Cooey v. Bradshaw

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.

1
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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
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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.
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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.