On June 24, 2013, the Eleventh Circuit (Tjoflat, Carnes, Hull) temporarily stayed Marshall Gore’s execution, scheduled for that same day, after United States District Court Judge Donald S. Graham of the Southern District of Florida issued an order dismissing without prejudice Gore’s successor federal habeas petition but issuing a COA on "Whether Martinez v. Ryan created an exemption to the exhaustion requirement of 28 U.S.C. § 2254(b) when counsel is ineffective in failing to assert a Ford Claim in state court?"
In the order granting the temporary stay of execution, the panel stated that the stay was to enable the court to consider briefing and argument on the following issues:
(1) Whether this appeal and the issues it raises are: "frivolous, or [are] lacking any factual basis in the record, or [are] squarely foreclosed by statute, rule or authoritative court decision." See 11th Cir. R. 22-4(a)(7)(i).
(2) Whether Martinez v. Ryan, 132 S.Ct. 1309 (2012), created an exemption to the exhaustion requirement of 28 U.S.C. § 2254(b) when counsel is ineffective for failing to assert a Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986), claim in state court.
(3) Assuming that the answer to the preceding question is yes, whether the record before the district court creates a significant possibility of success on the merits of a claim that counsel rendered ineffective assistance of counsel in not filing a Florida Rule 3.811 or other petition raising a Ford claim in state court.
(4) Assuming that the answer to the preceding question is yes, whether the record before the district court creates a significant possibility of success on the merits of a Ford claim.
(5) Apart from the preceding issues, is the question addressed by the district court not justiciable on the ground that it effectively asks the hypothetical question of whether, if the petitioner presents the Ford claim to the state courts and they hold that it is procedurally barred, can the procedural bar be excused under the Martinez rule?
The panel ordered expedited briefing on these issues, with Gore’s brief due by noon on Wednesday, June 26th, and the Director’s reply due by 10:00 a.m., on Thursday, June 27th. Argument was scheduled for June 27th at 2:30 p.m. The panel concluded by stating that it would make "every reasonable effort" to decide the case before the execution warrant expired.