                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0415p.06

                     UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                          X
                                                           -
 RICHARD WADE COOEY II, et al.,
                                                           -
                                            Plaintiffs,
                                                           -
                                                           -
                                                                No. 09-4474
 KENNETH BIROS (Intervenor),
                                                           ,
                                                            >
                                                           -
                        Plaintiff-Appellant,

                                                           -
                                                           -
                v.
                                                           -
 TED STRICKLAND, Governor, et al.,                         -
                    Defendants-Appellees.                 N

                                    Filed: December 7, 2009
                     Before: SILER, GIBBONS, and SUTTON, Circuit Judges.

                                      _________________

                                             ORDER
                                      _________________

        The court received a petition for rehearing en banc, stay of execution and issuance
of a briefing schedule, and the petition was circulated not only to the original panel members
                             1
but also to all other active judges of the court. Less than a majority of the judges having
favored the suggestion, the petition was therefore referred to the original panel.

        The panel has further reviewed the petition for rehearing and other relief and
concludes that the issues raised in the petition were fully considered upon the original
submission and decision of the case. Accordingly, the petition is denied.




        1
            Judge Cook recused herself from participation in this ruling.

                                                 1
No. 09-4474        Biros v. Strickland, et al.                                   Page 2


       GRIFFIN, Circuit Judge (dissenting), with whom WHITE, Circuit Judge, joins.
I am troubled by the procedural posture of this case and “Plan B” of the new protocol.
Although the opinions are comprehensive, this appears to be a classic rush-to-judgment.
On December 3, 2009, Biros filed a motion to amend his complaint to challenge the new,
November 30, 2009 protocol. On December 4, the district court granted the motion and
ordered an evidentiary hearing to commence 4 1/2 hours later. In my view, basic
procedural due process demands more. On this issue, the final page of Judge Frost’s
opinion is revealing: “It is not clear whether Biros could discover and present facts
evincing a viable claim that would enable him to prevail in this litigation so that Ohio
would need to find another method by which to execute him.” I would GRANT the
petition for rehearing en banc and STAY the execution.

                                                 ENTERED BY ORDER OF THE COURT

                                                       /s/ Leonard Green
                                                 ___________________________________
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