United States District Court, M.D. Florida, Jacksonville Division
GARY R. BOWLES, Petitioner,
MARK S. INCH, Secretary, Florida Department of Corrections, et al., Respondents.
ORDER (EXECUTION SCHEDULED FOR AUGUST 22,
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
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. 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
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
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).
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). 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
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).
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. 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
or Successive Petitions Under AEDPA
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)
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
likens his Atkins claim to a
Ford 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.
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
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.
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.
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
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 ...