Petition for Writ of Certiorari — Johnny Johnson, Petitioner v. David Vandergriff, Warden

No. __________

CAPITAL CASE

Execution set for August 1, 2023

at 6:00 p.m. CDT

__________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________

JOHNNY JOHNSON,

Petitioner,

vs.

DAVID VANDERGRIFF, Superintendent,

Potosi Correctional Center

Respondent.

__________________________________________________

On Petition for A Writ Of Certiorari

To The Missouri Supreme Court

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________

KENT E. GIPSON, #34524*

Law Office of Kent Gipson, LLC

121 E. Gregory Blvd.

Kansas City, Missouri 64114

816-363-4400 • Fax 816-363-4300

kent.gipson@kentgipsonlaw.com

*Counsel of Record

LAURENCE E. KOMP, #40446

DANIEL E. KIRSCH, #57022

Federal Capital Habeas Unit

1000 Walnut St., Suite 600

Kansas City, MO 64106

816-471-8282 • Fax 816-471-8008

Laurence_komp@fd.org

Daniel_kirsch@fd.org

QUESTIONS PRESENTED

Petitioner Johnny Johnson, a Missouri death row inmate, filed an original

petition for a writ for habeas corpus before the Missouri Supreme Court alleging that

his execution, scheduled for August 1, 2023, would violate the Eighth Amendment

because he is mentally incompetent to be executed under this Court’s decisions in

Ford v. Wainwright, 477 U.S. 399 (1985), and Panetti v. Quarterman, 551 U.S. 930

(2007). Petitioner’s constitutional claim was based upon a face-to-face mental

evaluation and a lengthy report issued by a qualified neuropsychiatrist who found

that, due to petitioner’s severe mental illness and resulting irrational delusions, he

lacked a rational understanding of the reasons for his execution. The only rebuttal

evidence the state submitted to the Missouri Supreme Court was an affidavit from a

prison mental health counselor and an incomplete set of petitioner’s prison mental

health records.

Approximately three weeks after the petition was filed, the Missouri Supreme

Court denied all relief based upon a paper record without affording petitioner an

evidentiary hearing or any other adversarial process to litigate his claim. After the

petition was denied, new records were disclosed to petitioner’s counsel which called

into serious question the accuracy and veracity of the state’s rebuttal evidence. Based

upon this new evidence, petitioner filed a motion to recall the mandate in the

Missouri Supreme Court seeking reconsideration of the court’s prior denial of his

habeas petition, which was summarily denied.

Based on the foregoing facts, this petition presents the following questions:

1. Whether a report from a qualified neuropsychiatrist that a condemned prisoner is

incompetent for execution that is not contradicted by any qualified expert by the

state, provides sufficient evidence to establish a substantial threshold showing of

insanity to require a “fair hearing in accord with fundamental fairness” as

mandated by this Court’s decisions in Ford and Panetti.

2. Whether the Missouri Supreme Court’s practice issuing findings of fact and

credibility determinations based entirely on a paper record and issuing final

adjudications on the merits of condemned prisoners’ Ford/Panetti claims without

permitting discovery or an evidentiary hearing in an expedited manner violates

procedural due process.

3. Whether the Missouri Supreme Court’s disparate treatment of habeas corpus

petitions from condemned men raising Ford/Panetti claims with the petitions of

other prisoner’s state habeas petitions in situations where the record is not

adequately developed by affording all other habeas petitioners an evidentiary

hearing before a Special Master, violates due process and equal protection.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................v

QUESTIONS PRESENTED ..................................................................................... ii

PETITION FOR A WRIT OF CERTIORARI ..........................................................1

OPINIONS BELOW .......................................................................................1

JURISDICTIONAL STATEMENT ................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .....2

STATEMENT OF THE CASE ..................................................................................2

A.

PROCEDURAL HISTORY ..................................................................2

B.

FACTS RELEVANT TO THIS PETITION .........................................5

REASONS FOR GRANTING THE WRIT.............................................................29

I.

CERTIORARI SHOULD BE GRANTED TO PERMIT THE

COURT TO CLARIFY THE QUANTUM OF PROOF THAT A

MENTALLY ILL CONDEMNED PRISONER MUST PRESENT

TO MAKE “A SUBSTANTIAL THRESHOLD SHOWING OF

INSANITY” IN ORDER TO OBTAIN A “FAIR HEARING” THAT

COMPORTS WITH FUNDAMENTAL FAIRNESS AS REQUIRED

BY FORD AND PANETTI.

............................................................................................................. 29

II.

CERTIORARI SHOULD BE GRANTED TO CONSIDER

WHETHER THE MISSOURI SUPREME COURT’S PRACTICE

OF ISSUING FINDINGS OF FACT AND CREDIBILITY

DETERMINATIONS BASED UPON A PAPER RECORD IN

ADJUDICATING WHETHER A MISSOURI DEATH ROW

INMATE IS MENTALLY COMPETENT TO BE EXECUTED

VIOLATES DUE PROCESS.

............................................................................................................. 33

i

III.

CERTIORARI SHOULD BE GRANTED TO DETERMINE

WHETHER THE MISSOURI SUPREME COURT’S DISPARATE

TREATMENT OF HABEAS PETITIONS FROM CONDEMNED

MEN RAISING COMPETENCE TO BE EXECUTED CLAIMS

WITH THE PETITIONS OF OTHER PRISONER’S STATE

HABEAS CASES VIOLATES DUE PROCESS AND EQUAL

PROTECTION.

........................................................................................................... 36

CONCLUSION ........................................................................................................39

ii

TABLE OF AUTHORITIES

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) ..................................................................31

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .....................................37

Cole v. Griffith, 467 S.W.3d 349 (Mo. banc 2015) .................................................34

Ford v. Wainwright, 477 U.S. 399 (1986) ....................................................... passim

Hicks v. Oklahoma, 447 U.S. 343 (1980) ................................................................37

Johnson v. Blair, 143 S. Ct. 430 (2022) ....................................................................4

Johnson v. Missouri, 127 S. Ct. 2880 (2007) ............................................................3

Johnson v. State, 388 S.W.3d 159 (Mo. banc 2012) .................................................3

McDonnell Douglas v. Green, 411 U.S. 792 (1986) ...............................................31

Panetti v. Quarterman, 551 U.S. 930 (2007)................................................... passim

State ex rel. Carnes v. Buckner, No. SC98736 ........................................................37

State ex rel. Clemons v. Larkins, 475 S.W.3d 60 (2015) .........................................37

State ex rel. Johnson v. Vandergriff, 668 S.W.3d 574 (Mo. banc 2023) ...................1

State ex rel. Woodworth v. Denney, 396 S.W.3d 330 (2013) ..................................37

State v. Johnson, 207 S.W.3d 24 (Mo. banc 2006) ...................................................3

Wedlow v. State, 841 S.W.2d 214 (Mo. banc 1992) ................................................31

iii

STATUTES

28 U.S.C. § 1257(a) ...................................................................................................1

28 U.S.C. § 2201(c) ...................................................................................................1

OTHER AUTHORITIES

Mo. S. Ct. Rule 91......................................................................................................1

Rule 29.15 ..................................................................................................................3

iv

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Johnny Johnson, respectfully requests that a writ of certiorari issue

to review the judgment of the Missouri Supreme Court which denied petitioner’s

petition for a writ of habeas corpus pursuant to Mo. S. Ct. Rule 91 that advanced

Eighth and Fourteenth Amendment challenges to his Missouri death sentence based

upon his history of serious mental illness and his resulting inability to rationally

understand the reason for his execution.

OPINIONS BELOW

The June 8, 2023, opinion and judgment of the Missouri Supreme Court

denying petitioner’s habeas corpus petition is reported as State ex rel. Johnson v.

Vandergriff, 668 S.W.3d 574 (Mo. banc 2023) and it is published in the appendix as

A-1. The July 29, 2023, order of the Missouri Supreme Court denying petitioner’s

motion to recall the mandate in the above-cited state habeas corpus action is

unpublished and is published in the appendix at A-10.

JURISDICTIONAL STATEMENT

The Missouri Supreme Court issued its judgment on June 8, 2023. Under 28

U.S.C. § 2201(c) and Rule 13.1, the present petition for a writ of certiorari was

required to be filed by petitioner within ninety days. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1257(a).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Eighth Amendment to the United States Constitution

that states, in pertinent part: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

This case also involves Section 1 of the Fourteenth Amendment to the United

States Constitution which provides in pertinent part: “No state shall make or enforce

any law which will abridge the privileges or immunities of the citizens of the United

States; nor shall any state deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of

the law.”

STATEMENT OF THE CASE

A. Procedural History

Petitioner, Johnny Johnson, is a Missouri prisoner under a sentence of death

who was convicted in 2005, in the Circuit Court of St. Louis County, Missouri of

first-degree murder and other charges involving the July 26, 2002 murder of Casey

Williamson in Valley Park, Missouri. Petitioner is currently incarcerated at the Potosi

Correctional Center in the custody of respondent, Superintendent David Vandergriff.

On January 10, 2005, the case proceeded to trial before a St. Louis County

jury and Judge Mark Seigel. On January 17, 2005, Petitioner was found guilty on all

charges. (Tr. 1971-1972). On January 18, 2005, the jury returned its verdict after the

2

penalty phase recommending a sentence of death. (Id. at 2318). On March 7, 2005,

pursuant to the jury’s recommendation, Petitioner was sentenced to death for murder

in the first degree. The Court also imposed three consecutive sentences of life

imprisonment for the offenses of armed criminal action, kidnapping, and attempted

forcible rape. (L.F. 884-888).

On November 7, 2006, Petitioner’s conviction and sentence of death were

affirmed on direct appeal by the Missouri Supreme Court in State v. Johnson, 207

S.W.3d 24 (Mo. banc 2006). This Court, thereafter, denied certiorari on May 29, 2007.

Johnson v. Missouri, 127 S. Ct. 2880 (2007). Petitioner, in the meantime, filed his

pro se motion for post-conviction relief on March 16, 2007, under Missouri Supreme

Court Rule 29.15. Counsel was then appointed for petitioner, who filed an amended

motion under Rule 29.15. (29.15 L.F. at 27-306).

The motion court held an evidentiary hearing on November 30, 2009,

December 1 and 2, 2009, and July 30, 2010, and subsequently denied relief on April

5, 2011. (Id. at 608-655). The Circuit’s Court’s ruling was affirmed on appeal by the

Missouri Supreme Court in Johnson v. State, 388 S.W.3d 159 (Mo. banc 2012).

Petitioner initiated his federal habeas proceeding pursuant to 28 U.S.C. § 2254

by filing a motion for appointment of counsel on February 13, 2013, in the United

States District Court for the Eastern District of Missouri. (Doc. 1). Thereafter, a timely

petition for a writ of habeas corpus was filed on petitioner’s behalf by CJA appointed

3

counsel on January 28, 2014. (Dist. Ct. Doc. 11). On February 28, 2020, Judge Henry

Autrey denied petitioner federal habeas relief and ordered that a COA would not issue.

(A-2-54).

Petitioner timely filed a notice of appeal on October 27, 2020. (Doc. 91). By

a two-to-one vote, a panel of the Eighth Circuit summarily denied petitioner’s

application for a COA and dismissed the appeal. Thereafter, the Eighth Circuit

denied petitioner’s motion for rehearing or rehearing en banc on April 8, 2022. (A55).

Petitioner, thereafter, filed a petition for a writ of certiorari seeking review of

the Eighth Circuit’s judgment denying a COA. This Court denied the petition on

November 14, 2022. Johnson v. Blair, 143 S. Ct. 430 (2022).

On April 19, 2023, the Missouri Supreme Court set petitioner’s execution for

Tuesday, August 1, 2023, at 6:00 p.m. CDT. On May 16, 2023, petitioner filed an

original petition for a writ of habeas corpus in the Missouri Supreme Court pursuant

to Mo. S. Ct. R. 91.01. Based upon the undisputed fact that petitioner has a long history

of suffering from serious mental illness, this state habeas corpus petition raised three

claims for relief, including a claim that he is mentally incompetent for execution. In

tandem with his state habeas petition, petitioner also filed a motion for a stay of

execution and a request that the court appoint a Special Master, pursuant to Mo. S. Ct.

4

Rule 68.03, to provide him an evidentiary hearing to fully develop the facts supporting

these three Eighth and Fourteenth Amendment claims.

On June 8, 2023, the Missouri Supreme Court issued an opinion and judgment

denying the petition. A-1-9. In the same opinion, the court also denied petitioner’s

motions for a stay of execution and his request for an evidentiary hearing before a

Special Master. Id. The court further ruled that Mr. Johnson could not file a petition

for rehearing. Id. at n.8.

After obtaining newly discovered evidence and additional prison mental

health records on July 12 and July 20, 2023, that were not previously made available

to petitioner or his counsel, petitioner filed a motion to recall the mandate in the

Missouri Supreme Court on July 21, 2023, requesting that the court recall its mandate

in the above-noted state habeas action, stay his execution, and appoint a Special

Master to hear evidence on petitioner’s Panetti claim. On July 29, 2023, the Missouri

Supreme Court summarily denied this motion. A-10.

B. Facts Relevant to this Petition

As set forth in the underlying state habeas petition, petitioner was diagnosed

with severe developmental and learning disabilities during early childhood. As a

result, he was placed in special education and classes designated for those with

learning disabilities throughout elementary and secondary school. Beginning in his

early adolescence, petitioner has an extensive documented history of suffering from

5

serious mental illness and seeking treatment at various mental health facilities which

prescribed him a wide variety of anti-psychotic medication over the years.

Mr. Johnson’s first admission to a psychiatric clinic was when he was 14 years

old. By the time Mr. Johnson was 18 years old, he had been admitted for psychiatric

care due to suicidal ideation, suicide attempts, threats, and gestures, four times. Pet.

Exh. 7 (2003-03-14 St. John’s Mercy Records) at 18-23, 26, 30, 57, 78-79, 81, 25159, 253-54, 257, 259, 301-03, 324, 348, 360-65, 386. After he turned 18, he

continued to experience symptoms of his severe, debilitating mental illness. The

instances are documented in reports from his hospitalizations and treatment in

carceral settings and set forth in greater detail in his habeas petition.1

Mr. Johnson’s first psychiatric admission took place on April 23, 1992. Id. at

251, 253-54, 257, 324. He was admitted to St. John’s Mercy due to a suicidal gesture.

Mr. Johnson turned 14 one month before this hospitalization. Id. at 253-54. He

reported that he had been thinking about killing himself for six months. Id. at 324.

Dr. Alberto Soto diagnosed him with Depression and Attention Deficit Disorder with

Dyslexia and ordered Tofranil and Benadryl at bedtime. Id. at 252, 254, 263.

On June 19, 1996, Mr. Johnson, now 18 years old, voluntarily admitted

himself to the Southeast Missouri Mental Health Center. Pet. Exh. 8 (Johnny

1

Due to page limitations, petitioner cannot list all of his prior hospitalizations and

diagnoses. These facts are set forth in greater detail in his habeas petition.

6

Johnson Misc. Records) at 153, 156. He appeared after being referred to the facility

by the Washington County Hospital Emergency Room for further evaluation of his

suicidal tendencies. Id. at 156. He was accompanied by his grandmother, who he

was living with at the time. Id. Mr. Johnson reported that he had a “blackout,” was

hearing voices, and seeing his dead friends telling him to kill himself. Id. The day

before he was admitted, he ran to the back of the house with a knife, and before his

grandmother could get to him, he cut his wrist. Id. at 156, 161. “Low intellect and

self-esteem” were noted in the initial screening. Id. at 153, 161. He had been staying

with his grandmother for a couple of weeks. Id. at 161. When he cut himself with

the knife, he said he wanted to join his dead friends, both of whom were drug dealers

who had committed suicide. Id.

His diagnoses were Major Depression, recurrent; Psychotic Disorder, NOS;

and Polysubstance Dependence. Id. at 152. He was prescribed Paxil 20 mg per day.

During his admission, he was also evaluated to determine his intellectual

functioning. Id. at 159. On the abbreviated version of the Wechsler Adult

Intelligence Scale-Revised, he received a full-scale equivalent of 93. Id. at 159. On

both the Verbal Score subtests, Vocabulary and Arithmetic, Mr. Johnson’s scaled

score was at least one standard deviation below the mean, “suggesting he possesses

a significant cognitive weakness in his verbal abilities as a whole.” Id.

7

On October 13, 1996, Mr. Johnson was admitted to the Malcolm Bliss Mental

Health Center at the Metropolitan St. Louis Psychiatric Center. Exh. 8 at 70-73, 95,

98, 130. The chief complaint was listed as, “I want to cut my jugular so I can die.”

Id. at 70. The diagnoses when admitted were Depression, NOS; Ethanol and

Marijuana Dependence; History of Crack Cocaine, LSD and Amphetamine Abuse;

and Conduct Disorder and Borderline Personality Traits. Id. at 73. He did well until

October 27, 1996, when “he had an episode where he was crying and very upset,

again requiring sedative medication, but nothing in terms of physical restraint was

required.” Id. On October 29, 1996, he was discharged to Athena House and was

being treated with Haldol 5 mg. Id. at 69.

Mr. Johnson received a psychological referral and was seen on April 26, 1997,

while at the St. Louis County Jail. Pet. Exh. 9 (Jail and prison records) at 83. The

reason for the referral was that Mr. Johnson punched his right fist through a window

and required sutures. “He stated that he always wanted to kill himself but promised

not to make an attempt while he was here.” Id. On November 29, 1997, Mr. Johnson

was moved to suicide watch when an officer heard banging sounds and discovered

the sound was from Mr. Johnson banging his head against the wall. Id. at 57. An

officer tried to talk with him, “but he was unresponsive and seemed confused.” Id.

A small puncture was on his wrists which residents told the staff was self-inflicted.

Id. at 57-58. On December 10, 1997, St. Louis County Jail moved Mr. Johnson to

8

another cell after “he continued to hear voices telling him to kill himself.” Id. at 54.

Mr. Johnson was provided a paper gown and referred to Dr. Krasnoff for further

review. Id. The incident report reflects Mr. Johnson was “beating his head against a

wall … [and] was also observed putting a pencil to his head threatening to puncture

himself …” Id. at 55. The officer reported he was picking his skin at his wrist,

climbing on the sink threatening to jump, climbing up around the light fixture

threatening to find something blunt or sharp to hurt himself and said voices were

telling him to kill himself. Id. at 56. On December 29, 1997, Mr. Johnson was again

placed in a single cell when staff were informed by residents that Mr. Johnson was

seeing things and feeling faint. Id. at 63.

Mr. Johnson was moved to Fulton Reception and Diagnostic Center on March

17, 1998. Pet. Exh. 10 (Missouri Department of Corrections medical records) at 12021, 123. When he complained of auditory and visual hallucinations, he was referred

by an officer in Five House for an assessment. Id. at 123. Mr. Johnson’s main

complaint was depression and hearing intrusive voices. Id. at 120. He described the

voices as being derogatory and saying things like, “Kill yourself or hurt others.” Id.

Dr. Ahsan Syed noted that Mr. Johnson had multiple previous psychiatric

hospitalizations, most always due to depression and hearing voices. Id. Mr. Johnson

had been placed on Thorazine, which he thought worked better than Haldol, but he

was still hearing voices. Id. Dr. Syed noted that the voices were “command in nature,

9

and at times, telling him to hurt himself or that he is worthless.” Id. Mr. Johnson

appeared to be functioning in the borderline range of intellectual abilities. Id. Dr.

Syed’s diagnostic impression was Major Depression with psychotic features,

Cannabis and Alcohol Abuse by history. Id. Dr. Syed prescribed 50 mg of Thorazine

3 times a day, 20 mg of Paxil every morning and requested a follow up in 30 days’

time. Id.

On April 24, 1998, Mr. Johnson was placed on suicide watch when he was

seen crying frequently and reported that he was having auditory and visual

hallucinations. Id. at 122. Mr. Johnson requested a change in medication to decrease

the hallucinations. Id. Dr. Syed performed the follow-up evaluation, on an

emergency basis because of Mr. Johnson’s placement on suicide watch. Id. at 105.

“[Mr. Johnson] was very distraught and said, ‘They were coming to get him.’” Id.

Dr. Syed’s diagnostic impression remained unchanged, but he increased the

Thorazaine to 100 mg in the morning and evening, continued the 20 mg of Paxil in

the morning, and added .5 mg of Ativan twice daily. Id. at 105-06. Though Mr.

Johnson reported still “seeing things” and had an elevated score on a thoughtdisturbance scale, evaluators discontinued all psychotropic medications. Id. at 18,

107.

Mr. Johnson was, thereafter, admitted to Hillside Manor, a residential care

facility in Bonne Terre and arrangements were made for him to be discharged there.

10

Pet. Exh. 11 (2004-05-10 Des Peres Hospital records) at 37, 49. Mr. Johnson was

discharged on September 8, 1998. Id. at 40. The discharge diagnoses were

Schizoaffective Disorder and probable Mild Mental Retardation. Id. at 9, 40.

According to a discharge summary by William Clendenin, M.D., Mr. Johnson was

“markedly psychotic” and admitted to the hospital for treatment for this reason. Mr.

Johnson’s mental status was “consistent with paranoid psychosis.” Id. at 40. Dr.

Clendenin reported that “[d]ue to his seeming retardation and severe psychotic

symptoms, it was felt that he belonged in a boarding home. We arranged for him to

go [to] the boarding home in Bon [sic] Terre and he was released.” Id. His discharge

medication was 2 mg of Risperdal at bedtime. Id.

In August 2001, Mr. Johnson was in the St. Louis County Jail, and staff called

Dr. Karen Cotton-Williger to evaluate Mr. Johnson due to concerns he was suicidal.

Trial Tr. 1766. Dr. Cotton-Williger was the clinical psychologist at the St. Louis

County Jail and did evaluations in intake and on the floors to determine if people

have mental health issues that require special placement within the jail. Id. at 176465. She diagnosed him as suffering from Schizophrenia, Post Traumatic Stress

Disorder, and Borderline Personality Disorder. Id. at 1775.

On November 16, 2001, during his admission to the St. Louis Psychiatric

Rehabilitation Center, Dr. John Rabun, a psychiatrist who was a Certified Forensic

Examiner, interviewed Mr. Johnson. Pet. Exh. 13 (Report of Dr. John Rabun) at 3.

11

Rabun reported his findings on December 7, 2001. Though Mr. Johnson was not

experiencing symptoms at the time of the 2001 evaluation by Rabun, likely because

he was taking Zyprexa, Mr. Johnson’s previous symptoms included hearing both

female and male voices who sometimes spoke in normal tones and other times

addressed him in a derogatory way. Id. at 6. He said the voices sounded like they

were coming from outside of his head, were intermittent rather than continuous, and

could be temporarily interrupted by activities such as listening to music. Id. Mr.

Johnson also reported having had delusions that people were trying to harm him or

that people could read his mind. Id. at 6-7. Dr. Rabun diagnosed Mr. Johnson as

suffering from Schizophrenia, Undifferentiated Type, Episodic with no Interepisode

Residual Symptoms and Alcohol Dependence, Sustained Full Remission. Dr. Rabun

concluded that “the examiner is of the opinion, with reasonable medical certainty,

that Mr. Johnson is afflicted by a mental disease.” Id.

Dr. Rabun recognized that Mr. Johnson had displayed paranoid delusions as

a component of his illness. Id. at 8. Dr. Rabun concluded that if psychiatric

deterioration became evident, Mr. Johnson should be voluntarily or involuntarily

hospitalized. Id. at 8-10.

After he was released from jail on probation, a mental health assessment noted

a prior diagnosis that Mr. Johnson suffered from Schizophrenia, Paranoid Type. Pet.

Exh. 8 at 201. At this point, his current medications were listed as 10 mg of Zyprexa,

12

100 mg of Trazadone, and 20 mg of Paxil. Id. at 202, 225. Also noted were Mr.

Johnson’s limited coping skills and a common predictor of crisis of non-compliance

with his medications and traumatic events. Id. at 213. Mr. Johnson was assigned to

Community Support Worker (“CSW”) Dahley G. Dugbatey on February 12, 2002.

Id. at 261. He was also assigned to Dr. Jitendra Patel and in Dr. Patel’s April 10,

2002, notes, he diagnosed Mr. Johnson with suffering from Schizoaffective Disorder

and Marijuana Abuse, Full Remission. Id. at 216. Mr. Johnson’s current medications

were listed as 10 mg of Zyprexa and 20 mg of Paxil. Id. at 217. Dr. Patel changed

Mr. Johnson’s prescription to 10 mg of Zyprexa and 10 mg of Trazadone on April

23, 2002. Id. at 224.

Mr. Johnson stayed in this program until he stopped seeing his clinical CSW

the month before Casey Williamson was killed. He began missing psychiatrist

appointments at the beginning of June 2002. Id. at 218. The last meeting Mr. Johnson

attended with his caseworker was on June 28, 2002. Id. at 233. His CSW spoke with

him on July 10, 2002, when he informed her he could not go to his appointment with

her. Id. at 232. A letter dated July 15, 2002, was sent to Mr. Johnson regarding the

cancelled or missed appointment with his CSW and requesting he contact the

program director. Id. at 268. Casey Williamson was killed on the morning of July

26, 2002.

13

Following his arrest for Casey Williamson’s murder, Mr. Johnson was

admitted to the St. Louis County Jail on July 27, 2002, at 2:10 in the morning. Pet.

Exh. 14 (2003-01-24 St. Louis County Justice Center Medical records) at 32. Two

correctional officers from intake assisted him. Id. At the St. Louis County Jail, Mr.

Johnson was immediately started on 10 mg of Zyprexa by mouth at bedtime and

staff were ordered to give him a dose at 6:50 a.m. on July 27, 2002. Id. at 13. On

July 28, 2002, a nurse at the jail reported Mr. Johnson “appears paranoid today” and

appears to be in a “daze.” Id. at 31. Dr. Cotton-Williger evaluated Mr. Johnson on

July 29, and he told her that he wanted the death penalty. Trial Tr. 1773-74. Because

of her prior evaluation and diagnoses, Dr. Cotton-Williger determined Mr. Johnson

needed to stay in the infirmary. Id. at 1767-68, 1773-74.

On July 30, 2002, a nurse saw Mr. Johnson is in his cell “crying and fearful.”

Pet. Exh. 14 at 31. Mr. Johnson denied feeling suicidal but stated that he sees

“demons.” Id. He told the nurse “he feels guilty and ‘I am a bad person because of

what I did.’” Id.

On September 9, 2002, Mr. Johnson reported to staff he was having increased

nightmares of people chasing and hitting him. Id. at 29. On January 19, 2003, Mr.

Johnson’s medication was changed from Zyprexa to Zoloft 50 mg by mouth per day,

Tofranil 75 mg by mouth at bedtime, and Colace 100 mg. twice a day. Id. at 23.

14

On February 28, 2003, psychiatrist Dr. Ajans saw Mr. Johnson. Pet. Exh. 15

(2007-05-14 Potosi MH Records) at 4-6. She reported Mr. Johnson had a bland

affect. Id. at 5. He reported to her that voices tell him to “kill, kill, kill.” Id. Dr. Ajans

prescribed Elavil 50 mg, for one week, and increased the dose after one week to 75

mg at bedtime; increased his Loxitane to 10 mg in the morning and 25 mg in the

evening; and continued his Cogentin .5 mg. Id.

On November 19, 2003, Stephen Becker and Byron English reported results

of their pre-trial examination Mr. Johnson at the Southeastern Missouri Correctional

Center. Becker did the interview and testing while English provided supervision and

oversight. Pet. Exh. 18 (Reports of Becker and English) at 2. Becker administered

the Weschler Adult Intelligence Scale, III (“WAIS-III”) resulting in a Full-Scale IQ

of 70. Id. at 8. Becker also administered an achievement test revealing a third-grade

reading level and a first-grade math level. Id. Mr. Johnson could read only on a very

elementary level and perform very basic math calculations. Id. Mr. Johnson reported

prior episodes of seeing “little people - three inches tall and they give me weird

looks” and also having auditory hallucinations in which voices told him to hurt

himself. Id. at 8-9. He was medicated at the time of the evaluation and reported no

current psychotic symptoms. Id. Diagnoses included Major Depressive Disorder,

Recurrent, Severe, with Psychotic Features, in partial remission; Polysubstance

15

Dependence, in remission, within a controlled environment; and Borderline

Intellectual Functioning. Id. at 9.

On February 17, 2004, defense expert Delany Dean, PhD, reported the

results of her pre-trial evaluation. Pet. Exh. 19 (Report of Dr. Delany Dean) at 1-12.

She evaluated Mr. Johnson on four days: March 10, 2003, September 30, 2003,

December 2, 2003, and February 5, 2004. On all occasions, Mr. Johnson was taking

antipsychotic medication. Dr. Dean noted that Mr. Johnson “expressed the belief that

‘when I was born the world was created, and when I die the world will die.’” Id. at

9. She diagnosed Mr. Johnson as suffering from Schizophrenia (paranoid type, sub

chronic with acute exacerbation), Generalized Anxiety Disorder, Psychoactive

Substance Abuse, Paranoid Personality Disorder, and Schizotypal Personality

Disorder with Depressive and Avoidance Personality Traits. Id.

On June 7, 2004, Becker and English performed a second evaluation. Exh.

18

at 12. Their diagnoses changed from the first time and now were

Methamphetamine Intoxication, with Perceptual Disturbances; Polysubstance

Abuse (Alcohol, Cannabis, Methamphetamine, Hallucinogens, Cocaine, and

Inhalants) in Remission Within a Controlled Environment; Schizoaffective

Disorder, Depressive Type; Malingering, Partial; and History of Learning Disorder,

NOS. Id. at 25.

16

Between 2002 and his trial in 2005, Mr. Johnson went back and forth from

DOC to the jail six times. Trial Tr. 1777. Each time, he was in the psychiatric

infirmary. Id. Even with medication, Mr. Johnson consistently reported symptoms

of auditory hallucinations and difficulty sleeping. Id. at 1760-61, 1780.

Mr. Johnson was transferred to Potosi Correctional Center on January 19,

2005, after he was convicted. Pet. Exh. 16 (Vol. 4 Dept. of Corrections MH Records)

at 55. Mental health staff were informed that Mr. Johnson indicated he planned to

harm himself earlier in the day. Id. On January 21, 2005, Mr. Johnson was seen by

Dr. Ahmed Basheer for his initial psychiatric contact. Id. at 53. Mr. Johnson was

delusional during this visit and told Dr. Basheer “I think I’m the 7th sign. I’m the end

of the world when I die.” Id. He also reported he has believed this since he was 19.

Kimberly Weitl, PsyD, evaluated Mr. Johnson as a new arrival at Potosi

Correctional Center on March 20, 2005. Pet. Exh. 15 at 119. She administered the

WAIS-III. Id. at 122. Mr. Johnson’s Full-Scale IQ was 78. Id. Her diagnoses

included Schizoaffective Disorder, per history; Alcohol Dependence, in a controlled

environment; and Antisocial Personality Disorder. Id. at 124; Ex. 10 at 378. She also

reported his level of intellectual functioning fell in the Borderline Intelligence range.

Ex. 15 at 123.

Dr. Pablo Stewart, a psychiatrist employed by the University of California at

San Francisco, School of Medicine, as a clinical professor in psychiatry with his own

17

private consulting practice, evaluated Mr. Johnson for the defense during his 29.15

action on April 27, 2007. PCR Tr. 8, 190. Dr. Stewart noted during his evaluation

that Mr. Johnson’s hygiene was not the best, had slow speech, and was responding

to internal stimuli. PCR Tr. 191. During the evaluation, Mr. Johnson became

distressed when talking about hearing voices and became psychotic right in front of

Dr. Stewart. PCR Tr. 191. Dr. Stewart diagnosed Mr. Johnson with chronic

psychotic disorder not otherwise specified, Post Traumatic Stress Disorder, and

cognitive disorder not otherwise specified. PCR Tr. 196-98.

Another defense expert, Dr. Craig Beaver, a licensed psychologist who

specializes in clinical psychology, neuropsychology, and forensic psychology,

evaluated Mr. Johnson two times, once on February 25, 2007, and once in April of

2007. PCR Tr. 584, 603. Dr. Beaver testified that Mr. Johnson has a psychotic

disorder that manifests itself in several different ways. Mr. Johnson has steady

auditory hallucinations and identity preference. Both times Dr. Beaver met with Mr.

Johnson, Mr. Johnson told him sometimes “it would be better if he was just executed

because he believes that because he has special powers that that will create some

positive changes in the world.” PCR Tr. 631. Dr. Beaver testified at petitioner’s

29.15 hearing to a reasonable degree of neuropsychological certainty that Mr.

Johnson has organic brain syndrome combined with significant psychiatric disorders

that are permanent conditions for him. PCR Tr. 641. These conditions affect Mr.

18

Johnson’s ability to think, act rationally, to deal with stress, and to make appropriate

decisions. PCR Tr. 641.

On November 21, 2007, Mr. Johnson reported to Dr. Angeline Stanislaus, a

psychiatrist at the prison, that he was hearing voices again telling him that his family

was dead. Pet. Exh. 17 (2022-10-31 Medical History records) at 1-2. Mr. Johnson

was also having nightmares about the crime again. Id. Mr. Johnson agreed to

medication changes on this date. Mr. Johnson was prescribed Perphenazine 8 mg

bid, 2 mg hs, Clonidine .3 mg, Mirtazapine 15 mg, and Desipramine 50 mg. Id. Mr.

Johnson was on “Watch Take” likely because of his report earlier that he would save

his medications as well as the fact that he swallowed razors in an attempt to harm

himself. Id. at 2.

Two days later, August 26, 2010, the psychiatrist met with Mr. Johnson. Id.

at 67. Mr. Johnson reported he became non-compliant intermittently for about three

months, and two weeks ago, he started hearing voices again. Id. The psychiatrist

prescribed a higher dose of Perphenazine and instructed him to take his Clonidine at

night. Id.

On September 21, 2010, staff met with Mr. Johnson for his chronic care

encounter. Id. at 70. Mr. Johnson told staff he continued to have weird dreams every

three days, tried to wake up and was unable to, and that he experienced enuresis. Id.

He reported he wakes up at night while he is urinating on his T.V. or somewhere

19

else inappropriate. Id. He also reported he continues to hear voices that are

demanding and demeaning, and he has difficulty maintaining his train of thought.

Id.

On February 13, 2020, a prison psychiatrist met with Mr. Johnson, and Mr.

Johnson shared his history of psychiatric treatment. Id. at 340. He reported voices

saying things like “you are worthless” and reported paranoia of people plotting

against him. Id. He told the psychiatrist “sometimes I think that the world will end

if I die.” Id. On May 7, 2020, Mr. Johnson told the psychiatrist he was not doing

well. Id. at 347. “He report[ed] a racing mind, inability to focus, hearing male/female

voices inside of his head telling him that people talk about him, end of world, ‘he is

God etc.’” Id. The psychiatrist increased Mr. Johnson’s Olanzapine prescription to

10 mgs. Id. at 348.

On July 28, 2020, the prison medical staff took Mr. Johnson off Olanzapine

and increased his Clonidine. Id. at 354. On January 22, 2021, mental health staff met

with Mr. Johnson. Id. at 375. He reported that he was hearing voices more frequently

and could not sleep. Id. He requested a meeting with the psychiatrist. Id. The

psychiatrist met with Mr. Johnson on January 28, 2021. Id. at 376. Mr. Johnson

“report[ed] chatter of multiple voices that ‘I cannot understand.’” Id. He also

reported mood swings and poor sleep. Id. Mr. Johnson had developed allergic

blisters in his mouth due to Trileptal which had been started on November 5, 2020.

20

Id. It was discontinued on November 21, 2020. Id. at 377. The psychiatrist started

Mr. Johnson on Aripiprazole for psychosis and mood and cross-tapered it with

Thiothixene. Id.

On his May 20, 2021, psychiatric appointment, Mr. Johnson reported “he has

mood swings & still hears voices ‘chatter, laughter, yellling [sic]’ of multiple voices

inside [his] head.” Id. at 389. Mr. Johnson’s Abilify was increased to 20 mg for

mood/psychosis and two other drugs were decreased: Thiothixene to 5 mg and

Benztropine to .1 mg. Id. at 391.

By September 15, 2021, Mr. Johnson’s condition worsened dramatically. The

prison’s mental health personnel saw Mr. Johnson in Ad-Seg. Id. at 400. Mr. Johnson

had punched his television “due to believing staff are watching him.” Id. Mr.

Johnson reported increased paranoia, which was causing him problems with his cell

mate “as he has been tearing up his cell.” Id. Mr. Johnson told staff he had “increased

stress due to the execution pending of another offender.” Id. Mr. Johnson reported

auditory hallucinations telling him others were out to get him. Id. Mr. Johnson’s

medications had been recently changed and Mr. Johnson said due to this he felt “as

if something is squeezing his brain.” Id. The next day, Thiothixene was discontinued,

and Aripiprazole was increased to 30 mgs. Id. at 402.

As shown above and as set forth more fully in his state habeas petition, due to

his symptomology and need for treatment, Mr. Johnson has been evaluated many

21

times during his hospitalizations, in carceral settings, and by court order or at the

request of his legal teams. The results of all these evaluations included various

diagnoses; however, all reflect the consistent presence of a psychotic disorder and

severe mental illness. Due to his condition, petitioner experienced auditory

hallucinations and suffered from irrational delusions.

After the Attorney General moved to set an execution date for petitioner in

November of last year, neuropsychiatrist Dr. Bhushan Agharkar, M.D., evaluated

petitioner to determine the extent of his mental illness and whether he is mentally

competent to be executed.2 After conducting a lengthy face-to-face evaluation of

petitioner in February of 2023, Dr. Agharkar issued a comprehensive report that was

attached as Exhibit 1 to petitioner’s underlying habeas corpus petition in this matter.

2

Dr. Agharkar has been licensed to practice medicine in Georgia since 2002. In

addition to completing his Doctor of Medicine degree, he completed a Forensic

Psychiatry Fellowship at Emory University School of Medicine, and he holds dual

board certification as a Diplomate of Adult Psychiatry (AP) and Forensic Psychiatry

(FP) of the American Board of Psychiatry and Neurology (ABPN). In 2015, the

American Psychiatric Association awarded him Distinguished Fellow status. He also

is an Adjunct Assistant Professor of Psychiatry at Morehouse School of Medicine

and a Clinical Assistant Professor with the Emory University School of Medicine.

He has served as a consultant to various school systems in the Atlanta area, Emory

University Hospitals, Georgia Tech Athletic Department, Georgia Composite State

Board of Medical Examiners, Arizona Medical Board, the Federal Bureau of

Investigation, the United States Armed Forces, and the Department of Defense. He

holds Top Secret security clearance with the United States government. As a

neuropsychiatrist, he treats a wide variety of medical conditions, including

schizophrenia spectrum disorders and other neurologic impairments or

neurodevelopmental disorders.

22

Dr. Agharkar’s report found that petitioner has suffered from severe mental

illness and cognitive defects all of his life. Due to his severe psychosis, marked by

auditory and visual hallucinations and irrational delusional thinking, Dr. Agharkar

concluded that petitioner did not have a rational understanding of the reasons he is

facing execution. Dr. Agharkar’s report concluded that petitioner believed he was

being executed because of a bizarre and irrational delusion that “Satan is using the

State of Missouri to execute me to bring about the end of the world.” This belief was

part of petitioner’s “extensive delusional belief system involving paranoid,

grandiose, and bizarre beliefs,” many of which center on concepts related to spiritual

warfare and demons. Exh. 1 at 54. As a result of his severe psychotic mental illness,

his cognitive impairments, and bizarre delusions, Dr. Agharkar concluded that

petitioner “does not have a rational understanding of the reasons for his execution

and is incompetent to be executed.” Id. Dr. Agharkar also noted that petitioner has

“delusional beliefs regarding his ability to live on after death in an animal’s mind or

as the undead,” which “indicate[s] a lack of rational awareness of the finality of his

punishment.” Id. Petitioner’s “irrational understanding is further demonstrated by

his belief that he potentially can change this plan by going into the judge and

lawyers’ heads or that the spirits of the underworld can influence the State to not

execute him for Satan’s purpose.” Id.

23

Based upon his long history of mental illness and the findings of Dr. Agharkar,

petitioner filed his state habeas petition before the Missouri Supreme Court on May

16, 2023, that claimed petitioner’s upcoming execution scheduled for August 1,

2023, would violate the Eighth and Fourteenth Amendment because he has long

suffered from serious mental illness and that he lacks a rational understanding of the

reason for his execution. In this petition, petitioner also requested an evidentiary

hearing before a Special Master and a stay of execution.

The state did not present any expert psychiatric evidence from a qualified

mental health professional to rebut Dr. Agharkar’s findings. Instead, respondent

presented the court with a one-and-a-half-page affidavit from a prison mental health

counselor, Ashley Skaggs. (See Resp. Exh. D). Ms. Skaggs stated that before

preparing her affidavit, she reviewed Dr. Agharkar’s report. (Id.) Ms. Skaggs’s

affidavit stated that, based upon her observations and interactions with petitioner in

the preceding months that he “appeared to understand the nature of his upcoming

execution.” (Id.) Ms. Skaggs also averred that petitioner’s hallucinations had ceased

and were being controlled by his current medications such that Mr. Johnson’s mental

illness “was well managed by medication”. (Id.) She also stated that petitioner never

told her about the kinds of hallucinations and delusions that were noted in Dr.

Agharkar’s report. (Id.).

24

The Attorney General also presented the court with some of petitioner’s prison

records. Those records revealed similar delusions petitioner expressed to Dr.

Agharkar and, in some instances, the same delusion about his death causing the end

of the world. They also revealed that Mr. Johnson’s symptoms, including auditory

hallucinations and delusions, were constantly present even when he was on strong

antipsychotic medications. For example:

• In 2004, Dr. Dean, a psychologist, reported that during her four-day

evaluation of Mr. Johnson, he “expressed the belief that ‘when I was born the

world was created, and when I die the world will die.’” Exh. 19 at 9.

• In 2005, a prison psychiatrist reported Mr. Johnson stated, “I think I’m the 7 th

sign. I’m the end of the world when I die.” Exh. 16 at 53; Resp. Exh. C at 48.

• In 2020, a prison doctor reported Mr. Johnson heard voices and said,

“sometimes I think that the world will end if I die.” Resp. Exh. C at 463.

• In 2020, the prison reported that Mr. Johnson was hearing “male/female

voices inside his head telling him that people talk about him, the end of the

world, he is God etc. [sic].” Id. at 470.

• In 2022, a prison psychologist reported that Mr. Johnson had auditory

hallucinations of voices telling him “the world is going to end,” auditory

hallucinations on a “regular basis” and “has heard God’s voice talking directly

to him and sometimes he ‘can hear the other side of the world and different

spirits.’” Id. at 567-68.

Similarly, as Mr. Johnson expressed to Dr. Agharkar his delusion about being

able to “go into others’ minds,” Exh. 1 at 6, Mr. Johnson informed the mental health

staff on September 22, 2020, “I can close my eyes and see into somebody else’s

eyes.” Resp. Exh. C at 568.

25

On June 8, 2023, the Missouri Supreme Court denied the petition and

petitioner’s requests for a stay and the appointment of a Special Master. (A-1-9). In

doing so, the Missouri Supreme Court relied upon the substance of Ms. Skaggs’s

affidavit and petitioner’s prison records to discredit Dr. Agharkar and found that

petitioner could not meet the threshold showing of insanity necessary to receive a

hearing on his claim he was incompetent to be executed under Panetti. (A-2, 6-8).

At the outset of its analysis, the Missouri Supreme Court rejected respondent’s

argument that his Panetti claim should be rejected because he was aware that he was

being executed for murder. (See A-5-6). However, the Missouri Supreme Court

proceeded to find that petitioner could not meet the threshold test of insanity by

relying upon Skaggs’s affidavit and some of petitioner’s prison records indicating

that petitioner had expressed remorse for the offense and was aware his legal appeals

were coming to an end. (A-7). The court suggested those records indicated he was

aware of why he was being executed. (Id.). The other critical finding of fact that the

Missouri Supreme Court made to reach its decision was Skaggs’ affidavit and

notations in some of the medical records stating that petitioner’s current medications

were controlling his hallucinations and he had not been hallucinating under his

current medication regimen. (Id.).

26

After the Missouri Supreme Court denied his habeas petition,3 counsel for

petitioner received additional prison psychiatric records from the attorney general’s

office on July 12 and July 20, 2023. These records were unavailable to petitioner or

the court during the litigation of his state habeas petition. These new records

established, among other things, that petitioner’s treating doctors at the prison

changed his anti-psychotic medication on July 5, 2023, and then doubled the dosage

of that medication five days later. These new records also indicated that Mr. Johnson

continued to suffer from hallucinations and delusions while on his previous

antipsychotic medication, and even after his medication had been altered. (See

MRM, Exhs. 1, 2). The records also revealed that in a May 31, 2023 appointment

with the prison psychiatrist, Mr. Johnson reported he “has felt regularly people are

controlling him, that he hears voices in his head and has others’ voices come out of

his mouth at times. He reports this has been going on for an extended period.” (Id.).

In a June 27, 2023 appointment with the psychiatrist, Mr. Johnson “confirmed

ongoing AVH [auditory/visual hallucinations]” and “sometimes he has contact with

demons as indicated by feeling heat on his ears.” (Id.).

After reviewing some of this new evidence, Dr. Agharkar conducted a followup face to face evaluation of petitioner on July 15, 2023. Petitioner also obtained

3

Before the petition was denied, counsel pointed out to the court that they had not

received all of petitioner’s prison records that they had requested from the Attorney

General.

27

affidavits from two of petitioner’s former treating doctors at the Missouri

Department of Corrections, Angeline Stanislaus and Alwyn Whitehead. All three of

these doctors found that Mr. Johnson was not malingering. (MRM, Exhs. 3-5). More

importantly, however, Dr. Agharkar’s new report indicated, based upon his recent

face-to-face evaluation on July 15, 2023, that petitioner continues to suffer from

auditory hallucinations and the same irrational delusions about the reasons for his

execution despite being overly sedated by his current medication regimen.4 (MRM,

Exh. 3). Dr. Agharkar noted: “Mr. Johnson has been trying to enter the minds of the

Judge and the Prosecutor but has been unsuccessful. He does not think that will work

at this point because he ‘can’t figure out the code.’ He absolutely believes he can

communicate with the “Underworld” but has grown frustrated with “them” because

he cannot get what they say to work. He continues to believe he has been marked

with the ‘Seventh sign’ and his death would cause the end of the world.” (Id.).

Petitioner told Dr. Agharkar “he does not trust prison staff and knows ‘they don’t

believe’ him so he does not talk to them about his symptoms. Mr. Johnson also

Prior evaluations by Drs. Stanislaus and Whitehead similarly found that petitioner’s

symptoms are a regular presence in his life even while he is on medication. Dr.

Stanislaus reported that even while petitioner was medicated, he still suffered from

breakthrough symptoms of his illness. (MRM, Exhs. 4-5). Dr. Whitehead agreed:

“Medication does not get rid of Mr. Johnson’s symptoms; it just makes them less

apparent. Mr. Johnson consistently heard voices even when on the medication.”

(Id.). Although petitioner was medicated when he was evaluated by Dr. Stewart,

petitioner exhibited psychosis during Dr. Stewart’s evaluation. PCR Tr. 191.

4

28

confirmed that his interactions with prison staff are extremely brief and do not delve

deeply into his belief system.” (Id.).

Based upon this new evidence, petitioner filed a motion to recall the mandate

in the Missouri Supreme Court on July 21, 2023, seeking reconsideration of the

Court’s prior denial of his state habeas petition. Petitioner’s motion also reiterated

his requests for a stay of execution and the appointment of a Special Master to

conduct an evidentiary hearing on his Eighth Amendment claims.

The Missouri Supreme Court, as noted earlier, summarily denied this motion

on July 29, 2023. (A-10). The present petition for a writ of certiorari is now before

this Court for discretionary review.

REASONS FOR GRANTING THE WRIT

I.

CERTIORARI SHOULD BE GRANTED TO PERMIT THE COURT TO

CLARIFY THE QUANTUM OF PROOF THAT A MENTALLY ILL

CONDEMNED PRISONER MUST PRESENT TO MAKE “A

SUBSTANTIAL THRESHOLD SHOWING OF INSANITY” IN ORDER TO

OBTAIN A “FAIR HEARING IN ACCORD WITH FUNDAMENTAL

FAIRNESS” AS REQUIRED BY FORD AND PANETTI.

In the aftermath of Ford and Panetti, it is unclear to this day as to what

quantum of proof a mentally ill prisoner facing an imminent death sentence must

present to a reviewing court to obtain a fair hearing that procedural due process

29

requires. See Ford, 477 U.S. at 427; Panetti, 551 U.S. at 949. The facts of this case

underscore this problem and the lack of guidance and clarity that this Court’s prior

decisions in Ford and Panetti has engendered among lower courts.

Dr. Agharkar’s findings and conclusions were not disputed or rebutted in any

way by any qualified mental health expert employed by or retained by the state. His

findings and conclusions were also not rebutted by petitioner’s medical records

submitted by the state; the records contained at least 15 references to the types of

delusions reported by Dr. Agharkar, five of which were the same delusion Dr.

Agharkar reported. Despite this failure of the state to attempt to rebut Dr. Agharkar’s

findings with any qualified evidence and the ample record support for Dr.

Agharkar’s findings in petitioner’s medical history, the Missouri Supreme Court

nevertheless found that petitioner could not meet the threshold showing of insanity,

based upon the opinion of a prison counselor applying the awareness standard of

incompetency Panetti rejected and the court’s cursory review of an incomplete set

of petitioner’s records that were submitted to the court prior to its judgment that was

issued on June 8, 2023.

However, the new evidence presented in conjunction with petitioner’s

subsequent post-judgment motion to recall the mandate seriously undermined Ms.

Skaggs’s affidavit and the court’s interpretation of petitioner’s medical records.

Under Ford and Panetti, the court should not have relied on this evidence going only

30

to petitioner’s awareness and not his rational understanding and contradicted by the

medical records to conclude that petitioner could not satisfy the minimum threshold

standard of incompetency, particularly without giving petitioner the opportunity for

full discovery and a fair process to discredit the state’s evidence. Panetti, 551 U.S.

at 956-57 (holding that the awareness standard is “too restrictive to afford a prisoner

the protections granted by the Eighth Amendment.”). But for the court’s reliance on

the opinion of Skaggs, petitioner’s evidence unquestionably satisfied the minimum

threshold standard of incompetency under Ford and Panetti.

In order to establish a more precise bright-line definition of the term

“substantial threshold of insanity”, this Court could look to other areas of the law for

guidance. For instance, the Court might consider adopting the standard for

establishing a prima facie case of discrimination that must be met by a civil litigant

or criminal defendant in order to obtain further judicial review of a claim of racial

discrimination. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986). This test would

require a mentally ill condemned prisoner to show that the totality of the evidence

“gives rise to an inference of [insanity].” Id. at 94. See also McDonnell Douglas v.

Green, 411 U.S. 792 (1973). Another possible solution would adopt a test that

Missouri and most other courts employ to determine whether a criminal defendant

is entitled to an evidentiary hearing in a post-conviction action. In Missouri, a

prisoner raising claims for relief under Mo. S. Ct. R. 29.15, is entitled to an

31

evidentiary hearing if the petitioner pleads facts that, if true, would entitle him to

relief unless his claims for relief are conclusively foreclosed by the existing record.

See, e.g., Wedlow v. State, 841 S.W.2d 214, 215-216 (1992).

Regardless of the standard this Court may elect to adopt to clarify this

threshold requirement issue, Dr. Agharkar’s report was sufficient by itself to entitle

petitioner to a “fair hearing” that comports with procedural due process. The ample

support in petitioner’s medical records for Dr. Agharkar’s conclusions should have

left no question that petitioner satisfied the threshold requirement. In Panetti, this

Court found that Scott Panetti had made a substantial threshold showing of insanity

based upon the extensive evidence of Panetti’s mental dysfunction presented in

earlier legal proceedings coupled with the declarations of a law professor and an

expert who had conducted only a preliminary evaluation of Panetti and did not

submit a full report at that time. Those declarations were issued the day before Scott

Panetti was scheduled to be executed. Panetti v. Quarterman, 551 U.S. 930 (2007).

The facts of this case are arguably just as strong as—or stronger than—the

evidence presented in Panetti that was found sufficient to meet the necessary

threshold to require further hearings on whether Panetti was competent for

execution. Assuming for the sake of argument that the State of Texas had presented

prison records or observations of prison personnel that suggested Scott Panetti did

not exhibit signs of mental illness in the days and weeks preceding his execution

32

date to rebut his experts’ findings, it is unlikely that this Court’s 2007 decision in

Panetti would have materially changed. This is particularly so given that outward

signs are only one component of mental illness, and delusions can be, and often are,

present even without outward signs of symptoms. Furthermore, the Court in Panetti

explicitly rejected the awareness standard Skaggs employed in her affidavit. See

Panetti, 551 U.S. at 956-57. However, under this hypothetical, if Panetti’s case had

been reviewed under the procedures and standards that the Missouri Supreme Court

utilized here and other similar cases, Scott Panetti would have likely been executed.

The facts of this case provide this Court an ideal opportunity to clarify and establish

a more definitive test that a condemned prisoner must meet to receive a fair hearing

to prove that he is incompetent to be executed.

II.

CERTIORARI SHOULD BE GRANTED TO CONSIDER WHETHER THE

MISSOURI SUPREME COURT’S PRACTICE OF ISSUING FINDINGS OF

FACT AND CREDIBILITY DETERMINATIONS BASED UPON A PAPER

RECORD IN ADJUDICATING WHETHER A MISSOURI DEATH ROW

INMATE IS MENTALLY COMPETENT TO BE EXECUTED VIOLATES

DUE PROCESS.

As noted earlier, the Missouri Supreme Court’s opinion found that petitioner

could not meet the threshold test of insanity because Dr. Agharkar’s report was

purportedly discredited by prison records and the opinion and observations of

counselor Skaggs. However, as petitioner’s motion to recall the mandate revealed,

these observations were not accurate, and the court’s interpretation of the records

33

was contradicted by substance of the records themselves, including those that were

not initially disclosed.

What the Missouri Supreme Court really does in adjudicating Panetti claim is

a review of the paper record presented by both parties, in a time-compressed

atmosphere where the execution is imminent, and “make credibility determinations

as to whom to believe and whose reports are entitled to more weight in the first

instance and then decide the ultimate factual issue regarding whether [the prisoner]

is incompetent.” See State ex rel. Cole v. Griffith, 467 S.W.3d 349, 362 (Mo. banc

2015)(Stith J., dissenting). In Ford, this Court found that the Texas procedures for

determining incompetence for execution were constitutionally infirm because its

procedures invited arbitrariness and error by preventing the affected parties from

offering contrary medical evidence or even in explaining the inadequacy of the

state’s examinations. See Ford v. Wainwright, 477 U.S. 399, 424 (1986).

As in Ford, the current record from the Missouri Supreme Court proceedings

demonstrates arbitrariness and a denial of a fair opportunity to rebut the evidence

that the state presented by way of affidavit and incomplete records that led the

Missouri Supreme Court to totally discredit Dr. Agharkar’s findings. In both Ford

and Panetti, despite finding clear inadequacies with procedures employed by Texas

in assessing competence to be executed claims, the court left unanswered whether

due process required other procedures such as the opportunity for discovery or cross34

examination of witnesses in order to provide a mentally ill condemned man a fair

hearing. Panetti, 551 U.S. at 949.

In this case, the court below discredited the only qualified mental health expert

who evaluated petitioner based upon incomplete records and Skagg’s observations

that were subsequently exposed as inaccurate and probably false, whose opinion

rested upon an incorrect legal standard for assessing incompetency claims. As

respondent has never contested, the prison counselor upon whose opinion and

observations the court relied was not qualified under Missouri law to practice

psychology, diagnose psychiatric illnesses, or render a forensic opinion based on

such diagnoses. She also did not even purport to conduct an evaluation of petitioner’s

competency, and instead merely relied on her observations from a total of nine fiveto ten-minute encounters with petitioner over the course of three years, amounting

to, at most, 75 minutes (less than half the length of Dr. Agharkar’s first face to face

evaluation). Moreover, her own notations in petitioner’s medical records

contradicted her statement that his symptoms were well managed by effective

medication. For example, on January 23, 2023, Skaggs noted that Mr. Johnson “said

he’s doing better and is hearing less voices.” Resp. Exh. C at 588 (emphasis added).

Hearing less does not come close to none.

Although on February 2, 2023, Skaggs noted that Mr. Johnson reported that

he did not have hallucinations while on medication, on March 8, 2023, she also noted

35

that Mr. Johnson reported that “the voices are still ‘a whisper’ and at baseline,”

reflecting that he does indeed experience auditory hallucinations while compliant

with his medications. Id. at 590, 594. On May 10, 2023, Skaggs noted that Mr.

Johnson “reports he is now having minor auditory hallucinations. He described them

as laughing or chattering in his ear.” Id. at 601. Another note from the same day

states that Mr. Johnson was “having issues with sleep” and reported “mild AH

[auditory hallucinations] of ‘chattering and laughing.’” Id. at 602. The more recent

records from the prison psychiatrist further reveal that Mr. Johnson’s auditory

hallucinations and demon-related delusions continue to be present despite

medication, as does his recent medication change “for psychosis.” (MRM Exhs. 1,

2).

Furthermore, because Skaggs in under contract with Potosi Correctional

Center, she was burdened by a conflict of interest. Her involvement in the effort to

ensure that Mr. Johnson is deemed fit for execution while also purportedly providing

him with mental health treatment unfairly pits her loyalty to her employer at odds

with her to duty to petitioner to provide him necessary health care. (See Pet. Exh.

22).

The facts here provide this Court with an ideal opportunity to decide what

process is due under the Fourteenth Amendment to a condemned man, who has been

diagnosed as schizophrenic since the age of sixteen, to give him a fair opportunity

36

to prove that permitting his upcoming execution would violate the Eighth

Amendment. Discretionary review is warranted.

III.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER THE

MISSOURI SUPREME COURT’S DISPARATE TREATMENT OF HABEAS

PETITIONS FROM CONDEMNED MEN RAISING COMPETENCE TO BE

EXECUTED CLAIMS WITH THE PETITIONS OF OTHER SIMILARLY

SITUATED PRISONERS’ STATE HABEAS CASES VIOLATES DUE

PROCESS AND EQUAL PROTECTION.

As petitioner noted during the litigation of his motion to recall the mandate,

the Missouri Supreme Court adjudicates habeas corpus petitions filed by mentally

ill condemned men differently than those filed by other prisoners raising other claims

for relief. Pursuant to Mo. S. Ct. R. 68.03, the Missouri Supreme Court and other

Missouri appellate courts are authorized under this rule to appoint Special Masters

in habeas corpus cases and other matters in situations where there is an inadequate

record for the court to fairly adjudicate the claims presented.

In adjudicating habeas petitions filed by other prisoners raising other claims

for relief, the Missouri Supreme Court has routinely appointed Special Masters to

allow the habeas petitioner to fully develop the facts supporting their underlying

claims. This procedure has been employed in numerous cases involving both capital

and non-capital cases. See e.g. State ex rel. Clemons v. Larkins, 475 S.W.3d 60 (Mo.

banc 2015), State ex rel. Woodworth v. Denney, 396 S.W.3d 330 (Mo. banc 2013),

State ex rel. Carnes v. Buckner, No. SC98736. (Order of 12/22/20)

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By failing to even handedly and consistently apply its own rules regarding

habeas corpus procedure, the Missouri Supreme Court’s failure to appoint a Special

Master in this case violates due process under Hicks v. Oklahoma, 447 U.S. 343, 347

(1980). This disparate treatment also violates well-settled equal protection principles

that require that all similarly situated persons should be treated alike. See Cleburne

v. Cleburne Living Center, 473 U.S. 432, 439 (1985).

The Missouri Supreme Court’s unique method it employs in reviewing

mentally ill prisoners’ Panetti claims is fundamentally unfair and is clearly out of

the mainstream from how other jurisdictions adjudicate such cases. Unless this Court

grants discretionary review, this aberrant practice will continue unabated, which will

likely result in the unlawful executions of other inmates like Johnny Johnson who

are profoundly mentally ill and whose executions would serve no legitimate

penological purpose.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Kent E. Gipson

KENT E. GIPSON

Mo. Bar #34524

Law Office of Kent Gipson, LLC

121 East Gregory Blvd.

Kansas City, Missouri 64114

816-363-4400 • Fax 816-363-4300

kent.gipson@kentgipsonlaw.com

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COUNSEL FOR PETITIONER

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