Ferguson v. Luebbers

Filing 107

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's supplemental petition for writ of habeas corpus [# 105 ] is DISMISSED as successive. IT IS FURTHER ORDERED that petitioner's motion to stay [# 106 ] is DENIED. IT IS FURTHER ORDERED that I will not issue a certificate of appealability. Signed by District Judge Catherine D. Perry on March 10, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY R. FERGUSON,
Petitioner,

TROY STEELE,
Respondent,

)
)
)
)
)
)
)
)
)

CAPITAL CASE
No. 4:00CV1882 CDP

MEMORANDUM AND ORDER
Just over twenty-five years ago, on February 9, 1989, petitioner Jeffrey Ferguson
murdered seventeen-year-old Kelli Hall after abducting her from the Mobil service station where
she worked. Hall’s frozen body was found thirteen days later, clothed only in socks. Now,
despite the passage of time, the overwhelming evidence of his guilt, the finality of the judgment
in this case, and the prohibition on filing successive habeas petitions in the district courts,
petitioner seeks to file a “supplemental” petition for writ of habeas corpus, and he seeks a stay of
his March 26, 2014, execution date. I will deny the requested relief.
Petitioner cannot obtain relief from this Court because the supplemental petition for writ
of habeas corpus is a second or successive petition and petitioner must first obtain permission
from the Court of Appeals before filing it. See 28 U.S.C. § 2244(b). Petitioner claims that
newly discovered evidence demonstrates that his conviction was based on the state’s knowing
presentation of false and misleading testimony by FBI Agent Michael Malone, who testified that
hair removed from Hall’s clothing and shoe was microscopically indistinguishable from
petitioner’s co-defendant’s hair and that fibers from the carpet on the floorboard of petitioner’s
SUV were indistinguishable from fiber on Hall’s sweater. Petitioner claims that the Department

of Justice has now concluded that Malone’s microscopic hair analysis testimony “exceeded the
limits of science” and was “invalid.” Petitioner claims this is newly discovered evidence that has
just become “ripe” for review because petitioner’s Rule 91 habeas petition in the Missouri
Supreme Court raising this claim was just recently denied.
Petitioner relies on a number of competency-to-be-executed cases to support his claim
that his supplemental petition is not a second or successive habeas petition, e.g., Stewart v.
Martinez-Villareal, 523 U.S. 637 (1998); Panetti v. Quarterman, 551 U.S. 930 (2007); Magwood
v. Patterson, 561 U.S. 320 (2010). These cases are inapposite, however, because competency
claims do not become ripe until an execution date is set or an execution warrant is secured. See
Nooner v. Norris, 499 F.3d 831, 834 (8th Cir. 2007). Petitioner is confusing ripeness with
exhaustion. To the extent that petitioner has a potential habeas claim regarding perjured expert
testimony and prosecutorial misconduct, the denial of the Rule 91 petition may have exhausted
that claim, but nothing more.
In this case, petitioner claims that he has newly discovered evidence, which is another
way of saying the factual predicate for his claim could not have been discovered through the
exercise of due diligence. This clearly falls under 28 U.S.C. § 2244(b)(2), and petitioner must
obtain permission from the Court of Appeals before he can obtain relief in this Court.
Even if the supplemental petition were not successive and I had the authority to grant
relief, I would dismiss the petition and deny the stay. First, it is only the hair evidence, which
relates to petitioner’s co-defendant, that has been discredited. There is no allegation challenging
the witness’s testimony that the fiber on the victim’s sweater matched that in petitioner’s car –
other than the argument that it must be suspect because it was given by the same witness who
gave the faulty hair opinion. As petitioner admits, “The Justice Department has not declared that

2

Malone testified falsely about the fiber – at least not yet.” But even more importantly, even if
the hair and fiber evidence is completely disregarded, the remaining evidence of petitioner’s guilt
is simply overwhelming. The state has the right to carry out its judgment, and I will not interfere
with it by entertaining this successive petition.
Finally, petitioner has failed to demonstrate that jurists of reason would find it debatable
whether the petition is successive or whether his constitutional rights were violated. Thus, the
Court will not issue a certificate of appealability. 28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s supplemental petition for writ of habeas
corpus [# 105] is DISMISSED as successive.
IT IS FURTHER ORDERED that petitioner’s motion to stay [# 106] is DENIED.
IT IS FURTHER ORDERED that I will not issue a certificate of appealability.
Dated this 10th day of March, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

3