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Sixth Circuit Holds Lethal Injection Protocol Challenge Time Barred

The Sixth Circuit Court of Appeals affirmed a lower court's holding that a condemned Ohio prisoner's lethal injection procedure challenge was time-barred.

In 1986, Richard Cooey, II was convicted of aggravated murder and sentenced to death in Ohio. His appeal became final in 2003 and he was scheduled for a July 2003 execution, but that execution date was cancelled.

On June 10, 2004, Cooey brought federal suit challenging Ohio's lethal injection protocol. The district court dismissed the action, however, for failure to exhaust administrative remedies.

After exhausting, Cooey refiled on December 8, 2004. The district court denied the State's motion to dismiss the action as time-barred, and on March 28, 2005, Ohio sought an interlocutory appeal to the Sixth Circuit on that issue.

On March 2, 2007, the Sixth Circuit held that the statute of limitations for Cooey's claims "began no later than the date when the challenged protocol became the state's exclusive execution method." The "court offered possible dates: 1993, when Ohio adopted lethal injection as a method of execution, or 2001, when Ohio made lethal injection the exclusive method of execution." See: Cooey v. Strickland, 479 F3d 421 (6th Cir. 2007)(Cooey II).

With an October 14, 2008 execution date looming, Cooey filed a second suit on August 1, 2008, again challenging the lethal-injection protocol to be utilized in his execution. He claimed: (1) he is morbidly obese, preventing the executioners from locating a "good" vein; (2) he takes Topamax to treat cluster headaches, which decreases his sensitivity to sodium thiopental (the anesthetic component of Ohio's injection protocol); and Ohio Rev. Code § 2949.22(A) guarantees him a "quick and painless death."

Ohio moved to dismiss the action as time barred under the statute of limitations construction given in Cooey II. The district court granted Ohio's motion on September 30, 2008. See: Cooey v. Strickland, 2008 US Dist LEXIS 75630 (S D Ohio 2008).

On October 9, 2008, the Sixth Circuit affirmed. The court agreed with the district court's reasoning that each of Cooey's claims accrued no later than July 2003 and were time barred because he did not bring them until 2008. See: Cooey, II v. Strickland, 544 F3d 588 (6th Cir. 2008).

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Related legal case

Cooey, II v. Strickland