Reply Brief — Jackson v. Jones

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED, pre rae

IN THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

- y

LARRY GRANT LONCHAR,

Petitioner-"Appellee"

-Vs-

WALTER ZANT, Warden,

Georgia Diagnostic and

Classification Center,

Respondent~-"Appellant"

REPLY IN OPPOSITION TO

RESPONDENT~-"APPELLANT'S" CHALLENGE

TO STAY ENTERED BY JUDGE CAMP

Petitioner, Larry Grant Lonchar, by his undersigned counsel,

believing that his case has merit and raises substantial constitu-

tional questions, hereby opposes the application to vacate the stay

———

entered by Judge Camp that was entered at 9:48 P-m., on June 29,

1995.

I. WHILE THE WARDEN HAS FILED A "NOTICE OF

APPEAL” THE ISSUES BEFORE THE LOWER COURT ARE

The Warden, while he is referred to as "Appellant",/ is

askin ris Court to vacate the stay of execution entered by Judge

i The inverted commas are used since, although he has filed

a “Notice of Appeal," Warden Thomas may not legitimately bring an

appeal to this Court. The only jurisdictional basis for seeking

relief from the lower court ruling at this juncture is through a

motion to vacate the stay of execution.

Camp after the hearing held yesterday afternoon. It is clear that

“his Court dces not have jurisdiction te entertain an appeal, as

such, and that the Warden's application may only be entertained as

a motion to vacate the stay.

Jurisdicts

The District Court's Order denying the state's motion to

dismiss on abuse of writ grounds does not constitute an appealable

“final” order, and this Court cannot consider the Warden's notice

of appeal for lack of jurisdiction. See F.R.A.P. 3 & 5; 28 U.S.C.

$§ 1291 & 1292(b). Pursuant to 28 U.S.C. § 1291, only “final

decisions" of the district court may be appealed to the Court of

Appeals. "A ‘final decision' generally is one which ends the

litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233

(1945). In this case, the District Court's order denying the

state's motion to dismiss begins the litigation of the merits of

this case in federal court.

Instead, the denial of the motion to dismiss on abuse of writ

grounds is an issue suitable only for interlocutory appeal, which

may not be granted in the absence of a statement from the District

Court under 28 U.S.C. § 1292(b). No such statement has been sought

by Respondent or conferred by the District Court, and the District

Court has effectively acknowledged that there is no "substantial

ground for difference of opinion," 28 U.S.C. § 1292(b), since

neither the Court nor counsel have found a case where abuse of writ

has been applied to a dismiss a first federal habeas petition.

z

II. THE ONLY ISSUE PROPERLY BEFORE THIS COURT Is

THE PATENT PROPRIETY OF JUDGE CAMP'S STAY

ORDER

The only question before this Court is whether a stay is

appropriate. Because of the obviously drastic results of the

denial of a stay, and the relatively insignificant prejudice to the

State when a stay is granted, the burden now rests upon the Warden

to “demonstrate that the issues {presented in the petition] are

{not}) debatable among jurists of reason," or that the issues

presented "are [not] ‘adequate to deserve encouragement to proceed

further.'" Barefoot yv. Estelle, 463 U.S. 880, 893 n.4 (1983)

(citations omitted).

The Warden has simply cited no case that comes close to

suggesting that Mr. Lonchar should be denied a stay. The "novel"

rule of habeas corpus litigation proposed by the Warden essentially

asks this Court to spontaneously and judicially create a bar to

habeas corpus relief that goes far beyond Rules 9(a) and 9(b) to

the Rules Governing Habeas Corpus Actions. This bar would be one

that has no precedent in the law, and that was never announced to

Larry Lonchar as a litigant to give him fair notice of the hidden

barrier reef that might sink his entirely legal ship.

The record indicates that Larry Lonchar has been told by State

Court Judge Connelly, by Federal District Judge Camp, by counsel

and--periodicelly--by vouusel Cur Lhe warden? that relier woulda be

2 counsel for the Warden seemed to shift another position

yesterday announcing that no such assurance had been made with

respect to federal court. However, in state court counsel

announced that there had been no "specific waiver on the record in

any particular proceeding." (6/23/95 Hrg. at 21) (emphasis

supplied) To the extent that counsel now argues that there was

available should he elect to proceed with his appeals. It would be

Su Jomertally inequitable to create a novel rule now in the heat of

the moment that would result in the execution of Larry Lonchar

within hours.

A. THERE HAS BEEN NWO DISCUSSION OF RULE 9(A),

There have been some shifting sands in the position taken by

the Warden, as it has become apparent that each argument is without

merit. It is true that all along the State has not relied on Rule

9(a) in arguing to vacate the stay.? Now, after recognizing that

Rule 9(b) is also facially inapplicable,* the warden has backed

off this argument also.

We are now reduced solely to a novel propositian that there

such a waiver in federal court, counsel apparently refers to the

prior federal proceedings where Judge Camp discussed the

possibility of Mr. Lonchar's "waiv[{ing]} any appeals on {his} behalf

in federal court or otherwise.” (11/14/91 Hrg. at 437) (emphasis

supplied) It would seem that this would, were it really a waiver,

operate in both state and federal court. However, it would seem

still clearer that there was no such waiver since Judge Camp went

on to advise Mr. Lonchar that "you can change you mind up until the

time, of course, sentence is executed, and bring a petition for

habeas corpus." Id. at 443.

> It is important to note that the State has not even

attempted to prove the requisite prejudice to meet the requirements

of Rule 9(a) and that issue is simply not before the Court at this

time. See State's Motion to Dismiss, at 24 (requesting a hearing on

prejudice if the question of Rule 9(a) is deemed to have any

merit). For reasons set out below, it is clear that no such

showing of prejudice could be made.

4 The pleadings from the District Court have been lodged with

this Court and Petitioner will not reiterate all of them. Suffice

it to say that reasonable jurists could not differ that under

current law Rule 9(b) has no application to this case.

Ly.

should be another judicial exception to the right to habeas corpus

relief, based on the Warden's amorphous “principies of equity." See

Warden's Motion, at 9. The Warden concedes "the unavailability of

a case directly on point." Jd. In fact, the Warden does not

suggest a case peripherally on point, but cites only to cases that

deal with Rule 9(b).

Not only have no jurists yet announced such a proposition, but

any such "rule, it has been suggested, would risk violating the

constitutional provision forbidding suspension of the writ except

in times of war or rebellion." Liebman, FEDERAL HABEAS CORPUS

PRACTICE AND PROCEDURE, at 702-03 (1994) (citing authorities); id.

at 181 n.66 (quoting Alexander Hamilton); Aiken v. Spalding, 684

F.2d 632, 633 (9th Cir. 1982) ("({ljiberal construction [of Rule

9(a)}) also avoids a confrontation with the Suspension Clause of

Art. I, § 9, of the United States Constitution).

Certainly, there is no authority to vacate a stay under

circumstances such as these.

Although he has now abandoned his Rule 9(b) arguments, the

Warden seems to be arguing that Larry Lonchar achieved some

"strategic or tactical advantage" by filing his federal habeas

petition within minutes of the denial of his state proceedings. If

this were true, Larry Lonchar would be an inadequate strategician,

or a bad tactician. |

Larry Lonchar's case was affirmed on direct appeal on July 13,

Ss

1988. See Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988),

rt. 2.5323, 488 U.S. 1019 (1989). There are a tetal of sixteen

inmates on Georgia's Death Row whose death sentences were affirmed

prior to that date, and who are not in federal court. There are a

total of 36 inmates (one of whom has two death sentences from

separate trials) on Georgia's Death Row who have had their death

sentences affirmed on direct appeal since that date, and pone is in

federal court. It is clear, then, that Larry Lonchar's actions

have not only failed to prejudice the State by delaying his

litigation, but they have resulted in the most expeditious

consideration of any person currently in Warden Thomas’ custody.

It is very clear that Larry Lonchar has neither intended to

secure such an advantage, nor has he in fact done so.

C. WHILE LARRY LONCHAR'S MOTIVATION IN FILING

A PEDERAL PETITION IS NOT RELEVANT TO THIS

DECISION, IT IS CLEARLY NOT THE CASE THAT

HE ONLY INTENDS TO PURSUE THE CHANGE IN

METHOD OF EXECUTION

The unrebutted testimony in the lower court was that Larry

Lonchar had finally seen that his litigation could achieve broader

purposes than to save his own life, so he had agreed to litigate

all issues presented:

Q. Let me ask you this, Mr. Lonchar. You,

your attorneys, have filed a ition in court

that contains 59 pages, you signed the

verification that you have personal knowledge

of the allegations in the Petition for Writ of

Habeas Corpus, and that they are true and

correct, and that you seek the relief

requested in there. Did you sign that

verification, I assume?

A. Yes, Your Honor.

o * *

©

Q. Now, I understand your point with r

to the question of the manner of aumell os

that you can donate your organs, that's the

point you were making to me a moment ago; is

that correct?

A. That's correct.

Q. Now, a great deal of the petition goes far

beyond that, and alleging irregularities and

violations of your rights that would affect

both your sentence and conviction and your

sentence of execution in a ior state court

proceeding. It is your w to pursue those

Cclains Lerye 4 @ petition for Federal Habeas

Corpus Relie Do you understand my question.

A. Yes, Your Honor. Personally, I have to

agree that I have to pursue this position to

follow on what I would like to do, so I would

have to say to the Court that, yes, I do.

(F.H.T. at 18-19)

Judge Camp felt that Mr. Lonchar’s major motivation behind his

litigation was to use his case as a vehicle for systemic change, to

abolish the Electric Chair and provide inmates on Death Row with an

option to save other lives, if in fact their executions could not

be averted. Judge Camp explicitly did pot find, however, that this

vitiated the good faith with which the rest of the petition was to

be litigated.

While the Warden adverts to this in passing, it should be

emphasized that Larry Lonchar's motives in litigating all the

issues in his case are not relevant to what the outcome will

actually be. On the face of the petition, it would probably be

true to say that he has more chance of winning the challenge to his

conviction than to change the method of execution.®

5 That is not to say, of course, sam Samgiead 6 etviee what

pending litigation could precipitate political change would

false. However, clear precedent from this Court indicates that Mr.

3

It is true, but entirely irrelevant to the merits of the

cinime, thet Larry Lonchar filed his 1552 state habeas petition to

avoid his brother's suicide. (F.H.T. at 19) Now, one precipitant

for Mr. Lonchar going along with his appeals is that he sees some

chance that his litigation will help others, "all of these people's

lives involved. .. ." (F.H.T. at 21) In another case, it might be

that a petitioner believed that his mother would be happy at his

pursuing his appeals. In another case, his motivation might be his

desire to watch the N.B.A. finals for many years to come. These

motives are simply not relevant to whether there is merit to the

claims presented, and whether the claims may result in one type of

relief (changing the method of execution) or another (vacatur of

his convictions and sentences) is not relevant to the fact that

such relief is being sought.

IIit. PETITIONER SHOULD SURELY HAVE THE OPPORTUNITY

TO ADDRESS ANY NOVEL RULE BARRING RELIEF IN

THE LOWER COURT

When the issue of abuse of the writ came up in Court

yesterday, it had not been anticipated by Petitioner. After ail,

Rule 9(b) simply does not apply to the first petition filed in

federal court by a Petitioner, as counsel had correctly advised Mr.

Lonchar. It was not until counsel arrived in Court that counsel

received the state's pleading raising abuse of the writ. AS

Lonchar will also, or alternatively, receive a new trial since he

was not present for much of his first trial. This is a capital

case and under the authority of "Diaz and Ho - « « @ Capital

defendant's right to presence is nonwaivable."

Wainwright, 685 F.2d 1227, 1258 (1982), modified on rehearing, 706

F.2d 311 (11th Cir. 1983); accord Hall _v. Wainwright, 733 F.2d

766, 775 (1ith Cir. 1984).

%

counsel said in the District Court, counsel was "not prepared to

2a4ress it in depth." (F.H.T. at 24 However, counsel did claia

Petitioner's right to an evidentiary hearing:

But I would t that unity for an

evidentiary nearing as I th the one thing

the Potts case makes very clear ... if the

State has come forward with its burden of

production, there has to be an opportunity for

an evidentiary hearing if the record doesn't

make it categorically clear on the face that

there is not abuse.

(F.H.T. at 24) Counsel noted that he was "going to have to think

this through more carefully than I've had the chance to do... ."

(F.H.T. at 26)

It as hard enough to respond to Rule 9(b) in this fashion, but

the Court required counsel to present such evidence as was

available on the issue of abuse. With just twelve minutes to

prepare, counsel noted that, “as far as the available testimony

right here, I guess it's me." (F.H.T. at 43) This in fact took

place, and was the extent of the evidence available on such short

notice. ®

6 Counsel made it clear that a proper hearing on Rule 9(b)

should entail other evidence. Counsel stated that if they were

available he would present “some other lawyers who have deen

petit y BeBe nlp gad ute 27) thie ca coe

to pass. ..." (F.H.T. wou

that “there would be something fundamental(ly) inequitable. . . to

blame Larry Lonchar for the actions that were taken not only

without his consent, but against his will [in] a next friend

petition.” (F.H.T. at 27) This and other evidence would show that

Mr. Lonchar's “motivation hasn't been to abuse the writ to vex,

harass and delay. His motivations have been very sincere." (F.H.T.

at 29)

Counsel also noted that it would be important to explore the

question of Larry Lonchar's mental state. (F.H.T. 43 et seq.)

Counsel asked that “we be given the unity .. . to present

other evidence, I would think incl Dr. Herendeen and his

experiences consulting with Larry over the last year and a half.”

q

If it was difficult for Petitioner to respond to the novel

Fu° *(%) argument in the lower court, Petitioner had ng

opportunity to present evidence on the amorphous notions of

“equity” that the Warden seeks to advance in this Court today.

There is obviously a great deal of evidence that would he relevant

to this inquiry, including any prejudice to the Warden, whether the

shifting sands of the Warden's positions would deprive him of the

clean hands needed to assert this new rule, and so on and so forth.

The law is clear that Petitioner has the right to a reasonable

time to prepare his defense against abuse, and a right to be heard

on these matters. It is clear from Rule 9(b) itself that if the

question of abuse is raised, "it is inherent in this obligation

placed on petitioner [to respond to allegations of abuse) that he

must be given an opportunity to make his explanation. .. ."

Advisory Notes to Rule 9(b) (quoting Johnson v. Copinger, 420 F.2d

395, 399 (4th Cir. 1969)).

Indeed, since at least Vaughan v. Estelle, 671 F.2d 152 (5th

Cir. 1982), it has been clear in this Circuit that "[t]he applicant

is to be afforded a reasonable opportunity to traverse the sugges-

tion of abuse." Id. at 153. In Vaughan the petitioner had never

been given a hearing on abuse, but he had at least had time to pull

(F.H.T. at 47) This would include how Petitioner's illness of

manic depression has played into the alleged "manipulation" of the

system.

Counsel also stated that the conditions at the prison--in

particular the intolerable heat in summer--has been important to

Larry Lonchar's periodic desire to die. (F.H.T. at 45) This is

precisely the kind of evidence countenanced in Potts y. Zant, 638

F.2d 727, 749 (llth Cir. 1981). These and other factors would also

be relevant to the State's novel argument made today.

10

together evidence, and since he had litigated a prior § 2254 case,

n€ W2s on notice that abuse of the wri would be an issue.

In this case, it is clear that Petitioner had the right to

notice of the Warden's "novel" argument in time for the hearing

yesterday, and has the right to know what the argument really

entails before he can be required to respond to it with evidence.

Even were this a case of abuse of the writ--and Rule 9(b)

simply has no application--the Potts litigation is mighty precedent

for a finding that Petitioner should be allowed to proceed in this

case. On June 26, 1980, Judge O'Kelley dismissed the petition,

finding Potts' prior statements in the next friend petition to

“provide cumulative support for a finding that the writ of habeas

corpus has been abused." Potts v. Zant, Order at 8 (N.D. Ga. June

26, 1980). This Court reversed.

The Court also held that in arguing for the dismissal of

fundamental constitutional claims, "the State's position would be

particularly difficult where--as in the present case--a determina-

tion has not yet secured a determination on the merits of his

claims.” Potts v. Kemp, 764 F.2d 1369, 1371 (11th Cir. 1985). This

showing was not made in Potts where the "evidence... did not

establish that the petitioner acted with the intent to ‘vex, harass

and delay.'* Id, It is not clear quite what must be shown under

the amorphous argument made by the Warden in this case. However,

if Potts was allowed to proceed after dismissing his own prior

federal habeas petition (and various next friend applications) and

ultimately secure relief from this Court, so must Larry Lonchar.

V\

Conclusion

For the foregoing reasons, Pct.tioner respectfuily requests

that this Court deny the Warden's motion to lift the stay of his

execution.

This 29th day of June, 1995.

ORD SMITH

210 Baronne Street, Suite 1320

New Orleans, La 70112

504/558-9867

JOHN MATTESON

Georgia Bar No. 477137

230 Peachtree Street

Suite 900

Atlanta, GA 30303

(404) 584-0872

COUNSEL FOR PETITIONER

CERTIFICATE

I hereby certify that the foregoing pleading has been served

on counsel opposite this 29th day of 1995.

in ae

i

TOTAL P.13