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In re Bowles

United States Court of Appeals, Eleventh Circuit

August 22, 2019

In re: GARY RAY BOWLES, 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.

          EDCARNES, 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, -- F.3d --, 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 (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 (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 (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, 136 S.Ct. 616 (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, 139 S.Ct. 157 (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, 137 S.Ct. 1039 (2017), Hall v. Florida, 572 U.S. 701 (2014), and Atkins v. Virginia, 536 U.S. 304 (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, 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 *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.[1] 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. 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. 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 ...


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