Whether a single raw IQ score above 70, regardless of when administered, is independently sufficient to deny a capital defendant's Atkins claim, and whether a capital defendant must demonstrate below-average intellectual and adaptive functioning before age eighteen, at the time of the offense, and at the time of execution

No question identified. : To the Honorable Justice Clarence Thomas, Associate Justice of the United States Supreme Court and Circuit Justice for the Eleventh Circuit: Petitioner Thomas Dale Ferguson requests an extension of time to file his petition for a writ of certiorari. The United States Court of Appeals for the Eleventh Circuit denied a timely petition for rehearing on August 7, 2023. A copy of that order and the judgment for which Petitioner seeks certiorari review are enclosed. The petition is currently due on November 6, 2023.! Petitioner is filing this application more than ten days before that date (see S. Ct. R. 13.5) and requests a 60-day extension of time, from November 6, 2023 to January 5, 2024. Respondent will not suffer any prejudice from this extension. Petitioner contacted Respondent about this request and is authorized to say that Respondent has no objection. The anticipated petition for certiorari will fall within this Court’s jurisdiction under 28 U.S.C. § 1254(1) and will address three important questions. The first is whether a jury’s eleven-to-one recommendation of a life sentence weighs heavily in favor of a finding of prejudice under Strickland v. Washington, 466 U.S. 668 (1984). It has been well established since Strickland that a sentence “only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696. The second is whether a single raw IQ score (as opposed to a score range) above 70 — regardless of when the IQ test producing that score was administered — is an 1 The 90-day deadline to file the petition falls on Sunday, November 5, 2023. Under Supreme Court Rule 30.1, that deadline shifts to Monday, November 6, 2023. independently sufficient basis to deny a capital defendant’s claim under Atkins v. Virginia, 536 U.S. 304 (2002). The third is related to the second: whether a capital defendant must prove below-average intellectual and adaptive functioning before age eighteen, at the time of the offense, and at the time he challenges his execution. An extension of time is appropriate in this case for two principal reasons: First, Mr. Ferguson suffered a severe cardiac event on August 12. This has complicated his situation and his ability to participate in the preparation of the petition. Second, lead counsel for Mr. Ferguson in this Court has numerous litigation deadlines in the weeks leading up to and immediately following the current deadline. Linda Coberly is counsel of record for the petitioner in Macquarie Infrastructure, et al. v. Moab Partners, et al., No. 22-1165, in which certiorari was recently granted, making a merits brief due in this Court on November 13. She is also lead appellate and motions counsel for a trial set to begin in the Northern District of Illinois on November 6 (Jn re Ethiopian Airlines Flight ET 302 Crash, No. 1:19-cv-02170) and will be involved in trial preparation in the weeks preceding that date. In addition, she is lead counsel in an appeal in consolidated product liability litigation in the Ilinois appellate court (Jupiter, et al., v. Mead Johnson & Co., et al., No. 5-23-0248 (5th Dist.)) and will be filing a merits brief in that matter on October 13. Finally, Ms. Coberly is counsel of record for the respondent in U.S. Soccer Federation, et al. v. Relevent Sports, LLC, No. 23-120, with an opposition to a petition for certiorari due in this Court on October 10. For the above reasons, Petitioner respectfully requests that the time to file the petition for a writ of certiorari be extended 60 days, up to and including January 5, 2024. Respectfully submitted. By: /s/ Linda T. Coberly Linda T. Coberly Counsel of Record Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601 (708) 752-2417 Amanda L. Groves Winston & Strawn LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 615-1851 agroves@winston.com Brenton L. Thompson Emily 8. Pendley Burr & FORMAN LLP 420 North 20th Street Suite 3400 Bur