Ferguson v. Allen

• Decision Date: 21 July 2014
• Docket Number: Case No. 3:09-cv-0138-CLS-JEO
• Parties: THOMAS DALE FERGUSON, Petitioner, v. RICHARD F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Alabama

THOMAS DALE FERGUSON, Petitioner, v. RICHARD F. ALLEN, Commissioner,Alabama Department of Corrections, Respondent.

Case No. 3:09-cv-0138-CLS-JEO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHWESTERN DIVISION

July 21, 2014

MEMORANDUM OPINION

Petitioner, Thomas Dale Ferguson ("Ferguson"), seeks habeas corpus relief from his state court capital murder conviction and death sentence. See 28 U.S.C. § 2254.

Table of Contents

I. PROCEDURAL HISTORY ............................................... 6

II. THE OFFENSE OF CONVICTION ........................................ 9

III. THE SENTENCE ...................................................... 15

IV. INTRODUCTION OF DISCUSSION OF FERGUSON'S SUBSTANTIVE CLAIMS: The Scope Of Federal Habeas Review ....................................... 18

A. Exhaustion of State Court Remedies: The First Condition Precedent to Federal Habeas Review ............................................. 19

B. The Procedural Default Doctrine: The Second Condition Precedent to Federal Habeas Review ............................................. 21

1. General principles .......................................... 21

2. Overcoming procedural default ................................ 26

a. The "cause and prejudice" standard ...................... 27

i. "Cause" ....................................... 27

ii. "Prejudice" .................................... 29

b. The "fundamental miscarriage of justice" standard .......... 30

C. The Statutory Overlay: The Effect of "the Antiterrorism and Effective Death Penalty Act of 1996" on Habeas Review .......................... 31

1. 28 U.S.C § 2254(e)(1) ........................................ 32

2. 28 U.S.C § 2254(d) .......................................... 34

a. The meaning of § 2254(d)(1)'s "contrary to" clause .......... 36

b. The meaning of § 2254(d)(1)'s "unreasonable application" clause .............................................. 37

c. The meaning of § 2254(d)(2)'s clause addressing an "unreasonable determination of the facts in light of the evidence presented in the state court proceeding" ......... 40

d. Evaluating state court factual determinations under 28 U.S.C. §§ 2254(d)(2) and (e)(1) ........................ 41

D. The Burden of Proof and Heightened Pleading Requirements For Habeas Petitions ................................................. 42

E. Introduction To Ineffective Assistance of Counsel Claims .......... 45

1. The performance prong ....................................... 48

2. The prejudice prong ......................................... 51

3. Deference accorded state court findings of historical fact, and decisions on the merits, when evaluating ineffective assistance of counsel claims ............................................ 53

V. FERGUSON'S CLAIMS ................................................ 55

A. The Trial Judge Violated Ferguson's Constitutional Rights to Due Process and Equal Protection When He Disregarded the Jury's Nearly Unanimous 11-1 Verdict Recommending a Sentence of Life Without Parole .......... 55

1. Brief summary of the twofold claim ............................. 56

2. The proper constitutional standard and habeas standard of review ..... 59

3. Analysis of Ferguson's twofold habeas claim ...................... 59

a. The trial judge unreasonably discounted Mrs. Ferguson's penalty phase testimony as an "emotional appeal," and overrode the jury's life recommendation on the basis of that finding, resulting in an arbitrary and discriminatory death sentence .... 59

i. The decision of the Alabama Court of Criminal Appeals on direct appeal ......................... 63

ii. Analysis ....................... 65

b. The sentencing judge did not afford the jury's recommendation the weight it was due under Ex parte Carroll and Ex parte Tomlin; and, as a result, Ferguson's death sentence was arbitrary and capricious ........................................ 68

i. The decision of the Alabama Court of Criminal Appeals on collateral review ...................... 70

ii. Analysis ....................................... 74

B. Ferguson's Constitutional Rights Were Violated When He Was Involuntarily Medicated by the State and, Thereby, Rendered Incompetent to Stand Trial ...................................................... 82

1. The procedural posture of Ferguson's contention that he was incompetent at trial due to the involuntary administration of Haldol .................................................. 842. The law applicable to the claim of drug-induced incompetency to stand trial ............................................... 86

3. Analysis of Ferguson's behavior and mental state at the time of trial as it bears upon his claim under the substantive component of the Due Process Clause that the administration of antipsychotic medications by state officials prior to trial rendered him incompetent at trial ............................... 90

a. The report of the court-appointed psychologist, Dr. C. Van Rosen ...................................... 93

b. The report of Ferguson's retained psychologist, Dr. James F. Chudy ................................... 98

c. Analysis of evidence bearing upon Ferguson's behavior and mental state at the time of trial ....................... 103

4. Analysis of Ferguson's claim that the administration of medications by state officials without his consent violated his "substantive due process" rights ........................... 105

C. Ferguson's Trial Counsel Denied Him Effective Assistance During the Sentencing Phase of Trial, Before the Trial Judge .................... 107

1. The trial evidence of physical abuse by Ferguson's stepfather ................................................. 108

2. Additional allegations of physical abuse by Ferguson's stepfather included in the Rule 32 petition ....................... 108

3. The adjudication of Ferguson's physical abuse allegations by the Alabama Court of Criminal Appeals on collateral review ........... 110

4. Analysis of the claim that counsel was ineffective during the sentencing phase of trial, for failing to investigate and present additional evidence of physical abuse of Ferguson by his stepfather .............................................. 117

5. The claim that counsel was ineffective during the sentencing phase of trial for failing to investigate and present additional evidence of childhood sexual abuse of Ferguson .................. 123a. The trial evidence .................................... 124

b. Analysis ............................................ 126

D. Ferguson's Trial Counsel Denied Him Effective Assistance During the Guilt Phase ..................................................... 127

E. Ferguson's Pre-Trial Counsel Denied Him Effective Assistance ......... 132

1. Was the opinion of the Alabama Court of Criminal Appeals an adjudication on the merits? ................................ 136

2. Ferguson's claim that counsel provided ineffective representation during the time period surrounding Ferguson's statements to law enforcement ....................... 137

3. Ferguson's claim that Tony Glenn breached a duty of loyalty to Ferguson, and "arguably" harbored an actual conflict of interest .......................... 142

F. Ferguson Was Improperly Denied a Hearing on His Mental Capacity Under Atkins v. Virginia ................................................ 146

1. Historical development and presentation of this claim in state court ................................................ 148

a. Direct review pre-Atkins .............................. 148

i. Ferguson's mental health expert .................. 148

ii. The State's mental health expert ................... 157

b. The Rule 32 proceedings conducted after Atkins v. Virginia .................................... 160

c. Collateral Appeal .................................... 165

2. The habeas claim ........................................... 173

a. Intellectual functioning ................................ 176

i. The Flynn Effect ............................... 177ii. Standardized malingering test .................... 179

b. Adaptive Functioning ................................. 181

c. Onset before age eighteen .............................. 186

3. Conclusion ............................................... 187

G. The Trial Judge Violated Ferguson's Constitutional Rights by Refusing to Consider Undisputed Mitigating Evidence ........................ 189

H. Execution by Lethal Injection Constitutes Cruel and Unusual Punishment .................................................... 210

VI. CONCLUSION ....................................................... 218

I. PROCEDURAL HISTORY

Thomas Dale Ferguson was indicted for four counts of capital murder on September 24, 1997.¹ Attorneys Kenneth Millican and J. Tony Glenn were appointed as defense counsel on December 12, 1997, and March 2, 1998, respectively.² Glennsubsequently became ill, however, and both attorneys were allowed to withdraw. Attorneys Greg Hughes and Arthur Madden were appointed as successor defense attorneys on March 18, 1998.³ Trial commenced on June 22, 1998,⁴ and Ferguson was found guilty of four counts of capital murder three days later.⁵ A penalty hearing followed, and the jury, by a vote of 11 to 1, recommended that he be sentenced to life in prison without the possibility of parole.⁶ The formal sentencing hearing required by Alabama Code § 13A-5-47 (1975) was conducted on September 8, 1998, and the trial court judge sentenced Ferguson to death. Attorneys Greg Hughes and Arthur Madden continued to represent Ferguson following the sentencing, and throughout the remainder of the direct appeal process.

Ferguson appealed his conviction and sentence to the Alabama Court of Criminal Appeals, and that court entered a published opinion, affirming Ferguson's conviction and death sentence, on June 30, 2000. See Ferguson v. State, 814 So. 2d 925 (Ala. Crim. App. 2000).

The Supreme Court of Alabama found no reversible error, plain or otherwise, and affirmed the conviction and sentence on ...