         RECOMMENDED FOR FULL-TEXT PUBLICATION                     district court treated petitioner*s complaint as a second, or
              Pursuant to Sixth Circuit Rule 206
                                                                   successive, petition1 and transmitted it to the court.
     ELECTRONIC CITATION: 2004 FED App. 0058P (6th Cir.)
                 File Name: 04a0058p.06                              The § 1983 action challenging the method of administering
                                                                   drugs at his execution is, as he concedes, to be treated as a
                                                                   second habeas action under current Sixth Circuit decisions.
  UNITED STATES COURT OF APPEALS                                   The majority of the panel would deny permission to file a
       FOR THE SIXTH CIRCUIT                                       second habeas on the grounds presented. They have never
IN THE MATTERS OF: LEWIS WILLIAMS,                                 been presented to the state court, so there has been no
      JR. AND JOHN GLENN ROE                                       exhaustion. The affidavits in support of a preliminary
_______________________________________________                    injunction, in essence, state that if lethal injection is not
                                                                   administered properly, petitioner could experience severe pain
                                                                   without displaying any sign of it. Responsive affidavits
UNITED STATES COURT OF APPEALS                                     detailing the procedure indicate that the concern expressed by
                                                                   petitioner is so unlikely as to be immeasurable.
                FOR THE SIXTH CIRCUIT
                  _________________                                  Petitioner essentially bases his request for a stay of
                                                                   execution on the Supreme Court having granted certiorari in
 IN RE LEWIS WILLIAMS, JR.     X                                   Nelson v. Campbell, No. 03-6821, 2003 WL 22327593, 72
          Petitioner-Appellant -                                   USWL 3363 (Dec. 1, 2003). Nelson involves a case
                                -                                  involving a prisoner facing the death penalty whose
                                -        No. 04-3014               peripheral veins were unavailable and who had to be sedated
                                 >                                 through the central venous system. The state in Nelson chose
                                -                                  the “cut down” technique which allegedly requires more
                               N                                   experience and medical training than the usually-performed
                                                                   per cutaneous technique. The Court granted certiorari to
                                                                   answer the following question:
                  Filed:   January 12, 2004
                                                                     Whether a complaint brought under 42 U.S.C. § 1983 by
                                                                     a death-sentenced state prisoner, who seeks to stay his
  BEFORE: KENNEDY, SUHRHEINRICH and MOORE,                           execution in order to pursue a challenge to the
Circuit Judges                                                       procedures for carrying out his execution, is properly
  KENNEDY, Circuit Judge. Petitioner Lewis Williams filed            recharacterized as a habeas corpus petition under
this §1983 action in the district court challenging the method       28 U.S.C. § 2254?
of administering the lethal injection of drugs at his execution
as a constitutional violation of his right to be free from cruel
and unusual punishment and seeking an injunction to
postpone his execution scheduled for January 14, 2004. The
                                                                       1
                                                                        The complaint also sought similar relief for John Glenn Roe
                                                                   scheduled for execution February 3, 2004.

                                                                                                 -2-
   The Court has also acted on at least two cases involving          sodium is not administered for a sufficient length of time to
similar last-minute challenges to the method of execution of         complete the other steps of the procedure, petitioner will
by injection, both from the Fourth Circuit. In Rowsey v. Beck,       suffer severe pain. A lay person who experienced this
No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate granted,       difficulty describes the pain in her affidavit. In response, the
Beck v. Rowsey, 504 U.S. __, 2004 WL 40382 (Jan. 8, 2004),           state submits an affidavit from an extremely well-qualified
the court vacated the stay granted by the Fourth Circuit. In         physician explaining why, in the dose to be used by the state,
Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003),               two (2) grams, the condition described by plaintiff*s expert
motion to vacate stay denied, Johnson v. Reid, 504 U.S. __,          will almost certainly not occur. He notes that when thiopental
2003 WL 22970950 (Dec. 18, 2003), the district court had             sodium is commonly used for general anesthesia in surgery,
granted an injunction staying an execution. The court of             it is normally administered in a dose of 300 to 400
appeals affirmed. The Supreme Court denied the state*s               milligrams.
motion to vacate. Of most relevance to the present petition,
however, is the Court*s denial of application for stay of              Petitioner’s motions for remand to the district court, for
execution in Zimmerman v. Johnson, 2003 U.S. Lexis 9199,             preliminary injunctive relief and for stay of execution are
72 USLW 3406 (Dec. 15, 2003). In Zimmerman, the Fifth                DENIED.
Circuit affirmed the dismissal of the action on the procedural
ground that § 1983 is not an appropriate vehicle for                   In order that petitioner have counsel to pursue any possible
challenges to the method of execution and held that applicant        habeas relief from the order, Stephen A. Ferrell is appointed
should have proceeded by applying for a writ of habeas               to represent petitioner on such proceedings.
corpus. The four Justices that dissented from the denial of
stay stressed that the Court should stay execution until Nelson
was decided. The majority, however, clearly disagreed. We
understand this decision to mean that this Circuit is free to
follow its prior precedent with regard to this question until the
Supreme Court issues its decision in Nelson.
   Accordingly, the majority of the panel is of the opinion that
we should continue to follow Sixth Circuit precedent in In re
Sapp, 118 F.3d 460, 464 (6th Cir. 1997) and treat this case as
a second, or successive, petition. The district court properly
transferred the case as filed to this court so it could pass on it
as a request for a second petition. We decline to permit the
claim to be filed as a second petition. It has never been
presented to a state court. Indeed, petitioner does not
seriously claim it meets the requirements for a second
petition.
  Petitioner asks that we stay our decision to await the
decision of the Supreme Court in Nelson. He proffers
affidavits from a physician who states that if thiopental

                               -3-                                                                 -4-
In re: Lewis Williams, Jr.; No. 04-3014                             the failure to require a continuous infusion of thiopental
                                                                    places the condemned inmate at a needless and
   SUHRHEINRICH, Circuit Judge, concurring. I concur                significant risk for the conscious experience of paralysis
in Judge Kennedy’s opinion. However, I would simply direct          during the excruciating pain of both suffocation and the
the Warden to carry out the execution in the manner                 intravenous injection of potassium chloride.
advocated by the petitioners’ expert. The petitioners do not
challenge the fact of their execution; they challenge only the    Motion to Stay and Abey Proceedings, at 13 (quoting Heath
method currently employed by the State of Ohio. By affidavit      Affidavit ¶ 17).
they have proposed an alternative method which they
advocate does not constitute cruel and unusual punishment.          If the Warden is ordered to follow the method advanced by
The affidavit of the petitioners’ expert, Dr. Mark J.S. Heath,    the petitioners’ chosen expert, then the procedural question
which is incorporated into the petitioners’ “Motion to Stay       of whether the claim is properly considered a § 1983 action or
and Abey Proceedings,” states in relevant part:                   a successive habeas petition will be moot, as the petitioners
                                                                  would have received the relief that they request.
  J) The benefits of thiopental in the operating room
  engender serious risks in the execution chamber. Based
  on the information I have available to me concerning
  Ohio’s execution protocol, a two (2) gram dose of
  sodium thiopental is apparently administered in a single
  injection from a single syringe. By contrast, based on
  my research and the research of others into the
  procedures for executing human beings by means of
  lethal injection, the original design of the lethal injection
  protocol called for the continuous intravenous
  administration of an ultrashort-acting barbiturate. Based
  on my research and the research of others, the central
  elements of the lethal-injection procedure used in Ohio
  is similar to the one adopted many years ago in
  Oklahoma (which, it appears, many states used as a
  model without substantive independent research).
  Oklahoma requires the “continuous intravenous
  administration of an ultrashort-acting barbiturate”
  (Oklahoma Statutes, Title 22 Criminal Procedure,
  Chapter 17 part 1014A). It does not appear that Ohio’s
  protocol includes this “continuous” requirement. The
  use of a continuous administration of the ultrashort-
  acting barbiturate is essential to ensure continued and
  sustained unconsciousness during the administration of
  pancuronium and potassium chloride. It is my opinion
  based on a reasonable degree of medical certainty that

                              -5-                                                              -6-
No. 04-3014, In re Lewis Williams, Jr.                             one from North Carolina, pending the Supreme Court’s
                                                                   decision in Nelson after those prisoners brought § 1983
  KAREN NELSON MOORE, Circuit Judge, dissenting.                   claims apparently identical to Williams’s. See Reid v.
I believe that the proper course of action is to grant the         Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003) (order
preliminary injunction staying the execution of Williams.          granting preliminary injunction); Rowsey v. Beck, No. 04-
The Supreme Court’s grant of certiorari in Nelson v.               6073 (4th Cir. Jan. 8, 2004) (order denying motion to vacate
Campbell, No. 03-6821, 2003 WL 22327593, 72 U.S.L.W.               stay of execution granted by the district court). The Supreme
3363 (Cert. Granted Dec. 1, 2003), calls into question our         Court denied a motion to vacate the stay in Reid, Johnson v.
decision in In re Sapp, 188 F.3d 460 (6th Cir. 1997), upon         Reid, 504 U.S. ____, 2003 WL 22970950 (Dec. 18, 2003), yet
which the district court relied in transferring the action to us   it vacated the stay of execution in Rowsey, over the dissent of
as a second or successive habeas petition pursuant to 28           four Justices. Beck v. Rowsey, 504 U.S. ____, 2004 WL
U.S.C. § 1631. In Sapp, a panel of this court held that a          40382 (Jan. 8, 2004). The disparate treatment of these two
challenge to a method of execution brought as an action under      cases by the Supreme Court is difficult to reconcile given
42 U.S.C. § 1983 constitutes a habeas corpus petition. Sapp,       their similarity; the district court in Rowsey stated that the
188 F.3d at 464. Sapp relied upon an earlier Supreme Court         issue there was “factually and procedurally similar, if not
decision, Gomez v. United States Dist. Ct. for the N. Dist. of     identical” to the issue in Reid. Rowsey v. Beck, No. 5:04-CT-
Cal., 503 U.S. 653, 653-54 (1992), in reaching its decision.       04-BO, at 4 (E.D.N.C. Jan. 7, 2004). The Supreme Court’s
Now, the Supreme Court has undertaken to resolve the               denial of an application for a stay of execution in Zimmerman
following question: “Whether a complaint brought under 42          v. Johnson, 2003 U.S. Lexis 9199, 72 U.S.L.W. 3406
U.S.C. § 1983 by a death-sentenced state prisoner, who seeks       (Dec. 15, 2003), does not provide any further guidance.
to stay his execution in order to pursue a challenge to the        Without further development of the reasons for the Supreme
procedures for carrying out the execution, is properly             Court’s actions, we should exercise prudence and caution in
recharacterized as a habeas corpus petition under 28 U.S.C.        the face of ambiguity when the consequences of our decision
§ 2254?” Nelson, 2003 WL 22327593, at *1 (emphasis                 have such gravity.
added). The Supreme Court’s ruling could directly overrule
Sapp, confirm the earlier high court holding upon which Sapp          At this stage, the question of whether Williams has properly
relied, or reach some middle ground, but naturally we will not     filed a second or successive habeas petition pursuant to the
know the answer to this question for several months.               provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrelevant
                                                                   because the predicate issue of whether his § 1983 claim is
   It would be inappropriate and unjust to permit Williams’s       properly construed as a second or successive petition is
execution to occur when the Supreme Court has yet to decide        pending before the Supreme Court. Equally unimportant is a
whether Williams has a right to present his claim as a § 1983      consideration of the merits of Williams’s § 1983 action —
action. The Supreme Court, the Sixth Circuit, and other            whether the State of Ohio’s procedures for lethal injection,
circuits have all granted stays of execution when the Supreme      which include the allegedly improper use of the barbituate,
Court has taken a case to resolve an important issue germane       thiopental sodium, and the administration of a neuromuscular
to the action. McFarland v. Scott, 512 U.S. 849, 853 (1994);       blocking agent, pancuronium bromide, that is banned for
Selvage v. Collins, 494 U.S. 108, 109 (1990); Steffen v. Tate,     veterinary use by several states, constitute a cruel and unusual
39 F.3d 622, 623 (6th Cir. 1994); Mobley v. Head, 306 F.3d         punishment in violation of the Eighth Amendment. The
1096, 1097 (11th Cir. 2003). Recently, the Fourth Circuit          resolution to this question is not appropriately considered
stayed the execution of two prisoners, one from Virginia and       now; if the Supreme Court’s forthcoming decision in Nelson

                              -7-                                                                -8-
v. Campbell demonstrates that Williams’s action is a § 1983                                NO. 04-3014
action and not a second or successive habeas petition, the
district court must first consider his claim. In any event, the           UNITED STATES COURT OF APPEALS
contrasting views of the physicians’ affidavits presented by                   FOR THE SIXTH CIRCUIT
Williams and the State of Ohio serve to demonstrate a serious
question regarding the merits. Nonetheless, here we simply
must decide whether Williams’s execution can go forward            IN RE: JOHN GLENN ROE
given that the Supreme Court may determine that Williams
has the opportunity to present his grievance before the district        Petitioner-Appellant
court as a § 1983 action. It should not.
                                                                   v.
   In the interest of procedural fairness, I would grant the
motion for a preliminary injunction to stay the execution and      ______________________________________/
hold the case in abeyance. It would be cause for great regret
if Williams were executed on Wednesday morning only to                                Filed: January 12, 2004
have the Supreme Court determine several months later that         BEFORE: SUHRHEINRICH, SILER, and CLAY,
Williams in fact deserved a chance to pursue his action in         Circuit Judges.
federal district court.
                                                                     Petitioner John Glenn Roe filed joint motions with Lewis
                                                                   Williams, Jr. to stay and abey proceedings and for
                                                                   preliminary injunctive relief for stay of execution. Because
                                                                   these are habeas proceedings, we address each of the
                                                                   petitioners’ motions separately. We hereby adopt in this case
                                                                   the reasoning and the result of the majority opinion authored
                                                                   by Judge Kennedy and concurred in by Judge Suhrheinrich in
                                                                   the matter of In re: Lewis Williams, Jr., issued on January 12,
                                                                   2004. We further adopt the concurring opinion of Judge
                                                                   Suhrheinrich in the Williams matter.
                                                                     Thus, for the reasons stated in the those opinions, Petitioner
                                                                   John Glenn Roe’s requests for a stay and abeyance and for
                                                                   preliminary injunctive relief are DENIED.




                              -9-                                                               -10-
CLAY, Circuit Judge, dissenting.                                                             No. 04-3044
   I hereby dissent from the order and opinion of the majority             UNITED STATES COURT OF APPEALS
in the instant case for the reasons expressed by Judge Moore’s                  FOR THE SIXTH CIRCUIT
dissent in In re Lewis Williams, Jr., No. 04-3014.

                                                                 LEWIS WILLIAMS, JR., et al.,

                                                                              Plaintiffs -Appellants              AMENDED
                                                                 v.
                                                                                                                    O R D E R2
                                                                 ROBERT TAFT, et al.,

                                                                              Defendants - Appellees

                                                                                      Filed: January 15, 2004

                                                                 Before: BOGGS, Chief Judge; KENNEDY, MARTIN,
                                                                         S U H R H E IN R ICH, BAT CHE LDE R ,
                                                                         DAUGHTREY, MOORE, COLE, CLAY,
                                                                         GILMAN, GIBBONS, and ROGERS, Circuit
                                                                         Judges
                                                                   This matter comes before the court upon the petition of the
                                                                 plaintiffs-appellants for initial hearing en banc of case No. 04-
                                                                 3044 and a motion for stay of execution, and the motion of
                                                                 the defendants-appellees for dismissal of the appeal.
                                                                   A majority of the non-recused judges in regular active
                                                                 service having voted to grant the petition for hearing en banc,
                                                                 the petition is GRANTED and the appeal is referred to the en
                                                                 banc court for further consideration.




                                                                      2
                                                                       This order was initially entered on January 13, 2004. It was
                                                                 amended on January 15 , 200 4 to reflect the jo inder in Judge Clay’s
                                                                 dissenting opinion of the several judges noted as having done so. In a ll
                                                                 other respects, the amended o rder is identical to the initial order.

                            -11-                                                                  -12-
   Less than a majority of the court having voted in favor of                           Nos. 04-3044/3066
either the motion to dismiss the appeal or the motion to stay
execution, those motions are hereby DENIED.                                UNITED STATES COURT OF APPEALS
                                                                                FOR THE SIXTH CIRCUIT
   CLAY, Circuit Judge, dissenting, joined by MARTIN,
DAUGHTREY, MOORE, and COLE, Circuit Judges. I
dissent from the order denying the motion to stay execution        JOHN GLENN ROE,
in Williams v. Taft, No. 04-3044, because the vote was illegal          Plaintiff - Appellant
under 28 U.S.C. § 46(c). Section 46(c) provides, in relevant
part, that an en banc court “shall consist of all circuit judges   v.                                        ORDER
in regular active service …, except that any senior circuit
judge of the circuit shall be eligible … to participate … as a     ROBERT TAFT, Governor, et al.,
member of an in banc court reviewing a decision of a panel             Defendants - Appellees
of which such judge was a member.” 28 U.S.C. § 46(c)
(emphasis added). In other words, the statute expressly
circumscribes a senior circuit judge’s ability to participate in                     Filed: January 30, 2004
an en banc proceeding by limiting that participation to the
review of the panel’s decision from which the en banc review       Before: BOGGS, Chief Judge; MARTIN, BATCHELDER,
arose. Here, all that is presently before the en banc court is a           DAUGHTREY, MOORE, COLE, CLAY,
motion to stay Williams’ execution, not the merits of the                  GILMAN, GIBBONS, ROGERS, and COOK,
preceding panel decision. Accordingly, the statute does not                Circuit Judges
permit Judges Kennedy and Suhrheinrich to participate in the
vote on the motion to stay. To the extent the Sixth Circuit          A majority of the non-recused judges in active service
Rules, the Sixth Circuit Internal Operating Procedures or          having voted sua sponte to reconsider and rescind the order
internal Court Rules might be interpreted to grant my two          of January 13, 2004, granting hearing en banc in Case No. 04-
colleagues the right to vote, 28 U.S.C. § 46(c) is paramount.      3044, all pending motions and filings are referred in the first
This misapplication of the statute has resulted in an outcome      instance to the assigned panel, for such action as it finds
contrary to law inasmuch as the requested stay would have          appropriate.
been granted in the absence of the votes cast by Judges                 IT IS SO ORDERED.
Kennedy and Suhrheinrich. Moreover, this unlawful denial
of the motion to stay has eviscerated the results of the poll of
the active judges granting en banc review. Without a stay, the
en banc review authorized by § 46(c) will never take place.
                ENTERED BY ORDER OF THE COURT
                ________________________________
                   Leonard Green, Clerk


                             -13-                                                               -14-
   Danny J. Boggs, Chief Judge, concurring in the issuance            CLAY, Circuit Judge, dissenting, joined by MARTIN,
of the court’s Order. There could be some controversy over          DAUGHTREY, and COLE, Circuit Judges. Let us be
the extent to which the appeal initially filed “jointly” by Mr.     clear on what has just transpired. This Court extricated the
Williams and Mr. Roe on January 13 should have been treated         appeal relating to Petitioner John Roe’s claim under 42
as a single matter, even though it clearly dealt with matters       U.S.C. § 1983 from Case No. 04-3044 in which en banc
considerably, if not totally, identical to those that had been      review had already been granted on January 13, 2004;
dealt with by separate death-penalty panels on January 12.          assigned it a new case number; and conducted a vote on
However, this court chose, without ultimate objection, to           whether to rescind the January 13 decision to hear the appeal
treat Roe’s status as being an appellant within the “initial        en banc. The adoption of this procedure, and the ensuing vote
hearing en banc” granted by the non-recused active members          to grant the rescission by a six to five vote, has nullified the
of the court. Thus, at a minimum, the appeal lay within the         votes of the non-recused active judges cast on January 13 and
competence of the en banc court, and the en banc court was          has created the appearance of manipulation and impropriety.
free, on motion by a judge of that court, to reconsider and         Accordingly, I dissent.
rescind its previous action.
                                                                       In Williams v. Taft, Case No. 04-3044 (6th Cir. Jan. 13,
   To the extent that Judge Clay challenges the decision of a       2004), Lewis Williams and John Roe filed a complaint under
judge to vote rather than to recuse on a specific matter, that is   42 U.S.C. § 1983 challenging execution procedures. The
a matter within the discretion of the individual judge. The         district court refused to entertain the lawsuit, construing it as
court has no power to make a “decision to permit Judge Cook         second or successive habeas corpus petitions that could not be
to participate in the instant vote,” nor to prevent her from        heard in the district court without the prior approval of this
participating. To the extent that I understand the matter,          Court. After the district court transferred the matter to this
Judge Cook never had any connection whatsoever with any             Court, and Williams’ and Roe’s purported habeas claims were
matters concerning John Glenn Roe in her previous service           assigned to separate three-judge panels, Williams and Roe
on the Ohio Supreme Court. Lewis Williams is no longer              petitioned for initial en banc adjudication of the district
alive, and thus no matter concerning him can impact the             court’s decision that effectively dismissed their §1983 claims.
consideration of Roe’s case. There is thus no reasonable            At that point, this Court arguably had the option of deeming
ground to question her decision to vote on the matter that was      Roe’s en banc petition as duplicative of, or superseded by, the
properly before the judges of the en banc court.                    three-judge panels’ review, but did not do so. This Court also
                                                                    arguably had the option of uncoupling Williams’ and Roe’s
                                                                    respective § 1983 claims for purposes of appellate review, but
                                                                    it chose not to. Instead, this Court established that appellate
                                                                    review of Williams’ and Roe’s respective § 1983 claims
                                                                    would be considered jointly under a unitary case number,
                                                                    separate and apart from the appeal considered by the three-
                                                                    judge panels. A poll of the non-recused, active judges was
                                                                    then conducted on whether to hear this case en banc. By a six
                                                                    to four vote on January 13, the Court granted the petition for
                                                                    initial hearing en banc. Judge Cook did not participate in that
                                                                    vote, having recused herself on her own initiative.


                              -15-                                                                -16-
  Prior to this Court’s vote to rescind the vote of January 13,   Roe was necessarily influenced and impacted by the Court’s
the only issue left open was Roe’s motion to stay the             deliberations in Williams from which Judge Cook recused
execution, which had been a joint motion with Williams. For       herself. The entire situation suggests impropriety.
the reasons stated in my dissent in Case No. 04-3044, the vote
on the motion to stay was improper under 28 U.S.C. § 46(c)          Without Judge Cook’s vote, the vote to rescind would have
due to the participation of Senior Judges Kennedy and             failed on a tie vote and the en banc Court would have
Suhrheinrich. But even assuming, arguendo, that their             considered Roe’s appeal. Thus, the decision of this Court to
participation had been proper with respect to Williams, it is     conduct another vote on whether to hear Roe’s appeal en
clear that that vote did not, and could not have impacted, Roe.   banc, combined with Judge Cook’s participation in that vote,
Judge Kennedy was not a member of the three-judge panel           has created the perception that certain members of this Court
that had adjudicated the successive petition issue with respect   have manipulated the process to avoid, what was in their
to Roe. Accordingly, to the extent the Court’s judgment of        view, the unfavorable result of the January 13th poll. This
January 13 denied Roe’s motion to stay the execution, that        outcome unfortunately conveys the impression of a result-
judgment should have vacated, and the non-recused, active         oriented process rather than an orderly process which seeks to
judges should have been polled on whether to grant Roe’s          preserve the appearance and reality of due process.
motion to stay the execution. This was not done.
  Even assuming it was technically proper for this Court to
have voted on whether to rescind its action of January 13, I
have grave concerns about this Court’s decision to permit
Judge Cook to participate in the instant vote. As noted, on
her own initiative, Judge Cook recused herself from the
January 13 vote concerning Williams’ and Roe’s joint request
for en banc review. After Williams was executed, however,
Judge Cook indicated that she should participate in an en
banc Court concerning Roe’s appeal because she had not
previously considered any matters concerning Roe. I beg to
differ. Judge Cook’s basis for recusal survived Williams’
execution because Williams’ and Roe’s appeals were
intertwined. Most of the pleadings and briefs pertaining to
Roe were joint efforts with Williams. Judge Cook necessarily
read and considered these papers in considering her vote on
the rescission. In addition, Judge Cook was privy to the intra-
Court communications and deliberations concerning
Williams’ appeal. Had this Court been aware that Judge
Cook was going to “un-recuse” herself after Williams’ death,
precautions would have been (or should have been) taken to
preclude her receipt of any pleadings or communications
concerning Williams. This was not done either. Needless to
say, Judge Cook’s consideration of how she should vote in

                             -17-                                                             -18-
                       Nos. 04-3044/3066                              (4) Appellees’ Motion to Dismiss the Case for Lack of
                                                                      Jurisdiction; and
            UNITED STATES COURT APPEALS
               FOR THE SIXTH CIRCUIT                                  (5) Appellees’ Renewed Motion to Dismiss Appeal for
                                                                      Lack of Appellate Jurisdiction.

JOHN GLENN ROE,                                                        The majority of the panel having previously concluded that
                                                                    Judge Graham properly transferred the § 1983 case to this
       Plaintiff-Appellant,                                         Court as a request to file a second petition, and having
                                                                    concluded that Roe failed to meet the requirements for filing
v.                                        ORDER                     a second or successive petition under 28 U.S.C. § 2244(b)(2),
                                                                    and having no sound reason to revisit those rulings, we
ROBERT TAFT, Governor, et al.,                                      HEREBY DENY Appellant Roe’s Renewed Motion to Set
                                                                    Aside Judgment and FURTHER DENY Roe’s Renewed
       Defendants-Appellees;                                        Motion for Stay of Execution. Appellant Roe’s Motion to
                                                                    Expedite Appeal is GRANTED. Given the En Banc Court’s
________________________________________/                           January 30, 2004 order reconsidering and rescinding the order
                     Filed: February 2, 2004                        of January 13, 2004, Appellant Roe’s Motion to Conform the
                                                                    En Banc Court to the Requirements of 28 U.S.C. § 46(c) is
Before: SUHRHEINRICH, SILER, and CLAY, Circuit                      MOOT. Appellees’ Motion and Renewed Motion to Dismiss
Judges.                                                             the Appeal are GRANTED.

   On January 30, 2004, a majority of the non-recused judges          CLAY, Circuit Judge, dissenting in part. I dissent from
in active service voted sua sponte to reconsider and rescind        the panel’s denial of the motion to stay the execution and the
the order of January 13, 2004, granting hearing en banc in          grant of the motion to dismiss the appeal. My reasons for
Case No. 04-3044, and ordering that “all pending motions and        dissenting are set forth in my dissent to the panel’s prior order
filings are referred in the first instance to the assigned panel,   of January 13, 2004, in Case No. 04-3044, and in my dissent
for such action as it finds appropriate.”                           to the en banc Court’s order of January 30, 2004, in Case
                                                                    Nos. 04-3044/3066.
     Thus, presently before this panel are the following motions:
                                                                                ENTERED BY ORDER OF THE COURT
     (1) Appellant Roe’s Motion to Conform the En Banc
     Court to the requirements of 28 U.S.C.§ 46(c);                                  /s/ Leonard Green
                                                                                ___________________________________
     (2) Appellant Roe’s Motion to Set Aside Judgment and                                   Clerk
     Renewed Motion for Stay of Execution;
     (3) Appellant Roe’s Motion to Expedite Appeal;



                               -19-                                                               -20-
