from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:17-cv-00541-JES-CM
ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.
Cary Michael Lambrix, a Florida prisoner sentenced to death,
has a scheduled execution date of October 5, 2017. On October
4, 2017, Lambrix filed a notice of appeal. On October 5,
2017, Lambrix filed a motion for a stay of execution in this
Court. Lambrix seeks review of the district court's order
dismissing his fifth 28 U.S.C. § 2254 petition (that
Lambrix filed on October 2, 2017) and denying his motion for
a stay of execution.
State has filed an emergency motion to vacate the district
court's order granting Lambrix a certificate of
appealability ("COA") as defective, as the district
court's COA included only a procedural issue and did not
specify any underlying claim of the denial of a
constitutional right, much less a substantial showing of a
valid claim. Alternatively, the State has filed its merits
opposition to Lambrix's claims and motion for a stay of
first set forth some of the protracted history of this case
because the current matter before this Court involves the
state courts' denial of Lambrix's eighth successive
state post-conviction motion and the district court's
denial of his fifth § 2254 petition. This background is
also necessary to put the COA issues in this matter in
CONVICTION AND PRIOR COLLATERAL PROCEEDINGS
the past 32 years, Lambrix has filed dozens of petitions,
motions, original writs, and appeals in both state and
federal courts challenging his two capital murder convictions
and two death sentences. We briefly review here some of the
history of Lambrix's case to give his current § 2254
petition the necessary context. A detailed recitation of
Lambrix's prior filings can be found in our decision in
Lambrix v. Secretary, Florida Department of
Corrections, 851 F.3d 1158 (11th Cir. 2017), cert.
denied sub nom. Lambrix v. Jones, ___ S.Ct.___, 2017 WL
3008927 (Oct. 2, 2017) ("Lambrix V").
Capital Murder Convictions and Direct Appeal
1983, Lambrix brutally killed Clarence Moore and Aleisha
Bryant outside of his home by choking and stomping Bryant and
hitting Moore over the head with a tire iron. Lambrix
V, 851 F.3d at 1161. Lambrix then ate dinner with his
girlfriend, Frances Smith, cleaned himself, borrowed a
shovel, buried Moore's and Bryant's bodies in shallow
graves, and used Moore's car to dispose of the tire iron
and his own bloody shirt in a nearby stream. Id.
1984, Lambrix was convicted of two counts of first-degree
murder and sentenced to death for the 1983 murders of Moore
and Bryant. Id. In 1986, the Florida Supreme Court
affirmed Lambrix's convictions and sentences on direct
appeal. Id.; Lambrix v. State, 494 So.2d
1143, 1145 (Fla. 1986).
State and Federal Collateral Proceedings
his direct appeal, Lambrix filed his initial post-conviction
motion in state court, as well as his initial § 2254
petition in federal district court, both of which were
unsuccessful. See Lambrix V, 851 F.3d at 1161-63;
see also Lambrix v. Singletary, 72 F.3d 1500, 1508
(11th Cir. 1996) ("Lambrix I");
Lambrix v. State, 534 So.2d 1151, 1153-54
(Fla. 1988). Since then, Lambrix has filed eight successive
state post-conviction motions and at least ten other
miscellaneous state petitions challenging his convictions and
death sentences, all of which have been denied or dismissed.
See Lambrix V, 851 F.3d at 1163-65; Lambrix v.
State, 217 So.3d 977, 981-83 & n.3 (Fla. 2017),
petition for cert. filed, No. 17-5539 (U.S. Aug. 9,
2017); Lambrix v. Jones, ___So. 3d___, 2017 WL
4250149, at *1-2 & n.1 (Fla. Sep. 26, 2017); Lambrix
v. State, ___So. 3d___, 2017 WL 4320637, at *1 (Fla.
Sep. 29, 2017), petition for cert. filed, No.
17-6222 (U.S. Oct. 3, 2017). In addition, Lambrix has filed
three prior successive federal § 2254 habeas petitions,
all of which have been denied. See Lambrix V, 851
F.3d at 1165-66.
brings us to Lambrix's instant petition-his
fifth § 2254 petition-the dismissal of
which he now appeals. The claims he now brings in his fifth
§ 2254 petition are the same claims Lambrix brought in
state court in his eighth successive state post-conviction
motion. Therefore, we outline the state courts' rulings
on Lambrix's claims in his eighth successive state motion
and then turn to Lambrix's same claims in his current and
fifth § 2254 petition.
EIGHTH SUCCESSIVE STATE POST-CONVICTION MOTION
Hurst and Florida's New Death Penalty Statute
necessary background to Lambrix's claims, and
particularly the COA issues before us, we discuss the U.S.
Supreme Court's decision in Hurst v. Florida,
___U.S.___, 136 S.Ct. 616 (2016), and Florida's new death
penalty statute. In Hurst, the U.S. Supreme Court
applied its prior decisions in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) and Ring
v. Arizona, 536 U.S. 584, 122 S.Ct. 2428
(2002) to hold that Florida's capital
sentencing scheme violated the Sixth Amendment because it
required the judge alone to find the existence of an
aggravating circumstance necessary for the imposition of a
death sentence. Hurst, 136 S.Ct. at 624. Following
the U.S. Supreme Court's decision in Hurst, the
Florida Supreme Court held that, under state law,
Hurst did not apply retroactively to capital
convictions where the death sentence became final prior to
the issuance of Ring. Asay v. State, 210
So.3d 1, 22 (Fla. 2016), cert. denied, ___ S.Ct.___,
2017 WL 1807588 (Aug. 24, 2017) ("Asay
V"). This Court has noted that Hurst, like
Ring, is not retroactively applicable to cases on
collateral review under federal law. Lambrix V, 851
F.3d at 1165 n.2.
response to Hurst, the Florida legislature passed
Chapter 2017-1, amending Florida's death penalty statute
to require a unanimous jury finding of at least one
aggravating factor and a unanimous jury recommendation of
death before a defendant convicted of first-degree murder may
be sentenced to death. See Fla. Stat. § 921.141
(2017). The amended statute contains no provision regarding
its retroactive application. See id.
Florida Circuit Court Order on Lambrix's Eighth State
2, 2017, Lambrix filed his eighth successive state
post-conviction motion, raising five claims for relief based
on the U.S. Supreme Court's decision in Hurst.
State v. Lambrix, No. 83-CF-12, Order at 1 (Fla.
20th Cir. Ct. Sep. 5, 2017). On September 5, 2017, the state
circuit court denied Lambrix's motion on the merits as to
all of his claims. Id. at 9.
first claim, Lambrix argued that his death sentences violated
the Sixth Amendment in light of the U.S. Supreme Court's
Hurst decision because all of the factors necessary
to impose the sentences were not found unanimously by the
jury. Id. at 2. Lambrix contended that fundamental
fairness required applying Hurst retroactively to
his case because: (1) he was precluded from raising claims
based on the non-unanimity of the jury's death
recommendation in his prior proceedings because those claims
were foreclosed by then-binding precedent; and (2) several
prisoners whose initial death sentences had been imposed
before Ring but had been vacated on other grounds
and whose new death sentences did not become final until
after Ring had their new death sentences vacated
based on the U.S. Supreme Court's Hurst
decision. Id. at 3. The state circuit court rejected
this claim, explaining that it was bound by the Florida
Supreme Court's holding that Hurst did not apply
retroactively to capital cases such as Lambrix's that
were final before Ring. Id. at 3-5.
second claim, Lambrix argued that his non-unanimous death
sentences violated the Eighth Amendment in light of the
Florida Supreme Court's decision in Hurst v.
State, 202 So.3d 40 (Fla. 2016) (granting relief on
direct appeal to a post-Ring
defendant). State v. Lambrix, No. 83-CF-12 at
5. The state circuit court denied this claim as well.
Id. at 5-6. The state circuit court noted that the
Florida Supreme Court had held in its Asay decision
that Hurst v. State does not apply retroactively to
death sentences final before the U.S. Supreme Court's
decision in Ring, and in Asay VI had
rejected the same Eighth Amendment claim that Lambrix was
raising. See State v. Lambrix, No. 83-CF-12 at 5-6;
Asay v. State, ___So. 3d___, 2017 WL 3472836, at
*6-7 (Fla. Aug. 14, 2017) ("Asay VI").
third claim, Lambrix argued that the Florida Supreme
Court's decisions permitting partial retroactivity of
Hurst "inject[ed] arbitrariness into the
capital sentencing scheme, " thereby violating the
Eighth Amendment. Id. at 6. The state circuit court
denied Lambrix's claim, determining that it was bound by
the Florida Supreme Court's rulings that Hurst
does not apply retroactively to pre-Ring cases.
Id. at 7.
fourth claim, Lambrix contended that the Florida Supreme
Court's decisions in Hurst v. State and
Perry v. State, 210 So.3d 630 (Fla. 2016), were new
law that would apply at resentencing, and as a result, the
court was required to reconsider all of Lambrix's prior
post-conviction claims in light of the new requirement that
all jury findings must be unanimous. Id. The state
circuit court denied this claim, again noting that
Hurst did not apply retroactively to Lambrix's
case. Id. at 7-8. The circuit court also noted that
Lambrix cited no legal authority permitting, much less
requiring, the reconsideration of his previously denied
post-conviction claims. Id. at 7.
in his fifth claim, Lambrix argued that the Eighth and
Fourteenth Amendments of the U.S. Constitution, as well as
the Florida Constitution, required the retroactive
application of the substantive right established by Chapter
2017-1 to his case. Id. at 8. Lambrix also argued
that the Florida legislature intended Chapter 2017-1, which
amended Florida's death penalty statute to require a
unanimous jury verdict and findings, to apply retroactively.
Id. Lambrix further contended that Florida courts
had ordered resentencing under the new statute in some cases
and that he would be treated differently if his sentences
were not also vacated. Id.
state circuit court explained that, contrary to Lambrix's
assertions, nothing in the legislative history indicated that
the legislature intended Chapter 2017-1 to apply
retroactively, nor did Lambrix cite any legal authority
applying Chapter 2017-1 to cases that were final before the
statute was amended. Id. The state circuit court
further noted ...