Lusk v. Singletary
112 F.3d 1103 · 1997 U.S. App. LEXIS 11313 · 1997 WL 212193
May 15, 1997 · Docket 94-4597
Headnotes
Generated summaries- Headnote 1
Under Florida Rule of Criminal Procedure 3.850(b), a post‑conviction motion must be filed within two years after a non‑capital judgment becomes final (or within one year after a capital judgment) unless an exception applies.
The Court quoted the text of Rule 3.850(b) that sets the filing deadlines and outlines the two statutory exceptions to the time limits.
- Headnote 2
The first exception to the procedural bar requires the petitioner to prove that the factual basis of the claim was genuinely unknown to him (or counsel) and that ordinary diligence would not have uncovered those facts.
Lusk argued the unknown‑facts exception; the opinion explained that to qualify, the petitioner must demonstrate both ignorance of the facts and the impossibility of discovering them through reasonable diligence.
- Headnote 3
The Court found Lusk’s attorneys knew of the competency determinations and that the reports were before the court, so the petitioner could not claim the facts were unknown.
- Headnote 4
To excuse a procedural default and obtain federal habeas review, a petitioner must show both (a) cause—a legitimate reason such as lack of knowledge or inability to act with reasonable diligence—and (b) prejudice—a showing that the defaulted claim would likely have changed the outcome.
The opinion applied the cause‑and‑prejudice test, noting that both elements are required to overcome the procedural bar and permit federal review.
- Headnote 5
The Court stated that the procedural‑bar analysis is a mixed question and thus subject to de novo review, citing Tower v. Phillips.
- Headnote 6
The opinion affirmed that an evidentiary hearing is not required for the procedural‑bar determination, relying on Walker v. Davis.
- Headnote 7
Under Florida Rule of Criminal Procedure 3.850(b), a post‑conviction claim must be filed within two years after a non‑capital judgment becomes final (or one year after a capital judgment) unless an exception applies.
Lusk filed his Rule 3.850 motion more than two years after his 1977 conviction, triggering the statutory time limit and creating a procedural bar absent a valid exception.
- Headnote 8
The first exception to Rule 3.850(b) is available only when the factual basis of the claim was genuinely unknown to the petitioner (or counsel) and could not have been discovered through the exercise of ordinary diligence.
Lusk attempted to rely on this exception for his competency‑to‑stand‑trial claim, arguing the facts were unknown and undiscoverable.
- Headnote 9
Lusk’s lawyer at trial was aware of the three psychiatric reports finding him competent, and subsequent counsel never raised the issue, showing the facts were not unknown.
- Headnote 10
To overcome a state procedural bar, a petitioner must demonstrate both (a) cause—a legitimate reason for the default such as lack of knowledge or inability to act with reasonable diligence—and (b) prejudice—a showing that the defaulted claim would likely have changed the outcome.
Lusk argued he had cause and prejudice despite the procedural bar, but the court found no such showing.
- Headnote 11
The Eleventh Circuit examined the district court’s findings on the procedural bar and the cause‑and‑prejudice analysis as mixed questions subject to de novo review.
- Headnote 12
The court affirmed the district court’s denial of habeas relief without holding an evidentiary hearing, finding the record sufficient to support its factual conclusions.
- Headnote 13
Lusk filed his competency‑to‑stand‑trial motion more than two years after his 1977 conviction. The court found he had continuous representation and the competency reports were in the record, so the unknown‑facts exception was unavailable.
- Headnote 14
To overcome a state procedural default, a petitioner must demonstrate both (a) cause—a legitimate reason such as lack of knowledge or inability to act with reasonable diligence—and (b) prejudice—a showing that the claim, if proven, would likely have changed the outcome.
Lusk argued that his default should be excused, but the court concluded that he did not show either cause or prejudice, given the competency reports and the unlikelihood that a different result would have ensued.
- Headnote 15
The Eleventh Circuit reviewed the district court’s procedural‑bar finding and its cause‑and‑prejudice analysis without deference, applying the de novo standard articulated in Tower v. Phillips and Macklin v. Singletary.
- Headnote 16
The court affirmed the district court’s denial of Lusk’s habeas petition without ordering an evidentiary hearing, finding the record sufficient to support its factual conclusions.
- Headnote 17
Florida Rule of Criminal Procedure 3.850(b) bars a post‑conviction claim unless filed within two years after a non‑capital judgment becomes final, or one year after a capital judgment, unless an exception applies.
The rule’s time limits were central to Lusk’s claim, as his Rule 3.850 motion was filed more than two years after his 1977 conviction, triggering the procedural bar.
- Headnote 18
Failure to file a Rule 3.850 motion within the applicable two‑year (non‑capital) or one‑year (capital) deadline results in a procedural bar that precludes federal habeas review absent a qualifying exception.
Lusk missed the two‑year filing deadline for his competence claim; the court held this missed deadline alone barred his petition because he could not satisfy the unknown‑facts exception.
- Headnote 19
Under Florida Rule of Criminal Procedure 3.850(b), a post‑conviction claim is barred unless filed within two years after a non‑capital judgment becomes final (or one year after a capital judgment) unless the movant meets one of two statutory exceptions.
Lusk filed his Rule 3.850 motion more than two years after his 1977 conviction and tried to rely on the first exception, but the rule sets strict filing deadlines with limited exceptions.
- Headnote 20
To qualify for the first exception to the procedural bar, a petitioner must show the factual basis of the claim was genuinely unknown to him (or counsel) and could not have been discovered through the exercise of ordinary diligence.
The court required Lusk to prove that the competency‑to‑stand‑trial facts were unknown and that reasonable diligence would not have uncovered them before the deadline.
- Headnote 21
Lusk’s counsel at trial knew of the three psychiatric reports finding him competent, and none of his later attorneys raised the competency issue, showing the facts were not unknown.
- Headnote 22
A petitioner must demonstrate both cause—a legitimate reason for the default such as lack of knowledge or inability to be diligent—and prejudice—that the defaulted claim would likely have changed the outcome—to overcome a procedural bar.
Lusk argued he had cause and prejudice, but the court found no evidence that his competency claim, if successful, would have altered his sentence.
- Headnote 23
The Eleventh Circuit treats the procedural‑bar issue and the cause‑and‑prejudice inquiry as mixed questions, applying de novo review rather than deferential standards.
- Headnote 24
The court affirmed the district court’s denial of habeas relief without an evidentiary hearing because the record sufficiently supported the finding that Lusk lacked both cause and prejudice.
Opinion
The appeEant, Bobby Earl Lusk, appeals the district court’s ruling that he is not entitled to habeas corpus rehef 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 Efe sentences on the robberies.
Lusk appealed his conviction ehaEenging 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 Ms 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 demed 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 tMs 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 demed 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 tMs rule if filed more than 2 years after the judgment and sentence becomes final m a noncapital ease or more than 1 year after the judgment and sentence become final in a capital case in wMch 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 Ms 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 Ms 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 resultmg from the default, or at a minimum, he has raised is sues 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 federal habeas corpus review of Lusk’s claims.
AFFIRMED.
. . 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.
. . 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.