Lonchar v. Turpin

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. § 2254

petition 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.