         Case: 16-10251   Date Filed: 03/15/2017   Page: 1 of 31


                                                             [PUBLISH]




          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-10251
                     ________________________

                 D.C. Docket No. 4:88-cv-12107-WJZ



CARY MICHAEL LAMBRIX,

                                                        Petitioner-Appellant,

                                versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                       Respondent-Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________
              Case: 16-10251    Date Filed: 03/15/2017   Page: 2 of 31


Before ED CARNES, Chief Judge, TJOFLAT, and HULL, Circuit Judges.

HULL, Circuit Judge:

      On February 1, 2016, Petitioner Cary Lambrix filed a motion for a certificate

of appealability (“COA”) in this Court. Lambrix, a Florida prisoner sentenced to

death, seeks to appeal the district court’s order denying his “Motion for Relief

from Judgment Pursuant to Rule 60(b).” Although Lambrix’s initial 28 U.S.C.

§ 2254 petition was denied in 1992, Lambrix’s Rule 60(b) motion sought to vacate

that 1992 judgment.

      Lambrix has since filed two amended motions for a COA in this Court, in

which Lambrix reasserts or readopts the claims raised in his initial motion. In this

order we address all of his claims cumulatively. After review of the record, we

deny Lambrix’s three motions for a COA and explain why.

     I. CONVICTION AND INITIAL COLLATERAL PROCEEDINGS

      Over the past 32 years, Lambrix has filed dozens of petitions, motions,

original writs, and appeals in both state and federal courts. His current Rule 60(b)

motion was merely the latest attempt to argue, once again, that some of his earlier

claims, especially his ineffective-trial-counsel claims, were improperly

procedurally defaulted or wrongly decided. Although our Court previously

compiled an exhaustive narrative of Lambrix’s lengthy journey through the court

system, see Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1250 (11th Cir.


                                          2
             Case: 16-10251     Date Filed: 03/15/2017   Page: 3 of 31


2014) (hereinafter, “Lambrix III”), we review here some of the protracted history

of Lambrix’s case to give his current Rule 60(b) motion the necessary context.

A.    Two Capital Murders in 1983

      In 1983, Lambrix brutally killed Clarence Moore and Aleisha Bryant outside

of his home by choking and stomping Bryant and hitting Moore over the head with

a tire iron. See In re Lambrix, 624 F.3d 1355, 1358-59 (11th Cir. 2010) (“Lambrix

II”). Lambrix then ate dinner with his girlfriend, Frances Smith, cleaned himself,

borrowed a shovel, buried Moore’s and Bryant’s bodies in shallow graves, and

used Moore’s car to dispose of the tire iron and his own bloody shirt in a nearby

stream. See id.

      In 1984, Lambrix was convicted of two counts of first-degree murder and

sentenced to death for the 1983 murders of Moore and Bryant. Lambrix III, 756

F.3d at 1250. At trial, counsel Robert Jacobs and Kinley Engvalson of the Office

of the Public Defender for the 20th Judicial Circuit of Florida represented Lambrix.

Id. With new appellate counsel, Lambrix appealed his 1984 convictions and two

death sentences, raising multiple issues on appeal. Id. The Florida Supreme Court

affirmed Lambrix’s convictions and sentences. See Lambrix v. State, 494 So. 2d

1143, 1145 (Fla. 1986).




                                         3
              Case: 16-10251      Date Filed: 03/15/2017    Page: 4 of 31


B.    Initial State Post-Conviction Proceedings in 1986-1988

      Lambrix, through new collateral counsel, filed his first motion for post-

conviction relief under Florida Rule of Criminal Procedure 3.850. Lambrix III,

756 F.3d at 1250. Lambrix’s first state post-conviction motion raised several

claims, including claims of ineffective assistance of trial counsel. Id. The state

trial court denied Lambrix’s post-conviction motion on the merits of every claim.

Id. Lambrix appealed this ruling, but the Florida Supreme Court affirmed. See

Lambrix v. State, 534 So. 2d 1151, 1154 (Fla. 1988).

      Lambrix filed a counseled petition for a writ of habeas corpus in the Florida

Supreme Court, and also filed a pro se habeas petition in the state trial court.

Lambrix III at 1251. Ultimately, the Florida Supreme Court, in two separate

opinions, denied Lambrix’s state habeas petitions. See Lambrix v. Dugger, 529

So. 2d 1110, 1112 (Fla. 1988) (denying original state habeas petition alleging

ineffective assistance of appellate counsel); Lambrix v. State, 559 So. 2d 1137,

1138 (Fla. 1990) (affirming trial court’s denial of state habeas petition alleging

ineffective assistance of state collateral counsel for failing to raise claim of juror

misconduct in motion for post-conviction relief).

C.    Initial Federal § 2254 Petition in 1988-1997

      In 1988, Lambrix, through counsel, petitioned the federal district court for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lambrix III, 756 F.3d at


                                            4
              Case: 16-10251     Date Filed: 03/15/2017    Page: 5 of 31


1251. Thereafter, the district court granted counsel’s motion to withdraw and

appointed new counsel for Lambrix: Robert Josefsberg and Joel Lumer, private

attorneys who volunteered with the Volunteer Lawyers Resource Center

(“VLRC”). Id. Lambrix amended his § 2254 petition to raise 28 grounds for

relief, including many claims based on the alleged “ineffective assistance of

counsel rendered by both trial and appellate counsel with respect to many stages of

the representation of [Lambrix].” Id. Thereafter, the district court appointed

additional counsel Matthew Lawry, director of the VLRC, to assist attorneys

Josefsberg and Lumer with Lambrix’s initial § 2254 petition. Id.

      In 1991, the district court held a five-day evidentiary hearing, during which

Lambrix’s counsel appeared and acted on Lambrix’s behalf. Id. In 1992, the

district court, in a 72-page order, denied every ineffective trial and appellate

counsel claim in Lambrix’s § 2254 petition on the merits. Id. at 1251-52. The

district court did not conclude that any of Lambrix’s ineffective-trial-counsel or

ineffective-appellate-counsel claims were procedurally defaulted. Id. at 1252.

      The district court also found that four other claims raised in a later-filed

amendment were “procedurally barred because they were never raised on direct

appeal nor within the two-year limit provided for by the rules governing [Rule]




                                           5
                Case: 16-10251       Date Filed: 03/15/2017       Page: 6 of 31


3.850 motions.” Id. at 1252 n.9. Notably, though, the district court alternatively

denied these four claims on the merits.1 Id.

       Lambrix appealed. Id. at 1252. Shortly thereafter, this Court granted

counsel Lumer’s motion to withdraw. Id. Counsel Lawry and Josefsberg

remained as Lambrix’s counsel. Id. On appeal, Lambrix asserted that (1) his trial

counsel rendered ineffective assistance at the guilt and penalty phases and (2) his

appellate counsel rendered ineffective assistance on direct appeal. Id.

       After briefing and oral argument, this Court reviewed the merits of the

§ 2254 claims raised on appeal, including Lambrix’s ineffective-trial-and-

appellate-counsel claims, and affirmed the district court’s denial of Lambrix’s

initial § 2254 petition. See Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996),

aff’d, 520 U.S. 518, 117 S. Ct. 1517 (1997) (hereinafter, “Lambrix I”). In

particular, this Court discussed at length, and ultimately denied on the merits,

Lambrix’s claim that his trial counsel rendered ineffective assistance at the penalty

phase and that his appellate counsel did so too on direct appeal. Id. at 1504-07.

       This Court also decided on the merits Lambrix’s claim that his trial counsel

did not inform him that he had the right to testify at his second trial and that the



       1
         These four claims were: “(1) setting aside a prior conviction, (2) an anti-sympathy
instruction claim, (3) improper instruction with respect to the weighing of the aggravating and
mitigating circumstances, and (4) the court-appointed psychiatrist rendered ineffective
assistance.” Lambrix III, 756 F.3d at 1252 n.9.
                                                6
             Case: 16-10251     Date Filed: 03/15/2017   Page: 7 of 31


ultimate decision belonged to him. In rejecting that claim on the merits, we

concluded:

      Lambrix’s claim that he was unaware of his right to testify is dubious
      considering the evidence he has adduced concerning his attempt to
      assert that right in his first trial. Moreover, after receiving an
      evidentiary hearing on this issue before the district court, Lambrix
      adduced no evidence supporting his allegation that counsel failed to
      adequately inform him of the right to testify. Therefore, Lambrix has
      simply failed to show that some action or inaction by counsel
      deprived him of “the ability to choose whether or not to testify in his
      own behalf.”

Id. at 1508 (quoting United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.

1992)). Contrary to Lambrix’s contentions, his § 2254 claims were decided on the

merits.

                   II. LAMBRIX’S SEVEN SUCCESSIVE
                  STATE POST-CONVICTION PETITIONS

      While simultaneously pursuing habeas relief through his initial § 2254

proceedings in federal court, Lambrix, with the assistance of counsel Lawry and

Josefsberg, filed a second and successive state motion for post-conviction relief

pursuant to Florida Rules of Criminal Procedure 3.850 and 3.851, which was

denied. Lambrix III, 756 F.3d at 1253. The Florida Supreme Court affirmed the

state trial court’s denial because Lambrix’s claims were untimely or impermissibly

successive under state law and, thus, were procedurally barred under state law.

See Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996). The Florida Supreme Court

denied Lambrix’s request for rehearing. See Lambrix III, 756 F.3d at 1254.

                                         7
              Case: 16-10251    Date Filed: 03/15/2017   Page: 8 of 31


      Lambrix, with the assistance of counsel Josefsberg and additional VLRC

counsel Steven Goldstein, also filed a successive state habeas petition. See

Lambrix v. Dugger, No. 92-4539 (11th Cir. Mar. 3, 1993) (unpublished). The

Florida Supreme Court denied that counseled successive state habeas petition. See

Lambrix v. Singletary, 641 So. 2d 847, 849 (Fla. 1994) (denying Lambrix’s state

habeas petition alleging Espinosa error and ineffective assistance of appellate

counsel), reh’g denied (Sept. 8, 1994).

      In May 2000, the Florida state courts appointed the Capital Collateral

Regional Counsel (“CCRC”) to serve as Lambrix’s state collateral counsel.

Lambrix III, 756 F.3d at 1254-55. CCRC-South litigation director Todd Scher

served as Lambrix’s state collateral counsel from June 2000 to May 2002. Id. at

1255. CCRC-South counsel Dan Hallenberg served as Lambrix’s state collateral

counsel from May 2002 to October 2004. Id. From October 2004 until the

present, CCRC-South litigation director William Hennis has served as Lambrix’s

state collateral counsel. Id.

      With the assistance of state collateral counsel, Lambrix filed several

additional successive state motions for post-conviction relief. See Lambrix v.

State, 39 So. 3d 260, 262-66 (Fla. 2010) (third state post-conviction proceeding,

outlining extensive history of the case); Lambrix v. State, 124 So. 3d 890 (Fla.




                                          8
                Case: 16-10251   Date Filed: 03/15/2017    Page: 9 of 31


2013), reh’g denied (Oct. 17, 2013) (fourth and fifth state post-conviction

proceedings).

      CCRC-South counsel Hennis, Neal Dupree, and Craig Trocino assisted

Lambrix in his successive state post-conviction proceedings. Lambrix III, 756

F.3d at 1255. After several evidentiary hearings, the state post-conviction court

denied relief on all of Lambrix’s claims, and the Florida Supreme Court affirmed.

See Lambrix v. State, 39 So. 3d 260, 262 (Fla. 2010), cert. denied, Lambrix v.

Florida, 562 U.S. 1145, 131 S. Ct. 917 (2011) (mem.); Lambrix v. State, 124 So.

3d 890, 893 (Fla. 2013) (concluding that Lambrix’s fourth and fifth state post-

conviction motions were “completely devoid of merit” and denying Lambrix’s

petition for a writ of prohibition), reh’g denied (Oct. 17, 2013), cert. denied,

Lambrix v. Florida, ___ U.S. ___, 134 S. Ct. 1789 (2014) (mem.).

      In March 2013, Lambrix, with the assistance of counsel Hennis, filed a sixth

state post-conviction motion, which alleged that Lambrix “was entitled to raise

procedurally barred claims of ineffective assistance of counsel based on Martinez.”

See Lambrix v. State, No. SC13-1471, 2014 WL 1271527, at *1 (Fla. Mar. 27,

2014) (citing Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012)). The state

post-conviction court denied relief, and the Florida Supreme Court affirmed. See

id. (denying Lambrix’s allegedly Martinez-based motion as meritless and

untimely).


                                           9
             Case: 16-10251      Date Filed: 03/15/2017    Page: 10 of 31


      Because an understanding of the Supreme Court’s ruling in Martinez (and in

a later companion decision, Trevino v. Thaler, 569 U.S. ___, 133 S. Ct. 1911

(2013)), is important to our ultimate conclusion, we briefly explain those decisions.

In Martinez, the U.S. Supreme Court enunciated a narrow exception to the general

rule that the lack of an attorney or attorney error in state post-conviction

proceedings does not establish cause to excuse the procedural default of a

substantive claim. 566 U.S. at 8, 13-14, 132 S. Ct. at 1315, 1318. The Supreme

Court, however, set strict parameters on the application of this exception. It

applies only where (1) state law requires a prisoner to raise ineffective-trial-

counsel claims during an initial collateral proceeding and precludes those claims

during direct appeal; (2) the prisoner failed to properly raise ineffective-trial-

counsel claims during the initial collateral proceeding; (3) the prisoner either did

not have counsel or his counsel was ineffective during those initial state collateral

proceedings; and (4) failing to excuse the prisoner’s procedural default would

result in the loss of a “substantial” ineffective-trial-counsel claim. Id. at 14, 132 S.

Ct. at 1318; see also Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014) (setting

forth the Martinez requirements). The Supreme Court later extended Martinez’s

rule to cases where state procedures, as a practical matter, make it “virtually

impossible” to actually raise ineffective-trial-counsel claims on direct appeal.

Trevino, 569 U.S. at __, 133 S. Ct. at 1918-21.


                                           10
              Case: 16-10251    Date Filed: 03/15/2017    Page: 11 of 31


        On November 30, 2015, the Governor signed a death warrant. On December

15, 2015, Lambrix filed his seventh successive motion for post-conviction relief in

Florida state court and a motion for post-conviction DNA testing. On December

21, 2015, the trial court denied both his successive motion and the motion for DNA

testing. Lambrix appealed to the Florida Supreme Court.

        On January 11, 2016, Lambrix also filed a petition for habeas corpus in the

Florida Supreme Court, raising a new claim based on Hurst v. Florida, 577 U.S.

___, 136 S. Ct. 616 (2016). Lambrix also moved for the Florida Supreme Court to

relinquish jurisdiction over his case so that his Hurst claim could be litigated

before the state trial court. On February 2, 2016, the Florida Supreme Court

denied without prejudice Lambrix’s motion to relinquish jurisdiction (to the state

trial court). The Florida Supreme Court also stayed Lambrix’s execution pending

resolution of his Hurst claim. On February 2, 2017, Lambrix filed a second motion

to relinquish jurisdiction, which the Florida Supreme Court denied on February 7,

2017.

        On March 9, 2017, the Florida Supreme Court denied Lambrix’s January 11,

2016 petition for habeas corpus and affirmed the state trial court’s denial of his

December 15, 2015 motions. The Florida Supreme Court held that Hurst was not

retroactively applicable to Lambrix’s case, following its decision in Asay v. State,

___ So. 3d ___, Nos. SC16-223, SC16-102, and SC16-628, 2016 WL 7406538, at


                                          11
               Case: 16-10251       Date Filed: 03/15/2017       Page: 12 of 31


*4, *13 (Fla. Dec. 22, 2016) (per curiam) (holding under Florida law that Hurst is

not retroactive to capital convictions where the death sentence became final before

the 2002 issuance of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)). 2

           III. NINE OTHER MISCELLANEOUS STATE PETITIONS

       Lambrix also filed numerous pro se and counseled extraordinary writ

petitions that the Florida courts either denied or dismissed. See, e.g., Lambrix v.

Friday, 525 So. 2d 879 (Fla. 1988) (tab. op.) (petition for extraordinary relief);

Lambrix v. Martinez, 534 So. 2d 400 (Fla. 1988) (tab. op.) (petition for writ of

mandamus); Lambrix v. Reese, 705 So. 2d 902 (Fla. 1998) (tab. op.) (petition for

writ of mandamus); Lambrix v. State, 727 So. 2d 907 (Fla. 1998) (tab. op.)

(petition for writ of prohibition); Lambrix v. State, 766 So. 2d 221 (Fla. 2000) (tab.

op.) (petition for writ of mandamus); Lambrix v. State, 900 So. 2d 553 (Fla. 2005)

(tab. op.) (petition for writ of mandamus); Lambrix v. State, 944 So. 2d 345 (Fla.

2006) (tab. op.) (petition for writ of mandamus); Lambrix v. State, 74 So. 3d 1083

(Fla. 2011) (tab. op.), reh’g denied (Oct. 14, 2011) (petition for writ of mandamus

and/or prohibition).




       2
         Lambrix’s two capital convictions and death sentences became final in 1986, sixteen
years before Ring was decided. In the instant Rule 60(b) case, there is no Hurst claim, much less
a viable one, because under federal law Hurst, like Ring, is not retroactively applicable on
collateral review. Cf. Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 2526 (2004)
(holding that Ring does not apply retroactively under federal law to death-penalty cases already
final on direct review).
                                               12
             Case: 16-10251     Date Filed: 03/15/2017   Page: 13 of 31


      Lambrix also filed a pro se petition for a writ of habeas corpus in the U.S.

Supreme Court, pursuant to that Court’s original habeas jurisdiction. The U.S.

Supreme Court summarily denied the petition. In re Lambrix, 563 U.S. 1007, 131

S. Ct. 2907 (2011) (mem.).

      With this background, we now turn to the three successive § 2254 federal

habeas petitions filed by Lambrix.

              IV. SUCCESSIVE § 2254 FEDERAL PETITIONS

A.    First Attempt to File a Successive Federal § 2254 Petition

      In 2010, Lambrix filed, in this Court, a 145-page pro se application for leave

to file a second or successive § 2254 petition based on twelve claims. This Court

denied Lambrix’s pro se application for leave to file a second or successive

§ 2254 petition because none of Lambrix’s claims satisfied the requirements of a

second or successive § 2254 federal habeas petition. Lambrix II, 624 F.3d at 1357-

59, 1368.

B.    Second Attempt to File a Successive Federal § 2254 Petition

      In March 2013, Lambrix filed a pro se “Motion for Appointment of

Substitute Collateral Counsel” in federal district court for the purpose of pursuing

another successive § 2254 petition based on Martinez. The district court construed

the motion as an unauthorized successive § 2254 petition and denied it without




                                         13
             Case: 16-10251      Date Filed: 03/15/2017      Page: 14 of 31


prejudice so that Lambrix could seek an order from this Court authorizing the

district court to consider the successive § 2254 petition.

      This Court affirmed the district court’s denial on the grounds that

“appointing counsel to investigate and raise ineffective-trial-counsel claims in a

successive § 2254 petition would be futile and would not serve the interests of

justice.” Lambrix III, 756 F.3d at 1263. We held that Martinez did not apply to

Lambrix because (1) his state collateral counsel actually raised ineffective-trial-

counsel claims in his initial state post-conviction proceedings; (2) his federal

counsel also raised ineffective-trial-counsel claims in his initial § 2254 petition;

and (3) the state and federal courts reviewed these claims on the merits. Id. at

1249. We further held that Lambrix’s proposed ineffective-assistance claims were

futile because they were impermissibly successive under 28 U.S.C. § 2244(b). Id.

We additionally held that to the extent Lambrix attempted to raise new ineffective-

trial-counsel claims, those claims were time-barred under 28 U.S.C. § 2244(d), and

Martinez did not toll the statute of limitations for filing § 2254 petitions. Id. We

concluded that Martinez did not (contrary to Lambrix’s suggestion) create a

“freestanding claim for challenging a conviction or sentence based on the alleged

ineffective assistance of state post-conviction counsel.” Id. at 1262.

      On January 16, 2015, Lambrix filed a petition for certiorari in the U.S.

Supreme Court challenging the denial of his motion for appointment of substitute


                                          14
             Case: 16-10251    Date Filed: 03/15/2017    Page: 15 of 31


counsel, which was denied. Lambrix v. Jones, ___ U.S. ___, 135 S. Ct. 1894

(2015) (mem.).

C.    Third Attempt to File a Successive Federal § 2254 Petition

      In December 2014, Lambrix, through counsel Hennis, filed a 101-page

application to file a successive habeas petition pursuant to 28 U.S.C.

§ 2244(b) in this Court. On January 14, 2015, this Court denied that application.

In re Lambrix, 776 F.3d 789, 791 (11th Cir. 2015) (“Lambrix IV”). Lambrix filed

a motion to recall the mandate, which this Court denied. Lambrix then filed a

motion for en banc rehearing of the denial of the motion to recall the mandate,

which we construed as a motion for reconsideration and denied on May 15, 2015.

Lambrix sought certiorari review of that decision and, on November 30, 2015,

following briefing from both parties, that petition was denied. Lambrix v. Jones,

___U.S___, 136 S. Ct. 537 (2015) (mem.).

      On August 12, 2015, Lambrix, through counsel, filed another original

habeas petition in the U.S. Supreme Court. On November 30, 2015, following a

response, that petition was denied. In re Lambrix, ___U.S.___, 136 S. Ct. 541

(2015) (mem.).

      This brings us to Lambrix’s instant Rule 60(b) motion, which the district

court denied. Lambrix now moves for a COA as to that denial.




                                         15
             Case: 16-10251      Date Filed: 03/15/2017    Page: 16 of 31


                       V. INSTANT RULE 60(b) MOTION

      On October 22, 2015, Lambrix filed a 63-page motion under Rule 60(b)(5)

and 60(b)(6) of the Federal Rules of Civil Procedure, seeking to vacate the May

12, 1992 judgment denying his initial § 2254 petition for habeas relief. Lambrix’s

2015 motion asserted, inter alia, that the 1992 denial of habeas relief was premised,

in part, on a failure to recognize his equitable right to effective collateral counsel

representation and an improper denial of some of his ineffective-trial-counsel

claims as procedurally barred.

      While Lambrix’s Rule 60(b) motion pointed to a change in the relevant law

in Martinez and Trevino (collectively “Martinez”), Lambrix also alleged that he

was arguing “something more” than the mere change represented in that decisional

law. Lambrix’s motion contended that his case presented “extraordinary

circumstances” under Rule 60(b) because (1) a review of the constitutional claims

that were previously found procedurally defaulted would demonstrate his actual

innocence, and (2) his ability to present those claims in his original federal habeas

petition was “obstructed by fundamentally unfair actions attributable to the State.”

In his prayer for relief, Lambrix’s Rule 60(b) motion asked that the final 1992

judgment denying § 2254 habeas relief be vacated and set aside so as to permit a

“full and fair review of [his] substantive underlying constitutional claims




                                           16
               Case: 16-10251       Date Filed: 03/15/2017      Page: 17 of 31


previously subject to procedural bar,” where “all material factual disputes [would]

be resolved by way of a full and fair evidentiary process.”3

       With his Rule 60(b) motion in the district court, Lambrix also filed a 120-

page document entitled “Proffer of Substantive Constitutional Claims Subject to

Evaluation Under Martinez v. Ryan” raising four claims First, Lambrix asserted

that his post-conviction collateral counsel was ineffective for failing to argue that

trial counsel was ineffective for failing to investigate, develop, and present

evidence necessary to subject the State’s theory of murder to a true adversarial

testing.

       Second, Lambrix’s proffer asserted that, had his state post-conviction

counsel presented evidence that Lambrix was the subject of continued coercion not

to testify at his second trial due to the ineffectiveness of trial counsel, he would

have been granted habeas relief. Lambrix acknowledged that the district court had

previously denied this ineffective-trial-counsel claim on the merits. See Lambrix I,

72 F.3d at 1508 (rejecting, on the merits, Lambrix’s argument that he was denied

the fundamental right to testify because his lawyer and the judge “coerced” him

into choosing between his right to testify and his right to counsel during his first


       3
        The government argues that the instant Rule 60(b) motion is merely a rehash of
arguments this Court considered and rejected in our 2014 Lambrix III opinion and, thus, that we
should deny a COA based on the law-of-the-case doctrine. For purposes of this appeal, and
because the result is the same either way, we will assume, arguendo, that Lambrix’s Rule 60(b)
motion should not be construed as merely a successive § 2254 petition and treat it as a Rule
60(b) motion.
                                              17
             Case: 16-10251     Date Filed: 03/15/2017    Page: 18 of 31


trial). The denial was not based on any state procedural bar. Id. However,

Lambrix argued that his actual innocence was an extraordinary circumstance which

should have allowed him to provide additional evidence in support of this claim.

      Third, Lambrix contended that his post-conviction counsel failed “to identify

and raise the most important elements pertaining to jury selection” where trial

counsel was ineffective. Here too, Lambrix acknowledged that post-conviction

counsel did assert claims of ineffective trial counsel during jury selection in his

1988 federal habeas petition, and those claims were denied on the merits.

However, Lambrix proposed that post-conviction counsel failed to argue

ineffectiveness of trial counsel as to two specific jurors who should have been

dismissed for cause.

      Fourth, Lambrix argued that his post-conviction counsel was ineffective for

failing to assert that trial counsel was ineffective during the penalty phase for

failing to pursue evidence and adopt a strategy that would have provided the jury

with available mitigation evidence regarding Lambrix’s childhood abuse and

neglect, substance abuse, and injury during his military service. Once again,

Lambrix admits that the district court, during the initial § 2254 federal habeas

review in 1992, denied his claim of ineffective assistance during the penalty phase.

Nevertheless, Lambrix’s proffer argued that if the district court had been made

aware of other mitigation evidence available to trial counsel, the court would not


                                          18
              Case: 16-10251       Date Filed: 03/15/2017      Page: 19 of 31


have found trial counsel’s strategic decisions to have been reasonable. In other

words, Lambrix asked the district court to consider new or different evidence in

support of a claim which was reviewed and denied on the merits.4

           VI. DISTRICT COURT’S DENIAL OF RULE 60(b) MOTION

       On December 23, 2015 the district court denied Lambrix’s Rule 60(b)

motion on multiple grounds. First, the district court found that Lambrix’s October

22, 2015 motion was untimely under Rule 60(b) as it was not filed within a

reasonable time after Martinez or after this Court’s denial of Lambrix’s earlier

federal motions and petitions. See Lambrix III, 756 F.3d at 1257 (summarizing

history of Lambrix’s case and denying his 2013 motion as an attempt to file a

successive § 2254 petition).

       Second, the district court noted that Martinez did not even apply to the

claims discussed in Lambrix’s Rule 60(b) motion. Post-conviction counsel had

argued that trial counsel was ineffective in several respects and had lost on the

merits. The district court concluded that Lambrix had not shown that his

“proffered claims” were ever found to be procedurally barred by a federal habeas

court due to a state procedural rule. Rather, the proffered claims either (1) were



       4
         Lambrix’s Rule 60(b) motion and the attached proffer also made some intermittent
allegations about obstruction by the State, Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963) and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), but they were
conclusory, were not enunciated in any numbered claim, and were not the main focus of his Rule
60(b) motion.
                                              19
             Case: 16-10251     Date Filed: 03/15/2017    Page: 20 of 31


not raised in the initial § 2254 petition or (2) were raised in some form and decided

on the merits.

      Third, even if the Rule 60(b) motion was timely filed and even if Martinez

was applicable to some claims, the change in the law effected by Martinez did not

constitute an extraordinary circumstance sufficient to invoke Rule 60(b)(6). In so

ruling, the district court cited this Court’s precedent in Arthur, 739 F.3d at 631

(holding that the change in decisional law rendered in Martinez is not an

“extraordinary circumstance” sufficient to invoke Rule 60(b)(6)).

      As to Rule 60(b)(5), the district court concluded that this Rule applies to

only “ordinary civil litigation where there is a judgment granting continuing

prospective relief, such as an injunction, but not to the denial of federal habeas

relief,” quoting our binding precedent in Griffin v. Sec’y, Dep’t of Corr., 787 F.3d

1086, 1090 (11th Cir. 2015) (rejecting argument that Rule 60(b)(5) permits

petitioners to use Martinez and Trevino to raise ineffective-assistance claims that

were denied in a previous federal habeas proceeding as procedurally defaulted).

      On January 21, 2016, Lambrix contemporaneously filed in the district court

a notice of appeal from the district court’s Rule 60(b) order and a motion for a

COA. On January 28, 2016, the district court denied Lambrix’s motion for a COA.

      On February 1, 2016, Lambrix filed in this Court a motion for a COA as to

the district court’s denial of his Rule 60(b) motion. On April 11, 2016, Lambrix


                                          20
               Case: 16-10251       Date Filed: 03/15/2017       Page: 21 of 31


filed an amended motion for a COA, to which the government responded on April

19, 2016. The first amended motion largely repeated the arguments raised in his

initial motion.

       On August 15, 2016, Lambrix filed a second amended motion, to which the

government did not respond. Lambrix again largely reiterated the same arguments

that he raised in his initial and first amended motions, but he added a discussion of

the Supreme Court’s grant of certiorari in Buck v. Stephens. 5 As noted at the

outset, this order addresses all claims in the three motions cumulatively.

                             VII. COA REQUIREMENTS

       A COA is “required for the appeal of any denial of a Rule 60(b) motion for

relief from a judgment in a § 2254 or § 2255 proceeding.” Gonzalez v. Sec’y,

Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir. 2004) (en banc). Section 2253

provides that a COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the

COA stage, the only question is whether the applicant has shown that ‘jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.’” Buck v. Davis, 580 U.S. ___, ___ S. Ct. ___,

No. 15-8049, 2017 WL 685534, at *11 (Feb. 22, 2017) (quoting Miller-El v.

       5
         As will be explained further below, the Supreme Court issued its decision in the Buck
case after Lambrix filed his second amended motion for a COA.
                                               21
             Case: 16-10251     Date Filed: 03/15/2017     Page: 22 of 31


Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003)). The Supreme Court

has made clear that the issuance of a COA “must not be pro forma or a matter of

course.” Miller-El, 537 U.S. at 337, 123 S. Ct. at 1040.

      “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120

S. Ct. 1595, 1604 (2000) (emphasis added). Thus, when a COA request concerns

a procedural ruling, the required showing must include both the procedural issue

and the constitutional issue. Id.

      Here, the district court’s holding that Lambrix failed to demonstrate that he

was entitled to have his judgment reopened under Rule 60(b)(6) is a procedural

ruling. See Buck, 2017 WL 685534, at *16. The Supreme Court has recently

admonished that “a litigant seeking a COA must demonstrate that a procedural

ruling barring relief is itself debatable among jurists of reason; otherwise, the

appeal would not ‘deserve encouragement to proceed further.’” Id. (citing Slack,

529 U.S. at 484, 120 S. Ct. at 1604).




                                          22
               Case: 16-10251       Date Filed: 03/15/2017       Page: 23 of 31


       In addition to these COA requirements, the COA question here is impacted

by the discretionary nature of a Rule 60(b) motion and our standard of review of

the district court’s denial of a Rule 60(b)(6) motion, which we discuss below.

                                   VIII. RULE 60(b)(6)

       Lambrix brought his Rule 60(b) motion under the Rule’s catchall category,

subsection (b)(6), which permits a court to reopen a judgment for “any other

reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). 6 “Rule 60(b) vests wide

discretion in courts, but [the Supreme Court has] held that relief under Rule

60(b)(6) is available only in ‘extraordinary circumstances.’” Buck, 2017 WL

685534, at *16 (quoting Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S. Ct. 2641,

2649 (2005)); see also Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996)

(explaining that relief from “judgment under Rule 60(b)(6) is an extraordinary

remedy”). “Such circumstances will rarely occur in the habeas context.”

Gonzalez, 545 U.S. at 535, 125 S. Ct. at 2649.

       Whether to grant relief under Rule 60(b) is “a matter for the district court’s

sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th

Cir. 2000) (quoting Booker, 90 F.3d at 442). We review a district court’s denial of

a Rule 60(b) motion only for an abuse of discretion. Howell v. Sec’y, Fla. Dep’t of
       6
        Lambrix’s motions for a COA only slightly mention Rule 60(b)(5) and do not present
any arguments in support of that claim. Accordingly, we consider Lambrix to have waived any
appeal of the district court’s decision as to Rule 60(b)(5). See Thomas v. Crosby, 371 F.3d 782,
793 (11th Cir. 2004) (“[A] litigant in a habeas case can waive his right to have a matter
considered by this court by failing to raise it before us.”).
                                               23
               Case: 16-10251        Date Filed: 03/15/2017        Page: 24 of 31


Corr., 730 F.3d 1257, 1260 (11th Cir. 2013); see also Buck, 2017 WL 685534, at

*16 (citing 11 Wright & Miller, Fed. Pr. and Proc. § 2857 (3d ed. 2012)). 7 “Rule

60(b) proceedings are subject to only limited and deferential appellate review.”

Gonzalez, 545 U.S. at 535, 125 S. Ct. at 2649.

       Accordingly, where a petitioner seeks a COA following the denial of his

Rule 60(b)(6) motion in district court, “the COA question is . . . whether a

reasonable jurist could conclude that the District Court abused its discretion in

declining to reopen the judgment.” Buck, 2017 WL 685534, at *16.8

                  IX. LAMBRIX IS NOT ENTITLED TO A COA

       Here, Lambrix has failed to show that reasonable jurists could debate

whether the district court abused its discretion in declining to reopen the 1992

judgment.

       First, Lambrix has not shown that reasonable jurists could debate whether

the district court abused its discretion in ruling that Martinez does not even apply

to Lambrix’s claims. All of Lambrix’s proffered claims were already denied on


       7
        Under the abuse-of-discretion standard, “we will leave undisturbed a district court’s
ruling unless we find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” Ameritas Variable Life Ins. v. Roach, 411 F.3d 1328, 1330 (11th Cir.
2005).
       8
         As to the additional COA requirement of a debatable constitutional claim, Lambrix has
raised Sixth Amendment ineffective-trial-counsel claims, and thus his Rule 60(b) motion has
identified his underlying claims as constitutional claims. See Spencer v. United States, 773 F.3d
1132, 1137-38 (11th Cir. 2014) (explaining that any COA issued by this Court or a district court
must identify “an underlying error of constitutional magnitude”).
                                                 24
             Case: 16-10251     Date Filed: 03/15/2017   Page: 25 of 31


the merits or have never been found to be procedurally barred based on any state

procedural rule. The reasoning from our 2014 decision addressing Martinez and

denying one of Lambrix’s earlier motions (where he raised the exact same

ineffective-assistance claims that he raises here) bears repeating:

      [T]he Martinez rule relates to excusing a procedural default of
      ineffective-trial-counsel claims in an initial § 2254 petition and does
      not apply to cases like Lambrix’s—where ineffective-trial-counsel
      claims were reviewed on the merits in the initial § 2254 proceeding.
      Claims reviewable on the merits are, quite simply, not procedurally
      defaulted—nor otherwise procedurally barred.

      Lambrix’s ineffective-trial-counsel claims in his initial § 2254 petition
      were not dismissed for any reason—procedural default, untimeliness,
      or any other reason. To the contrary, in reviewing Lambrix’s initial,
      counseled § 2254 petition, the district court concluded—over the
      State’s objections—that Lambrix’s ineffective-trial-counsel claims
      were not procedurally defaulted. The district court then reviewed the
      merits of all of Lambrix’s ineffective-trial-counsel claims, and this
      Court reviewed the merits of those claims on appeal. Thus, the
      narrow, equitable, non-constitutional exception . . . announced in
      Martinez is wholly inapplicable to Lambrix’s case.

Lambrix III, 756 F.3d at 1260-61.

      In his second amended COA motion, Lambrix makes the argument that the

district court in its 1992 order concluded that “numerous claims” were

procedurally barred, but this argument is misleading. The district court did

conclude in 1992 that certain claims—that were raised in an amendment to the

original § 2254 petition and are completely unrelated to the four claims Lambrix




                                          25
                Case: 16-10251         Date Filed: 03/15/2017        Page: 26 of 31


now seeks to raise—would be procedurally barred. But the district court

concluded that these same claims failed on the merits in any event.

        Second, this Court has already squarely held that “the change in the

decisional law [e]ffected by the Martinez rule is not an ‘extraordinary

circumstance’ sufficient to invoke Rule 60(b)(6).” Arthur, 739 F.3d at 631.

Therefore, Martinez alone cannot form the basis for relief under Rule 60(b)(6).

“Arthur is controlling on us and ends any debate among reasonable jurists about

the correctness of the district court’s decision under binding precedent.” Hamilton

v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015). Lambrix

points to an alleged circuit split, but we need not evaluate that circuit split because

Lambrix’s Martinez argument is foreclosed by our binding decision in Arthur, and

his attempted appeal does not present a debatable question because reasonable

jurists would follow controlling law. Gordon v. Sec’y, Dep’t of Corr., 479 F.3d

1299, 1300 (11th Cir. 2007); see also Hamilton,793 F.3d at 1266 (rejecting similar

circuit-split argument and writing that “we are bound by our Circuit precedent, not

by Third Circuit precedent.”). 9

        Third, we recognize that Lambrix claims that he has presented “something

more” than a lone Martinez claim, and he asserts that the surrounding factual


        9
          As the State also aptly points out, Lambrix did not raise the issue of a circuit split in the
district court and has waived that argument on appeal. But even considering a circuit split, we
are bound by Arthur.
                                                  26
             Case: 16-10251      Date Filed: 03/15/2017    Page: 27 of 31


circumstances make his case “extraordinary.” Lambrix relies on what was then the

Supreme Court’s grant of certiorari in Buck v. Stephens, but that case is now

decided and is not helpful to Lambrix. We review Buck to show why.

      In Buck, a capital case, the defendant’s lawyer presented an expert witness

during the penalty phase of trial whose report stated that, because the defendant

(Buck) was black, there was an “increased probability” that he was likely to pose a

danger in the future. 2017 WL 685534, at *5. Although the expert concluded that

Buck himself was unlikely to pose a danger, the expert’s report was admitted and

the expert testified about the race factor. Id. at *5-6. Buck’s first collateral

petition in state court did not claim his trial counsel was ineffective for introducing

this expert testimony, but his § 2254 federal petition did. Id. at *7-8.

      The federal district court in Buck rejected this particular ineffective-trial-

counsel claim as procedurally defaulted. Id. at *8. After Martinez and Trevino,

Buck filed a Rule 60(b)(6) motion seeking to reopen his § 2254 case. Id. at *10.

After the district court denied relief, the Fifth Circuit denied Buck a COA. Id. at

*10-11. Reversing, the Supreme Court determined that the district court had

abused its discretion in denying Buck’s Rule 60(b)(6) motion. Id. at *15, *19.

      Buck does not help Lambrix for two reasons. First, the procedural history in

Buck contains an essential difference from Lambrix’s case: in adjudicating Buck’s

first federal habeas corpus petition, the district court ruled that his claim—that his


                                           27
               Case: 16-10251        Date Filed: 03/15/2017       Page: 28 of 31


trial counsel was ineffective for presenting race-based evidence of future

dangerousness—was procedurally defaulted because he failed to present it in his

initial state collateral proceedings. Id. at *7-8. With this explicit procedural-

default finding, “[h]ad Martinez and Trevino been decided before Buck filed his

§ 2254 petition, a federal court could have reviewed Buck’s ineffective assistance

claim if he demonstrated [the Martinez factors.]” Id. at *9.

       Second, the extraordinary circumstances in Buck are not present in

Lambrix’s case. The Supreme Court in Buck found the requisite “extraordinary

circumstances” for three reasons: (1) it was a death-penalty case; (2) the

underlying claim involved a race-based claim of ineffective-assistance-of-trial-

counsel, a “pernicious” injury that harms not only the petitioner but the community

at large; and (3) the State of Texas’s “remarkable step[]” of admitting error in

similar cases but refusing to admit error in Buck’s case. 10 Id. at *16-18; see also

id. at *25 (Thomas, J., dissenting) (explaining that the majority’s opinion “relies on

the convergence of three critical factors that will rarely, if ever, recur.”).

       Although this is also a death-penalty case, Lambrix has not shown similarly

extraordinary circumstances here. As to his first alleged extraordinary


       10
          While Buck’s first habeas petition was pending, the State of Texas confessed error in
another case in which that same expert testified that race was a factor weighing toward future
dangerousness. Buck, 2017 WL 685534, at *7. Further, the Texas Attorney General then issued
a statement that it had identified other cases in which this same expert gave similar inappropriate
testimony. Id. By the end of 2002, Texas had consented to resentencing in all of the cases it had
identified, save Buck’s. Id.
                                                28
             Case: 16-10251     Date Filed: 03/15/2017    Page: 29 of 31


circumstance (the merits of his ineffective-assistance claims), Lambrix’s

underlying ineffective-trial-counsel claims do not present allegations that his trial

counsel presented race-based evidence of future dangerousness, the underlying

issue that the Supreme Court found so “odious” and poisonous in Buck. See 2017

WL 685534, at *16. Lambrix also fails to demonstrate how his claims (all of

which were denied on the merits or were not rejected based on a procedural bar)

give rise to the sort of pernicious injury that affects communities at large, instead

of garden-variety ineffective-trial-counsel claims.

      As to his second alleged extraordinary circumstance (his allegations that the

State obstructed his case and violated his constitutional rights under Brady, 373

U.S. at 83, 83 S. Ct. at 1194, and Giglio, 405 U.S. at 150, 92 S. Ct. at 763), those

allegations have already been considered and rejected by this Court on the merits

on two occasions. See Lambrix II, 624 F.3d at 1366-67 (denying Lambrix’s first

application for leave to file a successive habeas petition in 2010 and specifically

rejecting his Brady and Giglio claims); see also Lambrix IV, 776 F.3d at 794-97

(denying Lambrix’s third application for leave to file a successive habeas petition

that raised many of the same claims rejected by this Court in its 2010 opinion).

      Thus, we conclude that Lambrix has failed to show that reasonable jurists

could debate whether the district court abused its discretion in denying Lambrix’s

Rule 60(b)(6) motion and declining to reopen his 1992 judgment.


                                          29
               Case: 16-10251        Date Filed: 03/15/2017        Page: 30 of 31


                                     X. CONCLUSION

       We close by noting the district court’s observation, written 25 years ago, that

“[t]here must come a time, even when so irreversible a penalty as that of death has

been imposed upon a particular defendant, that the legal issues in the case have

been sufficiently litigated and re-litigated so that the law must be allowed to run its

course.” For Mr. Lambrix, who has litigated and re-litigated variations on the

same claims for decades, that time has come and gone. See Lambrix v. State, __

So. 3d __, Nos. SC16-8 & SC16-56, slip op. at 19 (Fla. Mar. 9, 2017) (per curiam)

(rejecting Lambrix’s three most recent motions and pointing out that “Lambrix has

contributed to the lengthy time and delay by continually challenging his

convictions and sentences”). For the foregoing reasons, reasonable jurists could

not debate whether the district court abused its discretion in denying Lambrix’s

Rule 60(b)(6) motion. See Buck, 2017 WL 685534, at *16. Accordingly,

Lambrix’s request for a COA is DENIED. 11


       11
          In his first and second amended motions for a COA, Lambrix also requests that this
Court set a briefing schedule for his appeal of the district court’s denial of his motion for court-
appointed federal habeas counsel under 18 U.S.C. § 3599 to prosecute the reopening of his case
under Rule 60(b), his clemency claims, and another (his fourth) successive § 2254 petition.
Lambrix states that it is unnecessary for him to file a COA to appeal the Rule 60(b) order to the
extent it denied his requests for new counsel as moot, citing Harbison v. Bell, 556 U.S. 180, 183,
129 S. Ct. 1481, 1485 (2009) (stating that denials of § 3599 motions are “clearly” appealable
orders under 28 U.S.C. § 1291).
         The government responds that, at no expense to him, Lambrix already has competent
counsel in his Rule 60(b) case, had qualified clemency counsel but clemency has been denied,
and has had counsel pursue multiple successive habeas petitions. Because Lambrix has
identified no potentially viable claims in his Rule 60(b) case or his many other recent cases, the
district court in his Rule 60(b) case did not err in denying Lambrix’s request for counsel as moot,
                                                30
               Case: 16-10251       Date Filed: 03/15/2017      Page: 31 of 31




or effectively as futile. We note that Lambrix made this same § 3599 request in another recent
proceeding (before he filed his Rule 60(b) motion in 2015). The district court denied his § 3599
request, and on direct appeal this Court affirmed on the grounds, inter alia, that Lambrix’s
request for new § 3599 counsel was futile. Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246,
1263 (11th Cir. 2014).
                                              31
