The Sixth Circuit has rendered an important decision on the statute of limitations for suits challenging lethal injection in Cooey v. Strickland, No. 05-4057. Cooey is on Ohio's death row for the kidnapping, rape, and murder of Wendy Offredo and Dawn McCreery in 1996. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002) and excerpt below.
Cooey filed his § 1983 action challenging the lethal injection protocol on June 10, 2004 and refiled it after exhaustion of administrative remedies on December 8, 2004. The Ohio statute of limitations for personal injury actions, which is borrowed for § 1983 suits, is two years. The key question is when the statute began running. Normally, personal injury actions accrue at the time of injury, but that rule is obviously inapplicable given that the relief sought is injunction to prevent the injury, not money damages for its infliction.
The court noted that finality on direct appeal, the starting date for the AEDPA statute of limitations, was "an attractive choice." However, it is not in this case because Ohio did not adopt lethal injection as an available method of execution until two years later, in 1993, and it did not become the sole method until 2001. Letters from state corrections officials giving additional information on the protocol were sent in April and May of 2002, both more than two years before the initial complaint.
The date of accrual that would make this action timely would be the date that execution became imminent, a choice endorsed by the district court and the dissenting judge in today's opinion. If that were the date, then method-of-execution litigation could routinely follow all the appeal and habeas litigation of the judgment itself and delay execution in every case where a credible issue can be raised. That is, of course, the goal of people who seek to exploit method-of-execution litigation to delay executions rather than to actually prevent methods they consider cruel. The Supreme Court disapproved holding back the execution claim to the eleventh hour fifteen years ago in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653(1992), and it reaffirmed Gomez last term in Hill v. McDonough. Gomez was based on equitable considerations rather than a statute of limitation, and the dissent claims that this is sufficient, but we know from experience that just flexible limitations are routinely misused in courts hostile to the death penalty.
The majority held that it "need not pinpoint the actual accrual date in this case," because the complaint was untimely under all but the unacceptable imminence date.
Here, from the Sixth Circuit's original habeas opinion five years ago, is what Cooey did to warrant the death sentence:
On the night of August 31, 1986, Appellant, Richard Wade Cooey II, on leave from the army, and two of his friends, Clint Dickens and Kenneth Horonetz, threw a large chunk of concrete over the side of a bridge just as Wendy Offredo and Dawn McCreery were passing below along Interstate 77 in Akron, Ohio. The concrete hit Wendy's car, forcing her to pull over. The men went down and offered a ride so the women could call for help. After driving them to a nearby mall to use a telephone, the men took the women to a field where they were raped, beaten, and murdered by Cooey and Dickens. The men also stole Wendy's jewelry.
The bodies were found on September 1. The Summit County Coroner concluded that Wendy and Dawn had died of multiple blows to the head--Wendy received at least three blows and Dawn at least eleven--with strangulation also contributing to Wendy's death. He also concluded that both women had oral and vaginal intercourse before death.Five years is in the ballpark of what the total review process should take. Cooey's case is still being litigated five years after what is normally the last substantial review: the panel opinion on federal habeas.