Steve Henley v. George Little

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0086n.06
Filed: February 2, 2009
No. 09-5084
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVE HENLEY,
Plaintiff-Appellant,
v.
GEORGE LITTLE, et al.,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
Before: SILER, COLE, and COOK, Circuit Judges.
PER CURIAM. Petitioner Steve Henley moves this Court for a stay of his execution
scheduled for February 4, 2009, pending the Court’s disposition of Harbison v. Little, No. 07-6225
(6 Cir. filed Oct. 5, 2007), which presents a similar challenge to the constitutionality of Tennessee’sth
three-drug lethal injection protocol. The district court dismissed Henley’s case as barred by the
applicable statute of limitations. We agree, decline to stay Henley’s execution, and dismiss his
appeal.
The district court correctly held that Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) is the
law of this Circuit. Under Cooey, an inmate’s § 1983 cause of action accrues upon the conclusion
of direct review in state court or at the expiration of time for seeking such review. Id. at 421-22.

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No. 09-5084
Henley v. Little
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Henley petitioned for Supreme Court review, which was denied in June 1990. Under Cooey,
however, the accrual date must be adjusted if an inmate could not have discovered the
“injury”—here, the method of execution—until a later date. Id. at 422. Tennessee adopted lethal
injection as its presumptive method of execution on March 30, 2000 and the district court viewed
March 30, 2001 as the date Henley’s right to bring this action expired. Henley clearly missed this
deadline.
Alternatively, construing all the relevant dates in the way most favorable to Henley, the very
latest his cause of action could have accrued was June 2007, when Tennessee revised its lethal
injection protocol. But Henley did not file suit until November 26, 2008. Thus, he missed even this
June 2008 expiration date by several months.
The cause of action being stale when brought, the district court correctly dismissed it, and
we affirm that dismissal.

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