No. 13 – A359
OCTOBER TERM 2013
In The
Supreme Court of the United States
═════════════════════════════════
CARY MICHAEL LAMBRIX,
Petitioner
v.
MICHAEL D. CREWS,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
Respondent
═════════════════════════════════
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
CAPITAL CASE
═════════════════════════════════
WILLIAM M. HENNIS III
LITIGATION DIRECTOR
CCRC SOUTH
1 EAST BROWARD BLVD., SUITE 444
FT. LAUDERDALE, FL 33301
(954)713-1284
ATTORNEY FOR PETITIONER
CAPITAL CASE
Question Presented
Petitioner, a disabled veteran, faces execution for a crime that he has
consistently maintained his innocence of. Evidence substantiating his innocence is
readily available – but has been categorically precluded from review by any state or
federal court due to the attachment of procedural bars resulting from the ineffective
assistance of initial review collateral counsel, which the equitable rule of law
established by this Court in Martinez v. Ryan should now be available to overcome,
but the lower Courts have refused to apply it.
The Question Presented Is:
(a) When a capital habeas petitioner’s substantive claims of ineffective
assistance of trial counsel were dismissed without prejudice due to initial-review
collateral counsel’s failure to exhaust, can these claims be subsequently presented
in a “second in time” petition consistent with Slack v. McDaniel and Stewart v.
Martinez-Villareal, invoking entitlement to equitable relief available under
Martinez v. Ryan that cannot fairly be construed as “successive” under the AEDPA
when the denial of review will result in a manifest injustice?
(b) Does the lower court’s unreasonable interpretation of a second in time
habeas brought under Martinez v. Ryan as successive in nature, and permissible
only under the substantial limitations enumerated under 28 U.S.C. §2244, amount
to an unconstitutional suspension of the writ of habeas corpus?
i
Table of Contents
Question Presented ..................................................................................................................... i
The Question Presented Is: ....................................................................................................... i
Petition for Writ of Certiorari .................................................................................................. 1
Opinion Below ............................................................................................................................. 1
Statement of Jurisdiction ......................................................................................................... 1
Relevant Constitutional and Statutory Provisions ............................................................. 2
Statement of the Facts .............................................................................................................. 3
a.
Events Leading to Arrest and Trials in Glades County ........................................ 3
b.
Extraordinary Circumstances Surrounding Initial Collateral Review ............ 11
c.
Successive Collateral Proceedings Raising Brady/Giglio Violations and Actual
Innocence ........................................................................................................................ 16
Reasons for Granting the Writ .............................................................................................. 20
a.
Under this Court’s Established Precedents, Petitioner’s “Second in Time”
Habeas Petition Cannot be Fairly Construed as “Successive” in Nature Under
the AEDPA. .................................................................................................................... 22
b.
Strickland Claims Not Heard By Any Reviewing Court Establishing Actual
Innocence ........................................................................................................................ 37
c.
Interpretation of Second in Time Habeas Brought Under Martinez v. Ryan as
Successive in Nature Amounts to Unconstitutional Suspension of Writ of
Habeas ............................................................................................................................. 38
Conclusion .................................................................................................................................. 41
ii
Table of Authorities
Cases
Barefoot v. Estell, 463 U.S. 880 (1983) ................................................................................ 24
Coleman v. Thompson, 501 U.S. 722 (1991) ........................................................... 23, 31, 36
Felker v. Turpin, 518 U.S. 651 (1996)............................................................................ 39, 42
Gardner v. Florida, 430 U.S. 349 (1977) ............................................................................. 24
Harbison v. Bell, 129 S. Ct. 1481 (2008).............................................................................. 16
Holland v. Florida, 560 U.S. 631 (2010) .............................................................................. 42
House v. Bell, 547 U.S. 516 (2005)........................................................................................ 16
Jefferson v. Upton, 130 S. Ct. 2217 (2010).......................................................................... 20
Kyles v. Whitley, 514 U.S. 419 (1995)............................................................................ 20, 35
Lambrix v. Dugger, No. 88-12107 – CIV-Zloch (S.D. Fla, May 12, 1992) .................... 13
Lambrix v. Florida, Case No. 13-8094 ................................................................................. 21
Lambrix v. Judge Friday, 525 So. 2d 829 (Fla. 1988) ...................................................... 12
Lambrix v. Sec., Fla. D.O.C., Case No. 13-11917 .............................................................. 17
Lambrix v. Singletary, 520 U.S. 518 (1997) ..................................................... 11, 16, 30, 41
Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994) ............................................................ 14
Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996) ......................................... 14, 15, 30
Lambrix v. State, 124 So. 3d 890 (Fla. 2013) ..................................................................... 21
Lambrix v. State, 39 So. 3d 260 (Fla. 2010) ................................................................. 16, 20
Lambrix v. State, 494 So. 2d 1143 (Fla. 1986) ............................................................... 9, 11
Lambrix v. State, 534 So. 2d 1151 (Fla. 1988) ................................................................... 12
Lambrix v. State, 698 So. 2d 247 (Fla. 1996) ............................................................... 15, 31
Lonchar v. Thomas, 517 U.S. 314 (1996) ...................................................................... 39, 42
iii
Magwood v. Patterson, 130 S. Ct. 2788 (2010) ............................................................ 22, 27
Martinez v. Ryan, 132 S. Ct. 1309 (2012) .................................................................... passim
McFarland v. Scott, 512 U.S. 849 (1994) ............................................................................. 16
McLeskey v. Zant, 499 U.S. 467 (1991) ............................................................................... 38
Miller-El v. Cockrell, 537 U.S. 322 (2003) .......................................................................... 22
Murray v. Carrier, 77 U.S. 473 (1986) ................................................................................. 14
Murray v. Giarratano, 492 U.S. 1 (1989) ...................................................................... 15, 31
Panetti v. Quarterman, 551 U.S. 930 (2007) .................................................... 22, 28, 32, 37
Pennsylvania v. Finley, 481 U.S. 551 (1987) ...................................................................... 31
Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995) ........................................................... 9
Porter v. State, 723 So. 2d 191 (Fla. 1998) ........................................................................... 9
Postal Telegraph Cable Co. v. Newport, 247 U.S. 464 (1918) ........................................ 39
Rock v. Arkansas, 483 U.S. 44 (1987) .................................................................................... 7
Rose v. Lundy, 455 U.S. 509 (1982) .................................................................... 13, 25, 26, 27
Schulp v. Delo, 513 U.S. 298 (1995) ................................................................... 15, 17, 30, 39
Slack v. McDaniel, 529 U.S. 473 (2000)........................................................................ passim
Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988) ................................................................... 11
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) .................................................. passim
Strickland v. Washington, 466 U.S. 668 (1984) ................................................................. 29
Tennard v. Dretke, 542 U.S. 274 (2004) .............................................................................. 22
Trevino v. Thaler, 133 S. Ct. 1911 (2013) ........................................................................... 11
Wiggins v. Smith, 539 U.S. 510 (2003) ................................................................................ 10
Williams v. Taylor, 529 U.S. 274 (2000) .............................................................................. 10
Zinermon v. Burch, 494 U.S. 123 (1990) ............................................................................. 24
iv
Statutes
28 U.S.C. § 2244(b) ................................................................................................................... 20
Fla. Stat. §27.701-710 (1985) ................................................................................................. 11
v
Appendices
Final Order rendered by 11th Circuit, October 25, 2013 ............................. Appendix A
Final Order rendered by 11th Circuit on Motion for Reconsideration,
December 5, 2013 .......................................................................................... Appendix B
Proffer of Lambrix’s intended trial testimony, November 25, 1998 ........... Appendix C
Postconviction Testimony of Cary Michael Lambrix, April 5, 2004 ........... Appendix D
Affidavit of trial co-counsel Robert Jacobs, October 28, 1998 ..................... Appendix E
Findings In Support of Sentences of Death, March 22, 1984 ..................... Appendix F
Affidavit of CCR Attorney Billy Nolas, July 30, 1991 ................................. Appendix G
Order Denying Original Post Conviction Motion, November 18, 1988 ......Appendix H
Petition for Writ of Certiorari, November 17, 1997 ..................................... Appendix I
Hanzel Affidavit, December 23, 2003 ...........................................................Appendix J
vi
Petition for Writ of Certiorari
Petitioner respectfully requests that this Court issue a Writ of Certiorari to
review the decision of the Eleventh Circuit Court of Appeals, and to address the
important questions of Constitutional law presented.
Opinion Below
The unpublished final order denying issuance of a certificate of appealability
was rendered on October 25, 2013, and is attached as Appendix A. A timely motion
to Reconsider, Vacate or Modify Order was filed. The final order denying this
motion to Reconsider was rendered on December 5, 2013, and is attached as
Appendix B.
Petitioner timely moved for an was granted a 60 day extension of time to file
the instant Petition for Writ of Certiorari, extending the deadline for filing the
instant Petition up to May 5, 2014. This Petition is now timely filed.
Statement of Jurisdiction
Jurisdiction of this Court is invoked under 28 U.S.C. §1254 (i) and Part III of
the Rules of the Supreme Court of the United States.
Although Petitioner did specifically challenge the unconstitutionality of a
portion of the Antiterrorism and Effective Death Penalty Act (AEDPA) 110 Stat.
1214 (codified as amendments to various portions of Chapter 153 of Title 28, United
States Code), the Courts below refused to address this issue. (See, Order, attached
Appendix A).
The Constitutionality of the AEDPA has definitely been “drawn into
1
question” for the reasons noted by this Court in In re Troy Davis, 130 S. Ct. 1
(2010)(questioning the constitutionality of the AEDPA when applied to prevent
review of actual innocence issue) as a possible violation of the Suspension Clause,
Article I, Section 9, Clause 2 of the Constitution.1
Relevant Constitutional and Statutory Provisions
United States Constitution, Article 1, Section 9 (Suspension Clause): “The
privileges of writ of habeas corpus shall not be suspended, unless in cases of
rebellion or invasion the public safety may require it.”
The Fifth Amendment to the United States Constitution provides in
pertinent part: “No persons. . .shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law.”
The Eighth Amendment to the United States Constitution provides in
relevant part: “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel or unusual punishments inflicted.”
28 U.S.C. §2244 (Finality of Determination):
a) No circuit or district judge shall be required to entertain an application for
a writ of habeas corpus to inquire into the detention of a person pursuant
to a judgment of a court of the United States if it appears that the legality
of such detention has been determined by a judge or court of the United
States on a prior application for writ of habeas corpus, except as provided
In accordance with Supreme Court Rules 14.1(e)(v) and 29.4(b), notice is hereby
given that 28 U.S.C. §2403(b) may apply, so a copy of this Petition is being served
upon the Solicitor General of the United States, so as to duly place the Attorney
General on notice that the constitutionality of an act of Congress was drawn into
question, as required by 28 U.S.C. §2403(a).
1
2
in section 2255(b)(1). (2) A claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a
prior application shall be dismissed 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.
Statement of the Facts
a. Events Leading to Arrest and Trials in Glades County
Petitioner, Cary Michael Lambrix, now faces a likely imminent death
warrant and execution.2 The crime he was sentenced to death for is refuted by
evidence substantiating his consistently pled claim of innocence and is readily
available – but because of attachment of procedural bars resulting from ineffective
assistance of initial review collateral counsel, no state or federal court has allowed
Mr. Lambrix to present and be heard upon the substantive Strickland v.
Washington claims, which, if heard, will establish that the State’s wholly
circumstantial theory of alleged premeditated murder (no eyewitnesses, no physical
or forensic evidence, no confessions) was deliberately fabricated with the intent to
wrongfully convict and condemn Lambrix, and that the sentences of death were
Pursuant to the recently enacted “Timely Justice Act” in Florida, Fla. Stat.
§922.052 (2013), the Clerk of the Florida Supreme Court certified that Mr. Lambrix
was death warrant eligible on October 4, 2013, thus under Florida law a death
warrant setting an execution date can be signed at the Governor’s pleasure.
2
3
unconstitutionally obtained and imposed
Respondents
have
consistently
conceded
that
their
entire
case,
“premeditation and everything,” rested upon the credibility of their sole key
witness, Frances Smith. At the time of the alleged crime, Smith had briefly lived
with Lambrix on a ranch in rural Glades County, Florida. The case brought against
Lambrix originated on February 9, 1983, when Frances Smith was arrested on
“unrelated” felony charges after being stopped alone while driving a car owned by
the male victim in this case, Clarence Moore (aka Lawrence Lamberson), hereafter,
“Moore.” Initially Ms. Smith told police that the vehicle belonged to her boyfriend,
but she could not remember his name. Then Smith claimed that Mr. Lambrix had
only picked her up that morning and asked her to drop him off at a bus station and
to then abandon the car at a nearby highway intersection. Smith also told police
that she was not with Lambrix prior to the morning of February 9, 1983.
Smith spent three days in the county jail, continuing to deny any knowledge
about the victims and never giving any indication that she had knowledge of a
homicide. She denied being in Glades County during the week of February 5-9,
1983. She posted bail on February 12, 1983.The following week, after consulting
private counsel, she appeared at the Office of the State Attorney, not the police, and
advised that she had knowledge of a double homicide that had taken place in
Glades County earlier in the month. Smith told authorities that a month earlier she
had abruptly abandoned her husband of 14 years and their three children and then
traveled to Glades County with the much younger Lambrix where the two had
4
briefly shared a trailer located on a ranch.
Smith claimed that on the night of Saturday February 5, 1983, she
accompanied Lambrix to a local tavern in nearby LaBelle, Florida, where, at
random, they met a man named Chip, and then later were joined by Aleisha Bryant,
a 19 year old local waitress.3 The four of them spent the remainder of that evening
at several bars before they all returned for a late night dinner at the trailer that
Smith shared with Lambrix. As Smith began cooking, Lambrix, Moore and Bryant
sat in the adjacent living room, “laughing, teasing and playing around” while
drinking from a bottle of whiskey.
According to Smith, Lambrix and Moore subsequently left the trailer, leaving
her and Bryant in the trailer. Approximately twenty minutes later, Lambrix
returned alone, looking normal, and he told Bryant that Moore wanted to show her
something outside. Smith remained in the trailer as Bryant accompanied Lambrix
outside. About forty-five minutes later Lambrix again returned alone, only now
Lambrix was “covered in blood,’ and told her “they’re dead,” but that he “never said
why” and “didn’t want to talk about it.” Smith said that she and Lambrix then drove
to a store to purchase a flashlight and stopped at a friend’s home to borrow a shovel,
then returned to the property and superficially concealed the two bodies and left the
area in Moore’s Cadillac.
The State’s investigation established that Chip was actually Clarence Moore, aka
Lawrence Lamberson, a 35 year old career criminal and known associate of South
Florida drug smugglers, with a criminal history that included violent assaults upon
women.
3
5
The day after giving her statement, Smith led the authorities to the location
where the bodies had been buried, and later she directed them to a nearby stream,
where at Smith’s direction, the alleged murder weapon was recovered. Based on this
information provided by Smith, an arrest warrant for Mr. Lambrix was issued and
he was taken into custody the following month at a carnival in the Orlando, Florida
area.
Smith was required to submit to a polygraph evaluation which revealed that
her responses showed signs of deception. Smith offered as a possible motive for the
killings a statement from Mr. Lambrix that “at least now we have a car.” She also
stated that she had witnessed Lambrix searching Moore’s pockets and removing a
gold necklace. She also claimed that Lambrix told her that he had choked the
female victim and had hit Moore in the back of the head.
When medical examiner Dr. Robert Shultz conducted the autopsies, he found
no physical evidence to support a finding that Bryant had been choked to death or
that Moore had been hit in the back of the head. His conclusions were that Moore
died from blunt force trauma caused by numerous blows to the temporal forehead,
consistent with a continuous swinging motion while Moore was facing his assailant.
Moore’s body did not display defensive wounds, which suggested that Moore may
have been the aggressor.
The medical examiner’s office also found both money and a watch in the
pockets of deceased victim Moore as well as gold jewelry with Bryant’s corpse. This
information suggested that robbery was not a motive. The State’s investigation
6
never presented any evidence that the alleged gold necklace ever existed.4
After he refused to plead guilty to second degree murder, Lambrix was
brought to trial in rural Glades County in December 1983. He advised his appointed
public defenders that he wanted to testify, but counsel told him that he believed
that the State’s case was so weak that having Lambrix testify might undermine
their planned reasonable doubt defense. After Lambrix continued to insist that he
wished to testify, trial counsel got the trial court to instruct Lambrix that if he
continued to insist on testifying against counsel’s advice, the trial court would order
the withdrawal of counsel and Lambrix would be forced to represent himself. 5 As a
result, Mr. Lambrix was unconstitutionally deprived of his fundamental right to
testify. See Rock v. Arkansas, 483 U.S. 44, 52 (1987)(the right to testify is “even
more fundamental to a personal defense than the right to self-representation”).6 The
The joint investigations of the State Attorney, the Glades Co. Sheriff and the
Florida Department of Law Enforcement (FDLE) failed to find anyone to testify
that they had ever seen Moore with the alleged gold necklace. The investigations
instead revealed that in the weeks prior to his death, Moore had been
systematically pawning everything he had of monetary value and had been forced to
vacate his motel room for non-payment.
4
In postconviction, counsel proffered into the record Mr. Lambrix’s intended trial
testimony. See Appendix C. Lambrix did subsequently testify during a state court
evidentiary hearing in 2004. See Appendix D. Although the State was aware of the
intended testimony and had years to prepare for cross-examination, the State was
unable to impeach or discredit Lambrix’s claim that he is innocent of the State’s
theory of premeditated murder.
5
6
See Lambrix v. Singletary, 72 F.3d 1500, 1508 (11th Cir. 1996) (recognizing that
“it is beyond question that an attorney cannot threaten to withdraw during a trial
in order to coerce the defendant to relinquish his fundamental right to testify,” but
then denying habeas relief upon the unsupported speculation that Lambrix
“apparently acquiesced” to not testifying at his second trial).
7
initial trial lasted four days and ended in the declaration of a mistrial after the jury
was unable to reach a decision as to guilt after eleven hours of deliberation. Over
objection the trial court declared a hung jury.7
Although no defense beyond the argument that Frances Smith was incredible
was presented, the jury at Mr. Lambrix’s first trial deliberated for over eleven hours
without food or requested medication, and over Lambrix’s objection, the trial court
declared it to be a hung jury and ordered a mistrial. See Lambrix, 72 F.3d 1504-05
(denying double jeopardy claim based upon improper discharge of jury).
Two months later Lambrix was re-tried in Glades County after motions for
change of venue were denied. Lambrix again refused to plead guilty to lesser
charges. For reasons that have never been explained, on the eve of trial, presiding
Judge Richard Adams was removed and replaced by Judge Richard Stanley, who
had previously been a career prosecutor. From the very beginning of the re-trial,
Judge Stanley’s bias manifested itself. His open hostility towards the defense was
so pervasive that it coerced trial counsel to forego the removal of jurors that
harbored substantial bias, depriving Lambrix of his fundamental right to be tried
by a fair and impartial jury. Appendix E., Affidavit of Trial Counsel Robert Jacobs.
This resulted in the empanelment of numerous jurors who clearly harbored
preconceived opinions of guilt and bias against Lambrix.
Judge Stanley bragged in later years that while on the bench he always
See Kyles v. Whitley, 514 U.S. 419, 455 (1995)(Steven, J. with Ginsburg, J. and
Breyer, J., concurring)(“the fact that the first jury was unable to reach a verdict at
the conclusion of the first trial provides strong reason to believe the significant
errors that occurred at the second trial were prejudicial”).
7
8
carried a sawed-off machine gun and that he believed that he should have been
allowed to shoot capital defendants between the eyes in the courtroom rather than
send them to prison. See Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995); Porter
v. State, 723 So. 2d 191 (Fla. 1998).
In opening arguments to the jury the prosecutor advised the jury that key
witness Smith was “the hub of the case.” The State presented a total of 14
witnesses, but only Smith provided testimony as to the events on the night that
Moore and Bryant died. Thus, Lambrix’s defense depended on the impeachment of
Smith.
Judge Stanley prevented Lambrix’s counsel from eliciting on cross
examination of Smith the fact that she had given multiple contradictory statements
during the investigation. The Judge also prevented Lambrix’s counsel from
inquiring during cross of FDLE Agent Connie Smith into her knowledge, based on
her investigation, that victim Moore was a career criminal, a known associate of
Florida drug smugglers, and had a history of violence and assaults against women.
See Lambrix v. State, 494 So. 2d 1143, 1145-46 (Fla. 1986) (denying relief on claims
that the trial court unconstitutionally restricted cross-examination of key state
witnesses).
When specifically questioned, Smith categorically denied receiving any
promises of immunity from prosecution or favorable treatment from the prosecution
in return for her testimony against Mr. Lambrix. With trial counsel unable to
impeach Smith, the jury returned verdicts of guilty on both counts in less than an
9
hour.
Trial counsels’ preparation for the penalty phase was minimal. There was
little investigation or inquiry into Lambrix’s life history. The testimony from family
members established that Mr. Lambrix grew up serving as an altar boy at his local
Catholic church, participated in the Boy Scouts, joined the ROTC in high school,
and then enlisted in the U.S. Army at the age of eighteen. Several family members
mentioned that Mr. Lambrix had been injured during his period of service and that
he “changed” after the physical injury, and that he was subsequently divorced and
lost the custody of his children.
Due to the complete failure by trial counsel to investigate and develop the
available mitigating evidence, the jury never heard about Mr. Lambrix’s horrific life
history, including how he was conceived as the result of a violent rape upon his
polio-stricken mother, and later subjected to relentless physical and emotional
abuse . This readily available evidence of childhood abuse and neglect by far
exceeds the facts laid out in Williams v. Taylor, 529 U.S. 274 (2000) and Wiggins v.
Smith, 539 U.S. 510 (2003).
By non-unanimous votes of 8 to 4 and 10 to 2, the jury recommended death
on both counts, however the trial court’s cursory sentencing order found no
statutory or non-statutory mitigation had been established and further found that
five (5) statutory aggravating factors had been established. See Appendix F,
Findings In Support of Sentences of Death. In March 1984 Judge Stanley formally
sentenced Lambrix to death on each count. On direct appeal the Florida Supreme
10
Court affirmed the convictions and sentences of death in Lambrix v. State, 494 So.
2d 1143 (Fla. 1986). This Court subsequently recognized two of the aggravating
factors as being the product of unconstitutionally vague and misleading jury
instructions. Lambrix v. Singletary, 520 U.S. 518 (1997).
b. Extraordinary Circumstances Surrounding Initial Collateral Review
As in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S.
Ct. 1911 (2013), claims of ineffective assistance of trial counsel in Florida can only
be brought in post conviction proceedings. In 1985 Florida adopted statutory
provisions requiring the appointment of post conviction counsel in all capital cases.
Fla. Stat. §27.701-710 (1985); See Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988).
Immediately following the Florida Supreme Court’s affirmation of his convictions
and death sentences on direct appeal, Mr. Lambrix requested the appointment of
post conviction counsel. Despite his best attempts to have counsel assigned, or in
the alternative, to be allowed to proceed Pro Se, Mr. Lambrix was not provided with
counsel. See Lambrix v. Judge Friday, 525 So. 2d 829 (Fla. 1988). It was only after
his death warrant was signed by the Governor of Florida in September 1988
scheduling Mr. Lambrix’s execution for November 30, 1988, that named CCR
collateral counsel actually assigned.
When Mr. Lambrix filed an initial state postconviction motion on October 27,
1988 under an active death warrant, his recently appointed initial review collateral
counsel advised the trial court in the motion that due to inadequate staff and
funding it was ‘impossible’ for the Capital Collateral Representative (CCR) to
11
properly prepare and present Mr. Lambrix’s collateral claims. Appendix G, Affidavit
of CCR attorney Billy Nolas. The trial court refused to allow for an extension of time
to file the initial motion and summarily denied the shell post conviction motion filed
by Nolas. Appendix H, Order denying original post conviction motion. On appeal the
Florida Supreme Court affirmed the summary denial by a 4 to 3 majority, finding
that the failure of collateral counsel to specifically brief the Strickland claims
rendered them procedurally barred, with the single exception of a claim that trial
counsel was ineffective for failure to investigate and present a voluntary
intoxication defense, which the Court then denied as legally insufficient. Lambrix v.
State, 534 So. 2d 1151 (Fla. 1988).
Lambrix then initiated his original federal habeas review, in a hastily written
petition following the Florida Supreme Court’s decision. The federal district court
immediately issued an emergency order staying the execution, and subsequently,
the district court ordered the discharge of initial review CCR collateral counsel, and
reassigned the case to the Volunteer Lawyers Resource Center (VLRC) in
Tallahassee, Florida, a partially federally funded defender group.
Pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982), VLRC Counsel moved
for a remand back to state court to allow Mr. Lambrix to present his unexhausted
claims pursuant to Strickland to the State courts, but respondent’s objected to any
remand. Thereafter the district court dismissed without prejudice all of the
unexhausted Strickland claims and then proceeded to review and adjudicate upon
the merits the remaining limited claims deemed to have been properly exhausted
12
below. In August 1991, the federal district court held a limited evidentiary hearing
on the one Strickland claim that had not been found to be procedurally barred – a
claim concerning the failure by trial counsel to investigate and to present a
voluntary intoxication defense. In May 1992 the district court denied Lambrix’s
initial habeas corpus petition. Lambrix v. Dugger, No. 88-12107 – CIV-Zloch (S.D.
Fla, May 12, 1992).
Lambrix then appealed to the Eleventh Circuit Court of Appeals which
affirmed the district court’s denial of habeas relief. Lambrix v. Singletary, 72 F.3d
1500 (11th Cir. 1996). The Eleventh Circuit also did briefly remand his case back to
the Florida Supreme Court for consideration of an Espinosa v. Florida8 claim that
was found to be procedurally barred in Lambrix v. Singletary, 641 So. 2d 847 (Fla.
1994). Thereafter this Court granted certiorari to review Lambrix’s Espinosa claim.
While on remand to the State courts, VLRC counsel filed a second state post
conviction motion that argued that under the extraordinary circumstances in which
the State of Florida forced initial collateral review CCR counsel on Lambrix even
where that proposed counsel had advised the Court that due to inadequate funding
and staff it was impossible for CCR to investigate, develop and present Lambrix’s
claims, while also simultaneously prohibiting Lambrix from exercising selfrepresentation to protect his own post-conviction interests, under Murray v.
Carrier, 77 U.S. 473 (1986), this constituted an “external impediment” establishing
“cause” to overcome any attachment of procedural bars, and that because the
8
505 U.S. 1079 (1992).
13
substantive claims CCR counsel failed to present in Lambrix’s initial state
postconviction motion will establish Mr. Lambrix’s actual innocence under the
fundamental miscarriage of justice doctrine established in Schulp v. Delo, 513 U.S.
298 (1995), any otherwise applicable procedural bars must be set aside.
The trial court summarily denied Mr. Lambrix’s second state post-conviction
motion as untimely, and Mr. Lambrix appealed. The Florida Supreme Court then
affirmed the summary denial refusing to recognize and address the extraordinary
circumstances surrounding Lambrix’s initial post conviction motion, and instead,
relying exclusively on federal law, found that “based upon Murray v. Giarratano,
[492 U.S. 1 (1989)] claims of ineffective assistance of post conviction counsel do not
present a valid basis for relief” as there is no constitutional right to the
appointment of or representation by post conviction counsel. Lambrix v. State, 698
So. 2d 247, 248 (Fla. 1996).
Lambrix then sought review before this Court by way of Petition for Writ of
Certiorari, presenting the very same questions of Constitutional Law this Court
subsequently addressed in Martinez v. Ryan. See Appendix I (Petition for Writ of
Certiorari, November 17, 1997). This Court declined review.
Lambrix’s case had previously returned to the Eleventh Circuit, which
affirmed the district court’s denial of the initial federal habeas. Lambrix v.
Singletary, 72 F.3d 1500 (11th Cir. 1996). This Court granted review on the
Espinosa claim, which was briefed and argued, but this Court held by a 5 to 4 vote
that Lambrix was not entitled to relief because prior counsel had failed to timely
14
present the otherwise established Espinosa claim to the state courts. Lambrix v.
Singletary, 520 U.S. 518 (1997).
After the Florida Supreme Court denied Lambrix’s previously pled
Brady/Giglio violations in Lambrix v. State, 39 So. 3d 260 (Fla. 2010)(failure to
disclose relationship between key witness and state investigator and allowing key
witness to falsely testify regarding grant of immunity from prosecution), Lambrix
filed a pro se Application for Leave to File Second/Successive Habeas, pursuant to
28 U.S.C. § 2244(b)(3)(A) in the Eleventh Circuit, that specifically requested the
appointment of collateral counsel. Lambrix asserted that McFarland v. Scott, 512
U.S. 849 (1994) and Harbison v. Bell, 129 S. Ct. 1481 (2008), require the
appointment of collateral counsel in all capital cases, thus appointment is
statutorily mandated, and without the assistance of counsel, he was unable to
present his substantive Brady/Giglio claims as well as “newly discovered evidence.”
This evidence included reliable scientific evidence that was not available at the time
of his original federal habeas, sufficient to establish a colorable claim of innocence
entitling him to full review under the fundamental miscarriage of justice doctrine
articulated in House v. Bell, 547 U.S. 516 (2005) and Schulp v. Delo, 513 U.S. 298
(1995).
The Eleventh Circuit denied Lambrix’s request for appointment of counsel,
then denied the pro se sect 2244(b)(3)(A) application as legally insufficient. In re
Cary Michael Lambrix, 624 F. 3d 1355 (11th Cir. 2010). Under the AEDPA, both a
motion for rehearing, and a conventional petition for writ of certiorari are strictly
15
prohibited, so Lambrix, pro se, petitioned this Court, pursuant to its original habeas
jurisdiction, requesting extraordinary intervention and remand to the Eleventh
Circuit with instructions to appoint collateral counsel so that his claim of innocence
could be heard. This Court denied review. In re Cary Michael Lambrix, 131 S. Ct.
2907 (2011).
In the instant case Mr. Lambrix attempted to be heard on a second habeas
petition arguing entitlement to relief under Martinez v. Ryan, 132 S. Ct. 1309
(2012). The district court summarily denied this petition, and on October 25, 2013,
the Eleventh Circuit denied an application for certificate of appealability in
Lambrix v. Sec., Fla. D.O.C., Case No.13-11917. After denying a timely motion for
reconsideration on December 5, 2013, the Eleventh Circuit subsequently ordered
separate briefing limited to the appointment of counsel issue.
c. Successive Collateral Proceedings Raising Brady/Giglio Violations and
Actual Innocence
Following the deprivation of any meaningful opportunity to pursue initial
state and federal collateral appeal, substantial newly discovered evidence of
Brady/Giglio violations supporting Lambrix’s consistently maintained claim of
innocence were raised.
Deborah Hanzel was the only state witness that provided testimony in
support of Frances Smith’s testimony that Mr. Lambrix committed two murders by
premeditated design. At trial witness Hanzel testified that Mr. Lambrix told her he
had killed two people and that taking victim Moore’s vehicle “was part of the
reason” that he had done so. In 1998 Hanzel recanted this critical corroborative
16
testimony and subsequently testified at the state court evidentiary hearing that
Lambrix actually had never told her that he killed anyone, and further, that
Frances Smith and the state attorney investigator had convinced her to provide this
false testimony by telling her that if she failed to testify against Lambrix, she and
her children might be harmed (by Lambrix). Appendix J. Affidavit of Deborah
Hanzel.
Respondents sought to rebut Hanzel’s recantation by calling upon key
witness Smith to deny any coercion. But shortly before Smith testified, Smith’s
recently divorced husband advised Mr. Lambrix’s counsel that Smith had often
bragged about being protected from prosecution in this case because of a sexual
relationship that she had with the state attorney’s lead investigator, Miles “Bob”
Daniels. When confronted with this allegation on the witness stand, Smith admitted
that it was true that during the prosecution of the case she had engaged in an illicit
relationship of a sexual nature with Daniels.
Respondents then called Daniels to rebut and discredit Frances Smith, their
own key witness. Daniels testified that he never engaged in a sexual relationship
with Smith, but conceded on cross examination that even if the allegation was true,
he would not admit it because such an admission would cause problems in his
marriage and jeopardize his state retirement pension. Daniels then testified that
Smith had received a promise of immunity from prosecution in exchange for her
testimony against Mr. Lambrix. This information directly contradicted Smith’s trial
testimony that she received no consideration. The Daniels testimony was
17
corroborated by the testimony of former assistant state attorney Tony Pires, who
testified that he had worked on the Lambrix case in its early stages and that it was
his impression that Smith had been told that she would be given immunity from
prosecution.
Collateral counsel attempted to introduce substantial evidence to corroborate
the Hanzel testimony that she had been influenced to testify falsely by Smith and
Daniels, in an attempt to wrongly convict Mr. Lambrix. The trial court prohibited
the use and introduction of this readily available evidence, including “reliable,
scientific evidence” that would have helped to substantiate Mr. Lambrix’s
innocence, finding that all of the proffered evidence was “procedurally barred” due
to the failure by initial review collateral counsel’s failure to raise it in Lambrix’s
first state post conviction motion.
In a bizarre and dubious, at best, self-contradictory order denying all relief,
the trial court found that Hanzel’s recantation was unreliable and that Smith’s
account of the sexual relationship with state attorney Daniels was not credible in
light of the Daniels denial of same, while simultaneously finding that investigator
Daniels’ testimony supporting a finding that Smith committed perjury when she
denied at trial that she received a deal in exchange for her testimony, was not
credible in light of Smith’s testimony at trial denying any promise or offer of
immunity from prosecution. See Jefferson v. Upton, 130 S. Ct. 2217 (2010). The trial
court completely ignored the testimony of Pires and the fact that all of the
outstanding charges against Smith were dismissed after Mr. Lambrix was convicted
18
and sentenced to death.
Lambrix made timely appeal of the lower court’s dubious out-come
determinative order denying all relief, but the Florida Supreme Court affirmed.
Lambrix v. State, 39 So. 3d 260, 268-69 (Fla. 2010). The court found that while the
appellate court would not question the trial court’s credibility findings, the evidence
of the undisclosed sexual relationship did constitute a violation of Brady v.
Maryland where the information could have been used by trial counsel to impeach
the testimony of both Frances Smith and Bob Daniels. The Court held that the
Brady violation here was harmless and also failed to conduct a cumulative analysis
relevant to determining materiality under this Court’s holding in Kyles v. Whitley,
514 U.S. 419, 436-37 (1995).
During the pendency of the appeal, additional evidence of Brady/Giglio
violations by the State surfaced when a third party private investigator discovered
that there had been a failure to disclose multiple Florida Department of Law
Enforcement lab reports and notes related to the investigation of Mr. Lambrix’s
case. These materials showed that contrary to the argument by the State at Mr.
Lambrix’s 1984 trial, certain forensic evidence had been found on the alleged
murder weapon, a tire iron, that had been introduced at trial through the testimony
of Frances Smith and a diver who recovered it with her assistance. Lambrix then
filed another successive state post conviction motion. In response the Respondents
conceded that the crime lab records had not been previously produced to Mr.
Lambrix. The State also agreed that the records showed, contrary to their argument
19
at trial, that several hairs were found on the alleged murder weapon. And that
these hairs did not match Mr. Lambrix or the victims, but probably were the hair of
Frances Smith.
The trial court ignored the admission by Respondents of non-disclosure,
accepted their argument that the non-disclosure was not material, and summarily
denied the successive motion without any evidentiary development. The Florida
Supreme Court again affirmed. Lambrix v. State, 124 So. 3d 890 (Fla. 2013). Mr.
Lambrix sought certiorari review before this Court, arguing that the Florida courts’
denial of his established Brady/Giglio violations stands in contrast to fundamental
principles of federal constitutional law relevant to Brady/Giglio claims. Lambrix v.
Florida, Case No. 13-8094. On April 7, 2014, this Court denied certiorari review.
Reasons for Granting the Writ
This capital case presents issues of substantial importance to a significant
number of habeas petitioners. As this Court has recognized, just because a habeas
petition is filed “second in time” does not automatically make it “successive” in
nature and therefore subject to the rigid gatekeeper provisions of the AEDPA as
enumerated in 28 U.S.C. § 2244(b). See e.g. Magwood v. Patterson, 130 S. Ct. 2788
(2010); Panetti v. Quarterman, 551 U.S. 930 (2007); Slack v. McDaniel, 529 U.S.
473 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637 (1998).9
As in Slack v. McDaniel, 529 U.S. 473 (2000), the lower federal courts refused to
grant a Certificate of Appealability and address the merits of the important
questions presented herein, in direct violation of Tennard v. Dretke, 542 U.S. 274,
276 (2004); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) and Slack v. McDaniel,
529 U.S. at 484, as clearly jurists of reason would find the questions raised herein
9
20
The evidence is readily available to establish that Petitioner is actually
innocent of the wholly circumstantial theory of premeditated murder upon which he
was convicted and condemned to death, but Petitioner has been categorically denied
any State or federal court review of the substantive Strickland v. Washington
claims, that if heard, would establish his innocence as a result of initial review
collateral counsel’s ineffectiveness.
This case is indistinguishable from Slack v. McDaniel, 529 U.S. 473 (2000)
and Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). As in Slack and Stewart,
Petitioner did present these substantive claims in his initial federal habeas, only to
have the district court dismiss these Strickland v. Washington claims “without
prejudice” for failure to exhaust. Upon return to the state court Petitioner’s claims
were found procedurally barred under Coleman v. Thompson, 501 U.S. 722 (1991).
Only upon this Court’s announcement of the new rule of equitable law in Martinez
v. Ryan, 132 S. Ct. 1309 (2012) did these claims become ripe for federal review.
Petitioner did timely file a second in time habeas petition arguing
entitlement to the equitable relief available under Martinez v. Ryan, only to have
the district court sua sponte summarily dismiss Petitioner’s Martinez v. Ryan
petition as successive, reviewable only upon grant of leave by the Eleventh Circuit
under 28 U.S.C. §2244(b)(3).
The severe nature of capital punishment is a proper consideration for the
debatable. If this Court declines certiorari review, at a minimum, this Court should
remand this case to the Eleventh Circuit with instructions that Certificate of
Appealability be issued to allow the questions raised herein to be properly briefed
and debated before the lower court.
21
Court in determining whether to permit review. Barefoot v. Estell, 463 U.S. 880,
893 (1983), as the irreversible nature of the death penalty – the finality of ending a
human life – creates a heightened need for reliability. Gardner v. Florida, 430 U.S.
349, 357-53 (1977)(recognizing that “death is different” and requires heightened
scrutiny).
The fundamental fairness clause of constitutional due process demands that
Petitioner, and similarly situated petitioners, be provided with a fair and
meaningful opportunity to present and be heard upon their substantive Strickland
v. Washington claims, especially when the review of these claims will establish the
Petitioner’s innocence, or that the sentences of death were unconstitutionally
obtained. See e.g. Zinermon v. Burch, 494 U.S. 123, 127 (1990)(“Due Process, as this
Court has often said, is a flexible concept that varies with the particular situation).
This Court should grant review to provide guidance to the lower courts as to
whether claims brought under Martinez v. Ryan on a technically “second in time”
petition can be fairly construed as successive in nature under the AEDPA.
a. Under this Court’s Established Precedents, Petitioner’s “Second in Time”
Habeas Petition Cannot be Fairly Construed as “Successive” in Nature
Under the AEDPA.
As this Court plainly stated in Stewart v. Martinez-Villareal, 523 U.S. 637
(1998), it would be “seemingly perverse” to apply construction of “second or
successive” application, and attach preclusive effect, to a dismissal without
prejudice of substantive constitutional claims for failure to exhaust. This has been
the consistently recognized and applied rule of law. Slack v. McDaniel, 529 U.S.
22
473, 487 (2000), relying on Rose v. Lundy, 455 U.S. 509, 520 (1982).
This capital case illustrates just such a constitutionally intolerable
perversion that results when the lower courts unreasonably construe a habeas
petition filed “second in time” as a “successive” petition and prohibit review upon
the merits of substantive constitutional claims that Petitioner did attempt to
present in Petitioner’s initial federal habeas, but were dismissed without prejudice
due to non-exhaustion, as Petitioner now faces execution for a crime that the
evidence is readily available to establish his actual innocence of, but is precluded
from doing so because of the fundamentally unfair attachment of procedural bars
that stand contrary to this Court’s own long established rules of law.
At the heart of this issue now before this Court is whether Petitioner’s
substantive claims of ineffective assistance of trial counsel that Petition did attempt
to present in Petitioner’s initial federal habeas, but were dismissed without
prejudice due to initial-review collateral counsel’s failure to properly exhaust these
substantive claims, can fairly be construed as a “successive” petition under §
2244(b) when brought in a “second in time” petition, invoking the equitable rule of
law only recently announced in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
In Stewart v. Martinez-Villareal, 523 U.S., at 644 this Court reaffirmed its
previously held finding announced in Slack v. McDaniel, 529 U.S., at 487 that:
None of our cases…have ever suggested that a prisoner
whose habeas petition was dismissed for failure to
exhaust state remedies and who did then exhaust these
remedies and returned to federal court, was by such
action filing a successive petition. A court where such a
petition was filed could adjudicate those claims under the
23
same standard as would govern those made in any other
first petition.
Of course, this clearly established rule of law assumes that the lower federal
court will abide by this rule of law long ago set in stone in Rose v. Lundy, 455 U.S.,
509, at 510 (1982), “that a federal district court must dismiss such “mixed petitions”
leaving the prisoner with the choice of returning to state court to exhaust his claims
or of amending or resubmitting the habeas petition to present only exhausted
claims to the district court.”
This Court contemplated that if a habeas petition was filed containing both
exhausted and unexhausted claims, then the prisoner would return to federal court
after the requisite exhaustion; it was only if a prisoner declined to return to state
court and decided to proceed with his exhausted claims in federal court that the
possibility arose that a subsequent petition would be considered second or
successive and subject to dismissal as abuse of the writ. Rose, Id. at 520-21 (“Before
you bring any claims to federal court, be sure that you first have taken each one to
state court”), Slack v. McDaniel, 529 U.S., at 488.
But this Court has never addressed how this long established rule of law
must apply when, at the Respondents insistence, in direct violation of Rose v.
Lundy, 455 U.S., at 510, the district court fails to dismiss the “mixed petition”, then
denies Petitioner’s motion to hold the habeas petition in abeyance and allows
Petitioner to return to state court for exhaustion—and then proceeds to adjudicate
the merits of only those claims deemed to have been exhausted, resulting in the
initial habeas petition being adjudicated on the merits—and when Petitioner
24
returns to the federal court in a “second in time” petition raising only the
substantive claims dismissed without prejudice in the initial petition, the petition is
deemed to be a “successive” petition that is procedurally barred from review absent
leave by the circuit court under the AEDPA “gatekeeper” provision of §
2244(b)(3)(A).
As this Court recognized in Magwood v. Patterson, 130 S. Ct. 2788, 2796
(2010),
Although Congress did not define the phrase “second
successive,” as used to modify “habeas corpus application
under section 2254.” §§ 2244(b)(1)-(2), it is well settled
that the phrase dos not simply “refe[r] to all § 2254
applications filed second or successively in time,” Panetti
v. Quarterman, 551 U.S. 930, 944, 127 S. Ct. 2842, 168
L.Ed.2d 662 (2007); see id., at 947, 127 S. Ct. 2842
(creating an “exception[n]” to § 2244(b) for a second
application raising a claim that would have been unripe
had the petitioner presented it in his first application);
Stewart v. Martinez-Villareal, 523 U.S. 637, 643, 118 S.
Ct. 1618, 140 L.Ed.2d 849 (1998) (treating a second
application as part of a first application where it was
premised on a newly ripened claim that had been
dismissed from the first application “as premature”);
Slack v. McDaniel, 529 U.S. 473, 478, 487, 120 S. Ct.
1595, 146 L.Ed.2d 542 (2000) (declining to apply § 2244(b)
to a second application where the District Court
dismissed the first application for lack of exhaustion).
This Court has consistently instructed that “the phrase ‘second or successive’
petition is a term of art given substance in our prior habeas corpus cases”, Slack v.
McDaniel, 529 U.S. at 486, and that in determining whether the application is
second or successive, a court must look to the substance of the claim raised and
determine whether the petitioner had a full and fair opportunity to raise the claim
25
in the prior application. Panetti v. Quarterman, 551 U.S. 930, 947 (2007).
If it is determined that the petitioner was deprived of a fair opportunity to
present and be heard upon the claim in a prior application, then the subsequent
petition raising that claim cannot reasonably be construed as second or successive
and precluded from review under § 2244(b). See, e.g., Panetti v. Quarterman, 551
U.S. at 947 (where the claim was not yet ripe for review at the time of the first
petition); Stewart v. Martinez-Villareal, 523 U.S. at 643; (accord); Slack v.
McDaniel, 529 U.S. at 473 (declining to apply § 2244(b) to a second application
where the district court dismissed the first application for lack of exhaustion).
In this capital case, the evidence that will substantiate Petitioner’s
consistently pled claim of actual innocence is readily available for presentation to
the courts, but for no other reason, because the federal court failed to comply with
the long established mandate requiring dismissal, in its entirety, of an initial
habeas petition containing both exhausted and unexhausted claims as required
under Rose and instead dismissed without prejudice the unexhausted claims and
improperly proceeded to then adjudicate on the merits those claims deemed to have
been exhausted. Petitioner is now being unfairly precluded from any review of these
substantive claims—and now faces execution for a crime he is actually innocent of.
Had the district court complied with Rose and dismissed Petitioner’s initial
habeas petition in its entirety, under Slack, Petitioner could have returned to the
district court after exhaustion and be heard upon these claims as if it were
Petitioner’s initial habeas. But, because the district court did proceed to improperly
26
adjudicate the merits of the limited claims deemed exhausted rather than dismiss
the entire initial petition as required under Rose, and then denied relief when
Petitioner returned to the district court to present these claims previously
dismissed without prejudice, the district court unfairly construed this “second in
time” habeas as a successive petition subject to the restrictions enumerated in §
2244(b), and precluded review.
As provided Section b, infra, extraordinary circumstances not attributable to
Petitioner did unquestionably impede and obstruct Petitioner’s initial review
collateral counsel from properly presenting and exhausting Petitioner’s substantive
claims in the original state postconviction proceedings prior to presentation in the
initial federal habeas. See, Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner’s counsel argued these extraordinary circumstances in the district
court and did move for remand back to the state courts for proper exhaustion only to
have the Respondent strenuously object and at Respondent’s insistence, contrary to
Rose, the district court denied Petitioner’s request for remand, dismissed the
unexhausted claims without prejudice, and proceeded to adjudicate the remaining
limited claim on their merits, denying all relief. Petitioner timely appealed and the
Eleventh Circuit affirmed the district court’s ruling. Lambrix v. Singletary, 72 F.3d
1500 (11th Cir. 1996). This Court granted certiorari review on a claim brought
under Espinosa v. Florida, but by a marginal 5 to 4 decision, this Court found
Petitioner’s Espinosa claim procedurally barred due to counsel’s failure to timely
present it. Lambrix v. Singletary, 520 U.S. 518 (1997).
27
Because the failure to exhaust state review of these substantive Strickland
claims was attributable to the ineffective assistance of initial review collateral
counsel, when Petitioner did return to the state courts for exhaustion of these
claims, as well as the argument that because a full and fair review of these claims
would establish Petitioner’s actual innocence, under this Court’s fundamental
miscarriage of justice doctrine established in Schulp v. Delo, 513 U.S. 298 (1995)
any otherwise applicable procedural bars must yield. The Florida courts held that
these claims were procedurally barred based upon this Court’s rule of law
established in Pennsylvania v. Finley, 481 U.S. 551 (1987) and Murray v.
Giarratano , 492 U.S. 1 (1989) that there was “no constitutional right” to collateral
postconviction counsel, therefore, “claims of ineffective assistance of postconviction
counsel do not present a valid basis for relief.” Lambrix v. State, 698 So. 2d 247, 248
(Fla. 1996).
The Florida courts refused to address or consider the extraordinary
circumstances that indisputably obstructed Petitioner’s initial review collateral
counsel from presenting these substantive Strickland claims in the initial state
postconviction appeal, See, Section b, Infra, and refused to address Petitioner’s
specifically pled fundamental miscarriage of justice claim. Petitioner’s counsel did
seek certiorari review before this Court, arguing the same issue this Court
subsequently recognized in Martinez v. Ryan, 132 S. Ct. 1309 (2012). That upon
establishing extraordinary circumstances the categorical rule of Coleman v.
Thompson, 501 U.S. 722 (1991) must yield to allow cause to be shown based on
28
deprivation of effective assistance of initial review collateral counsel for the purpose
of presenting substantive Strickland claims. See, attached Appendix I, (Petition for
Writ of Certiorari filed in 1997 by VCRC Counsel Matthew Lawry). This Court
declined review.
Because the adoption of The AEDPA in 1996 specifically incorporated the
Coleman v. Thompson rule of law that allegations of ineffective assistance of
collateral counsel establish cause to overcome procedural default, a rule of law that
has been categorically applied until this Court announced the new rule of equitable
law established in Martinez. Petitioner’s claims did not become ripe for review and
could not properly be presented to the federal courts. But cf., Panetti v.
Quarterman, 551 U.S., at 947 (creating an exception to § 2244(b) for a second
application raising a claim that would have been unripe had the Petitioner
presented it in his first application); Stewart v. Martinez-Villareal, 523 U.S., at 643
(treating a second application as part of a first application where it was premised on
a newly ripened claim that had been dismissed from the first petition).
Consistent with the long history of recognition that fundamental fairness and
principles of equitable law govern habeas proceedings, this Court relied upon these
principles to find that under the extraordinary circumstances such as that
established in Petitioner’s instant case, strict enforcement of otherwise inflexible
procedural bars must yield to the imperative of preventing a constitutionally
intolerable manifest injustice. As this Court provided for in Martinez v. Ryan, 132
S. Ct., at 1318:
29
The rules for when a prisoner may establish cause to
excuse a procedural default are elaborated in the exercise
of the Court’s discretion. McCleskey v. Zant, 499 U.S. 467,
490, 111 S. Ct. 1454, 113 L.Ed.2d 517 (1991); see also
Coleman, supra, at 730-731, 111 S. Ct. 2546, Sykes, 433
U.S., at 83, 97 S. Ct. 822, 9 L.Ed.2d 837 (1963), overruled
in part by Sykes, supra. These rules reflect an equitable
judgment that only where a prisoner is impeded or
obstructed in complying with the State’s established
procedures will a federal habeas court excuse the prisoner
from the usual sanction of default. See, e.g., Strickler v.
Greene, 527 U.S. 263, 289, 119 S. Ct. 1936, 144 L.Ed.2d
286 (1999); Reed, supra, at 16, 104 S. Ct. 2901. Allowing a
federal habeas court to hear a claim of ineffective
assistance of trial counsel when an attorney’s errors (or
the absence of an attorney) caused a procedural default in
an initial-review collateral proceeding acknowledges, as
an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with
ineffective counsel, may not have been sufficient to ensure
that proper consideration was given to a substantial
claim.
(emphasis added).
Clearly, this Court’s overriding concern in Martinez was that absent
recognition of entitlement to equitable relief, a habeas petitioner’s substantive
Strickland claims would not be heard by any state or federal court. “When an
attorney errs in initial-review collateral proceedings, it is likely that no state court
at any level will hear the prisoner’s claims.” Martinez, 132 S. Ct., at 1316. This
Court expressed its concern that under such circumstances innocent defendants will
be deprived of any meaningful opportunity to effectively challenge the state’s case
and vindicate their innocence, resulting in the integrity of the judicial process being
compromised by failing to ensure that the adversarial process worked as
constitutionally intended. In Martinez, this Court stated:
30
A prisoner’s inability to present a claim of trial error is of
particular concern when the claim is one of ineffective
assistance of counsel. The right to the effective assistance
of counsel at trial is a bedrock principle in our justice
system. It is deemed as an “obvious truth” the idea that
“any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is
provided for him.” Gideon v. Wainwright, 372 U.S. 335,
344, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963). Indeed, the right
to counsel is the foundation for our adversary system.
Defense counsel tests the prosecution’s case to ensure that
the proceedings serve the function of adjudicating guilt or
innocence, while protecting the rights of the person
charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68-69,
53 S. Ct. 55, 77 L.Ed. 158 (1932) (“[The defendant]
requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does
not know how to establish his innocence”).
Martinez v. Ryan, 132 S. Ct., at 1317. (emphasis added).
These words could not ring more true than in this capital case. At the time of
trial, Petitioner was a disabled veteran (suffering both physical and psychological
disabilities) with the equivalent of a ninth grade education, standing trial in one of
the smallest rural farming communities of the South. Petitioner was represented by
a public defender who had no prior experience litigating a capital case at trial.
Petitioner has consistently maintained his innocence in this wholly
circumstantial case, (i.e., no eyewitnesses, no physical or forensic evidence, no
confessions, etc.), which by Respondent’s own consistent admission, rested entirely
upon the credibility of the testimony of their sole key witness Frances Smith—a
witness who only came forward with her credible story after she was herself
arrested on unrelated charges while driving, and in exclusive possession, of the
31
victim’s vehicle.
Due to trial counsel’s inexcusably deficient performance the state’s case was
not subjected to a true adversarial testing. The jury that convicted and condemned
Petitioner never heard irrefutable evidence that key witness Smith actually gave
law enforcement agents numerous conflicting stories, and even after coming up with
the story she testified to, Smith actually failed (“showed signs of deception) a state
administered polygraph test.
The evidence was readily available that would have conclusively established
that the State’s entire theory of premeditated murder was not credible, and was
based upon false circumstantial evidence and testimony that could have, and should
have, been impeached. From jury selection all the way through the penalty phase,
Petitioner was deprived of any meaningful representation whatsoever, resulting in
Petitioner being convicted and condemned to death for a crime that he is actually
innocent of.
Petitioner’s second in time habeas petition presenting the substantive claims
the district court dismissed without prejudice in the initial habeas petition was
timely brought as given the unyielding and categorical rule established in Coleman
v. Thompson, 501 U.S. 722 (1991) that allegations that collateral counsel failed to
provide effective representation cannot establish cause to overcome procedural bars,
Petitioner’s substantive claims did not become ripe for review until this Court
announced he new rule of equitable law established in Martinez that when a
Petitioner can show that extraordinary circumstances obstructed his or her ability
32
to present and be heard upon the substantive claims, then under this new rule of
equitable law, Petitioner is entitled to a full and fair review of the claims. See,
Martinez, 132 S. Ct., at 1311-12.
The lower court’s refusal to recognize Petitioner’s second in time Martinez
based petition as an extension of the initial petition, and not successive in nature
and subject to the limitations enumerated in § 2244(b)(3)(A) stands contrary to this
Court’s own long-established rule of law that claims dismissed in an initial petition
and brought in a second in time petition cannot be fairly construed as successive.
Slack, 529 U.S., at 488; Rose, 455 U.S., at 520-21.
The only reason this long established rule has not been applied to Petitioner’s
case, and Petitioner now faces execution for a crime he is innocent of without any
state or federal court allowing the claims that can and will establish his innocence
from being heard, is because the federal district court refused to comply with Rose
when addressing Petitioner’s initial mixed habeas petition.
It is imperative that this Court now grant review and address this important
issue—does the rule established in Rose, and subsequently reaffirmed in Slack and
Magwood that petitions dismissed without prejudice for failure to exhaust cannot be
construed as successive when brought in a second in time petition following
exhaustion apply with equal force to individual substantive claims that were
dismissed without prejudice under circumstances in which the district court
improperly proceeded to adjudicate the merits of the claims deemed exhausted in
the initial petition?
33
If fundamental fairness and doctrines of equitable law truly do govern habeas
proceedings then this issue must be answered in the Petitioner’s favor. By no fault
of his own, Petitioner was deprived of any state or federal review of the substantive
claims that, if fully and fairly heard, will establish Petitioner’s actual innocence—
and that he was and is constitutionally ineligible for death.
Clearly, there has been no adjudication on the merits of the substantive
claims Petitioner now seeks review upon, as the district court dismissed these
claims without prejudice for failure to exhaust. Procedurally, there is no difference
between Petitioner’s attempt to seek review of these substantive Strickland claims
at issue, and the Ford v. Wainwright claims at issue in Stewart v. Martinez-
Villareal, 523 U.S. 637 (1998) and Panetti v. Quarterman, 551 U.S. 930 (2007) in
which in both Martinez-Villareal and Panetti, the Petitioners did receive an
adjudication on the merits in an initial petition—but, as in this case, the individual
claim was dismissed without prejudice.
This Court held in Martinez-Villareal and Panetti that the Ford Claim
subsequently presented in a second in time petition could not be construed as
successive in nature as it did not become ripe for review until the later petition. As
this Court stated in Stewart v. Martinez-Villareal, 523 U.S., at 643:
This may have been the second time that respondent had
asked the federal courts to provide relief on his Ford
claim, but this does not mean that there were two
separate application, the second of which was necessarily
subject to § 2244(b). There was only one application for
habeas relief, and the District Court ruled (or should have
ruled) on each claim at the time it became ripe.
Respondent was entitle to an adjudication of all of the
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claims presented in his earlier, undoubtedly reviewable,
application for federal habeas relief.
In reaching this determination, this Court recognized that it would be
“seemingly perverse” to deny a Petitioner review upon the merits of a claim
dismissed without prejudice in an initial petition, as “none of our cases expounding
this doctrine have ever suggested that a prisoner whose habeas petition was
dismissed for failure to exhaust state remedies, and who then did exhaust those
remedies and returned to federal court, was by such action filing a successive
petition. A court where such a petition was filed could adjudicate these claims under
the same standard as would govern those made in any other first petition.” See,
Martinez-Villareal, 523 U.S., at 644.
Petitioner’s second in time habeas was not a successive petition because
Petitioner could not have obtained an adjudication of these substantive Strickland
claims in the previous decision and absent a federal court adjudication of these
claims raised in Petitioner’s initial habeas, the doctrine of res judicata that governs
the “abuse of writ”; See, McLeskey v. Zant, 499 U.S. 467 (1991); Felker v. Turpin,
518 U.S. 651, 664 (1996) (AEDPA codifies “modified res judicata rule, a restraint on
what is called in habeas corpus practice ‘abuse of the writ.’”); Schulp v. Delo, 513
U.S. 298, 319 (1995) (statutory and caselaw developments result in “qualified
application of the doctrine of res judicata”) cannot apply.
As has long been recognized, the principle that a res judicata preclusion to
review cannot be imposed unless the party has an adequate opportunity to be heard
in the previous proceeding. E.g., Postal Telegraph Cable Co. v. Newport, 247 U.S.
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464 (1918); Lonchar v. Thomas, 517 U.S. 314 (1996).
Under the extraordinary circumstances applicable to this capital case,
Petitioner was deprived of that adequate opportunity to be heard upon these
substantive claims in Petitioner’s initial habeas petition, when by actions
attributable exclusively to the Respondent, Petitioner was virtually forced to be
represented in his initial review collateral postconviction proceedings by counsel
that was incapable of adequately presenting Petitioner’s claims to the state courts,
resulting in dismissal for failure to exhaust when Petitioner did attempt to raise
these substantive claims in his initial federal habeas.
Because of the categorical and uniformly applied rule in Coleman that claims
of ineffective assistance of collateral counsel cannot establish cause to overcome
attachment of procedural bars, Petitioner could not return to the federal court for
presentation of these claims until this Court established the new rule of equitable
law announced in Martinez that under extraordinary circumstances this otherwise
categorical Coleman rule must yield to allow review of substantive Strickland
claims.
It would now be perverse to refuse to apply this rule of equitable law to Petitioner’s
case when by doing so, Petitioner will face execution for a crime that the readily
available evidence can and will show he is actually innocent of.
In this case the facts set forth in the Statement of Facts cannot be disputed
and do show that by actions attributable exclusively to the Respondents,
Petitioner’s ability to obtain a constitutionally adequate and meaningful
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opportunity to pursue collateral post conviction review of his unconstitutionally
obtained capital convictions and sentences of death was obstructed when the state
court forced ineffective collateral counsel upon Petitioner while simultaneously
prohibiting Petitioner from protecting his own post conviction interests through Pro
Se representation.
The Florida Courts refused to address the extraordinary circumstances in
Mr. Lambrix’s case detailed in the Statement of Facts. These circumstances were
attributable to Respondents and served to obstruct and deny Lambrix a meaningful
opportunity to present and be heard on his substantive claims in the initial post
conviction motion, or Mr. Lambrix’s specifically asserted claim that under Schulp v.
Delo’s fundamental miscarriage of justice doctrine any otherwise applicable
procedural bars must yield. Through counsel, Lambrix did then present to this
Court by way of Petition for Writ of Certiorari, the same questions of Constitutional
law that this Court subsequently addressed in Martinez v. Ryan.
b. Strickland Claims Not Heard By Any Reviewing Court Establishing
Actual Innocence
Because of severely limited space in the instant pleading, these claims can
only be summarized and are intended to supplement the Statement of Facts. They
are also intended to establish that substantive claims do exist that have never been
heard or adjudicated on the merits by any state or federal court due to the
deprivation of initial review collateral counsel.
(i)
(ii)
Denial of fundamental right to be tried before a fair and impartial jury.
See Statement of Facts at pages 8-9.
Trial counsel completely failed to subject the State’s circumstantial
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(iii)
case of premeditated murder to a meaningful adversarial testing and
to establish Mr. Lambrix’s innocence with readily available evidence.
See Statement of Facts at pages 4-8; 16-19.
The denial of effective assistance of trial counsel during the penalty
phase of trial resulted in Mr. Lambrix being unconstitutionally
sentenced to death. See Statement of Facts at pages 9-10.
As this Court recognized in Lambrix v. Singletary, 520 U.S. 518 (1997), there is no
question that Lambrix was unconstitutionally sentenced to death by the use of
vague and misleading jury instructions. However, by a marginal 5 to 4 vote this
Court denied relief upon the finding that Lambrix’s counsel failed to timely raise
the Espinosa claim, thereby resulting in a procedural bar. Under Martinez v. Ryan
and in light of the extraordinary circumstances established herein, this issue must
also be revisited. Collectively, there is little question that Mr. Lambrix was
unconstitutionally sentenced to death as the result of the deprivation of his right to
the effective assistance of trial counsel, then deprived of any fair and meaningful
opportunity to present and be heard upon these substantive Strickland v.
Washington claims due to the ineffective assistance of initial review collateral
counsel.
c. Interpretation of Second in Time Habeas Brought Under Martinez v.
Ryan as Successive in Nature Amounts to Unconstitutional Suspension of
Writ of Habeas
The right to seek relief by way of writ of habeas corpus is a fundamental
constitutional principle. Felker v. Turpin, 518 U.S. 651 (1996); Lonchar v. Thomas,
517 U.S. 314 (1996) in which the concepts of fundamental fairness and doctrine of
equitable law have historically governed such applications. Holland v. Florida, 560
U.S. 631 (2010); Martinez v. Ryan, 132 S. Ct. 1309 (2012).
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Obviously, this constitutional principle so deeply rooted in our democracy is
inherently dependent upon the petitioner being provided a fair and meaningful
opportunity to petition the court for the relief sought. When by actions attributable
exclusively to the government impede and obstruct a petitioner’s ability to seek
habeas relief, then as a matter of fundamental fairness, equitable relief must be
available to protect against the deprivation of this constitutionally protected right.
The refusal to allow Petitioner to seek the form of equitable relief now
available under Martinez effectively amounts to a suspension of writ of habeas in
violation of Article I, Section 9 of the U.S. Constitution. (“The privilege of writ of
habeas corpus shall not be suspended”). See, Felker v. Turpin, 518 U.S. 651 (1996)
(implicitly recognizing that if the provisions of the AEDPA were to be interpreted
and applied in a manner that did obstruct meaningful review, then the
constitutionality of the AEDPA would become subject to challenge.). In re Troy
Davis, 130 S. Ct. 1, 2 (2010) (questioning constitutionality of the AEDPA when
applied to deny any state or federal court review of claim of innocence.).
By unreasonably interpreting Petitioner’s second in time habeas as a
successive petition subject to the AEDPA’s substantial restrictions enumerated in
28 U.S.C. § 2244(b)(3)(A), the lower courts effectively closed the door to any review
of Petitioner’s substantive federal claims in a manner that constitutes a suspension
of writ of habeas corpus.
Quite simply, no matter how persuasive Petitioner’s legitimate claim of
innocence might be, it cannot be brought as a successive petition under §
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2244(b)(3)(A) as these statutory provisions allow only for claims brought under a
new rule of constitutional law held to be retroactive to the case (which this Court
explicitly stated the equitable rule of law established in Martinez is not a new rule
of constitutional law), or upon newly discovered evidence that was unavailable at
the time of Petitioner’s initial federal habeas.
The readily available evidence substantiating Petitioner’s actual innocence
through presentation of substantive Strickland claims was available at the time of
Petitioner’s initial habeas, therefore cannot be construed as newly discovered and
this cannot be brought as a successive petition under § 2244 (b)(3)(A).
Further, even if a successive petition could be arguably sought by
interpreting the new rule of equitable law established in Martinez as retroactively
applicable to cases such as Petitioner’s, in which extraordinary circumstances can
be shown, to subject such petitions in capital cases as successive and permissible
only under § 2244(b)(3)(A) would categorically deny death-sentenced petitioners of
any meaningful opportunity to present and be heard upon the substantive
Strickland claims pertaining to the penalty phase ineffective assistance of trial
counsel as the law is well established that only the conviction and not the sentence
can be challenged in a successive petition brought under § 2244(b)(3)(A).
The Eleventh Circuit could not have made this unyielding rule of law more
clear than in the recent case of In re Warren Hill, 715 F.3d 284, 297 (11th Cir. 2010)
when the court categorically stated that “federal law does not authorize the filing of
a successive (habeas petition) based on a sentencing error in death cases”, relying
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on In re Diaz, 471 F.3d 1262, 1263-64 (11th Cir. 2006); In re Provenzano, 215 F.3d
1233, 1237 (11th Cir. 2000); In re Jones, 137 F.3d 1271, 1273-74 (11th Cir. 1998);
and In re Medina, 109 F.3d 1556, 1565 (11th Cir. 1997).
Unreasonably interpreting a second in time petition brought under Martinez
as successive in nature and subject to the unyielding restrictions of § 2244(b)(3)(A),
which clearly would not be available, effectively serves to deprive capital habeas
petitioners of any meaningful opportunity to present and be heard upon substantive
federal constitutional claims and amounts to an unconstitutional suspension of writ
of habeas.
Conclusion
For the above reasons, Petitioner respectfully requests that this Court grant
the petition for a writ of certiorari.
RESPECTFULLY SUBMITTED,
_____________________________
WILLIAM M. HENNIS III*
LAW OFFICE OF THE CAPITAL COLLATERAL
REGIONAL COUNSEL – SOUTH
1 EAST BROWARD BOULEVARD, SUITE 444
FORT LAUDERDALE, FL 33301
(954) 713-1284
MAY 2, 2014
* COUNSEL OF RECORD
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