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RICHARD WADE COOEY II, et al., Plaintiffs, KENNETH BIROS (Intervenor), Plaintiff-Appellant, v. TED STRICKLAND, Governor, et al., Defendants-Appellees. |
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 04-01156—Gregory L. Frost, District Judge.
Submitted: December 7, 2009
Decided and Filed: December 7, 2009
Before: SILER, GIBBONS, and SUTTON, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. This appeal presents the question of whether to stay the execution of Kenneth Biros, scheduled for December 8, 2009, at 10:00 a.m., based on his challenge to the lethal injection procedure by which Ohio intends to carry out his death sentence. The district court denied Biros’s request for a stay, and, because we agree that Biros in particular is unable to demonstrate a likelihood of success on the merits of his Eighth Amendment claim, we affirm.