IN THE SUPREME COURT OF FLORIDA
CASE NO. SC16 - _____
__________________________________________________________________

RECEIVED 01/11/2016 11:53 AM FLORIDA SUPREME COURT

CARY MICHAEL LAMBRIX,
Petitioner,
v.
JULIE JONES, Secretary,
Florida Department of Corrections,
Respondent.
__________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS
__________________________________________________________________
NEAL A. DUPREE
Capital Collateral Regional Counsel
Florida Bar No. 311545
WILLIAM M. HENNIS III
Litigation Director, CCRC-South
Florida Bar No. 0066850
JESSICA HOUSTON
Staff Attorney
Florida Bar No. 98568
OFFICE OF THE CAPITAL
COLLATERAL REGIONAL
COUNSEL-SOUTHERN REGION
1 East Broward Blvd., SUITE 444
Ft. Lauderdale, FL 33301
(954) 713-1284
COUNSEL FOR APPELLANT

 INTRODUCTION
The present habeas corpus petition is being filed under death warrant by Mr.
Lambrix in this case. The petition preserves claims arising under decisions of the
United States Supreme Court and puts forth substantial claims of error under Florida
law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. Those claims demonstrate that Mr. Lambrix was deprived of
appropriate review where this Court misconstrued and misinterpreted the record
resulting in his convictions and death sentences being obtained and affirmed on
appeal in violation of fundamental constitutional guarantees.
Citations to the Record shall be:
(R.) -- Record on Direct appeal;
(PCR.) -- Record of Post-Conviction Appeal (where necessary)
(Supp-PCR.) -- Supplemental Record of Post-Conviction Appeal
(where necessary)
All other citations shall be self-explanatory.
JURISDICTION
A writ of habeas corpus is an original proceeding in this Court governed by
Florida Rule of Appellate Procedure 9.100. This Court has original jurisdiction
under Florida Rule of Appellate Procedure 9.030(a)(3) and Article V, section 3(b)(9)
of the Florida Constitution. See Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla.

2

 1985). The Florida Constitution guarantees that “[t]he writ of habeas corpus shall be
grantable of right, freely and without cost.” FLA. CONST. Art. I, § 13.
Jurisdiction over the present action lies in this Court because the fundamental
constitutional errors challenged herein arise in the context of a capital case in which
this Court heard and denied the direct appeal. See, e.g., Smith v. State, 400 So. 2d
956, 960 (Fla. 1981); see also Wilson, 474 So. 2d at 1163. The Court’s exercise of
its habeas corpus jurisdiction and its authority to correct constitutional errors is
warranted in this case.
REQUEST FOR ORAL ARGUMENT
Mr. Lambrix requests oral argument on the claims asserted in the present
petition.

3

 ARGUMENT I
MR. LAMBRIX WAS DENIED HIS RIGHTS
UNDER
THE
SIXTH
AND
EIGHTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION BECAUSE THE JURY VERDICT
AT THE SENTENCING PHASE OF HIS TRIAL
WAS NOT UNANIMOUS AND THE JURY’S SENSE
OF RESPONSIBILITY WAS DILUTED BECAUSE
OF INADEQUATE JURY INSTRUCTIONS. HIS
EXECUTION SHOULD BE STAYED PENDING
THE DECISION IN HURST V. FLORIDA. TO THE
EXTENT THAT DIRECT APPEAL COUNSEL
FAILED TO RAISE THESE ISSUES, MR.
LAMBRIX WAS ALSO DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL
Introduction
Habeas consideration is proper in circumstances where fundamental
misconstruction of the record has occurred. See Parker v. Dugger, 498 U.S. 308,
321 (Fla. 1991) (“The Florida Supreme Court did not conduct an independent review
here, in fact, there is a sense in which the court did not review Parker’s sentence at
all.”) (“The Florida Supreme Court affirmed Parker’s death sentence neither based
on a review of the individual record in the case nor in reliance on the trial judge’s
findings based on that record, but in reliance on some other nonexistent findings”).
Here, this Court misconstrued and misinterpreted the record of Mr. Lambrix’s case.
For that reason, habeas consideration is proper for two different reasons: (i) this
Court misconstrued the fact that the prior conviction aggravating factor was
withdrawn by the State and was never presented to the jury, and, (ii) this Court

4

 erroneously believed that Caldwell error was not raised on initial postconviction
review under warrant, where, in fact, it was raised as best as could be under the
exigent circumstances of the 1988 litigation under warrant.
This Court holds a constricted view of the United States Supreme Court’s
Sixth and Eighth Amendment precedents regarding the role of juries in capital
sentencing. The United States Supreme Court’s pending decision in Hurst v. Florida,
No 14-7505, which was argued October 13, 2015, may impact this Court’s
conception of the constitutionality of Florida’s death penalty scheme. If the United
States Supreme Court determines that the role of the jury in Florida’s capital
sentencing procedure is inconsistent with the Sixth and/or Eighth Amendments, this
Court is likely to revisit Mr. Lambrix’s case. Mr. Lambrix therefore seeks a stay of
execution pending the United States Supreme Court’s guidance in Hurst.
The Caldwell issue
The Hurst case invokes both the Sixth and Eighth Amendments. This Court
has long held that Caldwell v. Mississippi, 472 U.S. 320 (1985) is not applicable to
the Florida death penalty scheme. See Darden v. State, 475 So. 2d 217, 221 (Fla.
1985). In Darden the Court held that under Florida’s sentencing scheme the jury was
not responsible for the sentence and that Caldwell was inapplicable in Florida. See
also Pope v. Wainwright, 496 So. 2d 798, 805 (Fla. 1986); Smith v. State, 515 So.
2d 182, 185 (Fla. 1987). However, during oral argument in Hurst, Justice Ginsburg

5

 directly raised concerns about whether Florida’s capital sentencing scheme comports
with the Eighth Amendment principles set forth in Caldwell v. Mississippi, 472 U.S.
320 (1985). See Appendix 1. Justice Scalia also expressed concern about Florida’s
compliance with Caldwell.
The history of Mr. Lambrix’s case shows that the Eighth Amendment
concerns surrounding the pending Hurst decision apply equally to Mr. Lambrix. Mr.
Lambrix’s conviction and sentence became final with this Court’s affirmance of his
convictions and sentences on September 25, 1986, after Caldwell had become
controlling Eighth Amendment precedent. Lambrix v. State, 494 So. 2d 1143 (Fla.
1986). (No petition for certiorari was filed with the United States Supreme Court).
Mr. Lambrix’s first opportunity to raise the Caldwell claim was during the
postconviction proceedings. In a November 21, 1988 Supplement in Support of
Motion to Vacate Judgment and Sentence, Mr. Lambrix raised a fully pled Caldwell
claim. The claim stated inter alia that the jury “was substantially misled and
misinformed, by the trial prosecutor’s comments and arguments, and the court’s
comments at trial and sentencing as to its proper role at trial and sentencing.” See
Appendix 2 at 3-10.
9.
Mr. Lambrix’s sentencing jury, however, was
erroneously led to believe that their role was of little
significance. Prior to and at the commencement of the
sentencing phase of Mr. Lambrix’s trial, the judge
effectively informed the jury that the decision they were
to make would be essentially meaningless, as the final
6

 decision as to what punishment shall be imposed rested
with the judge. The jury was told that it was the judge, not
they, who had the “responsibility” for the “final decision”
with regard to punishment.
10. This theme had been established early on in the
proceedings: during voir dire, trial, and then at sentencing,
by the prosecutor and the court. The jury’s view as merely
“advisory”, merely a “recommendation”: this is what the
jury heard – their role was far, far less significant (under
this view) than what the law required.
11. The prosecutor and the judge at Mr. Lambrix’s trial
thus led the jury into believing that the judge was the sole
sentencer, and that he was free to impose whatever
sentence he wished. As in Caldwell, the responsibilitydiminishing remarks in Mr. Lambrix’s case “were quite
focused, unambiguous, and strong.” 105 S. Ct. at 2645.
But the comments here when a step further – they were
much more systematic than those in Caldwell, and they
were made by both the prosecutor and the judge.
12. Caldwell teaches that, given comments such as
those provided by the judge, prosecutor, and even defense
counsel to Mr. Lambrix’s capital jury, the State must
demonstrate that the statements at issue had “no effect” on
the jury’s sentencing verdict. Id. at 2646. The State simply
cannot carry that burden here. A stay of execution and
Rule 3.850 relief are appropriate.
As the 1988 Supplement claimed, the trial record reflects multiple Caldwell
problems. During voir dire the Assistant State Attorneys made the following
comments during their inquiries of the juror pool:
MR. MCGRUTHER:
If the jury should return a
verdict of guilty in the first degree, on either count, then
it’s at that point that the jury would begin retiring after
hearing the possible additional evidence, and additional
7

 instructions by the Court. Then at that point, the way the
Judge’s instructions – again, and make a recommendation
to the Court as to whether or not to impose a death
sentence or mandatory life imprisonment, which are both
permissible convictions of a murder in the first degree.
R. 1492-93. Defense counsel also expressed his concern about the direction of the
State’s comments in remarks to the jury pool during voir dire:
MR. JACOBS:
Do you all understand that it may never
get to that? Whether or not you have to make a
recommendation to the Judge as to the death sentence or
life imprisonment? . . . We’re not negotiating the fact that
your recommendation, if you are called to make one,
would have great weight with His Honor, Judge Stanley.
Do you understand that? It’s very, very important. It’s not
saying that there is something to take – to be taken lightly.
R. 1530. During a bench conference presiding trial Judge Stanley weighed in on his
view during discussion of a cause challenge to Juror Proctor:
THE COURT:
He indicated he could not find the
defendant guilty if there was a possibility of the death
penalty; and one thing that you neglected to mention when
you were talking to him, which I could have gotten to it if
it hadn’t gotten to where it did – regardless of what the
jury does, the final decision, if he is found guilty of first
degree murder – the jury making a recommendation, and
that is the Court makes the final decision on a sentence.
R. 1578. The systematic comments by the prosecution continued throughout the voir
dire process:
MR. GREENE: …then we go to phase two; and then it
is your job then to make a recommendation to the Judge
for either life imprisonment or the death penalty. Do you
have any questions along that line?
8

 R. 1585.
MR. MCGRUTHER:
…[I]f in fact the verdict is
guilty as charged of the first degree murder of two counts
or one count of them, then you will go back and possibly
hear additional evidence and arguments and additional
instructions from the Court, and then you will make a
recommendation to the Judge regarding whether you as a
juror would recommend either the sentence of the death
penalty or the sentence of life imprisonment without
possibility of parole for 25 years. That’s a
recommendation, and it does carry great weight with the
Court; however, the sentencing function is always that of
the Judge. The Judge will decide what the actual sentence
will be. Everybody understand that?
R. 1633-34.
MR. GREENE: Judge Stanley - - as he gives the
instructions before the deliberation that the possible
sentencing in this case is such and such . . . will also tell
you right afterwards … that is the Court’s decision and
exclusive province to impose any possible sentence in a
case – it’s not the jury’s job to impose a sentence. You
give a possible recommendation in a case like this, but it’s
all this is. It’s a recommendation. Do you understand?
R. 1672.
MR. GREENE: If you did in fact come back with a
guilty of one or both counts of first degree murder, then
we go to the penalty phase. At that point, the jury makes a
recommendation to the Judge Stanley as to life
imprisonment or death penalty. Could you vote for the
death penalty if you were convinced by the evidence and
the instructions as the Judge gave you?
R. 1730.

9

 MR. GREENE: It’s important that you realize it is not
your job to impose a sentence. You make
recommendations, and perhaps later on the Honorable
Judge Stanley will impose the actual sentence.
R. 1753. At the onset of the guilt phase Judge Stanley directly instructed the newly
seated jury that “It is the Judge’s job to determine what a proper sentence would be
if the Defendant is guilty.” R. 1820. Judge Stanley again addressed the jury at the
beginning of the penalty phase hearing on February 29, 1984 with the following
comments on his sentencing responsibility:
THE COURT: Final decision as to what punishment shall
be imposed rests solely with me, the judge of this Court.
However, the law requires that you, the jury, render to the
Court an advisory sentence as to what punishment should
be imposed on the Defendant.
R. 2569. The State also commented to the jury during the penalty phase argument.
Argument by the State included the following:
MR. MCGRUTHER:
The laws of Florida require that
you now consider whether or not to recommend he be
imprisoned for life imprisonment term, 25 years
mandatory on each count – the Judge may run that, the
Judge of course being the sentencing arm of the Court, he
may run those concurrently, may be run at the same time,
or he may run those consecutively, meaning one at the
expiration of the first. The other recommendation you can
make would be that [C]ary Michael: Lambrix be that he
forfeit his life for his crimes. Ladies and Gentlemen, we
are here today because you follows the law as was set out
by this Court in the guilty phase, which ended on Monday.
R. 2638. The defense also was guilty of the same kind of argument:

10

 MR. JACOBS:
The prosecutor has told you what he
wants. He wants Cary dead. That is what he said. But he
can’t do it alone. There has to be a recommendation from
you recommending the death penalty for the judge to
consider.
MR. MCGRUTHER:
Objection, Your Honor. The
Court does the actual sentencing.
THE COURT:
The Court does the actual sentencing.
The jury does not.
MR. JACOBS:
Your Honor, we indicated that the
recommendation would be for you to consider.
THE COURT:

For me to consider, yes.

MR. JACOBS:
That is what we said, Judge. You are
deciding whether or not to recommend life or death at this
time. And regardless of what Mr. McGruther said – and he
is persuasive – regardless of that, yours is not merely just
any old advisory opinion. Judge Stanley is looking to you
twelve for guidance. He’s told you and he will tell you
again that your recommendation will carry great weight as
to what his sentence will be. And it will figure
substantially into his consideration as to what the final
outcome and the sentence in this case will be. If you err in
that recommendation, you make a mistake, there is no
authority on Earth that can bring you back an hour, a day,
a week, a month, a year from now. No authority on Earth
that can bring you back together again if you err. You must
be sure before you sign that advisory opinion today.
R. 2654-56. Thereafter the Court gave the jury these instructions:
THE COURT:
As you have been told, the final
decision as to what punishment shall be imposed is the
responsibility of the judge. However, it is your duty to
follow the law that will now be given you by the Court and
render to the Court an advisory sentence based upon your
determination as to whether sufficient aggravating

11

 circumstances exist to justify the imposition of the death
penalty and whether sufficient mitigating circumstances
exist to outweigh any aggravating circumstances found to
exist. Your advisory sentence should be based upon the
evidence that you have heard while trying the guilt or
innocence of the Defendant and evidence that has been
presented to you in these proceedings.
R. 2662. The Court further instructed:
THE COURT:
In these proceedings it is not necessary
that the advisory sentence of the jury be unanimous…
Before you ballot, you should carefully weigh, sift and
consider the evidence and all of it, realizing that human
life is at stake and bring to bear your best judgment in
reaching your advisory sentence.
R. 2665. The Court also instructed:
THE COURT:
With regard to the effect of your
recommendation of life or death, the Court hereby
instructs you that although your recommendation is
considered to be advisory, your recommendation of death
upon conviction of first degree murder is entitled to a great
weight. On the other hand, in order for the Court to impose
a sentence of death following a jury recommendation of
life, the facts suggesting a sentence of death must be so
clear and convincing that virtually no reasonable person
could differ.
R. 2670-71. Judge Stanley again addressed the jury after jury foreman, Mr. Bailey,
Juror #3, read the “advisory sentences” of a 10-2 recommendation for death
regarding Count One, the murder of Aleisha Dawn Bryant and an 8-4
recommendation for death regarding Count Two, the murder of Clarence Edward
Moore, Jr. R. 2680:

12

 THE COURT:
Ladies and Gentlemen of the jury, I am
going to ask each of you individually concerning the
advisory sentence. It is not necessary that you state how
you personally voted or how any other person voted but
only if the advisory sentence as read was correctly stated.
R. 2680. Then the Court asked each of the twelve jurors, “[D]o you agree and
confirm that a majority of the jury joined in the advisory sentence that you have just
heard read by the foreman of the jury,” as to each of the two counts. Thus the jurors,
for the twenty-fourth time, heard the term “advisory sentence” during their final acts
as members of the jury. R. 2681-86. Thus the record is replete with evidence of
systemic error.
Following the summary denial of Mr. Lambrix’s initial Rule 3.850 motion
under death warrant, Mr. Lambrix appealed the denial to this Court. The execution
date had been set for November 30, 1988. On November 28, 1988, counsel for Mr.
Lambrix filed with this Court “Appellant’s Emergency Motion for Stay of Execution
on Appeal of the Denial of his Motion for Fla. R. Crim. P. relief” See Appendix 3.
The Emergency Motion also stated, “In light of the substance and complexity of the
claims involved, the stakes at issue and the untenable circumstances under which
Mr. Lambrix’s counsel has been forced to litigate this action, Mr. Lambrix also
respectfully requests that the Court allow a proper, orderly and reasonable schedule
for the filing of briefs.” Appendix 3 at 1. The motion also notes that “[t]ime
constraints have made it impossible for undersigned counsel to properly brief Mr.

13

 Lambrix’s claims.” Appendix 3 at 25. The time constraints noted therein were
caused not only by the impending scheduled execution date of November 30, 1988,
but also by the fact that postconviction counsel was simultaneously representing
another client, Amos King, with the same scheduled execution date, as well as other
CCR clients.1 See Appendix 3 at 25. The Emergency Motion appended Mr.
Lambrix’s original Rule 3.850 motion as well as the Supplement in which the
Caldwell claim was pled.
In the “Emergency Motion,” only two claims were briefed. This Court
addressed only the issues which had been briefed and failed to rule on the Caldwell
claim. This Court did not request any additional briefing, This Court specifically
found that “Lambrix’s motion asserted a number of claims. However his appeal only
addresses two both of which are related to his consumption of alcohol.” See Lambrix
v. State, 534 So. 2d 1151, 1152 (Fla. 1988). This Court granted a stay of execution
until December 2, 1988, and denied the two claims that had been briefed. Rule 9.140
of the then applicable Florida Rules of Appellate Procedure provided:
RULE 9.140 APPEAL PROCEEDINGS IN CRIMINAL
CASES
(g) Appeals from Summary Denial of Motion for Post
Conviction Relief Under Fla. R. Crim. P. 3.850:

1

Amos King was eventually executed by the State of Florida on February 26,

2003.
14

 An appeal from an order denying relief under Fla. R. Crim.
P. 3.850 without a hearing should be considered as
prescribed by Rule 9.110. The clerk of the lower tribunal
shall forthwith transmit to the court as the record
conformed copies of the motion, order, motion for
rehearing, and order thereon, with a certified copy of the
notice. No briefs or oral argument shall be required….
The court may request a response from the State before
ruling. (emphasis added).
Thus the drafters of this rule appear to have contemplated that the Court
reviewing a summary denial of a Rule 3.850 motion will do a complete review
without the benefit of briefs. Neither the Circuit Court nor this Court found any
procedural bar on the claims that were not briefed. This Court did not deem the
claims within the appendices to the Emergency Motion to be waived.
This Court’s holding in Duest v. Dugger, 555 So. 2d 849 (Fla. 1990), does
not cut against Mr. Lambrix’s argument herein. In Duest this Court found that:
Duest also seeks to raise eleven claims by simply referring
to arguments presented in his motion for postconviction
relief. The purpose of an appellate brief is to present
argument in support of the points on appeal. Merely
making reference to arguments below without further
elucidation does not suffice to preserve issues and these
claims are deemed to have been waived.
Duest, 555 So. 2d at 852. Duest differs in several respects from the instant cause.
Unlike in Duest, in Lambrix this Court did not make any specific findings of a
waiver. Furthermore, Duest was briefed following an evidentiary hearing, not after
a summary denial, so Fla. R. App. P. 9.140 was inapplicable in Duest. Thus, the

15

 Caldwell issue was properly before this Court, but this Court did not rule on the
merits or find that there had been a waiver or a procedural bar.
Subsequent to this Court’s affirmance of the summary denial under warrant,
Mr. Lambrix lodged a petition for writ of habeas corpus on November 30, 1988 and
on December 1, 1988, filed a handwritten “Statement Regarding Exhaustion and
Renewed Application for Stay of Execution” in the Federal District Court for the
Southern District of Florida. Appendix 4.2 The District Court granted a stay.
The petition included the Caldwell claim. The State alleged that the Caldwell
claim was procedurally defaulted because it had not been briefed on the merits in the
Florida Supreme Court. However, the District Court declined to find it procedurally
defaulted because of Rule 9.140, and reached the merits of the Caldwell claim in the
1992 final order denying the habeas corpus petition. Appendix 5 at 58-64. Thereafter
the Caldwell claim was appealed to the Eleventh Circuit and denied as meritless.
The Eleventh Circuit failed to specifically address the Caldwell claim, but disposed

2

“The state high court majority erroneously stated in its opinion that only two
of Mr. Lambrix’s Rule 3.850 claims were presented on his appeal to that court. This
was plain error. Given the time constraint, Mr. Lambrix had no opportunity to brief
the claims for relief presented in the Rule 3.850 motion. He did however present an
application for a stay of execution pending appeal (attached hereto) which explained
that all of the issues presented in the Rule 3.850 motion and its supplement were
being taken up on appeal before the state high court. Id. at pp. 25-26. The motion to
vacate and supplement were in fact appended to the stay application. All the issues
were presented to the Florida Supreme Court, and that Court erred in failing to
consider them and grant relief. The claims are all exhausted, and are all now properly
before this Court.” Appendix 5 at 6-8.
16

 of it along with a number of other claims which it termed “the sentencing court made
miscellaneous erroneous rulings and instructions which deprived Lambrix of a fair
and reliable sentencing proceeding.” See Lambrix v. Singletary, 72 F.3d 1500, 1503
(1996) fn3.
Hurst will inform the Florida courts whether Florida’s capital sentencing
scheme is in compliance with Caldwell. If Hurst holds that Caldwell applies to
Florida, this Court will likely revisit its holdings noted above. Witt v. State, 387 So.
2d 922, 931 (Fla. 1980) sets forth the test for whether a case can be applied
retroactively under Florida law. Under Witt, in determining whether a change in the
law should apply retroactively, Florida courts must balance the competing needs for
decisional finality with the concern for fairness and uniformity. Pursuant to Witt, a
change will apply retroactively if it (a) emanates from either the United States
Supreme Court or the Florida Supreme Court; (b) is constitutional in nature; and (c)
constitutes a development of fundamental significance.
Should the United States Supreme Court rule that Hurst is applicable in
Florida, as to jury unanimity, the advisory recommendations of Florida juries at the
penalty phase or the applicability of Ring v. Arizona to Florida, then surely this
Court’s decision in Witt would require merits review based on the errors noted
herein.

17

 An analogous situation arose when this Court was limited in its construction
of Lockett v. Ohio, 438 U.S. 536 (1978). This Court originally held that Lockett did
not apply to Florida. However, after the United States Supreme Court decided
Hitchcock v. Dugger, 481 U.S. 393 (1987), this Court revisited its Lockett decisions,
having realized that it was wrong all along in its Eighth Amendment jurisprudence
in this context. The same situation could well happen in the context of Hurst and
Caldwell.
Additionally, this Court should be informed by its prior opinion in Jackson v.
State, 648 So. 2d 85 (Fla. 1994). In that case Jackson challenged the cold, calculated,
and premeditated (CCP) jury instruction as unconstitutionally vague. This Court
found that because the claim was preserved for review, it could reach the merits of
the claim. Jackson, 648 So. 2d at 87.
In Jackson, the trial court had denied a request for an expanded jury
instruction on CCP. Instead, the trial court gave the then standard instruction which
mirrored the language of Fla. Stat. § 921.141(5)(i) and which had been upheld by
this Court in Brown v. State, 565 So. 2d 304, 308 (Fla. 1990). However, this Court
was required to revisit the issue in light of the United Supreme Court’s holding in
Espinosa v. Florida, 505 U.S. 1079 (1992). This Court held in Jackson:
Because the challenge to the CCP instruction has been
properly preserved in this case and because Brown and its
progeny can no longer serve as authority for summarily

18

 denying this claim we must reconsider
constitutionality of the standard CCP instruction.

the

Jackson, 648 So. 2d at 88. As explained supra, just as in Jackson, Mr. Lambrix has
preserved his claim. And just as in Jackson, the claim relates to inadequate jury
instructions. If Hurst holds that Caldwell does in fact apply to Florida, Mr. Lambrix
will be entitled to relief. The Eighth Amendment guarantees that persons facing the
“most severe sanction must have a fair opportunity to show that the Constitution
prohibits their execution.” Hall v. Florida 134 S. Ct 1986 at 2001. Mr. Lambrix must
be allowed the fair opportunity to show that Caldwell error prohibits his execution.
A stay of execution and relief are warranted.
The Ring issue
This Court has consistently held that Ring v. Arizona, 536 U.S. 564 (2002),
does not apply in Florida, and is therefore not retroactive. In Johnson v. State, 904
So. 2d 400 (2005) the Court outlined its earlier decisions that Ring did not apply to
Florida.3 The Court cited to two earlier opinions in which the United States Supreme
Court has repeatedly upheld Florida’s capital sentencing scheme. See Johnson, 904
So. 2d at 406. Thus, this Court believes that because, prior to Ring, the United States

3

See Bottoson v. Moore, 833 So. 3d 693 (Fla. 2002); Amos King v. Moore,
831 So. 2d 143 (Fla. 2002). Following this Court’s opinion in Johnson concerning
the non-retroactivity of Ring, counsel for Mr. Lambrix did not raise the issue in this
Court after Judge Corbin denied the free standing Ring Rule 3.851 amendment filed
in state circuit court by Dan Hallenberg of CCRC South in 2003.
19

 Supreme Court has upheld Florida’s original approach to capital sentencing,
decisions such as Ring and others describing the significance of the jury’s role in
sentencing in death penalty cases are irrelevant to Florida’s scheme. See e.g. Hurst
v. State, 177 So. 3d 435, 446 (Fla. 2014).
Hurst may alter this Court’s view of the Sixth Amendment. Until Hurst
resolves the question of whether Ring is applicable in Florida, the validity of this
Court’s view is in doubt. Significantly at oral argument in Hurst, the State’s advocate
conceded that Ring does indeed apply in Florida. Appendix 1 at 38, 42. During oral
argument, Justice Sotomayor asked whether a unanimous jury verdict is required
under the Eighth Amendment. See Appendix 1 at 10-11, 25-26, 43-45. Justice Scalia
and Justice Ginsburg also had questions about the need for a unanimous jury verdict.
See Appendix 1 at 12, 45. Justice Kagan asked whether the jury’s findings
underlying a death recommendation are part of the record and available for review
by the appellate courts. See Appendix 1 at 49-50. Meaningful appellate review is an
aspect of Eighth Amendment jurisprudence. See Parker v. Dugger, 498 U.S. 308,
321 (1991).
The penalty phase jury in Mr. Lambrix’s case was instructed that its verdict
was merely advisory and need not be unanimous. R. 2665. In fact the verdicts in
favor of death were not unanimous. They were respectively eight to four (8-4) and

20

 ten to two (10-2). If this Court revisits its holdings that Ring does not apply in
Florida, Mr. Lambrix may be entitled to relief pursuant to Hurst.
The contemporaneous felony aggravator
Even if, arguendo, prior violent felonies or contemporaneous felonies are
found to deny defendants the benefit of Ring/Hurst, Mr. Lambrix would still be
entitled to relief. This is because the jury in Mr. Lambrix’s case was never instructed
on the prior violent felony aggravator or the contemporaneous felony aggravator as
they relate to the respective contemporaneous homicides that Mr. Lambrix was
convicted of. In fact the State waived that aggravator before the jury:
And the Defendant was previously convicted of another
capital offense for the felony involving violence to some
other person. We are not claiming that. You are not to
consider that.
See R. 2645. The jury was instructed on the “commission during a robbery”
aggravator and also on the pecuniary gain aggravator. See R. 2663.4 The jury was

4

“One, that the crime for which the defendant is to be sentenced was
committed while he was under sentence of imprisonment. Next, that the crime for
which the Defendant is to be sentenced was committed while he was engaged in the
commission of a robbery. Next, the crime for which the Defendant is to be sentenced
was committed for financial gain. Next, that the crime for which the Defendant is to
be sentenced was especially wicked, evil, atrocious, or cruel. Next, that the crime
for which the Defendant is to be sentenced was committed in a cold, calculated and
premeditated manner without any pretense of moral or legal justification. If you find
that the aggravating circumstances do not justify the death penalty, your advisory
sentence should be one of life imprisonment without possibility of parole for 25
years on each count.”
21

 also specifically instructed on the need to avoid improper doubling of these
aggravators. See R. 2668. Mr. Lambrix was serving out a sentence for writing bad
checks when he walked away from his work release prison unit. The jury was
specifically told that “The conviction of worthless checks is not an aggravating
circumstance to be considered in determining the penalty to be imposed on the
Defendant but a conviction of that crime may be considered in determining whether
the Defendant has a significant history or prior criminal activity. The jury may
determine that the Defendant has no significant history of prior criminal activity.”
R. 2664.
So, although the jury was instructed implicitly on a nonviolent criminal
activity, the prison sentence for writing bad checks, they were not instructed on the
prior violent felony/contemporaneous felony, which the jury therefore could not
have considered. In fact, Judge Stanley advised the jury that the only aggravating
circumstances that the law allowed the jury to consider were those he had instructed
them on. R. 2673. (“These are the only aggravating circumstances that you may
consider. You are not allowed to take account of any other facts or circumstances as
the basis for deciding that the death penalty would be an appropriate punishment in
this case”).
However,

Judge

Stanley

expressly

found

the

aggravator

of

a

contemporaneous felony even though the jury was never given the instruction. R.

22

 2701-03.5 In his Order the trial court relied on Amos King v. State, 390 So. 2d 315
(Fla. 1980) in making this finding. However, in King the jury was instructed on the
contemporaneous felony. See King, 390 So. 2d at 320.
Throughout the litigation of this case, this Court has assumed that the jury was
instructed on and considered the contemporaneous felony aggravator, when in fact
it was not. Relief is warranted.
ARGUMENT II
MR. LAMBRIX’S POSTCONVICTION JUDGE
WAS BIASED IN VIOLATION OF THE
FOURTEENTH AMENDMENT GUARANTEE TO
AN IMPARTIAL TRIBUNAL. THIS COURT
FAILED TO CORRECT THAT VIOLATION
BECAUSE IT APPLIED THE FLORIDA RULES OF
JUDICIAL ADMINISTRATION INSTEAD OF THE
CONSTITUTIONAL
STANDARD
AND
MISCONSTRUED THE FACTS CONCERNING
THE JUDICIAL REASSIGNMENTS IN THIS CASE.
In 2009, Petitioner filed a petition for postconviction relief pursuant to Florida
Rule of Criminal Procedure 3.851, alleging inter alia that the prosecution had
violated Brady and Giglio by failing to disclose that hairs were found on the murder
weapon which may match Frances Smith, the State’s key witness. The matter was
assigned to Twentieth Judicial Circuit Judge Corbin.

5

Trial counsel did twice object to Judge Stanley’s finding on the record during
the Judge sentencing hearing. R. 2701; 2703. Appellate counsel failed to raise the
issue on direct appeal.

23

 Mr. Lambrix moved to disqualify Judge Corbin on grounds that are not
relevant here. On September 10, 2009, Judge Corbin denied the disqualification
motion. Thereafter, on October 7, 2009, an Order of Reassignment was entered by
G. Keith Cary, Chief Judge, Twentieth Circuit, on his own motion, removing Judge
Corbin and reassigning Judge Christine Greider to the case. PCR. 674.
After Judge Greider was assigned to the case, Mr. Lambrix sought her
disqualification, both pro se and through counsel. Judge Greider denied his requests
and summarily denied the Rule 3.851 petition.
On appeal, this Court remanded the matter for a hearing, noting that the
“allegations in the [disqualification] motion, if true, raise significant concerns.”
Lambrix v. State, No. SC10-1845, Order at 1 (Fla. Jan. 4, 2012). This Court also
ruled that for purposes of Florida Rule of Judicial Administration 2.330(g), Judge
Greider was a “successor judge” to Judge Corbin, id., and therefore that she could
conduct the hearing and determine whether “she is in fact not fair or impartial in the
case.” Rule 2.330(g). Following a contested hearing necessitating a determination of
the credibility of the witnesses before her, Judge Greider accepted the testimony
presented by the State and found that she was not personally biased against
Petitioner.
Mr. Lambrix challenged Judge Greider’s denial of disqualification both by a
petition for writ of prohibition and on appeal of her rulings. In the petition for writ

24

 of prohibition, he pointed out that she had worked as an assistant state attorney, and
argued that she should be disqualified under the due process framework set forth in
Caperton v. A.T. Massey Coal Co., 556 U.S. 668 (2009). See Petition for a Writ of
Prohibition at 3, Lambrix v. State, No. SC11-1845 (Fla. Sept. 23, 2011) (quoting
Caperton for the proposition that “‘[a] fair trial in a fair tribunal is a basic
requirement of due process.’”); see also Brief of Appellant at 24, Lambrix v. State,
No. SC12-6 (Fla. April 16, 2012). Mr. Lambrix argued, inter alia, that
Judge Greider’s personal and professional relationships as
a former state attorney working for elected State Attorney
Steve Russell and Chief Deputy State Attorney Randall
McGruther, who prosecuted Mr. Lambrix and testified in
his post conviction case in response to alleged issues of
prosecutorial misconduct, justifiably raises fear in Mr.
Lambrix’s mind as to whether Judge Greider can be
impartial in this case, necessitating her disqualification.
Brief of Appellant at 8-9, Lambrix v. State, No. SC12-6 (Fla. April 16, 2012).
In his appeal, Mr. Lambrix pointed out this Court’s factual error in its prior
ruling that Judge Greider was a successor judge for purposes of Rule 2.330(g), and
argued that Judge Greider’s refusal to disqualify herself violated both Florida law
and his rights under the Eighth and Fourteenth Amendments to the United States
Constitution. See Lambrix v. State, SC10-1845, Supplemental Initial Brief of
Appellant, (Fla. Nov. 15, 2012). In particular, he argued that this Court should apply
the due process standards articulated in Caperton, and that under those standards the
denial of disqualification violated due process. Id. at 19-22.
25

 This Court refused to acknowledge its factual error in treating Judge Greider
as a successor judge, simply asserting it had “already determined that the trial judge
in this case was a successor judge.” Lambrix v. State, 124 So. 3d at 897. Applying
its own law for reviewing a successor judge’s decision to deny a disqualification
motion, this Court ruled that the record did not “clearly refute[]” Judge Greider’s
decision. Id. at 897-98. Applying its own law set forth in Arbelaez v. State, 775 So.
2d 909, 916 (Fla. 2000), this Court also ruled that Judge Greider’s former
employment as a prosecutor was not a ground for disqualification. Lambrix, 124 So.
3d at 903-04.
This Court’s prior review of Mr. Lambrix’s petition—including the issue
regarding disqualification of Judge Greider—was fundamentally flawed for two
reasons. First, as noted above, this Court treated Judge Greider as a “successor
judge” who, under Rule 2.330(g), was tasked only with determining whether she
was actually biased. Second, this Court—like Judge Greider—considered only the
issue of actual bias without ever addressing the guarantee of an impartial tribunal
inherent in the Due Process Clause of the Fourteenth Amendment.
This Court’s use of a standard that requires bias in fact was contrary to the
Caperton standard, under which a mere potential for bias can be constitutionally
intolerable. Caperton, 556 U.S. at 879 (constitutionality of judicial bias does not
depend on “whether in fact [a judge] was influenced.” Id. (quotations omitted)).

26

 Thus, failing to apply the constitutional test and misconstruing the
reassignment, this Court assessed Mr. Lambrix’s judicial bias claim on both the
wrong law and the wrong facts. The standard applied was not just inconsistent but
entirely contrary to the constitutional standard that should have been applied.
Further, this Court resolved the claim without the benefit of the United States
Supreme Court’s imminent resolution of Terrance Williams v. Pennsylvania (No.
15-5040). Williams promises to better describe the constitutional implications of a
judge presiding over a case previously prosecuted by an office that employed the
judge. Particularly, Williams promises to define the Eighth Amendment contours of
this issue, in the capital context, where constitutional protections are heightened
beyond what would have been called for in Caperton. Certiorari was granted in
Williams on October 1, 2015, and oral argument is scheduled for February 29, 2016.
In light of these errors and developments in the law, Petitioner requests that this
Court grant relief from the rulings of the disqualified judge that presided over his
case or grant a stay of execution, pursuant to the accompanying Motion to Stay
Execution, pending the resolution of Williams by the United States Supreme Court.
This Court Erred in Treating Judge Greider as a “Successor Judge”
Rule 2.330 makes a critical distinction between “initial motions” to disqualify
judges and “successive motions” to disqualify so-called successor judges, who are
assigned following the disqualification by motion of an initial judge. Rule 2.330(f)

27

 dictates that, when reviewing initial motions, judges “shall not pass on the truth of
the facts alleged,” but merely review for legal sufficiency: “[i]f the motion is legally
sufficient, the judge shall immediately enter an order granting disqualification and
proceed no further in the action.” However, any subsequent motion for
disqualification filed by a defendant faces a more difficult standard:
If a judge has been previously disqualified on motion for
alleged prejudice or partiality under subdivision (d)(1), a
successor judge shall not be disqualified based on a
successive motion by the same party unless the successor
judge rules that he or she is in fact not fair or impartial in
the case. Such a successor judge may rule on the truth of
the facts alleged in support of the motion.
Fla. R. Jud. Admin. 2.330(g).
This Court stated that Judge Greider was a successor judge, and therefore that
the more demanding Rule 2.330(g) standard applied. Lambrix v. State, No. SC101845, Order at 1 (Fla. Jan. 4, 2012) (quoted in Lambrix, 124 So. 3d at 897 n.3); see
also Lambrix, 124 So. 3d at 897 (“we already determined that the trial judge in this
case was a successor judge”). That ruling was clearly erroneous.
While this case was reassigned prior to Mr. Lambrix’s motion to disqualify
Judge Greider, that assignment was administrative in nature, not a disqualification
by motion. The order of reassignment was signed by Chief Judge Cary on October
7, 2009, and states as follows:
THIS CAUSE comes before the Court on its own motion.
The above-captioned case is hereby reassigned to the
28

 Honorable Christine Greider, who is duly qualified to
preside over capital cases pursuant to Fla. R. Jud. Admin.
2.215(b)(10). Judge Greider will review the matter and
advise counsel as to how this case might best progress in
accordance with the applicable rules of judicial
administration and criminal procedure.
(R. Vol. IV p. 674 (emphasis added).) Thus, Judge Greider should not have been
treated as a successor judge.
Requiring Mr. Lambrix to meet the actual, “in fact” bias standard of Rule
2.330(g) violated Florida law. Mr. Lambrix was entitled to have his claim considered
under the “legally sufficient” standard of Rule 2.330(f), which this Court
acknowledged he had met. (Order of Jan. 4, 2012, at 1 (finding that the allegations
of the motion “raise significant concerns”)). But even if it was consistent with
Florida law to apply Rule 2.330(g), that did not answer the separate question whether
Judge Greider’s disqualification was required by the Fourteenth Amendment.
The right to an impartial tribunal inherent in the Fourteenth Amendment’s
guarantee of due process requires that a court ask “not whether the judge is actually,
subjectively biased, but whether the average judge in his position is likely to be
neutral, or whether there is an unconstitutional potential for bias.” Caperton, 556
U.S. at 881 (2009) (internal quotations omitted). This Court’s application of a
subjective, actual bias test rather than the governing objective, potential bias test was
inconsistent with Caperton.

29

 This Court Erred in Failing to Analyze Whether Judge Greider’s
Disqualification Was Required by Due Process
The claims of judicial bias Mr. Lambrix previously presented to this Court
were constitutional in nature and demanded an analysis pursuant to Caperton. Mr.
Lambrix’s claims of judicial bias relating to Judge Greider appeared in both his
appeal from the denial of his Rule 3.851 motion and a separate petition for a writ of
prohibition. Petition for a Writ of Prohibition at 3-4, Lambrix v. State, No. SC111845 (Fla. Sept. 23, 2011); Brief of Appellant at 6-7, Lambrix v. State, No. SC12-6
(Fla. April 16, 2012).
Yet, despite Mr. Lambrix’s clear invocation of constitutional protections, this
Court disposed of Mr. Lambrix’s disqualification issue under Rule 2.330 and
Arbelaez. Lambrix, 124 So. 3d at 897-98 (applying Rule 2.330(g)); id. at 903-04
(applying Arbelaez). Caperton’s constitutional test was nowhere to be found in this
Court’s assessment of the claim.
This Court’s review under Rule 2.330 and Arbelaez was no substitute for due
process analysis under Caperton. Rule 2.330(g) focuses solely on proof of actual
bias, while Arbelaez holds that former employment as an assistant state attorney does
not even qualify as a legally sufficient basis for a challenge under Rule 2.330(f). In
Arbelaez, this Court ruled that “[n]either her ‘tough-on-crime’ stance nor her former
employment as a prosecutor was legally sufficient for disqualification.” Arbelaez v.
State, 775 So. 2d 909, 916 (Fla. 2000). This Court indicated that a legally sufficient
30

 motion for disqualification must show “a personal bias or prejudice against [the
defendant]” with “specific facts other than his subjective fear . . . .” Id.
State rules requiring judicial recusal and the constitutional right to an impartial
tribunal defined in Caperton are distinct protections with distinct standards.
Caperton concerns itself with any “interests that tempt adjudicators to disregard
neutrality,” those which simply “might lead [a judge] not to hold the balance nice,
clear and true between the State and the accused.” Id. It demands “a realistic
appraisal of psychological tendencies and human weakness.” Id. at 883-84
(quotations omitted). The constitutionality of judicial bias does not depend on
“whether in fact [a judge] was influenced.” Id. at 879 (citing Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 825 (1986)). Because “what degree or kind of interest is
sufficient to disqualify a judge from sitting cannot be defined with precision,” id.
(quotations omitted), the constitutional inquiry is an objective one:
The difficulties of inquiring into actual bias, and the fact
that the inquiry is often a private one, simply underscore
the need for objective rules. Otherwise there may be no
adequate protection against a judge who simply misreads
or misapprehends the real motives at work in deciding the
case. The judge’s own inquiry into actual bias, then, is not
one that the law can easily superintend or review, though
actual bias, if disclosed, no doubt would be grounds for
appropriate relief. In lieu of exclusive reliance on that
personal inquiry, or on appellate review of the judge’s
determination respecting actual bias, the Due Process
Clause has been implemented by objective standards that
do not require proof of actual bias.

31

 Id. at 883.
To make Caperton’s objective inquiry, courts ask “not whether the judge is
actually, subjectively biased, but whether the average judge in his position is likely
to be neutral, or whether there is an unconstitutional potential for bias.” Id. at 881
(quotations omitted). It is potentiality, not actuality that describes the scope of the
constitutional protection.
This test must be applied with an eye on its underlying principle that a fair
tribunal is essential to due process. See In re Murchison, 349 U.S. 133, 136 (1955).
This principle “helps to guarantee that life, liberty, or property will not be taken on
the basis of an erroneous or distorted conception of the facts or the law,” and
“preserves both the appearance and reality of fairness.” Marshall v. Jerrico, Inc.,
446 U.S. 238, 242 (1980) (citation and quotations omitted). This guiding principle
ensures that the right to an impartial tribunal is “jealously guarded.” Id. at 242.
The constitutional standard, its focus on the potential for bias, its underlying
principles, and its historical development towards more inclusive protections departs
greatly from Rule 2.330.
The Arbelaez rule against judicial bias claims based on prior employment
arose from this line of Florida cases, not the constitutional analysis. As to the judge
at issue in Arbelaez, this Court ruled that “[n]either her ‘tough-on-crime’ stance nor
her former employment as a prosecutor was legally sufficient for disqualification.”

32

 Arbelaez v. State, 775 So. 2d 909, 916 (Fla. 2000). This Court indicated that a legally
sufficient motion for disqualification must show “a personal bias or prejudice against
[the defendant]” with “specific facts other than his subjective fear . . . .” Id.
Petitioner had a well-grounded claim for disqualification under Caperton. As
reflected in the Twentieth Judicial Circuit’s online biography for Judge Greider, she
became a member of the bar in 1986, the year of Mr. Lambrix’s direct appeal
opinion, and practiced as an assistant state attorney for the nine years preceding her
2006 judicial appointment. See Judge Greider’s Biography, 20th Judicial Circuit,
Circuit

Judges,

http://www.ca.cjis20.org/home/collier/colljudge.asp?Judge=greider&PgType=2&
Display= (last visited January 7, 2016). Thus, Judge Greider was a state attorney
during the time of Mr. Lambrix’s postconviction proceedings, while her office faced
allegations of misconduct from Mr. Lambrix and would have been discussing
internally the manner in which to attempt to defeat those allegations.
Judge Greider’s online biography also notes that she “served as an Assistant
State Attorney for State Attorney[] . . . Steven B. Russell.” Id.
Trial prosecutor Randall McGruther was at the Office of the State Attorney
throughout Judge Greider’s tenure, and to this day. Judge Greider denied without a
hearing Petitioner’s Brady claim, which concerned the contents of previously
undisclosed FDLE lab records. In the FDLE lab notes it was recorded that in 1982

33

 Assistant State Attorney McGruther had requested that FDLE suspend forensic and
other lab testing after learning that FDLE tests of the alleged tire iron murder weapon
had found human hairs that failed to match either Lambrix or the two victims. This
information was never provided to trial counsel or postconviction counsel by the
Office of the State Attorney. Pursuant to Caperton, the potential for Judge Greider
to not hold the balance perfectly nice and true is undeniable.
Petitioner meets the probability of bias standard under Caperton. Under the
constitutional standard, the mere probability of bias requires recusal where a judge
had a relationship to the prosecutorial office or prosecutorial function in the case.
For instance, in Murchison, the Supreme Court held that the same judge may not
serve as both a “one-man grand jury” and as the trier of contempt charges that he
initiated. 349 U.S. at 134 (internal quotations omitted); see also Republican Party of
Minn. v. White, 536 U.S. 765, 776 (2002) (describing Murchison as holding that the
“judge violated due process by sitting in the criminal trial of defendant whom he had
indicted”). Such a single-judge grand jury amounts to participation in the
“accusatory process,” and “[i]t would be very strange if our system of law permitted
a judge to act as a grand jury and then to try the very persons accused as a result of
his investigations.” Murchison, 349 U.S. at 137; see also Mayberry v. Pennsylvania,
400 U.S. 455, 466 (1971) (holding that a defendant in criminal contempt proceedings
should be tried by “a judge other than the one reviled by the contemnor”).

34

 A defining feature of our adversarial system of justice is “the presence of a
judge who does not (as an inquisitor does) conduct the factual and legal investigation
himself, but instead decides on the basis of facts and arguments . . . adduced by the
parties.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 357 (2006). In short, no man
should be “a judge in his own case.” Murchison, 349 U.S. at 136. Here, Judge
Greider was asked to assess the conduct of her former colleagues, including matters
that may have been discussed internally while she was a prosecutor. Under
Caperton, she should have been disqualified.
This Court, however, never addressed whether Judge Greider should have
been disqualified under Caperton. Instead, it considered only whether Petitioner had
shown actual bias under Rule 2.330 and Arbelaez. Because Petitioner’s motion for
disqualification was never addressed according to the applicable due process
standard, this Court should grant habeas relief. It should also grant a stay to permit
it to consider the issue on the merits without the time pressure of an impending
execution.
This Court Should Grant a Stay Pending the United States Supreme
Court’s Decision in Williams v. Pennsylvania
Like this case, Williams v. Pennsylvania arose in the context of review
of Brady claims presented in a successive state postconviction petition. In Williams,
the United States Supreme Court granted certiorari to consider issues very similar to
those presented here. In particular, Williams presents the question of whether the
35

 Eighth and Fourteenth Amendments are violated where a state court justice sits on a
case despite, inter alia, his “prior capacity as elected District Attorney [who]
continued to head the District Attorney’s Office that defended the death verdict on
appeal.” Petition For Writ of Certiorari at i, Terrance Williams v. Pennsylvania, No.
15-5040 (U.S. June 12, 2015). Moreover, in Williams, as here, the subject jurist
reviewed “a ruling by the state postconviction court that his office committed
prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it
prosecuted and sought death against Petitioner.” Id. Finally, here, as in Williams,
these issues arise in a capital case, where the Eighth Amendment affords
“heightened” due process protections to ensure the reliability of capital convictions
and sentences. See Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). Given that the
issues presented and shortly to be decided in Williams are so similar to those
presented in this proceeding, this Court at a minimum should stay these proceedings
so that it has the benefit of the decision in Williams before ruling. Declining to issue
a stay would be an irreversible mistake if that case creates law which this Court
would have found applicable to Mr. Lambrix under Witt v. State, 387 So. 2d 922
(Fla. 1980), and which would require a finding of unconstitutional judicial bias in
this case.

36

 ARGUMENT III
APPOINTMENT OF CLEMENCY COUNSEL AND
THE
EXECUTIVE
CONSIDERATION
OF
CLEMENCY IN MR. LAMBRIX’S CASE WAS
STRUCTURALLY FLAWED, FAILED TO TAKE
INTO ACCOUNT ALL THE EVIDENCE OF
ERROR IN HIS CASE; AND VIOLATED
CONSTITUTIONAL
STANDARDS
FOR
A
CAPITAL SENTENCING SYSTEM
The instant state habeas petition is required after the November 30, 2015
warrant for the execution of Cary Michael Lambrix was signed by the Governor of
Florida. The warrant explicitly stated that “executive clemency for MICHAEL RAY
LAMBRIX, as authorized by Article IV, Section 8(a), of the Florida Constitution,
was considered pursuant to the Rules of Executive Clemency, and it has been
determined that executive clemency is not appropriate”.
Thus Cary Michael Lambrix’s third experience with the State of Florida’s
clemency process for death row inmates ended with the signing of the warrant.6 Mr.
Lambrix has had three bites of the clemency apple since he was convicted of two
counts of first degree murder and sentenced to death on March 22, 1984. The first
was in 1987, when his direct appeal attorney Barbara LeGrande, was appointed as
his clemency counsel. In 1987 it was the policy and practice to conduct clemency
proceedings upon a death sentenced inmate’s conviction and sentence becoming

6

Letter to Clemency Board from 2015 Clemency lawyer Adam Tebrugge.
Appendix 6.
37

 final on direct appeal and denial of certiorari in the United States Supreme Court.
Appointing direct appeal counsel as clemency counsel was common practice. If the
Governor then determined that clemency was not appropriate, he would sign a death
warrant, prompting the inmate to file a motion for postconviction relief and request
that the execution be stayed. That is what happened in Mr. Lambrix’s case in 1988.
Clemency counsel LeGrande only spoke with Mr. Lambrix briefly before he
was interviewed at Florida State Prison on August 28, 1987 by Carolyn Tibbetts, an
employee of the Florida Probation and Parole Commission. See Appendix 7.
(transcript of interview). Mr. Lambrix was asked no questions by Ms. Tibbetts. The
“interview” was essentially a monologue directed by attorney LeGrande wherein
Mr. Lambrix discussed his life, military service, and Christian beliefs. On December
3, 1987, Ms. LaGrande personally appeared, along with a number of other lawyers
engaging in the same process on behalf of other death row inmates, before former
Governor Bob Martinez, seeking mercy for Mr. Lambrix. Her statement relied
primarily on the inconsistencies of key witness Frances Smith’s statements that the
jury never heard. She also provided a 22 page “Statement of Facts” with Supporting
Facts that was prepared by Mr. Lambrix. The “Statement of Facts” included a
detailed history of his case and a specific description of the events of the crime that
explained his self-defense account of the events and an explanation of why he
mistrusted and failed to cooperate with the Public Defenders assigned to represent

38

 him. See Appendix 8. (Transcript of December 3, 1987 hearing; Statement of Facts
at 5-7 & 14-15).
Subsequently, Governor Martinez signed Mr. Lambrix’s first death warrant
on September 28, 1988, and thereafter, Mr. Lambrix filed his initial Fla. R. Crim. P.
3.850 motion. It was summarily denied without an evidentiary hearing. Immediately
before this Court denied all collateral relief on November 30, 1988, Mr. Lambrix
had lodged a petition for writ of federal habeas corpus under 28 U.S.C. § 2254 in
anticipation of this Court’s affirmance of the circuit court’s summary denial below.
Mr. Lambrix obtained a stay of execution based on a handwritten motion filed by
CCR counsel in the United States Southern District Court on December 1, 1988, the
day before the rescheduled execution.
The federal district court rejected Mr. Lambrix’s claims that his trial attorneys
were ineffective in failing to present substantial mitigation. Lambrix v. Singletary,
72 F.3d 1500 (11th Cir. 1996). While Mr. Lambrix's appeal was pending in the
Eleventh Circuit, the U.S. Supreme Court held that Florida’s standard jury
instruction on the heinous, atrocious, and cruel aggravator was unconstitutionally
vague. Espinosa v. Florida, 505 U.S. 1079 (1992); see also Jackson v. State, 648 So.
2d 85, 90 (Fla. 1994) (Florida's standard cold, calculated, and premeditated jury
instruction was also unconstitutionally vague). However, the U.S. Supreme Court
rejected Mr. Lambrix’s Espinosa claim in a 5-4 decision finding that the decision in

39

 Espinosa was not retroactive. Lambrix v. Singletary, 520 U.S. 518 (1997). The
Eleventh Circuit also found that trial counsel was not ineffective for failing to present
mitigating evidence:
The Eleventh Circuit also found that trial “counsel’s
investigation for the penalty phase was fairly extensive
and certainly was not constitutionally deficient. Even after
an extensive investigation, including interviews with
witnesses who were in the household at the time of the
alleged abuse and neglect, counsel had no indication that
evidence of abuse existed. We therefore cannot hold
counsel responsible for failure to uncover such evidence.
Thus, Lambrix has not shown that counsel’s performance
was deficient.
Lambrix v. Singletary, 72 F.3d 1500, 1504-06 (11th Cir. 1996).7

7

But see the State’s argument to the jury concerning the Defense presentation
as to mitigation at the penalty phase at trial: “And the final one is kind of a catchall,
any other aspect of the Defendant’s character, record or any other circumstance of
the offense. I believe this is what you heard this morning when the defense put on
their evidence. Look at what the Defendant did. They put on, I believe, two brothers,
a sister, father and step-mother of the Defendant, all of whom uniformly came up
and said, “Hey, he came from a broken home, went to a foster home for a couple
months, father and step-mother got married, came back home, lived in that
environment, and that he was a good boy.” I believe they all said he was a good boy
when he was younger. . .I believe this is what you heard this morning. One thing I
believe is the uniform and the testimony of all those persons this morning that you
may have noticed is that none of them have had any significant contact with the
Defendant in many years. And I believe on cross examination by Mr. Greene, they
said they really don’t know what he was doing during that time. People can change,
ladies and gentlemen, and when people aren’t around to see them change, all they
can testify about is how they knew him before. Are there any mitigating
circumstances? I submit to you that there are not. You have heard no evidence on
most of them. There is no implication whatsoever that any of the imbibing that
evening affected his ability to mediate, to carry out these acts. His family life in and
40

 Lambrix’s second bite of the clemency apple commenced in 1998, when in a
letter dated April 6, 1998, addressed to the Honorable Dennis Alvarez, Chief Judge
of the Thirteenth Judicial Circuit, the Coordinator of the Office of Executive
Clemency requested that new clemency counsel be appointed within 30 days.
Appendix 9. A second letter was sent on April 16, 1998 to Chief Judge Starnes of
the Twentieth Judicial Circuit making an identical request. Appendix 10.
On May 27, 1998, Ms. Barbara LeGrande was re-appointed as clemency
counsel by Chief Judge Starnes. Appendix 11. She moved to withdraw based on a
conflict of interest, and by Order entered on June 22, 1998 by Chief Judge Starnes,
was allowed to do so. Appendix 12. She was replaced by Mark Gruber, another
private attorney, by Order entered by Judge Starnes on June 29, 1998. Appendix 13.
Although Mr. Gruber had no experience in capital cases, he prepared a
supplemental petition for clemency which he filed in late 1998. See Appendix 14.
(1998 petition for clemency). Gruber’s petition included Mr. Lambrix’s affidavit
explaining that he acted in self-defense, information that the Mr. Lambrix’s trial
judge, Judge Stanley, had made comments regarding another death-sentenced
inmate, Raleigh Porter, which brought the Judge’s impartiality into question. See
Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995); Porter v. State, 723 So. 2d 191

of itself you all heard about this morning, is not, I submit to you, a mitigating factor
in this matter.” R. 2643-44.
41

 (Fla. 1998).8 Mr. Gruber was unaware that when Judge Stanley sentenced Mr.
Lambrix to death at the second trial, he found an aggravating factor that the State
had waived on the record and that the jury never was instructed on.9 The
supplemental clemency petition also included mitigation information that had been
developed during the federal proceedings that was not in existence at the time of
the 1987 clemency interview of Mr. Lambrix and presentation by Ms. LeGrande.
By early 1999, months after he had filed the supplemental clemency petition
in 1998, Gruber left private practice and joined CCRC-Middle, who represented
Mr. Lambrix from May 11, 1998 until August 2, 1999, when private registry
counsel Ostrander was appointed to replace CCRC Middle on the case. However,
Gruber maintained his appointment as clemency counsel until April 2000, although
he had moved to withdraw, writing presiding circuit court Judge Corbin on
September 9, 1999 and advising him that he was moving to withdraw as clemency

8

In January 16, 1998 CCRC South had filed a Rule 3.850 motion based on
Porter. On December 2, 1998, CCRC Middle expanded the judicial bias claim, and
added six additional claims in a 211 page amended Rule 3.850 motion. Mr. Lambrix
later learned that the former judge made at least two separate comments to the
clemency board concerning Mr. Lambrix’s case. However, in keeping with the
shroud of secrecy surrounding executive clemency in Florida, the parole commission
has thwarted Mr. Lambrix’s attempts to obtain copies of those statements.
9

(2) the defendant was previously convicted of another capital felony, section
921.141(5)(b).
42

 counsel. Appendix 15.10 Judge Corbin failed to enter an order allowing him to
withdraw until April 13, 2000. Appendix 16. Thereafter, Gruber was not replaced
as clemency counsel for 14 years, until attorney Adam Tebrugge was appointed in
2014.
In 2013, the Florida Legislature passed the Timely Justice Act. The legislation
requires the clerk of the Florida Supreme Court to provide a certification to the
Governor of any death-sentenced inmate who has completed his or her direct appeal
and initial postconviction litigation and appeal in both state and federal court or
allowed time for filing a petition for habeas corpus in federal court. Florida Statute
§922.052(1) and (2)(a) (2013). On October 4, 2013, the clerk of the Florida Supreme
Court provided an initial list of 132 names of death row inmates, including Mr.
Lambrix, who appeared to have completed their initial legal challenges in state and

10

In the letter to Judge Corbin, Gruber related that he had “left private practice
and took a position with CCRC earlier this year.” He also described what happened
when he accepted the appointment as clemency counsel in 1998: “When I accepted
this appointment, I contacted the Office of Executive Clemency and was advised
that Lambrix was being given a “truncated” clemency consideration, and that my
task was to file a clemency statement and await further developments. I didn’t hear
anything on the matter after that and did not see any benefit to Lambrix in agitating
for a result.” He also advised the Court that “I contacted the Office of Executive
Clemency today and was advised that the clemency proceeding was still pending. I
have not been advised of anything in connection with the clemency matter for around
a year. Nevertheless, I am submitting a motion to withdraw.”
43

 federal court.11
None of the issues developed by Mr. Lambrix’s successor counsel after 1998
sounded in clemency until attorney Adam Tebrugge was appointed in 2014 to
undertake a new appointment as clemency counsel. Mr. Tebrugge prepared a petition
setting forth the structural flaws in Mr. Lambrix’s legal case. See Appendix 17.
(2014 clemency petition). These flaws included the fact that substantive and
meritorious legal claims were never considered due to procedural bars. Mr.
Tebrugge also set forth a case of redemption and provided evidence that Mr.
Lambrix has become a contributing member of his community as well as a loving
father and grandfather. Despite the complexity of Mr. Lambrix’s case and the fact
that twenty-eight years have passed since his only interview and clemency hearing,
neither was granted. Mr. Tebrugge learned that clemency had been denied only when
the death warrant was signed on November 30, 2015. On December 14, 2015, Mr.
Tebrugge wrote a letter to the Board of Executive Clemency objecting to the lack of
Due Process. See Appendix 6 (letter of objection). To date he has received no
response.
So, unfortunately for Michael Lambrix, all three bites of the clemency apple
offered up by the Executive branch were from the fruit of a poisonous tree. The only

11

One of the inmates on that list, Roy Swafford, was granted a new trial by
the Florida Supreme Court just a month after he was certified as being warrant
eligible. Swafford v. State, 125 So. 3d 760 (2013).
44

 physical interview or opportunity for a presentation on his behalf, other than in
writing, was in August 1987, a year before his postconviction process had really
begun. The tortured history of his case is known to this Court and the other
arguments in this state habeas filing and in the simultaneous briefing of the summary
denial of his under warrant Rule 3.851 motion, Rule 3.853 motion and Motion for a
Stay of Execution must be considered in the context of what has never, to date, been
allowed to sound in clemency.
The United States Supreme Court has recognized that the importance of the
clemency process in a capital case cannot be understated: “Far from regarding
clemency as a matter of mercy alone, we have called it the ‘fail safe’ in our criminal
justice system.’” Harbison v. Bell, 129 S. Ct. 1481 (2009) quoting Herrera v.
Collins, 506 U.S. 390, 415 (1993). In that regard, the recent history of clemency
consideration for death row inmates in Florida since the early 1980s mirrors Mr.
Lambrix’s experience that the state constitutional provision for clemency no longer
functions as a “fail safe” in Florida’s death penalty scheme.
For example, in 1979, former Governor Bob Graham presided over the first
execution in the country after the death penalty was reinstated. Gov. Graham
steadfastly enforced the law by signing the death warrants for sixteen (16) men who
were executed during his two terms in office. However, Governor Graham also
commuted the death sentences of six men during his tenure: Leo Alford and Clifford

45

 Hallman (1979); Darrell Edwin Hoy and Richard Henry Gibson (1980); Michael
Salvatore (1981); and Jesse Rutledge (1983). Gov. Graham was the last Florida
Governor to grant mercy in a capital case.
Once again there is no measure as to whether actual consideration has ever
been given to Mr. Lambrix’s petitions for clemency. But the raw fact that no death
row inmate has received clemency in more than twenty-five years is instructive. Far
more death row inmates have died in custody or been exonerated than the zero who
have been granted executive clemency. Certainly the other matters referenced in this
instant state habeas petition (and in the initial brief concerning long term
incarceration, DNA testing of the female victim’s clothing and the conflict with
counsel) have never been part of Mr. Lambrix’s prior clemency petitions or
consideration. In practice, whether an inmate will be assigned counsel or have an
opportunity for a first or second interview appears to be completely arbitrary in
circumstances where Mr. Lambrix was without clemency counsel for fourteen years
from 2000-2014.
Even at his sole interview in 1987, the Commissioner asked him no questions.
The clemency process in Florida was of no use to Cary Michael Lambrix. It only
afforded the executive branch in Florida the opportunity to control the pace of
executions independent of the legislative and judicial branches. In Ohio Adult Parole
Authority, et al. v. Woodard, 523 U.S. 272, 288-89 (1998), Justice O’Connor

46

 reasoned that as long as the condemned person is alive, he has an interest in his life
that the Due Process Clause protects.
Judicial intervention might, for example, be warranted in
the face of a scheme whereby a state official flipped a coin
to determine whether to grant clemency, or in a case where
the State arbitrarily denied a prisoner any access to its
clemency process.
Id. Mr. Lambrix submits that a system dependent upon coin flipping would provide
him with more transparent due process than he has been provided since 1987. Under
these circumstances, judicial oversight is warranted.
In Harbison v. Bell, 129 S. Ct. 1481 (2009), the United States Supreme Court
explained that federal habeas counsel may develop in the course of his representation
“the basis for a persuasive clemency application” which arises from the development
of “extensive information about his [client’s] life history and cognitive impairments
that was not presented during his trial or appeals.” Harbison, 129 S. Ct. at 1494. This
analysis presupposed that the clemency proceeding is conducted not just after trial,
not just after direct appeal, but after the federal habeas proceedings have been
concluded. In Mr. Lambrix’s case that was in 1997.
If Harbison provides a proper analysis, the 1998 post-habeas clemency
petition by Mr. Gruber fell into a bottomless pit for sixteen years. Clemency
consideration must fulfill the “fail safe” function for which it is intended, allowing
the arbiter of clemency to consider all of the information that was uncovered in the

47

 course of the collateral litigation which may warrant serious clemency consideration.
And if the 2014 “re-do” of clemency by Adam Tebrugge was intended to fulfill this
function before a warrant ended the process, why was there no interview or formal
presentation allowed after twenty-eight years? Clemency counsel’s comment about
the absence of due process in Florida included in his December 15, 2015 letter of
protest to the Florida Commission on Offender Review and the Florida Executive
Clemency Board is one shared by postconviction counsel and by Mr. Lambrix:
But the failure to actually consider clemency in a case
where serious errors were never considered by the courts
due to procedural bars undermines confidence in the
clemency process itself. Because clemency is the final
avenue of review available to a death row inmate, the
State’s use of its clemency power is an important measure
of the fairness of the state’s justice system as a whole.
Appendix 6 at 1. This Court has recognized that a clemency proceeding is “part of
the overall death penalty procedural scheme in this state.” Remeta v. State, 559 So.
2d 1132, 1135 (Fla. 1990). However, the clemency proceedings in Mr. Lambrix’s
case were a mere formality, simply a ceremonial act before a warrant was signed for
a second time after twenty-seven years.
Therefore, the death penalty procedural scheme is obviated. When the
clemency process is rendered meaningless, as it was here, Florida’s death penalty
scheme is constitutionally defective. When the clemency process cannot operate as
the administrative “fail safe” for the criminal justice system, an act of administrative

48

 equitable mercy, the criminal justice system itself is rendered defective. Mr.
Lambrix’s two death sentences were returned under a constitutionally defective
sentencing scheme and should not stand. For the reasons stated above, this Court
should grant a stay of execution, and order further inquiry concerning Mr. Lambrix’s
argument herein.
CONCLUSION
The errors described above entitle Mr. Lambrix to relief. The burden remains
on the State to prove beyond a reasonable doubt that the individual and cumulative
errors did not affect the verdict and/or sentence. Chapman v. California, 386 U.S.
18 (1967). Relief is appropriate. For the foregoing reasons and in the interest of
justice, Mr. Lambrix respectfully urges this Court to grant habeas corpus relief.

49

 NEAL A. DUPREE
Capital Collateral Regional
Counsel - South
Fla. Bar No. 311545
Respectfully submitted,
/s/ William M. Hennis, III
WILLIAM M. HENNIS, III
Florida Bar No. 0066850
Litigation Director CCRC-South
hennisw@ccsr.state.fl.us
JESSICA HOUSTON
Florida Bar No. 0098568
Staff Attorney CCRC-South
houstonj@ccsr.ate.fl.us
Capital Collateral Regional Counsel-South
1 E. Broward Blvd., Suite 444
Fort Lauderdale, Florida 33301
(954) 713-1284
COUNSEL FOR MR. LAMBRIX

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 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been provided to:
Scott A. Browne, Assistant Attorney General, Office of the Attorney General, 3507
East

Frontage

Road,

Ste.

Scott.Browne@myfloridalegal.com;

200,
Capital

Tampa,
Appeals

FL

33607-7013,
Intake

Box,

capapp@myfloridalegal.com; via email service at warrant@flcourts.org this 11th
day of January 2016.
/s/William M. Hennis, III
WILLIAM M. HENNIS III
Fla. Bar No.: 0066850
Litigation Director
hennisw@ccsr.state.fl.us

51