                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 10a0132p.06

                UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                                  X
                                                   -
 RICHARD COOEY,
                                                   -
                                     Plaintiff,
                                                   -
                                                   -
                                                        No. 10-3598
 MICHAEL BEUKE,
                                                   ,
                                                    >
                                                   -
             Plaintiff-Intervenor-Appellant,

                                                   -
                                                   -
           v.
                                                   -
 TED STRICKLAND, Governor, State of Ohio;          -
                                                   -
                                                   -
 ERNIE L. MOORE, Director, Ohio Department
                                                   -
 of Rehabilitation and Correction; DONALD
                                                   -
 MORGAN, Warden, Southern Ohio
 Correctional Facility,                            -
                        Defendants-Appellees.     N

                    Appeal from the United States District Court
                   for the Southern District of Ohio at Columbus.
                  No. 04-01156—Gregory L. Frost, District Judge.
                             Submitted: May 11, 2010
                        Decided and Filed: May 12, 2010
    Before: BATCHELDER, Chief Judge; MARTIN and NORRIS, Circuit Judges.

                               _________________

                                   COUNSEL
ON BRIEF: Charles L. Wille, Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellees.
        BATCHELDER, C.J., delivered the opinion of the court, in which NORRIS, J.,
joined. MARTIN, J. (pp. 12-14), delivered a separate dissenting opinion.




                                         1
No. 10-3598         Cooey v. Strickland                                                Page 2


                                    _________________

                                          OPINION
                                    _________________

        ALICE M. BATCHELDER, Chief Judge. Intervenor-Plaintiff Michael Beuke, an
Ohio death row inmate, appeals from the order of the United States District Court for the
Southern District of Ohio, Eastern Division, denying both his motion for injunctive relief
filed pursuant to 42 U.S.C. § 1983, and his oral request to stay his execution pending appeal
of the decision. On appeal, Beuke also requests, in the alternative, that a single judge issue
a stay enjoining his execution while he appeals the district court’s decision, pursuant to
Federal Rule of Appellate Procedure 8(a)(2)(A)(ii) and 8(2)(D). For the reasons that follow,
we affirm the opinion of the district court denying Beuke’s motion for injunctive relief, and
further deny his request for a stay enjoining his execution.

                                              I.

        Beuke is scheduled to be executed on May 13, 2010. The district court permitted
him to intervene for a second time in the present lawsuit on March 23, 2010, and on May 6,
2010, he filed a motion for injunctive relief to enjoin the State of Ohio from utilizing its
alternative execution plan (“Plan B”) under its current lethal injection protocol. The district
court held a hearing on May 10, 2010, during which it heard testimony from Beuke’s two
experts, Dr. Edward D. French and Dr. Mark J.S. Heath. Defendants called no witnesses but
requested that the district court incorporate previous testimony of Dr. Mark Dershwitz, who
has testified on numerous prior occasions on behalf of defendants in this lawsuit. On May
11, 2010, the district court denied Beuke’s motion for injunctive relief and his motion for a
stay pending appeal.

        Michael Beuke was convicted in October 1983 of one count of aggravated murder,
two counts of attempted aggravated murder, three counts of aggravated robbery, three counts
of kidnapping, and one count of carrying a concealed weapon. The aggravated murder
charge also included two specifications, either of which alone – if proven beyond a
reasonable doubt – would make him eligible for the death penalty: (1) committing
aggravated murder as part of a course of conduct involving the purposeful attempt to kill two
or more persons, and (2) committing aggravated murder in the course of an aggravated
No. 10-3598         Cooey v. Strickland                                                Page 3


robbery. The jury found that both specifications were proven beyond a reasonable doubt.
At the penalty hearing, the jury also found beyond a reasonable doubt that the aggravating
factors outweighed the mitigating factors and recommended the death penalty. The trial
court adopted the recommendation and imposed the death penalty.

        Having completed and failed in his direct appeal, two petitions for post-conviction
relief, and two habeas attempts, in November 2007, Beuke moved the District Court for the
Southern District of Ohio to allow him to intervene in a lawsuit challenging the
constitutionality of Ohio’s then applicable lethal injection protocol, Cooey v. Strickland, et.
al., No. 04-01156 (S.D. Ohio). The district court granted the motion to intervene on
February 15, 2008, and Beuke filed his intervenor complaint the same day. However, the
district court dismissed his action on August 25, 2008, on the ground that the decision in
Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), required dismissal, on statute of
limitations grounds, of Beuke’s 42 U.S.C. § 1983 claims. Beuke did not appeal.

        The remaining plaintiffs in the Cooey action continued to litigate their challenge to
the lethal injection process, and in the meantime, Ohio changed its execution protocol,
making changes which were designed to make the State’s capital punishment protocol more
humane. The new protocol, which took effect on November 30, 2009, utilizes a one-drug,
IV injection (“Plan A”) with a two-drug, intramuscular injection back-up procedure if the
execution team fails to locate veins suitable for IV transmittal (“Plan B”). See Cooey (Biros)
v. Strickland, 589 F.3d 210, 217 (6th Cir. 2009). Given the change of policy, the statute of
limitations to challenge the new procedure began to run anew.

        But it was not until March 17, 2010, that Beuke filed a motion to intervene once
again in the pending lawsuit in the district court, despite knowing that his execution date of
May 13, 2010 (scheduled by the State of Ohio on November 4, 2009), was drawing near.
The district court granted the motion to intervene on March 23, 2010, and Beuke filed his
new intervenor complaint the same day. Defendants filed a motion to dismiss the complaint
on April 6, 2010. A month later, on May 3, 2010, Beuke filed a motion for leave to untimely
file a response in opposition to the motion to dismiss. The district court granted the motion.
On May 7, 2010, Beuke filed a motion to amend his complaint to include claims challenging
the State’s use of Plan B as a back-up execution plan, arguing that his anti-seizure
No. 10-3598          Cooey v. Strickland                                                Page 4


medication would interact with and reduce the effects of the drugs utilized in Plan B. He
also sought to enjoin the defendants from using Plan B to carry out his execution.

        The district court held a hearing on Beuke’s amended complaint on May 10, 2010,
at 2:00 p.m., and at the conclusion of that hearing, counsel for Beuke orally requested a stay
of his execution pending appeal should his motion for injunctive relief be denied. On May
11, 2010, the district court denied the motion for injunctive relief, as well as his request for
a stay pending appeal. Beuke filed a timely notice of appeal the same day.

        We extensively described Ohio’s new execution protocol in the Biros case. But in
a nutshell, Plan A, which Beuke does not challenge, involves intravenous injection of five
grams of thiopental sodium. The back-up plan, Plan B, which Beuke is challenging, is used
only if a prisoner’s veins prove too difficult to access. Plan B involves a two-drug injection
of 10 milligrams of midazolam and 40 milligrams of hydromorphone, which are
administered in a single syringe intramuscularly.          A medical team member, after
administering the injection and waiting five minutes, will examine the inmate for signs of
breathing. Then, if necessary, a second injection of the same mixture will be administered,
and the inmate will be re-examined after five more minutes for signs of breathing. Then only
if there are continued signs of breathing will a final injection of 60 milligrams of
hydromorphone be administered. See Cooey (Biros), 589 F.3d at 220.

        Beuke’s challenge to the use of Plan B is premised on the allegation that its use will
be unconstitutional as applied to him because he takes anti-seizure medication daily that will
interact with the midazolam in such a way as to produce various undesirable effects.
Because of a seizure disorder, Beuke takes 120 milligrams per day of the drug phenobarbital,
and has been taking the drug daily for approximately five years. (R. 751-4, Amend. Compl.
at ¶¶ 5, 7). Phenobarbital is a barbiturate that acts as an anticonvulsant to depress one’s
central nervous system. (Id. at ¶ 5). Likewise, midazolam produces depressant effects such
as sedation, anti-anxiety, and unconsciousness. (Id. at ¶ 6). Because of his chronic intake
of phenobarbital, there is a high likelihood, Beuke claims, that he will have an increased
tolerance to the amount of midazolam given during Plan B, and because of this increased
tolerance, the rate at which he descends into unconsciousness would be slowed, resulting in
an increased chance of his experiencing the effects of hydromorphone. (Id. at ¶ 8). Thus,
No. 10-3598           Cooey v. Strickland                                                        Page 5


he may consciously experience the side effects of hydromorphone, which can include, inter
alia, nausea, vomiting, disinhibited speech, delirium, anxiety, or disorientation. (Id.). The
increased risk of this type of experience if he is subjected to Plan B, Beuke argues, violates
both his right to be free from cruel and unusual punishments under the Eighth Amendment,
and a claimed “liberty, life, and property” interest arising under Ohio Rev. Code
§ 2949.22(A) that is ultimately protected under the due process clause of the Fourteenth
                                                                                                  1
Amendment, that entitles him to a “quick and painless death.” (Id. at ¶¶ 11, 13, 16).

                                                  II.

         In his appeal from the district court’s decision denying injunctive relief, Beuke
requests that we enjoin the State from utilizing Plan B to carry out his execution because
seizure medications that he is taking, namely phenytoin and phenobarbital, may interact
with the Plan B drugs so as to violate his constitutional rights under the Eighth and
Fourteenth Amendments. In reviewing the denial of the motion for injunctive relief, we
consider four factors: “(1) whether [Beuke] has demonstrated a strong likelihood of
success on the merits; (2) whether he will suffer irreparable injury in the absence of
equitable relief; (3) whether the stay will cause substantial harm to others; and (4)
whether the public interest is best served by granting the stay.” Cooey (Biros), 589 F.3d
at 218 (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007)). “These factors
are not prerequisites that must be met, but are interrelated considerations that must be
balanced together.” Id. (quoting Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). We review the district court’s factual
findings for clear error and its legal conclusions de novo. H.D.V.-Greektown, LLC v.
City of Detroit, 568 F.3d 609, 618-19 (6th Cir. 2009).

         Beuke first challenges Ohio’s use of Plan B as violative of his Eighth
Amendment right to be free from cruel and unusual punishment. To demonstrate a
likelihood of success on the merits of this claim, Beuke is required to demonstrate that


         1
           Beuke also asserted a claim in his amended complaint that because of the drug interaction, he
will not be competent to be executed when his execution is imminent, in violation of standards set out in
Ford v. Wainwright, 477 U.S. 399 (1986). He did not focus on such a claim in the district court hearing,
and he does not raise it on appeal. It is deemed waived.
No. 10-3598        Cooey v. Strickland                                              Page 6


in utilizing Plan B, the State of Ohio’s “protocol ignores a ‘sure or very likely’ risk of
serious pain ‘and needless suffering’ which ‘creates a demonstrated risk of severe pain’
that is ‘substantial when compared to the known and available alternatives.’” Cooey
(Biros), 589 F.3d at 220 (quoting Baze v. Rees, 553 U.S. 35, 50, 61 (2008)).

       After carefully reviewing the written submissions and the oral testimony of both
Dr. French and Dr. Heath, we conclude that this evidence is wholly insufficient to
demonstrate that Plan B creates a “demonstrated risk of severe pain.” In testifying as to
the predicted effects of Plan B’s dosage of midazolam on Beuke, Dr. Heath opined that
there was a “very high likelihood” that “Beauke will have a reduced effect to the
midazolam, or he will be resistant to the midazolam.” (Tr. at 54). However, when asked
to quantify these effects, Dr. Heath noted that “I can’t put an exact number on it. All I
can say is that, as a practitioner who sees this frequently, it would be my strong
expectation that I would have to give him a lot more midazolam to achieve the same
effect. How much more, I don’t know.” (Id.). And even while noting his belief that the
effects of the midazolam would be reduced due to “cross tolerance” as a result of his
seizure medications, Dr. Heath testified that the result would be merely to “prolong the
dissent [sic] from consciousness into unconsciousness” (Tr. at 81) so that Beuke would
experience more of the intoxicating effects of the hydromorphone, which may include
“nausea and vomiting, hallucinations or delusions, [and] basically confused thinking.”
(Tr. at 66). But Dr. Heath expressly stated that the actual “cross tolerance” itself, or
“intoxication,” did not equate to pain. (Tr. at 80, 81). Neither Dr. Heath nor Dr. French
could quantify the likelihood of nausea or vomiting in connection with the use of
hydromorphone. (Tr. at 82). Nor could Dr. French give any definitive answer regarding
how tolerant Beuke would be to midazolam. When asked whether Beuke, because of his
use of anti-seizure medications, would fall outside the category of individuals who
would have a typical reaction to midazolam, Dr. French said, “It is my opinion that he
could, and I think it’s not improbable.” (Tr. at 27). Finally, Dr. French could not predict
that there would be an increased probability of nausea and vomiting side effects as
dosage levels of hydromorphone were increased. (Tr. at 41).
No. 10-3598         Cooey v. Strickland                                                Page 7


        As the district court noted in its order, this testimony necessitates the conclusion
that “any estimation of what side effects are likely to occur and the severity of those side
effects is wholly speculative.” (Dist. Ct. Order at 7). This sort of speculation cannot
meet the standard of a “sure or very likely risk of serious pain . . . that is substantial
when compared to the known and available alternatives.” Cooey (Biros), 589 F.3d at
220. In any event, the only available alternative that Beuke submits is Plan A, which is
the default method for execution. Similarly to the defendant in Biros, Beuke does not
argue that he has difficult-to-access veins, and Plan B “comes into play only when an IV
injection [under Plan A] is not possible. . . .That reality alone diminishes the alleged
risks.” Id. at 229. And Plan B’s entire purpose is to minimize any difficulties
encountered during the use of Plan A. See id. at 222 (“the purpose of the intramuscular
injection seeks to avoid an unduly prolonged search for difficult-to-access veins and to
provide a safe, non-IV lethal injection method”). There has been no showing that this
substitute method is more likely to result in severe pain than continuing with
increasingly lengthy attempts at IV injection under Plan A.

        But Beuke maintains that the district court erred by focusing solely on the
likelihood that he would suffer severe pain if subjected to the protocol of Plan B. Beuke
argues that the district court failed to consider whether he had demonstrated that the use
of Plan B creates an “objectively intolerable risk of harm” that is “substantial when
compared to the known and available alternatives.” Id. at 215. Beuke fares no better
with this argument.

        The district court did not specifically explain which of the two phrases — “risk
of severe pain” or “objectively intolerable risk of harm” — it was focusing upon in its
analysis, but it is true that it appears to focus more particularly on the risk of severe pain.
And this is understandable, given that at the hearing, much of the testimony was directed
at the potential for Beuke to experience possible side effects from the hydromorphone,
such as nausea and vomiting.          Nevertheless, we will also review the evidence
specifically to determine whether it compels a finding that Plan B presents an
“objectively intolerable risk of harm.”
No. 10-3598         Cooey v. Strickland                                              Page 8


        A threshold question, then, is what is the “harm” that is being referenced? It
surely cannot be an inmate’s ultimate death, as that is the intended consequence of any
execution protocol. Beuke argues that the risk of harm that is objectively intolerable is
the likelihood that his response to midazolam would result in a lessened sedative effect,
i.e., a sedative effect less than he would experience from the same dosage of midazolam
if he had not been taking his anti-seizure medication, with the concomitant result that he
would experience the effects of the hydromorphone more acutely. (See Beuke’s Br. at
12). However, neither of Beuke’s experts – not Dr. French, nor Dr. Heath – could
quantify the extent of any tolerance of the midazolam Beuke may have. All that was
demonstrated was that it was likely that Beuke would have some elevated level of
tolerance. Of course, as we have already pointed out, the experts testified that the
increased tolerance level would not itself cause any discomfort.             This lack of
quantification of even the extent of Beuke’s potential tolerance to the Plan B drugs, not
to mention the lack of quantification of the likelihood of Beuke’s experiencing any
uncomfortable side effects from the hydromorphone, renders unsustainable his argument
that he has demonstrated an “objectively intolerable risk of harm.” Mere likelihood of
an increased tolerance to the Plan B sedative, which may possibly lead in turn to Beuke’s
experiencing uncertain but potentially uncomfortable side effects from the
hydromorphone is not a risk of harm which is either objective or intolerable.

        Beuke also challenges the Plan B protocol as violative of his right to a “quick and
painless death” that arises under Section 2949.22(A) of the Ohio Revised Code. He
argues that even though this interest arises under state law, it is nonetheless protected as
a right under the due process clause of the Fourteenth Amendment. The district court
did not directly address this argument; however, it is foreclosed by our decision in Biros.
There, we specifically noted that Section 2949.22 “creates no cause of action to enforce
any right to a quick and painless death.” Cooey (Biros), 589 F.3d at 234 (citing State v.
Rivera, 2009 WL 806819, at *7 (Ohio Ct. App. Mar. 30, 2009)). And we noted that we
were unpersuaded by assertions that § 2949.22 creates a federal right protected by the
Fourteenth Amendment. Id. We remain unpersuaded.
No. 10-3598        Cooey v. Strickland                                              Page 9


       We agree with the district court that Beuke has failed to demonstrate any
likelihood of success on the merits of his claim that use of the Plan B procedure would
violate his Eighth Amendment rights. And we conclude that he has also failed to
demonstrate any likelihood of success on the merits of his claim that the procedure
would violate any right protected by the Fourteenth Amendment. Because Beuke cannot
make any showing that he has any likelihood of success, we find the first factor
dispositive. See Workman v. Bredesen, 486 F.3d 896, 911 (6th Cir. 2007). Nonetheless,
we note that Beuke has not established any of the other factors. He cannot show that he
would be irreparably harmed by failure to stay the execution because he has provided
no evidence that he will ever be subjected to Plan B, the only part of the Ohio execution
protocol to which he objects. And both the third and the fourth factors weigh against
granting the stay. The state has a “significant interest in meting out a sentence of death
in a timely fashion,” Nelson v. Campbell, 541 U.S. 637, 644 (2004), and, as the Supreme
Court has repeatedly held, a compelling interest in ensuring the finality of its judgments.
See McCleskey v. Zant, 499 U.S. 467, 491 (1991) (“Our federal system recognizes the
independent power of a State to articulate societal norms through criminal law; but the
power to a State to pass laws means little if the State cannot enforce them.”) “To
unsettle these expectations is to inflict a profound injury to the ‘powerful and legitimate
interest in punishing the guilty,’ an interest shared by the State and the victims of crime
alike.” Calderon v. Thompson, 523 U.S. 538, 556 (1998) (quoting Herrera v. Collins,
506 U.S. 390, 421 (1993)). Importantly, these cases make this point in the context of
habeas corpus review; how much more must this principle be respected when a last-
minute stay of execution is sought in the context of a § 1983 action.

                                           III.

       “While the absence of any meaningful chance of success on the merits suffices
to resolve this matter,” Workman, 486 F.3d at 911, a final point should be made about
the nature of Beuke’s request for a stay of execution: “a stay is an equitable remedy, and
equity must take into consideration the State’s strong interest in proceeding with its
judgment.” Nelson, 541 U.S. at 649. Even if Beuke had stated a cognizable § 1983
No. 10-3598         Cooey v. Strickland                                             Page 10


claim, “the mere fact that an inmate states a cognizable § 1983 claim does not warrant
the entry of a stay as a matter of right.” Id. In fact, “in considering the equitable remedy
of staying an execution, ‘a district court must consider . . . the extent to which the inmate
has delayed unnecessarily in bringing the claim.’” Workman, 486 F.3d at 911 (quoting
Nelson, 541 U.S. at 649-50). “There is ‘a strong equitable presumption against the grant
of a stay where a claim could have been brought at such a time as to allow consideration
of the merits without requiring entry of a stay.’” Id. (quoting Nelson, 541 U.S. at 650).

        While Beuke’s delay may not be as egregious as that of the defendant in
Workman, it nonetheless “could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.” Beuke has been taking
anti-seizure medication for several years. Ohio’s revised method of execution that
includes Plan B as a back-up was instituted in November 2009. Beuke’s current
execution date of May 13, 2010, was also set in November 2009. Nevertheless, he
waited until March 17, 2010, to move the district court to intervene and, waited until
only one week prior to his execution date to amend his complaint to bring the
particularized challenges to Plan B that he is currently asserting on appeal. This
constitutes unnecessary delay, and Beuke has failed to overcome the “strong equitable
presumption” against the grant of his stay request.

        Finally, “[i]n the alternative, Beuke respectfully requests that a single judge on
this Court expeditiously issue a stay enjoining his execution [pending] his appeal of the
District Court’s decision to denying [sic] him relief[,] pursuant to Federal Rule of
Appellate Procedure 8(a)(2)(A)(ii) and 8(2)(D).” This alternative relief is wholly
unavailable here. The purpose of a single-judge stay is to provide potential relief when
the panel to which the appeal is assigned is not available to consider the merits of the
claim. In a case such as this, where the panel is not only available to consider but in fact
has considered the merits of the case, Rule 8(a)(2)(D) is simply inapplicable.
No. 10-3598       Cooey v. Strickland                                      Page 11


                                        IV.

       For the foregoing reasons, we AFFIRM the judgment of the district court, and
we DENY the motion for injunctive relief.
No. 10-3598            Cooey v. Strickland                                                       Page 12


                                        _________________

                                            DISSENT
                                        _________________

         BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Michael Beuke seeks a stay
of his execution on the basis that an anti-seizure medication that he has been taking for
some time would interact negatively and painfully with one of the drugs in the Plan B
intramuscular injection, should his executioners encounter difficulty administering the
State of Ohio’s new one-drug injection protocol. At a hearing before the district court,
Beuke presented evidence that there was a concrete possibility that such a reaction could
occur, but the district court found that he had failed to prove that it was “likely” to occur.
I would reverse and grant the stay.

                                  *        *        *         *        *

         This is another in the long line of cases that have developed in the short period
since the State of Ohio drastically altered its lethal injection protocol in November 2009.
Though, as far as I know, Ohio has not yet encountered problems in carrying out
executions under its latest protocol, the fact remains that Ohio is blazing a very new trail.
Only time will tell if the changed protocol actually addressed the problems alleged to
have surrounded the prior three-drug method of execution.

         But that’s the point. Only time will tell. Under Cooey and its progeny, inmates
facing execution must show a likelihood1 that use of this protocol will result in
“‘needless suffering’ and a ‘demonstrated risk of severe pain.’” Cooey (Biros) v.
Strickland, 589 F.3d 210, 222 (6th Cir. 2009) (quoting Baze v. Rees, 553 U.S. 35, 50

         1
          We invented this requirement of showing a likelihood, meaning a greater than fifty percent
chance, in Workman v. Bredsen, 486 F.3d 896, 904 (6th Cir. 2007), by analogizing stay requests in death
penalty cases to any other request for temporary injunctive relief. This despite the fact that the Supreme
Court has stated that “inmates seeking time to challenge the manner in which the State plans to execute
them must satisfy all of the requirements for a stay, including a showing of a significant possibility of
success on the merits.” Hill v. McDonough, 547 U.S. 573, 584 (2006) (emphasis added); see also Jones
v. Hobbes, 2010 WL 1767861, at *2-3 (8th Cir. Apr. 9, 2010) (Mellow, J., dissenting). “Likelihood of
success” is a term of art used in many areas of the law, so if the Supreme Court had meant for that to be
the standard, it would have said so. Instead, it set the requisite showing at a “significant possibility of
success,” which is necessarily a lower burden. Beuke’s case highlights Workman’s folly, as it
demonstrates the practical impossibility of an inmate being able to show a likelihood of suffering absent
a past example of suffering.
No. 10-3598            Cooey v. Strickland                                                         Page 13


(2008)). An inmate could make a showing by developing a robust scientific record.2
This is a new protocol, so it will necessarily take time to investigate how it may affect
inmates in general. However, relying upon the likelihood of success requirement, we
brashly rejected a request to do just this when we allowed Ohio to implement an untested
protocol on Kenneth Biros just eight days after the State announced the change. Cooey
(Biros) v. Strickland, 588 F.3d 921, reh’g en banc denied, 588 F.3d 924 (6th Cir. 2009).
We are now faced with the next question: will we allow inmates, like Beuke, with
particularized conditions that may interact in unanticipated and unpredictable ways with
the chemicals in the new protocol the time to develop their challenges and will we allow
ourselves the time to consider them properly?

         But, in the Sixth Circuit, there is no time—or at least no time like the present.
We do not permit time for sufficient research to produce the record needed to make an
informed decision. Instead, we encourage Ohio to continue its one-a-month execution
march. If the science does not yet exist when an inmate’s appointed time comes, we say
“alas, you have not shown a likelihood of suffering, maybe the next guy can.” And then
we say the same thing the next month. The upshot is that an inmate staring down the
barrel of the new protocol will only be able to show a likelihood of unnecessary
suffering if someone ahead of him has suffered unnecessarily. Until the unthinkable
happens, we charge ahead unthinking. As the district court noted, this is the functional
equivalent of human experimentation. We tell Ohio to just keep going until an
experiment goes horribly awry, as it did in the case of Romell Broom. Only then will
we halt our rush to a result and remember that our true business is reasoned
constitutional consideration.


         2
            And by “robust scientific record,” I refer to scientific testimony or evidence that would satisfy
the Supreme Court’s standard of a significant possibility of success on the merits, not our regional
“likelihood” burden. To require a physician to quantify the likelihood of risk, the doctor would have to
measure the risk in precise mathematical terms; indeed, this is exactly the basis on which the majority
faults the testimony offered by Beuke at the district court. Though the physicians testified unequivocally
that there was a significantly increased risk of a negative interaction in Beuke’s case, they could not
precisely quantify the risk. I have never met a doctor who could give me a precisely calculated risk of
anything, even with a substantial body of predictive scientific knowledge, so how can we require doctors
to provide it when there has been such scant time to mine the data relevant to Ohio’s new protocol? For
example, how can anyone quantify the “risk of nausea” in a given case? In applying the error of Workman
and Biros to this case, as I concede that the majority must, they have imposed an impossible requirement.
No. 10-3598          Cooey v. Strickland                                               Page 14


        In this case, it is clear that Beuke presents an individualized circumstance that,
at the very least, creates a distinct possibility of needless suffering. If this is not the case
in which we allow the inmate time to develop his claim, I would ask my fellow judges
for an example of a case in which they would grant a stay. In light of the past several
months, I cannot fathom what would suffice. I suspect that this request for an example
will be met with deafening silence, as I am now convinced that, until we experience
another failed execution, this Court will never interrupt Ohio’s monthly execution
schedule to allow for meaningful inquiry. If this is the case, then we should just say so
and save everyone the time and expense of death penalty appeals and the bother of
continuing the kabuki dance of feigning constitutional deliberation.

        I would grant Beuke a stay, and I respectfully dissent from the majority’s
contrary conclusion.
