Lusk v. Singletary, 94-4597

• Decision Date: 15 May 1997
• Docket Number: No. 94-4597,94-4597
• Parties: 10 Fla. L. Weekly Fed. C 934 Bobby Earl LUSK, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1103

112 F.3d 1103

10 Fla. L. Weekly Fed. C 934

Bobby Earl LUSK, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 94-4597.

United States Court of Appeals Eleventh Circuit

May 15, 1997.

Robert Wesley, Tallahassee, FL, Matthew Lawry Philadelphia, PA, for Petitioner-Appellant.

Robert Butterworth, Attorney General, Miami, FL, Charles M. Fahlbusch, Asst. Atty. Gen., Hollywood, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

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 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 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, 513 U.S. 1160, 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, ...