No. 15A1175
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2016
_____________________________________
JEFFREY DUNN, Commissioner,
Alabama Department of Corrections
Petitioner,
v.
VERNON MADISON, Respondent
________________________________________
PETITIONER’S RESPONSE TO STATE’S
MOTION TO VACATE STAY OF EXECUTION
________________________________________
The State’s Motion to Vacate the Stay of Execution is due to be
denied. Mr. Madison’s competency claim has not been reviewed on appeal
in either state or federal court. Because of a quirk in Alabama law,
counsel for Mr. Madison was not permitted to appeal the state trial court’s
determination that Mr. Madison is competent to be executed. See Ala.
Code §15-16-23 (“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”); Weeks v. State, 663 So. 2d 1045, 1046 (Ala. Crim. App.

 1995) (finding by the trial court on the issue of insanity, as it relates to
this statute, is not reviewable by any other court”); Magwood v. State, 449
So. 2d 1267, 1268 (Ala. Crim. App. 1984) (Alabama Code explicitly
prohibits appellate review of trial court’s competency findings).
In Panetti v. Quarterman, 551 U.S. 930, 945-46 (2007), this Court
recognized that when competency claims arise, petitioners should seek
review in federal district courts, and that is precisely what Mr. Madison
did. While the district court correctly recognized that Mr. Madison’s
habeas corpus petition was properly filed, it nevertheless rejected his
competency claim. In doing so, however, it relied on the state trial judge’s
unreviewed findings and then tried to block appellate review in federal
court by denying a Certificate of Appealability. Madison v. Dunn, No.
1:16-cv-00191-KD-M, at *22-23 (S.D. Ala. May 10, 2016). On appeal, the
United States Court of Appeals for the Eleventh Circuit below properly
determined that an appeal was appropriate so that there could be
adequate review of the complex questions in this case.

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 I.

MR. MADISON’S CLAIM THAT HE IS INCOMPETENT TO BE
EXECUTED UNDER FORD V. WAINWRIGHT AND PANETTI V.
QUARTERMAN HAS SUBSTANTIAL MERIT THAT CANNOT BE
RESOLVED BEFORE HIS SCHEDULED EXECUTION.
This Court made clear in Barefoot v. Estelle, 463 U.S. 880 (1983),

superseded on other grounds by 28 U.S.C. § 2253(c), that a stay of
execution should be granted when necessary to “give non-frivolous claims
of constitutional error the careful attention that they deserve.” 436 U.S.
at 888. Vernon Madison is not competent to be executed because he
suffers from a major vascular neurological disorder, or vascular dementia,
resulting from a thalamic stroke he suffered in January 2016. (Doc. 8-1
at 107.)

Due his reduced mental functioning and memory deficits that

have resulted from this stroke and corresponding dementia, he is unable
to recollect the sequence of events from the offense, to his arrest, to his
trial (Doc. 8-3 at 18-19,) and Mr. Madison can no longer connect the
underlying offense to his punishment.
In Ford v. Wainwright, this Court held that the Eighth Amendment
prohibits states from executing those who are mentally incompetent. 477
U.S. 399, 409-10 (1986). Subsequently, in Panetti v. Quarterman, this
Court reaffirmed the basic premise of Ford, holding that the Eighth
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 Amendment prohibits states from executing prisoners who cannot
comprehend “the meaning and purpose of the punishment to which he has
been sentenced.” Id. at 960.

Panetti noted that “today, no less than

before, we may seriously question the retributive value of executing a
person who has no comprehension of why he has been singled out and
stripped of his fundamental right to life.” 551 U.S. 930, 957 (2007)
(quoting Ford, 477 U.S. at 409-410).
In determining what was required by Ford, Panetti looked at how
Ford formulated its inquiry into competency to be executed, in order to
determine what is required of state courts making a competency
evaluation. Panetti found that it required a finding that it could be
conceived as either a question about the prisoner’s “ability to
‘comprehen[d] the reasons’ for his punishment or as a determination into
whether he is “unaware of . . . why [he is] to suffer it.” 551 U.S. at 958
(quoting Ford, 477 U.S. at 418 and id. at 423 (Powell, J., concurring)).
Similarly, Panetti requires an inquiry into a prisoner’s ability to
comprehend his punishment. Id. at 960.
The Eleventh Circuit’s grant of a stay was appropriate because, like

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 in Panetti, the state court here applied a standard more restrictive than
what this Court’s precedent requires and consequently removed the key
evidence of Mr. Madison’s incompetency from its consideration. 551 U.S.
at 956-57 (The state court’s standard for determining incompetency to be
executed “ is too restrictive to afford a prisoner the protections granted by
the Eighth Amendment”).

Therefore, the state court’s decision was

contrary to and an unreasonable application of clearly established federal
law and an unreasonable determination of the facts in light of the
evidence presented at the competency proceeding. 28 U.S.C. § 2254(d)(1)
and (2).
Application of the Panetti standard to the evidence and testimony
in this case clearly establishes that Mr. Madison is not competent to be
executed. Dr. Goff determined that as a result of a thalamic stroke, Mr.
Madison suffers from major vascular neurological disorder or vascular
dementia, which has resulted in significant memory impairment, a decline
in cognitive functioning.

Due his reduced mental functioning and

memory deficits which render him unable to recollect the sequence of
events from the offense, to his arrest, to his trial, (Doc. 8-3 at 18-19), Mr.

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 Madison can no longer connect the underlying offense to his punishment.
Consequently, he does not have the ability to rationally understand the
reason why the State is seeking to execute him. (Doc. 8-3 at 19; Doc. 8-1
at 101, 105, 107, 110, 119-20.)
In Panetti, this Court made clear that AEDPA does not “prohibit a
federal court from finding an application of a principle unreasonable when
it involves a set of facts ‘different from those of the case in which the
principle was announced.’” Panetti, 551 U.S. at 960 (quoting Lockyer v.
Andrade, 538 U.S. 63, 76 (2003)); Wiggins v. Smith, 539 U.S. 510, 520
(2003) (“We have made clear that the ‘unreasonable application’ prong of
§ 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state
court identifies the correct governing legal principle from this Court's
decisions but unreasonably applies that principle to the facts’ of
petitioner’s case.”) (quoting Williams, 529 U.S. at 413). In Panetti, this
Court found that Ford “broadly identif[ied]” the “substantive standard of
incompetency,” and consequently held that the “strict” standard imposed
by the state court did not comply with Ford. Id. at 961.
Ford made clear that it is unconstitutional to execute “a person who

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 has no comprehension of why he has been singled out and stripped of his
fundamental right to life.” 477 U.S. at 409. Panetti clarified that this
principle dictates that a prisoner is incompetent to be executed if “he
cannot reach a rational understanding of the reason for the execution.”
551 U.S. at 958. The crux of this Court’s holding in Panetti is that a
prisoner must have a rational understanding of why he is being executed
and that a mental impairment that interferes with that understanding
will render a prisoner incompetent. 551 U.S. at 958 (determination of
competency requires inquiry into “prisoner’s ability to ‘comprehen[d] the
reasons’ for his punishment” or “a determination into whether he is
‘unaware of . . . why [he is] to suffer it’”) (quoting Ford, 477 U.S. at 418
and id. at 423 (Powell, J., concurring)); see also Stanley v. Chappell, No.
3:07-CV-04727-EMC, 2013 WL 3811205, at *1 (N.D. Cal. July 16, 2013)
(finding death-row prisoner incompetent to be executed due to dementia
caused, at least in part, by encephalomalacia).
Evidence of Mr. Madison’s dementia and corresponding cognitive
impairment and memory deficits and corresponding inability to rationally
understand why the State is attempting to execute him demonstrate that

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 his claim is meritorious and a stay of execution is warranted.

See

Barefoot, 463 U.S. at 893-94.
CONCLUSION
For these reasons, the State’s Motion for Stay of Execution should
be denied.
Respectfully Submitted,

/s/ Bryan Stevenson
BRYAN A. STEVENSON
Counsel of Record
RANDALL S. SUSSKIND
ANGELA L. SETZER
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104
(334) 269-1803
May 12, 2016

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