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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13353
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D.C. Docket No. 2:02-cr-00038-RWS-JCF-1
WILLIAM EMMETT LECROY, JR.,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 16, 2020)
Before WILLIAM PRYOR, Chief Judge, NEWSOM, and LUCK, Circuit Judges.
NEWSOM, Circuit Judge:
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William Emmett LeCroy, Jr. is a federal death-row inmate. The Director of
the Bureau of Prisons has scheduled LeCroy’s execution for September 22, 2020.
LeCroy moved the district court to postpone his execution date by several months
on the ground that two of his three appointed lawyers are currently unable to meet
with him due to circumstances caused by COVID-19. The district court denied the
motion, and LeCroy now appeals.
We hold that neither the district court nor this Court has the authority to
postpone LeCroy’s execution—at least absent a demonstration that a stay is
warranted, a showing that LeCroy has not attempted to make. Moreover, and in
any event, we hold that LeCroy is not entitled to relief on the merits. We therefore
affirm the district court’s ruling.
I
The following facts are undisputed. Less than two months after being
released from prior terms of state and federal imprisonment, LeCroy bound, raped,
and killed Joann Tiesler in Cherry Log, Georgia. United States v. LeCroy, 441
F.3d 914, 918–20 (11th Cir. 2006). After absconding in Tiesler’s car, LeCroy was
captured in Minnesota, just shy of the Canadian border. Id. at 920. In the car,
police found a knife stained with Tiesler’s blood and other evidence related to the
killing. Id. LeCroy was indicted in the United States District Court for the
Northern District of Georgia for taking a motor vehicle by force, violence, and
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intimidation resulting in Tiesler’s death, in violation of 18 U.S.C. § 2119(3). Id. A
superseding indictment added special death-eligibility allegations. Id. At the
conclusion of the sentencing phase, the jury returned a death sentence. Id.
LeCroy was remanded to federal custody at the United States Penitentiary in Terre
Haute, Indiana. Id.
This Court unanimously affirmed LeCroy’s conviction and sentence on
direct appeal, see id. at 918, and the Supreme Court denied his petition for writ of
certiorari, see LeCroy v. United States, 550 U.S. 905 (2007). LeCroy thereafter
moved the district court for the appointment of counsel; the court granted the
motion and appointed John R. Martin and Sandra L. Michaels. LeCroy later filed a
motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The
district court denied the motion, this Court again unanimously affirmed, see
LeCroy v. United States, 739 F.3d 1297 (11th Cir. 2014), and the Supreme Court
again denied LeCroy’s petition for writ of certiorari, see LeCroy v. United States,
575 U.S. 904 (2015). In 2019, the district court appointed LeCroy a third lawyer,
Stephen Ferrell of Federal Defender Services of Eastern Tennessee, Inc.
On July 31, 2020, LeCroy and his attorneys received notice that the Bureau
had set LeCroy’s execution date for September 22, 2020. More than three weeks
later, on August 24, 2020, LeCroy moved to postpone the execution date by
several months—i.e., until sometime in Spring 2021—on the ground that two of
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his three appointed lawyers, Martin and Michaels, were uniquely affected by
COVID-19, could not travel to visit him, and accordingly could not (1) properly
assist in the preparation and filing of a clemency petition and (2) attend his
execution in person.
The district court denied LeCroy’s motion. In short, it concluded that if it
were “amenable to LeCroy’s request and inclined to ‘reset’ or ‘modify’ the date of
execution, granting the requested relief (i.e., continue or postpone execution)
would amount to a stay.” The court further explained that LeCroy could not
invoke the All Writs Act, 28 U.S.C. § 1651, as a means of circumventing the
traditional stay requirements.
LeCroy now appeals.
II
We must first consider the source and scope of the courts’ authority to
postpone LeCroy’s execution date. The Code of Federal Regulations vests the
Bureau Director with broad authority and discretion to set execution dates as an
initial matter:
(a) Except to the extent a court orders otherwise, a sentence of death shall
be executed:
(1) On a date and at a time designated by the Director of the Federal
Bureau of Prisons, which date shall be no sooner that 60 days
from the entry of the judgment of death. If the date designated
for execution passes by reason of a stay of execution, then a new
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date shall be designated promptly by the Director of the Federal
Bureau of Prisons when the stay is lifted[.]
28 C.F.R. § 26.3(a)(1). Section 26.4 further provides:
Except to the extent a court orders otherwise:
(a) The Warden of the designated institution shall notify the prisoner
under sentence of death of the date designated for execution at least
20 days in advance, except when the date follows a postponement
of fewer than 20 days of a previously scheduled and noticed date of
execution, in which case the Warden shall notify the prisoner as
soon as possible.
Here, the Director has set LeCroy’s execution for September 22, 2020. In
his motion, LeCroy sought to postpone that date—in particular, he “ask[ed] that
the Court schedule [his] execution for a date certain in Spring 2021 . . . .” Even so,
LeCroy insisted in the district court—and continues to maintain—that his was “not
a Motion for a Stay of Execution or an Injunction.”
We disagree. Although LeCroy’s motion carefully avoided using the word
“stay”—instead repeatedly asking the district court to “reset” or “modify” his
execution date—LeCroy has failed to explain how his pleading can sensibly be
understood as anything other than a request to stay his execution. As the Supreme
Court has explained, a stay operates by “halting or postponing some portion of the
proceeding, or . . . temporarily divesting an order of enforceability.” Nken v.
Holder, 556 U.S. 418, 428 (2009); see also Stay, BLACK’S LAW DICTIONARY (11th
ed. 2019) (defining “stay” as the “postponement or halting of a proceeding,
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judgment, or the like” and an “order to suspend all or part of a judicial proceeding
or a judgment resulting from that proceeding”). That is precisely the relief that
LeCroy seeks. A stay by any other means is still a stay.
A stay of execution is an equitable remedy that “is not available as a matter
of right.” Hill v. McDonough, 547 U.S. 573, 584 (2006). Rather, under our
precedent, a court may issue a stay of execution “only if [the movant] establishes
that (1) he has a substantial likelihood of success on the merits; (2) he will suffer
irreparable injury unless the injunction issues; (3) the stay would not substantially
harm the other litigant; and (4) if issued, the injunction would not be adverse to the
public interest.” Price v. Comm’r, Ala. Dep’t of Corr., 920 F.3d 1317, 1323 (11th
Cir. 2019) (citations and quotation marks omitted). LeCroy has not even attempted
to satisfy—and indeed, has sworn off—these requirements.
Nor does LeCroy identify any other source of authority—statutory,
regulatory, or otherwise—that would empower a federal court to “reset” or
“modify” his execution date. It is true, as LeCroy says, that 28 C.F.R. §§ 26.3 and
26.4 prescribe a role for the judiciary in setting execution dates. See 28 C.F.R.
§ 26.3(a) (“Except to the extent a court orders otherwise, a sentence of death shall
be executed . . . .”); id. § 26.4 (“Except to the extent a court orders otherwise . . .
.”). As does the Bureau of Prisons Execution Protocol. See Department of Justice,
Bureau of Prisons Execution Protocol 5 (2004) (“If the execution date is set by a
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judge, the Warden will notify the condemned individual, in writing, as soon as
possible.”). It may well be, as LeCroy asserts, that both these regulations and the
Protocol reflect an understanding that courts historically played some concurrent
role in—had some shared responsibility for—setting execution dates in the first
instance. Cf. United States v. Lee, No. 4:97-cr-00243, 2020 WL 3921174, at *3
(E.D. Ark. July 10, 2020). And at the very least, the regulations and the Protocol
sensibly recognize—as they must—a court’s authority to stay or enjoin a scheduled
execution. But we are confident that they do not vest courts with a free-floating,
standardless reservoir of authority to postpone an already-scheduled execution,
free and clear of the traditional stay standard. If they did, no death-sentenced
inmate would ever again go to the trouble of trying to satisfy the stay factors. That
cannot be the law.
Nor does the All Writs Act, which LeCroy invokes alongside §§ 26.3 and
26.4 and the Protocol, independently authorize a federal court to modify his
execution date—independently, we mean, of a showing that the traditional stay
factors have been satisfied. The Act establishes that “[t]he Supreme Court and all
courts established by Act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). This Court, though, has carefully confined the Act’s
office to “extraordinary circumstances.” United States v. Machado, 465 F.3d
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1301, 1308 (11th Cir. 2006), overruled on other grounds by United States v. Lopez,
562 F.3d 1309, 1311 (11th Cir. 2009). Moreover, the Act does not absolve LeCroy
of his responsibility to make the showing necessary to obtain a stay. See Dunn v.
McNabb, 138 S. Ct. 369, 369 (2017) (observing that the All Writs Act “does not
excuse a court from making” injunction- or stay-related related findings); see also
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) (“Under
our circuit law, the All Writs Act cannot be used to evade the requirements for
preliminary injunctions.”).1
LeCroy has not even attempted to satisfy the requirements necessary to stay
his execution—even temporarily—and he has identified no authority that would
otherwise permit a federal court to “reset” or “modify” his execution date.
Accordingly, we hold that the district court correctly concluded that it lacked the
authority to postpone LeCroy’s execution.2
1
LeCroy separately argues that the All Writs Act protects the court’s jurisdiction under 18
U.S.C. § 3599 to appoint counsel. We disagree. Section 3599 does not imbue the court with
continuing authority or jurisdiction that the Act may then be invoked to protect. See Baze v.
Parker, 632 F.3d 338, 346 (6th Cir. 2011) (“Because the only jurisdictional power granted to the
district court by section 3599 is the power to appoint attorneys and oversee the release of federal
funds to those attorneys, the relief that Baze seeks here is not ‘in aid of’ the district court’s
preexisting jurisdiction under section 3599 and is thus outside the scope of the All Writs Act.”).
2
Even if LeCroy’s request were more properly viewed as a request for an injunction, rather than
a stay, the same result would obtain. LeCroy must still satisfy the traditional requirements for
obtaining an injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A
preliminary injunction is an extraordinary remedy never awarded as of right.”); Swain v. Junior,
961 F.3d 1276, 1284 (11th Cir. 2020) (same). The All Writs Act does not excuse LeCroy from
satisfying these requirements. Schiavo, 403 F.3d at 1229.
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III
LeCroy is not entitled to the relief he seeks, in any event. Before the district
court and in this Court, LeCroy has asserted two grounds for postponing his
execution: (1) two of his three appointed lawyers are currently unable to meet with
him face-to-face to assist in the preparation and filing of a clemency petition; and
(2) two of his three appointed lawyers are currently unable to be on hand in person
to witness his scheduled execution.
As an initial matter, we reiterate our “consistent[ holding] that there is no
federal constitutional right to counsel in postconviction proceedings.” Barbour v.
Haley, 471 F.3d 1222, 1227 (11th Cir. 2006). Nor (for better or worse) does the
Constitution guarantee a condemned inmate the right to have his lawyer present at
his execution. If LeCroy is entitled to relief, therefore, it must be on the basis of
some statute or regulation.
Before the district court, LeCroy first asserted that he had a statutory right to
assistance with his clemency petition under 18 U.S.C. § 3599(e). That statute
provides that appointed counsel
shall represent the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial proceedings, trial,
sentencing, motions for new trial, appeals, applications for writ of
certiorari to the Supreme Court of the United States, and all available
post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also
represent the defendant in such competency proceedings and
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proceedings for executive or other clemency as may be available to the
defendant.
18 U.S.C. § 3599(e) (emphasis added). The problems for LeCroy are (1) that
nothing in § 3599(e) specifies in-person representation and (2) that, despite the
heightened risks that COVID-19 poses for two of his three appointed lawyers, he
still has ready access to the “represent[ation]” that § 3599(e) contemplates. Not
only can LeCroy avail himself of unmonitored telephone calls and face-to-face
videoconferences with all three of his lawyers, but he can also meet with one of
them, Ferrell, in person at the prison.3
Both before the district court and in this Court, LeCroy has separately
pointed to 18 U.S.C. § 3596(a) in support of his argument that his attorney must be
on hand to personally witness his execution. Section 3596(a) states that an
execution shall be implemented “in the manner prescribed by the law of the State
in which the sentence is imposed.” This provision, LeCroy contends, incorporates
Ga. Code Ann. § 17-10-41, which states that “the convicted person may request the
presence of his or her counsel.” In support of this argument, LeCroy cites In re
Federal Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir.
2020).
3
Nothing in the record indicates that COVID-19 poses any unique (or even heightened) risk to
Ferrell.
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Although the separate opinions in Execution Protocol Cases posit varying
interpretations of § 3596(a), even the dissenting opinion there—which embraced
the most capacious reading—acknowledged that § 3596(a) requires the Bureau to
follow only those state execution procedures that “effectuat[e] the death, . . .
including choice of lethal substances, dosages, vein-access procedures, and
medical-personnel requirements.” Id. at 151 (Tatel, J., dissenting) (alterations and
citations omitted). Other circuits have interpreted § 3596(a) in a similarly (if not
more) restrictive manner. See, e.g., United States v. Mitchell, No. 20-99009, 2020
WL 4815961, at *2–3 (9th Cir. Aug. 19, 2020); Peterson v. Barr, 965 F.3d 549,
554 (7th Cir. 2020) (“We do not understand the word ‘manner’ as used in
§ 3596(a) to refer to details such as witnesses. The word concerns how the
sentence is carried out, not who watches.”). We needn’t decide today precisely
what the phrase “in the manner prescribed by the law of the State in which the
sentence is imposed” entails—whether it refers only to top-line methods, execution
procedures more generally, etc. Whatever that phrase means, we are confident that
it does not extend to ensuring a lawyer’s presence at execution.
Accordingly, we hold that even if this Court had the authority to postpone
LeCroy’s execution date absent a showing that a stay is warranted, LeCroy is not
entitled to relief on the merits.
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IV
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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