*

Judge Gibbons recused herself in this case.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0164p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SEDLEY ALLEY,

Plaintiff-Appellee,

v.

GEORGE LITTLE, in his official capacity as

Tennessee’s Commissioner of Correction, et al.,

Defendants-Appellants,

JOHN DOES 1-100, et al.,

Defendants.

X

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>

,

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N

No. 06-5650

Filed: May 16, 2006 

 Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.*

_________________

ORDER _________________

The court having received a petition for rehearing en banc, and the petition having been

circulated not only to the original panel members but also to all other active judges of this court, and

less than a majority of the judges having favored the suggestion, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for rehearing 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
No. 06-5650 Alley v. Little, et al. Page 2

BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and

CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc. 

The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-8794, and

is expected to issue a decision before the end of the current Term in June. The Court’s decision will

impact Alley’s case either by allowing him or not allowing him to challenge the method of his

execution pursuant to 42 U.S.C. § 1983. If Alley is executed on Wednesday and the Supreme Court

decides Hill in his favor next month, this Court will effectively have locked the barn door after the

horse has already escaped. If we uphold the stay entered by the district court, as I would, and the

Supreme Court decides Hill against Alley’s interests, Tennessee may proceed with the execution in

June. 

To me, this balancing of interests weighs heavily in favor of upholding the stay entered by

the district court. Moreover, the dysfunctional patchwork of stays and executions going on in this

country further undermines the various states’ effectiveness and ability to properly carry out death

sentences. We are currently operating under a system wherein condemned inmates are bringing

nearly identical challenges to the lethal injection procedure. In some instances stays are granted,

while in others they are not and the defendants are executed, with no principled distinction to justify

such a result. Compare Rutherford v. Crosby, 546 U.S. ___, 126 S.Ct. 1189 (Jan. 25, 2006); Taylor

v. Crawford, No. 06-1379 (8th Cir. Feb. 1, 2006) (en banc); Roane v. Gonzales, No. 05-2337

(D.D.C. Feb. 24, 2006), with Wilson v. Livingston, 2006 U.S. App. LEXIS 10958 (5th Cir. May 2,

2006), stay denied, 2006 U.S. LEXIS 3670 (U.S., May 4, 2006); Donahue v. Bieghler, 126 S.Ct.

1190 (U.S., Jan 27, 2006). This adds another arbitrary factor into the equation of death and thus

far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies. Until

the Supreme Court sorts this out, I would uphold the stay issued in this case, and all cases that come

before this Court, and therefore dissent from the Court’s contrary holding. 

We review a district court’s decision to enter a stay for abuse of discretion. See Yolton v. El

Paso Tenn. Pipeline, Co., 435 F.3d 571, 577 (6th Cir. 2006). Our four factor analysis requires us

to consider the petitioner’s likelihood of success on the merits, whether the petitioner will suffer

irreparable harm if a stay is not entered, whether others will be harmed by the entry of a stay, and

the public interest in a stay. These factors must be balanced to determine whether a stay ought to

be entered. 

First, it is clear that petitioner will suffer irreparable harm if a stay is not entered. He will be

dead. This will of course moot any challenge he could mount should the Supreme Court decide Hill

to allow a §1983 suit. 

Second, we consider whether others will be harmed by the stay. As the district court noted,

the state may incur financial costs and relatives of the plaintiff’s victim might experience emotional

harm. These are serious interests that we ought to credit. Nevertheless, the fact that the Supreme

Court will issue a decision by the end of next month militates against finding these interests

overwhelming. Death, of course, is different. A delay of less than two months — awaiting a highly

relevant Supreme Court decision — is worth the wait when human life is at stake. 

Third, we consider the public interest. Certainly the public interest in carrying out criminal

sentences is strong. On the other hand, the public also has an interest in not carrying out cruel and

unusual punishment or terminating human life prematurely. Finally, the public interest in uniform

adjudication by the federal courts is not to be disregarded. The fact is that fifteen executions have

been carried out despite Hill. Other courts have issued stays putting executions on hold pending the

Hill’s disposition. This patchwork justice is intolerable when dealing with the imposition of the

death penalty and undermines the public interest in uniform adjudication. 
No. 06-5650 Alley v. Little, et al. Page 3

Finally, we consider Alley’s likelihood of success on the merits. The panel decision declares

that there is only a “small” likelihood of success on the merits and finds that this “ultimately decides

the matter.” I disagree. The district court found that Alley “by providing expert testimony that the

current lethal injection protocol causes excruciating deaths, has made an adequate showing on the

merits of his Eighth and Fourteenth Amendment claims.” Dist. Ct. Op. at 6. The panel decision

does not make clear why this Court should disregard the district court’s explicit factual finding,

particularly given the abuse of discretion standard it purports to apply. From the executions that

have proceeded recently, including one last week, we have additional evidence of the problems with

this procedure. Although Alley’s claim may not be a clear winner, I do not believe that it is a clear

loser, and there is a likelihood that Alley will be able to show that lethal injection amounts to cruel

and unusual punishment. In light of this, I would not find that this factor “ultimately decides the

matter.” Rather, viewing all four factors, and because death is different, I would find that the district

court did not abuse its discretion by entering a stay pending the Supreme Court’s resolution of Hill.

No doubt the march toward death is powerful. Currently, however, the march is anything

but orderly. The current administration of the death penalty in light of the pending decision of Hill

is more like a march in dozens of different directions, which I believe is more costly, more

inefficient, and more arbitrary, than entering the stay and waiting temporarily for some (hopefully)

clear guidance. The arbitrariness of death penalty administration is not ameliorated by the fact that

Hill involves what the panel terms “a procedural matter.” Rather, administration of the death

penalty can only be made more arbitrary by the possibility that after Hill, some current death row

inmates may be able to show in court that the practice of lethal injection violates the Eighth

Amendment’s prohibition of cruel and unusual punishment, while other currently similarly situated

inmates will have already been put to death through a method deemed to violate the Constitution.

I would wait for the Supreme Court to resolve the issue and would affirm the district court’s decision

entering the stay.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green __________________________________ Clerk