Petition for Writ of Certiorari — Gary Ray Bowles, Petitioner v. Ron DeSantis, Governor of Florida, et al.

Supreme Court briefAug 20, 2019

Ask Donna

What actually matters in this document.

Text

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

GARY RAY BOWLES,

Petitioner,

RON DESANTIS, ET AL.,

Respondents.

____________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, AUGUST 22, 2019, AT 6:00 P.M.

______________________________________________________________

TERRI L. BACKHUS

Counsel of Record

KELSEY PEREGOY

SEAN GUNN

KATHERINE BLAIR

Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

terri_backhus@fd.org

kelsey_peregoy@fd.org

sean_gunn@fd.org

katherine_blair@fd.org

CAPITAL CASE

QUESTION PRESENTED

In Herrera v. Collins, this Court explained that clemency “is the historic

remedy for preventing miscarriages of justice where judicial process has been

exhausted.” 506 U.S. 390, 411-12 (1993). For death-sentenced individuals in

particular, the Court has emphasized that clemency is integral to the “functioning of

our legal system,” and “part and parcel of the multiple assurances that are applied

before a death sentence is carried out.” Kansas v. Marsh, 548 U.S. 163, 193 (2006)

(Scalia, J., concurring). That is why the Court has called clemency “the fail safe in

our criminal justice system.” Herrera, 506 U.S. at 415 (internal quote omitted).

In Harbison v. Bell, the Court ruled that a federal court’s appointment of

counsel to represent a death-sentenced prisoner under 18 U.S.C. § 3599 includes

representation in state clemency proceedings. 556 U.S. 180, 194 (2009). In enacting

§ 3599, Congress sought to ensure that “no prisoner would be put to death without

meaningful access to the fail-safe of our justice system,” and did not want “condemned

men and women to be abandoned by their counsel at the last moment and left to

navigate the sometimes labyrinthine clemency process.” Id. (internal quotes omitted).

Two circuits are presently split on the extent and meaning of Harbison.

Compare Samayoa v. Davis, 928 F.3d 1127 (9th Cir. 2019) with Irick v. Bell, 636 F.3d

289 (6th Cir. 2011). This Court now has the opportunity to resolve this circuit split

over the fundamental meaning of § 3599 for state clemency proceedings.

Petitioner Gary Ray Bowles is a death-sentenced Florida prisoner scheduled to

be executed on August 22, 2019. At the time of his state clemency proceedings, his

§ 3599 counsel were representing him in pending state litigation concerning whether

he is intellectually disabled. Given the sensitivities of Mr. Bowles’s intellectual

disability litigation, and the prospect that his claim might never receive judicial

review because of a procedural rule recently created by the Florida Supreme Court, 1

his § 3599 counsel sought to represent him in state clemency proceedings to ensure

that the fail-safe of his process was preserved, and that Mr. Bowles, an intellectually

disabled man, was not left to navigate the process alone.

But Florida state clemency officials barred § 3599 counsel from representing

Mr. Bowles in state clemency proceedings, instead paying a private lawyer who had

no experience with capital cases or clemency cases a flat fee of $10,000 to represent

Mr. Bowles. After clemency was denied and a death warrant was signed, Mr. Bowles

sought injunctive relief under 42 U.S.C. § 1983 based on the state officials’ denial of

his rights under § 3599. Both the district court and the court of appeals recognized

that § 3599 counsel’s representation extended to state clemency proceedings as far as

the federal courts were concerned, but held that Florida state officials’ deprivation of

Mr. Bowles’s § 3599 rights was in no way enforceable through § 1983.

The question presented is:

Can state officials bar a death-sentenced individual’s 18 U.S.C. § 3599 counsel

from representing him in state clemency proceedings, and if not, is the remedy

for the violation 42 U.S.C. 1983?

The Florida Supreme Court ultimately applied this procedural rule to refuse

to review Mr. Bowles’s intellectual disability claim. That ruling is the subject of a

separate certiorari petition pending in this Court. Bowles v. Florida, No. 19-5617.

TABLE OF CONTENTS

Question Presented.............................................................................................. i

Table of Contents ............................................................................................... iv

Table of Authorities ........................................................................................... vi

Parties to the Proceeding.................................................................................. vii

Decision Below .....................................................................................................1

Jurisdiction ..........................................................................................................1

Constitutional Provisions Involved .....................................................................1

Statement of the Case .........................................................................................2

Introduction ....................................................................................2

II.

Procedural Background..................................................................4

Mr. Bowles’s Death Sentence and Appointment of

§ 3599 Counsel .....................................................................4

Clemency Proceedings .........................................................6

Florida’s Clemency Scheme ......................................6

ii.

Mr. Bowles’s Clemency Proceedings ......................10

Mr. Bowles’s § 1983 Action................................................13

The Eleventh Circuit’s Decision Below.............................14

Reasons for Granting the Writ ..........................................................................16

State Official Should Not Be Allowed to Arbitrarily Frustrate

the Right to Representation Granted to Death-Sentenced

Individuals by 18 U.S.C. § 3599...................................................16

II.

Where a State Denies a Death-Sentenced Individual’s

Ability to Vindicate his Rights Under § 3599, There Must

be a Remedy..................................................................................21

iii

III.

This Court Should Resolve the Circuit Split on the Relationship

Between § 3599 and the Effect of State-Furnished Counsel,

Which Necessarily Implicates the Meaning of § 3599 Itself.......24

Conclusion ..........................................................................................................28

INDEX TO APPENDIX

Eleventh Circuit Opinion Below (Aug. 19, 2019) ................................................. 1

District Court Order Denying Motion for Stay of Execution

(July 19, 2019)..................................................................................................... 80

Plaintiff-Appellant’s Emergency Motion for Stay of Execution

Pending Appeal (Aug. 2, 2019) ........................................................................... 89

Defendants-Appellees’ Response to Emergency Motion for Stay of

Execution (Aug. 9, 2019)................................................................................... 194

Plaintiff-Appellant’s Reply to Response in Opposition to Motion for

Stay of Execution (Aug. 13, 2019) .................................................................... 219

Plaintiff’s 42 U.S.C. § 1983 Complaint for Declaratory and

Injunctive Relief (July 11, 2019) ..................................................................... 231

Plaintiff’s Memorandum of Law in Support of 42 U.S.C.

§ 1983 Complaint and Stay Motion (July 11, 2019) ........................................ 282

Plaintiff’s Emergency Motion for Stay of Execution

(July 11, 2019)................................................................................................... 338

Defendants’ Response for Motion for Stay of Execution

(July 17, 2019)................................................................................................... 357

Plaintiff’s Reply in Support of Motion for Stay of

Execution (July 19, 2019) ................................................................................. 395

Plaintiff’s Appendix to 42 U.S.C. § 1983 Complaint for

Declaratory and Injunctive Relief (July 11, 2019) .......................................... 412

TABLE OF AUTHORITIES

Cases:

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................5, 27

Blessing v. Freestone, 520 U.S. 329 (1997)................................................ passim

Bowles v. Sec’y, Fla. Dep’t of Corr, 608 F.3d 1313 (11th Cir. 2010)

cert denied, 562 U.S. 1068 (2010) ...................................................................5

Bowles v. Florida, 536 U.S. 930 (2002) ...............................................................5

Bowles v. State, 804 So. 2d 1173 (Fla. 2001).......................................................4

Bowles v. State, 979 So. 2d 182 (Fla. 2008) ........................................................5

Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940 (11th Cir. 2014) .................20

Coastal Counties Workforce, Inc. v. LePage, 284 F. Supp.3d 32

(D. Maine 2018)............................................................................................21

Ford v. Wainwright, 477 U.S. 399 (1986) .........................................................27

Gonzaga University v. Doe, 536 U.S. 273 (2002) ..............................................24

Hall v. Florida, 134 S. Ct. 1986 (2014) ...............................................................5

Harbison v. Bell, 556 U.S. 180 (2009) ....................................................... passim

Herrera v. Collins, 506 U.S. 390 (1993) .............................................................. i

Holiday v. Stephens, 136 S. Ct. 387 (2015) .......................................................23

Howlett v. Rose, 496 U.S. 356 (1990)...........................................................24, 25

In re Griffith, 206 F.3d 1389 (11th Cir. 2000) ..................................................21

Irick v. Bell, 636 F.3d 289 (6th Cir. 2011)............................................. 26, 27, 29

Larsen v. Pennsylvania, 152 F.3d 240 (3d Cir. 1998) .......................................25

Kansas v. Marsh, 548 U.S. 163 (2006) ................................................................ i

Mickey v. Davis, No. 93-00243, 2018 WL 3659298 (N.D. Cal. Aug. 2, 2018)...29

Samayoa v. Daivs, 928 F.3d 1127 (9th Cir. 2019) ................................ 26, 27, 29

United States v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010)....................20

Walls v. State, 213 So. 3d 340 (Fla. 2016)...........................................................5

Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) .................................................19

Statutes:

28 U.S.C. § 3599 ......................................................................................... passim

28 U.S.C. § 1254 ...................................................................................................1

28 U.S.C. § 2254 ...................................................................................................5

42 U.S.C. § 1983 ......................................................................................... passim

Fla. Stat. § 27.710 ..............................................................................................10

Fla. Stat. § 27.711 ..............................................................................................11

Fla. Stat. § 922.052 ............................................................................................11

Fla. Stat. § 940.01 ................................................................................................6

Fla. Stat. § 940.03 ............................................................................................8, 9

Other:

Fla. Const. Art. IV, sec. 8(a) ................................................................................6

Florida Rules of Criminal Procedure, Rule 3.112(k) ........................................10

Rule 15, Rules of Executive Clemency (2011) ............................................6, 7, 8

H.B. No. 5303, 23rd Leg., 2nd Reg. Sess. (Fla. 2014) .........................................9

PARTIES TO THE PROCEEDINGS

Petitioner Gary Ray Bowles, a death-sentenced Florida prisoner scheduled for

execution on August 22, 2019, was the appellant in the United States Court of

Appeals for the Eleventh Circuit. Respondents, Florida State officials involved in Mr.

Bowles’s executive clemency proceedings, were the appellees in that court.

vii

DECISION BELOW

The Eleventh Circuit’s decision is not yet reported but is available at __ F.3d

__, 2019 WL 3886503, and is reprinted in the Appendix (App.) at 1.

JURISDICTION

The Eleventh Circuit’s opinion was entered on August 19, 2019. App. at 1. This

Court has jurisdiction under 28 U.S.C. § 1254(1).2

FEDERAL STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 3599 provides, in relevant part:

(a)(2) In any post conviction proceeding under section 2254 or 2255 of

title 28, United States Code, seeking to vacate or set aside a death

sentence, any defendant who is or becomes financially unable to obtain

adequate representation or investigative, expert, or other reasonably

necessary services shall be entitled to the appointment of one or more

attorneys and the furnishing of such other services in accordance with

subsections (b) through (f).

***

(e) Unless replaced by similarly qualified counsel upon the attorney's

own motion or upon motion of the defendant, each attorney so appointed

shall represent the defendant throughout every subsequent stage of

available judicial proceedings, including . . . proceedings for executive or

other clemency as may be available to the defendant.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . .

Petitioner requests that the Court expedite consideration of this petition in

order to ensure that it is circulated together with the accompanying stay application.

STATEMENT OF THE CASE

Introduction

Petitioner Gary Bowles is an intellectually disabled man who is scheduled to

be executed by the State of Florida on August 22, 2019, at 6:00 p.m.

Since 2017, Mr. Bowles’s appointed 18 U.S.C. § 3599 counsel, the Capital

Habeas Unit (CHU) of the Federal Public Defender for the Northern District of

Florida, has investigated, developed, and attempted to present evidence of Mr.

Bowles’s intellectual disability in every forum available to him. In March 2018, while

Mr. Bowles had a pending claim of intellectual disability in state court, the State of

Florida initiated clemency proceedings for Mr. Bowles. The defendants in the

underlying matter, officials of the State of Florida, contracted with private clemency

counsel to represent Mr. Bowles without first notifying Mr. Bowles or his § 3599

counsel, and then barred every attempt by his § 3599 counsel to participate in Mr.

Bowles’s clemency process. Though these State officials were notified that Mr. Bowles

was intellectually disabled and uniquely vulnerable to miscommunication, and that

he had pending constitutional litigation concerning this disability, they barred his

§ 3599 counsel from even serving as co-counsel in the clemency proceedings.

The private clemency counsel Florida retained for Mr. Bowles had never

represented an individual facing the death penalty at any stage of proceedings—trial,

appellate, postconviction, or habeas—nor was he qualified under Florida law to do so.

He had never represented a client in intellectual disability-related proceedings, nor

did he have any experience or training in litigating intellectual disability claims.

Pursuant to the terms of his flat-fee contract, he did not have funding for experts or

investigation, and had not been trained in how to investigate and prepare a

professionally appropriate clemency presentation.

Unsurprisingly, Mr. Bowles’s state-retained clemency counsel failed to act as

meaningful counsel. State-retained counsel failed to speak with any lay or expert

witnesses, failed to seek Mr. Bowles’s full case file, allowed critical factual

inaccuracies to go uncorrected during Mr. Bowles’s only opportunity for a clemency

presentation, and submitted a clemency petition that was less than eight doublespaced pages in length from title to signature, and was rife with typographical,

formatting, and substantive errors. In fact, the clemency petition that state-retained

counsel submitted on Mr. Bowles’s behalf was copied nearly word for word from

another death-sentenced inmate’s petition, included two instances where Mr. Bowles

was erroneously called the other inmate’s name, and included facts that were true for

the other inmate, but not Mr. Bowles. State-retained counsel failed to meaningfully

investigate or present Mr. Bowles’s intellectual disability as a basis for clemency. And

because state officials barred the only counsel that knew Mr. Bowles and understood

his intellectual disability litigation—his § 3599 counsel, the CHU—it was akin to Mr.

Bowles having no counsel at all in the proceedings.

What is fundamentally at issue in this case is the meaning of § 3599. The

actions of the defendants in the underlying action, all officials of the State of Florida,

prevented Mr. Bowles from receiving representation he was entitled to under § 3599.

The defendants have argued throughout the course of this litigation that § 3599

counsel may never appear in clemency proceedings in the State of Florida, either as

sole clemency counsel or as co-counsel to state-furnished counsel.

Mr. Bowles now faces imminent execution, having never had a clemency

proceeding where he was represented by competent counsel who could fairly present

his compelling grounds for clemency—the strong evidence of his intellectual

disability. This is particularly impactful because Mr. Bowles has been barred by state

and federal procedural rules, respectively, from presenting the merits of his

intellectual disability claim in any court. The violations of Mr. Bowles’s § 3599 rights

as they relate to clemency therefore represented a breakdown in “the fail-safe of our

justice system,” leaving Mr. Bowles effectively alone “at the last moment and left to

navigate” the clemency process without his trusted attorneys. See Harbison, 556 U.S.

at 194. Yet the district court and court of appeals approved of this outcome below,

because in their view the state officials’ violations of § 3599 rights are not enforceable.

This Court’s intervention is urgently needed if § 3599(e)’s mandate that

counsel “shall represent the defendant throughout every subsequent stage of

available judicial proceedings, including . . .

proceedings for executive or other

clemency,” is to have any meaning at all. 18 U.S.C. § 3599(e) (emphasis added).

II.

Procedural History

Mr. Bowles’s Death Sentence and Appointment of § 3599 Counsel

Mr. Bowles pleaded guilty to first-degree murder in Duval County, Florida in

1996. The state court imposed a death sentence, which was affirmed by the Florida

Supreme Court on direct appeal. Bowles v. State, 804 So. 2d 1173 (Fla. 2001), cert

denied, Bowles v. Florida, 536 U.S. 930 (2002). Mr. Bowles was denied state

postconviction relief. Bowles v. State, 979 So. 2d 182 (Fla. 2008). In 2008, Mr. Bowles,

filed a petition for federal habeas corpus relief under 28 U.S.C. § 2254 in the United

States District Court for the Middle District of Florida. Bowles v. Sec’y, Fla. Dep’t of

Corr., No. 3:08-cv-791, ECF No. 1 (M.D. Fla.). The District Court denied the petition,

id. at ECF No. 18, and the Eleventh Circuit affirmed. Bowles v. Sec’y, Fla. Dep’t of

Corr., 608 F.3d 1313, 1317 (11th Cir. 2010), cert denied, 562 U.S. 1068 (2010).

On September 27, 2017, the Capital Habeas Unit (CHU) of the Federal Public

Defender for the Northern District of Florida was appointed under 18 U.S.C. § 3599

to represent Mr. Bowles in further proceedings. Bowles v. Sec’y, Fla. Dep’t of Corr.,

No. 3:08-cv-791, ECF No. 33 (M.D. Fla.). On December 5, 2017, the CHU moved

unopposed for authorization under § 3599 to litigate Mr. Bowles’s intellectual

disability in state court for the first time. Id., ECF No. 34. On December 6, 2017, the

district court granted his request. Id., ECF No. 35.

At the time of Mr. Bowles’s death sentence, Atkins v. Virginia, 536 U.S. 304

(2002), had not yet recognized the Eighth Amendment’s prohibition of executing

individuals with intellectual disabilities. Later, when Mr. Bowles was litigating his

initial state postconviction motion, Florida courts only allowed intellectual disability

claims for individuals with IQ scores of 70 and below. In 2014, this bright-line IQ

score cutoff was held unconstitutional in Hall v. Florida, 134 S. Ct. 1986 (2014).

On October 19, 2017, less than one year after Walls v. State, 213 So. 3d 340

(Fla. 2016), made Hall retroactive in Florida, Mr. Bowles, through his § 3599 counsel,

filed a successive motion for state postconviction relief, arguing that his execution

would violate the Eighth Amendment because he is intellectually disabled. Mr.

Bowles’s § 3599 counsel, the CHU, investigated and developed this evidence of his

intellectual disability, and subsequently proffered a qualifying IQ score of 74, expert

reports of three mental health professionals diagnosing or finding evidence of

intellectual disability, more than a dozen sworn statements evidencing Mr. Bowles’s

significant adaptive deficits throughout his childhood, adolescence, and adulthood,

and the declarations of the only two mental health professionals that had previously

evaluated Mr. Bowles, attesting that they had not evaluated him for intellectual

disability, and did not dispute his present diagnosis.

Clemency Proceedings

Florida’s Clemency Scheme

Clemency in Florida is derived both from the Florida Constitution and state

statute. See Fla. Const. Art. IV, sec. 8(a) (“Except in cases of treason and in cases

where impeachment results in conviction, the governor may . . . with the approval of

two members of the cabinet . . . commute punishment . . . .”); Fla. Stat. § 940.01

(same). All clemency is governed by the Rules of Executive Clemency,3 which were

created by the Clemency Board, and last amended in 2011.

Within the Rules of Executive Clemency, there are 19 rules. However, only a

select few apply to clemency for capital inmates. Rule 15 is the operative rule for the

Available

at:

https://www.flgov.com/wp-content/uploads/2011/03/2011Amended-Rules-for-Executive-Clemency.final_.3-9.pdf (last visited Aug. 20, 2019).

mechanics of clemency for capital inmates in Florida. Rule 15 provides that in all

cases in which death has been imposed, the Florida Parole Commission (now known

as the Florida Commission on Offender Review (FCOR)), conducts an “investigation

into all factors relevant to the issue of clemency and provide[s] a final report to the

Clemency Board.” Rule 15(B). A capital inmate is given the opportunity for a

clemency “interview” before FCOR, Rule 15(B), and they are entitled to a copy of the

transcript of the clemency interview upon request, Rule 15(G). A transcript of the

clemency interview is also available upon request to the state attorney or the victim’s

family. Rule 15(G). Commutation of a death sentence can be ordered by the Governor

with the approval of at least two members of the Clemency Board. Rule 15(I).

By statute, the Clemency Board “may appoint private counsel to represent a

person sentenced to death for relief by executive clemency . . . .” Fla. Stat.

§ 940.031(1). This statute went into effect on July 1, 2014.4 The statute provides that

Before the 2014 enactment of Fla. Stat. § 940.031, providing for the private

contracting scheme at issue herein, Florida circuit courts were responsible for

appointing clemency counsel for death-sentenced individuals, and thus there was

another forum apart from 42 U.S.C. § 1983 for any clemency related concerns. Such

a forum no longer exists.

The bill that resulted in this change was a sweeping change to Florida’s

clemency scheme to remove all judicial involvement in ensuring death-sentenced

persons had clemency counsel. See H.B. No. 5303, 23rd Leg., 2nd Reg. Sess. (Fla.

2014) (“An act relating to counsel in proceedings for executive clemency; amending

ss. 27.51 and 27.511, F.S.; deleting provisions concerning the power of a trial court to

appoint the public defender, office of criminal conflict and civil regional counsel, or

other attorney in proceedings for relief by executive clemency; correcting crossreferences; amending s. 27.5303, F.S.; deleting provisions concerning the

appointment of a public defender or attorney by the court to represent an indigent

defendant in death penalty executive clemency proceedings; amending s. 27.5304,

F.S.; deleting provisions concerning compensation of an appointed attorney

representing a defendant in executive clemency proceedings; creating s. 940.031, F.S.;

private counsel retained by the Clemency Board can be compensated at an amount

“not to exceed $10,000, for attorney fees and costs incurred in representing the person

for relief by executive clemency . . . .” Fla. Stat. § 940.031(2). This compensation is

“paid out of the General Revenue Fund from funds budgeted to [FCOR].” Fla. Stat.

§ 940.031(2). The statute states it “does not create a statutory right to counsel” in

clemency proceedings. Fla. Stat. § 940.031(3).

While § 940.031 provides for a method of retaining and compensating

attorneys who represent individuals in capital clemency proceedings, it does not

prescribe any qualifications for such attorneys. The application, which is less than

two pages in length, asks only for biographical information and for the applicant to

check all that apply from the following list:



I am a member in good standing with the Florida Bar.

I have read the qualifications herein and agree to these

qualifications.

I am familiar with the fees, costs and expense provisions

set by law, including the fee limitations prescribed in §

940.031, Fla. Stat.

I will not solicit compensation from the inmate I am

appointed to represent.

I will notify the Clemency Coordinator of any formal

complaint filed by the Florida Bar against me, any nonconfidential agreements entered into between myself and

the Florida Bar, and any claim of ineffective assistance of

counsel that has been set for a hearing before a judge or

magistrate.

I agree to be readily accessible to the inmate and to meet

the inmate in person, prepare for and attend the Clemency

interview before the Parole Commission at death row, file

a clemency petition on behalf of the inmate, and attend a

providing for clemency counsel representation of defendants in executive clemency

proceedings; providing for compensation . . .”).



clemency hearing before the Governor and Cabinet, if

scheduled.

I am familiar with the Rules of Executive Clemency,

including Rule 15 as it related to Commutation of Death

Sentences, and I will adhere to the Rules.

I will cooperate and abide by the contract entered into

between the Florida Parole Commission and me for

performance of services under this agreement.

I agree to continue representing the inmate until my

services are no longer required by the Board of Executive

Clemency.

No other qualifications exist for capital clemency representation, either by statute in

Florida or by practice in the contracting conducted by the Office of Executive

Clemency or FCOR. 5

While clemency is an executive function in Florida, the Florida Legislature

has statutorily prescribed that a death sentence cannot be carried out without the

undertaking of the “clemency process.” Specifically, although the legislature has

empowered the Governor to initiate, with the signing of a warrant, the execution of a

Under Florida’s contracting scheme, clemency attorneys are neither required

to be qualified under Fla. Stat. § 27.710, which provides for the “certification of

minimum requirements” of attorneys permitted to represent death-sentenced

individuals in postconviction and collateral proceedings (along with Fla. Stat. §

27.704(2)), nor are they required to be qualified under the Florida Rules of Criminal

Procedure, Rule 3.112(k), which describes the qualifications for lead counsel in postconviction proceedings for individuals facing the death penalty. In fact, Florida law

actually prohibits such qualified counsel who are actively representing a deathsentenced client in postconviction to participate in capital clemency. See Fla. Stat. §

27.711(11) (“An attorney appointed under s. 27.710 to represent a capital defendant

may not represent the capital defendant during a retrial, a resentencing proceeding,

a proceeding commenced under chapter 940 [Executive Clemency], a proceeding

challenging a conviction or sentence other than the conviction and sentence of death

for which the appointment was made, or any civil litigation other than habeas corpus

proceedings.”).

death-sentenced individual, the Governor is only permitted to issue such a warrant

if “the executive clemency process has concluded . . . .” See Fla. Stat. § 922.052(b), (c).

ii.

Mr. Bowles’s Clemency Proceedings

The Governor of Florida—through the FCOR and pursuant to Florida’s

executive clemency scheme—initiated clemency proceedings for Mr. Bowles in March

2018, while his intellectual disability litigation was still pending. In fact, FCOR

privately retained clemency counsel for Mr. Bowles before notifying him or his § 3599

counsel, the CHU, that clemency had been initiated. After learning of the clemency

proceedings, Mr. Bowles’s § 3599 counsel attempted to formally participate in the

clemency process, not only to provide critical information to the clemency board

regarding Mr. Bowles’s intellectual disability, but also to protect Mr. Bowles’s rights,

given that the Clemency Board was seeking a personal interview of Mr. Bowles, an

intellectually disabled man, outside the presence of the very attorneys who were

conducting his intellectual disability litigation. But Florida’s state clemency officials

barred the CHU from formally participating in the proceedings, and refused to allow

CHU counsel to be present at the interview.

Mr. Bowles’s state-retained clemency counsel had no death penalty experience

or qualifications, affirmatively waived any investigative, expert, or other fees

associated with his representation, failed to speak with any lay or expert witnesses

or seek Mr. Bowles’s full case file, was unfamiliar with Mr. Bowles’s background, and

undertook none of the necessary precursors to a competent clemency presentation.

During the clemency interview, Mr. Bowles’s only opportunity for in-person advocacy

for clemency, state-retained counsel, acknowledged how his unfamiliarity with Mr.

Bowles’s case and intellectual disability. Indeed, the issue of Mr. Bowles’s intellectual

disability went substantively unaddressed, with only superficial references by his

counsel during the clemency interview. Additionally, Mr. Bowles’s state-retained

counsel, due to his unfamiliarity with Mr. Bowles and intellectual disability

generally, failed to assist Mr. Bowles as he appeared to struggle to understand the

questions posed to him. State-retained counsel also failed to intervene when Mr.

Bowles was repeatedly questioned by FCOR about matters bearing on his pending

intellectual disability litigation, outside the presence of § 3599 counsel who

represented him in that litigation, or when FCOR actively denigrated that litigation,

and questioned whether Mr. Bowles had any disability at all.

Because the Florida officials forced Mr. Bowles to proceed into clemency

without adequate representation, he was deprived of the chance to offer a meaningful

presentation of his life history and intellectual disability as grounds for mercy.

Information regarding Mr. Bowles’s life and intellectual disability—which was

crucial to a determination of whether clemency was appropriate in Mr. Bowles’s

case—was never presented. Mr. Bowles’s state-retained counsel failed to present

information that Mr. Bowles was born into an emotionally and unstable family

marked by alcoholism and deprivation, was abandoned by his mother at the age of

three, and when he was finally reunited with her at the age of six, he was neglected

by her and physically abused by her string of husbands. His state-retained counsel

never presented information that he was sexually abused beginning at the age of

eight, and introduced to drugs, alcohol, and inhalants between the ages of eight and

ten, resulting in hospitalization.

State-retained counsel also presented no information about how Mr. Bowles’s

life was made tragically more difficult by his intellectual and adaptive deficits, which

began in his childhood. He was unable to think abstractly, and fell behind his peers

in school. At the age of thirteen, Mr. Bowles was beaten to a life-threatening degree

by his stepfather. When his mother refused to take protective action for Mr. Bowles’s

sake, he left home and—unable to find traditional employment due to his young age

and low intellectual functioning—was forced to sell his body as a child prostitute in

order to obtain food and shelter. He was transient, repeatedly sexually victimized by

older men, and unable to navigate the world on his own. His dependence on others

made it impossible to escape the cycle of sexual victimization, which furthered Mr.

Bowles’s trauma and led him to self-medicate symptoms of post-traumatic stress

disorder with drugs and alcohol.

Any information about the effect of Mr. Bowles’s intellectual disability on his

life also went unaddressed. Mr. Bowles’s deficits were severe and obvious, and he was

described by individuals who knew him as forgetful, gullible, naïve, immature,

socially inept, impulsive, and lacking a sense of consequences for his actions. He had

impaired language skills, could not keep up in conversations, struggled with memory,

and could not perform day-to-day tasks such as utilizing public transportation, using

money, or seeking employment. He had no formal system of social support, and due

to his myriad deficits, nearly every day of his life was a struggle to survive.

Instead of any of this compelling information about Mr. Bowles’s life and

intellectual disability, state-retained counsel submitted a clemency petition that was

less than eight double-spaced pages in length from title to signature, and rife with

typographical, formatting, and substantive errors. Over 1,300 of its approximately

1,825 words were copied and pasted directly from the unrelated clemency application

of death row inmate Stephen Booker, including two instances where Mr. Bowles was

erroneously identified as “Mr. Booker” and a notation that Mr. Bowles had been on

death row for over thirty years (which was true of Mr. Booker, but not Mr. Bowles).

Elsewhere in the application, state-retained counsel indicated that Mr. Bowles had

been on death row since 1994, though Mr. Bowles did not even plead guilty until 1996.

Despite repeated attempts to intervene and participate, defendants in the

underlying action refused § 3599 counsel’s attempts to act as clemency counsel or cocounsel. Mr. Bowles’s clemency proceedings officially ended on June 11, 2019, when

the Governor of Florida denied Mr. Bowles clemency and, at the same time, signed a

warrant for his execution.

Mr. Bowles’s § 1983 Action

After clemency was denied and a death warrant was signed, Mr. Bowles filed

a 42 U.S.C. § 1983 action in the Northern District of Florida, based on the violation

of his § 3599 right to counsel in his clemency proceedings, along with a motion to stay

his scheduled August 22, 2019, execution. App. at 231; 338.

On July 19, 2019, the district court denied Mr. Bowles’s stay motion, finding

that § 3599 was not enforceable through § 1983. The district court limited its ruling

only to whether § 3599 creates a federal right enforceable through § 1983. See App.

at 80-88. The district court found that while § 3599 met the first two elements of the

test for § 1983 enforceability, as described in Blessing v. Freestone, 520 U.S. 329, 34041 (1997), it failed the third element because the statute “does not place an obligation

on the States at all.” App. at 85. Instead, the district court found, § 3599 only created

an obligation for the appointed attorney. App. at 85-86. The district court additionally

found that § 3599 does not “require state courts or executive bodies to allow the

federally appointed attorney to appear and practice before them.” App. at 86.6

The Eleventh Circuit’s Decision Below

On August 1, 2019, Mr. Bowles appealed the district court’s ruling to the

United States Court of Appeals for the Eleventh Circuit, and on August 2, 2019, he

filed a motion for a stay of his execution pending the appeal. App. at 89.

On August 19, 2019, the Eleventh Circuit denied Mr. Bowles’s stay motion,

finding that § 3599 was not enforceable in § 1983. See App. at 1-79. Although the

district court found that § 3599 met the first two Blessing factors—that Congress

intended § 3599 to benefit individuals like Mr. Bowles, and that the right protected

by § 3599 was not “vague and amorphous,” Blessing, 520 U.S. at 340-41—the

As even the district court recognized below, “one would assume the Clemency

Board would want to hear from the attorney most qualified to speak on the

defendant’s behalf and present the best information possible, leaving no stone

unturned . . . . [i]t is unclear how excluding the CHU from the clemency proceeding

and instead appointing an attorney unfamiliar with Bowles’s history and possible

intellectual disability contributes to the integrity or reliability of the clemency

determination.” App. at 87-88 (the district court went on to conclude, however, “but

that is not the issue presented before this Court.”).

Eleventh Circuit found that § 3599 met none of the Blessing factors. App. at 19-32.

Concerning the first Blessing factor, the court found that while § 3599 contained “the

kind of individually focused language that indicated that Congress may have

intended the statute to benefit certain individuals,” it did not ultimately meet the

first factor because “[t]he right [Mr.] Bowles seeks to vindicate is not the appointment

or compensation of counsel but the right to have his federally appointed counsel

appear at a state clemency interview where the State has appointed another attorney

to do so” and when it was “against the State’s wishes.” App. at 21.

Regarding the second Blessing factor, that the right was not vague or

amorphous, the court found that § 3599 failed because “[t]he statute says nothing

about when and how and under what circumstances the provisions of § 3599 are to

override clemency rules and procedures.” App. at 27. The court further noted, “[w]e

do not think Congress would enact such a far-reaching and intrusive right as the one

[Mr.] Bowles asserts without also providing an objective benchmark to measure the

extent of that right and gauge how it is to be enforced.” Id.

Of the third Blessing factor, the court found that although § 3599 “does use

some mandatory language,” it does “not even indirectly obligate the state to do

anything,” and “does not say that clemency officials shall or must allow counsel

appointed by a federal court under § 3599 to appear and represent the petitioner in a

state clemency proceeding.” App. at 28.

While concurring in the result, on the basis of the analysis of the third Blessing

factor alone, Judge Martin also expressed serious concerns about the state officials’

refusal to allow Mr. Bowles’s § 3599 counsel’s participation in his clemency

proceedings. Specifically, Judge Martin noted:

I also write separately to express my view that both Mr. Bowles and the

Florida Commission on Offender Review (the “Commission”) could have

benefitted by having counsel from the [CHU] continue to represent Mr.

Bowles in his state clemency proceedings. It is puzzling that the

Commission barred the knowledgeable and willing CHU lawyers from

representing Mr. Bowles. Just as I must acknowledge that Mr. Bowles

may not enforce a legal right to be represented by counsel from the CHU,

neither was there any legal impediment to those lawyers appearing on

his behalf. Thus, it is not only mysterious but possibly tragic that

counsel was turned away.

***

For me, the Commission’s decisions to bar the appearance of experienced

counsel casts a shadow over Mr. Bowles’s clemency proceeding.

***

This is especially troubling because neither the District Court’s records

no the records before this Court offer any explanation as to why the

Commission turned away CHU counsel.

App. at 38-43.

REASONS FOR GRANTING THE WRIT

State Officials Should Not Be Allowed to Arbitrarily Frustrate the

Right to Representation Granted to Death-Sentenced Individuals by

18 U.S.C. § 3599

The ultimate questions in this case are whether Mr. Bowles, a man with

intellectual disability, having had counsel appointed to him under § 3599, had a

federal right to that counsel’s representation in clemency proceedings, and if so,

whether state officials could refuse his § 3599 counsel any meaningful participation

in representing him in the last available forum.

Section 3599 provides, in relevant part:

(2) In any post conviction proceeding under section 2254 or 2255 of title

28, United States Code, seeking to vacate or set aside a death sentence,

any defendant who is or becomes financially unable to obtain adequate

representation or investigative, expert, or other reasonably necessary

services shall be entitled to the appointment of one or more attorneys

and the furnishing of such other services in accordance with subsections

(b) through (f).

***

(e) Unless replaced by similarly qualified counsel upon the attorney’s

own motion or upon motion of the defendant, each attorney so appointed

shall represent the defendant throughout every subsequent stage of

available judicial proceedings, including pretrial proceedings, trial,

sentencing, motions for new trial, appeals, applications for writ of

certiorari to the Supreme Court of the United States, and all available

post-conviction process, together with applications for stays of execution

and other appropriate motions and procedures, and shall also represent

the defendant in such competency proceedings and proceedings for

executive or other clemency as may be available to the defendant.

18 U.S.C. § 3599(a)(2), (a)(2)(e) (emphasis added).

In Harbison v. Bell, this Court found that “§ 3599 authorizes federally

appointed counsel to represent their clients in state clemency proceedings and

entitles them to compensation for that representation.” 556 U.S. at 194.

Under a straightforward reading of the statute, subsection (a)(2)

triggers the appointment of counsel for habeas petitioners, and

subsection (e) governs the scope of appointed counsel’s duties. See §

3599(a)(2) (stating that habeas petitioners challenging a death sentence

shall be entitled to “the furnishing of ... services in accordance with

subsections (b) through (f)”). Thus, once federally funded counsel is

appointed to represent a state prisoner in § 2254 proceedings, she “shall

also represent the defendant in such ... proceedings for executive or

other clemency as may be available to the defendant.” § 3599(e). Because

state clemency proceedings are “available” to state petitioners who

obtain representation pursuant to subsection (a)(2), the statutory

language indicates that appointed counsel’s authorized representation

includes such proceedings.

Harbison, 556 U.S. at 185-86. In so holding, Harbison concluded that “the plain

language of the statute dictates the outcome of this case.” Id. at 185.

Federal courts have also found the plain, mandatory language of § 3599 in

defining the authorization of representation; for example, courts have found that

counsel appointed under § 3599 are obligated to represent an individual in

subsequent proceedings, and thus need not go to a federal district court for approval

to participate in state clemency proceedings. See, e.g., Wilkins v. Davis, 832 F.3d 547,

558 (5th Cir. 2016) (“[§ 3599 counsel] acted within the authorized scope of her

appointment; she represented Wilkins in ‘available post-conviction process’ . . .

including . . . ‘proceedings for executive or other clemency,’ as authorized by § 3599.

[§ 3599 counsel] did not need to seek reauthorization from the district court before

representing Wilkins in these subsequent proceedings.”); Chavez v. Sec’y, Fla. Dep’t

of Corr., 742 F.3d 940, 944 (11th Cir. 2014) (“Once federal counsel is appointed under

§ 3599, that attorney’s representation extends ‘throughout every subsequent State of

available judicial proceedings,’ including ‘all available postconviction process’ in state

and federal court (such as state clemency proceedings), until ‘replaced by similarly

qualified counsel.’”) (internal citation omitted).

These interpretations of § 3599—by this Court in Harbison, and lower federal

courts that routinely find state clemency representation obligatory and authorized

immediately upon the appointment of § 3599 counsel—are impossible to square with

the Eleventh Circuit’s holding in Mr. Bowles’s case that § 3599 did not create a federal

right. The far simpler and correct conclusion is that the mandatory language

providing for representation in specifically delineated proceedings does exactly what

it says: grants a right to beneficiaries of the statute to the very benefit it obligates.

The federal district court and the Eleventh Circuit’s findings that § 3599 did

not create a federal right principally because, in their view, it did not place an

obligation on the states, misunderstands § 3599 and the necessary result of what it

authorizes. If the provision in § 3599(e) that counsel shall represent their clients in

clemency is mandatory—as Harbison and federal courts described above have

concluded that it is—this binds states to recognize that counsel in those delineated

proceedings, otherwise that portion of the statute would be meaningless. See United

States v. Forey-Quintero, 626 F.3d 1323, 1327 (11th Cir. 2010) (“A basic premise of

statutory construction is that a statute is to be interpreted so that no words shall be

discarded as being meaningless . . .”) (internal citation omitted).

The distinction the Eleventh Circuit failed to recognize—that by telling one

actor, § 3599 counsel, what they must do within state clemency proceedings, the

statute is necessarily telling other actors where they may not interfere, and thus

imposing an obligation not to do so—demonstrates why Mr. Bowles has a federal right

in § 3599. In analyzing whether a statute is enforceable in § 1983, other courts have

reasoned similarly on this very question. See, e.g., Coastal Counties Workforce, Inc. v.

LePage, 284 F. Supp.3d 32, 51 (D. Maine 2018) (although language in a statute

provided for what local areas “may” do, it “still imposes a mandatory obligation,”

because that necessarily means it “places that mandatory obligation on other actors

not to interfere with the local areas’ ability.”) (emphasis added).

Interference is exactly what is at issue here. Section 3599(e)’s requirement that

attorneys appointed under subsection (a)(2), “[u]nless replaced by similarly qualified

counsel . . . shall represent the defendant throughout every subsequent stage of

available judicial proceedings, including . . .

proceedings for executive or other

clemency” does not contain the exception that the Eleventh Circuit suggests—

namely, that states can choose to ignore this mandatory right given to deathsentenced individuals with § 3599 counsel. If there was such an exception to the

requirement of counsel in those necessarily state proceedings, Congress would have

said so. See In re Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (noting that “[w]here

Congress knows how to say something but chooses not to, its silence is controlling”)

(internal quotation omitted).

The language of § 3599 is mandatory about who counsel is, and Harbison reads

this statute as directing that § 3599 counsel is to serve as clemency counsel,

regardless of any state-furnished counsel, in a state clemency proceeding. This is an

obligation on the states to recognize, or at least not preclude, the formal participation

of § 3599 counsel as clemency counsel. States cannot wholly eliminate the § 3599

rights of death-sentenced individuals by barring their federally appointed attorneys

for no reason apart from the federal nature of their authorization to represent them.

Such a result cannot be squared with this Court’s interpretation of congressional

intent, which has understood that “[i]n authorizing federally funded counsel to

represent their state clients in clemency proceedings, Congress ensured that no

prisoner would be put to death without meaningful access to the ‘fail-safe’ of our

justice system.” Harbison, 556 U.S. at 194.

The frustration of Mr. Bowles’s federal right herein is not inconsequential. In

no way did Mr. Bowles have a clemency proceeding that allowed for full or thoughtful

consideration of his intellectual disability, either as a fact or as a basis for mercy in

sparing his life. As set forth in the uncontested allegations in Mr. Bowles’s § 1983

complaint, not only was Mr. Bowles’s clemency proceeding insufficient, but it was also

actively harmful to him and his intellectual disability litigation in a manner that

would have been entirely prevented had he been allowed his § 3599 counsel’s

representation. Mr. Bowles’s compelling basis for clemency—not just that he is

intellectually disabled, but that no court will even entertain this diagnosis due to

procedural barriers—make the recognition and enforcement of his § 3599 rights all

the more imperative. 7

II.

Where a State Denies a Death-Sentenced Individual’s Ability to

Vindicate his Rights Under § 3599, There Must Be a Remedy

This Court in Harbison noted that § 3599’s provisions giving death-sentenced

individuals federally funded counsel specifically for state clemency proceedings

indicates that Congress “recognized the importance of such process to death-

To the extent that the Eleventh Circuit found that Mr. Bowles was not harmed

by state officials’ actions, that finding is not only wrong for the reasons above, but

also irrelevant to § 1983 analysis. There is no prejudice analysis in the determination

of whether an enforceable right exists for the purposes of § 1983. This Court has

delineated clear factors for that determination, see Blessing, 520 U.S. at 340-41, and

an appellate court’s opinion of the value of the underlying right is not one of them.

The Eleventh Circuit’s “prejudice” analysis is especially problematic because it

completely misunderstands the right asserted. It is not that Mr. Bowles could or could

not have benefitted that much more from his § 3599 counsel’s representation—though

certainly a fair reading of the underlying facts would indicate he would have—the

interference itself in § 3599 counsel’s ability to represent their client from start to

finish in the clemency proceedings is deprivation of the right.

sentenced prisoners . . . .” Harbison, 556 U.S. at 193. Thus, “[w]hen Congress

authorized federally funded counsel to represent clients in clemency proceedings, it

plainly ‘did not want condemned men and women to be abandoned by their counsel

at the last moment and left to navigate the sometimes labyrinthine clemency process

from their jail cells.’” Holiday v. Stephens, 136 S. Ct. 387, 387 (2015) (Sotomayor, J.)

(quoting Harbison, 556 U.S. at 194).

Based on this Court’s jurisprudence and the plain language of § 3599, it is

beyond dispute that Congress intended § 3599 to ensure that death-sentenced

individuals had meaningful representation in state clemency proceedings. However,

because § 3599 does not itself contain a mechanism for vindicating the plain

legislative intent of this statute, a secondary question presented by Mr. Bowles’s

petition is whether, assuming § 3599 provides a right, § 1983 provides an appropriate

vehicle to vindicate that right.

Section § 1983 protects federal rights originating from both the United States

Constitution and federal statutes. Gonzaga University v. Doe, 536 U.S. 273, 279

(2002). Section 1983 as a remedial vehicle for the deprivation of constitutional and

federal rights is not effected by a state’s willingness to independently recognize that

right. In fact, it was specifically enacted to provide for such an enforcement

mechanism regardless of whether a state wanted to recognize that right itself. See,

e.g., Howlett v. Rose, 496 U.S. 356, 380 (1990) (noting a “state court cannot ‘refuse to

enforce the right arising from the law of the United States [through § 1983] because

of conceptions of impolicy or want of wisdom on the part of Congress in having called

into play its lawful powers.’”) (citations omitted). This is because “[t]he federal law is

law in the State as much as laws passed by the state legislature.” Id.

If Mr. Bowles has a federal right in § 3599, that right should be enforceable in

§ 1983. That Florida does not want to recognize the effect of § 3599—in this case, who

must act in whole or in part as clemency counsel—is of no consequence for that rights

enforceability through § 1983. Florida officials like the defendants in the underlying

action should not be able to abridge a federal right without there being an

enforcement mechanism for that violation, as the Eleventh Circuit held. Just as

“[c]onduct by persons acting under color of state law which is wrongful under 42

U.S.C. § 1983 . . . cannot be immunized by state law,” so too should conduct not be

immunized by a state’s willful disregard of the effect of the right in the name of

federalism. Howlett, 496 U.S. at 376 (internal quotation omitted). Importantly, “[t]o

the extent that § 1983 may be seen as infringing on state sovereignty, Congress, in

adopting § 1983 over a century ago, made the determination that such infringement

was not only tolerable but necessary to ensure the vindication of federal rights within

the states.” Larsen v. Pennsylvania, 152 F.3d 240, 248 (3d Cir. 1998). If Mr. Bowles

has a federal right in § 3599, it is of little value if he has no mechanism by which to

enforce violations and infringements on that right; this is exactly the scenario in

which § 1983 plays a critical and historical role in the enforcement of such rights.

The question of statutory interpretation is not merely academic for Mr. Bowles,

given the nexus with his intellectual disability claim. Mr. Bowles was left with only

his state-furnished counsel, who had no death penalty experience or qualifications,

affirmatively waived any investigative, expert, or other fees associated with his

representation, failed to speak with any lay or expert witnesses or seek Mr. Bowles’s

full case file, was unfamiliar with Mr. Bowles’s background, and took none of the

necessary precursors to a competent clemency presentation. Because of the actions of

officials of the State of Florida in excluding Mr. Bowles’s § 3599 counsel, the issue of

Mr. Bowles’s intellectual disability went substantively unaddressed, with only

superficial references by his state-retained counsel during the clemency presentation,

which themselves showed that he was unfamiliar with Mr. Bowles’s intellectual

disability and background. Given that Mr. Bowles already had § 3599 counsel

appointed prior to the initiation of clemency proceedings, and because that counsel

was obligated to represent him in that subsequent proceeding, his only remedy for

vindication of that right was § 1983. This Court should grant review to speak clearly

on the appropriate remedy for the vindication of § 3599 rights.

III.

This Court Should Resolve the Circuit Split on the Relationship

Between § 3599 and the Effect of State-Furnished Counsel, Which

Necessarily Implicates the Meaning of § 3599 Itself

Although this Court clarified that “§ 3599 authorizes federally appointed

counsel to represent their clients in state clemency proceedings and entitles them to

compensation for that representation,” courts have struggled to define what exactly

it means to “authorize” counsel for state clemency proceedings. Harbison, 556 U.S. at

194. Two federal circuits are presently split on an issue closely tied to that which Mr.

Bowles’s petition presents: whether counsel appointed under § 3599 can represent

individuals in state clemency proceedings where a state-furnished counsel is

provided. Compare Samayoa v. Davis, 928 F.3d 1127 (9th Cir. 2019) with Irick v. Bell,

636 F.3d 289 (6th Cir. 2011). While this may seem a narrow issue, the decisions

resulting in this split ask the same fundamental question with broad consequences:

what is the meaning of § 3599 for state clemency proceedings? The Sixth Circuit and

the Ninth Circuit have developed opposite jurisprudence on this broader issue, which

also implicates the question presented in Mr. Bowles’s petition.

The Sixth Circuit in Irick v. Bell, found that under its reading of § 3599 and

Harbison v. Bell, state-furnished counsel makes an individual ineligible for

representation under § 3599, even for those proceedings specifically within the scope

of § 3599(e). Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011). The court found that

“Harbison . . . arrived at its holding only after noting that state law did not authorize

the appointment of state public defenders for the purpose of pursuing state clemency

proceedings,” and found that a predicate question to whether § 3599 counsel was

authorized to represent their client in a § 3599(e) was whether or not state-furnished

counsel was provided. Thus, Irick concluded that “[t]he relevant consideration under

§ 3599 is whether a state affords adequate representation . . . Tennessee has provided

Irick with adequate representation. Accordingly, Irick’s attorneys are not entitled to

additional compensation pursuant to § 3599.” Irick, 636 F.3d at 292.

In Samayoa, the Ninth Circuit considered an appeal of a district court’s denial

of a motion to appoint additional clemency counsel pursuant to § 3599. Samayoa, 928

F.3d at 1128. Specifically, Samayoa’s pro bono federal counsel had moved in the

district court for the appointment of additional counsel because “he ‘ha[d] never done

a clemency proceeding and needs the expertise of an agency accustomed to such a

process,’” and noted that he needed help with completing “a full clemency

investigation and petition, as well as the filing of petitions under Atkins v. Virginia,

536 U.S. 304 (2002), and Ford v. Wainwright, 477 U.S. 399 (1986).” Id. The federal

district court, however, denied this motion for appointment, “concluding that because

California provides for state-appointed clemency counsel, ‘Petitioner does not appear

to qualify for the appointment of federal counsel under § 3599(a)(2).’” Id. The district

judge reasoned that Samayoa must direct his request to the California Supreme

Court, who had previously appointed clemency counsel. Id.

California argued that Samayoa was not entitled to clemency counsel being

appointed under § 3599 because “the district court can appoint additional counsel

under § 3599 only if Samayoa can show ‘he is unable to obtain adequate

representation from the state to pursue executive clemency.’” Id. at 1130 (emphasis

added). The Ninth Circuit rejected the argument and reasoning of the State, instead

finding that under a “straightforward reading of § 3599(e),” as in Harbison, “[t]he

availability of state appointment of clemency counsel is irrelevant to federally

appointed counsel’s ongoing representation of a death-row client in state clemency

proceedings.” Id. (internal quotation omitted). The Ninth Circuit emphasized the

mandatory language of § 3599(e), which states that an attorney appointed under the

federal statute “shall represent the defendant” in subsequent proceedings, including

clemency. Id. (emphasis in original) (internal citation omitted). “This language does

not invite a blanket exception if the state also provides for clemency counsel.” Id.

Thus, Samayoa’s federal counsel was “authorized under § 3599(e) to continue to

represent Samayoa in his California clemency petition, regardless of any provisions

under California law regarding state appointment of clemency counsel.” Id. at 1131.

Further, the Ninth Circuit found that the existence of state-provided counsel also did

“not bar the district court from appointing additional counsel simply because a

defendant can obtain representation through other sources.” Id. at 1132.

The Ninth Circuit’s opinion in Samayoa also explicitly rejected the reasoning

of the Sixth Circuit in Irick. The Ninth Circuit called the reasoning of Irick

“unpersuasive,” and found that “[n]owhere in the [Harbison] Court’s statement of the

question on certiorari or in its discussion of the case did it condition the scope of

§ 3599(e) on the state’s failure to provide clemency counsel.” Samayoa, 928 F.3d at

1131. Samayoa, while the first Court of Appeals to reject the reasoning of Irick, was

not the first federal court to do so. See, e.g., Mickey v. Davis, No. 93-00243, 2018 WL

3659298, *4 (N.D. Cal. Aug. 2, 2018) (rejecting the reasoning of Irick after examining

the context of the language from Harbison and finding it to be inapposite as applied

to appointment of clemency counsel).

This Court should grant review to address the question Mr. Bowles presents,

which is closely related to the central divergence of the Sixth and Ninth Circuit.

Though Samayoa and Irick, narrowly construed, are about the appointment and

funding of counsel under § 3599, the underlying issue is what § 3599 actually

authorizes, and whether state actors can frustrate the obligations of federal counsel

representing death-sentenced individuals under federal law. Here, an intellectually

disabled man did not have meaningful access to the “fail safe” of our justice system

due to the State of Florida’s frustration of his § 3599 rights, and this Court should

take this opportunity to speak clearly on what rights he had under § 3599.

CONCLUSION

This Court should grant a stay of Mr. Bowles’s execution, and grant a writ of

certiorari to review the decision below.

Respectfully submitted,

/s/ TERRI L. BACKHUS

TERRI L. BACKHUS

Counsel of Record

KELSEY PEREGOY

SEAN GUNN

KATHERINE BLAIR

Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

terri_backhus@fd.org

kelsey_peregoy@fd.org

sean_gunn@fd.org

katherine_blair@fd.org

AUGUST 20, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.