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Bowles v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

August 21, 2019

GARY RAY BOWLES, Petitioner-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.

          Appeal from the United States District Court for the Middle District of Florida No. 3:19-cv-936-J-32JBT

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

          ED CARNES, CHIEF JUDGE:

         Gary Ray Bowles is a Florida death row inmate scheduled to be executed on August 22, 2019, at 6:00 p.m. On August 14, 2019 he filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He claimed that the Eighth Amendment prohibits the State from executing him because he is intellectually disabled. The district court dismissed the petition for lack of jurisdiction because it is Bowles' second § 2254 petition and he did not obtain this Court's authorization before filing it. On August 19, 2019, four days before his scheduled execution, Bowles appealed the district court's order and filed an emergency motion for a stay of execution in this Court. We deny the motion for a stay of execution pending appeal.

         I. PROCEDURAL HISTORY

         We have set out the facts of Bowles' crimes in our order denying his motion for a stay of execution based on his §1983 case. See Bowles v. DeSantis, No. 19-12929-P, slip op. at 3-7 (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 (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 (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).

         D. Second and Third State ...


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