Friday, 1 June 2007

Sixth Circuit Order in lethal injection lawsuit in Ohio


Judge Cook is recused in this case.


Pursuant to Sixth Circuit Rule 206

File Name: 07a0203p.06








Director; E. C. VOORHIES, Warden,




No. 05-4057

Filed: June 1, 2007

Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.




The court having received a petition for rehearing en banc, and the petition having been

circulated not only to the original panel members but also to all other active* judges of this court,

and less than a majority of the judges having favored the suggestion, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised

in the petition were fully considered upon the original submission and decision of the case.

Accordingly, the petition is denied.


No. 05-4057 Cooey v. Strickland, et al. Page 2


COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc. I write

because I firmly believe that the opinion of the panel majority is wrongly decided and that we should

have taken this case up for consideration en banc. The fact that five of my colleagues joined me

in voting in favor of rehearing demonstrates that I am not alone in my view. Accordingly, I dissent

from the denial of rehearing this case en banc.

This case presents an issue of exceptional importance: When does the statute of limitations

begin to run on a 42 U.S.C. § 1983 challenge to a lethal-injection protocol? The panel’s majority

opinion, looking to the standard set forth in the Antiterrorism and Effective Death Penalty Act of

1996 for habeas cases, held that the limitations period begins at the conclusion of direct review of

a death-sentenced inmate’s conviction and sentence. Cooey v. Strickland, No. 05-4057, at 9

(concluding that the actual execution date will not suffice for limitations purposes, but that “it stands

to reason that the next most appropriate accrual date should mirror that found in the AEDPA: upon

conclusion of direct review in the state court or the expiration of time for seeking such review”).

According to the majority, this would “promote judicial economy and protect defendants’ rights”

while protecting against “a significant period of delay to a state’s ability to exercise its sovereign

power and to finalize its judgments.” (Id. at 7) There are two significant problems with the

majority’s analysis: first, under the present scheme, a death-sentenced prisoner will have to bring

a new § 1983 claim each time the protocol changes in a way that implicates constitutional concerns,

and second, a death-sentenced prisoner might not know when his cause of action accrues because

Ohio’s lethal-injection protocol can change at any time during the pendency of his postconviction

and habeas proceedings.

The Supreme Court ruled in Nelson v. Campbell, 541 U.S. 637 (2004), and confirmed in Hill

v. McDonough, 126 S. Ct. 2096 (2006), that § 1983 proceedings are the proper means of challenging

a lethal-injection protocol. These are not claims that sound in habeas. See Nelson, 541 U.S. at 647.

Accordingly, the accrual date of the statute of limitations should be determined by looking to “when

the plaintiff knows or has reason to know” of his injury. See, e.g., Collyer v. Darling, 98 F.3d 211,

220 (6th Cir. 1996). The district court, to my mind, properly determined that the statute of

limitations accrues at the time that the prisoner’s execution becomes imminent and the prisoner

knows or has reason to know of the facts giving rise to his § 1983 claim. See Cooey, No. 05-4057,

at 13 (Gilman, J., dissenting). Moreover, these are factors over which the state can exercise

significant control by promptly requesting that the Ohio Supreme Court set a date of execution, and

by publishing the details of the lethal-injection protocol so that a death-sentenced inmate has timely

notice of the procedure that will be used to execute him. Applying the district court’s compelling

reasoning will also avoid the inefficient litigation of multiple and inconsistent claims.

The majority’s opinion, in contrast, will lead to simultaneous, and contradictory, proceedings

in state and federal court. Death-sentenced inmates will bring habeas petitions attacking the validity

of their conviction and sentence at the same time they pursue § 1983 actions challenging the

constitutionality of the lethal-injection protocol chosen by the state. To be sure, Ohio argues that

this inefficiency will obtain only long enough for one properly filed § 1983 action to be tried to

completion. But this argument assumes far too much. Under Ohio law, the Ohio Department of

Rehabilitation and Correction has virtually unlimited discretion over the lethal-injection protocol

used, as well as over whether to release information relating to the protocol. There is no guarantee,

and Ohio does not suggest otherwise, that a single § 1983 challenge will resolve all constitutional

issues relating to Ohio’s lethal-injection protocol.

Both the majority and Ohio express a legitimate concern about the State’s “significant

interest in meting out a sentence of death in a timely fashion.” Nelson, 541 U.S. at 644. An

unrealistic commencement date based upon AEDPA’s one-year statute of limitations, however, is

not the appropriate way to address this concern. The Supreme Court recently confronted this issue

No. 05-4057 Cooey v. Strickland, et al. Page 3

in Hill v. McDonough, 126 S. Ct. 2096 (2006). Hill, who was facing execution by lethal injection,

brought a § 1983 claim that Florida’s lethal-injection protocol violated the Eighth Amendment’s

prohibition on cruel and unusual punishment. Id. at 2100. Finding that Hill’s claim did not

challenge his sentence as a general matter, but rather the method by which it would be carried out,

the Court held that the claim was properly brought as a § 1983 civil rights action under Nelson v.

Campbell, 541 U.S. 637 (2004). But the Court also held that plaintiffs such as Hill are not entitled

to automatic stays of execution. Hill, 126 S. Ct. at 2104 (“It is not available as a matter of right, and

equity must be sensitive to the State's strong interest in enforcing its criminal judgments without

undue interference from the federal courts.”) Instead, “like other stay applicants, inmates seeking

time to challenge the manner in which the State plans to execute them must satisfy all of the

requirements for a stay, including a showing of a significant possibility of success on the merits.”


The district court in the present case has held likewise and has appropriately denied

injunctive relief to some intervenors in this case who failed to satisfy those requirements. See, e.g.,

Cooey (Hicks) v. Taft, No. 04-CV-1156 (S.D. Ohio Nov. 23, 2005) (granting Hicks’s motion to

intervene but denying his motion for a preliminary injunction because Hicks unduly delayed in

bringing his claim).

Finally, I note that the reasoning of the majority was recently rejected in a factually similar

lethal-injection challenge brought by an Alabama prisoner. See Jones v. Allen, ___ F. Supp. 2d ___,

2007 WL 1140416, at *4-5 (M.D. Ala.), aff’d, ___ F.3d ___, 2007 WL 1225393 (11th Cir.), cert.

denied ___ S. Ct. ___, 2007 WL 1257938 (May 3, 2007). The district court in Jones concluded that

the Cooey majority erred in its statute-of-limitations analysis by using the backward-looking model

of a § 1983 claim seeking damages for a constitutional violation that had already occurred, “whereas

a method-of-execution lawsuit seeks injunctive relief for an allegedly unconstitutional act that has

not yet occurred,” but for which there can be no “after-the-fact” remedy. Jones, ___ F. Supp. 2d

___, 2007 WL 1140416, at *4. This serves to support my view that the panel opinion in our case

was wrongly decided.

I believe that en banc review would have been appropriate in the present case to ensure that

the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial

inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced



/s/ Leonard Green



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