Ferguson v. Allen

Filing 19

MEMORANDUM OPINION that the 18 MOTION to Alter Judgment is GRANTED in part and DENIED in part; it is ORDERED that Part V.F. of this court's prior memorandum opinion addressing the claim that Ferguson Was Improperly Denied a Hearing on His M ental Capacity Under Atkins v. Virginia is, RESCINDED, VACATED, and held for NAUGHT; attorney's for petitioner, are ORDERED to inform this court and opposing counsel, by close of business 7/19/2017, of the date upon which they reasonably anticip ate being prepared to proceed to an evidentiary hearing on petitioner's assertion that he is categorically excluded from eligibility for the imposition of the death penalty as a result of intellectual disability; Respondent must file a response by 7/26/2017; in all other respects, it is ORDERED that petitioner's motion to alter or amend this court's previous judgment is OVERRULED and DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/27/2017. (AHI)

FILED
2017 Jun-27 AM 10:52
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.
)

CASE NO. 3:09-cv-0138-CLS-JEO

MEMORANDUM OPINION ON PETITIONER’S
RULE 59(e) MOTION
This action is before the court on the motion filed by petitioner, Thomas Dale
Ferguson, pursuant to Federal Rule of Civil Procedure 59(e), and asking the court to
reconsider, and to alter, amend, or vacate the judgment denying habeas corpus relief
from his state court convictions and death sentences. Doc. no. 18 (Motion to Alter
or Amend Judgment).1
The facts leading to petitioner’s convictions and sentences, as well as the
procedural history of his case, were described in this court’s previous memorandum
opinion (see doc. no. 16 (Memorandum Opinion), at 6-18) and will not be reiterated
here, except to state that petitioner
1

See also doc. nos. 16 (Memorandum Opinion) and 17 (Final Judgment).
1

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.
Ferguson v. State, 814 So. 2d 925, 933 (Ala. Crim. App. 2000) (alteration supplied).
Petitioner’s present motion contends, among other things, that this court
erroneously “examined the state courts’ rejection of [his] Atkins claim using preAtkins evidence,” and, “failed to consider the Supreme Court’s decision in Hall v.
Florida, 134 S. Ct. 1986 (2014).” Doc. no. 18 (Motion to Alter or Amend Judgment),
at 2 (alteration supplied); see also id. at 11-24.
I. STANDARDS OF REVIEW
Even though the sole sentence of Federal Rule of Civil Procedure 59(e)
specifically mentions only an alteration or amendment of a prior judgment,2 it “has
been interpreted as permitting a motion to vacate a judgment rather than merely
amend it.” 11 Wright, Miller & Kane, Federal Practice and Procedure § 2810.1, at
2

“A motion to alter or amend a judgment must be filed no later than 28 days after the entry
of the judgment.” Fed. R. Civ. P. 59(e).
2

150 & n.1 (2012). The decision of whether to grant such a motion is committed to
the sound discretion of the district court. See, e.g., American Home Assurance Co.
v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985).
Generally speaking, however, “[t]he only grounds for granting [a Rule 59(e)] motion
are newly-discovered evidence or manifest errors of law or fact.” United States v.
Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (quoting Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007) (per curiam) (alterations supplied)). The Rule may “not
be used to relitigate old matters or to present arguments or evidence that could have
been raised prior to judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (quoting Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d
757, 763 (11th Cir. 2005)). Moreover, a judgment should not be altered, amended,
or vacated “if it would serve no useful purpose.” 11 Wright, Miller & Kane, supra
at 171 & n.24.
II. SUMMARY OF BINDING PRECEDENT
The Supreme Court’s 2002 opinion in Atkins v. Virginia held that “death is not
a suitable punishment for a mentally retarded criminal.” 536 U.S. 304, 321 (2002).3
3

Prior to June 20, 2002 (the date on which Atkins was decided), the Supreme Court’s opinion
in Penry v. Lynaugh, 492 U.S. 302 (1989), provided the rule of decision in capital cases involving
mentally retarded defendants. Penry held that the execution of such individuals did not categorically
violate the Eighth Amendment’s prohibition against cruel and unusual punishment, provided jurors
had been instructed that they could consider, and give mitigating effect to, evidence of a defendant’s
mental retardation when determining the sentence to be imposed. See id. at 328 (O’Connor, J., Part
3

That landmark holding was based upon the Court’s conclusion that deficits in the
areas of “reasoning, judgment, and control of their impulses” did not allow “mentally
retarded criminals” to act with “the level of moral culpability that characterizes the
the most serious adult criminal conduct.” Id. at 306.4 Accordingly, the Court was
III (majority opinion)) (Justices Brennan, Marshall, Blackmun, and Stevens joined Justice O’Connor
in Part III of the Penry opinion, thereby constituting a majority of the Court). The Penry judgment
was based, at least in part, on Justice O’Connor’s observation that there then was “insufficient
evidence” of “a national consensus against execution of the mentally retarded.” Id. at 340
(O’Connor, J., Part IV-C of opinion). Justice O’Connor spoke only for herself in Part IV-C of the
Penry opinion. Four Justices (i.e., Brennan, Marshall, Stevens and Blackmun) would have
concluded that the execution of mentally retarded persons violated the Eighth Amendment. See id.
at 343–50.
At the time Justice O’Connor wrote, however, only Congress and two states (Georgia and
Maryland) had enacted legislation proscribing the execution of mentally retarded defendants. Even
so, just such a consensus evolved during the thirteen years following the Penry decision. Eighteen
states enacted legislation expressly providing that a sentence of death could not be carried out upon
mentally retarded persons. That number did not count the statutory prohibitions on the execution
of mentally retarded persons that had been enacted by Georgia, Maryland, and the United States
Congress prior to the Penry decision, nor the fourteen states that had rejected capital punishment
altogether. The weight of that evolving national consensus, together with the consistency of the
direction of change, persuaded a majority of the members of the Supreme Court to abrogate Penry,
and to hold in that the execution of mentally retarded defendants categorically violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. See Atkins v. Virginia, 536 U.S.
304, 313-17 (2002).
4

Specifically, Justice Stevens’s opinion for the Court’s majority stated that:

Those mentally retarded persons who meet the law’s requirements for
criminal responsibility should be tried and punished when they commit crimes.
Because of their disabilities in areas of reasoning, judgment, and control of their
impulses, however, they do not act with the level of moral culpability that
characterizes the most serious adult criminal conduct. Moreover, their impairments
can jeopardize the reliability and fairness of capital proceedings against mentally
retarded defendants. Presumably for these reasons, in the 13 years since we decided
Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), the
American public, legislators, scholars, and judges have deliberated over the question
whether the death penalty should ever be imposed on a mentally retarded criminal.
The consensus reflected in those deliberations informs our answer to the question
presented by this case: whether such executions are “cruel and unusual punishments”
4

not persuaded that the execution of mentally retarded criminals will
measurably advance the deterrent or the retributive purpose of the death
penalty. Construing and applying the Eighth Amendment in the light of
our evolving standards of decency, we therefore conclude that such
punishment is excessive and that the Constitution places a substantive
restriction on the State’s power to take the life of a mentally retarded
offender.
Id. at 321 (citation and internal quotation marks omitted).5 That holding constituted
“a new, substantive rule of constitutional law” and, for that reason, it was “made
retroactive to cases on collateral review” on the date of the Atkins decision: June 20,
2002. In re Holladay, 331 F.3d 1169, 1172 (11th Cir. 2003).6
Even so, the Atkins opinion “did not provide definitive procedural or
substantive guides for determining when a person who claims mental retardation” fell
prohibited by the Eighth Amendment to the Federal Constitution.
Atkins, 536 U.S. at 306-307 (emphasis supplied).
5

The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court has stated that
“[t]he basic concept underlying the Eighth Amendment is nothing less that the dignity of man”;
consequently, the “Amendment must draw its menaing from the evolving standards of decency that
mark the progress of a maturing society.” Atkins, 536 U.S. at 311-12 (quoting Trop v. Dulles, 356
U.S. 86, 100-101 (1958)) (alterations supplied); see also Roper v. Simmons, 543 U.S. 551, 572
(2005) (“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms
the duty of government to respect the dignity of all persons.”).
6

See also Penry v. Lynaugh, 492 U.S. at 330 (stating that, “if we held, as a substantive
matter, that the Eighth Amendment prohibits the execution of mentally retarded persons . . .
regardless of the procedures followed, such a rule would fall under the first exception to the general
rule of non-retroactivity [discussed in Teague v. Lane, 489 U.S. 288, 301 (1989),] and would be
applicable to defendants on collateral review”) (O’Connor, J., unanimous opinion) (alteration
supplied)); In re Hill, 437 F.3d 1080, 1082 (11th Cir. 2006) (holding that the new rule of
constitutional law announced in Atkins “meets the requirement of 28 U.S.C. § 2244(b)(2)(A)” and,
therefore, is retroactive to cases on collateral review); In re Hicks, 375 F.3d 1237, 1239 (11th Cir.
2004) (same).
5

within the protection of the Eighth Amendment, as applied to the states through the
Fourteenth Amendment. Bobby v. Bies, 556 U.S. 825, 831 (2009).7 Instead, Atkins
left to the states “the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317 (quoting
Ford v. Wainwright, 477 U.S. 399, 405 (1986) (addressing the execution of insane
persons)). In doing so, Atkins pointed to the following clinical standards:8
The American Association on Mental Retardation [now known as
the “American Association on Intellectual and Developmental
Disabilities” (AAIDD)9] 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).

7

The Eighth Amendment’s Cruel and Unusual Punishment Clause was incorporated into the
Fourteenth Amendment’s Due Process of Law Clause and, thereby, applied to the states by the
Supreme Court’s opinion in Robinson v. California, 370 U.S. 660 (1962); see also Harmelin v.
Michigan, 501 U.S. 957 (1991); Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); 2 Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law – Substance and Procedure § 15.6(b), at 858-59 & n.38 (5th
ed. 2012); Erwin Chemerinsky, Constitutional Law: Principles and Policies § 6.3.3, at 504 & n.88
(3rd ed. 2006).
8

See Atkins, 536 U.S. at 317 n. 22 (“The [various state] statutory definitions of mental
retardation are not identical, but generally conform to the clinical definitions set forth in n. 3,
supra.”) (alteration supplied).
9

The name of the American Association on Mental Retardation was changed in 2007. See,
e.g., https://en.wikipedia.org/wiki/American Association on Intellectual and Developmental
Disabilities.
6

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 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 (alteration and footnote supplied, emphasis in original).
As the Court observed, each of the foregoing clinical definitions required
not only subaverage intellectual functioning, but also significant
limitations in adaptive skills such as communication, self-care, and
self-direction that became manifest before age 18. Mentally retarded
persons frequently know the difference between right and wrong and are
competent to stand trial. Because of their impairments, however, by
definition they have diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and to
understand the reactions of others. There is no evidence that they are
more likely to engage in criminal conduct than others, but there is
abundant evidence that they often act on impulse rather than pursuant to
a premeditated plan, and that in group settings they are followers rather
than leaders. Their deficiencies do not warrant an exemption from
criminal sanctions, but they do diminish their personal culpability.
Id. at 318 (footnotes omitted).
A.

A Change in Diagnostic Terminology
7

Within five years after the Atkins opinion, however, the clinical standards used
by psychiatrists, psychologists, and other mental-health-care professionals to
diagnose and classify persons who fit the definitional constructs quoted above shifted
away from the use of such terms as “mental retardation” and “mentally retarded
individuals.” Relevant health-health professionals now prefer the labels “intellectual
disability” and “intellectually disabled individuals.” See, e.g., “Rosa’s Law,” Pub.
L. No. 111-256, 124 Stat. 2643 (2010).10 The transition in terminology was discussed
in an influential article authored in 2007 by the members of the AAIDD’s Committee
on Terminology and Classification, who observed that the understanding lying at the
heart of the shift in terminology was
the understanding that this term [“intellectual disability”] covers the
same population of individuals who were diagnosed previously with
mental retardation in number, kind, level, type, and duration of the
disability and the need of people with this disability for individualized
services and supports. Furthermore, every individual who is or was
eligible for a diagnosis of mental retardation is eligible for a diagnosis
of intellectual disability.
Schalock et al., The Renaming of Mental Retardation: Understanding the Change
10

Rosa’s Law amended ten federal statutes — i.e., the Higher Education Act of 1965, the
Elementary and Secondary Education Act of 1965, the Rehabilitation Act of 1973, the Health
Research and Health Services Amendments of 1976, the Public Health Service Act, the Health
Professions Education Partnerships Act of 1998, the National Sickle Cell Anemia, Cooley’s Anemia,
Tay-Sachs, and Genetic Diseases Act, the Genetic Information Nondiscrimination Act of 2008, and
Public Law 110-154 — by striking any references to such terms as “mental retardation” and
“mentally retarded individuals,” and substituting the terms “intellectual disability” and “an individual
with an intellectual disability,” respectively. See Pub. L. No. 111-256, 124 Stat. 2643 (2010).
8

to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116
(2007) (alteration supplied); see also id. at 120 (same).11
B.

The Supreme Court’s Opinion in Hall v. Florida
The shift in diagnostic terminology was legally noted in the Supreme Court’s

May 27, 2014 opinion in Hall v. Florida, – U.S. –, 134 S. Ct. 1986 (2014), which
observed that the change had been approved and used in the fifth edition of the
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (“DSM-5”): “one of the basic texts used by psychiatrists and other
experts” in the field. Id. at 1990. Hall’s significance does not lie solely in its
recognition of the shift in diagnostic nomenclature, however, but in those portions of
the opinion emphasizing that the statistical fact of a “standard error of measurement”
negates the argument that an IQ score of 70 is a bright-line cutoff for determining
when a capital defendant is “intellectually disabled,” as well as in those passages
stressing that lower courts should consider all evidence pertinent to a defendant’s
assertion of an intellectual disability, including assessments of any deficits in the
defendant’s adaptive functioning abilities.12
11

The opinion in Hall v. Florida, 134 S. Ct. 1986 (2014), recognized that the change in
terminology from “mental retardation” to “intellectual disability” was “approved and used in the
latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts
used by psychiatrists and other experts.” Id. at 1990 (citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013)).
12

The amicus brief of the American Psychiatric Association stated: “the relevant clinical
9

1.

The “standard error of measurement”

The Supreme Court’s opinion in Hall v. Florida observes that:
The professionals who design, administer, and interpret IQ tests
have agreed, for years now, that IQ test scores should be read not as a
single fixed number but as a range. See D. Wechsler, The Measurement
of Adult Intelligence 133 (3d ed. 1944) (reporting the range of error on
an early IQ test). Each IQ test has a “standard error of measurement,”
ibid., often referred to by the abbreviation “SEM.” A test’s SEM is a
statistical fact, a reflection of the inherent imprecision of the test itself.
See R. Furr & V. Bacharach, Psychometrics 118 (2d ed. 2014)
(identifying the SEM as “one of the most important concepts in
measurement theory”). An individual’s IQ test score on any given exam
may fluctuate for a variety of reasons. These include the test-taker’s
health; practice from earlier tests; the environment or location of the
test; the examiner’s demeanor; the subjective judgment involved in
scoring certain questions on the exam; and simple lucky guessing. See
American Association on Intellectual and Developmental Disabilities,
R. Schalock et al., User’s Guide To Accompany the 11th Edition of
Intellectual Disability: Definition, Classification, and Systems of
Supports 22 (2012) (hereinafter AAIDD Manual); A. Kaufman, IQ
Testing 101, pp. 138–139 (2009).
The SEM reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score. For
purposes of most IQ tests, the SEM means that an individual’s score is
best understood as a range of scores on either side of the recorded
score. The SEM allows clinicians to calculate a range within which one
may say an individual’s true IQ score lies. See APA Brief 23 (“SEM is
a unit of measurement: 1 SEM equates to a confidence of 68% that the
authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with
intellectual disability if significant limitations in adaptive functioning also exist.” Hall v. Florida,
134 S. Ct. 1986, 1995-96 (2014) (quoting APA Brief at 15-15); see also id. at 1995 (“[A] person
with an IQ score above 70 may have such severe adaptive behavior problems . . . that the person’s
actual functioning is comparable to that of individuals with a lower IQ score”) (quoting DSM-5, at
37)).
10

measured score falls within a given score range, while 2 SEM provides
a 95% confidence level that the measured score is within a broader
range”). A score of 71, for instance, is generally considered to reflect
a range between 66 and 76 with 95% confidence and a range of 68.5 and
73.5 with a 68% confidence. See DSM–5, at 37 (“Individuals with
intellectual disability have scores of approximately two standard
deviations or more below the population mean, including a margin for
measurement error (generally +5 points). . . . [T]his involves a score of
65–75 (70 ± 5)”); APA Brief 23 (“For example, the average SEM for the
WAIS–IV is 2.16 IQ test points and the average SEM for the
Stanford–Binet 5 is 2.30 IQ test points (test manuals report SEMs by
different age groupings; these scores are similar, but not identical, often
due to sampling error)”). Even when a person has taken multiple tests,
each separate score must be assessed using the SEM, and the analysis of
multiple IQ scores jointly is a complicated endeavor. See Schneider,
Principles of Assessment of Aptitude and Achievement, in The Oxford
Handbook of Child Psychological Assessment 286, 289–291, 318 (D.
Saklofske, C. Reynolds, V. Schwean, eds. 2013). In addition, because
the test itself may be flawed, or administered in a consistently flawed
manner, multiple examinations may result in repeated similar scores, so
that even a consistent score is not conclusive evidence of intellectual
functioning.
Hall v. Florida, 134 S. Ct. at 1995-96 (emphasis supplied).
2.

Consideration of additional evidence of intellectual disability

Moreover, Hall held that “when a defendant’s IQ test score falls within the
test’s acknowledged and inherent margin of error” — i.e., a score between 70 and 75
or lower13 — “the defendant must be able to present additional evidence of
13

This diagnostic range is drawn from Atkins, which noted that mental-health professions had
“estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower,
which is typically considered the cutoff IQ score for the intellectual function prong of the mental
retardation [intellectual disability] definition.” Atkins, 536 U.S. at 309 n.5 (emphasis and alteration
supplied, citation omitted).
11

intellectual disability, including testimony regarding adaptive deficits.” Hall, 134
S. Ct. at 2001 (alteration and emphasis supplied).
Intellectual disability is a condition, not a number. See DSM–5,
at 37. Courts must recognize, as does the medical community, that the
IQ test is imprecise. This is not to say that an IQ test score is unhelpful.
It is of considerable significance, as the medical community recognizes.
But in using these scores to assess a defendant’s eligibility for the death
penalty, a State must afford these test scores the same studied skepticism
that those who design and use the tests do, and understand that an IQ
test score represents a range rather than a fixed number. A State that
ignores the inherent imprecision of these tests risks executing a person
who suffers from intellectual disability. See APA Brief 17 (“Under the
universally accepted clinical standards for diagnosing intellectual
disability, the court’s determination that Mr. Hall is not intellectually
disabled cannot be considered valid”).
....
It is not sound to view a single factor as dispositive of a
conjunctive and interrelated assessment. See DSM–5, at 37 (“[A]
person with an IQ score above 70 may have such severe adaptive
behavior problems . . . that the person’s actual functioning is comparable
to that of individuals with a lower IQ score”). The Florida statute, as
interpreted by its courts, misuses IQ score on its own terms; and this, in
turn, bars consideration of evidence that must be considered in
determining whether a defendant in a capital case has intellectual
disability. Florida’s rule is invalid under the Constitution’s Cruel and
Unusual Punishments Clause.
Hall, 134 S. Ct. at 2001.
3.

Hall emphasized preexisting principles

Neither of the foregoing points from the Hall opinion was a novel addition to

12

federal law. Instead, both had been anticipated in the Atkins opinion, even though
neither issue had been elaborated as extensively as in Hall. For example, when
discussing the “Wechsler Adult Intelligence Scales” test — the standard instrument
for assessing intellectual functioning — the Atkins opinion observed that the test was
scored by adding together the number of points earned on different
subtests, and using a mathematical formula to convert this raw score into
a scaled score. The test measures an intelligence range from 45 to 155.
The mean score of the test is 100, which means that a person receiving
a score of 100 is considered to have an average level of cognitive
functioning. It is estimated that between 1 and 3 percent of the
population has an IQ between 70 and 75 or lower, which is typically
considered the cutoff IQ score for the intellectual function prong of the
mental retardation definition.
Atkins, 536 U.S. at 309 n.5 (citations omitted, emphasis supplied). Thus, Atkins
clearly rejected an IQ score of 70 as a mandatory cutoff score for determining
whether an individual was mentally retarded/intellectually disabled, in favor of a
range of five points from 70 to 75, corresponding to the standard error of
measurement elaborated in Hall.
Moreover, the clinical standards of the American Association on Intellectual
and Developmental Disabilities (formerly known as the “American Association on
Mental Retardation”) and American Psychiatric Association that were quoted in
Atkins required not only evidence of subaverage intellectual functioning, but also
evidence of significant limitations in adaptive skills. Again, therefore, the Hall
13

opinion merely elaborated a point previously addressed in Atkins.
4.

The Supreme Court’s opinion in Moore v. Texas

The Supreme Court’s March 28, 2017 opinion in Moore v. Texas, – U.S. –, 137
S. Ct. 1039, 2017 WL 1136278 (2017), also emphasized principles announced in
Atkins and elaborated in Hall: e.g., even though both of those opinions had left to the
states “the task of developing appropriate ways to enforce” the constitutional
restriction on executing intellectually disable convicts, the states’ discretion was not
“unfettered.” 2017 WL 1136278, at *9 (quoting Hall, 134 S. Ct. at 1998). “As we
instructed in Hall, adjudication of intellectual disability should be ‘informed by the
views of medical experts.’ That instruction cannot sensibly be read to give courts
leave to diminish the force of the medical community’s consensus.” Id. at *4
(quoting Hall, 134 S. Ct. at 200014). In summary, the Supreme Court’s opinion in
Moore v. Texas stated:
Hall instructs that, where an IQ score is close to, but above, 70, courts
must account for the test’s “standard error of measurement.” . . . As we
explained in Hall, the standard error of measurement is “a statistical
fact, a reflection of the inherent imprecision of the test itself.” . . . “For
purposes of most IQ tests,” this imprecision in the testing instrument
“means that an individual’s score is best understood as a range of scores
on either side of the recorded score . . . within which one may say an
individual's true IQ score lies.” . . . A test’s standard error of
14

See also Hall, 134 S. Ct. at 1993 (observing that “this Court, state courts, and state
legislatures consult and are informed by the work of medical experts in determining intellectual
disability”).
14

measurement “reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score.” . . .
Moore’s score of 74, adjusted for the standard error of
measurement, yields a range of 69 to 79, . . . as the State’s retained
expert acknowledged . . . . Because the lower end of Moore’s score
range falls at or below 70, the [Texas Court of Criminal Appeals] had to
move on to consider Moore’s adaptive functioning.
Moore, 2017 WL 1136278, at *10 (citations omitted).
III. DISCUSSION
Ferguson contends in the following passages copied from his Rule 59(e)
motion that this court erred when evaluating his Atkins claim by considering only
evidence that had been produced by his attorneys prior to the Supreme Court’s
opinion in that case.
It is an unreasonable application of Atkins to consider only
information produced prior to the Atkins decision in determining
whether a petitioner meets the definition of mentally retarded as
accepted by Atkins. Stated differently, courts cannot rely solely on preAtkins evidence in determining whether a petitioner qualifies for relief
under Atkins.
Mr. Ferguson was convicted and sentenced to death in 1998, four
years before the 2002 decision in Atkins. The Alabama Court of
Criminal Appeals affirmed Mr. Ferguson’s conviction and sentence in
2000, Ferguson v. State, 814 So. 2d 925 (Ala. Crim. App. 2000), and the
Alabama Supreme Court affirmed that decision in 2001 — all before
Atkins. Ex parte Ferguson, 814 So. 2d 970 (Ala. 2001). The United
States Supreme Court denied Mr. Ferguson’s petition for writ of
certiorari on March 4, 2002, Ferguson v. Alabama, 535 U.S. 907 (2002)
— over two months before it decided Atkins on June 20, 2002.
15

Doc. no. 18 (Motion to Alter or Amend Judgment), at 13-14.
Upon reconsideration, this court agrees. This court’s prior memorandum
opinion overlooked the significance of the Eleventh Circuit’s July 30, 2013 opinion
in Burgess v. Commissioner, Alabama Department of Corrections, 723 F.3d 1308
(11th Cir. 2014), which observed that Atkins
highlighted the fact that there is a difference between using mental
retardation as a mitigating factor (a balancing inquiry) and categorically
excluding mentally retarded persons from the death penalty altogether
(a categorical prohibition) such that pre-Atkins it could have been
detrimental to a defendant’s case to present thorough evidence of mental
retardation: “reliance on mental retardation as a mitigating factor can be
a two-edged sword that may enhance the likelihood that the aggravating
factor of future dangerousness will be found by the jury.”
Id. at 1317 (quoting Atkins, 536 U.S. at 320-21); see also Bobby v. Bies, 556 U.S.
825, 829 (2009) (“[M]ental retardation for purposes of Atkins, and mental retardation
as one mitigator to be weighed against aggravators, are discrete issues.” (alteration
supplied)).
In other words, Atkins gave defendants an incentive to definitively
demonstrate mental retardation, rather than simply demonstrate low
intellectual functioning. Accordingly, “evidence presented pre-Atkins
may not in every case be conducive to an Atkins inquiry and may not
enable a court to make reasonable factual determinations relating to
mental retardation for purposes of the Eighth Amendment.” Burgess,
723 F.3d at 1317 (emphasis added). Indeed, in Atkins, the Supreme
Court remanded for a hearing on the question of whether Atkins was in
fact mentally retarded for purposes of the Eighth Amendment, even
though a jury had already heard evidence regarding mental retardation
16

during the penalty phase. Atkins, 536 U.S. at 321.
Doc. no. 18 (Motion to Alter or Amend Judgment), at 16 (all emphasis in original).
IV. ORDER ON MOTION
Accordingly, defendant’s Motion to Alter or Amend Judgment is GRANTED
IN PART and DENIED IN PART.

It is ORDERED, ADJUDGED, and

DECREED that Part V.F. of this court’s prior memorandum opinion addressing the
claim that “Ferguson Was Improperly Denied a Hearing on His Mental Capacity
Under Atkins v. Virginia” (i.e., doc. no. 16, at 146-189) be, and the same hereby is,
rescinded, vacated, and held for naught.
The attorneys for petitioner, Thomas Dale Ferguson, are ORDERED to inform
this court and opposing counsel, on or before the close of business on Wednesday,
July 19, 2017, of the date upon which they reasonably anticipate being prepared to
proceed to an evidentiary hearing on petitioner’s assertion that he is categorically
excluded from eligibility for the imposition of the death penalty as a result of
intellectual disability. Respondent must file a response no later than Wednesday, July
26, 2017.
In all other respects, it is ORDERED, ADJUDGED, and DECREED that
petitioner’s motion to alter or amend this court’s previous judgment be, and the same
hereby is, OVERRULED and DENIED.
17

DONE and ORDERED this 27th day of June, 2017.

______________________________
United States District Judge

18