Lambrix v. Sec'y, No. 13–11917.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: HULL
• Citation: 756 F.3d 1246
• Parties: Cary Michael LAMBRIX, a.k.a. Michael Lambrix, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Docket Number: No. 13–11917.
• Decision Date: 26 June 2014

756 F.3d 1246

Cary Michael LAMBRIX, a.k.a. Michael Lambrix, Petitioner–Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 13–11917.

United States Court of Appeals,
Eleventh Circuit.

June 26, 2014.

[756 F.3d 1248]

Cary Michael Lambrix, Raiford, FL, pro se.

William Mckinley Hennis, III, Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Petitioner–Appellant.

Scott A. Browne, Sara Elizabeth Macks, Attorney General's Office, Tampa, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:13–cv–00226–JES–SPC.
Before CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:

Petitioner Cary Lambrix, a Florida prisoner sentenced to death, appeals the district court's denial of his pro se “Motion for Appointment of Substitute Collateral Counsel,” under 18 U.S.C. § 3599, to aid him in preparing and filing a second or successive 28 U.S.C. § 2254 federal habeas petition based on Martinez v. Ryan, 566 U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which announced an equitable rule whereby a federal petitioner may establish cause, in narrow circumstances, to excuse

[756 F.3d 1249]

the procedural default of an ineffective-assistance-of-trial-counsel claim.

Lambrix's motion for substitute counsel alleges that (1) his initial state collateral counsel failed to raise ineffective-trial-counsel claims; (2) Martinez 's equitable rule now allows Lambrix to bring those procedurally-defaulted claims in a successive § 2254 habeas petition; (3) Lambrix's new “state collateral counsel has been promising to initiate a ‘Martinez v. Ryan' collateral action now for at least six months, and has not actually do [ne] so yet”; and (4) “because of state collateral counsel's lack of meaningful communication,” Lambrix requests the appointment of “substitute counsel” to prepare and file a successive § 2254 petition under Martinez raising ineffective-trial-counsel claims.

After review of the record and the parties' counseled briefs in this appeal and with the benefit of oral argument, we affirm because it would be futile to appoint counsel to present a Martinez-based claim. As discussed herein, Lambrix's proposed claims are barred and futile for reasons unrelated to the merits of any substantive ineffective-trial-counsel claim.

First, Martinez does not apply at all to Lambrix's motion because (1) Lambrix's state collateral counsel actually raised ineffective-trial-counsel claims in Lambrix's initial state post-conviction proceedings in 1986–1988; (2) Lambrix's federal counsel also raised ineffective-trial-counsel claims in his initial § 2254 petition; (3) in 1992 the district court found that those claims were not procedurally defaulted; (4) consequently, both the district court (in 1992) and this Court (in 1996) reviewed the merits of Lambrix's ineffective-trial-counsel claims; and (5) thus, those claims were not deemed procedurally defaulted.

Second, Lambrix's proposed ineffective-trial-counsel claims are futile because they are impermissibly successive under 28 U.S.C. § 2244(b), and Martinez does not allow Lambrix to overcome the statutory bar against filing successive § 2254 petitions.

Third, to the extent that Lambrix seeks to raise new ineffective-trial-counsel claims, Lambrix's proposed claims are time-barred under AEDPA's statute of limitations in 28 U.S.C. § 2244(d).¹ And, the equitable rule in Martinez “applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding” and “has no application to the operation or tolling of the § 2244(d) statute of limitations” for filing a § 2254 petition. Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 943 (11th Cir.2014) (citing Arthur v. Thomas, 739 F.3d 611, 629–31 (11th Cir.2014)).

Fourth, Martinez did not create a freestanding claim for relief based on ineffective state collateral counsel and provides no basis to reopen Lambrix's time-barred and impermissibly successive claims.

I. BACKGROUND

Over the past 30 years, Lambrix has filed dozens of petitions, motions, original writs, and appeals in both state and federal court. We start by reviewing that procedural history. Due to the nature of Lambrix's present Martinez-based motion, we focus on the ineffective-trial-counsel claims raised in prior state and federal proceedings, the multiple counsel who represented Lambrix in those proceedings, and the merits-based resolution of those ineffective-trial-counsel claims.

[756 F.3d 1250]

A. Criminal Conduct

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 then ate dinner with his girlfriend, 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.

B. State Trial and Direct Appeal

In 1984, Lambrix was convicted of two counts of first-degree murder and sentenced to death for the 1983 murders of Moore and Bryant. At trial, counsel Robert Jacobs and Kinley Engvalson of the Office of Public Defender for the 20th Judicial Circuit of Florida represented Lambrix.

Then, in his initial direct appeal, Lambrix had new counsel: J.L. LeGrande and Barbara LeGrande. Lambrix, through his new counsel, appealed his 1983 convictions and two death sentences. Lambrix raised multiple issues on appeal. The Florida Supreme Court affirmed Lambrix's convictions and sentences. See Lambrix v. State, 494 So.2d 1143, 1145 (Fla.1986).² The direct appeal does not appear to have involved an ineffective-trial-counsel claim.³

C. State Post–Conviction Proceedings

Lambrix, through new counsel Larry Spalding and Billy Nolas from the Collateral Capital Representative (“CCR”) in Tallahassee, Florida, filed his first motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.⁴ Lambrix's first state post-conviction motion raised several claims, including these ineffective-assistance-of- trial-counsel claims: (1) failure to investigate, develop, and present a voluntary intoxication defense during the guilt phase; (2) failure to investigate, develop, and present evidence of statutory and non-statutory mitigating factors during the penalty phase; (3) failure to renew, supplement, and litigate a motion for change of venue; (4) failure to adequately cross-examine and impeach key State witnesses; (5) failure to secure Lambrix's presence during a portion of voir dire; (6) failure to properly exercise peremptory challenges; ⁵ and (7) failure to fully inform Lambrix of his right to testify on his own behalf. After a non-evidentiary hearing, the state trial court denied Lambrix's post-conviction motion on the merits of every claim and denied Lambrix's counseled motion for rehearing.

Lambrix, with the assistance of CCR counsel Spalding and Nolas, appealed the denial of his first state post-conviction motion. Lambrix raised several claims, including that his trial counsel were ineffective

[756 F.3d 1251]

in failing to develop (1) evidence that would have entitled Lambrix to jury instructions on a voluntary intoxication defense and (2) mitigation evidence related to Lambrix's alcoholism. The Florida Supreme Court affirmed the state trial court's denial of Lambrix's post-conviction motion. See Lambrix v. State, 534 So.2d 1151, 1154 (Fla.1988). In particular, the Florida Supreme Court concluded that Lambrix's ineffective-trial-counsel claims failed on the merits because Lambrix “failed to meet the requirements of the second [ i.e., prejudice] prong of the Strickland test.” See id. at 1153–54.

Lambrix, again through CCR counsel Spalding and Nolas, petitioned the Florida Supreme Court for a writ of habeas corpus.⁶ Then, proceeding pro se, Lambrix petitioned the state trial court for a writ of habeas corpus. 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 a claim of juror misconduct).

D. Initial Federal § 2254 Petition

In 1988, Lambrix, through CCR counsel Spalding and Nolas, petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Thereafter, the district court granted CCR's motion to withdraw as counsel and appointed new counsel for Lambrix: Robert Josefsberg and Joel Lumer, private attorneys who volunteered with the Volunteer Lawyers Resource Center (“VLRC”).

With the assistance of attorneys Josefsberg and Lumer, Lambrix amended his § 2254 petition. Lambrix raised 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].”

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.

In 1991, the district court held a five-day evidentiary hearing, during which Lambrix's counsel appeared and acted on Lambrix's behalf. After this hearing, the district court reviewed the merits of Lambrix's counseled § 2254 petition.⁷

In particular, the district court considered the merits of these ineffective- trial-counsel claims: (1) failure to sufficiently argue certain motions before the trial judge; (2) failure to investigate and present sufficient evidence of Lambrix's history of substance abuse at the guilt and...