                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0020p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                                          Plaintiffs, -
 RICHARD COOEY, et al.,
                                                       -
                                                       -
                                                       -
                                                                No. 06-4660
 KENNETH BIROS,
                                                       ,
                      Intervenor Plaintiff-Appellee, >
                                                       -
                                                       -
                                                       -
           v.

                                                       -
                                                       -
 TED STRICKLAND, Governor; TERRY COLLINS,
                                                       -
 Acting Director; EDWARD VOORHIES, Warden; and
                                                       -
 JAMES S. HAVILAND, Warden,
                            Defendants-Appellants. -
                                                      N

                                     Filed: January 16, 2007
                                       _________________
                                            ORDER
                                       _________________
         PER CURIAM. On December 8, 2004, Richard Cooey filed a complaint in the United States
District Court for the Southern District of Ohio challenging Ohio’s protocol for executing capital
offenders through lethal injection. Since that time, eight other inmates have successfully intervened
in that action. Of those eight, three have previously requested stays of execution and come before
our court: John Hicks’ request was denied by the district court and denied on appeal, No. 05-4489;
Jeffrey Don Lundgren’s request was granted by the district court but vacated on appeal, No. 06-
4374; and Jerome Henderson’s request was denied by the district court but granted on appeal, No.
06-4527. Another panel of our court presently has before it John Spirko’s request for a stay of his
scheduled execution on April 17, 2007 (which was denied by the district court on November 22,
2006), in No. 06-4655. And in this case the State has asked us to vacate the district court’s grant
of a stay of Kenneth Biros’s scheduled execution on January 23, 2007, in No. 06-4660.
        All of these cases share at least two merits questions in common. See McPherson v. Mich.
High Sch. Ath. Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (noting that in determining
whether a preliminary injunction is appropriate the district court must determine whether the State
(or capital defendant) “has a strong likelihood of success on the merits”) (internal quotation marks
omitted). One: did the capital defendant file his § 1983 question within the applicable statute-of-
limitations period? Two: does Ohio’s lethal-injection procedure satisfy the requirements of the
Eighth and Fourteenth Amendments to the United States Constitution? A negative answer to the
first question precludes a court from reaching the second question. And the first question (the
statute-of-limitations question) turns in large part on when the two-year limitations period begins
to run—at the end of the defendant’s direct review, at the end of the defendant’s state-law post-
conviction review, at the end of the defendant’s federal habeas review or at some other time.


                                                 1
No. 06-4660           Cooey, et al. v. Taft, et al.                                              Page 2


         At the district court level, Judge Frost has allowed all of these capital defendants, including
Biros, to intervene in the Cooey case—presumably so that the United States District Court for the
Southern District of Ohio can resolve these merits questions efficiently and consistently. In the
underlying Cooey decision, Judge Frost issued a decision on March 28, 2005, concluding that the
limitations period begins to run “when the execution becomes imminent and the plaintiff knows or
has reason to know of the facts giving rise to his specific challenges.” Op. & Order at 12, Cooey
v. Taft, No. 2:04cv1156 (March 28, 2005). The State appealed that decision, and it is now before
a panel of this Court in No. 05-4057.
         Of the capital defendants who have intervened in the Cooey litigation, three have filed stay
motions with respect to impending execution dates that have prompted rulings from our court. In
the first case, Hicks v. Taft, No. 05-4489, the capital defendant sought to intervene in the Cooey case
six days before his scheduled execution and to seek a stay in connection with the lethal-injection
litigation involved in that case. Both the district court and a panel of our court denied the stay
requests, and the State executed Hicks.
        In the second case, Lundgren v. Taft, No. 06-4374, the capital defendant was permitted to
intervene in the Cooey litigation and the district court granted a stay of execution based in part on
its March 28, 2005 ruling on the statute-of-limitations accrual issue (i.e., holding that Lundgren did
not face a statute-of-limitations bar) and based in part on its views regarding the constitutionality
of Ohio’s lethal-injection procedure. Op. & Order at 2, 11, Cooey v. Taft, No. 2:04cv1156 (Oct. 17,
2006) (“The growing body of evidence calling Ohio’s lethal injection protocol increasingly into
question compels this conclusion.”). When the State filed a motion to vacate the injunction, a panel
of this court issued a decision referring the stay motion to the panel that had been assigned the
underlying appeal in the Cooey case. In doing so, the court reasoned as follows:
       In order to insure the consistent, uniform and fair application of federal law in all
       such lethal injection cases before the Court, and in deference to the first panel
       heretofore assigned to decide the issue, we transfer this case to the aforementioned
       panel, subject to that panel’s acceptance of the case for decision along with similar
       other cases raising the question of the constitutionality of Ohio’s method of imposing
       capital punishment by lethal injection. It would be grossly unfair for different panels
       of this Court to reach opposite conclusions on the issue of the constitutionality of
       Ohio’s method of lethal injection so that some capital defendants are put to death by
       lethal injection while others similarly situated are spared.
Decision at 2 (Oct. 23, 2006). After the Cooey panel received the case, it granted the State’s motion
to vacate the stay of the execution date by a 2-1 vote that day, and the State executed Lundgren.
        In the third case, Henderson v. Taft, No. 06-4527, the district court rejected the capital
defendant’s motion to stay his execution date of December 5, 2006. When Henderson filed a motion
to stay the execution date in this court, a panel of this court declined to refer the case to the Cooey
panel and by a 2-1 vote it granted the motion on December 1. Henderson’s execution thus was
stayed.
        Today we have the fourth case, Biros v. Strickland, No. 06-4660. In this case, the district
court on December 21, 2006 granted Biros’s motion to stay his scheduled execution date of January
23, 2007. Late on the evening of January 5, 2007, the State filed a motion to vacate the stay.
      We have two paths open to us—either refer the State’s motion to the Cooey panel (as the
Lundgren court did) or decide the motion ourselves (as the Henderson court did). For two reasons,
we choose to refer the motion to the Cooey panel.
No. 06-4660           Cooey, et al. v. Taft, et al.                                           Page 3


        First, we agree with Lundgren’s reasoning that one panel of this court should be reviewing
these related motions. Just as one district court judge has been asked to reach a decision in each of
these cases with respect to the common issues among them, so one panel of this court should be
asked to decide the merits of the Cooey case and the stay-related motions that have arisen in
connection with it. That is the only way, as the Lundgren panel presciently noted, that the court can
ensure “consistent, uniform and fair application of federal law in all such lethal injection cases
before the Court.” Decision at 2.
        Second, both the Lundgren and Henderson panel stay decisions came before the Cooey panel
had heard oral argument in the underlying merits case. The Cooey panel heard oral argument in the
case on December 7, 2006; it has tentatively voted on the case; and at some point it will release a
decision in the case. Because the Cooey panel will resolve the very merits question that underlies
the State’s motion and Biros’s response—namely, who has a likelihood of success on the merits?—it
makes particular sense to give that same panel this stay motion. Not just our best efforts at issuing
consistent decisions as a court, but judicial economy as well, favor asking the panel that is most
intimately familiar with the underlying merits issues to resolve this motion.
        Accordingly, in deference to the Cooey panel’s knowledge of the underlying merits of this
stay motion, its prior resolution of the Lundgren stay motion, its capacity to resolve related stay
motions consistently and its responsibility for issuing a merits decision in the Cooey case, we
transfer the State’s stay motion in this case to the panel in No. 05-4057, subject to that panel’s
acceptance of the case.
                                                ENTERED BY ORDER OF THE COURT


                                                      /s/ Leonard Green
                                                ___________________________________
                                                              Clerk
