Today at 6 p.m., the State will execute Cary Michael Lambrix unless the U.S. Supreme Court or Florida Governor Rick Scott intervene. Lambrix has a few items before SCOTUS that we’re watching: two cert petitions (17-5539 and 17-6222), three applications for stay of execution (17A368, 17A370, and 17A375), and a habeas petition (17-6202). SCOTUS denied relief in 17-5153 on Monday. With the exception of 17-5539 and 17-5153, Lambrix’s counsel filed each this week.
Justice Clarence Thomas is the “circuit justice” for the Eleventh Circuit–the federal geographical area made up of Florida, Georgia, and Alabama. Justice Thomas will review Lambrix’s application for stay of execution. He has the option to rule on his own or refer the matter to the full court. Yesterday, Justice Thomas referred a similar matter to the full court in an Alabama case, where the Eleventh Circuit Court of Appeals had issued an order stopping an execution. The full court, with three dissenting justices, overruled the 11th Circuit, clearing the way for the execution in Alabama.
Lambrix’s chief argument is that his jury wasn’t unanimous in recommending the death penalty, so his sentence is unconstitutional. According to the Florida Supreme Court, had Lambrix’s sentence been “final” June 24, 2002, he’d be right. But because his sentence was “final” in 1986, he doesn’t get the benefit of the rule announced in Hurst v. Florida and Hurst v. State (II), which applied Ring v. Arizona (June 24, 2002) to Florida’s death penalty procedures.
Why the “quotes” around “final”? The Florida Supreme Court defines “final” as the time the direct appeal phase concludes. That means you’ve been sentenced to death, you’ve lost on your direct appeal to the Florida Supreme Court, and then SCOTUS ruled against you, too. Once you lose your SCOTUS petition in your direct appeal, then your sentence is “final” for purposes of Hurst. (The Florida Supreme Court mentions this in Asay and Mosley. Just take my word for it.) Then you begin what’s called “postconviction” proceedings.
So Lambrix’s sentence was final in 1986. Doesn’t the Constitution pre-date 1986 (and June 24, 2002)? Tune in for our Hurst series where we’ll discuss retroactivity. [Preview: Florida Supreme Court describes this as a “unique jurisprudential conundrum.” (Scroll to page 41). Then they drew the line at June 24, 2002.]
In Hurst v. Florida, SCOTUS did not address retroactive application of the unanimous jury rule. If they take Lambrix’s case, it’s a good bet they’ll address that issue head on. If they find Hurst is retroactive beyond June 24, 2002, it’ll be just in time for Lambrix. And six weeks too late for Mark James Asay.
As of this writing, Lambrix has less than 11 hours to hear from SCOTUS.