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
EDCARNES, CHIEF JUDGE:
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.
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).
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 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
Second and Third State Postconviction Motions
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.
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).
Fourth State Postconviction Motion
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."
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).
Second Federal § 2254 Petition And Motion To
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).
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.
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).
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.
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