Ferguson v. State

• Decision Date: 08 October 2012
• Docket Number: No. SC12–1987.,SC12–1987.
• Citation: 101 So.3d 362
• Parties: John Errol FERGUSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

101 So.3d 362

John Errol FERGUSON, Appellant,

v.STATE of Florida, Appellee.

No. SC12–1987.

Supreme Court of Florida.

Oct. 8, 2012.

Benjamin J.O. Lewis of Hogan Lovells U.S. LLP, New York, NY, E. Barrett Prettyman, Jr., Christopher T. Handman, and Hrishikesh Hari of Logan Lovells U.S. LLP, Washington, DC, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Scott Andrew Browne and Stephen D. Ake, Assistant Attorneys General, Tampa, FL, for Appellee.

PER CURIAM.

John Errol Ferguson, a prisoner under sentence of death, appeals the circuit court's order denying his second successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851 and appeals the order denying his motion for competency determination. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the circuit court's order denying relief and order denying Ferguson's motion for competency determination.

BACKGROUND

Ferguson was convicted of six counts of first-degree murder and two counts of attempted first-degree murder and sentenced to death. We affirmed the judgment on direct appeal, but remanded for resentencing for proper consideration of mitigating circumstances under section 921.141(6)(b) and (f), Florida Statutes (1977), because the trial judge improperly used a sanity-type analysis to reject these circumstances. Ferguson v. State, 417 So.2d 639, 645 (Fla.1982). Ferguson was separately convicted of another two counts of first-degree murder, one count of involuntary sexual battery, one count of robbery, one count of attempted robbery, one count of unlawful possession of a firearm while engaged in a criminal offense, and one count of possession of a firearm by a convicted felon, and sentenced to death. Ferguson v. State, 417 So.2d 631, 633, 638 (Fla.1982). We affirmed the judgment and remanded for resentencing for reconsideration of mitigating circumstances. Id. at 638.

The trial court resentenced Ferguson for both cases and again sentenced Ferguson to death, which we affirmed on direct appeal. Ferguson v. State, 474 So.2d 208, 210 (Fla.1985). Ferguson then filed a petition for writ of quo warranto and a petition for writ of prohibition. This Court denied both. Ferguson v. Martinez, 515 So.2d 229 (Fla.1987) (petition for writ of quo warranto denied) (table); Ferguson v. Snyder, 548 So.2d 662 (Fla.1989) (petition for writ of prohibition denied) (table). Thereafter, this Court affirmed the postconviction court's denial of Ferguson's initial motion for postconviction relief. Ferguson v. State, 593 So.2d 508, 513 (Fla.1992). Later, we denied Ferguson's petition for writ of habeas corpus. Ferguson v. Singletary, 632 So.2d 53, 59 (Fla.1993). Ferguson filed a successive motion for postconviction relief, which the circuit court denied. We affirmed the circuit court's denial. Ferguson v. State, 789 So.2d 306, 315 (Fla.2001). Ferguson also sought habeas corpus relief in the federal courts. See Ferguson v. Sec'y for Dep't of Corr., 580 F.3d 1183 (Fla. 11th Cir.2009), cert. denied, Ferguson v. McNeil, ––– U.S. ––––, 130 S.Ct. 3360, 176 L.Ed.2d 1263 (2010).

Ferguson filed the instant motion pursuant to Florida Rule of Criminal Procedure 3.851 after Governor Rick Scott signed his death warrant on September 5, 2012, with execution set for October 16, 2012. He raised four claims. ¹ Additionally, he filed a motion for determination of competency. The circuit court denied relief on all postconviction claims and denied the motion for determination of competency. Ferguson appeals the denial of both motions. He argues that: (A) Florida's execution protocol violates the separation of powers provision of the Florida Constitution; (B) he was unconstitutionally denied an opportunity to participate in his clemency investigation and proceedings; (C) the postconviction court erred in ruling that Florida's death warrant selection process, as applied to Ferguson, did not violate the Eighth and Fourteenth Amendments; (D) his punishment is cruel and unusual in violation of the Eighth and Fourteenth Amendments; and (E) the circuit court erred by summarily denying his motion for determination of competency after expressly finding that “Mr. Ferguson undoubtedly suffers from mental illness.” For the reasons set forth below, we now affirm the circuit court's orders denying postconviction relief and denying Ferguson's request for a competency determination.

ANALYSIS

Ferguson's postconviction claims are governed by rule 3.851. Whenever a movant makes a facially sufficient claim that requires a factual determination, the circuit court must hold an evidentiary hearing. Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000); see also Reynolds v. State, 99 So.3d 459 (Fla.2012); Walker v. State, 88 So.3d 128, 135 (Fla.2012). However, “ ‘claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.’ ” Marek v. State, 8 So.3d 1123, 1127 (Fla.2009) (quoting Connor v. State, 979 So.2d 852, 868 (Fla.2007)). Additionally, rule 3.851(d) provides time limitations. Specifically, the rule provides:

(1) Any motion to vacate judgment of conviction and sentence of death shall be filed by the prisoner within 1 year after the judgment and sentence become final. For the purposes of this rule, a judgment is final:

(A) on the expiration of the time permitted to file in the United States Supreme Court a petition for writ of certiorari seeking review of the Supreme Court of Florida decision affirming a judgment and sentence of death (90 days after the opinion becomes final); or

(B) on the disposition of the petition for writ of certiorari by the United States Supreme Court, if filed.

Fla. R. Crim P. 3.851(d)(1). “Because a postconviction court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review.” Marek, 8 So.3d at 1127 (citing State v. Coney, 845 So.2d 120, 137 (Fla.2003)).

Separation of Powers

In his first claim on appeal, Ferguson argues that section 922.105, Florida Statutes (2006), constitutes an unconstitutional delegation of powers by the Florida Legislature to the executive branch because there are insufficient guidelines provided in the statute. The circuit court found the claim time-barred. The circuit court found that the claim became ripe on June 1, 2010, the same day the United States Supreme Court denied Ferguson's petition for writ of certiorari. On the merits, the circuit court found that it was bound by this Court's rulings in Power v. State, 992 So.2d 218, 220 (Fla.2008); Diaz v. State, 945 So.2d 1136, 1142–43 (Fla.2006); and Sims v. State, 754 So.2d 657, 670 (Fla.2000), all of which rejected the claim that Florida's lethal injection statute violates the Separation of Powers Doctrine. Relating to Ferguson's claim that the “last minute” changes to the protocol are constitutionally dubious, the circuit court found the claim timely raised, but found that the changes do not constitute a violation of separation of powers. In dicta, the circuit court noted that the chemical in question, vecuronium bromide, has been a component of the lethal injection protocol in Oklahoma since 2003.² Based on our reasoning stated below, we find that the circuit court properly denied this claim.

The circuit court rejected Ferguson's claim of unconstitutional delegation as untimely filed, stating that the issue became ripe on June 1, 2010—when Ferguson's judgment became final after the federal court denied habeas relief and the United States Supreme Court denied Ferguson's petition for writ of certiorari. The State asserts that this claim was ripe for review at any time because the statute has not changed. Ferguson argues that the claim is not ripe until a death warrant is signed because otherwise a prisoner cannot be certain under which protocol he is to be executed. Because we find that Ferguson has not based his claim on facts that occurred during a recent execution, we agree with the circuit court that this claim was untimely filed. See, e.g., Schwab v. State, 969 So.2d 318, 321 (Fla.2007) (finding that Schwab's lethal injection protocol claim was not procedurally barred because he relied on the execution of Angel Diaz, “a claim that did not exist when lethal injection was first authorized.”). Because the claim was untimely, we decline to address the merits.

Clemency Proceedings

In his second claim, Ferguson alleges that his clemency proceeding did not comport with basic due process requirements because he was only afforded an incomplete proceeding in which he was incapable of participating. The circuit court found this claim time-barred and rejected Ferguson's argument that the claim was not ripe until his death warrant was signed. The court noted that had the claim not been time-barred, Ferguson “may have been entitled to an evidentiary hearing for the limited purpose of determining whether [Ferguson] received a ‘full clemency hearing’ within the meaning of [Johnston v. State, 27 So.3d 11 (Fla.2010) ] and Marek....” Based on our reasoning below, we find that the circuit court properly denied this claim.

Relating to timeliness, the trial court ruled that

The Defendant's petition for writ of certiorari was denied on June 1, 2010. Pursuant to Fla. R.Crim. P. 3.851(d)(1)(B), the Defendant should have raised this claim by June 1, 2011. The Defendant argues that clemency is only ripe and/or relevant “close to the time a death warrant is signed,” when the “snapshot” of the inmate is current and with a significant history on death row to evaluate. To that end, this Court notes that in describing clemency as a “fail-safe” the U.S. Supreme Court has recognized that it is a last resort after “judicial process has been exhausted.”...