Bowles v. Sec'y, 19-13150-P

• Citation: 935 F.3d 1176
• Decision Date: 21 August 2019
• Docket Number: No. 19-13150-P,19-13150-P
• Parties: Gary Ray BOWLES, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

935 F.3d 1176

Gary Ray BOWLES, Petitioner-Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 19-13150-P

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 21, 2019

Terri L. Backhus, Sean Talmage Gunn, Kelsey Peregoy, Federal Public Defender's Office, Tallahassee, FL, for Petitioner-Appellant.

Charmaine Mary Millsaps, Jennifer A. Donahue, Attorney General's Office, Capital Collateral, Tallahassee, FL, for Respondents-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. On August 14, 2019 he filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He claimed that the Eighth Amendment prohibits the State from executing him because he is intellectually disabled. The district court dismissed the petition for lack of jurisdiction because it is Bowles’ second § 2254 petition and he did not obtain this Court’s authorization before filing it. On August 19, 2019, four days before his scheduled execution, Bowles appealed the district court’s order and filed an emergency motion for a stay of execution in this Court. We deny the motion for a stay of execution pending appeal.

I. PROCEDURAL HISTORY

We have set out the facts of Bowles’ crimes in our order denying his motion for a stay of execution based on his § 1983 case. See Bowles v. DeSantis, No. 19-12929-P, slip op. at 3-7, ––– F.3d ––––, 2019 WL 3886503 (11th Cir. Aug. 19, 2019).

A. Sentencing, Re-Sentencing, And Bowles’ Direct Appeals

In November of 1994 Bowles murdered Walter Hinton by dropping a 40-pound concrete block on his head while Hinton was sleeping. Bowles v. State, 716 So. 2d 769, 770 (Fla. 1998) (per curiam). Bowles pleaded guilty to the crime and was sentenced to death. Id. The Florida Supreme Court affirmed the conviction but vacated the death sentence because of an evidentiary error at the original sentence proceeding. Id. at 773. On remand, a jury unanimously recommended death and the trial court again imposed that sentence. Bowles v. State, 804 So. 2d 1173, 1175 (Fla. 2001) (per curiam). This time the Florida Supreme Court affirmed the sentence. Id. at 1184. The United States Supreme Court denied certiorari on June 17, 2002, and Bowles’ conviction and death sentence became final. See Bowles v. Florida, 536 U.S. 930, 122 S.Ct. 2603, 153 L.Ed.2d 790 (2002) (mem).

B. First State Postconviction Motion

After the conclusion of his direct appeals, Bowles sought relief in state postconviction proceedings under Rule 3.851 of the Florida Rules of Criminal Procedure. See Bowles v. State, 979 So. 2d 182, 184 (Fla. 2008) (per curiam). He filed his first collateral motion on August 29, 2003, asserting claims of ineffective assistance of counsel, improper jury instructions, and the unconstitutionality of Florida’s death penalty scheme. Id. at 186 & n.2. In one of the claims he said that his trial counsel were ineffective because they failed to present an expert witness at his sentence hearing to discuss various mitigating factors related to his mental health. See id. at 186–87. He admitted that his counsel had retained a psychologist, Dr. Elizabeth McMahon, to evaluate him, but argued that the lawyers were ineffective because they did not have her testify. Id. at 187.

The postconviction trial court held an evidentiary hearing and admitted the deposition testimony of Dr. McMahon. Id. She stated that Bowles was "probably not working with what we would say is an intact brain" and that he had "some very mild dysfunction." Id. But she also said that Bowles had told her of three additional murders he had committed. Id. She explained that Bowles’ trial counsel made the strategic decision not to have her testify so that she would not be asked about those additional murders on cross-examination. Id. The postconviction court denied Bowles’ motion, and the Florida Supreme Court affirmed. Id. at 187–89, 94.

C. First Federal Habeas Petition

Bowles filed his first petition for habeas corpus relief under 28 U.S.C. § 2254 in federal district court on August 8, 2008. See Petition, Bowles v. Sec’y, Dep’t of Corr, 3:08-cv-791 (M.D. Fla. Aug. 8, 2008), ECF No. 1. He raised ten grounds for relief. Id. None of them involved an intellectual disability claim based on the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The district court denied the petition but granted Bowles a certificate of appealability on one issue based on the State’s use of peremptory challenges at the resentencing trial. See Order, Bowles v. Sec’y, Dep’t of Corr, 3:08-cv-791 (M.D. Fla. Dec. 23, 2009), ECF No. 18. This Court affirmed the district court’s denial of relief, see Bowles v. Sec’y, Dep’t of Corr, 608 F.3d 1313, 1317 (11th Cir. 2010), and the United States Supreme Court denied Bowles’ petition for a writ of certiorari, see Bowles v. McNeil, 562 U.S. 1068, 131 S.Ct. 652, 178 L.Ed.2d 489 (2010) (mem).

D. Second and Third State Postconviction Motions

In March 2013 Bowles brought a successive Rule 3.851 postconviction motion in Florida state court, raising two claims of ineffective assistance of appellate counsel based on the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The postconviction trial court denied that motion in July 2013 and Bowles did not appeal. See Order Denying Defendant’s Successive Motion to Vacate Judgment of Conviction and Sentence, State v. Bowles, No. 16-1994-CF-012188-AXXX-MA, (Fla. 4th Cir. Ct. Jul. 17, 2013), Doc. D1573.

About four years later, on June 14, 2017, Bowles filed another successive motion for postconviction relief in Florida state court. This one was based on the Supreme Court’s decision in Hurst v. Florida, ––– U.S. ––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016). The state trial court denied that motion and the Florida Supreme Court affirmed. See Bowles v. State, 235 So. 3d 292, 292–93 (Fla. 2018) (per curiam), cert. denied, Bowles v. Florida, ––– U.S. ––––, 139 S. Ct. 157, 202 L.Ed.2d 96 (2018) (mem).

E. Fourth State Postconviction Motion

Bowles filed his fourth motion for postconviction relief in Florida state court on October 19, 2017. That motion raised a single claim of intellectual disability based on the Supreme Court’s decisions in Moore v. Texas, ––– U.S. ––––, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Bowles amended his intellectual disability claim on July 1, 2019, after the Governor denied his clemency application and set an execution date for August 22, a little more than seven weeks later. In his amended motion Bowles asserted that he "is now, and has always been, an intellectually disabled person." As a result, he claimed, his death sentence must be vacated because the Supreme Court in Atkins had created a "categorical rule" making intellectually disabled offenders "ineligible for the death penalty."

The Florida postconviction trial court summarily denied the motion as untimely and the Florida Supreme Court affirmed. See Bowles v. State, Nos. SC19-1184 & SC19-1264, 2019 WL 3789971, at *1–3 (Fla. Aug. 13, 2019). The Florida Supreme Court also denied Bowles’ habeas claim that the death penalty is cruel and unusual punishment and is barred by the Eighth Amendment of the United States Constitution. Id. at *3–4. Bowles then filed a petition for a writ of certiorari in the United States Supreme Court and asked that Court for a stay of execution. See Bowles v. State, Nos. 19-5617 & 19A183 (U.S. Aug. 16, 2019).

F. Second Federal § 2254 Petition And Motion To Stay

On August 14, 2019, Bowles filed his second 28 U.S.C. § 2254 petition in federal district court, this time raising his claim of intellectual disability. He also filed a motion for a stay of execution. The district court dismissed the petition for lack of subject matter jurisdiction. It concluded that because Bowles had already filed a § 2254 petition in 2008, he could not file another one without first obtaining this Court’s authorization, which he had not done. The court also denied Bowles’ motion for a stay of execution. Bowles appealed the district court’s dismissal of his habeas petition and has moved this Court for an emergency stay of execution "to allow for full and fair consideration" of his appeal.

II. DISCUSSION

We may grant a stay of execution only if Bowles can establish that: "(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest." Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011). The "most important question concerning a stay" is whether Bowles can show a substantial likelihood of success on the merits. Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016). For the reasons articulated in the district court’s well-reasoned order, he cannot.

A. The District Court’s Dismissal Of Bowles’ § 2254 Petition

The district court concluded that Bowles’ present § 2254 petition is "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and dismissed it for lack of jurisdiction because he did not obtain this Court’s authorization before filing it. A jurisdictional ruling on a petition for habeas corpus is reviewed de novo on the merits. See Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc) ("We review de novo whether a petition for a writ of habeas corpus is second or successive.").¹

The district court was right to dismiss Bowles’ § 2254 petition for...