Lonchar v. Zant

978 F.3d 637
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 13, 1992
DocketNo. 92-8193
StatusPublished

This text of 978 F.3d 637 (Lonchar v. Zant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lonchar v. Zant, 978 F.3d 637 (11th Cir. 1992).

Opinion

PER CURIAM:

Larry Lonchar opposes all efforts to seek review of his convictions and capital sentence. His sister, Chris Lonchar Kellogg, has filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus as her brother’s next friend, claiming that he is incompetent to make a decision to forego further proceedings. We address the issue of whether Kellogg has met her burden to establish next friend standing to petition the court on her brother’s behalf. We hold that she has not.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, Larry Lonchar had become several thousand dollars in debt to a bookmaking operation. On October 18, 1986, Lon-char and an accomplice, Mitchell Wells, visited the condominium that housed the operation. They shot each of the four occupants of the condominium and stabbed one person seventeen times in the neck and three times in the chest. Only one victim survived.

[639]*639On June 25, 1987, Lonchar was convicted in the Superior Court of DeKalb County, Georgia, on three counts of malice murder and one count of aggravated assault. He was sentenced to death for the murders and to twenty-one years imprisonment for the aggravated assault. Lonchar chose not to attend his own trial to the extent the trial court would allow and refused to assist his own attorney. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988). After explaining to Lonchar the consequences of his choice not to attend his trial and questioning Lonchar about his decision, the trial court did not require Lonchar to be present at his trial except for jury selection and for purposes of identification. Id., 369 S.E.2d at 752-53.

Upon mandatory appeal, the Georgia Supreme Court affirmed Lonchar’s convictions and sentence and denied his motion for reconsideration. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988). The United States Supreme Court denied Lonchar’s petition for a writ of certiorari and his petition for rehearing. Lonchar v. Georgia, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 808, reh’g denied, 489 U.S. 1061, 109 S.Ct. 1332, 103 L.Ed.2d 600 (1989).

The Superior Court of DeKalb County then set Lonchar’s execution date to be during the week of March 23, 1990. On March 21, 1990, Lonchar’s sister, Chris Lonchar Kellogg, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, as Lonchar’s next friend, claiming that her brother was incompetent and unable to proceed on his own behalf. At a preliminary hearing that same day, the court questioned Lonchar. He informed the court that he understood that his execution date was imminent, but that he nonetheless strongly opposed his sister’s efforts to seek review of his conviction. The Superior Court of Butts County then ordered an examination of Lonchar. One week later, it held an evidentiary hearing on the issue- of Lonchar’s competence and found Lonchar competent to decide not to proceed with habeas review.

The Georgia Supreme Court stayed the execution so that it could review this competency determination. Holding that the evidence supported the state habeas court’s determination that Lonchar was able to decide rationally among his options, the Georgia Supreme Court denied Kellogg’s application for a certificate of probable cause, terminated its stay and denied Kellogg’s petition for reconsideration. Kellogg v. Zant, 260 Ga. 182, 390 S.E.2d 839 (1990). The United States Supreme Court then denied Kellogg’s petition for a writ of certiorari and her petition ■ for rehearing. Kellogg v. Zant, — U.S. -, 111 S.Ct. 231, 112 L.Ed.2d 191, reh’g denied, — U.S. — 111 S.Ct. 573, 112 L.Ed.2d 579 (1990).

Meanwhile, in the United States District Court for the Northern District of Georgia, Kellogg had filed a petition for a writ of habeas corpus as Lonchar’s next friend. Because the state habeas proceedings were still pending, the district court held that it lacked jurisdiction and instructed the parties to notify it when its jurisdiction was perfected. (R.2-11).

Once the state proceedings were concluded, the district court directed the respondent to address in its motion to dismiss two issues: whether the competency hearing in state court was adequate and whether Lonchar was competent to waive further review of his convictions. (R.2-12). On August 15, 1991, the district court declined to apply a presumption of correctness to the state court proceedings and ordered an evidentiary hearing to consider anew the issue of Larry Lonchar’s competency to decide not to proceed further. (R.2-17). The court expressed concerns about the haste with which the state court hearing was scheduled and conducted; the adequacy of notice to Kellogg’s attorneys; and Kellogg’s ability to present evidence and subpoena witnesses. (Id.)

On November 12, 1991, after permitting discovery, the court began its hearing on the issue of Kellogg’s standing to proceed. Lonchar was present and again stated that he opposed his sister’s efforts to seek a writ of habeas corpus. The court heard the testimony of Dr. Robert Theodore Michael Phillips, a psychiatrist called by Kel[640]*640logg. Phillips diagnosed Lonchar as suffering from bipolar disorder with depressive self-destructive and suicidal features. Phillips concluded that although Lonchar had the intellectual capacity to understand his legal position and his sentence, Lonchar lacked the ability to make a rational choice among his options because of his mental disorder.

Two psychiatrists called as witnesses by the State did not agree with Dr. Phillips. Dr. Dave M; Davis and Dr. Everett C. Kuglar both diagnosed Lonchar as suffering from dysthymia or depressive neurosis and a personality disorder with antisocial and self-defeating features. Both Davis and Kuglar also testified that Lonchar was able to knowingly, intelligently and voluntarily decide whether or not to seek further review of his convictions.

The district court found the testimony of Drs. Davis and Kuglar more persuasive than that of Dr. Phillips. (R.3-34, District Court Order Granting Motion to Dismiss). Specifically, the court noted that the lack of evidence of manic episodes undermined Phillips’s diagnosis of bipolar disorder and that Phillips’s opinions had changed since his original report. (Id. at 10). Rejecting Phillips’s diagnosis of bipolar disorder, the court accepted Kuglar’s testimony that a person with a personality disorder generally has the ability to make choices regarding his behavior. (Id.) The district court also emphasized the fact that all three psychiatrists agreed in certain areas. All three found Lonchar able to discuss logically and found him unwavering in his decision to forego further review of his conviction. (Id. at 11).

The district court applied the standard of Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), and- concluded that: (1) Lonchar suffers from mild to moderate depression; (2) Lonchar understands his legal position and the options available to him; and (3) Lonchar’s depression does not prevent him from making a rational choice among his options. (R.3-34 at 13-14).

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Related

Rees v. Peyton
384 U.S. 312 (Supreme Court, 1966)
Whitmore Ex Rel. Simmons v. Arkansas
495 U.S. 149 (Supreme Court, 1990)
Larry Bonner v. City of Prichard, Alabama
661 F.2d 1206 (Eleventh Circuit, 1981)
Kellogg v. Zant
390 S.E.2d 839 (Supreme Court of Georgia, 1990)
Lonchar v. State
369 S.E.2d 749 (Supreme Court of Georgia, 1988)
Rumbaugh v. Procunier
753 F.2d 395 (Fifth Circuit, 1985)
Gilmore v. Utah
429 U.S. 1012 (Supreme Court, 1976)
Whitlow v. Hodges
429 U.S. 1029 (Supreme Court, 1976)
Williams v. Ward
488 U.S. 1020 (Supreme Court, 1989)
In re Royce
498 U.S. 1009 (Supreme Court, 1990)

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Bluebook (online)
978 F.3d 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lonchar-v-zant-ca11-1992.