Darryl Durr

USAToday.com noted on Thursday of last week that U.S. District Court Judge Gregory Frost, of Ohio's Southern District, had dismissed Darryl Durr's claim that Ohio's lethal injection chemicals violated federal prescription drug laws, noting that the U.S. Supreme Court had rejected a similar argument brought by death row inmates 25 years ago. ( Holding )

There, in Heckler v. Chaney, 470 U.S. 821 (1985), "a number of condemned inmates had argued that the states were violating federal law in using drugs to execute them, and that the Food and Drug Administration (FDA) should prohibit the use of the drugs until the FDA certified that the drugs were 'safe and effective' for execution. The FDA unsurprisingly rejected the prisoners' arguments, reasoning that it was primarily concerned with serious dangers to the public, and that such dangers were not posed by the states' procedures for lawfully executing condemned prisoners."

Durr is scheduled to be executed tomorrow morning at 10:00

Last Tuesday, USAToday had reported the American Civil Liberties Union of Ohio's filing a federal lawsuit for Durr, seeking to delay his execution, and maintaining that a Cuyahoga County court, last year, allowed DNA testing on some items at trial, but refused to allow it on a necklace found on the victim. "According to Ohio law," the ACLU professed, "courts must consider appeals from non-death row prisoners who have been refused DNA testing after they were convicted. However, the courts are not required to hear appeals from death row inmates who have been denied DNA testing." The ACLU's requested temporary restraining order was to prevent the state from executing Durr until it could rule on whether he has a constitutional right to a mandatory appeal of his denial of DNA testing.

The District Court, last Friday, denied his TRO request and transferred the case instead to the 6th. Circuit Court of Appeals. In the present case, the District Court saw Durr's challenge as being a habeas corpus issue, not a civil rights matter as had been filed, which presented a jurisdictional problem. "Durr has already pursued & exhausted habeas corpus relief pursuant to 28 U.S.C. §2254," the District Court said. "Under 28 U.S.C. §2244(b)(3)(A), before an applicant can file a second or successive petition for a writ of habeas corpus in district court, the applicant must move in the appropriate circuit court of appeals for an order authoring the district court to consider the application. Absent such an order, a district court does not have jurisdiction to entertain a successive habeas corpus petition. Where, as here, it appears that the applicant has not obtained such an order, a district court must transfer the matter to the appropriate circuit court. In re Sims,111 F3d 45 (6th. Cir. 1997)."

This morning the Sixth Circuit disagreed with the District Court in holding that the proceedings where a habeas corpus matter, but, nonetheless, held that "Durr has stated claims that are cognizable under § 1983, but we conclude that even if Durr were to succeed on those claims, such success would not entitled him to a stay of his execution. Therefore, we AFFIRM the district court's order denying Durr a temporary restraining order or a preliminary junction.” ( Decision )