Lead Opinion
Cary Michael Lambrix is a prisoner under sentence of death for whom a death warrant was signed. This Court stayed the death warrant as a result of the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —,
Lambrix was convicted and sentenced to death for the 1983 first-degree murder of two victims after Lambrix had invited them to his trailer to eat dinner. Lambrix v. State,
After the Governor signed a death warrant on November 30, 2016, and the execution was set for February 11, 2016, this Court entered a scheduling order, providing a deadline by which Lambrix could file any successive motions for postconviction relief. Lambrix filed both a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 and a motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. On December 21, 2015, the postconviction court summarily denied both Lambrix’s successive motion for post-conviction relief and his motion for DNA testing. Lambrix appealed these orders to this Court and filed a petition for writ of habeas corpus. After the United States Supreme Court issued its opinion in Hurst v. Flоrida,
FACTS AND PROCEDURAL HISTORY
The facts of this case are set forth in Lambrix’s direct appeal of his conviction and sеntence of death:
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 Lam-berson, 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 proсeeded 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.
Lambrix,
The Governor signed a death warrant for Lambrix, scheduling his execution for November 30, 1988. In response to the death warrant, Lambrix then filed an initial postconviction motion, which was summarily denied. This Court affirmed the summary denial, concluding that even taking all of Lambrix’s allegations as true, there was no prejudice.
In addition, either through counsel or in a pro se capacity, Lambrix has filed numerous successive petitions for postconviction relief and successive habeas petitions
Lambrix has likewise filed federal pleadings before the federal district court, including a Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 in 1988. After granting an evidentiary hearing on the motion, the federal district court denied relief and the Eleventh Circuit Court of Appeals affirmed the denial of relief. Lambrix v. Dugger, No. 88-12107-CIV-Zloch (S.D. Fla. May 12, 1992), aff'd
In addition, Lambrix filed numerous other pro se pleadings in federal court that have been denied. See, e.g., Lambrix v.
After the Governor signed a death warrant on November 30, 2015, Lambrix filed both a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 and a motion’ for postcon-viction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. On December 21, 2015, the postconviction court summarily denied both Lambrix’s succеssive motion for postconviction relief and his motion for DNA testing. Lambrix appeals these orders and has filed a petition for writ of habeas corpus,
ANALYSIS
On appeal to this Court, Lambrix raises the following claims: (1) whether he was deprived of effective assistance of counsel based on a conflict of interest and whether a United States v. Cronic,
POSTCONVICTION MOTION
Conflict of Interest and Cronic Claim
In his first claim on appeal, Lam-brix contends that his trial cоunsel had a conflict of interest. As support for this claim, Lambrix relies on an FBI report that allegedly reflects that at the time of trial, a member of the defense team believed Lambrix was a difficult client and had lied to them—a document that was received by defense counsel in 1999. Lambrix frames this claim both as a conflict of interest claim and a claim supported by Cronic,
[T]he person giving the statement merely indicated to the FBI agent that Defendant was a difficult client, had not been forthcoming, and had threatened to complain about counsel in collateral proceedings if his trial outcome was not favorable. The record reflects that these statements have all turned out to be true. There is no actual conflict of interest on the part of trial counsel based solely on the statemеnt of an unknown individual from the Public Defender’s Office to the FBI agent.
The postconviction court did not err in denying relief.
Lambrix’s claim is untimely. As this is a successive postconviction motion filed more than one year after the convictions and sentences became final, in order for this claim to be considered, it must meet one of three narrow exceptions: (1) the facts on which the claim is predicated were not known to himself or his attorney and “could not have been ascertained by the exercise of due diligence;” (2) a fundamental constitutional right that was not established within the one-year time frame after the judgment and sentence became final and which has been held to apрly retroactively; or (3) postconviction counsel negligently failed to file a full or timely motion. See Fla. R. Crim. P. 3.851(d)(2).
In this case, Lambrix asserts he can raise this claim based on newly discovered evidence and relies on an FBI report that he acknowledges his counsel received in 1999. “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.” Jimenez v. State,
While Lambrix recognizes that this “new” evidence was received seventeen years ago, he asks this Court to excuse the extreme untimeliness for two reasons. First, he asserts that three days after his counsel received the annotated FBI records, his counsel at Capital Collateral Regional Counsel-Middle Region (CCRC-Middle) was removed from the case, and the judge appointed registry counsel and later CCRC-South. By the time that Lam-brix’s case was finally moved to CCRC-South and his new attorneys obtained all of the files, more than one year had passed from the date CCRC-Middle received the report. However, Lambrix never explains how such a justification would excuse a seventeen-year delay, particularly when Lambrix has filed numerous successive postconviction motions since 1999 without raising this claim. In essence, Lambrix is asserting that no time limit should exist in this case—a clearly meritless position.
Second, Lambrix contends that there was never an opportunity to file his Cronic claim in a timely manner because a 2007 order by the posteonviction court prohibited any ineffective assistance of counsel claims to be litigated after the initial rounds of postconviction litigation ended in 1992. However, if Lambrix sought to raise a claim to the postconviction court and was denied the opportunity, he was required to appeal it in those proceedings, as opposed to waiting until a death wаrrant was signed. Accordingly, we deny this claim because it is untimely and procedurally barred. See, e.g., Porter v. State,
Even if we addressed this claim on the merits, the allegations raised are inadequate to establish a Cronic claim. Specifically, in Cronic, the United States Supreme Court held that the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate” by requiring defense counsel to put the prosecution’s case to meaningful adversarial testing аnd that if no meaningful adversarial testing occurred at all, a defendant does not need to specifically show prejudice.
This case does not involve the situation required to create a Cronic violation, which is limited to circumstances where “the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the ‘likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.’ ” Crain v. State,
Full and Fair Hearing on Lambrix’s DNA Motion
In his second claim, Lambrix challenges the postconviction court’s denial of his motion for DNA testing, which summarily denied the motion as follows:
1. Defendant requests DNA testing of the female victim’s clothing, the tire iron, and the t-shirt wrapped around the tire iron. The motion indicates that Defendant believes the latter two items are in the custody of the Glades Clerk, but that he has been unable to locate the female victim’s clothing. Defendant believes that had DNA evidence that did not match Defendant been presented to the jury, it would have been “more likely” to present a reasonable doubt to the jury, leading to an acquittal.
2. Rule 3.853 requires that a motion for DNA testing must demonstrate (1) a statement of the facts relied upon in support of the motion, including a de--scription of the physical evidence containing DNA. to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained; (2) a statement that the evidence was not previously tested for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA tеsting techniques likely would produce a definitive result establishing'that the movant is not the person who committed the crime; (3) a statement that the movant is 'innocent and how the DNA testing requested by the motion will exonerate the movant of the*986 crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime; and (4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received.
3. Defendant has failed to make facially or legally sufficient allegations. While Defendant asserts his innocence, he has failed to demonstrate how testing those items would exonerate him or mitigate his sentence. Further, Defendant’s identity is not a genuinely disputed issue in this case, since Defendant admits he was present, and asserts the defense of self defense. Defendant filed a prior 3.853 motion in conjunction with his fourth successive 3.851 motion, seeking testing of the hairs found on the t-shirt, which were both denied on the merits. Defendant concedes that the female victim’s clothing is missing. Apparently, inquiries to the Lee, Hendry and Glades Clerks, and the Hendry and Lee County Sheriffs Offices resulted in responses that those locations did not have that evidence. The agencies deny having any physical evidence. Letters between defense counsel and the Glades County Sheriffs Office indicate that a hurricane damaged the storage facility, and the evidence in this case was likely destroyed with the files. Copies are attached. Thus, it appears that the victim’s clothing is unavailable, through no fault of the State.
4, In this case, even if the items were available to be tested, it is unlikely that, after three decades, there would be any viable DNA remaining to test, especially since the tire iron and t-shirt were found submerged in a stream, which would have washed away any blood evidence. Indeed, Defendant concedes that the FDLE report indicated no blood was found on those two items. Where a defendant cannot show that DNA will prove or negate a material fact, a request for testing should be denied. Scott v. State,46 So.3d 529 (Fla. 2009). Since the female victim was strangled, and Defendant admits he was involved in an altercation with the male victim, he cannot reasonably show how DNA testing of these items would give rise to a reasonable probability that he did not commit the crimes, or would result in a lesser sentence. Even if testing of the evidence found DNA and demonstrated that the DNA did not match Defendant, it would not рrove that Defendant was not present at the crime scene or the perpetrator of the crime. This kind of speculation has been held as a basis for denying a Rule 3.853 motion. See Overton v. State,976 So.2d 536 , 568-570 (Fla. 2007). As such, the evidence would not prove or negate a material fact, and would likely be inadmissible and irrelevant at trial or any future hearings.
5.Defendant has not established that the evidence would exonerate him, or result in a lesser sentence. The Court finds there is no reasonable probability that Defendant would have been acquitted or received a lesser sentence if the DNA results had been admitted at trial, especially in light of the other overwhelming evidence adduced at trial, including the testimony of witnesses that the Defendant admitted killing the yic-tims. DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence. Consalvo v. State,3 So.3d 1014 , 1016 (Fla. 2009). The Court notes that, while Rule 3.853 allows for a motion to be filed at any time, Defendant had three decades to bring such a motion, and instead waited to file this mo*987 tion until the death warrant had been signed. It appears that the motion was filed solely for the purposes of delaying the execution.
As this Court has previously set forth when addressing the denial of a previous motion for DNA testing that Lam-brix filed, “[i]t is the defendant’s burden to explаin, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lambrix,
Lambrix has failed to explain how DNA testing of any of the items would lead to his exoneration of the crime or a reduced sentence. As to the tire iron and the shirt wrapped around thе tire iron, as Lambrix himself acknowledges, prior testing already established that there was no blood on these items—an unsurprising result since the items were disposed of in a stream. Regarding Bryant’s clothing, Lam-brix provides no reason how Moore’s DNA on Bryant would exonerate Lambrix. The facts already established that Lambrix and Smith invited a couple they met at a bar to their trailer—Bryant and Moore. Further, DNA testing was performed on Bryant’s panties. Simply alleging that Bryant was found nude from the waist down- and Moore’s DNA may be on her- clothing does not establish how that would exonerate Lambrix of killing both Bryant and Moore, particularly when Moore and Bryant were together thаt evening. As this Court has held, “[i|t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Zeigler v. State,
Accordingly, Lambrix is not entitled to relief.
Full and Fair Postconviction Proceedings
As his third claim, Lambrix states vague and conclusory allegations that this Court’s December 1, 2015, scheduling order, providing a deadline by which Lam-brix could file any successive motions for postconviction relief, prevented him from making the record he feels would be necessary in the case, but never states exactly what records he was denied based on the scheduling order. This claim is insufficiеntly pled. Further, a review of the evidentia-ry hearing and the circuit court’s order likewise does not support the contention that the circuit court was unable to undertake any specific action based on the schedule. As this Court has repeatedly held, conclusory allegations do not establish a legally sufficient claim for postconviction relief. Troy v. State,
Further, to the extent that Lambrix is challenging the constitutionality of section 119.19, Florida Statutes, and Rule 3.852, he has previously raised this same' challenge, which this Court denied as follows:
As this Court has consistently upheld the constitutionality of section 119.19 and rule 3.852, we deny Lambrix’s constitutional challenge to- section 119.19 and rule 3.852 without further discussion. See, e.g., Wyatt v. State, 71 So.3d*988 86, 111 (Fla. 2011) (denying claim that these provisions unconstitutionally restrict a defendant’s right to public-records access because they impermissibly mandate that his demand for public records not be “overly broad or unduly burdensome” and that he make his own search for records).
Lambrix,
Whether the Totality of the Punishment is Unconstitutional
In his final posteonviction claim, Lambrix alleges that the totality of the punishment the State hаs imposed on him, which now includes not just execution, but also more than three decades of being on death row, violates the Eighth Amendment. In support, Lambrix relies on language contained in Justice Stevens’ memorandum opinion regarding the United States Supreme Court’s denial of certiorari review in Lackey v. Texas,
This Court has consistently rejected this claim, including for inmates who have been on death row longer than Lambrix:
Correll next contends that the length of time he has spent on death row, over twenty-nine years, constitutes cruel and unusual punishment. ... [Tjhis Court has repeatedly rejected such challenges. See, e.g., Pardo v. State,108 So.3d 558 , 569 (Fla. 2012) (twenty-four years); Johnston v. State,27 So.3d 11 , 27 (Fla. 2010) (almost twenty-five yеars); Tompkins v. State,994 So.2d 1072 , 1085 (Fla. 2008) (twenty-three years); Booker v. State,969 So.2d 186 , 200 (Fla. 2007) (almost thirty years). Further, executions of inmates who have been on death row as long as, or longer than, Correll have been permitted. See, e.g., Ferguson v. State,101 So.3d 362 , 366 (Fla. 2012) (more than thirty years); Waterhouse v. State,82 So.3d 84 , 87 (Fla. 2012) (more than thirty-one years); Valle v. State,70 So.3d 530 , 552 (Fla. 2011) (thirty-three years). Correll is not entitled to relief on this claim.
Correll v. State,
Thus, we deny this claim.
HABEAS PETITION
Nommanimous Jury Recommendation for Death and Hurst Challenge
In his motion for posteonviction relief, Lambrix raised a Sixth Amendment claim based on Ring v. Arizona,
For the reasons cited in Asay,
Whether the Postconviction Judge was Biased
In his second habeas claim, Lam-brix challenges whether this Court erred in denying a claim in prior proceedings that alleged his postconviction judge was biased. See Lambrix,
Lambrix cannot use a successive petition for writ of habeas corpus to raise claims that he raised in a prior proceeding. As this Court has long held, “[h]abeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postcon-viction proceedings.” Diaz v. State,
Clemency Proceedings
In his final habeas claim, Lambrix contends that his clemency proceedings have been inadequate, even though he acknowledges that he had three prior opportunities, or three prior “bites of the clеmency apple.” In support, he contends that his initial clemency proceeding occurred prior to his federal habeas proceedings and the clemency board did not even question him, while the last two proceedings did not involve any interviews or formal proceedings.
This Court has previously rejected similar claims. For example, in Pardo v. State,
First, Pardo had a clemency proceeding in 1990 at which he was represented by counsel, and we have previously rejected the argument that a defendant is entitled to present a full accounting of mitigation evidence as part of the clemency process. See Grossman v. State,29 So.3d 1034 , 1044 (Fla. 2010); Johnston v. State,27 So.3d 11 , 25 (Fla. 2010); Glock v. Moore,776 So.2d 243 , 252-53 (Fla. 2001). Second, we have likewise rejected the argument that a long time lapse between a defendant’s clemency proceeding and the signing of his death warrant renders the clemency process inadequate or entitles the defendant to a second proceeding. See Gore [v. State], 91 So.3d [769,] 778-79 [(Fla. 2012)];*990 Johnston,27 So.3d at 25-26 ; Bundy v. State,497 So.2d 1209 , 1211 (Fla. 1986).
Id. at 568. To the extent that Lambrix is challenging the decision reached by the executive branch, we have consistently held, “clemency is an executive function and ..., in accordance with the doctrine of separation of powers, we will not generally second-guess the executive’s determination that clemency is not warranted.” Id.; see also Johnston,
CONCLUSION
In accordance with our analysis above, we affirm the postconviction court’s denial of Lambrix’s successive rule 3.851 motion for postconviction relief and deny his petition for writ of habeas corpus. Additionally, we lift the stay entered' on February 2, 2016.
It is so ordered.
Notes
. On direct appeal, Lambrix asserted: (1) the exclusion of jurors opposed to the death penalty is unconstitutional and the trial court erred in excluding one of the potential jurors fоr cause; (2) the trial court violated his right to confront witnesses by limiting his cross-examination of the state’s key witness, Frances Smith; (3) 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; and (4) the trial court erred in allowing the medical examiner, Dr. Schultz, to use the term "homicide” in reference to the deaths of the victims. Lambrix,
. On appeal, Lambrix asserted that his trial counsel was ineffective because: (1) counsel failed to develop additional evidence that would have permitted a jury instruction on voluntary intoxication, and (2) counsеl failed to introduce evidence of Lambrix’s alcoholism during the penalty phase of the trial.
. See, e.g., Lambrix v. Friday,
. Teague v. Lane,
Concurrence Opinion
concurring in result.
Lambrix is the subject of a pending death warrant. Majority op. at 980. The jury’s recommendations for a sentence of death by votes of eight to four and ten to two without any factual findings indicate that the Hurst error in Lambrix’s case was not harmless beyond a reasonable doubt. See Hurst v. State,