[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: 1 of 65 
2

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 

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

“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 

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

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 his hands were tied behind him. Id. One of 

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

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 

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

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.

Case: 12-15422 Date Filed: 05/21/2013 Page: 6 of 65 
7

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.

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

C. Ferguson’s Mental Health History and the Pre-2000

State Court Mental Competency Hearings

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 

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

stand trial. See Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1994). Four courtappointed experts filed reports before the Carol City trial (the one with eight 

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. 

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

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

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. 

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

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, 

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. 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 

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

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” 

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.

Ferguson, 580 F.3d 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] 

 

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).

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

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

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 

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

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 

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. 

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

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 

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 

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

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

2012. 

1. Ferguson’s Witnesses

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 

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

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

auditory hallucinations had diminished over the past decade. 

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 

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

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 

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 

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

schizophrenics are the highest functioning types of schizophrenics and can perform 

ordinary tasks in structured environments. 

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 

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

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 

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 

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

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 

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

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 

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

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. 

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

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

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

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 is highly unlikely for a schizophrenic not to 

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

Ferguson’s various inmate requests and prison grievances showed “no bleedthrough” of his professed delusions and hallucinations. He specifically identified 

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

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 a 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. 

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 

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

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. 

3. 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 

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

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

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

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. 

4. 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-CA507, 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 

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

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 

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 

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

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.

5. 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 

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 

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

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 

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

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

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 

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

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

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

“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 

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

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 

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

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

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

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 

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

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

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

— 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 

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 

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

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.

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 

 

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. 

Case: 12-15422 Date Filed: 05/21/2013 Page: 36 of 65 
37

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

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 

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

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 

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 

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

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 

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 

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

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 

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 

 

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). 

Case: 12-15422 Date Filed: 05/21/2013 Page: 40 of 65 
41

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. 

While the Supreme Court in Panetti rejected an approach foreclosing an 

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

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

“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 

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 

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

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 

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 

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

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 

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

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

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

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. 

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

 

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 

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. 

Case: 12-15422 Date Filed: 05/21/2013 Page: 45 of 65 
46

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).

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 46 of 65 
47

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 

“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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 47 of 65 
48

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 “halfbaked 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 

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. § 

Case: 12-15422 Date Filed: 05/21/2013 Page: 48 of 65 
49

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 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 49 of 65 
50

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 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 

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 

 

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.

Case: 12-15422 Date Filed: 05/21/2013 Page: 50 of 65 
51

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 

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. 

Case: 12-15422 Date Filed: 05/21/2013 Page: 51 of 65 
52

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 

understanding of his impending execution, of the fact that he will be put to death, 

and of the reasons for his execution. 

 

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.

Case: 12-15422 Date Filed: 05/21/2013 Page: 52 of 65 
53

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 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 53 of 65 
54

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 

to be executed given the underlying factual findings that he suffers from paranoid 

schizophrenia, was not malingering during the commission’s evaluation, and 

 

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.

Case: 12-15422 Date Filed: 05/21/2013 Page: 54 of 65 
55

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 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 55 of 65 
56

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 fairminded 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 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 56 of 65 
57

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. 

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 

 

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).

Case: 12-15422 Date Filed: 05/21/2013 Page: 57 of 65 
58

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 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 58 of 65 
59

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, 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. 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 59 of 65 
60

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 mentally

incompetent? 

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 60 of 65 
61

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 

World Religions 249 (Rowman & Littlefield Publishers 2008). Ancient Egyptians 

believed that after death their pharaohs would become stars in the sky. Id. And 

Case: 12-15422 Date Filed: 05/21/2013 Page: 61 of 65 
62

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 

error correction through appeal.” Id. at 786 (quotation marks omitted) (emphasis 

added). There was no extreme malfunction in his case. The Florida Supreme 

Case: 12-15422 Date Filed: 05/21/2013 Page: 62 of 65 
63

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. 

Case: 12-15422 Date Filed: 05/21/2013 Page: 63 of 65 
64

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 

Case: 12-15422 Date Filed: 05/21/2013 Page: 64 of 65 
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.

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