Lambrix v. Secretary, DOC et al

Filing 15

ORDER granting 13 Motion for Certificate of Appealability. Signed by Judge John E. Steele on 10/4/2017. (RKR)

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

Case No:

2:17-cv-541-FtM-29CM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
ORDER
This matter comes before the Court upon Petitioner Cary
Michael Lambrix’s Application for a Certificate of Appealability
(Doc. 13, filed October 4, 2017).

For the reasons given below,

the motion is GRANTED.
I.

Background

Lambrix has a scheduled execution date of October 5, 2017.
He filed a 28 U.S.C. § 2254 petition for writ of habeas corpus on
October 2, 2017 (Doc. 1).

He argued that his Due Process and

Equal Protection rights are being 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).
The

Id.

Court

dismissed

Lambrix’s

§

2254

petition

without

prejudice on the ground that it was an impermissible second or

successive petition under 28 U.S.C. § 2244(b)(3)(A).

Lambrix was

advised that he must first receive authorization from the Eleventh
Circuit Court of Appeals before this Court has jurisdiction to
consider his successive § 2254 petition (Doc. 10).
II.

Analysis

A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (“COA”).

“A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial
of a constitutional right.”

28 U.S.C. § 2253(c)(2).

To make such

a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were ‘adequate to deserve encouragement
to proceed further’”, Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003).
Lambrix argued in his October 2, 2017 petition that his claim
was not successive.

He pointed to Panetti v. Quarterman, 551 U.S.

930 (2007), and urged that the case stands for the proposition
that a claim that could not have become ripe at an earlier date is
not “successive” under 28 U.S.C. § 2244(b)(3)(A).
concluded

that

Panetti

was

based

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on

new

facts

This Court
that

changed

significantly over time and therefore, Panetti’s claims became
ripe only close to the execution when those facts could be properly
assessed (Doc. 10).

However, in the instant case, Lambrix basis

his claim on a clarification in existing law.
Lambrix

urges

that

the

exact

Id.

parameters

exception are debatable among jurists of reason.

of

the

Panetti

To support this

assertion, he points to In re Jones, 652 F.3d 603 (6th Cir. 2010),
in which the Sixth Circuit Court of Appeals concluded that Jones’
ex

post

facto

claim,

which

challenged

statutory

changes

in

Michigan’s parole system made after Jones’ sentence was imposed,
was unripe at the time of his first § 2254 petition (Doc. 13 at
4).

The Sixth Circuit determined that Jones’ ex post facto claim

was not properly classified as successive.

Lambrix now argues:

The Sixth Circuit decision is certainly
contrary to the view that a change in law
cannot give rise to a previously unripe claim.
In Jones, there was no change in the facts of
Jones’ case, only a change in Michigan’s
statutory law which gave rise to an ex post
facto claim. The Sixth Circuit’s ruling has
to mean that this Court’s construction of
Panetti is debatable among jurists of reason.
(Doc. 13 at 4).

Lambrix has made the requisite showing that

reasonable jurists could debate whether his October 2, 2017 28
U.S.C. § 2254 petition should be considered successive. See also
Stewart v. United States, 646 F.3d 856 (11th Cir. 2011); United
States v. Obeid, 707 F.3d 898 (7th Cir. 2013); In re Weathersby,

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717 F.3d 1108, 1110 (10th Cir. 2013); United States v. Hairston,
754 F.3d 258, 262 (4th Cir. 2014).
ACCORDINGLY, it is hereby
ORDERED:
Lambrix is GRANTED a certificate of appealability on the issue
of

whether

this

Court

correctly

concluded

that

it

lacked

jurisdiction to consider his October 2, 2017 habeas petition.
DONE and ORDERED in Fort Myers, Florida on this
of October, 2017.

SA: OrlP-4
Copies: All Parties of Record

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4th

day