ORDER OF DISMISSAL WITHOUT PREJUDICE

JOHN E. STEELE, Senior District Judge.

This matter comes before the Court upon Cary Michael Lambrix's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (Doc. 1, filed October 2, 2017). Lambrix has also filed a Motion for Leave to Proceed In Forma Pauperis and a Motion for a Stay of Execution (Doc. 3; Doc. 5). This capital habeas corpus case is before the Court for initial review upon filing. Respondent has filed a response asserting that this Court lacks jurisdiction to consider the successive petition and opposing the motion to stay (Doc. 9).

The Petition pleads a single ground for relief in which Lambrix urges that his Due Process and Equal Protection rights are 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) (Doc. 1).1 Lambrix has a scheduled execution date of October 5, 2017.

Lambrix attacks his March 22, 1984 state-court conviction and sentences of death on two counts of first-degree murder (Doc. 1 at 2). As the Petition acknowledges, Lambrix previously attacked this judgment in a 1988 habeas corpus petition filed in the District Court for the Southern District of Florida (Case No. 88-12107-CIV-ZLOCH) (Doc. 1 at 15-16). That petition was denied. Id. This is Lambrix' fourth attempt to file a successive 28 U.S.C. § 2254 petition. See Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, Part IV (11th Cir. 2017) (detailing Lambrix' prior successive petitions). There is no question, therefore, that the instant Petition is a second-in-time habeas corpus petition.

The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") amended 28 U.S.C. § 2244(b)(2) to read as follows:

Id. The statute requires authorization from the relevant circuit court before a district court considers a second or successive petition. 28 U.S.C. § 2244(b)(3)(A). Where the prisoner fails to seek or to obtain such authorization, the district court lacks jurisdiction to consider the merits of the petition. Burton v. Stewart, 549 U.S. 147 (2007).

Lambrix correctly notes that not every second-in-time petition is properly classified as a second or successive petition (Doc. 1 at 19). To avoid that classification, Lambrix relies on Panetti v. Quarterman, 551 U.S. 930 (2007). In Panetti, the Supreme Court held that the statutory bar on second or successive applications does not apply to claims under Ford v. Wainwright, 477 U.S. 399, 410 (1986)—which prohibited the execution of insane prisoners—that are filed after the state has obtained an execution warrant. Panetti, 551 U.S. at 947 (as to a claim that had not been presented in an earlier petition). This exception is based on the ripeness doctrine, permitting a petitioner to file what is functionally a first petition as to a previously unripe claim that becomes ripe only when execution is imminent, since an individual's competency to be executed cannot properly be assessed until that time. See Panetti, 551 U.S. at 945 (concluding that "Congress did not intend the provisions of AEDPA addressing `second or successive' petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.").

In this case, Lambrix cannot rely on Panetti's ripeness theory. The Ford claims at issue in Panetti were based on the petitioner's mental condition, involving facts that change significantly over time and, therefore, became ripe only close to execution when those facts could properly be assessed. Here, Lambrix does not argue that his case just became ripe because of new facts. Rather, he urges that a change in the law, entitles him to file a successive 28 U.S.C. § 2254 petition (Doc. 2 at 13) (urging that Lambrix's claims ripened when Florida revised its capital sentencing statute on March 13, 2017). However, the facts of Lambrix's case remain the same, and he basis his new claim solely upon the clarification of a legal rule that was established many years ago.

ACCORDINGLY, it is hereby

ORDERED:

1. This case is hereby DISMISSED without prejudice.

2. Petitioner's Motion for Leave to Proceed In Forma Pauperis and Application (Doc. 3) and Motion for a Stay of Execution (Doc. 5) are DENIED without prejudice to their renewal if the circuit court grants permission to proceed.

3. The Clerk of the Court is directed to close.

DONE and ORDERED.