No.
CAPITAL CASE
EMERGENCY PETITION; EXPEDITED CONSIDERATION REQUESTED
════════════════════════════════════════
In the SUPREME COURT of the UNITED STATES
─────────────────♦─────────────────
In re: JEFFREY DUNN, Commissioner, Alabama Department of Corrections
VERNON MADISON,
Petitioner,
v.
JEFFREY DUNN, Commissioner,
Respondent.
─────────────────♦─────────────────
ON MOTION TO VACATE STAY OF EXECUTION
════════════════════════════════════════
MOTION TO VACATE STAY OF EXECUTION
════════════════════════════════════════
Luther Strange
Attorney General
Andrew Brasher
Solicitor General
James Roy Houts
Assistant Attorney General
Counsel of Record *
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
bhughes@ago.state.al.us
(334) 353-3637 Fax
May 12, 2016
(334) 242-7300, 353-1513 *
EMERGENCY PETITION; EXPEDITED CONSIDERATION REQUESTED

 IN THE SUPREME COURT OF THE UNITED STATES
JEFFREY DUNN, Warden,
Petitioner,
v.
VERNON MADISON,
Respondent.

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EXPEDITED REVIEW
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REQUESTED
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MOTION TO VACATE STAY OF EXECTUION
Over thirty years ago, Vernon Madison shot and killed Officer Julius Schulte
of the Mobile Police Department, after Schulte responded to the scene of a domestic
violence call. After the State of Alabama moved for his execution, Madison filed a
petition in the Mobile County Circuit Court challenging his competency to be
executed. Neither party disputes that Madison received the procedural protections
required 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). At the conclusion of
the competency hearing, the state trial court found “that Madison has a rationale (sic)
understanding, as required by Panetti, that he is going to be executed because of the
murder he committed and a rationale (sic) understanding that the State is seeking
retribution and that he will die when he is executed.” (Vol. II, Tab R-12, at 10
(Appendix A).)

 Madison filed a habeas petition seeking to challenge this state court
determination, which was denied on the merits. (Appendix B) The district court also
denied a certificate of appealability. (Id.) The Eleventh Circuit, however, granted a
certificate of appealability and a stay of execution on May 12, 2016, less than eight
hours before Madison’s scheduled execution. In doing so, the Eleventh Circuit read
into the State court order legal conclusions that do not exist, in violation of
Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011), and based on
an issue that is clearly and plainly foreclosed under this Court’s precedent.
(Appendix C.)
Witnesses, Alabama Department of Corrections Personnel, and other
Executive Department personnel continue to prepare for Madison’s execution
in the event this motion is granted. Madison’s death warrant does not expire
until midnight, May 12, 2016. It is requested, therefore, that this Court expedite
review of this matter, but in any event notify the Commissioner if this motion
is denied (or, not to be granted) prior to midnight, May 12, 2016.
I.

THE STAY MUST BE VACATED BECAUSE IT READS INTO
THE STATE COURT DECISION A LEGAL THEORY THAT
WAS NOT ADOPTED, OR RELIED UPON, BY THE STATE
COURTS.

The Eleventh Circuit appears to have bought into Madison’s incorrect
representation of the State court’s order as having refused to consider evidence of
his stroke-related dementia in finding that Madison had a rational understanding of
2

 his impending execution as required by Panetti. Not only does the state court opinion
contain no such statement (Appendix A), but the district court also properly noted
that a reasonable interpretation of the state court plainly shows that the State court
did consider such evidence. (Appendix B at 16 (“Based upon the evidence cited in
the state court’s opinion, it is clear that the state court considered the evidence of
Madison’s recent diminished capacity and memory loss in reaching its determination
that Madison had the requisite mental understanding that he was to be executed
because of the murder he committed and that Madison understood that his execution
was retribution for his crime.”).) Nonetheless, the Eleventh Circuit nevertheless
found that Madison had made the necessary “substantial showing of the denial of a
constitutional right” under 28 U.S.C. § 22539(c)(2), granted a certificate of
appealability, and stayed Madison’s execution.
This Court requires federal courts reviewing state court decisions under the
AEDPAto determine what arguments or theories supported, or could have
supported, the state court’s decision in the absence of explicit findings. See, e.g.,
Richter, 562 U.S. at 102, 131 S. Ct. at 786. This Court does not countenance the
insinuation of false legal theories that do not appear in the text of the state court’s
ruling, yet the Eleventh Circuit explicitly granted a stay based on Madison’s claim
that the state court’s decision “failed to consider evidence of his dementia and related

3

 impairments.” This finding cannot be supported on a fair reading of the state court
decision, which indicated that the court considered all of the evidence presented.
II.

THE STAY MUST BE VACATED BECAUSE MADISON
CANNOT HAVE A SUBSTANTIAL LIKELIHOOD OF
SUCCESS ON THE MERITS UNDER THE PLAIN LANGUAGE
OF THIS COURT’S AEDPA CASES.

The question of whether stroke-related dementia falls within the scope of
Penetti or Ford might have been appropriately addressed by this Court had Madison
sought certiorari from the state court decision. Instead he chose to seek habeas
review. This Court repeatedly has stated that “clearly established federal law” for
AEDPA purposes refers to the holdings of its cases and not the dicta found within.
See, e.g., Woods v. Donald, __ U.S. __, 135 S. Ct. 1372, 1376-77 (March 30, 2015),
White v. Woodall, __ U.S. __, 134 S. Ct. 1697 (April 23, 2014), Howes v. Fields, __
U.S. __, 132 S. Ct. 1181 (Feb. 21, 2012), Renico v. Lett, 559 U.S. 766, 778-79
(2010). Thus, the review of a Ford/Panetti claim in federal court is bound by the
holdings of those cases and not the dicta found therein.
It is beyond debate that both Panetti and Ford restrict themselves, by their
own holdings, to cases where a person’s mental illness, or insanity, prevents him
from having a rational understanding of his punishment. For example, this Court
described its holding in Ford as being that “[t]he Eighth Amendment prohibits the
State from inflicting the penalty of death upon a prisoner who is insane.” Ford, 477
U.S. at 410 (emphasis added). Alternatively, this Court restated its holding as,
4

 “Today we have explicitly recognized in our law a principle that has long resided
there. It is no less abhorrent today than it has been for centuries to exact in penance
the life of one whose mental illness prevents him from comprehending the reasons
for the penalty or its implications.” Ford, 477 U.S. at 417 (emphasis added). Panetti
continued this focus on a prisoner’s mental illness for purposes of Eighth
Amendment analysis, focusing on whether delusions caused by mental illness
prevented the prisoner from having a rational understanding of his execution. See,
e.g., Panetti, 551 U.S. at 934 (quoting, Ford, 477 U.S. at 409) (“[T]he Eighth
Amendment prohibits a State from carrying out a sentence of death upon a prisoner
who is insane.”), 954 (noting the question before the Court as “whether the Eighth
Amendment permits the execution of a prisoner whose mental illness deprives him
of ‘the mental capacity to understand that he is being executed as punishment for a
crime.’”), 960 (“The beginning of doubt about competence in a case like petitioner’s
is not a misanthropic personality or an amoral character. It is a psychotic disorder.”)
(emphasis added). Before the district court and Eleventh Circuit, Madison did not
cite a single decision of this Court dealing with dementia and memory deficits in
relation to a person’s competency to be executed.1

1

It is worth noting that the panel that granted the COA and stay ignored the binding
Eleventh Circuit precedent. In Ferguson v. Secretary, Department of Corrections,
716 F.3d 1315, 1337 (11th Cir. 2013), the court explained that what Panetti “clearly
establishes” for AEDPA purposes, “and pretty much that alone,” is that a court “may
5

 At best, Madison alleges that the circumstances of his case (i.e., stroke-related
dementia and/or amnesia) are “similar to” the holdings in Ford and Panetti. “Similar
to,” however, is not enough to obtain relief under the AEDPA. See, Woods, 135 S.
Ct. at 1377 (citing Carey v. Musladin, 549 U.S. 70, 76-77 and n.2, 127 S. Ct. 649,
653-54 (2006)). While jurists of reason might debate whether this Court could one
day extend Ford and Panetti to dementia or amnesia cases, they cannot debate
whether this Court has already done so. See, e.g., Woods, 135 S. Ct. at 1378 (“All
that matters here, and all that should have mattered to the Sixth Circuit, is that we
have not held that Cronic applies to the circumstances presented in this case.”);
White, 134 S. Ct. at 1703 (“We need not decide here, and express no view on,
whether the conclusion that a no-adverse-inference instruction was required would
be correct in a case not reviewed through the lens of § 2254(d)(1).”)
Ultimately, Madison is alleging that the state trial court unreasonable failed to
extend Ford and Panetti to cases where it is stroke-related impairments to mental
capacity, rather than psychosis or delusions caused by severe mental illness, that are

not ‘treat delusional beliefs as irrelevant once the petitioner is aware the State has
identified the link between his crime and the punishment to be inflicted.’” Id. at
1337-38. There is no allegation that this happened in this case, as there is no
allegation that Madison presently suffers from delusions, paranoia, or mental illness.
Again, the state court specifically found that Madison has a rational understanding
of his impending execution.

6

 alleged to prevent a rational understanding of the prisoner’s execution.2 This Court,
however, rejected the “unreasonable-refusal-to-extend-rule” under the AEDPA.
White, 134 S. Ct. at 1706. As noted in White, the AEDPA “does not require state
courts to extend [Supreme Court] precedent or license federal courts to treat the
failure to do so as error.” Id. (emphasis in original). While Madison can falsely allege
that the state court refused to consider dementia as being the same as psychosis or
gross delusions, the Eleventh Circuit was not free to grant equitable relief on that
basis, predicated on the AEDPA, even if it were true.
Finally, the vast discretion this Court has granted state trial courts in resolving
competency to be executed claims renders the Eleventh Circuit’s finding that
Madison has a “substantial likelihood of success on the merits” under the AEDPA a
gross abuse of discretion. This Court has not attempted to define “rational
understanding” for purposes of Panetti, which has led both the Sixth Circuit and
Eleventh Circuit3 to conclude that for AEDPA purposes state courts have vast
discretion in resolving such claims. See, e.g., Bedford v. Bobby, 645 F.3d 372, 378
(6th Cir. 2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140
(2004); Fergusson, 716 F.3d at 1341-42 (citing Renico v. Lett, 559 U.S. 766, 776,

2

It must be remembered that the State court’s order reflects that it did consider
evidence of Madison’s stroke-related dementia. Thus, this entire inquiry is moot.
3
The panel, below, ignored this precedent in finding that Madison has a substantial
likelihood of success on the merits and in granted a COA.
7

 130 S. Ct. 1855, 1864 (2010)). For the Eleventh Circuit to grant a last-minute stay
of execution under the deferential requirements of AEDPA on the issue of whether
the Alabama trial court’s decision was an unreasonable determination of the facts is
a gross abuse of discretion.
CONCLUSION
For the Eleventh Circuit to read into an Alabama trial court’s order a legal
theory that was not espoused by that Court is an affront to Alabama’s judicial branch
and a violation of the requirements of the AEDPA, as set forth in Richter. To then
add insult to that injury by granting a stay of execution and a certificate of
appealability to review a question that is easily answered by resort to the clear
holdings of Ford and Panetti is an absolute abuse of discretion. Respondent,
therefore, prays this Honorable Court will vacate the stay of execution entered this
morning by the Eleventh Circuit.
Respectfully submitted,
Luther Strange
Alabama Attorney General
BY—
Andrew Brasher
Alabama Solicitor General
s/ James Roy Houts
James Roy Houts
Assistant Attorney General

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 CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of May, 2016, I did serve a copy of the
foregoing on the attorney for the Petitioner, by electronic mail addressed as follows:
Angie Setzer
asetzer@eji.org
And by United States Mail, first-class postage prepaid, addressed as follows:
Angela L. Setzer, Esq.
Bryan A. Stevenson, Esq.
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104

s/ James Roy Houts
James Roy Houts
Assistant Attorney General
Counsel of Record *
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300, 353-1513*
(334) 353-3637 Fax
jhouts@ago.state.al.us

9

 APPENDIX A

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA

VERNON MADISON
Petitioner,

V. Case No.: CC-1985-001385.61

STATE OF ALABAMA
Respondent

DER ISSAL

This Rule 32 of Alabama Rules of Criminal Procedure motions was filed in
the Circuit Court of Mobile County on May 9, 2016.. Costs were paid for filing. This
Court ordered that the State of Alabama respond to the Rule 32 Petition by noon on
May 10. 2016.

The State filed several Motions to Dismiss under Rule 322(0),
and on May 9, 2016.

As to the grounds of the Petition attacking the constitutionality of the
defendant's sentence this Court DISMISSES the Petition. As to the
grounds concerning the Court having lacked jurisdiction to render the judgment and
sentence this Court DISMISSES the Petition. As to the grounds that the
sentence exceeds the maximum authorized by law or is otherwise not authorized by
law the Petition is DISMISSED. As to this Court DISMISSES
the Petition and as to 32.2(b) this Court DISMISSES the Petition, notwithstanding
that the Court of Criminal Appeals is currently reviewing the Alabama Death Statute
in light of Hurst v. Fla. 136 S. Ct. 616 (2016). see Johnson v. Alabama, 2016 WL
172390 (US. May 2, 2016).

Costs taxed as paid. The Petition is DISMISSED.

DONE the day of May, 2016.

 

 

 

ROBERT H. SMITH
CIRCUIT COURT JUDGE

APPENDIX 

Case 1:16-cv-00191-KD-M Document 13 Filed 05/10/16 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VERNON MADISON,
Petitioner,
v.
JEFFERSON S. DUNN,
Commissioner of the Alabama
Department of Corrections,
Respondent.

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CIVIL ACTION NO. 16-00191-KD-M

ORDER
This action is before the Court on Petitioner Vernon Madison’s petition for writ of
habeas corpus (Doc. 1), motion for stay of execution (Doc. 2), Respondent Jefferson S. Dunn’s
motion to dismiss pursuant to 28 U.S.C. § 2244(b) (Doc. 6), Respondent’s motion to dismiss
for lack of exhaustion (Doc. 7), Respondent’s brief in opposition to Madison’s petition (Doc.
9), Respondent’s opposition to the motion for stay (Doc. 10), and Madison’s response to the
motions to dismiss (Doc. 12). Upon consideration and for the reasons set forth herein,
Respondent’s motion to dismiss Claim One for lack of exhaustion is DENIED, Madison’s
petition for writ of habeas corpus is DENIED, his motion for stay of execution is DENIED and
Respondent’s motion to dismiss Claim Two pursuant to 28 U.S.C. § 2244(b) and for failure to
exhaust is GRANTED.
I. Background
In May 1985, Petitioner Madison was indicted for capital murder for killing Julius
Schulte, a police officer with the Mobile, Alabama Police Department. In September 1985, a

 Case 1:16-cv-00191-KD-M Document 13 Filed 05/10/16 Page 2 of 23

jury found Madison guilty of capital murder. He was convicted and sentenced to death. His
first conviction and death sentence were set aside. Madison v. State, 545 So.2d 94, 99–100
(Ala.Crim.App.1987). He was tried and again convicted and sentenced to death. The Alabama
Court of Criminal Appeals reversed this decision. Madison v. State, 620 So.2d 62, 63
(Ala.Crim.App.1992). Madison was tried a third time and again convicted of capital murder
and sentenced to death. Madison v. State, 718 So.2d 90, 94 (Ala. Crim. App. 1997). His
conviction and sentence were affirmed on direct appeal by the Alabama Court of Criminal
Appeals, id. at 104, and the Alabama Supreme Court, Ex parte Madison, 718 So.2d 104, 108
(Ala. 1998). The petition for writ of certiorari was denied. Madison v. Alabama, 525 U.S. 1006,
119 S.Ct. 521 (1998). Madison’s petition for state post-conviction relief was dismissed by the
state trial court and the dismissal was affirmed. Madison v. State, 999 So.2d 561
(Ala.Crim.App. 2006).
Madison then filed his first petition for writ of habeas corpus under 28 U.S.C. § 2254 in
this district court. The petition was denied. Madison v. Allen, 2011 WL 1004885 (S.D. Ala.
March 21, 2011). The Eleventh Circuit Court of Appeals reversed and remanded with
instructions regarding Madison’s Batson challenge. Madison v. Comm’r, Ala. Dep’t of Corr.,
677 F.3d 1333 (11th Cir. 2012) (reh’g. denied Madison v. Comm’r, Ala. Dep’t of Corr., 484
Fed. Appx. 467 11th Cir. 2012) (table)) (cert. denied Thomas v Madison, 133 S. Ct. 617
(2012)). On remand, this district court denied his petition. Madison v. Allen, 2013 WL
1776073 (S.D. Ala. Apr. 25, 2013). The decision was affirmed. Madison v. Comm’r, Alabama
Dep’t of Corr., 761 F.3d 1240 (11th Cir. 2014) (cert. denied Madison v. Thomas, 135 S. Ct.
1562 (2015) (reh’g. denied Madison v. Thomas, 135 S. Ct. 2346 (2015)).

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 Case 1:16-cv-00191-KD-M Document 13 Filed 05/10/16 Page 3 of 23

In January 2016, the State of Alabama moved the Alabama Supreme Court to set an
execution date. (Doc. 2, p. 3) Madison then filed a petition in the Mobile County Circuit Court
pursuant to Alabama Code § 15-16-23, wherein he moved the trial court to stay his execution
on basis that he is incompetent to be executed (id.). The Code provides for suspension of
execution of the sentence of death of a convicted person, if “at anytime before the execution of
the sentence, it is made to appear to the satisfaction of the trial court that the convict is then
insane[.]” Ala. Code § 15-16-23. Madison requested a delay in setting the execution date until
his competency claim was adjudicated. However, the Supreme Court of Alabama set his
execution for Thursday, May 12, 2016 (Id.).
The Mobile County Circuit Court found that Madison had made a preliminary showing
of incompetency, ordered an evaluation, and held a hearing on April 14, 2016. (Doc. 2, p. 4)
After post-trial briefs were filed, the state court denied his § 15-16-23 petition on April 29,
2016. The circuit court found that Madison had “not carried his burden by a preponderance of
the evidence, that it is more likely than not, that he, Madison, does not rationally understand the
punishment he is about to suffer and why he is about to suffer it.” (Doc. 7-2; Madison v. State
of Alabama, Civil Action 1985-001385.80 (Document 43) (Circuit Court of Mobile County,
Alabama, Apr. 29, 2016)).
Madison then filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, in this
court. (Doc. 1) As to his competency, Madison alleges that he has experienced multiple strokes
including a recent thalamic stroke in January 2016, major vascular neurological disorders,
vascular dementia, and other serious medical conditions including diabetes and hypertension.
He further alleges that these medical problems have damaged his brain and left him with
declining cognitive function, diminished mental capacity, severe memory deficits, dementia,

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slurred speech, blindness, incontinence, and an inability to walk. (Doc. 1)
Based on his mental incompetence, Madison asserts that he does not have an
independent recollection of the facts of his offense and does not have a rational understanding
of why the State is seeking to execute him. Therefore, according to Madison, the State would
violate the Eighth Amendment’s prohibition against cruel and unusual punishment as provided
in Ford v. Wainwright, 477 U.S. 399 (1986) should it carry out his execution. The court has
labeled this Claim One.
Madison also alleges that because he suffers from dementia, he is in a class of people
for whom execution is categorically unconstitutional. Madison argues that executing persons
with diminished capacity would not serve the goals of the death penalty, i.e., retribution or
deterrence and would be unconstitutional as set forth in Atkins v. Virginia, 536 U.S. 304, 318
(2002). The court has labeled this Claim Two.
Madison also filed a motion to stay his execution. (Doc. 2) Madison argues that a stay
of execution should be granted because he has a non-frivolous claim of constitutional error that
cannot be resolved on the merits before the scheduled date of execution.
II. Exhaustion of the Ford claim (Claim One)
Title 28 United States Code § 2254 requires that petitioners seeking relief in federal
court must first exhaust available state remedies. Specifically, § 2254(b)(1) states:
(b)(1) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted unless it
appears that—
the

(A) the applicant has exhausted the remedies available in the courts of
State; or
(B)(i) there is an absence of available State corrective process; or

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(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.
28 U.S.C. § 2254(b)(1).
Madison argues that, pursuant to Ala. Code § 15-16-23, there is no appellate review of
the state court’s decision available in the Alabama state courts. Thus, he contends that he has
exhausted his state remedies. In support, he relies on Weeks v. State, 663 So. 2d 1045 (Ala.
Crim. App. 1995) and Magwood v. State, 449 So. 2d 1267 (Ala. Crim. App. 1984). Both cases
held that § 15-16-23 decisions were not reviewable. The statutes states:
If after conviction and sentence to death, but at any time before the execution of
the sentence, it is made to appear to the satisfaction of the trial court that the
convict is then insane, such trial court shall forthwith enter an order in the trial
court suspending the execution of the sentence to the time fixed in the order;
and, if it subsequently is made to appear to the court that such convict, the
execution of the sentence of whom has thus been suspended, is restored to
sanity, the trial court shall forthwith have another order entered ordering and
commanding the execution of the judgment and sentence originally awarded in
said court at a time fixed in such order. This mode of suspending the execution
of sentence after conviction on account of the insanity of the convict shall be
exclusive and final and shall not be reviewed or revised by or renewed
before any other court or judge. No court or judge in this state shall have the
power or right to suspend the execution of sentence of any other court of record
on account of the insanity of the convict. This section shall not prevent the judge
or court from impaneling a jury to try the question of insanity or from examining
such witnesses as he may deem proper for guidance.
Ala. Code § 15-16-23 (emphasis added).
Respondent argues that Madison has failed to exhaust his state remedies because the
state court’s decision made pursuant to § 15-16-23 is an appealable decision, which Madison
has failed to appeal. Respondent points out that Ala. Code § 15-1-1, which pertains to §15-1623, states: “Any provisions of this title regulating procedure shall apply only if the procedural
subject matter is not governed by rules of practice and procedure adopted by the Supreme
Court of Alabama.” Ala. Code § 15-1-1. (Doc. 7 at 2) Ala. R. Crim. P. 32.4 states:

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A proceeding under this rule displaces all post-trial remedies except post-trial
motions under Rule 24 and appeal. Any other post-conviction petition seeking
relief from a conviction or sentence shall be treated as a proceeding under
this rule. Proceedings under this rule shall be governed by the Rules of Criminal
Procedure, except that the trial court in its sole discretion may allow the taking
of depositions for discovery or for use at trial.
Ala. R. Crim. P. 32.4 (emphasis added). Ala. R. Crim. P. 32.10(a) states:
Any party may appeal the decision of a circuit court according to the procedures
of the Alabama Rules of Appellate Procedure to the Court of Criminal Appeals
upon taking a timely appeal as provided in Rule 4, Alabama Rules of Appellate
Procedure….
Ala. R. Crim P. 32.10.
In the motion to dismiss for lack of exhaustion, citing Ex Parte Cate, 134 So.3d 870
(Ala. 2013), Respondent summarizes, “[i]n fact, when the Alabama Supreme Court reviewed §
15-16-22, a closely related ‘cousin’ to § 15-16-23 that pertains to competency evaluations prior
to trial, the Alabama Supreme Court noted that these provisions were procedural in nature and
that they must yield to the Alabama Rules of Criminal Procedure.” (Doc. 7 at 3) From this,
Respondent makes a novel argument that §15-16-23 is unenforceable because it must yield to
the general appellate rules of criminal procedure.
Upon review of Ex Parte Cate, the court concludes that Respondent overstates its
relevancy to the issue at hand. In Ex Parte Cate, the Alabama Supreme Court was faced with
provisions in the Alabama Code and the Alabama Rules of Criminal Procedure that both
addressed the procedure for ordering competency evaluations. The Alabama Supreme Court
held, “Section 15–16–22(a) does not grant the trial court discretion to order a defendant to
submit to a mental examination independent of the procedural framework of Rule 11.2(a).” 134
So. 3d at 875. For this pronouncement the Court referenced Ala. Code §15-1-1, which
provides, [a]ny provisions of this title regulating procedure shall apply only if the procedural

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subject matter is not governed by the rules of practice and procedure adopted by the Supreme
Court of Alabama.” 134 So. 3d at 8753, n.3. However the Court concluded that the statute and
the rule were not inconsistent: “The duty imposed by [§] 15-16-22(a) upon the trial court to
order a mental examination of a defendant is consistent with Rule 11.2(a)(2); § 15-16-22(a)
does not expand the trial court’s discretion beyond the limits established by Rule 11.2(a).” 134
So. 3d at 875.
In this case, § 15-1-1 is inapplicable because the subject matter of §15-16-23 is not
addressed in a rule of practice and procedure adopted by the Supreme Court of Alabama.
Section 15-16-23 prohibits any other court from reviewing the trial court’s determination
regarding suspension of execution under this section. In other words, no other court has
jurisdiction to consider a petition for suspension of the execution or to review the decision of
the trial court. The bar on review by other courts of § 15-16-23 decisions is a substantive rule,
not procedural. In contrast, Ala. R. Crim. 32.10 governs who can appeal (any party) and how
(using Alabama Rules of Appellate Procedure), it does not govern whether an issue is
appealable. As the Alabama Supreme Court stated in Ex parte Ward, “[t]here are, however,
some limitations on our authority to promulgate and effectuate rules. ‘[R]ules shall not abridge,
enlarge or modify the substantive right of any party.” Const. of 1901, amend. 328, § 6.11[.]’”
540 So. 2d 1350, 1351 (Ala. 1988) (internal citations omitted). Any rule allowing a petitioner
to appeal a suspension of execution would be an enlargement of the limited substantive right
granted in § 15-16-23 (to seek a stay from the trial court) and thus in violation of the Alabama
Constitution. See Schoenvogel ex rel. Schoenvogel v. Venator Grp. Retail, Inc., 895 So. 2d 225,
236 (Ala. 2004) (“[I]t is clear that § 6.11 envisions that this Court’s power to promulgate rules
of practice and procedure for all courts could supersede legislatively enacted rules of practice

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and procedure, so long as the rules promulgated by this Court did not abridge, enlarge, or
modify the substantive rights of any party, and subject to the right of the Legislature to change
the court-adopted rules by a general act of statewide application.”).
The court finds that the language of § 15-16-23 expressly provides that a determination
made under this section is not appealable. The Alabama Court of Criminal Appeals has held the
same. Weeks v. State, 663 So. 2d at 1046 1 (“This case is governed by § 15-16-23 and this
court’s application of that statute in Magwood. The statute clearly states that a finding by the
trial court on the issue of insanity, as it relates to this statute, is not reviewable by any other
court.”). Accordingly, Madison has exhausted his state remedies under § 15-16-23 as to Claim
One. Thus, Respondent’s motion to dismiss the petition for writ of habeas corpus for lack of
exhaustion as to Claim One (Doc. 7) is DENIED and his opposition to the motion to stay (Doc.
10) based upon this same argument is OVERRULED.
The court acknowledges that this is Madison’s second habeas petition and that he brings
a Ford v. Wainwright claim for the first time. However, Madison’s Ford v. Wainwright claim
of incompetency to be executed (because of mental incompetence at the time of the scheduled
execution) is not a claim that must be brought in an initial habeas petition. Panetti v.
Quarterman, 551 U.S. 930, 945, 127 S. Ct. 2842, 2853 (2007) (“We conclude, in accord with
this precedent, that Congress did not intend the provisions of AEDPA addressing ‘second or
successive’ petitions to govern a filing in the unusual posture presented here: a § 2254

1

In Weeks v. State, the Alabama Court of Criminal Appeals quoted its previous decision in
Magwood v. State, which expanded upon the reasoning behind Ala. Code §15-16-23 as follows:
“It is interesting to note that the legislature provided that the order of the trial court ‘... shall not
be reviewed or revised by or renewed before any court or judge. No court or judge in this state
shall have the power or the right to suspend the execution of sentence of any other court of
record on account of the insanity of the convict.’ This provision was obviously necessary if
any sentence of execution is ever to be carried out. Otherwise, a person awaiting execution
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application raising a Ford-based incompetency claim filed as soon as that claim is ripe.”).
Therefore, the court finds that the decision in Panetti provides jurisdiction as to Madison’s
Ford-based incompetency claim brought in his second habeas petition.
III. Atkins claim (Claim Two)
In his petition, Madison raises a second claim wherein he alleges that he falls within a
class of persons, those with diminished mental capacity caused by dementia, for whom there is
a categorical ban on the death sentence based upon the Eighth Amendment citing Atkins v.
Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005). (Doc. 1, ¶ 31-34, p.
19-20) In the motion to stay, Madison argues that his execution should be stayed because the
confluence of the line of cases following Atkins and Roper dictates that he falls within this
protected category of persons and his execution would be unconstitutional. (Doc. 2, p. 10-12)
Respondent moves to dismiss this second claim pursuant to 28 U.S.C. § 2244(b)
(Madison failed to obtain authority from the Court of Appeals for the Eleventh Circuit before
bringing his second claim in a second habeas petition) and because Madison failed to fairly
present the claim and exhaust his remedies in state court. (Doc. 6)
Title 28 U.S.C. § 2244(b)(3)(A) provides that “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” An exception exists when the Supreme Court has expressly held that § 2244(b)
does not apply to a specific type of claim, such as in Panetti, where the Supreme Court held
that the “statutory bar on ‘second or successive’ applications does not apply to a Ford claim
brought in an application filed when the claim is first ripe.” 551 U.S. at 947. In Ford v.
Wainwright, the Supreme Court held that the “Eighth Amendment prohibits a State from

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carrying out a sentence of death upon a prisoner who is insane.” 477 U.S. at 409–410. In
Panetti, the Supreme Court held that a Ford-based claim is not ripe until the petitioner’s date of
execution has been set. 551 U.S. at 945-957. The Supreme Court concluded “that Congress did
not intend the provisions of AEDPA addressing ‘second or successive’ petitions to govern a
filing in the unusual posture presented here: a § 2254 application raising a Ford-based
incompetency claim filed as soon as that claim is ripe.” 551 U.S. at 945.
Madison has not presented any support for a finding that an Atkins claim is in the
“unusual posture” wherein the bar of § 2244(b)(3) is lifted, thus allowing Madison to file a
second or successive habeas petition based on this claim without first obtaining approval from
the appropriate court of appeals. Moreover, Panetti is clear that the waiver of the restrictions
in 2244(b) only applies to Ford-based claims. Consequently, the Eleventh Circuit must
authorize this claim before Madison’s petition may be considered by this court.
Additionally, Madison’s second claim was never fully and fairly presented to the state
court and is thus not exhausted. Madison’s state court petition for suspension of his death
sentence did not raise an argument based upon an extension of Atkins to include a category of
persons with dementia. (Doc. 7-1) However, the state court transcript indicates that Madison
argued at the hearing that dementia placed “him within a special category for people for whom
execution is not appropriate” based on Ford and Panetti, but without mention of Atkins. (Doc.
8-1, p. 133, Hearing Transcript) Moreover, in a post-trial filing, Madison briefly references
Atkins and the argument he now makes before this court. (Doc. 8-2, pp. 10-11) But the court
finds that these brief references to the issue failed to give the trial court a fair opportunity to
consider the issue. This is especially true due to the limited nature of the proceedings pursuant

10

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to § 15-16-23, i.e., to determine the sanity of the petitioner. Thus, the claim has not been
exhausted.
The Eleventh Circuit has stated that a prisoner cannot show “a substantial or significant
likelihood of success on the merits” of an issue when that issue is “squarely foreclosed” by the
exhaustion requirement found in 28 U.S.C. § 2254. Gore v. Crews, 720 F.3d 811, 815 (11th
Cir. 2013). Therefore, the court finds that it lacks jurisdiction to consider Madison’s Atkinsbased claim in his habeas petition and the Atkins-based argument in his motion to stay.
Accordingly, the Respondent’s motion to dismiss the second claim in the petition for writ of
habeas corpus, brought pursuant to 28 U.S.C. § 2244(b) (Doc. 6) is GRANTED and that claim
is dismissed without prejudice. Gore, 720 F.3d at 815 (“If a petitioner fails to exhaust his state
remedies, a district court must dismiss the petition without prejudice to allow for such
exhaustion.”).
IV. Injunctive relief as to the Ford claim (Claim One)
This court’s authority to grant a stay of execution is found in 28 U.S.C. § 2251.2
“A request for a stay of execution is a request for equitable relief.” White v. Jones, 408 Fed.
Appx. 293, 294-95 (11th Cir. 2011)3 (citing Williams v. Allen, 496 F.3d 1210, 1212–13 (11th
Cir. 2007) and Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104 (2006)).
Equitable principles to be considered include “(1) ‘sensitiv[ity] to the State’s strong interest in

2

“(a) In general -- (1) Pending matters.--A justice or judge of the United States before whom a
habeas corpus proceeding is pending, may, before final judgment or after final judgment of
discharge, or pending appeal, stay any proceeding against the person detained in any State court
or by or under the authority of any State for any matter involved in the habeas corpus
proceeding.” 28 U.S.C. § 2251(a)(1).

3

“Unpublished opinions are not considered binding precedent, but may be cited as persuasive
authority.” U.S. Ct. of App. 11th Cir. Rule 36-2.

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enforcing its criminal judgments without undue interference from the federal courts,’ (2) the
plaintiff’s satisfaction of ‘all of the requirements for a stay, including a showing of a significant
possibility of success on the merits,’ (3) the application of ‘a strong equitable presumption
against the grant of a stay where the claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay,’4 and (4) protection of the ‘States
from dilatory or speculative suits.’” White, 408 F. Appx. at 294-295 (citations omitted). “The
strong interest of the State and the victim’s families is in ‘the timely enforcement of a
sentence’”, [ ] which acquires ‘an added moral dimension’ once post-trial proceedings
finalize.” White, 408 F. Appx. at 294-295 (quoting Calderon v. Thompson, 523 U.S. 538, 556,
118 S.Ct. 1489, 1501 (1998) and Arthur v. King, 500 F.3d 1335, 1340 (11th Cir.2007)).
As to satisfaction of the requirements for a stay, the court may grant a stay of execution
if the moving party shows a substantial likelihood of success on the merits, irreparable injury
unless the stay issues, that the stay would not substantially harm the other party; and if issued,
the stay would not be adverse to the public interest. In re Holladay, 331 F.3d 1169, 1176 (11th
Cir. 2003) (citing Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir. 1987)).
Without dispute, Madison has met the second criteria. Madison will suffer irreparable
injury if the stay is not granted. In re Holladay, 331 F.3d at 1177 (granting a stay of execution
and finding that “the irreparability of the injury that petitioner will suffer in the absence of a
stay to be self-evident”). As to the third criteria, substantial harm to other parties, the Eleventh
Circuit Court of Appeals has explained that no substantial harm will “flow to the State of
Alabama or its citizens from postponing petitioner’s execution to determine whether the
4

Madison filed his state petition within a month of the motion to set his execution date. See
Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998). He filed his petition for habeas
corpus in this court within a week of the state court’s decision. Thus, the court finds this
presumption inapplicable.
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execution would violate the Eighth Amendment.” In re Holladay, 331 F.3d at 1177. As to the
fourth criteria, the Eleventh Circuit has acknowledged the “State’s strong interest in enforcing
its criminal judgments without undue interference from the federal courts.” Jones v. Comm’r.
Georgia Dep’t of Corr., 812 F. 3d 923,932 (11th Cir. 2016). The court is also mindful that
“[e]ach delay, for its span, is a commutation of a death sentence to one of imprisonment.”
Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir.1983). However, it would not be
adverse to the public interest to stay an execution that may violate the Constitution. Thus, the
court turns to the first factor: whether there is a substantial likelihood of success on the merits.
Madison argues that there is a substantial likelihood that he will succeed on the merits
of his claim because the Eighth Amendment prohibits his execution. The court disagrees and
finds that not only is there not a substantial likelihood that Madison will succeed on the merits,
but that the petition is due to be denied on the merits.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996, this court does not
have “plenary authority to grant habeas relief” but instead, the authority is “conditioned on
giving deference to the states.” Jones v. Walker, 496 F. 3d 1216, 1226 (11th Cir. 2007).
Specifically, 28 U.S.C. § 2254 provides as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d)(1) and (2).
“Pursuant to § 2254(d)(1), the phrase ‘clearly established Federal law’ means ‘the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.’ ” Smith v. Campbell, 620 Fed. Appx. 734, 746 (11th Cir. 2015)
(quoting Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 1172 (2003) (quotation marks
omitted)). “A state court’s application of federal law is not unreasonable under § 2254(d)(1) ‘so
long as fairminded jurists could disagree on the correctness of the state court’s decision.’”
Smith, 620 Fed. Appx. at 746 (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770,
786 (2011) (quotation marks omitted)).
“As to § 2254(d)(2), ‘a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented in the state-court
proceeding.’” Smith, 620 Fed. Appx. at 746 (quoting Miller–El v. Cockrell, 537 U.S. 322, 340,
123 S.Ct. 1029, 1041 (2003)). “We may not characterize ... state-court factual determinations as
unreasonable merely because we would have reached a different conclusion in the first
instance.” Smith, 620 Fed. Appx. at 746 (quoting Brumfield v. Cain, 576 U.S. ––––, ––––, 135
S.Ct. 2269, 2277 (2015) (quotation marks omitted)). “The Supreme Court has found a state
court’s factual finding to be unreasonable where the record before the state court did not
support the factual finding.” Smith, 620 Fed. Appx. at 746-747 (quoting Wiggins v. Smith, 539
U.S. 510, 528–29, 123 S.Ct. 2527, 2539, 156 L.Ed.2d 471 (2003)).
In Panetti, the Supreme Court explained that “[u]nder AEDPA, a federal court may
grant habeas relief, as relevant, only if the state court’s “adjudication of [a claim on the merits]
... resulted in a decision that ... involved an unreasonable application” of the relevant law.
When a state court’s adjudication of a claim is dependent on an antecedent unreasonable

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application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court
must then resolve the claim without the deference AEDPA otherwise requires.” 551 U.S. 930 at
953.
First, Madison argues that because of his brain damage and resulting mental
incompetency and dementia, he does not have an independent recollection of the offense for
which he was convicted and does not have a rational understanding of why the State is
attempting to execute him. Madison argues that the state court failed to consider his dementia
and resulting deficits in long-term memory and incorrectly found that he “failed to meet his
burden of proving by a preponderance of the evidence that he ‘suffers from mental illness
which deprives [Mr. Madison] of the mental capacity to rationally understand that he is being
executed as a punishment for a crime.” 5 (emphasis in original) Madison argues that “by failing
to consider whether [he] was incapable of rationally understanding his execution because of his
dementia and corresponding memory deficits, the state court unreasonably imposed a standard
more restrictive than what the law clearly established by Panetti requires” and as a result “the
state court’s determination was both an unreasonable application of, and contrary to, clearly
established federal law.” (Doc. 2, p. 9-10)
Second, Madison argues that by limiting the analysis to whether he was incompetent
because of “mental illness”, the “state court failed to address crucial facts regarding his strokes
and resulting dementia.” Madison argues that this failure to address cannot be construed as a
5

The court notes that the state court order indicates that the parties agreed to the burden of
proof, as follows: “The parties agree that the burden of proof in this case is that the Petitioner
must satisfy the trial court by a preponderance of the evidence, i.e., that it was more likely so
than not, that the Petitioner suffers from a mental illness which deprives the prisoner of the
mental capacity to rationally understand that he is begin executed as a punishment for a crime.”
Madison v. State of Alabama, Civil Action 1985-001385.80 (Document 43, p. 5) (Circuit Court
of Mobile County, Alabama, Apr. 29, 2016).

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rejection of that evidence, and therefore, the decision was based on an unreasonable
determination of the facts in light of the evidence presented. (Doc. 2, p. 10)
Based upon the evidence cited in the state court’s opinion, it is clear that the state court
considered the evidence of Madison’s recent diminished capacity and memory loss in reaching
its determination that Madison had the requisite rational understanding that he was to be
executed because of the murder he committed and that Madison understood that his execution
was retribution for the crime. See infra. Thus, whether the court was required under Ford to
consider mental issues that may fall outside of the clinical definition of mental illness but still
affects rational thinking, is moot. The question then is whether the state court’s determination
was an unreasonable application of, and contrary to, clearly established federal law as
enunciated in Ford and Panetti. In this regard the court agrees with the Respondent that the
state court’s decision was not an unreasonable application of, nor contrary to, clearly
established federal law and adopts the Respondent’s reasoning (as amended) 6 as follows:
First the state court correctly stated the law to be applied. The state court recognized the
holding of Ford as being that “the Eighth Amendment prohibits a State from carrying out a
sentence of death upon a prisoner who is insane.” (Vol. II, Tab R-12, at 3 (quoting Ford, 477
U.S. at 409-10)) The state court further identified the holding of Panetti as requiring an inquiry
into whether a prisoner’s mental illness deprives him of the mental capacity to understand that
he is being executed as a punishment for a crime, including whether the prisoner has a rational
understanding of the State’s rationale for his execution. (Vol. II, Tab R-12, at 4 (citing Panetti,
551 U.S. at 954, 959))

6

To a substantial extent, the reasoning is adopted verbatim from Doc. 9, pp. 12-18.
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The state court recognized that Madison was entitled to a “fair hearing,” including an
opportunity to be heard, the opportunity to submit evidence and argument through counsel, and
the right to present independent expert psychiatric evidence through the defense. (Id. at 3-4
(quoting Panetti, 551 U.S. at 949)) The state court further identified the question considered
as whether “it was more likely than not, that the Petitioner suffers from a mental illness which
deprives the prisoner of the mental capacity to rationally understand that he is being executed
as a punishment for a crime.” (Id. at 4)
The state court considered the testimony of Dr. Kirkland, a court-appointed forensic
psychologist, Dr. Goff, the defense-retained expert psychologist, and Warden Davenport, the
Warden of Holman Prison (where Madison is housed). (Id. at 10) The state court also
considered all of the exhibits offered by Madison, including medical records from the
University of South Alabama Medical Center and Mobile Infirmary. (Id. at 10)
The state court found (1) that Madison failed to meet his burden of proof, (2) that the
testimony of the court-appointed expert was due to be credited, (3) that Madison has a rational
understanding, as required by Panetti, that he is going to be executed because of the murder he
committed and a rational understanding that the State is seeking retribution and that he will die
when he is executed, and (4) that the evidence does not support that Madison is delusional. (Id.
at 10)
Thus, it is apparent that the state court adjudication of these claims applied the
relevant Panetti/Ford standard for determining competency to be executed, considered all
of Madison’s factual averments, and found that any dementia, and the alleged deficits in
memory associated with that condition, did not prevent Madison from having a rational

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understanding of his execution and the reasons for his execution. 7 In finding that Madison
was competent to be executed, the state court relied on the following facts:
1) Dr. Kirkland’s finding that Madison did not suffer from paranoia, delusion, or
psychosis;
2) Dr. Kirkland’s finding that “even though Madison was functioning at the low
average range of intellect, if not the low normal range, that ‘while he may have
suffered a significant decline post-stroke, his current functioning still would
appear to result in a forensic finding that Madison understands the exact posture
of his case at this point.’”;
3) Dr. Kirkland’s finding that Madison was able to discuss each appeal and
“marveled each time with the fact that the whole process would end up being
back in Judge McCrae’s court;
4) Dr. Kirkland’s finding that Madison appeared to understand his legal situation
and is able to relate to his attorneys, including the ability to give details of the
history of the case regarding appeals and his concerns;
5) Dr. Kirkland’s testimony that Madison could remember specific things about
the time of the offense as well as each trial, including the jury’s advisory
recommendation and the Batson challenge considered by this Court in 2013;

7

The trial court’s focus on lack of evidence of delusion and psychosis was oriented toward
making specific findings regarding Madison’s allegations in the state court petition that he did
suffer from delusions and psychosis. For example, Madison alleged in his petition that his
mental illness was “marked by paranoid delusions and other disabilities” (Vol. I, Tab R-1, at 1),
that an expert testified Madison had suffered “from a delusional disorder that has existed since
he was an adolescent” (Vol. I, Tab R-1, at 5), that Madison had a “well-documented history of
paranoia” of “a persecutory type” (Id.), and a claim that Madison had once exhibited delusional
thinking including a belief that he was being used as a guinea pig in medical experiments (Id.)
Madison further relied on testimony of another expert that he suffered “from paranoid illness of
profound proportion,” “a paranoid state; that is, a psychotic mental illness,” and that Madison
was expected to remain in “a psychotic condition” if he did not receive treatment [which he did
not in prison].” (Id. at 5-6) Madison further relied upon an allegation of a previous defense
expert that his “mental illness is chronic, and there is a more than ninety percent chance it will
never go away.” (Id. at 6) Madison’s own legal team, although suffering from the fact they
were lay witnesses, alleged that Madison was presently suffering from paranoid delusions. (Id.)
Against these, and numerous other unfounded allegations of delusions and paranoia in the
petition, the trial court prudently entered findings of fact.
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6) Dr. Goff’s report that Madison recognized he was in prison for murder;
7) Dr. Goff’s report that Madison felt his conviction was “unjust,”;
8) Dr. Goff’s report that Madison “understands the sentence, specifically the
meaning of a death sentence. He understands the idea of being dead…He
understands the procedures, or at least he seemed to.”;
9) Dr. Goff’s testimony that, “I think [Madison] understands that he—that [the
State is] seeking retribution. I don’t think he understands the act that he is
being—that he is being punished for.”;
10) Medical records showing that Madison’s January 2016 hospitalization was
based on symptoms unrelated to a “small acute CVA” but rather on synthetic
marijuana and methamphetamine use.”;
11) Medical records showing Madison was evaluated in January 2016 and
“completed receptive language task of answering complex yes/no questions and
following multi-step commands with 100% [accuracy]. Expressive language
tasks of naming items was completed with 100% [accuracy], automatic with a
100% [accuracy].”;
12) Medical records from Madison’s January 2016 hospitalization indicating
that upon arrival at the hospital Madison “had an altered mental status, but
apparently now is back to baseline.”;
13) Medical records from May 2015 showing Madison was “awake/alert.
Oriented to person, place and situation, still confused about time.”;
14) Warden Davenport’s testimony that Madison responded with “My lawyers
are supposed to be handling that,” in response to the reading of the death
warrant; and
15) Warden Davenport’s testimony that Madison was not receiving mental
health treatment from the Alabama Department of Corrections.
(Vol. II, Tab R-12, at 5-9) Based on this evidence, the state court found that Madison had not
carried his burden of proof on the issue of his competency. (Vol. II, Tab R-12, at 10) More
specifically, the state court found that Madison possessed a rational understanding that he was
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being executed for the murder he committed and that his sentence was in retribution for the
crime. (Id.)
Madison has attempted to convince this court that it should credit testimony that was more
favorable to Madison’s position and find the state court acted unreasonably in doing otherwise.
However, that is not the role of this court. See Burt v. Titlow, 134 S. Ct. 10, 15 (2013)
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010) (“A state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.”)). The court may only examine the evidence to determine
whether the state court’s conclusions were unreasonable in light of the evidence that the state
court reasonably found to be credible. In that regard, it was not unreasonable for the state court
to rely on the opinions of Dr. Kirkland, which was supported by other evidence of record.
Madison also claims that the state court’s factual findings constituted an unreasonable
determination of the facts because the state court failed “to even consider evidence of dementia,
and its impact on Mr. Madison’s cognitive functioning and understanding of the proceedings.”
As previously stated, this is incorrect. In finding that Madison failed to prove by a
preponderance of the evidence that he was incompetent to be executed, the state court relied on
Madison’s ability to talk with Dr. Kirkland about “very specific things that would indicate
that he could remember specific things about the time of the offense even, as well as each
trial, as well as the outcome with regard to judicial override and Batson challenge” and the
death penalty versus life without parole. (Vol. II, Tab R-12, at 5-6) Finally, the state court
also relied on Dr. Goff8, who testified that despite any dementia, Madison “is able to

8

To the extent the two expert’s opinions differed on the issue of whether Madison’s dementia
affected his competency to be executed, the state court’s election to rely on Dr. Kirkland’s
opinion rather than Dr. Goff’s opinion is entitled to great deference and will not be disturbed
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understand the nature of the pending proceeding and he has an understanding of what he was
tried for[.]” (Vol. II, Tab R-12, at 7)
The state court also took notice of Madison’s confusion and mental status at the time of
his hospitalization in January 2016 (Vol. II, Tab R-12, at 7), but then went on to note that
Madison was “alert, well appearing, and in not distress” and “alter and oriented X 3” prior
to his discharge (Id. at 8) The state court further relied on a consulting physician’s notation
that Madison had returned “back to baseline” by the time he was discharged from the hospital
in January 2016. (Id. at 8) Thus, it is evident that the state court did consider the effects on
Madison’s dementia on his competency to be executed.
In sum, having considered the evidence deduced at the hearing, the court finds that the
determination of facts by the state court was not an unreasonable determination of the facts.
Also the state court’s determination was neither an unreasonable application of, nor contrary
to, clearly established federal law.
Ultimately the question presented by the first claim in Madison’s habeas petition is
whether “some fair minded jurists could agree” with the circuit court’s ultimate conclusion that
Madison is competent to be executed given the ultimate opinion of Dr. Kirkland (which the
trial court fully credited) and Dr. Goff (of which the trial court partially credited), the
medical records showing that Madison had returned to “baseline” before his discharge from
the hospital in January 2016, and Madison’s response to Warden Davenport’s reading of the
death warrant. See Ferguson, 716 F.3d at 1340. Because the answer to this question is “yes,

unless determined to be unreasonable. See, e.g., Panetti v. Stephens, 727 F.3d 398, 410-11 (5th
Cir. 2013) (noting “[t]he [district] court’s careful draw on the experts’ conflicting testimony is
entitled to ‘great deference’ from this Court” and that this “is probably sufficient by itself to
sustain the district court’s judgment under a clear-error standard.”).
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fair minded jurists could agree with that conclusion,” Madison is not entitled to relief. Id. at
1340-41.
V. Conclusion
The court finds that the state court correctly applied Ford and Panetti and that the
decision was not based upon an unreasonable application of, or contrary to, clearly established
federal law or an unreasonable determination of the facts in light of the evidence presented to
the state court. Accordingly, for the reasons set forth herein, Madison’s petition for writ of
habeas corpus is DENIED, his motion for stay of execution is DENIED, Respondent’s motion
to dismiss Claim Two (Atkins claim) pursuant to 28 U.S.C. § 2244(b) and for failure to exhaust
is GRANTED, and Respondent’s motion to dismiss for lack of exhaustion as to Claim One
(Ford claim) is DENIED.
VI. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the court must determine
whether Madison is entitled to a certificate of appealability. 28 U.S.C. foll. § 2254, Rule 11(a)
(“The district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.”). The habeas corpus statute states that an applicant is entitled to
appeal a district court’s denial of a habeas corpus petition only where a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may
issue only where “the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2243(c)(2).
“Where a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurist would find the district court’s assessment of the constitutional claims

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debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000) or that “the
issues presented were adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003) (internal quotations omitted).
Madison has not met his burden to show that reasonable jurists would find debatable his
constitutional claims or that the issues he presented were adequate to deserve further review.
Therefore, he is not entitled to a Certificate of Appealability.
DONE and ORDERED this 10th day of May 2016.

s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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 APPENDIX 

Case: 16-12279

Date Filed: 05/12/2016

Page: 1 of 5

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12279-P
________________________
VERNON MADISON,
Petitioner – Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent – Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
Before WILSON, MARTIN and JORDAN, Circuit Judges.
BY THE COURT:
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. The district court found that
Madison had exhausted his Ford claim in state court as required by 28 U.S.C. §

 Case: 16-12279

Date Filed: 05/12/2016

Page: 2 of 5

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).
The 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.” 551
U.S. 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
ultimately an inability to rationally understand why the State of Alabama is
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 Case: 16-12279

Date Filed: 05/12/2016

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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
impairments.
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, 118 S. 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 Eighth Amendment. This
claim could not have been raised before Madison’s execution became imminent,
and only the Alabama trial court and the district court have reviewed Madison’s
claim.
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 Case: 16-12279

Date Filed: 05/12/2016

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Pursuant to Miller-El, Madison has satisfied § 2253(c)(2)’s standard.
Madison’s motion for COA is GRANTED 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 proceeding.
“If a certificate of appealability is granted by the district court or by this
court, the panel may grant 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. The Court therefore GRANTS
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
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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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