COOEY II v. Strickland , 588 F.3d 1124 ( 2009 )

588 F.3d 1124 (2009)

Richard Wade COOEY II, et al., Plaintiffs,
Kenneth Biros (Intervenor), Plaintiff-Appellant,
v.
Ted STRICKLAND, Governor, et al., Defendants-Appellees.

No. 09-4474.

United States Court of Appeals, Sixth Circuit.

December 7, 2009.

Charles L. Wille, James Eric Holloway, Office Of The Ohio Attorney General, Columbus, OH, for Plaintiff-Appellant.

John Patrick Parker, Attorney, Law Offices, Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, OH, for Defendants-Appellees.

Before: SILER, GIBBONS, and SUTTON, Circuit Judges.

ORDER

The court received a petition for rehearing en banc, stay of execution and issuance of a briefing schedule, and the petition was circulated not only to the original panel members but also to all other active^[1] judges of the court. Less than a majority of the judges having favored the suggestion, the petition was therefore referred to the original panel.

The panel has further reviewed the petition for rehearing and other relief 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.

GRIFFIN, Circuit Judge (dissenting), with whom WHITE, Circuit Judge, joins.

I am troubled by the procedural posture of this case and "Plan B" of the new protocol. Although the opinions are comprehensive, this appears to be a classic rush-to-judgment. On December 3, 2009, Biros filed a motion to amend his complaint to challenge the new, November 30, 2009 protocol. On December 4, the district court granted the motion and ordered an evidentiary hearing to commence 4 1/2 hours later. In my view, basic procedural due process demands more. On this issue, the final page of Judge Frost's opinion is revealing: "It is not clear whether Biros could discover and present facts evincing a viable claim that would enable him to prevail in this litigation so that Ohio would need to find another method by which to execute him." I would GRANT the petition for rehearing en banc and STAY the execution.

NOTES

[1] Judge Cook recused herself from participation in this ruling.