Walter Hinton met Gary Ray Bowles at Jacksonville Beach in the fall of 1994 and let him move into his mobile home in exchange for help bringing some belongings down from Georgia. One night in November, after the two of them had driven a friend to the train station, drinking beer and smoking marijuana along the way, Hinton went to bed. Bowles told the police later that something inside him snapped. He went outside, came back with a concrete block, set it on a table and thought for a few minutes, then carried it into Hinton's room and dropped it on his head. Hinton woke and fell from the bed, and Bowles strangled him and stuffed toilet paper into his throat and a rag into his mouth. He was arrested on November 22, 1994, and confessed that day.
Hinton was the last of six men killed along the East Coast that year. The first, John Roberts, was killed in Daytona Beach in March after he too took Bowles into his home; Albert Morris followed two months later in Nassau County, and in between there were deaths in Rockville, Maryland, Savannah and Atlanta. The pattern the Eleventh Circuit describes is the one the press gave him a nickname for, the I-95 Killer: a man who offered friendship, was given a bed, and killed the man who gave it to him. Bowles pleaded guilty to Hinton's murder and was sentenced to death. The Florida Supreme Court vacated that sentence in 1998, because prosecutors had built the penalty phase around his supposed hatred of gay men, and a new jury recommended death unanimously in 1999.
The seven rulings here pick up from the resentencing. The Florida Supreme Court affirmed the new death sentence on October 11, 2001, in an opinion that sets out the facts and the five aggravating factors, including his convictions for the Roberts and Morris killings and a 1982 sexual battery. It denied post-conviction relief in 2008, the Eleventh Circuit rejected his federal habeas petition in 2010 in an opinion by Judge Carnes, and a short 2018 order refused relief under the Hurst decisions on jury sentencing. The last three are from the week of August 19, 2019, when his execution was set for six in the evening on the 22nd: a stay denied while the court considered a suit over his federal lawyers' role in the clemency process, a stay denied on the claim that he was intellectually disabled and could not be executed, and a refusal to let him file a second federal petition.
The United States Supreme Court turned down his last appeal on the evening of August 22. Bowles was executed at Florida State Prison in Starke and pronounced dead at 10:58 p.m. He said nothing on the gurney. A handwritten statement released afterward said he was sorry for the pain he had caused and ended, "You don't wake up one day and decide to become a serial killer."
The opinions record the question of intellectual disability only as a matter of timing. Bowles first raised it in state court in October 2017, and the Eleventh Circuit's August 2019 rulings turn on whether he had come too late and without permission for a second federal petition, not on whether he was in fact disabled. No court in this file decided that question on its merits, and the page does not either.
The facts of the murder come from the 1998 opinion, which the 2001 court quotes, and they rest on Bowles's own oral and written confessions; the Florida Supreme Court is summarizing a record, not making a new finding. The 2010 Eleventh Circuit opinion retells the same facts in plainer language and says Hinton "made the mistake" of letting him in, which is the judge's phrasing. The 1982 victim, whom one opinion describes as his girlfriend, is never named in these rulings, and we have not named her.
These are official reports and public domain, and they needed no redaction: the victims are dead, and the living people in the file are lawyers, judges and police officers. The 2019 opinions were issued in the Federal Reporter's electronic form, so they carry numbered footnote references in the text without the notes attached; where a stray number such as "31 Foster Children" appears before a case name, it is a footnote marker the capture did not separate from the words.
Gary Ray BOWLES, Appellant, v. STATE of Florida, Appellee.
No. SC96732.
Supreme Court of Florida.
Oct. 11, 2001.
Rehearing Denied Jan. 10, 2002.
Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal an order of the trial court imposing a death sentence upon Gary Ray Bowles on resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the death sentence.
Our prior opinion sets forth the facts of this crime:
Appellant [Bowles] met Walter Hinton, the victim in this case, at Jacksonville Beach in late October or early November 1994. Appellant agreed to help Hinton move some personal items from Georgia to Hinton’s mobile home in Jacksonville. In return, Hinton allowed appellant to live with him at his mobile home.
On November 22, 1994, police arrested appellant for the murder of Walter Hinton. During subsequent interrogation, appellant gave both oral and written confessions regarding Hinton’s murder. Appellant stated that upon returning home from going with Hinton to take a friend [Richard Smith] to the train station, Hinton went to sleep and appellant kept drinking. Appellant, Hinton, and the friend had drunk beer and smoked marijuana earlier. At some point in the evening, appellant stated that something inside “snapped.” He went outside and picked up a concrete block, brought it inside the mobile home, and set it on a table. After thinking for a few minutes, appellant picked up the block, went into Hinton’s room, and dropped the brick on Hinton’s head. The force of the blow caused a facial fracture that extended from Hinton’s right cheek to his jaw. Hinton, now conscious, fell from the bed and appellant began to manually strangle him. Appellant then stuffed toilet paper into Hinton’s throat and placed a rag into his mouth. The medical examiner testified that the cause of death was asphyxia.
Bowles v. State, 716 So.2d 769, 770 (Fla.1998).
The grand jury indicted Bowles in December of 1994 on charges of first-degree murder and robbery. Bowles pled guilty to premeditated first-degree murder. The penalty phase proceeded, and following the jury’s ten-to-two recommendation for death, the trial court sentenced Bowles to death. On appeal, this Court affirmed the conviction but vacated the death sentence and remanded for resentencing. See Bowles, 716 So.2d at 769. We found that the trial court erred in allowing the State to introduce in the penalty phase evidence of Bowles’ alleged hatred of homosexual men. See id. at 773. We concluded that the presentation of such evidence was not harmless because it became a prevalent feature of the penalty phase, thereby placing in doubt the reliability of the sentencing proceeding. See id.
On remand, the resentencing jury unanimously recommended death. In imposing the death penalty the trial court found the following five aggravating circumstances: (1) Bowles was convicted of two other capital felonies and two other violent felonies; (2) Bowles was on felony probation in 1994 when he committed the murder as a result of a July 18, 1991, conviction and sentence to four years in prison followed by six years probation for a robbery he committed in Volusia County; (3) the murder was committed during a robbery or an attempted robbery, and the murder was committed for pecuniary gain (merged into one factor); (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder was cold, calculated, and premeditated (CCP).
The trial court assigned tremendous weight to the prior violent capital felony convictions. On September 27, 1982, in Hillsborough County, Bowles was convicted of sexual battery and aggravated sexual battery. These offenses involved an extremely high degree of violence. The victim, Bowles’ girlfriend at the time, was brutally attacked, suffering contusions to her head, face, neck, and chest, as well as bites to her breasts. The victim also suffered internal injuries including lacerations to her vagina and rectum. On July 18, 1991, Bowles was convicted in Volusia County of unarmed robbery. In this offense, Bowles pushed a woman down and stole her purse. On August 6, 1997, in Volusia County, Bowles was convicted of first-degree murder and armed burglary of a dwelling with a battery. In this crime, a few days after moving into the victim’s home, Bowles approached the victim from behind and hit him with a lamp. A struggle ensued during which Bowles strangled the victim and stuffed a rag into his mouth. Bowles then emptied the victim’s pockets, took his credit cards, money, keys, and wallet. On October 10, 1996, in Nassau County, Bowles was convicted of first-degree murder. The victim befriended Bowles and allowed Bowles to stay at his home, Bowles and the victim got into an argument and a fight outside of a bar. Bowles hit the victim over the head with a candy dish, and a struggle ensued, resulting in the victim being beaten and shot. Bowles also strangled the victim and tied a towel over his mouth.
The trial court assigned great weight to the HAC and CCP aggravators, significant weight to the robbery-pecuniary gain ag-gravator, and some weight to the fact that Bowles was on probation for robbery at the time of this murder.
The trial court rejected the two statutory mitigators advanced by Bowles: (1) extreme emotional disturbance at the time of the murder and (2) substantially diminished capacity to appreciate the criminality of his acts at the time of the murder. The trial court found and assigned weight to the following nonstatutory mitigating factors: significant weight to evidence that Bowles had an abusive childhood; some weight to Bowles’ history of alcoholism and absence of a father figure; little weight to Bowles’ lack of education; little weight to Bowles’ guilty plea and cooperation with police in this and other cases; little weight to Bowles’ use of intoxicants at the time of the murder; and no weight to the circumstances which caused Bowles to leave home or his circumstances after he left home. The trial court concluded that the aggravating circumstances overwhelmingly outweighed the mitigating circumstances.
On appeal to this Court, Bowles raises twelve issues. Bowles claims that: (1) the trial court erred in allowing the use of peremptory challenges to remove prospective jurors who were in favor of the death penalty but would only impose it under appropriate circumstances; (2) the trial court erred in allowing the State to introduce in aggravation for the first time at this resentencing hearing evidence of two prior similar murders for which the defendant was convicted after the first sentencing hearing; (3) the trial court erred in finding HAC; (4) the trial court erred in rejecting the proposed HAC jury instruction; (5) the trial court’s CCP instruction to the jury was unconstitutionally vague; (6) the trial court erred in finding the robbery-pecuniary gain aggravator; (7) the trial court erred by giving little weight or no weight to the nonstatutory miti-gators; (8) the trial court erred in rejecting the proposed victim impact evidence jury instruction; (9) the trial court erred by rejecting the two statutory mental miti-gators of extreme emotional disturbance at the time of the murder and substantially diminished capacity to appreciate the criminality of acts at the time of the murder; (10) the trial court erred in giving the standard jury instruction on mitigation instead of the requested specific nonstatuto-ry mitigation instructions; (11) the trial court erred in rejecting the requested jury instructions defining mitigation; and (12) the trial court committed reversible error in allowing impermissible hearsay.
We summarily reject Bowles’ claims that have been previously considered and rejected. Bowles’ first claim, that the use of peremptory challenges was improper, is without merit. We have previously stated that the Florida Constitution does not bar the State and the defense from peremptorily striking persons thought to be inclined against their respective interests. See San Martin v. State, 705 So.2d 1337, 1343 (Fla.1997). Bowles’ second claim, that the trial court erred in allowing the introduction of two prior murder convictions, is without merit, as we have previously held that a resentencing court may find aggra-vators not found in the original sentencing proceeding. See Preston v. State, 607 So.2d 404, 407-09 (Fla.1992). Bowles’ fourth claim, alleging that the proposed special HAC jury instruction which included an intent element was erroneously rejected, is without merit. See Guzman v. State, 721 So.2d 1155, 1160 (Fla.1998) (there is no necessary intent element to HAC aggravating circumstance). Bowles’ fifth claim, concerning the standard CCP jury instruction, is without merit as we have found that the standard CCP jury instruction is not unconstitutionally vague. See Donaldson v. State, 722 So.2d 177, 187 n. 12 (Fla.1998). Bowles’ eighth claim, concerning the victim impact evidence jury instruction, is without merit because the trial court properly instructed that, while the jury was allowed to hear victim impact evidence, it could not be considered as an aggravating circumstance in sentencing Bowles. This instruction comports with the requirements of Alston v. State, 723 So.2d 148, 160 (Fla.1998), and Windom v. State 656 So.2d 432, 438 (Fla.1995). Bowles’ tenth and eleventh claims are without merit, as we have repeatedly rejected the argument that a trial court errs in giving the standard jury instruction on mitigation. See Davis v. State, 698 So.2d 1182, 1192 (Fla.1997). We turn to issues three, six, seven, and twelve, which we now discuss in further detail.
I. ISSUES THREE AND SIX
In his third and sixth claims, Bowles contends that the trial court erred in finding certain aggravating circumstances. In reviewing the trial court’s finding of an aggravating circumstance, it is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt. This is the trial court’s job. See Willacy v. State, 696 So.2d 693, 695-96 (Fla.1997). Rather, this Court reviews the record to determine whether the trial court applied the correct rule of law for each applicable aggravator and, if so, whether such finding is supported by competent, substantial evidence. See id.
A. Issue Three
In his third claim,' Bowles argues that the trial court erred in finding the HAC aggravator because the victim could not have had foreknowledge of his impending death. The trial court stated in its sentencing order:
While Mr. Hinton [the victim] was sleeping, the Defendant [Bowles] went outside the mobile home and lifted from the ground a 40-pound cement stepping stone and brought it inside. He placed the stepping stone on a table in the living room area, sat down and thought for a few moments. He then entered Mr. Hinton’s bedroom and dropped the cement stepping stone on Mr. Hinton’s face. Mr. Hinton sustained a skull fracture across his cheek to the roots of his teeth. Despite the force of this blow, Mr. Hinton did not die nor lose complete consciousness. In an effort to save his life, Mr. Hinton struggled with the Defendant. The Medical Examiner observed on Mr. Hinton’s body five (5) broken ribs, abrasions to the front and back of his right forearm, and more abrasions on the outside of his left knee. These findings corroborate the Defendant’s statement that Mr. Hinton continued to struggle for his life after the Defendant dropped the fO-pound stone on his face.
The findings of the Medical Examiner also corroborate the Defendant’s statement that he then choked Mr. Hinton with his hands. Mr. Hinton had hemorrhaging on the right side of his neck. The helix bone, a “U” shaped bone found at the top of the neck, and the hyoid bone located underneath his Adam’s Apple were fractured. Toilet paper was stuffed down his throat and a rag was placed over the paper which protruded from his mouth. The Medical Examiner “logically assumed” that Mr. Hinton was strangled to death or to unconsciousness and these items were then stuffed down his throat blocking his airway and resulting in his death.
The Defendant argues in his Memorandum that although the intensity of the struggle was great and resulted in suffering by Mr. Hinton, there is no evidence that the Defendant intended to do anything but to kill by whatever means were at hand. He further argues that he did not set out to strangle, choke, or beat Mr. Hinton to death. Lastly, he argues that he was intoxicated, which he suggests negates the finding that he intended to cause pain.
The Court finds that Mr. Bowles was, as he argues, prepared to take the life of Walter Hinton by any means available. Although this Court cannot determine if Mr. Bowles enjoyed the suffering of Walter Hinton, he was certainly indifferent and determined to take his life. Since the Defendant could not have known with certainty whether crushing Walter Hinton’s face with a 40 pound stepping stone would take his life, he was prepared to inflict further suffering. This is just what he had been prepared to do only months earlier when he took the life of Mr. Roberts in Volusia County-
Finally, the fact that Mr. Hinton was likely unconscious when the toilet paper and rag were stuffed down his throat, does not bar a finding that the Defendant’s conduct was [conscienceless], pitiless heinous, atrocious and cruel. Without a struggle, the Defendant’s efforts to strangle Mr. Hinton would have, according to the medical examiner, taken at least 30 to 45 seconds before a loss of consciousness. With a struggle, Mr. Hinton would have endured the fright, pain and fear of being strangled for an even longer period.
State v. Bowles, No. 94-12188-CF, sentencing order at 5-7 (Fla. 4th Cir. Ct. order filed Sept. 7, 1999) (emphasis added).
In Rogers v. State, 783 So.2d 980, 994 (Fla.2001), we recently stated that:
In order for the HAC aggravating circumstance to apply, the murder must be conscienceless or pitiless and unnecessarily tortuous [sic] to the victim. A finding of HAC is appropriate only when a murder evinces extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.
(Citation omitted.) Strangulation of a conscious murder victim evinces that the victim suffered through the extreme anxiety of impending death as well as the perpetrator’s utter indifference to such torture. Accordingly, this Court has consistently upheld the HAC aggravator in cases where a conscious victim was strangled. See Mansfield v. State, 758 So.2d 636, 645 (Fla.2000), cert. denied, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001); Hildwin v. State, 727 So.2d 193, 196 (Fla.1998); Orme v. State, 677 So.2d 258, 263 (Fla.1996).
In light of the evidence of a great struggle and the medical examiner’s testimony, we find that competent, substantial evidence in the record supports the trial court’s finding that the victim was strangled while conscious for a time sufficient to suffer a physically and mentally cruel and torturous death. See Mansfield, 758 So.2d at 645. Accordingly, we affirm the trial court’s finding of HAC.
B. Issue Six
Bowles’ sixth claim is that the trial court erred in finding the robbery-pecuniary gain aggravator. In its sentencing order, the trial court further stated:
Mr. Hinton was found inside his locked home on November 22, 1994. His sister and her then fiancé became concerned when he failed to respond to telephone calls and knocks on his door. After several days went by without word form Mr. Hinton, the fiancé broke into his locked mobile home and found his dead body wrapped in sheets and bedspreads.
Mr. Hinton’s watch, car keys, automobile and stereo equipment were missing form the home. Stereo wires had been cut. A knife was on the floor next to where the stereo equipment had formerly been. His wallet was found on the floor next to the bed. The Defendant was seen after the murder driving Mr. Hinton’s car and wearing his watch.
Although the Defendant admits that property of Mr. Hinton was taken, he submits that it was an afterthought and not the motivation for the murder. He suggests that his subsequent abandonment of the automobile and watch proves that he was not motivated by pecuniary gain. However, his prior statements prove otherwise. In his statements to Agent Dennis Reegan of the FBI, the Defendant stated he expected to find money on the victim or in the trailer. When he didn’t find any, he felt stuck and unable to flee because he had no money and no other place to go. This evidence establishes beyond a reasonable doubt that the murder was committed in the course of an attempted robbery or robbery. The fact that money was not there to be taken does not preclude the finding of this aggravating circumstance.
[The] aggravating factor [that Bowles committed the murder for financial gain] was proved beyond a reasonable doubt, but merges with the above aggravating factor and has been treated as one by the Court.
State v. Bowles, sentencing order at 4-5.
Bowles argues that the taking of Hinton’s property was an afterthought and that such a taking shortly after the murder, without any other evidence showing that pecuniary gain was the motive for the killing, provides insufficient evidence that the robbery-pecuniary gain aggravator applies. In support of his afterthought argument Bowles cites to Elam v. State, 636 So.2d 1312 (Fla.1994), and Hill v. State, 549 So.2d 179, 182-83 (Fla.1989).
In Beasley v. State, 774 So.2d 649, 662 (Fla.2000), we recently opined:
Where an “afterthought” argument is raised, the defendant’s theory is carefully analyzed in light of the entire circumstances of the incident. If there is competent, substantial evidence to uphold the robbery conviction, and no other motive for the murder appears from the record, the robbery conviction will be upheld. Conversely, in those cases where the record discloses that, in committing the murder, the defendant was apparently motivated by some reason other than a desire to obtain the stolen valuable, a conviction for robbery (or the robbery aggravator) will not be upheld.
(Citations omitted.) As in Beasley, the present case is distinguishable “from cases in which there is another apparent motivation for the killing, and no indication that the defendant wants or needs the valuables which are taken after the murder.” Id. at 666. In Elam, we held there was insufficient evidence to support the pecuniary gain aggravator where the defendant, who managed the victim’s motorcycle parts store, killed the victim in a fight that erupted after the defendant was accused of misappropriating store funds. See Elam, 636 So.2d at 1314. The facts of Elam indicated that although the fight began over the missing funds, “the theft had long been completed and the murder was not committed to facilitate it.” Id. In Hill, we struck the pecuniary gain aggravator where the evidence indicated that the murder could have been motivated by defendant’s desire to rape and beat the victim. See Hill, 549 So.2d at 181, 183.
In contrast, in the present case, there is no other apparent motivation for this murder other than as part of a taking of the victim’s property for Bowles’ pecuniary gain. When Hinton was discovered, his watch and stereo equipment were missing, and his wallet was found on the floor next to the bed. Two days after the murder, Bowles was seen driving Hinton’s car and wearing Hinton’s watch. Furthermore, Bowles confessed to taking Hinton’s car. We find this case very similar on this issue to Finney v. State, 660 So.2d 674, 680 (Fla.1995), in which we upheld the robbery-pecuniary gain aggravator. See also Jones v. State, 652 So.2d 346, 350 (Fla.1995) (rejecting “afterthought” argument as applied to valuables taken from victims where no other motivation for murders appeared from record). The trial court’s finding of the robbery-pecuniary gain ag-gravator is supported by competent, substantial evidence.
ISSUES SEVEN AND NINE
In his seventh claim, Bowles argues that the trial court failed to appropriately weigh all nonstatutory mitigating evidence. Bowles’ ninth claim is that the trial court erroneously rejected the two statutory mental mitigating factors: (1) the murder was committed while Bowles was under the influence of extreme mental or emotional disturbance; and (2) Bowles’ capacity to appreciate the criminality of his acts at the time of the homicide was substantially diminished by his alcohol and drug abuse. We disagree.
The trial court made the following findings with regards to mitigating factors.
B. Statutory and Other Mitigating Factors.
The Defendant asserts the following as statutory or other mitigating factors reasonably established by the greater weight of the evidence:
1. The Defendant suffered from extreme emotional disturbance at the time of the murder.
The Defendant asserts that evidence of his drinking and abusive childhood requires the finding that at the time of Mr. Hinton’s murder, he was suffering from an extreme emotional disturbance. His theory, unsupported by expert testimony, is that the rage within him was unleashed by the use of alcohol and drugs. He argues that the 1982 prior violent felony in which he raped and battered his girlfriend, and Mr. Hinton’s murder, can only be explained in the context of an underlying emotional disturbance.
The Court finds that the Defendant is an alcoholic and has been using drugs and alcohol since his youth, and that many members of his family and extended family are alcoholics. However, this evidence does not support a finding of this mitigator unless being an alcoholic, standing alone, meets the definition of an extreme emotional disturbance. If so, then the Court would find this statutory mitigator to have been met by the evidence, but entitled to little weight.
2. The capacity of the Defendant to appreciate the criminality of his acts, was, at the time of the homicide, substantially diminished.
The Defendant contends that his level of intoxication at the time of the murder substantially reduced his ability to appreciate the criminality of his conduct. On the day of the murder he had been drinking heavily. He drank six beers on his way to the train station with Mr. Hinton and Mr. Smith. He continued to drink. Although the Court finds that the Defendant was under the influence of drugs and alcohol at the time of the murder, the greater weight of the evidence does not sustain finding that his ability to appreciate the criminality of his acts was substantially diminished.
To commit this crime, the Defendant waited for Mr. Hinton to fall asleep. He needed a hard object to overpower Mr. Hinton. He thought of a stepping stone outside, which was embedded in the ground. He had to lift this heavy object and bring it inside. He then had to enter quietly into Mr. Hinton’s room. He had to aim the stone so it fells squarely on Mr. Hinton’s head. He had to fend-off Mr. Hinton’s efforts to save his life. He was able to think, act, and react in order to commit this murder, despite being under the influence of drugs and alcohol. When he was arrested approximately six days later, he was able to relate with clarity and detail how he killed Mr. Hinton. His only omission was how he stuffed toilet paper down Mr. Hinton’s throat. He was also able to tell of events leading up to, and following, the murder. These facts prove to the Court that although he had ingested a substantial amount of alcohol and smoked marijuana, his ability to appreciate the criminality of his conduct was not substantially diminished.
The defendant also argues that there was nothing in his “post-murder actions” to indicate that he was acting in a normal sober manner. After the killing, he was able to drive a car, purchase additional liquor, pick-up a woman on the beach and bring her back to the mobile home where he committed the murder. He was also sufficiently alert to keep her from the room in which Mr. Hinton’s dead body lay covered in sheets. These events do not describe an individual whose ability to function and appreciate the criminality of his acts were substantially diminished. On the contrary, this evidence strongly suggests that Mr. Bowles was minimally affected by alcohol and drugs, despite his extensive use. The Court has given no weight to this factor.
3. Background and/or Personal History of the Defendant.
The Defendant enjoyed a good childhood until age six or seven. However, by age ten he was sniffing glue and huffing paint. The discipline utilized by both his stepfathers was abusive. Beatings were administered on occasion with belts and fists. His mother testified that on occasion when she returned from work, she observed him bruised from the whippings. His mother was the victim of severe abuse which was witnessed by the defendant and his siblings.
The Defendant further asserts as mitigation the fact that he never had a positive male role model in his life. He was abandoned by his mother, who chose an abusive stepfather over him. He did not receive parental encouragement to perform in school. He did not complete junior high school and did not receive the necessary educational tools to function well as a productive member of society. He also asserts his intoxication at the time of the offense, and extensive alcoholic background, to support this element of mitigation.
The Defendant further submits that he provided testimony on behalf of the State of Florida in a case where a man was raped in a jail in Tampa, Florida. He further asserts that he cooperated by confessing to the instant crime and other crimes, and by voluntarily pleading guilty in the instant case and in two other homicide cases.
The Court has carefully considered the evidence regarding the Defendant’s abusive childhood and the severe abuse endured by his mother which he witnessed as a child. Those factors are given significant weight. The Court has also given some weight to the Defendant’s history of alcoholism and the absence of a true father figure in his home during his childhood. The Court has given little weight to the Defendant’s failure to complete junior high school and lack of an education; or his cooperation in this and other cases; or his voluntary pleas of guilty to this and other murders.
The Court has also given little weight to the defendant’s use of intoxicants and drugs at the time of the murder. The frequency with which the Defendant has used this as an explanation to law enforcement officers, when confronted about his violent actions, causes the court to give this factor less weight as mitigation and more weight as a convenient, but poor excuse. The Court has not given any weight to the circumstances after he left home. As to the latter, no evidence was presented.
After carefully considering and weighing the aggravating and mitigating circumstances found to exist in this case, and mindful that human life is at stake in the balance, the Court finds that the aggravating circumstances proved beyond a reasonable doubt overwhelmingly outweigh the mitigating circumstances reasonably established by the evidence.
Sentencing Order at 11-15.
As to Bowles’ seventh claim, contrary to Bowles’ contention, the sentencing order demonstrates that the trial court made specific findings with regard to each mitigating circumstance presented by the defense. Indeed, the trial court gave significant mitigating weight to Bowles’ abusive childhood and the abuse endured by his mother, which Bowles witnessed as a child, and some weight to Bowles’ history of alcoholism and the absence of a true father figure in his home during his childhood. Under the total circumstances of this murder and on the basis set forth by the trial judge in the sentencing order, we find no error in the trial court’s assignment of little weight to Bowles’ use of intoxicants and drugs at the time of the murder. The trial court was well within its discretion in making and weighing such findings. Therefore, we find no error. See Trease v. State, 768 So.2d 1050, 1055 (Fla.2000); Bonifay v. State, 680 So.2d 413 (Fla.1996).
We find the trial court’s findings similar to what we approved in Brown v. State, 721 So.2d 274, 281 (Fla.1998) (footnote omitted):
Brown argues that the trial court erred in rejecting as a statutory mitigating factor that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired due to excessive alcohol and drug use both on the day of and during the two weeks prior to the murder. We have held that evidence of impaired capacity due to intoxication must be considered as a mitigating factor where the existence of such facts is established by evidence anywhere in the record. [Hardwick v. State, 521 So.2d 1071, 1076 (Fla.1988).] However, evidence of alcohol and marijuana consumption on the day of the murder, without more, does not compel a finding of this, mitigating factor. Cooper v. State, 492 So.2d 1059, 1062 (Fla.1986).
Here, despite Brown’s claim that he smoked crack cocaine on the night of the murder and the existence of some evidence of alcohol consumption, there was no evidence that Brown was actually intoxicated at the time of the murder or that his capacity to conform his conduct to the requirements of the law was substantially impaired. To the contrary, the evidence indicates that Brown was coherent at the time of the murder and knew what he was doing. As the trial court found, “the defendant discussed murdering the victim with the codefend-ant,” he deliberately chose a knife rather than a firearm, “the defendant was able to stab the victim many times,” and he searched the apartment for money and car keys before absconding with the victim’s truck. We note, however, that despite the lack of sufficient evidence to establish this statutory mitigator, the trial court considered Brown’s consumption of drugs and alcohol and found that it supported a nonstatutory mitigating factor. In light of the above evidence, we cannot say the trial court abused its discretion in rejecting this statutory mitigating factor. Accordingly, we find no error.
See also Banks v. State, 700 So.2d 363, 368 (Fla.1997). In this case, there was similar competent, substantial evidence supporting the trial court’s determination of the proposed mitigation in the evidence which demonstrated how the murder was committed and in the appellant’s actions after the murder was committed. The decision as to whether a mitigating circumstance has been established is within the trial court’s discretion. See Blackwood v. State, 777 So.2d 399, 409 (Fla.2000); see also San Martin v. State, 705 So.2d 1337, 1347-48 (Fla.1997) (affirming trial court’s rejection of extreme emotional disturbance and substantially diminished capacity mitigator, despite expert testimony in support of such mitigation, where evidence in the record showed purposeful conduct which contradicted such mitigation); Johnson v. State, 608 So.2d 4, 13 (Fla.1992) (affirming rejection of extreme emotional disturbance and substantially diminished capacity miti-gators where Court found there was “too much purposeful conduct for the court to have given any significant weight to Johnson’s alleged drug intoxication, self-imposed disability that the facts show not to have been a mitigator in this case”); Preston, 607 So.2d at 411 (affirming rejection of extreme emotional disturbance and substantially diminished capacity mitigators in spite of defendant’s presentation of expert evidence in support of mitigators where trial court based its decision on competent, substantial evidence of purposeful conduct in committing murder).
Even if we did find that the trial court erred in the weighing and evaluation of the mitigation which was proposed, we would find any such error in respect to the mitigation presented to be harmless beyond a reasonable doubt. The aggravators in this case patently overwhelm the mitigation in this record.
II. ISSUE TWELVE
In his twelfth claim, Bowles argues that the trial court erred in allowing Corporal Jan Edenfield to testify about the internal injuries Bowles was convicted of inflicting on his 1982 sexual assault victim. We disagree.
During penalty proceedings, it is appropriate to introduce details of a prior violent felony conviction in the form of hearsay testimony so long as the defendant has a fair opportunity to rebut. See § 921.141(1), Fla. Stat. (1994); Hudson v. State, 708 So.2d 256, 261 (Fla.1998) (“[W]e find no error by the trial court in connection with the testimony of Officer Bush, who described the circumstances of the sexual assault for which Hudson had previously been convicted.”); see also Rodriguez v. State, 753 So.2d 29, 44-45 (Fla.2000) (reaffirming our precedent allowing neutral witness to give hearsay testimony as to details of prior violent felony). In the present ease, Bowles had the opportunity to rebut hearsay presented by the State. That Bowles did not or could not rebut this testimony does not make it inadmissible.
Even if we were to find error, any error in Edenfield’s testimony about this prior violent felony is harmless because (1) the certified copy of the conviction itself conclusively establishes the aggravator; and (2) the strong aggravators in this case overwhelmingly outweigh the mitigation. See Rodriguez, 753 So.2d at 45.
III. PROPORTIONALITY
As death is a unique punishment, it is necessary to engage in a proportionality review to consider the totality of the circumstances in a case and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Upon review, we find the death sentence to be proportional when compared to others where the death sentence has been imposed. See Brown v. State, 721 So.2d 274 (Fla.1998) (affirming death penalty where evidence established four aggravators including prior violent felony, murder committed during robbery and for pecuniary gain (merged), HAC, and CCP, balanced against two nonstatutory miti-gators of an abusive family background and drug and alcohol abuse); Guzman, 721 So.2d at 1155 (death sentence proportionate where four aggravators were found, including HAC, prior violent felony, murder committed in the course of a robbery, and for the purpose of avoiding arrest, and little nonstatutory mitigation was found); Hauser v. State, 701 So.2d 329 (Fla.1997) (death sentence proportionate where victim was strangled and trial court found three aggravators of HAC, CCP, and pecuniary gain, balanced against one statutory mitigator and four nonstatutory miti-gators); Whitton v. State, 649 So.2d 861 (Fla.1994) (finding death sentence proportionate where victim was beaten to death and trial court found five aggravators, including HAC, pecuniary gain, prior violent felony, committing the crime while on parole, and committing the crime to avoid arrest, balanced against nine nonstatutory mitigators).
IV. CONCLUSION
We therefore affirm the sentence of death.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, LEWIS, and QUINCE, JJ., concur.
ANSTEAD and PARIENTE, JJ„ concur in result only.
Corporal Jan Edenfield testified: "According to the doctors they said that there was tearing and lacerations inside both the rectum and the vagina.”
Gary Ray BOWLES, Appellant, v. STATE of Florida, Appellee. Gary Ray Bowles, Petitioner, v. Walter A. McNeil, etc., Respondent.
Nos. SC05-2264, SC06-1666.
Supreme Court of Florida.
Feb. 14, 2008.
Rehearing Denied April 3, 2008.
Frank J. Tassone, Jr., and Rick A. Sich-ta of Frank J. Tassone, P.A., Jacksonville, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General, and Ronald A. Lathan, Jr., Assistant Attorney General, Tallahassee, FL, for Appellee/Re-spondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Gary Ray Bowles appeals an order of the circuit court denying his motion to vacate his sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the post-conviction court and deny relief on all asserted claims.
STATEMENT OF THE CASE AND FACTS
This Court described the salient facts of the crime in Bowles’ first direct appeal, Bowles v. State, 716 So.2d 769, 770-71 (Fla.1998) (Bowles I), but we summarize them again here. In late 1994, Bowles met the victim, Walter Hinton, and agreed to assist him in moving from Georgia to Jacksonville. In return, Hinton allowed Bowles to live with him in Jacksonville. While living with him, Bowles murdered Hinton one night in late November of 1994.
When arrested, Bowles confessed orally and in writing. Bowles indicated he had been drinking alcohol and smoking marijuana on the day of the murder. Bowles stated that after Hinton went to sleep one evening, something inside him “snapped.” Bowles then went outside and retrieved a forty-pound concrete block and brought it inside. He set it down on a table and after thinking for a few moments, went into the victim’s room and dropped it on Hinton’s head. The force of the blow fractured Hinton’s right cheek down to his jaw. As Bowles described it, Hinton, then conscious, fell from the bed, and Bowles began to manually strangle him. Bowles then stuffed toilet paper into Hinton’s throat and placed a rag into his mouth. The medical examiner testified at trial that the cause of death was asphyxia. Bowles pled guilty to premeditated first-degree murder and was sentenced to death. Bowles I, 716 So.2d at 770-71.
Bowles appealed to this Court, raising ten issues. In Bowles I, we remanded for a new sentencing proceeding because the prosecution had improperly made Bowles’ alleged hatred of homosexuals a feature of the sentencing proceeding. Id. at 773. In Bowles v. State, 804 So.2d 1173 (Fla.2001) (Bowles II), this Court described the outcome on remand:
On remand, the resentencing jury unanimously recommended death. In imposing the death penalty the trial court found the following five aggravating circumstances: (1) Bowles was convicted of two other capital felonies and two other violent felonies; (2) Bowles was on felony probation in 1994 when he committed the murder ...; (3) the murder was committed during a robbery or an attempted robbery, and the murder was committed for pecuniary gain (merged into one factor); (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder was cold, calculated, and premeditated (CCP).
The trial court assigned tremendous weight to the prior violent capital felony convictions. On September 27, 1982, in Hillsborough County, Bowles was convicted of sexual battery and aggravated sexual battery. These offenses involved an extremely high degree of violence .... On July 18, 1991, Bowles was convicted in Volusia County of unarmed robbery.... On August 6, 1997, in Volu-sia County, Bowles was convicted of first-degree murder and armed burglary of a dwelling with a battery.... On October 10, 1996, in Nassau County, Bowles was convicted of first-degree murder....
The trial court assigned great weight to the HAC and CCP aggravators, significant weight to the robbery-pecuniary gain aggravator, and some weight to the fact that Bowles was on probation for robbery at the time of this murder.
The trial court rejected the two statutory mitigators advanced by Bowles: (1) extreme emotional disturbance at the time of the murder and (2) substantially diminished capacity to appreciate the criminality of his acts at the time of the murder. The trial court found and assigned weight to the following nonstatu-tory mitigating factors: significant weight to evidence that Bowles had an abusive childhood; some weight to Bowles’ history of alcoholism and absence of a father figure; little weight to Bowles’ lack of education; little weight to Bowles’ guilty plea and cooperation with police in this and other cases; little weight to Bowles’ use of intoxicants at the time of the murder; and no weight to the circumstances which caused Bowles to leave home or his circumstances after he left home. The trial court concluded that the aggravating circumstances overwhelmingly outweighed the mitigating circumstances.
Id. at 1175-76. On appeal to this Court, Bowles raised twelve issues. We denied all of Bowles’ asserted claims and held that Bowles’ sentence of death was proportional. Id. at 1177-84.
On August 29, 2003, Bowles filed a Florida Rule of Criminal Procedure 3.851 motion for postconviction relief, asserting nine claims. Bowles also filed a “Motion to Reopen Testimony,” arguing that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), required reversal because he was denied the opportunity to confront his accusers. The post-conviction court rejected the first three claims as procedurally barred, either because they were raised or should have been raised on direct appeal. It denied claims four through seven and Bowles’ motion to reopen testimony based on our prior cases addressing Ring, Apprendi, and Crawford.
In the remaining two issues, Bowles asserted that trial counsel were ineffective for failing to adequately investigate and present mitigating evidence, and for failing to discover and present evidence rebutting the State’s proof of the HAC aggravating factor. Id. The postconviction court rejected both. Bowles now appeals five of his postconviction claims to this Court and petitions for a writ of habeas corpus, arguing appellate counsel was ineffective.
II. MENTAL MITIGATION
Bowles’ first argument is that his trial counsel were ineffective for failing to present an expert to testify to mental mitigation. Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted).
Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).
Bowles argues that his trial counsel should have called an expert to testify to various mitigating facts, including: the effects of Bowles’ lifelong alcohol and drug abuse; Bowles’ low IQ; Bowles’ abusive childhood; and Bowles’ neuropsychological impairment. Specifically, Bowles argues that these facts should have been linked to the statutory mitigators of extreme emotional disturbance and diminished capacity to appreciate the criminality of the homicide. He argues that counsel were deficient for not presenting testimony on these facts, such as the testimony counsel had from the expert retained to examine Bowles, Dr. Elizabeth McMahon.
Dr. McMahon stated in a deposition introduced at the postconviction evidentiary hearing that Bowles was “probably not working with what we would say is an intact brain” and that he had “some very mild dysfunction.” She elaborated that in her clinical opinion, this dysfunction was not significant. She concluded that Bowles did not show evidence of frontal lobe problems. She also stated that Bowles has “a great deal of underlying hostility and anger towards other people” and what she tentatively referred to as a “reservoir of rage.” Dr. McMahon was aware of three additional murders that Bowles had committed, which the State was not going to introduce unless the defense opened the door to them. Dr. McMahon stated that she would have to discuss these other murders if she were to testify for Bowles. Dr. McMahon stated that she and Bill White, Bowles’ lead trial counsel, discussed several times whether she should testify and that her testimony would “open a line of questioning on cross that is going to be devastating to [Bowles].”
Dr. Harry Krop, a clinical psychologist retained by Bowles for the postconviction proceedings, also testified at the evidentia-ry hearing. He stated that he had no dispute with Dr. McMahon’s qualifications or capabilities, but he disagreed with her findings. He believed that she should have done further neuropsychological studies for brain impairment based on the results of the tests that she gave Bowles and Bowles’ history of substance abuse. Dr. Krop concluded that Bowles suffered from mild to moderate frontal lobe impairment. He also found that Bowles had deficits in memory, some of which were significant.
Dr. Krop also testified, however, that Bowles told him that “it bothers him [that] he killed six people who probably didn’t deserve to die.” Thus, Dr. Krop was aware of the three additional murders that were not otherwise introduced at the re-sentencing proceeding. Dr. Krop stated that Bowles did not have an impairment in understanding the difference between right and wrong. He stated that given Dr. McMahon’s deposition, he understood why trial counsel chose not to have Dr. McMahon testify.
On the basis of this testimony, Bowles argues that trial counsel were deficient for declining to have an expert testify. There are thus two aspects of Bowles’ allegations: (1) trial counsel were ineffective for not calling Dr. McMahon to testify; and (2) trial counsel were ineffective generally for failing to call an expert witness to substantiate Bowles’ mental mitigators. We address each below.
A. Failure to Call Dr. McMahon
The postconviction court denied the first claim after careful analysis. The crux of its denial is summarized in its statement that:
Bowles’ trial counsel recognized that some of Dr. McMahon’s testimony would be helpful, but also recognized that some of her opinions about Bowles’ personality would be harmful.... After weighing the benefit of her testimony against its potential harm, trial counsel made a strategic trial decision not to call Dr. McMahon.
State v. Bowles, CR-A 16-1994-CF-12188-AXXX-MA (Fla. 4th Cir. Ct. order filed Aug. 12, 2005) (Postconviction Order) at 9. Specifically, the postconviction court noted that Dr. McMahon would have testified that: (1) Bowles was only mildly impaired; (2) his impairment did not stem from problems with his brain; (3) Bowles possessed rage; (4) he had poor impulse control; and (5) Bowles had an impairment in empathy. Given these facts, the post-conviction court held it was reasonable not to have Dr. McMahon testify.
The postconviction court also considered Dr. Krop’s testimony. It noted that Dr. Krop faulted Dr. McMahon for not performing a comprehensive neurological examination of Bowles. It also noted that Dr. Krop testified that it was possible that Bowles suffered from an organic brain impairment, including a “likelihood of frontal lobe impairment.” Id. at 10. The post-conviction court concluded that Bowles’ claim was nevertheless insufficient because, “[e]ven had [Dr. Krop testified], the court is not convinced that the outcome would have been any different in light of the overwhelming evidence of aggravation in this case.” Id. at 11.
Finally, the postconviction court concluded that trial counsel made a strategic decision not to have Dr. McMahon testify:
Trial counsel decided not to present Dr. McMahon as a witness after weighing the benefit of her testimony against its potential harm. This decision was made after a thorough investigation of existing mitigation and careful analysis of Dr. McMahon’s testimony by Bowles’ attorneys. It was a strategic trial decision for which lawyers are given wide latitude. Considering Dr. McMahon’s views regarding Bowles’ lack of empathy and dangerousness and her own statements that her testimony would have been “devastating” to Bowles, and Dr. Krop’s testimony that even some of his opinions regarding Bowles anti-social traits (which he felt would be harmful but could be explained to a jury), the Court concludes that trial counsel acted in a prudent manner in deciding against presenting Dr. McMahon as a witness.
Id. at 10-11 (record reference and citations omitted).
Competent, substantial evidence supports the postconviction court’s conclusion that this decision was strategic. The decision was also reasonable. Dr. McMahon was a very risky witness to present. She was a well-qualified clinical psychologist who concluded that Bowles did not suffer from anything beyond mild impairments. She further concluded that he was impulsive and dangerous. She stated that she would have to discuss three other murders that would not otherwise be introduced. It was not unreasonable for trial counsel to withhold her testimony from the jury. Because the decision was reasonable, Bowles’ trial counsel were not ineffective under Strickland. See, e.g. Gaskin v. State, 822 So.2d 1243, 1248 (Fla.2002) (“Trial counsel will not be held to be deficient when she makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.”).
B. Counsel Ineffective for Failing- to Call Expert
Bowles next alleges that counsel were ineffective for failing to call an expert to substantiate his mental mitigators. The postconviction court did not discuss this aspect of Bowles’ claim in detail, though it did note:
As to any suggestion by Bowles that trial counsel were somehow ineffective by the selection of Dr. McMahon as an expert or that [she] was not a competent psychologist, the Court finds no merit to these claims. Dr. Krop recognized Dr. McMahon as a competent psychologist with more experience than himself in administering neuropsychological tests. Nor does the court find that trial counsel improperly deferred to Dr. McMahon the responsibility to make legal decisions regarding matters of mental health mitigation.
Postconviction Order at 11 (citation omitted). We have previously rejected similar claims to those made by Bowles. See Dufour v. State, 905 So.2d 42, 56 (Fla.2005) (“There was evidence of clear justification for not utilizing [the consulted expert] as a witness [and] ... [t]rial counsel was not ineffective simply because after receiving an initial unfavorable report from [one expert] they did not proceed further to seek additional experts for mental mitigation evidence.”). Just as in Dufour, counsel consulted with an expert and received an unfavorable report. Based on this result, they chose not to have the expert, Dr. McMahon, testify. It was reasonable to rely on Dr. McMahon’s results and not seek an additional expert. Accordingly, Bowles has not demonstrated that his counsel were deficient on this claim.
C. Counsel Ineffective in Spencer Hearing
Lastly, Bowles claims that counsel were deficient for not presenting Dr. McMahon’s testimony at his Spencer hearing. He argues that a primary reason counsel gave for not calling Dr. McMahon was that some of her testimony might negatively influence the jury. This concern would not exist in the Spencer hearing because the jury would not be present for it.
Trial counsel’s choice not to present Dr. McMahon’s testimony in the Spencer hearing does not meet the requirements of ineffective assistance in Strickland. The clinical observations that Dr. McMahon made could have undercut the nonstatuto-ry mitigating evidence found by the trial court. Her testimony still contained negative aspects. Thus, it was still a reasonable strategic decision to not present Dr. McMahon’s testimony.
Further, even if counsel had been deficient in omitting Dr. McMahon’s testimony from the Spencer hearing, Bowles has not shown that he was prejudiced by it. The trial court concluded that the aggravators “overwhelmingly” outweighed the miti-gators. Dr. McMahon would at best have stated that Bowles had some deficiencies that did not rise above the level of mild impairment. Dr. Krop could not offer significantly more positive testimony. And both experts posed a risk of revealing the other murders committed by Bowles. In light of these facts, Bowles has not established that this Court’s confidence in the resentencing should be undermined. Accordingly, he has not proven prejudice, and we deny relief on this claim.
II. HAC AGGRAVATOR
In Bowles’ second claim, he argues that trial counsel should have refuted the State’s expert, Dr. Margarita Arruza, on applicability of the HAC aggravator. Bowles’ claim thus has two aspects: (1) the trial court improperly found that HAC applied; and (2) trial counsel were ineffective for failing to retain an expert to review and challenge Dr. Arruza’s findings. To the extent that Bowles challenges the trial court’s finding of HAC, his claim is procedurally barred. Marquard, v. State, 850 So.2d 417, 433 (Fla.2002) (rejecting a claim previously raised as proeedurally barred); Bowles II, 804 So.2d at 1179 (rejecting that HAC was improperly found). As to Bowles’ ineffective assistance claim, the standard as described above is whether counsel were deficient and whether Bowles suffered any prejudice as a result of the alleged deficiency. Strickland, 466 U.S. 668, 104 S.Ct. 2052.
The postconviction court denied this claim. After reviewing the written confession that Bowles gave, the court noted that Dr. Arruza’s testimony at the sentencing hearing agreed with the version of the murder that Bowles himself had provided. The postconviction court then reviewed the testimony of Dr. Ronald Keith Wright, an expert retained by Bowles for his postcon-viction proceedings. The court reasoned that Dr. Wright’s version of the murder as explained at the evidentiary hearing “did not make the circumstances of this killing any less aggravating.”
We affirm the postconviction court on this claim. Bowles’ argument that it was unreasonable for Mr. White to choose not to obtain an expert to review and challenge Dr. Arruza’s findings is substantially undercut by his own confession. Bowles told various parties that he dropped a forty-pound block on Hinton’s head, struggled with Hinton, strangled the victim to death, and stuffed a rag in his mouth. White stated at the posteonvietion hearing that he relied on this confession and that Bowles remembered and described the murder clearly. It was reasonable for counsel to conclude that Bowles’ confession was accurate and to choose not to retain an expert to contest Dr. Arruza’s findings, which were consistent with Bowles’ version of the murder.
Bowles argues that counsel’s decision not to retain an expert to review or challenge Dr. Arruza’s findings cannot be strategic because White stated that he did not consider putting on an expert to rebut Dr. Arruza’s testimony. We reject this argument based on trial counsel’s clear statement to the contrary:
[STATE]: Okay. Now in terms of your strategy for cross examination of Dr. Arruza and also more importantly for not calling an expert, medical examiner to potentially rebut Dr. Arruza’s findings, were you relying on the defendant’s statements given to the police and to you all in terms of details about how the murder occurred?
[BILL WHITE]: That’s — I mean the reason for not calling another expert is that all of the evidence that was going to be admitted was at least from what we could see consistent with the fact that the deceased was at the time the block hit his head with his head on the mattress and on the box spring that he was probably to some degree conscious and Gary had told us and had told all of the law enforcement officers that he struggled with him and that was the reason for not calling another expert which we have done in other cases. We have used Dr. Wright as a matter of fact.
(Emphasis added.)
Accordingly, we deny Bowles’ second claim since his counsel made a reasonable strategic decision to rely on Bowles’ own confession, and Bowles has not shown prejudice since his expert’s proffered version of events was equally horrific, if not more horrific, than the version of the murder presented by Dr. Arruza at the resen-tencing hearing.
III. MENTAL MITIGATION SUMMARY DENIAL
In this claim, Bowles argues that the postconviction court inappropriately summarily denied a postconviction claim below. Bowles thus requests that we remand for an evidentiary hearing on whether his trial counsel were ineffective. Bowles states that his claim below was that trial counsel were ineffective for failing to sufficiently present mental mitigation evidence. The postconviction court denied this claim, stating:
In claim one, Bowles alleges that trial counsel were deficient in presenting mental health mitigation and that the Court erred in not finding the existence of the two mental mitigators when the evidence supported said mitigators. Initially, the Court notes that allegations of trial court error could and should have been raised on direct appeal. Moreover, the instant allegation of error by the trial court was in fact raised and rejected by the Florida Supreme Court on direct appeal. Bowles v. State, 804 So.2d 1173, 1180-83 (Fla.2001). Bowles, having raised this claim on direct appeal, is proeedurally barred from raising it again in a motion for post-conviction relief. Accordingly, the instant claim is proeedurally barred. Further, to the extent Bowles alleges ineffective assistance of counsel, Bowles may not attempt to circumvent this procedural bar by inserting conclusory allegations of ineffective assistance of counsel. Thompson v. State, 796 So.2d 511, [515] n. 5 (Fla.2001); Lopez v. Singletary, 634 So.2d 1054, 1057 (Fla.1993). Accordingly, the instant claim is denied.
Postconviction Order at 11-12 (citations omitted).
We affirm the postconviction court on this issue. Bowles’ postconviction motion below raised two claims: (1) that the trial court erred in not finding the existence of two mental mitigators; and (2) that trial counsel were deficient in presenting mental mitigation. As to the first, this claim was raised and rejected by this Court on direct appeal. Bowles II, 804 So.2d at 1180-83. Accordingly, it is procedurally barred.
As to the second, competent, substantial evidence supports the postconviction court’s finding that Bowles’ allegations below of ineffective assistance of counsel were insufficient. Florida Rule of Criminal Procedure rule 3.851(e)(1)(D) requires that a 3.851 motion include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Bowles’ claim below did not include a detailed allegation of a factual basis for an ineffective assistance of counsel claim. In fact, it contained essentially no such basis in fact or law. At best, four sentences out of five and a half pages of argument addressed trial counsel’s ineffectiveness; the remainder addressed trial court error. These four sentences alleged that counsel failed to present sufficient mental mitigation evidence, without explaining what evidence should have been presented, and that counsel failed to investigate and present evidence concisely, without explaining how the presentation was flawed or what should have been investigated or citing any examples of either.
Accordingly, because Bowles’ conclusory arguments on ineffective assistance of counsel are insufficient and an attempt to relitigate issues that are procedurally barred, we deny relief on this claim.
IV. RING AND APPRENDI
In this claim, Bowles “reincorporates” thirty-five pages of his postconviction motion into his instant brief without further explanation. The sum of these arguments, which are located only in the postconviction motion and not in Bowles’ instant brief, are that Florida’s death penalty statute violates Ring and Apprendi because: (1) it allows a judge to find an element of capital murder; (2) it does not meet the heightened evidentiary requirements of a death penalty scheme; (3) it does not require charging the aggravators in the indictment; and (4) it does not require a unanimous jury verdict.
The postconviction court denied this claim, stating that Ring is not retroactive and citing to over forty cases where this Court has rejected similar claims. Next, the postconviction court denied relief on the basis of Apprendi, citing to seven cases where this Court rejected the same argument made by Bowles here. Finally, the postconviction court rejected Bowles’ argument that Ring and Apprendi require a unanimous jury vote, noting that this Court has repeatedly rejected this claim and that the resentencing jury here had in fact returned a unanimous verdict.
This Court has repeatedly and explicitly rejected the arguments Bowles asserts. Bowles’ conviction and sentence were final when Ring was issued. Additionally, Bowles’ claim is meritless since one of the aggravating circumstances found by the trial court in this case was Bowles’ prior conviction of a violent felony, “a factor which under Apprendi and Ring need not be found by the jury.” Jones v. State, 855 So.2d 611, 619 (Fla.2003). Accordingly, because this Court has repeatedly rejected the arguments Bowles asserts, we deny relief on this claim.
V. CRAWFORD
In this claim, Bowles argues that the postconviction court erred in summarily denying his claim that the testimony of Officer Jan Edenfleld as to his 1982 sexual battery and aggravated sexual battery convictions violated his Confrontation Clause rights under Crawford. The postconviction court denied this claim, concluding that any error was harmless, both because the testimony at issue was not necessary to establish Bowles’ convictions and because the other five aggravators made any error harmless. Bowles concedes that this Court already considered and held that part of this issue was only harmless error. Bowles II, 804 So.2d at 1184. We have also held that Crawford is not retroactive. Chandler v. Crosby, 916 So.2d 728 (Fla.2005). Bowles’ conviction and sentence were both final when Crawford was issued. Accordingly, we deny relief on this claim.
VI. HABEAS CLOSING ARGUMENT ISSUE
In Bowles’ first habeas claim, he asserts that certain comments made by the prosecutor in closing arguments were error and that his appellate counsel was ineffective for failing to raise this properly preserved issue. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant ha-beas relief based on ineffectiveness of counsel, this Court must determine
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).
The first allegedly improper comment made by the prosecutor during closing argument was:
[STATE]: The mitigators presented to you yesterday, and the instructions that the Court will read to you regarding what possible mitigators may exist in terms of your decision as to how much weight — first of all, if they do exist, how much weight they should be given [sic] are arguably accepted. And I would submit to you the question is how much weight do you put to the three miti-gators that are going to be submitted to you.
MR. WHITE: Objection, Your Honor, to numbering the mitigators.
THE COURT: Sustained.
(Emphasis added.) Later, the prosecutor made the second allegedly improper comment:
[STATE]: And the law requires you to evaluate the aggravators, how much weight do you give them? I would submit there is substantial weight there. And I would submit the mitigators in this case have not been proven in terms of the statutory ones, and then there is one that’s a catchall that—
MR. WHITE: Objection to that characterization of the mitigators, Your Hon- or.
THE COURT: Sustained.
MR. WHITE: Your Honor, I would ask for a curative instruction.
THE COURT: The jury should disregard the comments of catchall. Proceed.
(Emphasis added.) Bowles argues that these comments denigrated his mitigation and told the jury that his mitigation was limited to three mitigators. Bowles further states that the prosecutor effectively told the jury that it was a “numbers game” and all that the jury had to do was add up and compare the number of mitigators versus aggravators.
As this Court has noted, “[a]ny error in prosecutorial comments is harmless if there is no reasonable probability that those comments affected the verdict.” Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (citing King v. State, 623 So.2d 486, 487 (Fla.1993)). Bowles has not demonstrated a reasonable probability that these comments affected the verdict. Therefore, this claim was meritless. Counsel cannot be ineffective for failing to raise a merit-less claim. Rutherford, 774 So.2d at 643.
Accordingly, we deny relief on this claim.
VII. HABEAS PHOTOGRAPH ISSUE
In Bowles' final claim, he alleges that the introduction of seven photographs was error and that his appellate counsel was ineffective for not raising this issue on appeal. As above, the standard for an ineffective assistance of appellate counsel claim is, consistent with Strickland, deficiency and prejudice.
This Court has held that photographs are admissible if they are probative to an issue in dispute and they are not so shocking as to defeat their value. Looney v. State, 803 So.2d 656, 668-70 (Fla.2001). Admission of photographs is a matter for the discretion of the trial court, and this Court has held it will not disturb such rulings absent a clear abuse of discretion. Rodriguez v. State, 919 So.2d 1252, 1286 (Fla.2005). “The test for admissibility of ... photographs is relevancy rather than necessity.” Id.
The photographs at issue here were relevant to issues in dispute at trial. They were relevant to how this murder was committed, to support the State’s argument that the murder was a deliberate act, and to support the applicability of the HAC aggravator. We have previously held that similar bases were valid grounds for admitting photographs. See England v. State, 940 So.2d 389, 399-400 (Fla.2006) (eleven photos of bloated, decomposed victim with flesh sloughing off and insect larvae in wounds were relevant to HAC, defensive wounds, extent of wounds, manner of death, and position of body); Arbelaez v. State, 898 So.2d 25, 44 (Fla.2005) (ten photos of victim by dock were relevant to location of body, explanation of autopsy findings, and that victim did not die by accidental drowning as defendant alleged). While the instant photographs are disconcerting, they were relevant. We cannot conclude that it was a clear abuse of discretion to admit them, and thus appellate counsel was not ineffective in declining to raise this meritless issue.
Accordingly, we deny this claim.
CONCLUSION
For the foregoing reasons, we affirm the denial of Bowles’ postconviction claims and deny his petition for writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
The twelve claims were: (1) the trial court erred in allowing the use of peremptory challenges to remove prospective jurors who were in favor of the death penalty; (2) the trial court erred in allowing the introduction of two prior murders for which the defendant was convicted after the first sentencing hearing; (3) the trial court erred in finding the HAC aggravator; (4) the trial court erred in rejecting the proposed HAC jury instruction; (5) the CCP instruction to the jury was unconstitutionally vague; (6) the trial court erred in finding the robbery-pecuniary gain aggravator; (7) the trial court erred by giving little or no weight to nonstatutory mitigators; (8) the trial court erred in rejecting the proposed victim impact evidence jury instruction; (9) the trial court erred by rejecting the statutory mental mitigators extreme emotional disturbance at the time of the murder and substantially diminished capacity to appreciate the criminality of acts at the time of the murder; (10) the trial court erred in giving the standard jury instruction on mitigation instead of the requested instructions; (11) the trial court erred by rejecting the requested jury instructions defining mitigation; and (12) the trial court erred by allowing impermissible hearsay. Bowles II, 804 So.2d at 1176.
The claims were: (1) trial counsel were ineffective for failing to present statutory and nonstatutory mental mitigation, and the trial court erred in finding the two statutory mental mitigators were not proven; (2) the trial court erred in refusing to give the defense's requested juty instructions defining mitigation; (3) the trial court erred in instructing the jury that it could consider victim impact evidence; (4) and (5) Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (6) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring required the elements of the offense necessary to establish capital murder be charged in the indictment; (7) Apprendi and Ring required the jury recommendation of death be unanimous; (8) trial counsel were ineffective for failing to adequately investigate and present mitigating evidence; and (9) trial counsel were ineffective for failing to discover and present evidence rebutting the State's proof of the HAC aggravating factor. Bowles’ claims 8 and 9 were misnumbered in his postconviction motion as claims 9 and 10, respectively.
Bowles also argues that guidelines 10.7(A), 10.11(A), and 10.11(F) of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases give explicit instructions on how counsel in death cases should investigate and present mitigating evidence and that, under these Guidelines, trial counsel were ineffective. However, Bowles does not allege any specific ways in which trial counsel failed to meet the ABA Guidelines. Further, the Guidelines are not inconsistent with trial counsel's actions. Accordingly, we deny this claim.
Spencer v. State, 615 So.2d 688 (Fla.1993).
See, e.g. Nixon v. State, 932 So.2d 1009, 1024 (Fla.2006) (Ring is not retroactive to cases that were final when it was issued); Rodgers v. State, 948 So.2d 655, 673 (Fla.2006) (rejecting Ring claim when one of aggravating factors is prior felony conviction; rejecting that Ring requires aggravators be alleged in indictment and a unanimous jury verdict); Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (holding Ring is not retroactive in Florida); Blackwelder v. State, 851 So.2d 650, 654 (Fla.2003) (aggravating circumstances need not be alleged in indictment or be found by unanimous verdict), cert, denied, -U.S. -, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007); Brown v. Moore, 800 So.2d 223, 224-25 (Fla.2001) (stating Apprendi does not require that aggravating circumstances be proven in indictment or that jury verdict be unanimous, and thus counsel was not ineffective for failing to allege such).
“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const., amend VI.
Gary Ray BOWLES, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Florida Attorney General, Respondents-Appellees.
No. 10-10284.
United States Court of Appeals, Eleventh Circuit.
June 18, 2010.
Richard Adam Sichta, Frank John Tassone, Jr., Tassone and Sichta, LLC, Jacksonville, FL, for Petitioner-Appellant.
Charmaine M. Millsaps, Tallahassee, FL, for Respondents-Appellees.
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
[OPINION BY CARNES, Circuit Judge: type=majority]
CARNES, Circuit Judge:
A man named Walter Hinton made the mistake of allowing Gary Ray Bowles to move into his mobile home in Jacksonville, Florida. One night after they had smoked marijuana and drunk beer, Hinton went to his room and fell asleep. Bowles “went outside and picked up a concrete block, brought it inside, the mobile home, and set it on a table.” Bowles v. State, 716 So.2d 769, 770 (Fla.1998). “After thinking for a few minutes,” Bowles picked up the concrete block, went into Hinton’s room, and “dropped” it on his head. Id. The force of the blow fractured Hinton’s face from cheek to jaw. Id. While Hinton was lying on the floor conscious, Bowles started strangling him. Id. He then stuffed toilet paper down Hinton’s throat and shoved a rag into his mouth. Hinton smothered to death. Id.
Bowles pleaded guilty to first degree murder and a jury recommended that he be sentenced to death, which the trial court did. Id. The Florida Supreme Court affirmed the conviction but reversed the sentence after determining that the trial court had erred in allowing the jury to hear that the victim was gay and that Bowles hated homosexuals. Id. at 773. At the resentencing proceeding, another jury recommended death and the trial court again imposed that sentence. Bowles v. State, 804 So.2d 1173, 1175 (Fla.2001). One of the dozen claims that Bowles raised on appeal from that new sentence was that “the trial court erred in allowing the use of peremptory challenges to remove prospective jurors who were in favor of the death penalty but would only impose it under appropriate circumstances.” Id. at 1176. The Florida Supreme Court rejected that claim on the merits. Id. at 1177 (citing San Martin v. State, 705 So.2d 1337, 1343 (Fla.1997) (“[T]he State may properly exercise its peremptory challenges to strike prospective jurors who are opposed to the death penalty, but not subject to challenge for cause.”)). Finding no merit in any of Bowles’ other claims either, the Florida Supreme Court affirmed his death sentence. Bowles, 804 So.2d at 1184.
After unsuccessfully seeking post-conviction relief in state court, Bowles v. State, 979 So.2d 182, 186 (Fla.2008), Bowles filed a petition for habeas corpus relief under 28 U.S.C. § 2254 in federal district court. That court denied relief on all of Bowles’ claims, but issued a certificate of appealability on:
the claim that [Bowles’] rights under the Sixth and Fourteenth Amendments were denied, ie., his right to an impartial jury and his due process right to a jury from which no jurors have been systematically removed by the state, when the state used peremptory challenges to remove prospective jurors who, while in favor of the death penalty, expressed reservations about recommending capital punishment.
Doc. 18 at 58. Bowles’ petition to this Court for an expanded Certificate of Appealability was denied.
Bowles does not cite any decision of any court anywhere that establishes any of the rights he is claiming in connection with the prosecutor’s use of peremptory strikes to remove jurors who have reservations about the death penalty but are not removable for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He concedes that the rights he is claiming are not to be found in any decisions of the Supreme Court or of this Court. In the Statement Regarding Oral Argument part of his brief, Bowles acknowledges that “the instant issues are of great constitutional importance, and have not been decided by this court and the U.S. Supreme Court.” Br. of Petitioner at iii. The second clause of that statement shows why Bowles’ claims cannot succeed. Actually, it is more than enough to show that, because even if there were some decision of this Court in his favor Bowles would still lose in the absence of a Supreme Court decision clearly establishing the rights he asserts.
Under § 2254(d)(1) habeas relief may be granted only when the state courts’ adjudication of his federal claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Su preme] Court.” Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). And federal law is “clearly established” only when it is “embodied in a holding” of the Supreme Court. Thaler v. Haynes, — U.S. -, 130 S.Ct. 1171, 1173, — L.Ed.2d - (2010) (per curiam). Dicta in Supreme Court opinions is not enough. Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649; 653, 166 L.Ed.2d 482 (2006); Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004); Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Ramdass v. Angelone, 530 U.S. 156, 165-66, 120 S.Ct. 2113, 2119-20, 147 L.Ed.2d 125 (2000) (plurality opinion); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Nor can anything in a federal court of appeals decision, even a holding directly on point, clearly establish federal law for § 2254(d)(1) purposes. Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1865-66, 176 L.Ed.2d 678 (2010); see Carey, 549 U.S. at 74, 77, 127 S.Ct. at 652, 654; see also Hammond v. Hall, 586 F.3d 1289, 1340 n. 21 (11th Cir.2009) (“The Supreme Court has also instructed us not to look to lower court decisions when we are deciding what is clearly established federal law for § 2254(d)(1) purposes.”).
To the extent that Bowles’ claim involves the Sixth and Fourteenth Amendment right to an impartial jury, the go to decision is Witherspoon, but Bowles cannot get there. A measure of how far away the actual state of the law is from the aspirations of his claim can be seen in an opinion of a former Justice lamenting the fact that Witherspoon and the decisions applying it have not restricted the use of peremptory strikes to remove jurors with reservations about the death penalty. In the course of dissenting from the Court’s holding refusing to extend the Wither-spoon decision in another way, Justice Marshall acknowledged that: “Wither-spoon placed limits on the State’s ability to strike scrupled jurors for cause, unless they state unambiguously that they would automatically vote against the imposition of capital punishment no matter what the trial might reveal. It said nothing, however, about the prosecution’s use of peremptory challenges to eliminate jurors who do not meet that standard and would otherwise survive death qualification.” Lockhart v. McCree, 476 U.S. 162, 190-91, 106 S.Ct. 1758, 1774, 90 L.Ed.2d 137 (1986) (Marshall, J., joined by Brennan & Stevens, JJ., dissenting) (alteration, citation, and quotation marks omitted); see also Brown v. North Carolina, 479 U.S. 940, 107 S.Ct. 423, 424-27, 93 L.Ed.2d 373 (1986) (Brennan, J., joined by Marshall, J., dissenting from denial of cert.) (acknowledging that Witherspoon applies only to challenges for cause and disagreeing with the Court’s refusal to consider extending it to peremptory challenges); id., 107 S.Ct. at 424 (“Permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon.”) (O’Connor, J., concurring in denial of cert.). The Sixth and Fourteenth Amendments impartial jury aspect of Bowles’ claim fails to make it past the § 2254(d)(1) obstacle.
Seeking relief under the Equal Protection Clause, Bowles also contends that jurors with reservations about the death penalty are a distinctive group under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which is the go to decision on that subject. Batson was initially limited to race. Id. at 89, 106 S.Ct. at 1719. Although the Court has extended Batson to gender, it has drawn the line of application at distinctive groups entitled to heightened scrutiny in an equal protection analysis. See J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 143, 114 S.Ct. 1419, 1429, 128 L.Ed.2d 89 (1994) (“Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.”). And the Supreme Court has never held that people who are less than wholehearted supporters of the death penalty are a protected class subject to heightened scrutiny for equal protection purposes.
The final facet of Bowles’ claim is his contention that striking jurors who are hesitant to vote for death violated his Sixth Amendment right to a jury drawn from a fair cross-section of the community (he phrases it in “representative sample” terms). Not only is that part of the claim unsupported by any holding of the Supreme Court, it is actually contrary to the decision in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). That decision held that the Sixth Amendment does not prohibit “the exclusion of cognizable groups through peremptory challenges.” Id. at 478, 110 S.Ct. at 806. As the Holland Court explained, “[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in [the Supreme Court’s] prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.” Id. For our purposes, that means Bowles’ claim would not have a chance of succeeding even if it were not hobbled by § 2254(d)(1).
Because clearly established federal law, as determined by holdings in Supreme Court decisions, does not prohibit prosecutors from using their peremptory strikes to remove venire members who are not ardent supporters of the death penalty, the district court correctly denied Bowles relief on this claim.
AFFIRMED.
In his initial brief to this Court, Bowles states the issue as whether his "Due Process, Equal Protection, and Right to an Impartial Jury under the Fifth, Sixth, and Fourteenth Amendments were violated when the prosecution intentionally utilized its peremptory strikes on eight ‘death scrupled jurors,’ in contemplation for service, solely for the penalty phase of trial.” Br. of Petitioner at 15.
Gary Ray BOWLES, Appellant, v. STATE of Florida, Appellee.
No. SC17-1754
Supreme Court of Florida.
[January 29, 2018]
Francis Jerome Shea, Jacksonville, Florida, for Appellant
Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have for review Gary Ray Bowles’ appeal of the circuit court’s order denying Bowles’ motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Bowles’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). After this Court decided Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), we ordered Bowles to show cause why Hitchcock should not be dispositive in this case.
After reviewing Bowles’ response to the order to show cause, as well as the State’s arguments in reply, we conclude that Bowles is not entitled to relief. Bowles was sentenced to death following a jury’s unanimous recommendation for death. Bowles v. State, 804 So.2d 1173, 1175 (Fla. 2001). Bowles’s sentence of death became final on June 17, 2002. Bowles v. Florida, 536 U.S. 930, 122 S.Ct. 2603, 153 L.Ed.2d 790 (2002). Thus, Hurst does not apply retroactively to Bowles’ sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Bowles’ motion.
The Court having carefully considered all arguments raised by Bowles, we caution that any rehearing motion containing rear-gument will be stricken. It is so ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
[OPINION BY PARIENTE, J., type=concurrence]
PARIENTE, J.,
concurring in result.
I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.
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.
No. 19-12929-P
United States Court of Appeals, Eleventh Circuit.
August 19, 2019
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.
[OPINION BY ED CARNES, Chief Judge: type=majority]
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.
I. FACTS AND PROCEDURAL HISTORY
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. 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.
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.
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.
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. He is allowed to have clemency counsel present at the interview. Id. By statute, the Board "may" in its "sole discretion" appoint the clemency counsel; the Board must maintain a list of private counsel who are available for that purpose. Fla. Stat. § 940.031. But the statute "does not create a statutory right to counsel in such proceedings." Id.
Once the Commission completes its investigation, it sends a report to the Board. Fla. R. Clemency 15(D). The Board then may, but is not required to, hold a clemency hearing, at which "the inmate's clemency counsel and the attorneys for the state may make an oral presentation, each not to exceed 15 minutes collectively." Id. at (H). Then the Board votes on whether to grant clemency. Only after "the executive clemency process has concluded" may the Governor issue a death warrant. Fla. Stat. § 922.052.
In this case, the Commission began clemency proceedings for Bowles in March of 2018. It appointed Nah-Deh Simmons, a private practitioner, as Bowles' clemency counsel. Simmons had not represented Bowles before, nor did he already know when he was first appointed that Bowles had brought an intellectual disability claim that was pending in state court. On March 26, 2018, the Commission notified Bowles that Simmons would be representing him and that a clemency interview had been set for August 2, 2018. Two days later an investigator for the Commission wrote to one of the CHU attorneys inviting them "as the post-conviction counsel" for Bowles to submit written comments to the Commission.
On June 21, 2018, the CHU attorneys, attorney Simmons, and Bowles' state-appointed attorney in his post-conviction proceedings jointly submitted a six-page, single-spaced letter to the Clemency Board. In that letter, they informed the Board of the intellectual disability claim that Bowles was pursuing in state court and asked the Board to postpone the clemency proceeding until after that claim had been resolved. Their letter also included information about Bowles' traumatic childhood and his history of substance abuse. It stated that "[b]ecause of the pending litigation in the Circuit Court on his intellectual disability claim, the narrative of [Bowles'] life cannot be further expanded on at this time." The letter asked that Bowles' sentence be commuted to life imprisonment without parole.
The CHU attorneys also contacted the Governor's office directly to request postponement of Bowles' clemency interview in light of the fact that he had an intellectual disability claim pending in state court. That request was denied on June 22, 2018. The Governor's office explained: "The clemency process is wholly separate and distinct from the successive legal challenges to [Bowles'] death sentence[ ], and inmate Bowles has been appointed separate legal counsel to represent him in the clemency proceedings. You are welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration." The CHU attorneys did not submit any materials in response to that second invitation to do so. According to Bowles' complaint in this case, Simmons interpreted the response from the Governor's office "to mean that 'the Board will only consider communications from [him],' " not from the CHU attorneys.
The CHU attorneys then assisted Simmons in preparing for Bowles' interview before the Commission, which was still set for early August, a little over a month away. During that month the CHU attorneys remained in contact with Simmons, helping him prepare for Bowles' clemency interview. They also planned to participate in that interview so that they could, in their words, protect Bowles' "rights as they pertained to his ongoing intellectual disability litigation" and provide the Commission "a full picture of ... Bowles'[ ] life history and intellectual disability." But on July 24 Simmons received a phone call from the Commission "informing him that neither [the CHU attorneys] nor [the CHU's expert witness] would be allowed to attend or participate in the clemency presentation." Only Simmons, as the duly appointed clemency counsel, would be permitted to do so. The CHU attorneys asked the Commission to reconsider that decision and allow them to appear at the clemency interview, but the Commission denied that request. In doing so, the Commission again emphasized that "[a]ny party is welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration." The CHU attorneys did not submit any more materials in response to that third invitation.
Bowles' clemency interview occurred on August 2, 2018 as planned. Bowles was present along with his clemency counsel, Simmons, who gave a presentation to the Commission, arguing for clemency. No attorney from the CHU was present. The interview lasted about an hour-and-a-half. The next month the CHU attorneys submitted a letter to the Clemency Board asking that a supplemental clemency interview be conducted by the Commission and the Board (which had not conducted or participated in the first one) at which the CHU attorneys could represent Bowles. Their letter asserted that Bowles' federal rights under 18 U.S.C. § 3599 had been abridged because the Commission had not allowed his § 3599 counsel (the CHU attorneys) to represent him at the clemency interview. The letter went unanswered.
On June 11, 2019, Simmons received a letter from the Board stating that the Governor had denied Bowles' request for clemency and had signed a death warrant. Bowles' execution is set for August 22, 2019.
D. Bowles' § 1983 Claim And Motion To Stay
On July 11, 2019, a month after the Governor denied him clemency and signed the death warrant, Bowles filed a complaint in federal district court seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Seven members or agents of the Clemency Board, including the Governor and the Attorney General, were named as Defendants. The complaint asserts that Bowles' state-appointed counsel did not, "and could not, give a meaningful clemency presentation [because of] his lack of experience in death penalty litigation, lack of training regarding intellectual disability, lack of familiarity with [the] case, and lack of resources to investigate and present experts to educate [the Commission] about intellectual disability as it applied to [Bowles]." The claim is that by refusing to allow his federally appointed counsel to participate more fully in the clemency process, the defendants had violated his "federal statutory right to representation by adequate counsel in state clemency proceedings under 18 U.S.C. 3599." (Emphasis added).
The relief requested includes: (1) a declaratory judgment that the defendants "interfered with his federal right, in the absence of adequate, similarly qualified replacement counsel, to be represented in clemency proceedings by his existing counsel appointed under 18 U.S.C. § 3599," and (2) a "permanent injunction, barring Defendants from executing him until a clemency proceeding occurs that complies with federal law." Bowles also moved in the district court for an emergency stay of execution.
The district court denied Bowles' motion for a stay on July 19, 2019. The court explained that for a statute to create a federal right enforceable through § 1983 it must impose a binding obligation on the states. And because § 3599 does not, the court concluded, Bowles cannot establish a substantial likelihood of success on the merits and his motion for a stay necessarily fails. Bowles appealed that order on August 1, 2019 and has moved this Court for an emergency stay of execution "so that the appeal of the denial of a stay in his 42 U.S.C. § 1983 action can be considered."
II. STANDARD OF REVIEW
"[A] stay of execution is an equitable remedy and all of the rules of equity apply." Long v. Sec'y, Dep't of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019). We may grant a stay of execution "only if the movant establishes that (1) he has a substantial likelihood of success on the merits, (2) he will suffer irreparable injury unless the injunction issues, (3) the injunction would not substantially harm the other litigant, and (4) if issued, the injunction would not be adverse to the public interest." Id.; see also Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011).
III. DISCUSSION
A. Substantial Likelihood Of Success On The Merits
The first requirement for a stay pending appeal is that the movant must establish a substantial likelihood of success on the merits of his appeal. For Bowles that means he must have shown a substantial likelihood that the district court abused its discretion when it denied his motion for a stay because it is the denial of that stay he is appealing. See Brooks v. Warden, 810 F.3d 812, 818 (11th Cir. 2016) ("[W]e review the denial of a stay of execution only for an abuse of discretion."). It's a request for a stay pending appeal in order to more fully review the district court's denial of a stay to give that court more time to decide the merits of Bowles' § 1983 claim based on the § 3599 issue he raises.
The district court denied Bowles' motion for a stay because it concluded that he had not shown a substantial likelihood of success on the merits of his underlying claim. The underlying claim was that he had an enforceable right under § 1983 to have his § 3599 counsel represent him in the state clemency proceeding more fully than they were allowed to do. The district court was not persuaded that Congress had created a right enforceable against the states when it provided in § 3599 for the appointment of federal counsel to represent capital defendants seeking federal habeas relief.
Section 1983 provides a private cause of action against any person who, under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. "In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). The first thing we do in determining whether a statute confers a federal right enforceable under § 1983 is "identify[ ] 'exactly what rights, considered in their most concrete, specific form, [plaintiff] [is] asserting.' " Burban v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019) (some alterations in original) (quoting Blessing, 520 U.S. at 342, 117 S.Ct. 1353). Bowles has specified that the right he asserts is the purported right under § 3599 to have his federal counsel represent him in state clemency proceedings instead of being "forced ... to proceed with inadequate counsel."
Having identified the alleged right, we "look at the text and structure of [the] statute in order to determine if it unambiguously provides" that specific right. 31 Foster Children v. Bush, 329 F.3d 1255, 1270 (11th Cir. 2003). In making that determination, we consider the three Blessing requirements to decide if that purported right is enforceable under § 1983. See Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Only if all three requirements are met will a rebuttable presumption arise that the right exists and is enforceable. See Burban, 920 F.3d at 1279; 31 Foster Children, 329 F.3d at 1269 (characterizing the Blessing factors as "requirements that must be met before a federal statute will be read to confer a right enforceable under § 1983"). Those three requirements are that: (1) "Congress must have intended that the provision in question benefit the plaintiff," (2) "the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence," and (3) "the statute must unambiguously impose a binding obligation on the States." Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (quotation marks omitted). We will begin by examining more closely the statute Bowles relies on.
1. 18 U.S.C. § 3599
Section 3599 provides funding for representation. It "authorizes federal courts to provide funding to a party who is facing the prospect of a death sentence and is 'financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services.' " Ayestas v. Davis, --- U.S. ----, 138 S. Ct. 1080, 1092, 200 L.Ed.2d 376 (2018) (quoting 18 U.S.C. § 3599(a)). Congress enacted this authorization for the funding of counsel and other legal services when it passed the Anti-Drug Abuse Act of 1988, which created a federal capital offense of drug-related homicide. See Pub. L. No. 100-690, § 7001, 102 Stat. 4181 (codified originally at 21 U.S.C. §§ 848(q)(4)-(10), then re-codified without change at 18 U.S.C. § 3599); Harbison v. Bell, 556 U.S. 180, 190, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Congress did not limit this funding authorization to representation of defendants charged in federal court with a capital crime; it also extended it to state death row inmates seeking habeas relief in federal court.
Under § 3599(a)(2), the provision applicable to state death row inmates, a prisoner seeking collateral relief in federal court "shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f)." Subsections (b) through (d) set the qualifications that counsel must meet to be appointed, and subsection (e) "sets forth counsel's responsibilities." Harbison, 556 U.S. at 185, 129 S.Ct. 1481. That subsection provides:
Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings ... and all available postconviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
18 U.S.C. § 3599(e) (emphasis added). Subsections (f) and (g) address when a court may authorize the defendant's attorneys to obtain other services on his behalf and how the attorneys will be paid for their services. Id. § 3599(f), (g).
2. The Intended Benefit?
With that brief overview we move now to the first Blessing requirement: whether Congress intended for the provision in question to benefit Bowles. Blessing, 520 U.S. at 340, 117 S.Ct. 1353. The Supreme Court has explained that when Congress intends for a provision to benefit specific individuals, it will use "rights-creating" language that is "individually focused," Gonzaga Univ. v. Doe, 536 U.S. 273, 287, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), and "phrased in terms of the persons benefited," id. at 284, 122 S.Ct. 2268 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). Title VI of the Civil Rights Act of 1964 is a good example. See Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268. Title VI very specifically provides: "No person ... shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. The right created is clear (not to be subject to discrimination by a program receiving federal funds), and it is equally clear who is obligated to respect that right ("any program or activity receiving Federal financial assistance").
In Gonzaga, the Supreme Court contrasted Title VI's "unmistakable focus on the benefited class," id. at 284, 122 S.Ct. 2268 (emphasis and quotation marks omitted), with the statute that was before it: the Family Education Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g. In FERPA Congress instructed the Secretary of Education that "[n]o funds shall be made available ... to any [school] which has a policy or practice of permitting the release of education records ... of students without the written consent of their parents ...." 20 U.S.C. § 1232g(b)(1). The Court determined that this language did not "confer the sort of individual entitlement that is enforceable under § 1983" because the provisions spoke "only to the Secretary of Education" and the provisions' focus was "two steps removed from the interests of individual students and parents." Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268 (quotation marks omitted).
Here, some provisions of § 3599 do contain the kind of individually focused language that indicates that Congress may have intended the statute to benefit certain individuals. Under subsection (a)(2), for example, it is the individual "defendant" who "shall be entitled to the appointment of one or more attorneys and the furnishing of such other services" as other subsections allow. 18 U.S.C. § 3599(a)(2). That could indicate that Congress intended to benefit capital defendants by entitling them to the appointment of counsel and other services.
But that's not the end of the analysis. Even if § 3599 creates some kind of private entitlement, we must still ensure that it compels the specific "right the plaintiff seeks to vindicate as opposed to some other right." Burban, 920 F.3d at 1280; see Blessing, 520 U.S. at 340, 117 S.Ct. 1353 (explaining that our focus is whether the "provision in question" benefits the plaintiff) (emphasis added). The right Bowles seeks to vindicate is not the appointment or compensation of counsel but the right to have his federally appointed counsel appear at a state clemency interview where the State has appointed another attorney to do so. Nowhere in § 3599 did Congress "speak[ ] with a clear voice" that a state death row inmate has an individual right to have his § 3599 counsel, instead of or in addition to some other counsel, represent him in a state clemency proceeding against the State's wishes. See Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268.
As Bowles sees it, § 3599(e) defines the scope of his right and embodies a mandate from Congress that his § 3599 appointed attorney "shall also represent" him in any "proceedings for executive or other clemency as may be available." 18 U.S.C. § 3599(e). Therefore, according to Bowles, Congress has created an individual right for him to have his attorney appear in any state clemency proceedings, regardless of the rules that the State normally applies to those proceedings. And unless that right is honored, he insists, the state court judgment conferring his death sentence cannot be carried out.
We do not believe that Congress intended to include such an expansive right, coupled with such a drastic remedy, in such an innocuously worded statute. After all, "[i]t is beyond dispute that [federal courts] do not hold a supervisory power over the courts of the several States." Dickerson v. United States, 530 U.S. 428, 438, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see Harris v. Rivera, 454 U.S. 339, 344-45, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("Federal judges have no general supervisory power over state trial judges; they may not require the observance of any special procedures except when necessary to assure compliance with the dictates of the Federal Constitution."); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."). It would be a radical departure from the norm for lower federal courts, or Congress, to tell state courts what to do in state proceedings, including which lawyers they must permit to appear before them in those proceedings.
And that is, if anything, especially true of state clemency proceedings. Clemency is "the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera v. Collins, 506 U.S. 390, 412, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). It is undisputed that there is no constitutional right to clemency. Id. at 414, 113 S.Ct. 853. It is instead a discretionary remedy that is "granted 'as a matter of grace.' " Valle v. Sec'y, Fla. Dep't of Corr., 654 F.3d 1266, 1268 (11th Cir. 2011) (quoting Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280-81, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998)). Over that discretionary act of state executive officials, the federal judiciary exercises very little, if any, oversight. See Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O'Connor, J., concurring) ("[J]udicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process."); Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014) (per curiam) (recognizing Justice O'Connor's concurring opinion in Woodard as "set[ting] binding precedent").
Not only that, but as the district court pointed out, "it is questionable" whether the kind of interference in state clemency processes that Bowles says § 3599 provides would even be constitutionally permissible. Cf. Hoover v. Ronwin, 466 U.S. 558, 569 n.18, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) (explaining that regulation of the bar is an important "sovereign function" of state government linked to the power to protect the public). That is another reason not to interpret § 3599 in the way Bowles urges. See Clark v. Martinez, 543 U.S. 371, 380-81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (stating that statutes should be construed to avoid constitutional questions if fairly possible to do so); Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895) ("The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."). At the very least, the intrusion of federal courts into state clemency proceedings would "aggravate the harm to federalism that federal habeas review" already causes. Davila v. Davis, --- U.S. ----, 137 S. Ct. 2058, 2070, 198 L.Ed.2d 603 (2017); see also id. ("Federal habeas review of state convictions entails significant costs and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.") (citations and quotation marks omitted). And as we have discussed, federal courts have never exercised supervisory power over state courts and may not intervene in these proceedings except to prevent or remedy constitutional violations. See supra at 1242.
When legislating against that backdrop, if Congress intends to allow federal interference into areas traditionally reserved to the states, it speaks clearly and unequivocally. See, e.g., 28 U.S.C. § 2251(a)(1) (explicitly granting "[a] justice or judge of the United States before whom a habeas corpus proceeding is pending" the authority to "stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding"); id. § 2251(a)(3) (explicitly authorizing court to grant stay to allow for appointment of counsel under § 3599(a)(2)). There is nothing in § 3599 to indicate that Congress meant to empower Bowles' federally appointed and funded counsel to force themselves into state clemency proceedings.
A more natural reading of § 3599 is that all it does is what it says it does. Subsection (a) entitles defendants to the appointment of counsel and to the furnishing of certain other services. The other subsections explain just what that appointment and the furnishing of those services entails, including funding. No part of § 3599 states that appointed counsel have the right to appear in state clemency proceedings where the State has provided other counsel. It is telling that every decision the parties rely on in which a court has interpreted § 3599 concerns when a federal district court has the authority to appoint counsel or approve the funding of other services - not whether federally appointed counsel can force their way into proceedings in which they would otherwise not be allowed and where there is already state-appointed counsel. Congress may have created other rights in § 3599, but we are not persuaded that it intended to give Bowles the specific and extraordinary right he claims.
3. Intended Enforcement?
Our conclusion is reinforced by consideration of the second Blessing requirement: whether the "right assertedly protected by the statute" is "so vague and amorphous" that its enforcement would "strain judicial competence." Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (quotation marks omitted). As we construe it, § 3599 is sufficiently definite that our judicial competence is not strained. We are routinely confronted with questions of whether the statute authorizes the appointment of counsel or the furnishing of other funding in this or that circumstance. See, e.g., Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1213-14 (11th Cir. 2014) (noting that it would be an abuse of discretion for a district court "to appoint federal habeas counsel to assist a state prisoner in exhausting his state postconviction remedies before a formal § 2254 petition has been filed"); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1268-69 (11th Cir. 2012) (holding that district court did not abuse its discretion in refusing to authorize federal funds for experts to testify at state clemency hearing). As a primarily funding statute, there are objective guidelines.
But not if we construe the statute as Bowles would have us. The statute says nothing about when and how and under what circumstances the provisions of § 3599 are to override state clemency rules and procedures. We do not think Congress would enact such a far-reaching and intrusive right as the one Bowles asserts without also providing an objective benchmark to measure the extent of that right and gauge how it is to be enforced. See Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 519, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (holding that obligation imposed on the states by statute was not "vague and amorphous" where the statute set out factors for the state to consider).
4. An Intended Obligation on the States?
Finally, even if Congress did enact § 3599 to benefit § 1983 plaintiffs in the way Bowles asserts, and even if we could find clarity in the statute about how to enforce the right Bowles claims, we would still conclude that Congress did not intend for the right to be enforceable through § 1983. We would because no provision of § 3599, "read individually or together, 'unambiguously impose[s] a binding obligation on the States' " to allow federally appointed counsel to appear in state clemency proceedings where that counsel would not otherwise have a right to appear. Burban, 920 F.3d at 1279 (alteration in original) (quoting Blessing, 520 U.S. at 341, 117 S.Ct. 1353).
A provision unambiguously imposes a binding obligation on the states when it is "couched in mandatory, rather than precatory, terms." Blessing, 520 U.S. at 341, 117 S.Ct. 1353. Section 3599 does use some mandatory language: defendants "shall be entitled" to the appointment of counsel, and counsel "shall" represent the defendant in certain proceedings, including clemency proceedings. § 3599(a)(2), (e). But that language does not even indirectly obligate the states to do anything. The statute does not say that clemency officials shall or must allow counsel appointed by a federal court under § 3599 to appear and represent the petitioner in a state clemency proceeding. Instead, as the district court pointed out, the statute "places an obligation on the federal courts to appoint and compensate postconviction counsel for indigent capital defendants," and it "places a binding obligation on the defendant's federally appointed attorney," but at no point does the statute obligate "state courts or executive bodies to allow the federally appointed attorney to appear and practice before them." Doc. 25 at 6-7.
That's true of subsection (e), which specifically lists the state proceedings at which an appointed attorney "shall also" represent the defendant. That subsection does two things. First, it defines the scope of any appointment made under subsections (a)(1) and (a)(2). To the extent the subsection is definitional in nature, that definition "alone cannot and do[es] not supply a basis for conferring rights enforceable under § 1983." See 31 Foster Children, 329 F.3d at 1271. Second, the subsection obligates the attorney to represent his client in certain proceedings, including "proceedings for executive or other clemency as may be available to the defendant." § 3599(e). But the attorney is obligated to do that, and can do that only if he is allowed to do so by the relevant clemency officials. The statute does not obligate any state officials, including clemency officials, to allow an attorney appointed under § 3599 by a federal court to appear in and represent the petitioner in any state proceeding.
Bowles contends to the contrary. He insists that his right to an attorney and the obligation the statute imposes on that attorney to represent him in state clemency proceedings necessarily create a derivative obligation on the State to allow his attorney to appear in that proceeding. He argues that the right Congress created would be meaningless unless the states had to affirmatively accommodate it. Cf. McFarland v. Scott, 512 U.S. 849, 859, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (explaining that (1) criminal defendants are entitled to challenge their conviction and sentence in habeas corpus proceedings, (2) Congress has provided "indigent capital defendants with a mandatory right to qualified legal counsel" in those proceedings, and (3) as a result, a stay of execution is sometimes necessary "to give effect to that statutory right" to have appointed counsel file a § 2254 petition on the defendant's behalf).
Not quite. In § 3599, Congress created a mechanism for the appointment of counsel for certain capital defendants seeking to set aside their convictions or sentences in federal court. Otherwise, some of them might not be able to obtain counsel. But because Congress is not in the business of hiding elephants in mouseholes, see Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), we doubt that it meant to use that procedural mechanism to stealthily impose a new set of rules on the states requiring them to treat federally appointed counsel differently than they would treat any other lawyer. Cf. Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (emphasizing the "fundamental policy against federal interference with state criminal prosecutions"). Under Bowles' interpretation of the statute, does § 3599 also impose an obligation on the states to allow federally appointed counsel to practice in state courts where they are not admitted? Bowles argues that "[i]n no other context can a state court ... refuse to hear from a death-sentenced litigant's counsel simply because of the origin of their representation." First, that argument gets things backward. The State appointed counsel for Bowles and allowed that counsel to represent him in the clemency proceedings. It is Bowles who seeks to have a federal court order the State to allow other counsel into a state proceeding "simply because of the origin of their representation." Second, the factual premise of the argument is wrong. The Clemency Commission did not, as he asserts, "refuse to hear from a death-sentenced litigant's counsel." The Commission heard from his state-appointed counsel and his federally appointed counsel were invited three times to submit any written materials they wished, and they did submit a lengthy letter in support of clemency.
As the district court concluded, "[t]o the extent section 3599(e) bears at all on a state's action, it is a precatory statement that the state should allow the defendant's federally appointed counsel to appear in such proceedings." But precatory statements, like implications, are not enough under Blessing. Blessing, 520 U.S. at 341, 117 S.Ct. 1353.
Because Bowles seeks to enforce a right under § 1983 that Congress did not make enforceable against the states, he has not shown a substantial likelihood of success on the merits of his § 1983 claim before the district court. For that same reason he has not shown a substantial likelihood of success on his appeal of the district court's denial of his motion to stay his execution.
B. Other Stay Requirements
Bowles contends that even if he cannot show a substantial likelihood of success on the merits, this Court should still grant him a stay of execution because his lawsuit "presents substantial issues of first impression for this Circuit" and he has made a strong showing on the other three factors. Even if he has, the standard he argues for is not the one the Supreme Court has instructed us to use. Instead, it has held that inmates 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." Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (emphasis added).
And that has long been our rule. See Brooks, 810 F.3d at 818 ("It is by now hornbook law that a court may grant a stay of execution only if the moving party establishes that: (1) he has a substantial likelihood of success on the merits ....") (quotation marks omitted); Jones v. Comm'r, Ga. Dep't of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016) ("It is by now axiomatic that a court may grant a stay of execution only if the moving party establishes that: (1) he has a substantial likelihood of success on the merits ....") (emphasis added) (quotation marks omitted); Gissendaner v. Comm'r, Ga. Dep't of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (stating that a stay of execution "is appropriate only if the moving party establishes all of the" traditional elements for granting a stay) (emphasis added); Powell, 641 F.3d at 1257 ("This Court may grant a stay of execution only if the moving party shows that: (1) he has a substantial likelihood of success on the merits ....") (emphasis added).
For that reason, we have often declined to consider the remaining stay requirements when an inmate has not shown a substantial likelihood of success on the merits. See Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir. 2013) ("Because [the defendant] cannot establish a substantial likelihood of success on the merits of his complaint, we deny [his] motion for a stay of execution."); Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011) (per curiam) ("Because [the defendant] has failed to show a substantial likelihood of success on the merits, we need not address the other three requirements for issuance of a stay of execution."); DeYoung v. Owens, 646 F.3d 1319, 1328 (11th Cir. 2011) ("[The defendant] has not demonstrated a substantial likelihood of success on the merits of his claims. Therefore, the Court denies [his] motion for a stay of execution in this Court.").
Second, the balance of the equities does not weigh in Bowles' favor anyway. Specifically, he has not shown that "the injunction would not substantially harm the other litigant" or that "the injunction would not be adverse to the public interest." Long, 924 F.3d at 1176. The Supreme Court has repeatedly recognized that "equity must be sensitive to the State's strong interest in enforcing its criminal judgment without undue interference from the federal courts." Hill, 547 U.S. at 584, 126 S.Ct. 2096; see Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (recognizing "the State's significant interest in enforcing its criminal judgments"); In re Blodgett, 502 U.S. 236, 239, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (noting that a stay prevents a state "from exercising its sovereign power to enforce the criminal law"); Gomez v. U.S. Dist. Ct. of N. Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam) ("Equity must take into consideration the State's strong interest in proceeding with its judgment ...."); McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (recognizing the "State's interest in the finality of its criminal judgments"). As the Supreme Court has explained: "Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike." Calderon v. Thompson, 523 U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citations and quotation marks omitted).
We have also long emphasized "the State's and the victims' interests in the finality and timely enforcement of valid criminal judgments." Ledford v. Comm'r, Ga. Dep't of Corr., 856 F.3d 1312, 1320 (11th Cir. 2017); see Arthur v. King, 500 F.3d 1335, 1340 (11th Cir. 2007) (per curiam) ("The strong interest of the State and the victims'[ ] families is in the timely enforcement of a sentence, which acquires an added moral dimension once post-trial proceedings finalize.") (citation and quotation marks omitted); Williams v. Allen, 496 F.3d 1210, 1214 (11th Cir. 2007) (noting that "[b]oth the State and the victim's family have a strong interest in the timely enforcement of [the defendant's] death sentence," and explaining that an entry of a stay would grant the defendant a "reprieve from his judgment"). And we have rejected the argument that "the equities favor a stay because [the defendant] will suffer irreparable harm if he is executed, whereas the state will only suffer [a] minimal inconvenience," because "the state, the victim, and the victim's family also have an important interest in the timely enforcement of [the defendant's] sentence." Brooks, 810 F.3d at 825-26 (quotation marks omitted).
So while "neither [the State] nor the public has any interest in carrying out an execution" based on a defective conviction or sentence, see Ray v. Comm'r, Ala. Dep't of Corr., 915 F.3d 689, 702 (11th Cir. 2019), "[b]oth the State and the victims of crime have an important interest in the timely enforcement of a [valid] sentence," Hill, 547 U.S. at 584, 126 S.Ct. 2096. Stays of executions where the conviction and sentence are valid impose a cost on the State and the family and friends of the murder victim. As we have stated many times, "[e]ach delay, for its span, is a commutation of a death sentence to one of imprisonment." Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983); see McNair v. Allen, 515 F.3d 1168, 1176 (11th Cir. 2008) (same); Jones v. Allen, 485 F.3d 635, 641 (11th Cir. 2007) (same); Williams v. Allen, 496 F.3d 1210, 1214 (11th Cir. 2007) (same); Schwab v. Sec'y, Dep't of Corr., 507 F.3d 1297, 1301 (11th Cir. 2007) (per curiam) (same); Rutherford v. McDonough, 466 F.3d 970, 978 (11th Cir. 2006) (same); Lawrence v. Florida, 421 F.3d 1221, 1224 n.1 (11th Cir. 2005) (same).
V. CONCLUSION
Because Bowles seeks to enforce a right under § 1983 that Congress did not make enforceable against state clemency officials under that statute, he has not shown a substantial likelihood of success on the merits of his claim that the district court abused its discretion by denying his motion for a stay. Nor has he shown that the balance of equities warrants the entry of a stay of execution for his 1994 murder of Walter Hinton.
Gary Bowles murdered Walter Hinton, John Roberts, and Albert Morris in separate incidents during 1994. And he later informed a psychologist that he had killed three other people as well. Now, a quarter of a century after his three-murder year, he wants the carrying out of his death sentence, which was unanimously recommended by the jury, stayed. He is not entitled to a stay of execution, which would amount to a commutation of his death sentence for the duration of the stay. See Bucklew v. Precythe, --- U.S. ----, 139 S. Ct. 1112, 1133-34, 203 L.Ed.2d 521 (2019) (lamenting that the State's "interests have been frustrated" by the imposition of legal delays because the defendant "committed his crimes more than two decades ago," and stating that "[t]he people of [the State], the surviving victims of [the defendant's] crimes, and others like them deserve better").
MOTION FOR A STAY OF EXECUTION DENIED.
The Florida Supreme Court decisions do not mention the names of Bowles' other victims, the exact dates of their deaths, or Bowles' sentences for committing the murders. We have gleaned that information from the dockets for those consolidated cases. See Certified Copies of Prior Convictions, State v. Bowles, No. 1994 036050 CFAES/1996 036260 CFAES (Fla. 7th Cir. Ct. Aug. 6, 1997), Doc. No. 169 (containing certified copies of indictments and judgments); see also Florida Department of Corrections, Gary Ray Bowles, Corrections Offender Network, http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail & =086158 & TypeSearch=AI (last updated Aug. 11, 2019). In keeping with Eleventh Circuit Internal Operating Procedure 10, "Citation to Internet Materials in an Opinion," under Federal Rule of Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at this Court's Clerk's Office.
For the murder of Roberts, Bowles was sentenced in 1996 to life in prison. For the murder of Morris, in 1997 he was also sentenced to life in prison.
In a state post-conviction proceeding in connection with an ineffective assistance of counsel claim, Bowles was evaluated by a clinical psychologist. That psychologist testified "that Bowles told him that 'it bothers him [that] he killed six people who probably didn't deserve to die.' " Bowles v. State, 979 So. 2d 182, 187 (Fla. 2008) (alteration in original) (emphasis added). Not three, but six.
We do not, as our concurring colleague suggests, "[u]nderstand 18 U.S.C. § 3599 to authorize federally appointed (and federally paid) habeas counsel to appear in state proceedings." At least, not in all state proceedings and not in all circumstances. See infra at 1244 n.9.
In his reply brief in support of his motion to stay in the district court, Bowles clarified that he was not asserting that the defendants violated his rights under the Due Process Clause or the Sixth Amendment, and his only claim for relief was that the defendants "violated his federal statutory right, codified in § 3599, to representation by his appointed federal counsel."
Bowles says that his § 3599 counsel was not allowed to represent him in the clemency proceedings, but that's not quite accurate. As Bowles' complaint notes, the Clemency Commission reached out to his CHU attorneys and invited them to submit comments and materials to the Commission. Those attorneys did so, submitting a six-page letter with information about Bowles' traumatic childhood and history of substance abuse. They also stated that "[b]ecause of the pending litigation in the Circuit Court on his intellectual disability claim, the narrative of [Bowles'] life cannot be further expanded on at this time." That perceived difficulty was not, of course, caused by the CHU attorneys not being appointed clemency counsel.
The CHU attorneys were also invited two more times to submit information to the Commission. The first was when the Governor's office rejected their request to reschedule Bowles' clemency interview. The Governor's office told the CHU attorneys: "You are welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration." The other additional invitation (which was the third one in all) came when the Commission denied the CHU attorneys' request to appear at the clemency interview. In doing so, it again stressed that "[a]ny party is welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration."
The CHU attorneys never submitted any more materials in response to those additional invitations. And Bowles does not claim that the Commission did not consider the letter that they had submitted or that it prevented them from submitting any other information or materials. The sum total of his claim appears to be that at the hour-and-a-half long clemency interview on August 2, 2018, Bowles should have been represented by the CHU attorneys instead of by the clemency attorney the Commission had appointed.
We note, as the district court did, that other "courts have considered whether an attorney appointed pursuant to section 3599 was authorized [by a federal court] to represent the defendant for a particular purpose, but not whether the defendant was entitled as a matter of federal law to have that attorney appear at a particular proceeding." Doc. 25 at 7-8 (emphasis added). Compare, e.g., Samayoa v. Davis, 928 F.3d 1127, 1132 (9th Cir. 2019) (holding that "state provisions for clemency counsel do not bar the appointment of additional counsel under § 3599 for purposes of state clemency proceedings"), with Irick v. Bell, 636 F.3d 289, 291 (6th Cir. 2011) (holding that § 3599 does not "obligate the federal government to pay for counsel in state [clemency] proceeding where the state itself has assumed that obligation"). Authorization to appear (and be paid) if allowed is one thing, right to appear instead of, or in addition to, state-appointed counsel is another. None of the § 3599 authorization decisions, as far as we can tell, were brought under § 1983 or sought the right to appear in a state clemency proceeding where the state provides other counsel.
By noting that distinction and by focusing on whether Bowles had a right to have his federally appointed counsel appear in the state clemency proceedings, we do not mean to imply that § 3599 obligates or even authorizes a federal district court to appoint federal counsel to appear in state clemency proceedings where the State has already appointed counsel for that purpose. That question is simply not before us. Nor was it before the Supreme Court when it held that "§ 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation." Harbison v. Bell, 556 U.S. 180, 194, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009); cf. id. at 189, 129 S.Ct. 1481 (noting that § 3599(a)(2) "provides for counsel only when a state petitioner is unable to obtain adequate representation").
To the extent Bowles complains that his state-appointed counsel did not do a good enough job representing him in the state clemency proceedings, the right to have a more effective attorney represent him than the one who did is even further removed from the language of § 3599. And given that there is no constitutional right to clemency, there is no constitutional right to effective assistance of counsel in clemency proceedings. Cf. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.") (citations omitted); Murray v. Giarratano, 492 U.S. 1, 11, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) ("[P]risoners seeking judicial relief from their sentence in state proceedings [are] not entitled to counsel."); Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 944 (11th Cir. 2014) ("The Supreme Court has long held that there is no constitutional right to counsel in post-conviction proceedings, even in capital cases, which necessarily means that a habeas petitioner cannot assert a viable, freestanding claim for the denial of the effective assistance of counsel in such proceedings.").
E.g., Ayestas, 138 S. Ct. at 1085 (resolving in § 2255 appeal question of what standard courts must use to grant or deny funding under § 3599(f)); Harbison, 556 U.S. at 194, 129 S.Ct. 1481 (holding that § 3599 authorizes a district court to appoint and fund counsel to represent defendant in state clemency proceedings); McFarland v. Scott, 512 U.S. 849, 855-57, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (holding that the right to appointed counsel in federal habeas proceedings "adheres prior to the filing of a formal, legally sufficient habeas corpus petition"); Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1213-14 (11th Cir. 2014) (noting that "it would be an abuse of discretion for a district court to appoint federal habeas counsel to assist a state prisoner in exhausting his state postconviction remedies before a formal § 2254 petition has been filed"); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1277-79 (11th Cir. 2012) (holding that § 3599 does not provide for the federal appointment and funding of counsel to bring a new state court post-conviction proceeding unrelated to any federal claim); King v. Moore, 312 F.3d 1365, 1368 (11th Cir. 2002) (holding that a state prisoner is not entitled to federally funded counsel for the purpose of pursuing state post-conviction remedies); In re Lindsey, 875 F.2d 1502, 1506 (11th Cir. 1989) (holding that the right to federally appointed counsel does not encompass "any proceedings convened under the authority of a State").
[OPINION BY MARTIN, Circuit Judge, concurring: type=concurrence]
MARTIN, Circuit Judge, concurring:
Like the Majority, I understand 18 U.S.C. § 3599 to authorize federally appointed (and federally paid) habeas counsel to appear in state proceedings. See Harbison v. Bell, 556 U.S. 180, 185-87, 129 S. Ct. 1481, 1486-87, 173 L.Ed.2d 347 (2009). Yet I believe the Majority reaches the correct legal ruling when it holds that Mr. Bowles has not shown a substantial likelihood of success on the merits of his 42 U.S.C. § 1983 claim. Legal precedent tells me that 18 U.S.C. § 3599 does not unambiguously impose a binding obligation on the States to allow federally appointed habeas counsel to appear in state clemency proceedings to advocate for a death row inmate. See Blessing v. Freestone, 520 U.S. 329, 341, 117 S. Ct. 1353, 1359, 137 L.Ed.2d 569 (1997) (stating a federal statute must "unambiguously impose a binding obligation on the States" to be enforceable under § 1983). For that reason, I must agree that the right Mr. Bowles says Congress conferred through § 3599 is not enforceable in a § 1983 action. See id.; see also Burban v. City of Neptune Beach, 920 F.3d 1274, 1279-80 (11th Cir. 2019).
However, I believe the question presented by Mr. Bowles's case is fully answered by analysis of the third Blessing factor alone, which means there was no need for the Majority opinion to discuss the other factors. See Burban, 920 F.3d at 1279 ("If a provision fails to meet any one of the three Blessing factors, it does not provide a person with a federal right enforceable under § 1983."). With regard to the Blessing analysis contained in the Majority opinion, therefore, I join only that related to the third of its requirements. Neither do I join in the analysis contained in the Majority opinion regarding the requirements for a stay of execution, beyond that related to the first factor: substantial likelihood of success on the merits. See Hill v. McDonough, 547 U.S. 573, 584, 126 S. Ct. 2096, 2104, 165 L.Ed.2d 44 (2006) (explaining that inmates seeking a stay of execution "must satisfy all the requirements for a stay, including a showing of a significant possibility of success on the merits").
I also write separately to express my view that both Mr. Bowles and the Florida Commission on Offender Review (the "Commission") could have benefited by having counsel from the Capital Habeas Unit of the Federal Public Defender for the North District of Florida ("CHU") continue to represent Mr. Bowles in his state clemency proceedings. It is puzzling that the Commission barred the knowledgeable and willing CHU lawyers from representing Mr. Bowles. Just as I must acknowledge that Mr. Bowles may not enforce a legal right to be represented by counsel from the CHU, neither was there any legal impediment to those lawyers appearing on his behalf. Thus, it is not only mysterious but possibly tragic that counsel was turned away.
Attorneys from the CHU have specialized training in the intricacies of death penalty litigation. And Mr. Bowles's CHU counsel represented him in his federal habeas proceedings. As a result, they became intimately familiar with Mr. Bowles's history of being physically and sexually abused; the neglect and abuse he suffered at the hands of his mother; his intellectual disabilities; his early introduction to substance abuse; and the details of his life as a homeless child prostitute. This wealth of knowledge about Mr. Bowles would have aided the Commission members in learning whether he would be a good candidate for executive clemency. See Fla. Stat. § 947.13(e) (noting the Commission must report to the Clemency Board about an inmate's "social, physical, mental, and psychiatric conditions and histor[y]"); see also Am. Bar Ass'n, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, 63 Ohio State L.J. 487, 511-12 (2002) (listing factors that may be considered during the clemency process).
Instead of hearing from Mr. Bowles's experienced and knowledgeable counsel, the Commission appointed a new lawyer. According to Mr. Bowles's filings, this new lawyer had never handled a death penalty case at any stage. Also, at the time of his appointment, this lawyer had no familiarity with Bowles's history. Perhaps it was for these reasons that the new lawyer welcomed participation by the CHU lawyers in Mr. Bowles's clemency proceedings. The Commission, on the other hand, was not welcoming at all. For me, the Commission's decisions to bar the appearance of experienced counsel casts a shadow over Mr. Bowles's clemency proceeding.
Particularly in cases where the State intends to take a man's life, clemency proceedings play an important role. Clemency power is "a prerogative granted to executive authorities to help ensure that justice is tempered by mercy." Cavazos v. Smith, 565 U.S. 1, 8-9, 132 S. Ct. 2, 7, 181 L.Ed.2d 311 (2011) (per curiam). And the Supreme Court has repeatedly recognized that "[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera v. Collins, 506 U.S. 390, 411-412, 113 S. Ct. 853, 866, 122 L.Ed.2d 203 (1993) (footnote omitted); see also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89, 118 S. Ct. 1244, 1253-54, 140 L.Ed.2d 387 (1998) (O'Connor, J., concurring) (recognizing that death row inmates have a limited due process interest in their state clemency proceedings). Clemency is "the fail safe in our criminal justice system." Harbison, 556 U.S. at 192, 129 S. Ct. at 1490 (2009) (quotation marks omitted). That the State of Florida would turn away competent counsel from Mr. Bowles' clemency proceeding devalues the role that clemency was long ago established to play in our criminal justice system.
Florida law gives the Commission the authority and responsibility to "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. Exec. Clemency 15(B); see Fla. Stat. § 947.13 (powers and duties of the commission). The Commission must report to the Clemency Board on "the circumstances, the criminal records, and the social, physical, mental, and psychiatric conditions and histories of persons under consideration [for clemency]." Fla. Stat. § 947.13(e). For inmates who have been sentenced to die at the hands of the state, yet who are seeking a commutation of their death sentence, the Commission must conduct "an interview with the inmate, who may have clemency counsel present." Fla. R. Exec. Clemency 15(B). This clemency process is likely the last opportunity a death-sentenced inmate has to persuade the State that his life is worth sparing. I cannot understand why Florida would fail to equip itself with the most fulsome presentation possible, when its charge is to be sure that the execution of a man is not a miscarriage of justice. The same holds true for its charge to examine whether a man warrants mercy.
When Mr. Bowles appeared for his clemency interview, he did not have the counsel who had been by his side through his federal habeas proceedings. This happened, even though federal law funds counsel for this purpose, and his habeas counsel was ready to represent him. See 18 U.S.C. § 3599(e). Mr. Bowles, the Commission, and the Clemency Board all would have benefitted from continuity of counsel. See Harbison, 556 U.S. at 193, 129 S. Ct. at 1490-91 (recognizing that in designing § 3599, "Congress likely appreciated that federal habeas counsel are well positioned to represent their clients in the state clemency proceedings that typically follow the conclusion of [federal habeas] litigation"). This is especially troubling because neither the District Court's records nor the records before this Court offer any explanation as to why the Commission turned away CHU counsel.
There are currently 343 men and women on Florida's death row. See Death Row Roster, Fla. Dep't of Corr., http://www.dc.state.fl.us/OffenderSearch/deathrowroster.aspx (last visited Aug. 16, 2019). Florida gives each of them an opportunity to seek clemency from the governor, "as a matter of grace," Woodard, 523 U.S. at 280-81, 118 S. Ct. at 1250 (plurality opinion). Grace would include, in my view, the opportunity for them to make their very best case for mercy.
The Majority Opinion seems to suggest that once "the State has already appointed counsel" to represent a death row inmate, § 3599 may not authorize federally appointed and paid counsel to represent their client in state clemency proceedings. Maj. Op. at 1240 n.7. However, the statute does not make this distinction:
Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
18 U.S.C. § 3599(e).
This Court has recognized that the holding in Woodard was provided by Justice O'Connor's concurring opinion. See Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014) (per curiam).
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.
[OPINION BY ED CARNES, Chief Judge: type=majority]
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.").
The district court was right to dismiss Bowles' § 2254 petition for lack of jurisdiction. Bowles filed his first § 2254 petition in the district court in 2008. It denied the petition on the merits and this Court affirmed. Bowles, 608 F.3d at 1315 (11th Cir. 2010). That made any later § 2254 petitions Bowles filed subject to AEDPA's restrictions on second or successive petitions. One of those restrictions is that "[b]efore a second or successive application ... is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). But Bowles did not come to this Court for authorization to file his petition. Instead, he filed his second habeas petition directly in the district court. As a result, the district court was required to dismiss the petition for lack of jurisdiction, and that's what it did. See Burton v. Stewart, 549 U.S. 147, 157, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (holding that a district court must dismiss a petition "for lack of jurisdiction" if the prisoner does not receive authorization from the court of appeals before filing a second or successive petition in the district court); Lambrix v. Sec'y, Dep't of Corr., 872 F.3d 1170, 1180 (11th Cir. 2017) (stating that when a petitioner fails to obtain authorization from the court of appeals to file a second or successive habeas petition, "the district courts lack jurisdiction to consider the merits of the petition"); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition.").
In his motion to stay Bowles argues that he "can make a strong showing that he is likely to succeed in his argument that his Atkins claim is not successive," but he does not elaborate on what that showing would be. In his reply brief he clarified that he is relying on the arguments he made before the district court for that showing, and what Bowles argued there is that the clear statutory command of § 2244(b)(3)(A) does not apply to him because his petition is not really a second or successive one under Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). But that decision does not apply to Bowles' petition.
In Panetti a petitioner brought a claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), contending that his mental illness at the time of his scheduled execution meant that the State could not execute him. 551 U.S. at 941-42, 127 S.Ct. 2842. The Supreme Court held that the petition, though the inmate's second one, did not trigger AEDPA's "second or successive" restrictions because a Ford claim does not become ripe until a date is set for the prisoner's execution, which may occur after he has filed his first federal habeas petition. Id. at 947, 127 S.Ct. 2842. The Court held that "[t]he statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." Id.
We have explained that: "The Panetti case involved only a Ford claim, and the Court was careful to limit its holding to Ford claims. The reason the Court was careful to limit its holding is that a Ford claim is different from most other types of habeas claims." Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1259 (11th Cir. 2009) (citation omitted). Unlike most other types of claims, a Ford claim of mental incompetence can arise at any point in a prisoner's life and is usually "not ripe until after the time has run to file a first federal habeas petition." Panetti, 551 U.S. at 943, 127 S.Ct. 2842. The Supreme Court's narrow reasoning created a narrow holding that is "notably limited ... to incompetency claims." In re Davis, 565 F.3d 810, 820 n.6 (11th Cir. 2009) (per curiam).
Bowles is not seeking to raise a Ford claim of mental incompetence to be executed. Instead, he wants to raise an Atkins claim that he cannot be executed because he is intellectually disabled. But Panetti "d[id] not involve Atkins or [intellectual disability]." Hill v. Humphrey, 662 F.3d 1335, 1359 (11th Cir. 2011) (en banc). And an Atkins claim of intellectual disability is not like a Ford claim of mental incompetence. The district court explained the difference: "Intellectual disability at the time the crime is committed (Atkins) is different from incompetency at the time of execution (Ford). The first renders an inmate ineligible for a death sentence; the second renders a death-sentenced inmate ineligible for execution."
Under Supreme Court precedent, not to mention by medical definition, the onset of intellectual disability in an Atkins claim "must occur before age 18 years." Atkins, 536 U.S. at 308 n.3, 122 S.Ct. 2242 (2002); see Hall v. Florida, 572 U.S. 701, 710, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014) ("[T]he medical community defines intellectual disability according to three criteria ... [including] onset of [intellectual and adaptive] deficits during the developmental period."); see also Carroll v. Sec'y, DOC, 574 F.3d 1354, 1369 (11th Cir. 2009) (stating that a prisoner bringing an intellectual disability claim must "demonstrate significantly subaverage general intellectual functioning along with deficits in adaptive behavior and an onset before age 18.") (emphasis omitted) (quotation marks omitted). As a result, "[t]he Supreme Court's holdings regarding Ford incompetence-to-be-executed claims cannot be imported, wholesale, into the law governing Atkins claims." Busby v. Davis, 925 F.3d 699, 713 (5th Cir. 2019); see Davis v. Kelley, 854 F.3d 967, 971-72 (8th Cir. 2017) (holding that " Panetti ... has no force or applicability to [the prisoner's Atkins ] claim" because Atkins focuses on the prisoner's culpability at the time of the crime, whereas Ford concerns the prisoner's competency at the time of his execution).
That also means that, unlike a Ford claim, an Atkins claim "can be and routinely [is] raised in initial habeas petitions." Tompkins, 557 F.3d at 1260; see, e.g., Hill, 662 F.3d at 1361 (denying petitioner's Atkins intellectual disability claim raised in first federal habeas petition); Powell v. Allen, 602 F.3d 1263, 1268, 1272 (11th Cir. 2010) (same); Carroll, 574 F.3d at 1366-67 (same). If Bowles has an intellectual disability now, then he had an intellectual disability when he filed his first federal habeas petition in 2008. That was six years after the Supreme Court decided Atkins. But Bowles did not include an Atkins claim in that petition. That makes his current petition second or successive under § 2244(b)(3)(A), and given the lack of authorization from this Court the district court was right to dismiss it for lack of jurisdiction. See Burton, 549 U.S. at 157, 127 S.Ct. 793.
B. Bowles' § 2241 Petition And Miscarriage Of Justice Arguments
Bowles raised three other arguments before the district court for why his petition should not be dismissed. First, he argued that the court should grant him relief because "any procedural obstacle to the consideration of a claim of intellectual disability must cede to the categorical protections of the Eighth Amendment." "Any procedural obstacle" here being the AEDPA's restrictions on second or successive applications. The restrictions of the AEDPA apply to constitutional claims, and "[n]othing in the Constitution requires otherwise." Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 292, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983); see also Gonzalez v. Thaler, 565 U.S. 134, 138, 154, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012); Pace v. DiGuglielmo, 544 U.S. 408, 419, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). We decline Bowles' invitation to effectively declare part of the AEDPA unconstitutional.
Second, Bowles argued in the district court that he could overcome any AEDPA restrictions on second or successive petitions because a fundamental miscarriage of justice would occur if he were executed because he is "actually innocent" of the death penalty. He relied on the Supreme Court's decision in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), which involved the procedural default doctrine. But we have rejected that argument and "made clear that AEDPA forecloses the Sawyer exception in all circumstances, including § 2254 challenges to state death sentences." In re Hill, 715 F.3d 284, 301 (11th Cir. 2013); see In re Hill, 777 F.3d 1214, 1225 (11th Cir. 2015) (per curiam) (stating that "Hill's argument that Sawyer provides an equitable exception to the restriction on successive § 2254 petitions is similarly foreclosed" because "the Sawyer actual-innocence-of-the-death-penalty exception did not survive the AEDPA").
Third, Bowles also argued in the district court that he should be allowed to bring his petition for a writ of habeas corpus under 28 U.S.C. § 2241. But we have held many times that "a prisoner collaterally attacking his conviction or sentence may not avoid the various procedural restrictions imposed on § 2254 petitions ... by nominally bringing suit under § 2241." Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 (11th Cir. 2008); see also Johnson v. Warden, Ga. Diagnostic & Classification Prison, 805 F.3d 1317, 1323 (11th Cir. 2015) (per curiam) ("[Petitioner's] position - that a habeas petitioner can evade any and all of the [AEDPA] restrictions set out in §§ 2244 and 2254 by the simple expedient of labeling the petition as one filed under § 2241 - has no merit whatsoever."). So that avenue is closed to Bowles as well. Bowles has not shown a substantial likelihood of success on the merits of his appeal.
III. CONCLUSION
We DENY Bowles' emergency motion for a stay of execution.
MARTIN, Circuit Judge, concurring in the judgment:
The Majority correctly describes this Circuit's precedent, which renders Mr. Bowles's 28 U.S.C. § 2254 petition "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996. Mr. Bowles did not first seek permission from this Court before filing his petition with the District Court, so the District Court did not have jurisdiction over it. See Burton v. Stewart, 549 U.S. 147, 157, 127 S. Ct. 793, 799, 166 L.Ed.2d 628 (2007) (holding a district court is without jurisdiction to entertain a second or successive petition filed without authorization from the Court of Appeals). I therefore join the ruling of the Majority Opinion that the District Court did not err in dismissing Mr. Bowles's petition. See id.
Bowles does not need a certificate of appealability to appeal from the district court's order because that order is not "a final order in a habeas corpus proceeding" within the meaning of 28 U.S.C. § 2253(c). Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). Instead, the decision is a final order dismissing the petition for lack of subject matter jurisdiction, so we can review that order under 28 U.S.C. § 1291. Id.
Like the Supreme Court, "[p]revious opinions of this Court have employed the term 'mental retardation.' " Hall v. Florida, 572 U.S. 701, 704, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). "This opinion uses the term 'intellectual disability' to describe the identical phenomenon." Id.
In view of our holding, we have no occasion to address the Respondents' argument that equitable considerations relating to the timing of Bowles' filing of his latest petition also counsel in favor of denying his motion for a stay of execution.
IN RE: Gary Ray BOWLES, Petitioner.
No. 19-13149-P
United States Court of Appeals, Eleventh Circuit.
Date Filed: August 22, 2019
Terri L. Backhus, Sean Talmage Gunn, Randolph Patterson Murrell, Kelsey Peregoy, Federal Public Defender's Office, Tallahassee, FL, for Petitioner.
Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b)
Before: ED CARNES, Chief Judge, TJOFLAT, and MARTIN, Circuit Judges.
[OPINION BY ED CARNES, Chief Judge: type=majority]
ED CARNES, Chief Judge:
Proceeding under 28 U.S.C. § 2244(b)(3)(A), Gary Ray Bowles has filed an application seeking an order authorizing the district court to consider a second or successive petition for a writ of habeas corpus. Because he is scheduled to be executed by the State of Florida on August 22, 2019, at 6:00 p.m., he has also filed an emergency motion to stay his execution so that he can pursue his second or successive habeas petition. We deny those requests.
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 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 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
Following 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 contained an intellectual disability claim. 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), 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, which was after the Governor had denied his clemency application and had 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, --- So.3d ----, ---- - ----, 2019 WL 3789971, at *1-3 (Fla. Aug. 13, 2019). The Florida Supreme Court also denied Bowles' habeas petition claiming that the death penalty is cruel and unusual punishment barred by the Eighth Amendment of the United States Constitution. Id. at ----, 2019 WL 3789971 at *4. Bowles 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, raising a claim of intellectual disability for the first time in a federal postconviction proceeding. He also filed a motion for a stay of execution. The district court dismissed the petition for lack of subject matter jurisdiction and denied the motion for a stay as moot. The court 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. Bowles appealed the district court's dismissal in a separate action before this Court. See Notice of Appeal, Bowles v. Sec'y, Fla. Dep't of Corr., No. 19-13150-P (11th Cir. Aug. 19, 2019).
II. DISCUSSION
Bowles asks us for authorization to file a second or successive habeas petition so that he can bring a claim that he is intellectually disabled and thus ineligible for the death penalty. He asserts that he has taken two full-scale intelligence tests, and they show that his intelligence is well below average. On the first, which was administered in 1995, he received a score of 80. On the second, which was administered in 2017, he received a score of 74. He also presents affidavits from various psychologists who have determined that "it is likely" that he is intellectually disabled. And he includes the written observations of lay witnesses who knew him when he was young; those witnesses said that Bowles was forgetful and aimless and showed signs of intellectual disability.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may authorize the filing of a second or successive § 2254 petition only if the applicant makes a "prima facie showing" that: (1) his claim "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or (2) "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2), (b)(3)(C).
Neither of those routes is open to Bowles. As to the first, he does not rely "on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," § 2244(b)(2)(A), because all the cases he relies on were either previously available to him or were not made retroactive to cases on collateral review.
The first and primary Supreme Court case Bowles relies on is Atkins, 536 U.S. 304, 122 S.Ct. 2242. That case did announce a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review within the meaning of § 2244(b)(2)(A). In re Holladay, 331 F.3d 1169, 1172-73 (11th Cir. 2003). But the Supreme Court announced that rule in 2002, which was six years before Bowles filed his first federal habeas petition. See Atkins, 536 U.S. at 304, 122 S.Ct. 2242. That means that the decision was not "previously unavailable" to him because he could have included it in his original habeas petition. See In re Everett, 797 F.3d 1282, 1291-92 (11th Cir. 2015) (noting that petitioner could not rely on Supreme Court decision that was decided years before his habeas petition as a "rule of law that was previously unavailable, as required by the statute"); In re Hill, 113 F.3d 181, 182-83 (11th Cir. 1997) ("In general, we have interpreted the term 'previously unavailable' with reference to the availability of the claim at the time the first federal habeas application was filed."). It also means that Bowles cannot now rely on Atkins as a "new" rule of constitutional law. At 17 years old the rule is no longer new. See In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006) (denying Atkins -based second or successive application because it was filed more than a year after the Supreme Court decided Atkins).
Bowles tries to get around those barriers by arguing that Atkins was not actually "available" to him when he filed his first habeas petition in 2008 because then-existing Florida law would have doomed his petition. His argument goes like this. In Atkins the Supreme Court held that the Eighth Amendment prohibits the execution of intellectually disabled offenders, but the Court left to the states the task of developing the processes for determining which offenders are intellectually disabled. 536 U.S. at 317, 122 S.Ct. 2242. And under post- Atkins Florida law for an inmate to qualify as intellectually disabled he must have had an IQ score that was two or more standard deviations below the mean score on a standard intelligence test. See Hall 572 U.S. at 711, 134 S.Ct. 1986. The Florida Supreme Court interpreted that law to create a hard cutoff at two deviations below the mean, meaning an IQ score of 70 or below. See id. at 721, 134 S.Ct. 1986. Bowles argues that it would have been useless for him to bring his intellectual disability claim in his first habeas petition because his IQ score of 74 (as measured by the test he took in 2017) would not have qualified under Florida law at the time.
Bowles asserts that Atkins first became available to him in 2014 when the Supreme Court struck down Florida's rigid cutoff as unconstitutional in Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). In Hall the Court explained that Florida's hard cutoff did not account for the IQ test's standard error of measurement of plus or minus 5 points, which meant that an inmate who scored between 70 and 75 on the test might actually have a true IQ of 70 or below. Id. at 722-23, 134 S.Ct. 1986. The Court also relied heavily on the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which was published in 2013, to hold that "an individual with an IQ test score between 70 and 75 or lower may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning." Id. at 722, 134 S.Ct. 1986. Bowles insists that "[i]t was not until Hall that Florida was forced to adapt to current medical standards," and that change made his "IQ score [of 74] qualifying, thus making an intellectual disability claim viable for the first time."
For that argument Bowles also points us to two Fifth Circuit decisions in which that court granted second or successive applications based on Atkins claims that were not raised in initial habeas petitions which were filed, or could have been timely amended, after the Supreme Court decided Atkins. See In re Johnson, No. 19-20552, 935 F.3d 284, 2019 WL 3814384 (5th Cir. Aug. 15, 2019); In re Cathey, 857 F.3d 221, 229 (5th Cir. 2017). In those cases the Fifth Circuit determined that it would not have been "feasible" for the petitioners to have raised timely Atkins claims because the claims would have been found meritless under the state's rigid IQ cutoff that existed at the time. See In re Johnson, 935 F.3d at 292-93, 2019 WL 3814384, at *5; In re Cathey, 857 F.3d at 229. As the In re Cathey court stated: "We think a claim must have some possibility of merit to be considered available." 857 F.3d at 232. "[W]e are not bound by the decisions of our sister circuits." OSI, Inc. v. United States, 285 F.3d 947, 952 n.3 (11th Cir. 2002). Those decisions are not retroactively applicable decisions of the Supreme Court, which is what the AEDPA requires. § 2244(b)(2)(A).
To the extent that Bowles argues that his Atkins claim was not previously available to him because it lacked merit under case law existing at that time, we reject that contention. There is no futility exception to the AEDPA's restrictions on second and successive petitions.
Under § 2244(b)(2)(A), an applicant seeking authorization to file a second or successive habeas petition must show "that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." See Tyler v. Cain, 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Congress did not say that the claim could proceed if it relied on any other type of change in case law. Congress knew how to say that if it had wanted to.
Likewise, Congress knew how to provide for second and successive petitions based on factual developments, such as the publication of a new DSM manual. In § 2244(b)(2)(B), Congress allowed a second or successive petition to proceed if "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and the facts underlying the claim "would be sufficient to establish ... that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." (Emphasis added). It could have said "or ineligible for the death penalty," but it did not. "It is well settled that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Ela v. Destefano, 869 F.3d 1198, 1202 (11th Cir. 2017) (quotation marks omitted). Bowles reads into the statute words that are not there when he argues that the publication of a new diagnostic manual can serve as a predicate to make a claim newly available under § 2244(b)(2)(A). That's not the statute Congress wrote.
Instead, under the statute Congress enacted, whether a claim is "previously unavailable" depends on when a "new rule of constitutional law" is made retroactive by the Supreme Court, because it is that new rule that the claim must rely on. See In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (denying application for leave to file a second or successive habeas petition based on Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), because Descamps did not announce a new rule of constitutional law). That a claim has become meritorious for some other reason has no bearing on whether the claim was "previously unavailable" for § 2244(b)(2)(A) purposes. When considering a second or successive application, we are not making an ultimate determination on the merits, so we do not search for outside factual predicates that may have made a claim meritorious. See In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013). That is simply not part of our analysis.
This is a flaw in Bowles' application, which equates the word "cognizable" with the word "meritorious." Those words do not mean the same thing. Compare Cognizable, Black's Law Dictionary (11th ed. 2019) ("Capable of being judicially tried or examined before a designated tribunal; within the court's jurisdiction ...."), and Cognizable, Merriam-Webster Online, https://www.merriam-webster.com/dictionary/cognizable (last visited Aug. 22, 2019) ("[C]apable of being judicially heard and determined[.]"), with Meritorious, Black's Law Dictionary (11th ed. 2019) ("(Of a case, etc.) worthy of legal victory; having enough legal value to prevail in a dispute ...."), and Meritorious, Merriam-Webster Online, https://www.merriam-webster.com/dictionary/meritorious (last visited Aug. 22, 2019) ("[H]aving merit ... a meritorious claim[.]"). We choose instead to follow the terms of the statute, which requires that we look to see: (1) whether the claim relies on a new rule of constitutional law that was made retroactive to cases on collateral review by the Supreme Court, and (2) whether the petitioner could have relied on that "new rule" in his initial habeas petition. If he could have, then that claim was previously available to him and his application must be denied. See, e.g., In re Henry, 757 F.3d 1151, 1158 n.10 (11th Cir. 2014) (stating that prisoner could not rely on the rule from Atkins to support a second or successive habeas petition because that rule was not "previously unavailable" to him, where the prisoner filed his first habeas petition two years after Atkins was decided); Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir. 1996) ("[W]e cannot find that [the prisoner's] Cage claim was 'previously unavailable' to him when he filed his first habeas petition in 1993, which was long after Cage was decided."). Bowles filed his first federal habeas petition six years after the Atkins decision.
For the same reason, our feasibility analysis does not focus on whether the claim would have been a winning one at the time of the first petition, but on whether it would have been feasible for the petitioner to bring the claim then. See In re Everett, 797 F.3d at 1288 (noting that "[i]f the new rule was announced while the original § 2254 petition was pending, the applicant must demonstrate that it was not feasible to amend his or her pending petition to include the new claim"); In re Hill, 113 F.3d at 183 ("[O]ur precedent establishes that a petitioner intent upon establishing the 'unavailability' of a claim based upon a new rule of constitutional law may also be required to demonstrate the infeasibility of amending a habeas petition that was pending when the new rule was announced."). The existence of a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," depends solely on Supreme Court decisions, not on the issuance of a new diagnostic manual by the American Psychiatric Association or on a decision of a sister circuit.
In any event, the more fundamental problem with Bowles' argument is that it does not rely on Atkins so much as it does on Hall. Despite what he calls it, his claim actually is a Hall claim, not an Atkins claim. See Shoop v. Hill, --- U.S. ----, 139 S. Ct. 504, 508, 202 L.Ed.2d 461 (2019) ("While Atkins noted that standard definitions of mental retardation included as a necessary element 'significant limitations in adaptive skills ... that became manifest before age 18,' Atkins did not definitively resolve how that element was to be evaluated but instead left its application in the first instance to the States.") (quoting Atkins, 536 U.S. at 318, 122 S.Ct. 2242). Hall did announce a new rule of constitutional law, but the Supreme Court has not made that new rule retroactive to cases on collateral review. In re Henry, 757 F.3d at 1159 (denying petitioner leave "to file a second or successive petition because the Supreme Court has not made the new rule announced in Hall retroactive to cases on collateral review"); see In re Hill, 777 F.3d 1214, 1223 (11th Cir. 2015) ("[O]ur binding panel precedent, In re Henry, forecloses [the petitioner's] argument that Hall applies retroactively on collateral review and entitles him to file a second or successive habeas petition."); Kilgore v. Sec'y, Fla. Dep't of Corr., 805 F.3d 1301, 1314-15 (11th Cir. 2015) (holding in initial habeas appeal that Hall did not create a new rule of constitutional law that was made retroactive under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). As a result, Bowles cannot now bring a Hall claim, even one that is dressed up to look like an Atkins claim.
Not only that, but even if Hall did apply retroactively, Bowles' claim would not be timely anyway. The Supreme Court decided Hall on May 27, 2014, meaning that under § 2244(d)(1)(C) Bowles would have had one year from then to file his Hall-based claim. But he did not file his § 2254 petition until August 14, 2019, more than five years later. And he did not even file his state postconviction motion until October 19, 2017, more than three years after Hall was decided. Because of his delay, his claim has ended up in this Court three and a half days before his execution is scheduled to take place. See In re Hill, 437 F.3d at 1083 (denying Atkins -based second or successive application because it was filed more than a year after the Supreme Court decided Atkins); see also In re Jackson, 826 F.3d 1343, 1350 n.8 (11th Cir. 2016) (noting that "[a]n imminent execution" constitutes a valid reason to consider the untimeliness of a claim in a second or successive application).
Bowles also relies on Moore v. Texas, --- U.S. ----, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), but we have held that Moore "cannot be applied retroactively," either. Smith v. Comm'r, Ala. Dep't of Corr, 924 F.3d 1330, 1338-39 (11th Cir. 2019). As a result, Bowles has not shown that his claim "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." § 2244(b)(2)(A).
That leaves § 2244(b)(2)(B) as the only possible gateway left for Bowles, but that gate is closed too. Although he argues that he is innocent of the death penalty, his intellectual disability claim "challenges only his eligibility for a death sentence, and not whether he is 'guilty of the underlying offense,' and thus does not fall within the narrow statutory exception in § 2244(b)(2)(B)(ii)." In re Hill, 715 F.3d 284, 285 (11th Cir. 2013). The concurring opinion takes issue with our precedent in Hill and encourages our Court to recognize an exception to § 2244(b) for claims asserting actual innocence of the death penalty. But as we have explained, while the Supreme Court in Sawyer v. Whitley, 505 U.S. 333, 346-47, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), a pre-AEDPA case, recognized an actual innocence exception for state prisoners challenging their death sentences in successive § 2254 applications, AEDPA completely stripped federal district courts of jurisdiction to hear successive claims unless the prisoner first received authorization from the court of appeals. That means that "post-AEDPA there is no ... exception to the bar on second or successive habeas petitions for claims asserting 'actual innocence of the death penalty.' " In re Hill, 715 F.3d at 301; see § 2244(b)(3)(A).
The concurring opinion also relies on Holland v. Florida to argue that barring an innocent-of-the-death-penalty claim would "undermin[e] basic habeas corpus principles," 560 U.S. 631, 648, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), but Holland is not on point. It recognized that the one-year statute of limitations for filing original habeas petitions was not jurisdictional and could be equitably tolled. But it did not recognize an equitable exception for the limits on filing successive petitions set out in § 2244(b). See Holland, 560 U.S. at 645-49, 130 S.Ct. 2549. Nor has Congress created an unnamed third exception to the two gateways for filing successive habeas petitions that are set out in § 2244(b)(2). To the extent that Bowles is foreclosed from seeking habeas relief in the lower federal courts, he still "may petition the Supreme Court directly for a writ of habeas corpus under that Court's original jurisdiction." In re Hill, 715 F.3d at 301 n.20.
Finally, Bowles has also not pointed to a "factual predicate for the claim [that] could not have been discovered previously through the exercise of due diligence." § 2244(b)(2)(B)(i). If, as he claims, he is an intellectually disabled person, then that factual predicate has existed for long enough that he could have brought his Atkins claims in his first habeas petition. But that he did not do.
III. CONCLUSION
Finally, we have not overlooked our concurring colleague's belief that our decision, which she concedes faithfully applies the law as it exists, is "tragic[ ]" and not "a just one." Concurring Op. at 1224, 1228. Bowles was convicted of brutally bashing and strangling to death three men after convincing each of them to let him live with them. See Bowles, 934 F.3d at 1233-36, 2019 WL 3886503, at *1-3. Their only offense apparently was their sexual orientation. He hated gay men. It has been 23 years since he was convicted of murder in the first degree and 18 years since he was resentenced to death. Under the law, his sentence is now due to be carried out. We do not feel compelled to join our colleague's criticism that what is tragic and unjust in this case is the application of the law to it.
Because Bowles has failed to make a prima facie showing that his claim satisfies the requirements of § 2244(b)(2), we DENY his application for leave to file a second or successive habeas petition. Having denied the application, we also DENY Bowles' motion for a stay. See In re Hill, 437 F.3d at 1083-84.
Our concurring colleague addresses the merits of Bowles' claims and accepts his assertions that he has provided "evidence of significant deficits in adaptive functioning that had their onset during his developmental period" and that his IQ score of 80 could be "as low as appro[ximately] 70" if lowered for the standard error of measurement and if "properly normed," which is to say if lowered even further for what is called the Flynn effect. For the reasons explained later in this opinion, see infra at 1218, we do not consider the merits of Bowles' claim at this time.
We will, however, note that these assertions and the affidavits tendered in support of them are not uncontested. The State has presented evidence that Bowles does not have significant deficits in adaptive functioning, and that he was not intellectually disabled as a minor. For example, Bowles has obtained his GED diploma while incarcerated, and his grades in the early years of elementary school were standard. And the Flynn effect that Bowles relies on, which "adjusts for the empirical observation that IQ scores are rising over time," is not "required in this Circuit" because "there is no consensus about the Flynn effect among experts or among the courts." See Raulerson v. Warden, 928 F.3d 987, 1008 (11th Cir. 2019).
There is also no futility exception that explains why Bowles could not have timely raised his Atkins claim in Florida state court. The concurring opinion faults the Florida Supreme Court's denial of Bowles' intellectual disability claim as untimely because, the opinion says, Bowles should not be penalized for "fail[ing] to press a claim that would have been deemed frivolous" after Atkins. It asserts that we know the Florida courts would have deemed such a claim frivolous because of how those courts handled Atkins claims "during the twelve years after Atkins was decided." But when Florida promulgated Rule of Criminal Procedure 3.203 and gave inmates like Bowles until October 1, 2004 to bring an Atkins claim, the future was not known. Bowles could not tell how the Florida courts would handle his claim because he did not know then what the next "twelve years" might hold. There is no reason Bowles could not have amended his state postconviction motion to add an Atkins claim during the time frame specified in Florida's Rules of Criminal Procedure.
The concurring opinion also faults the Florida Supreme Court for denying Bowles' postconviction motion as untimely because, the opinion asserts, he should have been allowed to rely on the United States Supreme Court's decision in Hall, which the Florida Supreme Court later made retroactive to certain Florida inmates in Walls v. State, 213 So. 3d 340, 345 (Fla. 2016) (per curiam). But again, there is no reason that Bowles could not have made the same arguments that Hall or Walls made. Under the concurring opinion's logic, those inmates also did not have meritorious claims. If such a claim by Bowles would have been frivolous, their claims would also have been frivolous in the concurring opinion's view. But Hall and Walls brought the claims anyway, and they won. Why couldn't Bowles? He could have and should have brought the same claim. Cf. Smith v. Murray, 477 U.S. 527, 535, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) ("[I]t is the very prospect that a state court 'may decide, upon reflection, that the contention is valid' that undergirds the established rule that 'perceived futility alone cannot constitute cause.") (citation and quotation marks omitted); Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) ("If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.") (footnote omitted); Turner v. Crosby, 339 F.3d 1247, 1281 (11th Cir. 2003) ("Although Ring was decided several years subsequent to the termination of Turner's state post-conviction proceedings, he was free, prior to Ring, to make a federal constitutional challenge to Florida's capital sentencing structure in the state courts but failed to do so."); Waldrop v. Jones, 77 F.3d 1308, 1315 (11th Cir. 1996) ("According to the Supreme Court, the 'futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial.' ") (quoting Engle, 456 U.S. at 130, 102 S.Ct. 1558).
We recently noted in dicta that the Supreme Court's reasoning in Montgomery v. Louisiana, --- U.S. ----, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), "undermined the reasoning of Kilgore and In re Henry." Smith v. Comm'r, Ala. Dep't of Corr., 924 F.3d 1330, 1339 n.5 (11th Cir. 2019). We had said in In re Henry that a new Supreme Court rule "guarantee[ing] only a chance to present evidence, not ultimate relief," is necessarily a non-retroactive procedural rule under Teague. 757 F.3d at 1161. But in Montgomery the Supreme Court "deemed a rule substantive in nature - the rule of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which prohibited mandatory life without parole sentences for juveniles - even though all that rule guaranteed was '[a] hearing where youth and its attendant characteristics are considered as sentencing factors,' not a shorter sentence or parole." Smith, 924 F.3d at 1339 (quoting Montgomery, 136 S. Ct. at 735) (quotation marks omitted). Given the Supreme Court's reasoning in Montgomery, in Smith we were cautious not to base our decision solely on our earlier reasoning in Kilgore and In re Henry to determine whether the Supreme Court's decision in Moore v. Texas, --- U.S. ----, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), applied retroactively. See 924 F.3d at 1339 n.5.
Our statements in Smith do not help Bowles because our holdings in In re Henry and Kilgore remain binding precedents in this Circuit. "While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point." Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003). The Supreme Court's decision in Montgomery was not "clearly on point" as to the retroactivity of its decision in Hall. And, in any event, our reasoning in In re Henry and Kilgore did not rely only on the rule that was called into question by Montgomery anyway. Instead, those decisions relied on the fact that Hall does not expand the class of people (the intellectually disabled) who are entitled to relief under Atkins. See In re Henry, 757 F.3d at 1161. By contrast, the Supreme Court in Montgomery determined that Miller announced a substantive rule because it forbade the states from imposing a certain penalty on an entire class of offenders: juveniles whose crimes do not reflect permanent incorrigibility. See Montgomery, 136 S. Ct. at 734.
Bowles pleaded guilty to the murder of all three of the victims. At his first sentencing trial for the murder of Walter Hinton the State's primary theory of the case was he killed Hinton "because Hinton was a homosexual and hated homosexuals." Bowles, 716 So. 2d at 771. Although the Florida Supreme Court did not question the overwhelming evidence that Bowles hated gay men, see id. at 771-73, it vacated the death sentence because there was insufficient evidence linking that motive to the murder. At the resentencing trial, the jury unanimously recommended a death sentence, the judge imposed it, and the Florida Supreme Court affirmed. See Bowles, 804 So. 2d at 1175, 1184.
[OPINION BY MARTIN, Circuit Judge, concurring: type=concurrence]
MARTIN, Circuit Judge, concurring:
In Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court "held that the Constitution 'restricts the State's power to take the life of' any intellectually disabled individual." Moore v. Texas, 581 U.S. ----, 137 S. Ct. 1039, 1048, 197 L.Ed.2d 416 (2017) (alterations adopted) (quoting Atkins, 536 U.S. at 321, 122 S. Ct. at 2252). But that categorical bar is not so categorical in this Circuit. No court has considered the merits of Gary Bowles's claim that he is intellectually disabled and thus exempt from the death penalty. Yet the State of Florida is set to execute him today.
I wish it were not so, but this Court's precedent constrains me to deny Mr. Bowles's application for leave to file a successive habeas petition and his request for a stay of his execution. I write separately to describe the hurdles Mr. Bowles faced at the state and federal level in his efforts to have a court review the merits of his claim of intellectual disability. For me, the hurdles Mr. Bowles has faced present unacceptable (perhaps unconstitutional) barriers to vindicating the right articulated in Atkins.
I.
Mr. Bowles was convicted of first-degree murder in 1996. After a series of proceedings in Florida state court, he was sentenced to death in 1999. On direct appeal, the Florida Supreme Court affirmed his sentence. See Bowles v. State, 804 So. 2d 1173, 1184 (Fla. 2001) (per curiam). The United States Supreme Court denied certiorari on June 17, 2002. Bowles v. Florida, 536 U.S. 930, 122 S. Ct. 2603, 153 L.Ed.2d 790 (2002). Three days later, the Supreme Court issued Atkins, which declared for the first time that the execution of intellectually disabled prisoners violates the Eighth Amendment's ban on cruel and unusual punishments. 536 U.S. at 321, 122 S. Ct. at 2252.
After Atkins, there was reason to believe Mr. Bowles's execution may be barred by this new constitutional rule. Although Mr. Bowles had not specifically been evaluated for intellectual disability before his sentencing, a clinical psychologist did test him using a then-current, full-scale intelligence assessment called the Wechsler Adult Intelligence Scale Revised (WAIS-R). Mr. Bowles got an IQ score of 80 on the WAIS-R. Accounting for errors in the methodology of the WAIS-R and the standard error of measurement involved in all IQ testing, doctors gave affidavits saying this score may indicate Mr. Bowles's IQ is as low as appropriately 70. The Supreme Court observed in Atkins that an IQ of around or below 70 may reveal potential intellectual disability. See 536 U.S. at 309 n.5, 122 S. Ct. at 2245 n.5 ("[B]etween 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score" for intellectual disability). Thus, given Mr. Bowles's score on the WAIS-R and other indicators, he may well be among those whose executions are barred by Atkins.
Typically, a state prisoner in Mr. Bowles's position could raise his Atkins claim in a state postconviction motion. In the wake of Atkins, Florida gave offenders like Mr. Bowles, whose cases were in postconviction litigation, 60 days from October 1, 2004-the date Florida Rule of Criminal Procedure 3.203 was promulgated-to assert an Atkins claim. See Amendments to Fla. R. of Crim. P. & Fla. R. of Appellate P., 875 So. 2d 563, 570 (Fla. 2004). But we know from Florida's handling of those claims during the twelve years after Atkins was decided, it would have been utterly fruitless for Mr. Bowles to bring his Atkins claim in the Florida courts.
The Atkins Court left to the States the job of "developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." Id. at 317, 122 S. Ct. at 2250 (alteration adopted and quotation marks omitted). And with this discretion, Florida courts established that the State ban on executing the intellectually disabled, Fla. Stat. § 921.137, covered only those with "an IQ of 70 or below." Zack v. State, 911 So. 2d 1190, 1201 (Fla. 2005) (per curiam); see also id. (citing Cherry v. State, 781 So. 2d 1040, 1041 (Fla. 2000) (per curiam) (accepting expert testimony that an offender must score 70 or below to qualify as "[mentally] retarded")). Litigants repeatedly tested this hard cutoff in Florida's courts, saying it undermined Atkins's mandate. See, e.g., Cherry v. State, 959 So. 2d 702, 712-14 (Fla. 2007) (per curiam), abrogated by Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L.Ed.2d 1007 (2014). But the Florida Supreme Court affirmed time and again that "a Florida defendant with an IQ score above 70 could not be deemed intellectually disabled and, therefore, was barred from presenting evidence regarding the other two prongs of the test for intellectual disability: adaptive functioning deficits and manifestation before age 18." Walls v. State, 213 So. 3d 340, 345 (Fla. 2016) (per curiam) (describing the state of the law in Florida after Atkins, but before Hall). Under Florida's then-well-established criteria, Mr. Bowles knew his IQ score of 80 would disqualify him from relying on Atkins, no matter what other evidence he marshalled supporting a claim of intellectual disability. It made sense, therefore, for Mr. Bowles to not pursue an Atkins claim in the time limits proscribed by Florida Rule of Criminal Procedure 3.203.
Then twelve years after Atkins issued, the U.S. Supreme Court gave Mr. Bowles renewed hope about the viability of his claim of intellectual disability. In Hall v. Florida, the Supreme Court held that Fla. Stat. § 921.137, as interpreted by Florida's courts, was unconstitutional. 572 U.S. at 721, 134 S. Ct. at 2000. Florida had, according to Hall, wrongly "take[n] an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence." Id. at 712, 134 S. Ct. at 1995. Also, Florida had improperly "relie[d] on a purportedly scientific measurement of the defendant's abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise." Id. In setting this straight, the Supreme Court said "when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Id. at 723, 134 S. Ct. at 2001 (emphasis added). Surely, Hall would give Mr. Bowles a chance to press his claim that his execution might be unconstitutional. Turns out, this was not to be.
On October 19, 2017, Mr. Bowles filed a successive motion for state postconviction relief, arguing he is intellectually disabled and that his execution would violate the Eighth Amendment in light of Atkins and Hall. Around the same time, Mr. Bowles was tested using the WAIS-IV, the most widely used and current IQ assessment instrument available. He received a full-scale IQ score of 74, which falls within the range for intellectual disability. Also supporting Mr. Bowles's motion was evidence of significant deficits in adaptive functioning that had their onset during his developmental period.
Mr. Bowles's October 19, 2017 motion had been pending for 600 days when Florida's Governor signed his death warrant and scheduled his execution. Only after Mr. Bowles's execution was scheduled did the Florida Supreme Court direct Florida's lower courts to give him some indication whether he would be able to present his claim that his execution might be unconstitutional.
Tragically, in my view, the Florida courts refused to even consider the merits of Mr. Bowles's claim. Instead, the circuit court summarily denied Mr. Bowles's claim as time-barred, and the Florida Supreme Court affirmed this decision. See Bowles v. State, --- So. 3d ----, ---- - ----, 2019 WL 3789971, at *2-3 (Aug. 13, 2019). The Florida Supreme Court explained that Mr. Bowles could not present his potentially viable Atkins claim because he failed to present it within 60 days of Florida Rule of Criminal Procedure 3.203 being promulgated. Id. at ----, 2019 WL 3789971 at *2 (citing Harvey v. State, 260 So. 3d 906, 907 (Fla. 2018); Rodriguez v. State, 250 So. 3d 616 (Fla. 2016)). This time restriction applies, the Court held, even though Mr. Bowles did not have a meritorious claim until (at the earliest) Hall held Florida's rigid IQ cutoff unconstitutional. See Bowles, --- So.3d at ---- - ----, 2019 WL 3789971, at *2-3. The Court also imposed the time limit even though it had ruled that Hall is retroactively applicable to Florida litigants. See Walls v. State, 213 So. 3d at 346-47; see also Harvey, 260 So. 3d at 907.
I believe Florida's time bar "creates an unacceptable risk that persons with intellectual disability will be executed." Hall, 572 U.S. at 704, 134 S. Ct. at 1990. For more than a decade after Atkins, Florida law denied every offender who scored above 70 on an IQ test any exploration of the merits of a claim of intellectual disability. It wasn't until Hall was decided that Mr. Bowles could get the benefit of Atkins's pronouncement. Nevertheless, the Florida courts say Mr. Bowles's failure to press a claim that would have been deemed frivolous means he forever gave up any chance to present evidence of his potential intellectual disability. This rule dilutes Atkins's constitutional mandate for Florida death row inmates.
Hall requires that "[p]ersons facing that most severe sanction [of the death penalty] must have a fair opportunity to show that the Constitution prohibits their execution." Id. at 724, 134 S. Ct. at 2001 (emphasis added). Although the Supreme Court acknowledged "the States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual disability should be measured and assessed," " Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection." Id. at 719, 134 S. Ct. at 1998. Neither did Atkins afford States the liberty to construct procedural rules that gut the constitutional requirement. See In re Hill, 715 F.3d 284, 304-05 (11th Cir. 2013) (Barkett, J., dissenting) (arguing no "procedural hurdle ... can be constitutionally enforced when doing so will eviscerate the constitutionally-protected right that a juvenile, mentally retarded, or insane offender has not to be executed."); Hill v. Humphrey, 662 F.3d 1335, 1367-70 (11th Cir. 2011) (en banc) (Barkett, J., dissenting) (describing Supreme Court precedent establishing that "a State cannot create procedures that effectively eviscerate a substantive constitutional right, but rather must provide procedures which are adequate to safeguard against infringement of the constitutionally protected right" (alteration adopted and quotation marks omitted)); cf. Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 826, 17 L.Ed.2d 705 (1967) ("With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights."). The Florida courts designed a rule that has denied Mr. Bowles any meaningful opportunity to have his claim considered on the merits. Because neither Mr. Bowles nor his counsel predicted a change in the law or anticipated that he would need to pursue a then-frivolous claim, the Florida courts say he must forgo the protections afforded to him by Atkins and Hall.
"[T]o impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being." Hall, 572 U.S. at 708, 134 S. Ct. at 1992. We cannot pretend to avoid this violation simply by failing to learn whether an offender is intellectually disabled. "The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects." Id. at 724, 134 S. Ct. at 2001. The Florida courts may have done exactly that. Mr. Bowles should have been permitted to develop the record supporting his claim of intellectual disability. Now, we will never know whether his execution defies Atkins's categorical mandate.
II.
When the Florida courts refused all evaluation of the merits of Mr. Bowles's claim of intellectual disability, he next looked to the federal courts to consider his claim. Yet, because of the strictures of the Antiterrorism and Effective Death Penalty Act of 1996 (AEPDA) and precedent in this Circuit, he finds no audience for the merits of his claim here either.
Mr. Bowles seeks to file a successive federal habeas corpus petition under 28 U.S.C. § 2254. It is successive because he already filed one § 2254 petition raising claims that are not at issue here. This being the case, he must meet the requirements of 28 U.S.C. § 2244(b) before filing a second federal petition. Under AEPDA, this court may not grant authorization to file a successive habeas petition unless an applicant satisfies one of two narrow statutory exceptions in § 2244(b)(2):
(A) [T]he applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under this Circuit's precedent, Mr. Bowles can meet neither exception.
Use of the first exception is foreclosed by In re Henry, 757 F.3d 1151 (11th Cir. 2014), which held that the Supreme Court did not make the new rule announced in Hall retroactive to cases on collateral review. Id. at 1159. I dissented from Henry's holding, explaining my view that "if Atkins is retroactively applicable to cases on collateral review-and that conclusion is beyond any debate-then the Supreme Court's decision in Hall must also apply retroactively, to the extent it merely represents an application or clarification of the Atkins decision." Id. at 1165 (Martin, J., dissenting). I continue to believe Henry was wrongly decided.
The Majority Opinion also says Mr. Bowles cannot make a prima facie showing under § 2244(b)(2)(A) based on his argument that his Atkins claim was "previously unavailable" until Hall issued. To make a prima facie showing, a petitioner need only make "a sufficient showing of possible merit to warrant a fuller exploration by the district court." In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir. 2003) (quotation marks omitted). Absent the strictures of our precedent, I would hold that Mr. Bowles has made a prima facie showing under § 2244(b)(2)(A).
The Fifth Circuit recognized a prima facie case for an inmate who had been afforded a path to relief, yet that path offered no actual possibility of relief. See In re Cathey, 857 F.3d 221 (5th Cir. 2017) (per curiam). It found that a Texas petitioner "presented sufficiently 'cogent arguments' that Atkins was previously unavailable" because at the time he filed his first federal habeas petition he "believed his IQ score to be 77-outside of the range that was then understood to satisfy the subaverage intellectual functioning prong of an Atkins claim." Id. at 230. Like Florida, Texas courts then used a cutoff for IQ scores, so the petitioner "had no reason to believe his known score of 77 ... would satisfy an Atkins claim." Id. The Fifth Circuit recognized the petitioner's claim was practically unavailable even if he technically could have asserted it. See id. at 232-34. The Court permitted him to file his successive habeas petition because he made a prima facie showing that Atkins was previously unavailable to him. Our Court has not recognized such an exception. However, we could have, and I would have done so here.
As for Mr. Bowles's reliance on the second exception, his argument is foreclosed by In re Hill. Hill is another decision of this Court I believe was wrongly decided. Hill established that the exception in § 2244(b)(2)(B) concerning newly discovered evidence "is a narrow exception for claims that call into question the accuracy of a guilty verdict" and not Atkins claims that go to a prisoner's eligibility for the death penalty. Hill, 715 F.3d at 296-97 (alterations adopted and emphasis and quotation marks omitted). The Hill panel said that the exception for newly discovered evidence "does not authorize the filing of a successive application under § 2244(b)(2)(B) based on a sentencing claim even in death cases." Hill, 715 F.3d at 297. Hill also rejected the idea that equitable exceptions to the bar on successive petitions that existed before AEDPA survived the enactment of AEDPA. See id. at 299-301. I believe this Court should have recognized that we may authorize petitioners to file a successive application for federal habeas relief raising an innocent-of-the-death-penalty claim. Either § 2244(b)(2)(B) or equitable exceptions to AEDPA's filing limitations would, in my view, allow for consideration of these claims in death penalty cases.
Before AEDPA became law, the Supreme Court recognized that in a "narrow class of cases," "[f]ederal courts retain the authority to issue the writ of habeas corpus" despite a petitioner's procedural default and "despite a petitioner's failure to show cause for a procedural default." McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). "This rule, or fundamental miscarriage of justice exception, [wa]s grounded in the equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L.Ed.2d 203 (1993) (quotation marks omitted). To prove a miscarriage of justice, a petitioner had to make a "colorable showing" of actual innocence. Id.
In Sawyer v. Whitley, 505 U.S. 333, 112 S. Ct. 2514, 120 L.Ed.2d 269 (1992), the Supreme Court held that the "actual innocence" exception applied to claims asserting innocence of the facts required to show the petitioner's eligibility for the death penalty. Id. at 346-47, 112 S. Ct. at 2522-23. To bring a claim of actual innocence of the death penalty, a petitioner had to present evidence establishing "a fair probability that a rational trier of fact would have entertained a reasonable doubt as to the existence of those facts which are prerequisites under state or federal law for the imposition of the death penalty." Id. at 346, 112 S. Ct. at 2523 (quotation marks omitted).
Circuits have divided over whether Sawyer's actual innocence exception survived the passage of AEDPA. In Hill, a divided panel of this Court said the Sawyer exception did not survive. 715 F.3d at 299-300. The Hill panel reasoned that Congress could have, but did not, expressly codify the Sawyer exception in AEDPA. Id. at 300. For that reason, it said Congress did not intend the Sawyer exception to remain viable. See id. At least one other circuit has agreed. Hope v. United States, 108 F.3d 119, 119-20 (7th Cir. 1997). But this Court's holding in Hill contrasts with decisions of the Fourth, Sixth, and Ninth Circuits. See Prieto v. Zook, 791 F.3d 465, 469 (4th Cir. 2015); Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014); Thompson v. Calderon, 151 F.3d 918, 924 (9th Cir. 1998) (en banc). I find the rulings of those circuits to express the better view. Cf. In re Holsey, 589 F. App'x 462, 466 (11th Cir. 2014) (Martin, J.) (unpublished) (noting "compelling arguments that Sawyer's 'innocence of the death penalty' exception should survive § 2244(b)'s restrictions").
In contrast to this Circuit, those courts recognized that the passage of AEDPA did not mean Congress intended for courts to wholly abandon all equitable habeas doctrines. As the Supreme Court explained in Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L.Ed.2d 130 (2010), "AEDPA seeks to eliminate delays in federal habeas review" but it "seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law," including "equitable principles." Id. at 648, 130 S. Ct. at 2562. Although "Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights." Id. at 649, 130 S. Ct. at 2562 (quotation marks omitted). The Supreme Court thus cautioned that "[t]he importance of the Great Writ, the only writ explicitly protected by the Constitution, Art. I, § 9, cl. 2, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA's statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open." Id.
This Court's decision in Hill did not heed Holland's warning. Instead, Hill relied almost exclusively on congressional silence to foreclose equitable claims. This is the very thing Holland told us not to do. Neither did the Hill panel seek to harmonize AEDPA's restrictions with existing equitable doctrines, as it was required to do. These errors produced what I view as an inherently flawed decision and an equally flawed conclusion that AEDPA eliminated the Sawyer exception.
The Majority Opinion is right when it notes that Holland did not expressly address the application of the Sawyer exception after the passage of AEDPA. I rely on it here not for that proposition, but for the idea that AEDPA did not wipe away the existing equitable doctrines related to the writ of habeas corpus.
I note, too, the Hill panel failed to appreciate that the language of § 2244(b)(2)(B) does not compel an interpretation as narrow as the one this Court assigned it. See Thompson, 151 F.3d at 924. As the Ninth Circuit explained, "the words 'underlying offense' [in § 2244(b)(2)(B)(ii) ] encompass a charge of capital murder." Thompson, 151 F.3d at 924. "[T]he difference in the language between the Sawyer standard and ... § 2244(b)(2)(B)(ii)" was not intended to obliterate the Sawyer exception. Thompson, 151 F.3d at 924. Instead, it "was to accommodate non-capital as well as capital habeas petitions." Id. Again, the Ninth Circuit offers a more sound interpretation of § 2244(b)(2)(B). It harmonizes AEDPA with preexisting equitable doctrines, as the Supreme Court instructed us to do. See Holland, 560 U.S. at 649, 130 S. Ct. at 2562. It is this Court's flawed precedent that stands in the way of any merits review of Mr. Bowles's intellectual disability claim. Cases like Mr. Bowles's demonstrate the need for the Supreme Court or this Court sitting en banc to revisit the decisions that deny Bowles and others like him any chance to have their constitutional claims reviewed.
III.
The time bar imposed by the Florida courts and this Court's interpretation of the requirements of AEDPA mean that Florida will end Mr. Bowles's life without ever knowing whether his execution violates the Eighth Amendment. I am bound by the law of this Circuit to concur in the denial of his application for leave to file a successive habeas petition. But I do not consider this decision to be a just one.
According to doctors' affidavits, the WAIS-R was not properly normed and thus overstates IQ in certain populations.