Cooey v. Bradshaw

• Decision Date: 31 July 2003
• Docket Number: No. 03-4001.,03-4001.
• Citation: 338 F.3d 615
• Parties: Richard Wade COOEY II, Petitioner-Appellee, v. Margaret BRADSHAW, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

338 F.3d 615

Richard Wade COOEY II, Petitioner-Appellee, v. Margaret BRADSHAW, Warden, Respondent-Appellant.

No. 03-4001.

United States Court of Appeals, Sixth Circuit.

Filed: July 31, 2003. Pursuant to Sixth Circuit Rule 206

Kelly L. Culshaw, Gregory W. Meyers, Public Defender's Office, Columbus, OH, for Petitioner-Appellee.

Michael L. Collyer, Office of the Attorney General of Ohio, Cleveland, OH, Timothy D. Prichard, Columbus, OH, for Respondent-Appellant.

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 to vacate the stay of execution which was granted by the district court on July 23, 2003.

The petition for initial en banc hearing has been presented to the nonrecused active judges of the court, a majority of 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 execution. The stay of execution granted by the district court remains undisturbed. IT IS SO ORDERED.

CLAY, Circuit Judge, concurring.

Approximately thirteen hours before Petitioner's execution, the district court issued a stay. Respondent appealed. On July 24, 2003, we granted Petitioner's motion to hear Respondent's appeal initially as an en banc Court. Judge Boggs published a brief dissent from this Court's decision. I wish to emphasize two points about Judge Boggs' dissent.

First, Judge Boggs purports to accept the reasoning in an unpublished (and unissued) panel decision authored by Judge Suhrheinrich. Judge Boggs appends Judge Suhrheinrich's decision to his dissent. After losing below, Respondent appealed to a three judge panel of this Court consisting of Judges Suhrheinrich, Siler, and Gilman. Although Judge Suhrheinrich, joined by Judge Siler, circulated a proposed draft opinion at 3:06 p.m. on July 24, 2003, this Court accepted Petitioner's request for initial en banc review at 4:00 p.m. that same day. The granting of initial en banc review eliminated the panel's jurisdiction over this matter. The three judge panel had not filed Judge Suhrheinrich's proposed draft opinion when the en banc Court assumed jurisdiction. Had the panel already filed an opinion, the decision to hear the case en banc would have automatically vacated the panel's opinion. Judge Suhrheinrich did not attempt to file the panel's opinion until 9:17 a.m. on July 25, 2003, well after he lost jurisdiction over the case and the concomitant right to file opinions.

I have no quarrel with Judge Boggs' decision to support Judge Suhrheinrich's views and I recognize that Judge Boggs may endorse whatever reasoning he chooses. I also believe, however, that by neglecting to mention that this Court, acting en banc, deprived the panel of jurisdiction, Judge Boggs creates a misleading impression about the precedential value of an opinion Judge Suhrheinrich filed without jurisdiction. Decisions issued ultra vires have no legal meaning. Although not evident from Judge Boggs's dissent, Judge Boggs has chosen to endorse an opinion that the panel had no authority to issue.

Second, as Judge Boggs notes, our decision to deprive the panel of jurisdiction by agreeing to hear the matter initially as an en banc Court had the effect of not placing Judges Suhrheinrich and Siler on the en banc court that will ultimately decide Cooey v. Bradshaw. Despite the dissent's unhappiness with this development, absolutely nothing procedurally irregular occurred. Although I cannot speak for my colleagues, I felt compelled to support initial en banc because of the urgency this case involved. Respondent scheduled Petitioner's execution for 10:00 a.m. on July 24, 2003, but the death warrant remained in effect that entire day. Had the panel issued a decision vacating the district court's stay in the afternoon of July 24, 2003, Petitioner would have become immediately eligible for execution, meaning the en banc Court may not have had the opportunity to review this case.

Judges Suhrheinrich and Siler have taken senior status. Pursuant to 28 U.S.C. § 46(c), which governs the composition of en banc courts, a court of appeals sitting en banc "shall consist of all circuit judges in regular active service ... except that any senior circuit judge of the circuit shall be eligible to participate ... as a member of an in banc court reviewing a decision of a panel of which such judge was a member." See also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C. § 46(c)). Thus, because the three judge panel never reached a decision prior to the en banc Court granting initial en banc review, Judges Siler and Suhrheinrich are statutorily ineligible to participate in the en banc review of the district court's order staying Petitioner's execution. This is not to suggest that Judges Siler and Suhrheinrich, who sat as panelists in an earlier appeal involving Petitioner, would not have much to contribute as members of the en banc Court. See Cooey v. Coyle, 289 F.3d 882 (6th Cir.2002). If, however, Judge Boggs dislikes the requirements of 28 U.S.C. § 46, he should address his complaint to Congress.

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 vote on the en banc motion overlaps with the filing of a panel ruling.

As the reasoning attached makes clear, we are again allowing a litigant to procure a stay of execution without filing a petition for a writ of habeas corpus or any other document that might appropriately support such a motion. Cf. In re John W Byrd, 269 F.3d 578, 582 (6th Cir.2001) (Boggs, J., dissenting).

I therefore respectfully dissent from the ordering of a hearing en banc of the motion to vacate the district court's stay of execution, and from the action of the en banc court in refusing to vacate the stay.

Attachment to Dissent of Judge Boggs

Margaret Bradshaw, Warden ("Warden"), appeals from a July 23, 2003 order by the district court granting Petitioner Richard Wade Cooey's motion for a stay of execution pending this Court's en banc rehearing of Abdur'Rahman v. Bell, Case Nos. 02-6547/6548 (6th Cir. Mar. 5, 2003), "or until the Sixth Circuit has construed its June 10, 2003 letters to Cooey's former federal appellate habeas counsel." Memorandum of Opinion and Order dated July 23, 2003, at 19 ("District Court Order"). For the reasons that follow, we [should] VACATE the district court's order of stay and reinstate Cooey's date of execution.

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, 46 Ohio St.3d 20, 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, 111 S.Ct. 1431, 113 L.Ed.2d 482 (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 certificate. We attached to our show cause order an appendix summarizing our tentative view as to each issue. The parties filed briefs in response to our show cause order, and the matter was argued on January 30, 2002.

We ultimately granted a certificate of appealability on two issues. See Cooey v. Coyle, 289 F.3d 882 (6th Cir.2002). But after thorough review of the record, we held that Cooey had received a fair trial and was not entitled to habeas relief.

On June 10,...