Ferguson v. Secretary for Dept. of Corrections

• Decision Date: 26 August 2009
• Docket Number: No. 05-13595.,No. 05-13877.,05-13595.,05-13877.
• Citation: 580 F.3d 1183
• Parties: John Errol FERGUSON, Dorothy Ferguson, individually and as Next Friend on behalf of John Errol Ferguson, Petitioners-Appellants, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

580 F.3d 1183

John Errol FERGUSON, Dorothy Ferguson, individually and as Next Friend on behalf of John Errol Ferguson, Petitioners-Appellants, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent-Appellee.

No. 05-13595.

No. 05-13877.

United States Court of Appeals, Eleventh Circuit.

August 26, 2009.

Catherine E. Stetson, E. Barrett Prettyman, Jr., Patricia A. Brannan, Christopher Todd Handman, Hogan & Hartson, LLP, Washington, DC, for Petitioners-Appellants.

Scott Andrew Browne, Tampa, FL, for McNeil.

Appeals from the United States District Court for the Southern District of Florida.

Before BIRCH, WILSON and PRYOR, Circuit Judges.

BIRCH, Circuit Judge:

John Errol Ferguson ("Ferguson"), a Florida prisoner convicted of murder and sentenced to death, filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 in which he made at least eleven claims. He also moved to stay the federal habeas proceedings based on his alleged incompetency, a motion denied by the district court, which held an evidentiary hearing on the issue and found him competent to proceed with the petition. The court subsequently denied Ferguson's petition in its entirety, but granted a certificate of appealability ("COA") on all of the issues raised therein. Ferguson has appealed the district court's dismissal of nine of his claims and also challenges that court's denial of his motion to stay the proceedings. The State of Florida filed a cross-appeal regarding the district court's decision to hold an evidentiary hearing on the issue of Ferguson's competency. After thoroughly reviewing the record and the parties' briefs and hearing oral argument, we AFFIRM the district court's denial of Ferguson's petition and motion to stay.

I. BACKGROUND

A. Factual Background

Ferguson received the death penalty in two Florida state cases in which he was convicted of a total of eight counts of first-degree murder. Six of those counts stemmed from his first trial, which dealt with events that took place in Carol City, Florida in July 1977. The second trial, which involved the other two murder counts, addressed crimes occurring in Hialeah, Florida in January 1978.

1. The Carol City Murders¹

On the evening of 27 July 1977, Ferguson, posing as a Florida Power and Light employee, received permission from Margaret Wooden to enter her home. After checking several rooms, he drew a gun, tied and blindfolded her, and let into the house two men who joined him in looking for drugs and money. About two hours later, six of Wooden's friends, including the homeowner, Livingston Stocker, came to the house and were searched, tied, and blindfolded by Ferguson and his accomplices. Shortly thereafter, Wooden's boyfriend, Michael Miller, entered the house and also was bound and searched. Miller and Wooden eventually were placed in the bedroom, and the six other bound friends were in the living room.

At some point, a mask on one of Ferguson's friends fell and revealed his face. At the time, Wooden and Miller were kneeling on the floor with their upper bodies sprawled across the bed. Wooden heard shots from the living room, saw a pillow coming toward her head, and then was shot. She witnessed Miller being fatally shot as well. Wooden did not see the shooter, though she did hear Ferguson run out of the room. She managed to escape and ran to a neighbor's house to call the police. When the police arrived, they found six dead bodies, all of whom had their hands tied behind their backs and had been shot in the back of the head. Only two of the victims, Wooden and Johnnie Hall, survived. Hall testified at Ferguson's trial about the methodical execution of the other victims.

2. The Hialeah Murders

On the evening of 8 January 1978, Brian Glenfeld and Belinda Worley, both seventeen, left a Youth-for-Christ meeting in Hialeah, Florida. They were supposed to meet friends at an ice cream parlor, but never arrived. The next morning, two passersby discovered their bodies in a nearby wooded area. Glenfeld had been killed by a bullet to the head and also had been shot in the chest and arm. Worley was found several hundred yards away under a dense growth. All of her clothes, except for her jeans, were next to her body, and she had been shot in the back of the head. An autopsy revealed that she had been raped. At trial, there was testimony that she had been wearing jewelry, but none was found with the bodies. The cash from Glenfeld's wallet, which was found in Worley's purse near her body, also had been removed.

On 5 April 1978, police arrested Ferguson at his apartment pursuant to a warrant for unlawful flight to avoid prosecution in connection with the Carol City murders. At the time of his arrest, police found in his possession a .357 magnum, which was capable of firing .38 caliber bullets, the same kind used to kill Glenfeld and Worley. The gun was registered to Stocker, one of the victims in the Carol City murders. At some point after Ferguson's arrest, he confessed to killing "the two kids," i.e., Glenfeld and Worley.

B. Procedural Background

1. Trials and Direct Appeals

Ferguson was indicted in July 1977 for, inter alia, six counts of first-degree murder in connection with the Carol City murders, and in January 1978 for, inter alia, two counts of first-degree murder in connection with the Hialeah murders. He was not incarcerated until his arrest for the Hialeah murders. Both cases went to trial in the Circuit Court for the Eleventh Judicial Circuit of Florida and were presided over by the same judge. Ferguson was tried alone for the Carol City murders and convicted on all counts, except for one of the armed robbery counts. After an advisory sentencing hearing, the jury recommended death. The judge followed the jury's recommendation and imposed six death sentences, along with two consecutive sentences of thirty years of imprisonment for the attempted murders of Hall and Woodson and three sentences of life imprisonment for attempted robberies of three of the victims. At the Hialeah trial, Ferguson mounted an unsuccessful insanity defense and was convicted on two counts of first-degree murder. The jury recommended the death penalty, and the judge imposed two death sentences.

In separate opinions on direct appeal, the Florida Supreme Court affirmed all of the convictions in both cases but vacated and remanded the death sentences due to sentencing errors. With respect to the Carol City case, the court found that the trial judge had relied on improper aggravating factors. For the Hialeah trial, the court found that the judge had not considered statutory mitigating factors. The Florida Supreme Court noted in both cases that an additional jury sentence advisory verdict would be unnecessary on remand.

A different judge heard the cases on remand because the original trial judge had left the bench in the interim. Without holding an evidentiary hearing or impaneling a jury to make recommendations, the presiding judge imposed eight death sentences for the murders in the two cases. The Florida Supreme Court affirmed those sentences in a consolidated appeal. See Ferguson v. State, 474 So.2d 208 (Fla.1985) (Ferguson III).

2. Florida Post-Conviction & Habeas Proceedings

In October 1987, Ferguson and his mother, Dorothy Ferguson, acting as next friend, filed a timely motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which set forth six claims. For the purposes of this appeal, the relevant claims were an ineffective assistance of counsel ("IAC") claim based on trial counsel's failure to investigate and present evidence with respect to statutory mitigating and a Hitchcock² claim based on the trial court's jury instructions regarding mitigating factors. Shortly thereafter, Ferguson moved to stay the proceedings on the grounds that he was incompetent to participate in them or to assist counsel by answering questions. The circuit court denied this motion in February 1989.

Ferguson's counsel subsequently moved to disqualify the post-conviction judge based on ex parte contacts between the judge and the prosecutors. The circuit court denied this motion because it was untimely, was not in compliance with Florida procedural requirements, and did not provide an adequate factual foundation for the belief that the judge would be prejudiced against Ferguson. Ferguson's counsel then filed a petition for a writ of prohibition based on ex parte contacts between the judge and the prosecutors. The Florida Supreme Court denied this petition and the United States Supreme Court denied the subsequent petition for a writ of certiorari on the issue. See Ferguson v. Snyder, 493 U.S. 945, 110 S.Ct. 353, 354, 107 L.Ed.2d 341 (1989) (mem.) (Snyder I); Ferguson v. Snyder, 548 So.2d 662 (Fla. 1989) (table) (Snyder II).

In September 1989, Ferguson filed a supplement to his 3.850 petition, in which he raised ten claims, including a claim regarding racially discriminatory peremptory challenges and a Brady³ claim regarding improper prosecutorial withholding of evidence. In response to a motion by the State, the circuit court struck many of the claims in Ferguson's original and supplemental petitions, including his peremptory challenge claim.⁴ The circuit court held an evidentiary hearing in May 1990 on the remaining claims and issued an order the following month denying the remainder of Ferguson's 3.850 motion. One month later, Ferguson moved to supplement his 3.850 petition with an additional ground for relief based on the State's failure to correct false testimony presented at the sentencing phase of the Carol City trial. The circuit court dismissed this motion as untimely. On appeal, the Florida Supreme Court affirmed the circuit court's denial of the 3.850 motion. See Ferguson v. State, 593 So.2d 508, 513 (Fla.1992) (Ferguson IV).

Ferguson also petitioned the Florida Supreme Court for a writ of habeas corpus around the same time,...