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                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-14413
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:17-cv-00541-JES-CM



CARY MICHAEL LAMBRIX,

                                                             Petitioner-Appellant,

                                     versus

SECRETARY, DOC,
FLORIDA ATTORNEY GENERAL,
                                                          Respondents-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (October 5, 2017)

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
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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


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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.


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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.




       1
       Including his original § 2254 petition and three prior successive § 2254 petitions,
Lambrix has filed a total of four previous § 2254 petitions, making the instant petition his fifth.
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     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.


       2
         In Ring, the Supreme Court applied its holding in Apprendi—that any fact that increases
a defendant’s statutorily authorized punishment must be found by a jury beyond a reasonable
doubt—to the capital sentencing context and concluded that Arizona’s death penalty statute
violated the Sixth Amendment because it allowed a sentencing judge, sitting alone without a
jury, to determine the presence of aggravating factors necessary for the imposition of the death
penalty under Arizona law. See Ring, 536 U.S. at 588, 601-09, 122 S. Ct. at 2432, 2439-43.
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       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
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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

       3
          Hurst v. State is the case that was before the Florida Supreme Court on remand from the
U.S. Supreme Court’s decision in Hurst. 202 So. 3d at 43. In Hurst v. State, on direct appeal,
the Florida Supreme Court vacated Hurst’s death sentence, finding a Sixth Amendment violation
that, it determined, was not harmless under the facts and circumstances of his case. Id. at 69.
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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


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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 that the Florida Supreme Court had rejected the

same claim regarding Chapter 2017-1 in Asay VI. Id.

      Accordingly, because Lambrix’s death sentences were legal when they were

imposed and Hurst did not apply retroactively to his case, the state circuit court

concluded that his sentences remained legal and denied his eighth successive post-

conviction motion. Id. at 8-9.

C.    Florida Supreme Court Decision

      On September 29, 2017, the Florida Supreme Court affirmed the circuit

court’s denial of Lambrix’s eighth successive state post-conviction motion on the

merits. Lambrix v. State, __ So. 3d __, 2017 WL 4320637, at *1 (Fla. Sep. 29,

2017), petition for cert. filed, No. 17-6202 (U.S. Oct. 3, 2017). On appeal,

Lambrix argued, inter alia, that: (1) his sentences of death are unconstitutional

under new Chapter 2017-1, Laws of Florida, which requires a unanimous jury

recommendation for death; (2) his death sentences violate the Eighth Amendment;


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and (3) the Florida Supreme Court’s decisions regarding the non-retroactivity of

Hurst v. Florida and Florida’s new death penalty statute violate his rights to Equal

Protection, Due Process, and under the Eighth Amendment. Id. at *1.

      First, regarding Lambrix’s claims based on the U.S. Supreme Court’s

decision in Hurst, the Florida Supreme Court explained that it already had held, in

a prior opinion in Lambrix’s case, that Lambrix was not entitled to relief based on

the U.S. Supreme Court’s decision in Hurst. Id. (citing Lambrix v. State, 217 So.

3d 977, 989 (Fla. 2017)). In that case, Lambrix had argued that, in light of the U.S.

Supreme Court’s decision in Hurst, his death sentences violated the Sixth

Amendment. Lambrix, 217 So. 3d at 988-89. Lambrix contended that he was

entitled to retroactive application of Hurst and that his sentences must be vacated.

Id. at 989. The Florida Supreme Court rejected Lambrix’s claim because, under its

prior decision in Asay V, Lambrix was not entitled to relief under Hurst because

his convictions were final in 1986. Id. In Asay V, the Florida Supreme Court had

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 in 2002. Asay

V, 210 So. 3d at 22.

      Second, the Florida Supreme Court rejected Lambrix’s Eighth Amendment,

Due Process, and Equal Protection claims, which were “based on the arbitrariness

of [its] retroactivity decisions” with regard to Hurst and the passage of Chapter


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2017-1. Lambrix, 2017 WL 4320637, at *1-2. The Florida Supreme Court

concluded that those claims were due to be denied in light of its decisions and for

the multiple reasons set out in Hitchcock v. State, __ So. 3d __, 2017 WL 3431500

(Fla. Aug. 10, 2017), petition for cert. filed, No. 17-6180 (U.S. Sep. 29, 2017), and

Asay VI. Lambrix, 2017 WL 4320637, at *1.

      In Asay VI, the petitioner raised an Eighth Amendment challenge to his non-

unanimous death sentences based on the Florida Supreme Court’s decision in Hurst

v. State and the Florida legislature’s passage of Chapter 2017-1, which amended

Florida’s death penalty statute in response to the Florida Supreme Court’s decision

in Perry v. State. Assay VI, 2017 WL 3472836, at *6-7. In essence, Asay

contended that the Florida Supreme Court’s refusal to apply its Hurst v. State

decision and Chapter 2017-1 retroactively to him was arbitrary and capricious. Id.

at *6-7. The Florida Supreme Court rejected those claims, noting that, in one of

Asay’s prior cases, it had rejected a nearly identical statutory claim regarding a

2016 amendment to Florida’s death penalty statute, and concluding that Asay’s

retroactivity claims were controlled by its prior decisions, including Hitchcock,

which denied retroactive application of Hurst to defendants whose death sentences

were final prior to Ring. Id. at *7.




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                  III. CURRENT & FIFTH §2254 PETITION

A.    Lambrix’s Current § 2254 Petition

      On October 2, 2017, Lambrix filed his current and fifth § 2254 petition in

the district court. Lambrix simultaneously filed an application for a stay of

execution based on his § 2254 petition. Lambrix contended that his federal Due

Process, Equal Protection, and Eighth Amendment rights were violated by the state

court’s failure to give retroactive effect to (1) Chapter 2017-1, a revised version of

Florida Statute § 921.141 (Florida’s capital sentencing statute), and (2) the U.S.

Supreme Court’s decision in Hurst.

      In the present case, Lambrix’s § 2254 petition claims that Chapter 2017-1

established a new substantive right to a life sentence absent a unanimous jury

recommendation of death and that the Florida legislature intended this change to

apply retroactively. Lambrix also argued that his present § 2254 petition was not

“second or successive” within the meaning of 28 U.S.C. § 2244(b) because his

claim did not become ripe until March 13, 2017, the date on which Chapter 2017-1

took effect. In addition, Lambrix contended that the Florida Supreme Court’s

refusal in 2017 to apply Hurst retroactively to him, but applying it to capital

defendants sentenced after Ring violates the Eighth Amendment and his

constitutional rights to Due Process and Equal Protection. Lambrix argued his

statutory claim was not ripe until recently.


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B.    District Court’s Order

      On October 2, 2017, the district court dismissed Lambrix’s petition for lack

of jurisdiction, rejecting his assertion that his current § 2254 petition was not

successive. The district court acknowledged that not all second-in-time § 2254

petitions are “successive” within the meaning of § 2244(b) but concluded that

Lambrix’s petition was properly classified as successive. The district court

explained that Lambrix’s ripeness argument relied primarily on Panetti v.

Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007), in which the U.S. Supreme

Court held that the statutory bar on second or successive applications did not apply

to claims regarding a prisoner’s competency to be executed because such claims do

not become ripe until execution is imminent.

      The district court distinguished Lambrix’s claims from those at issue in

Panetti because the claims in Panetti involved facts concerning a prisoner’s mental

state, which can change significantly over time, and therefore can be assessed only

when execution is close at hand. By contrast, Lambrix argued that he was entitled

to file a successive § 2254 petition in light of a change in the law, rather than a

change in the factual circumstances of his case. The district court noted that the

facts of Lambrix’s case remained the same and that his new claim was based

“solely upon the clarification of a legal rule that was established many years




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ago”—namely, the rule announced in Apprendi and extended to the capital

sentencing context in Ring.

      In addition, as to Lambrix’s Hurst claim, the district court pointed out that

Hurst did not even announce a new rule. Instead, in Hurst, the Supreme Court only

applied the Apprendi and Ring standard to Florida’s capital sentencing scheme.

The district court reasoned that Hurst “neither expanded the Apprendi/Ring rule

nor announced a new rule.”

      As a result, the district court dismissed Lambrix’s petition and denied his

motion for a stay of execution, without prejudice to their renewal should this Court

grant Lambrix leave to file a successive § 2254 petition. To date, Lambrix has not

filed an application for leave to file a successive § 2254 petition with this Court,

which, if he did, would be his fourth attempt to file a successive § 2254 petition.

      After the district court dismissed his petition, Lambrix moved for a COA in

the district court, and the district court granted his motion on the procedural issue

of whether it had “correctly concluded that it lacked jurisdiction to consider his

October 2, 2017 habeas petition” because it was impermissibly successive.




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                           IV. COA REQUIREMENTS

      This case is before us on a COA granted by the district court. The COA

issued by the district court is defective. We first review the requirements for a

COA and then explain why the district court’s COA is defective.

A.    COA Standard

      The standard for issuing a COA is set forth in 28 U.S.C. § 2253, which

provides that 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). The

Supreme Court recently provided guidance on this standard in Buck v. Davis, 580

U.S. ___, 137 S. Ct. 759 (2017). In Buck, the Supreme Court explained that under

§ 2253(c)(2) the threshold and only question at the COA stage “is whether the

applicant has shown that ‘jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.’” 580 U.S. at

___, 137 S. Ct. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.

1029, 1034 (2003)). When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim, the

prisoner in order to obtain a COA, still must show both (1) “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right” and (2) “that jurists of reason would find it debatable whether


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the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). “Thus, when a COA request

concerns a procedural ruling, the required showing must include both the

procedural issue and the constitutional issue.” Lambrix V, 851 F.3d at 1169; see

also Slack, 529 U.S. at 484, 120 S. Ct. at 1604; Buck, 580 U.S. at ___, 137 S. Ct. at

777.

       The Supreme Court has directed that “issuance of a COA must not be pro

forma or a matter of course.” Miller-El, 537 U.S. at 337, 123 S. Ct. at 1040. The

Supreme Court also directed that without a COA “the Court of Appeals may not

rule on the merits” and must decide this threshold question without full

consideration of the facts and legal bases supporting the claims, although the denial

of a COA “necessarily means the prisoner has failed to show that his claim is

meritorious.” Buck, 580 U.S. at ___, 137 S. Ct. at 773.

B.     District Court’s COA Is Defective

       Here, the district court did not state that Lambrix had made a substantial

showing of a denial of a constitutional right, much less specify the underlying

constitutional issue on which he had made such a showing, which are requirements

for issuance of a COA. 28 U.S.C. § 2253(c)(2), (3); Slack, 529 U.S. at 484, 120 S.

Ct. at 1604. For that reason, the COA the district court issued is defective. See

Slack, 529 U.S. at 484, 120 S. Ct. at 1604; see also 28 U.S.C. § 2253(c)(2) (“A


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certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”).

      We have the authority and duty to vacate a COA in this circumstance. See

Bell v. Fla. Att’y Gen., 614 F.3d 1230, 1231-32 (11th Cir. 2010) (vacating a COA

as improvidently granted because “the district court erred in failing to specify

whether jurists of reason would find it debatable that [the petitioner stated] a valid

claim of the denial of a constitutional right”); see also Lambrix V, 851 F.3d at

1169 (“[W]hen a COA request concerns a procedural ruling, the required showing

must include both the procedural issue and the constitutional issue.”); Damren v.

Florida, 776 F.3d 816, 820 (11th Cir. 2015) (stating that the district court did not

comply with § 2253(c)(3) where it “issued a COA that identified a debatable

procedural issue—whether equitable tolling was warranted under the

circumstances of [the petitioner’s] case—but that did not specify the underlying

constitutional issue or issues on which [the petitioner] had made a substantial

showing of a denial of his rights”). Accordingly, we grant the State’s emergency

motion to vacate and vacate the COA granted by the district court.

C.    Construed Motion for a COA in this Court

      Nonetheless, we can and will construe Lambrix’s notice of appeal as an

application for a COA from this Court to address these issues: (1) whether

Lambrix’s current § 2254 petition is impermissibly successive; and (2) whether the


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Florida Supreme Court’s retroactivity decision—that Hurst and the new Fla. Stat.

§ 921.141 do not apply retroactively to Lambrix—violates his rights to Due

Process, Equal Protection, and the Eighth Amendment’s prohibition against cruel

and unusual punishment. As explained later, to obtain a COA as to the second

issue, Lambrix must show that jurists of reason would find it debatable that the

Florida Supreme Court’s merits rejection of Lambrix’s constitutional claims

resulted in a decision that was contrary to or involved an unreasonable application

of clearly established federal law.

      But we first briefly discuss the procedural issue as to successive § 2254

petitions.

                            V. PROCEDURAL ISSUE

A.    Section 2244(b)

      A claim presented in a second or successive § 2254 petition is subject to

dismissal unless the petitioner shows that: (1) “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 (2) “the factual predicate for the claim

could not have been discovered previously through the exercise of due diligence,”

and “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,




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but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2).

      A state habeas petitioner seeking to file a second or successive § 2254

petition must seek authorization from this Court before the district court may

consider his petition. 28 U.S.C. § 2244(b)(3)(A). When a petitioner fails to seek

or obtain such authorization, the district court lacks jurisdiction to consider the

merits of the petition. Burton v. Stewart, 549 U.S. 147, 157, 127 S. Ct 793, 799

(2007).

      The State argues that the district court did not err in dismissing Lambrix’s

current § 2254 petition for lack of jurisdiction because this is Lambrix’s fourth

successive § 2254 petition. Therefore, the State argues that Lambrix was required

to seek this Court’s authorization before filing his current petition in the district

court, which he did not do. See 28 U.S.C. § 2244(b)(3)(A).

B.    Panetti v. Quarterman

      In response, Lambrix attempts to avoid § 2244’s ban on successive petitions

by relying on Panetti v. Quarterman. In Panetti, the Supreme Court held the

statutory bar on successive habeas petitions did not apply to claims under Ford v.

Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986), regarding a prisoner’s

competency to be executed because such claims do not become ripe until execution

is imminent. See Panetti, 551 U.S. at 943-47, 127 S. Ct. at 2852-55.


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      The State argues that the mental competency exception in Panetti applies

only in the “unusual posture” where a claim is based on facts that change over

time, such that the claim may only properly be assessed when the petitioner’s

execution is close at hand. See id. at 945-47, 127 S. Ct. at 2853-55.

      The State further contends: (1) that the factual basis for Lambrix’s present

claims—the imposition of his death sentences based on a non-unanimous jury

recommendation—has not changed since his convictions and sentences became

final in 1986; (2) that Lambrix’s present claims are based on the change in Florida

capital sentencing law occasioned by the U.S. Supreme Court’s decision in Hurst;

(3) that § 2244(b) makes clear that a claim based on a change in the law may only

be raised in a successive § 2254 petition when that claim is based on a new,

previously unavailable rule of constitutional law that has been made retroactive to

cases on collateral review by the U.S. Supreme Court; and (4) that Lambrix’s

claims do not meet that requirement because Hurst, like Ring itself, does not apply

retroactively to cases on collateral review.

      We need not decide the issue of whether Lambrix’s current petition is

second or successive and subject to the strictures of § 2244(b), or whether an

exception applies that is akin to the one in Panetti. Assuming without deciding that

the current petition is not a second or successive one for § 2244(b) purposes, we




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still must deny Lambrix’s construed motion for a COA and his motion for a stay of

execution. We explain why.

                        VI. THE CONSTITUTIONAL ISSUES


A.     AEDPA Deference

       As outlined above, the Florida Supreme Court has denied on the merits

Lambrix’s constitutional claims, which are all based on the non-retroactivity of the

U.S. Supreme Court’s Hurst decision and Florida’s new death penalty statute.4

Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), our review of Lambrix’s current § 2254 petition

is limited. Where the state courts have rejected the petitioner’s claim of the denial

of a constitutional right, the deference mandated by § 2254(d)(1) applies in

determining whether a COA should be granted. See Tennard v. Dretke, 542 U.S.

274, 282, 124 S. Ct. 2562, 2569 (2004) (stating that the petitioner’s arguments for

the issuance of a COA “ultimately must be assessed under the deferential standard

required by 28 U.S.C. § 2254(d)(1)”).

       Under § 2254(d)(1), a federal court may grant a writ of habeas corpus to a

state prisoner on a claim adjudicated on the merits in a state court only where the

state court’s decision “was contrary to, or involved an unreasonable application of,
       4
         Both the Florida state collateral trial court and the Florida Supreme Court rejected all of
Lambrix’s constitutional claims on the merits. For that reason, this case does not present any
issues arising under Wilson v. Warden, Georgia Diagnostic Prison, 834 F.3d 1227, 1230 (11th
Cir. 2016), cert. granted sub nom. Wilson v. Sellers, 137 S. Ct. 1203 (2017).
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clearly established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      A state court’s decision rises to the level of an unreasonable application of

federal law only where the ruling is “objectively unreasonable, not merely wrong;

even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. __, __, 137 S. Ct.

1726, 1728 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. __, __, 135 S.

Ct. 1372, 1376 (2015) (per curiam)). This standard is “meant to be” a difficult one

to meet. Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011).

AEDPA thus “imposes a highly deferential standard for evaluating state-court

rulings and demands that state-court decisions be given the benefit of the doubt.”

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quoting

Hardy v. Cross, 565 U.S. 65, 66, 132 S. Ct. 490, 491 (2011) (per curiam)).

      The phrase “clearly established Federal law” means the holdings of the U.S.

Supreme Court that were in existence at the time of the relevant state-court

decision. See Harrington, 562 U.S. at 100, 131 S. Ct. at 785; Thaler v. Haynes,

559 U.S. 43, 47, 130 S. Ct. 1171, 1173 (2010) (“A legal principle is ‘clearly

established’ within the meaning of [§ 2254(d)(1)] only when it is embodied in a

holding of [the Supreme] Court.”); Williams v. Taylor, 529 U.S. 362, 412, 120 S.

Ct. 1495, 1523 (2000) (“[T]he phrase ‘clearly established Federal law, as


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determined by [this] Court’ refers to the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time of the relevant state-court decision.”

(first alteration in original)).

B.     The COA Issue

       Therefore, assuming as we have that this petition is not to be treated as a

second or successive one subject to the requirements of § 2244(b), the COA issue

becomes whether jurists of reason would find it at least debatable that the Florida

courts’ rejection of Lambrix’s constitutional claims resulted in a decision that was

contrary to or involved an unreasonable application of clearly established federal

law, as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1).

C.     Non-retroactivity of Hurst

       No U.S. Supreme Court decision holds that its Hurst decision is retroactively

applicable. In Lambrix V, this Court already indicated that Hurst is not

retroactively applicable on collateral review under federal law, and we hold here

that no reasonable jurist would find that issue debatable. Lambrix V, 851 F.3d at

1165 n.2. More importantly, Lambrix’s two capital convictions and death

sentences became final in 1986, sixteen years before Ring was decided. The

Supreme Court has held that Ring does not apply retroactively to cases on

collateral review. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519,

2526 (2004) (holding that Ring does not apply retroactively under federal law to


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death-penalty cases already final on direct review). Ring applied only

prospectively, and thus, defendants who were convicted before Ring were treated

differently too by the Supreme Court. The Florida Supreme Court’s ruling—that

Hurst is not retroactively applicable to Lambrix—is fully in accord with the U.S.

Supreme Court’s precedent in Ring and Schriro.

       For all of these reasons, jurists of reason would not find this proposition

debatable: the Florida courts’ rejection of Lambrix’s constitutional claim was not

contrary to nor an unreasonable application of a holding of a Supreme Court

decision.5

D.     Non-retroactivity of Florida’s Statute

       Similarly, no U.S. Supreme Court decision holds that the failure of a state

legislature to make revisions in a capital sentencing statute retroactively applicable

to all of those who have been sentenced to death before the effective date of the

new statute violates the Equal Protection Clause, the Due Process Clause, or the

Eighth Amendment.

       There is even one Supreme Court decision inconsistent with Lambrix’s

Equal Protection claim. See Dobbert v. Florida, 432 U.S. 282, 301, 97 S. Ct. 2290,


       5
         In its reply brief, the State aptly points out that the Florida Supreme Court has been
consistent in denying Hurst relief to those defendants whose convictions and sentences were
final before Ring was decided on June 24, 2002. Thus far, the Florida Supreme Court has denied
Hurst relief in more than 20 cases based solely on the undisputed fact that the judgments were
finalized prior to the decision in Ring. See State’s Reply Brief at 5 n.5 (listing cases). Lambrix
is being treated exactly the same as similarly situated convicted murderers.
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2302 (1977). After the Supreme Court’s decision in Furman v. Georgia, 408 U.S.

238, 92 S. Ct. 2726 (1972), Florida enacted a new statute which, coupled with a

Florida Supreme Court decision, divided those who had committed murders before

Furman into two categories. Dobbert, 432 U.S. at 288, 97 S. Ct. at 2296. One

category consisted of all those who had already been tried, convicted, and

sentenced to death at the time of Furman. See id. at 301, 97 S. Ct. at 2302. The

Florida Supreme Court decision reduced their sentences to life imprisonment. Id.

The other category of pre-Furman murderers were those who had not yet been tried

at the time of the Furman decision and the new Florida statute enacted in response

to it. See id. Those in that category were subject to being sentenced to death. See

id. Dobbert was one of them, and he was sentenced to death. Id. The Supreme

Court rejected Dobbert’s Equal Protection claim, reasoning that “petitioner is

simply not similarly situated to those whose sentences were commuted. He was

neither tried nor sentenced prior to Furman, as were they.” Id. After all, “Florida

obviously had to draw the line at some point.” Id. That same reasoning applies

here.

        In short, jurists of reason would not find this proposition debatable: the

Florida court’s rejection of Lambrix’s constitutional-statutory claim was not

contrary to, or an unreasonable application of, the holding of a Supreme Court

decision.


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                                     VII. CONCLUSION

       The State’s motion to vacate the district court’s COA is GRANTED.

Lambrix’s motion for us to issue a COA, construed from his notice of appeal, is

DENIED. Because Lambrix has not met the requirements for a COA, his motion

for a stay of execution is also DENIED. 6

       MOTIONS FOR COA AND STAY DENIED, and APPEAL

DISMISSED.




       6
         The standard for a stay is, in part, a showing of a substantial likelihood of success on the
merits of the claims, which is a higher standard than the one for a COA. Because Lambrix has
not met the COA standard, he necessarily has not met the standard for a stay. See e.g., Gore v.
Crews, 720 F.3d 811, 817 (11th Cir. 2013) (denying motion for stay of execution when
petitioner’s claim was not debatable among jurists of reason and the district court should not
have granted a COA).
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