from the United States District Court for the Southern
District of Florida
ED CARNES, Chief Judge, TJOFLAT, and HULL, Circuit Judges.
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.
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.
CONVICTION AND INITIAL COLLATERAL PROCEEDINGS
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.
Two Capital Murders in 1983
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.
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).
Initial State Post-Conviction Proceedings in
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).
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 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
Initial Federal § 2254 Petition in 1988-1997
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.
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.
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. Id.
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
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 (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.
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
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.
LAMBRIX'S SEVEN SUCCESSIVE STATE POST-CONVICTION
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.
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,
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
litigation director William Hennis has served as
Lambrix's state collateral counsel. Id.
the assistance of state collateral counsel, Lambrix filed
several additional successive state motions for
post-conviction relief. See Lambrix v. State, 39
So.3d 260, 262-66 (Fla. 2010) (third state post-conviction
proceeding, outlining extensive history of the case);
Lambrix v. State, 124 So.3d 890 (Fla. 2013),
reh'g denied (Oct. 17, 2013) (fourth and fifth
state post-conviction proceedings).
counsel Hennis, Neal Dupree, and Craig Trocino assisted
Lambrix in his successive state post-conviction proceedings.
Lambrix III, 756 F.3d at 1255. After several
evidentiary hearings, the state post-conviction court denied
relief on all of Lambrix's claims, and the Florida
Supreme Court affirmed. See Lambrix v. State, 39
So.3d 260, 262 (Fla. 2010), cert. denied,
Lambrix v. Florida, 562 U.S. 1145, 131 S.Ct. 917
(2011) (mem.); Lambrix v. State, 124 So.3d 890, 893
(Fla. 2013) (concluding that Lambrix's fourth and fifth
state post-conviction motions were "completely devoid of
merit" and denying Lambrix's petition for a writ of
prohibition), reh'g denied (Oct. 17, 2013),
cert. denied, Lambrix v. Florida, ___ U.S.
___, 134 S.Ct. 1789 (2014) (mem.).
March 2013, Lambrix, with the assistance of counsel Hennis,
filed a sixth state post-conviction motion, which alleged
that Lambrix "was entitled to raise procedurally barred
claims of ineffective assistance of counsel based on
Martinez." See Lambrix v. State, No.
SC13-1471, 2014 WL 1271527, at *1 (Fla. Mar. 27, 2014)
(citing Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309
(2012)). The state post-conviction court denied relief, and
the Florida Supreme Court affirmed. See id. (denying
Lambrix's allegedly Martinez-based motion as
meritless and untimely).
an understanding of the Supreme Court's ruling in
Martinez (and in a later companion decision,
Trevino v. Thaler, 569 U.S. ___, 133 S.Ct. 1911
(2013)), is important to our ultimate conclusion, we briefly
explain those decisions. In Martinez, the U.S.
Supreme Court enunciated a narrow exception to the general
rule that the lack of an attorney or attorney error in state
post-conviction proceedings does not establish cause to
excuse the procedural default of a substantive claim. 566
U.S. at 8, 13-14, 132 S.Ct. at 1315, 1318. The Supreme Court,
however, set strict parameters on the application of this
exception. It applies only where (1) state law
requires a prisoner to raise
ineffective-trial-counsel claims during an initial collateral
proceeding and precludes those claims during direct appeal;
(2) the prisoner failed to properly raise
ineffective-trial-counsel claims during the initial
collateral proceeding; (3) the prisoner either did not have
counsel or his counsel was ineffective during those initial
state collateral proceedings; and (4) failing to excuse the
prisoner's procedural default would result in the loss of
a "substantial" ineffective-trial-counsel claim.
Id. at 14, 132 S.Ct. at 1318; see also Arthur v.
Thomas, 739 F.3d 611, 629 (11th Cir. 2014) (setting
forth the Martinez requirements). The Supreme Court
later extended Martinez's rule to cases where
state procedures, as a practical matter, make it
"virtually impossible" to actually raise
ineffective-trial-counsel claims on direct appeal.
Trevino, 569 U.S. at, 133 S.Ct. at 1918-21.
November 30, 2015, the Governor signed a death warrant. On
December 15, 2015, Lambrix filed his seventh successive
motion for post-conviction relief in Florida state court and
a motion for post-conviction DNA testing. On December 21,
2015, the trial court denied both his successive motion ...