Case: 14-15617        Date Filed: 01/14/2015     Page: 1 of 12


                                                                                    [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT
                                  ________________________

                                        No. 14-15617-P
                                  ________________________

In re: CARY MICHAEL LAMBRIX,

                                                                                      Petitioner.
                                  ________________________

                           Application for Leave to File a Second or
                  Successive Habeas Corpus Petition 28 U.S.C. Section 2244(b)
                                by a Prisoner in State Custody
                                ________________________


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

PER CURIAM:

       Pursuant to 28 U.S.C. § 2244(b)(3)(A), Cary Michael Lambrix has filed, through counsel,

an application seeking an order authorizing the district court to consider a second or successive

petition for a writ of habeas corpus. For the reasons below, we deny Lambrix’s application for

leave to file a second or successive habeas petition.

                                 I. PROCEDURAL HISTORY

       In Florida state court in 1984, Lambrix was convicted of two counts of first-degree

murder and received two death sentences for his 1983 murders of Clarence Moore and Aleisha

Bryant. Our prior decisions regarding Lambrix describe his criminal conduct and his dozens of

state and federal petitions and motions. See Lambrix v. Sec’y, Florida Dep’t of Corr., 

, 1256 (11th Cir.) (“Lambrix III”), cert. denied sub nom., Lambrix v. Crews, 

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(2014); Lambrix v. Singletary, 

, 1508 (11th Cir. 1996) (“Lambrix I”). For purposes

of the instant successive application, we recount some of that history below.

       On February 5, 1983, Lambrix brutally killed Moore and Bryant outside of his home by

choking and stomping Bryant and hitting Moore over the head with a tire iron. Lambrix 

. Lambrix then ate dinner with his girlfriend, Frances Smith; cleaned himself;

borrowed a shovel; buried Moore’s and Bryant’s bodies in shallow graves; and used Moore’s car

to dispose of the tire iron and his own bloody shirt in a nearby stream. Id.; In re Lambrix, 

, 1358-59 (11th Cir. 2010) (“Lambrix II”). Following her arrest on unrelated charges,

Smith advised law enforcement authorities about the murders and eventually led them to the

buried bodies, the tire iron, and Lambrix’s bloody shirt. Lambrix 

. Smith

was the State’s key witness at Lambrix’s trial. 

Smith offered the bulk of the

damaging evidence against him, and her story was corroborated by the physical evidence. 

Moreover, other witnesses corroborated different parts of Smith’s testimony, including

neighbor John Chezem’s testimony that Lambrix borrowed a shovel. 

Branch and Deborah Hanzel testified that Lambrix told them he killed Moore and Bryant. 

trial ended in a mistrial. 

second trial, a jury convicted

him of two counts of first-degree murder, and the state trial court imposed two death sentences.

and death sentences were affirmed on direct appeal. Lambrix v.

State, 

(Fla. 1986). Lambrix filed a motion for post-conviction relief under

Florida Rule of Criminal Procedure 3.850, which the state trial court denied. See Lambrix 

. In 1988, the Florida Supreme Court, in separate opinions, affirmed the denial

of Lambrix’s Rule 3.850 motion and denied his state habeas petition. See Lambrix v. State, 534




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(Fla. 1988) (affirming the denial of Lambrix’s Rule 3.850 motion); Lambrix v.

Dugger, 

(Fla. 1988) (denying Lambrix’s state habeas petition).

       Also in 1988, Lambrix filed a 28-claim § 2254 habeas petition in federal district court.

The district court denied Lambrix’s § 2254 petition, and this Court affirmed. Lambrix 

. The U.S. Supreme Court affirmed our judgment. Lambrix v. Singletary, 

,

(1997).

       Lambrix also has filed multiple successive state motions for postconviction relief, all of

which were denied by the state trial court. The Florida Supreme Court affirmed the denial of

each of these successive postconviction motions. See, e.g., Lambrix v. State, 

(Fla.), cert. denied, 

(2014); Lambrix v. State, 

(Fla. 2013); Lambrix

v. State, 

(Fla. 2010); Lambrix v. State, 

(Fla. 1990).

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

second or successive § 2254 petition based on 12 claims, including several of the claims raised in

the instant successive application. Lambrix 

. Following a response by

the State, we denied Lambrix’s successive application, concluding that Lambrix’s claims were

barred by § 2244(b)(1) because they previously were presented in his initial § 2254 petition in

1988, or failed to assert a constitutional violation, or otherwise failed to meet the prongs of

§ 2244(b)(2)(B). 

1

       And in 2014, this Court recently affirmed the district court’s denial of Lambrix’s pro se

motion for appointment of counsel to file a successive § 2254 petition based on Martinez v.




       1
       As in the present successive application, Lambrix’s 2010 successive application
proceeded only under § 2244(b)(2)(B) and did not seek to raise a claim under § 2244(b)(2)(A).
Lambrix 

.



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Ryan, 566 U.S. ___, 

(2012). See Lambrix 

. Notably, in

that decision, we stated:

       For the past thirty years, Lambrix has challenged the judgment of his convictions
       and two sentences of death entered against him by a Florida court in 1984. The
       litigation has gone on for too long. He has no viable federal remedies left for
       overturning his convictions or death sentences.

                         II. THE INSTANT SUCCESSIVE APPLICATION

       In the instant successive application, Lambrix indicates that he wishes to raise eight

claims in a second or successive § 2254 petition. 2 Specifically, Lambrix alleges that newly

discovered evidence establishes that the State violated his constitutional rights, under Brady v.

Maryland, 

, 

(1963), and Giglio v. United States, 

, 92 S.

Ct. 763 (1972), by withholding the following factual predicates or pieces of newly discovered

evidence: (1) evidence of an alleged immunity deal that Frances Smith received from the State in

return for her cooperation; (2) witness Deborah Hanzel’s alleged recantation of her trial

testimony; (3) evidence of a sexual relationship between Smith and a State investigator; (4) the

tire iron used to kill Moore contained hairs that did not match the victims but were allegedly

consistent with Smith’s and a fake tire iron was admitted against Lambrix at trial; (5) evidence of

bias by the judge who presided over Lambrix’s second state trial; (6) evidence that Smith’s

testimony regarding a pond on the property where the murders occurred was false; and

(7) evidence of a “conspiracy and collaboration” between the State and Smith. Additionally,

Lambrix        asserts   (8) a   freestanding   claim   of   actual   innocence,   citing   to   the



       2
       The 100-page brief filed by Lambrix’s counsel in place of this Court’s form application
for successive habeas petitions fails to number or clearly delineate Lambrix’s claims.
Accordingly, we have derived the claims enunciated in this order from a careful review of
Lambrix’s submitted 100-page brief and attached exhibits.


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fundamental-miscarriage-of-justice doctrine enunciated in Schlup v. Delo, 

, 115 S.

Ct. 851 (1995), and House v. Bell, 

, 

(2006).

                                     III. 28 U.S.C. § 2244(b)

       Section 2244(b)(1) of Title 28 provides that “[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed.” 28 U.S.C. § 2244(b)(1). Accordingly, in ruling on an application to file a

successive petition, we must make a threshold determination of whether the claim to be

presented in the second or successive petition was presented in the first petition. In re Hill, 

, 291 (11th Cir. 2013).

       Further, even where a claim was not presented in a prior federal petition, the claim must

satisfy the requirements of 28 U.S.C. § 2244(b)(2). Under that provision, we may grant the

district court authorization to consider a second or successive habeas petition only if:

               (A) the applicant shows that the claim relies on a new rule of
       constitutional law, made retroactive to cases on collateral review by the Supreme
       Court, that was previously unavailable; or

              (B)(i) the factual predicate for the claim could not have been discovered
       previously through the exercise of due diligence; and

                 (ii) the facts underlying the claim, if proven and viewed in light of the
       evidence as a whole, would be sufficient to establish by clear and convincing
       evidence that, but for constitutional error, no reasonable factfinder would have
       found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.” 

       Lambrix does not allege that any of the claims in his current application rely on “a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,




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that was previously unavailable.”       See 28 U.S.C. § 2244(b)(2)(A).      Instead, the heart of

Lambrix’s application is his broad argument that certain newly discovered evidence that he could

not have previously discovered through the exercise of due diligence is sufficient to establish by

clear and convincing evidence that, but for Brady and Giglio constitutional violations, no

reasonable factfinder would have found him guilty of the two first-degree murders. See 28

U.S.C. § 2244(b)(2)(B). We conclude that all of Lambrix’s proposed claims in the instant

application are precluded by the law-of-the-case doctrine, the prior-panel-precedent rule, or both,

or otherwise fail to meet the requirements of § 2244(b). We review these legal principles and

then Lambrix’s claims.

                                    IV. LEGAL PRINCIPLES

          Under the law-of-the-case doctrine, “an appellate decision binds all subsequent

proceedings in the same case.” United States v. Amedeo, 

, 829 (11th Cir. 2007)

(quotation omitted and alteration adopted).      Three exceptions apply to the law-of-the-case

doctrine: where “(1) a subsequent trial produces substantially different evidence, (2) controlling

authority has since made a contrary decision of law applicable to that issue, or (3) the prior

appellate decision was clearly erroneous and would work manifest injustice.”           

(quotation omitted and alteration adopted). “We enforce this judge-made doctrine in the interests

of efficiency, finality and consistency: ‘[f]ailure to honor its commands can only result in

chaos.’” Lebron v. Sec’y of Fla. Dep’t of Children & Families, 

, 1360 (11th Cir.

2014) (quoting Litman v. Mass. Mut. Life Ins. Co., 

, 1511 (11th Cir. 1987) (en

banc)).

          Additionally, under this Court’s prior-panel-precedent rule, “a prior panel’s holding is

binding on all subsequent panels unless and until it is overruled or undermined to the point of




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abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 

, 1352 (11th Cir. 2008). We have held that “a prior panel precedent cannot be

circumvented or ignored on the basis of arguments not made to or considered by the prior panel.”

Tippitt v. Reliance Standard Life Ins. Co., 

, 1234 (11th Cir. 2006); see also Smith

v. GTE Corp., 

, 1301-04 (11th Cir. 2001) (categorically rejecting an “overlooked

reason” exception to the prior-panel-precedent rule); Cohen v. Office Depot, Inc., 

,

1076 (11th Cir. 2000) (explaining that the prior-panel-precedent rule is dependent upon neither

“a subsequent panel’s appraisal of the initial decision’s correctness” nor “the skill of the

attorneys or wisdom of the judges involved with the prior decision—upon what was argued or

considered”).   In short, we have categorically rejected an overlooked reason or argument

exception to the prior-panel-precedent rule.

       To be clear, our prior-panel-precedent rule applies with equal force as to prior panel

decisions published in the context of applications to file second or successive petitions. In other

words, published three-judge orders issued under § 2244(b) are binding precedent in our circuit.

Although an order issued under § 2244(b) “shall not be appealable and shall not be the subject of

a petition for rehearing or for a writ of certiorari,” 28 U.S.C. § 2244(b)(3)(E), such orders are not

beyond all review, as the statute does not preclude the Court of Appeals from rehearing such a

decision sua sponte.     Moreover, we repeatedly have treated published decisions involving

applications for permission to file a second or successive petition as binding precedent. See, e.g.,

In re Provenzano, 

, 1235 (11th Cir. 2000) (“Under our prior panel precedent rule,

we are bound to follow [In re Medina, 

(11th Cir. 1997) (denying an application

for permission to file a second or successive petition)].” (citation omitted)). Similarly, the

interests that justify the law-of-the-case doctrine—efficiency, finality, and consistency—are still




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present in the context of repeat successive habeas applications by the same petitioner that raise

the same claims.

        In short, a prior panel’s holding in a published three-judge order issued under § 2244(b)

“is binding on all subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.” See 

(summarizing prior-panel-precedent rule).

                                  V. LAMBRIX’S CLAIMS

        Turning to the claims raised by Lambrix in the instant application, all of his claims save

one—specifically, Claims 1-5 and 7-8—are essentially identical to those we already considered

in Lambrix II, our order denying Lambrix’s 2010 successive application. We determined in our

2010 order that these proposed claims are barred either by § 2244(b)(1) because they were raised

in Lambrix’s initial § 2254 petition or because they do not meet the statutory requirements of

§ 2244(b)(2)(B). Lambrix 

. As to Claims 2 and 3—concerning Hanzel’s

allegedly recanted testimony and the alleged sexual relationship between Smith and the

investigator—Lambrix has pointed to no new evidence or change in the law to persuade us that

an exception to the law-of-the-case doctrine applies in this instance.          Accordingly, our

reconsideration of Claims 2 and 3 in the instant application is precluded by the law-of-the-case-

doctrine. 3




        3
         We reject Lambrix’s argument that we should “give no weight” to our 2010 order and
consider his current counseled application as a matter of “first impression.” Moreover, as to
Lambrix’s argument that we should disregard his prior application merely because it was
submitted pro se, it is apparent from the face of our 2010 order that we liberally construed
Lambrix’s claims, understood those claims, and concluded that those claims did not meet the §
2244(b)(2) criteria. See Lambrix 

. In addition, there is no pro se prior
petition exception to the § 2244(b)(2) requirements.


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       As to Claims 1, 4, 5, 7, and 8, Lambrix claims to have newly discovered evidence in

support of these claims. However, as explained below, even if our consideration of these claims

were not precluded by Lambrix II under the law of the case because of Lambrix’s alleged new

evidence, an independently adequate alternative reason for denying the application as to these

claims is that they are barred by the prior-panel-precedent rule or the failure to meet the

requirements of § 2244(b)(2)(B).

       As to Claim 1—concerning Smith’s alleged immunity deal—in Lambrix II, we

determined that Lambrix raised this claim in his initial § 2254 petition, such that it was barred

under § 2244(b)(1).    Lambrix 

.      In the instant successive application,

Lambrix concedes that he raised this claim in his original § 2254 petition, but he argues that the

“claim must be revisited in light of the new evidence” based on “fundamental fairness and to

protect manifest injustice.”

       We must reject Lambrix’s argument because we are bound by our prior panel precedent

in Hill, where we held that new evidence in support of a prior claim is insufficient to create a

new claim and avoid § 2244(b)(1)’s bar on successive petitions. See In re 

-

94. As we explained in Hill, § 2244(b)(1) provides that “‘[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed’” and “provides no exceptions.” 

(quoting 28 U.S.C. § 2244(b)(1)).

       As to Claims 4, 5, and 7—concerning the tire iron, alleged bias on the part of the state

trial judge, and the alleged conspiracy between the State and Smith—when Lambrix raised these

claims in his 2010 successive application, we concluded as to each claim that Lambrix failed to

meet either prong of § 2244(b)(2)(B). Lambrix 

. Although Lambrix

presents various “new” documents in the instant application in support of these claims, none of




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Lambrix’s alleged new evidence changes our conclusion that Claims 4, 5, and 7 do not meet the

requirements of § 2244(b)(2)(B). First, Lambrix has not shown that any of this evidence could

not have been discovered previously through the exercise of due diligence. See 28 U.S.C.

§ 2244(b)(2)(B)(i). Specifically, he has failed to explain why his evidence could not have been

uncovered through a reasonable investigation prior to the litigation of his initial § 2254 petition

or why the means that eventually uncovered his new evidence could not have been employed

earlier. See In re Boshears, 

, 1540 (11th Cir. 1997); In re Magwood, 

, 1549-50 (11th Cir. 1997). Second, even when supported by Lambrix’s alleged new

evidence, we are unpersuaded that the alleged facts underlying Claims 4, 5, and 7, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would have found

him guilty of the underlying murders. See 28 U.S.C. § 2244(b)(2)(B)(ii).

       As to Claim 8, Lambrix’s freestanding actual innocence claim, we concluded in our 2010

order that, even assuming that “a freestanding claim of actual innocence exists apart from any

claim of constitutional error at trial and [that] such a claim, even if it is cognizable, is the kind of

claim that can be brought in a second or successive petition,” Lambrix had not presented

evidence sufficient to show his actual innocence. Lambrix 

. In the present

application, Lambrix repeatedly asserts that he is actually innocent and that, upon consideration

of all of his claims and purported newly discovered evidence cumulatively, he is entitled to file a

successive habeas petition based upon a “fundamental miscarriage of justice” showing under

Schlup. We conclude that, even in light of Lambrix’s new arguments and alleged new evidence,

his attempt to bring a freestanding actual innocence claim is foreclosed by our prior panel

precedent in In re Davis, 

(11th Cir. 2009). Specifically, even if a freestanding




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actual innocence claim is viable on federal habeas review, we have held that § 2244(b)(2)(B)

“undeniably requires a petitioner seeking leave to file a second or successive petition to establish

actual innocence by clear and convincing evidence and another constitutional violation.” In re

(first emphasis added). 4 Lambrix has established no constitutional

violation.

       Alternatively, as we concluded in Lambrix II, even if we were to assume that

freestanding actual innocence claims are cognizable and that § 2244(b)’s requirements were to

have no application to actual innocence claims, for the reasons stated above, Lambrix’s

purported new facts, considered either individually or cumulatively, are insufficient to make

either a prima facie showing that no reasonable factfinder would have found him guilty of

first-degree murder, 28 U.S.C. § 2244(b)(2)(B)(ii), (b)(3)(C), or “a truly persuasive

demonstration of ‘actual innocence.’” Herrera v. Collins, 

, 417, 

, 869

(1993) (assuming, without deciding, “that in a capital case a truly persuasive demonstration of

‘actual innocence’ made after trial would render the execution of the defendant

unconstitutional,” but stating that “the threshold showing for such an assumed right would

necessarily be extraordinarily high”).

       Finally, in Claim 6—Lambrix’s only claim not raised in some fashion in his 2010

successive application—Lambrix asserts that the State knowingly presented at trial false

       4
         Lambrix’s reliance on Schlup’s “fundamental miscarriage of justice” principle—which
allows a habeas petitioner to receive consideration of procedurally defaulted claims based on a
showing of actual innocence, see 

, 115 S. Ct. at 860-61; Murray v.
Carrier, 

, 496, 

, 2649 (1986)—is misplaced. There is no
“fundamental miscarriage of justice” exception to a state prisoner’s obligation to satisfy the
statutory criteria in § 2244(b)(2)(B) in order to obtain our leave to file a second or successive
§ 2254 petition. See 28 U.S.C. § 2244(b)(2)(B). Indeed, the language of § 2244(b)(2)(B) itself
already contemplates the possibility of claims of actual innocence based on newly discovered
evidence and sets forth the relevant preconditions to filing a second or successive § 2254 petition
on that basis. See 28 U.S.C. § 2244(b)(2)(B)(ii).


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testimony by Smith that Lambrix left Bryant’s body in a pond “so if she wasn’t dead, she would

drown.” In support of Claim 6, Lambrix presents alleged new evidence to show that the property

where the murders occurred did not contain a pond. We conclude that Lambrix’s sixth proposed

claim does not meet the § 2244(b)(2)(B) criteria. First, Lambrix has not explained why the

evidence underlying this claim could not have been discovered prior to his first § 2254 petition

through the exercise of due diligence. See 28 U.S.C. § 2244(b)(2)(B)(i); 

. Second, Lambrix has failed to demonstrate that the facts underlying his claim would

establish by clear and convincing evidence that, but for a constitutional violation, no reasonable

fact finder would have found Lambrix guilty of first-degree murder.              See 28 U.S.C.

§ 2244(b)(2)(B)(ii). Even if Lambrix had been able to challenge or impeach Smith’s testimony

at trial regarding the fact that he left Bryant’s body in a pond, this would not have materially

changed her other testimony regarding the murders, nor would it have impacted the other

testimony and physical evidence against him, such as two witness’s testimony regarding

Lambrix’s admission about the murders or Chezem’s testimony that Lambrix borrowed a shovel

from him. Thus, the presence or absence of a pond on the property is not a fact that would show

that no reasonable factfinder could have found him guilty. Accordingly, this claim does not meet

the requirements of § 2244(b)(2)(B).

                                       VI. CONCLUSION

     For all of these reasons, Lambrix’s motion for leave to file a second or successive petition

for writ of habeas corpus is DENIED.




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