from the United States District Court for the Middle District
of Florida No. 3:19-cv-936-J-32JBT
ED CARNES, Chief Judge, TJOFLAT, and MARTIN, Circuit Judges.
CARNES, CHIEF JUDGE:
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
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 (11th Cir. Aug. 19, 2019).
Sentencing, Re-Sentencing, And Bowles' Direct
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 (2002)
First State Postconviction Motion
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.
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.
First Federal Habeas Petition
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 (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 (2010) (mem).
Second and Third State ...