                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0208p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                       X
                                  Plaintiff-Appellant, -
 SEDLEY ALLEY,
                                                        -
                                                        -
                                                        -
                                                                           No. 06-5816
           v.
                                                        ,
                                                         >
 GEORGE LITTLE, in his official capacity as             -
                                                        -
                               Defendants-Appellees. -
 Tennessee’s Commissioner of Correction, et al.,

                                                        -
                                                       N

                                           Filed: June 26, 2006
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, ROGERS, SUTTON, COOK, MCKEAGUE, and GRIFFIN, Circuit Judges.*
                                          ____________________
                                           AMENDED ORDER
                                          ____________________


        The court having received a petition for initial hearing en banc, and the petition having been
circulated to all non-recused active judges of this court, less than a majority of whom favored the
suggestion,
       It is ORDERED that the petition be and hereby is denied.




       *
        Judge Gibbons recused herself from participation in this ruling.


                                                        1
No. 06-5816            Alley v. Little, et al.                                                     Page 2


         BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and
CLAY, Circuit Judges, join, dissenting from the denial of initial hearing en banc. I would grant
Sedley Alley’s motion for initial hearing en banc, because the panel scheduled to hear his present
appeal of the dismissal of his action already addressed the issue of unnecessary delay when it
vacated the district court’s temporary stay of Alley’s execution. The district court subsequently read
the panel opinion as requiring it to dismiss the case on the basis of unnecessary delay and reversing
its earlier determination that Alley had brought this action as promptly as he reasonably could have.
Compare Alley v. Little, No 3:06-0340, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D. Tenn. May 11,
2006) (stating that given Alley’s promptness if filing, “it would be strange jurisprudence to dismiss
this action for ‘undue delay.’”) with Alley v. Little, No. 3:06-0340 (M.D. Tenn. June 14, 2006)
(finding that “[a]lthough this court remains concerned about the interaction between a robust
application of the ‘unnecessary delay doctrine and traditional concepts of ripeness in the death
penalty context, . . . [t]he law of the Sixth Circuit is that . . . this case was unnecessarily delayed.”).
        Given the Supreme Court’s recent decision in Hill v. McDonough, No. 05-8794, 2006 U.S.
LEXIS 4674 (June 12, 2006) allowing challenges to a state’s method of execution under 42 U.S.C.
§ 1983, I believe this is an appropriate case for this Court to address en banc because it presents a
“question of exceptional importance.” See Fed. R. App. P. 35(a). Initial en banc consideration is
especially appropriate here as the panel has already spoken unequivocally on its view of Alley’s
“unnecessary delay,” and has expressed concern about the deliberations of this Court or the district
court delaying Tennessee’s scheduled execution of Alley.
       Additionally, Alley is scheduled to be executed in five days, on June 28, 2006. The
extremely short window of time between his current appeal and his pending execution presents all
the more reason to allow the full court as much time as possible to consider his appeal, rather than
tying up some of that time by presenting his case to a panel that has already spoken on the issue in
question. We should thus hear the case en banc immediately due to the imminence of Alley’s
scheduled execution.


                                                 ENTERED BY ORDER OF THE COURT


                                                        /s/ Leonard Green
                                                 ___________________________________
                                                              Clerk
