Michael LoRusso v. Secretary, Florida Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 21, 2025
• Docket: 23-12711
• Status: Unpublished

Opinion

USCA11 Case: 23-12711 Document: 48-1 Date Filed: 01/21/2025 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-12711 Non-Argument Calendar ____________________

MICHAEL ANTHONY LORUSSO, Petitioner-Appellant, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees. ____________________

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22-cv-02258-MSS-TGW ____________________ USCA11 Case: 23-12711 Document: 48-1 Date Filed: 01/21/2025 Page: 2 of 4

2 Opinion of the Court 23-12711

Before BRANCH, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: Michael LoRusso, proceeding pro se, appeals the district court’s order appointing counsel to represent him in his habeas cor- pus petition filed under 28 U.S.C. § 2254. He argues that the ap- pointment of counsel violated his constitutional right to self-repre- sentation. We disagree and affirm the district court’s order. We have appellate jurisdiction under the collateral order doctrine to review an order appointing counsel despite a party’s request to proceed pro se. See Devine v. Indian River Cnty. Sch. Bd., 121 F.3d 576, 578–81 (11th Cir. 1997), overruled in part on other grounds by Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). The Sixth Amendment “necessarily implies the right of self- representation” at a criminal trial. Faretta v. California, 422 U.S. 806, 832 (1975); see United States v. Hakim, 30 F.4th 1310, 1321 (11th Cir. 2022). But no such right exists in an appeal, where the convicted defendant, no longer presumed innocent, prosecutes the case. See Martinez v. Ct. of App. of Cal., Fourth App. Dist., 528 U.S. 152, 154, 162–63 (2000). In an appeal, a court has the “discretion to allow” a defendant to “proceed pro se.” See id. at 163 (emphasis added). A section 2254 petition, a collateral appeal, is a type of appeal. So we review for an abuse of discretion a district court’s decision not to permit a section 2254 petitioner to proceed pro se. See id. USCA11 Case: 23-12711 Document: 48-1 Date Filed: 01/21/2025 Page: 3 of 4

23-12711 Opinion of the Court 3

No such abuse occurred here. Federal Rule of Civil Proce- dure 17(c)(2) requires courts to appoint a guardian ad litem or issue “another appropriate order” to “protect a[n] . . . incompetent per- son who is unrepresented in an action.” Section 3006A of Title 18 of the United States Code provides that “[w]henever the . . . [dis- trict] court determines that the interests of justice so require, rep- resentation may be provided for any financially eligible person who . . . is seeking relief under . . . section . . . 2254 . . . of title 28.” 18 U.S.C. § 3006A(a)(2)(B). Here, the district court ordered that LoRusso be appointed counsel—and more specifically, denied his construed motions for reconsideration of its order appointing him counsel—on the basis that he suffered from mental illness and lacked the capacity to rep- resent himself. The record supports the district court’s reasoning. Documents indicated that LoRusso was diagnosed with delusional disorder and housed for several months in an inpatient mental health unit. After the district court directed LoRusso to file a single supplemental memorandum not exceeding twenty pages to help the court rule on his construed motions for reconsideration, he filed dozens of documents containing a host of conspiracy allega- tions involving high-ranking officials from Governor Ron DeSantis to President Donald Trump. The record also reflects that LoRusso has been barred from further pro se filings at all three levels of Flor- ida’s court system due to his frivolous or meritless filings. In light of the record, we cannot say the district court abused its discretion when it appointed counsel to represent LoRusso instead of permit- ting him to proceed pro se. USCA11 Case: 23-12711 Document: 48-1 Date Filed: 01/21/2025 Page: 4 of 4

4 Opinion of the Court 23-12711

Lastly, to the extent that LoRusso’s appellate briefing makes claims on the merits of his section 2254 petition, or that his First Amendment rights were violated by his prosecution, incarceration, or the district court’s appointment of counsel, we decline to ad- dress those challenges: they are either (or both) outside the scope of the appeal before us or abandoned because they are not sup- ported by arguments and authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without sup- porting arguments and authority”). The district court is AFFIRMED.