                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                 File Name: 09a0248p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 JOHN FAUTENBERRY,
                                                 -
                           Petitioner-Appellant,
                                                 -
                                                 -
                                                      No. 09-3847
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellee. -
 BETTY MITCHELL, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
               No. 00-00332—James L. Graham, District Judge.
                               Submitted: July 13, 2009
                           Decided and Filed: July 13, 2009
           Before: BATCHELDER, MOORE, and GILMAN, Circuit Judges.

                                 _________________

                                      COUNSEL
ON BRIEF: Dennis Lyle Sipe, BUELL & SIPE, Marietta, Ohio, Tyson L. Fleming, Randall
L. Porter, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
Matthew A. Kanai, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
    Batchelder, J., delivered the opinion of the court, in which GILMAN, J., joined.
MOORE, J. (p. 3), delivered a separate concurring opinion in the judgment.
                                 _________________

                                       OPINION
                                 _________________

       ALICE M. BATCHELDER, Circuit Judge. Petitioner appeals the district court’s
orders denying his Renewed Request for Funding for a neuro-psychologist and for a stay of
execution. We affirm.




                                           1
No. 09-3847         Fautenberry v. Mitchell                                           Page 2


        In an order dated July 10, 2009, we affirmed the district court’s order denying
Petitioner’s initial Request for Funding and held that there was no basis upon which we
could stay the scheduled execution. We note that, although we were unaware of it at the
time, on July 9, 2009, the Governor of Ohio had denied Petitioner’s request for clemency.

        On July 11, Petitioner filed in the district court his Renewed Request for Funding and
for a stay of execution. The district court noted that in support of his Renewed Request,
Petitioner reiterated the arguments he had raised in his initial request, raised a new
“staleness” argument, and submitted only two new exhibits: an article concerning the
psychological impact of incarceration, and the Ohio Adult Parole Board’s completed
clemency report. The district court, apparently unaware that the Governor had already denied
clemency, noted that Petitioner intended to file a “supplemented application for clemency
directly to the Governor.” The district court denied the Renewed Request because it
concluded that Petitioner had failed to make a showing that the services of the neuro-
psychologist were reasonably necessary for Petitioner to pursue state clemency further. The
district court found no basis upon which it could grant Petitioner’s motion for stay of
execution and denied the motion.

        We have reviewed the district court’s orders, the briefs of Petitioner and the Warden,
and the materials furnished to the district court by Petitioner in support of his Renewed
Request and his motion for stay of execution. For the reasons stated in our order of July 10,
2009, as well as for the reasons given by the district court for denying the Renewed Request,
we affirm both the denial of the Renewed Request and the denial of the request for stay of
execution.
No. 09-3847         Fautenberry v. Mitchell                              Page 3


                                   _________________

                                    CONCURRENCE
                                   _________________

        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur
in this court’s judgment affirming the judgment of the district court.
