United States Court of Appeals,
Eleventh Circuit
No. 94-4597.
Bobby Earl LUSK, Petitioner-Appellant,
v.
Harry K. SINGLETARY, Secretary, Florida Department of
Corrections, Respondent-Appellee.
May 15, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 92-2620 CIV-SM), Stanley Marcus, Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*,
Senior District Judge.
HATCHETT, Chief Judge:
The appellant, Bobby Earl Lusk, appeals the district court's
ruling that he is not entitled to habeas corpus relief due to a
state procedural bar. We affirm.
BACKGROUND
On January 26, 1977, a grand jury indicted Lusk on one count
of first degree murder and two counts of robbery. During the
pretrial proceedings, three psychiatrists found Lusk competent to
stand trial, and one of the three psychiatrists recommended
psychological testing to confirm his determination. In May, 1977,
a jury convicted Lusk on all three counts and recommended a
sentence of death. The trial court overrode the jury
recommendation and sentenced Lusk to life imprisonment with
twenty-five year minimum mandatory term on the murder and to two
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
consecutive life sentences on the robberies.
Lusk appealed his conviction challenging whether the trial
court erred in denying his repeated motions for mistrial on grounds
of prosecutorial misconduct.1 On February 27, 1979, the Third
District Court of Appeal affirmed the trial court. Lusk v. State,
367 So.2d 1088 (Fla.3d D.C.A.1979).
In 1978, while in prison, Lusk murdered a fellow inmate. For
this murder a conviction resulted and a sentence of death. Lusk
appealed, and the Third District Court of Appeal affirmed. Lusk v.
State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct.
229, 83 L.Ed.2d 158 (1984). The trial court denied Lusk's motion
under Florida Rule of Criminal Procedure 3.850, and the state
district court of appeal affirmed. Lusk v. State, 498 So.2d 902
(Fla.), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517
(1987). Lusk then filed a federal habeas corpus petition that the
district court granted vacating his death sentence. On appeal,
this court reversed and reinstated Lusk's death sentence. See Lusk
v. Dugger, 890 F.2d 332, 334 (11th Cir.1989), reh'g denied, 894
F.2d 414 (11th Cir.), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297,
111 L.Ed.2d 805 (1990).
In 1991, Lusk filed a Rule 3.850 motion attacking his 1977
convictions on several grounds: incompetence; failure to hold a
competency hearing; prosecutorial misconduct; and ineffective
assistance of counsel for failure to object to the prosecutor's
comments. After a non-evidentiary telephonic hearing, the trial
1
On June 10, 1977, Lusk filed a pro se petition for a writ
of habeas corpus in the trial court. That petition, however, was
withdrawn on June 29, 1977.
court denied the motion, holding that Rule 3.850 required Lusk to
file his motion before 1987, and that Lusk's belated motion did not
fall within the exception to that rule's time limitations period.
The trial court also reviewed the record and found that Lusk had
been properly adjudicated competent. Lusk appealed the trial
court's denial, and the state district court of appeal affirmed.
Lusk then filed this habeas corpus petition in the federal district
court, raising the same claims as in his state Rule 3.850 action
and requesting an evidentiary hearing. Following the magistrate
judge's report and recommendation, the district court denied Lusk's
petition for writ of habeas corpus on grounds of the state
procedural bar under Rule 3.850.
ISSUE
Whether the district court erred in denying habeas corpus
relief on grounds of a state procedural bar without holding an
evidentiary hearing.
DISCUSSION
On appeal, Lusk argues that the district court erred in
finding his claims procedurally barred without conducting an
evidentiary hearing into the facts underlying the state procedural
bar. Lusk, the state maintains, could have through due diligence
discovered the issues raised in his petition before those issues
became time barred under Florida Rule of Criminal Procedure 3.850.
Whether a petitioner's actions or inaction creates a state law
procedural bar of particular claims is a mixed question of law and
fact. Therefore, we review the district court's determination that
Lusk was procedurally barred from raising his claims in federal
court de novo. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.1993).
Additionally, we review the district court's decision applying the
cause and prejudice rules to the procedural bar issues de novo.
Macklin v. Singletary, 24 F.3d 1307, 1312-1313 (11th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085
(1995).
The procedural bar of Rule 3.850 involves the following time
limitations:
No ... motion shall be filed or considered pursuant to this
rule if filed more than 2 years after the judgment and
sentence becomes final in a noncapital case or more than 1
year after the judgment and sentence become final in a capital
case in which a death sentence has been imposed unless it
alleges that (1) the facts on which the claim is predicated
were unknown to the movant or the movant's attorney and could
not have been ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not
established within the period provided for herein and has been
held to apply retroactively.
Fla.R.Crim.Pro. 3.850(b). Lusk unquestionably failed to meet the
two-year deadline, and consequently, he alleged that the first
exception, Rule 3.850(b)(1), applies. To meet that exception, Lusk
had to prove that the facts underlying his claims were unknown and
could not have been discovered through the exercise of due
diligence. See, e.g., Porter v. Singletary, 653 So.2d 374
(Fla.1995), cert. denied, --- U.S. ----, 115 S.Ct. 1816, 131
L.Ed.2d 739 (1995).
Upon review of the facts and circumstances here, we hold that
Lusk has failed to meet the exception expressed in Rule
3.850(b)(1). Because Lusk has had repeated legal representation
since his 1977 conviction, through due diligence, Lusk or his
various lawyers should have known about the competency issue. In
fact, Lusk's lawyer in the 1977 conviction knew of the competency
determination and stipulated at trial to the three psychiatric
reports that found Lusk competent. In subsequent appeals of that
conviction, none of Lusk's lawyers addressed the competency claims
before the effect of the procedural bar. We conclude that Lusk's
competency challenge could have been raised before the issue became
procedurally barred under Rule 3.850.
Lusk also argues that even if the procedural bar stands, he
has demonstrated cause for and prejudice resulting from the
default, or at a minimum, he has raised issues of fact that warrant
an evidentiary hearing into cause and prejudice. In the face of
three psychiatric reports finding Lusk competent to stand trial, we
conclude, however, that the district court did not err in finding
no cause and prejudice, and consequently, in denying habeas corpus
relief to Lusk without an evidentiary hearing. Walker v. Davis,
840 F.2d 834, 839-840 (11th Cir.1988).2 Accordingly, we affirm the
district court's decision that a state procedural bar precludes
2
See Fla.R.Crim.Pro. 3.210(b). Rule 3.210(b) provides that
[i]f, at any material stage of a criminal proceeding,
the court of its own motion, or on motion of counsel
for the defendant or for the state, has reasonable
ground to believe that the defendant is not mentally
competent to proceed, the court shall immediately enter
its order setting a time for a hearing to determine the
defendant's mental condition, which shall be held no
later than 20 days after the date of the filing of the
motion, and shall order the defendant to be examined by
no more than 3, nor fewer than 2, experts prior to the
date of the hearing. Attorneys for the state and the
defendant may be present at the examination.
Here, the record reflects that Lusk received the maximum
number of experts allowed under the rule, and all three
experts found him competent.
federal habeas corpus review of Lusk's claims.
AFFIRMED.