Lambrix v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 15 March 2017
• Docket Number: No. 16-10251,16-10251
• Citation: 851 F.3d 1158
• Parties: Cary Michael LAMBRIX, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

851 F.3d 1158

Cary Michael LAMBRIX, Petitioner-Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 16-10251

United States Court of Appeals, Eleventh Circuit.

Date Filed: March 15, 2017

William McKinley Hennis, III, Capital Collateral Regional Counsel—South, FORT LAUDERDALE, FL, Matthew C. Lawry, Federal Public Defender, Federal Community Defender for the Eastern District of Pennsylvania, PHILADELPHIA, PA, for Petitioner-Appellant.

Carla Suzanne Bechard, Scott A. Browne, Attorney General's Office, Criminal Division, TAMPA, FL, for Respondent-Appellee.

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

HULL, Circuit Judge:

On February 1, 2016, Petitioner Cary Lambrix filed a motion for a certificate of appealability ("COA") in this Court. Lambrix, a Florida prisoner sentenced to death, seeks to appeal the district court's order denying his "Motion for Relief from Judgment Pursuant to Rule 60(b)." Although Lambrix's initial 28 U.S.C. § 2254 petition was denied in 1992, Lambrix's Rule 60(b) motion sought to vacate that 1992 judgment.

Lambrix has since filed two amended motions for a COA in this Court, in which Lambrix reasserts or readopts the claims raised in his initial motion. In this order we address all of his claims cumulatively. After review of the record, we deny Lambrix's three motions for a COA and explain why.

I. CONVICTION AND INITIAL COLLATERAL PROCEEDINGS

Over the past 32 years, Lambrix has filed dozens of petitions, motions, original writs, and appeals in both state and federal courts. His current Rule 60(b) motion was merely the latest attempt to argue, once again, that some of his earlier claims, especially his ineffective-trial-counsel claims, were improperly procedurally defaulted or wrongly decided. Although our Court previously compiled an exhaustive narrative of Lambrix's lengthy journey through the court system, see Lambrix v. Sec'y, Fla. Dep't of Corr. , 756 F.3d 1246, 1250 (11th Cir. 2014) (hereinafter, "Lambrix III "), we review here some of the protracted history of Lambrix's case to give his current Rule 60(b) motion the necessary context.

A. Two Capital Murders in 1983

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. See In re Lambrix , 624 F.3d 1355, 1358-59 (11th Cir. 2010) ("Lambrix II "). 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. See 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. Lambrix III , 756 F.3d at 1250. At trial, counsel Robert Jacobs and Kinley Engvalson of the Office of the Public Defender for the 20th Judicial Circuit of Florida represented Lambrix. Id. With new appellate counsel, Lambrix appealed his 1984 convictions and two death sentences, raising multiple issues on appeal. Id. The Florida Supreme Court affirmed Lambrix's convictions and sentences. See Lambrix v. State , 494 So.2d 1143, 1145 (Fla. 1986).

B. Initial State Post-Conviction Proceedings in 1986-1988

Lambrix, through new collateral counsel, filed his first motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Lambrix III , 756 F.3d at 1250. Lambrix's first state post-conviction motion raised several claims, including claims of ineffective assistance of trial counsel. Id. The state trial court denied Lambrix's post-conviction motion on the merits of every claim. Id. Lambrix appealed this ruling, but the Florida Supreme Court affirmed. See Lambrix v. State , 534 So.2d 1151, 1154 (Fla. 1988).

Lambrix filed a counseled petition for a writ of habeas corpus in the Florida Supreme Court, and also filed a pro se habeas petition in the state trial court. Lambrix III , 756 F.3d at 1251. Ultimately, the Florida Supreme Court, in two separate opinions, denied Lambrix's state habeas petitions. See Lambrix v. Dugger , 529 So.2d 1110, 1112 (Fla. 1988) (denying original state habeas petition alleging ineffective assistance of appellate counsel); Lambrix v. State , 559 So.2d 1137, 1138 (Fla. 1990) (affirming trial court's denial of state habeas petition alleging ineffective assistance of state collateral counsel for failing to raise claim of juror misconduct in motion for post-conviction relief).

C. Initial Federal § 2254 Petition in 1988-1997

In 1988, Lambrix, through counsel, petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lambrix III , 756 F.3d at 1251. Thereafter, the district court granted counsel's motion to withdraw and appointed new counsel for Lambrix: Robert Josefsberg and Joel Lumer, private attorneys who volunteered with the Volunteer Lawyers Resource Center ("VLRC"). Id. Lambrix amended his § 2254 petition to raise 28 grounds for relief, including many claims based on the alleged "ineffective assistance of counsel rendered by both trial and appellate counsel with respect to many stages of the representation of [Lambrix]." Id. Thereafter, the district court appointed additional counsel Matthew Lawry, director of the VLRC, to assist attorneys Josefsberg and Lumer with Lambrix's initial § 2254 petition. Id.

In 1991, the district court held a five-day evidentiary hearing, during which Lambrix's counsel appeared and acted on Lambrix's behalf. Id. In 1992, the district court, in a 72-page order, denied every ineffective trial and appellate counsel claim in Lambrix's § 2254 petition on the merits. Id. at 1251-52. The district court did not conclude that any of Lambrix's ineffective-trial-counsel or ineffective-appellate-counsel claims were procedurally defaulted. Id. at 1252.

The district court also found that four other claims raised in a later-filed amendment were "procedurally barred because they were never raised on direct appeal nor within the two-year limit provided for by the rules governing [Rule] 3.850 motions." Id. at 1252 n.9. Notably, though, the district court alternatively denied these four claims on the merits .¹ Id.

Lambrix appealed. Id. at 1252. Shortly thereafter, this Court granted counsel Lumer's motion to withdraw. Id. Counsel Lawry and Josefsberg remained as Lambrix's counsel. Id. On appeal, Lambrix asserted that (1) his trial counsel rendered ineffective assistance at the guilt and penalty phases and (2) his appellate counsel rendered ineffective assistance on direct appeal. Id.

After briefing and oral argument, this Court reviewed the merits of the § 2254 claims raised on appeal, including Lambrix's ineffective-trial-and-appellate-counsel claims, and affirmed the district court's denial of Lambrix's initial § 2254 petition. See Lambrix v. Singletary , 72 F.3d 1500 (11th Cir. 1996), aff'd , 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (hereinafter, "Lambrix I "). In particular, this Court discussed at length, and ultimately denied on the merits, Lambrix's claim that his trial counsel rendered ineffective assistance at the penalty phase and that his appellate counsel did so too on direct appeal. Id. at 1504-07.

This Court also decided on the merits Lambrix's claim that his trial counsel did not inform him that he had the right to testify at his second trial and that the ultimate decision belonged to him. In rejecting that claim on the merits, we concluded:

Lambrix's claim that he was unaware of his right to testify is dubious considering the evidence he has adduced concerning his attempt to assert that right in his first trial. Moreover, after receiving an evidentiary hearing on this issue before the district court, Lambrix adduced no evidence supporting his allegation that counsel failed to adequately inform him of the right to testify. Therefore, Lambrix has simply failed to show that some action or inaction by counsel deprived him of "the ability to choose whether or not to testify in his own behalf."

Id. at 1508 (quoting United States v. Teague , 953 F.2d 1525, 1534 (11th Cir. 1992) ). Contrary to Lambrix's contentions, his § 2254 claims were decided on the merits.

II. LAMBRIX'S SEVEN SUCCESSIVE STATE POST-CONVICTION PETITIONS

While simultaneously pursuing habeas relief through his initial § 2254 proceedings in federal court, Lambrix, with the assistance of counsel Lawry and Josefsberg, filed a second and successive state motion for post-conviction relief pursuant to Florida Rules of Criminal Procedure 3.850 and 3.851, which was denied. Lambrix III , 756 F.3d at 1253. The Florida Supreme Court affirmed the state trial court's denial because Lambrix's claims were untimely or impermissibly successive under state law and, thus, were procedurally barred under state law. See Lambrix v. State , 698 So.2d 247, 248 (Fla. 1996). The Florida Supreme Court denied Lambrix's request for rehearing. See Lambrix III , 756 F.3d at 1254.

Lambrix, with the assistance of counsel Josefsberg and additional VLRC counsel Steven Goldstein, also filed a successive state habeas petition. See Lambrix v. Dugger , No. 92-4539 (11th Cir. Mar. 3, 1993) (unpublished). The Florida Supreme Court denied that counseled successive state habeas petition. See Lambrix v. Singletary , 641 So.2d 847, 849 (Fla. 1994) (denying Lambrix's state habeas petition alleging Espinosa error and ineffective assistance of appellate counsel), reh'g denied (Sept. 8, 1994).

In May 2000, the Florida state courts appointed the Capital Collateral Regional Counsel ("CCRC") to serve as Lambrix's state collateral counsel. Lambrix III , 756 F.3d at 1254-55. CCRC-South litigation director Todd Scher served as Lambrix's state collateral counsel from June 2000 to May 2002. Id. at 1255. CCRC-South counsel Dan Hallenberg served as Lambrix's state collateral counsel from May 2002 to October 2004. Id. From October 2004 until the present, CCRC-South...