Lonchar v. Thomas, 95-8821

• Citation: 58 F.3d 590
• Decision Date: 29 June 1995
• Docket Number: No. 95-8821,95-8821
• Parties: Larry Grant LONCHAR, Petitioner-Appellee, v. Albert G. THOMAS, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 590

58 F.3d 590

Larry Grant LONCHAR, Petitioner-Appellee, v. Albert G. THOMAS, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant.

No. 95-8821.

United States Court of Appeals Eleventh Circuit.

June 29, 1995.

Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., State of Ga., Atlanta, GA, for appellant.

John Matteson, Office of John Matteson, Atlanta, GA, Clive Stafford Smith, Office of Clive Stafford Smith, New Orleans, LA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

PER CURIAM:

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 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. Sec. 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, 58 F.3d 588 (11th Cir.1995). The U.S. Supreme Court denied certiorari. Lonchar v. Thomas, --- U.S. ----, 115 S.Ct. 2604, 132 L.Ed.2d 878 (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. Sec. 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. Sec. 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 Sec. 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, 654, 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 Sec. 1983 action, Harris seeks an equitable remedy." Id. at 653-54, 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...