6th Circuit transfers Kenneth Biros stay of execution appeal:  Earlier this evening, a 3-judge panel (Siler, Gibbons, Sutton) of the US 6th Circuit Court of Appeals transferred the motion to lift the stay of execution currently in effect for Kenneth Biros to another 3-judge panel of the court (Suhrheinrich, Gilman and Siler).

Order on the 6th Circuit docket for Biros (06-4660):

1/16/07    ORDER filed we tranfer the State's stay motion in this case to the panel in 05-4057, subject to that panel's acceptance of the case. [06-4660] . Eugene E. Siler, Circuit Judge, Julia S. Gibbons, Circuit Judge, Jeffrey S. Sutton, Circuit Judge. (nb)

This transfer to the Suhrheinrich, Gilman and Siler panel does not bode well for the Biros stay of execution being upheld as it is the same 3-judge panel which, when transferred consideration of the Jeffrey Lundgren stay of execution in a similar legal situation, lifted the stay.

6th Circuit docket entries in the Jeffrey Lundgren case (06-4374) shortly before his execution in October:

10/23/06    ORDER filed: this case is transferred to the panel consisting of Judges Suhrheinrich, Siler and Gilman, who have previously been assigned the cases brought by Ohio death row prisoners testing the constitutional validity of Ohio's method of lethal injection. [06-4374]. Gilbert S. Merritt, Martha C. Daughtrey and Eric L. Clay, Circuit Judges. (pje)

10/23/06    ORDER filed granting motion to vacate intervention and preliminary injunction and the stay of execution is hereby VACATED [06-4374] . Richard F. Suhrheinrich, Circuit Judge, Eugene E. Siler, Circuit Judge, Ronald L. Gilman, Circuit Judge, dissenting. (jc)

In contrast, soon after the Lundgren execution, the appeal of Judge Frost's district court denial of a stay of execution for Jerome Henderson was heard by the same 6th Circuit 3-judge panel that heard Henderson's habeas appeal.  That panel ruled on the appeal themselves instead of transferring it, and granted the stay based on Henderson's appeal in the Cooey v. Taft (Ohio lethal-injection challenge) case.  The Henderson stay was subsequently upheld by the en banc court without any explanation of the discrepency with the ruling lifting the stay in the Lundgren case.  (See earlier coverage here.)

(More information on Kenneth Biros - whose January 23 execution date is presently stayed pending the outcome of the appeal before the 6th Circuit - is here (scroll down).)