                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0064p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                            X
                                             -
 LAWRENCE REYNOLDS,
                                             -
                              Plaintiff-Appellant,
                                             -
                                             -
                                                No. 10-3220
          v.
                                             ,
                                              >
                                             -
                     Defendant-Appellees. -
 TED STRICKLAND, GOVERNOR, et al.,
                                             -
                                            N
                           Filed: March 5, 2010
                Before: MARTIN, COLE, and SUTTON, Circuit Judges.

                                   _________________

                                          ORDER
                                   _________________

        BOYCE F. MARTIN, JR., Circuit Judge, joined by COLE, Circuit Judge; SUTTON,
Circuit Judge, concurring in the judgment.

        Lawrence Reynolds, an inmate on Ohio’s death row, seeks to stay his execution
currently set for March 9, 2010 at 10:00 a.m. We regretfully DENY the stay.

        Reynolds challenges Ohio’s lethal injection protocol under the Eighth and Fourteenth
Amendments to the United States Constitution. Reynolds was previously set to be executed
on October 8, 2009. But, in light of alarming difficulties on Ohio’s part in executing several
other death row inmates using the protocol in place at that time, we stayed Reynolds’
execution pending evidentiary hearings and further development in the district court.
Reynolds v. Strickland, 583 F.3d 956, 957 (6th Cir. 2009).

        Ohio thereafter changed its lethal injection protocol, purportedly to cure its past
difficulties. The new protocol utilizes a one-drug intravenous injection as the primary
method of execution. If the intravenous method is either impossible or proves unsuccessful,
the protocol calls for a two-drug intramuscular injection as a back-up. In response to this



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No. 10-3220         Reynolds v. Strickland                                            Page 2


wholesale change in lethal injection protocol, Reynolds and several other death row inmates
filed new Complaints in the district court challenging the new protocol. Reynolds filed his
Complaint on January 8, 2010.

        Prior to Reynolds having filed his new Complaint, this Court had the opportunity to
consider, in a truncated fashion, Ohio’s new protocol in the case of a death row inmate
named Kenneth Biros. Like Reynolds, Biros had challenged Ohio’s prior lethal injection
protocol. The district court had stayed Biros’ December 8th execution pending the outcome
of the various challenges to Ohio’s old lethal injection protocol. After changing the
protocol, Ohio sought immediately to proceed with executing Biros on December 8th. It
asked the district court to vacate the previously imposed stay on mootness grounds. When
the district court declined to vacate the stay, Ohio asked that we do so. We obliged on
November 25, 2009, finding that Ohio’s unilateral decision to change its protocol rendered
the entirety of Biros’ Eighth Amendment challenge moot. Cooey (Biros) v. Strickland, 588
F.3d 921, reh’g en banc denied, 588 F.3d 924 (6th Cir. 2009).

        Biros thereafter moved the district court on December 3rd for leave to amend his
Complaint to challenge the new protocol. The district allowed the amendment on December
4th and the litigation continued. In a very short time—three days, to be exact—the parties
and the district court began the process of developing a factual record on the new protocol.
Biros asked that the district court again restrain Ohio from proceeding with the execution on
December 8th to allow time for further factual development and reasoned consideration of
his new Eighth Amendment claim. This time, the district court on December 7th declined
to stay the execution, finding that Biros had not met his burden of proving a likelihood of
success on the merits of his Eighth Amendment challenge to Ohio’s new protocol. Biros
immediately appealed the district court’s order to this Court. The Court reviewed the record
before it and agreed with the district court’s conclusion that Biros could not prove that he
was likely to succeed on the merits of his new Eighth Amendment claims. Cooey (Biros) v.
Strickland, 589 F.3d 210 (6th Cir. 2009). Biros sought rehearing by the en banc Court, to
No. 10-3220            Reynolds v. Strickland                                                     Page 3


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no avail. Cooey (Biros) v. Strickland, 588 F.3d 1124 (6th Cir. 2009). Biros was executed
on December 8, 2009, with no apparent complications.

         As stated above, Reynolds filed a new Complaint on January 8, 2010 challenging
Ohio’s new lethal injection protocol, and several other death row inmates sought to
intervene and join in Reynolds’ challenge. Reynolds v. Strickland, No. 2:10-cv-27 (S.D.
Ohio).       Of critical importance to the present case, the parties stipulated to the
incorporation of the entire record from Biros’ case into Reynolds’ new challenge. On
January 30, 2010, one of the intervening death row inmates, Mark Brown, sought an
order from the district court restraining Ohio from executing him on February 4th. The
district court denied the request, primarily on the basis that Brown sought a stay on the
exact same factual record that this Court found inadequate in the hours before Biros was
executed. Reynolds (Brown) v. Strickland, No. 2:10-cv-27, 2010 U.S. Dist. LEXIS 9307
(S.D. Ohio Feb. 2, 2010). This Court affirmed the denial of a stay in an unpublished per
curiam Order on February 3, 2010. Reynolds (Brown) v. Strickland, No. 10-3098, 2010
U.S. App. LEXIS 2301 (6th Cir. Feb. 3, 2010). Brown was executed, with no apparent
complications, on February 4th.

         Reynolds now follows the exact same script as Brown. He seeks a stay of his
execution on the basis of the factual record developed in the Biros litigation, without any
material addition. We have great sympathy for Reynolds’ position. We fundamentally
agree with Reynolds that our Court seriously mishandled the Biros litigation in the final
days leading up to his execution. Biros’ original claim was not moot, Cooey (Biros), 588
F.3d at 925-28 (Moore, J., dissenting from the denial of rehearing en banc), and he
should have received an opportunity to litigate his challenge to Ohio’s new lethal
injection protocol to final adjudication but, instead, our Court engaged in a “classic
rush-to-judgment.” Cooey (Biros), 588 F.3d at 1124 (Griffin, J., dissenting from denial
of rehearing en banc). But, as wrong-headed as Biros might be, it is nevertheless the


         1
           The Biros panel filed a corrected opinion on December 29, 2009. Thus, the full Court’s denial
of rehearing en banc, which obviously occurred after the panel’s initial rejection of Biros’ stay request,
is reported in volume 588 of the Federal Reporter whereas the panel’s opinion is reported later in volume
589.
No. 10-3220         Reynolds v. Strickland                                            Page 4


binding law of the Circuit on the factual record at issue in that litigation. As that factual
record is materially identical to the factual record in this case, except to the extent that
Ohio may now point to two apparently successful executions using the new lethal
injection protocol, we have no choice but to conclude that Reynolds has not met his
burden of establishing entitlement to relief. Thus, while others may take up the mantle
of pressing the challenge to Ohio’s new protocol, we must regretfully DENY Reynolds’
motion to stay his execution.

        SUTTON, Circuit Judge, concurring in the judgment. While I agree with much
of the reasoning of the majority's opinion, particularly its conclusion that Cooey (Biros)
v. Strickland, 589 F.3d 210 (6th Cir. 2009), compels the denial of this stay motion, I
must ultimately concur only in the judgment.

                                        ENTERED BY ORDER OF THE COURT

                                              /s/ Leonard Green
                                        __________________________________
                                                        Clerk
