           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                  2    Cooey v. Bradshaw                          No. 03-4001
        ELECTRONIC CITATION: 2003 FED App. 0267P (6th Cir.)
                    File Name: 03a0267p.06                          to vacate the stay of execution which was granted by the
                                                                    district court on July 23, 2003.
UNITED STATES COURT OF APPEALS                                        The petition for initial en banc hearing has been presented
                                                                    to the nonrecused active judges of the court, a majority of
                  FOR THE SIXTH CIRCUIT                             whom have voted in favor of en banc review. Furthermore,
                    _________________                               a majority of the nonrecused active judges of the court have
                                                                    voted to deny the state’s motion to vacate the stay of
 RICHARD WADE COOEY II,       X                                     execution. The stay of execution granted by the district court
         Petitioner-Appellee, -                                     remains undisturbed. IT IS SO ORDERED.
                               -
                               -           No. 03-4001                               ENTERED BY ORDER OF THE COURT
          v.                   -
                                >
                               ,
 MARGARET BRADSHAW,            -                                                          /s/ Leonard Green
 Warden,                       -                                                      __________________________________
       Respondent-Appellant. -                                                                 Clerk
                               -
                              N

                      Filed: July 31, 2003

    Before: MARTIN, Chief Circuit Judge; BOGGS,
   DAUGHTREY, MOORE, COLE, CLAY, GILMAN,
       GIBBONS, and ROGERS, Circuit Judges.*
             _______________________________
               SECOND AMENDED ORDER
             _______________________________
  This matter is presently before the court upon petitioner’s
request for initial hearing en banc of the respondent’s motion



    *
      Judges Batchelder, Sutton, and Cook recused themselves from
participation in this decision.

                                1
No. 03-4001                          Cooey v. Bradshaw        3    4     Cooey v. Bradshaw                              No. 03-4001

                 ______________________                            of an opinion Judge Suhrheinrich filed without jurisdiction.
                                                                   Decisions issued ultra vires have no legal meaning. Although
                    CONCURRENCE                                    not evident from Judge Boggs’s dissent, Judge Boggs has
                 ______________________                            choosen to endorse an opinion that the panel had no authority
                                                                   to issue.
   CLAY, Circuit Judge, concurring. Approximately thirteen
hours before Petitioner’s execution, the district court issued        Second, as Judge Boggs notes, our decision to deprive the
a stay. Respondent appealed. On July 24, 2003, we granted          panel of jurisdiction by agreeing to hear the matter initially as
Petitioner’s motion to hear Respondent’s appeal initially as an    an en banc Court had the effect of not placing Judges
en banc Court. Judge Boggs published a brief dissent from          Suhrheinrich and Siler on the en banc court that will
this Court’s decision. I wish to emphasize two points about        ultimately decide Cooey v. Bradshaw. Despite the dissent’s
Judge Boggs’ dissent.                                              unhappiness with this development, absolutely nothing
                                                                   procedurally irregular occurred. Although I cannot speak for
   First, Judge Boggs purports to accept the reasoning in an       my colleagues, I felt compelled to support initial en banc
unpublished (and unissued) panel decision authored by Judge        because of the urgency this case involved. Respondent
Suhrheinrich. Judge Boggs appends Judge Suhrheinrich’s             scheduled Petitioner’s execution for 10:00 a.m. on July 24,
decision to his dissent. After losing below, Respondent            2003, but the death warrant remained in effect that entire day.
appealed to a three judge panel of this Court consisting of        Had the panel issued a decision vacating the district court’s
Judges Suhrheinrich, Siler, and Gilman. Although Judge             stay in the afternoon of July 24, 2003, Petitioner would have
Suhrheinrich, joined by Judge Siler, circulated a proposed         become immediately eligible for execution, meaning the en
draft opinion at 3:06 p.m. on July 24, 2003, this Court            banc Court may not have had the opportunity to review this
accepted Petitioner’s request for initial en banc review at 4:00   case.
p.m. that same day. The granting of initial en banc review
eliminated the panel’s jurisdiction over this matter. The three      Judges Suhrheinrich and Siler have taken senior status.
judge panel had not filed Judge Suhrheinrich’s proposed draft      Pursuant to 28 U.S.C. § 46(c), which governs the composition
opinion when the en banc Court assumed jurisdiction. Had           of en banc courts, a court of appeals sitting en banc "shall
the panel already filed an opinion, the decision to hear the       consist of all circuit judges in regular active service . . . except
case en banc would have automatically vacated the panel’s          that any senior circuit judge of the circuit shall be eligible to
opinion. Judge Surheinrich did not attempt to file the panel’s     participate . . . as a member of an in banc court reviewing a
opinion until 9:17 a.m. on July 25, 2003, well after he lost       decision of a panel of which such judge was a member." See
jurisdiction over the case and the concomitant right to file       also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C.
opinions.                                                          § 46(c)). Thus, because the three judge panel never reached
                                                                   a decision prior to the en banc Court granting initial en banc
  I have no quarrel with Judge Boggs’ decision to support          review, Judges Siler and Surhrienrich are statutorily ineligible
Judge Suhrheinrich’s views and I recognize that Judge Boggs        to participate in the en banc review of the district court’s
may endorse whatever reasoning he chooses. I also believe,         order staying Petitioner’s execution. This is not to suggest
however, that by neglecting to mention that this Court, acting     that Judges Siler and Suhrheinrich, who sat as panelists in an
en banc, deprived the panel of jurisdiction, Judge Boggs           earlier appeal involving Petitioner, would not have much to
creates a misleading impression about the precedential value       contribute as members of the en banc Court. See Cooey v.
No. 03-4001                         Cooey v. Bradshaw       5    6    Cooey v. Bradshaw                            No. 03-4001

Coyle, 289 F.3d (6th Cir. 2002). If, however, Judge Boggs                             ________________
dislikes the requirements of 28 U.S.C. § 46, he should address
his complaint to Congress.                                                                DISSENT
                                                                                      ________________

                                                                   BOGGS, Circuit Judge, dissenting from order granting
                                                                 initial hearing en banc and denying the motion to vacate stay.
                                                                   I believe the court’s action in this case is wrong on several
                                                                 counts.
                                                                   By adopting the motion for hearing en banc, based on our
                                                                 court’s interpretation of Fed. R. App. P. 35(a), the court
                                                                 pretermits the ability of the panel to deal with the motion that
                                                                 was before it in the first instance, and for which a majority of
                                                                 the panel had prepared a draft opinion for imminent filing.
                                                                 The reasoning of that draft opinion expresses my views on the
                                                                 merits of the district court’s action. I endorse the attached
                                                                 reasoning as a full statement of my reasons for opposing the
                                                                 hearing en banc and favoring vacating the stay granted by the
                                                                 district court.
                                                                    In addition, by entertaining a motion for hearing en banc,
                                                                 as opposed to allowing the panel to issue an order and then
                                                                 considering a rehearing of that order, this action pretermits
                                                                 the ability of the two senior judges on the panel to participate
                                                                 in the en banc court that considered the motion to vacate the
                                                                 stay. As those judges have been intimately familiar with this
                                                                 case from its inception, that change represents a significant
                                                                 loss of wisdom in the making of this decision.
                                                                    Furthermore this may well portend a general tactic of
                                                                 circumventing panels of this court in death penalty cases by
                                                                 the filing of motions for initial hearing en banc. Such
                                                                 motions have the effect of preventing the participation of
                                                                 senior judges on a death penalty panel, who may be by far the
                                                                 most knowledgeable judges on the given issues. They also
                                                                 may give rise to an unseemly “race to judgment” if a rapid
No. 03-4001                        Cooey v. Bradshaw        7    8    Cooey v. Bradshaw                            No. 03-4001

vote on the en banc motion overlaps with the filing of a panel   Attachment to Dissent of Judge Boggs
ruling.
                                                                    Margaret Bradshaw, Warden (“Warden”), appeals from a
   As the reasoning attached makes clear, we are again           July 23, 2003 order by the district court granting Petitioner
allowing a litigant to procure a stay of execution without       Richard Wade Cooey’s motion for a stay of execution
filing a petition for a writ of habeas corpus or any other       pending this Court’s en banc rehearing of Abdur’Rahman v.
document that might appropriately support such a motion. Cf.     Bell, Case Nos. 02-6547/6548 (6th Cir. Mar. 5, 2003), “or
In re John W. Byrd, 269 F.3d 578, 582 (6th Cir. 2001)            until the Sixth Circuit has construed its June 10, 2003 letters
(Boggs, J., dissenting).                                         to Cooey’s former federal appellate habeas counsel.”
                                                                 Memorandum of Opinion and Order dated July 23, 2003, at
   I therefore respectfully dissent from the ordering of a       19 (“District Court Order”). For the reasons that follow, we
hearing en banc of the motion to vacate the district court’s     [should] VACATE the district court’s order of stay and
stay of execution, and from the action of the en banc court in   reinstate Cooey’s date of execution.
refusing to vacate the stay.
                                                                                      I. BACKGROUND
                                                                   Cooey was convicted and sentenced to death in 1986 for the
                                                                 rapes and murders of Wendy Offredo and Dawn McCreery.
                                                                 The Ohio Court of Appeals upheld Cooey’s conviction and
                                                                 sentence, see State v. Cooey, 1987 WL 31921 (Dec. 23,
                                                                 1987), as did the Ohio Supreme Court. See State v. Cooey,
                                                                 544 N.E.2d 895 (Ohio 1989). The United States Supreme
                                                                 Court denied certiorari on April 1, 1991. See Cooey v.Ohio,
                                                                 499 U.S. 954 (1991). His requests for state post-conviction
                                                                 relief were also denied. See, e.g., State v. Cooey, 1994 WL
                                                                 201009 (Ohio App. May 25, 1994).
                                                                   Cooey first sought federal habeas relief in October 1996.
                                                                 On September 4, 1997, the district court denied the writ. See
                                                                 Cooey v. Anderson, 988 F. Supp. 1066 (N.D. Ohio 1997).
                                                                 The district court also issued a certificate of probable cause
                                                                 for appeal. Cooey filed a notice of appeal. On October 12,
                                                                 2000, we ruled that the Antiterrorism and Effective Death
                                                                 Penalty Act of 1996 (AEDPA) applied to this case, and that
                                                                 the district court’s issuance of a certificate of probable cause
                                                                 under the pre-AEDPA version of 28 U.S.C. § 2253(c) was
                                                                 ineffective. We treated Cooey’s brief as an application for a
                                                                 certificate of appealability, and further directed Cooey to
                                                                 show cause why we should not deny the application for a
No. 03-4001                          Cooey v. Bradshaw            9   10   Cooey v. Bradshaw                            No. 03-4001

certificate. We attached to our show cause order an appendix            Defender’s Office [is] to find a substitute [attorney] for
summarizing our tentative view as to each issue. The parties            you in this appeal and to be prepared, if necessary, to
filed briefs in response to our show cause order, and the               arrange for new counsel for Mr. Cooey in the event he
matter was argued on January 30, 2002.                                  wishes to initiate any new federal filings between now
                                                                        and [his scheduled execution date of July 24.]
   We ultimately granted a certificate of appealability on two
issues. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002).                On July 17, 2003, Cooey, proceeding pro se, filed a motion
But after thorough review of the record, we held that Cooey           in the district court, pursuant to 21 U.S.C. § 848(q)(4)(B), for
had received a fair trial and was not entitled to habeas relief.      new counsel to represent and aid him in the preparation,
                                                                      filing, and prosecution of a motion pursuant to Fed. R. Civ. P.
  On June 10, 2003, six weeks before his scheduled July 24            60(b), and a petition for writ of habeas corpus under 28
execution, we removed Cooey’s habeas counsel from his case            U.S.C. § 2254. That same day, the district court appointed
and directed the Ohio Public Defender’s Office to appoint             the Federal Public Defender’s Office to represent Cooey and
new counsel for any further proceedings. In dismissing                investigate whether he had any viable federal claims to
Cooey’s two former attorneys, we directed the clerk’s office          present. However, on July 18, 2003, the Federal Public
to send the following letters. The letter to the first attorney       Defender requested permission to withdraw. On July 21,
stated:                                                               2003, the district court granted that motion and appointed
                                                                      current counsel from the Ohio Public Defender’s office “for
  [The Court has] asked the Ohio Public Defender’s Office             the purpose of advising [Cooey] whether he has any further
  to be prepared to locate new counsel for Mr. Cooey in the           federal remedies and if so, to file the appropriate pleadings.”
  event he wishes to initiate any new federal filings                  The district court’s order further indicated that “[t]he Court
  between now and his scheduled execution date of                     is not issuing a stay of execution, which is set for July 24,
  July 24, 2003. . . . [You] will not receive any new                 2003.”
  appointments on appeal or extensions of appointments
  under the Criminal Justice Act in capital cases. This                 On July 22, 2003, Cooey, through current counsel, filed in
  reflects the court’s dissatisfaction with both the quality of       the district court a motion for relief pursuant to Fed. R. Civ.
  the appellate briefs and the oral argument in Cooey v.              P. 60(b), and a motion for stay of his scheduled July 24
  Coyle and the amount of attorney’s fees which were paid             execution pending the court’s review of his Rule 60(b)
  . . . for Mr. Cooey’s representation.                               motion. Under Rule 60(b), Cooey sought to reopen his
                                                                      habeas corpus proceedings based on the alleged incompetence
The letter to the second attorney stated:                             of his dismissed habeas corpus counsel. Cooey argued that
                                                                      our June 10 letters to his former counsel displayed our belief
  [This] court will not appoint or extend any trial                   that his former counsel was incompetent, and therefore
  appointments to [counsel] in [any future] capital cases.            ineffective. Cooey sought a stay in order to allow his new
  This reflects the court’s dissatisfaction with both the             counsel further time to review his case to determine if
  quality of the appellate briefs and the oral argument in            Cooey’s ineffective assistance of counsel claims were viable.
  Cooey v. Coyle and the amount of the attorney’s fees
  which were paid to [counsel] and [co-counsel] for Mr.                  The State filed its response on July 23, 2003. That night,
  Cooey’s representation. . . . [T]he Ohio Public                     at 9:12 p.m., the district court granted Cooey’s motion to stay
No. 03-4001                          Cooey v. Bradshaw       11    12    Cooey v. Bradshaw                            No. 03-4001

his execution, but declined to rule on Cooey’s underlying                                 II. ANALYSIS
Rule 60(b) motion. The district court expressed concern
whether it properly held jurisdiction to address Cooey’s Rule                             A. Jurisdiction
60(b) motion because our current law on the issue is unclear.
We have held that a Rule 60(b) motion is the “practical               28 U.S.C. § 2251 permits a federal judge “before whom a
equivalent” of a subsequent habeas petition, which a district      habeas corpus proceeding is pending” to stay a state court
court holds no jurisdiction to entertain. See McQueen v.           proceeding. See 28 U.S.C. § 2251. In this case, there is no
Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996). However, this         habeas corpus petition pending before the district court, but
issue is currently slated for en banc review in Abdur’Rahman.      only a Rule 60(b) motion. Cooey’s prior habeas petition was
Against this backdrop, the district court granted the stay         denied by the district court and we affirmed that decision.
because it had only “48 hours to grapple with this                 Indeed, Cooey does not, and cannot, maintain that his present
unprecedented situation,” and did not have “sufficient time to     action before the district court is a second habeas petition. He
flesh out the principles underlying [its] decision.” The court     cannot make that assertion, because if his motion were a
held that our June 10 letters to Cooey’s former counsel may        second habeas petition, it would be subject to the strictures set
have raised some question whether Cooey had received               forth in 28 U.S.C. § 2244(b)(3), and the district court would
effective counsel, and therefore“it would be unseemly for          lack jurisdiction to entertain it. Moreover, the district court
Cooey to be executed” without proper time to evaluate and          expressly found that Cooey’s motion was not a habeas
determine whether, in light of our admonishment of previous        petition under § 2254. Memorandum, p. 15. And given this
counsel, Cooey had received the fair review to which he is         finding, the district court essentially deprived itself of
statutorily entitled. Therefore, the district court did not rule   jurisdiction to grant a stay under § 2251. Without express
on the 60(b) motion, but left it to this Court to construe the     authorization by federal statute or an exception to the Anti-
significance of our June 10 letters in order to ascertain          Injunction Act, the district court was without jurisdiction to
whether the performance of Cooey’s prior appellate habeas          grant the stay of execution here. See 28 U.S.C. § 2283;
counsel had in fact “cast a cloud over the integrity of the        Mitchum v. Foster, 407 U.S. 225, 226 (1972). Because there
habeas process” such that his Rule 60(b) motion should be          is no proper proceeding before the district court that would
granted.                                                           have allowed it to enter the stay of execution, that order must
                                                                   be vacated. See Calderone v. Thompson, 523 U.S. 538 (1998)
   The Warden has appealed the district court’s order. The         (holding that the court of appeals abused its discretion in sua
Warden contends, first, that the district court was without        sponte recalling its mandate); Bowersox v. Williams, 517 U.S.
jurisdiction to enter a stay of execution because a stay of        345, 346 (1996) (per curiam) (vacating the stay of execution;
execution cannot be issued in response to a Rule 60(b) motion      holding that the court of appeals abused its discretion in
since such a motion is not a habeas proceeding; second, that       entering a stay of execution pending disposition of a
if we were to address Cooey’s Rule 60(b) claim on its merits,      successive petition in light of, inter alia, the “surface
that Cooey has failed to describe any substantial claim under      implausibility” of the petitioner’s claims); Delo v. Blair, 509
which relief can be granted; and finally, that Cooey’s             U.S. 823 (1993) (per curiam) (vacating the stay of execution;
appellate habeas counsel did not undermine the integrity of        noting that there was “no conceivable need for the court of
this Court’s proceedings.                                          appeals to engage in further study of the petitioner’s claims”);
                                                                   Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)
                                                                   (per curiam) (vacating the stay); West v. Bell, 242 F.3d 338
No. 03-4001                              Cooey v. Bradshaw           13    14       Cooey v. Bradshaw                                   No. 03-4001

(6th Cir. 2001) (vacating the district court’s grant of a stay of            (1) a judgment which ought not, in equity or good
execution; holding that there was no proper proceeding before                conscience, to be enforced; (2) a good defense to the
the district court upon which to premise the stay).                          alleged cause of action on which the judgment is
                                                                             founded; (3) fraud, accident, or mistake which prevented
                           B. Rule 60(b)                                     the defendant in the judgment from obtaining the benefit
                                                                             of his defense; (4) the absence of fault or negligence on
  Assuming that the district court had any jurisdiction to                   the part of the defendant; and (5) the absence of any
enter a stay, we find it nonetheless to be an abuse of                       adequate remedy at law.
discretion because Cooey failed to establish an underlying
viable claim for relief under Rule 60(b). Cooey never                         Cooey cites to our docket entries of June 10, 2003, and to
indicates on which clause of Rule 60(b)1 he relies, although               our comments in our merits opinion and appendix thereto
his argument that habeas counsel’s conduct affected the                    criticizing former habeas counsel, as constituting a “fraud on
“integrity of the proceedings” most closely resembles the                  the court.” Moreover, the the district court expressly
“savings clause” of Rule 60(b), see Fed. R. Civ. P. 60(b)                  requested that we clarify our intent in chastising counsel.
(“This rule does not limit the power of the court to entertain             Suffice it to say that our displeasure with counsel’s
an independent action . . . for fraud upon the court.”). The               performance was based on appellate habeas counsel’s overt
district court sua sponte relies upon the “independent action”             strategy to litigate every conceivable claim, despite the utter
ground as articulated in United States v.Beggerly, 524 U.S.                baselessness of many of them. It was not based on any
38, 46 (1998) (articulating standard as “[i]ndependent actions             conclusion, upon our exhaustive review of the record in this
must, if Rule 60(b) is to be interpreted as a coherent whole, be           case2, that counsel failed to recognize and raise any
reserved for those cases of injustices which, in certain                   meritorious claims. In other words, our dissatisfaction
instances, are deemed sufficiently gross to demand a                       stemmed from the waste of judicial and financial resources,
departure from the rigid adherence to the doctrine of res                  not from concern over “errors left hidden behind bad
judicata”(internal quotation marks omitted)). In Barrett v.                representation.” See Cooey’s Motion for a Stay, at 4.
Secretary of Health & Human Servs., 840 F.2d 1259, 1263                    Restated again, habeas appellate counsel’s overzealousness
(6th Cir. 1987), we set forth the elements of such a cause of              may have unnecessarily burdened the Court, but it did not
action under Rule 60(b)):                                                  affect the integrity of Cooey’s initial habeas proceedings or
                                                                           otherwise prevent us from understanding the case and
                                                                           reaching the right result.
    1
     Fed. R. Civ. P. 60(b) provides for relief from judgment on various      In sum, we explicitly reject Cooey’s implicit argument that
grounds, including:                                                        former counsel’s overzealousness in raising frivolous claims
    (1) mistake, inadvertence, surprise, or excusable neglect; (2)         supports the assumption that counsel overlooked meritorious
    newly discovered evidence which by due diligence could not
    have been discovered in time to move for a new trial under Rule
    59(b); (3) fraud (whether heretofore denom inated as intrinsic or           2
    extrinsic), misrepresentation, or other misco nduct of an ad verse            It should be recalled that we exam ined the entire reco rd in this case
    party; . . . or (6) any other reason justifying relief from the        three times; first, when we expressed o ur tentative view o f Coo ey’s
    operation of judgment. . . . This rule does not limit the power of     app lication for a certificate of appealability; second, when we ruled
    a court to entertain an ind ependent action . . . for fraud upon the   definitively on the request for a COA; and third, when we denied habeas
    court”).                                                               relief on the merits.
No. 03-4001                         Cooey v. Bradshaw       15    16       Cooey v. Bradshaw                                   No. 03-4001

claims. Absent an actual showing of the latter (and Cooey         2254,” and not cognizable. Section 2254(i) flatly precludes
has made no such attempt), it cannot be said that the integrity   such a claim:
of the judicial proceedings have been compromised and that
justice has not been served such that a Rule 60(b) motion, on       The ineffectiveness or incompetence of counsel during
any basis should be granted. Cooey’s attempt to transmogrify        Federal or State collateral post-conviction proceedings
our criticism of former habeas counsel’s excessive and              shall not be a ground for relief in a proceeding arising
wasteful strategy into a fraud upon the court must be rejected.     under section 2254.
                                                                  28 U.S.C. § 2254(i). See also Coleman v. Thompson, 501
  Moreover, the specific claims which Cooey asserts require       U.S. 722, 755 (1991) (holding that there is not constitutional
Rule 60(b) relief have already been addressed on the merits       right to counsel in state collateral proceedings). Thus, under
and clearly understood by this Court. Therefore, Cooey is not     the plain language of the AEDPA, there is no jurisdiction for
entitled to relief under any of the enumerated sections of Rule   any court to hear the merits of Cooey’s claim. Cooey’s Rule
60(b). Cooey’s true claim is that those issues were not argued    60(b) motion is in reality an application for permission to file
well, and what he really wants is an opportunity to readdress     a second habeas petition, subject to 28 U.S.C. § 2244(b)(3),
those claims. This is not a permissible basis for a Rule 60(b)    and to say otherwise makes a mockery of the AEDPA.3
motion, however. See Jinks v. AlliedSignal, 250 F.3d 381,
385 (6th Cir. 2001) (stating that a “Rule 60(b) [motion] does       Cooey also does not attempt to show how any new claims
not allow a defeated litigant a second chance to convince the     unearthed by new counsel could somehow satisfy the
court to rule in his or her favor by presenting new               requirements of § 2244(b)(2).4 That is, to survive dismissal,
explanations, legal theories, or proof”). Counsel also glosses    Cooey would have to demonstrate that any new claim relies
over the fact that what is at issue is former appellate habeas    on a new rule of constitutional law made retroactive to cases
counsel’s behavior in this Court during the initial appeal, and   on collateral review; or based on a factual predicate that could
not any misbehavior by the trial habeas counsel in the district
court. Rule 60(b) relief is inappropriate for this reason as
well.                                                                  3
                                                                        The district court lacked jurisdiction to enter the stay absent our
                                                                  express authorization under § 224 4(b)(3)(A ). See Kutzner v. Coc krell,
                   C. Successive Petition                         303 F.3d 333, 338 (5th C ir. 200 2); Martinez v. Texas Court of Criminal
                                                                  Appea ls, 292 F.3d 417 , 423 (5th C ir.), cert. denied, 122 S. Ct. 1992
   Thus, Cooey’s claim that counsel’s alleged incompetence        (2002); Spivey v. State Bd. of Pardons & Paroles, 279 F.3d 1301, 1303-
affected the integrity of the initial habeas proceedings is       04 (11th Cir. 2002 ) (per curiam ); cf. In re Parker, 49 F .3d 2 04, 2 13 (6th
simply an ineffective assistance of appellate habeas counsel      Cir. 1995) (holding that the district court’s order appointing counsel under
                                                                  21 U.S.C. § 848(q)(4)(B) did not give it jurisdiction over the action
claim. To be sure, we need only look to what Cooey wants          sufficient to allow it to e nter a stay of execution pursuant to 28 U .S.C. §
here–time to allow new counsel to go back through the record      2251; pre-A ED PA ). As the Fifth Circuit stated in Kutzner, “[a]llowance
to see if there are any issues that should have been raised but   of a stay of ex ecution under these circumstances would signal tacit
were not. Failing to raise meritorious claims is the very         approval of endless stays for the preparation of endless successive
definition of ineffective assistance of counsel. Because          petitions.” Kutzner, 303 F.3d at 338.
premised on “incompetence” or “ineffectiveness,” Cooey’s               4
Rule 60(b) motion is a “proceeding arising under section               Of course any claim presented in the prio r app lication is subjec t to
                                                                  dismissal. 28 U .S.C. § 224 4(b)(1).
No. 03-4001                         Cooey v. Bradshaw      17

not have reasonably been discovered previously, and if
proven, would be sufficient to establish by clear and
convincing evidence that, but for the constitutional error, no
reasonable factfinder would have found the applicant guilty.
See 28 U.S.C. § 2244(b)(2). Cooey also makes no attempt to
address the requirements of § 2244(b)(1) or (2), Indeed, we
note that Cooey does not even attempt to argue that his claims
otherwise survive § 2244(b)(1) or (2).
   We have exhaustively reviewed the entire record in this
case several times. Based on that review, we cannot say that
meritorious claims were missed. Nor can it be said that
Cooey is actually innocent of the crimes for which he was
convicted. Having said this, we do not see how it can be said
that the integrity of the habeas process was in any way
compromised and that justice was not served. Thus, to grant
a stay of execution under these circumstances would not only
run afoul of the AEDPA, but interfere with the State of
Ohio’s legislative and judicial sovereignty.
                   III. CONCLUSION
  Given our conclusion that no relief is available under Rule
60(b) or § 2244(b), the district court’s grant of the stay was
improper.
