                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                        File Name: 09a0282p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                                                  -
 JASON GETSY,
                                                  -
                                  Plaintiff-Appellant,
                                                  -
                                                  -
                                                       No. 08-4199
          v.
                                                  ,
                                                   >
                                                  -
                       Defendants-Appellees. -
 TED STRICKLAND, et al.,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Southern District of Ohio at Columbus.
                No. 04-01156—Gregory L. Frost, District Judge.
                                       Argued: July 30, 2009
                                                                         *
                              Decided and Filed: August 13, 2009

                Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

                                        _________________

                                             COUNSEL
ARGUED: David C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. ON BRIEF: David C. Stebbins, Allen L. Bohnert,
FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, Michael J. Benza, THE
LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, for Appellant. Charles L.
Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
        GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined.
MOORE, J. (pp. 8-11), delivered a separate concurring opinion. MERRITT, J. (pp. 12-17),
delivered a separate dissenting opinion.




         *
         This decision was originally issued on August 12, 2009 stating that a separate dissenting opinion
would be forthcoming by Judge Merritt. That dissent is incorporated into this opinion.


                                                    1
No. 08-4199         Getsy v. Strickland, et al.                                       Page 2




                                   _________________

                                         OPINION
                                   _________________

        RONALD LEE GILMAN, Circuit Judge. Jason Getsy was convicted of aggravated
murder and sentenced to death in 1996. In 2007, he filed an intervenor complaint in a
lawsuit brought under 42 U.S.C. § 1983 by fellow inmate Richard Cooey that challenged
Ohio’s lethal-injection protocol. After this court concluded that Cooey’s challenge was time
barred, see Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (Cooey II), the district court
dismissed Getsy’s complaint on the same ground. For the reasons set forth below, we
AFFIRM the judgment of the district court.

                                              I.

        Cooey II’s central holding is that the two-year statute of limitations for a § 1983
lawsuit challenging Ohio’s lethal-injection protocol begins to accrue on the latest of the
following possible dates: (1) “upon conclusion of direct review in the state court or the
expiration of time for seeking such review,” or (2) in 2001, when Ohio adopted lethal
injection as the sole method of execution. Cooey II, 479 F.3d at 422. With reference to the
first of the alternative dates, the “conclusion of direct review” occurs when, after the state
supreme court has affirmed the defendant’s conviction and sentence on direct appeal, the
United States Supreme Court denies the inmate’s petition for a writ of certiorari. Id.
(explaining that the conclusion of direct review occurs when the “United States Supreme
Court denied direct review”).

        In this case, after the Supreme Court of Ohio affirmed Getsy’s conviction and
sentence, the United States Supreme Court denied Getsy’s petition for a writ of certiorari in
1999. Getsy v. Ohio, 527 U.S. 1042 (1999). This means that, under Cooey II, Getsy’s two-
year statute of limitations began to accrue in 2001, when Ohio adopted lethal injection as its
exclusive method of execution. But Getsy’s complaint was not filed until May 2007, several
years after the two-year time frame had already elapsed. We therefore conclude that Getsy’s
No. 08-4199          Getsy v. Strickland, et al.                                          Page 3


constitutional challenge to the Ohio’s lethal-injection protocol should be dismissed as
untimely pursuant to Cooey II.

         Despite this reasoning, Getsy maintains that Cooey II does not bar his claim. He
argues that Cooey II is distinguishable because (1) Baze v. Rees, 128 S. Ct. 1520 (2008),
created a new constitutional right that Getsy was previously unable to invoke, (2) Ohio
modified its lethal-injection protocol on May 14, 2009, and (3) a panel of this court vacated
his death sentence (even though an en banc decision of this court later reinstated the
sentence). Getsy also argues that Cooey II was wrongly decided. We will address each of
these points in turn.

                                               II.

         Getsy first argues that the Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520
(2008), reset the statute-of-limitations period for Getsy because the case purportedly
represents the first time that the Supreme Court explicitly recognized the right to challenge
lethal-injection protocols under the Eighth Amendment. His basic contention is that Baze
created a previously unrecognized constitutional right, so that Getsy could not possibly have
been on notice to vindicate that right before the decision was issued. See Trzebuckowski v.
City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2001) (“In determining when the cause of
action accrues in § 1983 cases, we look to the event that should have alerted the typical lay
person to protect his or her rights.”).

         Getsy’s argument is unpersuasive. Baze did not, in our view, create a new Eighth
Amendment right. The Supreme Court has long recognized the right to challenge execution
methods under the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 170 (1976) (“In
the earliest cases raising Eighth Amendment claims, the Court focused on particular methods
of execution to determine whether they were too cruel to pass constitutional muster.”) The
Supreme Court has also recognized, more than 100 years before Baze was decided, that
inmates have the right to challenge death-penalty practices that might cause undue suffering.
In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture
or a lingering death . . . .”). Because we do not believe that Baze created a new
constitutional right, Getsy’s attempt to avoid the statute of limitations on that basis is without
merit.
No. 08-4199           Getsy v. Strickland, et al.                                        Page 4


          Nor were constitutional challenges to specific lethal-injection protocols
unprecedented before Baze. As early as 1997, at least one federal district court recognized
the possibility of bringing such a claim. See Walker v. Epps, 550 F.3d 407, 416 (5th Cir.
2008) (holding that Baze did not reset the date of accrual, in part because “as early as 1997
the United States District Court for the Southern District of Mississippi recognized that
inmates could challenge Mississippi’s lethal injection protocol in a § 1983 suit”). The notion
that, prior to Baze, protocol challenges were unavailable as a matter of law is thus
demonstrably false.

          So if Baze did not create a new constitutional right, what precisely did Baze
accomplish? The answer, we believe, is that Baze clarified the standards that should apply
to the merits of Eighth Amendment protocol challenges. Justice Thomas acknowledged that
Baze simply created a new “formulation of the governing standard” rather than an entirely
new right. See Baze, 128 S. Ct. at 1556 (Thomas, J., concurring in the judgment) (emphasis
added).

          This raises the question of whether Baze’s freshly clarified standards trigger a new
accrual date. We do not believe that they do. As previously noted,“[i]n determining when
the cause of action accrues in § 1983 cases, we look to the event that should have alerted the
typical lay person to protect his or her rights.” Trzebuckowski, 319 F.3d at 856 (emphasis
added). Cooey II held, rightly or wrongly, that the relevant event is the later of either (1) the
“conclusion of direct review in the state court or the expiration of time for seeking such
review,” or (2) the year 2001, when Ohio adopted lethal injection as the sole method of
execution. Cooey II, 479 F.3d at 422. Nothing in Baze gives us cause to question Cooey II’s
determination of when the statute-of-limitations clock begins to tick.

          In this case, Getsy’s constitutional claim is focused solely on Ohio’s particular
application of the lethal-injection method of execution. He contends that someone on the
execution team might make a mistake in administering the drug cocktail and that he might
suffer a painful death akin to torture as a result. Because his ability to assert these kinds of
challenges was well established long before Baze, as conclusively shown by Getsy’s
intervention in the Cooey II case in 2007, we are unpersuaded that Baze caused Getsy’s
deadline to file his § 1983 claim to be reset.
No. 08-4199         Getsy v. Strickland, et al.                                           Page 5


                                             III.

        Getsy also attempts to distinguish Cooey II by asserting that the modifications to
Ohio’s lethal-injection protocol, which occurred on May 14, 2009, created a new date of
accrual. His basic claim is that the May 14th modifications reset his accrual date because
the particular version of the protocol that Ohio adopted on that date was a fact that could not
have been discovered through the exercise of due diligence before the time he intervened in
Cooey’s suit.

        But Cooey II has already considered and rejected Getsy’s position. Like Getsy,
Cooey had argued that the accrual date was reset because Ohio had changed its protocol in
2006. Ohio had adopted the following five changes at that time:

        First, officials removed time deadlines that previously dictated executions
        begin by a certain hour, and be completed within a narrow time frame.
        Second, prisoners are given more in-depth medical examinations prior to
        execution. Third, correctional personnel will make every effort to obtain
        two sites for heparin locks before proceeding to the execution chamber.
        Fourth, personnel will no longer use “high pressure” saline injections to
        check the viability of the intravenous lines. Instead, a “low pressure” drip
        of saline will be used to keep the line open and confirm its ongoing viability.
        Fifth, correctional personnel will observe each inmate’s arms and check for
        signs of intravenous incontinence while the drugs are being administered to
        the inmate.
Cooey II, 479 F.3d at 424.

        Despite these alterations, Cooey II declined to reset Cooey’s statute-of-limitations
deadline, even though the 2006 changes could not have been previously discovered by
Cooey through the exercise of due diligence. Cooey’s attempt to reset the accrual date based
on the above-listed changes was unsuccessful because he failed to make even a prima facie
showing that the modifications would increase his suffering. Nor did Cooey attempt to link
the five protocol alterations to the expert testimony that already did exist in the record
regarding alleged problems with the three-drug lethal-injection cocktail. This is all that
Cooey II meant when the court criticized Cooey’s failure to show that the five changes
“relate[d] to” Cooey’s “core complaints.” Id.

        Turning now to the present case, Getsy points out similar alterations in the protocol.
One change is that a member of the “medical team,” while witnessed by another medical-
No. 08-4199          Getsy v. Strickland, et al.                                        Page 6


team member, will dispose of unused medications. Other modifications include, for
example, more training, the supervision of another medical professional in administering the
drugs, and a provision that a noninvasive device may be used to locate a vein. Getsy’s main
concern, however, is that officials are now provided with too much discretion in
implementing the lethal injection.

        But Getsy has failed to make even a prima facie showing that the May 14, 2009
protocol modifications might create undue suffering. The actual 2007 protocol changes in
fact explicitly state that the Warden may make policy adjustments “to ensure that the
completion of the execution is carried out in a humane, dignified and professional manner.”
Execution Protocol No. 01-COM-11 (May 14, 2009), superseding 01-COM-11 (Oct. 11,
2006). This is hardly a change likely to cause increased suffering.

        Nor has Getsy attempted to link the May 14, 2009 changes to the evidence
previously submitted as part of Cooey’s “core complaints.” (Getsy’s “core complaint,” like
Cooey’s, is that the initial drug of the lethal-injection drug cocktail will insufficiently
anaesthetize him, thus subjecting him to extreme pain when the other two drugs are
administered.) In short, Getsy has not made a prima facie showing that the May 14, 2009
modifications will likely subject him to extreme pain based on either new evidence or on
existing evidence that has already been proffered in support of his “core complaints.” We
therefore conclude that Getsy has failed to show that the changes of May 14th to Ohio’s
lethal-injection protocol suffice to reset his claim-filing deadline.

                                              IV.

        Getsy’s final argument is based on the fact that a majority of the present panel
vacated his death sentence in Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006) (Getsy I).
Although that decision was vacated after this court decided to hear Getsy’s appeal en banc,
see Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) (en banc) (Getsy II), he nevertheless
maintains that the initial panel’s favorable decision reset the date of accrual for statute-of-
limitations purposes.

        The problem with this argument is that Cooey II held that the accrual period begins
for plaintiffs like Getsy either “upon conclusion of direct review in the state court” (1999 for
No. 08-4199         Getsy v. Strickland, et al.                                       Page 7


Getsy) or in 2001, when Ohio made lethal injection its sole method of execution. In either
case, what happened on collateral review was well beyond the two-year statute of limitations
and is thus irrelevant to the accrual of Getsy’s § 1983 claim. Cooey II is therefore not
distinguishable on the basis that a panel of this court rendered a favorable decision that was
subsequently vacated. In sum, Getsy’s case was correctly dismissed as untimely by the
district court.

                                             V.

        Finally, Getsy argues in great detail that Cooey II was wrongly decided. We are
frankly inclined to agree. But our disagreement with Cooey II does not empower us to avoid
applying that case’s holding. See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685,
689 (6th Cir. 1985) (concluding that one panel of this court cannot overrule the holding of
a prior panel unless the prior case is superseded by (1) this court sitting en banc or (2) a
subsequent decision of the Supreme Court). This panel therefore has no authority to reverse
the district court below on the basis that Cooey II might have been erroneously decided.

                                             VI.

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.
No. 08-4199         Getsy v. Strickland, et al.                                        Page 8


                              _________________________

                                   CONCURRENCE
                              _________________________

        KAREN NELSON MOORE, Circuit Judge, concurring. Constrained by the rule
announced in Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007) (Cooey II), I concur
in the majority opinion. I write separately, however, to highlight my conviction that Cooey
II was wrongly decided and to urge immediate en banc review of the application of that rule
in the present case to ensure that Getsy’s potentially valid 42 U.S.C. § 1983 claim is not
improperly and unjustly time barred.

        In Cooey II, the panel’s majority held that the statute-of-limitations period for a
§ 1983 method-of-execution challenge begins to run “upon conclusion of direct review in
the state court or the expiration of time for seeking such review,” or when Ohio adopted
lethal injection as the sole method of execution. Cooey II, 479 F.3d at 422. The panel’s
majority also acknowledged that the statute-of-limitations period can be reset when “the
lethal injection protocol . . . changes” in a manner that “relates to” the death-sentenced
prisoner’s “core complaints” regarding the lethal-injection process. Id. at 424. The panel’s
majority provided little illustration of this core-complaints exception, other than to conclude
that the prisoner in Cooey II had failed to meet the threshold. Id. at 424.

        For the compelling reasons set forth in Judge Gilman’s dissent in Cooey II, id. at
424-31, I believe the Cooey II panel majority clearly erred in establishing the statute-of-
limitations period as outlined above. Undertaking a proper legal analysis, I find convincing
Judge Gilman’s conclusion that the statute of limitations for bringing a § 1983 method-of-
execution challenge starts to run when the prisoner knows or has reason to know of the facts
that give rise to the claim and when the prisoner’s execution becomes imminent. Id. at 426,
429 (Gilman, J., dissenting); see also McNair v. Allen, 515 F.3d 1168, 1178 (11th Cir. 2008)
(Wilson, J., dissenting). A prisoner’s execution can become imminent only when he or she
has exhausted both state and federal legal challenges to the death sentence, which is a
moment that occurs, at the earliest, upon the Supreme Court’s denial of the prisoner’s first
writ of habeas corpus. Cooey II, 479 F.3d at 426. Indeed, a prisoner’s execution may not
be imminent until the state sets an execution date following the rejection of the prisoner’s
No. 08-4199          Getsy v. Strickland, et al.                                         Page 9


first habeas petition. It is only upon the conclusion of habeas review and when the prisoner
knows or has reason to know of the facts that give rise to the method-of-execution challenge
that a court may properly establish the accrual date. Cooey II’s ill-advised rule unduly
entangles a prisoner’s challenges to the validity of his or her sentence with the wholly
distinct question of whether the method by which he or she will be executed—assuming the
Court ultimately denies habeas relief—can withstand constitutional scrutiny. These are
distinct legal and factual questions, and, as Judge Gilman articulately stated, requiring
simultaneous litigation of such divergent issues will only decrease judicial efficiency and
increase injustice. Id. at 429.

        Furthermore, in addition to setting the accrual date upon the conclusion of habeas
review or the subsequent imposition of an execution date, we must be mindful that in many
states the lethal-injection protocol is neither a creature of statute nor of administrative rule.
As a result, there is very little, if anything, to constrain the protocol’s amendment or to
require that the administering body provide notice to concerned parties when it changes
execution procedures. See id. at 426-27 (noting that the Ohio Department of Rehabilitation
and Correction “can change the protocol at any time . . . . [, n]o statutory framework
determines when or how such changes may occur[, n]or is there a framework governing
when, or even if, such changes will be publicized”); McNair, 515 F.3d at 1178 (“The
protocol is a creature of regulation, not statute, and thus it is subject to change at any time
by the Alabama Department of Corrections.”).

        Given the protocol’s potential state of flux, then, it is imperative that the law provide
an opportunity for a prisoner to challenge his or her method of execution following any
modification in the protocol that may lead to the potential for increased suffering. Cf.
Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008) (“Of course, in the event a state changes
its execution protocol . . . the limitations period will necessarily accrue on the date that
protocol change becomes effective.”); see Baze v. Rees, 128 S. Ct. 1520, 1531-32 (2008)
(plurality) (concluding execution procedures that create “a substantial risk of serious harm”
or an “objectively intolerable risk of harm” have the potential to violate the Eighth
Amendment). Numerous conceivable protocol changes—for example, a change in the type
of drugs that Ohio administers in the current three-drug protocol—would clearly merit
resetting the statute of limitations. But I also believe that a less obvious change to the
No. 08-4199            Getsy v. Strickland, et al.                                                 Page 10


protocol could require a new accrual date as well if the amended protocol posed a
“substantial risk of serious harm.” Baze, 128 S. Ct. at 1531-32.

         Instead of attempting to draw a not-so-bright-line rule related to “core complaints,”
I believe that a more practical rule can be found in an analogy to pleading standards. If the
prisoner is able to make a prima facie showing that a modification to the protocol would
cause increased likelihood of suffering, then the claim will accrue on the date the protocol
was changed or when the prisoner could reasonably be expected to have notice of such
changes. A mere “unadorned” claim that the change would cause an increased likelihood
of harm would be insufficient; rather, the prisoner would be required to present “sufficient
factual matter” to support the claim of increased harm. Cf. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (establishing pleading standards under Federal Rule of Civil Procedure
8). Such a rule would also extend to cases in which the prisoner was able to show a history
of problems with the current protocol, regardless of whether there was a recent modification
to the protocol at issue. See, e.g., Cooey II, 479 F.3d at 423-24 (discussing the case of
Joseph Clark where, despite being administered one of the protocol’s drugs, Clark remained
conscious and “repeatedly advised officials that the process was not working”).

         Applying this test to Getsy’s case, I would find that the statute of limitations did not
begin to run on his method-of-execution claim until the date that his execution became
imminent; that is, on March 3, 2008, the date that the Supreme Court of the United States
denied certiorari in his habeas appeal, see Getsy v. Mitchell, 128 S. Ct. 1475 (2008), or, April
8, 2009, the date the Ohio Supreme Court set his execution date. State v. Getsy, 903 N.E.2d
1221 (2009). Although the 2009 changes to Ohio’s lethal-injection protocol had the
potential to reset the statute of limitations and provide a later accrual date, as the majority
points out, Getsy “has failed to make even a prima facie showing . . . of increased likelihood
                                                  2
of suffering” with regard to those changes. Such a deficiency, however, is of little import

         2
           The new protocol states, in relevant part, that:
          [t]he Warden shall consider the needs of the condemned inmate, visitors and family
          members, the execution team, prison staff and others, and may make alterations and
          adjustments [to the protocol] . . . as necessary to ensure that the completion is carried
          out in a humane, dignified and professional manner.
          In this case, I agree that the 2009 protocol changes were generally favorable to the prisoner and
not of the type to create an increased likelihood of serious harm such that the statute of limitations should
be reset following their adoption. It is worth cautioning, however, that should the Warden’s consideration
of the needs of others overwhelm the Warden’s consideration of the needs of the condemned inmate and
lead to an increased likelihood of serious harm to the condemned, it is possible that “sufficient factual
No. 08-4199           Getsy v. Strickland, et al.                                         Page 11


given the fact that Getsy filed his method-of-execution challenge in May 2007, well
before his claim began to accrue for statute-of-limitations purposes. Consequently,
under this rule, I would find that Getsy’s challenge to his method-of-execution was
timely.

          I am compelled to point out that the present case is particularly troubling given
the relative lack of clarity regarding the constitutionality of Ohio’s method of execution.
Importantly, the district court in this case has scheduled an evidentiary hearing on
whether Ohio’s lethal-injection protocol violates the Eighth Amendment to the
Constitution under the standard the Supreme Court recently set forth in Baze v. Rees, 128
S. Ct. 1520 (2008) (plurality). That hearing is set for October 2009, only two months
after Getsy’s imminent August 18, 2009 execution date. Given the Supreme Court’s
recent guidance as to the type of scrutiny that courts should afford execution protocols
to ensure their compliance with the Eighth Amendment’s prohibition against cruel and
unusual punishment, I find it unconscionable that by invoking a statute-of-limitations
defense, the State should be able to execute a person by a procedure that a court may
ultimately find cannot withstand constitutional scrutiny.                   Thus, it is with huge
reservation and only because I am bound to apply the law of the Circuit that I am
constrained to conclude that Getsy’s claim is time barred under this court’s view of the
law in Cooey II.

          Given the numerous concerns outlined above and contained within Judge
Gilman’s dissent in Cooey II, I believe that we should sua sponte grant en banc review
of Cooey II by way of its application in Getsy’s case.




matter” could support a claim that would warrant a reset of the accrual date.
No. 08-4199         Getsy v. Strickland, et al.                                     Page 12


                                   _________________

                                       DISSENT
                                   _________________

        MERRITT, Circuit Judge, dissenting. This case is about the meaning and
precedential scope of Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (“Cooey II”).
Judge Gilman, the author of the majority opinion in the instant case, dissented from and
strongly disapproves of the Cooey II decision, a case that expressly allows actions based
on a new lethal injection “protocol.” And Cooey certainly does not even mention or
attempt by any language or logic to foreclose actions when the Supreme Court creates
a new cause of action or when new facts arise predicting severe pain in the upcoming
lethal injection process. Whatever defects my colleagues see in Cooey II, they are minor
— a mere speck in the eye of justice — compared to their opinions that create a mote
that cannot be removed without drastic surgery by the en banc court. Rather than create
such an intractable mess, it would have been much more reasonable and judicious to
write an opinion along the following lines that does not use Cooey II to bar actions
prematurely that deserve to be considered on the merits.

                                              I.

        In Cooey II, this Court held that when a prisoner brings a § 1983 challenge to a
State’s lethal-injection protocol, the date on which the statute of limitations begins to run
— the so-called “accrual date” — is determined by three considerations: (1) “the date
on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review,” see 28 U.S.C. § 2244(d)(1)(A), or (2) when lethal
injection becomes the exclusive method of execution, whichever is later, unless (3) “the
lethal injection protocol . . . changes” in a way that “relates” to the condemned prisoner’s
“core complaints” about the lethal-injection process. See Cooey II, 479 F.3d at 421-23.
In Cooey II, the Court found that the second element — the date in 2001 when lethal
injection became mandatory in Ohio — determined the accrual date, thus placing
Cooey’s complaint, which was filed in 2004, outside of the two-year statute of
No. 08-4199         Getsy v. Strickland, et al.                                      Page 13


limitations made applicable by federal case law to constitutional claims under § 1983.
See id. at 424.

        But Getsy argues that this reasoning is not the end of the case because two
additional significant events distinguish his case from Cooey II and revise and extend
the accrual date. The first is the Supreme Court’s decision in Baze v. Rees, 128 S. Ct.
1520 (2008), which recognized for the first time the viability of an objection under the
Eighth Amendment to a lethal-injection protocol that creates “a substantial risk of
serious harm” or an “objectively intolerable risk of harm” when there is an “alternative
procedure” that is “feasible, readily implemented, and in fact significantly reduce[s]”
that substantial or objectively intolerable risk. See id at 1531-32 (plurality opinion).
Getsy argues that this new rule of constitutional law resets the accrual date for such
Eighth Amendment challenges. Second, and relatedly, Getsy also argues that he, unlike
Cooey, is challenging a recent material alteration to Ohio’s lethal-injection protocol and
that the accrual date should be determined by reference to the date of that alteration.

                                             II.

        To determine whether these arguments are precluded or approved by Cooey II,
it is important to understand the nature of the doctrine of binding precedent, which has
been a part of our judicial process since at least the time of Henry de Bracton, whose
work The Laws and Customs of England was published in the thirteenth century. See
SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH
LAW 183-84 (Lawyers Literary ed. 1959). This doctrine is especially necessary in the
federal court of appeals, a multi-judge court, in which confusion would reign supreme
and “the labor of judges would be increased almost to the breaking point if every past
decision could be reopened in every case.” See BENJAMIN CARDOZO, Lecture IV:
Adherence to Precedent, in THE NATURE OF THE JUDICIAL PROCESS 149 (1920). Like
cases must be decided alike, both for this prudential reason and because our judicial goal
of fostering equal citizenship and equal status under the law requires it. Yet “in this
perpetual flux [of cases], the problem which confronts the judge is . . . [that] he must first
extract from the precedents the underlying principle, the ratio decidendi” of the case.
No. 08-4199              Getsy v. Strickland, et al.                                Page 14


Id. at 28. My colleagues in the majority simply fail to try to narrow Cooey II to its
essential holding.

        In Cooey II, the Court analogized a § 1983 method-of-execution challenge to a
petition for habeas corpus for the purpose of determining the accrual date. See Cooey
II, 479 F.3d at 421-22. That is, the ratio decidendi of Cooey II is that the requirements
set out in 28 U.S.C. § 2244(d)(1) determine the date upon which a § 1983 claim like this
one accrues. That statute provides as follows:

 The limitation period shall run from the latest of —
        (A) the date on which the judgment became final by the conclusion of direct
 review or the expiration of the time for seeking such review;
 ....
        (C) the date on which the constitutional right asserted was initially
 recognized by the Supreme Court, if the right has been newly recognized by the
 Supreme Court and made retroactively applicable to cases on collateral review; or
        (D) the date on which the factual predicate of the claim or claims presented
 could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).1

        The Court in Cooey II only applied subsection (A) because it was the only one
relevant to that particular case.             Baze had not yet been decided, and the 2009
amendments had not taken place, so the applicability of subsections (C) and (D) were
neither argued nor considered, and it ignores the principle of extracting and applying the
ratio decidendi of a case to interpret it to require us to ignore the other provisions of
§ 2244(d)(1). Cooey II does not stand for the rule that my colleagues claim, i.e., that in
all lethal-injection cases the statute of limitations expired two years after Ohio adopted
lethal injection as the exclusive method of execution in 2001. It stands rather for the
creation of a process that imports from the federal habeas corpus statute the accrual dates
set out for the statute of limitations. Under those rules, when the whole process set out




        1
            Subsection (B) is not relevant to this case, and therefore is elided.
No. 08-4199         Getsy v. Strickland, et al.                                  Page 15


in Cooey II is properly used, Getsy’s case is viable and well within the statute of
limitations if it fits within the criteria laid out in subsections (C) or (D).

                                    A. Subsection (C)

        Subsection (C) has three elements: the claimant must (1) assert a constitutional
right, (2) that has been “newly recognized by the Supreme Court” and (3) “made
retroactively applicable to cases on collateral review.” Those elements are present here.
In Baze, the plurality made clear that the question before it was one of first impression,
and that the Court had “never invalidated a State’s chosen procedure for carrying out a
sentence of death as the infliction of cruel and unusual punishment.” Baze, 128 S. Ct.
at 1530. The Court had previously upheld every type of execution method, from
hanging to shooting to electrocution. See id. at 1526-27, 1530. But in Baze it
recognized that execution by lethal injection could violate the Eighth Amendment if it
involves a “demonstrated risk of severe pain” that is “substantial when compared to the
known and available alternatives.” Id. at 1537.

        Justices Thomas and Scalia observed that this “formulation of the governing
standard” found “no support in the original understanding of the cruel and unusual
punishment clause or in any of our previous method-of-execution cases,” id. at 1556
(Thomas, J., concurring in the judgment), because no case had previously suggested that
capital punishment would be unconstitutional if “it involve[d] a risk of pain — whether
‘substantial,’ ‘unnecessary,’ or ‘untoward’ — that could be reduced by adopting
alternative procedures,” id. at 1560. Justice Thomas went on to observe that the new
“formulation” of the standard was more lenient than the Sixth Circuit’s previous
formulation in Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir. 2007), which required
an intent to create pain. The separate opinions of Justice Stevens, Justice Breyer, and
Justice Ginsburg (joined by Justice Souter) likewise make clear that the plurality opinion
creates a “newly recognized” constitutional right, which in their views arise from the
doctrine that, with respect to capital punishment, the Eighth Amendment “‘must draw
its meaning from the evolving standards of decency that mark the progress of a maturing
No. 08-4199         Getsy v. Strickland, et al.                                    Page 16


society.’” See id. at 1568 (Ginsburg, J., dissenting) (quoting Atkins v. Virginia, 536 U.S.
304, 311-12 (2002)).

        The Court also made clear that the new standard would apply to all condemned
prisoners awaiting execution by lethal injection. The plurality discusses at some length
how the new formulation should be “implemented” with respect to stays of execution.
See id. at 1537-38 (plurality opinion). Justice Alito’s concurrence fleshes these
principles out further. See id. at 1538-42 (Alito, J., concurring). It is clear that they
contemplate the Baze formulation applying to all challenges to lethal-injection protocols,
whether those challenges are brought on direct appeal or — far more likely — by
prisoners whose direct appeals have become final. Thus, the Supreme Court has now
created a “newly recognized” constitutional right “made retroactive to cases on collateral
review.” Absent a later date made applicable by subsection (D), the accrual date for
challenges of this sort would be the date of the Supreme Court opinion in Baze, April 16,
2008. We are not called upon to apply the new formulation to the present case on the
merits and should leave that in the first instance to the District Court on remand. It is
clear, however, that under this new accrual date, Getsy’s claim is not barred by the two-
year statute of limitations.

                                    B. Subsection (D)

        Getsy also asserts that the May 2009 changes to Ohio’s lethal-injection protocol
grant the Warden broad discretion to determine the execution procedures used, thereby
increasing the risk of unconstitutional execution. The new protocol states:

 o. The Warden shall consider the needs of the condemned inmate, visitors and family
 members, the execution team, prison staff and other, and may make alterations and
 adjustments to this or other policies as necessary to ensure that the completion of the
 execution is carried out in a humane, dignified and professional manner.
May 14, 2009, Execution Protocol Number 01-COM-11, superseding 01-COM-11 dated Oct.
11, 2006.   Getsy contends that, under this new discretionary standard, neither avoidable,
severe pain nor intentionally inflicted pain is ruled out once the execution is under way, if such
No. 08-4199        Getsy v. Strickland, et al.                                    Page 17


pain would ensure that the execution was completed. We need not decide the merits of this
contention, but only whether the argument is time-barred under Cooey II.

       It may be that Getsy’s argument creates an issue “related” to his “core complaints,” and
thus falls within the exception created by the express language of Cooey II itself. But
whatever the meaning of Cooey II on this point, it is beyond doubt that a challenge to the
amended protocol falls within § 2244(d)(1)(D), since the new May 2009 protocol provides a
new “factual predicate” that could not “have been discovered through the exercise of due
diligence” prior to its passage. To state the problem more clearly, imagine that a defendant
is sentenced to death in 1996. In 2001, the State adopts lethal injection as its sole method of
execution. In 2009, it decides to cut costs by halving the dosage of each drug that it uses in
its three-dug protocol, and further decides that the drugs will be administered by first-year
medical students who perform the procedure for free. Imagine further that the several people
who are executed under this new protocol suffer a prolonged and excruciating death. If our
defendant then seeks to challenge this newly amended protocol, it would seem absurd to read
Cooey II to require a court to find that the challenge became time-barred in 2003, despite the
fact that the challenge specifically attacks changes that were made in 2009. The merits of
Getsy’s challenge may be weaker than those laid out in this hypothetical. But the statute-of-
limitations question is the same. When a prisoner challenges a change in a State’s method of
execution, that change provides a new “factual predicate” that resets the two-year statute of
limitations. As all of the opinions in Baze make clear, the constitutionality of a particular
method of execution will depend on the specific factual details of its administration. Thus, a
change to those details resets the accrual date for a constitutional challenge. See Walker v.
Epps, 550 F.3d 407, 414-15 (5th Cir. 2008) (“Of course, in the event a state changes its
execution protocol after a death-row inmate’s conviction has become final, the limitations
period will necessarily accrue on the date that protocol becomes effective.”).

       Getsy’s execution, which is currently scheduled for August 18th, should be temporarily
stayed pending the District Court’s resolution of the merits of Getsy’s claim under the standard
set out in Baze.
