             Case: 13-12834    Date Filed: 06/27/2013   Page: 1 of 13


                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12834
                          ________________________

                      D. C. Docket No. 1:13-cv-22230-DLG

MARSHALL LEE GORE,

                                                             Petitioner-Appellant,

                                      versus

MICHAEL D. CREWS,

                                                            Respondent-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (June 27, 2013)


Before TJOFLAT, CARNES, and HULL, Circuit Judges.

PER CURIAM:

      Marshall Lee Gore was convicted and sentenced to death in Florida state

court for the first-degree murder and armed robbery of Robyn Novick. After his

convictions and capital sentence were affirmed on direct appeal in 2001, see Gore
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v. State, 784 So. 2d 418 (Fla. 2001), Gore unsuccessfully pursued post-conviction

relief in both state and federal court on a host of claims, including a claim that he is

mentally incompetent to be executed under Ford v. Wainwright, 477 U.S. 399

(1986). The state and federal courts rejected each of his claims for collateral relief

and dismissed his Ford claim as premature because he was not then subject to an

active death warrant. Gore v. Sec’y, Fla. Dep’t of Corr., No. 1:06-cv-22736 (S.D.

Fla. Mar. 16, 2012); Gore v. State, 24 So. 3d 1 (Fla. 2009).

      That changed on May 13, 2013, when the Governor of Florida signed Gore’s

death warrant and scheduled his execution for Monday, June 24, 2013. See

Stewart v. Martinez-Villareal, 523 U.S. 637, 644–45, 118 S.Ct. 1618, 1622 (1998)

(noting that a Ford claim does not become ripe until an inmate’s execution is

imminent). Five days later, Gore’s state-appointed collateral counsel, Steven

Hammer, notified the Governor that he had reason to believe that Gore was

mentally incompetent to be executed. Counsel also filed in the state circuit court a

notice of a potential conflict of interest, which expressed a similar belief that Gore

may be incompetent to be executed. Hammer indicated that, during a recent

conversation with his client, Gore had behaved irrationally, refused to sign a

release for his medical records, “made numerous statements about his distrust of

counsel” and his belief that counsel was “engaged in a conspiracy to get [him]

killed,” and made unspecified statements about his case and imminent execution


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that Hammer characterized as “contradictory,” “bizarre,” and “irreconcilably

irrational.”

        On May 22, 2013, the Governor, as required by Fla. Stat. § 922.07,

appointed a commission of three psychiatrists to evaluate Gore’s mental

competence to be executed and granted a temporary stay of execution pending

receipt of the commission’s report. The commission members conducted a three-

hour clinical interview with Gore on May 28, 2013, administered several

neuropsychiatric tests, reviewed his mental health and correctional records from

1990 onward, and interviewed two corrections officers about his recent behavior.

During the evaluation, Gore told the commission members that there was a vast

conspiracy among state officials, including the Governor of Florida, to harvest the

organs of condemned prisoners for financial gain and for the benefit of elite

members of society. Gore said that he believed that a state senator was waiting to

obtain Gore’s eyeballs for his blind son. Based on their evaluation, including the

results of the neuropsychiatric tests, the commission members unanimously

dismissed Gore’s assertions as a patent “fabrication designed to mislead the panel

and avoid responsibility for his past actions” and concluded that he has “no current

mental illness,” was “feigning psychopathology to avoid the death penalty,” and

“understands the nature and effect of the death penalty and why it was imposed on

him.”


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      After receiving the psychiatric commission’s report, the Governor issued a

formal executive order on May 30, 2013, finding Gore mentally competent to be

executed, lifting the temporary stay of execution, and reinstating the original

execution date of June 24, 2013. Although Gore’s Ford claim had fully ripened,

Hammer, his state-appointed counsel, did not seek judicial review of the

Governor’s competency determination under Florida Rule of Criminal Procedure

3.811, which creates a specific state mechanism for prisoners to challenge their

competency to be executed. See Fla. R. Crim. P. 3.811(d) (“On determination of

the Governor of Florida, subsequent to the signing of a death warrant . . ., that the

prisoner is sane to be executed, counsel for the prisoner may move for a stay of

execution and a hearing based on the prisoner’s insanity to be executed.”).

      Gore’s federally appointed attorney, Todd Scher, waited until 7:00 p.m. on

the Friday, June 21, before the scheduled execution on the following Monday, June

24, to file a federal habeas petition under 28 U.S.C. § 2254 raising a Ford claim.

He also filed an emergency motion for a stay of execution. Gore, through his

counsel Scher, acknowledged that he had not satisfied the exhaustion requirement

of 28 U.S.C. § 2254(b) by first presenting his Ford claim to the state courts, but he

contended that his failure to exhaust his state remedies was excusable under the

Supreme Court’s decision in Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309 (2012),




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because his attorney in the state proceedings had rendered ineffective assistance in

failing to raise the claim in a Rule 3.811 motion. 1

       The district court dismissed Gore’s habeas petition without prejudice for

failure to exhaust the Ford claim in state court and, in so doing, the court rejected

Gore’s contention that the lack of exhaustion could be excused under Martinez.

The court concluded that the rule announced in Martinez did not create an

exception to § 2254(b)’s exhaustion requirement, but instead was explicitly limited

to claims of ineffective assistance of trial counsel that are procedurally defaulted in


       1
         Gore’s federal habeas counsel has not adequately explained his failure to attempt to
appear on behalf of Gore in state court in order to raise the competency to be executed issue. In
Howell v. State, 109 So.3d 763, 772–73 (Fla. 2013), the trial court, without any suggestion from
the Florida Supreme Court that it was improper to do so, allowed counsel who was not the state
registry counsel to appear in state post-conviction proceedings and participate in them on behalf
of the petitioner.

        During oral argument, Gore’s federal habeas counsel argued that he was not obligated to
appear in state court without compensation. But Harbison v. Bell, 556 U.S. 180, 183–84, 190
n.7, 129 S.Ct. 1481, 1485, 1489 n.7 (2009), held that a district court has discretion to allow
federally paid habeas counsel to appear on behalf of the petitioner in state clemency proceedings
where the petitioner is otherwise unable to obtain adequate representation in those proceedings.
The underlying statute covers both state court clemency proceedings and competency to be
executed proceedings. See 18 U.S.C. § 3599(e) (providing that federally appointed counsel “shall
also represent the defendant in such competency proceedings and proceedings for executive or
other clemency as may be available”). And here Gore is contending that he does not have
adequate representation for the state competency proceedings. If, as Gore insists, his state court
counsel is not providing representation adequate to exhaust his state court remedies, this would
be a circumstance in which a district court could “determine, in its discretion, that it is necessary
for court-appointed counsel to exhaust a claim in state court in the course of her federal habeas
representation, so that counsel can go forward with her prosecution of the prisoner’s federal
habeas petition.” Gary v. Warden, 686 F.3d 1261, 1277 (11th Cir. 2012) (alteration, citation, and
quotation marks omitted).

        We do not mean to imply that, but for his failure to exhaust, Gore has proffered enough
evidence of incompetency to entitle him to a stay of execution based on his Ford claim. That
issue is not before us given his failure to exhaust.
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state court due to the ineffectiveness of state post-conviction counsel. Because

Gore’s Ford claim, though unexhausted in state court, was not procedurally barred

under state law and was not a claim of ineffective assistance of trial counsel, the

district court found that Martinez was inapplicable and that the Ford claim was due

to be dismissed for lack of exhaustion. The district court also denied Gore’s

motion for a stay of execution. It did, however, grant Gore a certificate of

appealability on the sole issue of: “Whether Martinez v. Ryan created an

exemption to the exhaustion requirement of 28 U.S.C. [§] 2254(b) when counsel is

ineffective for failing to assert a Ford claim in state court.” In granting a COA, the

court found that Gore had made a “substantial showing of the denial of a

constitutional right” and that reasonable jurists could debate whether he was

entitled to pursue an unexhausted Ford claim in federal court pursuant to Martinez.

      On the same day as the scheduled execution, June 24, Gore filed an

emergency motion for a stay of execution with this Court. The State filed with us a

motion to vacate the district court’s COA as improvidently granted on the ground

that Martinez clearly does not apply to unexhausted Ford claims. Under Eleventh

Circuit Rule 22-4(a)(7), we granted a temporary stay of execution in order to

prevent Gore’s death mooting the appeal and directed the parties to brief a number

of issues, including the sole issue upon which the district court’s COA was

granted. See 11th Cir. R. 22-4(a)(7) (“If a certificate of appealability is granted by


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the district court or this court, the panel shall grant a temporary stay pending

consideration of the merits of the appeal if necessary to prevent mooting the appeal

. . . .”). We have received and considered the parties’ briefs and held oral

argument on the issues specified in our earlier order.

                      I. Gore’s Motion for a Stay of Execution

      A stay of execution is an equitable remedy that “is not available as a matter

of right.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104 (2006).

To warrant a stay of execution, an inmate must demonstrate that: “(1) he has a

substantial likelihood of success on the merits; (2) he will suffer irreparable injury

unless the injunction issues; (3) the stay would not substantially harm the other

litigant; and (4) if issued, the injunction would not be adverse to the public

interest.” Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011); see also Hill,

547 U.S. at 584, 126 S.Ct. at 2104 (holding that inmate seeking a stay of execution

“must satisfy all of the requirements for a stay, including a showing of a significant

possibility of success on the merits”). Moreover, under Eleventh Circuit Rule 22-

4(a)(7), we may deny a temporary stay of execution if, after a hearing, we find that

the merits of the appeal are “frivolous, or [are] lacking any factual basis in the

record, or [are] squarely foreclosed by statute, rule, or authoritative court

decision.” 11th Cir. R. 22-4(a)(7)(i).




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      Gore has not shown a substantial or significant likelihood of success on the

merits of the sole procedural issue identified in the district court’s COA. He

cannot make that showing because the merits of that issue are “squarely

foreclosed” by the exhaustion requirement set forth in 28 U.S.C. § 2254. Under §

2254(b), a federal court may not grant a writ of habeas corpus on a claim unless the

petitioner has exhausted all available state court remedies regarding that claim. 28

U.S.C. § 2254(b). A petitioner cannot satisfy the exhaustion requirement if, with

certain exceptions that are not applicable in this case, he has failed to avail himself

of “any available procedure” by which he has the right to raise his claim in state

court. Id. § 2254(c). If a petitioner fails to exhaust his state remedies, a district

court must dismiss the petition without prejudice to allow for such exhaustion. See

Rose v. Lundy, 455 U.S. 509, 519–20, 102 S.Ct. 1198, 1203–05 (1982); Ward v.

Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). But see 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”).

      It is undisputed that Gore did not exhaust his Ford claim in state court before

seeking federal habeas review of that claim, and he does not contend that either of

the statutory exceptions, see 28 U.S.C. § 2254(b)(1)(B), are applicable. The

question is whether, as Gore contends, the Supreme Court’s decision in Martinez


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created an exception to the exhaustion requirement where the failure to exhaust a

Ford claim is alleged to have been caused by state collateral counsel’s ineffective

assistance. Martinez, however, clearly does not apply in the circumstances of this

case because Gore’s claim, though unexhausted, is not now procedurally barred,

and it is not a claim that trial counsel was ineffective.

      Under the doctrine of procedural default, a federal habeas court may not

review the merits of a claim that is procedurally barred unless the petitioner can

demonstrate cause for the default and actual prejudice, or that he is actually

innocent of his crime of conviction. Ward, 592 F.3d at 1157. Before its decision

in Martinez, the Supreme Court had held that a petitioner cannot rely on the

ineffective assistance of post-conviction counsel to establish cause to excuse a

procedural default because there is no constitutional right to an attorney in state

post-conviction proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct.

2546, 2566 (1991).

      In Martinez, however, the Court recognized a “narrow exception” to this

general rule by holding that “[i]nadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s procedural default of a

claim of ineffective assistance at trial.” 132 S.Ct. at 1315 (emphasis added).

Repeatedly in its opinion, the Supreme Court emphasized the limited scope of the

exception that it was crafting to the rule established in Coleman. The Court was


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careful to characterize its decision as a “limited qualification” to Coleman’s

holding that negligence on the part of a prisoner’s post-conviction counsel does not

constitute cause to excuse the procedural default of a claim in state court. Id. at

1315–16, 1319–20. And the Court made clear in Martinez that “[t]he rule of

Coleman governs in all but the limited circumstances recognized here” — namely,

“[w]here, under state law, claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding” and “counsel in that proceeding

was ineffective” for failing to raise such ineffective assistance claims. Id. at 1320.

The Court also underscored that the concededly “narrow exception” it was

adopting was meant to “reflect[] the importance of the right to the effective

assistance of trial counsel” and that its holding “addresse[d] only the constitutional

claims presented in this case, where the State barred the defendant from raising the

claims [of ineffective assistance of trial counsel] on direct appeal.” Id.

       By its own emphatic terms, the Supreme Court’s decision in Martinez is

limited to claims of ineffective assistance of trial counsel that are otherwise

procedurally barred due to the ineffective assistance of post-conviction counsel.

Gore is not asserting a claim of ineffective assistance of trial counsel. And while

his Ford claim is unexhausted in state court, it is not procedurally defaulted and, as

such, is not subject to any of the exceptions to the procedural default rule,

including the one recognized in Martinez.


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      An unexhausted claim is not procedurally defaulted unless it is evident that

any future attempts at exhaustion would be futile due to the existence of a state

procedural bar. Bailey v. Nagle, 172 F.3d 1299, 1303, 1305 (11th Cir. 1999).

There is no state procedural rule preventing Gore from raising his Ford claim in

state court. To the contrary, Florida Rule 3.811 creates a specific mechanism

through which state death-row inmates can challenge in state court their

competency to be executed, and the Florida Supreme Court has specifically stated

that there is no filing deadline for bringing such a claim. See Fla. R. Crim. P.

3.811(d); Provenzano v. State, 751 So. 2d 37, 40 (Fla. 1999) (acknowledging that

Rule 3.811 “does not contain a timetable for filing”). The district court in this case

found that the Florida courts would not refuse to hear Gore’s Ford claim based on a

procedural bar, and the State has assured us that there is nothing in Florida law to

suggest that the state courts would refuse to consider the merits of a Rule 3.811

motion. Gore does not contend that his Ford claim is procedurally barred and

instead concedes in his brief to us that “[a]ny conclusion that a state procedural bar

would be applied to a Rule 3.811 motion filed at this time would be speculative.”

App. Br. at 46.

      Moreover, although the Supreme Court has recognized several exceptions to

the judicially-created procedural bar doctrine, see, e.g., Wainwright v. Sykes, 433

U.S. 72, 81–88, 97 S.Ct. 2497, 2503–07 (1977) (creating an exception to the


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procedural default rule when the petitioner can show cause for the default and

prejudice from it), the Court has not recognized any equitable exceptions to the

statutory bars on habeas petitions when the petitioner does not make a “credible

showing” of actual innocence. See McQuiggin v. Perkins, — U.S. —, 133 S.Ct.

1924, 1931, 1933 (2013). The Supreme Court’s most recent decision on the

matter, McQuiggin, reaffirmed that principle, holding that there is an “equitable

exception” to the statute of limitations applicable to habeas claims, 28 U.S.C. §

2244(d), but only when the petitioner presents new evidence that “shows it is more

likely than not that no reasonable juror would have convicted the petitioner.” Id. at

1931, 1933 (alteration and quotation marks omitted). The Court’s opinion

expressly limited its holding to that situation, stating that “AEDPA’s time

limitations apply to the typical case in which no allegation of actual innocence is

made.” Id. at 1933. Gore does not claim actual innocence and the exhaustion

statute does not provide for the exception that Gore asks us to create. McQuiggin

reaffirms that in these circumstances we lack the authority to rewrite the statute

and create an exception that Congress did not enact.

      Because Gore’s claim is not procedurally barred and it does not raise an

allegation of ineffective assistance of trial counsel, Martinez by its own terms does

not, and cannot, excuse his failure to satisfy the exhaustion requirement of §

2254(b). Unless and until the Supreme Court overrules the limitations it placed on


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its Martinez decision, we are bound to respect and apply them. Because the plain

meaning and obvious import of those explicit limitations are not debatable among

jurists of reason, Gore has not made the required showing for a COA, regardless of

the merits or lack of merit of his underlying claim. The district court should not

have granted a COA on the Martinez/exhaustion issue. See Slack v. McDaniel,

529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000) (holding that a COA should issue

only “when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.”). The sole issue presented in this appeal is

clearly foreclosed by statute, 28 U.S.C. § 2254(b)(1), and authoritative decisions.

See 11th Cir. R. 22-4(7). As for the State’s motion to vacate the COA, see Clisby v.

Alabama, 52 F.3d 905, 906 n.1 (11th Cir. 1995).

      The district court’s judgment dismissing without prejudice Gore’s petition

for a writ of habeas corpus is AFFIRMED. The State’s motion to vacate the

certificate of appealability is DENIED AS MOOT. The stay of execution

previously entered by this Court is VACATED. The Petitioner’s motion for a stay

of execution is DENIED.




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