Richard Wade Cooey, Ii v. Ted Strickland, et al.;

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0655n.06
No. 08-4203
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RICHARD WADE COOEY, II,
Plaintiff
ARTHUR TYLER;
Intervenor-Appellant,
v.
TED STRICKLAND, et al.;
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
Before: GIBBONS, ROGERS, and SUTTON, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Arthur Tyler appeals the district court’s
dismissal of his 42 U.S.C. § 1983 challenge to Ohio’s method of execution. Upon examination of
the record and briefs, this panel unanimously agrees that oral argument is not necessary. Fed. R.
App. P. 34(a).
Tyler was convicted of aggravated murder and sentenced to death on January 19, 1986. On
April 25, 2007, he filed an intervenor complaint in a § 1983 lawsuit challenging Ohio’s protocol for
lethal-injection brought by fellow death-sentenced inmate, Richard Cooey. After this Court held that
Cooey’s challenge was time-barred, Cooey v. Strickland (Cooey II), 479 F.3d 412, 424 (6th Cir.
2007), the district court dismissed Tyler’s complaint on the same grounds.

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Tyler argues that his claim is not barred under Cooey II for the following reasons: (1) Cooey
II was wrongly decided; (2) Cooey II, even if correctly decided, does not apply to Tyler; (3) Cooey
II borrowed the statute of limitations from the Antiterrorism and Effective Death Penalty Act, 28
U.S.C. § 2244, under which Tyler’s claim is timely; (4) Tyler is entitled to equitable tolling; and (5)
the continuing-violations doctrine precludes application of the statute of limitations to method-of-
execution challenges. Further, Tyler argues that he is entitled to further factual development of the
statute of limitations question.
A thorough review of the record reveals that Tyler’s arguments are nearly identical to those
considered and rejected by this Court in appeals by other death-sentence inmates who had also
intervened in Cooey II. See Broom v. Strickland, — F.3d —, No. 08-4200, 2009 WL 2739603 (6th
Cir. Sept. 1, 2009); Getsy v. Strickland, — F.3d —, No. 08-4199, 2009 WL 2475165 (6th Cir. Aug.
13, 2009), reh’g en banc denied, 2009 WL 2496573 (6th Cir. Aug 17, 2009), cert. denied, No. 09-
5935, 2009 WL 2490098 (Aug. 17, 2009). The reasoning set forth in Broom, Getsy, and Cooey II
is binding on this panel and, to the extent the cases have already addressed Tyler’s arguments, we
adopt their reasoning here. Tyler’s other arguments not directly addressed by this Court in those
cases were raised before the district court. See Cooey v. Strickland, No. 2:04-cv-1156, 2008 WL
4065844, at *1 (S.D. Ohio Aug. 25, 2008) (incorporating by reference the reasoning of Cooey v.
Strickland, No. 2:04-cv-1156, 2008 WL 4065809 (S.D. Ohio Aug. 25, 2008)). Upon review of the
district court opinion, we find it to be correctly decided and affirm the reasoning therein.
For the reasons set forth above, we AFFIRM the judgment of the district court.

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