          Supreme Court of Florida
                                   ____________

                                   No. SC17-1608
                                   ____________

                          CARY MICHAEL LAMBRIX,
                                 Petitioner,

                                        vs.

                              JULIE L. JONES, etc.,
                                  Respondent.

                                [September 26, 2017]

PER CURIAM.

      Cary Michael Lambrix, a/k/a Michael Ray Lambrix, a prisoner under a

sentence of death for the 1983 murders of two victims—Aleisha Bryant and

Clarence Moore, Jr., a/k/a Lawrence Lamberson—whose execution is scheduled

for October 5, 2017, petitions this Court for a writ of habeas corpus. See Lambrix

v. State, 494 So. 2d 1143, 1145 (Fla. 1986). We have jurisdiction. See art. V,

§ 3(b)(9), Fla. Const. For the reasons fully explained below, we deny Lambrix’s

petition for a writ of habeas corpus.
                                 BACKGROUND

      On direct appeal, this Court explained the facts underlying Lambrix’s

crimes:

             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’[s] 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’[s] bloody shirt in a nearby stream.

Lambrix, 494 So. 2d at 1145. Lambrix’s sentences of death became final in 1986

and have been litigated continuously since that time.1



       1. See Lambrix v. State, 217 So. 3d 977 (Fla.), petition for cert. filed, No.
17-5539 (U.S. Aug. 9, 2017); Lambrix v. State, 139 So. 3d 298 (Fla.), cert. denied,
135 S. Ct. 174 (2014); Lambrix v. State, 124 So. 3d 890 (Fla. 2013), cert. denied,
134 S. Ct. 1789 (2014); Lambrix v. State, 39 So. 3d 260 (Fla. 2010), cert. denied,
562 U.S. 1145 (2011); Lambrix v. State, 698 So. 2d 247 (Fla. 1996), cert. denied,
522 U.S. 1122 (1998); Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994); Lambrix
v. State, 559 So. 2d 1137 (Fla. 1990); Lambrix v. State, 534 So. 2d 1151 (Fla.
1988); Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); see also In re Lambrix,
136 S. Ct. 541 (2015); In re Lambrix, 563 U.S. 1007 (2011); Lambrix v. Sec’y,
Dep’t of Corrs., 851 F.3d 1158 (11th Cir.), petition for cert. filed, No. 17-5153
(U.S. July 12, 2017); In re Lambrix, 776 F.3d 789 (11th Cir. 2015); Lambrix v.
Sec’y, Fla. Dep’t of Corrs., 756 F.3d 1246 (11th Cir. 2014), cert. denied, 135 S. Ct.
1894 (2015); In re Lambrix, 624 F.3d 1355 (11th Cir. 2010); Lambrix v.

                                        -2-
      As this Court has stated, Lambrix’s “death case . . . has been in the judicial

system for a substantial period of time.” Lambrix v. State, 39 So. 3d 260, 262 (Fla.

2010). This Court has explained that “the lengthy procedural history [in Lambrix’s

case] is in part due to the continued attempts by Lambrix to file pleadings both

with the postconviction court and with this Court that do not establish any viable

claim pertaining to his guilt or the validity of the death penalty imposed.” Lambrix

v. State, 124 So. 3d 890, 893 (Fla. 2013); see Lambrix v. State, 217 So. 3d 977,

988 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017). Indeed,

despite this Court determining in 2013 that Lambrix had “exhausted all permissible

legal remedies in his case,” Lambrix has continued to raise repetitive state and

federal claims. Lambrix, 124 So. 3d at 900.

      After the Governor scheduled Lambrix’s execution for February 11, 2016,

Lambrix had yet another opportunity to challenge his convictions and sentences.

See generally Lambrix, 217 So. 3d 977. This Court stayed Lambrix’s execution to

address the application of Hurst v. Florida, 136 S. Ct. 616 (2016), to his case.

Lambrix, 217 So. 3d at 980. After considering Lambrix’s various arguments, this

Court affirmed the circuit court’s denial of Lambrix’s successive motion for




Singletary, 72 F.3d 1500 (11th Cir. 1996), aff’d, Lambrix v. Singletary, 520 U.S.
518 (1997).

                                         -3-
postconviction relief, denied Lambrix’s separate petition for a writ of habeas

corpus, and lifted the stay on Lambrix’s execution. Id. at 989-90.

                                     ANALYSIS

      In his pending petition, filed on August 31, 2017, the day before his current

execution was rescheduled, Lambrix raises the following claims: (1) based on the

constitutional prohibition against the execution of an innocent person and

fundamental principles of due process, he is entitled to a cumulative review of all

the evidence which will establish a truly persuasive showing of his actual and legal

innocence; (2) this Court must fully address the denial of Lambrix’s right to testify;

and (3) Lambrix was unconstitutionally denied access to materials that may contain

DNA evidence. The State argues that Lambrix’s claims lack merit and are

improper as duplicative of formerly litigated claims.

 I. Cumulative Review of Evidence Supporting Actual and Legal Innocence

      In his first claim, Lambrix contends that “Florida law provides an avenue for

state court review of [his] claims of actual and legal innocence.” Pet. for Writ of

Habeas Corpus, Lambrix v. Jones, No. SC17-1608, at 10. Specifically, Lambrix

argues that neither the jury in his case, nor any state or federal court, has ever

conducted a cumulative review of “all the readily available evidence” that would

“establish that Lambrix is actually or legally innocent of each of the two murders.”

Pet. at 15-16.


                                          -4-
      Lambrix claims that Moore killed Bryant, and he, in turn, killed Moore in

self-defense. This belated theory of self-defense emerged three years after the

actual trial (1984) at his first clemency proceeding (1987), when clemency counsel

provided a “live transcribed statement” which he claimed “included a description

of Lambrix’s account.” Pet. at 29. Lambrix later testified to this theory at an

evidentiary hearing on his successive postconviction motion, as we explained in

our 2010 opinion:

      According to Lambrix, he told Smith the following account: after he
      invited both victims outside, Bryant and Moore began to fight, so
      Lambrix attempted to leave. On his way back, he heard a scream,
      grabbed a tire iron, and ran back. He saw Moore straddling Bryant
      and tried to push him off. Moore attempted to “come at [him],” so he
      continued to swing the tire iron at Moore until he realized that Moore
      “was down.” He denied that he ever admitted to killing either victim
      on purpose.

Lambrix, 39 So. 3d at 271.

       There is no evidence, other than Lambrix’s self-serving belated assertions

of self-defense, that supports his theory. In fact, in his initial postconviction

motion, his appeal from the circuit court’s denial of his initial postconviction

motion, and his initial petition for a writ of habeas corpus, Lambrix’s arguments

focused on “his consumption of alcohol” the night of the crimes and the defense of

voluntary intoxication. Lambrix v. State, 534 So. 2d 1151, 1151 (Fla. 1988); see

Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988). This Court denied the petition




                                          -5-
for a writ of habeas corpus, concluding that the “evidence was not sufficient to

show intoxication.” Lambrix, 529 So. 2d at 1112.

      As part of his claim of actual innocence, Lambrix alleges that certain

evidence entitles him to an evidentiary hearing at which he would prove his

innocence: (1) inconsistencies in and lack of credibility for witness Frances

Smith’s testimony, (2) witness Deborah Hanzel’s recantation, and (3) his

consistent claim of self-defense. Lambrix also argues that the denial of his right to

testify and denial of access to DNA evidence contribute to his innocence claim.

We address these arguments in Claims II and III, respectively, below. After

reviewing this Court’s prior opinions regarding Lambrix’s assertions, we address

the specifics of Lambrix’s freestanding claim of innocence.

                          A. Frances Smith’s Testimony

      As to Smith, Lambrix argues that newly discovered evidence discredits her

testimony, which was the lynchpin of the State’s case at trial. On direct appeal,

this Court denied Lambrix’s claim that the trial court erred by limiting his cross-

examination of Smith. Lambrix, 494 So. 2d at 1146-47. Lambrix also raised this

claim in the federal district court, which denied the claim. See Lambrix v. Dugger,

No. 88-12107-Civ-Zloch (S.D. Fla. May 12, 1992). On appeal, the United States

Court of Appeals for the Eleventh Circuit affirmed the denial. Lambrix v.

Singletary, 72 F.3d 1500, 1503 & n.3 (11th Cir. 1996), aff’d, 520 U.S. 518 (1997).


                                        -6-
      In his third postconviction motion, Lambrix argued that the State withheld

exculpatory or impeachment evidence involving a sexual relationship between

Smith and a state attorney investigator. Lambrix, 39 So. 3d at 266. Reviewing the

trial court’s finding that no sexual relationship occurred, this Court determined that

even if a sexual relationship existed, Lambrix could not show prejudice. Id. at 269.

The Eleventh Circuit also denied this claim and others related to Smith’s testimony

in denying Lambrix’s application for leave to file a second or successive federal

habeas petition alleging the existence of new claims. In re Lambrix, 624 F.3d

1355, 1358, 1368 (11th Cir. 2010).

      In his fourth postconviction motion, Lambrix argued that new evidence

showed that two hairs found on the murder weapon matched Smith’s DNA.

Lambrix, 124 So. 3d at 894-95. This Court affirmed the postconviction court’s

denial of Lambrix’s motion, holding that Lambrix failed to explain how Smith’s

hair would exonerate him or even cast doubt on Smith’s testimony. Id. at 895-96.2

                        B. Deborah Hanzel’s Recantation

      As to witness Deborah Hanzel, Lambrix argues that she is the only witness

at trial who corroborated Smith’s testimony of Lambrix’s confession to killing the

victims. He also contends that her subsequent recantation supports his claim of



      2. Lambrix again sought leave to file a successive federal habeas petition
under 28 U.S.C. § 2244(b)(2)(B), which was likewise denied by the Eleventh
Circuit. See In re Lambrix, 776 F.3d 789, 797 (11th Cir. 2015).

                                         -7-
actual innocence. In 2010, this Court reviewed Lambrix’s claim that “the

postconviction court erred in failing to find that witness Deborah Hanzel recanted

and that Smith and a state agent coerced her to lie.” Lambrix, 39 So. 3d at 270.

This Court explained that “Hanzel was one of the witnesses who testified at both

the initial trial and the second trial as to certain incriminating statements that

Lambrix allegedly made.” Id. Later, during successive postconviction

proceedings, Hanzel made statements—both written and oral—that contradicted

her testimony at trial. Id. at 271. After holding two evidentiary hearings, the

postconviction court determined that “Hanzel’s testimony never met the legal

requirements for a recantation.” Id. at 271-72.

      Upon review, this Court determined that the postconviction court’s findings

were supported by competent, substantial evidence. Id. at 272. Further, this Court

determined that “if Hanzel had not testified at trial that Lambrix stated he killed

two people, the recantation would not be of such a nature that it would ‘probably

produce an acquittal or retrial.’ ” Id. This Court reasoned:

      Hanzel was not the main witness to testify against Lambrix. Even
      without her testimony, there would still be the testimony of Lambrix
      himself at this most recent evidentiary hearing that he struck one of
      the victims using a tire iron, although he denied that he intended to
      kill either victim. Further, there was other significant evidence at the
      trial that pointed to Lambrix as the perpetrator of these murders. This
      evidence included the following: Smith’s testimony regarding the
      murders and that Lambrix threatened her if she did not help him bury
      the bodies; Deputy Sheriff Ron Council’s testimony that he saw
      Lambrix and Smith with the victims on the night of the murders; John

                                          -8-
      Chezum’s testimony that on February 6 around 2:30 in the morning,
      Lambrix drove up in a car that resembled the victims’ car and asked to
      borrow a shovel; and the victims were found buried near the trailer in
      which Lambrix was living.

Id. at 273.

                                  C. Self-Defense

      In the pending petition, Lambrix claims that he has consistently pled a

theory of self-defense. A review of the record reveals otherwise. As we explained

above, this theory was not presented at trial, on direct appeal, or in Lambrix’s

original postconviction motion. For all these reasons, we conclude that Lambrix’s

delayed and unsupported theory of self-defense does not establish a claim of actual

innocence.

     D. Whether Lambrix May Raise a Freestanding Claim of Innocence

      Lambrix further argues that due process requires a cumulative review of all

the evidence supporting his claim of actual innocence. However, this Court has

reviewed multiple times the evidence Lambrix has claimed would establish his

innocence and has consistently concluded that Lambrix has not shown that any of

this evidence “would probably produce an acquittal or . . . mitigate his sentence.”

Lambrix, 124 So. 3d at 896.

      In addition to this Court’s review of Lambrix’s claims over the course of the

past thirty years, in Tompkins v. State, 994 So. 2d 1072 (Fla. 2008), this Court

“rejected the claim that Florida’s failure to recognize a freestanding actual

                                         -9-
innocence claim violates the Eighth Amendment.” Id. at 1089 (citing Rutherford

v. State, 940 So. 2d 1112, 1117 (Fla. 2006)). Thus, this Court does not recognize

Lambrix’s claim. In fact, in our 2010 opinion, we rejected Lambrix’s claim that he

was entitled to a new trial because he was actually innocent, explaining:

              We reject without discussion Lambrix’s claim that he is entitled
      to relitigate whether he is innocent of the crime based on Schlup v.
      Delo, 513 U.S. 298 (1995). Lambrix mischaracterizes the holding of
      Schlup, which does not provide a freestanding claim to relitigate
      claims that are procedurally barred.

See Lambrix, 39 So. 3d at 266, n.10.

      On direct appeal, this Court specifically found that sufficient evidence

“support[ed] a finding that Lambrix committed the two murders in question,” and,

after careful consideration, rejected each of Lambrix’s claims of error in the guilt

phase. Lambrix, 494 So. 2d at 1145, 1148. Since then, this Court and the federal

courts have reviewed Lambrix’s various claims for relief; each time, Lambrix’s

convictions and sentences have been affirmed. Whether considered individually or

cumulatively, Lambrix has not established that he would be entitled to a new trial

based on “actual innocence.” Thus, we conclude that Lambrix is not entitled to

relief on this claim. We address Lambrix’s other substantive claims below.




                                        - 10 -
             II. Denial of the Right to Testify and Present a Defense

      The Eleventh Circuit previously rejected Lambrix’s claim that his right to

testify was denied. Lambrix, 72 F.3d at 1508. This Court further elaborated on

Lambrix’s claim that he was denied the right to testify:

             [I]n prior litigation, Lambrix asserted that during the guilt phase
      of his first trial, his counsel told the trial judge to inform Lambrix that
      if Lambrix chose to testify in his own defense during the guilt phase,
      his counsel would withdraw and the court would not appoint new
      counsel for Lambrix. Thus, Lambrix contends that he was denied his
      fundamental right to testify. The Eleventh Circuit rejected this
      claim . . . .

             ....

      The Eleventh Circuit noted that there was no evidence at all regarding
      any person who prevented Lambrix from testifying during the second
      trial, which occurred two months after his first trial ended in a hung
      jury. Moreover, to the extent that Lambrix’s counsel advised Lambrix
      against testifying in the first trial, this advice pertained only to
      Lambrix’s testimony concerning the guilt phase (at the first trial only),
      where Lambrix sought to tell the jury his version of how the victims
      died.
              In other words, the claim that Lambrix was prevented from
      testifying at trial has been litigated and denied. Even if Lambrix
      believed that he could not testify during the penalty phase at his
      second trial, this does not explain why he failed to present this claim
      in his initial postconviction motion. Lambrix clearly had the
      necessary knowledge pertaining to this claim, but failed to raise it at
      all, until his current attempt to resurrect this procedurally barred claim
      by pointing to a new witness he contends that he did not discover until
      now.

Lambrix, 124 So. 3d at 901-02 (citations omitted) (emphasis added). Thus,

Lambrix is not entitled to relief on this claim.


                                         - 11 -
                            III. Access to DNA Evidence

      Further, as to Lambrix’s assertion that he was denied his right to DNA

testing, we explained in 2013 that:

      As this Court has recognized, “[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.”
      Scott v. State, 46 So. 3d 529, 533 (Fla. 2009) (quoting Robinson v.
      State, 865 So. 2d 1259, 1265 (Fla. 2004)). Lambrix has completely
      failed to explain how finding Smith’s hair on the murder weapon
      would help exonerate him or even cast Smith’s testimony into doubt.
      Smith was at the murder scene after the murders occurred. According
      to her trial testimony, Lambrix was carrying the tire iron when he
      returned to the trailer alone and admitted to Smith that he killed both
      Bryant and Moore. Smith then helped to dispose of the bodies and the
      weapon. Thus, it would not be unexpected that her hairs could also be
      on the weapon, as she was present at the scene and helped to hide the
      weapon. As this Court has previously held, a trial court does not err
      in denying a 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. Scott, 46 So. 3d at 533. Accordingly, we deny this claim.

Id. at 895-96 (emphasis added). Four years later, in 2017, we again affirmed the

postconviction court’s denial of Lambrix’s request for DNA testing of Bryant’s

clothing, the tire iron, and the t-shirt wrapped around the tire iron, stating:

             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

                                         - 12 -
       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.

Lambrix, 217 So. 3d at 987 (emphasis added). Thus, Lambrix is not entitled to

relief on this claim.

                                  CONCLUSION

       It is clear that Lambrix has not been denied the opportunity to claim any

constitutional right, nor has any right been denied to him without full consideration

and review. To the contrary, for more than thirty years, Lambrix’s multiple claims

have been reviewed and rejected. Thus, we conclude that Lambrix is not entitled

to relief.

       Accordingly, we deny Lambrix’s petition for a writ of habeas corpus. No

rehearing shall be allowed.

       It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and
LAWSON, JJ., concur.
QUINCE, J., recused.

An Original Proceeding – Habeas Corpus
Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis III,
Litigation Director, and Bryan E. Martinez, Staff Attorney, Capital Collateral
Regional Counsel-Southern Region, Fort Lauderdale, Florida,

       for Petitioner


                                       - 13 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Scott A. Browne, Senior
Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney General,
Tampa, Florida,

      for Respondent




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