RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0058P (6th Cir.)

File Name: 04a0058p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN THE MATTERS OF: LEWIS WILLIAMS,

JR. AND JOHN GLENN ROE

_______________________________________________

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

IN RE LEWIS WILLIAMS, JR.

Petitioner-Appellant

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No. 04-3014

Filed: January 12, 2004

BEFORE: KENNEDY, SUHRHEINRICH and MOORE,

Circuit Judges

KENNEDY,CircuitJudge. Petitioner Lewis Williams filed

this §1983 action in the district court challenging the method

of administering the lethal injection of drugs at his execution

as a constitutional violation of his right to be free from cruel

and unusual punishment and seeking an injunction to

postpone his execution scheduled for January 14, 2004. The

1

The complaint also sought similar relief for John Glenn Roe

scheduled for execution February 3, 2004.

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district court treated petitioner*s complaint as a second, or

successive, petition1 and transmitted it to the court.

The § 1983 action challenging the method of administering

drugs at his execution is, as he concedes, to be treated as a

second habeas action under current Sixth Circuit decisions.

The majority of the panel would deny permission to file a

second habeas on the grounds presented. They have never

been presented to the state court, so there has been no

exhaustion. The affidavits in support of a preliminary

injunction, in essence, state that if lethal injection is not

administered properly, petitioner could experience severe pain

without displaying any sign of it. Responsive affidavits

detailing the procedure indicate that the concern expressed by

petitioner is so unlikely as to be immeasurable.

Petitioner essentially bases his request for a stay of

execution on the Supreme Court having granted certiorari in

Nelson v. Campbell, No. 03-6821, 2003 WL 22327593, 72

USWL 3363 (Dec. 1, 2003). Nelson involves a case

involving a prisoner facing the death penalty whose

peripheral veins were unavailable and who had to be sedated

through the central venous system. The state in Nelson chose

the “cut down” technique which allegedly requires more

experience and medical training than the usually-performed

per cutaneous technique. The Court granted certiorari to

answer the following question:

Whether a complaint brought under 42 U.S.C. § 1983 by

a death-sentenced state prisoner, who seeks to stay his

execution in order to pursue a challenge to the

procedures for carrying out his execution, is properly

recharacterized as a habeas corpus petition under

28 U.S.C. § 2254?
-3-

The Court has also acted on at least two cases involving

similar last-minute challenges to the method of execution of

by injection, both from the Fourth Circuit. In Rowsey v. Beck,

No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate granted,

Beck v. Rowsey, 504 U.S. __, 2004 WL 40382 (Jan. 8, 2004),

the court vacated the stay granted by the Fourth Circuit. In

Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003),

motion to vacate stay denied, Johnson v. Reid, 504 U.S. __,

2003 WL 22970950 (Dec. 18, 2003), the district court had

granted an injunction staying an execution. The court of

appeals affirmed. The Supreme Court denied the state*s

motion to vacate. Of most relevance to the present petition,

however, is the Court*s denial of application for stay of

execution in Zimmerman v. Johnson, 2003 U.S. Lexis 9199,

72 USLW 3406 (Dec. 15, 2003). In Zimmerman, the Fifth

Circuit affirmed the dismissal of the action on the procedural

ground that § 1983 is not an appropriate vehicle for

challenges to the method of execution and held that applicant

should have proceeded by applying for a writ of habeas

corpus. The four Justices that dissented from the denial of

stay stressed that the Court should stay execution until Nelson

was decided. The majority, however, clearly disagreed. We

understand this decision to mean that this Circuit is free to

follow its prior precedent with regard to this question until the

Supreme Court issues its decision in Nelson.

Accordingly, the majority of the panel is of the opinion that

we should continue to follow Sixth Circuit precedent in In re

Sapp, 118 F.3d 460, 464 (6th Cir. 1997) and treat this case as

a second, or successive, petition. The district court properly

transferred the case as filed to this court so it could pass on it

as a request for a second petition. We decline to permit the

claim to be filed as a second petition. It has never been

presented to a state court. Indeed, petitioner does not

seriously claim it meets the requirements for a second

petition.

Petitioner asks that we stay our decision to await the

decision of the Supreme Court in Nelson. He proffers

affidavits from a physician who states that if thiopental

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sodium is not administered for a sufficient length of time to

complete the other steps of the procedure, petitioner will

suffer severe pain. A lay person who experienced this

difficulty describes the pain in her affidavit. In response, the

state submits an affidavit from an extremely well-qualified

physician explaining why, in the dose to be used by the state,

two (2) grams, the condition described by plaintiff*s expert

will almost certainly not occur. He notes that when thiopental

sodium is commonly used for general anesthesia in surgery,

it is normally administered in a dose of 300 to 400

milligrams.

Petitioner’s motions for remand to the district court, for

preliminary injunctive relief and for stay of execution are

DENIED.

In order that petitioner have counsel to pursue any possible

habeas relief from the order, Stephen A. Ferrell is appointed

to represent petitioner on such proceedings.
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In re: Lewis Williams, Jr.; No. 04-3014

SUHRHEINRICH, Circuit Judge, concurring. I concur

in Judge Kennedy’s opinion. However, I would simply direct

the Warden to carry out the execution in the manner

advocated by the petitioners’ expert. The petitioners do not

challenge the fact of their execution; they challenge only the

method currently employed by the State of Ohio. By affidavit

they have proposed an alternative method which they

advocate does not constitute cruel and unusual punishment.

The affidavit of the petitioners’ expert, Dr. Mark J.S. Heath,

which is incorporated into the petitioners’ “Motion to Stay

and Abey Proceedings,” states in relevant part:

J) The benefits of thiopental in the operating room

engender serious risks in the execution chamber. Based

on the information I have available to me concerning

Ohio’s execution protocol, a two (2) gram dose of

sodium thiopental is apparently administered in a single

injection from a single syringe. By contrast, based on

my research and the research of others into the

procedures for executing human beings by means of

lethal injection, the original design of the lethal injection

protocol called for the continuous intravenous

administration of an ultrashort-acting barbiturate. Based

on my research and the research of others, the central

elements of the lethal-injection procedure used in Ohio

is similar to the one adopted many years ago in

Oklahoma (which, it appears, many states used as a

model without substantive independent research).

Oklahoma requires the “continuous intravenous

administration of an ultrashort-acting barbiturate”

(Oklahoma Statutes, Title 22 Criminal Procedure,

Chapter 17 part 1014A). It does not appear that Ohio’s

protocol includes this “continuous” requirement. The

use of a continuous administration of the ultrashortacting barbiturate is essential to ensure continued and

sustained unconsciousness during the administration of

pancuronium and potassium chloride. It is my opinion

based on a reasonable degree of medical certainty that

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the failure to require a continuous infusion of thiopental

places the condemned inmate at a needless and

significant risk for the conscious experience of paralysis

during the excruciating pain of both suffocation and the

intravenous injection of potassium chloride. 

Motion to Stay and Abey Proceedings, at 13 (quoting Heath

Affidavit ¶ 17). 

If the Warden is ordered to follow the method advanced by

the petitioners’ chosen expert, then the procedural question

of whether the claim is properly considered a § 1983 action or

a successive habeas petition will be moot, as the petitioners

would have received the relief that they request. 
-7-

No. 04-3014, In re Lewis Williams, Jr.

KAREN NELSON MOORE, Circuit Judge, dissenting.

I believe that the proper course of action is to grant the

preliminary injunction staying the execution of Williams.

The Supreme Court’s grant of certiorari in Nelson v.

Campbell, No. 03-6821, 2003 WL 22327593, 72 U.S.L.W.

3363 (Cert. Granted Dec. 1, 2003), calls into question our

decision in In re Sapp, 188 F.3d 460 (6th Cir. 1997), upon

which the district court relied in transferring the action to us

as a second or successive habeas petition pursuant to 28

U.S.C. § 1631. In Sapp, a panel of this court held that a

challenge to a method of execution brought as an action under

42 U.S.C. § 1983 constitutes a habeas corpus petition. Sapp,

188 F.3d at 464. Sapp relied upon an earlier Supreme Court

decision, Gomez v. United States Dist. Ct. for the N. Dist. of

Cal., 503 U.S. 653, 653-54 (1992), in reaching its decision.

Now, the Supreme Court has undertaken to resolve the

following question: “Whether a complaint brought under 42

U.S.C. § 1983 by a death-sentenced state prisoner, who seeks

to stay his execution in order to pursue a challenge to the

procedures for carrying out the execution, is properly

recharacterized as a habeas corpus petition under 28 U.S.C.

§ 2254?” Nelson, 2003 WL 22327593, at *1 (emphasis

added). The Supreme Court’s ruling could directly overrule

Sapp, confirm the earlier high court holding upon which Sapp

relied, or reach some middle ground, but naturally we will not

know the answer to this question for several months.

It would be inappropriate and unjust to permit Williams’s

execution to occur when the Supreme Court has yet to decide

whether Williams has a right to present his claim as a § 1983

action. The Supreme Court, the Sixth Circuit, and other

circuits have all granted stays of execution when the Supreme

Court has taken a case to resolve an important issue germane

to the action. McFarland v. Scott, 512 U.S. 849, 853 (1994);

Selvage v. Collins, 494 U.S. 108, 109 (1990); Steffen v. Tate,

39 F.3d 622, 623 (6th Cir. 1994); Mobley v. Head, 306 F.3d

1096, 1097 (11th Cir. 2003). Recently, the Fourth Circuit

stayed the execution of two prisoners, one from Virginia and

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one from North Carolina, pending the Supreme Court’s

decision in Nelson after those prisoners brought § 1983

claims apparently identical to Williams’s. See Reid v.

Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003) (order

granting preliminary injunction); Rowsey v. Beck, No. 04-

6073 (4th Cir. Jan. 8, 2004) (order denying motion to vacate

stay of execution granted by the district court). The Supreme

Court denied a motion to vacate the stay in Reid, Johnson v.

Reid, 504 U.S. ____, 2003 WL 22970950 (Dec. 18, 2003), yet

it vacated the stay of execution in Rowsey, over the dissent of

four Justices. Beck v. Rowsey, 504 U.S. ____, 2004 WL

40382 (Jan. 8, 2004). The disparate treatment of these two

cases by the Supreme Court is difficult to reconcile given

their similarity; the district court in Rowsey stated that the

issue there was “factually and procedurally similar, if not

identical” to the issue in Reid. Rowsey v. Beck, No. 5:04-CT04-BO, at 4 (E.D.N.C. Jan. 7, 2004). The Supreme Court’s

denial of an application for a stay of execution in Zimmerman

v. Johnson, 2003 U.S. Lexis 9199, 72 U.S.L.W. 3406

(Dec. 15, 2003), does not provide any further guidance.

Without further development of the reasons for the Supreme

Court’s actions, we should exercise prudence and caution in

the face of ambiguity when the consequences of our decision

have such gravity.

At this stage, the question of whether Williams has properly

filed a second or successive habeas petition pursuant to the

provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrelevant

because the predicate issue of whether his § 1983 claim is

properly construed as a second or successive petition is

pending before the Supreme Court. Equally unimportant is a

consideration of the merits of Williams’s § 1983 action —

whether the State of Ohio’s procedures for lethal injection,

which include the allegedly improper use of the barbituate,

thiopental sodium, and the administration of a neuromuscular

blocking agent, pancuronium bromide, that is banned for

veterinary use by several states, constitute a cruel and unusual

punishment in violation of the Eighth Amendment. The

resolution to this question is not appropriately considered

now; if the Supreme Court’s forthcoming decision in Nelson
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v. Campbell demonstrates that Williams’s action is a § 1983

action and not a second or successive habeas petition, the

district court must first consider his claim. In any event, the

contrasting views of the physicians’ affidavits presented by

Williams and the State of Ohio serve to demonstrate a serious

question regarding the merits. Nonetheless, here we simply

must decide whether Williams’s execution can go forward

given that the Supreme Court may determine that Williams

has the opportunity to present his grievance before the district

court as a § 1983 action. It should not.

In the interest of procedural fairness, I would grant the

motion for a preliminary injunction to stay the execution and

hold the case in abeyance. It would be cause for great regret

if Williams were executed on Wednesday morning only to

have the Supreme Court determine several months later that

Williams in fact deserved a chance to pursue his action in

federal district court.

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NO. 04-3014

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: JOHN GLENN ROE

Petitioner-Appellant

v.

______________________________________/

Filed: January 12, 2004

BEFORE: SUHRHEINRICH, SILER, and CLAY,

Circuit Judges.

Petitioner John Glenn Roe filed joint motions with Lewis

Williams, Jr. to stay and abey proceedings and for

preliminary injunctive relief for stay of execution. Because

these are habeas proceedings, we address each of the

petitioners’ motions separately. We hereby adopt in this case

the reasoning and the result of the majority opinion authored

by Judge Kennedy and concurred in by Judge Suhrheinrich in

the matter of In re: Lewis Williams, Jr., issued on January 12,

2004. We further adopt the concurring opinion of Judge

Suhrheinrich in the Williams matter. 

Thus, for the reasons stated in the those opinions, Petitioner

John Glenn Roe’s requests for a stay and abeyance and for

preliminary injunctive relief are DENIED. 
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CLAY, Circuit Judge, dissenting. 

I hereby dissent from the order and opinion of the majority

in the instant case for the reasons expressed by Judge Moore’s

dissent in In re Lewis Williams, Jr., No. 04-3014.

2

This order was initially entered on January 13, 2004. It was

amended on January 15, 2004 to reflect the joinder in Judge Clay’s

dissenting opinion of the several judges noted as having done so. In all

other respects, the amended order is identical to the initial order.

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No. 04-3044

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEWIS WILLIAMS, JR., et al.,

Plaintiffs -Appellants A M E N D E D

v.

O R D E R2

ROBERT TAFT, et al.,

Defendants - Appellees

Filed: January 15, 2004

Before: BOGGS, Chief Judge; KENNEDY, MARTIN,

SUHRHEI NRI CH, BAT CHE L D E R ,

DAUGHTREY, MOORE, COLE, CLAY,

GILMAN, GIBBONS, and ROGERS, Circuit

Judges

This matter comes before the court upon the petition of the

plaintiffs-appellants for initial hearing en banc of case No. 04-

3044 and a motion for stay of execution, and the motion of

the defendants-appellees for dismissal of the appeal.

A majority of the non-recused judges in regular active

service having voted to grant the petition for hearing en banc,

the petition is GRANTED and the appeal is referred to the en

banc court for further consideration.
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Less than a majority of the court having voted in favor of

either the motion to dismiss the appeal or the motion to stay

execution, those motions are hereby DENIED.

CLAY, Circuit Judge, dissenting, joined by MARTIN,

DAUGHTREY, MOORE, and COLE, Circuit Judges. I

dissent from the order denying the motion to stay execution

in Williams v. Taft, No. 04-3044, because the vote was illegal

under 28 U.S.C. § 46(c). Section 46(c) provides, in relevant

part, that an en banc court “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.” 28 U.S.C. § 46(c)

(emphasis added). In other words, the statute expressly

circumscribes a senior circuit judge’s ability to participate in

an en banc proceeding by limiting that participation to the

review of the panel’s decision from which the en banc review

arose. Here, all that is presently before the en banc court is a

motion to stay Williams’ execution, not the merits of the

preceding panel decision. Accordingly, the statute does not

permit Judges Kennedy and Suhrheinrich to participate in the

vote on the motion to stay. To the extent the Sixth Circuit

Rules, the Sixth Circuit Internal Operating Procedures or

internal Court Rules might be interpreted to grant my two

colleagues the right to vote, 28 U.S.C. § 46(c) is paramount.

This misapplication of the statute has resulted in an outcome

contrary to law inasmuch as the requested stay would have

been granted in the absence of the votes cast by Judges

Kennedy and Suhrheinrich. Moreover, this unlawful denial

of the motion to stay has eviscerated the results of the poll of

the active judges granting en banc review. Without a stay, the

en banc review authorized by § 46(c) will never take place. 

ENTERED BY ORDER OF THE COURT

________________________________

Leonard Green, Clerk

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Nos. 04-3044/3066

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN GLENN ROE,

Plaintiff - Appellant

v. O R D E R 

ROBERT TAFT, Governor, et al.,

Defendants - Appellees

Filed: January 30, 2004

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER,

DAUGHTREY, MOORE, COLE, CLAY,

GILMAN, GIBBONS, ROGERS, and COOK,

Circuit Judges

A majority of the non-recused judges in active service

having voted sua sponte to reconsider and rescind the order

of January 13, 2004, granting hearing en banc in Case No. 04-

3044, all pending motions and filings are referred in the first

instance to the assigned panel, for such action as it finds

appropriate.

IT IS SO ORDERED.
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Danny J. Boggs, Chief Judge, concurring in the issuance

of the court’s Order. There could be some controversy over

the extent to which the appeal initially filed “jointly” by Mr.

Williams and Mr. Roe on January 13 should have been treated

as a single matter, even though it clearly dealt with matters

considerably, if not totally, identical to those that had been

dealt with by separate death-penalty panels on January 12.

However, this court chose, without ultimate objection, to

treat Roe’s status as being an appellant within the “initial

hearing en banc” granted by the non-recused active members

of the court. Thus, at a minimum, the appeal lay within the

competence of the en banc court, and the en banc court was

free, on motion by a judge of that court, to reconsider and

rescind its previous action.

To the extent that Judge Clay challenges the decision of a

judge to vote rather than to recuse on a specific matter, that is

a matter within the discretion of the individual judge. The

court has no power to make a “decision to permit Judge Cook

to participate in the instant vote,” nor to prevent her from

participating. To the extent that I understand the matter,

Judge Cook never had any connection whatsoever with any

matters concerning John Glenn Roe in her previous service

on the Ohio Supreme Court. Lewis Williams is no longer

alive, and thus no matter concerning him can impact the

consideration of Roe’s case. There is thus no reasonable

ground to question her decision to vote on the matter that was

properly before the judges of the en banc court.

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CLAY, Circuit Judge, dissenting, joined by MARTIN,

DAUGHTREY, and COLE, Circuit Judges. Let us be

clear on what has just transpired. This Court extricated the

appeal relating to Petitioner John Roe’s claim under 42

U.S.C. § 1983 from Case No. 04-3044 in which en banc

review had already been granted on January 13, 2004;

assigned it a new case number; and conducted a vote on

whether to rescind the January 13 decision to hear the appeal

en banc. The adoption of this procedure, and the ensuing vote

to grant the rescission by a six to five vote, has nullified the

votes of the non-recused active judges cast on January 13 and

has created the appearance of manipulation and impropriety.

Accordingly, I dissent. 

In Williams v. Taft, Case No. 04-3044 (6th Cir. Jan. 13,

2004), Lewis Williams and John Roe filed a complaint under

42 U.S.C. § 1983 challenging execution procedures. The

district court refused to entertain the lawsuit, construing it as

second or successive habeas corpus petitions that could not be

heard in the district court without the prior approval of this

Court. After the district court transferred the matter to this

Court, andWilliams’ and Roe’s purported habeas claims were

assigned to separate three-judge panels, Williams and Roe

petitioned for initial en banc adjudication of the district

court’s decision that effectively dismissed their §1983 claims.

At that point, this Court arguably had the option of deeming

Roe’s en banc petition as duplicative of, or superseded by, the

three-judge panels’ review, but did not do so. This Court also

arguably had the option of uncoupling Williams’ and Roe’s

respective § 1983 claims for purposes of appellate review, but

it chose not to. Instead, this Court established that appellate

review of Williams’ and Roe’s respective § 1983 claims

would be considered jointly under a unitary case number,

separate and apart from the appeal considered by the threejudge panels. A poll of the non-recused, active judges was

then conducted on whether to hear this case en banc. By a six

to four vote on January 13, the Court granted the petition for

initial hearing en banc. Judge Cook did not participate in that

vote, having recused herself on her own initiative.
-17-

Prior to this Court’s vote to rescind the vote of January 13,

the only issue left open was Roe’s motion to stay the

execution, which had been a joint motion with Williams. For

the reasons stated in my dissent in Case No. 04-3044, the vote

on the motion to stay was improper under 28 U.S.C. § 46(c)

due to the participation of Senior Judges Kennedy and

Suhrheinrich. But even assuming, arguendo, that their

participation had been proper with respect to Williams, it is

clear that that vote did not, and could not have impacted, Roe.

Judge Kennedy was not a member of the three-judge panel

that had adjudicated the successive petition issue with respect

to Roe. Accordingly, to the extent the Court’s judgment of

January 13 denied Roe’s motion to stay the execution, that

judgment should have vacated, and the non-recused, active

judges should have been polled on whether to grant Roe’s

motion to stay the execution. This was not done.

Even assuming it was technically proper for this Court to

have voted on whether to rescind its action of January 13, I

have grave concerns about this Court’s decision to permit

Judge Cook to participate in the instant vote. As noted, on

her own initiative, Judge Cook recused herself from the

January 13 vote concerning Williams’ and Roe’s joint request

for en banc review. After Williams was executed, however,

Judge Cook indicated that she should participate in an en

banc Court concerning Roe’s appeal because she had not

previously considered any matters concerning Roe. I beg to

differ. Judge Cook’s basis for recusal survived Williams’

execution because Williams’ and Roe’s appeals were

intertwined. Most of the pleadings and briefs pertaining to

Roe were joint efforts with Williams. Judge Cook necessarily

read and considered these papers in considering her vote on

the rescission. In addition, Judge Cook was privy to the intraCourt communications and deliberations concerning

Williams’ appeal. Had this Court been aware that Judge

Cook was going to “un-recuse” herself after Williams’ death,

precautions would have been (or should have been) taken to

preclude her receipt of any pleadings or communications

concerning Williams. This was not done either. Needless to

say, Judge Cook’s consideration of how she should vote in

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Roe was necessarily influenced and impacted by the Court’s

deliberations in Williams from which Judge Cook recused

herself. The entire situation suggests impropriety.

Without Judge Cook’s vote, the vote to rescind would have

failed on a tie vote and the en banc Court would have

considered Roe’s appeal. Thus, the decision of this Court to

conduct another vote on whether to hear Roe’s appeal en

banc, combined with Judge Cook’s participation in that vote,

has created the perception that certain members of this Court

have manipulated the process to avoid, what was in their

view, the unfavorable result of the January 13th poll. This

outcome unfortunately conveys the impression of a resultoriented process rather than an orderly process which seeks to

preserve the appearance and reality of due process.
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Nos. 04-3044/3066

UNITED STATES COURT APPEALS

FOR THE SIXTH CIRCUIT

JOHN GLENN ROE, 

Plaintiff-Appellant,

v. O R D E R 

ROBERT TAFT, Governor, et al., 

Defendants-Appellees;

________________________________________/

Filed: February 2, 2004

Before: SUHRHEINRICH, SILER, and CLAY, Circuit

Judges.

On January 30, 2004, a majority of the non-recused judges

in active service voted sua sponte to reconsider and rescind

the order of January 13, 2004, granting hearing en banc in

Case No. 04-3044, and ordering that “all pending motions and

filings are referred in the first instance to the assigned panel,

for such action as it finds appropriate.” 

Thus, presently before this panel are the following motions:

(1) Appellant Roe’s Motion to Conform the En Banc

Court to the requirements of 28 U.S.C.§ 46(c);

(2) Appellant Roe’s Motion to Set Aside Judgment and

Renewed Motion for Stay of Execution;

(3) Appellant Roe’s Motion to Expedite Appeal;

-20-

(4) Appellees’ Motion to Dismiss the Case for Lack of

Jurisdiction; and 

(5) Appellees’ Renewed Motion to Dismiss Appeal for

Lack of Appellate Jurisdiction.

The majority of the panel having previously concluded that

Judge Graham properly transferred the § 1983 case to this

Court as a request to file a second petition, and having

concluded that Roe failed to meet the requirements for filing

a second or successive petition under 28 U.S.C. § 2244(b)(2),

and having no sound reason to revisit those rulings, we

HEREBY DENY Appellant Roe’s Renewed Motion to Set

Aside Judgment and FURTHER DENY Roe’s Renewed

Motion for Stay of Execution. Appellant Roe’s Motion to

Expedite Appeal is GRANTED. Given the En Banc Court’s

January 30, 2004 order reconsidering and rescinding the order

of January 13, 2004, Appellant Roe’s Motion to Conform the

En Banc Court to the Requirements of 28 U.S.C. § 46(c) is

MOOT. Appellees’ Motion and Renewed Motion to Dismiss

the Appeal are GRANTED.

CLAY, Circuit Judge, dissenting in part. I dissent from

the panel’s denial of the motion to stay the execution and the

grant of the motion to dismiss the appeal. My reasons for

dissenting are set forth in my dissent to the panel’s prior order

of January 13, 2004, in Case No. 04-3044, and in my dissent

to the en banc Court’s order of January 30, 2004, in Case

Nos. 04-3044/3066.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

___________________________________

Clerk