Richard Wade Cooey Ii v. MARGARET BRADSHAW, Warden

*Judges Batchelder, Sutton, and Cook recused themselves from
participation in this decision.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0267P (6th Cir.)
File Name: 03a0267p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD WADE COOEY II,
Petitioner-Appellee,
v.
MARGARET BRADSHAW,
Warden,
Respondent-Appellant.
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No. 03-4001
Filed: July 31, 2003
Before: MARTIN, Chief Circuit Judge; BOGGS,
DAUGHTREY, MOORE, COLE, CLAY, GILMAN,
GIBBONS, and ROGERS, Circuit Judges.*
_______________________________
SECOND AMENDED ORDER
_______________________________
This matter is presently before the court upon petitioner’s
request for initial hearing en banc of the respondent’s motion
2 Cooey v. Bradshaw No. 03-4001
to vacate the stay of execution which was granted by the
district court on July 23, 2003.
The petition for initial en banc hearing has been presented
to the nonrecused active judges of the court, a majority of
whom have voted in favor of en banc review. Furthermore,
a majority of the nonrecused active judges of the court have
voted to deny the state’s motion to vacate the stay of
execution. The stay of execution granted by the district court
remains undisturbed. IT IS SO ORDERED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
__________________________________
Clerk

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No. 03-4001 Cooey v. Bradshaw 3
______________________
CONCURRENCE
______________________
CLAY, Circuit Judge, concurring. Approximately thirteen
hours before Petitioner’s execution, the district court issued
a stay. Respondent appealed. On July 24, 2003, we granted
Petitioner’s motion to hear Respondent’s appeal initially as an
en banc Court. Judge Boggs published a brief dissent from
this Court’s decision. I wish to emphasize two points about
Judge Boggs’ dissent.
First, Judge Boggs purports to accept the reasoning in an
unpublished (and unissued) panel decision authored by Judge
Suhrheinrich. Judge Boggs appends Judge Suhrheinrich’s
decision to his dissent. After losing below, Respondent
appealed to a three judge panel of this Court consisting of
Judges Suhrheinrich, Siler, and Gilman. Although Judge
Suhrheinrich, joined by Judge Siler, circulated a proposed
draft opinion at 3:06 p.m. on July 24, 2003, this Court
accepted Petitioner’s request for initial en banc review at 4:00
p.m. that same day. The granting of initial en banc review
eliminated the panel’s jurisdiction over this matter. The three
judge panel had not filed Judge Suhrheinrich’s proposed draft
opinion when the en banc Court assumed jurisdiction. Had
the panel already filed an opinion, the decision to hear the
case en banc would have automatically vacated the panel’s
opinion. Judge Surheinrich did not attempt to file the panel’s
opinion until 9:17 a.m. on July 25, 2003, well after he lost
jurisdiction over the case and the concomitant right to file
opinions.
I have no quarrel with Judge Boggs’ decision to support
Judge Suhrheinrich’s views and I recognize that Judge Boggs
may endorse whatever reasoning he chooses. I also believe,
however, that by neglecting to mention that this Court, acting
en banc, deprived the panel of jurisdiction, Judge Boggs
creates a misleading impression about the precedential value
4 Cooey v. Bradshaw No. 03-4001
of an opinion Judge Suhrheinrich filed without jurisdiction.
Decisions issued ultra vires have no legal meaning. Although
not evident from Judge Boggs’s dissent, Judge Boggs has
choosen to endorse an opinion that the panel had no authority
to issue.
Second, as Judge Boggs notes, our decision to deprive the
panel of jurisdiction by agreeing to hear the matter initially as
an en banc Court had the effect of not placing Judges
Suhrheinrich and Siler on the en banc court that will
ultimately decide Cooey v. Bradshaw. Despite the dissent’s
unhappiness with this development, absolutely nothing
procedurally irregular occurred. Although I cannot speak for
my colleagues, I felt compelled to support initial en banc
because of the urgency this case involved. Respondent
scheduled Petitioner’s execution for 10:00 a.m. on July 24,
2003, but the death warrant remained in effect that entire day.
Had the panel issued a decision vacating the district court’s
stay in the afternoon of July 24, 2003, Petitioner would have
become immediately eligible for execution, meaning the en
banc Court may not have had the opportunity to review this
case.
Judges Suhrheinrich and Siler have taken senior status.
Pursuant to 28 U.S.C. § 46(c), which governs the composition
of en banc courts, a court of appeals sitting en banc "shall
consist of all circuit judges in regular active service . . . except
that any senior circuit judge of the circuit shall be eligible to
participate . . . as a member of an in banc court reviewing a
decision of a panel of which such judge was a member." See
also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C.
§ 46(c)). Thus, because the three judge panel never reached
a decision prior to the en banc Court granting initial en banc
review, Judges Siler and Surhrienrich are statutorily ineligible
to participate in the en banc review of the district court’s
order staying Petitioner’s execution. This is not to suggest
that Judges Siler and Suhrheinrich, who sat as panelists in an
earlier appeal involving Petitioner, would not have much to
contribute as members of the en banc Court. See Cooey v.

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No. 03-4001 Cooey v. Bradshaw 5
Coyle, 289 F.3d (6th Cir. 2002). If, however, Judge Boggs
dislikes the requirements of 28 U.S.C. § 46, he should address
his complaint to Congress.
6 Cooey v. Bradshaw No. 03-4001
________________
DISSENT
________________
BOGGS, Circuit Judge, dissenting from order granting
initial hearing en banc and denying the motion to vacate stay.
I believe the court’s action in this case is wrong on several
counts.
By adopting the motion for hearing en banc, based on our
court’s interpretation of Fed. R. App. P. 35(a), the court
pretermits the ability of the panel to deal with the motion that
was before it in the first instance, and for which a majority of
the panel had prepared a draft opinion for imminent filing.
The reasoning of that draft opinion expresses my views on the
merits of the district court’s action. I endorse the attached
reasoning as a full statement of my reasons for opposing the
hearing en banc and favoring vacating the stay granted by the
district court.
In addition, by entertaining a motion for hearing en banc,
as opposed to allowing the panel to issue an order and then
considering a rehearing of that order, this action pretermits
the ability of the two senior judges on the panel to participate
in the en banc court that considered the motion to vacate the
stay. As those judges have been intimately familiar with this
case from its inception, that change represents a significant
loss of wisdom in the making of this decision.
Furthermore this may well portend a general tactic of
circumventing panels of this court in death penalty cases by
the filing of motions for initial hearing en banc. Such
motions have the effect of preventing the participation of
senior judges on a death penalty panel, who may be by far the
most knowledgeable judges on the given issues. They also
may give rise to an unseemly “race to judgment” if a rapid

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No. 03-4001 Cooey v. Bradshaw 7
vote on the en banc motion overlaps with the filing of a panel
ruling.
As the reasoning attached makes clear, we are again
allowing a litigant to procure a stay of execution without
filing a petition for a writ of habeas corpus or any other
document that might appropriately support such a motion. Cf.
In re John W. Byrd, 269 F.3d 578, 582 (6th Cir. 2001)
(Boggs, J., dissenting).
I therefore respectfully dissent from the ordering of a
hearing en banc of the motion to vacate the district court’s
stay of execution, and from the action of the en banc court in
refusing to vacate the stay.
8 Cooey v. Bradshaw No. 03-4001
Attachment to Dissent of Judge Boggs
Margaret Bradshaw, Warden (“Warden”), appeals from a
July 23, 2003 order by the district court granting Petitioner
Richard Wade Cooey’s motion for a stay of execution
pending this Court’s en banc rehearing of Abdur’Rahman v.
Bell, Case Nos. 02-6547/6548 (6th Cir. Mar. 5, 2003), “or
until the Sixth Circuit has construed its June 10, 2003 letters
to Cooey’s former federal appellate habeas counsel.”
Memorandum of Opinion and Order dated July 23, 2003, at
19 (“District Court Order”). For the reasons that follow, we
[should] VACATE the district court’s order of stay and
reinstate Cooey’s date of execution.
I. BACKGROUND
Cooey was convicted and sentenced to death in 1986 for the
rapes and murders of Wendy Offredo and Dawn McCreery.
The Ohio Court of Appeals upheld Cooey’s conviction and
sentence, see State v. Cooey, 1987 WL 31921 (Dec. 23,
1987), as did the Ohio Supreme Court. See State v. Cooey,
544 N.E.2d 895 (Ohio 1989). The United States Supreme
Court denied certiorari on April 1, 1991. See Cooey v.Ohio,
499 U.S. 954 (1991). His requests for state post-conviction
relief were also denied. See, e.g., State v. Cooey, 1994 WL
201009 (Ohio App. May 25, 1994).
Cooey first sought federal habeas relief in October 1996.
On September 4, 1997, the district court denied the writ. See
Cooey v. Anderson, 988 F. Supp. 1066 (N.D. Ohio 1997).
The district court also issued a certificate of probable cause
for appeal. Cooey filed a notice of appeal. On October 12,
2000, we ruled that the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) applied to this case, and that
the district court’s issuance of a certificate of probable cause
under the pre-AEDPA version of 28 U.S.C. § 2253(c) was
ineffective. We treated Cooey’s brief as an application for a
certificate of appealability, and further directed Cooey to
show cause why we should not deny the application for a

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No. 03-4001 Cooey v. Bradshaw 9
certificate. We attached to our show cause order an appendix
summarizing our tentative view as to each issue. The parties
filed briefs in response to our show cause order, and the
matter was argued on January 30, 2002.
We ultimately granted a certificate of appealability on two
issues. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002).
But after thorough review of the record, we held that Cooey
had received a fair trial and was not entitled to habeas relief.
On June 10, 2003, six weeks before his scheduled July 24
execution, we removed Cooey’s habeas counsel from his case
and directed the Ohio Public Defender’s Office to appoint
new counsel for any further proceedings. In dismissing
Cooey’s two former attorneys, we directed the clerk’s office
to send the following letters. The letter to the first attorney
stated:
[The Court has] asked the Ohio Public Defender’s Office
to be prepared to locate new counsel for Mr. Cooey in the
event he wishes to initiate any new federal filings
between now and his scheduled execution date of
July 24, 2003. . . . [You] will not receive any new
appointments on appeal or extensions of appointments
under the Criminal Justice Act in capital cases. This
reflects the court’s dissatisfaction with both the quality of
the appellate briefs and the oral argument in Cooey v.
Coyle and the amount of attorney’s fees which were paid
. . . for Mr. Cooey’s representation.
The letter to the second attorney stated:
[This] court will not appoint or extend any trial
appointments to [counsel] in [any future] capital cases.
This reflects the court’s dissatisfaction with both the
quality of the appellate briefs and the oral argument in
Cooey v. Coyle and the amount of the attorney’s fees
which were paid to [counsel] and [co-counsel] for Mr.
Cooey’s representation. . . . [T]he Ohio Public
10 Cooey v. Bradshaw No. 03-4001
Defender’s Office [is] to find a substitute [attorney] for
you in this appeal and to be prepared, if necessary, to
arrange for new counsel for Mr. Cooey in the event he
wishes to initiate any new federal filings between now
and [his scheduled execution date of July 24.]
On July 17, 2003, Cooey, proceeding pro se, filed a motion
in the district court, pursuant to 21 U.S.C. § 848(q)(4)(B), for
new counsel to represent and aid him in the preparation,
filing, and prosecution of a motion pursuant to Fed. R. Civ. P.
60(b), and a petition for writ of habeas corpus under 28
U.S.C. § 2254. That same day, the district court appointed
the Federal Public Defender’s Office to represent Cooey and
investigate whether he had any viable federal claims to
present. However, on July 18, 2003, the Federal Public
Defender requested permission to withdraw. On July 21,
2003, the district court granted that motion and appointed
current counsel from the Ohio Public Defender’s office “for
the purpose of advising [Cooey] whether he has any further
federal remedies and if so, to file the appropriate pleadings.”
The district court’s order further indicated that “[t]he Court
is not issuing a stay of execution, which is set for July 24,
2003.”
On July 22, 2003, Cooey, through current counsel, filed in
the district court a motion for relief pursuant to Fed. R. Civ.
P. 60(b), and a motion for stay of his scheduled July 24
execution pending the court’s review of his Rule 60(b)
motion. Under Rule 60(b), Cooey sought to reopen his
habeas corpus proceedings based on the alleged incompetence
of his dismissed habeas corpus counsel. Cooey argued that
our June 10 letters to his former counsel displayed our belief
that his former counsel was incompetent, and therefore
ineffective. Cooey sought a stay in order to allow his new
counsel further time to review his case to determine if
Cooey’s ineffective assistance of counsel claims were viable.
The State filed its response on July 23, 2003. That night,
at 9:12 p.m., the district court granted Cooey’s motion to stay

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No. 03-4001 Cooey v. Bradshaw 11
his execution, but declined to rule on Cooey’s underlying
Rule 60(b) motion. The district court expressed concern
whether it properly held jurisdiction to address Cooey’s Rule
60(b) motion because our current law on the issue is unclear.
We have held that a Rule 60(b) motion is the “practical
equivalent” of a subsequent habeas petition, which a district
court holds no jurisdiction to entertain. See McQueen v.
Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996). However, this
issue is currently slated for en banc review in Abdur’Rahman.
Against this backdrop, the district court granted the stay
because it had only “48 hours to grapple with this
unprecedented situation,” and did not have “sufficient time to
flesh out the principles underlying [its] decision.” The court
held that our June 10 letters to Cooey’s former counsel may
have raised some question whether Cooey had received
effective counsel, and therefore“it would be unseemly for
Cooey to be executed” without proper time to evaluate and
determine whether, in light of our admonishment of previous
counsel, Cooey had received the fair review to which he is
statutorily entitled. Therefore, the district court did not rule
on the 60(b) motion, but left it to this Court to construe the
significance of our June 10 letters in order to ascertain
whether the performance of Cooey’s prior appellate habeas
counsel had in fact “cast a cloud over the integrity of the
habeas process” such that his Rule 60(b) motion should be
granted.
The Warden has appealed the district court’s order. The
Warden contends, first, that the district court was without
jurisdiction to enter a stay of execution because a stay of
execution cannot be issued in response to a Rule 60(b) motion
since such a motion is not a habeas proceeding; second, that
if we were to address Cooey’s Rule 60(b) claim on its merits,
that Cooey has failed to describe any substantial claim under
which relief can be granted; and finally, that Cooey’s
appellate habeas counsel did not undermine the integrity of
this Court’s proceedings.
12 Cooey v. Bradshaw No. 03-4001
II. ANALYSIS
A. Jurisdiction
28 U.S.C. § 2251 permits a federal judge “before whom a
habeas corpus proceeding is pending” to stay a state court
proceeding. See 28 U.S.C. § 2251. In this case, there is no
habeas corpus petition pending before the district court, but
only a Rule 60(b) motion. Cooey’s prior habeas petition was
denied by the district court and we affirmed that decision.
Indeed, Cooey does not, and cannot, maintain that his present
action before the district court is a second habeas petition. He
cannot make that assertion, because if his motion were a
second habeas petition, it would be subject to the strictures set
forth in 28 U.S.C. § 2244(b)(3), and the district court would
lack jurisdiction to entertain it. Moreover, the district court
expressly found that Cooey’s motion was not a habeas
petition under § 2254. Memorandum, p. 15. And given this
finding, the district court essentially deprived itself of
jurisdiction to grant a stay under § 2251. Without express
authorization by federal statute or an exception to the Anti-
Injunction Act, the district court was without jurisdiction to
grant the stay of execution here. See 28 U.S.C. § 2283;
Mitchum v. Foster, 407 U.S. 225, 226 (1972). Because there
is no proper proceeding before the district court that would
have allowed it to enter the stay of execution, that order must
be vacated. See Calderone v. Thompson, 523 U.S. 538 (1998)
(holding that the court of appeals abused its discretion in sua
sponte recalling its mandate); Bowersox v. Williams, 517 U.S.
345, 346 (1996) (per curiam) (vacating the stay of execution;
holding that the court of appeals abused its discretion in
entering a stay of execution pending disposition of a
successive petition in light of, inter alia, the “surface
implausibility” of the petitioner’s claims); Delo v. Blair, 509
U.S. 823 (1993) (per curiam) (vacating the stay of execution;
noting that there was “no conceivable need for the court of
appeals to engage in further study of the petitioner’s claims”);
Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)
(per curiam) (vacating the stay); West v. Bell, 242 F.3d 338

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No. 03-4001 Cooey v. Bradshaw 13
1Fed. R. Civ. P. 60(b) provides for relief from judgment on various
grounds, including:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated as intrinsic or
extrinsic), misrepresentation, or other misco nduct of an ad verse
party; . . . or (6) any other reason justifying relief from the
operation of judgment. . . . This rule does not limit the power of
a court to entertain an ind ependent action . . . for fraud upon the
court”).
(6th Cir. 2001) (vacating the district court’s grant of a stay of
execution; holding that there was no proper proceeding before
the district court upon which to premise the stay).
B. Rule 60(b)
Assuming that the district court had any jurisdiction to
enter a stay, we find it nonetheless to be an abuse of
discretion because Cooey failed to establish an underlying
viable claim for relief under Rule 60(b). Cooey never
indicates on which clause of Rule 60(b)1 he relies, although
his argument that habeas counsel’s conduct affected the
“integrity of the proceedings” most closely resembles the
“savings clause” of Rule 60(b), see Fed. R. Civ. P. 60(b)
(“This rule does not limit the power of the court to entertain
an independent action . . . for fraud upon the court.”). The
district court sua sponte relies upon the “independent action”
ground as articulated in United States v.Beggerly, 524 U.S.
38, 46 (1998) (articulating standard as “[i]ndependent actions
must, if Rule 60(b) is to be interpreted as a coherent whole, be
reserved for those cases of injustices which, in certain
instances, are deemed sufficiently gross to demand a
departure from the rigid adherence to the doctrine of res
judicata”(internal quotation marks omitted)). In Barrett v.
Secretary of Health & Human Servs., 840 F.2d 1259, 1263
(6th Cir. 1987), we set forth the elements of such a cause of
action under Rule 60(b)):
14 Cooey v. Bradshaw No. 03-4001
2It should be recalled that we examined the entire record in this case
three times; first, when we expressed o ur tentative view o f Coo ey’s
app lication for a certificate of appealability; second, when we ruled
definitively on the request for a COA; and third, when we denied habeas
relief on the merits.
(1) a judgment which ought not, in equity or good
conscience, to be enforced; (2) a good defense to the
alleged cause of action on which the judgment is
founded; (3) fraud, accident, or mistake which prevented
the defendant in the judgment from obtaining the benefit
of his defense; (4) the absence of fault or negligence on
the part of the defendant; and (5) the absence of any
adequate remedy at law.
Cooey cites to our docket entries of June 10, 2003, and to
our comments in our merits opinion and appendix thereto
criticizing former habeas counsel, as constituting a “fraud on
the court.” Moreover, the the district court expressly
requested that we clarify our intent in chastising counsel.
Suffice it to say that our displeasure with counsel’s
performance was based on appellate habeas counsel’s overt
strategy to litigate every conceivable claim, despite the utter
baselessness of many of them. It was not based on any
conclusion, upon our exhaustive review of the record in this
case2, that counsel failed to recognize and raise any
meritorious claims. In other words, our dissatisfaction
stemmed from the waste of judicial and financial resources,
not from concern over “errors left hidden behind bad
representation.” See Cooey’s Motion for a Stay, at 4.
Restated again, habeas appellate counsel’s overzealousness
may have unnecessarily burdened the Court, but it did not
affect the integrity of Cooey’s initial habeas proceedings or
otherwise prevent us from understanding the case and
reaching the right result.
In sum, we explicitly reject Cooey’s implicit argument that
former counsel’s overzealousness in raising frivolous claims
supports the assumption that counsel overlooked meritorious

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No. 03-4001 Cooey v. Bradshaw 15
claims. Absent an actual showing of the latter (and Cooey
has made no such attempt), it cannot be said that the integrity
of the judicial proceedings have been compromised and that
justice has not been served such that a Rule 60(b) motion, on
any basis should be granted. Cooey’s attempt to transmogrify
our criticism of former habeas counsel’s excessive and
wasteful strategy into a fraud upon the court must be rejected.
Moreover, the specific claims which Cooey asserts require
Rule 60(b) relief have already been addressed on the merits
and clearly understood by this Court. Therefore, Cooey is not
entitled to relief under any of the enumerated sections of Rule
60(b). Cooey’s true claim is that those issues were not argued
well, and what he really wants is an opportunity to readdress
those claims. This is not a permissible basis for a Rule 60(b)
motion, however. See Jinks v. AlliedSignal, 250 F.3d 381,
385 (6th Cir. 2001) (stating that a “Rule 60(b) [motion] does
not allow a defeated litigant a second chance to convince the
court to rule in his or her favor by presenting new
explanations, legal theories, or proof”). Counsel also glosses
over the fact that what is at issue is former appellate habeas
counsel’s behavior in this Court during the initial appeal, and
not any misbehavior by the trial habeas counsel in the district
court. Rule 60(b) relief is inappropriate for this reason as
well.
C. Successive Petition
Thus, Cooey’s claim that counsel’s alleged incompetence
affected the integrity of the initial habeas proceedings is
simply an ineffective assistance of appellate habeas counsel
claim. To be sure, we need only look to what Cooey wants
here–time to allow new counsel to go back through the record
to see if there are any issues that should have been raised but
were not. Failing to raise meritorious claims is the very
definition of ineffective assistance of counsel. Because
premised on “incompetence” or “ineffectiveness,” Cooey’s
Rule 60(b) motion is a “proceeding arising under section
16 Cooey v. Bradshaw No. 03-4001
3The district court lacked jurisdiction to enter the stay absent our
express authorization under § 224 4(b)(3)(A ). See Kutzner v. Coc krell,
303 F.3d 333, 338 (5th C ir. 200 2); Martinez v. Texas Court of Criminal
Appea ls, 292 F.3d 417 , 423 (5th C ir.), cert. denied, 122 S. Ct. 1992
(2002); Spivey v. State Bd. of Pardons & Paroles, 279 F.3d 1301, 1303-
04 (11th Cir. 2002 ) (per curiam ); cf. In re Parker, 49 F.3d 2 04, 2 13 (6th
Cir. 1995) (holding that the district court’s order appointing counsel under
21 U.S.C. § 848(q)(4)(B) did not give it jurisdiction over the action
sufficient to allow it to enter a stay of execution pursuant to 28 U .S.C. §
2251; pre-A ED PA ). As the Fifth Circuit stated in Kutzner, “[a]llowance
of a stay of execution under these circumstances would signal tacit
approval of endless stays for the preparation of endless successive
petitions.” Kutzner, 303 F.3d at 338.
4Of course any claim presented in the prio r app lication is subject to
dismissal. 28 U .S.C. § 224 4(b)(1).
2254,” and not cognizable. Section 2254(i) flatly precludes
such a claim:
The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings
shall not be a ground for relief in a proceeding arising
under section 2254.
28 U.S.C. § 2254(i). See also Coleman v. Thompson, 501
U.S. 722, 755 (1991) (holding that there is not constitutional
right to counsel in state collateral proceedings). Thus, under
the plain language of the AEDPA, there is no jurisdiction for
any court to hear the merits of Cooey’s claim. Cooey’s Rule
60(b) motion is in reality an application for permission to file
a second habeas petition, subject to 28 U.S.C. § 2244(b)(3),
and to say otherwise makes a mockery of the AEDPA.3
Cooey also does not attempt to show how any new claims
unearthed by new counsel could somehow satisfy the
requirements of § 2244(b)(2).4 That is, to survive dismissal,
Cooey would have to demonstrate that any new claim relies
on a new rule of constitutional law made retroactive to cases
on collateral review; or based on a factual predicate that could

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No. 03-4001 Cooey v. Bradshaw 17
not have reasonably been discovered previously, and if
proven, would be sufficient to establish by clear and
convincing evidence that, but for the constitutional error, no
reasonable factfinder would have found the applicant guilty.
See 28 U.S.C. § 2244(b)(2). Cooey also makes no attempt to
address the requirements of § 2244(b)(1) or (2), Indeed, we
note that Cooey does not even attempt to argue that his claims
otherwise survive § 2244(b)(1) or (2).
We have exhaustively reviewed the entire record in this
case several times. Based on that review, we cannot say that
meritorious claims were missed. Nor can it be said that
Cooey is actually innocent of the crimes for which he was
convicted. Having said this, we do not see how it can be said
that the integrity of the habeas process was in any way
compromised and that justice was not served. Thus, to grant
a stay of execution under these circumstances would not only
run afoul of the AEDPA, but interfere with the State of
Ohio’s legislative and judicial sovereignty.
III. CONCLUSION
Given our conclusion that no relief is available under Rule
60(b) or § 2244(b), the district court’s grant of the stay was
improper.

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