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Sixth Circuit: Lethal Injection Challenge Time-Barred; Agrees Cooey II Wrongly Decided, Urges En Banc Review

The Sixth Circuit Court of Appeals affirmed the dismissal of a condemned prisoner’s challenge to Ohio’s lethal-injection protocol as time-barred under Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (Cooey II). The court seemed to agree, however, that Cooey II was wrongly decided, and urged en banc review.

Cooey II held that a challenge to Ohio’s lethal-injection protocol accrues upon: (1) conclusion of direct review in state court; or (2) in 2001, when Ohio adopted lethal injection as the sole method of execution, whichever is later.

In 1996, Jason Getsy was sentenced to death in Ohio. His direct appeal concluded in 1999. Therefore under Cooey II, he had two years from the 2001 protocol adoption to bring suit, challenging the protocol. However, Getsy did not commence his action until May 2007; four years late. The district court dismissed the action as time-barred under Cooey II.

The Sixth Circuit rejected each of Getsy’s contentions as to why Cooey II does not control his case. First, the court disagreed that Baze v. Rees, 128 S.Ct. 1520 (2008) created a new constitutional right which reset the statute of limitations. “The Supreme Court has…recognized, more than 100 years before Baze was decided, that inmates have the right to challenge death-penalty practices that might cause undue suffering,” noted the court. The May14, 2009 amendment of the lethal-injection protocol also did not reset the statute of limitations. Finally, the federal court’s decision temporarily vacating Getsy’s death sentence also did not reset the statute of limitations accrual date because that occurred on collateral review, rather than direct review. See: Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006), vacated 495 F.3d 295 (6th Cir. 2007) (en banc).

While the court was “frankly inclined to agree” with Getsy that Cooey II was wrongly decided, the court observed that it was powerless to overturn Cooey II. One judge wrote a detailed concurring opinion highlighting her “conviction that Cooey II was wrongly decided” and urging “immediate en banc review of the application of that rule in the present case to ensure that Getsy’s potentially valid 42 USC § 1983 claim is not improperly and unjustly time barred.” See: Getsy v. Strickland, 577 F.3d 310 (6th Cir. 2009).

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Related legal case

Getsy v. Strickland