          Supreme Court of Florida
                                  ____________

                                 No. SC19-1184
                                 ____________

                             GARY RAY BOWLES,
                                 Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                 No. SC19-1264
                                 ____________

                             GARY RAY BOWLES,
                                 Petitioner,

                                        vs.

                              MARK S. INCH, etc.,
                                 Respondent.

                                 August 13, 2019

PER CURIAM.

      Gary Ray Bowles, a prisoner under sentence of death and an active death

warrant, appeals the postconviction court’s order summarily denying his

successive motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.851. We affirm the denial of relief, and we also deny the petition for a

writ of habeas corpus and the motions to stay his execution that Bowles filed in

this Court.1

                               I. BACKGROUND

      Bowles confessed and pleaded guilty to the 1994 murder of Walter Hinton,

who had allowed Bowles to move into his home in exchange for Bowles’ help in

moving personal items. Bowles v. State, 716 So. 2d 769, 770 (Fla. 1998).

Specifically, Bowles dropped a concrete block on Hinton’s head while Hinton was

sleeping, then manually strangled a conscious Hinton, and subsequently “stuffed

toilet paper into Hinton’s throat and placed a rag into his mouth.” Id. On direct

appeal, this Court affirmed the first-degree murder conviction but remanded for a

new penalty phase. Id. On direct appeal of the resentencing (where the jury

unanimously recommended death), this Court upheld Bowles’ death sentence.

Bowles v. State, 804 So. 2d 1173, 1175 (Fla. 2002). The resentencing trial court

based the prior violent felony aggravator on “two prior similar murders for which

the defendant was convicted after the first sentencing hearing” as well as two other

prior violent felony convictions. Id. at 1176.




      1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.


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      In 2008, this Court upheld the denial of postconviction relief and denied

habeas relief. Bowles v. State, 979 So. 2d 182, 184, 194 (Fla. 2008). In so doing,

this Court ruled that trial counsel was not ineffective for failing to call an expert to

testify regarding mitigation, where the expert had informed counsel that she would

have to discuss the “three additional murders that Bowles had committed, which

the State was not going to introduce unless the defense opened the door to them.”

Id. at 187-88. And in 2018, this Court affirmed the denial of Bowles’ successive

postconviction motion, which he had filed in June 2017, ruling that Hurst 2 does not

apply retroactively to Bowles’ death sentence. See Bowles v. State, 235 So. 3d

292, 292 (Fla. 2018).

      On October 19, 2017, Bowles filed another successive postconviction

motion, raising an intellectual disability claim for the first time. Bowles filed the

final version of this motion after the governor signed his death warrant on June 11,

2019. Bowles’ final motion (entitled “Amended Rule 3.851 Motion for

Postconviction Relief in Light of Moore v. Texas,[3] Hall v. Florida,[4] and Atkins v.


       2. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So. 3d 40
(Fla. 2016).

      3. Moore v. Texas, 137 S. Ct. 1039 (2017).

       4. Hall v. Florida, 572 U.S. 701 (2014). Hall has been retroactively applied
by this Court to timely filed intellectual disability claims. See Walls v. State, 213
So. 3d 340 (Fla. 2016). We do not address here the continued validity of that
holding.


                                          -3-
Virginia[5]”) and its appendix noted an IQ test score of 74 as well as prior IQ test

scores of 80 and 83. After holding a case management conference, the

postconviction court summarily denied Bowles’ intellectual disability claim as

untimely.

                                  II. ANALYSIS

      In this Court, Bowles challenges the summary denial of his intellectual

disability claim and the denial of certain records requests filed after the governor

signed his death warrant. Bowles also filed a habeas petition in this Court, alleging

that national death penalty trends demonstrate that his execution would constitute

cruel and unusual punishment. We affirm the postconviction court’s denial of

relief and deny his habeas petition.

(1) Intellectual Disability

      Bowles first challenges the postconviction court’s summary denial of his

intellectual disability claim, but we affirm the postconviction court.

      A postconviction court’s decision regarding whether to grant an evidentiary

hearing is a pure question of law and is reviewed de novo. Mann v. State, 112 So.

3d 1158, 1162 (Fla. 2013). “If the motion, files, and records in the case




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


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conclusively show that the movant is entitled to no relief, the motion may be

denied without an evidentiary hearing.” Fla. R. Crim. P. 3.851(f)(5)(B).

      This Court has previously held that similarly situated defendants were not

entitled to relief based on intellectual disability claims because they failed to raise

timely intellectual disability claims under Atkins. See Harvey v. State, 260 So. 3d

906, 907 (Fla. 2018) (“Harvey, who had never before raised an intellectual

disability claim, argues that his claim was timely because he filed two months after

this Court decided Walls v. State, 213 So. 3d 340 (Fla. 2016). We have previously

held that a similarly situated defendant’s claim was untimely because he failed to

raise a timely intellectual disability claim under Atkins[.]”); Blanco v. State, 249

So. 3d 536, 537 (Fla. 2018) (“We conclude that Blanco’s intellectual disability

claim is foreclosed by the reasoning of this Court’s decision in Rodriguez [v. State,

250 So. 3d 616 (Fla. 2016)]. In Rodriguez, this Court applied the time-bar

contained within [Florida Rule of Criminal Procedure] 3.203 to a defendant who

sought to raise an intellectual disability claim under Atkins for the first time in light

of Hall.”); Rodriguez, 250 So. 3d at 616 (“Rodriguez, who had never before raised

an intellectual disability claim, asserted that there was ‘good cause’ pursuant to

[Florida Rule of Criminal Procedure] 3.203(f) for his failure to assert a previous

claim of intellectual disability [because] only after the United States Supreme

Court decided [Hall] did he have the basis for asserting an intellectual disability


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claim. The trial court rejected [and this Court affirmed] the motion as time barred,

concluding there was no reason that Rodriguez could not have previously raised a

claim of intellectual disability based on Atkins[.]”).

       Bowles waited until October 19, 2017 to raise an intellectual disability claim

for the first time. Therefore, the record conclusively shows that Bowles’

intellectual disability claim is untimely under our precedent.

       To the extent Bowles relies on rule 3.203(f), Bowles has not established

good cause for failing to seek a determination of his intellectual disability within

60 days of October 1, 2004. At that time, the Supreme Court had held that the

Eighth Amendment prohibits the execution of an intellectually disabled offender,

and it is reasonable to expect Bowles then to have raised any argument that

Florida’s standards for determining intellectual disability were constitutionally

deficient. Bowles’ inaction should not be ignored on the basis of the perceived

futility of his claim.

       Accordingly, he is not entitled to relief.

(2) Records Requests

       Next, Bowles challenges the postconviction court’s denial of his requests for

certain public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3)

and (i). “We review rulings on public records requests pursuant to Florida Rule of




                                          -6-
Criminal Procedure 3.852 for abuse of discretion,” Hannon v. State, 228 So. 3d

505, 511 (Fla. 2017), and find none here.

         This Court has explained the following regarding records requests under rule

3.852:

         Rule 3.852 is “not intended to be a procedure authorizing a fishing
         expedition for records.” Sims v. State, 753 So. 2d 66, 70 (Fla. 2000).
         For this reason, records requests under Rule 3.852(h) are limited to
         “persons and agencies who were the recipients of a public records
         request at the time the defendant began his or her postconviction
         odyssey,” id.; whereas, records requests under Rule 3.852(i) must
         “show how the requested records relate to a colorable claim for
         postconviction relief and good cause as to why the public records
         request was not made until after the death warrant was signed.” Asay
         [v. State, 224 So. 3d 695, 700 (Fla. 2017)] (quoting Tompkins v. State,
         872 So. 2d 230, 244 (Fla. 2003)).
Hannon, 228 So. 3d at 511. “Accordingly, where a defendant cannot demonstrate

that he or she is entitled to relief on a claim or that records are relevant or may

reasonably lead to the discovery of admissible evidence, the trial court may

properly deny a records request.” Asay, 224 So. 3d at 700.

         The disputed records in this case involve inmate classification records from

the Florida Department of Corrections (DOC), 6 any records of communication



       6. The postconviction court ordered DOC to produce all medical, dental,
psychological, and psychiatric records received or produced since Bowles’
previous records request but denied Bowles’ request for all records pertaining to
his disciplinary proceedings, movement, housing, and visitation. The parties
stipulated that the State would not rely on or use any records not previously turned
over by DOC without first disclosing those records to Bowles.


                                          -7-
between the State Attorney’s Office and the victim’s friends or family, and records

relating to the lethal injection procedure from DOC, the Florida Department of

Law Enforcement (FDLE), and the Medical Examiner’s Office (ME). Because

Bowles cannot demonstrate that he is entitled to relief on claims related to these

records, and because Bowles’ contention that his inmate classification records and

any State Attorney Office communication with the victim’s family or friends may

reflect his behavior is too attenuated to reasonably lead to admissible evidence

relevant to a colorable claim of relief, the postconviction court did not abuse its

discretion in denying Bowles’ requests for these records. See Jimenez v. State, 265

So. 3d 462, 473-74 (Fla. 2018) (finding no abuse of discretion in the denial of

records requests in support of challenges to Florida’s current lethal injection

protocol, explaining that “production of records relating to lethal injection are

‘unlikely to lead to a colorable claim for relief [when] the challenge to the

constitutionality of lethal injection as currently administered in Florida has been

fully considered and rejected by the Court’ ” (quoting Hannon, 228 So. 3d at 511-

12 (quoting Walton v. State, 3 So. 3d 1000, 1014 (Fla. 2009))); Sims v. State 753

So. 2d 66, 70 (Fla. 2000) (explaining that rule 3.852(h)(3) is “not intended to be a

procedure authorizing a fishing expedition for records unrelated to a colorable

claim for postconviction relief”).




                                         -8-
(3) Habeas Petition

      In his habeas petition, Bowles claims that, given national trends in the death

penalty, his execution would constitute cruel and unusual punishment. However,

as we have explained, “this Court is bound by the conformity clause of the Florida

Constitution to construe the state prohibition against cruel and unusual punishment

consistently with pronouncements by the United States Supreme Court.” Correll v.

State, 184 So. 3d 478, 489 (Fla. 2015); see art. I, § 17, Fla. Const. (“The

prohibition against cruel or unusual punishment, and the prohibition against cruel

and unusual punishment, shall be construed in conformity with decisions of the

United States Supreme Court which interpret the prohibition against cruel and

unusual punishment provided in the Eighth Amendment to the United States

Constitution.”). Accordingly, because the United States Supreme Court has made

clear that capital punishment does not constitute cruel and unusual punishment

under the Eighth Amendment of the federal constitution, we cannot invalidate

Bowles’ death sentence as cruel and unusual. See Glossip v. Gross, 135 S. Ct.

2726, 2732-33 (2015) (“[B]ecause it is settled that capital punishment is

constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means

of carrying it out.’ ” (second and third alterations in original) (quoting Baze v.

Rees, 553 U.S. 35, 47 (2008))); McCleskey v. Kemp, 481 U.S. 279, 313 (1987)

(rejecting an Eighth Amendment as-applied challenge to the death penalty based


                                         -9-
on a study); Gregg v. Georgia, 428 U.S. 153, 169 (1976) (holding the punishment

of death for the crime of murder does not violate the Eighth Amendment).

                                III. CONCLUSION

      For the reasons expressed above, we affirm the postconviction court’s

summary denial of Bowles’ successive postconviction motion. We also deny

Bowles’ habeas petition and his motions to stay his execution. No rehearing will

be entertained by this Court, and the mandate shall issue immediately.

      It is so ordered.

POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.
CANADY, C.J., concurs in part and concurs in result in part with an opinion.

CANADY, C.J., concurring in part and concurring in result in part.

      I agree that the postconviction court’s summary denial of Bowles’ motion

should be affirmed, that the habeas petition should be denied and that no stay

should be entered. I join in the result as well as the portions of the majority

opinion addressing Bowles’ claim regarding public records and his habeas petition.

But I would reject Bowles’ intellectual disability claim on the ground that Hall v.

Florida, 572 U.S. 701 (2014), should not be given retroactive application. See

Walls v. State, 213 So. 3d 340, 350-52 (Fla. 2016) (Canady, J., dissenting). To the

extent that Bowles presents a claim under rule 3.203(f) independent of the

retroactive application of Hall, I agree with the majority opinion regarding the

rejection of that claim.

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An Appeal from the Circuit Court in and for Duval County,
     Bruce Rutledge Anderson, Jr., Judge - Case No.
     161994CF012188AXXXMA

And an Original Proceeding – Habeas Corpus

Robert Friedman, Capital Collateral Regional Counsel, and Karin Moore and
Elizabeth Spiaggi, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida; and Terri Backhus, Chief, Capital Habeas Unit,
Office of the Federal Public Defender, Northern District of Florida, Tallahassee,
Florida,

      for Appellant/Petitioner

Ashley Moody, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,

      for Appellee/Respondent




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