US 6th Circuit Court of Appeals "stays mandate" in Ohio lethal injection challenge case

The US 6th Circuit Court of Appeals has voted to "stay the mandate" of its June 1 en banc ruling (3-page pdf) which upheld the dismissal of the Cooey v Taft case challenging Ohio's lethal injection protocol.  The mandate is stayed pending the outcome of an appeal to the US Supreme Court seeking review of the case, and essentially means that court actions that would have resulted from the dismissal are on hold for the time being.  Attorneys for Cooey have 90 days to file the Supreme Court appeal (a request for a grant of certiorari), which may then be followed by a round or two of back-and-forth followup briefs by both parties.  A response from the US Supreme Court on whether to grant cert. is expected sometime this fall.

• Today's order staying the mandate is here (1-page pdf). (Note:  Even though this is a 3-judge panel ruling, no appeal for en banc reconsideration by the 6th Circuit is expected. This is the same 3-judge panel that first ordered dismissal of the Cooey case.)
• Stays of execution currently in effect for Jerome Henderson, Kenneth Biros, and Jeffrey Hill should remain in effect pending the outcome of the appeal to the US Supreme Court. (Richard Cooey does not have a stay because an execution date was never set for him following the expiration of his previous death warrant; an execution date is not expected to be set for him pending the outcome of this litigation).
• Clarence Carter was granted inclusion in the Cooey litigation on June 1, but no stay of his July 12 execution date has been granted yet.  It is expected that US District Ct. Judge Frost will issue a stay of execution for Carter now that the 6th Circuit has agreed to stay the mandate.  However, whether the 6th Circuit will uphold the stay is a subject of speculation. (Stays in effect for Henderson, Biros and Hill have already been upheld by the 6th Circuit on appeal.)
  • Correction:  As noted (too peripherally) in this earlier post (so much so that I overlooked it myself when rushing on the stay the mandate matter yesterday), Judge Frost issued a preliminary injunction (signed on May 31) staying the July 10 execution date for Clarence Carter.  The Ohio AG has not yet filed an appeal of the stay with the US 6th Circuit.  There is varying speculation as to whether the AG may yet do so, and as to how the 6th Circuit might respond if it does.