                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0086n.06
                             Filed: February 2, 2009

                                              No. 09-5084

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


STEVE HENLEY,                                        )
                                                     )
          Plaintiff-Appellant,                       )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
GEORGE LITTLE, et al.,                               )   MIDDLE DISTRICT OF TENNESSEE
                                                     )
          Defendants-Appellees.                      )




          Before: SILER, COLE, and COOK, Circuit Judges.


          PER CURIAM. Petitioner Steve Henley moves this Court for a stay of his execution

scheduled for February 4, 2009, pending the Court’s disposition of Harbison v. Little, No. 07-6225

(6th Cir. filed Oct. 5, 2007), which presents a similar challenge to the constitutionality of Tennessee’s

three-drug lethal injection protocol. The district court dismissed Henley’s case as barred by the

applicable statute of limitations. We agree, decline to stay Henley’s execution, and dismiss his

appeal.


          The district court correctly held that Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) is the

law of this Circuit. Under Cooey, an inmate’s § 1983 cause of action accrues upon the conclusion

of direct review in state court or at the expiration of time for seeking such review. Id. at 421-22.
No. 09-5084
Henley v. Little

Henley petitioned for Supreme Court review, which was denied in June 1990. Under Cooey,

however, the accrual date must be adjusted if an inmate could not have discovered the

“injury”—here, the method of execution—until a later date. Id. at 422. Tennessee adopted lethal

injection as its presumptive method of execution on March 30, 2000 and the district court viewed

March 30, 2001 as the date Henley’s right to bring this action expired. Henley clearly missed this

deadline.


       Alternatively, construing all the relevant dates in the way most favorable to Henley, the very

latest his cause of action could have accrued was June 2007, when Tennessee revised its lethal

injection protocol. But Henley did not file suit until November 26, 2008. Thus, he missed even this

June 2008 expiration date by several months.


       The cause of action being stale when brought, the district court correctly dismissed it, and

we affirm that dismissal.




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