                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0146p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                                        Plaintiffs, -
 RICHARD COOEY, et al.,
                                                     -
                                                     -
                                                     -
                                                                 No. 07-3488
 JAMES J. FILIAGGI,
                                                     ,
                    Proposed Intervenor-Appellant, >
                                                     -
                                                     -
                                                     -
            v.

                                                     -
                                                     -
 TED STRICKLAND, Governor, REGINALD
                                                     -
 WILKINSON, Director, TERRY COLLINS, Director,
                                                     -
 EDWARD VOORHIES, Warden, JAMES HAVILAND,
 Warden,                                             -
                            Defendants-Appellees. N

                           Appeal from the United States District Court
                          for the Southern District of Ohio at Columbus.
                         No. 04-01156—Gregory L. Frost, District Judge.
                                Decided and Filed: April 23, 2007
                Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.
                                       _________________
                                           OPINION
                                       _________________
         ALICE M. BATCHELDER, Circuit Judge. Ohio inmate James J. Filiaggi is scheduled to
be executed on Tuesday, April 24, 2007. On Thursday, April 19, 2007, Filiaggi filed a motion to
intervene in Richard Cooey’s civil suit challenging Ohio’s lethal injection protocol. On Friday,
April 20, 2007, Filiaggi filed an emergency motion for a preliminary injunction, or an order under
the All Writs Act, 28 U.S.C. § 165l(a), staying his execution. On Monday, April 23, 2007, the
district court denied Filiaggi’s motion to intervene and denied as moot his motion for injunctive
relief. Filiaggi immediately filed both a notice of appeal from the district court’s order and an
emergency motion for stay of execution to permit him to pursue that appeal.
        Filiaggi seeks an order from this Court staying his execution so that he may continue his
quest to intervene in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), by appealing the district
court’s order denying his motion to intervene in that case. “[A] stay of execution is an equitable
remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill
v. McDonough, 126 S. Ct. 2096, 2104 (2006). “[T]he Supreme Court [has] stated that
‘method-of-execution’ challenges should be ‘brought at such a time as to allow consideration of the
merits, without requiring the entry of a stay.’” Cooey, 479 F.3d at 421 (quoting Nelson v. Campbell,


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No. 07-3488           Cooey (Filiaggi), et al. v. Strickland, et al.                           Page 2


541 U.S. 637, 650 (U.S. 2004)). Moreover, the Supreme Court recently concluded that “[f]iling an
action that can proceed under § 1983 does not entitle the complainant to an order staying an
execution as a matter of course.” Hill, 126 S. Ct. at 2104.
        The district court denied Filiaggi’s motion to intervene because it found that Filiaggi has not
– and Filiaggi concedes that he has not – exhausted his administrative remedies as is required under
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); that failure to exhaust is not
excused by Cooey’s having exhausted his own administrative remedies; that Filiaggi’s attempt to
intervene is untimely as a matter of law; and because Filiaggi’s motion to intervene in this § 1983
action must therefore be denied, the court had no basis upon which to stay the execution.
        We have carefully reviewed the law and the facts underlying Filiaggi’s motion to intervene
and for a stay of execution, the district court’s Opinion and Order denying the motion, and the briefs
of Filiaggi and the State with regard to Filiaggi’s Emergency Motion. We conclude that, for the
reasons stated by the district court, Filiaggi has not demonstrated any likelihood that he could
succeed on the merits of his motion to intervene. Further, we conclude that because Filiaggi has not
demonstrated a likelihood of success with regard to his attempt to intervene, and in light of the
State’s strong interest in proceeding with its judgment and the patent untimeliness of Filiaggi’s
motion, he has not demonstrated any basis upon which this court should exercise its equitable power
to stay his execution. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).
       Accordingly, the Emergency Motion for Stay of Execution is DENIED.
