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Bowles v. Desantis

United States Court of Appeals, Eleventh Circuit

August 19, 2019

GARY RAY BOWLES, Plaintiff-Appellant,
RON DESANTIS, Governor, in his official capacity, JIMMY PATRONIS, Chief Financial Officer, in his official capacity, ASHLEY MOODY, Attorney General, in her official capacity, NIKKI FRIED, Commissioner of Agriculture, in her official capacity, JULIA MCCALL, Coordinator, Office of Executive Clemency, in her official capacity, MELINDA COONROD, Chairman, Commissioner, Florida Commission on Offender Review, in her official capacity, SUSAN MICHELLE WHITWORTH, Commission Investigator Supervisor, Florida Commission on Offender Review, in her official capacity, Defendants-Appellees.

          Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cv-00319-MW-CAS

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


         Gary Ray Bowles is a Florida death row inmate scheduled to be executed on August 22, 2019, at 6:00 p.m. He has moved for a stay of execution so that we can consider more fully the district court's denial of his motion for a stay of execution.

         Bowles sought a stay in the district court in order to pursue his 42 U.S.C. § 1983 claim that the State of Florida interfered with what he views as his right under 18 U.S.C. § 3599 to have attorneys in the Capital Habeas Unit (CHU) of the Federal Public Defender's Office represent him before the Florida Clemency Commission and Board. Those attorneys had represented Bowles in his federal habeas proceedings and had served as co-counsel, along with state-appointed counsel, in his state collateral proceedings. The Clemency Commission appointed another attorney to represent Bowles in the clemency proceedings, and that attorney appeared in person at the clemency interview before the Commission. Even though the CHU attorneys were not allowed to appear in person at the interview, they were repeatedly offered opportunities to submit any written materials they desired in support of clemency. And they did submit a joint letter from them, state-appointed collateral counsel, and state-appointed clemency counsel urging that clemency be granted. After holding the interview and considering all of the written materials the Commission submitted a report to the Board, which made the final decision to deny clemency.

         The district court denied the motion for a stay of execution because it determined that § 3599 does not create a right that is enforceable against the states. We agree. We also conclude that Bowles has not shown that he is otherwise entitled to a stay of execution from this Court.


         A. Bowles' Crimes And Procedural History

         In November of 1994 Bowles murdered a man named Walter Hinton by dropping a 40-pound concrete block on his head while Hinton was asleep. See Bowles v. State, 716 So.2d 769, 770 (Fla. 1998) (Bowles I); Bowles v. State, 804 So.2d 1173, 1177 (Fla. 2001) (Bowles II). After he was arrested Bowles confessed to the crime. Bowles I, 716 So.2d at 770. He explained how Hinton had given him a place to stay in his mobile home in Jacksonville, Florida, and how on the night of the murder the two men had been drinking and smoking marijuana. Id. How after Hinton went to sleep Bowles went outside and got the cement stepping stone, brought it inside the mobile home, placed it on a table and "thought for a few moments." Bowles II, 804 So.2d at 1177 (quotation marks omitted). How he then quietly entered Hinton's bedroom and dropped the stone on Hinton's face, fracturing his face from cheek to jaw. Bowles I, 716 So.2d at 770; Bowles II, 804 So.2d at 1181. How at that point, because Hinton was still alive, he "began to manually strangle [Hinton]," and put a rag in his mouth to smother him to death. Bowles I, 716 So.2d at 770. The only thing Bowles left out of his confession "was how he [also] stuffed toilet paper" down Hinton's throat. Bowles II, 804 So.2d at 1181.

         After Hinton was dead, Bowles went out. Id. He drove to get some liquor, then picked up a woman on the beach and brought her back to Hinton's home. Id. He made sure to keep her away from the room where Hinton's dead body lay covered in sheets. Id. Bowles was arrested approximately six days later, after having been "seen driving Hinton's car and wearing Hinton's watch." Id. at 1180- 81.

         Bowles pleaded guilty to first degree murder and a jury recommended that he be sentenced to death, which the trial court did. Id. at 1175. The Florida Supreme Court affirmed the conviction but vacated the death sentence because of an evidentiary error at the original sentence proceeding. Bowles I, 716 So.2d at 773. On remand, a jury unanimously recommended death and the trial court again imposed that sentence. Bowles II, 804 So.2d at 1175. This time the Florida Supreme Court affirmed. Id. at 1184.

         Bowles' killing of Hinton was no isolated incident, and the sentencing court "assigned tremendous weight to the prior violent capital felony convictions." Id. at 1175. In 1982 Bowles had "brutally attacked" his girlfriend, leaving her with "contusions to her head, face, neck, and chest, as well as bites to her breasts . . . [and] internal injuries including lacerations to her vagina and rectum." Id. For that Bowles was convicted of sexual battery and aggravated sexual battery. Id.

         Bowles was released from prison in April of 1990. In July 1991, just over a year after getting out, he was convicted of robbery for pushing a woman down and stealing her purse. Id. at 1175-76. For that crime he was sentenced to four years in prison followed by six years of probation. Id. at 1175. While out on probation in 1994, Bowles committed three murders.

         The first murder was of John Roberts on March 14, 1994.[1] Roberts made the same mistake that Hinton would later make. He was kind to Bowles, letting him move into his home. Bowles II, 804 So.2d at 1176. A few days after doing so: "Bowles approached [Roberts] from behind and hit him with a lamp. A struggle ensued during which Bowles strangled [Roberts] and stuffed a rag into his mouth. Bowles then emptied the victim's pockets, took his credit cards, money, keys, and wallet." Id.

         Two months later another person, Albert Morris, fell prey to Bowles. Like Roberts before him (and Hinton after him), Morris "befriended Bowles and allowed Bowles to stay at his home." Id. at 1176. Bowles and Morris "got into an argument and a fight outside of a bar." Id. Bowles hit him "over the head with a candy dish, and a struggle ensued, resulting in [Morris] being beaten and shot. Bowles also strangled [Morris] and tied a towel over his mouth." Id.[2]

         Then in November of that same year Bowles murdered Walter Hinton. We have already discussed the details of that brutal crime. See supra at 3-4. In addition to murdering Hinton, Roberts, and Morris, Bowles apparently murdered three other victims.[3]

         After the Florida Supreme Court affirmed Bowles' conviction and death sentence for murdering Hinton, he unsuccessfully sought post-conviction relief in state post-conviction proceedings, Bowles v. State, 979 So.2d 182 (Fla. 2008), and in federal habeas proceedings, Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313 (11th Cir. 2010). Last year the Florida Supreme Court denied another motion for post-conviction relief; in that motion Bowles claimed that he was entitled to have his death sentence vacated based on the Supreme Court's decision in Hurst v. Florida, 136 S.Ct. 616 (2016). See Bowles v. State, 235 So.3d 292, 292-93 (Fla. 2018).

         Bowles filed another successive post-conviction motion in Florida state court on October 19, 2017, raising for the first time an intellectual disability claim. The Florida Supreme Court affirmed the denial of that motion on August 13, 2019. Bowles v. State, Nos. SC19-1184 & SC19-1264, 2019 WL 3789971, at *2-3, 4 (Fla. Aug. 13, 2019). It also denied Bowles' habeas petition in which he claimed that the death penalty is cruel and unusual punishment barred by the Eighth Amendment of the United States Constitution. Id. at *3-4.

         B. Federal Appointment Of Counsel

         In September 2017 the federal district court that had denied Bowles' § 2254 petition in December 2009 granted his motion to appoint under 18 U.S.C. § 3599(a)(2) CHU attorneys to serve as Bowles' new federal habeas counsel. See Order, Bowles v. Sec'y, Fla. Dep't of Corr., No. 3:08-cv-791 (M.D. Fla. Sept. 27, 2017), ECF No. 33. The court also granted Bowles' motion to permit the CHU attorneys to represent him as co-counsel in Florida state court in connection with Bowles' motion for post-conviction relief based on intellectual disability. See Order, Bowles v. Sec'y, Fla. Dep't of Corr., No. 3:08-cv-791 (M.D. Fla. Dec. 6, 2017), ECF No. 36. The CHU attorneys served as co-counsel with state-appointed counsel in those proceedings. See Bowles, 2019 WL 3789971.[4]

         C. State Clemency Proceedings

         While Bowles' intellectual disability claim was proceeding in the Florida courts, the Governor of Florida, through the Florida Commission on Offender Review, began clemency proceedings for Bowles. Under Florida law the clemency power is vested in the executive branch, and exercise of that power is purely discretionary. See Fla. Const. Art. IV, § 8(a).

         The Governor and members of his cabinet make up the Clemency Board, which is responsible for promulgating the "Rules of Executive Clemency." One of those rules, Rule 15, governs the "Commutation of Death Sentences." Under that Rule, the Florida Commission on Offender Review (which is separate from the Board) "may conduct a thorough and detailed investigation into all factors relevant to the issue of clemency and provide a final report to the Clemency Board." Fla. R. Clemency 15(B). That investigation is to include an interview of the inmate by the Commission. He is allowed to have clemency counsel present at the interview. Id. By statute, the Board "may" in its "sole discretion" appoint the clemency counsel; the Board must maintain a list of private counsel who are available for that purpose. Fla. Stat. § 940.031. But the statute "does not create a statutory right to counsel in such proceedings." Id.

         Once the Commission completes its investigation, it sends a report to the Board. Fla. R. Clemency 15(D). The Board then may, but is not required to, hold a clemency hearing, at which "the inmate's clemency counsel and the attorneys for the state may make an oral presentation, each not to exceed 15 minutes collectively." Id. at (H). Then the Board votes on whether to grant clemency. Only after "the executive clemency process has concluded" may the Governor issue a death warrant. Fla. Stat. § 922.052.

         In this case, the Commission began clemency proceedings for Bowles in March of 2018. It appointed Nah-Deh Simmons, a private practitioner, as Bowles' clemency counsel. Simmons had not represented Bowles before, nor did he already know when he was first appointed that Bowles had brought an intellectual disability claim that was pending in state court. On March 26, 2018, the Commission notified Bowles that Simmons would be representing him and that a clemency interview had been set for August 2, 2018. Two days later an investigator for the Commission wrote to one of the CHU attorneys inviting them "as the post-conviction counsel" for Bowles to submit written comments to the Commission.

         On June 21, 2018, the CHU attorneys, attorney Simmons, and Bowles' state-appointed attorney in his post-conviction proceedings jointly submitted a six-page, single-spaced letter to the Clemency Board. In that letter, they informed the Board of the intellectual disability claim that Bowles was pursuing in state court and asked the Board to postpone the clemency proceeding until after that claim had been resolved. Their letter also included information about Bowles' traumatic childhood and his history of substance abuse. It stated that "[b]ecause of the pending litigation in the Circuit Court on his intellectual disability claim, the narrative of [Bowles'] life cannot be further expanded on at this time." The letter asked that Bowles' sentence be commuted to life imprisonment without parole.

         The CHU attorneys also contacted the Governor's office directly to request postponement of Bowles' clemency interview in light of the fact that he had an intellectual disability claim pending in state court. That request was denied on June 22, 2018. The Governor's office explained: "The clemency process is wholly separate and distinct from the successive legal challenges to [Bowles'] death sentence[], and inmate Bowles has been appointed separate legal counsel to represent him in the clemency proceedings. You are welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration." The CHU attorneys did not submit any materials in response to that second invitation to do so. According to Bowles' complaint in this case, Simmons interpreted the response from the Governor's office "to mean that 'the Board will only consider communications from [him], '" not from the CHU attorneys.

         The CHU attorneys then assisted Simmons in preparing for Bowles' interview before the Commission, which was still set for early August, a little over a month away. During that month the CHU attorneys remained in contact with Simmons, helping him prepare for Bowles' clemency interview. They also planned to participate in that interview so that they could, in their words, protect Bowles' "rights as they pertained to his ongoing intellectual disability litigation" and provide the Commission "a full picture of . . . Bowles'[] life history and intellectual disability." But on July 24 Simmons received a phone call from the Commission "informing him that neither [the CHU attorneys] nor [the CHU's expert witness] would be allowed to attend or participate in the clemency presentation." Only Simmons, as the duly appointed clemency counsel, would be permitted to do so. The CHU attorneys asked the Commission to reconsider that decision and allow them to appear at the clemency interview, but the Commission denied that request. In doing so, the Commission again emphasized that "[a]ny party is welcome to submit any materials in support of inmate Bowles' request for clemency, which will be given full consideration." The CHU attorneys did not submit any more materials in response to that third invitation.

         Bowles' clemency interview occurred on August 2, 2018 as planned. Bowles was present along with his clemency counsel, Simmons, who gave a presentation to the Commission, arguing for clemency. No attorney from the CHU was present. The interview lasted about an hour-and-a-half. The next month the CHU attorneys submitted a letter to the Clemency Board asking that a supplemental clemency interview be conducted by the Commission and the Board (which had not conducted or participated in the first one) at which the CHU attorneys could represent Bowles. Their letter asserted that Bowles' federal rights under 18 U.S.C. § 3599 had been abridged because the Commission had not allowed his § 3599 counsel (the CHU attorneys) to represent him at the clemency interview. The letter went unanswered.

         On June 11, 2019, Simmons received a letter from the Board stating that the Governor had denied Bowles' request for clemency and had signed a death warrant. Bowles' execution is set for August 22, 2019.

         D. Bowles' § 1983 Claim And Motion To Stay

         On July 11, 2019, a month after the Governor denied him clemency and signed the death warrant, Bowles filed a complaint in federal district court seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Seven members or agents of the Clemency Board, including the Governor and the Attorney General, were named as Defendants. The complaint asserts that Bowles' state-appointed counsel did not, "and could not, give a meaningful clemency presentation [because of] his lack of experience in death penalty litigation, lack of training regarding intellectual disability, lack of familiarity with [the] case, and lack of resources to investigate and present experts to educate [the Commission] about intellectual disability as it applied to [Bowles]." The claim is that by refusing to allow his federally appointed counsel to participate ...

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