William Emmett LeCroy, Jr. v. United States

975 F.3d 1192

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 16, 2020
• Docket: 20-13353
• Status: Published

Opinion

Case: 20-13353 Date Filed: 09/16/2020 Page: 1 of 12

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13353 ________________________

D.C. Docket No. 2:02-cr-00038-RWS-JCF-1

WILLIAM EMMETT LECROY, JR.,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

________________________

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

(September 16, 2020)

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

NEWSOM, Circuit Judge: Case: 20-13353 Date Filed: 09/16/2020 Page: 2 of 12

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

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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 (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 (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

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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

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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 (2009); see also Stay, BLACK’S LAW DICTIONARY (11th

ed. 2019) (defining “stay” as the “postponement or halting of a proceeding,

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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 (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

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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

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1301, 1308 (11th Cir. 2006), overruled on other grounds by United States v. Lopez,

562 F.3d 1309, 1311 (11th Cir. 2009). Moreover, the Act does not absolve LeCroy

of his responsibility to make the showing necessary to obtain a stay. See Dunn v.

McNabb, 138 S. Ct. 369, 369 (2017) (observing that the All Writs Act “does not

excuse a court from making” injunction- or stay-related related findings); see also

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) (“Under

our circuit law, the All Writs Act cannot be used to evade the requirements for

preliminary injunctions.”).1

LeCroy has not even attempted to satisfy the requirements necessary to stay

his execution—even temporarily—and he has identified no authority that would

otherwise permit a federal court to “reset” or “modify” his execution date.

Accordingly, we hold that the district court correctly concluded that it lacked the

authority to postpone LeCroy’s execution.2

1 LeCroy separately argues that the All Writs Act protects the court’s jurisdiction under 18 U.S.C. § 3599 to appoint counsel. We disagree. Section 3599 does not imbue the court with continuing authority or jurisdiction that the Act may then be invoked to protect. See Baze v. Parker, 632 F.3d 338, 346 (6th Cir. 2011) (“Because the only jurisdictional power granted to the district court by section 3599 is the power to appoint attorneys and oversee the release of federal funds to those attorneys, the relief that Baze seeks here is not ‘in aid of’ the district court’s preexisting jurisdiction under section 3599 and is thus outside the scope of the All Writs Act.”). 2 Even if LeCroy’s request were more properly viewed as a request for an injunction, rather than a stay, the same result would obtain. LeCroy must still satisfy the traditional requirements for obtaining an injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); Swain v. Junior, 961 F.3d 1276, 1284 (11th Cir. 2020) (same). The All Writs Act does not excuse LeCroy from satisfying these requirements. Schiavo, 403 F.3d at 1229. 8 Case: 20-13353 Date Filed: 09/16/2020 Page: 9 of 12

III

LeCroy is not entitled to the relief he seeks, in any event. Before the district

court and in this Court, LeCroy has asserted two grounds for postponing his

execution: (1) two of his three appointed lawyers are currently unable to meet with

him face-to-face to assist in the preparation and filing of a clemency petition; and

(2) two of his three appointed lawyers are currently unable to be on hand in person

to witness his scheduled execution.

As an initial matter, we reiterate our “consistent[ holding] that there is no

federal constitutional right to counsel in postconviction proceedings.” Barbour v.

Haley, 471 F.3d 1222, 1227 (11th Cir. 2006). Nor (for better or worse) does the

Constitution guarantee a condemned inmate the right to have his lawyer present at

his execution. If LeCroy is entitled to relief, therefore, it must be on the basis of

some statute or regulation.

Before the district court, LeCroy first asserted that he had a statutory right to

assistance with his clemency petition under 18 U.S.C. § 3599(e). That statute

provides that appointed counsel

shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and

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proceedings for executive or other clemency as may be available to the defendant.

18 U.S.C. § 3599(e) (emphasis added). The problems for LeCroy are (1) that

nothing in § 3599(e) specifies in-person representation and (2) that, despite the

heightened risks that COVID-19 poses for two of his three appointed lawyers, he

still has ready access to the “represent[ation]” that § 3599(e) contemplates. Not

only can LeCroy avail himself of unmonitored telephone calls and face-to-face

videoconferences with all three of his lawyers, but he can also meet with one of

them, Ferrell, in person at the prison.3

Both before the district court and in this Court, LeCroy has separately

pointed to 18 U.S.C. § 3596(a) in support of his argument that his attorney must be

on hand to personally witness his execution. Section 3596(a) states that an

execution shall be implemented “in the manner prescribed by the law of the State

in which the sentence is imposed.” This provision, LeCroy contends, incorporates

Ga. Code Ann. § 17-10-41, which states that “the convicted person may request the

presence of his or her counsel.” In support of this argument, LeCroy cites In re

Federal Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir.

2020).

3 Nothing in the record indicates that COVID-19 poses any unique (or even heightened) risk to Ferrell. 10 Case: 20-13353 Date Filed: 09/16/2020 Page: 11 of 12

Although the separate opinions in Execution Protocol Cases posit varying

interpretations of § 3596(a), even the dissenting opinion there—which embraced

the most capacious reading—acknowledged that § 3596(a) requires the Bureau to

follow only those state execution procedures that “effectuat[e] the death, . . .

including choice of lethal substances, dosages, vein-access procedures, and

medical-personnel requirements.” Id. at 151 (Tatel, J., dissenting) (alterations and

citations omitted). Other circuits have interpreted § 3596(a) in a similarly (if not

more) restrictive manner. See, e.g., United States v. Mitchell, No. 20-99009, 2020

WL 4815961, at *2–3 (9th Cir. Aug. 19, 2020); Peterson v. Barr, 965 F.3d 549,

554 (7th Cir. 2020) (“We do not understand the word ‘manner’ as used in

§ 3596(a) to refer to details such as witnesses. The word concerns how the

sentence is carried out, not who watches.”). We needn’t decide today precisely

what the phrase “in the manner prescribed by the law of the State in which the

sentence is imposed” entails—whether it refers only to top-line methods, execution

procedures more generally, etc. Whatever that phrase means, we are confident that

it does not extend to ensuring a lawyer’s presence at execution.

Accordingly, we hold that even if this Court had the authority to postpone

LeCroy’s execution date absent a showing that a stay is warranted, LeCroy is not

entitled to relief on the merits.

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IV

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.