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 42 U.S.C. 1983?

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.” Jd. (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 i § 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,! 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? 1 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. ii