112 F.3d 1103 (11th Cir. 1997), 94-4597, Lusk v. Singletary

Docket Nº:94-4597.
Citation:112 F.3d 1103
Party Name:Bobby Earl LUSK, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
Case Date:May 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1103

112 F.3d 1103 (11th Cir. 1997)

Bobby Earl LUSK, Petitioner-Appellant,


Harry K. SINGLETARY, Secretary, Florida Department of

Corrections, Respondent-Appellee.

No. 94-4597.

United States Court of Appeals, Eleventh Circuit

May 15, 1997

Page 1104

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.


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...

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