Johnson v. Vandergriff

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1 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 23–5244 (23A90)
JOHNNY JOHNSON v. DAVID VANDERGRIFF,
WARDEN
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
[August 1, 2023]
The application for stay of execution of sentence of death
presented to J
USTICE KAVANAUGH and by him referred to
the Court is denied. The petition for a writ of certiorari is
denied.
J
USTICE SOTOMAYOR, with whom JUSTICE KAGAN and
J
USTICE JACKSON join, dissenting from the denial of appli-
cation for stay and denial of certiorari.
Executing a prisoner who has lost his sanity has, for cen-
turies, been branded inhuman. See Ford v. Wainwright,
477 U. S. 399, 409 (1986) (“[T]he natural abhorrence civi-
lized societies feel at killing one who has no capacity to
come to grips with his own conscience or deity is still vivid
today”). The Eighth Amendment recognizes as much. Our
Constitution therefore prohibits executing a prisoner who
lacks capacity to form a rational understanding of the rea-
son for his execution. To safeguard this constitutional guar-
antee, once a prisoner makes a substantial threshold show-
ing of insanity, courts must provide a fair hearing to
determine a prisoner’s competency to be executed. See Pan-
etti v. Quarterman, 551 U. S. 930 (2007).
Johnny A. Johnson has a decades-long documented his-
tory of severe mental illness, including schizophrenia.
Johnson alleges that he is incompetent to be executed, and

2 JOHNSON v. VANDERGRIFF
S
OTOMAYOR, J., dissenting
requested a hearing to evaluate his competence before Mis-
souri executes him. This request came after a psychiatrist
found him incompetent because “he does not have a rational
understanding of the link between his crime and his pun-
ishment.” App. to Pet. for Cert. 53a. In fact, Johnson be-
lieves that “Satan [is] ‘using’ the State of Missouri to exe-
cute him in order to bring about the end of the world.” Id.,
at 54a.
The Supreme Court of Missouri, over a noted dissent, de-
nied Johnson a competency hearing because it concluded
that he had not made a substantial threshold showing of
insanity. That was error. A federal District Court then de-
nied Johnson habeas relief. A panel of the Eighth Circuit
stayed his execution and issued a certificate of appealabil-
ity (COA), which would have permitted his competency
claim to be fully briefed and argued on the merits. But the
en banc Eighth Circuit, over a dissent from three judges,
vacated that stay and declined to issue a COA because it
concluded that no reasonable jurist could disagree with the
District Court. That too was error. Because reasonable ju-
rists could, did, and still debate whether the District Court
should have granted habeas relief, the Eighth Circuit
should have authorized an appeal. I would grant the peti-
tion for a writ of certiorari, summarily vacate the order of
the Eighth Circuit denying a COA, and grant Johnson’s re-
quest for a stay of execution pending appeal.
I
Counsel for Johnson filed a habeas petition in the Su-
preme Court of Missouri arguing that his execution would
violate the Eighth and Fourteenth Amendments because he
is incompetent to be executed. The petition sought a stay
of Johnson’s execution and an evidentiary hearing on his
competency claim.
In support of his petition, Johnson submitted a 55-page

3 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
report from a psychiatrist, Dr. Bhushan Agharkar, who re-
viewed his medical records and conducted an over two hour
in-person evaluation before finding him incompetent to be
executed. Dr. Agharkar concluded that “Johnson is aware
he is on death row and that he was convicted of murder.
However, he does not have a rational understanding of the
link between his crime and his punishment. His under-
standing of the reason for his execution is irrational and
delusional, because he believes it is Satan ‘using’ the State
of Missouri to execute him in order to bring about the end
of the world and that the voice of Satan confirmed this plan
to him. He believes he has been marked with the ‘Seventh
Sign’ and the world will be destroyed were he to die.” Id.,
at 53a–54a.
Johnson also submitted medical records detailing his dec-
ades-long history of psychotic mental illness, including
schizophrenia and delusions. He previously experienced
visual and auditory hallucinations that told him to kill him-
self and hurt others, and reported seeing “demons” and
hearing the voice of “Leviathan.” At one point, he heard
voices telling him to cut his own arm off and he cut himself
repeatedly with a razor; in another incident, he wrote “we’re
dead” and “die” on the wall with his own feces and blood.
Over the years, Johnson has also expressed delusions about
his death, including repeatedly observing that the world
will end when he dies. See, e.g., id., at 63a (“I think I’m the
7th sign. I’m the end of the world when I die”); id., at 68a
(“I think that the world will end if I die”); id., at 74a (prison
psychologist reporting that Johnson “ha[d] heard God’s
voice talking directly to him and sometimes he ‘can hear the
other side of the world and different spirits’”).
In response to this compelling evidence, Missouri submit-
ted only a one-and-a-half-page affidavit from Ashley
Skaggs, the institutional chief of mental health at John-
son’s prison. Missouri does not dispute that Skaggs, a li-
censed professional counselor, is not qualified under state

4 JOHNSON v. VANDERGRIFF
S
OTOMAYOR, J., dissenting
law to make a formal determination of competence to be ex-
ecuted. Nor is there any dispute that Skaggs did not eval-
uate Johnson for the purpose of determining his compe-
tency for execution, but instead met with him for a few
minutes sporadically during a three-year period to discuss
his ongoing treatment. In response to Dr. Agharkar’s re-
port, Skaggs attested that Johnson “has never expressed
these kinds of hallucinations or delusional beliefs. On the
contrary, in recent months Mr. Johnson has reported that
his auditory hallucinations are well managed by medication
and has denied more severe symptoms or side effects. . . .
From my observations, Mr. Johnson appears to understand
the nature of his upcoming execution.” Id., at 58a–59a.
The Supreme Court of Missouri, over a dissent, concluded
that Johnson was not entitled to an evidentiary hearing be-
cause he did not make a “‘substantial threshold showing of
insanity’ required by Panetti and Ford.” 668 S. W. 3d 574,
576 (2023). Johnson challenged this denial in federal ha-
beas proceedings. The District Court denied his petition on
the merits, and Johnson moved the Eighth Circuit for a stay
of execution and applied for a COA. An Eighth Circuit
panel stayed the execution and granted the certificate lim-
ited to the claim that Johnson was incompetent to be exe-
cuted. Missouri sought rehearing, and the en banc Eighth
Circuit, over dissent from Chief Judge Smith, Judge Kelly,
and Judge Erickson, granted the petition for rehearing, de-
nied the application for a COA, and denied the motion for a
stay of execution.
II
A state prisoner whose habeas petition is denied by a dis-
trict court can appeal only if a judge issues a COA. Issuing
a COA requires that the prisoner make “a substantial show-
ing of the denial of a constitutional right.” 28 U. S. C.
§2253(c)(2). To make that showing, the prisoner need only
demonstrate that “reasonable jurists could debate whether

5 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
. . . the petition should have been resolved in a different
manner or that the issues presented were adequate to de-
serve encouragement to proceed further.” Slack v. McDan-
iel, 529 U. S. 473, 484 (2000) (internal quotation marks
omitted).
The Eighth Circuit erred in denying a COA for two rea-
sons.
1
To start, the Eighth Circuit was too demanding in
assessing whether reasonable jurists could debate the mer-
its of Johnson’s habeas petition. The Missouri Supreme
Court, with a dissent, denied Johnson’s claim, a panel of the
Eighth Circuit granted a stay of execution and a COA, and
three judges dissented when the en banc court vacated the
panel’s order.
2
There was, of course, good reason for those
judges to debate the merits of Johnson’s habeas petition: It
was objectively unreasonable for the Supreme Court of Mis-
souri to conclude that Johnson did not establish even a
threshold showing of incompetence. “Those facts alone
might be thought to indicate that reasonable minds could
differ—had differed—on the resolution of [Johnson’s]
claim.” Jordan v. Fisher, 576 U. S. 1071, 1076 (2015)
(S
OTOMAYOR, J., dissenting from denial of certiorari).
The Eighth Circuit’s second mistake was failing to “limit
its examination to a threshold inquiry.” Miller-El v.
Cockrell, 537 U. S. 322, 327 (2003). The only issue before
the court was the threshold jurisdictional question whether
to issue a COA. When a court of appeals departs from the
limited COA inquiry, without even full briefing or oral ar-
gument, and instead opines on the merits of an appeal, “‘it
——————
1
The en banc Eighth Circuit’s rationale is found in Judge Gruender’s
concurrence, which is joined by all seven judges in the majority.
2
As a general matter, courts of appeals will rehear a case en banc only
when en banc consideration “is necessary to secure or maintain uni-
formity of the court’s decisions” or “the proceeding involves a question of
exceptional importance.” Fed. Rule App. Proc. 35(a). It is more than
unusual that an en banc Eighth Circuit concluded that a grant of a COA
by a panel met this high standard.

6 JOHNSON v. VANDERGRIFF
S
OTOMAYOR, J., dissenting
is in essence deciding an appeal without jurisdiction.’”
Buck v. Davis, 580 U. S. 100, 115 (2017) (quoting Miller-El,
537 U. S., at 336–337). The majority nevertheless exten-
sively discussed the merits of Johnson’s habeas claim, con-
cluding that “[t]he Supreme Court of Missouri’s decision
was not ‘contrary to’ Panetti,” “[n]or has Johnson made a
substantial showing that the Supreme Court of Missouri’s
decision was ‘based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.’” App. to Pet. for Cert. 132a, 133a. These are
merits determinations, and “a COA ruling is not the occa-
sion for a ruling on the merit of [a] petitioner’s claim.” Mil-
ler-El, 537 U. S., at 331.
The COA requirement erects an important but not insur-
mountable barrier to an appeal. When a habeas petitioner
makes a substantial showing that his constitutional rights
were violated, a COA should issue. This is especially true
in this context, where competency has to be determined at
the time of execution, and that determination requires con-
temporaneous factual development. The only question be-
fore the Eighth Circuit was whether reasonable jurists
could debate the District Court’s disposition of Johnson’s
habeas petition. That question, in turn, depends on
whether reasonable jurists could debate whether the Mis-
souri Supreme Court contravened or unreasonably applied
clearly established federal law. See 28 U. S. C. §2254(d).
Here, reasonable jurists can and do have that debate.
III
Because Johnson made “‘a substantial threshold showing
of insanity,’” he is entitled to a “‘fair hearing’ in accord with
fundamental fairness.” Panetti, 551 U. S., at 949 (quoting
Ford, 447 U. S., at 426). The central question to determine
competency is “whether a prisoner’s concept of reality is so
impair[ed] that he cannot grasp the execution’s meaning

7 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
and purpose or the link between [his] crime and its punish-
ment.” Madison v. Alabama, 586 U. S. ___, ___ (2019) (slip
op., at 3) (internal quotation marks omitted; alterations in
original). At minimum, reasonable jurists could debate
whether the Supreme Court of Missouri contravened or un-
reasonably applied clearly established federal law—
namely, Ford and Panetti—in determining that Johnson
did not make a threshold showing of incompetency. Here,
the Supreme Court of Missouri made at least two errors.
First, the Supreme Court of Missouri confronted facts
that were “materially indistinguishable” from Panetti, but
“arrive[d] at a result opposite to ours.” Williams v. Taylor,
529 U. S. 362, 405 (2000). In Panetti, this Court conducted
an “independent review of the record” and concluded that
the prisoner met the threshold showing of incompetence
based on a letter from his doctor following an 85-minute ex-
amination as well as “extensive evidence of mental dysfunc-
tion considered in earlier legal proceedings.” 551 U. S., at
950. The prisoner in Panetti suffered “mental problems . . .
indicative of schizo-affective disorder, . . . resulting in a
genuine delusion” that his execution was “‘part of spiritual
warfare . . . between the demons and the forces of the dark-
ness and God and the angels and the forces of light.’” Id.,
at 954 (internal quotation marks omitted). This Court
noted that there was “much in the record to support the
conclusion that [Panetti] suffers from severe delusions.”
Id., at 956. Panetti is strikingly similar to this case. As
Judge Kelly noted in dissent, “Johnson’s evidence of incom-
petency [is] materially indistinguishable from the evidence
deemed sufficient in Panetti.” App. to Pet. for Cert. 137a.
Johnson submitted a 55-page report from his doctor sum-
marizing his “‘long-documented history of psychotic mental
illness’” and concluding that he was incompetent to be exe-
cuted, as well as voluminous medical records detailing his
decades-long history of mental illness. The record further
reflects that, because of his “severe psychotic mental illness

8 JOHNSON v. VANDERGRIFF
S
OTOMAYOR, J., dissenting
and a cognitively impaired brain,” Johnson believes that
“Satan [is] ‘using’ the State of Missouri to execute him in
order to bring about the end of the world.” Id., at 54a.
Second, the Supreme Court of Missouri unreasonably ap-
plied Panetti’s legal standard. Panetti focuses on whether
a prisoner can reach a “rational understanding of the rea-
son for [his] execution.” 551 U. S., at 958. Despite reciting
the correct standard, the Supreme Court of Missouri ap-
plied the wrong one. The court found the persuasiveness of
Dr. Agharkar’s 55-page report “significantly weakened by
Skaggs’ [one-and-a-half-page] report” and Johnson’s medi-
cal records. 668 S. W. 3d, at 579, n. 7. The court relied in
part on Skaggs’ affidavit to discredit Dr. Agharkar’s report
even though Dr. Agharkar applied Panetti’s legal standard
while Skaggs, unqualified to render an opinion on compe-
tency, only proffered that Johnson “appears to understand
the nature of his upcoming execution.” App. to Pet. for Cert.
59a. The Eighth Circuit highlighted Skaggs’ opinion and
concluded that “to understand the nature of an execution is
to have a rational understanding of the reason for it.” Id.,
at 134a. That is plainly wrong. Understanding the nature
of an execution is distinct from understanding rationally
the reason for an execution. Even a “prisoner’s awareness
of the State’s rationale for an execution,” his acknowledg-
ment that “he will be executed,” and his understanding that
“the reason the State has given for the execution is his com-
mission of the crimes in question” does not resolve the in-
quiry into whether he has a “rational understanding of the
reason for the execution.” Panetti, 551 U. S., at 956–959.
Here, for example, although Johnson understands he will
be executed and die by lethal injection, his delusions lead
him to believe that “Satan [is] ‘using’ the State of Missouri
to execute him in order to bring about the end of the world,”
that “the underworld can influence the State to not execute
him for Satan’s purposes,” and that “he is a vampire and
able to ‘reanimate’ his organs” and “enter an animal’s mind

9 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
if he can learn the right ‘code’ in order to go on living after
his execution.” App. to Pet. for Cert. 54a.
The Supreme Court of Missouri also discounted Dr.
Agharkar’s testimony based on evidence that was at best
tangential to the Panetti inquiry. Specifically, the court em-
phasized Johnson’s statements that he was “‘very ashamed
of killing his best friend’s daughter’” and that he was
“ ‘working with his attorneys to fight his case as best as he
can,’” as well as notes in his medical records stating that
medications are controlling his auditory hallucinations.
668 S. W. 3d, at 578–579. None of this evidence provides
meaningful insight into whether Johnson “grasp[s] the . . .
‘meaning and purpose’ ” of his execution—much less calls
into question Dr. Agharkar’s conclusion about competency
or Johnson’s delusional belief that Satan is using the State
of Missouri to execute him. Madison, 586 U. S., at ___ (slip
op., at 3).
Put simply, it is beyond question that Johnson’s habeas
claim is “reasonably debatable.” Buck, 580 U. S., at 117.
Members of this Court, the Eighth Circuit, and the Su-
preme Court of Missouri have already done so. To never-
theless maintain that Johnson should be denied a COA be-
cause no reasonable jurist could debate the District Court’s
denial of his habeas petition defies common sense. Under
well-established equitable principles, courts evaluating a
stay must consider the applicant’s likelihood of success on
the merits and potential for irreparable injury, as well as
other parties’ injury and the public interest. See Nken v.
Holder, 556 U. S. 418, 434 (2009). For the reasons above,
Johnson has established a substantial likelihood of success
on the merits of his claim. The equities here, as in almost
all death penalty cases where a prisoner has shown a rea-
sonable probability of success on the merits, favor Johnson.
See Bucklew v. Precythe, 587 U. S. ___, ___ (2019)
(S
OTOMAYOR, J., dissenting) (slip op., at ___). I would there-
fore grant the petition for a writ of certiorari, summarily

10 JOHNSON v. VANDERGRIFF
S
OTOMAYOR, J., dissenting
vacate the order of the Eighth Circuit denying a COA, and
grant Johnson’s request for a stay of execution pending ap-
peal.
In sum, Johnson presented extensive threshold evidence
of incompetency—including voluminous medical records
documenting his decades-long struggle with mental illness
and a 55-page report from his psychiatrist. That entitled
him to a competency hearing under Panetti. Anything less
denies Johnson a meaningful opportunity to be heard.
* * *
The Court today paves the way to execute a man with
documented mental illness before any court meaningfully
investigates his competency to be executed. There is no
moral victory in executing someone who believes Satan is
killing him to bring about the end of the world. Reasonable
jurists have already disagreed on Johnson’s entitlement to
habeas relief. He deserves a hearing where a court can fi-
nally determine whether his execution violates the Eighth
Amendment. Instead, this Court rushes to finality, bypass-
ing fundamental procedural and substantive protections. I
respectfully dissent.