Lonchar v. Turpin , 58 F.3d 590 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-8821.
Larry Grant LONCHAR, Petitioner-Appellee,
v.
Albert G. THOMAS, Warden, Georgia Diagnostic and Classification
Center, Respondent-Appellant.
June 29, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:95-CV-1656-JTC), Jack T. Camp, Judge.
Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.
BY THE COURT:
Albert Thomas, warden of the Georgia Diagnostic and
Classification Center, has filed an emergency motion to vacate the
district court's indefinite stay of the execution of Larry Grant
Lonchar. Lonchar has responded to the motion. For the reasons
given below, we vacate the stay.
I. Procedural History
An explanation of our ruling must begin with a review of the
procedural history of Lonchar's case.1 Lonchar's conviction for
murder and sentence of death were affirmed on direct appeal in July
1988, and the Supreme Court denied certiorari in January 1989.
Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988), cert. denied,
488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 808 (1989). Lonchar
refused to file a collateral attack on his own, and his execution
was scheduled for March 1990. His sister, Chris Kellogg, then
1
This procedural history is taken from records on file in
this court from this and prior proceedings.
petitioned a Georgia superior court for habeas corpus. Finding
Lonchar competent to bring a petition on his own, the superior
court dismissed the petition for lack of standing. The Georgia
Supreme Court denied a certificate of probable cause to appeal the
decision. Kellogg v. Zant, 260 Ga. 182, 390 S.E.2d 839, cert.
denied, 498 U.S. 890, 111 S.Ct. 231, 112 L.Ed.2d 191 (1990).
Lonchar's sister then filed a 28 U.S.C. § 2254 petition in federal
district court. Finding after a full evidentiary hearing that
Lonchar was competent, the district court dismissed the petition
for lack of standing, and this court affirmed. Lonchar v. Zant,
978 F.2d 637 (11th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 1378, 122 L.Ed.2d 754 (1993). Lonchar opposed the petition
and so stated before the federal district court.
Following the failure of his sister's petitions, the State
scheduled Lonchar's execution for February 24, 1993. That day,
Lonchar consented to the filing of a petition for habeas corpus in
his own name in Georgia superior court. The superior court stayed
the execution. A few months later, Lonchar sought to dismiss the
petition. Finding Lonchar competent to waive his rights, the
superior court dismissed the petition without prejudice. The
Georgia Supreme Court denied Lonchar's attorneys' motion for
certificate of probable cause to appeal.
On June 8, 1995, an execution order was entered for Lonchar's
execution between noon Friday, June 23, 1995 and noon Friday, June
30, 1995. The execution was scheduled for 3:00 P.M., June 23,
1995. On June 20, 1995, Lonchar's brother, Milan Lonchar, Jr.,
sought habeas relief on Lonchar's behalf. After a hearing at which
Lonchar declared his opposition to the petition and his wish to
die, the Georgia superior court found Lonchar competent and
dismissed the petition for want of standing. Lonchar v. Thomas,
No. 95-V-128 (Super.Ct.Butts County June 21, 1995). The Georgia
Supreme Court denied Lonchar's brother a certificate of probable
cause to appeal. Lonchar's brother was similarly unsuccessful in
federal district court. Lonchar v. Thomas, No. 1:95-CV-1600-JTC
(N.D.Ga. June 22, 1995). On June 23, this court denied a
certificate of probable cause to permit his brother to appeal the
dismissal. Lonchar v. Thomas, No. 95-8799, --- F.3d ---- (11th
Cir. June 23, 1995). The U.S. Supreme Court denied certiorari.
Lonchar v. Thomas, No. 94-9773, --- U.S. ----, --- S.Ct. ----, ---
L.Ed.2d ---- (U.S. June 23, 1995).
On June 23, however, the day his execution was scheduled,
Lonchar again—as he had on the day of his scheduled execution in
1993—consented to the filing of a petition for habeas corpus in his
name and a complaint under 42 U.S.C. § 1983. The Butts County
Superior Court temporarily stayed the execution. At a hearing in
Butts County, Lonchar informed the judge that he did not want a
writ of habeas corpus. (Tr. of 6/23/95 hr'g at 6-7.) Lonchar
explained that he still wished to be executed, but he hoped to
delay the execution long enough for the Georgia legislature to
consider changing Georgia's method of execution from electrocution
to lethal injection, so that Lonchar could donate his organs.
(Id.) The state court dismissed the habeas petition on June 26,
1995, essentially finding that it was an abusive writ brought for
manipulative purposes. Lonchar v. Thomas, Nos. 95-V-332, 335
(Super.Ct.Butts County June 26, 1995). On June 27, the Supreme
Court of Georgia denied Lonchar's application for a certificate of
probable cause to appeal the dismissal. Lonchar v. Thomas, Nos.
S95R1545, S95M1512 (Ga. June 27, 1995).
Lonchar's execution was rescheduled for 3:00 P.M. June 28,
1995. On June 27, Lonchar filed in his own name a 28 U.S.C. § 2254petition in the district court. The State moved to dismiss the
petition. The district court first temporarily stayed the
execution to consider the State's motion; later on June 28 the
court entered an indefinite stay to reach the merits of the
petition. Lonchar v. Thomas, No. 1:95-CV-1656-JTC (N.D.Ga. June
28, 1995). In the order granting the stay, the district court
found that Lonchar has twice waited until the day of
execution—despite having ample time before—to seek relief. The
court also found that Lonchar not only neglected to seek relief,
but explicitly refused in open court to do so. Finally, based on
Lonchar's statement at the hearing on Lonchar's petition, the court
found that
[Lonchar's] purpose in asserting the claims is not to obtain
a review of the constitutionality and possible errors in his
sentence. His sole purpose in asserting the claims is to
delay his execution so that the method of execution may be
changed to allow him to donate his organs upon death.
(Order at 7.)
The district court concluded that Lonchar's conduct was an
abuse of the writ. However, because this § 2254 petition is
Lonchar's first, the court felt constrained by this court's
precedent to deny the State's motion to dismiss for abuse of the
writ. The court therefore denied the motion and granted a stay of
execution. The State now moves this court to vacate that stay.
II. Discussion
The writ of habeas corpus is governed by equitable
principles, and the petitioner's conduct may thus disentitle him to
relief. Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068,
1078, 10 L.Ed.2d 148 (1963); Gunn v. Newsome, 881 F.2d 949, 954
(11th Cir.1989) (en banc). Even when the petitioner follows
procedural rules, the writ comes at a cost to finality and state
sovereignty. McCleskey v. Zant, 499 U.S. 467, 496, 111 S.Ct. 1454,
1469-70, 113 L.Ed.2d 517 (1991). A petitioner's willful delay and
manipulation of the judicial system exacerbate this cost. Thus,
[e]quity must take into consideration the State's strong
interest in proceeding with its judgment and [the
petitioner's] obvious attempt at manipulation.... A court may
consider the last-minute nature of an application to stay
execution in deciding whether to grant equitable relief.
Gomez v. United States Dist. Court, 503 U.S. 653, ----, 112 S.Ct.
1652, 1653, 118 L.Ed.2d 293 (1992). This is the case even apart
from the subsequent-petition doctrine of abuse of the writ embodied
in Rule 9 of the Rules Governing Section 2254 Petitions and
addressed by McCleskey. The Gomez court made this clear: "Even if
we were to assume ... that [the petitioner] could avoid the
application of McCleskey to bar his claim, we would not consider it
on the merits. Whether his claim is framed as a habeas petition or
§ 1983 action, Harris seeks an equitable remedy." Id. at ----, 112
S.Ct. at 1653. The equitable remedy of habeas therefore carries
with it equitable doctrines, including the possibility that a
petitioner's egregiously abusive conduct can bar relief even if it
is the first time he seeks such relief.
The district court acknowledged these principles, but it
believed that Davis v. Dugger, 829 F.2d 1513 (11th Cir.1987),
controlled the result in this case. We disagree. Even assuming
that Davis remains good law after Gomez, it does not govern this
case. In Davis, the State contended that the filing of a petition
on the eve of execution by itself constituted an abuse of the writ.
This court held "only that the fact that a scheduled execution is
imminent does not itself create a basis for dismissing the petition
as an abuse of the writ." Id. at 1521. The court based its
holding exclusively on Rule 9 of the Rules Governing Section 2254
Cases; the court did not consider whether equitable doctrines
independent of Rule 9 permit a court to refuse to tolerate
egregious abuse.2
Based on the principles of equity and the caselaw cited
above, we view this case as one in which Lonchar has abused the
writ. We need not be detained, however, by a debate over whether
this case is properly characterized as one involving an abuse of
the writ or simply a case involving abusive conduct and misuse of
the writ. However the case is characterized, the district court
findings show that Lonchar does not merit equitable relief. First,
2
Davis in fact presented no case of egregious abuse.
Although over a year passed between the U.S. Supreme Court's
denial of certiorari on the direct appeal and Davis's first state
collateral attack and § 2254 petition, this one-year delay was
well within Florida's statute of limitations on state collateral
relief. Davis, 829 F.2d at 1520 n. 18. Furthermore, Davis had
not been totally inactive; he had petitioned the state for
clemency. Id. at 1520. The last-minute filing in Davis appeared
to result more from Florida's conduct in scheduling an execution
before Davis had an opportunity to seek collateral relief than
from Davis's willful refusal to seek relief, as is the case here.
Lonchar has offered no good reason for his six-year refusal to
pursue and exhaust his state collateral remedies and file a federal
petition. Second, Lonchar presents no good excuse for his
manipulative practice of consistently waiting until his day of
execution to seek relief. Finally, Lonchar does not explain why
this court should entertain a habeas petition that is explicitly
brought to delay his execution, not to vindicate his constitutional
rights. As was the case in Gomez, "abusive delay ... has been
compounded by last-minute attempts to manipulate the judicial
process." Id.
III. Conclusion
The district court granted a stay of execution based on the
erroneous conclusion that it could not dismiss the petition for
Lonchar's abusive conduct. Because its granting of the stay was
thus based on an erroneous determination of law, it was necessarily
an abuse of discretion. Jones v. International Riding Helmets,
Ltd., 49 F.3d 692, 694 (11th Cir.1995). We accordingly VACATE the
stay of execution.
Our mandate shall issue at 5:00 P.M. Eastern Daylight Time
today.
STAY VACATED.