                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 05a0474p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                     X
                    Plaintiff-Intervenor-Appellant, -
 JOHN R. HICKS,
                                                      -
                                                      -
                                                      -
                                                          No. 05-4489
          v.
                                                      ,
                                                       >
 ROBERT TAFT, Governor, et al.,                       -
                             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.
                                   Submitted: November 28, 2005
                              Decided and Filed: December 15, 2005
                   Before: SILER, DAUGHTREY, and CLAY, Circuit Judges.
                                         _________________
                                             OPINION
                                         _________________
       SILER, Circuit Judge. This case comes to us on an emergency motion for a stay of execution
pending appeal, filed on November 23, 2005. We have, by separate order, denied the request for
an order staying execution by lethal injection.
        We previously denied the writ of habeas corpus in Hicks v. Collins, 384 F.3d 204 (6th Cir.
2004), cert. denied, 125 S. Ct. 2260 (2005). The Supreme Court denied a rehearing on August 1,
2005, Hicks v. Collins, 126 S. Ct. 13 (2005). On October 5, 2005, the Supreme Court of Ohio
ordered that Hicks be executed on November 29, 2005. It is on the eve of this execution date that
the district court granted Hicks’s petition to intervene in the companion case of Cooey v. Taft, a suit
under 42 U.S.C. §1983, claiming that execution by the lethal injection protocol in Ohio is
unconstitutional. Although the district court granted the motion to intervene by Hicks in that case,
it denied the request for a stay of execution, holding that the motion, although filed within the statute
of limitations, came too late for relief.
         Our reasoning for the denial of the request for a stay is based in part upon the findings of the
district court and also upon the decision in Dennis v. Taft, No. 04-4184 (6th Cir. October 7, 2004).
The circumstances in this case are similar to those in Dennis, except that Dennis filed his complaint
under 42 U.S.C. § 1983 on June 10, 2004, prior to his execution date of October 13, 2004, which
is a much longer interval of time than we have in this case. Dennis also intervened in the Cooey case
in the district court. In Dennis, we held that “the district court did not abuse its discretion in holding
that Dennis failed to demonstrate a likelihood of success on the merits.” We further held that
“Dennis failed to demonstrate that he will suffer irreparable injury absent a change of the Ohio


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No. 05-4489            Hicks v. Taft, et al.                                                       Page 2


execution protocol.” Without adopting or rejecting the conclusion in Dennis that there is a failure
to demonstrate a likelihood of success on the merits, we nevertheless find that the district court in
this case did not abuse its discretion in weighing the criteria for the granting of a stay or a restraining
order and denying the relief requested, primarily because the motion was untimely. See Nelson v.
Campbell, 124 S. Ct. 2117, 2126 (2004) (holding that “a court may consider the last minute nature
of an application to stay execution in deciding whether to grant equitable relief.”) (citing Gomez v.
United States District Court for the Northern District of Cal., 503 U.S. 653 (1992)).
        The request for a stay of execution is DENIED.
