              Case: 12-15422    Date Filed: 05/21/2013    Page: 1 of 65


                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-15422
                           ________________________

                      D.C. Docket No. 1:12-cv-23817-DTKH

JOHN FERGUSON,

                                                               Petitioner-Appellant,

                                       versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                              Respondent-Appellee.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                                  (May 21, 2013)

Before CARNES, WILSON and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

      The Supreme Court has decided that a convicted murderer cannot be

executed unless he has a rational understanding of the fact that he is going to be

put to death and of the reason for his execution. Panetti v. Quarterman, 551 U.S.

930, 954–60, 127 S.Ct. 2842, 2859–62 (2007). In announcing that rule, however,
              Case: 12-15422    Date Filed: 05/21/2013    Page: 2 of 65


the Court did not decide what rational understanding means in this context. It

acknowledged that “a concept like rational understanding is difficult to define” and

cautioned that “normal” or “rational” in this context does not mean what a

layperson understands those terms to mean. Id. at 959–60, 127 S.Ct. at 2862. The

Court did reject the standard the court of appeals had applied in the Panetti case

because that standard disregarded or did not give sufficient consideration to

evidence of “psychological dysfunction” and “delusional beliefs.” Id. at 960, 127

S.Ct. at 2862. But the Court emphasized that it deliberately was not being more

specific and cautioned that it was “not attempt[ing] to set down a rule governing all

competency determinations.” Id. at 960–61, 127 S.Ct. at 2862. “[W]e find it

difficult,” the Court confessed, “to amplify our conclusions or to make them more

precise.” Id. at 961, 127 S.Ct. at 2863.

      The bottom line of the Panetti decision is that there is not yet a well-defined

bottom line in this area of the law. Instead of attempting to answer more

specifically the question of what is required for a rational understanding of death

by execution and the reason for it, the Supreme Court preferred to leave “a

question of this complexity” to be addressed in a fuller manner and on a better

record by the district court and the court of appeals in that case. Id. The decision

not to decide more is, unfortunately, the last word from the Supreme Court on the




                                           2
              Case: 12-15422     Date Filed: 05/21/2013   Page: 3 of 65


“question of this complexity,” one variation of which is presented by the facts in

our case.

      The habeas petitioner in our case, John Ferguson, contends that under the

Panetti decision he is mentally incompetent to be executed. As the facts come to

us, Ferguson has a mental illness but he does understand that he is going to die by

execution, and he understands that it is going to happen because he committed

eight murders. Ferguson also believes, as tens of millions if not hundreds of

millions of other people do, that there is life after death. Countless people also

believe, as he does, that they are among God’s chosen people. But Ferguson’s

religious belief is more grandiose than that because he believes that he is the Prince

of God. The Florida courts rejected Ferguson’s Panetti claim, and we must decide

whether their decision to do so “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding” or was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d). The key words being “clearly established law.” Or the lack of it.

                                 I. BACKGROUND

                                   A. The Crimes

      Part of the analysis of Ferguson’s mental competency to be executed

involves his understanding of the connection between his execution and the crimes

                                          3
              Case: 12-15422     Date Filed: 05/21/2013   Page: 4 of 65


for which he is going to be executed, which makes the nature of those crimes

relevant.

                             1. The Carol City Murders

       On the night of July 27, 1977, Ferguson, posing as a Florida Power and

Light employee who needed to check some electrical outlets, persuaded Miss

Margaret Wooden to let him enter her home. Ferguson v. State, 417 So. 2d 639,

640, 643 (Fla. 1982). After pretending to check the outlets in several rooms,

Ferguson drew a gun on Wooden and bound and blindfolded her. Id. at 640. He

then let two of his criminal cohorts into the house so that they could search it for

drugs and valuables. Id. About two hours later the owner of the house and five of

his friends arrived. Id. Wielding guns, Ferguson and his accomplices bound and

blindfolded and searched the six men. Shortly thereafter, Wooden’s boyfriend,

Michael Miller, arrived. He, too, was bound and blindfolded and searched at

gunpoint. Id. While six of the robbery victims were forced to kneel in the living

room, Miller and Wooden were taken into her bedroom. Id. There they were put

with their knees on the floor and their upper bodies lying across the bed. Id. at

641.

       Then the killing began. Ferguson and his partners in crime methodically

murdered five of the six men who were kneeling in the living room by shooting

each one in the back of the head while their hands were tied behind them. Id. at

                                          4
             Case: 12-15422     Date Filed: 05/21/2013   Page: 5 of 65


641. One of the six men somehow survived the shot to the back of his head, living

to tell about the methodical murders of the other men in the living room. Id.

      While Miller and Wooden were kneeling in the bedroom, Wooden heard the

gunshots in the living room. Id. She saw her boyfriend shot to death beside her.

Id. She saw a pillow coming toward her before she was shot in the head. Id. And

she heard Ferguson running out of the bedroom after the shootings. Id. Despite

her head wound, Wooden managed to make it to a neighbor’s house. Id. When the

police arrived at Wooden’s house, they found six dead victims, all of whom had

been shot in the back of the head while their hands were bound behind their backs,

and they found the two intended murder victims who had been shot in that same

manner but had somehow survived. Id.

                                 2. The Hialeah Murders

      Ferguson had two accomplices when he committed the six Carol City

murders, but less than six months later he committed two more murders all by

himself. Ferguson v. State, 417 So. 2d 631, 633 (Fla. 1982). On the evening of

January 8, 1978, Brian Glenfeld and Belinda Worley, both of whom were

seventeen years old, left a Youth for Christ meeting in Hialeah. Id. They were

supposed to meet some friends at a local ice cream parlor, but they never arrived.

Id. Apparently on the way to meeting their friends, the young couple pulled off the




                                         5
              Case: 12-15422     Date Filed: 05/21/2013   Page: 6 of 65


road. See id. at 636. What Ferguson did to the two teenagers when he chanced

upon them was recounted by the trial court judge:

      The facts reveal that the two victims were seated in an automobile and
      while seated therein a gunshot was fired through the window striking
      Brian Glenfeld in the arm and chest area. A significant amount of
      bleeding followed and this victim’s blood was found throughout many
      areas of the front of the automobile as well as on the clothing of
      Belinda Worley. Following the shooting, the female victim ran many
      hundreds of feet from the car in an attempt to [elude] the defendant
      and was finally overtaken in some rather dense overgrowth and trees.
      She was subjected to many physical abuses by this defendant,
      including but not limited to, sexual penetration of her vagina and
      anus. The discovery of embedded dirt in her fingers, on her torso both
      front and back and in many areas within her mouth and the findings of
      hemorrhaging around her vagina and anal cavity would indicate that
      she put up a significant struggle and suffered substantially during the
      perpetration of these indignities upon her body. Expert testimony
      indicates that she was a virgin at the time of the occur[r]ence of this
      crime. The position of her body and the location of the wounds on her
      head would indicate that she was in a kneeling position at the time she
      was shot through the top of the head. She was left in a partially nude
      condition in the area where the crime was committed to be thereafter
      fed upon by insects and other predators. Physical evidence would
      substantiate that following the attack upon Belinda Worley the
      defendant went back to the car and shot Brian Glenfeld through the
      head.

Id. Ferguson stole cash from Brian Glenfeld’s wallet. Id. at 633. Among the

items he took from Belinda Worley, or her body, were two rings, a gold bracelet,

and a pair of earrings. Id. When he ripped one of those earrings from Worley’s

ear, he tore her ear lobe. Id.
                                          6
              Case: 12-15422     Date Filed: 05/21/2013   Page: 7 of 65


      To murder the two young victims Ferguson used a .357 magnum pistol that

had been stolen from a victim of the Carol City murders nearly six months earlier.

Id. He confessed to killing the “two kids.” Id.

                   B. The Trials, Appeals, and Collateral Attacks

      Following separate trials, Ferguson was convicted of murdering the six

Carol City victims and the two Hialeah victims. See Ferguson v. Sec’y for Dep’t

of Corr., 580 F.3d 1183, 1190 (11th Cir. 2009). The Florida Supreme Court

affirmed all eight murder convictions on direct appeal, but remanded for

resentencing due to the trial court’s reliance on invalid aggravating factors and its

failure to properly consider certain mitigating factors. Ferguson v. State, 417 So.

2d 639 (Fla. 1982); Ferguson v. State, 417 So. 2d 631 (Fla. 1982). On remand, the

trial court reimposed the death penalty in each case and the Florida Supreme Court

affirmed in a consolidated appeal. Ferguson v. State, 474 So. 2d 208 (Fla. 1985).

      Ferguson filed a motion under Florida Rule of Criminal Procedure 3.850

seeking relief from his convictions and sentences, but that motion was denied and

the denial was affirmed on appeal. Ferguson v. State, 593 So. 2d 508 (Fla. 1992).

He filed a federal habeas petition attacking his convictions and sentences, but it too

was denied, and the denial was affirmed on appeal. Ferguson, 580 F.3d at 1222.

              C. Ferguson’s Mental Health History and the Pre-2000
                    State Court Mental Competency Hearings


                                          7
              Case: 12-15422     Date Filed: 05/21/2013    Page: 8 of 65


      Throughout the first half of the 1970s, Ferguson was consistently diagnosed

by mental health professionals with paranoid schizophrenia, which resulted in

commitments to a state psychiatric facility and a prescribed regimen of potent

antipsychotic medications. In 1976 he was deemed mentally competent and

discharged from a mental hospital.

      In the three and a half decades since that discharge Ferguson’s attorneys

have exhaustively litigated his mental competency. Although experts have differed

in their opinions about his mental state during that time, every state and federal

court to decide the issue has decided that Ferguson is not mentally incompetent.

Earlier determinations of competency, whether addressed to a prisoner’s

responsibility for committing a crime or to his ability to stand trial, “do not

foreclose a prisoner from proving he is incompetent to be executed because of his

present mental condition.” Panetti, 551 U.S. at 934, 127 S.Ct. at 2848. Still, the

history of Ferguson’s mental condition, the opinions of experts regarding it, and

judicial decisions about it over the years are all relevant to a discussion of his

present mental condition.

       In connection with his two 1978 murder trials, the state court held separate

hearings, one before each trial, to determine whether Ferguson was competent to

stand trial. See Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1994). Four court-

appointed experts filed reports before the Carol City trial (the one with eight

                                           8
              Case: 12-15422    Date Filed: 05/21/2013    Page: 9 of 65


shooting victims), unanimously concluding that Ferguson was mentally competent.

See id. Some of the four experts were even of the opinion that Ferguson was

malingering and not actually schizophrenic, but instead likely was sociopathic.

See Ferguson, 593 So. 2d at 510. Notably, two of those four court-appointed

experts, Drs. Charles Mutter and Albert Jaslow, receded from the diagnoses that

they had reached in the early to mid-1970s that Ferguson was actively psychotic.

Based on the four experts’ opinions, the trial court found Ferguson mentally

competent to stand trial. See Ferguson, 417 So. 2d at 645.

      Following his convictions in the Carol City trial, Ferguson obtained several

mental health experts and entered a plea of not guilty by reason of insanity in the

Hialeah trial (the one with two murder victims). See Ferguson, 417 So. 2d at 637.

The trial court held a pretrial competency hearing and considered conflicting

testimony from at least seven expert witnesses, three of whom had also filed

reports in connection with the earlier murder trial. See id. The experts were, by

and large, evenly split on the question of Ferguson’s competency to stand trial:

three found Ferguson incompetent while another three found him competent.

Although it is unclear from the record what the seventh expert concluded, it is clear

that the trial court again found that Ferguson was competent to stand trial. See id.

The Florida Supreme Court affirmed, concluding that there was adequate medical




                                          9
             Case: 12-15422     Date Filed: 05/21/2013   Page: 10 of 65


testimony to support the trial judge’s finding that Ferguson was mentally

competent to stand trial. Id. at 634.

       When Ferguson filed his initial state post-conviction motion in 1987, he also

filed a motion to stay the proceedings based on his alleged incompetence to assist

counsel. See Ferguson v. State, 789 So. 2d 306, 308 (Fla. 2001). The trial court

appointed three experts to assess Ferguson’s mental health at the time, ordered

numerous neurological examinations, and held a three-day evidentiary hearing in

August 1998, at which a total of six expert witnesses testified on the issue of

mental competence. Id. at 313–14. While the experts offered conflicting

testimony about the genuineness and severity of Ferguson’s psychological

symptoms, the trial court found that the credible evidence demonstrated that

Ferguson did not suffer from a major mental disorder, found that he was

malingering, and found that he was mentally competent to understand the

proceedings and assist his counsel. See id. at 313–15. The Florida Supreme Court

upheld the trial court’s findings and determination on those issues, concluding that

they were adequately supported by the evidence presented at the hearing. Id. at

315.

                         D. The First Federal Habeas Proceeding

       In March of 1995 Ferguson filed his first federal habeas petition, which

raised numerous constitutional claims about various aspects of his trial, sentencing,

                                         10
              Case: 12-15422     Date Filed: 05/21/2013   Page: 11 of 65


and state post-conviction proceedings, including a claim that his due process rights

had been violated because the state post-conviction proceedings were conducted

while he was mentally incompetent. See Ferguson, 580 F.3d at 1192–93, 1220.

He also filed a motion to stay the federal habeas proceedings on the ground that he

was mentally incompetent to proceed with it.

      In December 2004, the district court held a five-day evidentiary hearing on

the motion to stay the habeas proceedings at which it heard conflicting testimony

from six expert witnesses about Ferguson’s mental state at that time. See id. at

1192, 1221–22. After considering the evidence, the district court denied the

motion to stay because it found that Ferguson was mentally competent to proceed

with the habeas proceeding. See id. at 1192, 1221–22. On appeal, we summarized

the district court’s findings on the issue:

      After holding a competency hearing, the district court found that there
      was credible evidence to show that Ferguson at one time suffered
      from a mental disorder that had symptoms associated with paranoid
      schizophrenia and that, since 1994, his mental health has improved so
      as to make him “no longer a disruptive member of his prison
      environment.” R4-107 at 15. It also found that his disorder was in
      remission and that he was malingering or exaggerating his symptoms.
      See id. The court further found that Ferguson had the “mental
      competency, clarity of thought, directness of speech, and motivation
      to advance his interests and objectives when faced with a variety of
      adverse circumstances.” Id. at 15, 17. The court made a number of
      other factual findings including that the totality of his test results
      supported the conclusion that he was “consciously reporting
      symptoms of mental illness that he [was] not presently experiencing”
                                              11
               Case: 12-15422       Date Filed: 05/21/2013       Page: 12 of 65


       and that his unwillingness to cooperate with his counsel was based on
       a desire to avoid punishment. Id. at 17, 20. Based on all of this, the
       court concluded that Ferguson “ha[d] sufficient present ability to
       consult with counsel with a reasonable degree of rational
       understanding-and ha[d] a rational as well as factual understanding of
       the proceedings against him.” Id. at 21-23.

Id. at 1221–22. We found ample evidence to support all of the district

court’s findings on the competency issue. Id. at 1222. Assuming that a

petitioner had a right to have his federal habeas proceeding stayed during a

period of mental incompetency, we held that the district court had not erred

in denying Ferguson a stay. 1 Id.

       We also affirmed the district court’s denial of all of Ferguson’s

constitutional claims, including his claim that the state post-conviction court

had violated his due process rights by adjudicating his claims while he was

mentally incompetent to proceed. As to that claim, we explained that:

“After carefully examining the record from the [state collateral court’s]

competency hearing, we find that the evidence fairly supported the finding

that Ferguson was competent to proceed with his 3.850 claim.” Id. at 1221.

               E. The 2012 State Commission Competency Proceedings




       1
         The Supreme Court later held that federal habeas petitioners have no right to stay the
adjudication of their petitions on grounds of mental incompetence. Ryan v. Gonzales, — U.S.
—, 133 S.Ct. 696, 700 (2013).
                                               12
             Case: 12-15422    Date Filed: 05/21/2013   Page: 13 of 65


      On September 5, 2012, the Governor of Florida signed a warrant for

Ferguson’s execution and prison officials scheduled the execution for October 16,

2012. Ferguson requested a hearing on his competency to be executed, and, as

required by Fla. Stat. § 922.07, the Governor temporarily stayed the execution and

appointed a commission of three psychiatrists. Drs. Wade Myers, Alan Waldman,

and Tonia Werner, were to determine whether Ferguson “understands the nature

and effect of the death penalty and why it is to be imposed upon him.” The

Governor directed the commission to conduct its evaluation on October 1, 2012,

and submit a written report by the following day.

      As instructed, the commissioners met on October 1, 2012, jointly

interviewed Ferguson for roughly 90 minutes, reviewed his mental health records

from 1978 to the present, and interviewed three correctional officers who had

regular contact with Ferguson over the years. The commissioners issued their

report later that same day, finding that Ferguson “understands the nature and effect

of the death penalty and why it was imposed on him,” and finding that he was not

then suffering from mental illness. In support of its findings, the commission

noted that Ferguson’s mental health records showed that, while he was once

diagnosed with paranoid schizophrenia, he had been free of signs and symptoms of

mental illness for a number of years, had not been treated with antipsychotic

medications since 2000, and since August 2001 had been classified as an S-1

                                         13
             Case: 12-15422    Date Filed: 05/21/2013   Page: 14 of 65


inmate, which is a psychiatric grade given to state prisoners who have no

identifiable mental health problems impairing their functioning in the prison

setting.

       The commission’s report further noted that, during the interview, Ferguson

was calm, cooperative, and responsive; he exhibited average intelligence; he

denied any cognitive disturbances; and he demonstrated linear and goal-directed

thought processes. While Ferguson told the commissioners that he had been

anointed the “Prince of God” and would arise following his death to be at the

“right hand of God,” the commissioners concluded that even if these were genuine

delusions, they did not affect Ferguson’s “factual and rational understanding of his

impending execution.” The report specifically mentioned that Ferguson

acknowledged that he was going to be executed because of the murders he had

committed and acknowledged that he would die as a result of the execution.

Finally, the report recounted that the three correctional officers, who had known

Ferguson for a period of time ranging from nine months to ten years, all described

him as polite and rational, and none of them had observed any abnormalities in his

thinking, communication, or behavior.

       After receiving the competency commission’s report, the Governor

determined that Ferguson had the mental capacity to understand both the nature of

the death penalty that was to be inflicted on him and the reasons it would be, and

                                         14
              Case: 12-15422     Date Filed: 05/21/2013   Page: 15 of 65


on that basis the Governor lifted the stay of execution. On October 3, 2012,

Ferguson petitioned the state trial court to review the Governor’s competency

determination, contending that executing him would violate the Eighth

Amendment, as interpreted in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595

(1986), and Panetti, 511 U.S. 930, 127 S.Ct. 2842, because he lacked a rational

understanding of the reasons for, and the consequences of, the punishment.

Ferguson also argued that Florida’s existing standard for assessing competency to

be executed, codified in Florida Rules of Criminal Procedure 3.811(b) and

3.812(b), was inconsistent with the standard announced in Panetti.

                     F. The 2012 State Court Evidentiary Hearing

        On October 8, 2012, the trial court issued a stay of execution. Thereafter,

the court held a two-day evidentiary hearing. During that hearing Ferguson

presented the testimony of two expert witnesses, Drs. George Woods and Richard

Rogers, as well as the testimony of one of his attorneys, Patricia Brannan, who had

been present during the competency commission’s evaluation of Ferguson. The

State, in turn, called three expert witnesses, Drs. Wade Myers, Tonia Werner, and

Enrique Suarez; five prison officials who had recent contact with Ferguson; and

Jennifer Sagle, a mental health counselor who had worked on death row until July

2012.

                               3. Ferguson’s Witnesses

                                          15
             Case: 12-15422     Date Filed: 05/21/2013    Page: 16 of 65


                                     i. Dr. Woods

      Dr. George Woods, a psychiatric expert who has testified throughout the

country on behalf of capital inmates, reviewed Ferguson’s mental health records,

interviewed him on three separate occasions from October 2011 to September

2012, and administered several neurological tests. He prepared a written report on

Ferguson’s behalf, which was admitted into evidence during the evidentiary

hearing. In his report, Dr. Woods recounted Ferguson’s documented history of

paranoid schizophrenia, including his belief that he is the “Prince of God.” The

report stated that Ferguson exhibited delusional beliefs and reported experiencing

visual, auditory, and olfactory hallucinations throughout the years. According to

Dr. Woods’ report, Ferguson said that his long-deceased father was still alive and

protecting him, that he is the Prince of God, that he will be resurrected at some

point after his execution “to sit at the right hand of God,” and that he is destined to

ascend to his rightful throne and ultimately “save the world.” Ferguson also told

Dr. Woods about visual and auditory hallucinations of seeing and communicating

with his dead father, as well as olfactory hallucinations of an inexplicable “sweet

smell.” Ferguson recounted earlier experiences of seeing snakes and vicious dogs

coming out of the walls of his cell, although he acknowledged that his visual and

auditory hallucinations had diminished over the past decade.




                                          16
             Case: 12-15422     Date Filed: 05/21/2013    Page: 17 of 65


      Dr. Woods’ report concluded that, although Ferguson understands that he is

facing execution and that the State of Florida intends to execute him for the crimes

for which he was convicted, he lacks a rational understanding of the reason for the

execution and its consequences. The report said that Ferguson believes his

convictions and continued incarceration on death row are “not based upon the

law,” but are part of a plot by the State of Florida “to prevent him from ascending

to his rightful throne as the Prince of God,” as well as a “conspiracy of corrupt

policemen” to retaliate against him “for being acquitted in a prior case.” The

report said that Ferguson believes he will not die as a result of his execution due to

“his father’s powers” and his eventual resurrection.

      In his hearing testimony, Dr. Woods reiterated his opinion that Ferguson is a

paranoid schizophrenic and lacks a rational understanding of the reason for his

execution and its consequences. He testified that Ferguson has grandiose delusions

that he is the Prince of God, that there is a Communist plot to take over the United

States, that he will play a divine role in driving away the Communist threat, and

that the State cannot kill him because he possesses “special powers.” Dr. Woods

also recounted Ferguson’s reports of visual hallucinations of seeing “shadow

people” since a very young age, auditory hallucinations of hearing the voice of his

dead father, and olfactory hallucinations of a “sweet smell” that would persist even

after he cleaned his cell. In contrast to his written report, however, Dr. Woods

                                          17
             Case: 12-15422     Date Filed: 05/21/2013    Page: 18 of 65


testified at the evidentiary hearing that Ferguson believes that, through his trial and

incarceration, the State of Florida has been preparing him for his “ascension” to his

rightful throne as the Prince of God, not preventing him from doing so. And, also

unlike his report, Dr. Woods did not testify that Ferguson believed that his

convictions, incarceration, and impending execution were the product of a

conspiracy among state officials or were the result of anything other than the

murders he had committed.

      In his testimony, Dr. Woods conceded that Ferguson had not taken any

antipsychotic drugs since 2000, had not exhibited any unusual behaviors to prison

staff since that time, and since 2001 had maintained an S-1 classification (the

designation for prisoners with no identifiable mental health concerns that might

impair their functioning in prison). He also conceded that Ferguson had filed a

number of prison grievances over the years that were “fairly goal-directed toward

his daily life” and made no reference at all to believing that he is the Prince of

God. Dr. Woods described Ferguson as a “geriatric” or “late-life” schizophrenic

who, despite his psychosis, did not necessarily require medication and would not

necessarily exhibit any outward manifestations of his illness because the “positive

symptoms” of paranoid schizophrenia diminish with age. He stated that paranoid

schizophrenics are the highest functioning types of schizophrenics and can perform

ordinary tasks in structured environments.

                                          18
             Case: 12-15422    Date Filed: 05/21/2013   Page: 19 of 65


      In further support of his diagnosis, Dr. Woods opined that Ferguson suffers

from cavum septum pellucidum, a fissure between the two hemispheres of the

brain indicative of schizophrenia. Although Dr. Woods initially testified that the

fissure was “very deep,” he later retreated from that description, conceding on

cross-examination that the 2004 radiology report upon which he had relied actually

stated that Ferguson’s brain was intact except for a “very small” cavum septum

pellucidum. Dr. Woods also conceded that a 2001 article from the American

Journal of Psychiatry concluded that a small cavum septum pellucidum is a normal

anatomical variant that appears in virtually equal numbers of schizophrenic and

non-schizophrenic people.

                                      ii. Dr. Rogers

      Dr. Richard Rogers, an expert in forensic psychology and malingering, also

testified as an expert witness for Ferguson. He evaluated Ferguson on September

20 and 21, 2012, for the limited purpose of determining whether he was currently

malingering or feigning psychotic symptoms. In addition to interviewing

Ferguson, Dr. Rogers administered a battery of malingering tests. He

acknowledged that two of the test scores were elevated and did suggest that

Ferguson was malingering. However, based on the totality of the results of the

administered tests, Dr. Rogers was of the opinion that Ferguson was not currently

malingering, even if he had done so in the past. On the core question of mental

                                         19
             Case: 12-15422    Date Filed: 05/21/2013    Page: 20 of 65


competency, however, Dr. Rogers conceded that Ferguson did not exhibit any

obvious signs of cognitive impairment in his writings or verbal communications,

and appeared to be of average intelligence.



                              2. The State’s Witnesses

      At the evidentiary hearing, the State first presented the testimony of two of

the psychiatrists who had served on the Governor’s competency commission, Drs.

Myers and Werner.

                                    i. Dr. Myers

      Dr. Wade Myers, a board certified psychiatrist and professor of psychiatry at

Brown University, testified that he had evaluated and diagnosed thousands of

schizophrenic people during his professional career. Dr. Myers described how he

and his fellow commissioners had conducted their competency evaluation of

Ferguson. They began by reviewing two file boxes of medical, psychiatric, and

correctional records dating back to 1978. Each of the three commissioners had

taken a portion of the records, reviewed them for information about Ferguson’s

mental health, and then discussed with the other two commissioners the records

they found significant. Among other things, the records established that Ferguson

had been classified as an S-1 inmate since 2001, he had not taken any psychotropic




                                         20
             Case: 12-15422     Date Filed: 05/21/2013   Page: 21 of 65


medications since 2000, and his prison mental-health evaluations did not indicate

he had shown any symptoms of mental illness since at least 2001.

      Dr. Myers testified that, after reviewing the medical records for 90 minutes,

the commission interviewed Ferguson for an additional 90 minutes in the presence

of attorneys from both sides. During the interview, Ferguson was polite, calm,

cooperative, and did not exhibit any signs of distress or of any thought disorder.

Ferguson informed the commissioners that he was not taking any psychiatric

medications, did not feel like he needed psychiatric treatment, and told them that

he did not suffer from any mental problems. When one of the commissioners, Dr.

Waldman, mentioned that Ferguson had been convicted of six homicides, Ferguson

corrected him and said that it was eight.

      Dr. Myers further testified that Ferguson discussed his religious beliefs,

stating that he was a Christian, believed in God, read the Bible regularly, and liked

to visit the prison chaplain. Ferguson said that he hears the voice of God with his

“inner ears,” but only when he prays. Ferguson also informed the commissioners

that he was anointed the “Prince of God” many years ago, and that he would be

resurrected following his execution to sit “at the right hand of God.” According to

Dr. Myers, Ferguson only mentioned two current hallucinations: seeing dark

shadow people, which no longer bothered him, and experiencing an inexplicable

“sweet smell,” which he actually enjoyed. Ferguson told them that, in the distant

                                            21
             Case: 12-15422       Date Filed: 05/21/2013   Page: 22 of 65


past, he had witnessed vicious dogs coming out of his cell walls and “snakes

coming out of his leg,” though those particular hallucinations had stopped decades

ago.

       Dr. Myers also testified that, following their interview of Ferguson, the

commissioners interviewed three correctional officers who had daily interactions

with Ferguson for time periods ranging from almost a year to nine years. Those

officers reported that Ferguson communicated normally, was coherent, and never

exhibited any bizarre behavior.

       After reviewing some additional records and conferring with one another,

the three commissioners unanimously concluded that Ferguson had the mental

capacity to understand the nature and effect of the death penalty and the reason it

was being imposed on him. Dr. Myers explained that, although he and Dr.

Waldman brought a number of psychological tests to the evaluation, the

commission members found no reason to administer the tests given the lack of

evidence that Ferguson suffered from any significant mental illness. Dr. Myers

emphasized that Ferguson displayed lucid thinking and average intelligence

throughout the interview, that the correctional records showed that he was

functioning well in his day-to-day life, and that the correctional officers

interviewed by the commission had witnessed no bizarre behaviors by him. Dr.

Myers also testified that he believed that Ferguson was fabricating his reported

                                           22
             Case: 12-15422     Date Filed: 05/21/2013   Page: 23 of 65


delusions and, even if they were genuine, he would still not meet the diagnostic

criteria for schizophrenia because the delusions were not disrupting his daily life.

Dr. Myers testified that Ferguson had a “rational understanding of the nature of the

death penalty and the reason it is to be inflicted upon him.”



                                   ii. Dr. Werner

      Dr. Tonia Werner, a board certified psychiatrist and professor of forensic

psychiatry at the University of Florida, who had served as one of the competency

commissioners, also testified at the evidentiary hearing. She corroborated Dr.

Myers’ account of the commission’s evaluation process and agreed with his

opinion that Ferguson does possess a rational understanding of the fact of his

impending execution and of the reason for it. Dr. Werner confirmed that Ferguson

informed the commissioners that he had been anointed the Prince of God, would be

resurrected after his death to “sit at the right hand of God,” and would eventually

return to Earth. She testified, however, that Ferguson had indicated that he was

going to be executed and stated that he would be the first state inmate to receive

Florida’s new lethal-injection protocol. She recounted that Dr. Waldman had

specifically asked Ferguson whether he would physically die and be buried after

his execution, and Ferguson answered that he would.




                                         23
             Case: 12-15422     Date Filed: 05/21/2013    Page: 24 of 65


      Finally, Dr. Werner testified that she did not believe that Ferguson was

currently suffering from a major mental illness because his reported hallucinations,

particularly those of seeing shadow people, were inconsistent with schizophrenia,

and there were no signs of dysfunction in his daily activities. She explained that,

even if Ferguson were suffering from mental illness, he did not demonstrate any

difficulties in his mental capacity or cognition that would suggest that he did not

fully understand the reasons for and the consequences of his impending execution.

                                    iii. Dr. Suarez

      Dr. Enrique Suarez, a neuropsychologist, also testified for the State at the

evidentiary hearing. He had examined Ferguson in 2004 during the federal habeas

proceedings and had concluded that Ferguson was not exhibiting any behavioral

symptoms of psychosis and was malingering. Dr. Suarez testified that he had

reviewed Ferguson’s records from the 2004 proceeding and from that time to the

present, had reviewed the reports of Ferguson’s expert witnesses, and had listened

to the testimony of all of the experts who had testified at the present hearing (he

was the last expert witness to testify before Dr. Woods was recalled as a rebuttal

witness). After considering all of those records and testimony, Dr. Suarez was still

of the opinion that Ferguson was not schizophrenic.

      Dr. Suarez emphasized that it was highly unlikely for a schizophrenic not to

suffer a relapse after being unmedicated for more than a decade, and that

                                          24
             Case: 12-15422     Date Filed: 05/21/2013   Page: 25 of 65


Ferguson’s various inmate requests and prison grievances showed “no bleed-

through” of his professed delusions and hallucinations. He specifically identified

an inmate request form dated July 25, 2011, in which Ferguson requested 256

pages of legal materials for a pro se appeal that he was pursuing. According to Dr.

Suarez, the request was perfectly coherent, “[q]uite sophisticated,” and

demonstrated that “delusional contamination” did not hinder Ferguson from being

“able to work through the system that’s set up to get his needs met.”

                        iv. Prison Officials and Employees

      The State also called as witnesses a number of prison officials who had

regular contact with Ferguson around the time his death warrant was signed on

September 5, 2012. They uniformly testified that Ferguson did not exhibit any

abnormal behaviors or make any unusual requests that suggested he was mentally

unstable. Officer Jay Taylor, who spoke to Ferguson on the day his death warrant

was signed, testified that Ferguson stated that he had not had an execution warrant

signed on him in 35 years.

      Brad Whitehead, the assistant warden at Florida State Prison, testified that

he spoke to Ferguson about his wishes for a last meal, the disposition of his

remains, and who should be contacted. Ferguson provided Whitehead with the

names of his mother, his attorneys’ law firm, and his spiritual advisor, and he also

expressed concern about his mother’s wellbeing due to her medical conditions.

                                         25
             Case: 12-15422     Date Filed: 05/21/2013   Page: 26 of 65


When asked what he wanted done with his remains after his execution, Ferguson

responded that he needed to consult with his attorneys about that. At no point did

he indicate or imply that he was unconcerned about the disposition of his remains

because his status as the Prince of God would render that matter moot.

      Jennifer Sagle, a mental health counselor who worked on death row from

December 2005 until July 2012, testified that during the time she worked there

Ferguson maintained an S-1 psychiatric classification, the lowest level recognized

by the Florida Department of Corrections. Sagle further testified that she never

received any complaints or referrals from other inmates or prison guards regarding

Ferguson’s mental health, and that she had not personally observed any unusual

behavior or symptoms of schizophrenia during her weekly rounds. Although Sagle

acknowledged that paranoid schizophrenics might not outwardly manifest

“positive symptoms” of their disease, such as hallucinations, she testified that they

would exhibit “negative symptoms” such as a flattened affect and lack of

motivation, which Ferguson had not shown.

                         4. Ferguson’s Rebuttal Witnesses

      Ferguson called two witnesses in rebuttal. The first was Patricia Brannan,

one of his attorneys who had attended the evaluation by the mental competency

commission. She testified that Ferguson was calm, placid, focused, and

cooperative while the commissioners interviewed him, though he became agitated

                                         26
             Case: 12-15422     Date Filed: 05/21/2013   Page: 27 of 65


a few times in response to particular questions. She indicated that, contrary to Dr.

Myer’s testimony, it was one of the commissioners who had corrected the

misstatement that Ferguson had been convicted of six murders. She further stated

that, when asked about his impending execution, Ferguson responded “they’re

gonna kill me, like Jesus” and that “God told me lethal injection, and they have

some new stuff just for me.” Moreover, when asked by a commissioner about

what would happen after he was buried, Ferguson responded that he would ascend

to “sit at the right hand of God” and would eventually return to his “rightful place

in the world.”

      Dr. Woods was the other rebuttal witness. He testified that the relapse rate

for geriatric (or late life) schizophrenics is only about four percent even among

those not taking antipsychotic medication. He also stated that the fact that

Ferguson had not exhibited any symptoms to prison officials and employees after

being off medication for more than a decade was not inconsistent with his

diagnosis of late life schizophrenia. He stuck to his diagnosis of Ferguson and the

opinion that he was not mentally competent to be executed.

        5. The 2012 State Trial Court Decision on Ferguson’s Competency

      After the evidentiary hearing on the competency issue, the state trial court

issued an order finding that Ferguson had failed to meet his burden of proving that

he was mentally incompetent to be executed. State v. Ferguson, No. 04-2012-CA-

                                         27
             Case: 12-15422      Date Filed: 05/21/2013   Page: 28 of 65


507, op. at 1, 17 (Fla. Cir. Ct. Oct. 12, 2012). The court, partially crediting the

testimony of Dr. Woods and Dr. Rogers “as it relates to Ferguson’s documented

history of paranoid schizophrenia,” found that Ferguson suffers from paranoid

schizophrenia, that there was not “sufficient evidence [he was] malingering during

the interview with the Commission,” and that he harbors a genuine delusional

belief that he is the Prince of God. Id. at 17. However, the court specifically found

“the testimony and opinions of Dr. Myers and Dr. Werner to be credible as to the

limited question of Ferguson’s competency to be executed” and found their

testimony on those issues to be supported by both the record and the testimony of

the prison officials and employees. Id. at 17–18.

      The court concluded that, although Ferguson suffers from paranoid

schizophrenia, “there is no evidence that he does not understand what is taking

place and why it is taking place” or that his “mental illness interferes, in any way,

with his ‘rational understanding’ of the fact of his pending execution and the

reason for it.” Id. at 18. In support of its conclusion, the court emphasized that

“Ferguson is aware that the State is executing him for the murders he committed

and that he will physically die as a result of the execution,” and that “[t]here is no

evidence that in his current mental state Ferguson believes himself unable to die or

that he is being executed for any reason other than the murders he was convicted of

in 1978.” Id. The court also remarked that, “[i]n some sense, Ferguson appears to

                                          28
             Case: 12-15422      Date Filed: 05/21/2013    Page: 29 of 65


have fit his grandiose [Prince-of-God] delusion into a traditional religious

worldview” and that his “belief as to his role in the world and what may happen to

him in the afterlife is [not] so significantly different from beliefs other Christians

may hold so as to consider it a sign of insanity.” Id.

      The state trial court rejected Ferguson’s contention that Panetti displaced or

added anything to the existing state standard for assessing mental competency to

be executed, which asks whether a prisoner “lacks the mental capacity to

understand the fact of the impending execution and the reason for it.” Id. at 4. The

court noted that, in Provenzano v. State, 760 So. 2d 137 (Fla. 2000), which was

decided before Panetti, the Florida Supreme Court had “considered the difficulties

of persons who have mental illnesses and delusions” and held that they could still

be found mentally competent to be executed if they possessed “a factual and

rational understanding” of their execution and the reasons for it. Id. at 4–5.

      6. The 2012 Florida Supreme Court Decision on Ferguson’s Competency

      Ferguson appealed that decision to the Florida Supreme Court, contending

that the state trial court had failed to apply the mental competency standard

announced in Panetti and that the Florida Supreme Court’s Provenzano decision

was no longer good law. He contended in the alternative that, even if the trial

court had applied the correct legal standard, its finding that he was mentally

competent to be executed was not supported by the record, particularly given the

                                           29
                Case: 12-15422    Date Filed: 05/21/2013   Page: 30 of 65


subsidiary findings that he is a paranoid schizophrenic who believes that he is the

Prince of God. Ferguson also claimed that he had not been afforded a full and fair

evidentiary hearing before the state trial court, in contravention of his due process

rights.

          The Florida Supreme Court affirmed the trial court’s decision. It found that

there was “competent, substantial evidence” to support the trial court’s finding that

Ferguson’s mental illness and Prince-of-God delusion did not interfere with his

“rational understanding” of the fact of his pending execution and the reason for it,

and that the record supported the finding that he “understands what is taking place

and why.” Ferguson v. State, No. SC12-2115, op. at 4, 7 (Fla. Oct. 17, 2012). The

Court did not adopt the state trial court’s view that Ferguson’s delusions were a

grandiose manifestation of otherwise normal Christian beliefs. It stated that

“[w]hether Ferguson’s convictions are representative of mainstream Christian

principles or delusions that derive from his mental illness does not affect our

inquiry.” Id. at 4. Either way, he understood that he was going to be executed and

why. The Florida Supreme Court also rejected Ferguson’s contention that Panetti

imposed a stricter standard for mental competency to be executed than the one it

had adopted in its Provenzano decision. Id. at 6–8. In doing so, the Court

acknowledged Panetti’s statement that a “prisoner’s awareness of the State’s

rationale for an execution is not the same as a rational understanding of it,” but

                                            30
             Case: 12-15422     Date Filed: 05/21/2013     Page: 31 of 65


explained that Panetti was a “narrowly tailored decision” and that Provenzano

itself had required that a prisoner “understand the connection between his crime

and the punishment he is to receive for it.” Id. at 7–8.



                        G. This Federal Habeas Proceeding

      On October 19, 2012, Ferguson filed a federal habeas petition under 28

U.S.C. § 2254, along with an emergency motion for a stay of execution until there

was a ruling on the merits of that petition. His petition claimed that he is mentally

incompetent to be executed under the Eighth Amendment, as interpreted in Ford

and Panetti, because he lacks a rational understanding of the consequences of, and

reasons for, his impending execution. Ferguson contended that the decisions of the

state courts were contrary to clearly established federal law because they relied on

the factual-awareness standard rejected by Panetti and were otherwise based on an

unreasonable determination of the facts in light of the evidence presented.

      On October 20, 2012, the district court granted a temporary stay of

execution to permit a “fair hearing” on Ferguson’s habeas claim. Two days later

we granted the State’s emergency motion to vacate that stay of execution,

concluding that the district court had applied the wrong legal standard for granting

a stay and that Ferguson had failed to demonstrate that he had a substantial

likelihood of success on the merits of his claim. We specifically determined that

                                          31
             Case: 12-15422     Date Filed: 05/21/2013   Page: 32 of 65


Ferguson did not show that the Florida Supreme Court either unreasonably applied

clearly established federal law or made an unreasonable determination of the facts

when it found him competent to be executed.

      Thereafter, and less than an hour before Ferguson’s scheduled execution on

October 23, 2012, the district court issued a summary order denying the habeas

petition, but granting Ferguson a certificate of appealability (COA) on the

following issues:

   A. Whether the decision of the Florida Supreme Court involved an
   unreasonable application of the Un[ited] States Supreme Court’s decision[s]
   in Ford and Panetti.

   B. Whether the Florida Supreme Court’s affirmance of the state trial court
   was based on an unreasonable determination of the facts in light of the
   evidence presented in the state court proceeding, viz, that (a) the petitioner
   has a documented history of paranoid schizophrenia[,] (b) he is not
   malingering, and (c) he has a fixed grandiose delusion that he is the “Prince
   of God.”

      We granted a temporary stay of execution under Eleventh Circuit Rule 22-

4(a)(7). The State moved to vacate the stay of execution and dismiss Ferguson’s

appeal on the ground that the district court had improperly granted a COA,

particularly in light of our earlier determination that Ferguson did not have a

substantial likelihood of success on the merits of his competency claim. We

denied the State’s motion to vacate the stay of execution.

                                  II. DISCUSSION



                                         32
             Case: 12-15422     Date Filed: 05/21/2013    Page: 33 of 65


      “We review de novo the denial of a petition for a writ of habeas corpus.”

Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005). The

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes federal

courts from granting habeas relief on a claim already adjudicated on the merits in

state court unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” or (2) “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). A state court decision is “contrary to” clearly established federal law if it

applies a rule that contradicts the governing law set forth by the United States

Supreme Court, or arrives at a result that differs from Supreme Court precedent

when faced with materially indistinguishable facts. Bell v. Cone, 535 U.S. 685,

694, 122 S.Ct. 1843, 1850 (2002). A state court decision involves an

“unreasonable application” of clearly established federal law if “the state court

correctly identifies the governing legal principle” from the relevant Supreme Court

decisions “but unreasonably applies it to the facts of the particular case.” Id. The

key question is whether the state court’s application of Supreme Court precedent is

“objectively unreasonable,” not simply whether a federal court “concludes in its

independent judgment that the . . . state-court decision applied clearly established




                                          33
             Case: 12-15422     Date Filed: 05/21/2013    Page: 34 of 65


federal law erroneously or incorrectly.” Renico v. Lett, — U.S. —, 130 S.Ct.

1855, 1862 (2010) (quotation marks omitted).

      As the Supreme Court has explained, there is a critical difference between

the question of whether to reverse for a claimed constitutional error on direct

appeal and the question of whether to grant habeas relief after the state courts have

rejected the claim of constitutional error. “Under AEDPA . . . it is a necessary

premise that the two questions are different.” Harrington v. Richter, — U.S. —,

131 S.Ct. 770, 785 (2011); see also Renico, 130 S.Ct. at 1862 (“This distinction

creates ‘a substantially higher threshold’ for obtaining relief than de novo

review.”). The distinction between those two questions is critical to the proper

functioning of the federal writ of habeas corpus in the post-AEDPA age. See

Harrington, 131 S.Ct. at 780 (explaining that habeas “resources are diminished and

misspent . . . and confidence in the writ and the law it vindicates undermined, if

there is judicial disregard for the sound and established principles that inform its

proper issuance”).

      The Supreme Court has not hesitated to reverse grants of habeas relief

ordered by courts of appeals that ignore the distinction between direct appeal type

de novo review and the more restrictive, highly deferential review mandated by 28

U.S.C. § 2254(d)(1). See, e.g., Felkner v. Jackson, — U.S. —, 131 S.Ct. 1305,

1307 (2011) (reversing a decision ordering habeas relief, which apparently had

                                          34
             Case: 12-15422      Date Filed: 05/21/2013    Page: 35 of 65


applied the standard of review applicable on direct appeal instead of AEDPA’s

“highly deferential standard for evaluating state-court rulings”); Premo v. Moore,

— U.S. —, 131 S.Ct. 733, 740 (2011) (reversing a decision ordering relief and

cautioning that “[f]ederal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d)”);

Harrington, 131 S.Ct. at 786 (reversing a decision ordering habeas relief based on a

de novo review standard, and commenting that “[i]t bears repeating that even a

strong case for relief does not mean the state court’s contrary conclusion was

unreasonable”); Smith v. Spisak, 558 U.S. 139, 149, 130 S.Ct. 676, 684 (2010)

(reversing a decision ordering habeas relief because “[w]hatever the legal merits of

the rule or the underlying verdict forms in this case were we to consider them on

direct appeal, the jury instructions at Spisak’s trial were not contrary to ‘clearly

established Federal law’”).

      The point, which the Supreme Court has repeatedly emphasized, is that

AEDPA imposes a “highly deferential standard for evaluating state-court rulings”

and “demands that state-court decisions be given the benefit of the doubt.” Renico,

130 S.Ct. at 1862 (quotation marks omitted). “A state court’s application of

clearly established federal law or its determination of the facts is unreasonable only

if no ‘fairminded jurist’ could agree with the state court’s determination or

conclusion.” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th

                                          35
               Case: 12-15422        Date Filed: 05/21/2013       Page: 36 of 65


Cir. 2012) (quoting Harrington, 131 S.Ct. at 786). To warrant federal habeas relief

under the deferential standards prescribed by § 2254(d), a petitioner must show

that the state court’s ruling was “so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 131 S.Ct. at 786–77.

                                                A.

       Ferguson first argues that the Florida Supreme Court’s decision involved an

unreasonable application of clearly established federal law because, in adhering to

the competency standard laid down in Provenzano, the court purportedly relied on

the bare factual-awareness standard that the United States Supreme Court rejected

in Panetti, instead of the applicable “rational understanding” inquiry. 2 Ferguson

contends that in light of Panetti the competency standard announced by the Florida

Supreme Court in Provenzano, which adopted the test articulated by Justice Powell

in his concurring opinion in Ford, is constitutionally deficient because it merely

asks whether a prisoner is aware of the punishment that will be imposed and the

reason for imposing it.




       2
          Technically speaking, Ferguson’s contention that the Florida Supreme Court failed to
apply the competency standard set forth in Panetti would, if believed, render the court’s decision
“contrary to” clearly established federal law, not merely an “unreasonable application” of
Supreme Court precedent. See Bell, 535 U.S. at 694, 122 S.Ct. at 1850. Nonetheless, because
the distinction does not impact our analysis or conclusions, we will address the issue in the terms
set forth in the district court’s COA and employed by Ferguson on appeal.
                                                36
             Case: 12-15422    Date Filed: 05/21/2013    Page: 37 of 65


      Our analysis of Ferguson’s contention begins with a look at how the

substantive standard for competency to be executed has evolved in both Florida

and the United States Supreme Court. Before the Supreme Court ever recognized

a constitutional bar on executing the mentally incompetent, Florida had a statutory

bar on putting to death an inmate who lacked the “mental capacity to understand

the nature of the death penalty and the reasons why it was imposed upon him.”

Fla. Stat. Ann. § 922.07(2) (1985). Later, in Ford, the Supreme Court held for the

first time that the “Eighth Amendment prohibits a State from carrying out a

sentence of death upon a prisoner who is insane,” 477 U.S. at 409–10, 106 S.Ct. at

2602, and it outlined procedural safeguards to enforce that constitutional

prohibition, see id. at 411–17, 106 S.Ct. at 2602–06. Justice Marshall’s majority

opinion in Ford did not, however, specify in any detail the substantive standard to

be applied in assessing whether a prisoner is competent to be executed. It did note

that “we may seriously question the retributive value of executing a person who

has no comprehension of why he has been singled out and stripped of his

fundamental right to life,” id. at 409, 106 S.Ct. at 2601, which seemed to imply a

simple comprehension standard.

      In his concurring opinion, however, Justice Powell articulated a more

specific standard for competency, explaining that the “Eighth Amendment forbids

the execution only of those who are unaware of the punishment they are about to

                                         37
              Case: 12-15422     Date Filed: 05/21/2013     Page: 38 of 65


suffer and why they are to suffer it” and that it is constitutionally sufficient if

“those who are executed know the fact of their impending execution and the reason

for it.” Id. at 422, 106 S.Ct. at 2608 (Powell, J., concurring). Justice Powell

explained that “the retributive goal of the criminal law is satisfied” if a prisoner

“perceives the connection between his crime and his punishment,” and that a

prisoner can “prepare himself for his passing” only if he is “aware that his death is

approaching.” Id. Justice Powell expressly found that Florida’s statutory

definition of competency to be executed was constitutionally adequate. Id. at 423,

106 S.Ct. at 2608.

      While the Ford decision left Florida’s competency standard standing, it did

find fault with the procedures that were then in effect for determining whether that

standard was met. Id. at 412–17, 106 S.Ct. at 2603–05. Thereafter, Florida

adopted new procedures for assessing a prisoner’s competency to be executed,

which were codified in Florida Rules of Criminal Procedure 3.811 and 3.812. See

In re Emergency Amendment to Florida Rules of Criminal Procedure (Rule 3.811,

Competency to be Executed), 497 So. 2d 643 (Fla. 1986); Fla. R. Crim. P. 3.811;

Fla. R. Crim. P. 3.812. Rule 3.811 also set forth a substantive competency

standard, which was virtually identical to Florida’s statutory definition, and which

provided that “[a] person under sentence of death is insane for purposes of




                                           38
             Case: 12-15422     Date Filed: 05/21/2013   Page: 39 of 65


execution if the person lacks the mental capacity to understand the fact of the

impending execution and the reason for it.” Fla. R. Crim. P. 3.811(b).

      After the Ford decision, the Florida Supreme Court had occasion to

elaborate on the meaning of the State’s competency to be executed standard in two

decisions involving the impending execution of Thomas Provenzano. In the first

of those decisions, Provenzano v. State, 750 So. 2d 597, 602 (Fla. 1999)

(Provenzano I), the Court rejected a claim that the standard articulated in Rule

3.811 was unconstitutional because it did not require a “rational appreciation of the

connection between the crime and the punishment.” The Court explained that the

competency standard did, in fact, include a “rationality element” that required a

prisoner to possess a “rational appreciation of the connection between his crime

and the punishment he is to receive.” Id. at 602–03. It then remanded the case for

further proceedings to assess Provenzano’s competency to be executed under that

rational appreciation standard. Id. at 601–03.

      When the case returned to it the following year, the Florida Supreme Court

affirmed the trial court’s determination that Provenzano, despite harboring a

delusional belief that he was Jesus Christ, was competent to be executed because

he had “a factual and rational understanding” that he had been sentenced to death

for murdering a woman and that he would die when he was executed. Provenzano

v. State, 760 So. 2d 137, 140 (Fla. 2000) (Provenzano II). The Court explained

                                         39
              Case: 12-15422       Date Filed: 05/21/2013      Page: 40 of 65


that “Florida ha[d] adopted the Eighth Amendment standard announced by Justice

Powell in Ford,” and that Provenzano met this standard because he possessed “the

mental capacity to understand the fact of his pending execution and the reason for

it.”3 Id.

       Seven years after the Florida Supreme Court issued its decision in

Provenzano II, and just over two decades after Ford, the United States Supreme

Court revisited the substantive standard for competency in Panetti. Panetti, a

Texas prisoner sentenced to death for murdering his in-laws, claimed that his

schizo-affective disorder and accompanying delusions, which “recast [his]

execution as part of spiritual warfare” between “the forces of [] darkness” and “the

forces of light,” rendered him mentally incompetent to be executed. Panetti, 551

U.S. at 935–36, 954–56, 127 S.Ct. at 2848, 2859–60 (quotation marks omitted).

Although he was aware that the State of Texas claimed that it intended to execute

him because of the murders he had committed, Panetti was convinced that the

stated reason was a “sham” and that the real reason the State sought his execution

was “to stop him from preaching.” Id. at 954–55, 127 S.Ct. at 2859 (quotation

marks omitted). The Fifth Circuit affirmed the denial of federal habeas relief



       3
         The Florida Supreme Court issued several other decisions in Provenzano’s challenge to
his impending execution, but those decisions did not specifically address the competency
standard for execution. See Provenzano v. State, 751 So. 2d 37 (Fla. 1999) (remanding for an
evidentiary hearing on Provenzano’s claim of incompetency); Provenzano v. Moore, 744 So. 2d
413 (Fla. 1999) (rejecting Provenzano’s challenge to Florida’s method of execution).
                                              40
             Case: 12-15422      Date Filed: 05/21/2013    Page: 41 of 65


because Panetti was aware that he would be executed and “aware that the reason

the State [had] given for the execution” was the murders he had committed. Id. at

956, 127 S.Ct. at 2860. Under its interpretation of the competency standard

articulated by Justice Powell in Ford, the Fifth Circuit concluded that Panetti’s

delusions were largely irrelevant to the competency inquiry because it did not

matter if Panetti’s mental illness prevented him from having a rational

understanding of the State’s reason for his execution. Id.

      The Supreme Court reversed, holding that the Fifth Circuit’s approach to

assessing competency was “too restrictive” and was inconsistent with Ford insofar

as it treated “a prisoner’s delusional belief system as irrelevant if the prisoner

knows that the State has identified his crimes as the reason for his execution.” Id.

at 956–59, 127 S.Ct. at 2860–61. The Court explained that, whether Ford’s

competency inquiry is cast in terms of “comprehension” or “awareness” of the

reasons for a prisoner’s execution, Ford did not support “a strict test for

competency that treats delusional beliefs as irrelevant once the prisoner is aware

the State has identified the link between his crime and the punishment to be

inflicted.” Id. at 959–60, 127 S.Ct. at 2861–62. The Court concluded that “[a]

prisoner’s awareness of the State’s rationale for an execution is not the same as a

rational understanding of it,” and that “Ford does not foreclose inquiry into the

latter.” Id. at 959, 127 S.Ct. at 2862.

                                          41
             Case: 12-15422     Date Filed: 05/21/2013    Page: 42 of 65


      While the Supreme Court in Panetti rejected an approach foreclosing an

inquiry into the rationality of a petitioner’s understanding, it expressly declined to

“set down a rule governing all competency determinations” and it acknowledged

that “a concept like rational understanding is difficult to define.” Id. at 959–61,

127 S.Ct. at 2862. The Court stressed that “[t]he mental state requisite for

competence to suffer capital punishment neither presumes nor requires a person

who would be considered ‘normal,’ or even ‘rational,’ in a layperson’s

understanding of those terms.” Id. at 959, 127 S.Ct. at 2862. Because of the

limited record and the absence of definitive findings in that case concerning “the

nature and severity of [Panetti’s] alleged mental problems,” the Supreme Court

was hesitant to “amplify [its] conclusions or to make them more precise” and

declined to apply them to that case itself. Id. at 961–62, 127 S.Ct. at 2863.

Instead, the Court remanded the case to the district court to analyze and resolve in

the first instance the issue of Panetti’s competency to be executed. Id. at 962, 127

S.Ct. at 2863.

      By way of guidance, the Supreme Court noted that “[g]ross delusions

stemming from a severe mental disorder may put an awareness of a link between a

crime and its punishment in a context so far removed from reality that the

punishment can serve no proper purpose.” Id. at 960, 127 S.Ct. at 2862. The

Court also observed that “[e]xpert evidence may clarify the extent to which severe

                                          42
             Case: 12-15422     Date Filed: 05/21/2013    Page: 43 of 65


delusions may render a subject’s perception of reality so distorted that he should be

deemed incompetent.” Id. at 962, 127 S.Ct. at 2863. On remand, the district court

found that Panetti suffered from “severe mental illness” and “paranoid delusions of

some type,” but that he was nonetheless competent to be executed because he

possessed a rational understanding of his impending death and the “causal

connection between [his crimes] and his death sentence.” Panetti v. Quarterman,

2008 WL 2338498, at *36–37 (W.D. Tex. Mar. 26, 2008).

      In the present case, the Florida Supreme Court did not apply the bare and

narrow factual-awareness standard that the United States Supreme Court rejected

in Panetti. Instead, in reviewing the state trial court’s ruling against Ferguson, the

Florida Supreme Court framed the question as whether there was substantial

evidence to support the trial court’s determination that Ferguson’s paranoid

schizophrenia and Prince-of-God delusion did not interfere “with his ‘rational

understanding’ of the fact of his pending execution and the reason for it.”

Ferguson, No. SC12-2115, op. at 4. Citing its decision in Provenzano II and

Justice Powell’s concurring opinion in Ford, the court variously articulated the

competency standard as whether an inmate lacks “the capacity to understand the

nature of the death penalty and why it was imposed,” whether he is “aware of the

punishment [he is] about to receive and the reason [he is] to receive it,” and

whether he “understand[s] the connection between his crime and the punishment

                                          43
             Case: 12-15422     Date Filed: 05/21/2013    Page: 44 of 65


he is to receive for it.” Id. at 4, 8. The Florida Supreme Court concluded that,

despite Ferguson’s documented history of paranoid schizophrenia and genuine

delusional belief that he is the Prince of God, the record nonetheless shows that he

“understands what is taking place and why.” Id. at 7. In particular, the Court

noted that Ferguson is “aware that he has never before had a death warrant signed

on his behalf and that he would be the first person to receive Florida’s current

protocol of medications for lethal injection,” and it found sufficient evidence to

support the trial court’s findings that Ferguson is “aware that the State is executing

him for the murders he committed and that he will physically die as a result of the

execution.” Id. at 7–8.

      The competency standard articulated and applied by the Florida Supreme

Court is not inconsistent with clearly established federal law, as set forth in Ford

and Panetti. The court correctly found that Panetti did not materially alter the

competency standard that it had announced in Provenzano II, which itself adopted

the formulation endorsed by Justice Powell in Ford. Contrary to Ferguson’s

contention, the Supreme Court’s decision in Panetti did not abrogate or otherwise

reject the awareness standard articulated by Justice Powell, nor did it impose a

new, more rigorous standard for assessing competency to be executed. Instead, the

Supreme Court in Panetti generally accepted the proposition that Ford had laid

down “the substantive federal baseline for competency,” and it clarified that the

                                          44
               Case: 12-15422        Date Filed: 05/21/2013       Page: 45 of 65


requisite “awareness” or “comprehension” required by Ford was tantamount to a

“rational understanding” of the connection between a prisoner’s crimes and his

execution. Panetti, 551 U.S. at 935, 958–59, 127 S.Ct. at 2848, 2861–62. What

the Supreme Court rejected in Panetti was an overly narrow interpretation of Ford

that deems a prisoner’s mental illness and delusional beliefs irrelevant to whether

he can understand the fact of his pending execution and the reason for it. Id. at

959–61, 127 S.Ct. at 2861–62 (rejecting “a strict test for competency that treats

delusional beliefs as irrelevant”). The Court explained that the understanding

required by Ford is a rational understanding, even though it declined to define

“rational” in this context. See id. at 959–62, 2862–63.

       Unlike the Fifth Circuit approach rejected in Panetti, the Florida Supreme

Court neither suggested that Ferguson is competent to be executed merely because

he can identify the State’s articulated rationale for his punishment, nor did it deem

his paranoid schizophrenia and delusional belief that he is the Prince of God to be

irrelevant to the issue of competency. 4 See Ferguson, No. SC12-2115, op. at 4–8.


       4
          Read out of context, the Florida Supreme Court’s statement that “[w]hether Ferguson’s
convictions are representative of mainstream Christian principles or delusions that derive from
his mental illness does not affect our inquiry” might be interpreted as indicating that the court
refused to consider Ferguson’s delusions or their source. See Ferguson, No. SC12-2115, op. at
4. It is evident from the context, however, that the quoted statement was instead a decision not
to adopt the state trial court’s characterization of Ferguson’s delusions as a manifestation of
traditional Christian beliefs, albeit on a grandiose scale. As the remainder of the Florida
Supreme Court’s opinion makes clear, it did consider Ferguson’s paranoid schizophrenia and
Prince-of-God delusion as they relate to the issue of rational understanding, and it concluded that
he nevertheless has a rational understanding that the reason he is going to be executed is the
                                                45
               Case: 12-15422        Date Filed: 05/21/2013       Page: 46 of 65


To the contrary, the Florida Supreme Court concluded that, despite Ferguson’s

mental illness and delusional belief, he nonetheless “understands” the connection

between his impending execution and the murders he had committed and

understands that he will die when executed. Id. at 7–8.

       Although the Florida Supreme Court’s decisions in Provenzano I and

Provenzano II predated Panetti, they make clear that Florida’s awareness standard

for judging competency to be executed includes an inquiry into rationality and

amounts to an awareness-plus-rational-understanding test. See Provenzano I, 750

So. 2d at 602–03 (rejecting the argument that the Florida standard “does not allow

for the rational appreciation of the connection between the crime and the

punishment” and holding that Provenzano should be afforded “the opportunity to

cross-examine [the State’s expert witness concerning] Provenzano’s rational

appreciation of the connection between his crime and the punishment he is to

receive”) (emphasis added); Provenzano II, 760 So. 2d at 140 (citing with approval

and affirming the trial court’s findings that “Provenzano has a factual and rational

understanding of . . . ‘the fact that in accordance with the jury’s recommendation,

he was sentenced to death for the murder of Bailiff Arnie Wilkerson, and that he

will die once he is executed’”) (emphasis added).


murders he committed and that when executed he will die. Just as Panetti’s “severe mental
illness” and “paranoid delusions” did not, in the final analysis, render him incompetent to be
executed, see Panetti, 2008 WL 2338498, at *36–37, the Florida Supreme Court found that
Ferguson’s delusions did not render him incompetent to be executed either.
                                                46
             Case: 12-15422     Date Filed: 05/21/2013    Page: 47 of 65


      That the Florida Supreme Court’s opinion in this case used the terms

“awareness” and “understanding” interchangeably, and often used both terms

without the modifier “rational,” does not mean that it failed to heed the holding of

Panetti or rendered a decision inconsistent with that precedent (or with its own

Provenzano precedent). We have stressed that, under § 2254(d), “we review the

state court’s ‘decision’ and not necessarily its rationale,” and that “overemphasis

on the language of a state court’s rationale would lead to a ‘grading papers’

approach that is outmoded in the post-AEDPA era.” Parker v. Sec’y for Dep’t of

Corr., 331 F.3d 764, 785 (11th Cir. 2003) (quotation marks omitted). Absent a

“conspicuous misapplication of Supreme Court precedent . . ., we will not presume

that a state court misapplied federal law” or failed to properly comprehend

Supreme Court precedent. Id. at 785–86 (quotation marks and alterations omitted).

      The Supreme Court has held that some use of imprecise language does not

render a state court decision inconsistent with clearly established federal law. It

does not, the Court has explained, because “readiness to attribute error” is

incompatible with both “the presumption that state courts know and follow the

law” and with AEDPA’s “demand[] that state-court decisions be given the benefit

of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 23–24, 123 S.Ct. 357, 359–60

(2002). It bears noting that, on at least one occasion, the Supreme Court in Panetti

equated the requisite “rational understanding” with a certain type or degree of

                                          47
             Case: 12-15422      Date Filed: 05/21/2013    Page: 48 of 65


“awareness.” See 551 U.S. at 960, 127 S.Ct. at 2862 (referring to “[g]ross

delusions stemming from a severe mental disorder [that] may put an awareness of a

link between a crime and its punishment in a context so far removed from reality”)

(emphasis added). Imprecision in language is not confined to state court opinions.

      The AEDPA principles of deference have special force here given the

Supreme Court’s recognition in Panetti that the Court itself did not know exactly

what a “rational” understanding requires. The Court admitted that “a concept like

rational understanding is difficult to define,” id. at 959, 127 S.Ct. at 2862, and it

proceeded to prove that by not even attempting a definition. The Court did say that

“normal” or “rational” in this context does not mean what a layperson understands

those terms to mean, id. at 959–60, 127 S.Ct. at 2862, but that only underscores the

absence of a definition. And so does the Court’s concession that “we find it

difficult to amplify our conclusions or to make them more precise.” Id. at 961, 127

S.Ct. at 2863; see also id. at 960–61, 127 S.Ct. at 2862–63 (emphasizing that it was

not being more specific); id. at 978, 127 S.Ct. at 2873 (Thomas, J., dissenting)

(characterizing the majority opinion’s rational understanding standard as a “half-

baked holding that leaves the details of the insanity standard for the District Court

to work out”).

      Given the deference that AEDPA mandates, the “contrary to” issue is

whether the standard that the Florida Supreme Court applied in determining

                                          48
             Case: 12-15422     Date Filed: 05/21/2013    Page: 49 of 65


Ferguson’s competency to be executed was “contrary to . . . clearly established

Federal law, as determined by the Supreme Court” in Panetti. See 28 U.S.C. §

2254(d)(1). Because the Supreme Court refrained from clearly establishing in

Panetti any definition of rational understanding, state courts can hardly be faulted

for not clearly defining it themselves. The Supreme Court did, however, hold that

whatever “rational” means in the context of competency to be executed, a court

may not “treat[] delusional beliefs as irrelevant once the prisoner is aware the State

has identified the link between his crime and the punishment to be inflicted.”

Panetti, 551 U.S. at 959–61, 127 S.Ct. at 2861–62. That, and pretty much that

alone, is what Panetti held and clearly establishes.

      The standard of rational understanding that the Florida Supreme Court

applied was not contrary to that holding of Panetti. It did not treat Ferguson’s

paranoid schizophrenia and his belief that he is the Prince of God as irrelevant to

whether he has a rational understanding of why he is going to be executed and of

the fact that when executed he will die. Instead, the Florida Supreme Court

affirmed the trial court’s finding that notwithstanding his mental condition and

singular religious belief about his life after death, Ferguson has the requisite

rational understanding and is competent to be executed. See pp. 29–30, supra.

The state court decision about the applicable standard did not involve a

“conspicuous misapplication of Supreme Court precedent,” Parker, 331 F.3d at

                                          49
               Case: 12-15422        Date Filed: 05/21/2013       Page: 50 of 65


785, or an “error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement,” Harrington, 131 S.Ct. at 786–87. For

these reasons, we conclude that the rational understanding standard applied by the

Florida Supreme Court to assess Ferguson’s competency to be executed is not

inconsistent with clearly established federal law.

                                                B.

       Ferguson maintains that even if the Florida Supreme Court did apply the

Panetti competency standard, we should nonetheless hold that it unreasonably

applied that standard, either as a matter of law or as an ultimate finding of fact, by

finding that that he has a rational understanding of his impending execution and the

reasons for it. Although Ferguson alternatively invokes § 2254(d)(1) and (d)(2),

his underlying argument is the same with respect to both AEDPA provisions. 5 We

will therefore treat the issue as a single inquiry for purposes of this appeal.

       Ferguson specifically contends that the state courts could not reasonably

conclude that he is competent to be executed given their underlying factual


       5
          Ferguson takes the position that, whether the Florida Supreme Court’s decision is
viewed under § 2254(d)(1) or (d)(2), the analysis in this case is virtually the same: whether “the
underlying facts as found by the State courts” preclude a determination that he has a rational
understanding of his execution. While § 2254(d)(2) specifically asks whether a state court’s
decision “was based on an unreasonable determination of the facts in light of the evidence
presented,” Ferguson would recast the inquiry to be whether the ultimate determination of
competency constitutes an unreasonable determination of fact in light of the “subsidiary findings
of fact [the state] courts made.” While we do not agree that the inquiries called for under §
2254(d)(1) and (d)(2) are identical, we accept Ferguson’s invitation, solely for purposes of this
appeal, to regard them as two different methods of analyzing the same underlying question.
                                               50
               Case: 12-15422        Date Filed: 05/21/2013       Page: 51 of 65


findings that he suffers from paranoid schizophrenia, is not currently malingering,

and harbors a genuine belief that he is the Prince of God. Ferguson asserts that his

Prince-of-God belief, which the state trial court credited as genuine, encompasses

beliefs that he cannot be executed due to his “special powers,” that his convictions

and incarceration are really the result of both a conspiracy of corrupt policemen

and the State’s attempt to prevent his ascension, and that he is destined to ascend to

the right hand of God and eventually return to Earth to wage war against

Communism. Ferguson argues that the state trial court’s conclusion that there is

“no evidence that . . . [he] believes himself unable to die or that he is being

executed for any reason other than the murders he was convicted of in 1978” fails

to account for that court’s own finding that Dr. Woods credibly testified about the

extent and gravity of Ferguson’s delusions. He contends that the state courts’

underlying findings about his mental illness and delusional beliefs inevitably lead

to only one conclusion: that he does not have a rational understanding of his

impending execution and the reasons for it. 6


       6
          Ferguson also maintains that the Florida Supreme Court unreasonably applied the
procedural requirements laid down in Ford and Panetti when it concluded that he was afforded a
fair hearing to determine his competency. Ferguson, however, did not fairly present this
argument to the district court in his habeas petition. See Smith v. Sec’y, Dep’t of Corr., 572 F.3d
1327, 1352 (11th Cir. 2009) (noting that an argument that is not fairly presented to the district
court will not be considered on appeal); Hill v. Jones, 81 F.3d 1015, 1020 (11th Cir. 1996)
(same). In his 30-page counseled habeas petition, Ferguson included only two conclusory
sentences asserting that he “never received [a] fair hearing” due to “incalculable due process
abuses,” and that the record before the district court was “severely limited by the due process
abuses visited upon [him] by persons eager to rush to impose the ‘ultimate penalty without the
                                                51
               Case: 12-15422       Date Filed: 05/21/2013       Page: 52 of 65


       Ferguson’s contentions and arguments rest, in large part, on a misconception

about the state trial court’s underlying factual findings. A close reading of the trial

court’s opinion reveals that it did not credit all of Dr. Woods’ statements about

Ferguson’s delusions. For example, the trial court did not credit Dr. Woods’

statements or opinion that Ferguson believes he cannot die because he possesses

“special powers” or that his convictions, incarceration, and impending execution

are the result of a conspiratorial plot to prevent (or prepare, depending on whether

one examines Dr. Woods’ report or hearing testimony) Ferguson’s post-death

ascension to his rightful throne as the Prince of God. The only part of Dr. Woods’

testimony that the state trial court credited was, as the court described it, the part

about “Ferguson’s documented history of paranoid schizophrenia.” Ferguson, No.

04-2012-CA-507, op. at 17. In all other respects, it credited the testimony and

opinions of Drs. Myers and Werner on the question of “Ferguson’s competency to

be executed.” Id. And their testimony was that Ferguson has a rational




full measure of the deliberative process.’” In addition to the conclusory nature of these
contentions, Ferguson’s attorneys did not expressly designate the issue as a distinct claim for
relief, nor did they specifically argue that the Florida Supreme Court unreasonably applied the
procedural requirements of Ford and Panetti.
        In any event, Ferguson’s competency hearing did satisfy the minimum due process
requirements identified in Ford and Panetti because he was given an “opportunity to submit
evidence and argument from [his] counsel, including expert psychiatric evidence that may [have]
differ[ed] from the State’s own psychiatric examination.” See Panetti, 551 U.S. at 949–50, 127
S.Ct. at 2856 (quotation marks omitted). Thus, even if a due process claim had been fairly
presented, it would fail on the merits.
                                               52
             Case: 12-15422     Date Filed: 05/21/2013    Page: 53 of 65


understanding of his impending execution, of the fact that he will be put to death,

and of the reasons for his execution.

      Moreover, the state trial court’s finding that Ferguson was not malingering

was limited to his not “malingering during the interview with the Commission.”

Id. at 17 (emphasis added). The court did not find that Ferguson was not

malingering, or that he was telling the truth, about the alleged beliefs that he did

not tell the Commission about and mentioned only to Dr. Woods. Ferguson did

not tell the Commission anything indicating that he did not think he could die or

that he possesses “special powers,” or that his planned execution is the result of a

conspiracy among state officials instead of the penalty for the murders he

committed. Ferguson mentioned those alleged beliefs only to defense expert Dr.

Woods. And Dr. Woods did not testify at the evidentiary hearing held by the state

trial court about any purported belief of Ferguson that his convictions and

punishment are based on any alleged conspiracy.

      Viewed in this light, there is no contradiction between the state trial court’s

findings that Ferguson believes he is the Prince of God and that he was not

malingering during his appearance before the Commission, and its finding that

there was “no evidence that in his current mental state Ferguson believes himself

unable to die or that he is being executed for any reason other than the murders he

was convicted of in 1978.” Id. at 18 (emphasis added). There was of course some

                                          53
               Case: 12-15422        Date Filed: 05/21/2013       Page: 54 of 65


evidence, derived from Dr. Woods’ report and his trial court hearing testimony,

that Ferguson believes that he will not die as an immediate result of his execution

and that he is being punished for reasons other than the murders he had committed.

However, the trial court was not required to find that evidence credible when it was

contradicted by the testimony of the State’s expert witnesses.

       AEDPA’s command that we give state courts “the benefit of the doubt” and

refrain from readily “attribut[ing] error” means, at the least, that we should avoid

finding internal inconsistencies and contradictions in the decisions of state courts

where they do not necessarily exist. See Woodford, 537 U.S. at 23–24, 123 S.Ct.

at 359–60. While the state trial court’s choice of words (“no evidence”) could

have been more precise and technically correct (“no credible evidence”), giving its

opinion the benefit of the doubt, as we are required to do by AEDPA, it is clear to

us that the trial court meant that it found no credible evidence that Ferguson

genuinely believes that he will not die as a result of his execution or that his

execution is unrelated to the crimes for which he was convicted. 7 The court

credited the testimony of Drs. Myers and Werner that Ferguson rationally

understands that he is going to die and why.

       The question then, as Ferguson presents it, is whether “some fairminded

jurists could agree” with the state courts’ ultimate conclusion that he is competent

       7
        There is nothing to suggest that the state trial court simply ignored facets of Dr. Woods’
testimony, instead of deeming them not credible. Ferguson, No. 04-2012-CA-507, op. at 6.
                                                54
             Case: 12-15422     Date Filed: 05/21/2013    Page: 55 of 65


to be executed given the underlying factual findings that he suffers from paranoid

schizophrenia, was not malingering during the Commission’s evaluation, and

genuinely believes that he is the Prince of God. See Holsey, 694 F.3d at 1257.

The answer is yes –– fair-minded jurists could agree with that conclusion. During

the Commission’s evaluation, Ferguson informed the State’s psychiatric experts

that he had been anointed the Prince of God, that he would be resurrected at some

point after his execution to sit at “the right hand of God,” and that he would

eventually return to Earth. Nevertheless, the State’s experts, whose testimony the

state trial court credited on the question of Ferguson’s competency, noted that

Ferguson acknowledged that he was going to be executed because of the eight

murders he committed, acknowledged that he would be the first inmate to receive

Florida’s new lethal-injection protocol, and acknowledged that he would

physically die as an immediate result of being executed. Based on those facts, as

well as the absence of any outward signs that Ferguson was suffering from

cognitive disturbance or impairment, Drs. Myers and Werner were of the opinion

that Ferguson’s delusions, even if genuine, did not prevent him from having a

rational understanding of the nature of the death penalty and a rational

understanding of the reasons that it was going to be imposed on him.

      While Ferguson’s expert, Dr. Woods, offered a contrary opinion, it was not

objectively unreasonable for the state trial court to credit the expert opinions of

                                          55
             Case: 12-15422     Date Filed: 05/21/2013    Page: 56 of 65


Drs. Myers and Werner, particularly in light of the undisputed evidence that

Ferguson has, for over a decade, adequately functioned in his day-to-day life

without the need for antipsychotic medications and without exhibiting any outward

manifestations of mental illness or instability to prison officials. Moreover, two of

the prison officers who appeared at the competency hearing testified that Ferguson,

after pointing out that he had not had a warrant signed on his behalf in 35 years,

discussed with them the disposition of his remains, without any indication that he

believed that he would not physically perish. The combined testimony of all of the

State’s witnesses supports the conclusion that the nature and severity of Ferguson’s

mental illness do not render his “perception of reality so distorted” that he cannot

adequately appreciate the connection between his crimes and impending execution.

See Panetti, 551 U.S. at 960, 962, 127 S.Ct. at 2862–63. At the very least, a fair-

minded jurist could so find, as the state trial court judge and the Florida Supreme

Court did find.

      This is not the first time that a court has found someone suffering from

schizophrenia is mentally competent for one purpose or another. See Wright v.

Sec’y for Dep’t of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002) (holding that, even

under the stricter competency-to-stand-trial standard, “[t]he 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

                                          56
               Case: 12-15422       Date Filed: 05/21/2013       Page: 57 of 65


doubt” about his competency); Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d

464, 482 (11th Cir. 2012) (affirming the district court’s finding that a diagnosis of

schizophrenia is not enough to show that a defendant was incompetent to enter a

guilty plea or stand trial). After all, the Supreme Court in Panetti stated that the

requisite mental state for competency “neither presumes nor requires a person who

would be considered ‘normal,’ or even ‘rational,’ in a layperson’s understanding of

those terms.” Panetti, 551 U.S. at 959, 127 S.Ct. at 2862.

       It is also significant that the Supreme Court did not actually rule that Panetti

himself was incompetent to be executed as a result of his schizo-affective disorder

and accompanying delusions. Instead, it remanded the case to the district court to

make a decision about that in the first instance.8 Panetti, 551 U.S. at 956–62, 127

S.Ct. at 2860–63. As we have mentioned, on remand the district court concluded

that Panetti was competent to be executed despite his “severe mental illness” and

“paranoid delusions” because he nevertheless possessed a “rational understanding

of the causal connection between [his crimes] and his death sentence.” Panetti,

2008 WL 2338498, at *36–37.



       8
         Even if we were to assume that the facts of this case are materially indistinguishable
from those in Panetti, that would not render the Florida Supreme Court’s decision inconsistent
with clearly established federal law because Panetti did not reach a contrary result –– the
Supreme Court did not conclude that Panetti was incompetent to be executed. See Bell, 535 U.S.
at 694, 122 S.Ct. at 1850 (explaining that a state court decision is inconsistent with clearly
established federal law if it arrives at a different or contrary result in the face of materially
indistinguishable facts).
                                               57
             Case: 12-15422      Date Filed: 05/21/2013    Page: 58 of 65


      Both the reasoning and outcome of the Supreme Court’s decision in Panetti

leave ample room for fair-minded jurists to conclude, as the state courts did here,

that Ferguson is mentally competent to be executed despite his mental illness and

the presence of a delusional belief. See Renico, 130 S.Ct. at 1864 (explaining that,

under AEDPA, “the more general the rule at issue—and thus the greater the

potential for reasoned disagreement among fair-minded judges—the more leeway

state courts have in reaching outcomes in case-by-case determinations) (quotation

marks and alteration omitted); see also Hill v. Humphrey, 662 F.3d 1335, 1348

(11th Cir. 2011) (en banc) (concluding that the Supreme Court’s decision to leave

it to the states to develop specific standards for determining whether an inmate is

“mentally retarded” for purposes of the Eighth Amendment “makes it wholly

inappropriate for this court, by judicial fiat, to tell the States how to conduct an

inquiry into a defendant’s mental retardation”) (quotation marks omitted).

                                           C.

      We offer some closing thoughts about what has been consistently referred to

throughout this litigation, and in this opinion, as Ferguson’s delusion that he is the

Prince of God and that after he dies he will be resurrected in that capacity. The

state trial court was right about this being a “grandiose” belief. And it is not a

commonplace belief or one that most people would consider normal in the

colloquial sense. As we have pointed out several times, however, the Supreme

                                           58
             Case: 12-15422     Date Filed: 05/21/2013   Page: 59 of 65


Court stressed in Panetti that rational for purposes of competency to be executed

does not mean “‘normal,’ or even ‘rational,’ in a layperson’s understanding of

those terms.” Panetti, 551 U.S. at 959–61, 127 S.Ct. at 2862. That most people

would characterize Ferguson’s Prince-of-God belief, in the vernacular, as “crazy”

does not mean that someone who holds that belief is not competent to be executed.

      It does not mean that someone with that belief is not competent because

competence to be executed is a specific inquiry into whether the petitioner has a

rational understanding –– in the specialized Panetti sense –– of two things. One is

that he is going to be executed because of the murders he committed. Ferguson’s

Prince-of-God delusion is not necessarily inconsistent with a rational belief that he

is going to be executed because of the murders he committed.

      The second part of the Panetti standard requires a rational understanding by

Ferguson that he will die when he is executed. Ferguson’s Prince-of-God delusion,

as the state courts found it to exist (as distinguished from Dr. Woods’ belief about

it) does not rule out Ferguson having a rational understanding that he will die when

he is executed. That much is shown by the fact that the state courts found that

Ferguson, despite that delusion, knows that the execution will result in his death.

      One could argue, as Ferguson’s attorneys do, that his belief that he will be

resurrected as the Prince of God negates a rational understanding that he will be

killed and thereby establishes that he is not mentally competent to be executed.

                                         59
             Case: 12-15422     Date Filed: 05/21/2013    Page: 60 of 65


That cannot be correct. Panetti cannot mean that a belief in resurrection or other

forms of life after death is inconsistent with the rational understanding of death that

is required for mental competence to be executed. If it did mean that, most

Americans would be mentally incompetent to be executed.

      While Ferguson’s thoughts about what happens after death may seem

extreme to many people, nearly every major world religion — from Christianity to

Zoroastrianism — envisions some kind of continuation of life after death, often

including resurrection. Ferguson’s belief in his ultimate corporeal resurrection

may differ in degree, but it does not necessarily differ in kind, from the beliefs of

millions of Americans. According to a 2006 survey conducted by the AARP about

views of the afterlife held by Americans over the age of fifty, 23% of respondents

stated that they believed in reincarnation while an additional 50% believed in

another form of life after death. Jean Koppen & Gretchen Anderson, AARP,

Thoughts on the Afterlife Among U.S. Adults 50+ 4 (June 2007), available at

assets.aarp.org/rgcenter/general/afterlife.pdf (last visited April 26, 2013). A more

recent study of national surveys similarly shows that 75% of American adults

believe in some form of life after death. Andrew Singleton, Beyond Heaven?

Young People and the Afterlife, 27 J. Contemp. Religion 453, 453 (2012). Are the

courts to say that three-fourths of Americans are delusional and incompetent?




                                          60
             Case: 12-15422     Date Filed: 05/21/2013   Page: 61 of 65


      Passages in the Old Testament speak of God resurrecting bones, see Ezekial

37:13–14, while resurrection and eternal life are fundamental tenets of the New

Testament, see, e.g., 1 Corinthians 15:12; John 6:40; John 3:16. Hundreds of

millions of people worldwide share those beliefs. Zoroastrian tradition teaches

that, after a great struggle between God and the power of evil, there will be a

general resurrection of humanity, and the resurrected will pass through molten

metal to be purged of sin. Farnaz Ma’sumian, Life After Death: A Study of the

Afterlife in World Religions 24 (Oneworld Publications 1995). The Qur’an

teaches that eternal paradise awaits believers who do righteous deeds and eternal

punishment awaits those who do evil deeds. Qur’an 2:81–82. Observers of Shinto

believe that after death every person becomes a kami, a supernatural being who

continues to have a part in the life of the community, nation, and family. “Saints”

in Encyclopedia Britannica Online Academic Edition, available at

http://www.britannica.com/EBchecked/topic/516666/saint (last visited April 26,

2013).

      Tibetan Buddhists believe that the first Dalai Lama is reborn through each

successive one. “Dalai Lama,” in Encyclopedia of World Religions 275, 275

(Wendy Doniger et al. eds., Merriam-Webster 1999). Hindu sacred texts include

the story of a mortal who overcame the fear of death and became a god himself.

Christopher Moreman, Beyond the Threshold: Afterlife Beliefs and Experiences in

                                         61
              Case: 12-15422     Date Filed: 05/21/2013    Page: 62 of 65


World Religions 249 (Rowman & Littlefield Publishers 2008). Ancient Egyptians

believed that after death their pharaohs would become stars in the sky. Id. And

the list goes on and on. Which of the myriad beliefs about what happens on the

other side of death are irrational, delusional, or symptoms of mental illness?

      A conclusion that a particular belief about the afterlife and one’s role in it is

extreme enough to be irrational, delusional, and indicative of incompetence to be

executed is only a few steps away from the same conclusion about any person who

believes in resurrection, in heaven or hell, or in any variation of life after death.

Courts should be reluctant to treat as a symptom of mental illness anyone’s belief

about what will happen to him after he dies. It is beyond the ken of courts to

measure the rationality of religious beliefs –– what will happen to us after we pass

through the dark curtain of death is the ultimate non-justiciable question.

      Because the state courts’ determination that Ferguson possesses a rational

understanding of his execution and the reason for it is not “so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement,” AEDPA precludes us

from disturbing their judgment. See Harrington, 131 S.Ct. at 786–87.

                                  III. CONCLUSION

      AEDPA “reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary

                                           62
             Case: 12-15422     Date Filed: 05/21/2013   Page: 63 of 65


error correction through appeal.” Id. at 786 (quotation marks omitted) (emphasis

added). There was no extreme malfunction in his case. The Florida Supreme

Court properly applied Panetti’s “rational understanding” standard, considered

conflicting expert testimony about the nature and severity of Ferguson’s mental

illness, and made a determination about his competency to be executed that is by

no means beyond any possibility for fair-minded disagreement. AEDPA requires

that federal habeas relief be denied and that we affirm that denial.

      AFFIRMED.




                                         63
             Case: 12-15422     Date Filed: 05/21/2013   Page: 64 of 65


WILSON, Circuit Judge, concurring in the result:

      I write separately to address the Florida Supreme Court’s statement that

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007), “does not alter [its]

decision in Provenzano [v. State, 760 So. 2d 137 (Fla. 2000)].” Ferguson v. State,

Fla. 2012, __ So. 2d. __, (No. SC12-2115, Oct. 17, 2012).

      Repeating the standard from Provenzano, the Florida Supreme Court in

Ferguson declared that “the Eighth Amendment requires only that defendants be

aware of the punishment they are about to receive and the reason they are to

receive it.” Id. (citing Ford v. Wainwright, 477 U.S. 399, 422 (1986) (Powell, J.,

concurring)); see Provenzano, 760 So. 2d at 140. That statement of the law is

patently incorrect in the wake of Panetti, which explicitly held that “[a] prisoner’s

awareness of the State’s rationale for an execution is not the same as a rational

understanding of it.” 551 U.S. at 959, 127 S. Ct. at 2862 (emphasis added).

      While I acknowledge that the Florida Supreme Court was on the right track

when it stated that “Ferguson [must] understand the connection between his crime

and the punishment he is to receive for it,” Ferguson v. State, Fla. 2012, __ So. 2d.

__, (No. SC12-2115, Oct. 17, 2012) (emphasis added), its assertion that

Provenzano remains unchanged by Panetti suggests that a naked awareness

standard is sufficient. That is not so—once again, I emphasize that Panetti

requires more than just a prisoner’s ability to regurgitate the State’s announced

                                         64
             Case: 12-15422        Date Filed: 05/21/2013   Page: 65 of 65


reason for his punishment or to recite the facts attendant to his execution. Panetti

requires “a rational understanding of the reason for [that] execution.” 551 U.S. at

958, 127 S. Ct. at 2861. Therefore, insofar as the Florida Supreme Court continues

to believe that “the Eighth Amendment requires only that defendants be aware of

the punishment they are about to receive and the reason they are to receive it,”

Ferguson v. State, Fla. 2012, __ So. 2d. __, (No. SC12-2115, Oct. 17, 2012), it is

not correct; Panetti requires more.

      Having stated my concerns, and despite the Florida Supreme Court’s

acknowledgement that Ferguson is not malingering and that he suffers from mental

illness, I agree that we must defer to the Florida Supreme Court’s finding that

“[t]here is no evidence that in his current mental state Ferguson believes himself

unable to die or that he is being executed for any reason other than the murders he

was convicted of in 1978.” Id. (internal quotation marks omitted). I am therefore

obliged to concur in the result.




                                            65
