          Supreme Court of Florida
                                  ____________

                                   No. SC16-8
                                  ____________

                         CARY MICHAEL LAMBRIX,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                   No. SC16-56
                                  ____________

                         CARY MICHAEL LAMBRIX,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                 [March 9, 2017]

PER CURIAM.

      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, 136 S. Ct. 616, 619
(2016), to determine if that opinion was entitled to retroactive application to a

death sentence that was final in 1986.

      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, 494 So. 2d 1143, 1145 (Fla. 1986). On direct appeal, this Court

upheld Lambrix’s two convictions of first-degree murder and his two death

sentences. Id. at 1148.

      After the Governor signed a death warrant on November 30, 2015, 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 postconviction 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.

Florida, 136 S. Ct. 616, this Court stayed his execution and permitted supplemental

briefing and oral argument in order to fully consider the impact of Hurst v. Florida

in this case. In accordance with our opinion in Asay v. State, 41 Fla. L. Weekly


                                         -2-
S646, 2016 WL 7406538 (Fla. Dec. 22, 2016), we conclude that Lambrix is not

entitled to a new penalty phase based on Hurst v. Florida, and our opinion in Hurst

v. State (Hurst), 202 So. 3d 40 (Fla. 2016), and we further reject the other grounds

for relief that he raised as devoid of merit. Accordingly, we affirm the

postconviction court’s denial of relief and also deny Lambrix’s separate petition

for habeas corpus.

                     FACTS AND PROCEDURAL HISTORY

      The facts of this case are set forth in Lambrix’s direct appeal of his

conviction and sentence 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 Lamberson, and Aleisha Bryant. Late that
      evening, they all ventured to Lambrix’ trailer to eat spaghetti. Shortly
      after their arrival, Lambrix and Moore went outside. Lambrix
      returned about twenty minutes later and requested Bryant to go
      outside with him. About forty-five minutes later Lambrix returned
      alone. Smith testified that Lambrix was carrying a tire tool and had
      blood on his person and clothing. Lambrix told Smith that he killed
      both Bryant and Moore. He mentioned that he choked and stomped
      on Bryant and hit Moore over the head. Smith and Lambrix
      proceeded to eat spaghetti, wash up and bury the two bodies behind
      the trailer. After burying the bodies, Lambrix and Smith went back to
      the trailer to wash up. They then took Moore’s Cadillac and disposed
      of the tire tool and Lambrix’ bloody shirt in a nearby stream.




                                        -3-
Lambrix, 494 So. 2d at 1145. Lambrix raised four issues on direct appeal, which

this Court denied.1

      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.2 Lambrix v. State, 534 So. 2d 1151, 1153-54 (Fla.

1988). The dissent asserted that an evidentiary hearing should have been held.

Id. at 1154 (Kogan, J., dissenting). Lambrix also filed a petition for writ of habeas

corpus in this Court, alleging that his appellate counsel was ineffective for failing

to raise numerous claims, including: (1) the trial court erred in denying a motion

for individual and sequestered voir dire concerning the effect of pretrial publicity;



       1. 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 for 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, 494 So. 2d at 1145-48.

      2. 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) counsel failed to
introduce evidence of Lambrix’s alcoholism during the penalty phase of the trial.


                                         -4-
(2) it was error for Lambrix not to be present during a part of voir dire; (3) it was

error for the court to have approved certain stipulations in Lambrix’s absence

while the jury was being selected; and (4) the trial court erred in not instructing the

jury as to voluntary intoxication. Lambrix v. Dugger, 529 So. 2d 1110, 1111-12

(Fla. 1988). This Court denied relief. Id. at 1112.

      In addition, either through counsel or in a pro se capacity, Lambrix has filed

numerous successive petitions for postconviction relief and successive habeas

petitions before the trial court and this Court—all of which have been denied. See,

e.g., Lambrix v. State, 559 So. 2d 1137, 1138 (Fla. 1990) (affirming the summary

denial of a pro se petition for writ of habeas corpus, filed with the trial court, in

which Lambrix asserted that his collateral counsel was ineffective for failing to

raise a claim of juror misconduct because one of the jurors in his second trial failed

to disclose that she had been on the venire prior to Lambrix’s first trial); Lambrix

v. Singletary, 641 So. 2d 847, 848-49 (Fla. 1994) (denying a successive habeas

petition that asserted an entitlement to relief based on Espinosa v. Florida, 505 U.S.

1079 (1992), challenged various aggravators, and raised an ineffective assistance

of counsel claim); Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996), cert. denied,

522 U.S. 1122 (1998) (affirming the summary denial of a successive

postconviction motion that raised new ineffective assistance of counsel claims and

alleged a Faretta v. California, 422 U.S. 806 (1975), violation); Lambrix v. State,


                                          -5-
39 So. 3d 260, 275 (Fla. 2010), cert. denied, 562 U.S. 1145 (2011) (affirming the

denial of multiple claims including newly discovered evidence claims); Lambrix v.

State, 124 So. 3d 890, 904 (Fla. 2013), cert. denied, 134 S. Ct. 1789 (2014)

(affirming the denial of two successive postconviction motions and denying a writ

petition in a consolidated opinion). Lambrix also filed numerous other pleadings

in this Court that have been denied or dismissed.3

      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.



       3. See, e.g., Lambrix v. Friday, 525 So. 2d 879 (Fla. 1988) (table decision
dismissing extraordinary relief) (Case No. 71,818); Lambrix v. Martinez, 534 So.
2d 400 (Fla. 1988) (table decision dismissing mandamus) (Case No. 73,120);
Lambrix v. Reese, 705 So. 2d 902 (Fla. 1998) (table decision denying mandamus)
(Case No. 91,724); Lambrix v. State, 727 So. 2d 907 (Fla. 1998) (table decision
denying prohibition) (Case No. 94,221); Lambrix v. State, 766 So. 2d 221 (Fla.
2000) (table decision dismissing mandamus) (Case No. SC00-744); Lambrix v.
State, 900 So. 2d 553 (Fla. 2005) (table decision dismissing mandamus) (Case No.
SC04-2020); Lambrix v. State, 944 So. 2d 345 (Fla. 2006) (table decision
dismissing mandamus) (Case No. SC06-38); Lambrix v. State, 74 So. 3d 1083
(Fla. 2011) (unpublished order denying petition for writ of mandamus and/or writ
of prohibition) (Case No. SC10-1517); Lambrix v. Crews, 118 So. 3d 221 (Fla.
2013) (unpublished order denying claim based on Holland v. Florida, 560 U.S. 631
(2010)) (Case No. SC11-1138); Lambrix v. State, 139 So. 3d 298 (Fla.), cert.
denied, 135 S. Ct. 174 (2014) (unpublished order denying claim based on Martinez
v. Ryan, 132 S. Ct. 1309 (2012)) (Case No. SC13-1471).


                                        -6-
Fla. May 12, 1992), aff’d 72 F.3d 1500 (11th Cir. 1996). In these federal

proceedings, Lambrix challenged whether he was entitled to relief based on his

Espinosa claim. The United States Supreme Court ultimately affirmed the denial

of relief on that claim, holding that Espinosa was not dictated by then-existing

precedent, but announced a “new rule” as defined in Teague,4 and does not apply

retroactively. Lambrix v. Singletary, 520 U.S. 518, 528 (1997).

      In addition, Lambrix filed numerous other pro se pleadings in federal court

that have been denied. See, e.g., Lambrix v. Jones, 136 S. Ct. 541 (2015) (denying

petition for writ of certiorari); In re Lambrix, 136 S. Ct. 537 (2015) (denying

petition for writ of habeas corpus); In re Lambrix, 131 S. Ct. 2907 (2011) (denying

petition for writ of habeas corpus); In re Lambrix, 776 F.3d 789, 793 (11th Cir.

2015) (denying Lambrix’s application for leave to file a successive § 2254 petition,

because the claims were precluded by the law-of-the-case doctrine and/or the prior-

panel-precedent rule); Lambrix v. Sec’y, Fla. Dept. of Corrs., 756 F.3d 1246, 1249

(11th Cir. 2014) (affirming the district court’s denial of Lambrix’s motion for

substitute counsel and denying his assertion that he was entitled to raise

procedurally-defaulted claims in a successive § 2254 habeas petition based on

Martinez v. Ryan, 132 S. Ct. 1309 (2012)); In re Lambrix, 624 F.3d 1355 (11th




      4. Teague v. Lane, 489 U.S. 288 (1989).


                                        -7-
Cir. 2010) (denying leave to file a successive petition for writ of habeas corpus).

Lambrix filed his latest Motion for Relief from Judgement, which the federal

district court denied on December 22, 2015, and subsequently denied the motion

for certificate of appealability on January 28, 2016.

      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 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

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, 466 U.S. 648 (1984), violation occurred; (2)

whether he was denied his due process rights and a full and fair hearing on his

DNA motion; (3) whether he was denied full and fair postconviction proceedings;

and (4) whether the totality of punishment that the State has imposed on him is

unconstitutional. In addition, Lambrix filed a petition for writ of habeas corpus,

raising three additional claims: (1) whether his constitutional rights were violated


                                         -8-
by the jury’s nonunanimous recommendation for death during the penalty phase;

(2) whether his postconviction judge was biased; and (3) whether the clemency

proceedings violated his constitutional rights. After the United States Supreme

Court issued its opinion in Hurst v. Florida, this Court permitted supplemental

briefing and oral argument so that the Court could fully consider the impact of

Hurst v. Florida in this case. Following oral argument this Court issued its opinion

in Hurst on remand from the United States Supreme Court. We address each of

these claims in turn.

                          POSTCONVICTION MOTION

                        Conflict of Interest and Cronic Claim

      In his first claim on appeal, Lambrix contends that his trial counsel 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, 466 U.S. at 648. The

postconviction court denied this claim, first concluding that the FBI report, raised

now, is untimely and procedurally barred since defense counsel recognized that

Lambrix’s prior attorney received the document in 1999, and thus the claim was

clearly not raised within the one-year deadline from the time that the evidence was


                                        -9-
or could have been discovered. Further, the postconviction court held that even on

the merits, the claim should be denied, explaining:

      [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 statement 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

apply 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


                                         - 10 -
the date upon which the claim became discoverable through due diligence.”

Jimenez v. State, 997 So. 2d 1056, 1064 (Fla. 2008).

      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 Lambrix’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 postconviction 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


                                        - 11 -
death warrant was signed. Accordingly, we deny this claim because it is untimely

and procedurally barred. See, e.g., Porter v. State, 653 So. 2d 374, 378 (Fla. 1995)

(affirming summary denial of conflict of interest claim where the information

which formed the basis of the conflict claim was available to the defendant).

      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 and that if no meaningful

adversarial testing occurred at all, a defendant does not need to specifically show

prejudice. 466 U.S. at 656-59; see also Stano v. Dugger, 921 F.2d 1125, 1152

(11th Cir. 1991) (en banc) (holding that Cronic “created an exception to the

Strickland [ v.Washington, 466 U.S. 668 (1984),] standard for ineffective

assistance of counsel and acknowledged that certain circumstances are so

egregiously prejudicial that ineffective assistance of counsel will be presumed”).

In Cronic, however, the Supreme Court held that the Sixth Amendment was not

violated—despite the fact that defense counsel was given only twenty-five days to

prepare for trial, that counsel was young and inexperienced in criminal matters,

that the charges were complex, and that some witnesses were not easily




                                        - 12 -
accessible—in the absence of showing of actual ineffectiveness. Cronic, 466 U.S.

at 665-67.

      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, 78 So. 3d 1025, 1042 n.11 (Fla. 2011) (quoting

Chavez v. State, 12 So. 3d 199, 212 (Fla. 2009)). In this case, counsel was never

denied so Lambrix cannot rely on the per se rule from Cronic to avoid establishing

prejudice. See, e.g., id. (denying a Cronic claim where the assistance of counsel

was not denied entirely or withheld during a critical stage of the proceeding).

Thus, this claim is meritless.

                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

                                         - 13 -
motion, including a description 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 testing
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 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 Sheriff’s 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 Sheriff’s 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

                                   - 14 -
      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
      prove 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 victims. 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 motion 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 Lambrix filed, “[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.” Lambrix, 124 So. 3d at 895-96 (quoting Scott

v. State, 46 So. 3d 529, 533 (Fla. 2009)). “[A] trial court does not err in denying a


                                        - 15 -
motion for DNA testing where the defendant cannot show that there is a reasonable

probability that the absence or presence of DNA at a crime scene would exonerate

him or lessen his sentence.” Id. at 896.

      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 the 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,

Lambrix 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 that 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, 116 So.

3d 255, 258 (Fla. 2013) (quoting Consalvo v. State, 3 So. 3d 1014, 1016 (Fla.

2009)). Lambrix has not done so.


                                       - 16 -
      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

Lambrix 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

insufficiently pled. Further, a review of the evidentiary 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, 57 So. 3d 828, 840 (Fla. 2011). Further, if

Lambrix had raised a meritorious claim and needed additional time to litigate the

claim or to ensure an accurate and full record, a stay could be granted. He simply

has not raised any claim that requires a stay.

      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 86, 111 (Fla. 2011) (denying claim

                                        - 17 -
      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, 124 So. at 895 n.2. Thus, Lambrix is not entitled to relief.

          Whether the Totality of the Punishment is Unconstitutional

      In his final postconviction claim, Lambrix alleges that the totality of the

punishment the State has 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, 514 U.S. 1045 (1995).

      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. . . . [T]his 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 years); 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.



                                        - 18 -
Correll v. State, 184 So. 3d 478, 486 (Fla.), cert. denied, Nos. 15-6551 & 15A424,

2015 WL 6111441 (Oct. 29, 2015). Further, Lambrix has contributed to the

lengthy time and delay by continually challenging his convictions and sentences.

He “cannot now contend that his punishment has been illegally prolonged because

the delay in carrying out his sentence is in large part due to his own actions in

challenging his conviction[s] and sentence[s].” Valle v. State, 70 So. 3d 530, 552

(Fla. 2011) (quoting Tompkins, 994 So. 2d at 1085).

      Thus, we deny this claim.

                               HABEAS PETITION

    Nonunanimous Jury Recommendation for Death and Hurst Challenge

      In his motion for postconviction relief, Lambrix raised a Sixth Amendment

claim based on Ring v. Arizona, 536 U.S. 584 (2002), arguing that his case should

be stayed pending the outcome of the United States Supreme Court’s decision in

Hurst v. Florida, 136 S. Ct. 616 (2016). The postconviction court summarily

denied the claim, relying on our decision in Hurst v. State, 147 So. 3d 435 (Fla.

2014), which denied a Ring claim based on prior United States Supreme Court

precedent that upheld Florida’s capital sentencing scheme. Before this Court,

Lambrix raised his Ring/Hurst v. Florida claim in his habeas petition, rather than in

the appeal of his postconviction motion. While this case was pending, the United

States Supreme Court reversed our decision in Hurst v. State and, for the first time,


                                        - 19 -
expressly overruled Spaziano v. Florida, 468 U.S. 447 (1984), and Hildwin v.

Florida, 490 U.S. 638 (1989), two decisions that had held Florida’s capital

sentencing scheme did not violate the Sixth Amendment. Hurst v. Florida, 136 S.

Ct. at 624. Lambrix contends that he is entitled to retroactive application of Hurst

v. Florida and thus, his sentences of death must be vacated.

      For the reasons cited in Asay, 41 Fla. L. Weekly at S646, we reject

Lambrix’s claim. Lambrix’s conviction was final in 1986 and accordingly he is

not entitled to relief based on Hurst.

                  Whether the Postconviction Judge was Biased

      In his second habeas claim, Lambrix challenges whether this Court erred in

denying a claim in prior proceedings that alleged his postconviction judge was

biased. See Lambrix, 124 So. 3d 890. In particular, during a prior appeal from a

successive motion for postconviction relief and a petition for writ of prohibition,

Lambrix asserted that the postconviction judge was biased based on her rulings and

because the judge failed to reveal that she had been previously employed as an

Assistant State Attorney. In addition, Lambrix asserted that a staff attorney

working for the Twentieth Judicial Circuit had assisted Lambrix. Id. at 897.

During those prior proceedings, this Court remanded the proceeding for an

evidentiary claim, but the claim was subsequently denied. Id. This Court fully

considered Lambrix’s position and rejected it in that proceeding. Id. at 898.


                                         - 20 -
      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 postconviction proceedings.” Diaz v. State,

132 So. 3d 93, 122 (Fla. 2013) (quoting Wright v. State, 857 So. 2d 861, 874 (Fla.

2003)). As this ground clearly was already raised and rejected by this Court, this

claim is procedurally barred.

                                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 clemency 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, 108 So. 3d 558, 568-69 (Fla. 2012), we denied a challenge to the clemency

proceeding based on a lack of opportunity to present witnesses and evidence and

based on allegations that the clemency interview took place decades before Pardo’s

death warrant was signed. This Court reasoned as follows:

            First, Pardo had a clemency proceeding in 1990 at which he
      was represented by counsel, and we have previously rejected the

                                       - 21 -
      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)]; 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, 27 So. 3d at 26 (“[W]e decline to depart from

the Court’s precedent, based on the doctrine of separation of powers, in which we

have held that it is not our prerogative to second-guess the executive on matters of

clemency in capital cases.”); Rutherford v. State, 940 So. 2d 1112, 1122-23 (Fla.

2006) (denying a similar clemency claim because the defendant had a clemency

proceeding and because clemency is an executive function). Accordingly, this

claim should be denied.

                                  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




                                        - 22 -
deny his petition for writ of habeas corpus. Additionally, we lift the stay entered

on February 2, 2016.

      It is so ordered.

LABARGA, C.J., and POLSTON, J., concur.
PARIENTE, J., concurs in result with an opinion.
CANADY, J., concurs in result.
LEWIS, J., concurs in part and dissents in part.
QUINCE, J., recused.
LAWSON, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

      Lambrix is the subject of a pending death warrant. Majority op. at 1. 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, 202 So. 3d 40, 65

(Fla. 2016); Lambrix v. State, 494 So. 2d 1143 (Fla. 1986). Therefore, I would

vacate Lambrix’s sentences of death and remand for a new penalty phase under

Hurst based on my opinion in Asay v. State, 41 Fla. L. Weekly S646, 2016 WL

7406538 (Fla. Dec. 22, 2016), and elaborated on in Gaskin v. State, 42 Fla. L.

Weekly S16, 2017 WL 224772 (Fla. Jan. 31, 2017). Nevertheless, I recognize that

I am bound by this Court’s precedent in Asay, which is now final; and, because




                                        - 23 -
Lambrix’s sentences became final in 1986, a majority of this Court would not

apply Hurst retroactively to his case. Accordingly, I concur in result.

Two Cases:

An Appeal from the Circuit Court in and for Glades County,
     James Dean Sloan, Judge - Case No. 221983CF000012CFAXMX
And an Original Proceeding – Habeas Corpus

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region,
William McKinley Hennis, III, Litigation Director, Capital Collateral Regional
Counsel, Southern Region, Martin J. McClain, Special Assistant, Capital Collateral
Regional Counsel, Southern Region, and Jessica Leigh Houston, Michael Chance
Meyer, and Bryan E. Martinez, Staff Attorneys, Capital Collateral Regional
Counsel, Southern Region, Fort Lauderdale, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Scott Andrew Browne,
Senior Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney
General, Tampa, Florida,

      for Appellee/Respondent

Howard L. Dimmig, II, Public Defender, and Robert Arthur Young, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Amicus Curiae Florida Public Defender Association

Billy Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public
Defender, Tallahassee, Florida,

      for Amicus Curiae Capital Habeas Unit of the Office of the Federal Public
      Defender for the Northern District of Florida

Nancy Gbana Abudu, Miami, Florida, and Norman Adam Tebrugge, Tampa,
Florida,




                                        - 24 -
      for Amici Curiae American Civil Liberties Union Capital Punishment
      Project and the American Civil Liberties Union of Florida

Sonya Rudenstine, Gainesville, Florida, and Karen Marcia Gottlieb, Florida Center
for Capital Representation, Florida International University College of Law,
Miami, Florida,

      for Amicus Curiae Florida Association of Criminal Defense Lawyers




                                      - 25 -
