Lugo v. Sec'y

Decision Date24 April 2014
Docket Number12–13737.,Nos. 11–13439,s. 11–13439
Citation750 F.3d 1198
PartiesDaniel LUGO, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit


Manuel Arteaga-Gomez, Miami, FL, Orlando do Campo, do Campo & Thornton, PA, Miami, FL, Richard Carroll Klugh, Jr., Law Offices of Richard C. Klugh, Miami, FL, for Petitioner-Appellant.

Sandra Jaggard and Richard L. Polin, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:10–cv–20098–JAL.

Before CARNES, Chief Judge, MARTIN and DUBINA, Circuit Judges.

CARNES, Chief Judge:

Daniel Lugo, a Florida death-row inmate, appeals the district court's decision dismissing as time-barred his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He also appeals the denial of his Federal Rule of Civil Procedure 60(b) motion, which asked the district court to vacate its judgment dismissing his § 2254 petition as time-barred. Lugo contended in the district court, as he does here, that he is entitled to equitable tolling of the one-year statute of limitations for filing a federal habeas petition under Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). We granted Lugo separate certificates of appealability to appeal each of the district court's decisions and consolidated the two appeals. We affirm in both appeals.


Lugo was sentenced to death after he was convicted by a jury of thirty-nine felonies, including kidnapping, attempted extortion, and first-degree murder. See Lugo v. State (Lugo I), 845 So.2d 74, 84–92 (Fla.2003).1 The facts of the crime, trial, and sentencing proceedings are detailed at length in the Florida Supreme Court's opinion affirming Lugo's convictions and death sentences on direct appeal. See id. at 84–119.

The Florida Supreme Court affirmed Lugo's convictions and death sentences on direct appeal on February 20, 2003, and denied rehearing on May 2, 2003. Id. at 74, 119. The judgment became final when the United States Supreme Court denied Lugo's petition for a writ of certiorari on October 6, 2003. Lugo v. Florida, 540 U.S. 920, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003); see also Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003) (“Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”); Bond v. Moore, 309 F.3d 770, 772–73 (11th Cir.2002). Lugo had until October 6, 2004, to file his federal petition for a writ of habeas corpus or to properly file an application for postconviction relief in state court to toll the time for filing his federal petition. See28 U.S.C. § 2244(d)(1)(A), (d)(2); Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir.2008) (noting that “the limitations period expires on the anniversary of the date it began to run”).

Over the course of the collateral review process, and at various times, Lugo had five different appointed counsel.

A. CCRC–Southern Region

On May 2, 2003, the Florida Supreme Court appointed Florida's Office of Capital Collateral Regional Counsel (CCRC)-Southern Region to handle Lugo's postconviction proceedings.2SeeFla. Stat. § 27.7001, et seq. (creating and structuring Florida's system for providing representation to indigent capital defendants in collateral proceedings). However, CCRC–Southern Region withdrew from its representation before Lugo's judgment even became final on direct review because it was representing his codefendant.

B. CCRC–Middle Region

On June 9, 2003, CCRC–Middle Region entered a notice of appearance in state postconviction court, replacing the Southern Region office as counsel for Lugo. Almost four months later, and three days before Lugo's convictions became final on direct review, CCRC–Middle Region filed a motion to withdraw based on a conflict of interest. That October 3, 2003 motion stated that the CCRC–Middle Region's lead investigator had a personal conflict of interest because she feared that conducting an investigation in Lugo's case could endanger members of her family in Colombia. For that reason, and pursuant to Fla. Stat. § 27.703(1), CCRC–Middle Region asked to be permitted to withdraw and for the court to appoint in its place conflict-free registry counsel qualified under Fla. Stat. §§ 27.710 and 27.711.

On October 22, 2003, the state postconviction court denied CCRC–Middle Region's motion to withdraw. But later, on December 18, 2003, at a court proceeding where Lugo was not present, that court allowed CCRC–Middle Region to withdraw.3 Although the record of that proceeding indicates that CCRC–Middle Region's investigator met with Lugo at least twice and that the agency began collecting records about his case, there is nothing else in it about the extent of CCRC–Middle Region's efforts on Lugo's behalf before it withdrew.

C. Roy D. Wasson

The state court appointed registry attorney Roy D. Wasson on January 16, 2004. Wasson did not file a state postconviction motion on Lugo's behalf under Rule 3.851 of the Florida Rules of Criminal Procedure until October 18, 2004.

There is more to say about Wasson's conduct, as well as Lugo's diligence, between the time of Wasson's appointment and his filing of Lugo's Rule 3.851 motion. While these facts are relevant to an equitable tolling analysis, many of them were not before the district court when it initially dismissed Lugo's § 2254 petition. Sorting out when Lugo brought facts to the district court's attention is important in our review of the two different district court orders, each with its own analytical framework and standard of review. 4 At the time it dismissed the § 2254 petition, the district court had before it only the procedural history of the case and some conclusory allegations by Lugo concerning Wasson. It was not until after that dismissal and when the Rule 60(b) motion was filed that the most egregious facts regarding Lugo's representation were presented to the district court. Because we consider each appeal in light of what was before the district court when it issued the relevant decision, we limit our background discussion here to those facts which were brought to the district court's attention by Lugo or the State before the court dismissed the § 2254 petition.

The Rule 3.851 motion filed by Wasson raised various substantive claims on Lugo's behalf and alleged that he was not competent to participate in postconviction proceedings. After Lugo was evaluated and determined to be competent by two state doctors, Lugo filed pro se motions objecting to a competency hearing and requesting the removal of Wasson as counsel. The parties later stipulated that Lugo was competent to proceed and he withdrew his motion to discharge Wasson.

After holding an evidentiary hearing in 2006, the state postconviction court denied Lugo's Rule 3.851 motion. On behalf of Lugo, Wasson appealed that denial to the Florida Supreme Court but did not file a state habeas petition in that court because he did not find any meritorious issues to raise.5 Lugo attempted to file a pro se amended notice of appeal and state habeas petition. He also filed a motion to remove Wasson as counsel as well as a supplement to that motion. On February 1, 2008, the Florida Supreme Court denied Lugo's motion to remove Wasson as counsel and struck all of Lugo's pro se pleadings as unauthorized.

On October 8, 2008, the Florida Supreme Court affirmed the denial of postconviction relief. Lugo v. State (Lugo II), 2 So.3d 1, 21 (Fla.2008). Fourteen days later Lugo filed pro se motions for rehearing and to hold the rehearing in abeyance pending resolution of bar complaints he had filed against both Wasson and the United States Attorney for the Southern District of Florida. The Florida Supreme Court denied Lugo's abeyance motion on November 4, 2008.

On November 10, 2008, Wasson moved to withdraw from his obligation to represent Lugo in state and federal postconviction proceedings pursuant to Fla. Stat. § 27.711. In support of that motion, Wasson stated that he had previously advised Lugo that he was “unwilling” to represent him beyond challenging the denial of postconviction relief in state court, and so the Florida Supreme Court's affirmance of the trial court's denial of the Rule 3.851 motion marked the completion of “all of the work that [he was] willing and able to do on behalf of [Lugo].” Beyond that, Wasson alleged that an actual conflict of interest between himself and Lugo existed because Lugo had filed a bar grievance against him accusing him of misconduct. The State opposed Wasson's motion to withdraw and argued that under Fla. Stat. § 27.711 Wasson's appointment required him to represent Lugo “throughout all postconviction capital collateral proceedings, including federal habeas corpus proceedings until the capital defendant's sentence is reversed, reduced, or carried out, and the attorney is permitted to withdraw from such representation by a court of competent jurisdiction.” SeeFla. Stat. § 27.711(2), (8). On January 22, 2009, the Florida Supreme Court denied Wasson's motion to withdraw and denied Lugo's pro se motion for rehearing.

The Florida Supreme Court issued its mandate on February 10, 2009. The issuance of the mandate ended any statutory tolling period. See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir.2000) (per curiam) (holding that a state postconviction motion remains pending until the mandate issues in the appeal).

On March 9, 2009, in the Florida Supreme Court, Wasson renewed his motion to withdraw, stating that no federal habeas petition had been filed because the relationship between Lugo and Wasson was “so bad” that Lugo refused to cooperate. Wasson re-alleged the existence of an actual conflict based on Lugo's pending bar grievance against him. The Florida Supreme Court denied Wasson's renewed motion...

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