John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Defendant-Appellee, 571 F.3d 1341

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (p. 1342), delivered a separate concurring opinion in the judgment. OPINION ALICE M. BATCHELDER, Circuit Judge. Petitioner appeals the district court’s orders denying his Renewed Request for Funding for a neuro-psychologist and for a stay of execution. We affirm. In an order dated July 10, 2009, we affirmed the district court’s order denying Petitioner’s initial Request for Funding and held that there was no basis upon which we could stay the scheduled execution.

We note that, although we were unaware of it at the time, on July 9, 2009, the Governor of Ohio had denied Petitioner’s request for clemency. On July 11, Petitioner filed in the district court his Renewed Request for Funding and for a stay of execution. The district court noted that in support of his Renewed Request, Petitioner reiterated the arguments he had raised in his initial request, raised a new “staleness” argument, and submitted only two new exhibits: an

article concerning the psychological impact of incarceration, and the Ohio Adult Parole Board’s completed clemency report. The district court, apparently unaware that the Governor had already denied clemency, noted that Petitioner intended to file a “supplemented application for clemency directly to the Governor.” The district court denied the Renewed Request because it concluded that Petitioner had failed to make a showing that the services of the neuro-psychologist were reasonably necessary for Petitioner to pursue state clemency further.

The district court found no basis upon which it could grant Petitioner’s motion for stay of execution and denied the motion. We have reviewed the district court’s orders, the briefs of Petitioner and the Warden, and the materials furnished to the district court by Petitioner in support of his Renewed Request and his motion for stay of execution. For the reasons stated in our order of July 10, 2009, as well as for the reasons given by the district court for denying the Renewed Request, we affirm both the denial of the Renewed Request and the denial of the request for stay of execution.