RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0058P (6th C ir.) File Name: 04a00 58p.06



### UNITED STATES C OURT OF APP EALS FOR TH E SIXTH

CIRCU IT IN THE MATTERS OF : LEWIS WILLIAMS, JR. AND JOHN GL ENN ROE

_______________________________________________ 

### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
I N R E L EWIS W IL LI AMS , J R

. Petitioner-Appellant X

- - -
> - N No. 04-3014

Filed: January 12, 2004

BEFORE: KENNEDY, SUHRHEINRI CH and MOORE, Circuit Judges KENNEDY, Circuit Judge. Petitio ner Lewis Williams filed this §1983 ac tion in

the district court

challenging the method of administering the lethal injection of drugs a t his execution
as a constitutional violation of his right to be free from cruel and unusual pu

nishment and seek

ing an in

junction to postpone his execution scheduled for January 14, 2004. The 1 The complaint also sought si milar r elief for John Gle nn Roe sche duled for execu ti on Febru ary 3, 2004.
-2- dis trict court treated petitioner * s complaint as a second , o r successive, petition 1 and tran smitted it to the cour t.
The § 1983 action challenging the method of administering drugs at his exec

ution is, a s he conc edes, to b e treate d as a second habeas a ction unde

r curre nt Six t h Circuit d

ecisions

. The majority

of the panel would deny

permission to file a second ha beas on the grounds presented. They have never been p resented to the state court, so there has been n o exhaustion. The affidavits in support of a preliminary injunction, in esse nce, state that if lethal injection is not admini stered

properly, pe

titioner c ould experience severe pai n withoutdisplaying any

sign of it. Respons ive aff idavits detailing the procedure indicate that the concern expressed by petitioner is so unlikely as to be immeasurable

. Petitioner essentially bases his re quest for a stay of execution on the Supr

eme Court having grante d certio rari in Nelson v. Cam

pbell, No. 03-6821, 2003 WL 22327593, 72 USWL 3363 (Dec. 1, 2003). Nels on involves a case involving a prisoner facing the deat h penalty whose peripheral veins were unavailable and who had to be sedated throu gh the central venous system. The state in Nelson chose the “cut down” technique wh ich allegedly requires more experience and medical training than the usually -perfo rm ed per cutaneous technique. The Court gran t ed cert iorari 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 executio n in o rder to pursue a challenge to the pr ocedures for carry

ing out his execution, is prop erl y recharacterized

as a habeas corpus petition und e r 28 U.S.C. § 2254?-3-

The Courthas also acted on at least two cases involving similar last-minu

te 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 gra nt ed b y the Fou rth Ci rcu it . 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 dis trict court had granted an injunction stay

in g an execution. The court of appeals affirmed. The Sup r eme Court denied the state * s motion to vacat

e. 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). I n Zimmerman, the Fi ft h Circuit affirmed the dismissal of the action on the procedural ground that § 1983 is notan appropriate vehicle for challenges to the method

of execut ion and he ld

that applicant should have proceeded b y ap plying for a writ of habeas corpus. The four Justices that dissented from the d enial of stay stressed that the Court shou ld stay execution

until Nelson
was decided. The majority, howeve r, clea rly disag reed . We understand

this decision to mean th at this Circ uit is fre e to follow its prior precede

nt with regard to this question

until the Supreme Court issues its decision in Nelson.
Ac co rd in gl y, the majority of the pane l 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 di stric t court pr operly transferred

the case as filed t o this cour

t so it could

pass on it
as a request fo r a second petition. We decline to permit the claim to be file d as a

se cond petition. It has never bee n presented to a state court. Indeed, pe titioner does not seriousl y c laim it meets the requirements for a second petition.
Petitioner asks that we stay ou

r decision to await the decisionof the Supreme Court in Nelson. H e p roffers affida vits from a physician w ho states that if thiopental

-4- sodium is not admin

istered f or a suff icient le ngth of t im e t o complete the o ther

steps of the proce dure, pe titioner w

ill suffer s evere pain. A la

y pe rson who e

xperienc ed this difficul ty describes the pain in her affidavit. Inresponse, the state s ubmi ts an affidavit from an extremely well-qualified physician ex pl ai ni ng wh y, in the dose to be used by the state, two (2) gra

ms , the condition described by plaintiff * s expert will almost ce

rtainly not occur. He notes that

when thiopental sodium is commonly used f or gen er al an es th es ia in su rg er y, it is normall

y admini stered in a dose of 300 to 400 milligra ms. Petitioner’s motion s for remand to the district court, for preliminary

injunctive r elief and for stay of execution are DENIED.
Inorder th at petitioner have counsel t o pursue a ny p ossible habeas relief from the order, Stephen A. Ferre ll is appointed to repre sent petit

ioner on s uch proc eeding s.-5-

In re: Lewis Williams, Jr.; No

. 04-3014
SUHRHEINRI CH, Circuit Judge, concurring. I concur inJudge Kennedy’ s opinion. However, I would simply direct the Warden to carry

outthe execution in the manner advoc ated

by the petitioners’ expert. The pe titioners do no t chall enge the fac t of their execution; they

challenge only

the method curren tly employed by

the State of Ohio. By

affida vit they have proposed a n alternative method which they advoc ate does not c onstitute c ruel and unusual pu

nishment. The affida

vit of the p etitioners’ expert, Dr. Mark J.S. Heath, whi chis incorp orated i

nto the pe

titioners ’ “Motion

to Sta y and Abey Proceed ings,” s tates in r

elevant part: J) The benefit s of thiope ntal in the

operati n g roo m engender serious risks in the execution chamber. Based
onthe information I have ava ilable to me c oncerning Oh io’s execution protocol, a two (2) gram dos e o f sodium thiopenta

l is appar ently administered in a

single injectionfrom a single sy ringe. By contr

ast, based on my research and the resear ch of o th ers into the procedur es f

or executing human beings by means of lethal injection, the origin al des ign of the lethal injection protocol called for the continu ou s intravenous administration of an

ultrashort-acting barbiturate. Based
onmy resea

rch and the research of others, the cen tral elements of the lethal-inje ction pro cedure used in Oh

io is si mi la r t o t he on e a do pt ed ma ny y ears ago in Ok lahoma

(which, it appea

rs, many states use d as a model without s u bstantive independent research). Oklahoma

re quires the “continuous intravenou s administration of an ultr as hort-acting barbiturate” (Oklaho ma

Statutes, Title 22 Criminal Procedure, Chapter 17 part 1 01 4A). It does not appear that Ohio’s protocol incl udes this “continuous” requirement. The
use of a cont

inuous adm

inistration of the ul

trashortactingbarbiturate is essential to ensure con tinued and sustained unc onsc iousness during the administration of pancuronium

and potas sium chlor

ide. I t is m y opinion based on a reasonable degree

of medical certainty

that

-6- the failure to require a continuous infusion of thiopental places the conde

mned inma

te at a needless and significant

risk for the consciou s experie nce of pa raly sis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride.
Motion to St a y a

nd Abey Proceed ings, at 13 (quotin

g Heat h Affidavit ¶ 17).
If the Warde

n is ordered to follow the method advanced by the petit ione rs’ chosen expert, then the procedural question of whether the claim is properl y considered a § 1983 action or
a successive habeas petition will b e moot, as the petitioners would have received the relief that they request.-7-

No. 04-3014, In re Lewis Willia ms, Jr.
KAREN NELSON MOORE, Circuit Judge, dissenting. Ibelieve that the proper course of a ction i s to grant the preliminary

injunction staying the execution of Williams. The Supreme Court’s grant of certiorari in Nels o n v. Campbell, No. 03-6821, 2003 WL 22327593, 72 U.S .L. W. 3363 (Cert. Granted Dec. 1, 2003), calls into question our decisionin In re Sa

pp , 1 88 F.3d 460 (6th Cir. 1997), upon which the district court

relied in transferring the action to us
as a s econd or successive habeas petition pursuant to 28 U.S.C. § 1631. In Sapp , a pane l of this c ourt held that a chall enge 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. 65 3, 653-54 (1992), i n reach ing its de cision. Now, the Su

prem e Court has undertaken to resolve the following question: “Whether a complaint brought under 42 U.S.C. § 1983 by a dea

th-sentenced

state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution , is pro perly recharacterized

as a habeas corpus petition unde r28 U.S.C. § 22 54?” Nelson , 2003 WL 22327593, at *1 (em

phasis added). The Supre

me Court’ s ruling

could dir ectly overrul e Sapp , confirm the earlier high court holding upon w hich Sapp relied, or reach some middle ground, but naturally we w

ill not know the a

nswer to t his question for sev eral mon ths.
It would be inappropriate and unjust to permit Williams’s execution to occur when

the Supreme Court has yet to dec ide 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 stay

s of execution

when the Supreme Courthas taken a case to resolve an important issue germane to the action. McFarland v. Scott, 512 U.S. 849, 853 (1994); Selvagev. Collins , 494 U.S. 108, 109 (1990 ); Steffen v . Tate , 39 F.3d 622, 623 ( 6th Cir. 199 4); Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir. 20 03). Recently , the Fou rth Circu it stayed the execution of two prisoners, one from Virgini a and

-8- one from North Carolina, pending the Supreme Court ’s decisionin Nelson after those prisoners brought § 1983 claims appa rently identical to Williams’s. See Reid v. Johnson , No. 03-7916 (4th Cir. Dec. 17, 20 03) (order granting prelimina

ry injunction

); Rowsey v. Beck

, No. 04- 6073 (4th Cir. Jan. 8, 2004) (order deny ing motionto vacat

e 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 t

he Supre me Co ur t is difficult to reconcile given their similarity; the district court in Rowseystated that the issue there wa s “fact

ually and proce durally similar, if not identica l” 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 executionin Zimmerman
v. Johnson , 2003 U.S. L exi s 9199, 72 U.S.L.W. 3406 (Dec. 15, 2003), do es not provide any fur ther guidance. Without further

development of the reasons for the Supre

me Court’s actions, we should exercise prudence and caution in the face of ambiguity whe n the consequences of our decision ha ve su ch gr av it y. At this stag e, the que stion of whether Will iams has properly filed a second or succe ssive hab eas peti t ion pursuant to the provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrele vant beca use the predica

te issue o f whethe

r his § 1983 claim is properl y co nstr ued as a s econd or

success ive petiti on is pending before

the Supre me Court. E qually

unimporta

nt is a consideration

of the me

rits o f Williams’s § 1983 action — whether the State of Ohio’s procedures for let hal injection, whichinclude the allegedly improp er use of the barbituate, thiopental sodium, and the administration of a neuromuscular blocking agent, pancuronium b romi de, that is banned for veterinary

use by sever

al states, constitute a cruel and unusual punishmentin violation of the Ei g ht h Amendment. The resoluti on to this question is not appropriately considered now; if the Supreme Court’s forthcoming decision in Nelson-9-

v. Campbell

demonstrates that Williams’s actionis a § 1983 actionand not a sec on d or successive habeas petition, the district court must first consider his claim. Inany eve nt, the contras t i ng views of the physicians’ affidavits presented by Williams and the State of Ohio serve to demonstrate a serious q uestion regarding the merits. Nonethe less, here we simpl y must decide w

hether Wil lia

ms’s execution can go forward given that the Supreme Court may dete rmine that Wi lliams has the opportunity to present his grievance befor e the district court as a § 1983 a

ction. I t should not

. Inthe int er est of procedural fairness, I would grant the motion for a

preliminary injunction to stay the execution and hold the case in abey ance. I t would be

cause for great regret if Wi ll ia ms we re ex ec ut ed on We dn es da y m ornin g only to have the Supreme Court determine several months later that Williams in fact

deserve d a chance to pursue his action in federa l district c ourt.

-10- NO. 04-3014
UNITED STATE S COURT OF APPEA LS FOR THE SIXTH CIRCUIT

IN RE: JOHN

GLENN ROE
Petit ioner-A ppellant

v. ______________________________________/

Filed: January 12, 2004
BEFORE: SUHRHEINRICH, SILER, and CLAY, Circuit J udges.
Petitioner John Glenn Ro e filed jo int motions w ith Le wis Williams, Jr. to stay and abey proceedings and for preliminary

injunctive relief f

or stay of execut

ion. Bec ause theseare habeas proceedings, we address ea ch of the petitione rs’ motions separa

tely . We here

by a dopt in this

case the reasoning and the result of the majority opinion authored by Judge Ke nnedy and conc urred in by Judge Suhrheinr

ich in the matter of In re: Lewis W illiams, J r. , issued on January 12, 2004. We further adopt the concurring opinion of Ju dge Suhrheinrich in the Williams matter. Thus, for the reasons stated inthe those opinions, Petitioner John Glenn Ro e’s req

uests for a stay a

nd abeya nce and for preliminary injunctive re lief are DENIED

.-11-

CLAY , Circuit Judge, dissenting.
Ihereby dissent f

rom the order and

opinion of

the major ity inthe instant case for

the reasons expressed

by Judge Moore’ s dissent in In re Lewis Williams, Jr., No. 04-3014.

2 Th is order was i nit ially ent ered on Ja nuary 13, 2004. It was amende d on Janu ary 15 , 200 4 to re flect the jo inder in Jud ge C lay’s dissenti ng opinion of

the s everal judges not ed as having don e so. In a ll other respects, t

he amended o rder is identi cal to the i nitial order.
-12- No. 04-3044
UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SIXT H CIR CUIT

LEWIS WI

LL IAMS, JR., et al.,
Plaintiff s -Appell ants A M E N D E D
v. O R D E R 2 ROBERT TAFT, et al.,

Defendants - Appellees Filed: January 15, 2004
Before: BOGGS, Ch ief Judge; KENNEDY, MARTIN , SUHRHEI NRI CH, BAT CHE L D E R , DAUGHT REY, MOORE, COLE, CLAY , GIL MAN, GIBBON S, and R OG ERS, Circui t Judges
This matter comes before the court upon the petition of

the plaintiff s-appel lants for initial hearing en banc of ca se No. 04- 3044 and a motion for stay of execution , andthe motion of the defe ndants-a ppellee s for dismi ssal of the appeal.
A major ity of th e non- recuse d jud ge s in regular active service having voted to grant the petition for hearing en banc, the petition is

GRANTEDand the a

ppeal is r eferr ed to the en banc court for further considera tion.-13-

Less than a ma

jority of the co urt h aving voted in favor of either the motion to dismiss the appeal or the motion to stay execution, those motions are hereby DENIED. CLAY, Cir cuit

Judge, dissenting, joined by MARTIN, DAUGHTREY, MOORE, and COLE, Ci rcu it Judges. I dissentfrom the order deny ing the m otio n to stay execution in Williams v. Taft , No. 04-3 044, bec ause the vote was illegal under 28 U.S.C. § 46(c). Section 46(c) provides, in relevant part, that an en banc court “shall cons ist of all c ircuit judges inregular active service

... , e xcept that a

ny s enior ci

rcuit judge of the circuit shall be eligible ... to participate ... asa member of an in ba

nc court re v iewing a decision of a panel of which such judge was a member .” 28 U.S. C. § 46(c) (emphas is added). In o th er word s, the sta tute expre ssly circumscribes a senior circuit judge’s ability to partic ipate in
an en banc proceeding by limiting that part i cipation to the review of the panel’s decision from which the en banc review
arose. Here, a

ll that is present

ly before the en banc court is a motion to stay Williams’ execution, not the merits of the preceding panel decision. Accordingly, the s tatu te does not permit Judges Kennedy

and Suhrheinrich to participate in the vote onthe motio n to stay . To the extent the Sixth Ci rcuit Rules, the Sixth Circuit Internal Op e rating Procedures or internal Court Rule s mi ght be i nterpreted to grant my two colleagues the right to vote, 28 U.S.C. § 4 6(c) is p aramoun t. This misapplication of the statute has resulted in an outcome contrary to law inasmuch as the requested sta y would have bee ngranted in the absence of the votes c ast by Judge s Kennedy and Suhrheinrich. Moreover, this unlawful denial of the motion t

o stay has evisc erated

the resu lts of the pol l of the activ e judge s grant ing en banc review. Without a stay, the en banc review authorized by § 46(c) will never take place.
ENTERED B Y ORDER OF THE COURT

________________________________ Leonard Gree

n, Clerk

-14- Nos. 04-3044/3066
UNITED STATE S COURT OF APPEA LS 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; MARTI N, BATCHELDE

R, DAUGHTREY, MOORE, COLE, CLAY , GIL MAN, GIBBON S, ROGERS, and COOK, Circuit Judges
A majority of the non-re cused judges in active service havi ng voted sua sponte

to reconsider and rescind the o rde r of Janu ary 13, 20 04, gra ntin g hearin g en banc in CaseNo. 04- 3044, all pending motions and filing s are re ferre d in the first inst ance to the assigned panel, for such action as it finds appropriate.
IT I S SO ORDERED.-15-

Danny J. Boggs, Chief Judge , concurring in the issuance of the court’s Order. There c ould 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 clear ly dealt with matters
co ns id er ab ly, if not totally, identical to tho se that had been dea lt wi th by separa

te death-penalty

panels on January 12. Ho wever, this court chose, without ultimate objec tion, t o 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 withi n th e competence of the en banc court, and the en b anc court was free, on motion by

a judge of that c ourt, to r

econsi d er and rescind its previous action.
To th e e xt en t t ha t J ud ge Cl ay c h allenges the decision of a judge to voterather

than to re cuse on a

specific matter, t hat is
a matter within the discretion of the individual judge. The court has no power to make a “decision to permit Judge Cook to part icipate in the instant vote,” nor to prevent her from parti cipat ing. To the ext ent that I understand the matter, Judge Cook never had any connection whatsoeve rwith any matters concerning John

Glenn Roe in her previous service
onthe Ohio Supreme Court. Le wis Wi lliams is no longer alive, and thus no matter concerning him can impact the consid eration

of Roe’s case. There is thus no reasonabl e ground to question her decision to vote on the matter that was properly be fore the judges of the en banc court.

-16- CLAY, Circuit

Judge, disse nting, joine d by MARTIN, DAUGHTREY, and COLE, Circuit Judg es. Let us be clear on what h as just t

ranspired. This Court extricated the appe al relating to Petitioner John Roe’s claim under 4 2 U.S.C. § 1983 from Case No. 04-30 44 in which en banc review had already

been granted on January 13, 2004; assig nedit 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 ensui ng vote to grant the rescission by a six to five vote, has nullifi ed th e votes of the non-recused

active judges cast on January 13 and has created the appearanceof ma ni pu la ti on an d i mp ro pr ie ty. Accordingly , I dissent.
In Willi ams 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 execut ion pr ocedures. The districtcourt re fused to e

ntertain the lawsuit, construing it as second or successive habeas corpus petitions that could not be heard in the distr

ict cour t without t

he prio r approv al of this Court. After the district court transfe r red the matter to t his Co urt, and W illiams’ and Roe’s purported habeas claims were assigned to sep arate t hree-j udge p anels, Williams and Roe petitioned

for initia

l en b a nc adjudication of the district
court ’s decision

that eff ectively dismissed t

heir §198 3 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 d o so. This Co

urt also argua bly ha d the o ption of uncoupling Williams’ and Roe’s respective § 1983 claims for purposes of appellate review, but it chose not to. Inste ad, this Court esta blished th at appel late review of Williams’ and Roe’s respe c tive § 1983 claims would be considered jointly unde r a unitary case

number, separa te and apart from the appeal c onsidered by the thre ejudge panels. A p oll of the non-recused, active judges wa s thenconducte d on whether to hea r this cas e en banc

. By

a six to four vote on

January 13, the Court gr

anted the petition for initial hearin g en banc. Judge Cook did not par

ticipate in that vote, having recused herself on he r own initiative.-17-

Prior to this Court’s vote to rescind the vote of January 13, the o nly issue lef

t open wa s Roe’s mot

ion to stay

th e execution, which ha

d been a joint motion

with Williams. For the reasons stated

in my dissent in Case No. 04-3044, the vote
onthe motion to stay was improper under 28 U.S.C. § 46(c) due to the participation of Seni orJudges Kennedy and Suhrh einrich. But even assuming, arguendo, that thei r participation

had been pro per wi th respe ct to William s, it is clear that that vote did not, and could not have impacted, Roe. Ju dge Kennedy was not a member of the three-judge pa ne l that had adjudicated

the successive petition issue with respect to Roe. A ccordi ngl y, to the extent the Court’s judgment of January 13 denied

Roe’s moti o n to sta

y the execution, that ju dgment should have vacated, and the non-recuse d, a ctiv e judges should have been poll ed on whether to grant Roe’s motion to stay the execution. This was not done.
Even assuming

it was tec

hnically proper f or th is Court to have voted o n whether

to rescind its action of January 13, I have grave

concer ns abo ut this Cour

t’s decis ion to per

mit Judge Cook to participate in the i nstant vot e. As noted, on her own initiative, Judge Cook recused hersel f f rom the January 13 vote concernin

g Williams ’ and Roe ’s joint re quest for en banc review. After Williams was executed, however, Judge Cook i ndica ted that she should participate in an en banc Court concer

nin g Roe’s appeal because she ha d not previous ly

consider ed any matters c oncerni

ng Roe. I beg to differ. Judge Cook’s bas i s for re cusal sur vived Willia

ms’ execution because Williams’ and Roe’s appeals were intertwined. Most of the pleadings and bri efs pertain ing to Roe were joi

nt effor ts with Williams . Judge Cook necess arily read and cons ide red these papers in considering her vote on the rescission. Inaddition, Judge Cook was privy to the intraCourtcommuni cations a nd deliberations concerning Williams’ appeal. Had this Court been aware that J udge Cook was goi ng to “un-re cuse” he

rself after Williams’ death, precautions would have been (or should have been) ta

ken to preclude he rreceipt of any pleadings or communications concerning

Williams. Th

is was not d

one eithe r. Need less to
sa y, Judge Cook ’s consid eration of how she

sh o uld vote in

-18- Roe was necessarily

influenced and impacted by the Court’s deliberations in Williams from which Judge Cook recused he rs el f. Th e e nt ir e s it ua ti on su gge st s i mp ro pr ie ty.
Without Judge Cook ’s vote, t he vote to rescind would have failed on a tie vote and the en ban c Court w ould have considered

Roe’s ap peal. Th us, the deci sion of this

Court to conduc t ano ther vote

on whethe

r to hear Roe’s ap

peal 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 t he ir view, the unfavorable res u lt of the Jan uary 13th poll. T

his outcome unfortunately c onveys the impression of a resultoriented process rather than an orderly process which

seeks to preser ve the ap pearan ce and r eality of due pr ocess.-19- Nos. 04-3044/3066
UNITED STATE S COURT AP PEALS FOR THE SIXTH CIRCUIT

JOHN GLENN ROE, Plaintiff-Appellant,

v. O R D E R
ROBERT TAF T, Governor, et al.,
Defendants -Appellee s; ________________________________________/

Filed: February

2, 2004
Before: SUHRHEINRICH , SILER, and CLA Y, Circui t Judges.
OnJanuary 30, 2004, a majority of the non-recused judges inactive service voted sua sponte to reconsider and r esc ind the order of January

13, 2004 , granti ng heari ng en banc in Case No. 04-3044, and ordering that “all pendingmotions and fili ngs are re ferre d in the fir st instanc e to the assigned panel, for such action as it finds appropriate.” Thus, present

ly before this panel are thefollowing motions: (1) A ppellant Roe’s Motion to Conform the En Banc Court to the requirements of 28 U.S.C.§ 46(c); ( 2) Appellan

t Roe’s Mot

ion to Set As ide Judgme

nt a n d Renewed Motion for Stay of Execution; (3) Appe llant Roe’ s Motion to E xpedite App eal;

-20- (4) Appellees’ Mot ion to Dismiss the Case for Lack of Jurisdiction; and (5) Appel lees’ Renewed Motion to Dismiss Appeal for Lack of Appellate Jurisdiction.
The majority of

the pane l having

previous ly

concluded that Judge Graham properly

transferred the § 1983 c ase to t his Courtas a reques t to file a second petition, and having concluded

that Roe failed to meet the requirements for filing
a second or succe ssive pet

ition unde r 28 U.S.C. § 2244(b)(2), and having no s ound r eason to revisit those rulings, we HEREBY D ENY Appellant Roe’s Renewed Motion to Set Aside J udgm ent and FURTHER DENY Roe’s Renewed Motion for Stay

of Executi on. Appel lant 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 Motionto Conform the EnBanc Court to the Requirements of 28 U.S.C. § 46( c) is MOOT

. Appellee s’ Motion a nd Renew ed Motion t

o 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 rea sons 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 or der of Jan

uary 30, 2004, i

n Case Nos. 04-3044/3066.

ENTERED B Y ORDER OF THE COURT
/s/ Leonard Green

___________________________________

Clerk