*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit

No. 94-4597.

Bobby Earl LUSK, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Secretary, Florida Department of

Corrections, Respondent-Appellee.

May 15, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-2620 CIV-SM), Stanley Marcus, Judge.

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
 1

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withdrawn on June 29, 1977. 

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, --- 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 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, --- 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 his 1977 conviction, through due diligence, Lusk or his

various lawyers should have known about the competency issue. In
 2

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. 

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 resulting from the

default, or at a minimum, he has raised issues 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.