In Re: Cary Michael Lambrix, 10-14476.

• Citation: 624 F.3d 1355
• Decision Date: 26 October 2010
• Docket Number: No. 10-14476.,10-14476.
• Parties: In re: Cary Michael LAMBRIX, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

624 F.3d 1355

In re: Cary Michael LAMBRIX, Petitioner.

No. 10-14476.

United States Court of Appeals,Eleventh Circuit.

Oct. 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Cary Michael Lambrix, Raiford, FL, pro se.

Carol M. Dittmar, Tampa, FL, for Secretary, FL. Dept. of Corrs.

Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b).

Before TJOFLAT, CARNES and HULL, Circuit Judges.

BY THE COURT:

I. PROCEDURAL HISTORY

Cary Michael Lambrix was convicted of two counts of first-degree murder and received two death sentences in Florida state court for his February 5, 1983 murders of Clarence Moore and Aleisha Bryant. Lambrix's convictions and death sentences were affirmed on direct appeal. Lambrix v. State, 494 So.2d 1143 (Fla.1986). Lambrix filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state trial court denied. In 1988, the Florida Supreme Court, in separate opinions, affirmed the denial of Lambrix's Rule 3.850 motion and denied Lambrix's state habeas petition. See Lambrix v. State, 534 So.2d 1151 (Fla.1988) (affirming denial of Rule 3.850 motion); Lambrix v. Dugger, 529 So.2d 1110 (Fla.1988) (denying state habeas petition).

Also in 1988, Lambrix filed in federal district court a 28 U.S.C. § 2254 petition for a writ of habeas corpus raising 28 claims. The district court denied Lambrix's § 2254 petition, and this Court affirmed. Lambrix v. Singletary, 72 F.3d 1500 (11th Cir.1996). The United States Supreme Court affirmed this Court's judgment. Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

Lambrix has also filed four successive state motions for postconviction relief. The Florida Supreme Court has thrice affirmed the state trial court's denial of Lambrix's successive postconviction motions. See Lambrix v. State, 39 So.3d 260 (Fla.2010); Lambrix v. State, 698 So.2d 247 (Fla.1996); Lambrix v. State, 559 So.2d 1137 (Fla.1990). ¹ On April 8, 2009, Lambrix filed a fourth successive state motion for postconviction relief, which the state trial court denied in July 2010. Lambrix's appeal to the Florida Supreme Court is pending. Lambrix v. State, No. SC10-1845 (Fla.) (appeal docketed Sept. 28, 2010).

Lambrix has now applied to this Court for leave to file a second or successive § 2254 federal habeas petition. In his Application, Lambrix requests that we issue an order authorizing him to file in the district court 12 claims that he alleges are new claims. Lambrix must allege they are new because § 2244(b) prohibits state court prisoners from filing in a second or successive habeas petition claims that have been raised already in a prior petition. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”).

Even if some of Lambrix's 12 claims are new, we cannot grant Lambrix's Application as to any new claim unless:

(A) the applicant shows that 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

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) 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, 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)-(B). Section 2244 was enacted in its current form as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which “was designed, among other reasons, to bring some finality and certainty to the seemingly never-ending collateral attack process.” In re Davis, 565 F.3d 810, 817 (11th Cir.2009).

Lambrix does not invoke the § 2244(b)(2)(A) exception, but proceeds solely under subpart (B). Thus, to obtain leave to file a second or successive petition, he must make a “prima facie showing” of compliance with § 2244(b)(2)(B). 28 U.S.C. § 2244(b)(3)(C). And to comply with § 2244(b)(2)(B), Lambrix must show that both (1) the factual predicate for the claim could not have been discovered previously through due diligence, and (2) the facts underlying the claim establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found Lambrix guilty. Id. § 2244(b)(2)(B)(i)-(ii).

II. FACTUAL BACKGROUND

We briefly summarize the facts surrounding the murders and Lambrix's prosecution. A fuller discussion can be found in Lambrix v. State, 494 So.2d 1143 (Fla.1986).

On February 5, 1983, Lambrix and his girlfriend, Frances Smith, met victims Clarence Moore and Aleisha Bryant at a local tavern. Smith, who was the State's key witness at Lambrix's trial, testified that after leaving the tavern, Lambrix, Smith, Moore, and Bryant returned to Lambrix and Smith's trailer for dinner.

Lambrix went outside with Moore, returned alone twenty minutes later, and asked Bryant to go outside with him. Lambrix again returned alone and was carrying a bloody tire iron. The evidence showed Lambrix killed Moore and Bryant in brutal fashion. Lambrix told Smith that he choked and stomped on Bryant and hit Moore over the head with the tire iron. Lambrix and Smith ate dinner, washed up, and then borrowed a shovel from Moore's neighbor John Chezem. They then buried the bodies in shallow graves and took Moore's Cadillac and disposed of the tire iron and Lambrix's bloody shirt in a nearby stream.

Frances Smith was arrested three days later on unrelated charges. Following her release, Smith advised law enforcement authorities about the murders. On February 26, 1983, during the ensuing investigation, Smith led police to the buried bodies, the tire iron, and Lambrix's bloody shirt. The bulk of the damaging evidence at Lambrix's trial was given by Smith, but her story was corroborated by the physical evidence-i.e., the bodies, tire iron, and Lambrix's bloody shirt. Other witnesses corroborated different parts of her testimony, such as Chezem's testimony that Lambrix and Smith borrowed the shovel. Witnesses Preston Branch and Deborah Hanzel testified that Lambrix told them he killed Moore and Bryant.

Lambrix's first trial ended in a mistrial. At Lambrix's second trial, the jury convicted Lambrix of two counts of first-degree murder and recommended two death sentences, which the state trial court imposed. Lambrix's execution was originally scheduled for November 30, 1988 but later was stayed periodically. The multiple state and federal postconviction proceedings have lasted over two decades.

III. CLAIMS RAISED IN LAMBRIX'S FIRST § 2254 PETITION

Before reviewing the 12 claims Lambrix seeks to file in a successive petition, it is helpful to review the robust nature and number of claims Lambrix raised in his first § 2254 petition.

Lambrix's first § 2254 petition, filed in 1988, raised 24 numbered and four additional unnumbered claims, including but not limited to these claims: (1) denial of Lambrix's right to testify; (2) denial of individualized voir dire; (3) error in refusing to change the venue; (4) Brady claim that witness Frances Smith had allegedly entered into a “deal” with the State in exchange for her testimony, which deal was never disclosed to the defense; (5) improper restriction of the cross-examination of witness Frances Smith with respect to alleged prior inconsistent statements made to law enforcement upon her own arrest and improper restriction of cross-examination of witness Connie Smith; (6) despite Lambrix having committed these murders while a fugitive, the trial court improperly admitted testimony regarding Lambrix's escape from the correctional center where he was serving a two-year sentence; (7) ineffective assistance by psychiatrist Dr. William Whitman; (8) ineffective assistance of trial counsel for failure to supplement and renew the change of venue and individualized voir dire motions; (9) ineffective assistance by trial counsel's failure to adequately cross-examine and impeach State witnesses John Chezem, Preston Branch and Deborah Hanzel; (10) ineffective assistance by trial counsel's failure to properly object and exclude the testimony of State witness Deborah Hanzel; (11) ineffective assistance of trial counsel on multiple other grounds during the guilt phase; (12) ineffective assistance of trial counsel on multiple grounds during the penalty phase, including inadequate investigation and presentation of mitigation evidence; (13) improper jury instructions during the penalty phase; (14) refusal to give a voluntary intoxication instruction; (15) trial judge's finding of five aggravating circumstances and no mitigating circumstances; (16) ineffective assistance of appellate counsel for failure to raise various claims on direct appeal and for not adequately presenting certain claims that were raised on direct appeal; (17) the sentencing court made miscellaneous erroneous rulings and instructions which deprived Lambrix of a fair and reliable sentencing proceeding; (18) the sentencing court erred in allowing impermissible victim impact evidence; and (19) after Lambrix's first trial ended in a mistrial, the Double Jeopardy Clause barred his second trial. ²

After a five-day evidentiary hearing, the district court in 1992 issued a 72-page order denying Lambrix's first § 2254 petition. On January 3, 1996, this Court affirmed. Lambrix v. Singletary, 72 F.3d 1500 (11th Cir.1996). The United States Supreme Court granted certiorari on one issue and affirmed. Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

IV. ADMISSIONS IN LAMBRIX'S APPLICATION

Before discussing the specific claims in Lambrix's Application to file a successive petition, we point out several factual admissions in...