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Bowles v. Inch

United States District Court, M.D. Florida, Jacksonville Division

August 18, 2019

GARY R. BOWLES, Petitioner,
v.
MARK S. INCH, Secretary, Florida Department of Corrections, et al., Respondents.

          ORDER (EXECUTION SCHEDULED FOR AUGUST 22, 2019)

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.

         Petitioner, a death row inmate who is scheduled for execution on August 22, 2019, filed an Emergency Petition Under 28 U.S.C. §§ 2254 and 2241 for a Writ of Habeas Corpus (Doc. 1) on August 14, 2019.[1] He also filed an Emergency Motion for a Stay of Execution (Doc. 2). Relying mainly on Atkins v. Virginia, 536 U.S. 304 (2002), Petitioner claims that his death sentence violates the Eighth Amendment because he is intellectually disabled. Respondents filed a Motion to Dismiss the Successive Habeas Petition for Lack of Jurisdiction (Doc. 8) and a Response to the Motion to Stay the Execution (Doc. 9). Petitioner filed a Consolidated Reply (Doc. 10). Upon review of the parties' filings and applicable law, the Court finds that the Petition is second or successive, and therefore, the Court lacks jurisdiction to hear it without prior authorization from the Eleventh Circuit.

         Procedural History

         The facts and procedural history leading to Petitioner's death sentence are set forth in the Florida Supreme Court's decision affirming that sentence. See Bowles v. State, 804 So.2d 1173, 1174-75 (Fla. 2001). This Court summarizes only those facts and procedural history necessary to resolve whether the Petition is second or successive.

         On May 17, 1996, Petitioner entered a plea of guilty to the 1994 first degree murder of Walter Hinton. Bowles v. State, 716 So.2d 769 (Fla. 1998); see State v. Bowles, No. 16-1994-CF-12188 (Fla. 4th Cir. Ct.). Following the penalty phase proceedings, a jury recommended that Petitioner be sentenced to death by a vote of ten-to-two, and the judge followed that recommendation, sentencing him to death on September 6, 1996. See Bowles, No. 16-1994-CF-12188. The Florida Supreme Court affirmed Petitioner's first degree murder conviction, but reversed his death sentence and remanded for a new penalty phase. Bowles, 716 So.2d at 773. The state court conducted a second penalty phase proceeding, and on May 27, 1999, a jury unanimously recommended that Petitioner be sentenced to death. See Bowles, No. 16-1994-CF-12188. The judge followed that recommendation and imposed the death penalty on September 7, 1999. Id. Petitioner filed a second direct appeal, and the Florida Supreme Court affirmed his death sentence through a written opinion issued on October 11, 2001. Bowles, 804 So.2d at 1174-75. The United States Supreme Court denied certiorari review on June 17, 2002. Bowles v. Florida, 536 U.S. 930 (2002).

         On December 9, 2002, Petitioner filed his initial state motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. See Bowles, No. 16-1994-CF-12188. On June 25, 2003, Petitioner filed an amended Rule 3.851 motion, and he filed a second amended Rule 3.851 motion on August 29, 2003. Id. Thereafter, following an evidentiary hearing, the trial court denied his second amended Rule 3.851 motion on August 12, 2005. See id. The Florida Supreme Court affirmed the denial through a written opinion issued on February 14, 2008. Bowles v. State, 979 So.2d 182 (Fla. 2008). Petitioner filed his first federal habeas corpus petition under 28 U.S.C. § 2254 on August 8, 2008. See Bowles v. Sec'y Fla. Dep't of Corr., No. 3:08-cv-791-J-25 (M.D. Fla.) (Doc. 1).[2] It contained no Atkins claim. This Court denied habeas relief on all of his claims, but issued a certificate of appealability on ground one regarding Petitioner's Sixth and Fourteenth Amendment right to an impartial jury. Id. at Doc. 18. The Eleventh Circuit Court of Appeals denied Petitioner's request for an expanded COA and affirmed this Court's denial of federal habeas relief through a written opinion issued on June 18, 2010. Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313 (11th Cir. 2010).

         On March 19, 2013, Petitioner filed a successive Rule 3.851 motion, which the trial court denied on July 17, 2013. Bowles, No. 16-1994-CF-12188. Petitioner did not appeal the denial. He filed a second successive Rule 3.851 motion pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016), on June 14, 2017. See Bowles, No. 16-1994-CF-12188. The trial court denied Petitioner's second successive Rule 3.851 motion, and the Florida Supreme Court affirmed the denial on January 29, 2018. Bowles v. State, 235 So.3d 292 (Fla. 2018).

         On October 19, 2017, Petitioner filed a third successive Rule 3.851 motion asserting, for the first time, a claim of intellectual disability under Moore v. Texas, 137 S.Ct. 1039 (2017); Hall v. Florida, 572 U.S. 701 (2014); and Atkins, 536 U.S. at 304. See Bowles, No. 16-1994-CF-12188.[3] While his third successive Rule 3.851 motion was pending, Governor DeSantis signed a death warrant on June 11, 2019, and the execution was set for August 22, 2019. The trial court permitted Petitioner to amend his pending third successive Rule 3.851 motion, and following a case management conference pursuant to Huff v. State, 622 So.2d 982 (Fla. 1993), the trial court summarily denied his third successive Rule 3.851 motion as untimely. Bowles, No. 16-1994-CF-12188. The Florida Supreme Court affirmed the trial court's denial through a written opinion issued on August 13, 2019. Bowles v. State, --- So.3d ---, 2019 WL 3789971 (Fla. 2019). Petitioner's second federal habeas petition followed the next day.

         Second or Successive Petitions Under AEDPA

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). AEDPA bars the filing of a second or successive habeas petition, absent approval from the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section 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.”); see also Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1278 (11th Cir. 2014) (recognizing that “[s]ubject to [certain] exceptions[, ] . . . a district judge lacks jurisdiction to decide a second or successive petition filed without [the Eleventh Circuit's] authorization”).

The phrase “second or successive” is not self-defining. It takes its full meaning from [Supreme Court] case law, including decisions predating the enactment of the [AEDPA]. The Court has declined to interpret “second or successive” as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.

Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007) (citations omitted).

         Parties' Positions

         Petitioner acknowledges that he did not raise his Atkins claim in his first federal habeas petition filed in 2008. He also does not suggest that the Eleventh Circuit has authorized him to file a second or successive petition. Instead, Petitioner claims that the instant Petition is not “second or successive, ” and thus he does not need the Circuit's approval.

         Petitioner likens his Atkins claim to a Ford[4] claim in an attempt to meet the exception recognized by the United States Supreme Court in Panetti, 551 U.S. at 945. In Panetti, the Court concluded that AEDPA's bar on second or successive habeas petitions did not apply “in the unusual posture presented [t]here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id. Because a Ford claim is not ripe until an execution is imminent, a petitioner is likely unable to bring such a claim in his first federal habeas proceeding. See id. at 946-47. Thus, a second-in-time petition raising a Ford claim that is filed when the claim is first ripe (when execution is imminent) is not barred as “second or successive.” Id. at 947.

         Petitioner argues that his intellectual disability “claim was not ripe when he filed his initial [federal] habeas petition.” Doc. 1 at 44. He asserts that his “claim that the Eighth Amendment forbids the execution of an intellectually disabled person became viable when his death warrant was issued. Just as separate claims based on Ford may be raised at the time of sentencing and execution, separate claims based on Atkins may also be raised prior to the imposition of the sentence of death and prior to the actual execution of that sentence.” Id. He further contends that he “is exempt from execution due to the fact of his intellectual disability, ” and “[b]ecause the basis for his claim did not exist prior to his warrant being signed, [Petitioner]'s numerically second motion is not ‘second or successive,' and AEDPA's gatekeeping provision does not apply.” Id. at 45 (emphasis added). Petitioner also asserts that because he is intellectually disabled, he is “actually innocent of the death penalty”; therefore, the bar against second or successive petitions should not be applied because it would be a miscarriage of justice. See id. at 46-48. Alternatively, Petitioner seeks to proceed under 28 U.S.C. § 2241, seeking to avoid the “second or successive” bar under § 2244. See Id. at 48-59.

         Respondents counter that the Petition is second or successive, and this Court is without jurisdiction to consider it. See Doc. 8. Respondents assert that Panetti does not extend to Petitioner's Atkins claim, because his Atkins claim was ripe and could have been raised in his first federal habeas petition filed in 2008. See id. at 4-5. Moreover, Respondents contend that there is no miscarriage of justice exception applicable to the second or successive bar. Id. at 6-7. Finally, Respondents assert that Petitioner's attempt to invoke § 2241 to evade the statutory limitations relating to the filing of second or successive petitions is foreclosed by precedent. Id. at 13-20.

         Discussion

         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. Thus, the Atkins claim ripens early on while the Ford claim only becomes ripe when execution is imminent. This distinction drives the analysis of whether Petitioner's Atkins claim is second or successive.

         The United States Supreme Court “decided in Ford . . . that the Eighth Amendment's ban on cruel and unusual punishments precludes executing a prisoner who has ‘lost his sanity' after sentencing.” Madison v. Alabama, 139 S.Ct. 718, 722 (2019). Under Ford, “[t]he critical question is whether a ‘prisoner's mental state is so distorted by a mental illness' that he lacks a ‘rational understanding' of ‘the State's rationale for [his] execution.' Or similarly put, the issue is whether a ‘prisoner's concept of reality' is ‘so impair[ed]' that he cannot grasp the execution's ‘meaning and purpose' or the ‘link between [his] crime and its punishment.'” Id. at 723 (quoting Panetti, 551 U.S. at 958-60). Because competency can be lost and regained over time, it follows that a Ford claim is not ripe until execution is imminent:

Mental competency to be executed is measured at the time of execution, not years before then. A claim that a death row inmate is not mentally competent means nothing unless the time for execution is drawing nigh. It is not ripe years before the time of execution because mental conditions of prisoners vary over time. The reason the Ford claim was not ripe at the time of the first petition in Panetti is not that evidence of an existing or past fact had not been uncovered at that time. Instead, the reason it was unripe was that no Ford claim is ever ripe at the time of the first petition because the ...

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