PETITION FOR A WRIT OF CERTIORARI CAPITAL CASE

No. _______

OCTOBER TERM 2010

In The

Supreme Court of the United States

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CARY MICHAEL LAMBRIX,

Petitioner

v.

WALTER A. MCNEIL, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS

Respondent

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On Petition For A Writ Of Certiorari To
The Supreme Court of the State of Florida

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PETITION FOR A WRIT OF CERTIORARI

CAPITAL CASE

═══════════════════════════

WILLIAM M. HENNIS III*
CRAIG J. TROCINO
LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL – SOUTH
101 N.E. 3RD AVENUE, SUITE 400
FORT LAUDERDALE, FL 33301
(954) 713-1284

Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

1(a). Are the states constitutionally obligated to recognize the fundamental miscarriage of justice doctrine established in Schulp v. Delo and House v. Bell, and, if so, are the state courts required to provide a full and fair opportunity to present the evidence supporting the pled fundamental miscarriage of justice claim to the extent the federal courts are required to?

1(b). Were the underpinnings of the fundamental miscarriage of justice claim improperly negated when the Florida Supreme Court adopted the postconviction court’s findings which were “dubious at best” and inconsistent with the weight of the evidence and failed to independently weigh the credibility and factual findings in light of all the evidence presented at the state court evidentiary hearing and at trial, in violation of Jefferson v. Upton, Sears v. Upton and Porter v. McCollum?

2(a) In light of the “evolving standards of decency” doctrine governing an Eighth Amendment claim of actual innocence brought under Herrera v. Collins, in which this Court relied upon the presumption that a “truly persuasive” claim of innocence was and is “exceedingly rare,” when in fact since 1993 exonerations through DNA evidence now show that the rate of wrongful convictions is actually significantly greater than previously believed, is the “truly persuasive” standard articulated in Herrera v. Collins effectively prohibiting a “freestanding” claim of innocence still good law?

2(b) Does society’s substantial evolution in attitude towards wrongful convictions since 1993 now constitutionally require abandoning the extraordinarily high “truly persuasive” standard established in Herrera v. Collins and the adoption of a lesser, but still stringent, clear and convincing evidence standard consistent with long standing federal standards applicable to claims of innocence presented to federal courts under the AEDPA?


TABLE OF CONTENTS

QUESTIONS PRESENTED i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iii
PETITION FOR A WRIT OF CERTIORARI 1
CITATIONS TO OPINION BELOW 1
JURISDICTION 1
CONSTITUTIONAL PROVISIONS INVOLVED 1
STATEMENT OF THE CASE 2
REASONS FOR GRANTING THE PETITION 15
Introduction 15
1(a) 18
1(b) 25
2(a)&(b) 36
CONCLUSION 40
APPENDICES
Lambrix v. State, 39 So. 3d 260 (Fla. 2010) APPENDIX A
Unpublished orders of the Circuit Court
in and for Glades County, Florida APPENDIX B
Lambrix v. State of Florida, 494 So. 2d 1143 (Fla. 1986) APPENDIX C
Testimony of state court evidentiary hearing APPENDIX D
Affidavit of Deborah Hanzel APPENDIX E

TABLE OF AUTHORITIES

Cases
Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. 1977) 25
Ballard v. State, 923 So. 2d 475 (Fla. 2006) 22, 38
Bigham v. State, __So. 2d __ (Fla. 2008) 22
Brady v. Maryland, 373 U.S. 83 (1963) 11, 33
Clegg v. Chipola Aviation Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984) 27
Coolen v. State, 696 So. 2d 1046 (Fla. 1993) 22, 38
Dixon v. Snyder, 266 F.3d 643 (7th Cir. 2001) 24
Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) 24
Giglio v. United States, 405 U.S. 150 (1972) 11, 33
Green v. State, 715 So. 2d 940 (Fla. 1998) 22
Guzman v. State, 868 So. 2d 498 (Fla. 2003) 33
House v. Bell, 547 U.S. 518 (2006) 15, 21, 23, 30
In Re McDonald, 514 F. 3d 539 (6th Cir. 2008) 24
In re Troy Davis, 130 S. Ct. 1 (2010) 16, 34
Jefferson v. Upton, 130 S. Ct. 2217 (2010) 25, 26, 32
Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988) 7, 22
Lambrix v. Dugger, Case No. 88-12107-Civ-Zloch (S.D. Fla. May 12, 1992) 7
Lambrix v. Singletary, 117 S. Ct. 380 (1996) 7
Lambrix v. Singletary, 520 U.S. 518 (1997) 7
Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994) 7
Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996) 5, 7
Lambrix v. Singletary, 83 F.3d 438 (11th Cir. 1996) 7
Lambrix v. State, 39 So.3d 260 (2010) 23
Lambrix v. State, 494 So. 2d 1143 (Fla. 1986) 5, 22, 35
Lambrix v. State, 534 So. 2d 1151 (Fla. 1988) 7
Lambrix v. State, 698 So. 2d 247 (Fla. 1996) 7
Lambrix v. State, 698 So. 2d 257 (Fla. 1996) 7
McArthur v. State, 351 So. 2d 972 (Fla. 1977) 25
Murray v. Carrier, 477 U.S. 478 (1986) 32
Napue v. Illinois, 360 U.S. 264 (1959) 33
Porter v. McCollum, 130 S. Ct 447 (2009) passim
Porter v. State, 723 So. 2d 191 (Fla. 1998) 7
Randall v. State, 760 So. 2d 892 (Fla. 2000) 22, 38
Roberts v. State, 678 So. 2d 1232 (Fla. 1996) 31
Sawyer v. Whitley, 505 U.S. 333 (1990) 21
Schulp v. Delo , 513 U.S. 295 (1995) 15
Sears v. Upton, 130 S. Ct. 3259 (2010) 26, 32
Souter v. Jones, 395 F. 3d 577 (6th Cir. 2005) 24
Steinhorst v. State, 636 So. 2d 498 (Fla. 1994) 28
Trease v. State, 41 So. 3d 119 (Fla. 2010) 39
United States v. Gypsum Co., 333 U.S. 364 (1948) 27
Wickham v. State, 998 So. 2d 593 (Fla. 2008) 28
Statutes
28 U.S.C. § 1254(1) 1
Constitutional Provisions
U.S. CONST. AMEND. VI 1
U.S. CONST. AMEND. VIII 40, 42
U.S. CONST. AMEND. XIV 2




PETITION FOR A WRIT OF CERTIORARI
Petitioner Cary Michael Lambrix prays that a Writ of Certiorari issue to review the opinion of the Florida Supreme Court.
CITATIONS TO OPINION BELOW
The opinion of the Florida Supreme Court affirming the state circuit court’s denial of post-conviction relief is reported in this cause as Lambrix v. State, 39 So. 3d 260 (Fla. 2010), (SC08-64) and is attached as “Appendix A” to this Petition. The unpublished orders of the Circuit Court in and for Glades County, Florida denying post-conviction relief are attached hereto as “Appendix B.” The opinion of the Florida Supreme Court on direct appeal is reported as Lambrix v. State of Florida, 494 So. 2d 1143 (Fla. 1986) attached hereto as “Appendix C.” The testimony of petitioner at the state court evidentiary hearing on April 5, 2004 is attached hereto as “Appendix D.” The affidavit of Deborah Hanzel is attached hereto as “Appendix E.”
JURISDICTION
Petitioner invokes this Court’s jurisdiction to grant the Petition for a Writ of Certiorari to the Florida Supreme Court on the basis of 28 U.S.C. § 1254(1). The Florida Supreme Court issued its decision affirming on April 15, 2010 and denied rehearing on July 9, 2010. This petition is timely filed.
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution of the United States provides in pertinent part:
No persons . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.

The Eighth Amendment to the Constitution of the United States provides in relevant part:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.


The Fourteenth Amendment to the United States Constitution provides in pertinent part:
No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


STATEMENT OF THE CASE

On March 29, 1983, Petitioner Lambrix was indicted on two counts of premeditated first degree murder by a Glades County, Florida grand jury. Mr. Lambrix pled not guilty and has consistently maintained his innocence of these charges. By the State’s own admission, the entire case brought against Mr. Lambrix was and is wholly circumstantial. There were no eyewitnesses, no physical or forensic evidence, and no confessions to support the State’s theory of premeditated murder. Rather, as the State has conceded, the entire case was built upon the testimony of only one key witness, Mr. Lambrix’s former girlfriend Frances Smith.
At the time of the alleged crimes Ms. Smith lived with Mr. Lambrix and was with Mr. Lambrix on the night of Saturday, February 5, 1983 when they by chance met the deceased, Clarence Edward Moore, aka Lawrence Lamberson, and Aleisha Bryant, at a local bar. The four then spent the evening frequenting several local bars before agreeing to return to the trailer residence shared by Lambrix and Smith for a late night dinner.

At the residence Smith began cooking a spaghetti dinner while Lambrix, Moore and Bryant sat in an adjacent living room drinking from a bottle of whiskey and listening to the stereo. Ms. Smith has consistently testified that the three were laughing, joking and playing around without suggestion of animosity or ill will between any of the parties at any time prior to Mr. Lambrix and Mr. Moore going outside together in the early morning hours. According to Smith’s trial testimony, Mr. Lambrix first went outside with Moore, only to return alone approximately 20 minutes later. Smith testified Mr. Lambrix looked normal and had no blood on him. Lambrix then told Aleisha Bryant that Moore wanted to show her something outside, and Bryant accompanied Lambrix outside.

Smith testified that she did not see or hear anything that transpired outside and that about 45 minutes after going out with Ms. Bryant, Mr. Lambrix returned alone covered in blood and told her “they’re dead.” Smith testified that Mr. Lambrix told her that he hit Moore in the back of the head and that he choked Ms. Bryant. The medical examiner testified for the State, and although he concluded that Moore died of blunt trauma, there were no blows to the back of the head. Likewise, the medical examiner opined that suffocation was a possible cause of death of Ms. Bryant even though there was little physical evidence to support that opinion.
Smith testified that after Mr. Lambrix “washed up” they took Moore’s vehicle to a local store where they purchased a flashlight, obtained a shovel, and then returned to the remote location of the trailer where, working together, they concealed the bodies of Moore and Bryant and fled the area in Moore’s car.

Four days later Frances Smith was stopped by law enforcement in Hillsborough County, Florida, while she was in exclusive possession of Moore’s vehicle. Smith gave the police conflicting stories about why she had the car and she was subsequently arrested and the car was impounded. Smith then spent the next three days in the county jail never advising law enforcement about the deaths of Moore and Bryant, finally posting bond and being released. Over the following three days Ms. Smith retained private counsel and discussed her options with her family. She went to the local state attorney office and gave a statement about being involuntarily forced to assist Mr. Lambrix in concealing the bodies of Moore and Bryant in rural Glades County. Smith then led law enforcement to the two bodies which were recovered with her assistance. Based on the information provided by Frances Smith, state attorney investigator Miles “Bob” Daniels prepared a sworn affidavit formally charging Mr. Lambrix with the premeditated murder of Aleisha Bryant and several weeks later Mr. Lambrix was arrested and indicted on two counts of alleged premeditated murder in the deaths of Moore and Bryant.

In December 1983 Mr. Lambrix was brought to trial in Glades County before the Honorable Richard Adams. The one week trial resulted in the declaration of a mistrial after the jury deliberated for more than 11 hours without being able to reach a unanimous verdict. A retrial commenced in February 1984, with Judge Adams replaced without explanation on the morning of trial by Judge Richard Stanley, who had been a career prosecutor before serving on the bench.
Judge Stanley prohibited trial counsel from eliciting upon cross examination the fact that Frances Smith gave law enforcement numerous conflicting stories before she consulted with counsel and her family members. Her unimpeached testimony told an incredible story of her being involuntarily compelled to assist Mr. Lambrix in concealing the two bodies. Her account excused her of any criminal culpability at the same time that it positioned her as the star witness and the hub of the case against Mr. Lambrix. See Lambrix v. State, 494 So. 2d 1143 (Fla. 1986). The jury never knew that Frances Smith’s polygraph about the events the night of the murder showed signs of deception. Mr. Lambrix was the only person who could directly refute Ms. Smith’s testimony, but the record reflects that he was prohibited by the trial court from testifying at his trial under threat of loss of counsel. See Lambrix v. Singletary, 72 F. 3d 1500 (11th Cir. 1996). Only in subsequent state postconviction proceedings was Mr. Lambrix afforded an opportunity to testify (Appendix D, April 5, 2004 testimony).

Mr. Lambrix provided a detailed account of how he was involuntarily compelled to act in self defense when he attempted to stop Moore from violently assaulting Bryant and Moore turned to attack Mr. Lambrix. The State failed to impeach Mr. Lambrix’s account of self-defense on cross examination in 2004 and at oral argument on November 4, 2009 before the Florida Supreme Court the assistant attorney general was forced to concede that the evidence, including Mr. Lambrix’s testimony, was consistent with self defense. Specifically the State said, “I suppose it could be consistent with self-defense. But it is also consistent with ‘I’m going to kill you until you are dead.’”

The jury deliberated for less than a hour at the re-trial before returning guilty verdicts on both counts of premeditated murder. Mr. Lambrix’s sole defense at trial was to convince the jury that Frances Smith had an undisclosed motive to wrongly convict Mr. Lambrix and that substantial reasonable doubt existed precluding the jury from convicting. At the conclusion of the State’s case, trial counsel moved for judgment of acquittal, arguing that as a matter of law the State failed to prove beyond a reasonable doubt that Mr. Lambrix acted with premeditated intent in the death of Moore and that the state failed to provide any credible evidence that Bryant died as a result of criminal agency or at the hand of Mr. Lambrix.
At trial the State presented 14 witnesses but only Frances Smith and Deborah Hanzel provided any evidence of alleged premeditated intent. Both testified that though they did not actually witness Lambrix commit any act of violence against either victim, after the fact Mr. Lambrix allegedly told them that he had killed the two victims. The jury recommended death with regard to both convictions, 10-2 and 8-4, respectively and on March 22, 1984, Judge Richard M. Stanley imposed two death sentences. Thereafter, Mr. Lambrix began a long journey of direct and collateral review raising numerous claims of alleged constitutional error while consistently arguing that he was and is factually innocent of premeditated murder. On direct appeal, the Florida Supreme Court upheld both convictions and sentences (Appendix C). Mr. Lambrix was subsequently denied collateral relief in both the state and federal courts.

After this Court affirmed Mr. Lambrix’s death sentences by a marginal vote of 5 to 4, a chain of events lead to the discovery of a wealth of evidence collectively showing that State agents knew that Mr. Lambrix did not commit any act of premeditated murder and that the circumstantial theory proposed by the State at trial and supported by the testimony of Frances Smith and Deborah Hanzel was fabricated with the intent of wrongfully convicting Mr. Lambrix. See Lambrix v. Singletary, 520 U.S. 518 (1997).

In 1997 newly discovered evidence that trial judge Richard Stanley harbored substantial bias was revealed. See Porter v. State, 723 So. 2d 191 (Fla. 1998) (vacating Porter’s sentences of death upon newly discovered evidence of judge Stanley’s pervasive bias against capital defendants). In the Porter case, Judge Stanley was deposed in 1997, and he testified that he should be allowed, when sentencing capital defendants, to “reach down to his side”, pull out his gun and “shoot them between the eyes”—and that he always carried a sawed-off machine gun on the bench.

On January 16, 1998, Mr. Lambrix filed a motion under Florida Rule of Criminal Procedure 3.850 alleging that new evidence of Judge Stanley’s lack of impartiality warranted relief. An amendment to the motion was filed in December 1998 that included a new claim concerning new potential testimony by trial witness Deborah Hanzel, who had been deposed in September 1998 (Appendix E). A second amended motion was filed on January 10, 2001 consolidating all claims. After the judicial bias claim and an ineffective assistance of collateral counsel claim were summarily denied a limited evidentiary hearing was ordered.

Hanzel then testified that, contrary to her trial testimony, Mr. Lambrix never told her that he killed anyone. She testified that nothing Mr. Lambrix ever said made her afraid of him. Rather, it was law enforcement investigators who told her that Mr. Lambrix would harm her and her children and that made her fearful and frightened her into believing that Mr. Lambrix committed the murders.
The lower court denied the claim based on Hanzel’s statements and summarily denied a procedural due process claim that was based on Atkins v. Virginia, 537 U.S. 304 (2002). While rehearing was pending, Hanzel wrote a letter to the lower court indicating that she had failed to tell the truth at the evidentiary hearing. In the letter, Hanzel also revealed for the first time that Frances Smith told her that Mr. Lambrix told her that he struck the male deceased, Moore, only after Moore first attacked Mr. Lambrix. In December 2003 Hanzel provided an affidavit memorializing these facts. The lower court sua sponte ordered further hearings and Hanzel again testified, stating that Mr. Lambrix never told her that he killed Bryant or Moore.
She explained that the reason she initially said that he did tell her that he killed two people was due to the fact that Frances Smith asked her to go along with Awhat she had to say.@ Hanzel told the lower court that Frances Smith admitted that she did not know what happened outside the trailer except that Mr. Lambrix told her that he had to hit Moore after he “went nuts” and attacked Mr. Lambrix after something happened with Bryant. The State announced its intention to call Frances Smith as a rebuttal witness and the proceedings were continued so the defense could take her deposition.

At the deposition Smith revealed that she and state attorney investigator Daniels had a sexual encounter during the pendency of Mr. Lambrix’s prosecution. The lower court thereafter severely limited the evidence to be presented at the evidentiary hearing to the issue of Awhether or not there had been an illicit relationship between a key witness for the State, Frances Smith, and state attorney investigator, Robert Daniels, during the investigation and prosecution of Mr. Lambrix@ and whether there was a promise of immunity in exchange for the cooperation of Frances Smith.
At the limited evidentiary hearing that followed, Frances Smith testified that she was aware that she was a suspect in the case at the time of the investigation and she thought the police needed to believe her story. She testified that she stayed in a hotel in connection with this case and that Investigator Daniels called her to his hotel room where they had sexual intercourse. She agreed that they probably were drinking. She testified that she was not proud of her actions.

Investigator Daniels testified it was his understanding the State dropped charges against Smith in exchange for her taking a polygraph examination and promising to testify truthfully against Mr. Lambrix. He testified that Smith also told him that she went to the authorities because she had been arrested in the car that belonged to Moore. On cross-examination Investigator Daniels then denied that he had sex with Frances Smith. Investigator Daniels conceded that he had engaged in extramarital affairs with others in the same time period and indicated that if he did have sex with witness Smith he would not admit to it because of the complications to his current marriage and possible impact on his state pension benefits.

Mr. Lambrix himself had testified in April 2004 that Mr. Moore was physically attacking victim Bryant and then attacked him, thus Moore was killed while Mr. Lambrix was defending both himself and Bryant. The lower court’s final order made no mention of Mr. Lambrix’s testimony and made no credibility finding.
Thereafter, Mr. Lambrix filed a consolidated motion based upon newly discovered evidence. This motion included claims of newly discovered evidence that Debbie Hanzel=s false testimony at trial was the result of fabrication by Frances Smith and Investigator Daniels; a Brady/Giglio claim based on the new evidence that Frances Smith and Investigator Daniels had a sexual relationship that impacted on the investigation and presentation of evidence in Mr. Lambrix’s case to his substantial prejudice; and a claim that the fundamental miscarriage of justice doctrine required a review of claims that were previously found to be procedurally barred.
In light of Deborah Hanzel’s sworn testimony that she was influenced to provide false testimony to corroborate witness Smith’s otherwise unsupported testimony, Smith’s own admission that she had a sexual affair with the state’s lead investigator, Bob Daniels, during the prosecution of the case, and Daniels’s testimony that Smith was provided immunity from prosecution in exchange for her testimony against Mr. Lambrix, Mr. Lambrix’s post conviction counsel retained numerous expert witnesses to review the evidence presented at trial. One aspect of this investigation was to determine whether investigator Daniels’s undisclosed relationship with witness Frances Smith prejudicially impacted the objectivity of the state’s pre-trial investigation and the development of the wholly circumstantial case used to convict Mr. Lambrix and then to support a sentence of death.

William Gaut, an expert on homicide investigation, was retained to review the Lambrix case. His report, proffered below, concluded that the pre-trial investigation ignored considerable evidence indicating that both witness Smith’s account of the murders and investigator Daniels’s subjective interpretation of the existing evidence were flawed, especially when examined in light of Smith’s account of the sexual relationship with Daniels. Gaut was not permitted to testify.
To substantiate Deborah Hanzel’s testimony that witness Smith and investigator Daniels were working together to coerce false testimony and to fabricate a theory of premeditated murder, Mr. Lambrix’s postconviction counsel also retained two experts in pathology to review the state medical examiner’s findings and testimony as to the cause of death of the two victims. Witness Smith testified at trial that Mr. Lambrix told her he “choked” the female victim. Pre-trial reports indicated that investigator Daniels personally participated in and influenced the conclusions of the medical examiner. Both defense experts concluded that the state medical examiner’s conclusion as to the cause of death of the female victim, probable strangulation, was speculative at best. Neither defense medical examiner was permitted to testify in postconviction.

At Mr. Lambrix’s second trial, witness Smith testified for the first time that Mr. Lambrix had placed the female victim face down in a pond to ensure that she was dead. Trial counsel was blind-sided by this testimony which operated to support the state’s theory of premeditation. Smith’s inflammatory testimony was unsupported by any of the evidence from the state medical examiner who found no water in the lungs. In postconviction, Mr. Lambrix attempted to call lay witnesses and experts to prove that there was no pond on the property. These witnesses would also have served to impeach witness Smith’s testimony and to support the proposition that this testimony was fabricated with the intent of wrongfully convicting Mr. Lambrix. In the postconviction proceedings an affidavit from the property owner and two expert reports from a hydroengineer and a meteorologist were proffered into the record to establish that Ms. Smith’s testimony about the female victim being placed in a pond was untrue. The lower court did not allow the three witnesses to testify below.
Collectively, the newly discovered evidence of Hanzel’s sworn testimony that she was influenced to provide false testimony to corroborate Frances Smith, the admission by Smith to Hanzel that Smith’s own testimony was fabricated and that Mr. Lambrix had told her that Moore had been killed in self-defense (“he went nuts”), the newly discovered Brady/Giglio evidence of the illicit sexual relationship between “the hub” witness Frances Smith and state attorney investigator Daniels, and the extensive web of expert testimony that the lower court refused to hear, all serve to substantiate Mr. Lambrix’s claim that the circumstantial theory of premeditated murder was fabricated. This claim was presented below as a claim of deprivation of substantive and procedural due process based on a conspiracy and collaboration by witness Smith and the state with the purpose of wrongfully convicting a factually and legally innocent defendant, Mr. Lambrix. The lower state court refused to allow the presentation of evidence supporting Mr. Lambrix’s innocence by concluding that the state postconviction proceedings were not the proper forum under the rubric that to do so would be to re-try the case.
The lower court reached a bizarre factual determination that Hanzel’s claim of being coerced to provide false testimony was unreliable and that witness Smith’s admission of a sexual relationship with investigator Daniels was not credible. The lower state court found that witness Smith’s admission concerning the sexual relationship with Daniels was not credible based on Daniels’s denial that it happened. In stark contrast, the lower court found both investigator Daniels and former assistant state attorney Tony Pires not credible when they testified that witness Smith was actually provided an understanding and promise of immunity from prosecution in exchange for her testimony after she was vetted by a polygraph examination. They testified that the procedure used with Frances Smith was standard operating procedure. Trial counsel had solicited an explicit denial from Smith at trial that she had received any inducements or understanding of immunity from prosecution. Perhaps most surprising of all is the fact that the lower court completely ignored Mr. Lambrix’s unimpeached evidentiary hearing testimony, erroneously concluding that he did not testify. Mr. Lambrix did testify and the state did not and could not discredit or impeach Mr. Lambrix on cross-examination. The lower court apparently concluded the testimony did not exist.

In an order dated March 30, 2007 the lower court found there was no sexual encounter between Frances Smith and investigator Daniels. Mr. Lambrix presented argument regarding his entitlement for further evidentiary development but the lower court entered a final order denying post-conviction relief on November 13, 2007. On appeal the lower court’s orders were affirmed by the Florida Supreme Court.
REASONS FOR GRANTING THE PETITION

Introduction
This case presents substantial questions of constitutional law relevant to the review of a legitimate claim of innocence before the state courts that have never been addressed by this Court. Quite simply, do the state courts have a constitutional duty to allow a full and fair review of a factually supported claim of a “fundamental miscarriage of justice” and actual innocence brought under Schulp v. Delo , 513 U.S. 295 (1995) and House v. Bell, 547 U.S. 518 (2006). Like many other states, the Florida courts have never allowed a fundamental miscarriage of justice claim to be heard and addressed on its merits. This Court should grant review to address whether the state courts are constitutionally obligated to provide full and fair review of fundamental miscarriage of justice claims.
Absent intervention by this Court the stage will be set to allow the State of Florida to put petitioner Cary Michael Lambrix to death for a crime that the State of Florida has now conceded he is both factually and legally innocent of. This constitutionally intolerable event itself warrants a grant of certiorari to protect against the legally unjustified execution of an innocent man. However, the instant petition presents broader issues relevant to the adequacy of judicial safeguards fundamentally necessary to protect against the execution of any innocent person. Without adequate safeguards, the execution of the innocent becomes absolutely inevitable. As a society defined by our measure of moral character, constitutional due process and concepts of fundamental fairness and demands that a condemned prisoner alleging a supported claim of actual innocence be provided a reasonable opportunity to be heard before facing execution for a crime he may be factually and legally innocent of. See In re Troy Davis, 130 S. Ct. 1 (2010) (“The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”)
Additionally, in light of contemporary empirical evidence which calls into question the presumptions this Court relied on to establish the extraordinarily high “truly persuasive” standard of actual innocence in Herrera v. Collins, 506 U.S. 390 (1993), in order to bring a freestanding innocence claim, is Herrera v. Collins still good law?

Mr. Lambrix raised numerous specifically pled claims of violation of Brady and Giglio before the lower state court based on newly discovered evidence that could not be previously discovered through the exercise of due diligence. The state conceded each of these claims were newly discovered and the state courts did not attach any procedural bars to these claims. For the purpose of the instant petition there are four primary claims of Brady/Giglio violations based upon newly discovered evidence that serve as the foundation for the fundamental miscarriage of justice claim presented below:

(1) The state violated Brady when it failed to disclose the existence and nature of the intimate sexual relationship between key witness Frances Smith and state attorney investigator Miles “Bob” Daniels. The Florida Supreme Court recognized that the nature of this relationship between Smith and Daniels would have been properly used to impeach the testimony of both Smith and Daniels at trial. In their limited testimony at the evidentiary hearing both trial counsel testified that they would have used information about the sexual relationship to impeach Smith and Daniels.

(2) The State violated both Brady and Giglio by deliberately concealing the understanding and promise of immunity provided to witness Frances Smith and knowingly allowed her to present false testimony at trial when she denied any understanding or promise of immunity from the state attorney in return for her cooperation and testimony.

(3) Newly discovered evidence establishes that the state violated Mr. Lambrix’s substantive and procedural due process rights as well as Giglio by allowing state witness Deborah Hanzel to provide material false testimony to corroborate witness Smith’s otherwise unsupported story of Mr. Lambrix’s alleged premeditated intent to kill. Hanzel attested in a deposition under oath and in subsequent in-court testimony that witness Frances Smith and an agent of the state attorney’s office had deliberately coerced her to provide false testimony corroborating Smith’s testimony claiming Mr. Lambrix committed the murders to steal Moore’s car.

(4) Based upon the above newly discovered evidence that witness Smith had an undisclosed sexual relationship with state attorney investigator Daniels during the prosecution of this case, and that together Smith and Daniels coerced witness Hanzel to provide false corroboration to Smith’s testimony, Mr. Lambrix retained expert witnesses who collectively provided reliable scientific evidence and opinion supporting the conspiracy and collaboration claim. This evidence was proffered below but the witnesses were not permitted to testify.

Mr. Lambrix was not trying to re-try the case. Under applicable law he was attempting to compel the state court to provide a full and fair hearing to present the evidence necessary to establish that witness Hanzel’s claim that witness Smith and agents of the state attorney’s office did engage in actions intended to manipulate, coerce, and fabricate false material evidence with the intent to wrongfully convict and condemn Mr. Lambrix to death. The evidence that Mr. Lambrix attempted to introduce through appropriate evidentiary process was critical to his ability to corroborate Hanzel’s testimony of being improperly coerced and now provides the required “reliable scientific evidence” necessary to support Mr. Lambrix’s specifically pled claim of fundamental miscarriage of justice under this Court’s Schulp v. Delo and House v. Bell standard.

1(a)
The Florida Supreme Court’s opinion below raises the substantial constitutional question of whether a Florida death row inmate arguing a substantial miscarriage of justice claim has a right to a full and fair evidentiary hearing to present evidence in support of that claim. The state courts made an unreasonable determination of the facts that can only be vindicated by returning the instant case to the state circuit court for a full and fair evidentiary hearing, including additional evidence now pending below on a subsequent appeal, where expert testimony that was proffered but never heard can be presented. The limitations on a full and fair hearing made it impossible to support both the conspiracy/collaboration claim and the associated miscarriage of justice claim noted herein.

This capital case presents the extraordinarily rare case in which the collective weight of the evidence previously unavailable and not heard by the jury establishes by the weight of the evidence that Mr. Lambrix is actually innocent of the crime of alleged premeditated murder and that through a constitutionally intolerable conspiracy and collaboration between key witness Frances Smith and the local state attorney’s office, this entire wholly circumstantial case of alleged premediated murder was deliberately fabricated with the intent and purpose of wrongfully convicting and condemning Mr. Lambrix to death for a crime the state knew Mr. Lambrix is actually innocent of.

Had Mr. Lambrix been afforded an adequate and meaningful opportunity to present all his evidence, including irrefutable reliable scientific evidence, in addition to establishing entitlement to relief from the convictions and sentences of death upon the above, specifically pled claims of Brady/Giglio violations, Mr. Lambrix would have been entitled to a full and fair review of the numerous collateral post conviction claims of substantial constitutional error that had been previously procedurally barred due to counsels’ failure to timely raise them in the original state and federal postconviction proceedings.

These claims of substantial constitutional error were raised below as part of the fundamental miscarriage of justice claim: (a) He was denied the effective assistance of appellate counsel because counsel failed to argue on direct appeal that he was entitled to judgments of acquittal on the charges of first-degree murder.;(b) He was denied his right to effective assistance of trial counsel because counsel=s actions deprived him of his right to testify where counsel threatened to withdraw if he did so.; (c) He was denied the effective assistance of counsel in violation of the Sixth, Eighth, and Fourteenth Amendments by trial counsel=s failure to adequately cross-examine and impeach Frances Smith, the State=s key witness; (d) Trial counsel was ineffective for failing to challenge the State=s evidence on the cause of death of Bryant by failing to retain the assistance of an independent pathologist, crime scene expert, other experts and by failing to effectively cross-examine the State witnesses; (e) Trial counsel was ineffective by failing to challenge unqualified jurors after individual voir dire was denied by the trial court.

The Florida Supreme Court rejected without discussion Mr. Lambrix’s claim that he was entitled to litigate his actual innocence or to a review of procedurally barred claims under Schlup v. Delo. See Lambrix v. State, 39 So. 3d at 266 n.10. Mr. Lambrix is entitled to review of procedurally barred claims under Schulp because he can establish that he is actually innocent. Mr. Lambrix established entitlement to the “fundamental miscarriage of justice” exemption to previously attached procedural bars, and the claims of constitutional deprivation. Mr. Lambrix is also entitled to review of the procedurally barred claims under Sawyer v. Whitley, 505 U.S. 333 (1990) because he is actually innocent of the death penalty. Mr. Lambrix raised a colorable claim of actual innocence and applicable constitutional law now entitles him to a full review of all of the specifically identified claims originally incorporated below under the fundamental miscarriage of justice doctrine. See House v. Bell, 126 S. Ct. at 2076 (A>In appropriate cases,@= the Court has said, “the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.”’). Mr. Lambrix can sufficiently establish “a colorable claim of innocence” supported by the newly discovered evidence.

Cary Michael Lambrix is innocent. He is not under death warrant. There never was any evidence sufficient to convict him of causing the death of Aleicia Bryant B there is no credible evidence that she was the victim of a homicide. This Court provided a inmate in Georgia under death warrant with the opportunity to fully present his evidence in support of innocence based on a final original jurisdiction habeas corpus petition. See In re Troy Davis. Standing alone, the issues raised below as a Brady/Giglio violation regarding allegations by witness Frances Smith that she had sex with investigator Daniels of the state attorney’s office, a newly discovered evidence claim, and a conspiracy/collaboration claim are sufficient to warrant relief in the form of a new trial.

This was a wholly circumstantial case, thus applicable Florida law required proof of premeditation to the exclusion of any other reasonable hypothesis of innocence applies. See, Ballard v. State, 923 So. 2d 475, 482 (Fla. 2006). Trial counsel’s motion for judgment of acquittal argued that the State had failed to present any evidence of premeditation as to the deceased, Moore, and had failed to make out a prima facie case of first degree murder as to victim Aleisha Bryant. Trial counsel pointed out that the State had not even established a cause of death for Ms. Bryant and that the testimony of Frances Smith was consistent with second degree murder, not premeditation. Counsel also argued it was a reasonable hypothesis based on the evidence presented that Moore had killed Bryant, that there was no credible evidence of intent to kill by Mr. Lambrix. In Florida in a circumstantial evidence case the state must rebut every reasonable hypothesis of innocence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); Orme v. State, 677 So.2d 258 (Fla.1996); Bigham v. State, 995 So. 2d 207 (Fla. 2008); Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998); Gosciminski v. State, 944 So. 2d 1018 (Fla. 2008); Coolen v. State, 696 So. 2d 1046 (Fla. 1993); Randall v. State, 760 So. 2d 892, 902 (Fla. 2000). The Florida Supreme Court failed to address the merits of the issue either on direct appeal or in the state habeas petition. Lambrix v. Dugger, 529 So. 2d 1110, 1111 (Fla. 1988); Lambrix v. State, 494 So. 2d 1143 (Fla. 1986), thus it failed to properly apply the standard set out in Schulp.

Mr. Lambrix’s case was entirely circumstantial, a case where the State itself never provided reliable scientific evidence, any trustworthy eyewitness account of the alleged murders, or critical physical evidence, and instead relied primarily upon the testimony of a single key witness, Frances Smith. Newly discovered evidence that substantially questions the reliability of her testimony should have been recognized by the Florida Supreme Court as sufficient to meet the procedural gateway standard. The Florida Supreme Court also unreasonably misapplied Schlup v. Delo when it summarily rejected Mr. Lambrix’s claim on the grounds that Schlup does not allow him to present evidence of or “relitigate” his innocence claim. Lambrix v. State, 39 So.3d 260, 266 n.10 (2010).

Contrary to The Florida Supreme Court’s conclusion, in order to present the matter properly under Schlup the claim of innocence that Mr. Lambrix was prevented from asserting was necessary. Indeed, the Schlup court held that “[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Schlup, at 316. The Court further stated that to be credible a habeas petitioner must “support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id., 323. This was precisely the type of evidence that Mr. Lambrix was prevented from presenting in the trial court in violation of Schlup. See also House, 547 U.S. at 2064, 2076) (“’In appropriate cases,’” the Court has said, “the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’”). Mr. Lambrix was not relitigating his innocence, rather, he was presenting his claim of actual innocence in the manner proscribed by this Court’s precedent along with the newly discovered Brady/Giglio evidence of Smith’s sexual affair with Daniels and of Hanzel’s testimony.

Although Hanzel’s testimony established a Giglio violation, the state courts below unreasonably ignored the Giglio violation, mischaracterized the claim as exclusively a recantation claim, and then deemed the recantation as unreliable. Petitioner submits that the well recognized exception to the general rule upheld below that recantations are viewed with extreme suspicion by the courts is when, as here, the alleged recantation is by a witness without any personal motive to help the defendant. Ms. Hanzel’s recantation and claim of coercion is supported by independent evidence, and entitled to a full and fair review below allowing petitioner adequate opportunity to present corroborating evidence. See, e.g., Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (habeas relief granted on second federal habeas petition based upon recantation of state witness); In Re McDonald, 514 F. 3d 539, 547 (6th Cir. 2008) (Single witness recantation of state witness sufficient to entitle defendant to second habeas); Souter v. Jones, 395 F. 3d 577, 592 (6th Cir. 2005) (finding actual innocence claim supported by recantation of state witnesses); Dixon v. Snyder, 266 F.3d 643, 704-05 (7th Cir. 2001) (granting habeas relief on recantation of witnesses unrelated to petitioner); Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. 1977) (en banc) (recantation of material state witness entitled to full hearing).

Mr. Lambrix was entitled to a full and fair hearing on his fundamental miscarriage of justice issue and the fact that he was denied such a hearing by the trial court and the Florida Supreme Court violates his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

1(b)
The trial court below recognized that “[T]his case is perhaps the most complicated criminal matter to ever come before the Court,” (PCR. 7870), but still refused to allow any testimony or evidentiary development on the claims of actual innocence and the fundamental miscarriage of justice exemption to previously attached procedural bars. And the lower court’s final order denying relief cherry-picks alleged facts and ignores the weight of the evidence in an outcome determinative fashion of the facts and evidence that is “dubious at best” (Appendix B).
Mr. Lambrix testified at the postconviction evidentiary hearing for the first time and stated that he acted in self-defense. The State failed to impeach Mr. Lambrix’s account of what transpired and therefore Mr. Lambrix’s claim of involuntary self defense should be believed and cannot be rejected. See McArthur v. State, 351 So. 2d 972, 976 n.12 (Fla. 1977).

In Jefferson v. Upton, 130 S. Ct. 2217 (2010), the trial court made credibility findings in favor of trial counsel who testified concerning their failure to investigate. Jefferson argued and this Court agreed that the state court’s fact finding was “dubious at best” in light of the process that court employed. This Court remanded for a determination of “whether the state court’s factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue.” The trial court’s “dubious at best” findings in the instant case prejudiced Mr. Lambrix.
Having a conviction stand on wholly circumstantial evidence where there is a well founded and reasonable hypothesis of self-defense results in a fundamental miscarriage of justice. The Florida Supreme Court’s summary treatment of this issue amounts to an unreasonable application of the facts raising grounds for relief in federal court. Porter v. McCollum, 130 S. Ct 447 (2009); see also Sears v. Upton, 130 S. Ct. 3259 (2010); Jefferson v. Upton, 130 S. Ct. 2217 (2010).

The Florida Supreme Court accepted the trial court’s credibility determinations regarding Hanzel, Smith and Daniels even as it failed to consider the dubious and internally inconsistent nature of those findings. See Jefferson v. Upton, 130 S. Ct. 2217 (2010). In particular, the trial court found Francis Smith to be not credible when she proclaimed that she had had sex with Investigator Daniels and at the same time determined she was credible regarding her testimony that there was no immunity deal offered to her. Likewise, Daniels was deemed credible when he testified he did not have sex with Smith while at the same time he was deemed not credible when he testified that Smith did have an immunity deal. The Florida Supreme Court adhered to the trial court’s credibility determination because appellate courts do not “reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses. Lambrix v. State, 39 So. 3d at 268, (quoting Nixon v. State, 2 So. 2d 137, 141 (Fla. 2009)). However, as this Court has stated, the Florida Supreme Court may not discount to irrelevance facts presented at the hearing. See Porter, 130 S. Ct. at 454. Additionally, the Florida Supreme Court ignored the plainly inconsistent nature of the trial court’s factual findings in violation of Porter.

In reviewing the competent substantial evidence presented it becomes clear that trial court either accepted or rejected testimony in an outcome determinative manner. In other words, when it wanted to find no sex occurred the court believed Daniels not Smith but when it wanted to find no immunity deal existed the court believed Smith not Daniels. This is starkly illustrated by the fact that it was Daniels, not Smith, who had motivation to lie about the sexual affair and it was Smith, not Daniels, who had motivation to lie about the immunity deal. Where there is no competent substantial evidence to support the credibility determination appellate courts are not strictly bound to uphold it. United States v. Gypsum Co., 333 U.S. 364, 395 (1948) (“a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”). Thus, The Florida Supreme Court was not inextricably constrained to follow the trial court’s determination and in so doing engaged in an unreasonable application of the facts.
Furthermore, the Circuit Court’s recitation of the facts and the Florida Supreme Court’s blind acceptance thereof, is inherently suspect for two additional reasons. First, the court concluded in its order that Mr. Lambrix did not testify, which is categorically inaccurate since he did testify and was never impeached. Since the court claimed he did not testify it made no determinations as to his credibility. Without any impeachment or credibility determination, The Florida Supreme Court must accept Mr. Lambrix’s testimony as credible. Second, for reasons not explained at all by the court or the Chief Judge of the Circuit, Judge Corbin was removed from the case subsequent to his order but before The Florida Supreme Court’s ruling. Thus, given the trial court’s outcome determinative consideration of credibility and “the extraordinary circumstances” that resulted in Judge Corbin’s mysterious removal from the case subsequent to his findings of fact upon which The Florida Supreme Court relies, the finding of facts below cannot be relied upon. See Wickham v. State, 998 So. 2d 593, 596 (Fla. 2008) and Steinhorst v. State, 636 So. 2d 498 (Fla. 1994).

In addition to disregarding the facts surrounding Smith’s testimony about the sexual affair she had with Daniels, the Florida Supreme Court also discounted the facts as they related to how the existence of the sexual affair prejudiced Mr. Lambrix. The Florida Supreme Court held that evidence of the affair between Smith and Daniels would be favorable to Mr. Lambrix because it “could be used to impeach both Smith and Daniels, because it could be a basis as to why Daniels focused his investigation on Lambrix (as opposed to Smith, who was initially arrested while driving the victim’s car).” Lambrix, 39 So. 3d at 269. Given the undoubted favorability of this evidence in a case where Mr. Lambrix faces execution, The Florida Supreme Court nonetheless held that he cannot establish prejudice because Smith’s statements and prior testimony at the first trial were consistent with her testimony at the second trial. Lambrix, 39 So. 3d at 268. However, this conclusion mistakenly relies on the erroneous factual findings made below while discounting to irrelevance copious evidence to the contrary. Specifically, nowhere in the first trial, did Smith testify that Mr. Lambrix placed the female victim face down in a pond so she could finish dying. However, at the second trial, after having the sexual affair with Daniels, Smith, for the first time testified as such. The State used this testimony to argue premeditation to the jury. Such testimony is damaging in the extreme and that damage was compounded where Smith was left unimpeached.

Had trial counsel known of the sexual affair between Smith and Daniels they could have certainly, through impeachment, cast doubt about her testimony in the eyes of the jury. Indeed, Smith did make inconsistent statements when she was first arrested. Trial counsel did not attempt to impeach her with those statements because they feared opening the door to the fact that Mr. Lambrix walked away from a work release program after being sentenced there for writing a bad check. However, trial counsels’ evidentiary hearing testimony, which the Florida Supreme Court overlooked and the lower court severely limited, was that had they known about the affair they would have made the decision to impeach Smith regardless of opening the door about Mr. Lambrix walking away from work release. Furthermore, Smith was, as the State freely acknowledges, the hub of its case. In other words, without Smith’s testimony against Mr. Lambrix, the State’s case crumbles.

The Florida Supreme Court accepted the circuit court’s factual findings, which ignored Hanzel’s affidavit and testimony establishing Mr. Lambrix made exculpatory statements (“He went nuts”) and that he did not tell her what she testified to at trial (i.e. that he killed the victims to acquire the car). Additionally, newly discovered reliable evidence and expert medical and scientific opinion was proffered below but never heard or considered by the lower court. The medical examiner, crime scene and other experts should have been allowed to testify because they could not have given the same testimony at trial in 1983 because the new evidence was not available to them then. Roberts v. State, 678 So. 2d 1232, 1235 (Fla. 1996).
This newly discovered evidence, ignored by the circuit court and dismissed as irrelevant by the Florida Supreme Court establishes that Mr. Lambrix is factaually and legally innocent of first-degree premeditated murder. Mr. Lambrix is in a similar position as was Schulp, in that “under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.” Schulp, 513 U.S. at 330. The Florida Supreme Court failed to consider the newly discovered evidence in conjunction with the claims presented under this instant fundamental miscarriage of justice claim.

With the entire case hinging upon Smith’s testimony, discrepancies in her testimony cannot, by definition, be considered minor to any reasonable degree. This is especially the case when the State, as it did here, proclaims to the jury that its “hub,” Smith, was solid. Dismissing to irrelevance Smith’s inconsistencies, as The Florida Supreme Court does in its April 15, 2010 opinion, amounts to an unreasonable application of the facts. Porter v. McCollum, 130 S. Ct 447 (2009).
Mr. Lambrix has claimed in all his record statements that he acted in self-defense. The record below does nothing to rebut self-defense. Since self-defense cannot be rebutted, Mr. Lambrix stands convicted of a crime which, as a matter of law and fact, he did not commit. Mr. Lambrix was entitled to present this claim to the court in conjunction with other evidence and facts to support his actual innocence of the crimes for which he stands convicted. Schlup v. Delo, 513 U.S. 298 (1995). The fact that Mr. Lambrix has been prevented from presenting and developing this claim offends the Fifth, Sixth, Eighth and Fourteenth Amendments. Additionally, the record evidence of Smith’s sexual affair with Daniels along with Hanzel’s recantation and proffered expert evidence that Mr. Lambrix was prevented from presenting establish a further “a colorable claim of innocence” supported by newly discovered evidence. Schulp, 513 U.S. at 313-35; Murray v. Carrier, 477 U.S. 478 (1986). The question thus, is not the strained credibility determination of the Circuit Court. Rather, the question is how this new evidence would have impacted the jury. Porter v. McCollum, 130 S. Ct 447 (2009).

The Florida Supreme Court accepted the trial courts Jekyll and Hyde approach to Daniels’ credibility regarding when it found there was no evidence that Smith was offered immunity or a plea deal. Lambrix, 39 So. 3d at 270. The trial court’s findings of fact were dubious and the Florida Supreme Court’s blind acceptance thereof with out independent review was unreasonable. See Porter v. McCollum, 130 S. Ct 447 (2009); Sears v. Upton, 130 S. Ct. 3259 (2010); Jefferson v. Upton, 130 S. Ct. 2217 (2010). Thus the Florida Supreme Court failed to consider record facts that would “have particular salience for a jury evaluating” Smith’s testimony and credibility. Porter, 130 S. Ct. at 455 (holding that the Florida Supreme Court unreasonably discounted evidence of Porter’s background that the jury should have heard in mitigation).

The withholding of evidence of a plea or immunity deal violated established precedent and caused substantial prejudice to Mr. Lambrix. See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972); Napue v. Illinois, 360 U.S. 264 (1959); Guzman v. State, 868 So. 2d 498 (Fla. 2003). The State knew that Smith was offered immunity, allowed her to testify without informing Mr. Lambrix about the immunity. The State also allowed Smith to testify falsely that she was not given an immunity or plea deal in exchange for her testimony. The fact of immunity was material impeachment to the uncontested “hub” of the State’s case. This is a plain Giglio violation that was ignored by The Florida Supreme Court.

Regarding Mr. Lambrix’s claim that there was a conspiracy and collaboration between Smith, Daniels and Hanzel to tailor Hanzel’s testimony, The Florida Supreme Court failed to address the Circuit Court’s summary denial of that claim. The Florida Supreme Court only addressed that claim in terms of Mr. Lambrix being prevented from “presenting various witnesses who would have supported Hanzel’s recantation, thus denying him a full and fair evidentiary hearing.” Lambrix, 39 So. 3d at 273. However, Hanzel’s recantation, is a distinct and different claim from the Brady/Giglio claim predicated on the sexual relationship between Smith and Daniels. Indeed, Mr. Lambrix was summarily prevented from presenting evidence to support his claim.

Additionally, The Florida Supreme Court overlooked what the impact would have been on the jury at the penalty phase of Smith’s testimony that she had sex with Daniels as well as Hanzel’s recantation. Subsequent to oral argument, Mr. Lambrix filed a Notice of Supplemental Authority citing to Porter v. McCollum, 130 S. Ct. 447 (2009), for this very proposition. In Porter this Court held that it was unreasonable for The Florida Supreme Court to “discount to irrelevance” evidence that “may have particular salience for a jury” evaluating the penalty phase. Porter, 130 S. Ct. at 455.

The Florida Supreme Court’s discounting to irrelevance the discrepancies in Smith’s testimony fails to address the import of her testimony at Mr. Lambrix’s trial. Based on Smith testimony at the first trial the jury could not convict. Only after Smith’s embellished testimony at the second trial did the jury convict.
The state courts unreasonable refusal to allow Mr. Lambrix a full and fair opportunity to present the evidence supporting the specifically pled claims noted supra as well as the fundamental miscarriage of justice claim deprived Mr. Lambrix of his procedural and substantive due process rights under the 5th and 14th amendments to a full and fair hearing. This was necessary if Mr. Lambrix was to prove his claim of innocence. See In Re Troy Davis, 130 S. Ct. 1 (1020) (“The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”)

Petitioner respectfully submits that the state courts must be compelled to recognize and allow a full and fair presentation of evidence supporting a specifically pled fundamental miscarriage of justice claim as this is an absolutely necessary safeguard to protect against the execution of innocent victims of miscarriages of justice. Only too often death sentenced prisoners are compelled to pursue and exhaust an original federal habeas petition before newly discovered evidence supporting a fundamental miscarriage of justice claim is brought to light. As reflected in the facts and history of the instant case, immediately after Mr. Lambrix was denied relief on direct appeal and before he had an opportunity to pursue collateral postconviction relief in the state courts, the Governor of the State of Florida signed a death warrant and Mr. Lambrix was compelled to file an original federal habeas hours before the scheduled execution in order to obtain a stay. Lambrix v. State, 494 So. 2d 1194 (Fla. 1986). Mr. Lambrix was hurried through the entire state postconviction process in a matter of weeks was facing a scheduled execution without any meaningful opportunity to develop and present the substantial collateral claims of constitutional error.

Subsequently, Congress adopted the restrictive Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996 establishing severe restrictions upon any second or successive federal habeas petitions and adopting new rules that effective give the Courts of Appeals subjective discretion as to whether to allow a second petition. If that discretion leads to denial, there is now virtually no avenue in which to appeal the decision. Under these circumstances it has become imperative that the state courts recognize and allow legitimate claims of fundamental miscarriage of justice. To be fully and fairly heard in the state courts, as to implicitly allow the state courts to unreasonably refuse to accept review of legitimate, supported claims of a fundamental miscarriage of justice brought after Schulp and House effectively eliminates any meaningful opportunity to fully and fairly address legitimate claims of innocence based upon newly discovered evidence – and all but advocates the inevitable execution of the innocent as given the subjective discretion to successive fedral habeas review, it cannot be assumed that the Federal courts will provide an adequate opportunity to present and be heard upon a legitimate fundamental miscarriage of justice claim.

Mr. Lambrix’s case is indicative of the substantial and unnecessary risk that currently exists that innocent people will inevitably be executed unless adequate safeguards intended to provide a full and fair opportunity to be heard upon legitimate claims of actual innocence are not enforced. For this reason the Court should accept review of this case and address whether the state courts are constitutionally obligated to recognize and allow a full and fair evidentiary process andmeaningful opportunity to present the evidence necessary to establish a fundamental miscarriage of justice under Schulp and House.
2(a)&(b)
Under Herrera v. Collins, 506 U.S. 390, 417 (1993), a convicted defendant is entitled to relief from a wrongful conviction if newly discovered evidence is not available at the time of trial establishes a “truly persuasive demonstration of actual innocence.” In Herrera, as in the instant case, a prisoner advanced the claim that he was innocent of the offense of which he had been convicted and that it would violate the Constitution to put him to death. The issues raised below in Mr. Lambrix’s case: the Brady/Giglio violation regarding witness Frances Smith’s testimony that she had sex with investigator Daniels of the state attorney’s office, the newly discovered evidence claim, and the conspiracy/collaboration claim, all detailed supra, are sufficient to warrant relief in the form of a new trial. Mr. Lambrix claimed below that the deprivation of substantive and procedural due process where his claims of actual innocence, lack of premeditation, ineffective assistance of trial and appellate counsel and judicial bias had never been fully litigated below on the merits demanded a remedy. The claim was predicated on Eighth amendment jurisprudence implicating the evolving standards of decency and included citations to material studies on innocence, exonerations and notice of a prospective witness at any evidentiary hearing. No evidentiary hearing was granted below.
The lower court failed to appreciate that Mr. Lambrix’s claim was not predicated on the Eighth Amendment results in Atkins v. Virginia, 537 U.S. 304 (2002). Rather, the claim was grounded declaration in Atkins that the application of the Eighth Amendment must be grounded on an examination of “evolving standards of decency” and that, as a result, what may not have violated the Eighth Amendment in the past may violate the amendment now. See also Roper v. Simmons, 125 S. Ct. 1183 (2005). The claim relied on the emerging trend based on the pace and number of exonerations nationwide such that the evolving standards of decency pursuant to the Eighth Amendment prohibit both the execution of the innocent and the continued incarceration of the innocent. Atkins provides a pathway for courts to allow for evidentiary development of claims otherwise facing procedural bars. This path is an alternative means of review outside of the fundamental miscarriage of justice/ends of justice analysis.

The contemporary evolution of society’s intolerance of wrongful convictions calls into question whether Herrera is still good law in light of Atkins. If evidentiary development of claims that have been deemed to be procedurally barred is necessary in order to make a showing of actual factual or legal innocence, there should be both a state and a federal remedy that allows the evidence to be presented and considered. Mr. Lambrix proffered evidence below in support of the claim after the lower court denied an evidentiary hearing on the elements noted supra. See American Bar Association, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment Report, September 17, 2006.
The Florida Supreme Court failed to evaluate Mr. Lambrix’s claim under an evolving standards of decency analysis evolving from Herrera v. Collins. There has been an evolution in society’s intolerance of wrongful convictions. Among other things, Atkins stands for the proposition that Eighth amendment relief is available even where a claim of a specific cruel and unusual punishment has not been preserved below. Regardless of the lower court’s specific findings below the jury would be required to acquit because a review of all the evidence presented at trial and at the evidentiary hearing would not exclude a reasonable hypothesis of innocence pursuant to Randall, Ballard, Coolen, et. al.

A recent Florida Supreme Court decision upheld the validity of a waiver of counsel and postconviction proceedings by a death row inmate who later changed his mind about both aspects of the waiver. A lone dissenter supported the principle that courts should err on the side of caution to avoid the chance that an inmate might be executed “with outstanding unresolved questions about his guilt and possible innocence” where “the procedural posture of the case and the issues raised in the pending appeal about [an inmate’s] possible innocence trump our interests in finality. By not allowing [the inmate] to proceed with his appeal of the denial of postconviction relief, we run the risk of [the inmate] being executed without this Court having had the opportunity to review his postconviction claims of innocence.” Trease v. State, 41 So. 3d 119, 127-28 (Fla. 2010) (Pariente, J., dissenting).
Mr. Lambrix faces exactly the same dilemma where the Florida Supreme Court rejected without discussion his claim that he was entitled to litigate his actual innocence. Lambrix v. State, 39 So. 3d at 266 n.10. This Court decided Herrera in 1993 upon the presumption that legitimate claims of actual innocence were “exceedingly rare.” Since 1993 the substantial number of exonerations based on DNA evidence and false confessions and identifications have now established beyond doubt that the rate of wrongful convictions is actually significantly greater than anyone believed when Herrera was decided. In Herrera the majority of the Court conceded that the execution of even one innocent person would be “constitutionally intolerable.” Yet the “truly persuasive showing of innocence” standard adopted in Herrera as a gateway to the presentation of a freestanding claim of innocence has proven to be a fictional standard all but impossible to meet.

Herrera was decided as an Eighth amendment claim and governed by “the evolving standards of decency.” The irrefutable empirical evidence now showing the actual rate of wrongful convictions is significantly greater than previously believed possible has now resulted in a substantial evolution of society’s increased intolerance towards the risk of executing the innocent. In light of this shift in social attitudes demanding greater protections against the execution of innocents, this Court should now revisit Herrera v. Collins and abandon the prohibitively impossible “truly persuasive” standard and adopt the more favorable clear and convincing standard in the interest of providing constitutionally required adequate safeguards to protect against the execution of innocent persons. Based on all of the information that has come to light, Mr. Lambrix is entitled to a retrial before a fair and impartial judge and jury.
CONCLUSION

For the above reasons, Petitioner respectfully requests that The Florida Supreme Court grant the petition for a writ of certiorari.


_____________________________
WILLIAM M. HENNIS III*

CRAIG J. TROCINO

LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL – SOUTH
101 N.E. 3RD AVENUE, SUITE 400
FORT LAUDERDALE, FL 33301
(954) 713-1284

OCTOBER 6, 2010 * COUNSEL OF RECORD