Gore v. Crews

• Decision Date: 27 June 2013
• Docket Number: No. 13–12834.,13–12834.
• Citation: 720 F.3d 811
• Parties: Marshall Lee GORE, Petitioner–Appellant, v. Michael D. CREWS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

720 F.3d 811

Marshall Lee GORE, Petitioner–Appellant,

v.Michael D. CREWS, Respondent–Appellee.

No. 13–12834.

United States Court of Appeals, Eleventh Circuit.

June 27, 2013.

Todd Gerald Scher, Law Office of Todd G. Scher, PL, Dania Beach, FL, for Petitioner–Appellant.

Sandra Jaggard, Atty. Gen.'s Office, Miami, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

Marshall Lee Gore was convicted and sentenced to death in Florida state court for the first-degree murder and armed robbery of Robyn Novick. After his convictions and capital sentence were affirmed on direct appeal in 2001, see Gore v. State, 784 So.2d 418 (Fla.2001), Gore unsuccessfully pursued post-conviction relief in both state and federal court on a host of claims, including a claim that he is mentally incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The state and federal courts rejected each of his claims for collateral relief and dismissed his Ford claim as premature because he was not then subject to an active death warrant. Gore v. Sec'y, Fla. Dep't of Corr., No. 1:06–cv–22736 (S.D.Fla. Mar. 16, 2012); Gore v. State, 24 So.3d 1 (Fla.2009).

That changed on May 13, 2013, when the Governor of Florida signed Gore's death warrant and scheduled his execution for Monday, June 24, 2013. See Stewart v. Martinez–Villareal, 523 U.S. 637, 644–45, 118 S.Ct. 1618, 1622, 140 L.Ed.2d 849 (1998) (noting that a Ford claim does not become ripe until an inmate's execution is imminent). Five days later, Gore's state-appointed collateral counsel, Steven Hammer, notified the Governor that he had reason to believe that Gore was mentally incompetent to be executed. Counsel also filed in the state circuit court a notice of a potential conflict of interest, which expressed a similar belief that Gore may be incompetent to be executed. Hammer indicated that, during a recent conversation with his client, Gore had behaved irrationally, refused to sign a release for his medical records, “made numerous statements about his distrust of counsel” and his belief that counsel was “engaged in a conspiracy to get [him] killed,” and made unspecified statements about his case and imminent execution that Hammer characterized as “contradictory,” “bizarre,” and “irreconcilably irrational.”

On May 22, 2013, the Governor, as required by Fla. Stat. § 922.07, appointed a commission of three psychiatrists to evaluate Gore's mental competence to be executed and granted a temporary stay of execution pending receipt of the commission's report. The commission members conducted a three-hour clinical interview with Gore on May 28, 2013, administered several neuropsychiatric tests, reviewed his mental health and correctional records from 1990 onward, and interviewed two corrections officers about his recent behavior. During the evaluation, Gore told the commission members that there was a vast conspiracy among state officials, including the Governor of Florida, to harvest the organs of condemned prisoners for financial gain and for the benefit of elite members of society. Gore said that he believed that a state senator was waiting to obtain Gore's eyeballs for his blind son. Based on their evaluation, including the results of the neuropsychiatric tests, the commission members unanimously dismissed Gore's assertions as a patent “fabrication designed to mislead the panel and avoid responsibility for his past actions” and concluded that he has “no current mental illness,” was “feigning psychopathology to avoid the death penalty,” and “understands the nature and effect of the death penalty and why it was imposed on him.”

After receiving the psychiatric commission's report, the Governor issued a formal executive order on May 30, 2013, finding Gore mentally competent to be executed, lifting the temporary stay of execution, and reinstating the original execution date of June 24, 2013. Although Gore's Ford claim had fully ripened, Hammer, his state-appointed counsel, did not seek judicial review of the Governor's competency determination under Florida Rule of Criminal Procedure 3.811, which creates a specific state mechanism for prisoners to challenge their competency to be executed. SeeFla. R.Crim. P. 3.811(d) ( “On determination of the Governor of Florida, subsequent to the signing of a death warrant ..., that the prisoner is sane to be executed, counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner's insanity to be executed.”).

Gore's federally appointed attorney, Todd Scher, waited until 7:00 p.m. on the Friday, June 21, before the scheduled execution on the following Monday, June 24, to file a federal habeas petition under 28 U.S.C. § 2254 raising a Ford claim. He also filed an emergency motion for a stay of execution. Gore, through his counsel Scher, acknowledged that he had not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) by first presenting his Ford claim to the state courts, but he contended that his failure to exhaust his state remedies was excusable under the Supreme Court's decision in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), because his attorney in the state proceedings had rendered ineffective assistance in failing to raise the claim in a Rule 3.811 motion.¹

The district court dismissed Gore's habeas petition without prejudice for failure to exhaust the Ford claim in state court and, in so doing, the court rejected Gore's contention that the lack of exhaustion could be excused under Martinez. The court concluded that the rule announced in Martinez did not create an exception to § 2254(b)'s exhaustion requirement, but instead was explicitly limited to claims of ineffective assistance of trial counsel that are procedurally defaulted in state court due to the ineffectiveness of state post-conviction counsel. Because Gore's Ford claim, though unexhausted in state court, was not procedurally barred under state law and was not a claim of ineffective assistance of trial counsel, the district court found that Martinez was inapplicable and that the Ford claim was due to be dismissed for lack of exhaustion. The district court also denied Gore's motion for a stay of execution. It did, however, grant Gore a certificate of appealability on the sole issue of: “Whether Martinez v. Ryan created an exemption to the exhaustion requirement of 28 U.S.C. [§] 2254(b) when counsel is ineffective for failing to assert a Ford claim in state court.” In granting a COA, the court found that Gore had made a “substantial showing of the denial of a constitutional right” and that reasonable jurists could debate whether he was entitled to pursue an unexhausted Ford claim in federal court pursuant to Martinez.

On the same day as the scheduled execution, June 24, Gore filed an emergency motion for a stay of execution with this Court. The State filed with us a motion to vacate the district court's COA as improvidently granted on the ground that Martinez clearly does not apply to unexhaustedFord claims. Under Eleventh Circuit Rule 22–4(a)(7), we granted a temporary stay of execution in order to prevent Gore's death mooting the appeal and directed the parties to brief a number of issues, including the sole issue upon which the district court's COA was granted. See 11th Cir. R. 22–4(a)(7) (“If a certificate of appealability is granted by the district court or this court, the panel shall grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal ....”). We have received and considered the parties' briefs and held oral argument on the issues specified in our earlier order.

I. Gore's Motion for a Stay of Execution

A stay of execution is an equitable remedy that “is not available as a matter of right.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006). To warrant a stay of execution, an inmate must demonstrate 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); see also Hill, 547 U.S. at 584, 126 S.Ct. at 2104 (holding that inmate seeking a stay of execution “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits”). Moreover, under Eleventh Circuit Rule 22–4(a)(7), we may deny a temporary stay of execution if, after a hearing, we find that the merits of the appeal are “frivolous, or [are] lacking any factual basis in the record, or [are] squarely foreclosed by statute, rule, or authoritative court decision.” 11th Cir. R. 22–4(a)(7)(i).

Gore has not shown a substantial or significant likelihood of success on the merits of the sole procedural issue identified in the district court's COA. He cannot make that showing because the merits of that issue are “squarely foreclosed” by the exhaustion requirement set forth in 28 U.S.C. § 2254. Under § 2254(b), a federal court may not grant a writ of habeas corpus on a claim unless the petitioner has exhausted all available state court remedies regarding that claim. 28 U.S.C. § 2254(b). A petitioner cannot satisfy the exhaustion requirement if, with certain exceptions that are not applicable in this case, he has failed to avail himself of “any available procedure” by which he has the right to raise his claim in state court. Id. § 2254(c). If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion. See Rose v. Lundy, 455 U.S. 509, 519–20, 102 S.Ct. 1198, 1203–05, 71 L.Ed.2d 379 (1982); Ward v. Hall, 592...