most likely be used against him in court.
Despite these warnings, Ferguson, upon his own volition,
chose to make a statement to police. As the Court of
Criminal Appeals found on direct appeal, Ferguson’s
statement to police was voluntary. Ferguson, 814 So. 2d
925, at 942-943.
“Moreover, ‘[u]nder the doctrine of invited error, a
defendant cannot by his own voluntary conduct invite error
and then seek to profit thereby.’ Phillips v. State, 527 So.
2d 154, 156 (Ala. 1988). ‘“A party cannot assume
inconsistent positions in the trial and appellate courts and,
as a general rule, will not be permitted to allege an error in
the trial court proceedings which was invited by him or
135
was a natural consequence of his own actions.”’ Campbell
v. State, 570 So. 2d 1276, 1282 (Ala. Crim. App. 1990)
(quoting Leverett v. State, 462 So. 2d 972, 976-77 (Ala.
Crim. App. 1984)). See also Slaton v. State, 680 So. 2d
879, 900 (Ala. Crim. App. 1995), aff’d, 680 So. 2d 909
(Ala. 1996). ‘Invited error has been applied to death
penalty cases. “An invited error is waived, unless it rises
to the level of plain error.” Ex parte Bankhead, 585 So. 2d
112, 126 (Ala. 1991).’ Adams v. State, [955 So. 2d 1037,]
(Ala. Crim. App. Aug. 29, 2003). Counsel cannot be held
ineffective for the informed and voluntary choices of their
client. Moreover, a defendant cannot voluntarily choose a
course of action and then blame trial counsel for that
course of action. Ferguson may not claim in his Rule 32
petition that his own choices violated his constitutional
rights.”
(C.R. 456-59.) The record supports the circuit court’s findings, and we
adopt them as part of this opinion. We further note that Ferguson has
made several assertions about his attorney’s performance. However, he
has not adequately supported those assertions, as required by Rules 32.3
and 32.6(b), Ala. R. Crim. P. Therefore, summary dismissal was proper
as to this claim.
Ferguson v. State, 13 So. 3d 418, 437-39 (Ala. Crim. App. 2008) (first two alterations
supplied, all other alterations and redactions in the original).
1.
Was the opinion of the Alabama Court of Criminal Appeals an
adjudication on the merits?
Respondent contends that the summary dismissal of Ferguson’s claim pursuant
to Alabama Rules of Criminal Procedure 32.3 and 32.6(b) constitutes a procedural
136
default.172 Ferguson argued in response that the Alabama Court of Criminal Appeals
“did not expressly use the [Rule 32.6(b)] procedural bar to dismiss the claim because
it adopted the Circuit Court’s findings on the merits.”173 Ferguson also contended
that his claim was sufficiently specific.174 A lengthy dissection of the state appellate
court’s opinion is not necessary, because a recent Eleventh Circuit opinion resolves
the issue in short form. “A ruling by an Alabama court under Rule 32.6(b) is . . . a
ruling on the merits.” Borden v. Allen, 646 F.3d 785, 812-13 (11th Cir. 2011).
2.
Ferguson’s claim that counsel provided ineffective representation
during the time period surrounding Ferguson’s statements to law
enforcement.
The Alabama Court of Criminal Appeals made detailed legal and factual
findings in its discussion of this aspect of Ferguson’s ineffective assistance of counsel
claim. Federal law requires that deference be accorded the state court’s adjudication
of the claim. Thus, “if there is any reasonable argument that counsel satisfied
Strickland’s deferential standard,” Ferguson is not entitled to habeas relief from the
state court’s rejection of his claim. Harrington v. Richter, — U.S. —, 131 S. Ct. 770,
172
Doc. no. 12, at 30-31.
173
Doc. no. 15, at 12 (alteration supplied) (citing Peoples v. Campbell, 377 F.3d 1208, 1235
(11th Cir. 2004), and stating that the Peoples Court had concluded that the district court had erred
when “invoking [a] procedural default that state court of criminal appeals had declined to follow”),
and Davis v. Singletary, 119 F.3d 1471, 1479 (11th Cir. 1997) (“It is settled that once the state courts
have ignored any procedural bar and rejected a claim on the merits—not in the alternative way but
as the only basis of decision—that claim is not barred from federal habeas review.”)).
174
Id. at 13.
137
787-88 (2011). For the reasons that follow, Ferguson cannot establish that no
reasonable jurist would have reached the same conclusion as the Alabama Court of
Criminal Appeals.
Ferguson argues that Strickland requires courts evaluating habeas petitions to
consider all of the underlying circumstances.175 In his reply brief, Ferguson argues
that the Alabama Court of Criminal Appeals “unreasonably applied Strickland to the
facts” of his case, because the court “failed to evaluate the reasonableness of
counsel’s decision to allow Mr. Ferguson to confess without even attempting to reach
a plea agreement[,]” and failed to determine whether Ferguson was prejudiced
thereby.176 Ferguson argues that
Glenn should have discouraged Mr. Ferguson from speaking to
authorities without any assurance that he would receive any benefit by
volunteering information. In fact, Mr. Glenn typically would not have
encouraged a client to participate in an interview with authorities
without first attempting to secure a plea bargain. In this case, Mr. Glenn
claims to have told Mr. Ferguson — just prior to Mr. Ferguson giving
the alleged confession — that “most likely, this life is over for you.”
Mr. Glenn’s statement to Mr. Ferguson that he could “cooperate and
maybe get leniency” is not sound advice.177
The foregoing quotation from Ferguson’s habeas brief does not say that, before
175
Doc. no. 9, at 47 (“In any case presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.”)
(quoting Strickland, 466 U.S. at 688) (emphasis by petitioner).
176
Doc. no. 15, at 12-13 (alterations supplied).
177
Doc. no. 9, at 44-45.
138
he began making his statement to law enforcement, Tony Glenn failed to inform him
that he did not have to speak with law enforcement, nor does Ferguson dispute that
the advice he received from Glenn was the same advice that Glenn says he typically
gave defendants (e.g., he did not encourage Ferguson to make a statement in the
absence of a plea agreement).178 Moreover, Ferguson fails to reveal the context in
which Glenn stated that, “most likely, this life is over for you,” or that Ferguson could
“cooperate and maybe get leniency.”
Ferguson’s allegations must be considered in conjunction with the transcribed
record of the exchange between Ferguson and his attorney, the accuracy of which
Ferguson has never denied. As such, Ferguson does not contest the appellate court’s
finding that it was he who initially contacted law enforcement for the express purpose
of helping himself. Nor does he deny that Tony Glenn informed him of his
178
The court notes that the allegations of Ferguson’s habeas brief differ from the allegations
he made in the Rule 32 court. His Rule 32 petition alleged that attorney Tony Glenn
encouraged Mr. Ferguson to give a statement to the police without even reviewing
what Mr. Ferguson would say in the statement. Mr. Glenn never discussed the facts
of the case with Mr. Ferguson before the statement was given, and had no idea what
Mr. Ferguson was going to say. Though he did inform Mr. Ferguson that no official
deal had been made with the State at the time of the statement, he had privately told
Mr. Ferguson that cooperation in the form of a statement would lead to a lesser
sentence. . . . Mr. Glenn had no basis for advising Mr. Ferguson that cooperation
would lead to a lesser sentence. Therefore, his advice was ill-advised, irresponsible,
and prejudicial to Mr. Ferguson.
Rule 32 C.R. Vol. 16, Tab. 51, at 16-17.
139
constitutional rights, including his right not to speak to law enforcement. Ferguson
agreed that he was the one who informed Tony Glenn that he (Ferguson) desired to
speak to law enforcement investigators. Ferguson also agreed that he knew there was
no plea agreement, and that anything he said could be used against him in court.
Nevertheless, Ferguson chose to speak to law enforcement in the hope of helping
himself.
The Alabama Court of Criminal Appeals considered all of the circumstances
surrounding counsel’s representation in order to determine whether that
representation was constitutionally reasonable. Based on examination of the habeas
claim and the state court’s decision, this court finds that it was not unreasonable for
the Alabama Court of Criminal Appeals to conclude that, under the circumstances
presented to Tony Glenn, defense counsel provided reasonably competent
professional assistance during the time period surrounding Ferguson’s statement to
law enforcement. It also was not unreasonable for the court to refuse to place the
blame for any prejudice resulting from Ferguson’s choices at counsel’s feet.
Ferguson would prefer that this court reach a different conclusion, even though
his pre-trial defense attorney gave him accurate advice regarding his constitutional
right to not make a statement to law enforcement officers, and notified him of the
probable outcome of speaking with law enforcement before securing a plea
140
agreement. In other words, he asks the court to decide that no reasonable attorney in
Tony Glenn’s same circumstances should stop at giving accurate legal advice, but that
counsel should, instead, go farther, and prevent a client from making his own fully
informed and fully understood decisions.179 Ferguson also asks that any prejudice
resulting from a client’s informed decisions be placed squarely on the shoulders of
counsel.
As stated at the beginning of the discussion of this claim, however, the habeas
standard of review demands that this court ask only whether there is any reasonable
argument that Glenn satisfied Strickland’s standard. This court cannot find the state
appellate court’s determination regarding counsel’s performance to be unreasonable,
when counsel gave Ferguson accurate legal advice and a pragmatic assessment of the
consequences of speaking to law enforcement without a plea agreement in place.
Further, Ferguson’s argument that the state court’s Strickland decision was
unreasonable, because no reasonable counsel would fail to prevent a client from
179
Although not material to the constitutional question at hand, on direct appeal Ferguson
engaged in a meritless attack on the voluntariness of his confession based only on the length of time
between what the Alabama Court of Criminal Appeals determined was an erroneous date on a police
report and the ‘true’ date of his confession. See Ferguson, 814 So. 2d at 942-43. He also attempted
to argue that the transcribed conversation between himself and his lawyer was inadmissible hearsay.
Id. at 943-44. Neither argument was successful, and Ferguson does not raise the claims again in the
habeas petition. Ferguson never alleged on direct review nor does he make an independent claim
in his habeas petition that he was not fully informed of and understood his rights, as explained by
his own counsel and by law enforcement at the time of his confession, and thereafter made his own
decision to speak.
141
speaking under the circumstances revealed in this record, is an application of
Strickland upon which fairminded jurists could disagree.
For all of the foregoing reasons, Ferguson has failed to show that he is entitled
to habeas relief from the Alabama Court of Criminal Appeals’ adjudication of this
Strickland claim. Accordingly, this claim is due to be denied.
3.
Ferguson’s claim that Tony Glenn breached a duty of loyalty to
Ferguson, and “arguably” harbored an actual conflict of interest.
Ferguson also asserts in this same claim that the state court’s “failure to
consider the breach of Mr. Glenn’s duty of loyalty to [him], constitutes an
unreasonable application of Strickland.”180
He suggests that Glenn harbored an
actual conflict of interest and, thus, breached that duty of loyalty.181 He supports
these contentions with the following allegations:
Mr. Glenn maintained a local law practice in a county nearby to where
the alleged murders occurred. Like any member of the bar, Mr. Glenn’s
monetary livelihood depended on maintaining a respectable reputation
among potential clients. From January 1, 1995 through 2008, Mr.
Glenn’s practice has focused on personal injury claims, worker’s
compensation claims, and other contract disputes, with 80% of all
clients requiring plaintiff representation. See Attorney Strategic Profile
for Tony Glenn (1/1/1995 - 1/29/2009), available at: LexisNexis
CourtLink (last visited Feb. 1, 2009).
180
Doc. no. 9, at 47 (alteration supplied).
181
Id. at 45 (citing Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (holding that an actual
conflict of interest renders a lawyer’s performance ineffective)).
142
Given the attention that the media devoted to the murders of Mr.
Pugh and his son, and the social opprobrium attached to defending one
of its alleged perpetrators, . . . Mr. Glenn could have harmed his law
practice by vigorously defending Mr. Ferguson.182
Ferguson neither claimed that Tony Glenn manifested an actual conflict of
interest while representing him, nor presented the preceding allegations in support of
such a claim in either his Rule 32 petition or the brief filed on collateral appeal.183 In
fact, Ferguson’s collateral appeal brief said that he and the State “are agreed that the
[ineffective assistance of counsel] allegations in the Rule 32 petition are to be
subjected to the analysis detailed in Strickland v. Washington, 466 U.S. 668 (1984),
and Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000).”184 Ferguson
followed that statement with the allegations dedicated to pre-trial counsel’s
representation during the events leading up to Ferguson’s confession, which are
addressed in the previous section of this discussion.185
Ferguson’s failure to assert during collateral review proceedings in the state
courts that pre-trial counsel harbored an actual conflict of interest, or to state until
now the factual allegations underlying such a claim, “means that [Ferguson] deprived
182
Id. at 43-44.
183
Rule 32 C.R. Vol. 12, Tab. 40, at 14-23 (Rule 32 petition); id., Vol. 15, Tab. 42 and 44,
at 21-23, and 11 respectively) (collateral appeal brief and reply brief).
184
Rule 32 C.R. Vol. 15, Tab. 42 at 21 (alteration supplied).
185
Id. at 21-23.
143
the state courts of ‘the first opportunity to hear the claim sought to be vindicated in
a federal habeas proceeding.’” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999)
(citing Picard v. Connor, 404 U.S. 270, 276 (1971)) (alteration supplied).
Furthermore, the claim is “procedurally defaulted, even absent a state court
determination to that effect, [because] it is clear from state law that any future
attempts at exhaustion would be futile.” Id. (citing Snowden v. Singletary, 135 F.3d
732, 737 (11th Cir. 1998) (alteration supplied). If Ferguson were to attempt to raise
this portion of his claim in another Rule 32 petition, it would be denied as an
impermissible, successive petition, filed outside the statute of limitations applicable
to post-conviction petitions, and a claim that Ferguson was required to, but did not,
raise during collateral review proceedings. See Rules 32.2 (b), (c), and (d), Ala. R.
Crim. P. Accordingly, this aspect of Ferguson’s pre-trial ineffective assistance of
counsel claim is procedurally defaulted. Moreover, Ferguson cannot establish a
Martinez exception to the defaulted claim, because the claim was not sufficiently
pled, and the bases for it (if any) are speculative. Thus, the default cannot be
overcome, because the actual conflict allegations do not satisfy the “some merit”
requirement of Martinez v. Ryan, 132 S. Ct. at 1319.
Even if the habeas claim had not been procedurally defaulted, it still is due to
be dismissed based on the following statements from the Eleventh Circuit’s opinion
144
in Reynolds v. Chapman, 253 F.3d 1337 (11th Cir. 2001):
Ineffective assistance of counsel claims in the conflict of interest
context are governed by the standard articulated by the Supreme Court
in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333
(1980). Cuyler establishes a two-part test that we use to evaluate
whether an attorney is constitutionally ineffective due to a conflict of
interest. To show ineffectiveness under Cuyler, a petitioner must
demonstrate: (a) that his defense attorney had an actual conflict of
interest, and (b) that this conflict adversely affected the attorney’s
performance. See Cuyler, 446 U.S. at 348-49, 100 S. Ct. 1708.
A series of opinions from this court have interpreted and refined
the meaning of both prongs of the Cuyler test. To satisfy the “actual
conflict” prong, a defendant must show something more than “a
possible, speculative, or merely hypothetical conflict.” Lightbourne v.
Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987). In Smith v. White, 815
F.2d 1401 (11th Cir. 1987), we developed a test that enables us to
distinguish actual from potential conflicts of interest:
We will not find an actual conflict of interest unless
appellants can point to specific instances in the record to
suggest an actual conflict or impairment of their interests
. . . . Appellants must make a factual showing of
inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative causes
of action, such as eliciting (or failing to elicit) evidence
helpful to one client but harmful to the other. If he did not
make such a choice, the conflict remain(s) hypothetical.
Smith, 815 F.2d at 1404.
Assuming a defendant can demonstrate that his attorney labored
under an actual conflict of interest, the Cuyler test demands that he show
that this conflict adversely affected the representation he received. To
prove adverse effect, a defendant needs to demonstrate: (a) that the
defense attorney could have pursued a plausible alternative strategy, (b)
145
that this alternative strategy was reasonable, and (c) that the alternative
strategy was not followed because it conflicted with the attorney’s
external loyalties. See Freund [v. Butterworth] 165 F.3d [839,] 860
[(11th Cir. 1999)]
Reynolds, 253 F.3d at 1342-1343(alterations and emphasis supplied).
Ferguson’s allegations do not comply with Reynolds’ specificity requirements.
He does not allege facts demonstrating that his pre-trial attorney had an actual
conflict of interest. Instead, he only contends that it is “arguable” that a conflict
existed. Moreover, the factual basis for the “arguable” conflict is nonexistent.
Therefore, Ferguson’s allegations are not sufficient to satisfy the requirements
specified in the Supreme Court’s opinion in Cuyler, or the requirements outlined by
the Eleventh Circuit in Reynolds and Smith. The isolated fact that an attorney
practices in a county of a notorious case does not show an actual conflict. Ferguson
also has not shown that Glenn could have pursued a reasonable alternative strategy,
but did not do so because he practiced law in Colbert County, Alabama. For all of the
foregoing reasons, this aspect of Ferguson’s ineffective assistance of pre-trial counsel
is procedurally defaulted. In the alternative, it is due to be summarily dismissed.
F.
Ferguson Was Improperly Denied A Hearing On His Mental Capacity
Under Atkins v. Virginia.186
Ferguson correctly observes that the Supreme Court has held that “states may
186
See doc. no. 9, ¶¶ 93-118, at 47-63 (petition); doc. no. 15, ¶¶ 25-28, at 14-15 (reply brief).
146
not execute defendants handicapped by mental retardation.”187 See Atkins v. Virginia,
536 U.S. 304 (2002) (holding that the Eighth Amendment prohibition against “cruel
and unusual” punishment prohibits the execution of mentally retarded offenders). He
then claims that he “is a person with a history of being disabled by mental
retardation,”188 and asserts that the state courts’ rejection of his Atkins claim, without
affording him an evidentiary hearing, is based upon an unreasonable application of
clearly established federal law, and an unreasonable determination of the facts in light
of the evidence before the state courts.189 According to Ferguson, “[g]iven the special
risk of wrongfully executing persons suffering from mental retardation, see Atkins,
536 U.S. at 320-21,” he is entitled to an “evidentiary hearing to evaluate his mental
capacity” because there is evidence indicating that his mental capacity is diminished,
and, because of the jury’s 11-1 recommendation that he be sentenced to life without
the possibility of parole.190
At the outset of discussion, this court holds that the jury’s 11-1
recommendation is not relevant to the question of whether Ferguson is entitled to
either habeas relief, or to an evidentiary hearing.
Only matters concerning
187
Doc. no. 9, at 47-48.
188
Id.
189
Id. at 60-61; doc. no. 15, at 14-15 (citing 28 U.S.C. §§ 2254 (d)(1) & (2)).
190
Doc. no. 9, at 49.
147
Ferguson’s mental status and cognitive ability should be the subject of habeas review
in connection with this Eighth Amendment claim.
Respondent observes that Ferguson does not explicitly allege in his habeas
petition or reply brief that he is mentally retarded, in the sense that condition is
discussed in Atkins.191 Instead, Ferguson contends: that he has a history of mental
retardation; that he stated a colorable claim of mental retardation in state court; and
that the state court improperly denied him an evidentiary hearing. This court finds
that a 28 U.S.C. 2254(d) review of this claim is appropriate.
1.
Historical development and presentation of this claim in state court
a.
Direct review pre-Atkins
Ferguson presented considerable evidence from lay and expert witnesses
during the penalty phase of trial in an attempt to establish that his mental capacity was
a mitigating factor. As the following discussion will demonstrate, however, both the
State’s mental health expert and Ferguson’s own expert witness testified that
Ferguson’s intellectual functioning ability fell in the “borderline” range.
i.
Ferguson’s mental health expert
Dr. James F. Chudy, the clinical psychologist retained by Ferguson’s defense
attorneys, explained the manner in which he conducted assessments of a person’s
191
Doc. no. 12, at 37.
148
mental status as follows:
[S]everal steps are involved, [I] usually do an interview with the
client doing a lot of background and information gathering and then a
clinical interview getting a lot of information about their personality,
emotional functioning and that sort of thing. Then you try to get as
many records or information from their past as you can. Then talk with
family members and then give them a battery of tests that usually
include intelligence, achievement, and personality and emotional
function.192
In preparation for trial in this case, Dr. Chudy reviewed Ferguson’s school
records.193 He also “talked with [Ferguson] about his background and then . . . called
his grandmother, mother, his wife and biological father.”194 He conducted a clinical
192
R. Vol. 5, Tab. 19, at 788 (alterations supplied).
193
Id. at 789. (Defendant’s Exhibits 2 and 3).
194
Dr. Chudy recorded in his report that Ferguson’s wife “claims that her husband has always
been ‘somewhat strange.’ By that she explained that he did not think like other people and had
trouble socializing in an appropriate way.” R. Vol. 8, at 328. Elsewhere, Dr. Chudy observed that:
Being intellectually slow with poor social skills[, Ferguson] seems peculiar among
others. This sets him up to being taken advantage of. Over time he has learned to be
hypervigilant to the point he often misinterprets others, feeling they are referring to
him negatively. When he does develop friendships, his naive and limited thinking
allows him to be easily influenced. Family members confirm that in relationships
where he has come to trust the other person, he is easily led and become[s] a
follower. He has such strong needs for acceptance [that] he will go over-board to
please those [whom] he trusts.
Id. at 333 (alterations supplied). Karen Ferguson testified during the penalty phase of trial that she
and her husband had known one another for five years, and had been married for four; that he was
a kind person; that he had been a good, non-violent husband; and that he worked while she was
attending nursing school. R. Vol. 5, Tab. 19, at 810-12. During their marriage, Ferguson had been
employed at a trailer plant, and at Heilig Meyers as a “picker” and heavy machine operator. Id. at
812, 814-17. Mrs. Ferguson also testified that Ferguson had a drinking problem, which caused
tension in their marriage, and he smoked marijuana. Id. at 813-14. She knew that Ferguson had
been in special education classes; agreed that he appeared to be “mentally slow”; and confirmed that
149
interview which
includ[ed] a lot of information gathering,[195] but also while you are
doing that, you are getting a more or less complete picture of their
mental functioning, emotional state at the time of the interview. And
then you do a mental status trying to get a feeling for their overall
cognitive skills, how much they are depressed, if they are; if there is
anxiety present or psychotic features present, that sort of thing.196
Dr. Chudy administered only a brief intelligence test to Ferguson, because he
had “been tested so many times before,”197 and the results obtained from the
administration of a full-scale assessment instrument would have been skewed by
Ferguson’s prior practice experiences. Chudy also administered a memory scale and
an organic-visual orientation test, “which is for organic impairment because of his
history of drug abuse and also sniffing gas and paint, I wanted to rule out organic
she handled most matters, and generally told him what to do, because he did not understand things
very well. Id. at 814. She also believed Ferguson’s maternal grandmother to be “slow.” Id. at 821.
Karen’s Ferguson testified that her stepfather, Mark Moore, a co-defendant in the case, cared for
Ferguson like his own son; and, even though Moore was a controlling person, he did not mistreat
Ferguson. Id. at 814-17, 825-26. She described her husband as being a “follower” when he was with
Moore, as was her cousin’s “significant other,” Donnie Risley (another co-defendant). R. Vol. 5,
Tab 19, at 814-17, 825-26. She was aware that Ferguson’s mother was not affectionate, and that his
stepfather was violently abusive throughout Ferguson’s life — to the extent that it caused Ferguson
emotional distress. Id. at 814, 817-19. Moreover, Ferguson did not learn that his stepfather was not
his biological father until he was in his late teens, and that revelation caused him to suffer significant
emotional turmoil. Id. at 820.
195
Dr. Chudy recorded that his assessment was based upon information obtained from: “(1)
interview[s] of family members, including mother, grandmother, and wife; (2) school records
covering [Ferguson’s] academic career; (3) clinical interview of client; and (4) intellectual, academic
and personality assessment devices.” R. Vol. 8, at 327 (alterations supplied).
196
Id. at 790-91 (alteration and footnote supplied).
197
Id. at 791.
150
problems.”198 Dr. Chudy found some memory problems that were “fairly consistent
with low intelligence, but no significant organic problems.” Id. He also administered
a battery of about four or five different personality tests.199 Based upon all of the
above, Dr. Chudy concluded that Ferguson’s “intellectual functioning” was in the
“borderline” range.200
Dr. Chudy’s report was entered into evidence as Defendant’s Exhibit 1,201 and
described Ferguson’s academic history as
difficult. During [Ferguson’s] early school years he was identified as
having a speech problem for which he attended speech therapy for
approximately two years.[202] His speech was much improved from the
therapy. Mr. Ferguson ended up failing the first grade and when he
went to repeat the grade he was evaluated and placed in educably
mentally retarded classes (EMR).[203] He stayed in EMR for several
years[204] until late junior high school when he was re-evaluated and they
198
Id.
199
Id. at 792. The personality assessment instruments administered included the Weschler
Memory Scale – Third Edition (“WMS-III”), Hooper Visual Orientation Test (“VOT”), Wide Range
Achievement Test – Revised 2 (“WRAT-2"), Incomplete Sentences Blank, Mooney Problem
Checklist, Millon Clinical Multiaxial Inventory -III (“MCMI-III”), Substance Abuse Subtle
Screening Inventory-2 (“SASSI-2"), Jessness Inventory, and the Shipley Institute of Living Scale.
R. Vol. 8, at 331.
200
Id.
201
Id. at 790.
202
See school records, Defendant’s Exhibit 2, R. Vol. 7, at 128-36.
203
In 1975, when Ferguson was six years of age, he was administered the Stanford-Binet
intelligence test and received a full scale IQ score of 77. Id. at 164.
204
In 1985, when Ferguson was twelve years old, he was administered the Weschler
Intelligence Test for Children – Revised (“WISC-R”), and received a full scale IQ score of 71. The
Woodcock Reading Mastery Test, the Keymath Diagnostic Arithmetic Test, and the GoldmanFristoe Test of Articulation also were administered at that time. Id. at 156-64. The school found that
151
felt that he should be able to adapt to a learning disability regimen where
he would not have to be in an enclosed environment with EMR. Mr.
Ferguson claims that his early elementary years in EMR were good. He
got along well with all the students and experienced no problems with
people harassing him. However, in the 7th grade he moved to Priceville
Middle School where things changed dramatically for him. At that time
he started getting picked on and there was a lot of name calling. He
remembers being sad, hurt and angry much of the time. He also
remembers getting into several fights and defending himself against the
ridicule. In the 8th grade Mr. Ferguson was placed in the Hartselle City
School System.[205] His problems continued but not to the degree they
the intelligence score of 71 was consistent with a prior Binet result, as well as another intelligence
test (the Leiter) score of 83 that Ferguson had achieved in 1980. Id. at 164. The clinician who
administered the WISC-R recorded that Ferguson was cooperative, but a bit apprehensive initially.
Id. at 149. Even so, Ferguson “gave up easily on both verbal and non-verbal items. He did not
appear to be challenged by the more difficult items on the test.” Id. An AAMD Adaptive Behavior
Scale was completed by one of Ferguson’s teachers, and Ferguson’s parents were asked to complete
a Behavior Rating Profile. R. Vol. 7, Defendant’s Ex. 2, at 145-55. Thereafter, the school found that
Ferguson continued to be eligible for “Educably Mentally Handicapped” (EMH) services. Id. at 164.
The report stated that
Dale’s achievement scores are considered to be consistent with overall EMH
abilities. Some strengths were noted in math (relative to his EA only).
Dale’s adaptive behavior based on the AAMD ABS results are considered to
be consistent with EMH functioning. A strength was noted in Community SelfSufficiency relative to EMH norms. A relative weakness was noted in PersonalSocial Responsibility.
Id. (emphasis in original).
205
Ferguson was reevaluated by the special education services division of the Hartselle City
School system in the Spring of 1988, when he was fourteen years old. Id. at 176. He was
administered the WISC-R (and achieved an IQ score of 87), the Kaufman Test of Educational
Achievement, and a Stanford Achievement Test. Id. at 178-81, 183-87. Ferguson’s teacher
completed a Burk’s Behavior Rating Scale, Ferguson was observed in science class, and a
disadvantage checklist was completed. Id. at 182, 184-89. In the observation notes, the teacher
wrote that Ferguson “can do his work well when he wants to. Several times he has to be reminded
to pay attention. Dale is capable of doing more than he does.” Defendant’s Exhibit 2, R. Vol. 7, at
184. There were no problems noted on the behavioral scale and no items checked on the
disadvantage checklist. Id. at 189. It was recommended that Ferguson be moved from classes for
152
were the year before. However, he did continue to have some problems
and in fact, at one point was found carrying a weapon at school which
lead to a suspension.
Mr. Ferguson continued in school until he was nearly 17 yearsold and was approaching the 10th grade.[206] At that time they had placed
him in learning disabilities class and he was finding it increasingly
difficult to do the work. As his school work reveals he was failing most
of his classes, particularly those in which he was placed in a regular
classroom setting.[207] In those classes where he got a lot of special
education help he was earning average to above average scores. In any
case he found the work to be progressively more difficult, so he quit
school.208
“educably mentally handicapped students,” to classes for students suffering from “learning
disabilities.” Id. at 191.
206
In the Spring of 1989, a 15-year-old Ferguson attended school and received vocational
training at the Tennessee Valley Rehabilitation Center. Id. at 193-210. At the time, he was
designated as “Learning Disabled.” Id. at 219. His major disability was identified as a “Specific
Reading Disorder,” and his secondary disability was characterized as a “Developmental Disorder –
NOS [i.e., “not otherwise specified” in] Spelling.” Id. at 193 (alteration supplied). He was
administered a Wide Range Achievement Test, and a Test of Basic Adult Education, with his
reading, math, mechanics and expression, and spelling measuring mostly in the 5th grade range.
Defendant’s Exhibit. 2, R. Vol. 7, at 194. The Becker Reading Free Interest Inventory test showed
Ferguson expressed high interest in automotive, horticultural and building trades, and low interest
in laundry service, food service, and clerical aid work. Id.
It was noted that Ferguson seldom initiated conversation during class, and usually would
respond with a smile if someone spoke to him; that he had difficulty expressing himself verbally and
in writing; and that he had difficulty working independently and would sit and watch others. Id. at
200. Ferguson could “anticipate situations,” and “consider alternatives to problems,” but he had
difficulty organizing and would lose his train of thought. Id. at 195. It was noted that Ferguson
needed improvement with “eye contact, posture, facial expression, gestures and appropriate
laughing/smiling in daily situations.” Id. at 201. Ferguson’s grooming and hygiene were not good,
but improved as the program progressed. Id. at 202.
The recommendations for Ferguson were that he obtain high school level vocational training
in the building trades or auto mechanics, or on-the-job training as a waiter, stable attendant, machine
cleaner, service station attendant, or material handler. Defendant’s Exhibit 2, R. Vol. 7, at 202-03.
207
Id. at 213.
208
R. Vol. 8, at 328-29 (alterations and footnotes supplied). It appears that Ferguson quit
school during the 1990 school year. Defendant’s Exhibit 2, R. Vol. 7, at 220-30.
153
Dr. Chudy’s opinion that Ferguson’s intellectual functioning ability was best
characterized as “borderline” was “backed up by information from his family,” and
was “consistent with the scores from IQ tests that had been administered from as far
back as grade school.”209 According to Chudy, an individual with “borderline”
intellectual functioning abilities “would think in very concrete and naive ways. His
problem solving skills would be limited and his social skills would be — his
reasoning in social situations would be impaired to more limited.”210
Dr. Chudy characterized Ferguson as a “polysubstance drug abuser which
included marijuana, cocaine and inhalents,”211 and stated that alcohol or drug use
“would compound further his limitations in his problem solving skills, cognitive
209
R. Vol. 5, Tab. 19, at 793 and 807, respectively (alterations supplied).
210
Id. at 793.
211
Dr. Chudy’s report noted that
Ferguson admits to a long history of substance abuse. He started sniffing gas and
paint when he was approximately 10 years old and continued the abuse until his
imprisonment. He would sniff whenever he did not have access to other drugs.
Other drugs he abused included marijuana, LSD, crack cocaine and powder cocaine.
He denies any history of IV use. He also drank alcohol heavily and regularly for
awhile until he accumulated three DUI’s. When his wife threatened to leave him
because of his drinking he quit, which was approximately two years ago. However,
his drug use has continued unabated. He admits that his drug use has caused
financial problems which has led him to pawn things and to ask for loans from other
people. He also sold marijuana as a means of generating income. However, he
denies any other illegal activities such as burglarizing homes. He does admit that he
forged checks belonging to his grandmother to secure drugs. He was criminally
charged with the offense and was put on probation which he served successfully.
R. Vol. 8, at 329-30.
154
skills.”212 Chudy’s Axis I diagnosis was that Ferguson suffered from a “major
depression moderate,” and a “generalized anxiety disorder.”213
His Axis II
assessment was “personality disorder that borderlines schizotypal features and
secondly borderline intellectual functioning.”214
Chudy stated that some persons with Ferguson’s borderline level of intellectual
functioning would tend to “rely on other people to help them function in the world,”
while others would not.215 Even so, based upon Ferguson’s “low IQ and other
personality factors that [Dr. Chudy] found backed up by information from his family,
it seem[ed to him] very clear that [Ferguson] was easily influenced.”216
Dr. Chudy agreed that the results of the tests that he administered, Ferguson’s
schools records, and the results of the IQ test administered by Dr. C. Van Rosen, the
212
R. Vol. 5, Tab. 19 at 794-795
213
Id. at 795. Psychiatric diagnoses are generally categorized according to criteria established
by the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION
(“DSM-IV”), published by the American Psychiatric Association. The Manual covers all mental
health disorders for both children and adults, and lists known causes of those disorders, statistics in
terms of gender, age at onset, and prognoses (as well as some research concerning the optimal
treatment approaches). The DSM-IV uses a multi-axial, or multidimensional, approach to
diagnosing mental health disorders. “Axis I” addresses “clinical syndromes,” and generally
constitutes the person’s diagnosis (e.g., depression, schizophrenia, social phobia). “Axis II”
addresses “developmental and personality disorders.” Developmental disorders include autism and
mental retardation, disorders that are typically first evident in childhood. Personality disorders are
clinical syndromes which have more long lasting symptoms, and encompass an individual’s way of
interacting with the world. They include Paranoid, Antisocial, and Borderline Personality Disorders.
214
Id. (alteration supplied).
215
Id. at 794.
216
Id. at 793-94 (alterations supplied).
155
State’s mental health expert witness, were all consistent with his conclusion that
Ferguson’s intellectual functioning was “borderline.”217 He also testified that the
same level of intellectual functioning was consistent with a person who was “able to
gain employment with a furniture warehousing facility and being able to operate
equipment.”218 Chudy stated that such an individual could perform “real concrete and
repetitive simple work that [he] is given time to simulate.”219 That would also include
being able to complete a “written test with regard to operating a piece of machinery
that contained a simple computer device on it.”220 He agreed that such persons could
“function in society at a higher level” than their IQ score might otherwise indicate,
although the level at which such persons could function would never be “much
higher” than their IQ score.221
Most significantly, however, Dr. Chudy testified that Ferguson was not
217
Id. at 807.
218
Id. at 803 (alteration supplied). Ed Kaplan, Ferguson’s employer at Heilig Myers
Distribution Center in Russellville, Alabama, testified that Ferguson worked as an “order picker
operator,” which is machine similar to a forklift. R. Vol. 3, at 350. Individuals were given hands-on
training, video training, and a test. Id. at 350. The order picker has a steering wheel, buttons that
allow the lift to go up and down, a throttle to propel the vehicle, a computer consisting of a bar code
scanner (which, if broken, requires the operator to type in the bar code number) and help buttons to
determine, for instance, how many items are in a box, as well as safety and emergency buttons. Id.
at 357-61. Ferguson began work at Heilig Myers “unloading trucks” and then was promoted to
“order picker operator.” Id. at 355.
219
R. Vol. 19 at 803(alteration supplied).
220
Id.
221
Id. at 806.
156
“mentally retarded.”222
ii.
The State’s mental health expert
When the State’s mental health expert, Dr. C. Van Rosen, examined Ferguson,
he had in his possession “a number of records from the district attorney’s office . . .
and these included police reports and various descriptions . . . of witnesses.”223 He
also received background information from Ferguson’s defense attorneys.224 In
addition, he had some of Ferguson’s school records, but he did not think the records
were complete.225 He stated that a complete set of academic records might have been
of marginal assistance, but he did not believe that the additional information would
have been significant.226
Dr. Rosen was asked whether he still would find that Ferguson was
malingering on his IQ test, if he had seen the results of IQ tests that had been
administered to Ferguson while he still was in school, and those test scores were
consistent with the examination he gave Ferguson.227 Rosen answered: “They would
222
R. Vol. 3, at 806 (“Q. Now, you are certainly not saying that Mr. Ferguson is retarded,
are you?; A. No, I am not. He is in between retarded and below average.”) (emphasis supplied).
223
R. Vol. 5, Tab. 20, at 836-37.
224
Id. at 837.
225
Id., Vol. 6, at 852.
226
Id.
227
Id.
157
have been somewhat helpful.”228 He recalled “some of ” the records, but could not
remember whether his recollection was from materials initially furnished to him, or
his examination of Dr. Chudy’s report.229
Dr. Rosen did not believe that Dr. Chudy had a greater range of materials
available to him,230 but he admitted that Chudy had spoken with family members: an
avenue of investigation that Dr. Rosen “did not feel [was] necessary.”231
“[R]emember [that] my major job was not to do a complete psychological evaluation
of him.”232
Dr. Rosen conceded that, even though his evaluation was “pretty
comprehensive, . . . [he] could have done more.”233 He admitted that “some additional
information” would have enabled him to conduct “a more complete evaluation,” but
since he did not know what the “other information was,” he could not say whether the
additional information would have been of more than marginal assistance.234
Dr. Rosen admitted that the IQ score of 69 derived from his administration of
228
Id.
229
R. Vol. 6, at 852-53.
230
It is not known whether Dr. Rosen was furnished the same school records as Dr. Chudy.
231
R. Vol. 6, at 853 (alteration supplied).
232
Id. (alterations and emphasis supplied).
233
Id. (alteration supplied).
234
Id. at 854.
158
a Weschler Intelligence test placed Ferguson in the mentally retarded range,235 but
diminished the significance of that result, saying that
it was considered quite apparent that [Ferguson] did not attempt to make
a good effort in this test, giving up readily on many items and seemingly
not trying as hard as possible. The defendant’s intellectual functioning
is consequently considered to be within the higher portion of the
borderline range of abilities.236
He based his opinion on the fact that the intelligence sub-tests began with
exceedingly easy questions that became progressively harder, and that individuals
attempting to malinger would inconsistently answer the questions, not realizing that
their haphazard answers would reveal an “attempt[] not to do particularly well.”237
According to Dr. Rosen, Ferguson’s responses to questions manifested
a somewhat inconsistent pattern . . . [and] he readily gave up and said,
I did not know . . . He was not particularly attentive in some of the
tasks. So all in all it was pretty obvious to me that he as not trying his
best. He was trying, but he could have done better.238
Dr. Rosen also testified that the results of a single IQ test were “not adequate
235
Id. In his report, Dr. Rosen wrote that he administered “the Reading sub-test for the Wide
Range Achievement Test-III” and Ferguson scored a 64, which, although commensurate with an
equivalent intelligence score, was “inconsistent with [Ferguson’s] handwritten letter to his defense
attorney and used as a part of this evaluation.” R. Vol. 17, at 120-21 (alteration supplied); see also
R. Vol. 5, Tab. 20, at 841-42. Dr. Rosen intended to administer a planned personality inventory as
well, but did not because of Ferguson’s problematic reading skills. R. Vol. 17, at 120.
236
R. Vol. 17, at 120-21 (alteration and emphasis supplied).
237
R. Vol. 5, Tab. 20, at 843 (alteration supplied).
238
Id. (alteration supplied).
159
for an evaluation or a diagnosis of mental retardation.”239 While he was aware that
Ferguson had been found to be educably mentally retarded in school,240 he did not
agree that his own IQ test findings were consistent with mental retardation, because
“[a] diagnosis of mental retardation hinges on three things. Number one, it has to
have happened before [age] 18. Number two, the reports of standardized test. And,
number three, his functional capabilities. All three of those go together to make a
diagnosis of mental retardation.”241
b.
The Rule 32 proceedings conducted after Atkins v. Virginia
On June 20, 2002 — after Ferguson’s sentence had become final on direct
appeal — the United States Supreme Court handed down its opinion in Atkins v.
Virginia. That decision announced a new rule of constitutional law made retroactive
to cases on collateral review. See In re Holladay, 331 F.3d 1169, 1172 (11th Cir.
2003). Ferguson timely raised his Eighth Amendment Atkins claim for the first time
in a pro-se Rule 32 petition filed on March 27, 2003.242
Ferguson’s petition acknowledged that the Atkins opinion “did not set a
mandatory test for evaluating mental retardation,” but cited with approval the
239
R. Vol. 6, at 855.
240
Dr. Rosen also admitted that “there is a range of approximately three to four IQ points by
variation meaning if you give the test a hundred times, there is going to be variation.” Id. at 856.
241
Id. at 855 (alterations supplied).
242
Rule 32 C.R. Vol. 12, Tab. 40, at 9-13.
160
definition promulgated by American Association on Mental Retardation (“AAMR”):
Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual
functioning, existing concurrently with related limitations in two or
more of the following applicable adaptive skills areas: communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure and work. Mental
retardation manifests before age 18.243
243
Id. at 9 (quoting American Association on Mental Retardation, MENTAL RETARDATION:
DEFINITION, CLASSIFICATION AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). The Supreme Court’s
decision in Atkins v. Virginia did not dictate a national standard for determining whether a criminal
defendant is mentally retarded and, for that reason, not subject to the ultimate sanction of the law.
Instead, the Court left to the states “the task of developing appropriate ways to enforce the
constitutional restriction” upon the execution of mentally retarded convicts. Atkins, 536 U.S. at 317
(citation, internal quotation marks, and footnote omitted).
The Court’s reticence to propound hard and fast rules undoubtedly was grounded in the fact
that the statutory definitions of mental retardation adopted by Congress and those states that, on the
date in 2002 that Atkins was decided, prohibited the execution of mentally retarded persons were not
identical. Even so, the Court observed that all of the existing statutes generally conformed to
diagnostic criteria promulgated by the American Association on Mental Retardation and the
American Psychiatric Association.
The American Association on Mental Retardation (AAMR) defines mental
retardation as follows: “Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual functioning,
existing concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure, and
work. Mental retardation manifests before age 18.” Mental Retardation: Definition,
Classification, and Systems of Supports 5 (9th ed. 1992).
The American Psychiatric Association’s definition is similar: “The essential
feature of Mental Retardation is significantly subaverage general intellectual
functioning (Criterion A) that is accompanied by significant limitations in adaptive
functioning in at least two of the following skill areas: communication, self-care,
home living, social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety (Criterion B). The onset
must occur before age 18 years (Criterion C). Mental Retardation has many different
etiologies and may be seen as a final common pathway of various pathological
processes that affect the functioning of the central nervous system.” Diagnostic and
161
Ferguson alleged that he met the “criteria set forth by the AAMR.”244 He
pointed out that the Atkins Court had observed “that an IQ score between 70 and 75
‘is typically the cutoff IQ score for the intellectual function prong of the mental
retardation definition.’”245 To support his assertion that he met the AAMR’s criteria,
Ferguson relied upon school records containing evidence that, at age 12, he was
administered a Wechsler Intelligence Scale for Children-Revised (“WISC-R”) and
received a full scale score of 71.246 He also pointed to the full scale score of 69 on an
IQ test administered when he was “awaiting trial at age twenty-five.” 247 He admitted
that “a State expert claimed [at trial] that [he] was malingering on the [latter] test,”
but contended that the expert “failed to use [objective] scientific malingering scales”
and, instead, “gave his own imprecise and biased [subjective] opinion as to how hard
Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation
is typically used to describe people with an IQ level of 50-55 to approximately 70.
Id., at 42-43.
Atkins, 536 U.S. at 309 n.3 (emphasis in original). The Atkins opinion thus pointed the states in the
direction of clinical definitions that have three constituent parts: that is, in order to be diagnosed as
“mentally retarded,” the person under evaluation must exhibit (i) before the age of eighteen years (ii)
significantly sub-average intellectual functioning, accompanied by (iii) significant limitations in
adaptive functioning.
244
Rule 32 C.R. Vol. 12, Tab. 40, at 9.
245
Id. (citing Atkins, 536 U.S. at 309 n.5).
246
Id. at 9-10.
247
Id. at 10. However, Ferguson failed to include in the Rule 32 petition two additional
scores he readily admits he achieved on other IQ tests: “77 at age 6 . . . [and] 87 at age 15.” Doc.
no. 9, at 50.
162
Mr Ferguson tried while taking the test.”248
Ferguson also asserted that poor academic performance, educator notations,
and other testing information contained in his school records showed that he suffered
substantial intellectual and adaptive deficits before the age of 18.249 The records
showed that he was placed in classes for “(educationally) mentally handicapped”
persons in the sixth grade, and that he remained in that classification until the ninth
grade, when he was placed in classes for “learning disabled” students until he
withdrew from school in the tenth grade.250 In addition to information contained in
his school records concerning his adaptive functioning abilities, Ferguson stated that
“virtually everyone who had any extended contact with [him] can testify to his
limitations.”251 In the prayer for relief at the end of his 143-page petition, Ferguson
requested “a full evidentiary hearing at which proof may be offered concerning the
allegations in this petition[.]”252 Ferguson also filed a motion for appointment of
counsel.253 On July 30, 2003, T. Thomas Cottingham filed a notice of appearance on
248
Rule 32 C.R. Vol. 12, Tab. 40 at 10 (alterations supplied).
249
Id. at 9-13.
250
Id.
251
Id. at 13 (alteration supplied).
252
R. 32. C.R. Vol. 12, Tab. 40, at 143 (alteration supplied).
253
Rule 32 C.R. Vol. 12, Tab. 40, at 146-47.
163
Ferguson’s behalf.254 Vance Salter appeared as co-counsel.255
Nearly two years later, on May 19, 2005, the State filed an answer and argued
that Ferguson’s Atkins claim was due to be dismissed pursuant to Rule 32.7(d),
because the claim was refuted by the trial record.256 Ferguson filed no response or
any other pleading pertaining to his Atkins claim. The following year, on October 18,
2006, the Rule 32 court summarily dismissed Ferguson’s Rule 32 petition without a
hearing pursuant to Rule 32.7(d), Ala. R. Crim. P.257
The Rule 32 court’s order of dismissal analyzed Atkins and Alabama’s thencurrent post-Atkins definition of mental retardation as explicated in Ex parte Perkins,
851 So. 2d 453, 456 (Ala. 2002), and Ex parte Smith, No. 1010267, 2003 WL
1145475, *9 (Ala. Mar. 14, 2003).258 The court also engaged in a detailed review of
evidence from the trial record in order to determine whether Ferguson met Alabama’s
mental retardation criteria.259 The court ultimately held that Ferguson’s Atkins claim
was without merit, finding that “Ferguson has not and cannot meet his burden of
demonstrating that he is ‘so impaired as to fall within the range of mentally retarded
254
Id. at 165.
255
Id. at 169-175.
256
Id. at 186-87.
257
Rule 32 C.R. Vol. 16, Tab. 51, at 1-65.
258
Id. at 6-10.
259
Id. at 10-14.
164
about whom there is a national consensus.’”260
c.
Collateral Appeal
On collateral appeal, Ferguson again argued that Atkins applied, and that an
evidentiary hearing was warranted.261 Ferguson contended that he “should have been
afforded an opportunity to present the full array of evidence relevant under Atkins,
and the circuit court should not have summarily denied such a hearing by reviewing
a limited record offered exclusively as mitigation evidence before Atkins became the
law.”262
Ferguson also asserted that the evidence underlying his Atkins claim, as alleged
in his Rule 32 petition, went beyond intelligence test scores, thereby rendering the
state court’s findings regarding his adaptive functioning abilities inconsistent with
criteria specified in Atkins and the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders – Fourth Edition (“DSM-IV”).263 He
argued that his level of adaptive functioning was consistent with a diagnosis of
mental retardation,264 and that the trial judge’s determination to the contrary, based
260
Id. at 14 (quoting Atkins, 536 U.S. at 317).
261
Rule 32 C.R. Vol. 15, Tab. 42, at 16-21.
262
Id. at 21.
263
See id at 17-19.
264
Rule 32 C.R. Vol. 15, Tab. 44, pp. 3-4 (“The fact that a person is employed, is promoted
in a menial job, marries, or is offered other opportunities is not diagnostically controlling. The
adaptive functioning element of mental retardation is much more detailed and only requires deficits
165
in part on Ferguson’s ability to “operat[e] a forklift and marry[],” was “incorrect.”265
Ferguson contended that he should have been afforded the opportunity to “present
expert testimony, post-Atkins, in support of his allegations.”266
Moreover, Ferguson alleged that his attorney had interviewed witnesses,
retained experts, reviewed thousands of pages of records, and arranged for Ferguson
to be examined by another clinical psychologist — all of which had been for naught
because the Rule 32 court had denied him the opportunity for a hearing.267
Finally, Ferguson argued that the trial and appellate courts could not determine
whether he was mentally retarded “as a matter of law from the existing record,”268
“[b]ecause the criteria and the importance of such evidence has changed so
completely, allegations and evidence regarding mental retardation are appropriate
matters for trial [i.e., an evidentiary hearing] in a Rule 32 case.” 269
The Alabama Court of Criminal Appeals rejected Ferguson’s arguments and
affirmed the Rule 32 court’s determination that he was not mentally retarded.
Ferguson argues that he is entitled to an evidentiary hearing on his
claim that he is mentally retarded. He asserts that[,] according to the
or impairments in two of the 11 adaptive areas listed in the diagnostic criteria.”)
265
Id. at 20 (alterations supplied).
266
Id.
267
Id. at 4.
268
Id.
269
Id. at 10 (alterations supplied).
166
United States Supreme Court’s decision in Atkins v. Virginia, supra, he
may not be sentenced to death because he is mentally retarded.FN4
Ferguson contends that there is more evidence of mental retardation than
merely his IQ scores. Specifically, he asserts that his school records
show that he is mentally retarded.
FN4. The United States Supreme Court in Penry v. Lynaugh, 492
U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), held that
executing a mentally retarded individual was not “categorically
prohibited” by the Eighth Amendment. This decision was overruled
by Atkins v. Virginia.
Ferguson is correct that this Court has held that the United States
Supreme Court’s decision in Atkins v. Virginia applies retroactively to
cases on collateral review. See Duncan v. State, 925 So. 2d 245 (Ala.
Crim. App. 2005). Thus, Atkins applies to this case.
The Alabama Supreme Court in Ex parte Perkins, 851 So. 2d 453
(Ala. 2002), adopted the most liberal definition of mental retardation
used by those states that had laws prohibiting the execution of the
mentally retarded. The following three factors must be considered: (1)
significantly subaverage intellectual functioning (i.e., an IQ of 70 or
below); (2) significant or substantial deficits in adaptive behavior; and
(3) the manifestation of these problems must have occurred during the
developmental years, i.e., before the age of 18. See Perkins.
The circuit court, when addressing this claim, made the following findings:
“Ferguson does not meet either the intelligence or
adaptive functioning elements necessary to establish
mental retardation. Ferguson has been administered
intelligence testing on numerous occasions throughout his
life, both prior to and after his conviction for capital
murder. At the age of 6, Ferguson was administered the
Stanford-Binet intelligence test and obtained a full scale
score of 77. (C.R. 164.) At the age of 12, Ferguson was
administered the Wechsler Intelligence Scale for
Children-Revised (WISC-R) and obtained a verbal score of
167
74, a performance score of 71, and a full-scale score of 71.
(C.R. 148-149.) It was noted by the examiner of the
WISC-R that Ferguson appeared to give up easily when
taking the test, indicating he could have scored even
higher. (C.R. 149.) Based on Ferguson’s score, he was
placed in classes for the educable mentally retarded. (C.R.
164.)
“However, when Ferguson was retested three years
later [i.e., at the age of 15], he obtained a verbal score of
87, a performance score of 88, and a full-scale score of 87.
(C.R. 178.) These scores placed Ferguson within the low
average range of intellectual functioning. (C.R. 179.)
Based in part on those test scores and others, Ferguson was
moved out of classes for the educable mentally retarded
and into classes for the learning disabled. (C.R. 191.) A
school official noted at the time that there was a
discrepancy between Ferguson’s ability and achievement
in school. (C.R. 191.) The clear import of the comment is
that Ferguson was an underachiever in school.
“After being charged with capital murder, Ferguson
was examined by court-appointed forensic psychologist C.
Van Rosen. (R. 836.) Dr. Rosen administered the
Wechsler Adult Intelligence Scale-Revised (WAIS-R). (R.
844.) Ferguson obtained a verbal score of 76, a
performance score of 66, and a full-scale score of 69. (R.
844.) This score would place Ferguson within the upper
bounds of mild retardation. However, Dr. Rosen testified
that Ferguson did not give a good effort on the test. (R.
843.) Dr. Rosen surmised that if Ferguson had tried on the
test he would have actually scored in the mid to upper 70’s.
(R. 845.) In Dr. Rosen’s opinion, Ferguson was not
mentally retarded. (R. 844.)
“Dr. Rosen’s opinion was supported by Ferguson’s
own expert psychologist, Dr. James F. Chudy. While
168
testifying on behalf of Ferguson during the penalty phase
of his trial, Dr. Chudy agreed that Ferguson was not
mentally retarded. (R. 806.) Rather, based on his own
testing, Dr. Chudy opined that Ferguson’s intellectual
functioning was somewhere in the borderline range. (R.
792, 806, C.R. 331.)
“As discussed earlier, the Alabama Supreme Court
has stated that a full-scale IQ of 72 ‘seriously undermines
any conclusion that Smith suffers from significantly
subaverage intellectual functioning as contemplated under
even the broadest definitions.’ [Ex parte] Smith, [Ms.
1010267, March 14, 2003] — So. 3d —, — [(Ala. 2003)].
In another case, the Alabama Supreme Court likewise
applied a cutoff of 70 or below in determining that an
individual with a full-scale IQ of 76 is not mentally
retarded. [Ex parte] Perkins, [851 So. 2d 453] at 456
[(Ala. 2002)]. The Court of Criminal Appeals, pursuant to
Perkins, found that two full-scale IQ scores of 77 and 78
‘revealed an IQ well above 70 — an IQ that is above the
significant subaverage’ range. Stallworth [v. State], 868
So. 2d [1128] at 1182 [(Ala. Crim. App. 2001)] (citation
omitted).
“There is no doubt that Ferguson’s IQ lies
somewhere in the mid 70’s to lower 80’s and is best
classified as borderline to low average intellectual
functioning. Therefore, Ferguson’s IQ is above the
‘significant subaverage’ range required for a finding of
mental retardation.
“Moreover, the Court of Criminal Appeals noted in
its decision on direct appeal the following regarding
Ferguson’s claim of mental retardation:
“‘Moreover, contrary to Ferguson’s
contention, we find no evidence in the record
169
indicating that Ferguson was mentally
retarded. In fact, both Ferguson’s expert, Dr.
Chudy, and the [State’s] expert, Dr. Rosen,
stated unequivocally that Ferguson was not
mentally retarded. Although there was
evidence that Ferguson had an IQ of 69 and
was in the borderline range of intelligence,
Dr. Rosen testified that the results of
Ferguson’s IQ test were deceptive because,
Dr. Rosen said, Ferguson had purposefully
not put an effort into the test in order to
appear more troubled than he really was. Dr.
Rosen stated that it was his belief that[,] had
Ferguson made an effort when taking the test,
his IQ would have been in the middle to upper
70s. Clearly, the trial court did not err in not
finding, as a nonstatutory mitigating
circumstance, that Ferguson was mentally
retarded.’
“Ferguson v. State, 814 So. 2d at 965. As such, the Atkins
decision does not affect Ferguson’s death sentence.
“Out of an abundance of caution, the Court will also
briefly discuss evidence concerning whether Ferguson
exhibits significant or substantial deficits in adaptive
functioning. As discussed earlier, to be diagnosed as
mentally retarded, an offender must have significant
limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home
living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work,
leisure, health, and safety. Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, at p. 41.
“In assessing an offender’s adaptive functioning, the
state appellate courts have looked to a myriad of factors in
170
determining whether one is mentally retarded and therefore
exempt from the death penalty. Perkins, 851 So. 2d at 456;
[Ex parte] Smith, [Ms. 1010267, March 14, 2003] — So.
3d —, — (Ala. 2003)]; Stallworth, 868 So. 2d at 1182.
Among these factors are: employment history, the ability
to have interpersonal relationships, being extensively
involved in criminal activity and post-crime craftiness or
the part of the criminal. The record demonstrates that all
of these factors apply to Ferguson and establish that he is
not mentally retarded.
“Prior to his arrest, Ferguson had held many jobs,
including working at a chicken plant for one year and a
sand processing plant. (C.R. 92, 329.) Ferguson also
worked at Helig-Meyers. While there, Ferguson even
obtained a promotion from loading trucks to operating
machinery. (R. 823.) Clearly, Ferguson was able to seek
out and maintain employment.
“Ferguson also has the ability to develop and sustain
interpersonal relationships with others. During the penalty
phase, Ferguson’s wife testified that at the time of the
murders, she and Ferguson had been married for almost
five years. (R. 811.) Ms. Ferguson described him as a
good husband who provided for her and supported her
while she was in nursing school. (R. 811-812.) Moreover,
Ferguson’s actions before, during, and after the crime
support the conclusion that he is a street-wise criminal
intent on minimizing his culpability and establishing a
defense to his crime. This conduct strongly indicates that
Ferguson does not have substantial deficits in adaptive
functioning. Ferguson was an active member in a criminal
gang that planned and carried out not only the murders of
Harold and Joey Pugh but also a bank robbery. Ferguson
had also been convicted of forging checks. Additionally,
during his psychological evaluation with Dr. Chudy,
Ferguson admitted that he had sold drugs for money. (C.R.
171
92, 117.)
“Finally, Ferguson’s post-crime actions further
demonstrate that he does not possess severe deficits in
adaptive functioning. Ferguson gave a statement to
investigators in which he repeatedly attempted to deceive
and mislead authorities as to the extent of his involvement
in the murders. Ferguson admitted that he removed the
seat from the victim’s boat and burned it, explaining that
he was worried that he had left fingerprints on the seat.
Ferguson’s actions — his destroying evidence and
misleading authorities — demonstrate a high level of
adaptive functioning.[270]
“In sum, Ferguson has not and cannot meet his
burden of demonstrating that he is ‘so impaired as to fall
within the range of mentally retarded about whom there is
a national consensus.’ Atkins, 536 U.S. at 317. It is clear
from his school records and the testimony of both Drs.
Rosen and Chudy that Ferguson is not mentally retarded.
The Court concludes that Ferguson is not mentally
retarded. Thus, his Atkins claim is without merit, and is
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d).”
(C.R. 450-54.)
We have reviewed the record of Ferguson’s direct appeal and the
270
Although omitted by the Alabama Court of Criminal Appeals in its citation to the Rule
32 trial judge’s order, the Rule 32 court placed a footnote at this point in its opinion stating that:
Ferguson’s school records also indicate that as a child he did not exhibit
severe deficits in adaptive functioning. Ferguson was administered a behavioral
rating in 1988 that revealed no significant problems. (CR. 187). In 1989, an
evaluation performed by Tennessee Valley Rehabilitation Center, Inc. found that
Ferguson’s functional skills were adequate. (CR. 193-94).
Rule 32 C.R. Vol. 16, Tab 50 at 13-14 n.5.
172
record of the postconviction proceedings, and we conclude that the
circuit court’s findings are more than supported by the record. It is clear
that Ferguson does not meet the most liberal definition of mental
retardation adopted by the Alabama Supreme Court in Perkins. The
circuit court did not err in declining to hold a hearing on Ferguson’s
claim that he is mentally retarded.
Ferguson v. State, 13 So. 3d 418, 433-36 (Ala. Crim. App. 2008) (alterations to case
citations and a footnote were supplied, all other alterations in original).
2.
The habeas claim
Ferguson against states in the title of the habeas claim he filed in this court that
he was “improperly” denied a hearing on his mental retardation claim in accordance
with Atkins v. Virginia, 536 U.S. 304 (2002).271 He argues that “[d]ue process
demands that a state provide a person eligible for the death penalty particularly
stringent safeguards.”272 Other than those two statements, however, Ferguson’s
allegations do not indicate that he is attempting to state a procedural due process
claim arising from the state court’s failure to afford him an evidentiary hearing during
the collateral review process. Moreover, he admits that “Atkins did not dictate a
particular procedure to assess mental retardation in a defendant.”273
Even if Ferguson were attempting to assert a procedural due process claim,
271
Doc. no. 9, at 47.
272
Id. at 48 (alteration supplied).
273
Id. at 49 (citing Atkins, 536 U.S. at 317).
173
with the basis for such a claim being that the state court improperly denied him an
evidentiary hearing, the claim would fail. “Federal habeas relief is available to
remedy defects in a defendant’s conviction and sentence, but ‘an alleged defect in a
collateral proceeding does not state a basis for habeas relief.’” Alston v. Department
of Corrections, 610 F.3d 1318, 1325-1326 (11th Cir. 2010) (quoting Quince v.
Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (citations omitted)). Such a “challenge
concerns a state matter because [Alabama] provides for post-conviction procedures
through its state statutes. These collateral proceedings are a state created right. Thus,
the state court finding[s] . . . concern[] the state’s application of its own
post-conviction procedures, not the legality of [Ferguson’s] detention.” Id. at 1326
(alterations supplied).
Thus, Ferguson’s habeas claim is ultimately predicated on the argument that
the state courts’ rejection of his Atkins claim was an unreasonable application of
clearly established Supreme Court precedent, and constituted an unreasonable
determination of the facts in light of the evidence before those courts on collateral
review.274 Since Ferguson believes that the state courts’ factual findings were
“unreasonable in light of the evidence before them,” Ferguson argues that the
274
Id. at 60-61; doc. no. 15, at 14-15 (citing 28 U.S.C. 2254 (d)(1) & (2)).
174
findings are not entitled to a presumption of correctness.275 Ferguson contends that
federal law entitles him to an evidentiary hearing here, in this court.276
The Alabama Court of Criminal Appeals affirmed the Rule 32 court’s dismissal
of Ferguson’s Atkins claim because it found that the lower court properly determined
that “Ferguson does not meet the most liberal definition of mental retardation adopted
by the Alabama Supreme Court in Perkins.” Ferguson v. State, 13 So. 3d at 436.
Ferguson agrees the Atkins Court guided, but did not specify, the mental retardation
criteria to be applied by the states, nor did the Atkins Court establish a mandatory
procedure for the states to follow when making mental retardation determinations.277
He also agrees that Ex parte Perkins establishes the appropriate criteria for
determining mental retardation in the State of Alabama.278
What Ferguson does not agree with are the state courts’ determinations in light
of the evidence before them. He does not take issue with the historic factual findings
(at least to the extent that the Rule 32 court described the content of his school
records, psychological reports, and trial testimony when considering his Atkins
claim). He also does not dispute that the Rule 32 court retrieved every single bit of
275
Doc. no. 15, at 14-15 (citing 28 U.S.C. § 2254(d)(2)).
276
Id.
277
Doc. no. 9, at 49.
278
Id.
175
that content from testimonial and record evidence that was admitted during his 1998
trial. To the extent that Ferguson does argue that the state courts made unreasonable
findings on collateral review, he divides his arguments among the three criteria for
determining mental retardation: significantly subaverage intellectual functioning;
significant or substantial deficits in adaptive behavior; and, the manifestation of those
deficits before the age of 18.
a.
Intellectual functioning
Ferguson admits that he “has taken four IQ tests — scoring (1) 77 at age 6; (2)
71 at age 12; (3) 87 at age 15; and (4) 69 at age 25.”279 Still, he contends that these
test scores “fail to tell the whole story” because “IQ tests are susceptible to
measurement error.”280 He relies upon two forms of measurement error: the standard
error of measurement; and the “Flynn Effect.”281 Ferguson contends that the state
courts should have considered both forms of measurement errors, which he alleges
would have altered (lowered) his full scale test scores.282 He states that the Alabama
courts did not take either form of measurement error into account, and asserts “that
279
Id. at 50 (citations to trial record omitted).
280
Id.
281
Id. at 50-53; doc. no. 15, at 15-16. The Flynn Effect is “a method that recognizes the fact
that IQ scores have been increasing over time” and “acknowledges that as an intelligence test ages,
or moves farther from the date on which it was standardized, or normed, the mean score of the
population as a whole on that assessment instrument increases, thereby artificially inflating the IQ
scores of individual test subjects.” Thomas v. Allen, 607 F.3d 749, 753 (11th Cir. 2010).
282
Doc. no. 9, at 50-53; doc. no. 15, at 15-16.
176
omission alone justifies granting an evidentiary hearing.”283
This court finds that Ferguson has failed to provide clear and convincing
evidence to overcome the presumption of correctness that attaches to the state court’s
factual findings.
Ferguson also has not demonstrated that the state courts
unreasonably applied federal law in connection with their assessment of his
intelligence tests. Furthermore, Ferguson did not raise either argument in the Rule
32 court, or on collateral appeal.284 Moreover, Ferguson is not correct when he states
that the state post-conviction court did not take the SOM into account. The Rule 32
court’s opinion expressly recognized that “[a]ny IQ test score should be considered
in light of the standard error of measurement which is generally +/- 5.”285
i.
The Flynn Effect
Since Ferguson did not raise the Flynn Effect as an issue during collateral
review, this court cannot now consider it. When a state court has adjudicated a claim
on the merits, this court must judge the state court’s decision on the record before that
court. Even if Ferguson had raised the Flynn Effect as a concern on collateral review,
neither Atkins nor Alabama law requires that a trial judge take the phenomenon into
283
Doc. no. 9, at 50.
284
Rule 32 C.R. Vol. 12, Tab. 40, at 9-14 (petition); id., Vol. 15, Tab. 42, at 16-21, and Tab.
44, at 9-11 (collateral appeal briefs).
285
Rule 32 C.R. Vol. 16, Tab. 51, at 7 (citing www.aamr.org/Policies) (alteration supplied).
177
account when evaluating a defendant’s IQ test scores. The cases cited by Ferguson
in support of the Flynn Effect286 are not binding authorities of the Supreme Court,
Eleventh Circuit, or State of Alabama, and none of them have held that the Flynn
Effect must be taken into account when examining an IQ test score. Moreover, this
court finds that, to the extent the appellate courts of the State of Alabama have
discussed the Flynn Effect, they have stated that consideration of the phenomenon
lies in the discretion of the trial judge. For example, the Alabama Court of Criminal
Appeals observed in its 2009 opinion in the case of Beckworth v. State, No. CR-070051, 2009 WL 1164994 (Ala. Crim. App. May 1, 2009), that it had not previously
addressed the “Flynn effect,” see James R. Flynn, Tethering the
Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psych., Pub.
Pol’y, & L., 170-78 (2006), which posits that IQ scores increase over
time in certain populations. However, the Texas Court of Appeals
recently stated: “We have previously refrained from applying the Flynn
effect . . . noting that it is an ‘unexamined scientific concept’ that does
not provide a reliable basis for concluding that an appellant has
significant sub-average general intellectual functioning.” Neal v. State,
256 S.W.3d 264, 273 (Tex. Crim. App. 2008).
Beckworth, 2009 WL 1164994 at *38 n.5 (some citations omitted), reversed on other
grounds, Ex parte Beckworth, No. 1091780, 2013 WL 3336983 (Ala. July 3, 2013).
A more recent decision of the Alabama Court of Criminal Appeals, Albarran
v. State, 96 So. 3d 131 (Ala. Crim. App. 2011), makes it clear that consideration of
286
Doc. no. 9, at 50-55.
178
the Flynn Effect is not a requirement of Alabama’s criteria for determining whether
a criminal defendant suffers from mental retardation. That opinion states:
First, this Court cannot, based on the record, say that the circuit court
abused its discretion in determining that Albarran failed to meet the
definition of mental retardation adopted by the Alabama Supreme Court
in Perkins based on Albarran’s IQ score. Although Dr. Weinstein also
testified that, when adjusted for the “Flynn effect,” Albarran’s IQ was
around 68, the circuit court could have reasonably rejected the “Flynn
effect” and determined that Albarran’s IQ was 71. Gray v. Epps, 616
F.3d 436, 446 n.9 (5th Cir. 2010) (quoting In re Mathis, 483 F.3d 395,
398 n.1 (5th Cir. 2007) (“[T]he Flynn Effect ‘has not been accepted in
this Circuit as scientifically valid.’”)); Bowling v. Commonwealth, 163
S.W.3d 361, 375 (Ky. 2005) (holding that “Atkins did not discuss
margins of error or the ‘Flynn effect’ and held that the definition [of
mental retardation] in KRS 532.130(2) ‘generally conform[ed]’ to the
approved clinical definitions” so the court could not consider the Flynn
effect); Thomas v. Allen, 607 F.3d 749, 758 (11th Cir. 2010) [(observing
that:] “[T]here is no uniform consensus regarding the application of the
Flynn effect in determining a capital offender’s intellectual functioning,
and there is no Alabama precedent specifically discounting a court’s
application of the Flynn effect . . . .”). Because the circuit court could
have reasonably determined that Albarran’s IQ was 71, a score that
places him outside the Alabama Supreme Court’s definition of mental
retardation, this Court cannot say that the circuit court abused its
discretion in denying Albarran’s Atkins motion.
Albarran, 96 So.3d at 199-200 (second alteration supplied, all others in original,
footnote omitted).
ii.
Standardized malingering test
Finally, Ferguson criticizes the state courts’ decision to credit Dr. C. Van
Rosen’s opinion that Ferguson did not put forth his best effort on the 1997 WAIS-R
179
examination, because Dr. Rosen did not conduct a standardized test to determine
whether Ferguson was “malingering” and, thereby, verify his opinion. However,
Ferguson points to no federal or state law requiring the administration of such a
procedure.
He also failed to show that Dr. Rosen, an experienced clinical
psychologist, was not qualified to state such an opinion based upon his personal
observations of Ferguson, and the specific inconsistencies he observed in the testing
processes. Ferguson’s assertion that Dr. Rosen was “biased” is conclusory, and
unsupported by any thing other than his (or his attorney’s) subjective opinion.
Importantly for the resolution of the present issue, Ferguson’s own expert, Dr.
James F. Chudy, drew the same conclusion as Dr. Rosen. While Dr. Chudy did not
administer a full-scale IQ test, because it would have been conducted too soon after
the administration of Dr. Rosen’s test to produce reliable results, he did conduct a
short-form intelligence test and an additional battery of academic and personality
assessment instruments. Morever, he was well-versed in the particulars of Ferguson’s
school records. Even with all of those cross-validity testing tools, Dr. Chudy still
concluded that Ferguson’s intellectual functioning ability was within the “borderline”
range. It was well within the state courts’ fact-finding discretion to determine the
weight and credibility of the evidence before the courts, and that includes a decision
to rely on an expert’s testimony concerning malingering.
180
b.
Adaptive Functioning
Ferguson contends that his Atkins claim should proceed to an evidentiary
hearing in this court, because the sentencing court “never properly examined the
deficits in Mr. Ferguson’s adaptive behavior.”287
That contention is correct.
Curiously, however, Ferguson attempts to convince this court to grant habeas relief
on his Atkins claim by quoting from the opinions of the state intermediate and
supreme courts on direct appeal.288 Of course, neither of those opinions addressed
Ferguson’s Atkins claim and, consequently, he cannot argue that the findings stated
in either opinion was unreasonable from an evidentiary or legal standpoint. As such,
no further discussion is necessary in connection with the opinions of either state
appeals court on direct appeal.289
Instead, the pertinent opinion for this court’s review under 28 U.S.C. § 2254(d)
is the opinion of the Alabama Court of Criminal Appeals on collateral appeal. In
order to obtain habeas relief, Ferguson must show that that court’s affirmation of the
287
Doc. no. 9, at 50.
288
Id. at 59-60. Ferguson’s reliance upon the opinions of the Alabama Court of Criminal
Appeals and the Alabama Supreme Court on direct appeal is characterized as “curious” because
neither opinion, like the sentencing court, “properly examined the deficits in Mr. Ferguson’s adaptive
behavior.”
289
While consideration of a person’s limitations in his adaptive functioning abilities became
a component of the definition of mental retardation in 1959, the notion that you had to test for it did
not become a diagnostic requirement until 2002, when the tenth edition of the American Association
of Mental Retardation’s manual was published. Before then, psychologists relied primarily upon
clinical judgment and the observations of third-party informants to assess a person’s adaptive skills.
181
Rule 32 court’s findings about his adaptive functioning abilities was an unreasonable
application of Atkins, or an unreasonable determination of the facts in light of the
evidence before those courts.
Ferguson suggests that the state courts’ determinations about his adaptive
functioning abilities are based upon incomplete school records or “other evidence,”
and that additional evidence would show substantial deficits.290 From that platform,
he again contends that he is entitled to an evidentiary hearing in this court.291 That
argument is similar to a claim he made on collateral appeal: i.e., that his school
records were incomplete, and other evidence of his childhood adaptive functioning
abilities was lacking. A review of the trial record and the allegations in Ferguson’s
appellate brief, however, shows that his contentions about an incomplete or limited
record were untrue then, and that they are equally untrue now.292 Almost every single
290
Id. at 56-59.
291
Id.
292
Ferguson claimed that the record before the Rule 32 court was incomplete in that there
existed additional evidence of his mental retardation in other information that was discovered after
trial, but before his Rule 32 petition was filed. A review of the trial record and the allegations in
Ferguson’s Rule 32 petition and appellate brief show that his contentions about an incomplete or
limited record are untrue, with two insignificant and technical exceptions: an allegation (1) that
anyone who ever had extended contact with him could testify to his limitations, and (2) that a sixth
grade teacher had described him as “‘incapable of premeditation on anything.’” See Rule 32 C.R.
Vol. 12, Tab. 40, at 13 (petition); id., Vol. 15, Tab. 42, at 19 (appeal brief). Other than these two
items, all information in the Rule 32 petition and the briefs on collateral appeal were taken directly
from Ferguson’s extensive school records, which were admitted into evidence by defense counsel
at the penalty phase of trial. See R. Vol. 5, Tab. 19, at 780); C.R. Vol. 7, at 127-200; id., Vol. 8, at
201-230 (“Defendant’s 2”); id., Vol. 8, at 231-60 (“Defendant’s 3”). Importantly, Ferguson’s
“other” information is not in addition to nor would it have completed the record before the Rule 32
182
piece of information supporting the allegations in the Rule 32 petition, the briefs on
collateral appeal, and in the present habeas petition can be found in school records
offered and admitted into evidence by defense counsel during the penalty phase of
trial.293 Thus, there are no incomplete school records.
As to Ferguson’s “other evidence,” he states: “Complementing Mr. Ferguson’s
school records, other evidence [adduced] at an evidentiary hearing would support
additional adaptive deficiencies. Mr. Ferguson’s sixth grade teacher, for instance,
described him as ‘incapable of premeditation on anything.’”294 He contends that
“[o]ther testimony also would establish the existence of inadequate social skills”
during his childhood, because he was “unnerved” by “large groups of people,” and
exhibited a deficit in communication skills due to a speech impediment.295 He argues
that such evidence also would establish that he was socially inept as an adult, in that
he was easily led, and only felt truly comfortable in the presence of children.296
court, because the same subject matter already had been well developed through the trial testimony,
psychological reports and school records submitted at his 1998 trial. The “record” of Ferguson’s
state of functioning was therefore not limited or incomplete on collateral review and thus ipso facto,
the state court did have before it a complete record of evidence from which it could determine
whether Ferguson was mentally retarded.
293
See R. Vol. 5, Tab. 19, at 780; C.R. Vol. 7, at 127-200; id., Vol. 8, at 201-230
(“Defendant’s 2”); id., Vol. 8, at 231-60 (“Defendant’s 3”).
294
Doc. no. 9, at 58 (quoting Rule 32 C.R. Vol. 12, Tab. 40, at 13) (alteration supplied).
295
Id. at 58-59 (citing Rule 32 C.R. Vol. 12, Tab. 40, at 74, 76) (“Rule 32 Petition”)
(emphasis by petitioner) (alteration supplied).
296
Id.
183
This allegedly “additional information” is cumulative to the testimony and
documentary evidence already in the 1998 trial record, which was carefully examined
by the state post-conviction court in the context of Ferguson’s Atkins claim.
Ferguson’s school records are replete with references to his communication deficits
and minimal social skills, as are the reports of the two psychologists who examined
him before trial. The deficits in Ferguson’s adult social skills were also testified to
by his wife, and are set out in the psychological reports as well. Ferguson’s assertion
that he was only comfortable in the presence of children is the only additional
allegation that is not present in the trial records.
In sum, Ferguson’s school records were not incomplete, and the “other
evidence” is, with the one exception noted in the previous paragraph, cumulative to
the trial record. Thus, the state courts’ rejection of the adaptive functioning prong of
his Atkins claim is not unreasonable, to the extent the courts relied upon the trial
record.
Even so, one serious concern is the quality of the clinical assessment of
Ferguson’s adaptive functioning abilities in the trial record. Dr. C. Van Rosen
admitted he did not conduct a comprehensive evaluation of Ferguson’s adaptive
functioning abilities, and that he could have done more. He did not consult with, or
administer adaptive functioning tests to, family members, friends, co-employees, or
184
employers. He did not closely examine Ferguson’s school records. In fact, he did not
even deem it necessary to do so. While Dr. Rosen testified that Ferguson’s marriage
and job abilities were consistent with borderline intellectual functioning, he was
never asked whether those same skills were also consistent with the adaptive
functioning abilities of individuals who suffered from mental retardation. He was
never asked to define the skill level demonstrated by Ferguson’s criminal acts, social
deficiencies, and purported reliance on his wife to handle most affairs of their
marriage. Moreover, there was no mention during his testimony of the eleven criteria
of adaptive functioning listed in the American Association of Mental Retardation’s
manual and the DSM-IV.
Dr. James Chudy’s assessment of Ferguson’s adaptive functioning skills
contains some of the same deficits. Although he clearly saw the importance of
interviewing family members, and of examining Ferguson’s life history and job skills,
he also failed to administer an adaptive functioning test to anyone.
Thus, unlike the examination of Ferguson’s adaptive functioning skills as a
child, which was clearly relied upon by school officials when making placement
decisions during his years of formal public education, such concentration is clearly
absent for the time period in which Ferguson was on trial.
Still, the state courts do not appear to have relied entirely upon the clinicians’
185
assessments of adaptive functioning. Instead, those courts relied upon the adaptive
functioning assessments performed when Ferguson was a child, demonstrating that
he did not have significant deficits in functioning after the age of 12. The state courts
also did not rely solely on the testimony of the experts at trial to assess Ferguson’s
adult adaptive functioning, but instead utilized the DSM-IV criteria to determine the
level of that functioning, and their decisions state the reasons for rejecting Ferguson’s
contention that he had significant deficits.
c.
Onset before age eighteen
Ferguson begins this part of his argument by correctly observing that the
Alabama Supreme Court’s opinion in “Perkins does not require all evidence [of
mental retardation] to predate a defendant’s 18th birthday.”297 Even so, and taking
all “evidence” into account, if it cannot be demonstrated that Ferguson’s alleged
mental retardation was manifest before he attained the age of 18 years, then he does
not meet the diagnostic criteria for mental retardation.
School records clearly show that, after age 12, officials determined through
extensive intelligence and adaptive functioning testing that Ferguson should be
classified as “ Learning Disabled,” because he had a reading deficit and a secondary
developmental spelling deficit. Thus, school officials determined that Ferguson’s
297
Doc. no. 9, at 61 (emphasis and alteration supplied).
186
intelligence scores and adaptive functioning skills were attributable to his learning
disability, and not to mental retardation.
Conclusion
3.
In summary, the only basis upon which this court could find that the state
courts’ rejection of Ferguson’s mental retardation claim was an unreasonable
determination of the facts before those courts, or an unreasonable application of the
Supreme Court’s Atkins opinion, is that the evidence was presented at trial in the
context of a mitigating circumstance; and, consequently, cannot be relied upon in the
context of a post-Atkins collateral appeal. In that regard, Ferguson argues that the
state courts “made much of Mr. Ferguson’s and the State’s [pyschological] experts
declaring — while not considering an Atkins claim, but a mere mitigating
circumstance at sentencing — that Mr. Ferguson was not mentally retarded.”298 He
complains that the state courts placed too much significance on the experts’ opinions,
and asserts that the experts “may have expended more care in their determination” if
they had known of Atkins and its consequences.299 Even so, Ferguson does not
contend that the definition of mental retardation, as understood, testified to, and
applied by mental health experts in 1998, differed in any degree from Alabama’s legal
298
Id. at 62 (alteration supplied).
299
Id.
187
definition of mental retardation in 2003. It was not unreasonable for the state courts
to determine that the testimony provided by the experts was sufficient to conclude
that Ferguson’s deficits in intelligence and adaptive functioning were the product of
borderline intelligence, and not mental retardation.300
Moreover, to support his argument concerning reliance on the experts,
Ferguson quotes from the opinion of the Alabama Court of Criminal Appeals on
direct appeal.301 Again, the pertinent opinions for this court’s review under 28 U.S.C.
§ 2254(d) are the opinions of the Rule 32 trial court and the Alabama Court of
Criminal Appeals on collateral review proceedings. Those courts reviewed all of
Ferguson’s allegations of mental retardation within the context of Atkins, and
Alabama’s post-Atkins definition of mental retardation. Ferguson simply has not
provided clear and convincing evidence to overcome the factual determinations made
by those courts, nor has he shown that the state courts unreasonably applied Atkins
simply because the relevant evidence was presented as mitigation, and not in support
of a constitutional claim.
In conclusion, Ferguson has failed to show that no fairminded jurist would
have reviewed and adjudicated his Atkins claim like the state courts did in this case.
300
See R. Vol. 5, Tab. 19, at 786-810; id., Vol. 5, Tab. 20 at 833-46; id., Vol. 6, at 847-63.
301
Id. (quoting Ex parte Ferguson, 814 So. 2d at 978) (quotation omitted).
188
Ferguson’s arguments in support of his claim for habeas relief are derived from the
same evidence that was presented at trial and argued from an Atkins standpoint on
collateral review. It was not unreasonable for the state courts to decide that
Ferguson’s arguments did not establish that he was mentally retarded under Atkins,
because he could not show that he met even the broadest definition of mental
retardation under Alabama law. This claim is due to be denied.
G.
The Trial Judge Violated Ferguson’s Constitutional Rights by Refusing to
Consider Undisputed Mitigating Evidence.302
Ferguson alleges that the trial judge violated the Eighth and Fourteenth
Amendments by failing to consider, and give effect to, undisputed evidence of
statutory and non-statutory mitigating circumstances.303 See, e.g., Hitchcock v.
Dugger, 481 U.S. 393, 394 (1987) (holding that the sentencer may not refuse to
consider any relevant mitigating evidence). He asks this court to vacate his “death
sentence and instruct that [he] be sentenced to life without parole.”304
Ferguson identifies three statutory mitigating factors for which he contends
there was “undisputed” evidence: i.e., “extreme mental or emotional disturbance”;
“extreme duress or domination by another person”; and, “lack of capacity to
302
See Doc. no. 9, ¶¶ 119-137, at 63-75 (petition); doc. no. 15, ¶¶ 29-30, at 16 (reply brief).
303
Doc. no. 9, at 63.
304
Id. at 73 (alteration supplied).
189
appreciate the criminality of his conduct or to conform his conduct to the law.”305
Ferguson’s allegations concerning non-statutory mitigating factors include the
same evidence he offers in support of the statutory mitigating factors, and, allegations
concerning undisputed evidence of “his troubled childhood and history of mental
retardation.”306
Since Ferguson asserts that evidentiary proof of each of these factors was
undisputed at trial, he concludes that the trial judge’s refusal to apply the factors
violated his constitutional rights.307 He also asserts that the Alabama Court of
305
Id. at 63-64. These factors are more accurately described in Ala. Code §§ 13A-5-51(2),
(5) and (6) (1975), as follows:
(2) The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance,
....
(5) The capacity of the defendant to appreciate the criminality of his conduct
or conform his conduct to the requirement of law was substantially impaired,
(6) The capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substantially impaired.
306
Doc. no. 9, at 69-73. The statutory basis for presentation of this evidence is found in Ala.
Code § 13A-5-52, which reads:
In addition to the mitigating circumstances specified in 13A-5-51, mitigating
circumstances shall include any aspect of a defendant’s character of record and any
of the circumstances of the offense that the defendant offers as a basis for a sentence
of life imprisonment without parole instead of death, and any other relevant
mitigating circumstance which the defendant offers as a basis for a sentence of life
imprisonment without parole instead of death.
307
Doc. no. 15, at 16.
190
Criminal Appeals, “in turn, did not adjudicate the merits of Mr. Ferguson’s mitigating
evidence either. It simply adopted the findings of the lower court, findings that were
in direct conflict with Supreme Court precedent.”308 Ferguson requests a hearing to
present his mitigating evidence.309
Ferguson’s version of this claim’s development and adjudication on direct
appeal is incomplete. Almost all of the arguments and evidence underlying the
present habeas claim are the same arguments and evidence Ferguson presented to the
Alabama Court of Criminal Appeals and to the Alabama Supreme Court on direct
appeal.310 Contrary to Ferguson’s contention, the Alabama Court of Criminal Appeals
did adjudicate the merits of his claims on direct appeal, and dedicated eight pages of
its opinion to an independent examination of the record, the sentencing judge’s order,
and Ferguson’s argument. See Ferguson v. State, 814 So. 2d 925, 959-67 (Ala. Crim.
App. 2000).
Importantly, Ferguson never acknowledges the decision of the Alabama
308
Id.
309
Id. Ferguson does not complain that he was deprived of a full and fair hearing at the
penalty or sentencing phase of trial, nor does he assert that he was prevented from presenting any of
the mitigating evidence he desired during those proceedings.
310
See doc. no. 9 at 63-72 (petition); C.R. Vol. 9, Tab. 29, at 14-25 (direct appeal brief); CR.
Vol. 10, Tab. 34, at 18-34 (brief in support of petition for writ of certiorari). Ferguson did argue on
direct appeal that there were other mitigating factors that the trial court failed to find, but since those
additional factors are not raised in his habeas claim, they are immaterial and irrelevant to the present
analysis.
191
Supreme Court, the last state court to examine the merits of the claim on direct
appeal. In a lengthy and detailed opinion, that Court also independently examined
the record, and upheld the Alabama Court of Criminal Appeals’ affirmation of the
trial court’s sentencing determinations. See Ex parte Ferguson, 814 So. 2d 970,
975-79 (Ala. 2001). In doing so, the Alabama Supreme Court affirmed the legal and
factual findings made by the Alabama Court of Criminal Appeals, and expressly
found that the intermediate appellate court had examined Ferguson’s underlying
allegations as being offered in support of both the statutory and non-statutory
mitigating factors at issue. Id.
With the understanding that the Alabama Supreme Court was the last state
court to make a decision on the merits of this claim, analysis of Ferguson’s habeas
contentions shall, nonetheless, be organized by utilizing the more detailed opinion
of the Alabama Court of Criminal Appeals, while acknowledging any further
discussion by the Alabama Supreme Court in its affirmation of the the intermediate
state appellate court’s opinion.
The pertinent portions of the Alabama Court of Criminal Appeals’ opinion read
as follows:
Ferguson contends that the trial court erred in failing to consider
and to find several statutory and nonstatutory mitigating circumstances.
Because Ferguson did not object to the trial court’s findings below, we
192
review these claims only for plain error. See Rule 45A, Ala. R. App. P.
“In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57
L. Ed. 2d 973 (1978), the Supreme Court held that a death
penalty statute cannot constitutionally preclude
consideration of relevant mitigating factors. However,
Lockett does not require that all evidence offered as
mitigating evidence be found to be mitigating. Lockett
provides that a state may not exclude evidence that the
defendant claims is mitigating. This does not mean that all
evidence offered by the defendant as mitigating must be
found to be mitigating and considered as such in the
sentencing process.”
Ex parte Hart, 612 So. 2d 536, 542 (Ala. 1992), cert. denied, 508 U.S.
953, 113 S. Ct. 2450, 124 L. Ed. 2d 666 (1993).
“‘While Lockett and its progeny require
consideration of all evidence submitted as mitigation,
whether the evidence is actually found to be mitigating is
in the discretion of the sentencing authority.’ ” Ex parte
Slaton, 680 So. 2d 909, 924 (Ala. 1996), cert. denied, 519
U.S. 1079, 117 S. Ct. 742, 136 L. Ed. 2d 680 (1997),
quoting Bankhead v. State, 585 So. 2d 97, 108 (Ala. Crim.
App. 1989), remanded on other grounds, 585 So. 2d 112
(Ala. 1991), aff’d on return to remand, 625 So. 2d 1141
(Ala. Crim. App. 1992), rev’d, 625 So. 2d 1146 (Ala.
1993). “Merely because an accused proffers evidence of a
mitigating circumstance does not require the judge or the
jury to find the existence of that fact.” Harrell v. State,
470 So. 2d 1303, 1308 (Ala. Crim. App. 1984), aff’d, 470
So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct.
269, 88 L. Ed. 2d 276 (1985).
“‘A sentencer in a capital case may not refuse to
consider or be “precluded from considering” mitigating
factors. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.
193
Ct. 869, 874, 71 L. Ed. 2d 1 (1982) (quoting Lockett v.
Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L.
Ed. 2d 973 (1978)). The defendant in a capital case
generally must be allowed to introduce any relevant
mitigating evidence regarding the defendant’s character or
record and any of the circumstances of the offense, and
consideration of that evidence is a constitutionally
indispensable part of the process of inflicting the penalty
of death. California v. Brown, 479 U.S. 538, 107 S. Ct.
837, 93 L. Ed. 2d 934 (1987); Ex parte Henderson, 616 So.
2d 348 (Ala. 1992); Haney v. State, 603 So. 2d 368 (Ala.
Cr. App. 1991), aff’d, 603 So. 2d 412 (Ala. 1992), cert.
denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687
(1993). Although the trial court is required to consider all
mitigating circumstances, the decision of whether a
particular mitigating circumstance is proven and the weight
to be given it rests with the sentencer. Carroll v. State, 599
So. 2d 1253 (Ala. Cr. App. 1992), aff’d, 627 So. 2d 874
(Ala. 1993), cert. denied, 510 U.S. 1171, 114 S. Ct. 1207,
127 L. Ed. 2d 554 (1994). See also Ex parte Harrell, 470
So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct.
269, 88 L. Ed. 2d 276 (1985). Moreover, the trial court is
not required to specify in its sentencing order each item of
proposed nonstatutory mitigating evidence offered that it
considered and found not to be mitigating. Morrison v.
State, 500 So. 2d 36 (Ala. Cr. App. 1985), aff’d, 500 So. 2d
57 (Ala. 1986), cert. denied, 481 U.S. 1007, 107 S. Ct.
1634, 95 L. Ed. 2d 207 (1987).’”
Wilson v. State, 777 So. 2d 856, 892 (Ala. Crim. App. 1999), quoting
Williams v. State, 710 So. 2d 1276, 1347 (Ala. Crim. App. 1996), aff’d,
710 So. 2d 1350 (Ala. 1997), cert. denied, 524 U.S. 929, 118 S. Ct.
2325, 141 L. Ed. 2d 699 (1998). The fact that the trial court does not list
and make findings in its sentencing order as to the alleged nonstatutory
mitigating circumstances offered by a defendant indicates only that it
found some evidence not to be mitigating, not that it did not consider the
evidence. See, e.g., Ingram v. State, 779 So. 2d 1225 (Ala. Crim. App.
194
1999).
It is clear from the sentencing order in this case that the trial court
properly considered all of the mitigating evidence Ferguson offered.
The record reflects that Ferguson was not limited in any way regarding
the evidence he presented or the arguments that he made. In its
sentencing order, the trial court treated each statutory mitigating
circumstance listed in § 13A-5-51, Ala. Code 1975; made conclusions
as to the existence or nonexistence of each circumstance; and made
specific findings of fact regarding each circumstance. Although the trial
court did not list and make findings as to each nonstatutory mitigating
circumstance offered by Ferguson, it did include a section in its
sentencing order indicating that, in compliance with § 13A-5-52, Ala.
Code 1975, it had considered the nonstatutory mitigation offered by
Ferguson, and it specifically found the existence of two nonstatutory
mitigating circumstances: (1) that Ferguson had turned himself into
police and had confessed to the crime; and (2) that the jury had
recommended a sentence of life imprisonment without the possibility of
parole. Thus, we have no doubt that the trial court fully complied with
Lockett and its progeny and considered all the evidence offered by
Ferguson in mitigation.
We now turn to whether the trial court’s findings regarding the
existence or nonexistence of specific mitigating circumstances were
proper.
First, Ferguson contends that the trial court erred in failing to find
as statutory mitigation: (1) that he was under the influence of extreme
mental or emotional disturbance, see § 13A-5-51(2), Ala. Code 1975;
(2) that his ability to appreciate the criminality of his conduct or to
conform his conduct to the law was substantially impaired, see §
13A-5-51(6); and (3) that he was acting under extreme duress or the
substantial domination of another person, see § 13A-5-51(5). Ferguson
maintains that, in finding that these mitigating circumstances did not
exist, the trial court improperly applied the standard of legal insanity by
requiring him to “be so impaired as to be legally excusable from any
criminal liability before it would consider giving mitigating effect” to
195
these circumstances. (Ferguson’s brief to this court, p. 11.) He claims
that the trial court’s findings that he knew right from wrong, that he was
not insane, and that he had exercised his own volition in participating in
the crimes showed that the trial court had improperly applied the
standard for an insanity defense when considering the mitigating
circumstances. In addition, he maintains that the trial court’s findings
were “flatly contradicted by the record,” which, he says, further showed
that the trial court applied the wrong standard. We disagree.
In its sentencing order, the trial court made the following findings
regarding these circumstances:
“2. The Capital offense was committed while the
defendant was under the influence of extreme mental or
emotional disturbance. Does Not Exist.
“Although the clinical psychologist testified that the
defendant had a low I.Q., may be mildly retarded, and may
be handicapped mentally, he also testified he did not suffer
from any delusions or was psychotic. He knew right from
wrong and was not insane. He had the ability to make
choices, had a good job, was married, had advanced in his
job, and had opportunities. There was no evidence that the
defendant suffered from any extreme mental or emotional
disturbances.
“. . . .
“5. The defendant acted under extreme duress or
under the substantial domination of another person. Does
Not Exist.
“Although the evidence supports the fact that the
defendant was afraid of being killed by Mark Moore if he
did not follow his instructions, there was no evidence that
Mark Moore verbally had threatened the defendant with
such actions or indicated such result to the defendant other
196
than the defendant’s belief of this. The defendant had a
choice of not being involved in the killing and robbing of
Harold and Joey Pugh. And the people involved in this
met several times before the crime was carried out and
even after the killings the people involved met together.
Mark Moore was not physically present when the
defendant shot Harold and Joey Pugh. In the defendant’s
statement, he at first indicated that Mark Moore was
present, but all the evidence reflects that Mark Moore was
not present at Cane Creek on the day of the occurrence of
the killing of Harold and Joey Pugh. And the defendant
said he lied when he stated Moore was present. The
defendant indicated that he was very much in control of the
events surrounding the killings and he further took part in
the bank robbery later in Mississippi, and during one of the
meetings he confessed he shot and killed Harold and Joey
Pugh. The contention by the defendant that he lacks the
ability to weigh things, his intellect is low, he looked up to
Mark Moore as a leader, relied on other people to get
things done, is found by the Court to be simply an
expression of the defendant’s personality. The evidence
reflects that he was not insane and had a good job, had
advanced in his job, was married, and had other
opportunities. Therefore, the Court finds that said
mitigating circumstance does not apply.
“6. The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired. Does
Not Exist.
“The defendant’s action in or around the time of the
killings indicate that he knew he was committing a criminal
act, he tried to cover up his actions after the murders were
committed.”
(C. 138-39.)
197
Contrary to Ferguson’s contention, merely because the trial court
used the word “insane” in its sentencing order and found that Ferguson
knew right from wrong does not mean that the court applied the standard
of legal insanity to Ferguson’s proffered mitigating evidence. After
reviewing the record and the trial court’s sentencing order, we conclude
that the trial court did not require Ferguson to prove that he was legally
insane in order to show that he was under the influence of an extreme
mental or emotional disturbance, that his ability to appreciate the
criminality of his conduct was substantially impaired, or that he was
under extreme duress or the substantial domination of another person.
The trial court merely found that the evidence presented by Ferguson —
which was, at best, weak and conflicting — was unpersuasive. The trial
court’s findings are amply supported by the evidence.
At the sentencing hearing, Dr. James F. Chudy, a clinical
psychologist hired by Ferguson to evaluate Ferguson for purposes of the
sentencing hearing, testified that Ferguson was functioning in the
borderline range of intelligence, but that he was not mentally retarded.
He stated that this borderline intelligence could possibly impair
Ferguson’s “reasoning in social situations”; that it could affect his
ability to “reason abstractly”; and that it could “diminish to a degree” his
ability to appreciate the consequences of his actions. In addition, Dr.
Chudy diagnosed Ferguson as having a “personality disorder” with
borderline features. Dr. Chudy stated that this disorder could result in
mood swings that could affect Ferguson’s relationships. Dr. Chudy also
stated that Ferguson may have some “transient or brief” psychotic
periods where he is “out of touch with reality.” However, in his written
report, Dr. Chudy stated that Ferguson’s claims of psychotic episodes —
i.e., hearing voices that told him to do things to other people and having
hallucinations of people and objects moving — were “difficult to
substantiate” and that the accuracy of those claims “remains in
question.” Dr. Chudy also stated in his report that there were “no signs
of disturbance in [Ferguson’s] thinking”; that Ferguson was not
psychotic; and that Ferguson’s thinking was merely “illogical.”
198
In rebuttal, the State called Dr. Stephen Rosen,[311] a clinical
psychologist who had examined Ferguson before trial pursuant to a
court order. Dr. Rosen testified that Ferguson was in the borderline
range of intelligence, but that he was not mentally retarded. Dr. Rosen
also testified that he believed Ferguson was malingering during the
testing and that, although the test results showed that Ferguson had an
IQ of 69, Dr. Rosen believed that had Ferguson put forth an effort when
taking the IQ test, he would have scored in the middle to high 70s.
Regarding the crime, Dr. Rosen said, Ferguson first told him that he did
not do it and then said that he was an unwilling participant; by the end
of the evaluation, however, Ferguson was claiming that voices had told
him to commit the crime. Dr. Rosen stated that during the evaluation
Ferguson attempted to give him “the impression that he was more
disturbed than in fact he was” by exaggerating and claiming symptoms
he believed to be signs of a mental disorder — specifically, by claiming
that he heard voices and saw “little green men [who] were laughing and
telling him to do things.” Dr. Rosen, like Dr. Chudy, also diagnosed
Ferguson as having a personality disorder and stated that the disorder
could result in mood swings, antisocial traits, and perhaps some
transient or temporary episodes where Ferguson is “out of touch with
reality.”
“The factual determination of the existence or nonexistence of a
mitigating circumstance is within the sound discretion of the trial judge
where the evidence in that regard is in conflict.” Wesley v. State, 575
So. 2d 108, 121 (Ala. Crim. App. 1989), rev’d on other grounds, 575 So.
2d 127 (Ala.1990). Moreover,
“‘[w]e fully recognize that “[a] factfinder is not bound by
expert testimony ‘even if all of the witnesses are presented
by only one side.’” Ellis v. State, 570 So. 2d 744, 752
(Ala. Cr. App. 1990). “In Alabama, opinion testimony of
an expert witness is binding upon a jury only when such
testimony concerns a subject which is exclusively within
the knowledge of experts and the testimony is
311
The state court opinion wrote that Dr. Rosen’s given name is “Stephen”, but the record
reflects that Dr. Rosen’s given name is “C. Van.”
199
uncontroverted.” Jefferson County v. Sulzby, 468 So. 2d
112, 116 (Ala. 1985). “An expert’s opinion, however, is
not conclusive on the trial court, even though
uncontroverted. See Kroger Co. v. Millsap, 280 Ala. 531,
196 So. 2d 380 (1967). Rather, a trial court must look to
the entire evidence and its own observations in deciding
factual issues.” Williams v. City of Northport, 557 So. 2d
1272, 1273 (Ala. Civ. App. 1989), cert. denied, 498 U.S.
822, 111 S. Ct. 71, 112 L. Ed. 2d 45 (1990). “Merely
because an accused proffers evidence of a mitigating
circumstance does not require the judge or the jury to find
the existence of that fact.” Harrell v. State, 470 So. 2d
1303, 1308 (Ala. Cr. App. 1984), affirmed, 470 So. 2d
1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88
L. Ed. 2d 276 (1985).’”
Perkins v. State, 808 So. 2d 1041, 1137 (Ala. Crim. App. 1999), quoting
Carroll v. State, 599 So. 2d 1253, 1272 (Ala. Crim. App. 1992), aff’d,
627 So. 2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 S. Ct.
1207, 127 L. Ed. 2d 554 (1994).
As to Ferguson’s claim that he was under the influence of an
extreme mental or emotional disturbance and that his ability to
appreciate the criminality of his conduct or to conform his conduct to
the law was substantially impaired, although both Dr. Chudy and Dr.
Rosen diagnosed Ferguson with a personality disorder, neither
concluded that Ferguson was suffering from an extreme mental or
emotional disturbance or that Ferguson’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the law was
substantially impaired, and neither related Ferguson’s general diagnosis
to the events in this case. Both described the disorder as merely causing
“mood swings” that might lead to “possible problems” with his
environment and in his relationships, and both found his claims of
psychotic episodes to be unsubstantiated and questionable. In addition,
although evidence showed that Ferguson had an IQ of 69, there was no
evidence that Ferguson was mentally retarded (See Part XVI.C. of this
opinion, infra), and Dr. Rosen stated that he believed Ferguson
200
purposely attempted to perform poorly on the IQ test and that had
Ferguson put forth an effort, his IQ would have been somewhere in the
middle to high 70s.
Moreover, contrary to Ferguson’s contention that his ability to
appreciate the criminality of his conduct or to conform his conduct to
the law was substantially impaired because he says, he “had been
drinking and smoking marijuana” on the day of the killings, we find that
the trial court’s findings in this regard were amply supported by the
record. “Voluntary intoxication will not constitute the mitigating
circumstance that the defendant’s capacity to appreciate the criminality
of his conduct or to conform his conduct to the requirements of the law
was substantially impaired, where the defendant did not show that he
was so intoxicated as to render himself incapable of appreciating the
criminality of his conduct.” Williams v. State, 710 So. 2d 1276, 1346
(Ala. Crim. App. 1996), aff’d, 710 So. 2d 1350 (Ala 1997), cert. denied,
524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998). Although
there was evidence that Ferguson had been drinking and smoking
marijuana on the day of the murders, there was no evidence that
Ferguson’s level of intoxication was so great that his ability to
appreciate the criminality of his conduct or to conform his conduct to
the law was substantially impaired. Rather, there was ample evidence,
including, as the trial court correctly noted, Ferguson’s attempts to cover
up the crime, to show that Ferguson was not so intoxicated as to
substantially impair his ability to appreciate the criminality of his
conduct or to conform his conduct to the law. Accordingly, the trial
court did not err in not finding that Ferguson was laboring under an
extreme mental or emotional disturbance or that Ferguson’s ability to
appreciate the criminality of his conduct or to conform his conduct to
the law was substantially impaired.
As to Ferguson’s claim that he was under the substantial
domination of Mark Moore when he committed the murders, we
likewise find that the trial court did not err in finding that this
circumstance did not exist. Although both experts testified that
Ferguson was “easily influenced” and Ferguson’s wife, Karen Ferguson,
testified that Ferguson always did what Mark Moore told him to do, as
201
the trial court correctly noted, Moore was not present at the time of the
murders, and there was no evidence, other than Ferguson’s assertion,
that Moore had ever threatened Ferguson. In fact, Mrs. Ferguson
testified that the relationship between Moore and Ferguson was not a
threatening one, but a loving one, like that of a father and son. Thus, the
trial court’s finding that Ferguson was not acting under extreme duress
or under the substantial domination of Mark Moore was amply
supported by the evidence. Thus, the trial court did not err in failing to
find that Ferguson was under extreme duress or the substantial
domination of another person.
....
Ferguson contends that the trial court erred in not finding as a
nonstatutory mitigation circumstance that Ferguson was mentally
retarded. He maintains that there was “substantial evidence” of his
mental retardation which, he says, the trial court ignored by “ma[king]
no mention of this fact or its mitigating value” in its sentencing order.
(Ferguson’s brief to this court, p. 15.)
Initially, we note that the trial court did refer to the evidence of
Ferguson’s low intelligence in several parts of its sentencing order — in
its findings of fact from the sentencing phase of the trial, in reference to
the statutory mitigating circumstances argued by Ferguson, and in
reference to the nonstatutory mitigation offered by Ferguson. As stated
above, although the trial court did not list this circumstance in its
specific findings of nonstatutory mitigating circumstances, “the trial
court is not required to specify in its sentencing order each item of
proposed nonstatutory mitigating evidence offered that it considered and
found not to be mitigating.” Wilson v. State, 777 So. 2d 856, 892 (Ala.
Crim. App. 1999), quoting Williams v. State, 710 So. 2d 1276, 1347
(Ala. Crim. App. 1996), aff’d, 710 So. 2d 1350 (Ala. 1997), cert. denied,
524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998).
Moreover, contrary to Ferguson’s contention, we find no evidence
in the record indicating that Ferguson was mentally retarded. In fact,
both Ferguson’s expert, Dr. Chudy, and the State’s expert, Dr. Rosen,
202
stated unequivocally that Ferguson was not mentally retarded. Although
there was evidence that Ferguson had an IQ of 69 and was in the
borderline range of intelligence, Dr. Rosen testified that the results of
Ferguson’s IQ test were deceptive because, Dr. Rosen said, Ferguson
had purposefully not put an effort into the test in order to appear more
troubled than he really was. Dr. Rosen stated that it was his belief that
had Ferguson made an effort when taking the test, his IQ would have
been in the middle to upper 70s. Clearly, the trial court did not err in not
finding, as a nonstatutory mitigating circumstance, that Ferguson was
mentally retarded.
Ferguson contends that the trial court erred in failing to find that
his “traumatic childhood” was a nonstatutory mitigating circumstance.
He maintains that there was “compelling evidence” that he had had a
difficult relationship with his mother, that he had suffered a severe
emotional trauma as an adolescent when he discovered that the person
he believed to be his father was really his stepfather, that he was
suicidal, and that he “cried often” as a result of his troubled background.
As stated above, “[m]erely because an accused proffers evidence
of a mitigating circumstance does not require the judge or the jury to
find the existence of that fact.” Harrell v. State, 470 So. 2d 1303, 1308
(Ala. Crim. App. 1984), aff’d, 470 So.2d 1309 (Ala.), cert. denied, 474
U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). Although there was
evidence that Ferguson may have had a difficult childhood, there was
also testimony that Ferguson’s difficult life was made more difficult by
his own actions and that the allegedly “significant emotional trauma” of
finding out that his father was really his stepfather was not, as he
claimed, “a full scale trauma.” Accordingly, the trial court did not err
in finding that Ferguson’s “problems during his childhood [were] not a
mitigating factor.” (C. 140.)
....
Because it is clear from a review of the entire record that the trial
court understood its duty to consider all the evidence presented by
203
Ferguson in mitigation, that the trial court did, in fact, consider all the
evidence presented by Ferguson, and that the trial court’s findings are
supported by the evidence, we find no error in the trial court’s findings
regarding the statutory and nonstatutory mitigating circumstances.
Ferguson v. State, 814 So. 2d 925, 959-67 (Ala. Crim. App. 2000) (alterations in
original, footnote supplied).
Ferguson dedicates his habeas petition to allegations that the trial judge’s
sentencing order reflects that he ignored undisputed (i.e., unrebutted) evidence
supporting the mitigating circumstance advocated by Ferguson.312
While he
acknowledges the opinion of the Alabama Court of Criminal Appeals for the first
time in the reply brief filed in this court, he erroneously argues that the intermediate
state appellate court simply adopted the trial court’s order without adjudicating his
claim on the merits.313 Ferguson never acknowledges the Alabama Supreme Court’s
affirmation of the intermediate appellate court’s decision. See Ex parte Ferguson,
814 So. 2d 970, 975-79 (Ala. 2001).
Thus, none of Ferguson’s habeas pleadings and argument focus upon the
historic factual findings made by the Alabama Court of Criminal Appeals as part of
its independent examination of the record, or the Alabama Supreme Court’s
affirmation of those findings.
312
Doc. no. 9, at 63-73.
313
Doc. no. 15, at 16.
204
As a result, Ferguson has not disputed the factual and legal findings made by
the Alabama Court of Criminal Appeals, and then affirmed by the Alabama Supreme
Court, much less argued that those findings were unreasonable in light of the
evidence before the state courts. Ferguson also has not offered clear and convincing
evidence to overcome the presumption of correctness owed to those findings.314 The
same findings show that it was not unreasonable for the state appellate courts to
affirm the trial judge’s sentencing order, on the ground that he had properly
considered the categories of statutory and non-statutory mitigating evidence, but
concluded that the evidence supporting each category was weak and conflicting. In
short, “even if ‘[r]easonable minds reviewing the record might disagree’ about the
finding in question, ‘on habeas review that does not suffice to supersede the trial
court’s . . . determination.” Wood v. Allen, 558 U.S. 290, 301 (2010) (quoting Rice
v. Collins, 546 U.S. 333, 341-42 (2006)) (alteration in original).
Further, the verb “consider” is not synonymous with “accept.” There are
important semantical and legal distinctions between “consideration” of evidence that
314
Even if this court were to take into account Ferguson’s allegations that the intermediate
state appellate court made the same errors as the trial court (i.e., both courts failed to consider
“undisputed,” or “unrefuted,” evidence of the mitigating evidence at issue), he still would not be
entitled to relief. The historic factual findings made by the trial court and the state appellate court’s
independent findings are accurate. It was not unreasonable for the state court to find that these facts
revealed conflicting evidence regarding each mitigating factor at issue and/or that the evidence
offered in support of the factors was weak.
205
is offered as a basis for a sentence less than death, and “acceptance” of that evidence:
a term here used in the sense of finding that the evidence proffered in mitigation of
sentence establishes, or proves the “existence of” the factual proposition for which
it is offered. Acceptance “is not constitutionally required; the Constitution only
requires that the sentencer consider the factors.” Atkins v. Singletary, 965 F.2d 952,
962 (11th Cir. 1992) (emphasis in original).315
Ferguson also does not deny that the Alabama Court of Criminal Appeals
correctly identified the Supreme Court’s seminal decision in Lockett v. Ohio, 438 U.S.
586 (1978), and its progeny, which require only that sentencing authorities not be
precluded by law from “considering” a broad range of evidence offered by a
defendant as a basis for a sentence less than death. See id. at 604 (“[T]he Eighth and
Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
315
The full context of the statement from Atkins that is quoted in text reads as follows:
Although Atkins argues that the trial judge did not consider non-statutory
factors, it is more correct to say that the trial judge did not accept — that is, give
much weight to — [petitioner’s] nonstatutory mitigating factors. Acceptance of
nonstatutory mitigating factors is not constitutionally required; the Constitution only
requires that the sentencer consider the factors.
Atkins, 965 F.2d at 962 (alteration supplied, emphasis in original) (citing Blystone v. Pennsylvania,
494 U.S. 299, 308, (1990)).
206
defendant proffers as a basis for a sentence less than death.”) (italics in original,
boldface emphasis added, footnotes omitted, alteration supplied); see also, e.g.,
Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (reiterating that Lockett held only
that “the sentencer in capital cases must be permitted to consider any relevant
mitigating factor”) (emphasis supplied).316
Neither Lockett nor its progeny says anything about “acceptance” of evidence
offered in mitigation of the sentence to be imposed, in the sense of finding that the
evidence establishes, or proves, the “existence” of the factual proposition for which
it is offered. See, e.g., Schwab v. Crosby, 451 F.3d 1308, 1329 (11th Cir. 2006) (“The
Constitution requires that the sentencer be allowed to consider and give effect to
evidence offered in mitigation, but it does not dictate the effect that must be given
once the evidence is considered; it does not require the sentencer to conclude that a
particular fact is mitigating or to give it any particular weight.”) (emphasis supplied).
In summary, all that the Constitution requires is “a full hearing,” at which
“defense counsel is given a fair opportunity to present mitigating evidence”; and,
when that is done, federal habeas review “becomes highly deferential.” Atkins, 965
F.2d at 962 (citing Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984)). In
316
Eddings also added this consideration: “Just as the State may not by statute preclude the
sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as
a matter of law, any relevant mitigating evidence.” Id. at 113-14 (emphasis in original).
207
other words, the state trial judge’s “findings on mitigating factors are presumed to be
correct, and will be upheld if they are supported by the record.” Id. (citing 28 U.S.C.
§ 2254(d), and Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir. 1986)).
Ferguson received a full hearing at which his defense attorneys had a fair
opportunity to present mitigating evidence. The language in the opinion of the
Alabama Court of Criminal Appeals affirming the trial judge’s sentencing order
satisfies this court that Ferguson’s evidence, as it bore upon both statutory and nonstatutory mitigating circumstances, was considered. This court is equally satisfied
with the Alabama Supreme Court’s analysis of the intermediate state appellate court’s
factual and legal findings regarding that evidence. Ultimately, the state courts did
not accept Ferguson’s argument that such evidence was mitigating when weighed
against the aggravating circumstances of the case, but those courts were not
constitutionally required to do so. The state courts’ findings are supported by the
record.
When, as in this case, it is shown that “a full hearing has been held in which
the defense counsel is given a fair opportunity to present mitigating evidence, [federal
habeas] review becomes highly deferential.” Atkins, 965 F.2d at 962 (citing Palmes,
725 F.2d at 1523 (alteration supplied). The Eleventh Circuit’s decision in Schwab,
supra, made that quite clear when holding that,
208
while sentencing courts may not refuse to consider evidence offered in
mitigation, they need not decide that the facts established by that
evidence have mitigating force in the context of the case. The
Constitution requires that the sentencer be allowed to consider and give
effect to evidence offered in mitigation, but it does not dictate the effect
that must be given once the evidence is considered; it does not require
the sentencer to conclude that a particular fact is mitigating or to give
it any particular weight.
451 F.3d at 1329 (emphasis supplied). See also Harich v. Wainwright, 813 F.2d
1082, 1101 (11th Cir. 1987) (observing that the Supreme Court’s decisions in Skipper
v. South Carolina, 476 U.S. 1 (1986), Eddings v. Oklahoma, 455 U.S. 104 (1982),
and Lockett v. Ohio, 428 U.S. 586 (1978), require only “that the defendant be allowed
to present all relevant mitigating evidence to the sentencing jury or court . . . . These
cases do not require that the sentencing body accept the conclusion that the evidence
constitutes a mitigating circumstance or that the mitigating circumstances outweigh
the aggravating circumstances.”) (emphasis supplied), adopted in relevant part sub
nom. Harich v. Dugger, 844 F.2d 1464, 1468-69 (1988) (en banc), partially
abrogated on other grounds by Davis v. Singletary, 119 F.3d 1471, 1481-82 (11th
Cir. 1997).
For the foregoing reasons, Ferguson cannot show that he is entitled to either
an evidentiary hearing in this court, or habeas relief from the state court’s rejection
of this claim on the merits. The claim is due to be denied.
209
H.
Execution by Lethal Injection Constitutes Cruel and Unusual
Punishment.317
Ferguson contends that his “execution by lethal injection would constitute cruel
and unusual punishment.”318 He describes Alabama’s lethal injection protocol as
consisting of “a three drug cocktail including sodium thiopental, a barbituate to
induce unconsciousness, pancuronium bromide or pavulon to induce paralysis, and
potassium chloride to stop the heart.”319
He complains that sodium thiopental “presents a significant risk of inflicting
pain that is inconsistent with the Eighth Amendment.”320 Ferguson explains that,
while sodium thiopental is used to induce unconsciousness and, therefore, prevent a
condemned person from experiencing the pain associated with the administration of
the remaining drugs, it “often acts as an ultra-short barbituate and may wear off and
lead to consciousness and an excruciatingly painful death” by suffocation and cardiac
arrest while the condemned is “in a paralytic state.”321 He also complains that “the
method of administration of the lethal injection is also unconstitutionally flawed
[because t]he personnel . . . are often unqualified [to administer sodium
317
See doc. no. 9, ¶¶ 138-142, at 73-75 (petition); doc. no. 15, ¶¶ 31-40, at 16-21 (reply
318
Doc. no. 9, at 73.
319
Id., at 74-75 (alteration supplied).
320
Id. at 74.
321
Id.
brief).
210
thiopental].”322
The basic premise of Ferguson’s argument is flawed, however, because
Alabama no longer uses sodium thiopental as one of the three drugs administered in
every execution. As explained by the Eleventh Circuit in Powell (Williams) v.
Thomas, 641 F.3d 1255 (11th Cir. 2011):
In late April [2011], the Alabama Department of Corrections . . .
announced plans to alter its lethal injection protocal for Williams’
execution. Specifically, it would be replacing the first drug in its lethal
injection protocol — sodium thiopental — with another anesthetic —
pentobarbital. That decision resulted from a heavily publicized,
nationwide shortage of sodium thiopental. Alabama . . . selected
pentobarbital as a replacement to ensure that it could continue to carry
out executions regardless of sodium thiopental’s availability.
Id. at 1256 (alterations supplied).
Respondent also contends that “[t]his ground for relief is not appropriately
within this Court’s habeas jurisdiction.”323 Respondent states that, “[i]n Hill v.
McDonough, 547 U.S. 573, 579-83, . . . (2006), the United States Supreme Court held
that manner of execution claims of the sort raised by Ferguson are properly addressed
in a proceeding brought under 42 U.S.C. § 1983.”324 Respondent does not explain
what is meant by his use of the phrase “of the sort raised by Ferguson.”
322
Id. at 74-75 (alterations supplied).
323
Doc. no. 12, at 59 (alteration supplied).
324
Id. (alteration and emphasis supplied).
211
Ferguson counters that neither the Hill opinion, nor its predecessor, Nelson v.
Campbell, 541 U.S. 637 (2004), supports “Respondent’s position.”325 Instead, he
asserts that those opinions support his contention that this claim sounds in habeas,
because “he is challenging the use of lethal injection as a general matter.”326 He
points to the following sentence from his petition as proof: “‘Alabama’s method of
execution by lethal injection violates constitutional standards.’”327
The question of whether an Eighth Amendment lethal injection claim is
properly considered in an action under 42 U.S.C. § 1983, or in the context of a 28
U.S.C. § 2254 habeas appeal, was addressed by the Supreme Court in Nelson v.
Campbell, 541 U.S. 637 (2004), and its progeny, Hill v. McDonough, 547 U.S. 573
(2006). In Nelson, the Court avoided “the difficult question of how to categorize
method-of-execution claims generally,” because the state conceded at oral argument
that § 1983 was “an appropriate vehicle” in that particular case, inasmuch as the
petitioner was challenging whether a pre-execution vein cut-down procedure,
instituted to enable prison officials to administer the three drug protocol, constituted
deliberate indifference. Nelson, 541 U.S. at 644. Nonetheless, the Nelson Court did
ponder the question, and suggested that a method-of-execution civil rights suit “does
325
Doc. no. 15, at 17.
326
Id. at 18 (emphasis supplied).
327
Id. (quoting doc. no. 9, at 74).
212
not directly call into question the ‘fact’ or ‘validity’ of the sentence itself — by
simply altering its method of execution, the State can go forward with the sentence.”
Id. On the other hand, “a constitutional challenge seeking to permanently enjoin the
use of lethal injection may amount to a challenge to the fact of the sentence itself,
[thus sounding in habeas].” Id.
Two years later, in Hill v. McDonough, the Supreme Court adopted a similar
approach. In that case, the petitioner challenged the constitutionality of a three-drug
protocol utilized by the State of Florida. Hill, 547 U.S. at 576. The petitioner
alleged that the first drug injected, sodium pentothal, would not be a
sufficient anesthetic to render painless the administration of the second
and third drugs, pancuronium bromide and potassium chloride. There
was an ensuing risk, Hill alleged, that he would remain conscious and
suffer severe pain as the pancuronium paralyzed his lungs and body and
the potassium chloride caused muscle cramping and a fatal heart attack.
. . . The complaint sought an injunction “barring the defendants from
executing Plaintiff in the manner they currently intend.”
Id. at 578 (citations omitted). Hill also conceded that “‘other methods of lethal
injection the Department could choose to use would be constitutional[.]’” Id. at 580
(alteration supplied, citation omitted).
In determining whether Hill’s lawsuit could proceed as a § 1983 action, or must
be considered in a habeas appeal, the Court looked to the cases of Heck v. Humphrey,
512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997), as relevant
213
precedent for answering the question of “whether a grant of relief to the inmate would
necessarily bar the execution”? Hill, 574 U.S. at 583.
In those cases the question is whether “the nature of the challenge to the
procedures could be such as necessarily to imply the invalidity of the
confinement or sentence. Balisok, supra, at 645, 124 S. Ct. 2117. . . .
[T]he injunction Hill seeks would not necessarily foreclose the State
from implementing the lethal injection sentence under present law, and
thus it could not be said that the suit seeks to establish “unlawfulness
[that] would render a conviction or sentence invalid.” Heck, supra, at
486, 114 S. Ct. 2364. Any incidental delay caused by allowing Hill to
file suit does not cast on his sentence the kind of negative legal
implication that would require him to proceed in a habeas action.
Hill, 547 U.S. at 583 (first alteration supplied, other alterations in original).
Ferguson asserts that his claim is appropriate for habeas review because,
“[u]nlike Hill, he is challenging the use of lethal injection as a general matter.”328
This court finds that Ferguson’s attack on one drug out of the three-drug protocol, and
the potential for negligent administration, fits most neatly within the context of a suit
under 42 U.S.C. § 1983.
If that is a correct characterization of his claim, this court lacks jurisdiction to
entertain it, because “[a] § 1983 lawsuit, not a habeas proceeding, is the proper way
to challenge lethal injection procedures.” Thompkins v. Secretary, Department. of
Corrections, 557 F.3d 1257, 1261 (11th Cir. 2009) (emphasis supplied) (citing Hill,
328
Doc. no. 15, at 18.
214
547 U.S. 573 at 579-83).
On the other hand, the absence of a request for injunctive relief, and the
absence of a concession that the State could constitutionally implement its lethal
injection protocol by other means, hints at a more permanent attack, which
necessarily sounds in habeas. To the extent that Ferguson’s claim may properly
sound in habeas, it is procedurally defaulted. Alabama implemented lethal injection
as a form of execution on July 1, 2002, approximately four months after Ferguson’s
conviction became final on direct review. See Ala. Code § 15-18-82.1; Ferguson v.
Alabama, 535 U.S. 907 (2002). Ferguson filed his pro se Rule 32 petition on
February 24, 2003;329 and, even though he was represented soon thereafter by two
post-conviction attorneys, he never raised this claim during the three and one-half
years his Rule 32 petition was litigated in the state trial court and on collateral appeal.
Any attempt to raise such a claim now by means of a subsequent Rule 32 petition
would be futile, as it would be deemed barred under applicable Alabama procedural
rules governing post-conviction proceedings. Accordingly, the claim is procedurally
defaulted for purposes of federal habeas review, and it is due to be dismissed.
Even if the claim were not procedurally defaulted, however, it is without merit.
The Supreme Court affirmed the denial of an action brought by a death row inmate
329
Rule 32 C.R. Vol. 12, Tab. 40, at 4-144.
215
claiming that Kentucky’s use of a three-drug lethal injection protocol consisting of
sodium thiopental, pancuronium bromide, and potassium chloride posed an
unacceptable risk of significant pain and, therefore, constituted cruel and unusual
punishment under the Eighth Amendment, in Baze v. Rees, 533 U.S. 355 (2008). The
prisoner was not arguing that Kentucky’s lethal injection scheme as properly
performed was unconstitutional, but that the risk of improperly administering the
lethal drugs used in the scheme was constitutionally unacceptable. Id. at 49. Even
so, the Court held that, “[s]imply because an execution method may result in pain,
either by accident or as an inescapable consequence of death, does not establish the
sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Id.
at 50 (alteration supplied). The Court also noted that thirty states (including
Alabama), as well as the federal government, used the same three-drug protocol, and
that the combination was believed to be “the most humane available.” Id. at 53.
In short, the specific three-drug protocol attacked by Ferguson is the same
combination that was addressed in Baze. Moreover, in that case, the Supreme Court
noted that Alabama had adopted even more stringent safeguards than Kentucky to
ensure that an inmate is indeed unconscious after the administration of sodium
thiopental. “In Alabama, a member of the execution team ‘begin[s] by saying the
condemned inmate’s name. If there is no response, the team member will gently
216
stroke the condemned inmate’s eyelashes. If there is no response, the team member
will then pinch the condemned inmate’s arm.’”
Baze, 553 U.S. at 119-120
(alterations supplied).
These checks provide a degree of assurance . . . that the first drug has
been properly administered. They are simple and essentially costless to
employ, yet work to lower the risk that the inmate will be subjected to
the agony of conscious suffocation caused by pancuronium bromide and
the searing pain caused by potassium chloride.
Id. at 121.
Furthermore, in Wellons v. Hall, 554 F.3d 923 (2009), the Eleventh Circuit
examined a Georgia petitioner’s habeas claims that challenged
the constitutionality of Georgia’s use of the three-drug protocol method
of execution by lethal injection. He argues that the three-drug protocol
violates the Eighth Amendment’s prohibition against cruel and unusual
punishment and that the district court erred in denying an evidentiary
hearing on his Eighth Amendment claim. Both of these claims have
been foreclosed by Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.
Ed. 2d 420 (2008), in which the United States Supreme Court upheld a
similar three-drug lethal injection protocol as not constituting cruel and
unusual punishment under the Eighth Amendment.
Wellons, 554 F.3d at 942.
Since the three-drug protocol Ferguson complains about in his petition is
identical to the method approved in Baze v. Rees, it follows that, pursuant to Baze and
Wellons, Ferguson’s constitutional claim is without merit.
217
Moreover, as previously noted, Alabama no longer utilizes sodium thiopental
in its three-drug protocol, and the Eleventh Circuit found that its replacement,
pentobarbital, does not violate the Eighth Amendment. Powell (Williams) v. Thomas,
641 F.3d 1255, 1258 (“The replacement of sodium thiopental with pentobarbital does
not constitute a significant alteration in the ADOC’s lethal injection protocol, and we
conclude that such an amendment does not violate the Eighth Amendment under the
cases cited by Williams.”). See also, Mann v. Palmer, 713 F.3d 1306, 1313-1314
(11th Cir. 2011) (relying on Baze v. Rees and Powell to affirm the district court’s
dismissal of Mann’s civil rights complaint that the use of pentobarbital in Florida’s
three drug protocol violated the Eighth Amendment).
In summary, to the extent that this claim is beyond the scope of federal habeas
review, it is due to be dismissed. To the extent it sounds in habeas, it is procedurally
defaulted. In the alternative, it ultimately is without merit and due to be denied.
VI. CONCLUSION
All claims in Ferguson’s petition for writ of habeas corpus are due to be
dismissed or denied. All requests for an evidentiary hearing also are due to be
denied. An appropriate order consistent with this memorandum opinion will be
entered contemporaneously herewith.
218
DONE this 21st day of July, 2014.
______________________________
United States District Judge
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