Lecroy v. United States, No. 20-13353

• Citation: 975 F.3d 1192
• Decision Date: 16 September 2020
• Docket Number: No. 20-13353
• Parties: William Emmett LECROY, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

975 F.3d 1192

William Emmett LECROY, Jr., Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-13353

United States Court of Appeals, Eleventh Circuit.

September 16, 2020

Scott A.C. Meisler, U.S. Attorney General's Office, Washington, DC, Jane Swift Borucki, Carolyn Cain Burch, Jane Elizabeth McBath, Roger Queen, U.S. Attorney's Office, Atlanta, GA, Paul T. Crane, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee

John Richard Martin, Martin Brothers, PC, Atlanta, GA, Stephen Ferrell, Federal Defender Services of Eastern Tennessee Inc., Capital Habeas Unit, Knoxville, TN, Sandra Michaels, Sandra Michaels, Attorney at Law, Atlanta, GA, for Defendant-Appellant

Before WILLIAM PRYOR, Chief Judge, NEWSOM, and LUCK, Circuit Judges.

NEWSOM, Circuit Judge:

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 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, 127 S.Ct. 2096, 167 L.Ed.2d 816 (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, 135 S.Ct. 1528, 191 L.Ed.2d 561 (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 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 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ; see also Stay, BLACK'S LAW DICTIONARY (11th ed. 2019) (defining "stay" as the "postponement or halting of a proceeding, 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, 126 S.Ct. 2096, 165 L.Ed.2d 44 (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 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 1301, 1308 (11th Cir. 2006), overruled on other grounds by United States v. Lopez , 562 F.3d 1309, 1311 (11th Cir. 2...