Bowles v. Desantis, 19-12929-P

Decision Date19 August 2019
Docket NumberNo. 19-12929-P,19-12929-P
Citation934 F.3d 1230
Parties Gary Ray BOWLES, Plaintiff-Appellant, v. Ron DESANTIS, Governor, in his official capacity, Jimmy Patronis, Chief Financial Officer, in his official capacity, Ashley Moody, Attorney General, in her official capacity, Nikki Fried, Commissioner of Agriculture, in her official capacity, Julia McCall, Coordinator, Office of Executive Clemency, in her official capacity, Melinda Coonrod, Chairman, Commissioner, Florida Commission on Offender Review, in her official capacity, Susan Michelle Whitworth, Commission Investigator Supervisor, Florida Commission on Offender Review, in her official capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Terri L. Backhus, Sean Talmage Gunn, Federal Public Defender's Office, TALLAHASSEE, FL, for Plaintiff - Appellant.

Charmaine Mary Millsaps, Attorney General's Office, TALLAHASSEE, FL, for Defendants - Appellees.

Before ED CARNES, Chief Judge, TJOFLAT, and MARTIN, Circuit Judges.

ED CARNES, Chief Judge:

Gary Ray Bowles is a Florida death row inmate scheduled to be executed on August 22, 2019, at 6:00 p.m. He has moved for a stay of execution so that we can consider more fully the district court’s denial of his motion for a stay of execution.

Bowles sought a stay in the district court in order to pursue his 42 U.S.C. § 1983 claim that the State of Florida interfered with what he views as his right under 18 U.S.C. § 3599 to have attorneys in the Capital Habeas Unit (CHU) of the Federal Public Defender’s Office represent him before the Florida Clemency Commission and Board. Those attorneys had represented Bowles in his federal habeas proceedings and had served as co-counsel, along with state-appointed counsel, in his state collateral proceedings. The Clemency Commission appointed another attorney to represent Bowles in the clemency proceedings, and that attorney appeared in person at the clemency interview before the Commission. Even though the CHU attorneys were not allowed to appear in person at the interview, they were repeatedly offered opportunities to submit any written materials they desired in support of clemency. And they did submit a joint letter from them, state-appointed collateral counsel, and state-appointed clemency counsel urging that clemency be granted. After holding the interview and considering all of the written materials the Commission submitted a report to the Board, which made the final decision to deny clemency.

The district court denied the motion for a stay of execution because it determined that § 3599 does not create a right that is enforceable against the states. We agree. We also conclude that Bowles has not shown that he is otherwise entitled to a stay of execution from this Court.

A. Bowles’ Crimes And Procedural History

In November of 1994 Bowles murdered a man named Walter Hinton by dropping a 40-pound concrete block on his head while Hinton was asleep. See Bowles v. State, 716 So. 2d 769, 770 (Fla. 1998) ( Bowles I ); Bowles v. State, 804 So. 2d 1173, 1177 (Fla. 2001) ( Bowles II ). After he was arrested Bowles confessed to the crime. Bowles I, 716 So. 2d at 770. He explained how Hinton had given him a place to stay in his mobile home in Jacksonville, Florida, and how on the night of the murder the two men had been drinking and smoking marijuana. Id. How after Hinton went to sleep Bowles went outside and got the cement stepping stone, brought it inside the mobile home, placed it on a table and "thought for a few moments." Bowles II, 804 So. 2d at 1177 (quotation marks omitted). How he then quietly entered Hinton’s bedroom and dropped the stone on Hinton’s face, fracturing his face from cheek to jaw. Bowles I, 716 So. 2d at 770 ; Bowles II, 804 So. 2d at 1181. How at that point, because Hinton was still alive, he "began to manually strangle [Hinton]," and put a rag in his mouth to smother him to death. Bowles I, 716 So. 2d at 770. The only thing Bowles left out of his confession "was how he [also] stuffed toilet paper" down Hinton’s throat. Bowles II, 804 So. 2d at 1181.

After Hinton was dead, Bowles went out. Id. He drove to get some liquor, then picked up a woman on the beach and brought her back to Hinton’s home. Id. He made sure to keep her away from the room where Hinton’s dead body lay covered in sheets. Id. Bowles was arrested approximately six days later, after having been "seen driving Hinton’s car and wearing Hinton’s watch." Id. at 1180–81.

Bowles pleaded guilty to first degree murder and a jury recommended that he be sentenced to death, which the trial court did. Id. at 1175. The Florida Supreme Court affirmed the conviction but vacated the death sentence because of an evidentiary error at the original sentence proceeding. Bowles I, 716 So. 2d at 773. On remand, a jury unanimously recommended death and the trial court again imposed that sentence. Bowles II, 804 So. 2d at 1175. This time the Florida Supreme Court affirmed. Id. at 1184.

Bowles’ killing of Hinton was no isolated incident, and the sentencing court "assigned tremendous weight to the prior violent capital felony convictions." Id. at 1175. In 1982 Bowles had "brutally attacked" his girlfriend, leaving her with "contusions to her head, face, neck, and chest, as well as bites to her breasts ... [and] internal injuries including lacerations to her vagina and rectum." Id. For that Bowles was convicted of sexual battery and aggravated sexual battery. Id.

Bowles was released from prison in April of 1990. In July 1991, just over a year after getting out, he was convicted of robbery for pushing a woman down and stealing her purse. Id. at 1175–76. For that crime he was sentenced to four years in prison followed by six years of probation. Id. at 1175. While out on probation in 1994, Bowles committed three murders.

The first murder was of John Roberts on March 14, 1994.1 Roberts made the same mistake that Hinton would later make. He was kind to Bowles, letting him move into his home. Bowles II, 804 So. 2d at 1176. A few days after doing so: "Bowles approached [Roberts] from behind and hit him with a lamp. A struggle ensued during which Bowles strangled [Roberts] and stuffed a rag into his mouth. Bowles then emptied the victim’s pockets, took his credit cards, money, keys, and wallet." Id.

Two months later another person, Albert Morris, fell prey to Bowles. Like Roberts before him (and Hinton after him), Morris "befriended Bowles and allowed Bowles to stay at his home." Id. at 1176. Bowles and Morris "got into an argument and a fight outside of a bar." Id. Bowles hit him "over the head with a candy dish, and a struggle ensued, resulting in [Morris] being beaten and shot. Bowles also strangled [Morris] and tied a towel over his mouth." Id. 2

Then in November of that same year Bowles murdered Walter Hinton. We have already discussed the details of that brutal crime. See supra at 1233–34. In addition to murdering Hinton, Roberts, and Morris, Bowles apparently murdered three other victims.3

After the Florida Supreme Court affirmed Bowles’ conviction and death sentence for murdering Hinton, he unsuccessfully sought post-conviction relief in state post-conviction proceedings, Bowles v. State, 979 So. 2d 182 (Fla. 2008), and in federal habeas proceedings, Bowles v. Sec’y for Dep’t of Corr., 608 F.3d 1313 (11th Cir. 2010). Last year the Florida Supreme Court denied another motion for post-conviction relief; in that motion Bowles claimed that he was entitled to have his death sentence vacated based on the Supreme Court’s decision in Hurst v. Florida, ––– U.S. ––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016). See Bowles v. State, 235 So. 3d 292, 292–93 (Fla. 2018).

Bowles filed another successive post-conviction motion in Florida state court on October 19, 2017, raising for the first time an intellectual disability claim. The Florida Supreme Court affirmed the denial of that motion on August 13, 2019. Bowles v. State, Nos. SC19-1184 & SC19-1264, 2019 WL 3789971, at *2–3, 4 (Fla. Aug. 13, 2019). It also denied Bowles’ habeas petition in which he claimed that the death penalty is cruel and unusual punishment barred by the Eighth Amendment of the United States Constitution. Id. at *3–4.

B. Federal Appointment Of Counsel

In September 2017 the federal district court that had denied Bowles’ § 2254 petition in December 2009 granted his motion to appoint under 18 U.S.C. § 3599(a)(2) CHU attorneys to serve as Bowles’ new federal habeas counsel. See Order, Bowles v. Sec’y, Fla. Dep’t of Corr., No. 3:08-cv-791 (M.D. Fla. Sept. 27, 2017), ECF No. 33. The court also granted Bowles’ motion to permit the CHU attorneys to represent him as co-counsel in Florida state court in connection with Bowles’ motion for post-conviction relief based on intellectual disability. See Order, Bowles v. Sec’y, Fla. Dep’t of Corr., No. 3:08-cv-791 (M.D. Fla. Dec. 6, 2017), ECF No. 36. The CHU attorneys served as co-counsel with state-appointed counsel in those proceedings. See Bowles, 2019 WL 3789971.4

C. State Clemency Proceedings

While Bowles’ intellectual disability claim was proceeding in the Florida courts, the Governor of Florida, through the Florida Commission on Offender Review, began clemency proceedings for Bowles. Under Florida law the clemency power is vested in the executive branch, and exercise of that power is purely discretionary. See Fla. Const. Art. IV, § 8 (a).

The Governor and members of his cabinet make up the Clemency Board, which is responsible for promulgating the "Rules of Executive Clemency." One of those rules, Rule 15, governs the "Commutation of Death Sentences." Under that Rule, the Florida Commission on Offender Review (which is separate from the Board) "may conduct a thorough and detailed investigation into all factors relevant to the issue of clemency and provide a final report to the Clemency Board." Fla. R. Clemency 15(B). That investigation is to include an interview of the inmate by the Commission....

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12 cases
  • In re Bowles, 19-13149-P
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Agosto 2019
    ...Bowles' crimes in our order denying his motion for a stay of execution based on his § 1983 claim. See Bowles v. Desantis, No. 19-12929-P, 934 F.3d 1230, 1233–36, 2019 WL 3886503, at *1–3 (11th Cir. Aug. 19, 2019).A. Sentencing, Re-Sentencing, And Bowles' Direct Appeals In November of 1994 B......
  • Reeves v. Dunn
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    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 7 Enero 2022
    ...that further delays his execution "impose[s] a cost on the State and the family and friends of the murder victim," Bowles v. DeSantis , 934 F.3d 1230, 1248 (11th Cir. 2019), counsel 580 F.Supp.3d 1079 for the ADOC represented to this Court that a final nitrogen hypoxia protocol is only week......
  • Smith v. Dunn
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 9 Febrero 2021
    ...enforcing its criminal judgments without undue interference from the federal courts." Hill, 547 U.S. at 584; see also Bowles v. DeSantis, 934 F.3d 1230, 1247-48 (11th Cir. 2019) (collecting cases which discuss the importance of the State's interest in enforcing judgments). Smith has been un......
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    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 17 Octubre 2021
    ...further delays Smith's execution “impose[s] a cost on the State and the family and friends of the murder victim.” Bowles v. DeSantis, 934 F.3d 1230, 1248 (11th Cir. 2019). While Smith is right that the “public has an interest in persons aggrieved by ADA violations receiving judicial review,......
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