*1 herein, and the additional reasons provided
we AFFIRM grant the district court’s
summary judgment favor of the FIA. COOEY, II,
Richard Wade
Plaintiff-Appellee, STRICKLAND, Governor; Terry
Ted Collins, Director; Voorhies,
J. E.C.
Warden, Defendants-Appellants.
No. 05-4057.
United of Appeals, States Court
Sixth Circuit.
Argued: Dec. 2006.
Decided and Filed: March *2 Collyer, L. Office of Michael
ARGUED: Cleveland, Ohio, General, for Attorney Meyers, Gregory W. Public Appellants. Columbus, Ohio, Office, Ap- for Defender’s Collyer, BRIEF: Michael L. pellee. ON Attorney Sweeney, of the Kelley A. Office General, Cleveland, Ohio, Appellants. for Culshaw, Kelly L. Meyers, Gregory W. Of- Kimberly Rigby, Defender’s S. Public Columbus, Ohio, fice, Appellee. SILER, SUHRHEINRICH, Before: GILMAN, Judges. Circuit SUHRHEINRICH, J., delivered SILER, J., court, in which opinion joined. 424-31), a
GILMAN, (pp. delivered J. dissenting opinion. separate OPINION SUHRHEINRICH, Judge. Circuit inmate under Cooey, an Ohio Richard death, against action filed this sentence Collins, Governor, Strickland, Terry J. Ted (col- Yoorhies, Director, Warden and E.C. “State”) pursu- “Defendants” lectively 1983, challenging the to 42 ant U.S.C. of Ohio’s lethal constitutionality us issues before protocol. (1) a whether interlocutory appeal are against inmate’s claim death row precursor opposed to injection itself—as to be properly considered procedure —is brought pursuant or one (2) row a death whether 42 U.S.C. chal- method-of-execution inmate’s accrues, for statute lenge imminent or is purposes, when stage in at some earlier state federal United States Court denied cer- judicata tiorari on March proceedings, originally whether res 2003. Ohio July row inmate’s claim set execution date for bar to death concerning the means and methods of exe- *3 raised, issues were or cution when similar 21, 2003, July Cooey On a filed motion raised, specific claim could have been judgment pursuant for relief from to Fed. in a action. previous habeas 60(b) stay R.Civ.P. and a motion for 23, 2003, July execution. On the district Background
I.
granted Cooey’s
stay
court
motion for a
three-judge panel
In
con-
Ohio
ruling
execution and deferred
on the Rule
60(b)
Cooey
aggravated
victed
of two counts of
motion. Both the Sixth Circuit and
murder,
panel
and the
sentenced him to
Supreme
Court denied the Warden’s
Supreme
death. The Ohio
Court affirmed
stay
motions to vacate the
of execution.
and sentence on direct
convictions
ultimately
The district court
denied the
60(b)
appeal.
Cooey,
motion,
v.
46 Ohio
See State
St.3d Rule
and this Court denied
(1989),
In
Cooey
October
a petition
prisoner
filed
could experience
pain
intense
af-
for a writ of habeas corpus
being injected
under 28 ter
potassium
with the
chlo-
ride,
U.S.C.
2254. The district court denied
would
convey
but
be unable to
petition
on September
1997. See
sensation
paralyzing agent
due
Anderson,
Cooey v.
988 F.Supp.
pancuronium
They
bromide.
main-
also
(N.D.Ohio 1997).
granted
subject
This Court
prisoner
tained
to such
appealability
certificate of
excruciating pain
as to two issues
while he is still conscious
Cooey
and denied relief as to both.
See
would amount to cruel and
punish-
unusual
(6th Cir.2002).
Coyle, 289
They
alleged
The ment.
that the person-
Analysis
II.
are inade-
the executions
attending to
nel
such,
and,
Defendants’
trained
quately
de
reviews
novo
This Court
prison-
violate
would
methods
of motion
or denial
grant
court’s
district
rights.
er’s constitutional
12(b)(6).
under Fed.R.Civ.P.
to dismiss
Allen, 411 F.3d
Mezibov
the com-
court dismissed
The district
—
denied,
U.S.-,
Cir.2005), cert.
his
exhaust
failed
because
plaint
1911,
because protocol is a creation of the Ohio’s sole method of execution. Defen- Ohio Department of Rehabilitation and dants assert that it is the issuance of a Correction, subject and therefore government order, in this case proto- change execution, until the time of col, rather than the carrying out of that requiring a plaintiff death-sentenced order, which starts the clock. Cooey file his method-of-execution challenge urges us to affirm the district court’s con- any sooner ... [would be] wasteful and clusion that his claim accrued March possibly absurd, given the possibility 2003, when the United States Supreme that, prior to his execution becoming Court denied certiorari as to Cooey’s first imminent, plaintiff could see his con- habeas petition and after his execution viction or reversed, death sentence date was set. precise alteration plaintiff might Setting seek to chal- an accrual date at point
lenge as unconstitutional. when the actual inflicted, i.e., harm is point execution, is problematic in Applying this test to Cooey, the district this context because the death-sentenced court concluded that “Cooey knew or had inmate’s claim would not accrue until he reason to know of the giving facts rise to was executed, at which it time would also specific allegations presented he has be simultaneously moot. any event, complaint instant in May 2002” when both Nelson and Hill establish inferential- he received information the protocol, about ly 1983 method-of-execution chal- and that his execution became imminent lenges may be brought before the execu- when the United States Supreme Court *7 tion is out. case, carried however, Neither denied certiorari as to his habeas corpus addressed the appropriate accrual date. proceedings 31, 2003; “[thus, March Thus, the relevant “event that should have Cooey] years had two from that date to file alerted a lay person protect to rights” his method-of-execution claim.” Because must be redefined here. Cooey filed the instant action on December 8, 2004, three months before expiration the If point the of infliction is not a viable of the statute of limitations, the district option, the logical most of trigger choice a court deemed his cause of action was time- ing event is point the when the death ly- penalty ordered, is upon judgment of con
The district court also that, commented viction and sentence. At least one Court as the protocol was not established by has set the accrual date at the conclusion statute or rule, administrative it was sub- of direct review the state. See Neville ject to change at any time before Johnson, the (5th 440 F.3d Cir. execution. Because 2006) curiam) Defendants could (per (holding, in reliance on change the up to the time of an a state, concession the a challenge execution, inmate’s the district court be- to a method of execution bemay any filed lieved that it premature would be to chal- time plaintiffs after the conviction has be otherwise, the statute it review).5 Were also This is on direct final come plaintiff only after a begin to run the would it marks because choice attractive an he had been its satisfied became rendered state has the at which point supposed the enough, placing and, collat absent harmed final judgment criminal sole hands of the which of point repose at statute the proceedings, civil eral seeking Fur relief. party date. sets the state can inmate thermore, the death-sentenced — at-, Wallace, 127 S.Ct. U.S. relief. and obtain file suit 517122, *4. at 2007 WL conclusion court’s The district setting accrual fundamentally, More im when execution occurs date accrual imminency plus ex point date at remedies and federal all state minent remedies of federal collateral haustion is problematic exhausted been a delay to period significant adds a First, subverts it reasons. several sovereign its ability to exercise state’s limitations, which statutes purpose which judgments, to finalize power and economy judicial “promote designed are balance be yet disrupts the vital delicate rights.” John defendants’ protect “Our relations. and federal tween state Servs., Kent v. Old Inc. Fin. Hancock independent recognizes system federal Cir.2003) Bank, societal to articulate aof State power rule discovery (and noting law; pow through criminal but norms unjust results prevent applied “has been if little means pass laws of State to er denied otherwise plaintiff would when McCles them.” enforce cannot the State due bring suit opportunity reasonable 467, 492, 111 Zant, 499 U.S. key v. or the injury nature to the latent (1991). Further 1454, 113 L.Ed.2d connection the causal inability discover interest significant more, retains “a State injury and defendant’s between in a of death a sentence meting out omit (internal marks quotation action” Nelson, timely fashion.” noted ted)). Supreme Court theAs 124 S.Ct. Wallace: “[fjederal review of course, Of accrual rule of the traditional “Under both frustrates convictions accrues, and state of action tort cause ... offend- punish power sovereign to States’ commences of limitations the statute to honor faith-attempts good their ers and omission act or wrongful run, Calderon rights.” constitutional of ac- The cause damages. results 555-56, Thompson, the full extent though even tion accrues (internal quo- 140 L.Ed.2d pre- known or then injury is not reason, omitted). For this *8 marks tation Corman, of Limitation 1 C. dictable.” judg- court of state (1991) habeas review federal 7.4.1, 526-527 pp. Actions Court As the limited. C.J.S., ments is omitted); 54 (footnotes also see in Calderon: 112, 150 observed p. Actions of Limitations (“The concedes White, State 572, 574 F.3d at Johnson, 429 429 F.3d v. cites White 5. Neville final on became conviction Harris's curiam), support that when Cir.2005) (per 574 review, the State’s challenge his However, direct the reference proposition. this execution, of dra- absence of method by the state merely a concession White is changes to the State’s matic fi- became conviction —would an inmate’s any at time filed appropriately been review, have challenge to the direct nal on imminent await an need not and thereafter appro- have been would execution of method date.”). See thereafter. any time priately filed 420 In light profound of “the societal costs vance [the] doctrines comity, [of finality, attend exercise juris of habeas and federalism]. Federal habeas corpus diction,” Smith v. Murray, 527, principles 477 U.S. must inform shape
539,
2661,
106 S.Ct.
91
historic and
L.Ed.2d 434
still vital relation of mutual
(1986),
respect
we have found it
necessary to
common purpose existing
impose significant
between the
limits on the
States and
discre
the federal
tion of
federal
courts.
keeping
courts
grant
habeas
delicate balance
See,
we
relief.
e.g.,
been careful
Zant,
McCleskey v.
limit the
499
scope
of
467,
federal
487,
U.S.
intrusion
111
1454,
into state
S.Ct.
criminal
113
adjudications
(1991)
L.Ed.2d
517 ...
to safeguard
(limiting
“a dis
States’
trict
interest
integrity
court’s
discretion to
their
entertain abu
criminal and collateral
petitions”);
proceedings.
sive
Wainwright v. Sykes,
72, 90-91,
433 U.S.
2497,
97 S.Ct.
53 Williams v. Taylor,
420,
529
436,
U.S.
120
(1977)
L.Ed.2d 594 ...
1479,
S.Ct.
(limiting courts’
146
(2000);
L.Ed.2d 435
see
discretion to
Garceau,
entertain procedurally
202,
de
538 U.S.
Woodford
claims);
faulted
Lane,
Teague
123 S.Ct.
(2003)
L.Ed.2d 363
308-10, 109
(“Congress
U.S.
...
enacted
S.Ct.
AEDPA to
reduce de-
lays
(1989)
L.Ed.2d 334
the execution of
(plurality opinion
state and
federal
J.)
O’CONNOR,
sentences,
criminal
(limiting
particularly in capital
courts’ discre
cases, ... and
tion to
give
further the principles
retroactive
application to
comity, finality,
(internal
“new rules” in
federalism.”
cases);
habeas
Brecht v.
quotes omitted));
Abrahamson,
Williams v. Taylor,
637-38,
U.S.
362, 386,
120 S.Ct.
L.Ed.2d
(1993)
L.Ed.2d 353 ...
(2000)
(Stevens, J.,) (stating that
(limiting
“Con-
courts’
grant
discretion to
ha-
gress wished to curb delays, to prevent
beas
relief
error”).
the basis of “trial
‘retrials’ on
habeas,
federal
give
and to
554-55,
Id. at
421
a
more than
1983
42 U.S.C.
(1996).
pursuant
2244(d)(1)(A)
gen
See
28 U.S.C.
his direct
completion of
U.S.198,
the
after
decade
547
McDonough,
Day v.
erally
execution);
shortly before
164
appeal,
n.
1680
1, 126 S.Ct.
-n.
(5th
Johnson,
574
F.3d
429
v.
(2006) (noting
“[u]ntil
White
376
L.Ed.2d
curiam)
in
an
Cir.2005)
(rejecting
of
(per
no statute
in
took effect
AEDPA
chal
petitions”).
§ 1983 “method-of-execution”
to habeas
mate’s
applied
“quite
had
period
inmate
“been
limitation
the
lenge where
one-year
The
years”).
interest
well-recognized
than six
for more
the
row
serves
death
plainly
...
judgments
Hill,
Supreme Court
finality of state court
in
recently,
in the
Most
delay on
for
potential
1983
filing a
reduces
emphasized
[and]
time
restricting the
finality by
constitutionality of certain
road to
challenging
petition
habeas
federal
prospective
a
not “en
does
execution
of a state’s
aspects
habeas
federal
to seek
in which
staying
er
an
order
complainant
title the
Walker,
U.S.
533
v.
Duncan
review.”
course.”
matter of
as a
[his]
251
2120, 150 L.Ed.2d
179, 121 S.Ct.
added
The Court
Hill,
at 2104.
126 S.Ct.
omitted);
Acosta
see also
(internal citation
of
and the victims
the State
that “[b]oth
Cir.2000)
(2d
Artuz,
123
221 F.3d
v.
interest
important
crime have
[the]
pro
limitation
of
(“The
statute
AEDPA
sentence.”
[the]
of
timely enforcement
and conservation
efficiency
judicial
motes
assert
intending to
Thus, an inmate
Id.
the accu
resources, safeguards
judicial
file his
generally must
challenge
such
by requiring
judgments
court
racy of state
consider
to “allow
time
sufficient
suit in
while
questions
of constitutional
resolution
en
merits,
requiring
without
ation of
finality to
fresh,
lends
the record
(quoting
Id.
stay”
execution.
try of a
a reasonable
judgments within
court
state
2117).
650, 124 S.Ct.
Nelson, 541 U.S. at
Day v.
time.”)
approval
with
(quoted
“flat out”
stated
also
Court
The Nelson
McDonough)).
should
can and
courts
federal
that “[t]he
Su
by the
articulated
concerns
speculative
dilatory or
protect States
post-AEDPA,
pre- and
both
preme Court
466
McDonough,
suits.” Rutherford
itself,
AEDPA
Congress
Cir.2006)
Hill,
(11th
(quoting
970, 974
F.3d
case, which
in this
force
equal
with
apply
2104).
Court adheres
This
at
126 S.Ct.
Nelson,
habeas.”
margins of
at the
“fall[s]
Taft,
See,
e.g., Hicks
principles.
these
(noting that
646,124
S.Ct.
541 U.S. at
Cir.2005)
cited
(pre-Hill,
431 F.3d
at
challenges “fall
method-of-injection
Hill;
a last-
ruling that
approval
habeas”).
Indeed,
margins
inmate,
row
a death
petition
minute
Nel
Hill
decisions
recent
Court’s
execu
his scheduled
before
days
six
filed
that federal
core concern
son reflect
stay of execution
tion,
not entitled
au
a state’s
displace
should
allowed
court had
though the district
even
Nel
judgments.
to execute
thority
inmate’s
if a fellow
intervene
him to
“meth
stated
son,
Court
injection
lethal
challenge to
§ 1983
challenges
should
od-of-execution”
Little,
Fed.Appx.
Alley v.
protocol);
consid
as to allow
at such time
“brought
denied, 452
(6th Cir.), reh’g en banc
merits,
requiring
without
eration
—
denied,
U.S.
(6th Cir.), cert.
650, stay.”
entry
2975, 165 L.Ed.2d
-,
126 S.Ct.
Dist.
v. U.S.
2117;
see
Gomez
Court, 503 U.S.
Thus,
the “date”
since
(1992) (criticizing inmate
L.Ed.2d
infeasible,
imposed is
protocol is
challenge
filing “method-of-execution”
*10
it stands to reason that
the next most
should have known
upon
based
reasonable
appropriate accrual date should mirror
inquiry, and could have filed suit and ob-
found
the AEDPA: upon conclu
tained relief. Cooey should have known of
sion of direct review in the state court or his cause of
2001 after amend-
expiration
of time for seeking such ments to the
required
law
that he be exe-
review. See 28 U.S.C.
2244(d)(1)(A)
§
by
injection,
cuted
lethal
and the informa-
(1996).6 All
same concerns articu
tion was publicly
upon
available
request.
by
lated
Supreme
Court and as re Yet,
(and
even if
accepted
we
we would
flected in the AEDPA are relevant here.
not) May 2002, the date when he received
actions,
Like
§
federal habeas
1983 the
response,
Warden’s
Cooey’s complaint
challenge
method-of-execution
“implicates
is still untimely.
beyond
values
parties.”
concerns of the
Acosta,
See
(and
Cooey
also argues
F.3d at 123
noting
the statute of
that the AEDPA statute of limitation
limitations did
begin
not
to run until the
Congress’ primary vehicle for streamlining Nelson
§
decision made a
1983 action a
process
the habeas
lending
review
fi possible remedy for Cooey. Prior to that
convictions).
nality to state
decision,
this
precluded
Court
a death
row
inmate from filing a
Thus,
1983 action
standard,
under this
Cooey’s claim
challenging his method of
execution. See
would
accrued
after the Unit-
Sapp,
In re
(6th
ed
States
Supreme Court
Cir.
denied direct
Williams,
In
1997);
re
However,
(6th
review.
Ohio did not
F.3d 811
adopt le-
Cir.2004).
Williams,
Indeed,
thal
until
or make it the
the plain
exclusive method of
tiff
attempted
execution until
to bring a
1983 action
so the accrual date
adjusted
must be
raising
be-
argument
same
presented
now
cause
obviously could not
by
have dis-
Cooey, and this Court concluded that
covered
“injury”
until one of those two the claim must
be raised in a
2254 habe-
dates. We need not pinpoint the accrual
Nonetheless,
as action.
plaintiff
“the
case,
date in
however,
because even Nelson was similarly
barred
circuit
date, 2001,
under the later
Cooey’s claim precedent at the time he filed his suit. So
two-year
exceeds the
statute of limitations
long as there remains the possibility of en
deadline because his claim was not filed banc reconsideration and Supreme Court
until December
2004.
review, circuit
law does
completely
Cooey asserts,
foreclose all avenues for
Harris v.
and the
relief.”
district court
Johnson,
found,
(5th
that Cooey
376 F.3d
did not have actual
418-19
Cir.
2004).
knowledge of
This
precedent
until May
Circuit’s
did not
2002 when he
prevent
received responses to his
Lewis Williams
John
Roe
inquiries from the Warden. Actual
from filing
knowl-
their
injection §
however,
edge,
is not
Williams,
the appropriate
actions. See
re
423 peti- Ford first-instance last-minute that district the and Cooey argues, Lastly, in change a by a justified could be of Ohio’s tions nature found, fluid court health. mental imminency of defendant’s requires protocol execution accrual in the key factor to be execution 607. at Id. v. Martinez-Villa calculus, citing Stewart injection contrast, the lethal while In 644-45, S.Ct. real, 118 523 U.S. change, subject to is in this case protocol re (1998). recently We 849 L.Ed.2d 140 evidence, recently, that until nowas there Alley. In argument similar jected a And, changed. been had ever protocol argued that inmate a Tennessee Alley, do not furthermore, changes the recent Tennessee’s challenging § 1983 claim complaints. core relate to ripe until was injection protocol lethal in- appeal, of this pendency During In re imminent. date was an execution stayed, the matter while deed we stated: argument this jecting briefing expand supplemental moved v. Martinez- cites brief Stewart Alley’s to further the district court to remand S.Ct. Villareal, 118 U.S. 523 execu- changes recent Ohio’s address prohibit- ... 849 L.Ed.2d 140 is consis- he claimed which protocol, tion challenges considering from courts ing na- malleable that the claim with his tent before our case one in as the such lethal of Ohio’s ture immi- reaches execution petitioner’s im- action cannot that a 1983 means reading this this reject We nence. of execution. close to date until minent ours, case, unlike In that precedent. writ- a memo Cooey attached support, Ford under claim defendant’s of Rehabilitation Department by Ohio ten 399, 106 S.Ct. Wainwright, Collins, Terry Director Correction and (1986), had ... 335 2595, 91 L.Ed.2d memo Col- In that 2006. June dated preju- without dismissed originally been “recommendations adopted five lins ruling Court’s The dice. execu- regarding changes” process in a proceed the claim merely allowed protocol. date. The a later at petition habeas to its lethal amendments Ohio’s recent had courts lower that the Court noted difficulties from resulted injection protocol possibility open left specifically of Jo- the execution during encountered pro- could claim Ford the defendant’s prepar- May When on Clark seph filing. Id. in a future ceed execution, officials prison Clark ing his- procedural No such 1618.... S.Ct. vein accessible only one find § 1983 could posture of tory informs lock, heparin to establish arms Moreover, Clark’s note we in our case. claim drugs are admin- through which competency involving mental claims inserted.) (Two usually are locks istered. inherently different are began and However, once respect: one at least us in before petition administered, being drugs were to vari- subject is competency mental ad- repeatedly Clark collapsed, vein possible indeed time. It over ance corpus action as a successive Campbell, 541 Nelson for authoriza- transferring this Court it majority L.Ed.2d Williams, margin. tion, See by a slim it was adhere to continue it would decided concurring (one judge 814-17 Sapp, 359 F.3d at namely In re precedent, Circuit Sixth dissenting, judge grounds, Cir.1997). one different At the denying the judges in among the split close time, majority affirmed while same review). petition for en banc construing the decision district court's *12 vised officials that the process was not execution claim because it used an improp- working. stopped Officials the lethal in- er test for establishing the accrual date for jection procedure, and after a significant § 1983 method-of-injection challenges. period time, were able to establish a
new intravenous process site. The C. Res then Judicata restarted, and Clark was executed. Because we conclude Cooey’s that claim To avoid similar difficulties in future fails on grounds, we need not executions, Ohio made several changes to address the judicata State’s res argument. protocol. First, officials removed time that deadlines III. previously Conclusion dictated begin by executions a certain For foregoing reasons, we RE- hour, and be completed within a narrow MAND this matter to the district court time Second, prisoners frame. given are with instructions to DISMISS Cooey’s more in-depth medical prior examinations § 1983 complaint prejudice as barred Third, execution. person- correctional by the statute of limitations. nel will every make effort to obtain two for heparin sites locks before proceeding RONALD LEE GILMAN, Circuit to the Fourth, execution chamber. per- Judge, dissenting. sonnel will no longer use “high pressure” The majority sets forth two rationales injections saline to check the viability of for its conclusion that two-year statute the intravenous lines. Instead, a “low of limitations on Cooey’s 42 U.S.C. pressure” drip of saline will be used to claim accrued at the end of the direct keep the open line and confirm its ongoing review of his conviction and sentence viability. Fifth, personnel correctional will Ohio First, Court. the ma- observe each inmate’s arms and check for jority expresses concern that the district signs of intravenous incontinence while the court’s accrual date —at point when the drugs are being administered to the in- inmate’s execution is imminent and all mate. state and federal remedies, including post- As assert, Defendants none of these conviction proceedings, have been exhaust- changes relates to Cooey’s core com- ed, purpose of statutes —“subverts plaints. Further, none of these areas were limitations, which designed are to promote implicated as a for Cooey’s basis expert’s judicial economy protect defendants’ conclusion that process presents a risk rights.” (Maj. 419) (citation atOp. Cooey will experience pain. Rather, quotation omitted). marks majority’s Heath, Dr. Cooey’s expert, criticized the other rationale is that the district court’s use of pancuronium bromide, the use and accrual date a significant “adds period of dosage of sodium thiopental, the failure to delay to a state’s ability to exercise its provide a continuous dose an ultra- sovereign power and to finalize its judg- short-acting barbiturate, and lack of ments, which disrupts the yet vital delicate information regarding prison personnel’s balance between state and federal rela- training to prepare and administer (Maj. 419). tions.” Op. at In essence, drugs. prevail cannot on this basis however, I believe that these two reasons either. boil down to the single assertion that the sum, we hold the district court process “takes too long.” I find erred ruling that the statute of limita- this rationale disturbing for the following tions had not run method-of- reasons: costs of financial human and despite the efficiency judicial Justice
A.
litigation.
postconviction
protracted
is
justice
but
important,
is
Timeliness
justice
may be
“[Wjhile
delayed
justice
common
Although the
important.
more
not the an-
is
injustice
denied, prompt
justice
is
delayed
“justice
saying
Smith, 676
Refugee Ctr.
swer.” Haitian
in which
are situations
denied,” there
Cir.1982) (em-
1040 n. 43
I believe
true.
hold
*13
not
adage does
added).
phasis
in
Judges
situations.
of those
is one
this
in
AEDPA
the
to
apply
to
majority looks
allowed
The
cases are
criminal
ques-
cer-
permit
the statute-of-limitations
analysis
exclusion
of
justice”
of
“ends
not-
the distinction
blurs
prosecution,
this
in a criminal
I think
tion.
delays
tain
to a
and
right
proceedings
habeas
defendant’s
federal
withstanding the
between
3161(h)(8)(A);
the
§
dis-
actions,
misapprehends
U.S.C.
and
§
trial. 18
1983
speedy
879 F.2d
of action.
Monger,
causes
two
States
the
tinction between
United
see
Cir.1989)
that
(finding
the
of lim-
(6th
one-year statute
imposes
221-22
AEDPA
granted
petition.
properly
habeas
judge
filing federal
magistrate
for
itations
complex
in a
2244(d)(1)(A).
one-year
This
continuance
justice”
of
“ends
28 U.S.C.
of
large quantity
involving
in
finality
state-court
trial
promotes
criminal
period
coconspira-
multiple
Walker,
and
533 U.S.
Duncan v.
wiretap evidence
judgments.
justice”
of
“ends
tors).
that the
251
150 L.Ed.2d
I believe
167, 179, 121 S.Ct.
Gooey’s
applicable to
poten-
the
equally
(“This
principle
provision reduces
finality by
challenge.
§ 1988
the road
delay on
for
tial
fed-
prospective
that a
the time
restricting
com-
his
intervenors
Cooey and the
seek
which
petitioner
eral habeas
lethal-injection proto-
the
allege that
plaint
review.”).
But a
habeas
federal
Eighth
their
will violate
in Ohio
used
col
validity of
the
an attack
is not
cruel and
of
free
to be
right
Amendment
conviction or
inmate’s
the death-sentenced
they
Specifically,
punishment.
unusual
complaint
in his
concedes
Cooey
sentence.
acting anes-
ultra-short
that
contend
...
relief
injunctive
seek
not
he “does
that
in-
sodium, may fail
thetic, thiopental
underlying
attacking
of
a means
as
result,
that,
aas
unconsciousness
duce
sen-
His
sentence.”
or death
conviction
paralytic
conscious when
may be
they
on March
final
became
tence
potassi-
bromide
pancuronium
agents,
to re-
declined
Court
Supreme
when
They as-
chloride,
administered.
are
um
Cooey’s federal
denial
court’s
view
likely
they will
happens,
if that
sert
538 U.S.
Coyle,
Cooey v.
petition.
resulting
from the
excruciating pain
suffer
L.Ed.2d
947, 123 S.Ct.
in-
chemically
by suffocation
death
a claim
Instead,
raises
(2003).
he
that,
attack,
because
but
heart
duced
sen-
executing the death
for
method
state’s
their vol-
paralyzes
bromide
pancuronium
rights.
his constitutional
violate
will
tence
unable
muscles, they
will
untary
fading to
speak.
or
move
faults
majority
challenge
method-of-execution
where,
bring his
great
justice are
The interests
made
1993, when Ohio
earlier,
as in
such
challenge
claimants
here,
§ 1988
exe-
methods
injection one
lethal
sen-
death
their
by which
method
only state,
when
in the
used
validity of
cution
out,
carried
are
tences
method
the sole
made
Ohio
executions
Ensuring
sentences.
their
Supreme
to the
prior
But
execution.
of the United
the Constitution
comply with
Campbell,
Nelson
courts,
decision
Court’s
duty for
paramount
is a
States
124 S.Ct.
158 L.Ed.2d
I am of
opinion
the district
(2004),
method-of-execution challenges
court’s
analysis
Cooey’s complaint and
under
were
barred
this circuit.
of the State’s motion to dismiss is thor-
(6th
In
Sapp,
Cir.)
See
re
ough, compelling,
frankly
more per-
(holding that a method-of-execution chal
suasive than
majority’s
analysis. After
lenge
habeas,
sounded in
not as a civil carefully considering the evidence before
action),
rights
cert.
mom.,
denied
it,
sub
court
district
articulated a reasoned
McQueen v. Sapp,
basis for setting the accrual point for stat-
method-of-execution challenge prior to This because, concerns me as has been Nelson. I agree. Even if Cooey could evidenced in the aftermath of the Joseph brought his civil rights complaint be- execution, Clark Ohio is free to periodical- fore which I dubious, find I ly see no change lethal-injection protocol. See justification for holding that he was re- Reginald Fields, Ohio revamps lethal-in- quired to do so. jection procedure, Cleveland Dealer, Plain unwilling I am rights, constitutional ex- (describing the 2006, B 1 at June the recent majority with agree af- Joseph Clark to execute effort tended Cooey’s not relate changes do protocol find unable were officials prison ter complaint. core arm other arm, vein in one vein be- shortly after collapsed Cooey to know had reason B. When staff correctional informed and Clark gan, claim grounds for statutory No working”). isn’t “this contends majority such howor The determines framework drug lethal-injection com- frame- isNor there was aware may occur. changes would be if, equipment that such when, even bination and governing work assertion This as of least used publicized. changes will Cooey’s com- inclusion on the rests asserts majority 19, 2002 from April dated aof letter plaint execu- the Clark resulting changes Haviland, then the Warden S. James com- “core relate not tion do Facility, where Correctional Ohio Southern as a basis implicated not were plaints” located, dis- chamber death only may experience that he assertion for his lethal-injec- about closing information require however, law, does Ohio pain. however, letter, Haviland’s tion protocol. to the changes any publish the ODRC *15 no and carries to no one is addressed ODRC protocol. lethal-injection recipient. any for information address protocol the about information some deems letter, I cannot reading my From basis on that information public to be or addressed it whom was ascertain request. public upon the it to provide will con- of its have learned might information other considers the ODRC But tents. nonpublic. letter, Warden 19, 2002 April In the convinced Moreover, I not am of the intra- the names provided Haviland merely changes were protocol in executions used equipment venous the procedure the “refinements” pharmaceuticals the names the generic from The switch them. describes state not He did inmate. the to execute used low- to a injections saline high-pressure be drugs to the amounts the disclose tubing IVthe drip to flush saline pressure form the about information used, any or concerns “viability” raises its maintain stored, ad- or they purchased, were which be- tubing flushing the adequately about not state Further, did he ministered. not drugs do the so that injections tween indi- administered drugs were whether reach they before another one react individually, and, if once, at or all vidually nothing in I see arm. inmate’s in- no was There sequence. in what addresses amendments or protocol length of about provided formation occurrence, or what of such risk any death-cham- used, tubing whether IV remedy or prevent taken be steps would for tubing monitored personnel ber reading have learned we it. As tubing or whether blockages, kinks ac- literature voluminous sometimes drags. between was flushed simplest prescription, even the companies Vincent May dated In a letter alter dramatically can interactions drug responded Counsel, Staff Lagaña, ODRC safety pharmaceuticals. efficacy or request recipient’s unidentified to an the record further evidence any Without lethal-in- about information additional risk affect the changes how regarding “informa-. noting that jection inmate’s violating death-sentenced [lethal-injection] about training, proce- novo standard. See Miller v. Currie, 50 dures, and procurement .... falls outside F.3d Cir.1995). After review- scope” of the Ohio Public Record Law. ing the letters from officials, ODRC which Nonetheless, Lagaña provided some infor- purport to set out the lethal-injection poli- mation about the procedure because “the cy that place I am unable Department recognizes public [that] the to conclude that Cooey had reason to know legitimate interests in this subject.” of the facts underlying his claim prior to This information revealed that the three time. The ODRC’s response to re- drugs in the lethal-injection protocol were quests for information has been grudging administered “normal saline concentra- and incomplete, and it apparently has un- tion,” that the thiopental sodium pan- fettered discretion in determining whether curonium bromide were purchased from “a the requested information is or is local pharmacy” by the correctional insti- made public. tution pharmacy, and that the drugs were Even having letters, read the I can see kept by the Warden in accordance with how a person reasonable would still be procedures developed by the Ohio State uninformed as to Ohio’s pro- death-penalty Board of Pharmacy and the Drug Enforce- tocol or it how might support a civil rights ment Agency. best, action. At Cooey’s knowledge of the note, I however, that the letter also in- protocol as May of 2002 would have cludes potentially misleading information. been murky; it would have totally been For example, it states that “[a] Medical opaque any time prior to that date. Doctor has pronounced death.” Although The point of all this is that the majority’s this might be true the extent that a assertion that Cooey had reason to know medical pronounced doctor the death anof of the basis for his complaint in the 1990s *16 inmate some point after the execution is not supported by the record. And al- was completed, it fails to acknowledge though I recognize May that of 2002 repre- that several associations of medical profes- sents point more than two years before sionals, including the American Medical Cooey fact filed §his 1983 complaint, (AMA) Association and the Society of Cor- only is one part of the necessary anal- rectional Physicians (SCP), direct their ysis. The part other is to determine when members not to be involved in a legally Cooey’s execution date became imminent. authorized execution. The AMA permits This did not occur until March physicians to “certifyf] death, provided when the Supreme Court denied peti- his that the condemned has been declared tion for certiorari in his proceed- habeas by dead person.” another Am. Med. ing. He filed present his complaint on Ass’n, Code of Ethics E-2.06 Un- 8, 2004, December which was 21 months der SCP the Ethics, Code of “[t]he correc- later. tional health professional shall not in-
volved any aspect of execution of the C. When execution became im- death penalty.” Soc’y of Physicians, Corr. minent Code of Ethics (1998), http://www. Almost every death-sentenced inmate corrdocs.org/ethics.html (last visited Feb. challenges his or her conviction and sen- 16, 2007). tence through habeas proceedings. Under
I take the facts in light the most favor- the majority’s rationale, however, virtually able to Cooey, Ias must when reviewing a every death-sentenced litigant will be denial of a motion to dismiss under the de from barred bringing §a 1983 action chai- court in of district analysis the the logical the method constitutionality of the lenging of the fixes statute that present the case Habeas by the State. chosen execution point when a at the date accrual become, or for good have proceedings imminent becomes execution petitioner’s carrying process the part ill, a routine the facts know of to he reason and justice criminal in our sentence a death out to his claim. rise giving to file petitioner require To system. years before five to three clarity and provides date accrual This legal to obtain order execution or her in- the death-sentenced certainty to both lethal-injection protocol the is
review the sentence that State and the mate counterintuitive, unduly attack, me strikes that susceptible not and final is Yet that wrong. plain harsh, just and set, that the is and date require. will rationale majority’s what Such likely fixed. is for that execution process judicial clarity also aids and the petitioners Moreover, both proceed- judicial efficiency of increases cognitive manage the have will courts courts ensuring federal that ings simulta- inefficiency of dissonance but con- overseeing simultaneous not are at- petitions habeas deciding neously parties. tradictory arguments conviction of the validity tacking the challeng- (2) § actions sentence, nothing I see majority, Contrary to procedure constitutionality of 21, 2007 February ing Court’s in the — The ma- U.S.-, sentence. carry Kato, out used in Wallace opinion - — pris- death-sentenced (2007), force thus will jority L.Ed.2d that claims their pursue the statute oners the issue on bears or, in some culpability lack of their case assert accrue should of limitations innocence, si- while instances, actual rights their case a civil is us. before Wallace re- guilt their multaneously implying point well-recognized turned imposed upon the sentence even questing accrues of action cause “[t]he constitutionally in a out injury be carried them extent though full at 1097. compliant manner. Id. predictable.” known or then basis to no reasonable Here, had intended are of limitations Statutes (in all injury at any if he would know de protect economy and judicial “promote *17 until lethal-injection protocol) of the terms Fin. Hancock John rights.” fendants’ I imminent. date became execution Bank, F.3d 346 Kent Servs., Inc. Old ac- § 1983 that conclude therefore Cir.2003). of concept (6th But the 727, 734 stat- two-year by Ohio’s is not barred tion more than contemplates economy judicial limitations. ute of delay temporal the minimization just sen capital aof imposition between de- arguments forestall Equitable D. Al execution. inmate’s tence lay a held that has Fifth Circuit though the the statute that I believe Because be can challenge method-of-execution until an to run begin should sen after an inmate’s any time raised imminent, and because becomes review, execution Ne on direct final became tence promptly move always almost (5th will Ohio 222 Johnson, 440 ville date, envision I would an execution set in curiam), analysis is Cir.2006) this (per rarely, would of limitations the statute adop its defends majority The complete. cases. these ever, an issue if “the point accrual Neville to de- courts federal for issue crucial more even consider I but logical,” most cide, then, is not limitations, the statute of plaintiffs would-be ... “nothing but whether equitable considerations should be construed as guaranteeing or prisoner bar a should from bringing even a last- suggesting that plaintiff a who waits minute long claim. This is a too concern to file his 1983 action raising a that Ohio makes much inof present method-of-execution claim will be entitled case. to a Although preliminary injunction.” there undoubtedly some This concern concern, merit about delay I excessive see no reason to underscored diverge Hill, from the Supreme Court’s decision in position Court’s — which stated Hill that equity requires v. McDonough, U.S.-, that in- mates seeking stay a S.Ct. (2006), L.Ed.2d 44 to raise §a 1983 claim must meet all the require- “inmates seeking time challenge ments for stay. a 126 S.Ct. at “[E]q- manner which the plans State to execute uity must be sensitive to the State’s strong them satisfy must all of requirements interest in enforcing its criminal judg- for a stay, including a showing of a signifi- ments without undue interference from the cant possibility of success on the merits.” federal courts.” Id. Id. at 2104. This includes applying “a strong equitable presumption against the Factors may play persuasive a grant stay of a where a claim could even dispositive role in a court’s determi- been brought at such a time nation of as to whether grant allow stay of execu- consideration of tion might the merits requir- without include such considerations as (1) ing entry stay.” of a whether protocol Nelson v. Campbell, has recently been (2) 637, 650, changed, whether petitioner has been diligent L.Ed.2d 924 in pursuing claim, his or her (3) whether petitioner has taken rea- court, The district ability to hear sonable steps to ascertain what the proto- and weigh evidence, necessarily has (and col is I note that past ODRC letters greatest information available to it in response to requests for information from which to equities balance the about have been shown to be considering a prisoner’s death-sentenced incomplete and terse to point being request for stay of execution. As we uninformative), whether the tradi- have seen in present case, the district tional factors involved in the balancing test court capably engaged in that very for granting a preliminary injunction task, despite the sometimes inconsistent weigh in stay. favor A conclusory guidance received from this court. Com statement petitioner with no factual pare Gooey (Lundgren) v. Taft, No. 06- support or development is unlikely to re- 23, 2006) Cir. Oct. (summarily sult in the entry stay of a any this or vacating stay of execution Jeffrey other matter. Petitioners who have been *18 Lundgren, who had execution date of diligently pursuing their method-of-execu- 24, 2006), October (Henderson) Cooey claims, tion contrast, will likely include No. 1, 2006) 06-4527 Cir. Dec. Taft. affidavits from a expert medical in support (reversing the district court’s denial Je of their arguments. If jurists reasonable rome Henderson’s motion stay his exe could debate whether a well-documented cution). claim could result in the relief that The district court also considered and petitioner seeks, equitable then consider- addressed the concern that death-sen- ations, barring persuasive other evidence tenced inmates might seek to use 1983 to the contrary, weigh would in favor of actions as a delaying tactic, cautioning granting a stay. the relief emphasize again
I wish the death spared be here
sought from cruel spared rather to but
penalty, administra- punishment unusual I am convinced Because thereof. within the claim § 1983 brought his period
two-year statute dissent. defined, respectfully I
properly America, STATES
UNITED
Plaintiff-Appellee, DIXON, Defendant- Joe
Ronnie
Appellant.
No. 05-6310. Appeals, States Court
United Circuit.
Sixth 31, 2006. Oct.
Submitted: 8, 2007. March and Filed:
Decided