Richard Wade Cooey Ii v. TED STRICKLAND , Governor

1Judge Cook recused herself from participation in this ruling.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0415p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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RICHARD WADE COOEY II, et al.,
Plaintiffs,
KENNETH BIROS (Intervenor),
Plaintiff-Appellant,
v.
TED STRICKLAND , Governor, et al.,
Defendants-Appellees.
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No. 09-4474
Filed: December 7, 2009
Before: SILER, GIBBONS, and SUTTON, Circuit Judges.
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ORDER
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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 active1 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.
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No. 09-4474 Biros v. Strickland, et al. Page 2
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.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk

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