Lambrix v. Secretary, DOC et al

Filing 10

ORDER OF DISMISSAL WITHOUT PREJUDICE dismissing case without prejudice; denying without prejudice 5 Motion for a stay of execution, 3 Motion for Leave to Proceed in forma pauperis, and 4 Application in support to renewing if the Eleventh Circuit grants permission to proceed. The Clerk shall close the case. Signed by Judge John E. Steele on 10/2/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARY MICHAEL LAMBRIX,
Petitioner,
v.

Case No:

2:17-cv-541-FtM-99CM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.

ORDER OF DISMISSAL WITHOUT PREJUDICE
This matter comes before the Court upon Cary Michael Lambrix’s
28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (Doc. 1, filed
October 2, 2017).

Lambrix has also filed a Motion for Leave to

Proceed In Forma Pauperis and a Motion for a Stay of Execution
(Doc. 3; Doc. 5).

This capital habeas corpus case is before the

Court for initial review upon filing.

Respondent has filed a

response asserting that this Court lacks jurisdiction to consider
the successive petition and opposing the motion to stay (Doc. 9).
The Petition pleads a single ground for relief in which
Lambrix urges that his Due Process and Equal Protection rights are
violated by the state court’s failure to give retroactive effect
to a revised version of Florida Statute § 921.141 (Florida’s
sentencing statute) and the United States Supreme Court’s decision

in Hurst v. Florida, 136 S. Ct. 616 (2016) (Doc. 1). 1

Lambrix has

a scheduled execution date of October 5, 2017.
Lambrix attacks his March 22, 1984 state-court conviction and
sentences of death on two counts of first-degree murder (Doc. 1 at
2).

As the Petition acknowledges, Lambrix previously attacked

this judgment in a 1988 habeas corpus petition filed in the
District Court for the Southern District of Florida (Case No. 8812107-CIV-ZLOCH) (Doc. 1 at 15-16).
Id.

That petition was denied.

This is Lambrix’ fourth attempt to file a successive 28 U.S.C.

§ 2254 petition.

See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851

F.3d 1158, Part IV (11th Cir. 2017) (detailing Lambrix’ prior

1

The Supreme Court in Hurst plainly and expressly applied
the standard it first set forth in Apprendi v. New Jersey, 530
U.S. 466 (2000), and later applied to capital cases in Ring v.
Arizona, 536 U.S. 584 (2002), to Florida's capital-sentencing
scheme; it neither expanded the Apprendi/Ring rule nor announced
a new rule. As the Hurst Court explained, in Apprendi, it held
that “any fact that ‘expose[s] the defendant to a greater
punishment than that authorized by the jury's guilty verdict’ is
an ‘element’ that must be submitted to a jury.” Hurst, 136 S. Ct.
at 621 (quoting Apprendi, 530 U.S. at 494).
And in Ring, the
Court stated, “we concluded that Arizona's capital sentencing
scheme violated Apprendi's rule because the State allowed a judge
to find the facts necessary to sentence a defendant to death.” Id.
The Court then reasoned, “[t]he analysis the Ring Court applied to
Arizona's sentencing scheme applies equally to Florida's.” Id. at
621–22. It concluded, “[i]n light of Ring, we hold that Hurst's
sentence violates the Sixth Amendment.” Id. at 622. The Court
acknowledged that it had earlier reviewed and upheld Florida's
capital sentencing statute in two cases, but now overruled them as
“irreconcilable with Apprendi.” Id. at 623.
After Hurst, the
Florida legislature amended the state’s death penalty statute to
require that a unanimous jury sentence a defendant to death.

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successive petitions).

There is no question, therefore, that the

instant Petition is a second-in-time habeas corpus petition.
The Antiterrorism and Effective Death Penalty Act of 1996
(the “AEDPA”) amended 28 U.S.C. § 2244(b)(2) to read as follows:
(2) A claim presented in a second or
successive habeas corpus application under
section 2254 that was not presented in a prior
application shall be dismissed unless—
(A)

(B)

Id.

the applicant shows that the claim
relies
on
a
new
rule
of
constitutional
law,
made
retroactive to cases on collateral
review by the Supreme Court, that
was previously unavailable; or
(i) the factual predicate for the
claim could not have been discovered
previously through the exercise of
due diligence; and (ii) the facts
underlying the claim, if proven and
viewed in light of the evidence as
a whole, would be sufficient to
establish by clear and convincing
evidence
that,
but
for
constitutional error, no reasonable
factfinder would have found the
applicant guilty of the underlying
offense.

The statute requires authorization from the relevant circuit

court before a district court considers a second or successive
petition. 28 U.S.C. § 2244(b)(3)(A).

Where the prisoner fails to

seek or to obtain such authorization, the district court lacks
jurisdiction to consider the merits of the petition. Burton v.
Stewart, 549 U.S. 147 (2007).

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Lambrix

correctly

notes

that

not

every

second-in-time

petition is properly classified as a second or successive petition
(Doc. 1 at 19).

To avoid that classification, Lambrix relies on

Panetti v. Quarterman, 551 U.S. 930 (2007).

In Panetti, the

Supreme Court held that the statutory bar on second or successive
applications does not apply to claims under Ford v. Wainwright,
477 U.S. 399, 410 (1986)—which prohibited the execution of insane
prisoners—that

are

filed

after

the

state

has

obtained

an

execution warrant. Panetti, 551 U.S. at 947 (as to a claim that
had not been presented in an earlier petition).

This exception

is based on the ripeness doctrine, permitting a petitioner to file
what is functionally a first petition as to a previously unripe
claim that becomes ripe only when execution is imminent, since an
individual's competency to be executed cannot properly be assessed
until that time. See Panetti, 551 U.S. at 945 (concluding that
“Congress did not intend the provisions of AEDPA addressing ‘second
or successive’ petitions to govern a filing in the unusual posture
presented

here:

a

§

2254

application

raising

a

Ford–based

incompetency claim filed as soon as that claim is ripe.”).
In this case, Lambrix cannot rely on Panetti’s ripeness
theory.

The Ford claims at issue in Panetti were based on the

petitioner’s

mental

condition,

involving

facts

that

change

significantly over time and, therefore, became ripe only close to
execution when those facts could properly be assessed.

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Here,

Lambrix does not argue that his case just became ripe because of
new facts.

Rather, he urges that a change in the law, entitles

him to file a successive 28 U.S.C. § 2254 petition (Doc. 2 at 13)
(urging that Lambrix’s claims ripened when Florida revised its
capital sentencing statute on March 13, 2017).

However, the facts

of Lambrix’s case remain the same, and he basis his new claim
solely upon the clarification of a legal rule that was established
many years ago.
ACCORDINGLY, it is hereby
ORDERED:
1.

This case is hereby DISMISSED without prejudice.

2.

Petitioner’s

Pauperis

and

Motion

Application

for

(Doc.

3)

Leave
and

to

Proceed

Motion

for

In
a

Forma

Stay

of

Execution (Doc. 5) are DENIED without prejudice to their renewal
if the circuit court grants permission to proceed.
3.

The Clerk of the Court is directed to close.

DONE and ORDERED in Fort Myers, Florida on this
of October, 2017.

SA: OrlP-4
Copies: All Parties of Record
Eleventh Circuit Court of Appeal

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2nd

day