On July 27, 2013, the Eleventh Circuit (per curiam - Tjoflat, Carnes, Hull), ruled that the district court should not have granted a COA to Marshall Gore on the issue of whether Martinez v. Ryan could excuse his failure to exhaust his claim of incompetence to be executed and affirmed the district court’s dismissal of Gore’s successor petition. The panel also vacated the stay of execution it previously granted and denied Gore’s motion for a further stay of execution. Gore v. Crews, 13-12834 (11th Cir. June 27, 2013).
After Florida’s Governor signed a warrant for Gore’s execution, his state appointed post-conviction attorney notified the Governor that he had reason to believe that Gore was incompetent to be executed. Pursuant to state law, the Governor appointed a commission of psychiatrists to evaluate Gore’s competence. After the three psychiatrists opined that Gore was competent to be executed, state post-conviction counsel did not seek judicial review of their finding. Previously appointed federal habeas counsel then filed a federal habeas petition raising a Ford claim and arguing that exhaustion was excused by Martinez v. Ryan. The district court was unpersuaded and dismissed the petition without prejudice but issued a COA.
The panel concluded that Gore’s procedural claim was squarely foreclosed by the exhaustion requirement of 28 U.S.C. § 2254(b). According to the panel, the only equitable exception to statutory bars on habeas petitions is through a showing of actual innocence, which Gore did not allege. Regarding Martinez, it was inapplicable both because Gore was not raising a claim of trial counsel ineffectiveness – the only type of claim covered by Martinez – and because the Ford claim could not be deemed procedurally defaulted given that a state remedy remains open.