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Lambrix v. Secretary, Doc, Florida Attorney General

United States Court of Appeals, Eleventh Circuit

October 5, 2017

CARY MICHAEL LAMBRIX, Petitioner-Appellant,
v.
SECRETARY, DOC, FLORIDA ATTORNEY GENERAL, Respondents-Appellees.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:17-cv-00541-JES-CM

          Before ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.

          PER CURIAM.

         Petitioner 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.

         The 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 execution.

         We 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 context.

         I. CONVICTION AND PRIOR COLLATERAL PROCEEDINGS

         Over 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").

         A. Capital Murder Convictions and Direct Appeal

         In 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.

         In 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).

         B. State and Federal Collateral Proceedings

         Following 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.

         This brings us to Lambrix's instant petition-his fifth[1] § 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.

         II. EIGHTH SUCCESSIVE STATE POST-CONVICTION MOTION

         A. Hurst and Florida's New Death Penalty Statute

         As 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)[2] 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.

         In 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.

         B. Florida Circuit Court Order on Lambrix's Eighth State Post-Conviction Motion

         On June 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.

         In his 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.

         In his 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).[3] 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").

         In his 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.

         In his 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.

         Finally, 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.

         The 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 ...


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