Richard Cooey, II v. Ted Strickland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0289p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JASON GETSY,
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Plaintiff-Appellant,
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No. 08-4199
v.
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TED STRICKLAND, et al.,
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Defendants-Appellees.
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Filed: August 17, 2009
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ORDER
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A member of the court having suggested rehearing en banc, 6 Cir. R. 35(c), the
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matter was referred to all active judges, less than a majority of whom voted in favor of such
rehearing. Accordingly, the decision of the panel remains in place, the motion of the appellant
to stay execution is denied, and the Clerk is directed to issue the mandate forthwith.
It is so ORDERED.
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Judge Cook recused herself from participation in this matter.
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No. 08-4199 Getsy v. Strickland, et al. Page 2
KAREN NELSON MOORE, Circuit Judge, with whom WHITE, Circuit Judge, joins,
dissenting from denial of rehearing en banc. I dissent from the denial of rehearing en banc for
the reasons expressed in my concurring opinion in Getsy v. Strickland, No. 08-4199, slip op. at
8 (6th Cir. Aug. 13, 2009) and for the reasons articulated in Judge Gilman’s dissents in Cooey
v. Strickland, 479 F.3d 412, 424 (6th Cir. 2007) (Cooey II), and Cooey v. Strickland, 489 F.3d
775, 776 (6th Cir. 2007).
As I have previously emphasized, “‘[a] suggestion for rehearing en banc is an
extraordinary procedure which is intended to bring to the attention of the entire Court a
precedent-setting error of exceptional public importance or an opinion which directly conflicts
with prior Supreme Court or Sixth Circuit precedent.’” Bell v. Bell, 512 F.3d 223, 250 (6th Cir.
2008) (Moore, J., dissenting) (quoting 6 Cir. R. 35(c) (emphasis added)). This is precisely that
case.
Determining when the statute of limitations begins to run for a death-sentenced prisoner
who wishes to challenge a state’s method of execution under 42 U.S.C. § 1983 is tantamount to
determining whether the prisoner will be able to challenge the method of execution at all.
Certainly, the determination of when a person becomes time barred from challenging a procedure
that may violate his or her constitutional rights is of “exceptional public importance.” Because
the panel majority in Cooey II fundamentally erred in determining the moment at which the
statute of limitations begins to run in a § 1983 method-of-execution challenge—and we are thus
improperly constrained in Getsy—en banc review is required.
Furthermore, as stated in my concurring opinion in Getsy, applying Cooey II’s
“precedent-setting error” in Getsy’s case is unconscionable. Due to the majority’s refusal to
review Cooey II by way of its application in Getsy, Getsy will be executed on August 18, 2009,
without ever having the opportunity to have a court consider the merits of his Eighth Amendment
challenge to his method of execution, a method that a court may well find unconstitutional just
a few short months following his death by lethal injection. For the foregoing reasons, I dissent
from the denial of en banc review.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk