[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12727

____________________

THOMAS DALE FERGUSON, 

Petitioner-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF 

CORRECTIONS, 

ATTORNEY GENERAL, STATE OF ALABAMA, 

Respondents-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 3:09-cv-00138-CLS-JEO

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2 Opinion of the Court 20-12727

____________________

Before WILSON, GRANT, and LUCK, Circuit Judges.

WILSON, Circuit Judge:

Thomas Dale Ferguson is an Alabama prisoner serving a 

death sentence following his jury convictions on four counts of capital murder. After pursuing a direct appeal and post-conviction relief in the Alabama state courts, Ferguson filed a federal habeas petition under 28 U.S.C. § 2254. Ferguson appeals the district court’s 

denial of his federal habeas petition, arguing that the district court 

did not apply the proper standard for intellectual disability as required by Atkins v. Virginia, 536 U.S. 304 (2002), and erred in finding 

Ferguson was not intellectually disabled. Ferguson also contends 

that the state court’s determination that Ferguson’s counsel was 

not ineffective during the pretrial and penalty phases was an unreasonable application of Strickland v. Washington, 466 U.S 668 (1984). 

After careful review and with the benefit of oral argument, we affirm. 

I. BACKGROUND

A. Guilt Phase

In 1997, an Alabama grand jury indicted Ferguson on four

counts of capital murder in connection with the murder of Harold 

Pugh and his eleven-year-old son, Joey Pugh. Ferguson v. State, 814 

So. 2d 925, 933 (Ala. Crim. App. 2000) (Ferguson I). The murder of 

the Pughs constituted four capital counts because the killings were 

committed during a robbery in the first degree (two counts); the 

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killings involved the murder of two or more persons by one 

scheme or course of conduct; and Joey was less than fourteen years 

old at the time of his death. See Ala. Code § 13A-5-40(a)(2), (10), 

(15) (1975). 

On July 26, 1997, Ferguson and his four codefendants—Mark 

Moore, Michael Craig Maxwell, Donald Risley, and Kino Graham—robbed a bank in Mississippi. Ferguson I, 814 So. 2d at 934. 

Prior to robbing the bank, they went looking for a getaway vehicle

at a local boat landing. Id. at 935. Ultimately, they decided to steal 

a truck belonging to Harold Pugh. Id. As Harold and Joey arrived 

at the boat landing, Maxwell ordered the Pughs back onto their

boat. Id. After getting on the boat and heading downstream, Ferguson shot Harold and Maxwell shot Joey. Id. at 937. The jury 

found Ferguson guilty on all four counts of capital murder. Id. at 

933.

B. Sentencing

During the sentencing phase, Ferguson called Dr. James 

Chudy, a clinical psychologist who had evaluated Ferguson for the 

sentencing phase. Dr. Chudy testified that Ferguson was not intellectually disabled but that Ferguson’s IQ was likely in the borderline range. Id. at 962. Further, Dr. Chudy testified that 

this borderline intelligence could possibly impair Ferguson’s “reasoning in social situations”; that it could 

affect his ability to “reason abstractly”; and that it 

could “diminish to a degree” his ability to appreciate 

the consequences of his actions. In addition, Dr. 

Chudy diagnosed Ferguson as having a “personality 

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disorder” with borderline features. Dr. Chudy stated 

that this disorder could result in mood swings that 

could affect Ferguson’s relationships. Dr. Chudy also 

stated that Ferguson may have some “transient or 

brief ” psychotic periods where he is “out of touch 

with reality.” However, in his written report, Dr. 

Chudy stated that Ferguson’s claims of psychotic episodes—i.e., hearing voices that told him to do things 

to other people and having hallucinations of people 

and objects moving—were “difficult to substantiate” 

and that the accuracy of those claims “remains in 

question.” Dr. Chudy also stated in his report that 

there were “no signs of disturbance in [Ferguson’s] 

thinking”; that Ferguson was not psychotic; and that 

Ferguson’s thinking was merely “illogical.”

Id. at 962–63.

Ferguson also called his wife, Karen Ferguson. She testified 

that they were married in November 1992, that Ferguson had a job 

most of the time they were married, and that Ferguson was not 

violent. Karen also testified that Ferguson was mentally slow, and

that she made all the decisions in their marriage, often telling Ferguson what to do. 

On rebuttal, Alabama called Dr. Stephen Rosen, a clinical 

psychologist, who examined Ferguson before trial pursuant to a 

court order. Dr. Rosen testified that Ferguson was not intellectually disabled despite his IQ score of 69, but Ferguson’s IQ was likely 

in the borderline range. Id. at 963. Further, Dr. Rosen testified that 

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Ferguson first told him that he did not do it and then 

said that he was an unwilling participant; by the end 

of the evaluation, however, Ferguson was claiming 

that voices had told him to commit the crime. Dr. 

Rosen stated that during the evaluation Ferguson attempted to give him “the impression that he was 

more disturbed than in fact he was” by exaggerating 

and claiming symptoms he believed to be signs of a 

mental disorder—specifically, by claiming that he 

heard voices and saw “little green men [who] were 

laughing and telling him to do things.” Dr. Rosen, 

like Dr. Chudy, also diagnosed Ferguson as having a 

personality disorder and stated that the disorder could 

result in mood swings, antisocial traits, and perhaps 

some transient or temporary episodes where Ferguson is “out of touch with reality.”

Id.

Alabama argued the existence of one aggravating circumstance: the capital offense (murders) was committed during a robbery. Ferguson argued the existence of five mitigating circumstances, including his character. Ferguson presented evidence of 

his character—his school records, his relationship with his father 

(who was actually his stepfather), and his low IQ. After hearing all 

the testimony and considering the evidence, the jury 

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recommended, 11 to 1, a sentence of life in prison without the possibility of parole.1 

At sentencing, the trial judge found one statutory aggravating circumstance: the murders were committed while Ferguson 

was engaged in a robbery. The trial judge found one statutory mitigating circumstance: Ferguson had no significant history of prior 

criminal activity. The trial judge did find the following evidence to 

be mitigating: (1) Ferguson’s surrender and confession to authorities, and (2) the jury’s recommendation of life imprisonment. Yet 

when discussing the jury recommendation, the trial court found 

that Ferguson’s age at the time of the crime (24) was not a mitigating circumstance.

Ultimately, the trial court overruled the jury’s vote and sentenced Ferguson to death. The trial judge explained:

The Court does find that there is a reasonable basis 

for enhancing the jury’s recommendation of life imprisonment without parole for the reasons stated 

herein, and this was a murder of a[n] adult man and 

his young son during a robbery, and [Ferguson] had 

the opportunity to reflect and withdraw from his actions and chose not to do so; that [Ferguson’s] 

1 In a capital case, Alabama now requires that the jury’s sentencing verdict

binds the trial court and is no longer a recommendation to be overridden by 

the judge. Ala. Code § 13A-5-47(a) (“Where the jury has returned a verdict of 

death, the court shall sentence the defendant to death. Where a sentence of 

death is not returned by the jury, the court shall sentence the defendant to life 

imprisonment without parole.”).

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capacity to appreciate the criminality of his conduct 

or to conform his conduct to the requirements of the 

law was not substantially impaired. 

Ferguson appealed, and relevant to this appeal, he argued 

that the trial court erred in not finding as a nonstatutory mitigating 

circumstance that he was intellectually disabled. Ferguson I, 814 So. 

2d at 965. The Alabama Court of Criminal Appeals (ACCA) noted 

that “the trial court did refer to the evidence of Ferguson’s low intelligence in several parts of its sentencing order.” Id. The ACCA 

found that the “trial court did not err in not finding, as a nonstatutory mitigating circumstance, that Ferguson was” intellectually disabled because there was no evidence in the record to support that

finding. Id. Ultimately, the ACCA affirmed Ferguson’s conviction 

and death sentence. Ferguson I, 814 So. 2d at 970. 

The Supreme Court of Alabama reviewed Ferguson’s petition and found that there was no error in the ACCA’s opinion. Ex 

parte Ferguson, 814 So. 2d 970, 975 (Ala. 2001). The United States 

Supreme Court denied Ferguson’s petition for a writ of certiorari. 

Ferguson v. Alabama, 535 U.S. 907 (2002). 

C. State Post-Conviction Proceedings

In March 2003, Ferguson petitioned for a writ of habeas corpus in state trial court, also called a Rule 32 petition in Alabama. 

Although Ferguson made several claims in his Rule 32 petition, this 

section only discusses the issues involved in this appeal. First, Ferguson argued that he is intellectually disabled and thus constitutionally protected from being sentenced to death under Atkins v. 

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Virginia, 536 U.S. 304 (2002). To support the first prong of his Atkins 

claim, Ferguson pointed to his full-scale IQ score of 71 when he 

was in the sixth grade and his full-scale IQ score of 69 when he was 

awaiting trial. Ferguson then detailed how he established at trial 

that he had severe limitations in adaptive functioning, including being placed in special educational programs at school. 

Then, Ferguson also asserted many ineffective assistance of 

counsel claims, both at the pretrial and sentencing phases. For the 

pretrial stage, Ferguson argued that his counsel was ineffective for

failing to act in his interest by providing inadequate representation 

during his statement to the police. Specifically, Ferguson asserted 

that his trial counsel failed to adequately advise him of his rights

and encouraged Ferguson to talk to the police even without a plea 

deal. Ferguson also argued that his trial counsel failed to conduct 

an adequate independent investigation. To support his argument, 

Ferguson stated that his trial counsel had minimal contact with his 

family, failed to investigate the other suspects, and did not gather 

evidence to support his mental health defense. 

For the sentencing phase, Ferguson argued that trial counsel 

was ineffective for failing to adequately investigate and present mitigation evidence. Relevant to this appeal, Ferguson argued that his 

trial counsel failed to contact and interview people who had 

knowledge about the abuse Ferguson suffered at the hands of his 

stepfather. Ferguson detailed his family history and explained how 

his stepfather routinely abused Ferguson’s mother, Betty, and his 

half-brothers. Ferguson explained that witnesses would have 

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testified about how his stepfather beat Betty to the point that she 

attempted suicide, which led to her institutionalization. Ferguson

argued that if his trial counsel had interviewed these witnesses, 

they would have been able to present a stronger, more sympathetic 

argument during the mitigation phase of sentencing.

In October 2006, the state trial court denied Ferguson’s request for an evidentiary hearing and summarily denied his Rule 32

petition. In addressing Ferguson’s Atkins claim, the trial court discussed Ferguson’s IQ scores and how he often gave up easily on 

those tests, which resulted in lower scores. The trial court also 

stated that the expert opinions both concluded that Ferguson was 

not intellectually disabled. Ultimately, the trial court concluded

that Ferguson’s IQ was “best classified as borderline to low average 

intellectual functioning.” 

The trial court then moved on to discuss the evidence about 

whether Ferguson exhibited significant or substantial deficits in 

adaptive functioning. The trial court reviewed Ferguson’s work 

history, including a promotion, and then discussed Ferguson’s ability to develop relationships, including his marriage and his actions 

during and after the crime. After considering all the evidence, the 

trial court found that Ferguson “demonstrated a high level of adaptive functioning.” Thus, the trial court found that “Ferguson does 

not meet either the intelligence or adaptive functioning elements 

necessary to establish” intellectual disability, and thus he was not 

intellectually disabled. 

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The trial court also found that Ferguson’s ineffective assistance claim that his counsel should have prevented him from making inculpatory statements to police lacked merit. Specifically, the 

trial court found that, based on the transcript of Ferguson’s confession, Ferguson initially contacted the police to give his statement,

and his lawyer advised Ferguson of his right to remain silent and of 

the possible consequences of speaking. Next, the trial court found 

Ferguson’s arguments that his counsel failed to conduct an adequate independent investigation to be insufficiently pleaded under 

Alabama Rule of Criminal Procedure 32.6(b). 

Turning to Ferguson’s penalty phase arguments, the trial 

court found that Ferguson could not demonstrate deficient performance or prejudice as required by Strickland v. Washington, 466 U.S. 

668 (1984). Specifically, the trial court explained that “[t]rial counsel’s investigation of Ferguson’s case and presentation of mitigating 

evidence was more than reasonable in light of the circumstances of 

the case. The reasonableness of trial counsel’s mitigation strategy 

is supported by the jury’s 11 to 1 recommendation of life without 

parole.” The trial court went through Ferguson’s allegations about 

his childhood abuse and how that information was already in the 

record through Dr. Chudy’s notes and Karen’s testimony. The trial 

court also explained that “[e]ven if the Court assumed that the allegations in the petition are true and that counsel could have presented additional witnesses to testify regarding Ferguson’s abuse as 

a child, . . . the evidence would be nothing more than cumulative 

to that already presented.” The trial court also agreed with the 

sentencing judge who determined that Ferguson’s “difficult 

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childhood” was not a mitigating factor. Specifically, the trial court 

noted that 

Ferguson was 24 years old at the time of the crime. 

He had been married for five years and was able to 

support himself and his wife while she attended nursing school. Under the circumstances of this case, the 

petitioner’s allegations of child abuse and borderline 

intellect, even if true, would not mitigate his actions

as an adult.

In April 2008, the ACCA affirmed the state trial court’s decision. Ferguson v. State, 13 So. 3d 418, 445 (Ala. Crim. App. 2008)

(Ferguson II). In regard to Ferguson’s Atkins claim, the ACCA reviewed the record of both Ferguson’s direct criminal appeal and 

post-conviction proceedings and then re-stated verbatim the trial 

court’s findings from Ferguson’s post-conviction proceedings. Id. 

at 433–36. Ultimately, the ACCA concluded that “the circuit court’s 

findings are more than supported by the record.” Id. at 435–36. 

The ACCA found that Ferguson was not intellectually disabled. Id. 

at 436. 

Next, the ACCA reviewed Ferguson’s ineffective assistance 

claims. First, as to Ferguson’s claim that his counsel was ineffective 

during Ferguson’s statements to the police, the ACCA found the 

trial court’s dismissal of that claim proper. The ACCA noted that 

the day after Ferguson’s arrest, he spoke with the police alongside 

his counsel, Tony Glenn. Id. at 437–38. The ACCA reprinted the 

following exchange between Glenn and Ferguson:

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Mr. Glenn: Dale, you called me earlier today and you 

told me that you wanted to try and help yourself with 

the Colbert County Sheriff’s Department and the FBI 

on these charges that are here pending today. You had 

information you thought would help them. You realize that I have gone over with you your rights and told 

you that you don’t have to talk, but it is your—but you 

have informed me that you choose to help at this 

point to try to help yourself; is that correct?

Mr. Ferguson: Yes, sir.

Mr. Glenn: Do you realize that there are no deals at 

this point?

Mr. Ferguson: Yes, sir.

Mr. Glenn: That what you are doing is voluntary and 

you are doing it to try to help yourself in furtherance—

Mr. Ferguson: Yes, sir.

Mr. Glenn: —of this; is that correct?

Mr. Ferguson: Yes, sir.

Mr. Glenn: And this is what you want to do?

Mr. Ferguson: Yes, sir.

Mr. Glenn: And do you realize that this is on the record, this tape that we are making here today can and 

will more than likely be used in court?

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Mr. Ferguson: Yes, sir.

Mr. Glenn: Okay. With that, do you want to go forward?

Mr. Ferguson: Yes, sir. 

Id. at 438. Following this exchange, Ferguson ultimately confessed. 

See id.

In reviewing the above exchange, the ACCA noted that Ferguson himself suggested that he make the inculpatory statement 

to the police, not Ferguson’s counsel. Id. The ACCA adopted the 

trial court’s finding that Ferguson’s statements were voluntarily 

made and concluded that his attorney, Glenn, could not “be held 

ineffective for the informed and voluntary choices of [his] client.” 

Id. at 438–39. 

When pursuing his clam that his trial counsel failed to conduct an adequate independent investigation, Ferguson argued that 

“[t]rial counsel’s performance was also objectively deficient, for 

many reasons and including the unavailability of sufficient funds 

for a thorough defense.” Id. at 439. Then, the ACCA addressed:

In a footnote, he then purports not to waive any claim 

presented in his petition or apparent from the record. 

However, he does not set forth any facts or argument 

in support of his bare contention. Rather, he simply 

moves to his next ineffective-assistance allegation. 

Therefore, he has not complied with the requirements set forth in Rule 28(a)(10), Ala. R. App. P., as to 

this allegation.

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Id. 

Last, as to Ferguson’s ineffective assistance claim, the ACCA 

again repeated the findings from the trial court and adopted them 

as part of the ACCA’s opinion finding that summary dismissal was 

proper. Id. at 439–43. 

In January 2009, the Supreme Court of Alabama denied Ferguson’s petition for certiorari. 

D. Federal § 2254 Proceedings

In 2009, Ferguson filed a federal habeas petition in the 

Northern District of Alabama. Relevant to this appeal, Ferguson 

challenged the state court’s failure to give him an Atkins hearing on 

his intellectual disability claim and the state court’s determination 

on his ineffective assistance of counsel claims. The district court 

denied Ferguson’s petition on all grounds. 

Ferguson then moved to amend the judgment because, 

among other reasons, courts cannot rely on “pre-Atkins evidence to 

determine if a petitioner qualifies for relief under Atkins.” The district court granted Ferguson’s request and vacated the portion of 

its prior order regarding Ferguson’s Atkins claim. 

On August 27, 2019, the district court held an evidentiary 

hearing on Ferguson’s Atkins claim and heard from two experts. 

Ferguson retained Dr. Robert Shaffer to evaluate his “cognitive and 

intellectual functions, and his adaptive behavior” to determine 

whether Ferguson was intellectually disabled and thus ineligible for

the death penalty. Alabama retained Dr. Glen King “to primarily 

determine the intellectual ability of ” Ferguson. 

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To prevail on his Atkins claim, Ferguson had to prove that he 

had significantly subaverage intellectual functioning (IQ of 70 or 

below), substantial deficits in adaptive behavior, and the manifestation of those problems before Ferguson reached the age of 18. See 

Smith v. State, 213 So. 3d 239, 248 (Ala. 2007). At the hearing, the 

district court also heard about Ferguson’s prior IQ scores, received 

prior expert reports about Ferguson’s intellectual disability, and reviewed Ferguson’s school reports, which included prior IQ testing. 

The next paragraphs lay out in chronological order the evidence 

Ferguson presented to the district court to support his Atkins claim. 

In November 1979, Ferguson obtained a full-scale IQ score 

of 77 on the Stanford-Binet Intelligence Scale (Binet). Before the 

1985–1986 school year, Ferguson was evaluated for special education services because of a “lack of academic progress, suspected 

learning disability, deficient reading skills, and deficient handwriting skills.” Using the Wechsler Intelligence Scale for Children-Revised (WISC-R), Ferguson achieved a verbal IQ score of 74, a performance IQ score of 71, and a full-scale IQ score of 71. The evaluator noted that Ferguson “gave up easily on both verbal and nonverbal items,” and he “did not appear to be challenged by the more 

difficult items on the test.” Using the results, the school found Ferguson was eligible for special services as “educationally mentally 

handicapped.” Within the report, the evaluator explained that Ferguson’s prior IQ score of 77 on the Binet was consistent with his 

current WISC-R score. 

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In 1988, pursuant to school policy, the school re-evaluated 

Ferguson, and he achieved a verbal IQ score of 87, performance IQ 

score of 88, and a full-scale IQ score of 87. As a result, the school 

moved Ferguson to normal classes, but he received special assistance such as receiving help with certain subjects, having more 

time to take a test, or having someone read the test to him. 

In December 1997, Dr. Rosen administered the Wechsler 

Adult Intelligence Scale-Revised (WAIS-R), and Ferguson achieved 

a verbal IQ score of 76, a performance IQ score of 66, and a fullscale IQ score of 69. But Dr. Rosen noted that it was “quite apparent that [Ferguson] did not make a good effort in this test, giving 

up readily on many items and seemingly not trying as hard as possible.” At Ferguson’s criminal trial, Dr. Rosen expounded on Ferguson’s lack of effort by noting that Ferguson’s assessment revealed

a “somewhat inconsistent pattern” where he would get the earlier, 

simpler questions wrong but would then get later, harder questions 

right. Dr. Rosen testified that he did not see any signs of intellectual disability, but that Ferguson’s intellectual abilities were below 

average—in the borderline intellectual functioning range with an 

IQ between 70 and 84. Dr. Rosen testified that if Ferguson had “really tried [then] he would have scored probably in the middle 70’s 

for most of them, perhaps higher.” 

In June 1998, after conducting a psychological evaluation, 

Dr. Chudy did not provide a specific IQ score but noted that the 

Shipley Institute of Living Scale placed Ferguson in the borderline 

intellectual range at about the fifth percentile. Dr. Chudy also 

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testified that borderline intellectual functioning covers “the area between low average intelligence and” intellectual disability. 

In preparation for the evidentiary hearing, between September 2017 and March 2018, Dr. Shaffer met with Ferguson and interviewed Ferguson’s mother, Betty. Dr. Shaffer administered the 

Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), and 

Ferguson received a full-scale IQ score of 77. But after applying the 

Flynn Effect2 and the standard error of measurement (SEM),3 Dr. 

Shaffer explained that Ferguson’s IQ fell between 69.4 and 78.4 with 

95% probability, or between 67.9 and 78.9 with a confidence level 

of 99%. Dr. Shaffer determined that the totality of the test scores 

aligned with his opinion that Ferguson has significant limitations in 

his ability to function intellectually, despite some tests not showing 

substantial impairments. As for adaptive functioning, Dr. Shaffer 

administered the Vineland Adaptive Behavior Scales Test

2 The Flynn Effect refers to findings by Dr. James Flynn that average IQ scores 

have increased steadily by roughly .3 points every year since the IQ test was 

normed. Thus, when applying the Flynn Effect, the evaluator looks at when 

the test was normed (approximately mid-2007 for the Wechsler Fourth Edition) and when the test was administered (September 2017), then determines 

the difference (here 10.2 years), and subsequently multiplies it by .3 (the annual increase) to get a set number (3.06), which is subtracted from the fullscale IQ score (77). So Ferguson’s September 2017 full-scale score of 77 would 

be reduced by 3.06 points to 73.94 if adjusted for the Flynn Effect.

3 The SEM typically involves a range from five below to five above the set IQ. 

This provides a range for the IQ score, which likely gives a better estimate 

than a fixed number for the person’s IQ. 

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(Vineland)4 to Betty Ferguson because she could provide observations of Ferguson at the age of 18. Considering Betty’s responses

about Ferguson at the age of 18, Ferguson’s Vineland scores 

showed 67 in communication, 67 in daily living skills, and 68 in socialization, giving him a composite score of 63. This placed him in 

the first percentile, meaning that 99 percent of comparable eighteen-year-olds had greater skills and abilities to perform daily routines than Ferguson did at the age of 18. Dr. Shaffer concluded that 

those findings justified an intellectual disability diagnosis. 

In February 2018, Dr. King evaluated Ferguson and administered the WAIS-IV and the Stanford-Binet Intelligence Test, Fifth 

Edition (SB-5). Ferguson received a score of 85 on the WAIS-IV and 

a score of 84 on the SB-5. Dr. King adjusted Ferguson’s score on

the WAIS-IV using the SEM, providing a range of 81 to 89. Dr. King 

administered the Adaptive Behavior Assessment System where Ferguson rated his own abilities on whether he could perform several 

tasks. Ferguson highly rated his ability to complete the identified 

tasks. Dr. King also administered the Independent Living Scales,

which measures practical abilities of managing money, health and 

safety, social adjustment, and problem solving. Dr. King testified 

about Ferguson’s performance on the test and noted his belief that 

Ferguson did not have subaverage intellectual functioning and that 

4 The Vineland looks at three domains of adaptive behavior: communication 

skills, daily living skills, and social skills. Typically, the Vineland is administered to parents, caregivers, or teachers rather than the person whose IQ is at 

issue. 

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there was no indication of poor adaptive functioning (only lower 

social adjustment which is expected from being on death row). 

After the evidentiary hearing, the district court denied Ferguson’s request for relief, concluding that Ferguson failed to establish by a preponderance of the evidence that he has an intellectual 

disability. The district court gathered and identified all of Ferguson’s IQ scores, as detailed below:5

Test 

Date

IQ Test 

Given

Full Scale 

Score

Flynn Effect 

Adjustment

SEM Range

1979 SB-3 77 75.2 70.2–80.2

1985 WISC-R 71 67.7 62.7–72.7

1988 WISC-R 87 82.2 77.2–87.2

1997 WAIS-R 69 64.2 59.2–69.2

2017 WAIS-IV 77 74.3 69.3–79.3

2018 WAIS-IV

SB-5

78

84

75.15

79.6

70.15–80.15

74.6–84.6

5 This chart comes from the district court’s order but does not contain the 

column listing when the IQ tests were normed, nor does it contain the corresponding footnotes. We have also adjusted the 2018 SB-5 score to correct an 

error recognized by the district court in a subsequent order—the court initially 

reduced the SB-5 score for “practice effect,” but later acknowledged that the 

practice-effect reduction applied only to the 2018 WAIS-IV score. Of note, the 

district court correctly identified the years the tests were normed but still 

made mathematical errors when calculating the Flynn Effect. See supra n. 2. 

Ferguson does not argue these errors nor do they make a difference in our 

ultimate decision. Thus, we use the calculation provided by the district court. 

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The district court reduced the 2018 WAIS-IV IQ score by 7 

points for practice effect6 because Dr. King re-administered the 

same test Dr. Shaffer administered five months earlier. 

Considering his evaluators also noted that Ferguson did not 

try on some of his IQ tests (specifically the ones where he scored 

below 70), the district court found that Ferguson did not suffer 

from “significantly subaverage intellectual functioning.” As for 

adaptive behavior, the district court found that Ferguson failed to 

show “substantial present limitations” in adaptive functioning and 

that most of the evidence produced focused on the time before and 

during Ferguson’s trial. The district court did not address whether 

his IQ scores and deficits in adaptive functioning manifested before 

Ferguson reached 18-years-old. 

Ferguson timely appealed the district court’s denial of habeas relief. First, Ferguson argues that the district court clearly 

erred in finding that he was not intellectually disabled. Second, Ferguson argues that his trial counsel was ineffective at multiple stages 

of his case and thus the ACCA’s decision is an unreasonable application of Strickland. We will address each argument in turn.

6 In citing a 2012 study, the district court explained that when “the WAIS-IV 

was re-administered at three or six months after the initial, baseline administration of that test[, the study] found that their Full-Scale IQ score increased 

an average of 7 points.” 

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II. INTELLECTUAL DISABILITY CLAIM

Ferguson argues that the district court erred in two ways 

concerning his Atkins claim.7 First, Ferguson argues that the district court erred in requiring him to show that he presently suffered

from substantial deficits in adaptive functioning at the time of his 

Atkins hearing, which occurred over twenty years after the crime. 

Second, regardless of the standard, Ferguson argues that the district 

court clearly erred in finding him not intellectually disabled. 

“A determination as to whether a person is [intellectually 

disabled] is a finding of fact.” Fults v. GDCP Warden, 764 F.3d 1311, 

1319 (11th Cir. 2014). “We review for clear error a district court’s 

finding that an individual is not intellectually disabled.” Ledford v. 

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 632 

(11th Cir. 2016). “[A] finding is ‘clearly erroneous’ when although 

there is evidence to support it, the reviewing court on the entire 

7 In its order granting Ferguson’s motion to alter or amend the judgment as 

to his Atkins claim, the district court, citing Burgess v. Commissioner, Alabama 

Department of Corrections, 723 F.3d 1308, 1317 (11th Cir. 2013), agreed with Ferguson’s argument that it was an unreasonable application of Atkins to consider

potential mitigation information produced before the Atkins decision to determine whether Ferguson is intellectually disabled. Not until oral argument 

when this court asked Alabama whether the district court erred in having an

evidentiary hearing did Alabama contest the district court’s order setting and 

conducting an evidentiary hearing. But Alabama’s argument in response was 

conclusory at best. Here, we make no determination about whether the district court erred in holding an evidentiary hearing and reviewing Ferguson’s 

Atkins claim de novo, and we will only review the district court’s finding that 

Ferguson is not intellectually disabled.

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22 Opinion of the Court 20-12727

evidence is left with the definite and firm conviction that a mistake 

has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 

573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 

395 (1948)).

In Atkins, the Supreme Court held that the execution of intellectually disabled people violates the Eighth Amendment, leaving to the individual states “the task of developing appropriate 

ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 U.S. at 317. But the Supreme Court noted 

that “clinical definitions of [intellectual disability] require not only 

subaverage intellectual functioning, but also significant limitations 

in adaptive skills” that manifested before the age of 18. Id. at 318.

In Ex Parte Perkins, the Supreme Court of Alabama discussed

the Supreme Court’s decision in Atkins and how the broadest definition of intellectual disability requires the prisoner to prove: (1) 

significantly subaverage intellectual functioning (IQ below 70), (2) 

significant deficits in adaptive functioning, and (3) that both issues

manifested before the age of 18. 851 So. 2d 453, 456 (Ala. 2002). 

Later in Smith, Alabama formally adopted the broadest definition 

and requires that “in order for an offender to be considered [intellectually disabled] in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit 

deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” 213 So. 3d at 248. 

Turning to Ferguson’s arguments, he contends that by requiring a showing of present deficits in adaptive functioning, 

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Alabama’s standard for determining intellectual disability conflicts 

with Atkins and is thus unconstitutional. Regardless of the validity 

of Alabama’s requirement that Ferguson must demonstrate substantial present limitations in adaptive functioning, under Smith, 

Ferguson also has to show he possessed significantly subaverage 

intellectual functioning. Because the district court found Ferguson 

at no point had subaverage intellectual functioning, and because 

Ferguson has not shown the district court clearly erred in making 

that finding, we need not address whether requiring present significant deficits in adaptive functioning runs afoul of Atkins. 

We now turn to Ferguson’s argument about his intellectual 

functioning. Specifically, Ferguson argues that when considering 

all his IQ scores, including when adjusted for the Flynn Effect and 

after the SEM has been applied, he has significantly subaverage intellectual functioning. We disagree. 

After reviewing all the evidence, the district court found that 

when adjusted for the Flynn Effect, all but two of Ferguson’s IQ 

scores were above 70, the rough cutoff for intellectual disability. 

The two IQ scores below 70 were the 1985 IQ test (score of 67.7) 

and the 1997 IQ test (score of 64.2). The district court discounted 

those two scores based on evidence that Ferguson did not put forth 

his best effort on those tests. Because we have held that the trier 

of fact can discount IQ scores when there is evidence of malingering, Clemons v. Comm’r, Alabama Department of Corrections, 967 F.3d 

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24 Opinion of the Court 20-12727

1231, 1248 (11th Cir. 2020),8 we cannot say that the district court’s 

factual finding about Ferguson’s IQ scores is clearly erroneous. 

Ferguson asserts that we should find the district court clearly 

erred in discounting the two sub-70 scores because the remaining 

tests, including the most recent ones, showed that Ferguson put in 

the appropriate effort. Ferguson’s argument misses the mark. Ferguson wants us to require the district court to impute his legitimate

effort expended on later tests to all of his tests. This would be an 

error—just like it would have been an error had the district court 

imputed the malingering accusations onto all of Ferguson’s IQ 

scores. Rather, the district court properly reviewed each IQ score 

and any notes from the corresponding evaluator to weigh whether

to credit those scores. Both challenged tests included notations 

from the evaluators about Ferguson’s lack of effort, and the district 

court weighed those records, including Dr. Rosen’s credentials, to 

determine whether he could have reasonably arrived at his conclusion. See Clemons, 967 F.3d at 1248. We find that the district court 

took the correct approach, and the record supports its finding. 

8 Although Clemons involved reviewing the petitioner’s Atkins claim through 

the lens of the Antiterrorism and Effective Death Penalty Act of 1996, we see 

no reason why a district court, sitting as the trier of fact, should not be allowed 

to discount IQ scores when there is evidence of malingering. 

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After the SEM is applied, only one other test has a range that 

falls below 70: the 2017 IQ test.9 But, importantly, the SEM “is 

merely a factor to consider when assessing an individual’s intellectual functioning—one that may benefit or hurt that individual’s Atkins claim, depending on the content and quality of expert testimony presented.” Ledford, 818 F.3d at 640–41.

We find that the district court committed no clear error in 

its consideration of those IQ scores and the SEM range associated 

with those scores. Ferguson’s 2017 IQ score of 77 would yield a 

SEM IQ range (after being adjusted for the Flynn Effect) of 69.3–

79.3.10 The other four scores considered by the district court 

ranged from just above 70 at the low end of the SEM range to 87.2 

at the high end. The experts disagreed as to whether Ferguson’s

intellectual functioning may be higher or lower than his overall IQ 

score reflected. For example, the trial experts—one appointed by 

the court and one called by Ferguson—testified that Ferguson’s 

9 Although the 1985 and 1997 IQ scores would produce a range below 70, we 

need not address the SEM range for those tests because we found that the district court properly discredited those IQ scores based on malingering. 

10 The district court, as we explained earlier, discounted Ferguson’s IQ scores 

based on the Flynn Effect and (as to the 2018 WAIS-IV score) the practice effect. For clarity, we repeat what we’ve said in other cases: while a factfinder 

may consider both effects in assessing an offender’s possible intellectual disability (if there’s evidence to support them), it is not required to consider them. 

See Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248, 1276 (11th Cir. 2020); 

Raulerson v. Warden, 928 F.3d 987, 1008 (11th Cir. 2019); Ledford, 818 F.3d at 

638–39.

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intellectual functioning was above the disabled range. Twenty 

years later, at the evidentiary hearing, Dr. Shaffer explained there 

was a 95% probability that Ferguson’s full scale IQ score was between 69.4–78.4. As a result, Dr. Shaffer found that Ferguson had 

significantly subaverage intellectual functioning because his IQ 

could be less than 70. But Dr. King testified that, considering Ferguson’s IQ scores and the SEM ranges, Ferguson’s IQ placed him 

at either the high end of the borderline range (70–84) or at the low 

end of the average range (85–115). In ultimately concluding that 

Ferguson had not shown significantly subaverage intellectual functioning, the district court credited Dr. King’s testimony over Dr. 

Shaffer, which is plausible in light of the record. See Ledford, 818 

F.3d at 641 (“So long as the district court’s findings regarding how 

the standard error of measurement informs its ultimate intellectual 

functioning determination are plausible in light of the record evidence viewed in its entirety, there will be no clear error.”). 

* * * 

Because the district court’s finding that Ferguson is not intellectually disabled is plausible in light of the entire record, it is not 

clearly erroneous. See Anderson, 470 U.S. at 573–74 (“If the district 

court’s account of the evidence is plausible in light of the record 

viewed in its entirety, the court of appeals may not reverse it even 

though convinced that had it been sitting as the trier of fact, it 

would have weighed the evidence differently.”). We therefore affirm the district court on this point. 

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20-12727 Opinion of the Court 27

III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Ferguson argues that his trial counsel was ineffective during 

both the pretrial and sentencing stages of his case. The ACCA denied Ferguson’s ineffective assistance of counsel claims, so our review is subject to the Antiterrorism and Effective Death Penalty Act 

of 1996, 28 U.S.C. § 2554 (AEDPA). See Lynch v. Sec’y, Fla. Dep’t of 

Corr., 776 F.3d 1209, 1217 (11th Cir. 2015).

Under AEDPA, a federal court can grant relief to a state prisoner only if he shows that the state court’s determination of his 

claim resulted in a decision that was (1) “contrary to, or involved 

an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States,” or (2) 

“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)(1)–(2). 

Here, Ferguson argues that the ACCA’s decision is an unreasonable application of Strickland v. Washington, 466 U.S 668 (1984). 

Thus, we will only review whether the ACCA unreasonably applied Strickland under § 2254(d)(1).

A state habeas court’s decision is an “unreasonable application” of clearly established federal law “if the state court identifies 

the correct governing legal principle from [the Supreme Court’s] 

decisions but unreasonably applies that principle to the facts of the 

prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). “To 

satisfy this high bar, a habeas petitioner is required to show that the 

state court’s ruling . . . was so lacking in justification that there was 

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28 Opinion of the Court 20-12727

an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam) (internal quotation marks 

omitted). 

To succeed on an ineffective assistance of counsel claim, a 

criminal defendant must show: (1) that his lawyer rendered deficient performance, such that he “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 

Amendment,” and (2) that those errors prejudiced the defense, 

such that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 687, 694. As the Supreme 

Court described it, a “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 

As to deficient performance, courts must “indulge a strong 

presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Id. at 689. “To overcome that 

presumption, a defendant must show that counsel failed to act reasonably considering all the circumstances.” Cullen v. Pinholster, 563 

U.S. 170, 189 (2011) (alteration adopted and internal quotation 

marks omitted). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable,” but, importantly, “strategic choices made after 

less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations 

on investigation.” Strickland, 466 U.S. at 690–91. “In other words, 

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counsel has a duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary.” Id. at 691.

As noted above, to establish prejudice, the defendant “need 

not show that counsel’s deficient conduct more likely than not altered the outcome in the case”; he need only show a reasonable 

probability of a different outcome, which requires a showing “sufficient to undermine confidence in the outcome.” Id. at 693–94. A 

court deciding an ineffectiveness claim need not “address both 

components of the inquiry if the defendant makes an insufficient 

showing on one.” Id. at 697.

Ferguson argues that his trial counsel erred at both the presentencing phase and the penalty phase. We will address each 

phase, and Ferguson’s arguments under each, in turn.

A. Pre-Sentencing Phase

Ferguson argues that his trial counsel erred in two ways during the pre-sentencing phase. First, Ferguson’s trial counsel was 

ineffective for not acting in Ferguson’s best interest during Ferguson’s statement to law enforcement. Second, Ferguson’s trial 

counsel was ineffective for failing to conduct an adequate pretrial 

investigation into Ferguson’s mental health evidence and possible 

intellectual disabilities for the guilt phase. 

i. Confession

Ferguson argues that, for two reasons, his trial counsel was 

ineffective at the time he gave his statements to law enforcement, 

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30 Opinion of the Court 20-12727

and that, as a result, he was prejudiced to an extent sufficient to 

warrant relief under Strickland. 

First, Ferguson argues that his trial counsel was deficient for 

letting him speak with law enforcement shortly after his arrest. As 

discussed above and as the ACCA noted, Ferguson called his counsel, Glenn, to set up a time for Ferguson to give a statement to police. Then Glenn explained that there was no deal on the table and 

that any statements made would be used against Ferguson. As the 

ACCA noted, Ferguson conveyed that he understood his rights and 

wanted to move forward with the statement. 

Ferguson has failed to show how the ACCA unreasonably

applied Strickland. Ferguson attempts to argue that his attorney 

should have instructed him to remain silent absent a deal. But as 

the ACCA noted, Ferguson requested the meeting where Glenn appeared at the confession with Ferguson and explained Ferguson’s 

rights to him. Glenn then explained that there were no deals on 

the table and that Ferguson’s statements would likely be used in 

court—important information to help Ferguson decide whether to 

move forward with speaking to the police. As the ACCA noted,

and confirmed by the transcripts, Ferguson understood those rights 

and still made the decision to proceed after speaking with Glenn. 

Ferguson II, 13 So. 3d at 438.

Ferguson argues that an attorney renders ineffective assistance when, without doing proper due diligence, counsel fails to 

properly advise their client of their right to remain silent or move 

to suppress an improper confession. Specifically, Ferguson points 

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to two cases in which this court has found counsel to be ineffective 

for failing to suppress a confession. See Smith v. Wainwright, 777 

F.2d 609, 616–20 (11th Cir. 1985) (Smith I); Smith v. Duer, 911 F.2d 

494, 497–98 (11th Cir. 1990) (Smith II). But Ferguson’s reliance is 

misplaced. Both cases involved the same defendant making confessions without counsel present, and counsel subsequently failing 

to move to suppress the illegally coerced information. See Smith I, 

777 F.2d at 610, 618; Smith II, 911 F.2d at 495–96, 498. Here, Glenn 

was present during the confession and properly informed Ferguson 

of his rights. In fact, Ferguson contacted Glenn to make the voluntary choice to speak with police, which was reaffirmed by Ferguson 

after hearing his rights. By informing Ferguson of his rights and 

the likelihood that his confession would be used against him, Glenn 

was sufficiently “functioning as the ‘counsel’ guaranteed [to Ferguson] by the Sixth Amendment.” Strickland, 466 U.S. at 687. Thus, 

the ACCA’s determination that Glenn “cannot be held ineffective 

for the informed and voluntary choices” of his client is not an unreasonable application of Strickland. Ferguson II, 13 So. 3d at 439. 

Second, Ferguson argues that his counsel was deficient for 

failing to step in when law enforcement allegedly pressured him to 

change his story. But Ferguson did not fairly present this argument 

to the district court in his habeas petition.11 See Smith v. Sec’y, Dep’t 

of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009) (noting that an 

11 We note that Ferguson did raise this issue (although in a conclusory manner) in his state habeas petitions, despite the Commissioner’s arguments to the 

contrary. 

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32 Opinion of the Court 20-12727

argument that is not fairly presented to the district court will not 

be considered on appeal). In his counseled federal habeas petition, 

Ferguson never mentions the alleged pressure from law enforcement but mainly argues that Glenn “failed to counsel adequately

and represent vigorously his client’s interest . . . during Mr. Ferguson’s alleged ‘confession’ on August 12, 1997.” Ferguson’s attorneys did not expressly designate the issue as a distinct claim for relief, nor did they specifically argue that the ACCA unreasonably applied Strickland. Thus, we will not consider Ferguson’s argument 

on whether his counsel was deficient for not intervening during 

Ferguson’s confession when police allegedly pressured him to 

change his story.

Because Ferguson has failed to show that his counsel was deficient in how he handled Ferguson’s confession, we need not address his prejudice argument. See Strickland, 466 U.S. at 697 (explaining that a court considering an ineffectiveness claim need not 

“address both components of the inquiry if the defendant makes 

an insufficient showing on one”); see also Conner v. GDCP Warden, 

784 F.3d 752, 766–67 (11th Cir. 2015) (following Strickland and only 

addressing one prong because it disposed of the petitioner’s claim).

ii. Adequate Investigation

Ferguson next argues that his counsel was ineffective forfailing to conduct an adequate investigation into his mental health evidence and possible intellectual disabilities before trial. But as the 

Commissioner correctly argues, and the district court correctly 

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noted, Ferguson abandoned this claim during his state post-conviction proceedings and thus it is procedurally defaulted. 

Ferguson’s inadequate investigation claim was procedurally 

defaulted under Alabama’s procedural rules. The ACCA noted that 

Ferguson argued that “[t]rial counsel’s performance was also objectively deficient, for many reasons and including the unavailability of sufficient funds for a thorough defense.” See Ferguson II, 13 

So. 3d at 439. But the ACCA explained that the conclusory statement without facts or argument did not comply “with the requirements set forth in Rule 28(a)(10)” of the Alabama Rules of Appellate Procedure. Id.

“Claims presented in a Rule 32 petition but not pursued on 

appeal are deemed to be abandoned.” Hallford v. Culliver, 459 F.3d 

1193, 1199 n.4 (11th Cir. 2006) (per curiam) (quoting Boyd v. State, 

913 So. 2d 1113, 1145 (Ala. Crim. App. 2003)). “[W]hen a petitioner 

has failed to present a claim to the state courts and under state procedural rules the claim has become procedurally defaulted, the 

claim will be considered procedurally defaulted in federal court.” 

See Collier v. Jones, 910 F.2d 770, 772 (11th Cir. 1990). Thus, Ferguson’s claim about an inadequate pretrial investigation is procedurally defaulted.12

12 Nestled inside the inadequate-pretrial-investigation section of Ferguson’s 

brief, he also argues that trial counsel: “failed to present a defense that included 

evidence regarding [Ferguson’s] disabilities”; “failed to introduce evidence regarding [his] intoxication and drug use”; and “failed to . . . present testimony 

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34 Opinion of the Court 20-12727

* * *

Ferguson has not demonstrated, under AEDPA, that the 

ACCA’s denial of his ineffective assistance of counsel claim about

his counsel’s actions before his confession was an unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1). Also, Ferguson’s 

argument about his counsel’s pretrial investigation for the guilt 

phase is procedurally defaulted. Thus, Ferguson has not met his 

burden to warrant habeas relief on his pre-sentencing stage claims 

of ineffective assistance of counsel.

B. Penalty Phase

Last, Ferguson argues that his counsel was ineffective by failing to investigate and present evidence of Ferguson’s stepfather’s 

abuse during the penalty phase. Specifically, Ferguson argues that 

the ACCA’s determination that Ferguson was not prejudiced because of that deficient performance was an unreasonable application of Strickland.13 Here, we need not address whether Ferguson’s 

about [his] personality and tendencies.” But these are guilt-phase arguments—not pretrial investigation claims—and, thus, they are outside the certificate of appealability. See McClain v. Hall, 552 F.3d 1245, 1254 (11th Cir. 2008)

(“In an appeal brought by an unsuccessful habeas petitioner, appellate review 

is limited to the issues specified in the certificate of appealability.” (alterations 

adopted)). Even if they weren’t, as the district court explained, Ferguson’s 

guilt-phase arguments were procedurally defaulted because he did not raise 

them in the ACCA and he has not given us any reason to excuse the default.

13 Ferguson also maintains that the district court correctly concluded that his 

counsel’s performance was deficient and that the ACCA’s determination to 

the opposite was an unreasonable application of Strickland. 

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counsel performance was deficient because the ACCA’s determination that Ferguson failed to establish prejudice was not an unreasonable application of Strickland. 

The ACCA adopted the trial court’s finding about prejudice, 

specifically noting:

Finally, in light of the nature and circumstances of 

this crime—the robbery and murder of a father and 

his young son—and the specific findings made by the 

sentencing authority, there is no reasonable probability that the mitigating circumstances alleged in the petition, even if true, would have altered the balance of 

aggravating and mitigating factors in this case. The 

sentencing authority was well aware of the mitigation 

evidence presented at trial. 

Ferguson II, 13 So. 3d at 442 (internal citation omitted).

Under the prejudice prong, when the defendant challenges 

his death sentence, “the question is whether there is a reasonable 

probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and 

mitigating circumstances did not warrant death.” Strickland, 466 

U.S. at 695. In determining whether there is a reasonable probability of a different result, a court must “consider ‘the totality of the 

available mitigation evidence—both that adduced at trial, and the 

evidence adduced in the habeas proceeding’—and ‘reweigh it 

against the evidence in aggravation.’” Porter v. McCollum, 558 U.S. 

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36 Opinion of the Court 20-12727

30, 41 (2009) (per curiam) (alteration adopted) (quoting Williams,

529 U.S. at 397–98).

The ACCA found that Ferguson’s “trial counsel presented 

the vast majority of mitigation evidence that Ferguson alleges 

should have been presented.” Ferguson II, 13 So. 3d at 439. We 

agree with the ACCA that most of the new mitigation evidence 

was cumulative of the nonstatutory mitigating circumstances presented during sentencing. See Boyd v. Allen, 592 F.3d 1274, 1298 

(11th Cir. 2010) (“[M]uch (although not all) of the ‘new’ testimony 

introduced at the post-conviction hearing would simply have amplified the themes already raised at trial and incorporated into the 

sentencing judge’s decision to override the jury.”); Marquard v.

Sec’y for the Dep’t of Corr., 429 F.3d 1278, 1308 (11th Cir. 2005) 

(“There is no reason to believe that added details about Marquard’s 

troubled childhood and substance abuse—which the sentencing 

court clearly recognized in imposing a death sentence—would 

have had any effect on the sentence.”).

While more mitigation witnesses could have presented 

more details or different examples of these unfortunate aspects of 

Ferguson’s life, these aspects were nonetheless known to the sentencing jury and judge. Thus, no significant prejudice can result 

from the exclusion of cumulative evidence, meaning Ferguson’s 

trial counsel’s failure to present cumulative evidence was not prejudicial. See Cullen, 563 U.S. at 200 (“There is no reasonable probability that the additional evidence Pinholster presented in his state 

habeas proceedings would have changed the jury’s verdict. The 

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‘new’ evidence largely duplicated the mitigation evidence at trial.”); 

see also Ledford, 818 F.3d at 649–50. Because there is not a “reasonable probability” that, but for the exclusion of cumulative evidence, 

the last remaining juror would have voted for life imprisonment or 

the judge would have decided not to override the jury, we cannot 

find that the ACCA’s determination that Ferguson failed to show 

prejudice was an unreasonable application of Strickland. 

Citing Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008), Ferguson argues that prejudice is evident in his case because, like Williams, the trial judge overrode the jury’s recommendation for life 

imprisonment based on one statutory factor. Specifically, as Ferguson points out, Williams stated “[t]he fact that the jury decisively 

voted against the death penalty, even without the powerful evidence adduced at postconviction, weighs heavily in favor of a finding of prejudice.” 542 F.3d at 1343. The state responds by citing

Lee v. Commissioner, Alabama Department of Corrections, where we 

said that “the fact that the jury recommended life imprisonment 

counsels against a determination that [the petitioner] was prejudiced under Strickland.” 726 F.3d 1172, 1196 (11th Cir. 2013) (citing 

Parker v. Allen, 565 F.3d 1258 (11th Cir. 2009)). 

Whatever tension there may be between Williams and Lee, 

we don’t have to resolve it here because, in order to show the ACCA 

unreasonably applied Strickland, Ferguson must “show that there is 

a reasonable probability that, but for counsel’s unprofessional errors,” the trial judge would not have overridden the jury’s recommendation of life imprisonment. See 466 U.S. at 694. Here, the 

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38 Opinion of the Court 20-12727

ACCA assumed all of Ferguson’s allegations from his Rule 32 petition to be true, but even with that assumption, the ACCA found 

that there was no reasonable probability that it would have altered 

the balance of the aggravating and mitigating evidence. As the 

ACCA noted, the trial judge “was well aware of the mitigation evidence presented at trial” yet found that the circumstances of Ferguson’s childhood did not amount to a mitigating factor given Ferguson’s age, marriage, and employment. Ferguson II, 13 So. 3d at 

442. In light of the trial court’s determination, we cannot find the 

ACCA unreasonably applied Strickland by concluding that Ferguson did not provide enough evidence to undermine the ACCA’s 

confidence in the trial judge’s decision to override the jury’s recommendation of life. Ferguson “cannot show that ‘no fairminded jurist’ would have done as the state habeas court did in denying his 

claim.” Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1359 

(11th Cir. 2020).

IV. CONCLUSION

After careful review, we find that the district court did not 

clearly err in finding that Ferguson was not intellectually disabled. 

We also find that the ACCA’s determination that Ferguson’s counsel was not ineffective was not an unreasonable application of 

Strickland. Thus, we affirm the district court’s denial of Ferguson’s 

habeas petition.

AFFIRMED.

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