Cooey v. Bradshaw

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 31, 2003
• Docket: 03-4001
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Cooey v. Bradshaw No. 03-4001 ELECTRONIC CITATION: 2003 FED App. 0267P (6th Cir.) File Name: 03a0267p.06 to vacate the stay of execution which was granted by the district court on July 23, 2003. UNITED STATES COURT OF APPEALS The petition for initial en banc hearing has been presented to the nonrecused active judges of the court, a majority of FOR THE SIXTH CIRCUIT whom have voted in favor of en banc review. Furthermore, _________________ a majority of the nonrecused active judges of the court have voted to deny the state’s motion to vacate the stay of RICHARD WADE COOEY II, X execution. The stay of execution granted by the district court Petitioner-Appellee, - remains undisturbed. IT IS SO ORDERED. - - No. 03-4001 ENTERED BY ORDER OF THE COURT v. - > , MARGARET BRADSHAW, - /s/ Leonard Green Warden, - __________________________________ Respondent-Appellant. - Clerk - N

Filed: July 31, 2003

Before: MARTIN, Chief Circuit Judge; BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, and ROGERS, Circuit Judges.* _______________________________ SECOND AMENDED ORDER _______________________________ This matter is presently before the court upon petitioner’s request for initial hearing en banc of the respondent’s motion

* Judges Batchelder, Sutton, and Cook recused themselves from participation in this decision.

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______________________ of an opinion Judge Suhrheinrich filed without jurisdiction. Decisions issued ultra vires have no legal meaning. Although CONCURRENCE not evident from Judge Boggs’s dissent, Judge Boggs has ______________________ choosen to endorse an opinion that the panel had no authority to issue. CLAY, Circuit Judge, concurring. Approximately thirteen hours before Petitioner’s execution, the district court issued Second, as Judge Boggs notes, our decision to deprive the a stay. Respondent appealed. On July 24, 2003, we granted panel of jurisdiction by agreeing to hear the matter initially as Petitioner’s motion to hear Respondent’s appeal initially as an an en banc Court had the effect of not placing Judges en banc Court. Judge Boggs published a brief dissent from Suhrheinrich and Siler on the en banc court that will this Court’s decision. I wish to emphasize two points about ultimately decide Cooey v. Bradshaw. Despite the dissent’s Judge Boggs’ dissent. unhappiness with this development, absolutely nothing procedurally irregular occurred. Although I cannot speak for First, Judge Boggs purports to accept the reasoning in an my colleagues, I felt compelled to support initial en banc unpublished (and unissued) panel decision authored by Judge because of the urgency this case involved. Respondent Suhrheinrich. Judge Boggs appends Judge Suhrheinrich’s scheduled Petitioner’s execution for 10:00 a.m. on July 24, decision to his dissent. After losing below, Respondent 2003, but the death warrant remained in effect that entire day. appealed to a three judge panel of this Court consisting of Had the panel issued a decision vacating the district court’s Judges Suhrheinrich, Siler, and Gilman. Although Judge stay in the afternoon of July 24, 2003, Petitioner would have Suhrheinrich, joined by Judge Siler, circulated a proposed become immediately eligible for execution, meaning the en draft opinion at 3:06 p.m. on July 24, 2003, this Court banc Court may not have had the opportunity to review this accepted Petitioner’s request for initial en banc review at 4:00 case. p.m. that same day. The granting of initial en banc review eliminated the panel’s jurisdiction over this matter. The three Judges Suhrheinrich and Siler have taken senior status. judge panel had not filed Judge Suhrheinrich’s proposed draft Pursuant to 28 U.S.C. § 46(c), which governs the composition opinion when the en banc Court assumed jurisdiction. Had of en banc courts, a court of appeals sitting en banc "shall the panel already filed an opinion, the decision to hear the consist of all circuit judges in regular active service . . . except case en banc would have automatically vacated the panel’s that any senior circuit judge of the circuit shall be eligible to opinion. Judge Surheinrich did not attempt to file the panel’s participate . . . as a member of an in banc court reviewing a opinion until 9:17 a.m. on July 25, 2003, well after he lost decision of a panel of which such judge was a member." See jurisdiction over the case and the concomitant right to file also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C. opinions. § 46(c)). Thus, because the three judge panel never reached a decision prior to the en banc Court granting initial en banc I have no quarrel with Judge Boggs’ decision to support review, Judges Siler and Surhrienrich are statutorily ineligible Judge Suhrheinrich’s views and I recognize that Judge Boggs to participate in the en banc review of the district court’s may endorse whatever reasoning he chooses. I also believe, order staying Petitioner’s execution. This is not to suggest however, that by neglecting to mention that this Court, acting that Judges Siler and Suhrheinrich, who sat as panelists in an en banc, deprived the panel of jurisdiction, Judge Boggs earlier appeal involving Petitioner, would not have much to creates a misleading impression about the precedential value contribute as members of the en banc Court. See Cooey v. No. 03-4001 Cooey v. Bradshaw 5 6 Cooey v. Bradshaw No. 03-4001

Coyle, 289 F.3d (6th Cir. 2002). If, however, Judge Boggs ________________ dislikes the requirements of 28 U.S.C. § 46, he should address his complaint to Congress. DISSENT ________________

BOGGS, Circuit Judge, dissenting from order granting initial hearing en banc and denying the motion to vacate stay. I believe the court’s action in this case is wrong on several counts. By adopting the motion for hearing en banc, based on our court’s interpretation of Fed. R. App. P. 35(a), the court pretermits the ability of the panel to deal with the motion that was before it in the first instance, and for which a majority of the panel had prepared a draft opinion for imminent filing. The reasoning of that draft opinion expresses my views on the merits of the district court’s action. I endorse the attached reasoning as a full statement of my reasons for opposing the hearing en banc and favoring vacating the stay granted by the district court. In addition, by entertaining a motion for hearing en banc, as opposed to allowing the panel to issue an order and then considering a rehearing of that order, this action pretermits the ability of the two senior judges on the panel to participate in the en banc court that considered the motion to vacate the stay. As those judges have been intimately familiar with this case from its inception, that change represents a significant loss of wisdom in the making of this decision. Furthermore this may well portend a general tactic of circumventing panels of this court in death penalty cases by the filing of motions for initial hearing en banc. Such motions have the effect of preventing the participation of senior judges on a death penalty panel, who may be by far the most knowledgeable judges on the given issues. They also may give rise to an unseemly “race to judgment” if a rapid No. 03-4001 Cooey v. Bradshaw 7 8 Cooey v. Bradshaw No. 03-4001

vote on the en banc motion overlaps with the filing of a panel Attachment to Dissent of Judge Boggs ruling. Margaret Bradshaw, Warden (“Warden”), appeals from a As the reasoning attached makes clear, we are again July 23, 2003 order by the district court granting Petitioner allowing a litigant to procure a stay of execution without Richard Wade Cooey’s motion for a stay of execution filing a petition for a writ of habeas corpus or any other pending this Court’s en banc rehearing of Abdur’Rahman v. document that might appropriately support such a motion. Cf. Bell, Case Nos. 02-6547/6548 (6th Cir. Mar. 5, 2003), “or In re John W. Byrd, 269 F.3d 578, 582 (6th Cir. 2001) until the Sixth Circuit has construed its June 10, 2003 letters (Boggs, J., dissenting). to Cooey’s former federal appellate habeas counsel.” Memorandum of Opinion and Order dated July 23, 2003, at I therefore respectfully dissent from the ordering of a 19 (“District Court Order”). For the reasons that follow, we hearing en banc of the motion to vacate the district court’s [should] VACATE the district court’s order of stay and stay of execution, and from the action of the en banc court in reinstate Cooey’s date of execution. refusing to vacate the stay. I. BACKGROUND Cooey was convicted and sentenced to death in 1986 for the rapes and murders of Wendy Offredo and Dawn McCreery. The Ohio Court of Appeals upheld Cooey’s conviction and sentence, see State v. Cooey, 1987 WL 31921 (Dec. 23, 1987), as did the Ohio Supreme Court. See State v. Cooey, 544 N.E.2d 895 (Ohio 1989). The United States Supreme Court denied certiorari on April 1, 1991. See Cooey v.Ohio, 499 U.S. 954 (1991). His requests for state post-conviction relief were also denied. See, e.g., State v. Cooey, 1994 WL 201009 (Ohio App. May 25, 1994). Cooey first sought federal habeas relief in October 1996. On September 4, 1997, the district court denied the writ. See Cooey v. Anderson, 988 F. Supp. 1066 (N.D. Ohio 1997). The district court also issued a certificate of probable cause for appeal. Cooey filed a notice of appeal. On October 12, 2000, we ruled that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applied to this case, and that the district court’s issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(c) was ineffective. We treated Cooey’s brief as an application for a certificate of appealability, and further directed Cooey to show cause why we should not deny the application for a No. 03-4001 Cooey v. Bradshaw 9 10 Cooey v. Bradshaw No. 03-4001

certificate. We attached to our show cause order an appendix Defender’s Office [is] to find a substitute [attorney] for summarizing our tentative view as to each issue. The parties you in this appeal and to be prepared, if necessary, to filed briefs in response to our show cause order, and the arrange for new counsel for Mr. Cooey in the event he matter was argued on January 30, 2002. wishes to initiate any new federal filings between now and [his scheduled execution date of July 24.] We ultimately granted a certificate of appealability on two issues. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002). On July 17, 2003, Cooey, proceeding pro se, filed a motion But after thorough review of the record, we held that Cooey in the district court, pursuant to 21 U.S.C. § 848(q)(4)(B), for had received a fair trial and was not entitled to habeas relief. new counsel to represent and aid him in the preparation, filing, and prosecution of a motion pursuant to Fed. R. Civ. P. On June 10, 2003, six weeks before his scheduled July 24 60(b), and a petition for writ of habeas corpus under 28 execution, we removed Cooey’s habeas counsel from his case U.S.C. § 2254. That same day, the district court appointed and directed the Ohio Public Defender’s Office to appoint the Federal Public Defender’s Office to represent Cooey and new counsel for any further proceedings. In dismissing investigate whether he had any viable federal claims to Cooey’s two former attorneys, we directed the clerk’s office present. However, on July 18, 2003, the Federal Public to send the following letters. The letter to the first attorney Defender requested permission to withdraw. On July 21, stated: 2003, the district court granted that motion and appointed current counsel from the Ohio Public Defender’s office “for [The Court has] asked the Ohio Public Defender’s Office the purpose of advising [Cooey] whether he has any further to be prepared to locate new counsel for Mr. Cooey in the federal remedies and if so, to file the appropriate pleadings.” event he wishes to initiate any new federal filings The district court’s order further indicated that “[t]he Court between now and his scheduled execution date of is not issuing a stay of execution, which is set for July 24, July 24, 2003. . . . [You] will not receive any new 2003.” appointments on appeal or extensions of appointments under the Criminal Justice Act in capital cases. This On July 22, 2003, Cooey, through current counsel, filed in reflects the court’s dissatisfaction with both the quality of the district court a motion for relief pursuant to Fed. R. Civ. the appellate briefs and the oral argument in Cooey v. P. 60(b), and a motion for stay of his scheduled July 24 Coyle and the amount of attorney’s fees which were paid execution pending the court’s review of his Rule 60(b) . . . for Mr. Cooey’s representation. motion. Under Rule 60(b), Cooey sought to reopen his habeas corpus proceedings based on the alleged incompetence The letter to the second attorney stated: of his dismissed habeas corpus counsel. Cooey argued that our June 10 letters to his former counsel displayed our belief [This] court will not appoint or extend any trial that his former counsel was incompetent, and therefore appointments to [counsel] in [any future] capital cases. ineffective. Cooey sought a stay in order to allow his new This reflects the court’s dissatisfaction with both the counsel further time to review his case to determine if quality of the appellate briefs and the oral argument in Cooey’s ineffective assistance of counsel claims were viable. Cooey v. Coyle and the amount of the attorney’s fees which were paid to [counsel] and [co-counsel] for Mr. The State filed its response on July 23, 2003. That night, Cooey’s representation. . . . [T]he Ohio Public at 9:12 p.m., the district court granted Cooey’s motion to stay No. 03-4001 Cooey v. Bradshaw 11 12 Cooey v. Bradshaw No. 03-4001

his execution, but declined to rule on Cooey’s underlying II. ANALYSIS Rule 60(b) motion. The district court expressed concern whether it properly held jurisdiction to address Cooey’s Rule A. Jurisdiction 60(b) motion because our current law on the issue is unclear. We have held that a Rule 60(b) motion is the “practical 28 U.S.C. § 2251 permits a federal judge “before whom a equivalent” of a subsequent habeas petition, which a district habeas corpus proceeding is pending” to stay a state court court holds no jurisdiction to entertain. See McQueen v. proceeding. See 28 U.S.C. § 2251. In this case, there is no Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996). However, this habeas corpus petition pending before the district court, but issue is currently slated for en banc review in Abdur’Rahman. only a Rule 60(b) motion. Cooey’s prior habeas petition was Against this backdrop, the district court granted the stay denied by the district court and we affirmed that decision. because it had only “48 hours to grapple with this Indeed, Cooey does not, and cannot, maintain that his present unprecedented situation,” and did not have “sufficient time to action before the district court is a second habeas petition. He flesh out the principles underlying [its] decision.” The court cannot make that assertion, because if his motion were a held that our June 10 letters to Cooey’s former counsel may second habeas petition, it would be subject to the strictures set have raised some question whether Cooey had received forth in 28 U.S.C. § 2244(b)(3), and the district court would effective counsel, and therefore“it would be unseemly for lack jurisdiction to entertain it. Moreover, the district court Cooey to be executed” without proper time to evaluate and expressly found that Cooey’s motion was not a habeas determine whether, in light of our admonishment of previous petition under § 2254. Memorandum, p. 15. And given this counsel, Cooey had received the fair review to which he is finding, the district court essentially deprived itself of statutorily entitled. Therefore, the district court did not rule jurisdiction to grant a stay under § 2251. Without express on the 60(b) motion, but left it to this Court to construe the authorization by federal statute or an exception to the Anti- significance of our June 10 letters in order to ascertain Injunction Act, the district court was without jurisdiction to whether the performance of Cooey’s prior appellate habeas grant the stay of execution here. See 28 U.S.C. § 2283; counsel had in fact “cast a cloud over the integrity of the Mitchum v. Foster, 407 U.S. 225, 226 (1972). Because there habeas process” such that his Rule 60(b) motion should be is no proper proceeding before the district court that would granted. have allowed it to enter the stay of execution, that order must be vacated. See Calderone v. Thompson, 523 U.S. 538 (1998) The Warden has appealed the district court’s order. The (holding that the court of appeals abused its discretion in sua Warden contends, first, that the district court was without sponte recalling its mandate); Bowersox v. Williams, 517 U.S. jurisdiction to enter a stay of execution because a stay of 345, 346 (1996) (per curiam) (vacating the stay of execution; execution cannot be issued in response to a Rule 60(b) motion holding that the court of appeals abused its discretion in since such a motion is not a habeas proceeding; second, that entering a stay of execution pending disposition of a if we were to address Cooey’s Rule 60(b) claim on its merits, successive petition in light of, inter alia, the “surface that Cooey has failed to describe any substantial claim under implausibility” of the petitioner’s claims); Delo v. Blair, 509 which relief can be granted; and finally, that Cooey’s U.S. 823 (1993) (per curiam) (vacating the stay of execution; appellate habeas counsel did not undermine the integrity of noting that there was “no conceivable need for the court of this Court’s proceedings. appeals to engage in further study of the petitioner’s claims”); Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992) (per curiam) (vacating the stay); West v. Bell, 242 F.3d 338 No. 03-4001 Cooey v. Bradshaw 13 14 Cooey v. Bradshaw No. 03-4001

(6th Cir. 2001) (vacating the district court’s grant of a stay of (1) a judgment which ought not, in equity or good execution; holding that there was no proper proceeding before conscience, to be enforced; (2) a good defense to the the district court upon which to premise the stay). alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented B. Rule 60(b) the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on Assuming that the district court had any jurisdiction to the part of the defendant; and (5) the absence of any enter a stay, we find it nonetheless to be an abuse of adequate remedy at law. discretion because Cooey failed to establish an underlying viable claim for relief under Rule 60(b). Cooey never Cooey cites to our docket entries of June 10, 2003, and to indicates on which clause of Rule 60(b)1 he relies, although our comments in our merits opinion and appendix thereto his argument that habeas counsel’s conduct affected the criticizing former habeas counsel, as constituting a “fraud on “integrity of the proceedings” most closely resembles the the court.” Moreover, the the district court expressly “savings clause” of Rule 60(b), see Fed. R. Civ. P. 60(b) requested that we clarify our intent in chastising counsel. (“This rule does not limit the power of the court to entertain Suffice it to say that our displeasure with counsel’s an independent action . . . for fraud upon the court.”). The performance was based on appellate habeas counsel’s overt district court sua sponte relies upon the “independent action” strategy to litigate every conceivable claim, despite the utter ground as articulated in United States v.Beggerly, 524 U.S. baselessness of many of them. It was not based on any 38, 46 (1998) (articulating standard as “[i]ndependent actions conclusion, upon our exhaustive review of the record in this must, if Rule 60(b) is to be interpreted as a coherent whole, be case2, that counsel failed to recognize and raise any reserved for those cases of injustices which, in certain meritorious claims. In other words, our dissatisfaction instances, are deemed sufficiently gross to demand a stemmed from the waste of judicial and financial resources, departure from the rigid adherence to the doctrine of res not from concern over “errors left hidden behind bad judicata”(internal quotation marks omitted)). In Barrett v. representation.” See Cooey’s Motion for a Stay, at 4. Secretary of Health & Human Servs., 840 F.2d 1259, 1263 Restated again, habeas appellate counsel’s overzealousness (6th Cir. 1987), we set forth the elements of such a cause of may have unnecessarily burdened the Court, but it did not action under Rule 60(b)): affect the integrity of Cooey’s initial habeas proceedings or otherwise prevent us from understanding the case and reaching the right result. 1 Fed. R. Civ. P. 60(b) provides for relief from judgment on various In sum, we explicitly reject Cooey’s implicit argument that grounds, including: former counsel’s overzealousness in raising frivolous claims (1) mistake, inadvertence, surprise, or excusable neglect; (2) supports the assumption that counsel overlooked meritorious newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denom inated as intrinsic or 2 extrinsic), misrepresentation, or other misco nduct of an ad verse It should be recalled that we exam ined the entire reco rd in this case party; . . . or (6) any other reason justifying relief from the three times; first, when we expressed o ur tentative view o f Coo ey’s operation of judgment. . . . This rule does not limit the power of app lication for a certificate of appealability; second, when we ruled a court to entertain an ind ependent action . . . for fraud upon the definitively on the request for a COA; and third, when we denied habeas court”). relief on the merits. No. 03-4001 Cooey v. Bradshaw 15 16 Cooey v. Bradshaw No. 03-4001

claims. Absent an actual showing of the latter (and Cooey 2254,” and not cognizable. Section 2254(i) flatly precludes has made no such attempt), it cannot be said that the integrity such a claim: of the judicial proceedings have been compromised and that justice has not been served such that a Rule 60(b) motion, on The ineffectiveness or incompetence of counsel during any basis should be granted. Cooey’s attempt to transmogrify Federal or State collateral post-conviction proceedings our criticism of former habeas counsel’s excessive and shall not be a ground for relief in a proceeding arising wasteful strategy into a fraud upon the court must be rejected. under section 2254. 28 U.S.C. § 2254(i). See also Coleman v. Thompson, 501 Moreover, the specific claims which Cooey asserts require U.S. 722, 755 (1991) (holding that there is not constitutional Rule 60(b) relief have already been addressed on the merits right to counsel in state collateral proceedings). Thus, under and clearly understood by this Court. Therefore, Cooey is not the plain language of the AEDPA, there is no jurisdiction for entitled to relief under any of the enumerated sections of Rule any court to hear the merits of Cooey’s claim. Cooey’s Rule 60(b). Cooey’s true claim is that those issues were not argued 60(b) motion is in reality an application for permission to file well, and what he really wants is an opportunity to readdress a second habeas petition, subject to 28 U.S.C. § 2244(b)(3), those claims. This is not a permissible basis for a Rule 60(b) and to say otherwise makes a mockery of the AEDPA.3 motion, however. See Jinks v. AlliedSignal, 250 F.3d 381, 385 (6th Cir. 2001) (stating that a “Rule 60(b) [motion] does Cooey also does not attempt to show how any new claims not allow a defeated litigant a second chance to convince the unearthed by new counsel could somehow satisfy the court to rule in his or her favor by presenting new requirements of § 2244(b)(2).4 That is, to survive dismissal, explanations, legal theories, or proof”). Counsel also glosses Cooey would have to demonstrate that any new claim relies over the fact that what is at issue is former appellate habeas on a new rule of constitutional law made retroactive to cases counsel’s behavior in this Court during the initial appeal, and on collateral review; or based on a factual predicate that could not any misbehavior by the trial habeas counsel in the district court. Rule 60(b) relief is inappropriate for this reason as well. 3 The district court lacked jurisdiction to enter the stay absent our express authorization under § 224 4(b)(3)(A ). See Kutzner v. Coc krell, C. Successive Petition 303 F.3d 333, 338 (5th C ir. 200 2); Martinez v. Texas Court of Criminal Appea ls, 292 F.3d 417 , 423 (5th C ir.), cert. denied, 122 S. Ct. 1992 Thus, Cooey’s claim that counsel’s alleged incompetence (2002); Spivey v. State Bd. of Pardons & Paroles, 279 F.3d 1301, 1303- affected the integrity of the initial habeas proceedings is 04 (11th Cir. 2002 ) (per curiam ); cf. In re Parker, 49 F .3d 2 04, 2 13 (6th simply an ineffective assistance of appellate habeas counsel Cir. 1995) (holding that the district court’s order appointing counsel under 21 U.S.C. § 848(q)(4)(B) did not give it jurisdiction over the action claim. To be sure, we need only look to what Cooey wants sufficient to allow it to e nter a stay of execution pursuant to 28 U .S.C. § here–time to allow new counsel to go back through the record 2251; pre-A ED PA ). As the Fifth Circuit stated in Kutzner, “[a]llowance to see if there are any issues that should have been raised but of a stay of ex ecution under these circumstances would signal tacit were not. Failing to raise meritorious claims is the very approval of endless stays for the preparation of endless successive definition of ineffective assistance of counsel. Because petitions.” Kutzner, 303 F.3d at 338. premised on “incompetence” or “ineffectiveness,” Cooey’s 4 Rule 60(b) motion is a “proceeding arising under section Of course any claim presented in the prio r app lication is subjec t to dismissal. 28 U .S.C. § 224 4(b)(1). No. 03-4001 Cooey v. Bradshaw 17

not have reasonably been discovered previously, and if proven, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty. See 28 U.S.C. § 2244(b)(2). Cooey also makes no attempt to address the requirements of § 2244(b)(1) or (2), Indeed, we note that Cooey does not even attempt to argue that his claims otherwise survive § 2244(b)(1) or (2). We have exhaustively reviewed the entire record in this case several times. Based on that review, we cannot say that meritorious claims were missed. Nor can it be said that Cooey is actually innocent of the crimes for which he was convicted. Having said this, we do not see how it can be said that the integrity of the habeas process was in any way compromised and that justice was not served. Thus, to grant a stay of execution under these circumstances would not only run afoul of the AEDPA, but interfere with the State of Ohio’s legislative and judicial sovereignty. III. CONCLUSION Given our conclusion that no relief is available under Rule 60(b) or § 2244(b), the district court’s grant of the stay was improper.