Response to Petition for Writ of Habeas Corpus and Motion to Dismiss the Unauthorized Petition

CARY MICHAEL LAMBRIX,

Petitioner, CASE NO. SC11-1138 v. L.T. No. 83-CF-12 DEATH PENALTY CASE EDWIN G. BUSS, ETC.,

Respondents. ______/

RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO DISMISS THE UNAUTHORIZED PETITION

COME NOW, Respondents, Kenneth S. Tucker,1 Secretary,

Florida Department of Corrections, Etc., by and through the undersigned counsel, and hereby respond to the Petition for Writ of Habeas Corpus filed in the above-styled case. Respondents respectfully submit that the petition should be dismissed, and state as grounds therefore:

FACTS AND PROCEDURAL HISTORY

The State does not accept either Lambrix’s statement of facts, which is entirely comprised of misleading and/or inaccurate argument, or, the procedural history, which is largely non-existent. Consequently, the State submits the following facts and procedural history.

1 Kenneth S. Tucker has replaced Edwin G. Buss as the Secretary of the Florida Department of Corrections. The procedural history in this case is lengthy and was outlined recently in this Court’s opinion in Lambrix v. State,

39 So. 3d 260, 262-265 (Fla. 2010).2 This Court provided the following:

This death case, which has been in the judicial system for a substantial period of time, has a lengthy procedural history. The first trial ended in a mistrial after the jury could not agree on a verdict. A second trial was held before a different judge, Judge Richard M. Stanley, and the jury found Lambrix guilty of both counts of murder. After a penalty phase hearing, the jury recommended a sentence of death by a vote of ten to two for the murder of Aleisha Bryant and by a vote of eight to four for the murder of Clarence Moore. The trial court sentenced the defendant to death, after finding five aggravating circumstances [FN2] and no mitigation in regard to the murder of Moore and four aggravating [FN3] and no mitigating circumstances in regard to the murder of Bryant. [FN2] The trial judge found the following five aggravating circumstances: (1) the capital felonies were committed by a person under sentence of imprisonment; (2) the defendant was previously convicted of another capital felony; (3) the capital felony was committed for pecuniary gain; (4) the capital felonies were especially heinous, atrocious, or cruel (HAC); and (5) the capital felonies were committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). [FN3] The trial judge found all of the same aggravating factors except that the capital felony was committed for pecuniary gain. On appeal, this Court discussed the relevant facts of the underlying crime:

2 Certiorari review of that decision was denied on January 10, 2011. Lambrix v. Florida, 131 S. Ct. 917 (2011). 2 On the evening of February 5, 1983, Lambrix and Frances Smith, his roommate, went to a tavern where they met Clarence Moore, a/k/a Lawrence Lamberson, and Aleisha Bryant. Late that evening, they all ventured to Lambrix’ trailer to eat spaghetti. Shortly after their arrival, Lambrix and Moore went outside. Lambrix returned about twenty minutes later and requested Bryant to go outside with him. About forty-five minutes later Lambrix returned alone. Smith testified that Lambrix was carrying a tire tool and had blood on his person and clothing. Lambrix told Smith that he killed both Bryant and Moore. He mentioned that he choked and stomped on Bryant and hit Moore over the head. Smith and Lambrix proceeded to eat spaghetti, wash up and bury the two bodies behind the trailer. After burying the bodies, Lambrix and Smith went back to the trailer to wash up. They then took Moore’s Cadillac and disposed of the tire tool and Lambrix’ bloody shirt in a nearby stream. On Wednesday, February 8, 1983, Smith was arrested on an unrelated charge. Smith stayed in jail until Friday. On the following Monday, Smith contacted law enforcement officers and advised them of the burial. A police investigation led to the discovery of the two buried bodies as well as the recovery of the tire iron and bloody shirt. A medical examiner testified that Moore died from multiple crushing blows to the head and Bryant died from manual strangulation. Additional evidence exists to support a finding that Lambrix committed the two murders in question. Lambrix v. State, 494 So.2d 1143, 1145 (Fla. 1986). Some of the additional evidence included testimony by Deborah Hanzel, who met Lambrix after the murders and saw him in a black Cadillac. She and her boyfriend, Preston Branch, helped Lambrix retrieve some of his possessions from Lambrix’s trailer and on the way back home, Lambrix offered to show them where two bodies were buried and made incriminating statements. On appeal, Lambrix raised five issues. [FN4] This Court affirmed the convictions and sentences of death. 494 So.2d at 1148. 3 [FN4] Lambrix raised the following claims: (1)it was unconstitutional to exclude jurors opposed to the death penalty; (2)the trial court erred in excluding a certain juror because it violated the standards set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (3)the trial court erred by limiting his cross-examination of the State’s key witness, Frances Smith; (4)the trial court erred in restricting the cross-examination of Connie Smith (no relation to Frances), a special agent with the Florida Department of Law Enforcement (FDLE), concerning a certain notebook found in a vehicle belonging to one of the victims; and (5)the trial court erred in allowing the medical examiner, Dr. Schultz, to use the term “homicide” in reference to the deaths of the victims because there was no proper predicate for that conclusion. A death warrant for Lambrix was issued, and his execution was scheduled for November 30, 1988. Lambrix filed a motion for postconviction relief in the trial court and a petition for writ of habeas corpus in this Court. In his habeas petition, Lambrix asserted that his appellate counsel was ineffective in failing to argue numerous issues. [FN5] This Court denied habeas relief. See Lambrix v. Dugger, 529 So.2d 1110 (Fla. 1988). During this time, Lambrix’s motion for postconviction relief was also proceeding before the circuit court. After the circuit court summarily denied postconviction relief, Lambrix appealed this decision, raising two claims. [FN6] This Court denied relief. See Lambrix v. State, 534 So.2d 1151 (Fla. 1988). Lambrix then filed a second petition for writ of habeas corpus with the trial court, which was summarily denied. On appeal, Lambrix raised one issue: that his collateral counsel was ineffective for failing to raise a claim of juror misconduct in his prior motion for postconviction relief. This Court again denied relief. Lambrix v. State, 559 So.2d 1137 (Fla. 1990). Lambrix also filed a second motion for postconviction relief in the circuit court, which was summarily denied because “his claims were without merit and procedurally barred as untimely and successive or abusive.” Lambrix v. State, 698 So.2d 247, 248 (Fla. 1996). In affirming the summary denial, this Court concluded that Lambrix was untimely in 4 presenting the claim that he should have been allowed to represent himself in postconviction proceedings, particularly since Lambrix waited six years to raise this claim. Id. at 248. [FN5] This Court addressed only two of his claims in its written opinion: (1)whether appellate counsel was ineffective because he failed to argue several issues regarding voir dire and the defendant’s absence; and (2)whether appellate counsel was ineffective for not raising whether the trial judge erred in refusing to instruct the jury as to voluntary intoxication. [FN6] Lambrix raised the following claims: (1)trial counsel was ineffective in failing to develop additional evidence that would have entitled Lambrix to jury instructions on voluntary intoxication; and (2)trial counsel was ineffective in not introducing evidence of Lambrix’s alcoholism during the penalty phase. Lambrix also filed postconviction attacks in the federal courts. He filed a federal habeas petition, raising numerous claims including whether jury instructions on HAC and CCP violated Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). See Lambrix v. Dugger, No. 88-12107-CIV- Zloch (S.D.Fla. May 12, 1992), aff’d sub nom. 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). Lambrix’s Espinosa claim was eventually denied. [FN7] [FN7] After the federal district court denied relief, Lambrix appealed to the United States Court of Appeals for the Eleventh Circuit. Because this Court had not been given an opportunity to address the substance of the Espinosa claim, the Eleventh Circuit stayed the proceedings and directed Lambrix to return to the Supreme Court of Florida to settle any unresolved issues regarding this claim. Lambrix v. Dugger, No. 92-4539 (11th Cir. Mar. 3, 1993). In Lambrix v. Singletary, 641 So.2d 847 (Fla. 1994), this Court held that Lambrix’s Espinosa claim was procedurally barred because although it was raised before the trial court, appellate counsel failed to preserve the error on appeal. Further,

5 this Court held that Lambrix was procedurally barred from asserting that appellate counsel was ineffective based on this failure since he had previously litigated other alleged instances of ineffective appellate counsel in prior habeas proceedings. Id. at 848. The Eleventh Circuit held that the decision in Espinosa could not retroactively apply under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Lambrix v. Singletary, 72 F.3d 1500, 1503 (11th Cir. 1996). The Supreme Court of the United States granted certiorari and affirmed the Eleventh Circuit court’s decision, holding that Espinosa v. Florida was a new rule and the failure to apply this case retroactively could not be the basis for federal habeas relief. Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). As to the remaining issues, the Eleventh Circuit then affirmed the denial of relief of Lambrix’s federal habeas corpus petition after an evidentiary hearing. Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996). The Eleventh Circuit denied relief without further discussion as to certain claims. [FN8] After analysis, the Eleventh Circuit denied Lambrix’s claim that he received ineffective assistance during the sentencing phase of his trial because counsel failed to investigate and present mitigating evidence of Lambrix’s alcoholism and drug dependence and evidence that Lambrix had been subject to sexual and physical abuse as a child. Lambrix, 72 F.3d at 1504-06. The Eleventh Circuit also denied Lambrix’s claim that appellate counsel rendered ineffective assistance by failing to present certain sentencing issues, that his second trial conducted after the first trial ended in mistrial was barred by double jeopardy, and that Lambrix was denied his fundamental right to testify. Id. at 1506-08. [FN8] The Eleventh Circuit did not elaborate on the following claims, but simply denied them as meritless: (1)Lambrix’s counsel rendered ineffective assistance during the guilt phase; (2)the trial court erred in refusing to grant a change in venue; (3)the trial court denied Lambrix his right to confront witnesses against

6 him by limiting the cross-examination of some witnesses; (4)the trial court erred by failing to give a jury instruction on voluntary intoxication; and (5)the trial court made miscellaneous erroneous rulings and instructions during sentencing. Lambrix has filed numerous pro se extraordinary writ petitions that this Court has either denied or dismissed. [FN9] During postconviction proceedings and before this Court, Lambrix also filed a pro se complaint against some of his attorneys. He also previously sought to have this entire Court disqualified because Chief Justice Quince is recused. In his most recent filing, Lambrix filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 against his attorneys, Governor Charlie Crist, Clerk of Court Thomas Hall, Chief Justice Quince, and others, asserting that there is a conspiracy to deny meritorious claims against death penalty defendants. Counsel for Lambrix consequently filed a motion to withdraw, asserting that this action creates a conflict. Lambrix then filed a pro se motion waiving any potential conflict for the limited scope of permitting oral argument to continue. This Court denied counsel’s motion to withdraw. [FN9] See, e.g., Lambrix v. Reese, 705 So.2d 902 (Fla. 1998) (denying petition for writ of mandamus); Lambrix v. State, 727 So.2d 907 (Fla. 1998) (denying petition for writ of prohibition); Lambrix v. State, 766 So.2d 221 (Fla. 2000) (unpublished order dismissing petition for writ of mandamus as moot); Lambrix v. State, 900 So.2d 553 (Fla. 2005) (unpublished order dismissing petition for writ of mandamus); Lambrix v. State, 944 So.2d 345 (Fla. 2006) (unpublished order dismissing petition for writ of mandamus).

Lambrix v. State, 39 So. 3d 260, 260-265 (Fla. 2010).

Since this Court issued its 2010 opinion, Lambrix has continued his litigious ways, filing additional motions for post-conviction relief and habeas petitions. The fourth

7 successive motion for post-conviction relief was denied by the

Honorable Christine Greider and is pending before this Court in

case number SC10-1845.

In addition, the Eleventh Circuit Court of Appeals recently

denied Lambrix’s pro se request to file a second or successive

federal petition for writ of habeas corpus. In re Lambrix, 624

F.3d 1355 (11th Cir. 2010). Lambrix also filed a pro se original habeas petition in the United States Supreme Court in February,

2011, which was denied May 23, 2011. In re Lambrix, 131 S. Ct.

2907 (2011).

Concurrently with the filing of his fifth successive motion to vacate based on newly discovered evidence, Lambrix filed

“Defendant’s Motion to Disqualify Judge and the Entire Twentieth

Judicial Circuit” on July 13, 2011. On July 18, 2011, the circuit court rendered an “Order Denying Defendant’s Motion to

Disqualify Judge and Circuit” and the order was filed with the clerk’s office on July 21, 2011.

Lambrix’s fifth successive motion for post-conviction relief remains pending before Judge Greider. A case management hearing was held on September 2, 2011, and the parties are awaiting a decision either denying the successive motion or an order to conduct an evidentiary hearing.

8 ARGUMENT

THE INSTANT PETITION SHOULD BE DISMISSED AS AN UNAUTORIZED SUCCESSIVE HABEAS PETITION.

This Is An Unauthorized, Untimely Attempt To Raise Rule 3.851 Claims In This Court Under Its Original Jurisdiction In A Successive Habeas Petition And Relitigate Prior Adverse Decisions Of This Court.

In Baker v. State, 878 So. 2d 1236, 1238-1243 (Fla. 2004), this Court recognized the proliferation of inappropriate original habeas filings in this Court, noting that habeas jurisdiction in habeas courts is limited:

. . .“[H]abeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the [rule].” Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001); see also Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996) (“The remedy of habeas corpus is not available as a substitute for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure.”). Nor can habeas corpus be used as a means to seek a second appeal or to litigate issues that could have been or were raised in a motion under rule 3.850. See Breedlove v. Singletary, 595 So.2d 8, 10 (Fla. 1992) ( “Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been ... or were raised on direct appeal.”); Mills v. Dugger, 574 So.2d 63, 65 (Fla. 1990) (“[H]abeas corpus is not to be used ‘for obtaining additional appeals of issues which were raised, or should have been raised, on direct appeal or which were waived at trial or which could have ... or have been, raised in’ prior postconviction filings.”); see also Patterson v. State, 664 So.2d 31, 32 (Fla. 4th DCA 1995) (affirming circuit court’s denial of petition for writ of habeas corpus “[b]ecause it [was] apparent that [the] Defendant [was] seeking an untimely motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850”). 9

This Court in Baker concluded that it would “dismiss” such

inappropriate pleadings as unauthorized rather than continue to

deny such “petitions either on the merits or on grounds that the

claims raised are procedurally barred from being considered in

collateral postconviction relief proceedings.3 878 So. 2d at

1242-43. See also King v. State, 808 So. 2d 1237, 1246 (Fla.

2002) (claims barred in successive habeas petition when the facts upon which they were based were known at the time of the earlier petition or were simply an attempt to relitigate previously rejected post-conviction claims) (citing Johnson v.

Singletary, 647 So. 2d 106, 109 (Fla. 1994).4 Accordingly, the instant petition should be dismissed.

Lambrix is not helped by providing an alternate title for

this petition as a plea for extraordinary relief. This Court has

held that the “all writs provision of [Article V], section

3(b)(7) does not confer added appellate jurisdiction on this

3 Lambrix has had at least two prior state habeas petitions decided before this Court. See Lambrix v. State, 559 So. 2d 1137 (Fla. 1990) (affirming trial court’s denial of Lambrix’s habeas petition alleging ineffective assistance of counsel); Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994) (denying habeas petition alleging Espinosa error and ineffective assistance of appellate counsel). 4Lambrix’s claims would also be barred by the law of the case doctrine and res judicata. See Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004) (discussing application of res judicata to claims previously litigated on the merits). 10 Court, and this Court’s all writs power cannot be used as an

independent basis of jurisdiction as petitioner is hereby

seeking to use it.” St. Paul Title Ins. Corp. v. Davis, 392 So.

2d 1304, 1305 (Fla. 1980). Rather, it operates as an aid to the

Court in exercising its “ultimate jurisdiction.” Williams v.

State, 913 So. 2d 541, 543 (Fla. 2005). In the instant case,

this petition is simply a reassertion of issues he

unsuccessfully raised in his original and successive post-

conviction motions and previous habeas petitions. As such,

extraordinary writ jurisdiction is improper. The instant

petition should be dismissed.

Finally, Lambrix has by now long since exhausted any

legitimate or, at least, fairly arguable post-conviction claims.

He has received all the process he is due, and, then some. He is

now in the position of simply repeating meritless claims and

clearly barred claims, as the State argued in its response to the merits of his fourth and fifth successive motions for post- conviction relief. Such litigation tactics should not be condoned or accepted, even if filed, as Lambrix’s collateral counsel observes, at the “specific request” of Mr. Lambrix.

(Habeas Petition at 22, n.5). It is clear that this is essentially a pro se pleading by Lambrix [adopted or edited by counsel], which would explain its complete indifference to the

11 facts developed during trial and previous federal and state

post-conviction proceedings. As the Third District noted in

James v. State, 17 So. 3d 339, 341 (Fla. 3d DCA 2009):

We do conclude he has exhausted his post-conviction remedies and certainly has exhausted us in the process. We also conclude James has abused the judicial process by his multiple, duplicate filings, and filings within filings.[FN3] As we have said on many occasions, “[a]ctivity of this type not only wastes public resources, but also diminishes the ability of the courts to devote their finite resources to the consideration of legitimate claims.” Hepburn v. State, 934 So.2d 515, 518 (Fla. 3d DCA 2005) (citing State v. Spencer, 751 So.2d 47, 48 (Fla. 1999)). (footnote omitted).

The instant pleading is inappropriate and should be

dismissed with prejudice. Tate v. McNeil, 983 So. 2d 502, 503-

504 (Fla. 2008) (noting that sanctions against a litigant for such abusive filings is justified by the Court’s concerns for

“the protection of the rights of others to have the Court conduct timely reviews of their legitimate filings.”).

While the Respondent submits Lambrix’s petition should be

dismissed, it will briefly attempt to address the merits of some

of the claims made by Lambrix.

12 I. Holland v. Florida Did Not Create A New Constitutional Claim, Much Less A Constitutional Right To Revisit Or Relitigate Past Claims Either Adjudicated On The Merits Or Based Upon Long Established Procedural Bars

Petitioner argues that the Supreme Court’s decision in

Holland v. Florida, 560 U.S. ----, ---- 130 S. Ct. 2549, 2560,

177 L.Ed.2d 130 (2010), constitutes a new rule of constitutional

law which requires an examination of his previously rejected

claims. There is no support in law or fact for interpreting

Holland in this manner. In Holland, the Court held that because

the federal habeas corpus AEDPA one-year statutory deadline is

not a jurisdictional bar, it is subject to equitable tolling in

limited and appropriate circumstances where an attorney’s

misconduct goes beyond mere negligence. “The doctrine of

equitable tolling preserves a plaintiff’s claims when strict

application of the statute of limitations would be inequitable.”

United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000)

(quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)).

This case does not involve an untimely federal habeas corpus

petition for which equitable tolling might be appropriate.

Holland clearly does not address any issue or claim presented in this case.

Further, even if Holland does support a review of

previously rejected claims - which it most certainly does not -

Lambrix would not be entitled to relief. For example, Lambrix 13 mentions his claim regarding witness Hanzel. (Habeas Petition at

29). However, Lambrix received a full and fair evidentiary

hearing on this claim before it was rejected by the post-

conviction court on his third successive motion for post-

conviction relief. This Court affirmed on appeal. See Lambrix v.

State, 39 So. 3d 260, 272-273 (Fla. 2010). This Court affirmed

the lower court which found her partial recantation was not

credible, and, it did not meet the test for a new trial on the

basis of newly discovered evidence. Holland provides no support

for resurrecting any claims previously found procedurally

barred, much less claims adjudicated against Lambrix on the

merits.5 See Jimenez v. State, 997 So. 2d 1056 (Fla. 2008) (“To be considered timely filed as newly discovered evidence, the successive rule 3.851 motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence”).

II. Petitioner’s 1983 Challenge To Lethal Injection Is Improper In A State Habeas Petition And Is Otherwise Without Merit.

As an initial matter, it is difficult to decipher Lambrix’s

claim. It is either a challenge to lethal injection, or, a

missive regarding counsel’s ability to represent Lambrix in a

5 Similarly, Lambrix’s claims regarding the alleged predisposition of his trial judge against capital defendants have been considered and rejected by this Court. Lambrix v. State, 39 So. 3d 260, 274-275 (Fla. 2010). 14 Section 1983 challenge in federal court. If Lambrix is, in fact,

raising a 1983 challenge to lethal injection, he is in the wrong

forum. Obviously, state court is not the proper forum for a

Section 1983, federal claim. If he is raising the issue of

counsel or representation in such a challenge, this Court recently addressed the issue in Darling v. State, 45 So. 3d 444,

455 (Fla. 2010). In Darling, this Court interpreted an

“extremely narrow window to allow CCRC attorneys to represent

capital defendants in section 1983 challenges, if, and only if,

they seek injunctive relief to challenge the State’s intended

method of execution.”

Petitioner provides no argument to suggest, much less

establish that Florida’s method of execution, lethal injection,

is unconstitutional. Indeed, his argument is so cryptic, it

should be deemed waived. Nonetheless, such a challenge should be

lodged in the first instance in the trial court, not an original

habeas action. Finally, this Court has recently affirmed lethal

injection as constitutional in light of the change of drugs from

sodium thiopental to pentobarbital. See Valle v. State, 70 So.

3d 530 (Fla. 2011) (“After reviewing the evidence and testimony

presented below, we conclude that Valle has failed to satisfy

the ‘heavy burden’ that Florida’s current lethal injection

procedures, as implemented by the DOC, are constitutionally

15 defective in violation of the Eighth Amendment of the United

States Constitution.”). Accordingly, his lethal injection claim,

such as it is, is without merit.

III, IV. Petitioner’s Attempt To Relitigate Previously Rejected Claims On The Basis Of Holland Is Frivolous.

This claim is truly puzzling, as it simply repeats his

meritless Holland claim and inserts cryptic argument to suggest

his convictions were unsupported by the evidence or was in some

way unconstitutionally obtained. Lambrix makes no attempt to

assert a claim of newly discovered evidence to support his

argument. He simply alleges snippets of argument to suggest he is actually innocent. Of course, Lambrix is not innocent and his arguments, brief and misleading as they may be, do not support his claim. For example, Lambrix repeats a previous claim that there was no “pond” on the property where he murdered the victims. However, aside from being untimely and procedurally barred, it is also without merit. In the sentencing order, the trial court found that Lambrix placed Miss Bryant’s head in a

“puddle of water” to ensure her death. At trial, aerial photographs were admitted which showed standing water in the area of the crime scene (DA-R. 1926-27). Thus, evidence that

there was no pond on the property would not contradict the trial

court’s finding that Miss Bryant was placed face down in a

“puddle.” 16 In Schlup v. Delo, 513 U.S. 298 (1995) and Sawyer v.

Whitley, 505 U.S. 333 (1992) the Court noted that “a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare,” and must be supported by

“new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial.”6 505 U.S. at 324.

Lambrix has not identified any “new reliable evidence” to support his previously rejected claims. Therefore, Lambrix has not offered a colorable claim of innocence warranting consideration of the merits of his claims. Indeed, this Court has previously rejected Lambrix’s claim that he has a freestanding right to challenge his convictions based upon

Schlup. See Lambrix v. State, 39 So. 3d 260, 266 (Fla. 2010)

(“Lambrix mischaracterizes the holding of Schlup, which does not

6 Lambrix has similarly failed to satisfy the test of Sawyer v. Whitley, 505 U.S. 333 (1992); under this decision, a defendant must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty. In this case, a jury recommended two death sentences, and the trial judge found five aggravating factors as to Moore and four as to Bryant: heinous, atrocious or cruel; cold, calculated and premeditated; under sentence of imprisonment; prior violent felony conviction (based on the contemporaneous murders); and pecuniary gain (as to Moore only). Judicial opinions have repeatedly upheld the applicability of all these factors. Lambrix, 494 So. 2d at 1148); Lambrix, 72 F.3d at 1508. Even if Lambrix’s current claims had merit, his convictions and sentences are not unreasonable in fact or law. 17 provide a freestanding claim to relitigate claims that are

procedurally barred.”).

While again, Lambrix’s argument is difficult to decipher

under Issue IV, he apparently maintains that he should be

allowed an “original post-conviction motion” on his claims of

ineffective assistance of counsel. Of course, as maintained

above, this is an inappropriate claim for a state habeas

petition. Nonetheless, the State will briefly address the two

primary areas of confusing argument asserted by Lambrix under this issue.

Lambrix first appears to argue that his jury was biased and

that voir dire was inadequately conducted by trial counsel. Of

course, these issues should have been raised, if at all, on

direct appeal, in a prior motion for post-conviction relief, or

a previous habeas petition alleging ineffective assistance of

appellate counsel. Lambrix has previously raised ineffective

assistance of counsel and related juror misconduct or publicity

claims, all of which have previously been rejected. See Lambrix

v. Dugger, 529 So. 2d 1110, 1111 (Fla. 1988) (rejecting a

“cluster of issues arising out of the jury selection process”);

Lambrix v. State, 559 So. 2d 1137, 1138 (Fla. 1990) (“We find

that the juror misconduct claim is without merit and that

counsel’s failure to brief such an issue does not constitute

18 ineffectiveness under the test enunciated in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984).”) (citations omitted). Lambrix’s attempt to litigate such a claim under the guise of ineffective assistance of trial counsel, at this late date, in an original habeas petition, is untimely, procedurally barred, and a clear abuse of the process.

See Aldridge v. State, 503 So. 2d 1257, 1258 (Fla. 1987) (a defendant may not raise “somewhat different facts” to support an ineffective assistance of counsel claim in a successive motion and such a claim is procedurally barred from review); Buenoano v. State, 708 So. 2d 941, 951 n.8 (Fla. 1998) (a defendant cannot continue to raise ineffective assistance of counsel claims in a “piecemeal fashion” by filing successive motions).

Lambrix also asserts that only he could testify to certain facts to contradict witness Francis Smith but was denied his constitutional right to testify, through the advice or actions of his trial counsel. Lambrix’s contention that he was prevented from testifying is an old one, and, one that does not gain strength from repetition. Lambrix, 72 F.3d at 1508.7 Any

7 As the Eleventh Circuit held in Lambrix, 72 F.3d at 1508: ...However, there is simply no evidence in the record that Lambrix was coerced not to testify in his second trial. Two months is sufficient time for Lambrix and counsel to discuss a new trial strategy which would permit Lambrix to testify on his own behalf, or for Lambrix to request other counsel who would allow him 19 consideration of this claim now is both time barred and procedurally barred. Further, allegations concerning the credibility of Francis Smith as well as Lambrix’s self-serving assertion of self-defense were made or could have been made in prior post-conviction proceedings.8 See Lambrix v. State, 39 So.

3d 260, 271 (Fla. 2010) (discussing witness Smith and Lambrix’s contention that he told Smith “(that he had to hit the male victim after he ‘went nuts’).” Lambrix’s assertion of self- defense does not constitute newly discovered evidence for the purpose of a successive motion for post-conviction relief, much less support a successive original habeas corpus action in this

Court.

As reflected in previous post-conviction proceedings,

Lambrix never gave counsel any defense other than “I didn’t do it” until 1986 [after trial] when Lambrix wrote to the Public

Defender investigator and stated that he could have asserted a

to exercise this right. Without evidence that Lambrix was subject to continued coercion, we cannot assume that Lambrix’s apparent acquiescence to a trial strategy in which he did not testify was anything but voluntary. 8 See Lambrix v. State, 698 So. 2d 247, 248 n.2 (Fla. 1996) (affirming summary denial of a number of claims, including: “3) Lambrix was deprived of effective assistance of counsel when his counsel forced him to choose between his right to testify and his right to assistance of counsel, failed to adequately cross- examine and impeach key state witnesses, failed to investigate and present a voluntary intoxication defense, failed to conduct jury selection in a reasonably competent manner...” 20 self-defense type of argument (PCR. [SC08-64] V22/4355). The

only thing that could now be done differently is to assert a

defense which was possible based on the more recent

representations of their client. If Mr. Lambrix had, at the time

of trial, given the defense that he did in 1986 (i.e., that

Lamberson had killed Aleisha Bryant and that Lambrix then got

into a fight with Lamberson who was killed in self-defense),

that defense would have been pursued. (PCR. V22/4387, 4397-98).

However, Lambrix was adamant about his defense that “he didn’t

do it” (PCR. V22/4391-4355). Lambrix’s allegations are nothing new, and, his attempt to resurrect this claim in this Court on the basis of Holland should be rejected.

Lambrix next asserts a theoretical exercise in speculation

about how victim Bryant died, attempting to cast doubt upon

strangulation as the cause of her death. (Habeas Petition at

14). Similarly, he attempts to cast doubt upon the outcome of

his case, by repeatedly referring to the case against him as

entirely circumstantial. While the State did present powerful

circumstantial evidence against Lambrix, it also provided direct

evidence in the form of testimony of witness Smith, to whom

Lambrix confided he murdered the victims. Aside from being

abusive, untimely and improper, the instant petition provides

21 nothing new or significant to cast any doubt upon Lambrix’s

convictions.

Lambrix now asserts that his case is in some way like

Porter v. McCollum, 130 S. Ct. 447 (2009). However, Lambrix’s

brief service in the peacetime military has nothing in common

with the defendant in Porter. [A related Porter, service injury

claim is currently pending in circuit court on Lambrix’s fifth

successive motion for post-conviction relief]. Porter

experienced extensive, hard, frontline combat in the Korean War,

and suffered post-traumatic stress syndrome as a result. Lambrix

never served in combat, and, fell down stairs and hurt his back

in a brief and unremarkable stint in the service. See Reed v.

Secretary, Florida Dept. of Corrections, 593 F.3d 1217, 1249

(11th Cir. 2010) (noting that the defendant’s extensive combat

service was critical to the Supreme Court’s decision in Porter).

Porter provides no support for Lambrix’s argument that his death

sentence is unwarranted or disproportionate. The jury was aware

that Lambrix was discharged after a brief stint in the peacetime

army after an accident. Any attempt to buttress or embellish

evidence already presented during the penalty phase would be

untimely at this late date, and, most certainly does not cast

any doubt upon the outcome of his case. See Blanco v. State, 702

So. 2d 1250, 1252 (Fla. 1997) (To qualify as newly discovered

22 evidence, the asserted facts must have been unknown by the trial

court, by the party, or by counsel at the time of trial, and it

must appear that defendant or his counsel could not have known

them by the use of diligence [and] to prompt a new trial, “the

newly discovered evidence must be of such nature that it would

probably produce an acquittal on retrial.”) (citations omitted).

V. The Cumulative Error Claim

Lambrix finally asserts that this Court should conduct a cumulative error analysis for all of his previously rejected claims. Untimely, procedurally barred claims in an improperly filed successive habeas petition do not warrant a cumulative analysis. Troy v. State, 57 So. 3d 828, 844 (Fla. 2011)

(“However, where the allegations of individual error are

procedurally barred or meritless, a claim of cumulative error

also fails.”); Gore v. State, 24 So. 3d 1, 15 (Fla. 2009)

(stating that “because Gore’s individual claims of error are

without merit, any cumulative error analysis would be futile.”).

Indeed, such an analysis would be particularly inappropriate

here, where the claims Lambrix attempts to cumulate, are

procedurally barred as issues which either have been, or could

have been raised in previous post-conviction motions and prior

habeas petitions.

23 House v. Bell, 547 U.S. 518 (2006), provides no support for

Lambrix’s argument before this Court. In House, the Court found that the Schlup standard had been met, where there was new DNA testing which revealed that the victim’s husband was the source of semen on her clothes which previously was believed to have been the defendant’s. The only other forensic evidence tying the defendant to the crime was bloodstains that were shown to have possibly been contaminated. House also presented two witnesses that testified that the husband had confessed to the murder and other witnesses that described the husband’s suspicious behavior, including the attempted construction of a false alibi and a history of spouse abuse. The motive which the State had offered for the murder, House’s attempt to have sex with the victim, disappeared when the DNA established the semen to be from the husband. On these facts (which the Court determined were still insufficient to establish any theoretical, freestanding claim of innocence so as to preclude execution under Herrera v. Collins, 506 U.S. 390 (1993)), the Court found that House had provided ample evidence of his possible innocence to require consideration of his otherwise procedurally-barred claims of constitutional error. Clearly, Lambrix’s self-serving presentation of previously rejected claims is not comparable to the substantial actual evidence of innocence presented in House.

24 In sum, the instant petition is an inappropriate, untimely, and frivolous attempt to litigate issues that either were, or should have been litigated previously. For all of the foregoing reasons, the instant successive petition for writ of habeas corpus should be dismissed.

CONCLUSION

In conclusion, Respondents respectfully request that this

Honorable Court dismiss the instant petition for a writ of habeas corpus.

Respectfully submitted,

PAMELA JO BONDI ATTORNEY GENERAL

______SCOTT A. BROWNE Assistant Attorney General Florida Bar No. 0802743 Concourse Center 4 3507 East Frontage Rd., Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 [email protected] COUNSEL FOR RESPONDENTS

25 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS AND

MOTION TO DISMISS THE UNAUTHORIZED PETITION has been furnished

by U.S. mail to William M. Hennis, III, Litigation Director,

Assistant CCRC, Office of the Capital Collateral Regional

Counsel, Southern Region, 101 N.E. 3rd Ave., Suite 400, Ft.

Lauderdale, Florida 33301-1100, on this 9th day of November,

2011.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in

this response is 12-point Courier New, in compliance with Fla.

R. App. P. 9.100(l).

______COUNSEL FOR RESPONDENTS