Lusk v. Dugger, 88-4042

• Decision Date: 22 November 1989
• Docket Number: No. 88-4042,88-4042
• Citation: 890 F.2d 332
• Parties: Bobby Earl LUSK, Petitioner-Appellee, Cross-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 332

890 F.2d 332

Bobby Earl LUSK, Petitioner-Appellee, Cross-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellee.

No. 88-4042.

United States Court of Appeals Eleventh Circuit.

Nov. 22, 1989.

Richard Levitt, New York City, for petitioner-appellee, cross-appellant.

Mark C. Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellant, cross-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

COX, Circuit Judge:

Bobby Earl Lusk was convicted in Florida of first-degree murder and sentenced to death. He filed a 28 U.S.C. Sec. 2254 petition seeking habeas corpus relief. The district court denied relief as to the conviction, but granted relief as to the sentence. Lusk appeals the denial of relief as to the conviction, and the state cross-appeals the grant of relief as to the sentence. We affirm the denial of relief as to the conviction, reverse the grant of relief as to the sentence, and remand to enable the district court to consider the claims it has not yet addressed.

I. Procedural Background

Florida State Prison inmate Bobby Earl Lusk fatally stabbed fellow inmate Michael Hall. The Supreme Court of Florida has accurately summarized the facts as follows:

At the Thanksgiving Day noon meal in the Florida State Prison cafeteria on November 23, 1978, Bobby Earl Lusk fatally stabbed inmate Michael Hall. Lusk was serving three consecutive life terms for two convictions of armed robbery with a pistol and a simultaneous conviction of first-degree murder. The victim, Hall, was serving a 30-year sentence for the second-degree stabbing murder of an inmate at Sumter Correctional Institution. Lusk initially made a statement to prison officials that Hall and two other inmates had robbed him in his cell on the morning of the murder, stabbed his mattress several times and threatened him if he reported the incident. He then said he would not take it anymore and resolved to kill one of the men. According to Lusk, he took his homemade knife to the dining hall at lunchtime and stabbed Hall in the back two or three times. (The body had three stab wounds in the back.) He concluded the statement by saying that Hall had been sitting when he stabbed him and Hall had thrown a tray at him after the stabbing. Lusk moved to suppress the confession as being involuntary but this was denied.... At trial, Lusk testified and offered self-defense as an explanation for the crime, stating that Hall threatened to "take him out" and that Hall attacked him first with a knife of his own.

Lusk v. State, 446 So.2d 1038, 1040 (Fla.1984) ("Lusk I ").

Lusk was indicted for first-degree murder. Attorney Mack Futch was appointed to represent him, and the case went to trial in December, 1979.

Lusk testified at the trial and offered self-defense as his explanation for the slaying. The jury found Lusk guilty of first-degree murder as charged. Two days later the trial court reconvened the jury for an advisory sentencing hearing (the "penalty phase"). Lusk also testified at this hearing, and other witnesses were called on his behalf. The state's evidence at this hearing consisted of Lusk's prior first-degree murder conviction and two robbery convictions; a narrative description of these crimes was read to the jury.

In closing arguments to the jury at the penalty phase, the state argued the presence of four statutory aggravating factors:

(a) The capital felony was committed by a person under sentence of imprisonment.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

(c) The defendant knowingly created a great risk of death to many persons.

* * *

(h) The capital felony was especially heinous, atrocious, or cruel.

Fla.Stat.Ann. Sec. 921.141(5) (1985).

In his closing argument, attorney Futch did not review the evidence presented at the penalty phase, but instead pleaded for mercy. The jury returned a recommendation of life imprisonment.

The second phase of the sentencing proceeding (the "sentencing phase") was held before Judge Fagan, the trial judge, in February, 1980. Judge Fagan acknowledged that the jury had responded to counsel's eloquent and persuasive argument for mercy. He stated that "[n]o argument was made, nor could any have been justifiably made, in favor of mitigating circumstances outweighing aggravating circumstances." Appendix to Petition for a Writ of Habeas Corpus (hereafter "Appendix") Vol. 1, p. 588. Judge Fagan found no mitigating factors to balance against the four aggravating factors presented by the state. He noted that "[t]here were no mitigating circumstances, either as statutorily prescribed or as should otherwise be considered against the aggravating circumstances prescribed by the statute." Id. at 588-89. He thus accepted all of the aggravating factors, overrode the jury's recommendation, and sentenced Lusk to death.

Lusk appealed to the Florida Supreme Court, which unanimously affirmed his conviction and affirmed the death sentence with two justices dissenting. Lusk v. State, 446 So.2d 1038 (1984) ("Lusk I "), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The state supreme court struck one aggravating factor--that Lusk knowingly created a great risk of death to many persons--as not supported by the record. The court concluded, however, that the remaining three aggravating factors would sustain the trial court's override of the jury's recommendation. The Florida Supreme Court applied its Tedder ¹ rule and found no reason to reverse the judge's sentence:

After having reviewed the record and in light of the totality of the circumstances, we hold that the jury override in this case is proper since the facts suggesting the death sentence are so clear and convincing that no reasonable person could differ.... Additionally, we conclude that the jury's recommendation of life was not based on any valid mitigating factor discernible from the record and therefore it was proper for the trial judge to decline to follow their recommendation.

446 So.2d at 1043.

Lusk then petitioned for collateral relief pursuant to Fla.R.Crim.P. 3.850. His claims included a claim that he received ineffective assistance of counsel at the guilt, penalty and sentencing phases of his trial. An evidentiary hearing was held in the state court before Judge Fagan at which Lusk offered evidence of his victim's reputation for violence, contending that he was prejudiced by the failure of his counsel to introduce this evidence at the guilt and penalty phases of trial. Lusk also presented evidence of his own troubled background, alleging prejudice in his counsel's failure to introduce such evidence at the penalty and sentencing phases. Lusk's petition for relief was denied.

The Florida Supreme Court affirmed denial of the 3.850 petition. Lusk v. State, 498 So.2d 902 (1986) ("Lusk II "), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517 (1987). That court first addressed Lusk's contention that counsel rendered ineffective assistance at the guilt phase and concluded that Lusk had not shown counsel's performance to be deficient. The court also rejected Lusk's argument that counsel was ineffective at the penalty phase for failing to introduce more evidence in mitigation.

Lusk thereafter petitioned the Florida Supreme Court for a writ of habeas corpus, alleging ineffective assistance of counsel on direct appeal. That petition was summarily denied. Lusk v. Dugger, 518 So.2d 1276 (Fla.1987).

In January 1988, Lusk filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. His petition asserts a claim of ineffective assistance of counsel at all stages of trial and on direct appeal, which challenges both his conviction and his sentence. He asserts other claims which challenge only his sentence. The district court denied relief as to the conviction, but granted relief as to the sentence. The court vacated the sentence of death and allowed the state 120 days within which to resentence Lusk to a sentence other than death. Lusk appealed this denial of relief as to his conviction; the state cross-appealed the order vacating the death sentence. ²

II. The Ineffective Assistance of Counsel Claims

Initially, we address our standard of review of the district court's conclusion that Lusk was not denied effective assistance of counsel at the guilt, penalty and sentencing phases of his trial. The claim of ineffective assistance of counsel presents a mixed question of law and fact and, as such, is subject to our plenary review. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Davis v. Kemp, 829 F.2d 1522 (11th Cir.1987), reh'g en banc denied, 835 F.2d 291, cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988). The findings of historical fact made by the state courts on this issue are entitled to a presumption of correctness. 28 U.S.C. Sec. 2254(d). The conclusions regarding effective assistance of counsel, however, whether made by the Florida state courts or the district court and whether stated as a "finding" or not, are matters of law and thus are not presumed correct. We therefore independently consider whether Lusk was deprived of his right to effective assistance of counsel.

The familiar standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs claims that a defendant was denied the effective assistance of counsel guaranteed by the Sixth Amendment. First, the court must determine whether the acts or omissions of counsel identified by the defendant were "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. Second, the defendant "must show that there is a reasonable...