# Opposition Brief — Dunn v. Madison, 138 S. Ct. 9 (2017) (No. 17-193)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

No. 17-193
IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

JEFFERSON DUNN, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS, Petitioner,

Vv.

VERNON MADISON, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEATS FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION
TO PETITION FOR A WKIT OF CERTIORARI

ANGELA L. SETZER
COUNSEL OF RECORD
RANDALL S. SUSSKIND
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104
(334) 269-1803

Counsel for Respondent
September 5, 2017

CAPITAL, CASK

QUESTION PRESENTED
(Rephrased)

In January, 2016, Vernon Madison suffered a thalamic stroke,
which, along with several previous strokes, led to significant decline in his
cognitive and bodily functioning; he now speaks in a dysarthric or slurred
manner, is legally blind, can no longer walk independently, and has
urinary incontinence as a consequence of damage to his brain. He was
given an unrebutted DSM-5 diagnosis of vascular neurological disorder,
or vascular dementia, which, along with cognitive decline and significant
memory deficits, prevents Mr. Madison from having a rational
understanding of why he is to be executed by the State.

Prior to the setting of the execution date in this case, Mr. Madison
challenged his competency to be executed in the state trial court pursuant
to Ala. Code § 15-16-23. In summary fashion, the state trial court
determined that Mr. Madison was competent to be executed.

Pursuant ty Alabama state law, this claim could not be reviewed by
any state appellate court, and in federal habeas corpus proceedings, the

district court rejected Mr. Madison's competency claim. On appeal, after

invoking the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)
and setting forth the appropriate standard of deference, the Eleventh
Circuit Court of Appeals applied the governing law set forth in this
Court’s opinions in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti
v. Quarterman, 551 U.S. 930 (2007), and determined that the state trial
court unreasonably determined the facts relevant to Mr. Madison's claim
and unreasonably applied controlling federal law before concluding that
habeas corpus relief was warranted.

Thus, the question presented is:

Should this Court decline review where the federal court

invoked the appropriate standard of deference required by the

AEDPA, correctly applied the governing legal precedents from

this Court, and properly determined the unreviewed state

court decision to be objectively unreasonable in light of the

unique facts of this case and controlling federal law?

TABLE OF CONTENTS

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a, —“(itsts—stssC‘(‘é RSC CTT TT TOE Ce 8
REASONS FOR DENYING THE WRIT.............660 000 eeeues 22

A. THE ELEVENTH CIRCUIT’S DECISION
REPRESENTS THE PROPER APPLICATION OF LAW
TO FACTS IN DETERMINING THE UNREVIEWED
STATE COURT DECISION TO BE AN
UNREASONABLE APPIHICATION OF CLEARLY
ESTABLISHED FEDERAL LAW AND AN
UNREASONABLE DETERMINATION OF FACTS.. .... 22

B. CERTIORARI IS INAPPROPRIATE TO REVIEW A
DECISION THAT NEITHER CONFLICTS WITH
PRECEDENT FROM THIS COURT NOR WITH
DECISIONS FROM OTHER COURTS OF APPEAT. OR
STATE COURTS OF 1.AST RESORT.................. 27

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APPENDIXA Order Granting Motion to Stay, Madison v.Comm’r, Ala.
Dep't. Of Corr., No. 16-12279 (11th Cir. May 12, 2016)

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TABLE OF AUTHORITIES

CASES
" Atkins v. Virginia, 536 U.S. 304 (2002). ..............222200005. 13
Batson v. Kentucky, 476 U.S. 79 (1986)... ... 2.6... ee eee 5, 8
Bedford v. Bobby, 645 F.3d 372 (6th Cir. 2011)................ 32, 33
Brumfield v. Cain, 135 S. Ct. 2269 (2015). ...............45.. 25, 27
ee Dy A SD UL, PIs bcc cccecccvecceccesseses 31
Carter v. Kentucky, 450 U.S. 288 (1981). ... 2.6... ccc cee eee 29
State ex rel. Clayton v. Griffith, 457 S.W.3d 735 (Mo. 2015). .... 35, 36

—— Sec’y. Fla. Dep’t. of Corr., 716 F.3d 1315 (11th Cir. 2013)
SeeWawels cb eheKknesbsus banhesseesecenes 20, 21, 23, 24, 26

Ford v. Wainwright, 477 U.S. 399 (1986)..................4.. passim
ey Oh es Cy ee, I . g cic ccwscecusvucceessen 30
State v Irick, 320 S.W.3d 284 (‘l'enn. 2010). ...... 2... 0... cece ee 34
Knowles v. Mirzayance, 556 U.S. 111 (2009).................. 29, 30
Ex parte Madison, 718 So. 2d 104 (Ala. 1998)...............00055. 7
Madison v. Alabama, 525 U.S. 1006 (1998).................25005. 7
Madison v. Comm’r, Ala. Dep't of Corr., 677 F.3d 1333 (11th Cir. 2012)

soereenreeeneeneeeneneeeeeeee#ee#eneeneteeneeeteee#eneeeneeneeneneneneeeeeeeee 8

iv

Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240 (11th Cir. 2014)

Renee eh SOE Minbaheewenk es cece oe bee eee eee kaaen eetieen 8
Madison v. Comim’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017)

ei hae eae Beals oe oe ei od ale inte wee wl oa passim
Madison v. State, 545 So. 2d 94 (Ala. Crim. App. 1987)........... 3, 5

Madison v. State, 620 So. 2d 62, 65 (Ala. Crim. App. 1992). ... 2, 3, 4, 5

Madison v. State, 718 So. 2d 90 (Ala. Crim. App. 1997). ........ 2, 6, 7
Madison v. State, 999 So. 2d 561 (Ala. Crim. App. 2006). ........... 7
Madison v. ‘I‘homas, 135 S. Ct. 1562 (2015)....... 2... 0.0.0. e ee uee 8
In re Medina, 109 F.3d 1556 (11th Cir. 1997)... 0... 6. eee 24
State ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. 2014). ...... 35
Panetti v. Quarterman, 551 U.S. 930 (2007)................. passim
In re Provenzano, 215 F.3d 1233 (11th Cir. 2000)................. 24
ee GS, UN, Gi es PPIs orice ce cucesccvosodesveeeee 20
Simon v. Fisher, 641 F. App’x 386 (5th Ci». 2016).............. 33, 34
Thomas v. Madison, 568 U.S. 1019 (2012).............2.00 eee euues 8
Virginia v. LeBlanc, 137 S. Ct. 1726 (2017)... . 0.0... ccc ee eeee 29, 30
Weeks v. State, 663 So. 2d 1045 (Ala. Crim. App. 1995)............ 19
Ex parte Wesley, 575 So. 2d 127 (Ala. 1990). ..............0000ee 5

White v. Woodall, 134 S. Ct. 1697 (2014)..............000 ee ’

Woodward v. Alabama, 134 S. Ct. 405 (2013). .......... 0.00 eens 4
STATUTES
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NN a ae ee eee re ee i, 9, 10, 19
MISCEI.1.ANKOUS

Am. Psychiatric Ass’n, Diagnostic and Statistical Manual] of Mental
rr es 6c ph eweseerssube cvewse ee 10, 11

Equal Justice Initiative, The Death Penalty in Alabama: Judge

John G. Baker et al., Cerebral Small Vessel Disease: Cognition,
Mood, Daily Functioning, and Imaging Findings from a Smal!
Pilot Sample, 2.1 Dementia & Geriatric Cognitive Disorders
169 (2012), available at http:// www. ncbi. nlm.nih.gov/ pme/

GURUS coc cccccccscesccenccenecacoenes 16

vi

INTRODUCTION

The State of Alabama seeks this Court’s review based on a factual
characterization of the record that is inaccurate and by relying on the
testimony of a since-discredited state court-appointed psychologist. The
mischaracterization of the record, however, cannot conceal what is evident
from the proceedings below: there is nothing particularly compelling or
unique about a federal court properly applying governing legal precedent
to the specific and undisputed facts of a case to declare an unreviewed
state trial court decision to be objectively unreasonable. Under these
circumstances, certiorari should be denied.

In January, 2016, Vernon Madison suffered a thalamic stroke,
which, along with several previous strokes, led to significant decline in his
cognitive and bodily functioning; he now speaks in a dysarthric or slurred
manner, is legally blind, can no longer walk independently, and has
urinary incontinence as a consequence of damage to his brain. These
strokes led to an unrebutted DSM-5 diagnosis of vascular neurological
disorder, or vascular dementia, and along with cognitive decline and

significant memory deficits prevent Mr. Madison from having a rational

understanding of why he is to be executed by the State of Alabama.

Petitioner does not address this significant and well-docuinented
medical evidence of Mr. Madison’s strokes and his significant cognitive
decline, or the unrefuted DSM-5 diagnosis in this case, instead repeatedly
asserting that Mr. Madison has “always denied responsibility for (Officer
Schulte’s} murder,” Pet. at 5; see also Pet. at 3, 12, 24. The assertion that
Mr. Madison has never admitted his involvement in this crime is
inaccurate: at the trial underlying his current conviction and death
sentence, Mr. Madison admitted shooting Officer Schulte, but asserted
self-defense, Madison v. State, 718 So. 2d 90, 97 (Ala. Crim. App. 1997)
(“he again claimed that the killing was committed in self-defense”);
likewise, at his second trial, Mr. Madison did not deny shooting the victim,
but asserted a mental health defense. See Madison v. State, 620 So. 2d 62,
65 (Ala. Crim. App. 1992) (“he admitted through counsel that he shot
Officer Schulte”).

Petitioner alternatively argues that the lower court’s decision is in
conflict with other courts, and certiorari is appropriate to review this

alleged split. Pet. at 12-18. But a close reading of the cases cited by

Petitioner makes clear that each of these courts properly applied this
Court’s governing legal precedents to a wide range of facts and came to
different conclusions based on the application of the law to the unique
facts of each case.

Finally, Petitioner’s argument that this case is an appropriate
vehicle for this Court’s review because “enormous state resources” have
been expended in this case and the lower court’s opinion “frustrates” the
State’s “good-faith attempts to honor constitutional rights,” Pet. at 27, is
belied by Petitioner’s own conduct in this case. ‘I'he three decades Vernon
Madison has spent on death row are a direct result of the State of
Alabama's misconduct and its insistence on defending the misconduct for
years and in multiple courts. The State illegally removed of all seven of
the qualified African American prospective jurors at Mr. Madison’s first
trial, Madison v. State, 545 So. 2d 94 (Ala. Crim. App. 1987), and
introduced illegal evidence at Mr. Madison’s second trial, Madison v.
State, 620 So. 2d 62 (Ala. Crim. App. 1992). Critically, Mr. Madison would

not be on death row had Mobile County Circuit Court Judge Ferrill

McRae’ not rejected the verdict of the death-qualified jury sentencing Mr.
Madison to life without parole. Certiorari should be denied.
STATEMENT OF THE CASE

(Corrected)

A. PRIOR PROCKEDINGS

Vernon Madison was indicted on two counts of capital murder on
May 20, 1985, in the Mobile County Circuit Court in Mobile, Alabama.
Madison v. State, 620 So. 2d 62, 62 (Ala. Crim. App. 1992). The charges
arose from the death of City of Mobile police officer Julius Schulte on April
18, 1985. Id. at 63-64. On September 12, 1985, a jury found Mr. Madison
guilty of capital murder, and the trial court subsequently sentenced him

to death. Id. at 63. The Alabama Court of Criminal Appeals reversed Mr.

‘In his time on the bench, Judge McRae overrode six life verdicts,
more than any other judge in the state of Alabama. See Woodward v.
Alabama, 134 S. Ct. 405, 409 (2013) (Sotomayor, J., dissenting) (“One
Alabama judge, who has overridden jury verdicts to impose the death
penalty on six occasions, campaigned by running several adverlisements
voicing his support for capital punishment. One of these ads boasted that
he had “presided over more than 9,000 cases, including some of the most
heinous murder trials in our history,” and expressly named some of the
defendants whom he had sentenced to death, in at least one case over a
jury’s contrary judgment.” (citing Equal Justice Initiative, The Death
Penalty in Alabama: Judge Override 16 (2011),
http://eji.org/eji/files/Override_Report.pdf).

4

Madison's conviction and sentence after concluding that the Mobile
County District Attorney’s Office had engaged in racially discriminatory
jury selection when it struck all seven qualified African American
veniremembers, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
Madison v. State, 545 So. 2d 94, 95-99 (Ala. Crim. App. 1987).

At the second trial, Mr. Madison did not deny shooting the victim;
rather, his primary defense was that he was not guilty by reason of
mental disease or defect. Madison, 620 So. 2d at 65. On September 14,
1990, Mr. Madison was again convicted of capital murder, and the trial
court imposed a sentence of death. Madison, 620 So. 2d at 63. The
Alabama Court of Criminal Appeals reversed on the ground that the State
had engaged in prosecutorial misconduct when it elicited expert testimony
“based partly on facts not in evidence,” in violation of Ex parte Wesley,
575 So. 2d 127 (Ala. 1990). Madison, 620 So. 2d at 73.

Mr. Madison’s third trial was held from April 18, 1994, through April
21, 1994. At the guilt phase of trial, Mr. Madison again did not deny that

he shot the victim, but claimed that he did so in self-defense. Madison v.

State, 718 So. 2d 90, 97 (Ala. Crim. App. 1997).* On April 21, 1994, the
jury found Mr. Madison guilty of capital murder. It was undisputed at the
penalty phase of trial that Mr. Madison suffered from a mental illness
marked by paranoid delusions. This mitigating circumstance was
established primarily through the testimony of defense expert Dr. Barry
C. Amyx. (Doc. 11-4 at 2-44.) Dr. Amyx testified that Mr. Madison suffered
from a delusional disorder; had experienced persecution delusions since
he was a teenager; was out of touch with reality and unable to gather his
thoughts; and could not appreciate fully the criminality of his conduct.
(Doc. 11-4 at 7,9,13,16,25,43.) Dr. Amyx explained that Mr. Madison’s
struggles with mental illness had been observed since he was an
adolescent, including by prison psychiatrists in Mississippi as documented
in medical records introduced by the defense. (Doc. 11-4 at 2, 7.) To control
his illness, Mr. Madison had been prescribed numerous anti-psychotic
medications. (Doc. 11-4 at 10.)

Although the State called psychiatric expert Dr. Claude Brown to
contest the severity of Mr. Madison’s impairment, Dr. Brown agreed that

*This belies Petitioner's repeated assertions that Mr. Madison has
never admitted killing the victim in this case.

6

Mr. Madison suffered from a mental illness “of a paranoid type.” (Doc. 11-
5 at 2, 7.) Dr. Brown did not refute the defense evidence that Mr. Madison
had been diagnosed as mentally ill years earlier by prison psychiatrists in
Mississippi or that he was required to take numerous psychotropic
medications. (Doc. 11-5 at 2-7.)

After hearing this significant evidence concerning Mr. Madison's
profound history of mental illness, the same death-qualified jury voted to
sentence Mr. Madison to life imprisonment without parole. On July 7,
1994, Judge Ferrill McRae overrode the jury’s verdict and sentenced Mr.
Madison to death. Mr. Madison’s case was affirmed on appeal, Madison v.
State, 718 So. 2d 90 (Ala. Crim. App. 1997), aff'd, Ex parte Madison, 718
So. 2d 104 (Ala. 1998), and this Court denied certiorari review, Madison
v. Alabama, 525 U.S. 1006 (1998).

Mr. Madison subsequently filed a petition for post-conviction relief
pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The
Alabama Court of Criminal Appeals affirmed the dismissal of that petition
without a hearing, Madison v. State, 999 So. 2d 561 (Ala. Crim. App.

2006), and the Alabama Supreme Court denied certiorari review.

On January 8, 2009, Mr. Madison timely filed his petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. The district court denied relief,
but the United States Court of Appeals for the Eleventh Circuit reversed
the district court’s denial in part on April 27, 2012, and remanded the case
with instructions for the district court to conduct a Batson hearing.
Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333 (11th Cir. 2012).
This Court denied the State’s Petition for Writ of Certiorari on November
13, 2012. Thomas v. Madison, 568 U.S. 1019 (2012). On April 25, 2013, the
district court again denied Mr. Madison’s petition for habeas corpus relief,
and the United States Court of Appeals for the Eleventh Circuit affirmed
that denial on August 4, 2014. Madison v. Comm’r, Ala. Dep’t of Corr., 761
F.3d 1240 (11th Cir. 2014). This Court denied certiorari review on March
23, 2015. Madison v. Thomas, 135 S. Ct. 1562 (2015). This Court denied
Mr. Madison’s petition for rehearing on May 18, 2015. Madison v. 'l'‘homas,
135 S. Ct. 2346 (2015).

BR. PROCEEDINGS BELOW
On January 22, 2016, the State of Alabama moved the Alabama

Supreme Court ‘0 set an execution date for Mr. Madison. On February 12,

2016, before the Alabama Supreme Court scheduled the execution, Mr.
Madison’s counsel filed a petition in the Mobile County Circuit Court
pursuant to Alabama Code § 15-16-23, moving the trial court to stay Mr.
Madison’s execution because, as a result of his dementia, strokes, and
cognitive decline, Mr. Madison no longer understands why the State is
attempting to execute him and he is incompetent to be executed under the
Eighth and Fourteenth Amendments. On February 15, 2016, Mr.
Madison’s counsel moved the Alabama Supreme Court to delay setting an
execution date until after Mr. Madison’s competency claim had been
adjudicated. Nevertheless, on March 3, 2016, the Supreme Court of
Alabama ordered that '‘I'hursday, May 12, 2016, be set as the date for Mr.
Madison’s execution.

On March 15, 2016, the Mobile County Circuit Court judge
determined that Mr. Madison had made a preliminary showing of
incompetency, ordered that he be evaluated by a court-appointed expert,’

* The court-appointed psychologist was Dr. Kar] Kirkland, who had
a long-standing contract with the State of Alabama. (Doc. 8-1 at 68.)
Subsequent to the oral argument in this case, Dr. Kirkland was arrested
and charged with multiple counts of Unlawful Possession or Receipt of a

Controlled Substance in conjunction with forging a prescription on April
18, 2016, just four days after Mr. Madison’s competency hearing.

9

and scheduled a hearing on Mr. Madison's § 15-16-23 petition, which
occurred on April 14, 2016.

At the hearing, the submitted evidence established that Mr. Madison
suffers from a major vascular neurological disorder, see Am. Psychiatric
Ass'n, Diagnostic and Statistical Manual of Mental Disorders 621 (5th ed.
2014) (hereinafter “USM-5"), or vascular dementia, which was caused in
part by a thalamic stroke he suffered in January, 2016. (Doc. 8-1 at 101-
02, 107.) Both Dr. Kirkland and Dr. John Goff, a_ licensed
neuropsychologist who, at Mr. Madison’s request, conducted extensive
neuropsychological testing and evaluated Mr. Madison’s competence to be
executed, agreed that Mr. Madison’s cognitive and bodily functioning has
declined significantly as a result of several strokes he has suffered over
the past couple of years, as well as other medical conditions with which he
is afflicted. (Doc. 8-1 at 74, 105, 108-09; Doc. 8-3 at 9-10, 19.)

Dr. Kirkland did not dispute the diagnosis of dementia. (Doc. 8-1 at
http://www.wsfa.com/story/32792305/montgomery-
psychologist-charged-with-using-forged-prescription. Dr. Kirkland was
suspended from the practice of psychology on September 9, 2016. See Ala.
Bd. of Exam’r in Psychology, Psychologist Search or License Verification,

www.psychology.state.al.us/licensee.aspx (search “Kar] Kirkland”) (last
visited Sept. 5, 2017).

10

123-24.)

On January 4, 2016, Mr. Madison was found unresponsive in his
prison cell and fecally incontinent after suffering a thalamic stroke,‘ which
necessitated transfer from Holman Prison and outside hospitalization.
(Doc. 11-32 at 25; Doc. 11-60 at 13.) This thalamic stroke is particularly
relevant to Mr. Madison’s competency because it resulted in significant
memory loss. (Doc. 8-3 at 19; Doc. 8-1 at 101-04.) ‘I'he thalamus is a
“connection organ” that links the limbic system in the lower area of the
brain to the frontal lobes, (Doc. 8-1 at 101-02), and when the thalamus is
damaged, “the most common thing” that results is memory loss. (Doc. 8-1
at 102; Doc. 8-3 at 19.)

Consistent with that pattern, Mr. Madison suffers from vascular
dementia and resulting retrograde amnesia. (Voc. 8-3 at 19; Doc 8-1 at
102, 107.) Clinical features of vascular dementia, or vascular neurological
disorder, include the onset of cognitive deficits, like memory loss, that are
temporally related to a cerebrovascular event, such as a stroke. DSM-5 at
621; (Doc. 8-1 at 107-108). In this case, Mr. Madison’s retrograde amnesia

*MKI imaging on January 4, 2016, confirmed this thalamic stroke.
(Doc. 11-60 at 13.)

11

has meant that his episodic memory — memory related to events that
happened to him in the past — has significantly declined. (Doc. 8-3 at 19.)

Consequently, Mr. Madison cannot remember numerous events that
have occurred over the past 30 years. (Voc. 8-3 at 19.) Critically, he cannot
independently recall the facts of the offense for which he was convicted or
the previous legal proceedings in his case. (Doc. 8-3 at 19; Doc. 8-1 at 110.)
Dr. Goff's examination revealed that Mr. Madison was unable to recollect
the sequence of events from the offense to his arrest or to his trial, and
could not recall the name of the victim. (Doc. 8-3 at 18-19.) Ultimately, Dr.
Goff concluded that Mr. Madison does not “seem to understand the
reasoning behind the current proceeding as it applies to him” and does not
understand why he is scheduled to be executed by the State. (Doc. 8-3 at
19-20; Doc. 8-1 at 110, 119-20.)

Dr. Goff's neuropsychological testing revealed that Mr. Madison has
an IQ score of 72, which places him in the borderline range of intelligence
and is a significant decline from his previous scores, (Doc. 8-3 at 17, 20,

Doc 8-1 at 97), and that he has a Working Memory Score of 58,

12

demonstrating severe memory deficits,’ (Doc. 8-3 at 17, Doc. 8-1 at 97-98).
Dr. Goff's testing revealed additional evidence of Mr. Madison’s memory
impairments: Mr. Madison could not recall any of the 25 elements in a
brief story vignette Dr. Goff read him, could not remember the alphabet
past the letter G, could not perform serial three additions, could not
remember the name of the previous ! Jnited States President, named Guy
Hunt as the governor of Alabama, and could not remember the name of
the Warden at Holman Correctional Facility, where he has been
incarcerated for over 30 years.*® (Doc. 8-3 at 16.) ‘here is also evidence Mr.
Madison has difficulty processing information. During the examination,
Dr. Goff noted that Mr. Madison was unable to rephrase simple sentences

and was unable to perform simple mathematical calculations. (Doc. 8-3 at

“I'he Working Memory Index is scored on a scale that is similar to
an IQ test in which 100 is the mean and the standardization is 15. (Doc.
8-1 at 98.) As Dr. Goff explained in his report, Mr. Madison’s “memory
skills in regard to working memory fall within the severely impaired
range with scores comparable to IQ test scores in the 5U's” thereby placing
him “within the borderline to intellectually disabled range” (Doc. 8-3 at
19); akin to the functioning of an individual] for whom the death penalty
has been held to be categorically unavailable under the Eighth
Amendment, see Atkins v. Virginia, 536 U.S. 304 (2002).

*Dr. Kirkland testified that Mr. Madison was only partially oriented
to time and place. (Voc. 8-1 at 74-75; Doc. 8-3 at 8.)

13

18.) Dr. Goff concluded that these deficits likely resulted, at least in part,
from the January stroke. (Doc. 8-3 at 19.)

Prior to this January stroke, Mr. Madison had suffered other strokes
that have contributed to his cognitive decline. (Doc. 8-1 at 74-75, 104-07.)
‘hese strokes include a basilar artery occlusion, causing bilateral cerebral
and occipital infarctions, in May 2015' thet resulted in increased brain
pressure, white matter attenuation, and possible temporal lobe damage,
which can cause memory difficulties.* (Doc. 8-3 at 13, Doc. 8-1 at 104-05.)
In the aftermath of the stroke, Mr. Madison was in an “altered mental
status,” (Doc. 8-3 at 13; Doc 11-28 at 43), and deemed to have a
diminished ability to comprehend. (Doc. 11-30 at 14.) He was also
unaware of where he was or why he was there and appeared confused.

(Voc. 11-30 at 32, 36.) His speech was slurred, he exhibited signs of an

impaired memory, and he could not remember the officers who were

‘Records indicate that Mr. Madison suffered strokes prior to the May
2015 incident which negatively impacted his cognitive and bodily
functioning. (Doc. 8-3 at 19; Doc. 8-1 at 104.)

*As a result, Mr. Madison was taken to the ICU and a nevrosurgeon
was placed on standby due to a high risk of fatal brain herniation. (Doc.

11-28 at 46.)
14

guarding him, whom he had known for years. (Doc. 11-30 at 36, 39; see
also Doc. 8-3 at 16, 19.)

As a result of these multiple strokes, Mr. Madison also suffers from
encephalomalacia, (Doc. 11-60 at 41, 49, 141; Doc. 8-1 at 106), which
means that there are areas of his brain where the tissue is dead. (Doc. 8-1
at 106-07.) MRI imaging in January 2016 depicted encephalomalicia in
the occipital lobes and cerebellar hemispheres. (Doc. 11-60 at 13; see also
Doc. 8-1 at 106-07.)

In addition to the strokes, Mr. Madison suffers from multiple
medical conditions that, over the years, have led to worsening cognitive
capacity, including Type 2 Diabetes, chronic hypertension, and chronic
small vessel ischemia.’ (Doc. 8-3 at 9, 19; Doc. 8-1 at 73-74, 105-06.) Mr.
Madison also suffers from occipital angioma — an abnorina! collection of
blood vessels ~ which likely contributed to his strokes and debilitating
headaches. (Doc. 11-23 at 18.) Furthermore, both experts agree that Mr.

*This type of ischemia, also known as “cerebral small vessel disease,”
is a “leading cause of cognitive decline.” John G. Baker et al., Cerebral
Small Vessel Discase: Cognition, Mood, Daily Functioning, and Imaying

Findings from a Small Pilot Sample, 2.1 Dementia & Geriatric Cognitive
Disorders 169 (2012), available at http:// www. ncbi. nlm.nih.gov/ pmc/

articles/PMC3347879/.
15

Madison now speaks in a dysarthric or slurred manner, is legally blind,
can no longer walk independently, and has urinary incontinence as a
consequence of damage to his brain. (Doc. 11-34 at 59; Doc. 8-1 at 73-74,
92-93, 104-105.)

Members of Mr. Madison’s legal team observed changes in his
mental functioning and ability to communicate that arc consistent with
the symptoms of these medical diagnoses: a precipitous decline in his
functioning in January of 2016, (Voc. 8-1 at 21,4 10); slurred and halting
speech, (Doc. 8-1 at 21-22, ¥ 11); struggling to retain basic information
and repeating questions and conversations without any awareness of
having had the conversations previously, (Doc. 8-1 at 22, J 13; 25, 4 8); an
increasing focus on a limited number of familiar topics; and nonsensical
speech. (Id.)

Mr. Madison also exhibited a profound level of disorientation and
confusion. For example, he rarely leaves his bed and expresses confusion
about where he is. He reported frequently urinating on himself because
“no one will let me out to use the bathroom,” despite the fact that Mr.

Madison has a toilet just inches from his bed, inside of his cell. (Doc. 8-1

16

at 22, J 12.) He has also exhibited signs of confusion while communicating
with his attorney, at one point asking a question about an in-person
meeting he believed occurred the previous day, when in fact his attorney
had not seen him for several months. (Doc. 8-1 at 25, J 7.) During a legal
visit in February 2016, he indicated confusion about the status of his case,
stating that he plans to move to Florida or live abroad after he is relcased
from prison. (Voc. 8-1 at 24-25, ¥{ 4, 9.) Additionally, Mr. Madison has
presented as increasingly and uncharacteristically disheveled, wearing a
visibly soiled uniform, covered in stains and hair shavings, and, on his
bare feet, wearing plastic shower sandals that did not match. (Doc. 8-1 at
21-22, ¥ 11.) In subsequent visits, his hygiene continued to deteriorate.
(Doc, 8-1 at 25, 4 10.)

At the hearing in the state trial court, Mr. Madison appeared in a
wheelchair as a “physically ill individual” and it was not clear that he
followed anything that occurred at the hearing. (Doc. 8-2 at 157.)

Dr. Kirkland testified and agreed that Mr. Madison suffered
significant cognitive and bodily decline as a result of these strokes, and

did not dispute Dr. Goff's DSM-5 diagnosis. (See Doc. 8-1 at 123 (“I think

17

Dr. Goff's testimony reflects his training in neuropsychology, and I’m sure
what he had to say is accurate.”).) Nothing in his report indicated that
he had probed the extent of Mr. Madison's understanding of his execution;
when the state trial judge questioned him at the hearing about whether
he had an “understanding or opinion as to whether Mr. Madison
understands that the State is seeking retribution against him for an act
that he committed in the past,” Dr. Kirkland responded only that Mr.
Madison, “talked specifically about death sentence versus life without in
the original trial and the first retrial and in the second.” (Voc. 8-1 at 124.)
Similarly, when asked by counsel for the State about whether Mr.
Madison had knowledge of his execution, Dr. Kirkland testified that Mr.
Madison “understands that that is, as applied to him, that he has two
choices or two sentences that are — that are there; one being execution and
one being life without parole.” (Doc. 8-1 at 78-79.) Dr. Kirkland could not
explain why he did not include this information in his written report,
(Voc. 8-1 at 80-81), or that such information was actually not true: at no
point in his appeals has the sentence of life without parole been available

to Mr. Madison. Dissenting Judge Jordan acknowledged the paucity of Dr.

18

Kirkland’s evaluation, Madison v. Comm’'r, Ala. Dep’t. of Corr., 851 F.3d
1173, 1194 (11th Cir. 2017), noting that he found Dr. Goff’s opinion
persuasive. Id. at 1193.

On April 29, 2016, the Mobile County Circuit Court denied Mr.
Madison’s §15-16-23 petition. In its order, the state court did not consider
or even cite to Mr. Madison’s diagnosed dementia, (Doc. 8-2 at 119-58),
even though this diagnosis was never disputed by the court-appointed
expert, Dr. Kirkland, (Doc. 8-1 at 123-24).

Pursuant to Ala. Code § 15-16-23, appellate review of that decision
in the Alabama state courts was unavailable. (Voc. 13 at 8); see also
Weeks v. State, 663 So. 2d 1045, 1046 (Ala. Crim. App. 1995). On May 4,
2016, Mr. Madison filed a petition for habeas corpus and a motion for a
stay of execution in the United States District Court for the Southern
District of Alabama. (Voc. 1-2.) On May 10, 2016, the district court denied
Mr. Madison’s habeas petition and motion for a stay. (Doc. 13-14.) On May
12, 2016, the Eleventh Circuit Court of Appeals granted Mr. Madison's
motion for a certificate of appealability, stayed the execution, and ordered

expedited briefing and oral argument in the case. (See Doc. 20 (attached

19

as Appendix A).)'°

In its March 2017 decision reversing the district court, the Eleventh
Circuit Court of Appeals identified the proper standard of review, noting
that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
“imposes a ‘highly deferential standard for evaluating state-court
rulings.” Madison, 851 F.3d at 118? (citing Renico v. Lett, 559 U.S. 766,
773 (2010)). The lower court then correctly identified Ford v. Wainwright
and Panetti v. Quarterman, this Court’s controlling precedent on
competency-to-be-executed claims, specifically noting Justice Powell’s
articulation that the “Eighth Amendment forbids the execution of ‘those
who are unaware of the punishment they are about to suffer and why they
are to suffer it,” id. at 1184, and this Court’s decision in Panetti, clarifying
that the requisite awareness required by Ford “was tantamount to a
‘rational understanding’ of the connection between a prisoner’s crimes and
his execution,” id. (citing Ferguson v. Sec’y. Fla. Dep’t. of Corr., 716 F.3d

1315, 1336 (11th Cir. 2013)). While “mindful of the great deference due to

‘Petitioner attached the incorrect version of the lower court’s order,
see Pet. at 87a. The correct version is attached to this document as

Appendix A.
20

state court decisions on federal habeas review, particularly when the state
court is applying a general standard like the one in Panetti,” Madison, 851
F.3d at 1178, the lower court concluded that the state trial court’s decision
was an unreasonable determination of the facts “because the court refused
to consider undisputed evidence of [Mr. Madison’s}) diagnosed dementia
and corresponding memory deficits,” id. at 1185, and an unreasonable
application of clearly established law because the state court failed to
“examine the prisoner’s understanding of the connection between his
crime and his execution,” id. at 1188. After undertaking a de novo review
of the claim, the lower court determined that although it is “undisputed
that Mr. Madison understands that his execution will result in his death,”
the evidence established that “Mr. Madison lacks a _ rational
understanding of the link between his crime and his execution,” and he is
therefore incompetent to be executed. Id. at 1189-90.

Judge Jordan agreed with the majority of the lower court that the
Eighth Amendment prohibited Mr. Madison’s execution:

After reviewing the record, I believe that Vernon Madison is

currently incompetent. I therefore do not think that Alabama

can, consistent with the Constitution, execute him at this time
for his murder of a police officer three decades ago. See

21

generally Panetti v. Quarterman, 551 U.S. 930, 958 [} (2007)
(explaining that a state cannot put to death a prisoner who
‘cannot reach a rational understanding of the reason for the

execution’).

Id. at 1190 (Jordan, J., dissenting), though he ultimately dissented, albeit

reluctantly, with regard to the AEDPA analysis, see id. at 1190, 1194.
REASONS FOR DENYINC THE WKIT

A. THE KLEVENTH CIRCUIT'S DECISION REPRESENTS THE

PROPER APPLICATION OF I.AW TO FACTS IN

DETERMINING THE UNREVIEWED STATE COURT

D«CISION TO BE AN UNREASONABLE APPLICATION OF

CLEARLY ESTABLISHED FEDERAL !ttAW AND AN

UNREASONABLE DETERMINATION OF FACTS.

As the opinion below makes quite clear, the Eleventh Circuit
correctly applied this Court’s holdings in Ford v. Wainwright, 477 U.S.
399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), to this case
~where the facts establish that as a result of significant strokes, including
a thalamic stroke in January 2016, as well as serious medical conditions,
all of which are documented in the medical records submitted to the courts
below, 67-year-old Vernon Madison has been diagnosed with a vascular

neurological disorder, or vascular dementia, and continues to suffer a

decline in cognitive functioning and significant memory deficits which

22

prevent him [rom having a rational understanding of why he is scheduled
to be executed by the State of Alabama — to find that it was unreasonable
for the trial court to decline to find Mr. Madison incompetent to be
executed because it improperly restricted the scope of its competency
review and improperly credited irrelevant expert evidence put on by the
State. Madison v. Comm’r., Ala. Dep’t. of Corr., 851 F.3d 1173, 1185-90
(11th Cir. 2017).

Contrary to the Petitioner’s suggestion that the Eleventh Circuit
does not understand Panetti or the deference required under AEDPA, the
Eleventh Circuit has previously applied Panetti to deny relief in the
context of a competency-to-be-executed claim.’ ' See Ferguson v. Sec’y, Fla.
Dep't. of Corr.,716 F.3d 1315, 1338 (11th. Cir 2013) (upholding Florida
state court ruling that condemned prisoner competent to be executed,
despite diagnosis of paranoid schizophrenia with delusions, because

delusions did not interfere with his “rational understanding” of impending

'' Indeed, no judge in active service on the Eleventh Circuit Court of
Appeals believed the panel’s decision to be so “demonstrably incorrect,”
Pet. at 18, as to require that the count be polled when Petitioner moved for
rehearing en banc. App. 84a. Rehearing was denied.

23

execution and reason for it); see also 716 F.3d at 1344 (Wilson, J.,
concurring in result) (agreeing that court must “defer to the Florida
Supreme Court’s finding” and conc'rring in denial! of habeas corpus relief).

Nor has the Eleventh Circuit had past difficulty adhering to its duty
of deference under AEDPA to preserve norms of finality and federalism in
competency-to-be-executed cases. See, e.g., id. at 1338 (finding Florida’s
competency standard “not inconsistent with clearly established federal
law”), cert. denied, 134 S. Ct. 33 (2013); In re Medina, 109 F.3d 1556, 1565
(11th Cir. 1997) (holding prisoner not entitled to file successive habeas
petition to pursue Ford claim), cert. denied, 520 U.S. 1151 (1997); In re
Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000) (rejecting application to
file successive petition to pursue Ford claim), cert. denied, 530 U.S. 1256
(2000).

Here, the Eleventh Circuit applied Ford in precisely the way this
Court ruled it should be applied in Panetti: both the Eleventh Circuit and
this Court in Panetti corrected state court rulings that were unreasonable
because they were “improperly restrictive.” Madison, 851 F.3d at 1189 (“A

closer look at the competency standard rejected by the Supreme Court in

24

Panetti as ‘too restrictive’ makes this obvious.”).

First, with regard to the state trial court’s determination of the facts,
the lower court evaluated the record evidence and determined that 1) Mr.
Madison “has a serious mental condition”; 2) “Dr. Goff's testimony that
Mr. Madison does not remember committing the murder is . .. unrefuted”;
3) “as a result of his mental disorder, Mr. Madison does not rationally
understand the connection between his crime and his execution”; and that
4) because “Dr. Kirkland’s report and testimony include no indication that
he evaluated whether Mr. Madison understood this connection at all,” the
state trial court’s finding that Mr. Madison has a “rational []
understanding .. . that he is going to be executed because of the murder
he committed’ is not supported by the record and is therefore plainly
unreasonable.” Id. at 1185-87. This was plainly a proper application of the
law to the facts in this case. See Brumfield v. Cain, 135 S. Ct. 2269, 2277
(2015) (state court’s failure to consider relevant evidence — IQ score of 75
and evidence of adaptive functioning deficits — in assessment of claim

petitioner was intellectually disabled and therefore exempt from execution

unreasonable).

25

Additionally, the lower court properly recognized that Panetti
“plainly requires courts making competency determinations to analyze
whether the prisoner understands ‘the connection between his execution
and the crimes for which he is going to be executed.” 851 F.3d at 1189
(quoting Ferguson, 716 F.3d at 1318). In this case, “[g]iven the unrebutted
evidence that Mr. Madison suffers from vascular dementia, has no
memory of his capital crime, was not malingering during the experts’
evaluations, and believes he has nvux killed anyone ~ as well as the utter
lack of any testimony that Mr. Madison understands the connection
between the murder he committed and his impending execution,” the
lower court determined that the record could not support the trial court’s
finding that Mr. Madison is competent to be executed. Id.

After determining that the Alabama trial court “unreasonably
determined the facts relevant to Mr. Madison’s claim and unreasonably
applied controlling federal law,” and as such the lower court did not “owe
the state court’s finding that Mr. Madison is competent to be executed
deference under AEDPA,” the lower court determined that “Mr. Madison

lacks a rational understanding of the link between his crime and his

26

execution,” and he is therefore “incompetent to be executed.” Id. at 1189-
90; see Brumfield, 135 S. Ct. at 2277 (“[Djeference does not imply
abandonment or abdication of judicial review, and does not by definition
preclude relief.” (internal quotation marks omitted)).

The lower court’s straightforward, and proper, application of the
controlling law to the specific facts of this case, dictated by the deference
required by the AEDPA, is precisely the type of case this Court has
generally avoided and certiorari should be denied. See Sup. Ct. R. 10
(“[Clertiorari is rarely granted when the asserted error consists of
erroneous factual findings or the misapplication of a properly stated rule

of law.”).

B. CERTIORARIIS INAPPROPRIATE TO REVIEW A DECISION
THAT NEITHER CONFLICTS WITH PRECEDENT FROM
THIS COURT NOR WITH DECISIONS FROM OTHER
COURTS OF AWPPEA!I, OR STATE COURTS OF LAST

RESORT.

Without addressing the unrefuted evidence of Mr. Madison's
significant strokes, decline in cognitive and bodily functioning, and DSM-5
diagnosis of major vascular neurological disorder or vascular dementia,

and faced with a lower court opinion that correctly identifies the

27

controlling precedent from this Court, engages in the proper analysis to
determine the deference required by the AEDPA, and rightly applies the
law to the specific facts of the case, Petitioner is left to argue that the
lower court erred in applying the Ford/Panetti rule to Mr. Madison’s case
because this Court has not addressed those precise facts in the context of
a competency claim, or, alternatively, that this “misappli[cation]” of Ford
and Panetti conflicts with decisions from other courts. Pet. at 13.’ But
neither of these arguments can be squared with what the lower court

actually did below and Petitioner’s misrepresentations should not now

‘*Petitioner repeatedly diminishes the import of the uncontested
diagnoses here — see, e.g., Cert. Pet. at 12 (“inmate who does not
remember or otherwise acknowledge committing murder’); 12 (“Madison
claims he forgot the murder he committed”); 16 (“memory problems”); 21
(“memory problems”) — in an attempt to place Mr. Madison’s case outside
the parameter of Panetti’s rule, individuals who “fail to understand” why
they are to be executed for “reasons other than those stemming [rom a
severe inental illness.” Pet. at 12, 13. But the undisputed evidence of Mr.
Madison’s multiple strokes, encephalomalacia, and the associated
physical, cognitive and neuropsychological deficiencies is well-documented
in the record and the resulting DSM-5 diagnosis of vascular neurological
disorder, or vascular dementia, is unrefuted by even the State’s own
expert, And no amount of semantic subterfuge can change the fact this
Court in Panetti drew no line whatsoever around a particular mental
health diagnosis, choosing instead to state the obvious: a mental disorder
is different from “a misanthropic personality or an amoral character.” 551

U.S. at 960.
28

form the basis for this Court’s review.

In support of its argument that the lower court decision is contrary
to this Courl’s precedent and that certiorari is therefore appropriate,
Petitioner cites to White v. Woodall, 134 S. Ct. 1697 (2014), and Virginia
v. LeBlanc, 137 S. Ct. 1726 (2017) — yet each involves a lower court taking
a legal rule from this Court’s precedent and extending it to the factual
scenario presented. Because the lower court here correctly applied the
legal rule from controlling Supreme Court precedent to the unique facts
of Mr. Madison’s case, neither case is relevant nor helpful here.

In White, this Court reversed the Sixth Circuit Court of Appeals’
grant of habeas corpus relief based upon the trial court’s refusal to give a
no-adverse-inference instruction at the penalty phase of a capital trial
when the controlling Supreme Court precedent ~ Carter v. Kentucky, 450
U.S. 288 (1981) — limited such a requirement to the guilt/innocence phase.
134 S. Ct. at 1702-03. While recognizing that “state courts must
reasonably apply the rules ‘squarely established’ by this Court’s holdings
to the facts of each case,” id. (citing Knowles v. Mirzayance, 556 U.S. 111,

122 (2009)), this Court found that Section 2254 provides a remedy only for

29

“instances in which a state court unreasonably applies this Court’s
precedent,” it does not, however, “require state courts to extend that
precedent or license federal courts to treat the failure to do so as error.”
Id. at 1706.

Similarly, in LeBlanc, this Court found that the Fourth Circuit
Court of Appeals erred in finding that the state court decision — holding
that Virginia's geriatric release program complied with Graham fv.
Florida, 560 U.S. 48 (2010)]’s requirement that juvenile offenders
convicted of nonhomicide offenses be given “some meaningful opportunity
to obtain release” — was an “unreasonable application” of the law for
purposes of § 2254(d)(1), where this Court had by its own statement in
Graham explicitly left this issue to the states. 137 S. Ct. at 1727-30
(noting the “legal quagmire” created by the Fourth Circuit ruling and
finding “[t}he Court in Graham left it to the States, ‘in the first instance,
to explore the means and mechanisms for compliance’ with the Graham
rule.” (quoting Graham, 560 U.S. at 75)).

In contrast, in this case, the Eleventh Circuit found unreasonable an

unreviewed state court ruling that employed a general competency

30

standard that was too restrictive and that unreasonably relied upon
irrelevant expert testimony, employing the same analysis, addressing the
same issue, and ultimately coming to the same conclusion as the relevant
controlling Supreme Court precedent, Panetti.'* As this Court made clear
in Panetti, “that the standard is stated in general terms does not mean
the application was reasonable. AEDPA does not ‘require state and federal
courts to wait for some nearly identical factual pattern before a legal rule
must be applied.” Panetti, 551 U.S. at 953 (quoting Carey v. Musladin,
549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment)). As such,
certiorari is not appropriate on this basis.

Nor is Petitior.er’s assertion that certiorari is necessary because
lower courts are split on “whether a state can execute an inmate who does
not reme:nber or otherwise acknowledge committing murder” persuasive.
Pet. at 12. In fact, what Petitioner mischaracterizes as a “split” is actually

a collection of various federal circuit court and state court decisions

‘*Indeed, in the context of competency, an alternative reading, now
espoused by Petitioner, would preclude relief in every case where the
specified DSM diagnosis differed from that identified in Panetti, an
absurd result not mandated by AEDPA, this Court’s precedents, or the

Eighth Amendment.
31

applying the same clearly established law to differing facts, precisely the

type of fact-specific case in which this Court is most inclined to deny

certiorari. Sup. Ct. R. 10.
In Bedford v. Bobby, for example, the Sixth Circuit Court of Appeals

analyzed a competency-to-be-executed claim brought seven days before the
scheduled execution. 645 F.3d 372, 377 (6th Cir. 2011). After concluding
that a stay of execution should have been denied on “this ground alone,”
the lower court concluded that the state court reasonably determined that
Mr. Bedford “had not made a ‘substantial threshold showing’ that he
lacked a rational understanding of the ‘punishment [he is] about to suffer
and why [he is] to suffer it.” Id. at 378 (quoting Panetti, 551 U.S. at 949).
Rather, the lower court found that while the defense presented evidence
to the state courts that Mr. Bedford suffered from “the onset of a
dementia|-] form illness,” and an impaired memory, “[e]ven on their own
terms, the statements in these affidavits do not establish that Bedford
does not understand the reasons for his conviction or the nature of his
punishment,” such that the state court decision was unreasonable. Id. Far

from adopting a rule that “memory and acknowledgment of the crime” is

32

“irrelevant,” Pet. at 14, the lower court simply applied the Ford/Panetti
rule to the facts of the case to conclude that the state court had reasonably
concluded that Mr. Beford “had not made a substantial threshold showing
of incompetence that would entitle him to additional process,” id. at 380.

Likewise, in Simon v. Fisher, 641 F. App’x 386 (5th Cir. 2016), the
Fifth Circuit applied Panetti’s “rational understanding’ test” id, at 389,
to analyze Mr. Simon's claim that he was incompetent to be executed due
a head injury," id. at 387. Though the defense expert, Dr. John Goff,”

submitted a report opining that Mr. Simon exhibited signs of “global

'*In contrast to this case, in Simon the “medical records are sparse
and do not actually diagnose Simon with a head injury.” 641 F. App’x at

387 n.2.

'®Petitioner claims the Simon casc to be “important” in part because
the defense expert in that case was Dr. John Goff, the same expert who
testified on Mr. Madison’s behalf. Pet. at 16. While Petitioner makes much
of Dr. Goff's opinion (stated in an affidavit; he did not testify at the
competency hearing on Mr. Simon's behalf) that Mr. Simon suffered from
“global amnesia” as a result of a head injury, see Pet. at 16, what
Petitioner fails to include is the “salient fact” that Dr. Goff “reported that
Simon was either malingering memory deficits or, generously stated, that
he could not rule out malingering as an explanation for Simon’s behavior.”
Simon, 641 F. App’x at 389. Far from “disbeliev(ing] Dr. Goff” as the State
suggests, Pet. at 16, the district court and the Fifth Circuit actually
considered all of this testimony — including Dr. Goff's opinion that Mr.
Simon may have been malingering — when concluding that habeas relief
was not warranted. 641 F. App’x. at 389-90.

33

amnesia,” he made clear that this was a “functional condition’ not a
neurophysicological one”; moreover, “he could not rule out .. .
malingering.” Id. Dr. Goff was not called to testify by the defense at the
hearing, and the State's evidence -- through the testimony of an expert
and a prison guard — was that Mr. Simon was malingering. Id. at 388-90.
Relying on all of this evidence, including Dr. Goff's report that Mr. Simon
may have been malingering, the Fifth Circuit held that the district court
did not err in finding that Simon was competent to be executed. Id. at 390.

Likewise, the “rational understanding” standard of Panetti was
applied by the Tennessee Supreme Court in State v Irick, 320 S.W.3d 284
(Tenn. 2010). In that case, the state court noted that an expert had
concluded that Mr. Irick had no memory impairment and that he had
asserted that the victim’s father was the one who actually committed the
murder. Id. at 296. Based on this information and other evidence, the
state court held that Mr. Irick had a rational understanding of his
execution and that the trial court did not err in concluding that he was
competent to be executed. Id. at 297, 298.

Lastly, Petitioner cites two cases out of Missouri, in support of an

34

asserted “split” in the lower courts. In State ex. rel. Middleton v. Russell,
the Missouri Supreme Court evaluated the defendant's claim that he was
incompetent to be executed because he had “developed certain beliefs
about his charges and the resulting legal proceedings that are distorted
by this paranoia, and may now be indicative of a psychotic delusional
disorder.” 435 S.W.3d 83, 84 (Mo. 2014) (en banc). Relying on Panetti’s
“rational understanding” standard, the state court reviewed the record
and concluded that Mr. Middleton’s beliefs were in line with arguments
his attorneys had asserted to defend him and did not “make Middleton
delusional in the way that renders him incompetent to be executed under
the Eighth Amendment.” Id. at 84-85.

Quoting extensively from the portion of Middleton that discusses
Panetti, the Missouri Supreme Court followed Middleton's lead in utilizing
Panetti’s “rational understanding” standard to evaluate a claim that the
defendant, Mr. Clayton, was incompetent to be executed because he
expressed a belief that God was going to deliver him from execution. State
ex rel. Clayton v. Griffith, 457 S.W.3d 735, 745 (Mo. 2015). In holding that

Mr. Clayton failed to make a threshold showing of incompetency, the state

35

court noted that “religious faith and delusion” are not synonymous and
that Mr. Clayton’s case was distinguishable from Panetti because the
inmate in Panetti “genuinely believed the true purpose behind his
execution was not as punishment for a crime, but to stop him from
preaching.” Id. at 745.

Kecause each of these courts unquestionably applied the “rational
understanding” standard set out by this Court in Ford and Panetti to the
specific facts of each case and did not err in applying that standard, no
split of authority exists and certiorari should be denied.

CONCLUSION

Vernon Madison is incompetent to be executed. In granting habeas

corpus relief, the lower court correctly applied this Court’s precedent to

the facts of this case. Certiorari should be denied.

36

Respectfully Submitted,

Dhisilad’. Ja or m
ANGBILA L. SETZER
COUNSEL OF RECORD
RANDALL S. SUSSKIND
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104
(334) 269-1803

Counsel for Respondent

37

APPENDIX A

Case 1:16-cv-00191-KD-M Document 20 Filed 05/12/16 Page 1 of 5
Case: 16-12279 Date Filed: 05/12/2016 Page: 1of5

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 16-12279-P

VERNON MADISON,
Petitioner — Appellant,
versus
COMMISSIONER, Al. ABAMA DEPARTMENT OF CORRFCTIONS,
Respondent — Appellee.
Appeal from the United States District Court
for the Southern District of Alabama
Before WILSON, MARTIN and JORDAN, Circuit Judges.
BY |} Hr COURT:

This order replaces that issued by the panel earlier today.

Petitioner Vernon Madison is an Alabama prisoner scheduled to be executed
on May 12, 2016. He has filed a 28 U.S.C. § 2254 petition contending that he is
mentally incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106
S. Ct. 2595 (1986), and Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842
(2007). The district court found that Madison properly filed his Ford claim in

federal court but denied the claim on the merits. | he district court found that

Case 1:16-cv-00191-KD-M Document 20 Filed 05/12/16 Page 2 of 5
Case: 16-12279 Date Filed: 05/12/2016 Page: 2 of 5

Madison had exhausted his Ford claim in state court as required by 28 U.S.C. §
2254(b)(1). It also noted that Madison's Ford claim was not barred as “second or
successive” under 28 U.S.C. § 2244(b).

Madison moves for a certificate of appealability (“COA”) so that he may
appeal the denial of his § 2254 petition. He also seeks a stay of his execution
pending appeal.

This Court may issue a COA from the denial of a § 2254 petition “only if the
applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). This requires a demonstration that “jurists of reason could
disagree with the district court’s resolution of his constitutional claim or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034
(2003).

he Supreme Court has held that “the Eighth Amendment prohibits a State
from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477
U.S. at 409 10, 106 S. Ct. at 2602. ‘Then in Panetti the Court clarified that the
prisoner must have “a rational understanding of the reason for the execution.” $51
US. at 958, 127 S. Ct. at 2861. Madison alleges that as result of a series of strokes
and other serious medical conditions, he suffers from vascular dementia, which has

resulted in significant memory impairment, a decline in cognitive functioning, and

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Case: 16-12279 Date Filed: 05/12/2016 Page: 3 of 5

ultimately an inability to rationally understand why the State of Alabama is
seeking to execute him. An Alabama trial court denied this claim. Madison did
not appeal this decision because, as the Alabama trial court and the district court
found, Alabama state law insulates the trial court’s competency decision from
review by any other Alabama court. See Ala. Code §15-16-23. Madison argues
that the state court’s decision that he is competent to be executed was contrary to
or involved an unreasonable application of Panetti and Ford. Madison also argues
that the state court’s decision was based on an unreasonable determination of the
facts because it failed to consider evidence of his dementia and related

impair: iments.

The Supreme Court has observed that a Ford claim is unique from other
constitutional! claims that arise in capital cases because it becomes ripe for
adjudication only when the petitioner’s execution is imminent. See Stewart v.
Martinez-Villareal, 523 U.S. 637,644 45, 1188S. Ct. 1618, 1622 (1998); see also
Panetti, 551 U.S. at 947, 127 S. Ct. at 2855 (“[C]laims of incompetency to be
executed remain unripe at early stages of the proceedings.”). This is therefore the
first time that any state or federal court has had the opportunity to consider
Madison’s claim that his execution is prohibited by the Lighth Amendment. This

claim could not have been raised before Madison's execution became imminent,

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Case: 16-12279 Date Filed: 05/12/2016 Page: 4of5

and only the Alabama trial court and the district court have reviewed Madison's
claim.

Pursuant to Miller-El, Madison has satisfied § 2253(c)(2)’s standard.
Madison’s motion for COA is GRAN'lED as to the following issues:

(1) Whether the state court's decision that Madison is competent to be

executed is contrary to or involves an unreasonable application of

clearly established federal law.

(2) Whether the state court's decision that Madison is competent to be

executed was based on an unreasonable determination of the facts in

light of the evidence presented in the state court procecding.

“If a certificate of appealability is granted by the district court or by this
court, the panel may giant a temporary stay pending consideration of the merits of
the appeal if necessary to prevent mooting the appeal.” 11th Cir. R. 22-4(a)(7); see
also Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1330, 1344 (11th Cir.
2013) (granting temporary stay of execution under Rule 22-4(a)(7), denying state’s
motion to vacate the stay, and ultimately affirming the district court's denial of
habeas relief after hearing oral argument on the merits of prisoner’s Ford claim).
Madison’s death will render his appeal moot, and the Supreme Court has instructed
that “a circuit court, where necessary to prevent the case from becoming moot by
the petitioner’s execution, should grant a stay of execution pending disposition of

an appeal when a condemned prisoner obtains a certificate of probable cause [now

a certificate of appealability] on his initial habeas appeal.” Barefoot v. Estelle, 463

Case 1:16-cv-00191-KD-M Document 20 Filed 05/12/16 Page 5 of 5
Case: 16-12279 Date Filed: 05/12/2016 Page: Sof5

U.S. 880, 893-94, 103 S. Ct. 3383, 3395 (1983); see also Lonchar v. thomas, $17
U.S. 314, 319 20,1168. Ct. 1293, 1297 (1996) (holding that Barefoot applies to
district courts considering initial habeas petitions). The Court therefore GRANIS
Madison’s Motion for Stay of Execution.

the Court directs the parties to brief the merits of the issues identified in the
COA, pursuant to the following schedule: Petitioner shall file a brief on the merits
by May 27, 2016. Respondent shall have until June 10, 2016, to file a response
brief. Petitioner shall then have until June 17, 2016, to file a reply brief. The
parties are directed to file the briefs electronically and to serve the briefs to
opposing counsel electronically at the same time. Oral argument shall take place
in Atlanta on June 23, 2016, at 9:00 a.m. EST. Counsel shall be given 30 minutes

per side.
it IS SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0774%3A2. Public record. Not legal advice.